Kan Hong v. Kan Hang Ping

DCCJ 567/2023

[2025] HKDC 1005

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 567 OF 2023

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BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.This is the judgment of the trial of this action commenced by the Plaintiff (“P”)  on 28 January 2021 to claim, inter alia, (a)  a declaration that the Defendant (“D”)  has been holding the entire legal and beneficial estate and interest in a property known as Flat D, 29^th Floor, Tower 1, Goodrich Garden, No 9 Leung Tak Street, Tuen Mun, New Territories, Hong Kong (the “Property”), as a bare trustee for P since 11 November 1996, (b)  an order for the delivery of vacant possession of the Property to P and (c)  damages and/or mesne profits from May 2017 until delivery of vacant possession of the Property.

2.In a nutshell, P has predicated his case on common intention constructive trust and claims that he has been the sole beneficial owner of the Property.  D, in defence, asserts her ownership over the Property and claims that she purchased the Property as her future family home with Chan Tsz Hin (“Chan”), her then boyfriend and now her husband, and has all along been the sole legal and beneficial owner of the Property.

3.The trial took place on 7-10 and 15 January 2025. P was represented by Mr Peter K M Chung and D represented by Ms Vivian P Y Chan.

4.Apart from himself, P has called Kan Kai Chiu（簡啟釗）(“Chiu”)[1] and Chiu Sung Yip[2] to testify.  D has testified in Court and called Chan and Kan Wah Fung（簡華鋒）[3] (“Fung”)  as her witnesses.

5.At the 1^st day of the trial, Mr Chung confirmed that P did not object to the admissibility of the witness statement of Leung Yau Ling[4] (“Madam Leung”)  dated 11 June 2021 (“Madam Leung’s WS”)  and therefore, Madam Leung’s WS would fall for the consideration of this Court.

6.After hearing the parties’ closing submissions on 15 January 2025, I reserved my judgment and informed the parties that I would hand down my written judgment on or before 15 July 2025.

7.This I now do.

B.   THE BACKGROUND

8.P married Madam Leung in 1961 and 5 children were born to the wedlock.  In the order of seniority, P’s 5 children are as follows:

(a)  Fung（previously known as Kan Kai Ming 簡啟明）, son, born in 1961;

(b)  Chiu, son, born in 1963;

(c)  Kan Hang Fang（簡杏芳）(“Fang”), daughter, born in 1964;

(d)  Kan Hang Ching（簡杏菁）(“Ching”), daughter, born in 1972; and

(e)  D, daughter, born in 1975

9.Prior to 1996, P and his family had been living in a public housing flat in Lai Yiu Estate, Kwai Chung (the “Lai Yiu Flat”).

10.About 1992, Fung and Fang moved out of the Lai Yiu Flat.  Thereafter, P, Madam Leung, Chiu, Ching and D remained living in the Lai Yiu Flat.

11.In January 1996, P filed an application with the Hong Kong Housing Authority (“HKHA”)  for a loan of HK$600,000 under the Home Purchase Loan Scheme (the “Scheme”)  (the “Scheme Loan”).

12.On 16 September 1996, P submitted a declaration to HKHA, stating his agreement to change the applicant for the Scheme Loan to D in place of him.

13.On 11 October 1996, D qua purchaser entered into an agreement for sale and purchase of the Property at the price of HK$1,630,000 (the “Purchase Price”). (the “SPA”)

14.On or around 16 October 1996, D entered into a loan agreement with HKHA for the Scheme Loan. (the “Scheme Loan Agreement”)

15.By an assignment dated 11 November 1996 (the “Assignment”), the sale and purchase of the Property was completed and D became the registered owner of the Property.

16.The Purchase Price was paid in the following manner:

(a)  Initial deposits and down payment totalling HK$830,000;

(b)  The Scheme Loan advanced to D on or about 11 November 1996; and

(c)  A mortgage loan of HK$200,000 from Standard Chartered Bank (“SCB”)  taken out by and advanced to D on 11 November 1996 (the “SCB Loan”).

17.On 30 November 1996, P surrendered the Lai Yiu Flat to HKHA.[5]

18.In or about December 1996, P, Madam Leung, Chiu, Ching and D moved into the Property which is a 3-bedroom property.

19.In 1997, Ching moved out of the Property.

20.In April or May 2001, D and Chan got married.

21.In 2001, P and Madam Leung applied for a public housing unit.

22.In 2004, P and Madam Leung moved out of the Property to live in another public housing unit in Tsz Wan Shan（慈雲山）allocated to P by the HK Government (the “TWS Flat”)  [6].

23.D, Chan and their children are now residing at the Property.

C.   THE PARTIES’ RESPECTIVE CASES

24.The parties’ respective cases can be culled from their pleadings. They are as follows:

C.1.  P’s case

25.In or about 1995, P saw a notice posted by HKHA regarding the Scheme which provided the applicant with a loan of up to HK$600,000 for his/her to purchase his/her own real property.  P, therefore, applied for the Scheme Loan.

26.After P’s application for the Scheme Loan was approved by HKHA, P looked for a flat, found the Property and intended to purchase the same in or about mid-1996.[7]  However, P encountered difficulty in taking out a bank loan because of his old age.

27.After discussion with his family members including D,

(a)  P decided to let D act as the applicant for the Scheme Loan and the mortgagor of a bank loan for the purchase of the Property; and

(b)  D agreed to the aforesaid arrangement and to hold the Property under her name on trust for P.

28.On or about 16 September 1996, P submitted a declaration to the HKHA, stating his agreement to have D to be the applicant for the Scheme Loan in place of himself.

29.P paid HK$830,000[8] for the deposits and down payment, borrowed HK$600,000 under the Scheme (ie the Scheme Loan)  and another HK$200,000 from SCB (ie the SCB Loan)  for the purchase of the Property.

30.In or about December 1996, P and his family including Chiu and D moved into the Property.  Since then, P had, through Chiu and/or Madam Leung, made payments into D’s bank account for the repayment of the Scheme Loan and the SCB Loan.

31.In or about April 2001, D got married and moved out of the Property to live with Chan’s family.  Thereafter, D often came back to the Property and complained that she was unhappy living with Chan’s family.

32.In or about December 2001, D moved back to the Property with Chan and their new born child due to her conflicts with Chan’s family.  After returning to the Property, D agreed to pay rent to P, at the amount equivalent to the monthly instalment repayment of the Scheme Loan and the SCB Loan, by depositing the same directly into D’s bank account.

33.Shortly after D’s return to the Property, Chan started to have conflicts with P. Due to the conflicts, P had stayed at the dormitory of his workshop since sometime in 2002. Occasionally, P came back to the Property and often had arguments with D and/or Chan. During the arguments, D and/or Chan often claimed that the Property belonged to them[9] and requested P to stay away from the Property.

34.In or about May 2004, Madam Leung also moved out from the Property to stay with P in another place; they moved to live in the TWS Flat.[10]

35.Although Chiu had another residential home, he still kept the Property as one of his residential homes and stored his personal belongings at the Property until May 2017 when D and/or Chan refused to allow him and P to return to and enter the Property and further threw away all his and P’s personal belongings in the Property[11].

36.D, upon demand, refused to transfer the legal title to and/or ownership of the Property to P.

37.P has suffered loss and damage since 2002 and further in or about May 2017.

C.2.   D’s case

38.In about 1995, D and Chan started dating and planning to get married. In contemplation of the marriage, P, D and other family members agreed the following:

(a)  A property would be purchased as a family home solely for D and Chan;

(b)  P and Madam Leung would apply and wait for another public housing unit from the government and would temporarily reside at the property to be purchased until another public housing unit was granted;

(c)  Chiu and Ching would also temporarily reside at the property to be purchased, but would move out on their own as soon as possible to make room for D and Chan to start a family; and

(d)  D would act as the genuine borrower of the loan under the Scheme, and be solely responsible to finance the purchase of the property, ie deposit payments, down payment and mortgage repayments.

39.Once D took out the Scheme Loan, she would no longer be eligible to apply for public housing.

40.To apply for the Scheme Loan, P’s right of occupation of the Lai Yiu Flat had to be surrendered.  The original loan application under the Scheme therefore had to be made by P before the same could be transferred to D.

41.On or about 9 January 1996, P made the application for the Scheme Loan and HKHA subsequently approved the application.

42.On or about 16 September 1996, P submitted the declaration to the HKHA, stating his agreement to have D to be the applicant for the Scheme Loan in place of himself.

43.On or about 11 October 1996, D entered into the SPA at the Purchase Price.

44.On or about 16 October 1996, D entered into the Scheme Loan Agreement.

45.The Purchase Price of the Property was solely funded by D:

(a)  Before 11 October 1996, D used her own funds to pay the initial deposit of HK$30,000;

(b)  On 11 October 1996, D used her own funds to pay the second deposit of HK$133,000; and

(c)  On 11 November 1996, D made down payment in the sum of HK$1,467,000 including the SCB Loan and the Scheme Loan advanced to and drawn down by D on the same day.[12]

46.Pursuant to the Assignment, D became the sole legal and beneficial owner of the Property.

47.P, Madam Leung or Chiu had never contributed any money to or funded the Purchase Price.

48.In relation to the history of occupation of the Property,

(a)  In or about December 1996, P, Madam Leung, Chiu, Ching and D moved into the Property;

(b)  In or about mid-1997, both Chiu and Ching moved out of the Property though some personal belongings of Chiu had been left at the Property until sometime in 2017;

(c)  In or about May 2001, D married Chan and immediately thereafter, Chan moved into the Property; and

(d)  In about March or April 2004, P was granted the right of occupation in the TWS Flat and thereafter, he and Madam Leung moved out of the Property.

49.After moving into the Property, D has never moved out of the Property. Since marriage, D, Chan and their 3 children have been residing at the Property.

50.In or about 2017, Chiu’s personal belongings were taken back by Chiu upon D’s request.  D and Chan have never thrown away any personal belongings of Chiu.

51.Since the purchase of the Property, D has been paying all monthly mortgage repayments under the Scheme Loan and the SCB Loan, all property insurance premium, rates, utilities and maintenance costs of the Property.  Neither P nor other family members has paid or contributed to any mortgage repayments.  D has never agreed to pay rent to P.

52.In or about March 2017, D re-mortgaged the Property for refinancing but continued to be the sole person making all mortgage repayments.

53.In or about mid-2017, P and Chiu began to nurse grievances against D due to family matters.

54.In 2018, P alleged for the first time that he had a claim of ownership or interest in the Property.

D.   THE APPLICABLE LEGAL PRINCIPLES

55.The relevant legal principles were helpfully summarised by Deputy High Court Judge A Stock SC in Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819 at [7] and [8] and adopted by Madam Recorder Yvonne Cheng SC (as she then was)  in Mok Wing Yi v Tam Shuk Wah Mary [2021] HKCFI 1630 at [23], as follows:

“7. The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009)  12 HKCFAR 1 per Ribeiro PJ at §§35-38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

8.  In summary:

(1)  The starting point is that equity follows the law.  There is a presumption that the beneficial interest follows the legal interest.  Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership.  See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2)  The burden may be discharged by showing that: (i)  there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter)  that the beneficial ownership was to be different to the legal ownership; (ii)  the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii)  it is unconscionable for the property owner to assert ownership in reliance on the legal title.  The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom.  See: Luo Xing Juan §38; Liu Wai Keung §46.

(3)  The approach to ascertaining common intention is objective.  One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct.  See: Liu Wai Keung §47; Mo Ying §5.16.

(4)  The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions.  Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention.  There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5)  However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts.  The court is not constrained to consider only pure direct monetary contributions to the purchase price.  In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters.  See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.” (My Emphasis)

56.Similar summary of the aforesaid legal principles (with an extension to a consideration of resulting trust and the interrelationship between constructive trust and resulting trust)  can also be found in Woo Tat Huen v Lee Wai Ping [2021] HKCFI 576 at [42]-[46] by Ms Recorder Eva Sit SC.

57.Since this case concerns the existence of an oral discussion, agreement and arrangement between the parties, and turns on my assessment of the credibility of witnesses, the legal principles on evaluating the truthfulness of an account given by a witness are relevant. These principles were referred to in Hui Cheung Fai v Daiwa Development Ltd (HCA 1734/2009, 8 April 2014)  at [77]-[80] by DHCJ Eugene Fung SC, and helpfully summarized by Madam Recorder Yvonne Cheng SC (as she then was)  in Joint and Several Trustees of the Property of Yeung Wing Sing v Yeung Wing Sing [2021] HKCFI 2018 at [26] as follows:

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

(2)  in deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  regard should be had to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence;

(4)  care should be taken in drawing conclusions about truthfulness and reliability solely or mainly from the appearance of a witness or from the assessment of a witness’ character;

(5)  witnesses’ credibility should be tested by reference to the objective facts proved independently of their testimony, and regard should be had to their motives and to the overall probabilities.”

E.   THE ISSUES

58.In a broad outline, the issues can be distilled as follows[13]:

(a)  Was there an agreement, arrangement or understanding reached between P, D and their family members regarding the purchase, use and ownership of the Property in 1995? and if in the affirmative, what was it?

(i)  What was the reason for applying for the Scheme Loan on 9 January 1996?

(ii)  What was the reason for later changing the applicant for the Scheme Loan to D?

(b)  What was/were the source(s)  of funds for the deposit payments and down payment of HK$830,000 towards the purchase of the Property?

(c)  Who made monthly instalment repayments of the Scheme Loan and the SCB Loan?

(d)  Who made payments of the property insurance premium, rates, utilities and maintenance costs of the Property?

(e)  Did D hold the Property on constructive trust for P? and if in the affirmative, the extent of P’s beneficial interest in the Property?

F.   THE PARTIES’ EVIDENCE

59.As I have said, the parties called 6 live witnesses in toto.  They were cross examined on various factual matters, and their credibility is in issue.  I set out below the salient parts of their evidence.

F.1.   P

60.P was born in 1934 and is now 91 years old.  He was assisted by hearing aids in giving his testimony in Court.

61.In or about 1949, P came to Hong Kong from Foshan. He was married in 1961 and thereafter allocated the Lai Yiu Flat. Later, Fung and Fang moved out of the Lai Yiu Flat.

62.In or about 1985, P started to operate his own small scale construction work business[14].

63.About 1995, P saw a notice posted by HKHA regarding the Scheme.  Because the Lai Yiu Flat was relatively small and cramped for a family of 5, P, after discussion with his family members, decided to apply under the Scheme to purchase a bigger flat for his family to live in comfortably.

64.P submitted the application for the Scheme Loan and was notified that the application was approved in 1996.

65.P and his family members looked for a suitable flat and found the Property which was a 3-bedroom property and sold at the price of HK$1,630,000, ie the Purchase Price.  He planned to fund the down payment of HK$830,000 and applied for the Scheme Loan and the SCB Loan.  After making enquiry with the bank, P was informed by the bank staff that since he was in the age of retirement and was unable to repay the loan, the bank would not approve his application.  The bank staff also suggested to him to make the application under the name of his children.

66.Amongst Chiu, Ching and D, only D was working with income proof. After P discussed the matter with his family members (including D), P decided to use D’s name to purchase the Property.

67.On or about 16 September 1996, P went to HKHA to submit the declaration, requesting for a change in the name of the applicant to that of D.

68.Thereafter, D applied to SCB for taking out the Scheme Loan and the SCB Loan and signed the SPA.

69.Madam Leung was a housewife, and P was the family’s sole breadwinner.  At the time of purchase of the Property, P’s average monthly income from his business was no less than HK$21,000.  P would give Madam Leung the income he received for the family expenses and the remainder for Madam Leung to save up.  D had not contributed to the family expenses.

70.P instructed Madam Leung to use the savings to acquire the Property and collaborate with D on the matter.  P did not take part in handling the Scheme Loan, the SCB Loan and the purchase of the Property.  P did not know how much Madam Leung had saved up and how Madam Leung handled the purchase of the Property.  But when asked in cross examination, P said that Madam Leung told him that she got sufficient money to purchase the Property.

71.P learned that D became the registered owner of the Property on 11 November 1996 and P’s family of five moved into the Property in December 1996.

72.P instructed (a)  Madam Leung to use the housekeeping money and/or (b)  Chiu to pay the monthly mortgage repayments. Although the water and electricity meters were registered in D’s name, P paid the water, electricity and miscellaneous charges through Madam Leung.

73.Ching and Chiu graduated from university in 1996 and 1998 respectively.  Ching moved out of the Property in 1997.  Chiu all along lived in the Property although he would occasionally stay over at his girlfriend’s home.

74.Until P and Madam Leung moved out of the Property in 2004, Chiu after graduation had deposited a sum of HK$2,000-HK$4,000 into D’s bank account designated for making monthly mortgage/loan repayments.[15]

75.D married Chan in April 2001.  After marriage, D moved out of the Property, but returned to the Property with Chan and their new born son in December 2001.  Before D returned to the Property, she told P and Madam Leung that she was not happy in Chan’s family, requested to return to the Property with Chan and their son and agreed to pay P a monthly rental in the amount equivalent to the monthly mortgage repayment under the Scheme Loan and the SCB Loan.  D made such an agreement on her own volition. P did not know whether D had actually paid the monthly rental since Madam Leung was the one who handled the family matters.

76.After D and her family returned to live in the Property, Chan always argued with P.  Due to the arguments and friction with Chan, P could not concentrate on dealing with his business matters.  Therefore, P chose to live in the dormitory at his workshop in 2022 and did not return to the Property.

77.In 2001[16], P received a notice from the Lands Department informing him that the dormitory would be demolished.  At the suggestion of a staff of the Squatter Section of the Lands Department, P submitted his application for a public housing unit in 2001.

78.In May 2004, P and Madam Leung moved to the TWS Flat.  In the same year, P ceased his business.

79.In or about 2017, P learned from another case involving a family property dispute that even if a property was in the name of someone who agreed to hold the property in name only, the person who funded the purchase of the property could recover the property by resorting to legal avenue. Since D was his daughter, P only advised her to return the Property to him but D refused.

80.According to P’s knowledge, once his application for the Scheme Loan was successful (even after he had changed the applicant to D), he would no longer be eligible for applying for a public housing unit.  P said that after the Property was purchased, he had not planned to re-apply for another public housing unit and also, he had not done so.

81.P produced his notebook on his business income from 1989 to 2005[17], his notebook on his business invoices from 1988 to 2005[18] and his notebook on his business expenditure from 1992 to 2000[19] in support of the following:

(a)  The profits margin of his business was 40% to 50% of the invoiced price; and

(b)  From 1989 to 1996, his annual business income was ranging from HK$1 million to HK$2 million and his annual profits from HK$600,000 to HK$1 million.

82.P was cross examined on his Personal Tax Demand Notices for 1996/97[20], 1997/98[21] and 1998/99[22].  P admitted that according to his Personal Tax Demand Notices, his monthly assessable profits were HK18,277, HK$22,863 and HK$19,351 for 1996/97, 1997/98 and 1998/99 respectively.  P further confirmed that he paid tax according to his true and real income and that the tax documents were correct record.  When it was put to him that with the aforesaid monthly assessable profits, he was unable to pay the down payment of HK$830,000, P said that he reported his annual income to the Inland Revenue Department wrongly.  When asked why he made a wrong tax return to the Inland Revenue Department, he said he did not know and could not remember why he made a wrong tax return.

83.P agreed that with high annual profits gained from his business, it was unnecessary for him to borrow money for the purchase of the Property.  In re-examination, he explained that it was SCB who requested him to borrow HK$200,000 from it.

84.When confronted by his application for the Scheme Loan dated 9 January 1996[23], P said he knew that D’s monthly income was HK$7,500 instead of HK$5,000 as stated in §23 of his witness statement[24].

85.P said in cross examination that he had attended estate agent’s office with Madam Leung to understand and handle the procedure for the purchase of the Property.  He also appointed to see the property owner to negotiate over the purchase price of the Property.  He also went to see the estate supervisor of Lai Yiu Estate with Madam Leung and D to understand the Scheme.  Later, he said he saw the estate supervisor with Madam Leung only.

86.P denied knowledge that he could re-apply for a public housing unit after he changed the applicant for the Scheme to D.

87.P did not know, but later said, did not remember whether he attended an interview at HKHA with D on 16 September 1996.

88.P denied that the applicant for the Scheme was changed to D because D planned to acquire the Property for her future marriage.  P said that at that time, D did not even have a boyfriend and that he only saw Chan a few months before their marriage in April 2001.

89.When asked why he did not ask D to sign a paper to acknowledge that the Property was his, P said that D was a family member and that he trusted his family members.

90.Madam Leung was responsible for registering water, electricity and gas supply to the Property, but P did not know the water and electricity supplies to the Property were registered in D’s name.

91.P signed on his application for a public housing unit dated 29 October 2001 (the “29/10/01 Application”).[25]  In the 29/10/01 Application, P declared that he only had cash at bank and his business to the value of HK$115,299.  He did not declare the Property.

92.In cross examination, P did not agree that he had any arguments or frictions with Chan after D returned to the Property with Chan and their son.  Chan liked playing electronic games and had little communication with P.  The reason why P moved out of the Property to live at the dormitory of the workshop was that the Property was not quiet enough for him to concentrate on the work of his business. D and Chan had not asked P to leave the Property.

93.When P was asked to explain why he made the 29/10/01 Application in October 2001 whilst Chan only began to live in the Property with D and their son in December 2001, he could not give any explanation.  He said he could not remember and possibly, he had made a mistake.

94.P only had a dispute with D on the ownership of the Property in 2017.  P had called D at most 8 to 10 times to resolve the dispute in 2017. D however refused to see P and answer P’s call.  P started this action in 2021.  When asked why he waited until 2021 to start this action, P answered that D was his youngest daughter and was his apple.

95.From his business income, P would pay cash to Madam Leung and deposit uncrossed cheque into her bank account at Hang Seng Bank.

96.P had a very good relationship with Madam Leung.

F.2.   Chiu Sung Yip

97.Chiu Sung Yip has lived in the neighbourhood of P’s workshop and dormitory since 1970s.

98.P set up his workshop and dormitory in 1970s or 1980s.  He has known P for more than 40 years.

99.Chiu Sung Yip remembered that in 2000 to 2001, Chinachem Group applied to demolish the village and resume the land.  The Squatter Section of the Lands Department sent its staff to the village to discuss the land resumption matter.  They told the villagers that they could assist them in applying for a public housing unit.  At that time, P occasionally stayed overnight at the dormitory of his workshop and he often talked to P over the land resumption matter.

100.Chiu Sung Yip did not notice whether P had lived in the dormitory for a period of time.  Neither did he notice whether P and Madam Leung had lived in the dormitory for a period of time.

101.At the suggestion of Chiu Sung Yip, P had enquired with the staff of the Squatter Section of the Lands Department and applied for a public housing unit.  In the end, P was arranged to live in the TWS Flat.

102.P was a good friend of Chui Sung Yip. In 1996, P purchased the Property and happily mentioned to Chui Sung Yip that he himself purchased the Property for the family to live in.

103.Chiu Sung Yip also remembered that D got married in 2001 and moved out of the Property to live in the in-law family.  A few months later, D gave birth to her son and thereafter returned to live in the Property because she was not on good terms with the in-law family.  At that time, P had told him several times about the incident.

F.3.   Chiu

104.Chiu’s evidence mirrors that of P.

105.In the family, his mother, Madam Leung, played the role of a “treasurer”.  P instructed Madam Leung to obtain money from P’s savings to fund and cooperate with D in relation to the purchase of the Property.

106.Only D and Madam Leung were involved in the application for loans and the purchase of the Property. Chiu did not know the details.

107.P’s family of five moved into the Property in December 1996. P and Madam Leung occupied 1 room, Ching occupied another room and D and Chiu occupied the remaining room.  About 1 year later, Ching moved out of the Property to live with her colleague in a rented property and D and Chiu each occupied 1 room in the Property.

108.Chiu was graduated from university in 1998.

109.Although Chiu occasionally stayed overnight at his girlfriend’s home, he had not moved out of the Property.

110.After D, Chan and their new born son moved back to live in the Property in December 2001, Chan often had friction with P.  This resulted in P’s frequent overnight stay in the dormitory of his workshop since 2002; since 2002, P had stayed less in the Property.

111.The Property was purchased by P for the whole family to reside in.  Because D and Chan were not on good terms with P, D exploited the fact that she was the registered owner of the Property, claiming that the Property was hers and that she did not welcome P and Chiu to stay in the Property.

112.Chiu had keys to the Property. Prior to 2017, he always returned to the Property and all his personal belongings were kept in his room there.

113.Around 2017, due to the conflicts between family members over the ownership of the Property, the family relationship worsened.  In or about May 2017, D forbade P and Chiu to enter the Property.  After Chiu arranged with Chan to collect the former’s personal belongings at the carpark of Goodrich Garden, they nevertheless moved the former’s personal belongings to the rubbish collection point for his collection.

114.Apart from giving P and Madam Leung housekeeping money, Chiu also gave D HK$2,000 to HK$5,000 per month for the monthly mortgage instalment repayment, management fee, rates and other sundry expenses until 2004 when P and Madam Leung left the Property for the TWS Flat.

115.Chiu produced his SCB monthly statements and cheque stubs from 2001 to 2004 and D’s SCB monthly statements from November 2002 to January 2003[26] to support his claim of monthly contributions to the monthly mortgage repayments.  He then explained in detail from the cheque stubs and the monthly statements the destination and use of his funds.

116.In cross examination, when Chiu was asked about whether only D and Madam Leung were involved in the application for loans and the purchase of the Property, Chiu said that P had sporadically participated in such matters.  Chiu also said that he was partially in the know because someone would inform him of the matters.  His family members - his parents would inform him of the matters.

117.Chiu did not know personally who paid the down payment of HK$830,000.

118.With reference to the cheque stub[27] recording payment of HK$4,500 as mortgage instalment repayment, Chiu elaborated that the cheque stub was written contemporaneously with the issue of the cheque in the aforesaid amount to D for the mortgage instalment repayment.  He further elaborated that he knew that the mortgage instalment repayment per month was about HK$4,000 and as he was living in the Property, he had the responsibility to make such payment.  P also told him to do so.

119.Chiu further said that before P made the application for the Scheme Loan, P, Madam Leung, Ching, D and himself had reached a common understanding at mealtime that on top of the housekeeping money of HK$6,000, he would pay a total of HK$10,000 with HK$4,000 for mortgage instalment repayment.  At that time, Chiu said, he was working as a lecturer at IVE and his pay had increased.

120.In re-examination, Chiu clarified that he studied in the Department of Electronics Engineering at City University from 1993 to 1998.  Whilst studying at the City University, he also worked as an assistant lecturer in the research institute of the City University, earning a living subsidy to the tune of HK$10,000 odd.

121.Chiu deposited HK$4,000 to HK$5,000 into D’s bank account to contribute to the monthly mortgage instalment repayment.  This was one of the ways he chose to express his filial piety to his parents.  He did not see this as benefiting D.  He would ask D to confirm receipt of the deposits in person or over the phone.

122.Chiu did not witness the friction between Chan and P. He only heard P complaining once or twice per month.  P complained that Chan’s living habit was different from his and affected his concentration on his work of business.  This slowly brewed into D’s claiming that the Property was hers.  Chiu was not sure when D claimed that the Property was hers, but it was at least in 2004 that D made such a claim.

123.After knowing from P that D claimed that the Property was hers, Chiu felt angry because it was wrong for D to make such a claim.  Chiu and D ceased to be on good terms with each other.  Since 2004.  Chiu has been angry with and unfriendly towards D.

124.Chiu was cross examined on the WhatsApp record of communications between D and him in 2015 and 2016 showing that he had gone out with D and their parents.  Chiu admitted in cross examination that in early 2017, he had family-reunion dinner with his parents and D and that from the WhatsApp record, Chiu was not on bad terms with D and did not quarrel with D at the family-reunion dinner.  Chiu further said that he was not on bad terms with D on other occasions because he needed to maintain an amicable family relationship with D even though D was not doing right.

125.Chiu denied that because of another litigation between Fung and himself, his relationship with D turned bad. D’s attitude towards him however turned bad because she forbade him entering the Property.  Chiu maintained that his attitude towards D did not turn bad since he was inclusive and amicable.

126.In cross examination, Chiu was referred to a WhatsApp message between D and himself on 5 May 2017[28] whereby Chiu acknowledged that the items in his room of the Property had been there for 20 years.  Chiu denied that those items should have been removed 20 years ago.  He further denied that he had already moved out of the Property 20 years ago.  He said that he was forced to move out of the Property and that there was nothing he could do, but to get back the items.

F.4.   D

127.D was born in 1975.

128.In 1995, D had a stable boyfriend-and-girlfriend relationship with Chan and already had a common understanding/plan to get married and to purchase a property in private markets for their residence after marriage.  At that time[29], D through her colleagues knew of the Scheme under which a loan of HK$600,000 could be obtained from the government free of interest for the purpose of purchasing a property in private markets.[30]  At the time, the Scheme was very attractive, the then market mortgage interest rate being very high, and the government housing scheme often changed.

129.D’s parents[31] were dissatisfied with the Lai Yiu Flat and planned to apply for another public housing unit.

130.After discussion, D’s parents agreed to and supported D’s application for the Scheme Loan and purchase of a property for marriage.  D proposed that P qua the tenant of the Lai Yiu Flat should make application under the Scheme first, and then change the applicant for the Scheme Loan to D.  Thereafter, P would re-apply for a public housing unit. D agreed with her parents that they could live in the property to be purchased temporarily until they successfully applied for a public housing unit. Both P and Madam Leung understood and agreed to the aforesaid proposed arrangement.

131.Fung also supported the aforesaid proposed arrangement and lent HK$700,000 to D.

132.In October 1996, D used her own funds to purchase the Property at HK$1,630,000.  She funded the down payment.  In November 1996, the Scheme Loan and the SCB Loan secured by the Property were approved to D.  The expenses for the purchase of the Property, the mortgage expenses and the subsequent mortgage repayments were borne by D and Chan.  P, Madam Leung and D’s siblings have not paid any of the aforesaid expenses or made any repayments of the mortgage.

133.The monthly mortgage repayment was about HK$4,000.

134.In 1996, Fung lent D HK$700,000. D returned the money to Fung by refinancing the Property in 2011.

135.In December 1996, P, Madam Leung, Chiu, Ching and D moved into the Property.  For personal reason, Ching and Chiu moved out of the Property in 1997.

136.Between 1996 and 2000, D worked as a hotel room attendant earning a monthly income of HK$8,500 to HK$12,000.  Between 1996 and 2001, Chan worked as a security supervisor earning a monthly income of HK$11,500 and 12,000.  Thereafter, Chan worked as a security control room clerk from 2001 to 2002 and worked for 亞洲空運有限公司 from 2003 to 2012 earning respectively a monthly income of about HK$9,500 and HK$15,500.  D and Chan had adequate monthly income to make the monthly mortgage repayments.

137.In May 2001, D and Chan got married and Chan moved into the Property soon after marriage.  All along, D has been living in the Property.  D’s in-law family’s place of residence was relatively small and it was impossible for D to live in her in-law family’s place of residence after marriage.

138.Between 2001 and 2004, Chiu had visited the Property on fewer occasions because of his work.  Therefore, Chiu deposited cheques each of HK$5,000 into D’s bank account on some occasions so that D could give cash of the same amount to Madam Leung.  Since D successfully acquired the Property, she has never requested or received any financial assistance from Chiu to make the mortgage repayments.

139.D’s parents successfully applied for the TWS Flat and moved out of the Property in 2004.

140.D has never reached any agreement with P or any family members to hold the Property on trust.  Neither was there any agreement by D that she would pay rental for her family to occupy the Property.

141.Under cross examination, D said that she and Chan became acquainted in the beginning of 1995 and started dating soon after February same year.  In 1995, Chan was working for Pizza Hut earning around HK$8,000 per month.  Chan was introduced to D’s parents at the Lai Yiu Flat towards the end of 1995.  D explained that her application for the Scheme Loan in 1996 was driven by the following factors:

(a)  D regarded Chan as her future husband and had expressed her thoughts with Chan during casual conversation when they discussed their future plans.  Chan was supportive of D’s ideas;

(b)  Having grown up in public housing units, it had always been her dream to purchase a private property;

(c)  Living conditions of the Lai Yiu Flat was far from ideal, and that her mother had made numerous futile attempts in the past to switch to another public housing unit;

(d)  Property prices were rising sharply at the time;

(e)  Fung, the only person whom she might borrow money from, was about to emigrate to Canada;

(f)  The Scheme was particularly attractive because the Scheme Loan was interest-free, and the interest rate was high at the time[32];

(g)  P and Madam Leung could apply for another public housing unit.  Newer public housing units had much better designs and facilities; and

(h)  Her concerns that government policy or the Scheme might change without notice.

142.D was also cross examined on her income and savings.  On these topics, she testified the following:

(a)  D began working in around July 1992 as a hotel room attendant;

(b)  D remained working as a hotel room attendant between 1992 to 2000.  During that period, she had worked for 日航酒店，恆豐酒店and萬豪酒店;

(c)  From 2000 to 2004, D worked as a security officer at the airport;

(d)  In 2004, D’s parents moved out of the Property and D became housewife taking care of her children[33];

(e)  While the application form for the Scheme dated 9 January 1996 declared D’s then income to be HK$7,500[34], D explained this figure was only her basic salary;

(f)  D’s monthly basic salary in 1992 was around HK$7,000, but with double-pay, bonus, and overtime pay（雙糧、花紅、補水）she would receive roughly HK$8,000 per month;

(g)  Between 1992 and 1996, D was earning HK$8,000 to HK$9,000 per month;

(h)  The hotel employers would also provide D uniform and all the meals, and she did not incur a lot of daily expenses.  Madam Leung also did not require D to contribute to household expenses.  Hence D could save around HK$6,000 per month; and

(i)  By 1995 and 1996, D had accumulated around HK$250,000 in savings.

143.As to how D went through the formalities in applying for the Scheme Loan, D was cross examined in detail. D said the following:

(a)  D learned of the Scheme in around November 1995 from her colleagues;

(b)  D discussed this Scheme with Fung who agreed to lend her money to assist with her purchase of a private property;

(c)  D informed P and Madam Leung of the Scheme, and the fact that the Lai Yiu Flat had to be surrendered but that P and Madam Leung could apply for another public housing unit;

(d)  In December 1995, D made an appointment to see the supervisor of Lai Yiu Estate“麗瑤村屋村主任”with her parents.  D, P and Madam Leung were told by the“麗瑤村屋村主任”that the application form under the Scheme had to be completed by the tenant of the Lai Yiu Flat “戶主”.  They were also told that the tenant’s children could become the owner of the private property to be purchased and that the tenant after returning the public housing unit could re-apply for another public housing unit;

(e)  After the application form had been completed, D by herself submitted the completed application form[35] to the Lai Yiu Estate office and paid the application fee of HK$120 by cashier’s order.  She only submitted the completed application form to an ordinary staff（收表係普通職員）in January 1996 and there was no discussion with any staff on that occasion. Notwithstanding that there was a certification by a Housing Officer[36] in the completed application form certifying that the Housing Officer had checked the particulars in Part 1 thereof and that the declaration section at Part V thereof had been clearly explained by him to P the applicant, D maintained her position that she submitted the completed application form to the Lai Yiu Estate office on her own;

(f)  In August 1996, HKHA informed Madam Leung by phone to arrange for them to attend an interview to sign documents in September 1996;

(g)  On 16 September 1996, D, P and Madam Leung attended the interview at Lok Fu office.  The Letter of Approval（“原則上給予的批准”）dated 1 July 1996[37] was not mailed to P or D but was given to them at the interview.  During the interview, D and P found that the application approved was in P’s name, and explained to the officer that D should be the applicant instead of P.  P and D then signed the respective declarations for the Scheme’s application and approval to be transferred to D’s name[38]; and

(h)  D and P did not know how to explain the change and asked the officer thereat what usual reasons were used by others for a change in applicant.  They were told that the usual reasons were either old age or health conditions.

144.D admitted in cross examination that there were some confusions when she said in her witness statement[39] that P needed to change the tenancy of the Lai Yiu Flat “戶主” to D.

145.D was cross examined on why she did not get married soon after purchase of the Property.  D explained that after purchase of the Property, she was left with HK$30,000 to HK$40,000, that D and Chan had planned to accumulate more savings before marriage and that they would prefer to get married after P and Madam Leung were allocated another public housing unit, so that they could enjoy the Property by themselves.  D further said that they would not have got married so soon in 2001 had D not been pregnant.

146.To pay the deposits and down payment for the acquisition of the Property, D borrowed HK$700,000 from Fung, the Scheme Loan and the SCB Loan.  When asked in cross examination why he took out the SCB Loan when the interest rate was high, D said that D had to take out the SCB Loan, the minimum amount of loan to be obtained from SCB for the Scheme Loan to be executed through SCB.

147.At the beginning, Chan would pay D a monthly sum of HK$5,000 (including monthly mortgage repayment).  Later, Chan had paid D a monthly sum exceeding HK$10,000 in 2014 and payments made by Chan to D were not regular as Chan knew that D had savings and investment.

148.D has re-mortgaged the Property for refinancing in 2011[40], 2017[41] and 2019[42].  In 2011, D borrowed HK$900,000 from SCB and HK$700,000 was used to repay Fung. In the refinancing in 2017 and 2019, D re-mortgaged the Property on each occasion for a rebate.

F.5.   Chan

149.Chan is D’s husband and P’s son-in-law.

150.Chan began to know D and started dating in the beginning of 1995.  Chan was first introduced to D’s parents at the Lai Yiu Flat in October 1995.  He remembered this incident took place in around October 1995 distinctly as Madam Leung cooked a麵包蟹specially for Chan, and Chan chipped a tooth whilst eating it during the dinner.

151.In May 2001, Chan and D got married and moved into the Property.

152.The 3 sums, each of HK$5,000 and deposited into D’s SCB account on 21 November 2002, 27 December 2002 and 13 January 2003, were household expenses paid by Chan to D.  They were not monies paid by Chiu to D for monthly mortgage instalment repayments.

153.At that time,

(a)  Chan paid D household expenses in the sum of HK$5,000 per month.  The sum included the monthly mortgage instalment repayment. The monthly mortgage instalment repayment, according to Chan, was a little bit more than HK$4,000; and

(b)  Chan paid the water and electricity charges, management fees and miscellaneous expenses of the Property directly.

154.Chan worked as a security officer from 1996 to 2001, earning approximately HK$11,000 to HK$12,000 per month. Chan and D’s combined monthly income exceeded HK$20,000, which was more than sufficient to cover the monthly mortgage repayment, making any assistance from others (including Chiu)  unnecessary.  From 2001 to 2002, Chan worked as a security control room clerk, earning about HK$9,500 per month. From 2003 to 2012, Chan was employed at Asia Airfreight Co Ltd., earning HK$15,500 per month.

155.Except for the HK$700,000 loan provided to D by Fung in 1996, all down payment and mortgage instalment repayments were made by D and Chan.  No one else has ever assisted them in paying the down payment or the mortgage instalment repayments of the Property.

F.6.   Fung

156.Fung is the eldest brother of D and the eldest son of P.

157.Fung has maintained a good relationship with his family members, in particular D.

158.In relation to his loan to D in 1996, Fung testified the following:

(a)  D consulted Fung in an afternoon-tea meetup in December 1995.  In the meeting, D informed Fung that her boyfriend was Chan.  She further informed Fung of the HK$600,000 interest-free loan under the Scheme, the criteria that the Lai Yiu Flat had to be surrendered but that P and Madam Leung could apply for another public housing unit again and that other family members could live in the property (to be purchased with the Scheme Loan)  temporarily until their parents successfully applied for another public housing unit. D asked if Fung could lend her money to assist her to purchase her own property. Only D and Fung were present during this afternoon-tea meetup;

(b)  Fung also subsequently confirmed this with Madam Leung despite that he was very busy at the time with his emigration arrangements;

(c)  D initially asked if Fung could lend her HK$800,000.  However, Fung made some calculations and informed D that he was only able to lend her HK$700,000;

(d)  Fung advanced D HK$700,000 in January 1996 by depositing a cheque from his account at Nanyang Commercial Bank into D’s SCB account; and

(e)  Fung returned to Hong Kong from Canada in April 2011.  Fung saw that the financial condition of D’s family had improved, and therefore discussed with D about his need of the HK$700,000 to be repaid for his cashflow.  D subsequently borrowed money and repaid Fung the HK$700,000 by cheque sometime later in 2011.

159.Under cross-examination, Fung testified further in relation to his personal background:

(a)  Fung completed his degree in Bachelor of Business Administration（工商管理）in 1985;

(b)  After graduation, Fung worked for F&S Alloys and Minerals Corporation (“F&S”)  as Regional Manager or Senior Trader from February 1989 to 1993[43]. Towards his later period of employment with F&S, he was receiving a basic salary of HK$40,000 plus bonuses, and also income from his own trading;

(c)  After Fung left F&S, he started his own businesses華聯發展公司and寶豐國際貿公司 (as shown in the salaries and profits tax for 1993/94[44]). His total income shown in 1993/94 tax returns was around HK$568,454, including salaries he drew for himself from his own businesses;

(d)  In the 1994/95 year of assessment, Fung’s total assessable profits and income were HK$247,345;[45]

(e)  In the 1995/96 year of assessment, Fung’s total assessable profits and income were HK$224,896;[46]

(f)  In the 1997/98 year of assessment, Fung’s total assessable profits were HK$200,000.[47]  For this year of assessment, Fung and his family had already emigrated to Canada;

(g)  Fung moved out from the Lai Yiu Flat in 1986 or 1987 to live with his girlfriend in a rented property.  He purchased a property at鴻裕大廈 but later sold the same and purchased a property at Mei Foo Sun Chuen (the “MFST Property”)  as his matrimonial home in May 1992[48];

(h)  Fung sold the MFST Property in March 1995[49];

(i)  In January 1996, Fung with his wife and daughter emigrated to Scarborough of Toronto, Canada; and

(j)  In April 2011, Fung returned to reside in Hong Kong, but in May 2021, moved back to Canada permanently where he has resided to date.

F.7.   Madam Leung’s WS

160.Madam Leung is P’s deceased wife and mother of Fung, Chiu, Fang, Ching and D.

161.Insofar as concerns the reason for D to be the applicant under the Scheme and the purchaser of the Property, Madam Leung stated in her witness statement the following:

(a)  In 1995, D proposed purchasing a new property for her future marriage with Chan and to start a family, and that P and Madam Leung would apply for another public housing unit but would temporarily reside in the new property until allocated a new public housing unit;

(b)  In January 1996, P applied under the Scheme and agreed to unconditionally transfer the“戶主名”of the Lai Yiu Flat to D.  After the transfer, P and Madam Leung would apply for another public housing unit, and D promised that P and Madam Leung could reside in her new property until they successfully applied for another public housing unit.  Fung lent D HK$700,000 in January 1996 to purchase the new property.

162.As to the selection, purchase of, and source of funds for the Property, Madam Leung in her witness statement stated the following:

(a)  D was the one who looked for and decided on the property to be purchased;

(b)  In October 1996, D purchased the Property;

(c)  After D purchased the Property, D, P, Madam Leung, Chiu and Ching moved into the Property.  Ching and Chiu moved out in 1997 for personal reasons;

(d)  The down payment, mortgage repayments, and bank fees for the purchase of the Property were D’s responsibility and were all paid and handled solely by D;

(e)  D and Chan got married in May 2001, and Chan moved into the Property immediately after marriage according to the original plan.  Up until Madam Leung moved out of the Property in 2004, D’s family had never moved out of the Property;

(f)  In 2004, Madam Leung, according to the original plan between the parties, moved out of the Property after having been allocated the TWS Flat.  There had never been any incidents of her being forced to leave the Property;

(g)  All along, P and Madam Leung had never requested D to purchase or hold the Property on trust for them.

G.   MY ANALYSIS OF THE EVIDENCE

163.Essentially, I have to assess the common intention of the parties by a holistic approach having regard to the context of the case.  The onus is on P, the non-owner, to show that the beneficial ownership in this case is different from the legal ownership.

164.Obviously, there is a difference of the versions of events unfolded by the evidence adduced by P and D.  To resolve this difference of versions of events necessitates me evaluating their truthfulness and assessing the credibility of the witnesses.

G.1.   Findings of Credibility of Witnesses

165.Although P was 91 years old and was assisted by hearing aids when he testified, he nevertheless comprehended questions asked and provided answers.

166.According to P’s evidence, the Property was purchased by his savings kept by his wife Madam Leung.  On his instructions, Madam Leung used his savings to acquire the Property and collaborate with D on the matter.  P also instructed Madam Leung to use the housekeeping money to pay the monthly mortgage repayments, water, electricity and miscellaneous charges.  The question whether P at the relevant time had adequate resources to meet the aforesaid payments looms large.  P has portrayed himself as having more than adequate financial resources.  He said that his construction business could yield a high income with 40-50% profits margin.  He based his claimed 40-50% profits margin on his estimate at the time of price quotation which, he said, was commonly accepted by the small-scale construction contractors.[50] In my view, this 40-50% profits margin claimed by P is self-serving and unreliable.  This percentage of profits margin is also contradicted by D’s declared business profits to the Hong Kong Inland Revenue Department.

167.P was cross examined on his Personal Tax Demand Notices for 1996/97[51], 1997/98[52] and 1998/99[53].  P admitted that according to his Personal Tax Demand Notices, his monthly assessable profits were HK18,277, HK$22,863 and HK$19,351 for 1996/97, 1997/98 and 1998/99 respectively.  P further confirmed that he paid tax according to his true and real income and that the tax documents were correct record.  When it was put to him that with the aforesaid monthly assessable profits, he was unable to pay the down payment of HK$830,000, P said that he reported his annual income to the Inland Revenue Department wrongly.  When asked why he made a wrong tax return to the Inland Revenue Department, he said he did not know and could not remember why he made a wrong tax return.

168.Furthermore, in P’s application under the Scheme submitted to HKHA in January 1996, he declared that his monthly income was around HK$13,700.[54]

169.I do not believe in P’s testimony on his ample financial resources to acquire the Property.  If P had such high profits yield from his business, it would not be necessary for him to borrow money from the bank for the purchase of the Property.  At any rate, according to P, it was from his savings kept by Madam Leung that would be used to acquire the Property.  P however did not know how much Madam Leung had saved up and how Madam Leung handled the purchase of the Property.

170.The reason why P asked D to hold the Property as trustee for him was that, as the bank staff told him, he was in the retirement age and was unable to repay the loan.  He therefore sought D’s assistance because D was working with an income proof.  I hesitate and am indeed reluctant to accept this evidence since if P had a profitable business at the time of applying for a bank loan, it would not be difficult for him to persuade the bank staff to grant him the loan by producing documents to verify his sustaining high profits.

171.P’s claim that he was the 100% beneficial owner of the Property runs counter to his declaration in the 29/10/01 Application[55] that he only had cash at bank and a business to the value of HK$115,299.  If P had the entire beneficial interest in the Property, he should have included the Property in his declaration.  When P was taxed on this in cross examination, he answered:“唔知佢有冇問我幾多資產，我唔知申請時有冇問我幾多資產”.  Instead of answering the question directly, P evaded the question; when he filled in the 29/10/01 Application, he must have known that he should give a truthful and honest declaration of all his assets.

172.If D’s involvement in the purchase of the Property was simply for the purpose of taking out the bank loan, it would not be necessary for the entire Property to be vested in D.  P could have directed the Property to be vested in him and D as joint tenants.

173.P denied knowledge that he could re-apply for a public housing unit after he changed the applicant for the Scheme to D.  He accounted for the 29/10/01 Application by the suggestion of the staff of the Lands Department after he received the notice from the Lands Department that the dormitory of his workshop would be demolished.  The problem with this part of P’s case is that, according to P, his application for another public housing unit was made after D, Chan and their son moved back to live in the Property in December 2001 and it would be inherently improbable for his application made in October 2001. When P was asked to explain why he made the 29/10/01 Application in October 2001 whilst Chan only began to live in the Property with D and their son in December 2001, he could not give any explanation.  He said he could not remember and possibly, he had made a mistake.  The fact remains that P made the 29/10/01 Application.  My rhetorical question is: Was the 29/10/01 Application made pursuant to the oral agreement between P and D that after D purchased the Property, P would re-apply for a public housing unit whilst temporarily residing in the Property?

174.It is the P’s case that shortly after D’s return to the Property with Chan and their son, Chan started to have conflicts with P and that during arguments, D and/or Chan often claimed the Property as theirs and requested P to stay away from the Property.  P’s evidence in cross examination is diametrically opposite to his case: P did not agree that he had any arguments or friction with Chan after D returned to the Property with Chan and their son.  He said that the Property was not quiet enough for him to concentrate on the work of his business.  This explained why he had lived in the dormitory of his workshop.  D and Chan had not claimed the Property as theirs and had not asked P to leave the Property.  In cross examination, P said that he only had a dispute with D on the ownership of the Property in 2017.

175.Following the dispute in 2017, it is difficult to understand why P had to wait until 2021 to start this action.  P’s answer that D was his youngest daughter and was his apple is only a hollow answer.

176.Insofar as Chiu’s evidence is concerned, his evidence does not avail P’s evidence.  He does not have personal knowledge of the application for the Scheme Loan and the SCB Loan.  Neither does he have personal knowledge of the purchase of the Property and payment of deposits and down payment.  At the relevant time in 1995 and 1996, Chiu was still a student at City University.  He graduated from the university in 1998.  In cross examination, he said that before P made the application for the Scheme Loan, P, Madam Leung, Ching, D and himself had reached a common understanding at mealtime that on top of the housekeeping money of HK$6,000, he would pay a total of HK$10,000 with HK$4,000 for the monthly mortgage instalment repayment. It was only Chiu’s ipse dixit. I do not believe that as early as before P made the application for the Scheme Loan, Chiu was in a position and agreed to make a monthly financial contribution of HK$10,000 with HK$4,000 for the monthly mortgage instalment repayment.  After Chiu graduated from City University, he might have made some financial contributions to Madam Leung by depositing cheques into D’s bank account[56] to express his filial piety to his parents.  This was so because Chiu had another residential home[57] but still retained a room in the Property for storing his personal belongings.  As, said Chiu, D agreed with P to make the monthly mortgage instalment repayment after she returned to the Property with Chan and their son in December 2001, it would be reasonable and logical to think that Chiu’s assistance in making monthly mortgage instalment repayments was unnecessary and otiose.  It is more probable than not that Chiu’s financial contributions (if any)  were not made for the monthly mortgage instalment repayments.

177.In contradistinction to P’s evidence, Chiu said that it was at least in 2004 that D claimed that the Property was hers.  Chiu perceived that it was wrong for D to make such a claim and thereby ceased to be on good terms with D.  Since 2004, said Chiu, he has been angry with and unfriendly towards D.  This is at odds with the contents of the WhatsApp record of communications between Chiu and D.  When cross examined on those WhatsApp record, Chiu propounded an explanation which smacks of artificiality.  Chiu explained that he was not on bad terms with D on other occasions because he needed to maintain an amicable family relationship with D even though D was not doing right.

178.Chiu Sung Yip’s evidence is only of peripheral nature and attempts to give the context in which P re-applied for a public housing unit in 2001.  In relation to the purchase of the Property and that D, Chan and their son moved in the Property in December 2001, those events happened more than 20 years ago and his evidence is only hearsay from P.  In my view, Chiu Sung Yip’s evidence does not assist P at all.

179.D’s evidence is credible and tallies with the evidence of Chan and Fung.  Their evidence was forthcoming and unshaken by cross examination.  Her evidence is also documented and supported by Madam Leung’s WS.  I do not need to repeat their evidence again, but I need to say something about Madam Leung’s WS.

180.Madam Leung can be said to be an independent witness. As admitted by P in cross examination, P had a very good relationship with Madam Leung.  There is also no suggestion that Chiu was on bad terms with Madam Leung.  There is no reason to suspect Madam Leung’s integrity and honesty when she made Madam Leung’s WS[58]. Madam Leung was brought to the solicitors’ firm by Fung, D and Chan on 11 June 2021’ morning.  A trainee solicitor（陳勇智先生）explained the contents of Madam Leung’s WS to Madam Leung sentence by sentence.  After explanation, Madam Leung expressed her understanding of and agreement to the same and then signed on the same confirming that its contents were within her personal knowledge and were true and accurate.[59]

181.In determining the weight to be given to Madam Leung’s WS, I have had regard to the factors specified in section 49 of the Evidence Ordinance (Cap 8).  Although Madam Leung’s WS was not made contemporaneously with the occurrence or existence of the matter stated.  The matters stated in Madam Leung’s WS are matters within Madam Leung’s personal knowledge and, as Madam Leung was all along on good terms with P and other family members, she had no motive to conceal or misrepresent matters. I accord full weight to Madam Leung’s WS.  In my view, Madam Leung’s WS lends support and credence to D’s evidence. My acceptance of Madam Leung’s WS also deals P’s evidence a tremendous blow. This has contributed to my rejection of P’s case.

182.Furthermore, if D has held the Property in name only on trust for P, there is no reason why D registered her name for the fire insurance policy[60], household utilities[61] and management fees[62] and has paid all the fire insurance premium[63], household utilities[64] and management fees[65] in relation to the Property since the very inception of the purchase of the Property.  There is no reason why D would have registered herself for the aforesaid purposes had she not been the true legal and beneficial owner of the Property.  It would have been more convenient for Madam Leung to register her name for the aforesaid purposes since, as P claimed, Madam Leung was the person who handled the purchase of the Property and paid the water, electricity and miscellaneous charges in relation to the Property.

183.Accordingly, I find D, Chan and Fung as credible witnesses.  As to Chiu Sung Yip, I have no reason to doubt his credibility albeit his evidence, as I have opined, is of peripheral nature.  On the contrary, I do not find P and Chiu credible.  I do not accept P’s version of events which is at variance with the evidence of D, Chan and Fung.

G.2.   Findings of Facts

184.I accept the evidence of D, Chan, Fung and Madam Leung save the part of D’s evidence on her submission of the completed application form to the Lai Yiu Estate office alone and that she did not have any discussion with any staff in January 1996.  I find it more probable than not that she submitted the completed application form not alone but in the company of P on that occasion.  My reservation about the aforesaid part of D’s evidence however does not affect my view of D’s credibility.

185.I find as facts the following:

(a)  D began to know Chan and started dating Chan in early 1995;

(b)  Chan was first introduced to D’s parents at the Lai Yiu Flat in October 1995.  By the end of 1995, D and Chan had a stable boyfriend-and-girlfriend relationship and regarded each other as his/her future spouse.  They planned to get married and purchase a property in private market;

(c)  In or around November 1995, D learned of the Scheme through her colleagues;

(d)  After discussion, D’s parents (ie P and Madam Leung)  agreed to and supported D’s application for the Scheme Loan and purchase of a property for marriage.  D proposed that P qua the tenant of the Lai Yiu Flat should make application under the Scheme first, and then change the applicant for the Scheme Loan to D.  Thereafter, P would re-apply for a public housing unit. D agreed with her parents that they could live temporarily in the property to be purchased until they successfully applied for a public housing unit.  Both P and Madam Leung understood and agreed to the aforesaid proposed arrangement;

(e)  D informed Fung of her plan and the Scheme Loan in an afternoon-tea meetup in December 1995.  Fung supported the aforesaid proposed arrangement and lent HK$700,000 to D;

(f)  In December 1995, D made an appointment to see the supervisor of Lai Yiu Estate“麗瑤村屋村主任”with her parents;

(g)  After the application form had been completed, D in the company of P submitted the completed application form to the Lai Yiu Estate office and paid the application fee of HK$120 by cashier’s order;

(h)  In August 1996, HKHA informed Madam Leung by phone to arrange for them to attend an interview to sign documents in September 1996;

(i)  On 16 September 1996, D, P and Madam Leung attended the interview at Lok Fu office.  The Letter of Approval（“原則上給予的批准”）dated 1 July 1996 was given to them at the interview.  During the interview, D and P found that the application approved was in P’s name, and explained to the officer that D should be the applicant instead of P.  P and D then signed the respective declarations for the Scheme’s application and approval to be transferred to D’s name.

(j)  On 11 October 1996, D entered into the SPA and used her own funds to pay the deposits;

(k)  On 16 October 1996, D entered into the Scheme Loan Agreement;

(l)  On 11 November 1996, the sale and purchase of the Property was completed and D paid the balance of the purchase price by the drawdown of the Scheme Loan, the SCB Loan and her own funds;

(m)  The expenses for the purchase of the Property, mortgage loans expenses and the subsequent repayments of the loans were borne and paid by D and Chan;

(n)  On 30 November 1996, P surrendered the Lai Yiu Flat to HKHA;

(o)  In or about December 1996, P, Madam Leung, Chiu, Ching and D moved into the Property;

(p)  In 1997, Ching moved out of the Property.  Chiu had another residential home with his girlfriend, but had not moved out of the Property because he still stored his personal belongings in a room of the Property and only returned to the Property occasionally;

(q)  In April or May 2001, D and Chan got married and moved into the Property soon after their marriage.  All along, D, Chan and their children have been living in the Property; and

(r)  In 2011, D used the Property for refinancing and borrowed HK$900,000 from SCB and HK$700,000 was used to repay Fung.

186.On the basis of my factual findings, there could not have been any constructive trust in favour of P regarding the beneficial ownership of the Property.

H.   CONCLUSION & DISPOSITION

187.Accordingly, I dismiss the P’s claim.

188.I consider the costs should follow the event. I make a costs order nisi that D’s costs in this action, including any costs reserved, be paid by P with certificate for counsel, to be taxed if not agreed. In the absence of any application to vary, this costs order nisi will become absolute after 14 days.

189.Lastly, I would like to thank Mr Chung and Ms Chan for their assistance.

Mr Peter K M Chung, instructed by Chan, Tang & Kwok, for the plaintiff

Ms Vivian P Y Chan, instructed by K B Chau & Co, for the defendant