Cheng Ching Fong v. Ting Shuk Kay Peggy, Executrix of the Will of Ting Sok Hang, Deceased
Read the full judgment text of HCA 2834/2016 on BabelCite. This High Court CFI judgment was delivered on 19 May 2025.
1. This action is a contest for the entitlement to the following 3 properties between the Plaintiff (“ P ”) and the Defendant (“ D ”). D is the younger sister and Executrix of the estate of P’s romantic partner Madam Ting Sok Hang (“ the Deceased ”) who passed away on 24 May 2016.
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HCA 2834/2016 [2025] HKCFI 2046 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2834 OF 2016 ____________________
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__________________ JUDGMENT __________________ 1.This action is a contest for the entitlement to the following 3 properties between the Plaintiff (“P”) and the Defendant (“D”). D is the younger sister and Executrix of the estate of P’s romantic partner Madam Ting Sok Hang (“the Deceased”) who passed away on 24 May 2016. 2.The 3 properties are :
The Statement of Agreed Facts 3.The parties were able to agree extensively on the background matters as set out in the Statement of Agreed Facts attached with Annex A to Annex F[1], which are summarized in this section. Where matters not contained in the Statement of Agreed Facts are narrated, I would specify them to be so. 4.P was born in 1949 in Shanghai. P said in his witness statement the matters contained in this paragraph, which are not in the Statement of Agreed Facts, but they were not disputed by D. P’s father had been the office manager of the Shanghai office and later the Hong Kong Branch of the French news agency AFP. P and his parents emigrated to Hong Kong in 1950s. P was well educated and had worked in AFP as a journalist for 21 years from 1968 to 1989. He acquainted the Deceased in 1973. The Deceased, born in 1945, was 4 years older than he. The Deceased was the eldest in the family. She did not receive much formal education and had to start working to support the family when she was 15. She was married to her husband Yiu (“Yiu”) at the time of their acquaintance. 5.D’s case relied much on her contention that the Deceased was already well-off when the Aberdeen Centre Property was acquired in 1981. The following matters relating to the Deceased’s personal finance were agreed :
6.In 1981, P and the Deceased began cohabitation at the Aberdeen Centre Property purchased in October 1981 in their names as joint tenants at the price of HK$630,000. The purchase was funded by a mortgage loan of HK$450,000, repayable by monthly instalments of HK$10,519.55, which loan was completely repaid in January 1987. 7.All the government rates and rent and utility bills in respect of Aberdeen Centre Property throughout the years were paid by P. 8.In February 1985, Ultimate Games Limited (“Ultimate Games”) was incorporated in Hong Kong with P and the Deceased each holding 50% of its shareholding. Ultimate Games organized various sports events, such as Alfred Dunhill Cup (an international golf event), 555 Hong Kong Beijing Rally (a motor racing event) from 1985 to 1987 and from 1993 to 1997, and Colgate Women’s Games (a major track event). 9.In February 1986, Ultimate Games acquired a unit in Abba Centre, Aberdeen, Hong Kong for HK$199,000 with a mortgage loan which was discharged in February 1990. In February 2011, this property was assigned by Ultimate Games to P and the Deceased as tenants-in-common. There is no dispute over this property. 10.Another company, namely Monster Truck Company Limited was incorporated in 1994 with P and the Deceased as 2 of the 4 shareholdings. Its purpose of introducing the sport of monster trucks into Hong Kong was not successful and it was dissolved in May 2002. 11.In or about 1995, the Deceased developed Systemic Lupus Erythematosus and suffered from symptoms like joint pain, rashes and fatigue. Her health began to deteriorate and she began to seek regularly medical and therapeutic treatments. 12.On or about 5 May 1998, the Baguio Villa Property was purchased for HK$9,800,000 in P’s sole name with a mortgage loan, which was completely repaid in October 2004. Since then, P and the Deceased moved from the Aberdeen Centre Property to reside at the Baguio Villa Property. 13.The monthly mortgage repayments, government rates and rent and utility bills in respect of Baguio Villa Property were paid from P’s bank account maintained with Standard Chartered Bank. 14.On 31 May 1999, the Pearl City Property was purchased for HK$1,990,000 in the sole name of the Deceased without any mortgage loan. During the first 2 years after its purchase, the Deceased would go to the Pearl City Property during the day and return to Baguio Villa Property at night. 15.In or about 2001[2], P met and began an intimate relationship with Madam Chai, who is P’s present partner. Madam Chai gave birth to their son in 2001, and they began co-habitation in a property in Heng Fa Chuen. Thus and since then, P had 2 homes, one being the Baguio Villa Property and the other being at Heng Fa Chuen. 16.Also since 2001, the Deceased would occasionally stay over at the Pearl City Property and the frequency of the Deceased staying over at the Pearl City Property and not returning to the Baguio Villa Property at night increased. 17.On 30 April 2003, the Deceased made her last Will revoking the one she made dated 12 September 1979. By this last Will, D was named the Executor and the sole beneficiary of the estate of the Deceased. 18.In 2011, P and Madam Chai moved to co-habit at the Aberdeen Centre Property. In the same year, the Deceased moved out of the Baguio Villa Property and into the Pearl City Property. 19.On 10 February 2015, the Deceased executed a Notice of Severance of Joint Tenancy (“the Notice of Severance”) prepared by her solicitors in respect of the Aberdeen Centre Property. The same was registered with the Land Registry on 5 March 2015 under memorial no 15030601170110 and sent to P by her solicitor’s letter dated 31 March 2015. 20.In or about September 2015, the Deceased moved into a nursing home. On 24 May 2016, the Deceased passed away. 21.On 31 October 2016, P commenced this action. Abandonment of Counterclaim by D; Overview of the parties’ case; Disputed Issues; Witnesses 22.D claims, by the Counterclaim :
23.On the 2nd day of trial, Mr Joe Chan (together with Ms Yvonne Leung), counsel for D, informed the Court that D would formally discontinue the entirety of her Counterclaim. An order was then made giving D leave to so discontinue with the costs of the Counterclaim be to P. 24.Therefore, remaining at issue are the other 2 properties. In a nutshell, the parties’ respective case are :
25.The parties have agreed to a list of issues[5] (and with the Counterclaim being discontinued, the issues relating to the Baguio Villa Property can be ignored). They essentially boiled down to :
26.The witnesses that have given evidence at trial for P were P himself, Madam 何雪英 (“Madam Ho”), the house maid who had served P and the Deceased since 1983 and Mr 譚國良 (“Mr Tam”); while for D were P herself and Ms 梁慧霞 (“Ms Leung”). 27.The younger brother of the Deceased Mr 丁國良also filed a witness statement and was supposed to be one of the witnesses for D. However, on the 4th day of trial when it was D’s turn to call evidence, the Court was informed by Mr Joe Chan that D would not be calling him as a witness due to “his sickness”. The Court was not informed of what sickness he had contracted, nor was it shown any documentary proof relating thereto. The witness statement of Mr 丁國良was therefore formally expunged from the trial bundles. I would mention that the evidence Mr 丁國良 has given in his witness statement consisted, among others, of allegations that Madam Ho demanded HK$1,000,000 “bonus” from D, that P had withdrawn a substantial amount from a bank account in the joint names of P and the Deceased and refused to return the same to the Deceased and that all the money P gave to the Deceased were the Deceased’s share of profits, to his best belief. Principles on common intention constructive trust and resulting trust 28.The legal principles on common intention constructive trust are now well established and trite, and not disputed by the parties here. 29.The same have been neatly summarized by Deputy High Court Judge A Stock SC in the case of Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819 at §§7 and 8 :-
30.Equally trite and undisputed is the principle on resulting trust, which has been stated thus:-
The Aberdeen Centre Property 31.I will begin by dealing with the factual question of who funded the purchase of this property. 32.D pleaded :
33.D’s case that the Deceased paid for this property is therefore a case based on inference. She was unable to produce any documentary evidence in support. 34.In her witness statement, she referred to the transactions and matters relating to the Deceased’s personal finance prior to the purchase of this property as set out in [5(a) – (f)] above, then, she stated that she believed that the purchase was financed by the Deceased, thus :
35.D’s such factual case is a pure conjecture and personal belief on her part. I would also state clearly that though the parties have agreed that the Deceased had sold the Broadwood Road property and Lot No.261 in D.D. 379 and had inherited some money from Yiu, there is no evidence showing the net worth of the Deceased. Equally, there is no evidence showing that P did not have the financial ability to repay the mortgage of this property alone. Plainly, even if the Deceased had the means to pay, it would not lead to any inference that she must have, or did pay. 36.On the other hand, P pleaded that “[he] was the one contributed towards the initial acquisition cost and subsequent mortgage payment”[11] (my emphasis) in respect of this property. It was not pleaded clearly that he solely contributed, nor did say so in his witness statement. In his witness statement, he only said that the Deceased became a homemaker after their cohabitation. In oral evidence, P said that the monthly mortgage repayments of this property were paid from a bank account in the joint names of himself and the Deceased, and the account was closed after the mortgage loan was completely repaid. 37.As the property was registered in the joint names of P and the Deceased and the mortgage monthly repayments were paid from a joint name bank account, I would think that the prima facie position is that both P and the Deceased had financially contributed to its purchase. On such state of evidence as above narrated, I do not find proven that the Deceased paid for the purchase solely, nor am I able to find which of the two contributed what amount or proportion. 38.In any case, the determination of the issue of common intention did not hinge on the respective and relative contributions by either party. 39.I have set out in [25(a)] above P’s pleaded case on this so-called common intention. P’s evidence in his witness statement was :
40.In oral evidence, P described the occasion in the solicitor’s firm when the solicitor explained the legal effect of a joint tenancy, including the right of survivorship, to him and the Deceased and they agreed to purchase the property as joint tenants. 41.P also recounted in oral evidence a conversation he had with the Deceased during a dinner the two had with the legal clerk Mr Alan Mok, in which they discussed the right of survivorship, and P and the Deceased both promised to love each other the whole life (“愛你一生一世”) and then the Deceased said 「如果愛到最後都唔會放手，不如簽生死契」. Mr Joe Chan asked that the evidence on this conversation be not accepted as it was hitherto unmentioned anywhere and thus smacked of an afterthought. In my view, even if accepted, what the Deceased said merely was that she agreed to acquire the Aberdeen Centre Property by a joint tenancy -「 … 不如簽生死契」. Thus, this conversation in my judgment did not add much to the earlier conversation between the two and the solicitor. 42.According to P’s evidence, the Deceased and him had never expressly discussed about any promise or shared intention that they would not sever the joint tenancy. Indeed and pivotally, P confirmed in oral evidence that he did not even know that the joint tenancy could in law be severed into a tenancy-in-common until decades later, in about 2015, when he received the Notice of Severance. It is a matter of logic and reason that one cannot has a shared intention over something when he does not even know that that something existed. 43.While the right of survivorship is one facet of the legal effect of a joint tenancy, so also is the well-established legal right to sever the joint tenancy into a tenancy-in-common. Therefore, to establish a common intention constructive trust to effectively iron-cast the right of survivorship by disentitling the other joint tenant to exercise his/her right to sever, in my judgment, a much clearer common intention to that specific effect must be established. I do find it established here. P and the Deceased merely agreed to purchase the property in their joint names as joint tenants, and no more. 44.I thus hold that P fails to prove the existence of such an express common intention. It is also not P’s case that such a common intention was to be inferred from conduct. P’s case of a common intention constructive trust is therefore not established, nor his case that the Notice of Severance is in any way rendered invalid. The default legal position therefore applied, and the Deceased was entitled to, and she did by the Notice of Severance, sever the joint tenancy. 45.Mr Ryan Chan, counsel for P, in his closing submissions invited this Court, should I reject P’s case that there was such a common intention, “to find that the property was held by P and the Deceased jointly on a purchase money resulting trust for P solely”[13]. I reject this submission. First, insofar as Mr Ryan Chan contended that the purchase of this property was solely financed by P, as I said above, this was not even P’s own factual allegation in his evidence, not to say having been established. 46.Second and moreover, from P’s oral evidence that at the time he and the Deceased were very much in love, that this property was meant to be purchased by them effectively as their matrimonial home, and the monthly mortgage payments were paid from the bank account held in the joint names of himself and the Deceased, I am prepared to find, on balance of probabilities and as pleaded by D in [2.1d.5] of the Amended Defence, that the common intention was that they intended the property to be beneficially owned equally by them, irrespective of their respective financial contributions. There is thus no resulting trust as to the half share held by the Deceased. 47.I thus hold that P fails in his claim regarding the Aberdeen Centre Property. The Pearl City Property 48.As have mentioned, the main dispute regarding this property was which of P and the Deceased actually financed its purchase. It will be recalled that the purchase price of HK$1,990,000 was paid without any mortgage loan. 49.In D’s Amended Defence, she merely asserted in [11.1] that “The Defendant repeats the matters pleaded in paragraph 2 above. The Deceased purchased the Pearl City Property using only her money”. While [2] of the Amended Defence was repeated as a basis in support, [2] actually pleaded nothing specific about the source of fund for the purchase of the Pearl City Property. 50.D’s evidence on this issue again was most scanty, if there is any at all. In her 2 witness statements, she mentioned the deterioration of relationship between P and the Deceased and how P mistreated the Deceased. She also mentioned the business of Ultimate Games, and its audited financial statements for 1997-1998 showing that HK$660,000 was paid as directors’ remuneration that year. She said she believed the Deceased was financially capable of paying for the purchase, she believed that the HK$4,000,000 P said he paid to the Deceased was a gift to the Deceased or could have been profits of business that the Deceased was entitled to. She further relied on matters such as her beliefs that P did not have the key to the property, that P did not know about the address of the property and that P did not even know about the purchase of this property. In all, these are all D’s conjectures and guesses dressed as so-called “beliefs”. 51.In cross-examination and her closing submissions, D accepted that she in fact knew little about the dealings between P and the Deceased, and that her knowledge on the matters concerning these properties and Ultimate Games were gleaned from land searches and company searches conducted by her lawyers after this action was commenced against her. She also specifically said in oral evidence that she indeed did not know whether if the Deceased had made any payment towards the purchase of this property. Again, there is no documentary evidence whatsoever proffered by D to support her claim that the purchase was financed by the Deceased. 52.Ms Leung’s evidence also hardly supported D’s claim. She acquainted the Deceased in 1991 or 1992 as they shared the common interest in Cantonese opera. She went with the Deceased to look for a flat to purchase in 1999 leading to the selection and purchase of the Pearl City Property. She said that P never appeared in the whole process, which was not disputed by P. She then lived in the Pearl City Property rent-free from 1999 until 2005. One piece of evidence she gave and relied on by D was that the Deceased told her more than once not to let P knew about the purchase of this property. 53.Leaving this question of whether P knew about this purchase and the address aside (which I will deal with later), the evidence given by Ms Leung regarding the lack of involvement on the part of P in relation to the purchase, that P did not visit the property, that the Deceased did not allow or would not want P to visit and such, I find, is hardly probative to the question of who funded the purchase or who owned the beneficial ownership, particularly viewed in the backdrop that the relationship between P and the Deceased was deteriorating and since about 2001 (P said in about 2000 in his witness statement) P was getting romantically involved with Madam Chai. 54.P’s case of payment of HK$4,000,000 to the Deceased in 1997 was evidenced by the bank statements of his Bank of America account and the cheque stubs, proving the following 3 cheques in the total sum of HK$4,000,000 were issued to the Deceased and that these 3 cheques were cleared :
55.P’s evidence was that in 1997 he and the Deceased talked about investing the fortune P has built up in real properties, and for tax reasons P wanted the Deceased to hold the properties for him, that the HK$4,000,000 was given to the Deceased for that purpose, that the property market in Hong Kong underwent correction in 1997, and subsequently in April 1999, the Deceased purchased the Pearl City Property. 56.P was pressed in cross-examination with the suggestion that these 4 payments were the Deceased’s share of profits from Ultimate Games, which P vehemently denied that they were. I accept P’s evidence that they were not because :
57.The above-mentioned Memorandum was written in English dated 26 November 1999 signed by the Deceased and signed by Mr Tam as a witness[21] (“the Memorandum”), and I quote its contents in entirety:
58.P’s evidence about the Memorandum[22] was that the Deceased expressed concern that the children of Yiu might be entitled to her estate, and she therefore had executed a Will in 1980 naming her mother as beneficiary but she later tore up that Will as she became on bad terms with her mother. Therefore, the Deceased thought she should write something to state that she held the Pearl City Property on his behalf. 59.Mr Tam gave evidence. He is now aged about 70 and knew P for over 50 years. He also knew the Deceased and had visited their home often. He said he had dinner in their home one night in 1999. After dinner, P produced 2 one-page documents and asked him to sign as a witness. One document was an IOU and the other concerned a flat. His evidence was that P asked the Deceased to sign first and she did without hesitation and then he signed too. He was under the impression that the Deceased knew about the contents as she signed immediately without hesitation or question. Days later, P gave a copy of the 2 signed documents to him for him to keep as record. In 2016, he was contacted by P to seek to retrieve the 2 copies as P has lost the originals. He searched and only found the Memorandum and not the IOU and the Memorandum now produced for this action was indeed his copy. 60.P’s evidence was that the IOU concerned the other HK$2,000,000 so paid to the Deceased which had not been used to purchase any real properties. He also stated in oral evidence that he was not pursuing the estate of the Deceased for this HK$2,000,000. 61.Mr Tam’s evidence was not seriously challenged by D. All Mr Joe Chan submitted was that Tam only gave in oral evidence further details of how he lost the IOU and how he found the Memorandum only when he was cross-examined thereon. The IOU was never in issue in this action and I do not see how Mr Tam can be faulted for not explaining in his witness statement how the IOU was lost. Similarly, a person who produced a relevant document is generally not burdened to have to explain in witness statement the details as to how he found that document. These criticisms completely lacked substance. On the contrary, I find Mr Tam a credible and reliable witness and accept his evidence. 62.D initially challenged that the Memorandum was not genuine and was not signed by the Deceased. This challenge D later dropped in the course of trial. D then in the middle of trial changed to run a contention that the Deceased signed without knowing the contents. 63.To the extent that D’s such contention is to counter P’s case of an express trust with the Memorandum being a declaration of trust, I accept Mr Ryan Chan’s submission and objection that such contention amounted to alleging non est factum, which must be specifically pleaded and established by evidence (Ming Shiu Chung & Ors v Ming Shiu Sum & Ors (2006) 9 HKCFAR 334 at [87]). Such was not pleased in the Amended Defence (at [21] which specifically responded to [24] of the Statement of Claim in which the Memorandum was pleaded and relied on). 64.In any case, I do not find proven that the Deceased signed the Memorandum without knowing the contents as :
65.To the extent that D’s such contention was to attack the weight to be given to the Memorandum, I do not accept it, as I hold in the preceding paragraph that it was not proven that the Deceased signed without knowing the contents thereof. Thus, I will attach full weight to the Memorandum. 66.The next said document was 4 pages of notes hand-written by the Deceased[23] (“the Notes”). In oral evidence, D told this Court that she was present when the Deceased wrote the Notes on an occasion in a year after 2010, and the exact year she could not remember. D said that the Deceased asked her to attend as the Deceased was concerned that P might take advantage of her, and she wanted to tell D all about her monetary matters and to note down everything the best she could. I accept D’s said evidence regarding the Notes. 67.The Notes recorded property transactions and financial dealings chronologically starting from 1981 when the Aberdeen Centre Property was purchased. It also recorded certain information about Gourmet Kitchen and that the Deceased helped organizing the rally races in 1990s, but she started to feel quite ill since February 1997 and that she continued to assist organizing the rally race that year despite the pain. 68.Importantly and tellingly, despite the said purpose and intent for writing the Notes, there was no mention in the Notes whatsoever about the Pearl City Property. Had the Pearl City Property been purchased with profits she was entitled to or earned from the business of Ultimate Games or had the Pearl City Property been purchased with her own money, it would be most inherently improbable, in view of the purpose for writing out the Notes, that such matters, if they were the case, were not recorded in the Notes at all. 69.Regarding P’s case that there was an express trust, I am not satisfied that the Memorandum itself amounted to a declaration of trust in view of the ambiguity resulting from the statement therein that the Deceased “promise to transfer the ownership of the above-mentioned property to [P] upon my demise.” It is ambiguous because when one declares oneself as the trustee of certain property on trust for a beneficiary, the beneficiary would thereby be entitled to all the rights as a beneficiary including calling for the transfer of the property at his direction at any time. That statement however was a promise to transfer the property to P after the Deceased’s demise, which would be inconsistent with the obligation of a trustee and the right of the beneficiary. Thus, I hold against the Memorandum as a declaration of trust and thus hold against P’s case of an express trust. 70.However, though I hold that the Memorandum does not amount to a declaration of trust, it does not mean that the Memorandum is not a piece of evidence or is not a probative piece. 71.I accept P’s evidence that as he was not a lawyer, he wrote out the Memorandum in layman’s language. Reading the Memorandum, and in my judgment, it was reasonably clear that it was stated therein that the Deceased was holding the Pearl City Property on trust for P who was the sole beneficiary of the property and therefore the Deceased was not its beneficial owner. The Memorandum together with the fact that the Pearl City Property was not mentioned in the Notes at all, in my view, corroborated P’s evidence, which, as said, I find credible. 72.In the premises, I make the following findings :
73.I also hold that P did know latest in November 1999 about the purchase of the Pearl City Property by the Deceased and its address as the same was captioned and underlined in the Memorandum. 74.As whether there was a common intention as to the beneficial ownership of this property was listed as one of the agreed issues, I will answer it for completeness. There is simply no evidence proffered by D (or P) to show any such common intention. The case D ran all along was that the Deceased was the sole beneficial owner. Thus, I answer that issue in the negative. 75.For the reasons expressed above, I hold that the Deceased has been holding the Pearl City Property on behalf of P under a resulting trust. 76.In the premises, I hold in favour of P’s claim that he is entitled to the beneficial ownership of the Pearl City Property. Disposal 77.In the premises, I dismiss P’s claim in respect of the Aberdeen Centre Property but give judgment to his claim over the entire beneficial ownership of the Pearl City Property. 78.In the Statement of Claim, P seeks quite a number of reliefs concerning the Pearl City Property, including a few declarations, 2 orders in different form for the conveyance of that property to him, an account to be taken for the profits earned by that property and such. The parties shall attempt to agree on the reliefs and orders and submit a draft for approval. Failing agreement, the parties shall report by a joint letter within 21 days attaching their respective drafts and stating succinct reasons in support of his/her version, for this Court’s approval. 79.P is successful over only part of his claim and is also awarded the costs of the Counterclaim. I think a global costs order is appropriate. I would on nisi basis order in the round that D do pay P 75% of P’s costs of this action, including his costs of the Counterclaim and all costs reserved (if any), to be made absolute within 21 days unless any party applies by summons to vary within that time. 80.I thank counsel for their assistance.
Mr Ryan Chan, instructed by Neo Solicitors, for the Plaintiff Mr Joe Chan & Ms Yvonne Leung, instructed by Wai & Co., for the Defendant [1] [A/199-4 to199-46] [2] P said in his witness statement that it was in or about 2000 [3] [2.1l] of the Amended Defence and Counterclaim [4] [2.1m] of the Amended Defence and Counterclaim [5] [A/199-1 to 199-3] [6] [9] of the Statement of Claim [7] [25] of the Statement of Claim [8] [11.11] of the Amended Defence and Counterclaim [9] [15(3)] of her witness statement [10] [6] of her 2nd witness statement [11] [10] of the Statement of Claim [12] [6] of P’s witness statement [13] At [40] [14] [B/229] [15] [B/230] [16] [B/232] [17] [B/233] [18] [B/234] [19] [B/235] [20] [D/565 – 584] [21] [B/236] [22] [17-19] of his witness statement [23] At [B/404 – 407] |
Cases cited in this judgment
Further hearings and rulings under HCA 2834/2016