Lam Ying Kuen v. Lam Chor Kuen and Others

CACV 239/2023, [2025] HKCA 872

On appeal from [2023] HKCFI 1747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2023

(ON APPEAL FROM HCA NO 1304 OF 2018)

____________________

____________________

____________________

_________________

J U D G M E N T

_________________

Hon K Yeung J (giving the Judgment of the Court):

A.  The appeal

1.The plaintiff (“P”[1]) and the 5 defendants (“D1” to “D5”)[2] are siblings.  They have been in dispute over the beneficial ownership of the property situated at Flat C on 7^th Floor, Hsia Kung Mansion, Kam Din Terrace, No. 24, Taikoo Shing Road, Taikoo Shing, Hong Kong (“the Property”).  The Property has since purchase been registered in the names of P and D1 as joint tenants.  P says that he is in fact its true beneficial owner.  D1 to D3[3] deny it.  They say that their late mother (Lam So Sui Hing, passed away in 2014 (“Madam Lam”)) was the beneficial owner.  The trial took place before Madam Recorder Rachel Lam SC over 11 days between October 2022 and January 2023.  By Judgment handed down on 5 July 2023 (the “Judgment”), the learned Recorder dismissed P’s case and allowed D1 to D3’s counterclaim.  She made a Declaration that “Madam Lam has been the sole beneficial owner of the Property since the acquisition, and that P and D1 held and continue to hold the same on trust for her Estate”.

2.By Notice of Appeal dated 31 July 2023 (“NOA”), P appeals against the Judgment.  He asks that the Judgment be set aside, judgment be entered on his claim, and D1 to D3’s counterclaim be dismissed.  22 grounds or paragraphs have been put forward.  They are grouped under 3 headings: “1980s”, “December 2010 / January 2011”, and “After Madam Lam Passed Away in 2014”.  They are so grouped because the grounds are all factual.  They relate to the learned Recorder’s assessment of facts and evidence as to events that took place during those specified periods.  They complain variably that the learned Recorder “erred in finding” / “overlooked” / “misunderstood” / “erred in disbelieving” / made “palpable error”in respect of the finding of / “failed to consider” / “failed to have regard to” / “plainly wrong in holding” / “failed to apprehend the irrelevance and insignificance of” / “attached undue weight to” / “failed to assess the implication of” / “overlooked the significance of” (to name some of the catch phrases) divers facts, evidence, testimony and features.  As Mr Benny Lo, who appeared with Mr Jiang Zixin for P, puts it himself in his written skeleton submissions, the appeal arises from “the Recorder’s treatment of the evidence”.

B.  P’s application to amend the Notice of Appeal

3.By summons of 18 August 2025, P seeks leave to amend his NOA.  He no longer seeks judgment on his claim.  He seeks instead a retrial before another judge.  The 22 grounds or paragraphs otherwise remain the same.

4.Mr Jeevan Hingorani, who together with Mr Gilbert Chong appeared for D1 to D3, did not object to the same.  We at the start of the hearing on 26 August 2025 granted P leave to amend his Notice of Appeal as per the draft attached to the summons, with costs to D1 to D3, to be taxed if not agreed.

C.  The core background

5.Madam Lam had 7 children.  The eldest one had predeceased her.  The 6 surviving children, in descending order of age, are D2, P, D3, D5, D1 and D4.  They were born between 1950 and 1960. 

6.D2 was married in 1978.  His wife is Madam Li Mei Ngor (“Madam Li”).

7.Prior to the purchase of the Property, Madam Lam through inheritance had 1/3 interest in a building at Russell Street (the “Russell Street Building”).  She and her children had lived there.  They subsequently moved out due to its re-development (the “Russell Street Project”).

8.During the couple of years immediately before the purchase of the Property, Madam Lam, P, D1 and D4 had been living in a staff quarter provided by D2’s employer in around 1978.

9.On 22 May 1980, P and D1 entered into an agreement for the purchase of the Property.  Clause 2 thereof recorded that they had paid deposit in the sum of HK$40,000.  The full purchase price was HK$390,000. They were represented by solicitors.

10.On 27 May 1980, balance of the purchase price, stamp duty and solicitors’ fees in the total sum of HK$363,025 were settled.

11.On 7 July 1980, the Property was assigned to P and D1 as joint tenants.

12.There is no dispute that the purchase of the Property was funded principally by a loan (the “Loan”) raised with Madam Li’s mother (i.e. D2’s mother-in-law).  There is further no dispute that the principal of the Loan was repaid in mid-1980s, and interest had been paid during the several years before that.

13.The principal dispute is: With whose funds the interest and the principal of the Loan were paid and repaid.  P says that the funds were from him.  D1 and D3 say that they were from Madam Lam, viz. her savings, rental income, proceeds out of the Russell Street Project, and financial assistance or allowances from her children (in effect “pocket monies”).  The core dispute entails further factual disputes.  They are, as summarised by the learned Recorder at §20:

20. Underlying the disputes over the funding are further disputes over: (1) the means available to P; (2) the means available to Madam Lam, and hence their respective abilities to pay for the purchase and repay the loan at the material time (i.e. in or around 1980 to the mid-1980s); as well as (3) disputes over the exact means and timing of repayment of the interest and principal to D2’s mother in law.

14.Between 2010 and 2011, 2 documents came into being:

(a)  The “Chinese Document”:

(i)    Towards the end of 2010, a Chinese document was prepared by D4 (referred to by the parties in the Judgment as the Chinese Document).  It was in Chinese.  It was type-written.  It bore the date of 24 December 2010.  There were typed spaces for the signatures of Madam Lam, P, D1, D2, and D3.  Madam Lam signed it.  P and D1 to D3 also signed, but as witnesses;

(ii)   The contents are as follows:

本人林蘇秀卿 ID No. xxxxxx(x)[4]於2020年12月初與[D2]，[P]，[D3]，[D1]商議後決定張本人現在的居所位於[the Property]的單位只留給林世權 ID# xxxxxx(x)[5]一人居住但不可出租分租或出售，其餘五名子女及其後人都不可入住該單位直至林世權身亡。

為免日後子女們有所争議及不和故立此遺書，祝願大家能和平共處，身體健康。

註: （所有子女都不可在林世權生前出租或出售該物業直至林世權死後才可出租或出售該物業）。

(b)  Madam Lam’s will (the “Will”):

(i)    The Will was dated 4 January 2011.  It was in English, and was prepared by a firm of solicitors;

(ii)   P and D2 were appointed thereby as the trustees and executors;

(iii)  Otherwise than being mentioned as Madam Lam’s residence, the Property was not specifically mentioned therein as her asset.

15.Steps towards application for the probate of Madam Lam’s estate (the “Estate”) was first undertaken in June 2014.  Probate was ultimately applied for by P alone (represented by Messrs Messrs. T.C. Lau & Co (“T.C. Lau”)), and was granted on 28 October 2014.  There had been disputes between the siblings in the process.  Extensive correspondence had been generated.  The Property was mentioned in the process for the first time only in February 2015.  Cheques were subsequently issued by T.C. Lau to D1 to D5 as distributions of the Estate.  The process was described by D2 in one of his letters as having been concluded in June 2015.

16.In June 2018, the present action was commenced.

17.P, D1, D2, D3 and Madam Li testified during the trial.

D.  The Judgment

18.The Judgment has 6 sections (sections A to F).

19.Section A is the introduction.

20.Section B sets out the background.  It covers the purchase of the Property, the execution of the Chinese Document and the Will, Madam Lam’s passing, the siblings’ disputes which had developed since, and the probate matters relating to the Estate that took place between June 2014 and June 2015.

21.Section C sets out parties’ respective pleaded cases.

22.Section D sets out the applicable law.  Those in relation to common intention construction trust and resulting trust are set out in §§54 to 57.  They are largely agreed.  Those in relation to assessment of evidence are at §§58 and 59, which the learned Recorder summarises with reference to Re B (Children) [2009] 1 AC 1, Esquire (Electronics) Ltd v The Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439 at 494C) and Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 at §§55-56. No appeal arises from those statement of legal principles.

23.Section E sets out the learned Recorder’s discussion of the issues.  It has a number of subsections:

(a)  In E1, the learned Recorder sets out the appropriate starting point.  She accepts P’s proposition that “D1 to D3 bear the burden of showing that the beneficial ownership differs to the legal ownership”. She states her view that each side bears the burden of proving their case insofar as it departs from the starting point of legal ownership.  She states that parties’ “respective versions of events are assessed with reference to the available contemporaneous evidence and against the inherent probabilities, and between the two, the Court will decide which is more credible after having engaged in a holistic assessment of the context and facts”;

(b)  In E2:

(i)  The learned Recorder firstly sets out 3 areas of factual dispute that “are relevant to and feed into the consideration of the ultimate issue”. They are:

(1)  The reasons for and logistics of the purchase of the Property, and the funding arrangements for the same;

(2)  The events surrounding the Chinese Document and the Will; and

(3)  The probate process, and the parties’ statements and conduct during 2014 and 2015;

(ii)  She then at §65 notes 3 further points as regards the discussion of the evidence (the “3 Further Points”).  We have noted above that this appeal relates to the learned Recorder’s treatment of the evidence.  §65 of the Judgment is hence of some importance.  It reads as follows:

65.   There are three further points of note as regards the discussion of the evidence:

(1)  The Court heard evidence over the course of 11 days, covering a plethora of topics and history, not all of which would be possible to recount in detail in this judgment.  The evidence as heard and the extensive submissions by counsel on the same have been taken into account in coming to the findings below; what follows are my observations on those aspects which I consider most directly relevant and/or most hotly contested.

(2)  The purchase of the Property in this case took place some forty-odd years ago.  There is limited documentary evidence save for what has been retained as to title deeds, receipts and the like, as referred to by the parties during cross-examination and in their submissions.  By way of example, there are only some (very scant) records on P’s employment at the time and his sources of wealth, or indeed Madam Lam’s sources of wealth and any evidence on any proceeds which she may have received from the Russell Street Project.  In the circumstances, much turns on the Court’s assessment of the credibility of the witnesses, which has been assessed against the principles set out in paragraph 58 above.

(3)  Bearing in mind the principles summarized at paragraph 59 above, it is the events closest to the time of purchase and repayment of the loan which are inherently more likely to be reliable indicators of the relevant intentions.  Insofar as the subsequent events surrounding the Chinese Document, the Will, and the probate process are concerned (which took place 30 to 35 years after the purchase), those are assessed according to the principles summarized above – and have accordingly been given relatively lesser weight in the overall holistic assessment.

(c)  In E3 (§§67 to 76), E4 (§§77 to 85) and E5 (§§86 to 90), the learned Recorder proceeds to consider those 3 areas of factual dispute;

(d)  In E3 in relation to the purchase of the Property:

(i)    The learned Recorder firstly sets out the most pertinent contemporaneous documents which were available and the transactions which took place in that period;

(ii)   She then (at §§68 to 72) sets out the salient points of the evidence given by P, D2, D1, D3, and Madam Li;

(iii)  She gives reasons as to why she did not find P to be a credible witness insofar as the purchase of and dealings with the Property were concerned (§§73(1) to (6)), why she found D1 to D3 to be credible (§§74(1) to (5)), and why she found Madam Li to be a particularly credible witness;

(iv)   She concludes at §§75 and 76 as follows:

75.  The upshot is that insofar as the purchase of the Property, the loan from D2’s mother in law, the repayments, and the various underlying issues related thereto (such as the parties’ respective available sources of funding) are concerned, I find that D1 to D3’s case is credible.

76.  In accordance with the approach set out in the case law, this aspect is given a relatively heavier weighting.  However, it is not of itself determinative.  I go on to consider the subsequent events.

(e)  In E4 in relation to the Chinese Document and the Will:

(i)    The learned Recorder records at §77 the parties’ differences, which differences she observes:

… center around what Madam Lam and each of them understood at the material time of the signing of these two documents – most pertinently, whether it was the understanding at the time that the Property was Madam Lam’s to give instructions on or to dispose of; and if so, why was it not included in the Will.

(ii)   She then sets out at §§78 to 81 parties’ respective cases and evidence;

(iii)          She at §82 observes that the wording of the Chinese Document is “of itself the best and most contemporaneous record of what was intended at the time”.  She then sets out what the Chinese Document on its face records;

(iv)  The learned Recorder then observes and concludes as follows:

83.  The obvious understanding upon reading the document in its entirety, noting that it is drafted by a layman, is that Madam Lam considered that she had a decisive say in how the Property was to be dealt with after she passed – viz. by giving such instructions or indications, she was acting as a beneficial owner would.

84.  Furthermore, the fact that the parties signed on the Chinese Document – P in particular – would, without more, be indication that they agreed she could give such instructions or indications.  They were identified as “witnesses” rather than parties who had any particular interest, present or future, in the Property.  In other words, by their signing, they agreed with her acting as a beneficial owner.

85.  To frame this act of signing in terms of the legal principles discussed above, P’s conduct in signing was contrary to his position that he was the beneficial owner of the Property.  His explanations regarding the specific incident with D4 do not ring true against the explicit wording of the document itself, and I disbelieve his version of events based not only on this incongruence, but also his lack of general credibility (which I have already discussed above).

(f)  In E5 in relation to the probate process and the parties’ statements and conduct during 2014 and 2015:

(i)  The learned Recorder at §86 records that much cross-examination was spent on divers correspondence and exchanges.  She is able to distil from the “wide range of questions that were asked and plethora of information that was covered” the following 3 broad areas which the evidence and information sought to cover:

(1)  The failure to discuss the Property in the draft schedule of assets and the belated raising of Madam Lam’s beneficial ownership of the same in February 2015 by way of the declaration by D1;

(2)  The effect of the acceptance of the cheques, and whether this was indicative of the siblings’ agreement to the scope of Madam Lam’s estate (i.e., it did not include the Property); and

(3)  Attacking various statements made in writing during that time period (whether in letters written by the parties themselves or their lawyers, or in WhatsApp messages), and based on this, making various criticisms in respect of the credibility of the parties.

(ii)  She then, in relation to those 3 broad areas, set out at §§87 to 90 her observations:

87.  Insofar as the failure to discuss the Property is concerned the consistent theme that emerged in D1 to D3’s evidence was that everyone who had signed on the Chinese Document considered that it had been dealt with separately; whereas for P, he now says that he considered the document to be of no legal effect and that through the probate processes, the true estate was already rightfully dealt with.

88.  Considering the timeline of events and the correspondence in question, I consider that it would have been reasonable for the family members to take the view that there was already an understanding on how the Property was to be dealt with, along the lines consistent with the wording of the Chinese Document:

(1)  Whilst I do not consider the Chinese Document has any legal effect, the best available contemporaneous evidence is that the parties knew that Madam Lam had indicated that D4 was to be entitled to live in the Property until he passed, that Madam Lam had given an instruction to such effect, and that everyone accepted this to be the arrangement.

(2)  Everyone was also aware that Madam Lam was not the registered owner, and thus it was not necessarily the case that it would be obvious to them that it ought to have been dealt with in the probate process for the Will.

(3)  D1 to D3 were not legally represented when the draft schedule of assets was being discussed. It was only after P had applied for grant of probate that their solicitors entered the picture and began corresponding on their behalf.  Subsequently, the issue of the beneficial ownership of the Property was raised in February 2015.

(4)  In short, I accept D1 to D3’s explanation of why they had not raised the issue of the Property earlier.

89.  The legal rights or wrongs of the matter aside, I also accept that it was likely Madam Lam had misunderstood whether she had to deal with the Property in the Will.  In this regard, I would note that neither side has sought to adduce evidence from the relevant lawyers regarding the process of the preparation of the Will.

90.  As to the acceptance of the cheques, D1 to D3 point to the letter where they have indicated that this was on a “non-waiver basis”, whereas P points to the subsequent letter indicating that it is on a full and final settlement basis.  The short point is that in view of the letter stating the acceptance is on a “non-waiver basis”, the acceptance is more likely than not construed as being equivocal. There is no clear indication that the cashing of the cheques concludes the disputes.

(g)  In E6, the learned Recorder considers P’s attacks on the defence witnesses’ credibility.  She considers the most salient points taken by P.  She states that she has considered each of the criticisms in some detail.  She accepts that there are certain aspects where there have been a certain degree of confusion.  However, she notes at §96(3) that:

… these subsequent matters took place long after the actual purchase, and the correspondence in question was exchanged at a time when the parties were embroiled in harsh and acrimonious attacks on each other, there being a clear degree of bluster and posturing throughout that process.

She concludes at §98 that:

Overall, I consider that whilst there were some areas where the evidence given lacked absolute clarity, this did not sway or affect my acceptance of D1 to D3’s and Madam Li’s evidence on the core matters concerning the purchase and the common intention at that time, as discussed in Section E3 above. On those aspects, I continue to take the view that they were clear, consistent, credible witnesses.

24.In section F (§99), the learned Recorder states her conclusion on the ultimate issue.  She states that:

In the circumstances, after considering and weighing all of the above factors in a holistic manner, I dismiss P’s case and find in favour of D1 to D3’s case.  Accordingly, I grant a declaration that Madam Lam has been the sole beneficial owner of the Property since the acquisition, and that P and D1 held and continue to hold the same on trust for her Estate.  I further make an order nisi that costs of the action shall be borne by P.

E.  P’s written skeleton submissions

25.I have mentioned above that P has raised 22 grounds or paragraphs in his NOA.

26.Not all of those 22 grounds or paragraphs have been repeated in Mr Lo’s written skeleton submissions.  He groups some of them under 7 grounds (“Ground#1” to “Ground#7”).  Mr Lo summarises them at §§8.1. to 8.7. (which I will set out below), and specifies the paragraph numbers of those paragraphs in the NOA which they relate to.  He elaborates upon them in sections C1 to C7 of his written skeleton submissions. The respective headings he gives for those sections give a good idea of the complaints, and what paragraphs of the NOA which they each relates to:

C.1.   Failure to Consider Interest Payments (NOA §§7, 8 …)

C2.  Failure to Consider Registered Ownership (NOA §6(1) …)

C3.  Errors in Analysing the Evidence on Title Deeds (NOA §5 [A/2/43]; NOA §13(1) …)

C4.  Misunderstanding the “Chinese Document” (NOA §16 …)

C5.  Finding that Madam Lam “misunderstood” the Will when P had not been challenged in cross-examination (NOA §§15(6), 17 …)

C6.  Failing to consider the evidence of the parties’ understanding of beneficial ownership (NOA §19 …)

C7.  Failing to consider Ds’ confirmation that the probate process had been concluded (NOA §§18, 21 …)

27.In the course of the appeal hearing, Mr Lo confirmed that P would no longer be pursuing those paragraphs in the NOA that have not been referred to in his written skeleton submissions.

28.We will deal with Ground#1 to Ground#7 below in turn.

F.  Appeals on facts – the applicable legal principles

29.Mr Lo refers this Court to Bright Gold Ltd v Mega Well Development Ltd [2020] 4 HKLRD 26.  He relies in particular to the following observations by Lam V-P (as the PJ then was)[6]:

46.  It is well-established that this Court must have regard to the advantage enjoyed by a trial judge who received evidence on the disputed issues of fact at first hand, and would not disturb the findings of fact by the trial judge unless such findings are plainly wrong.  In the absence of palpable errors in the Judge’s consideration of the evidence, this Court would not interfere with the assessment of evidence and the weight attached by the trial judge to a particular piece of evidence: see Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd (CACV 11/2015, [2015] HKEC 2529, 27 November 2015); ZJW v SY (CACV 10/2017, [2017] HKEC 2575, 1 December 2017).

47.  In China Gold Finance Ltd v CIL Holdings Ltd, the Court referred to the judgment of Lord Neuberger in Re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911, [53],to identify the palpable errors which warrant an appellate court to interfere with a finding of primary fact:

…where that conclusion was one (i) which there was no evidence to support, (ii) which was based on a misunderstanding of the evidence, or (iii) which no reasonable judge could have reached

…

48.  Misunderstanding of evidence includes a failure to appreciate the significance of a piece of material evidence in the context of a crucial factual dispute. An example of this kind of error can be found in Yap Sui Kong v Yip Fong Tim [2018] 4 HKLRD 791, [65]–[71].  There the trial judge failed to have regard to the inherent probative value of some evidence which actually were main planks of a plaintiff’s case on lineage and thus misapprehend their significance and did not address the same in the judgment. The Court said at [68]:

Whilst a judge is not obliged to address every point raised and discuss all the evidence in minutiae, the judgment must inform the appellate court and the parties how important issues raised in a trial have been resolved, see Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106. In contrast, the omission to discuss minor issues or those obviously without merit in light of the determination of a judge on other issues are unlikely to form a valid basis for disturbing a judgment: see Yui Chung Yin v Ng Kit Sum CACV 25/2013, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.

30.Those legal principles and approaches are not in dispute.  They pose high hurdles for any appellant who seeks to persuade the appellate court to interfere with the trial judge’s assessment of evidence and the weight which the trial judge attached to a particular piece of evidence.

31.It can readily be seen from the NOA that Mr Lo adopts the phraseology used in Bright Gold, phrases like “palpable errors”, “misunderstanding of the evidence” and “failure to appreciate the significance” which the learned Vice President has explained.

32.The adoption of the same phraseology by P is of course not conclusive.  The question remains whether a case has been made out, in manners explained in Bright Gold, for this Court to intervene.

G.  Ground#1

33.During the appeal hearing, Mr Lo described Ground#1 as being of utmost importance.

34.Mr Lo summarises Ground#1 as follows:

8.1  First, in analysing the purchase of the Property, the Recorder (i) failed to consider the lack of documentary evidence supporting D1 to D3’s case that Madam Lam had the financial ability to pay interest to D2’s mother-in-law in 1981 and 1982 (NOA §7(2) [A/2/44]); and (ii) accepted that Madam Li was a “particularly credible” witness without any analysis and without properly considering P’s criticisms of her evidence (NOA §§7, 8 [A/2/45-46]).

35.Mr Lo elaborates on Ground#1 at section C1 of his written skeleton submissions, which we have considered.  In particular, at §12, he sets out certain figures, with the view to showing that Madam Lam could not have had the means to settle the interest on the Loan during certain periods.  Mr Lo supplemented his submissions in this regard with the aid of a table which he handed up to this Court during the hearing[7].  In respect of that table:

(a)  Mr Lo set out 6 bullet points at the top half of the same.  He submitted thereby that given the progress of the Russell Street Project in terms of time, Madam Lam derived no income from it between 1980 and August 1983, and she being a housewife, she could only have paid interest on the Loan in 1981 and 1982 with her savings as of 1980 and allowances she got from her children;

(b)  Mr Hingorani did not dispute those factual premises;

(c)  Then, at the bottom left and bottom right quarters of the table, Mr Lo set out respectively Madam’s Assets / Income (on the left) and Liabilities (on the right);

(d)  Mr Lo sought to contrast Madam Lam’s Assets / Income with her Liabilities.  He submitted that even on the evidence adduced by the defendants, Madam Lam could not have had the means to pay the interest during 1981 and 1982.

36.We do not find such numerical approach helpful. The events took place more than 40 years ago.  Parties were mother and children.  They were not parties contemplating litigation.  The children would not have kept track of the amount of pocket monies they had given to their mother, or the amount of their mother’s savings back then.  In any event, those amounts mentioned in evidence (and quoted by Mr Lo at the bottom left quarter of the table) were not as clear cut as Mr Lo has suggested.  They were qualified by phrases like “at least” and “close to”.  Mr Lo also, with respect, in the table mistook a particular monthly allowance given to Madam Lam as being a yearly one.  There is further what D2 says at §7 of his supplemental witness statement in respect of Madam Lam’s savings.  His evidence there is not inconsistent with his oral evidence cited by Mr Lo in the table to the effect that Madam Lam’s savings back then were “at least” HK$40,000.  §7 of D2’s supplemental witness statements reads as follows:

Further, in or about August 1975, major part of Ground Floor of the Russel Street Building was rented to Mr. Yau Nam Wai and Ms. Yau Sui Sum Teresa (they were also the 1^st tenants of Shop A of Ground Floor of Tak Fat Building when it was completed in 1983) running a cooked food stall; and the remaining portion was rented to a hawker.  The total rent was about HK$4,000 - HK$5,000 per month.  My mother’s share (around HK$1,500 per month would be distributed to her quarterly.  The rental arrangements ended in 1979, before the kick off of the Re-development Project.  During that period, my mother had received total rent of about HK$50,000 - HK$60,000 (forming part of her saving), which supported the interest payable of the Property Loan.

37.Mr Hingorani produced to this Court a marked-up version of that same table, with his comments added thereof.  As pointed out by him with reference to his version of the table, the evidence on Madam Lam’s liabilities (in terms of her share of the interest on the costs of the Russell Street Project) was not clear, and the totality of the evidence in fact suggests that Madam Lam could indeed have been able to pay for the interest on the Loan during 1981 and 1982 with her own savings and pocket monies from her children.

38.In relation to the learned Recorder’s finding that Madam Li was a particularly credible witness:

(a)  The learned Recorder makes that finding at §74(4) of the Judgment;

(b)  §74 of the Judgment contains 5 sub-paragraphs. They are the reasons given by the learned Recorder for finding that “D1 to D3’s evidence regarding the purchase of and dealings with the Property are more consistent with the underlying documents (scant as they are), as well as the inherent probabilities given the circumstances of the case”, and why she found them to be credible “insofar as the original purchase and payment for the Property is concerned”;

(c)  At §§74(1) to (3), the learned Recorder considers that D1 to D3’s version of events as to how the Property was found, how the loan arrangements were made, and how the dealings with D2’s mother in law came about make far more sense when considered in the context of the inter-familial relations, the actual mechanics as to how it came about (all through D2), and the repayment mechanisms (also through D2 and Madam Li).  She explains that the mechanisms put in place are far more consistent with the Loan being one between Madam Lam and D2’s mother in law, as they were of the same generation.  She observes that the inherent likelihood is that D2’s mother in law would be more at ease making the Loan to Madam Lam than to P, who was then a young man whom she had no personal knowledge of.  The learned Recorder also notes consistency of their account with the available documentation on the Russell Street Project;

(d)  It is in such context that the learned Recorder at §74(4) makes the finding that:

Madam Li was a particularly credible witness, despite her witness statement being relatively brief.  She came across as straightforward and honest.  Her account of the logistics of the interest payments and her understanding that these were monies originating from her mother in law Madam Lam was also clear and consistent.

(e)  It is clear that the learned Recorder makes that finding with the holistic evidence and inherent probabilities in mind;

(f)  Mr Lo complains at §14 of his written skeleton submissions that the learned Recorder “seems to have placed undue reliance upon demeanour”.  We reject that complaint.  It ignores the overall analysis of the evidence which the learned Recorder has undertaken.

39.In our view, the learned Recorder’s analysis of the parties’ case, based as it is on inherent probabilities and holistic consideration of the evidence, is appropriate on the facts of the present case, and is far more convincing that the figure-oriented analysis proposed by Mr Lo on the basis of qualified and equivocal numerical data which Mr Lo has put forward.

40.Ground#1 has no merits.

H.  Ground#2

41.Mr Lo summarises Ground#2 as follows:

8.2  Second, as to the registered ownership of the Property, the Recorder failed to consider the fundamental question of why Madam Lam (i) did not buy the Property in her own name; and (ii) arranged 2 of her 7 children to become the registered owners, if she were the true buyer (NOA §6(1) [A/2/43]). 

42.Mr Lo elaborates on Ground#2 at section C2 of his written skeleton submissions, which we have considered.

43.Competing reasons as to why the Property was so registered were put before the learned Recorder.  She could not have missed them.

44.The learned Recorder obviously and clearly appreciated that it was incumbent upon D1 to D3 to show that “the beneficial ownership differs to the legal ownership”.  She explains so at section E of the Judgment.

45.The following context should also be noted:

(a)  P’s case is that he is the sole beneficial owner of the Property.  He is thus also seeking to show that the beneficial ownership of the Property does not follow legal ownership;

(b)  He has put forward his explanations, to the effect that he was too busy, such that having D1 also registered as an owner would allow D1 to assist with the management of the Property;

(c)  But the learned Recorder has found that P was not a credible witness;

(d)  D2 has also given reasons why P and D1 were registered as joint tenants, that[8]:

[P] and [D1] would be registered as the two legal joint tenants of the Property solely because they were the sons who had not yet married at that time, save that Sai Kuen, who was perceived as too young to be registered as a legal owner.  In 1980, Sai Kuen was 20 years old and did not reached (sic) the age of majority (which was 21 years old) under the law at that time;

(e)  The learned Recorder has found D2 to be a credible witness.  She is entitled to accept his evidence in the above regard.

46.Ground#2 has no merits.

I.  Ground#3

47.Mr Lo summarises Ground#3 as follows:

8.3  Third, in analysing the evidence on possession of Title Deeds, the Recorder made serious findings against P’s credibility which had not been put to him in cross-examination (NOA §5 [A/2/43]), whilst ignoring D1 to D3’s failure to prove their pleaded case on Title Deeds (NOA §13(1) [A/2/48-49]). 

48.Mr Lo elaborates on Ground#3 at section C3 of his written skeleton submissions, which we have considered.  In gist, he focuses upon the learned Recorder’s finding at §73(6) of the Judgment, suggests that that was one of the “key bases” for her conclusion that P was not a credible witness, that the finding carries the implication that P has lied, which is a serious and damaging conclusion, such that it was unfair to P, contrary to the rule in Browne v Dunn.

49.It should first be noted that §73(6) is only one of the 6 express reasons given by the learned Recorder for finding that P was not a credible witness.  It is in the following terms:

[P] was also unable to make good his originally pleaded case about the Title Deeds. It would appear he only came into possession of the other package (or part thereof) of the said deeds around the time of his mother’s death.

50.§73(6) should be understood in conjunction with P’s pleaded case at §9 of his Amended Statement of Claim.  He avers therein that “All title deeds and documents of the Property have always been in [P]’s possession since the purchase of the Property.”

51.Mr Lo submits[9] that P has corrected that in his witness statement.  In the course of his oral submissions, he modified his submissions and submitted that P implicitly did so.  At §8 of his witness statement, P only obliquely says, with emphasis added, that “最後我便同[[D1]一同到孖士打律師行辦理簽約手續，之後樓契亦由我們持有至今。”  He has provided no further details in his witness statement.

52.We are aware of D1’s evidence given in the course of the trial about there having been 2 bundles of title deeds, and that one of them subsequently fell into P’s possession.

53.But irrespective of the precise evidence adduced during the trial, the first sentence of §73(6) of the Judgment as a factual observation is a correct one.  P indeed was unable to make good his case as originally pleaded.  The learned Recorder is entitled to take that into account.

54.In relation to the rule in Browne v Dunn (1893) 6 R 67, Kwan VP recently observed at §40 of Re Chui Tak Keung Duncan [2025] 1 HKC 995  as follows:

The applicability of the rule has been explained by Deputy Judge Reyes, SC in Kaifull Investments Ltd v The Commissioner of Inland Revenue [2002] 1 HKLRD 858, [2002] HKCU 416 at §31.  The rule does not inflexibly require every point which might be used against the witness be put to him.  There can be no hard-and-fast rule.  The paramount consideration is fairness to the witness.  The rule is breached if, in all the circumstances, an omission to cross-examine on a specific point is unfair to the witness.  As stated by Zervos JA in HKSAR v Chan Hing Kai [2020]1 HKLRD 1082, [2020] 2 HKC 298, [2019] HKCA 172 at §97, the rule requires flexibility in its application and care and circumspection in the measures employed to address any breach.

55.Given P’s own pleaded case, in contrast with his own evidence, it is not unfair for the learned Recorder to take into account the fact that P was unable to make good his case as originally pleaded.  We do not accept Mr Lo’s submissions that the rule in Browne v Dunn has been infringed.

56.Ground#3 is not made out.

J.  Ground#4

57.Mr Lo summarises Ground#4 as follows:

8.4  Fourth, when the Recorder considered the wording of the Chinese Document, she failed to consider that the ultimate question of ownership was not mentioned in the Chinese Document (NOA §16 [A/2/51]). 

58.Mr Lo elaborates on Ground#4 at section C4 of his written skeleton submissions, which we have considered.  In particular, he complains that the learned Recorder’s analysis involves a “clear leap in reasoning which conflates Madam Lam’s authority as the matriarch vis-à-vis her children with her authority as the beneficial owner of the Property”.  In the course of the appeal hearing, Mr Lo further pointed to some oral evidence to the effect Madam Lam was the head of the family, and that before any decision was made, her opinion had to be asked for.

59.With respect, we are of the view that it is in fact P who puts forward speculative scenarios, then turns around and complains that the learned Recorder has failed to consider or analyse them.

60.In our view, the learned Recorder is correct in regarding the wording of the Chinese Document as being the best and most contemporaneous record of what was intended at the time.  The Chinese Document contains the words “留給”.  It gives the reasons why she “立此遺書”.  Common sense and inherent probability dictate, that people do not deal with real property in their will which do not belong to them.  In our view, the learned Recorder is correct in testing parties’ cases with the contents of the Chinese Documents, with parties’ conduct and contemporaneous reaction in relation thereto, and with the inherent probabilities the contents point towards.  That is precisely what the learned Recorder does at §§83 to 85 of the Judgment (which we have set out above).  She is in our view also correct in observing at §85 that “P’s conduct in signing was contrary to his position that he was the beneficial owner of the Property”.

61.Ground#4 has no merits.

K.  Ground#5

62.Mr Lo summarises Ground#5 as follows:

8.5  Fifth, the Recorder was wrong in finding that “Madam Lam had misunderstood whether she had to deal with the Property in the Will” (Judgment §89 [A/1/36]) when P had not been challenged on this in cross-examination (NOA §§15(6), 17 [A/2/51-52]). 

63.Mr Lo elaborates on Ground#5 at section C5 of his written skeleton submissions, which we have considered.

64.D2 at §65 of his witness statements says as follows:

In drafting the Will, which was 11 days after the execution of the Chinese Instrument, it is believed that the coverage and consequence of the Will in revoking all formal wills and testamentary dispositions was misunderstood by my mother, resulting that the Arrangement of the Property as prescribed in the Chinese Instrument was not included in the Will. She misunderstood that: - the disposal of the Property has already been dealt with by the Chinese Instrument; and the Will would deal with her remaining assets only.  She wanted to separate the disposal of the Property as she perceived it as the ancestral home of the Lam’s family, from her other assets for distribution.

65.The learned Recorder has found that D2 was a credible witness.  She was entitled to accept D2’s evidence in the above regard. It is quite clear that the learned Recorder had the above evidence in mind when making her observations at §89 of the Judgment.  Not much further analysis is called for.

66.The stance of D1 to D3 has been made clear on the face of witness statements.  P has stated his own stance.  He has not been ambushed.  It is not the case that the point was raised for the first time and without warning only in closing.  The learned Recorder was entitled to determine which side’s case she decided to accept, and to reach her findings on the totality of the evidence before her.  There is no unfairness to P.  The Browne v Dunn rule again is in our view not infringed.

L.  Ground#6 and Ground#7

67.Both grounds relate to probate matters.  We consider them together.

68.Mr Lo summarises them at §§8.6 and 8.7 of his written skeleton submissions, as follows:

8.6  Sixth, in finding that, since the Property was not registered in Madam Lam’s name, “it was not necessarily the case that it would be obvious to [the parties] that it ought to have been dealt with in the probate process for the Will” (Judgment §88(2) [A/1/35]), the Recorder overlooked the fact that the parties had included assets held on trust by P and D1 for Madam Lam in the schedule of assets (NOA §19 [A/2/52-53]). 

8.7  Seventh, the Recorder failed to consider the fact that Ds had confirmed that the probate process had been concluded without the need to deal with the Property (NOA §§18, 21 [A/2/52-53]). 

69.Mr Lo elaborates on them at sections C6 and C7 of his written skeleton submissions, which we have considered.

70.§88(2) of the Judgment ought not to be taken in isolation.  It is part of §88 where the learned Recorder considers the overall timeline of events and the correspondence in question.  We have set out §88 above.  The learned Recorder was also entitled to observe and conclude at §90 that “There is no clear indication that the cashing of the cheques concludes the disputes.”

71.In our view, Grounds#6 and #7 concern factual matters which are within the realm of the learned Recorder.  They have been sufficiently addressed.  There are no “palpable errors” in any sense as explained in Bright Gold.

72.Both grounds have no merits.

M.  Overall observations

73.Overall, the learned Recorder has accurately identified the ultimate issue, and the 3 main areas of factual dispute which are “relevant to and feed into” its consideration.  The learned Recorder was acutely aware of the limited documentary evidence available, and that much turned on her assessment of the credibility of the witnesses (2^nd of the 3 Further Points).  She correctly reminded herself of the principles involved in the assessment of evidence (her discussion on law, and the 3^rd of the 3 Further Points).  She did not only consider demeanour, though she appreciated that demeanour could play a part.  She considered inherent probabilities, consistency and coherence.  She considered the oral evidence against objective facts, notably the contents of the Chinese Documents.  The written closing submissions made on P’s behalf were more than 100 pages long. She recorded that a plethora of topics and history had been raised, and not all could be recounted in details in the Judgment.  She recorded that she had taken into account the evidence as heard and the extensive submissions as made.  She dealt with those which she distilled from the evidence as being important (the 1^st of the 3 Further Points).  In the end, she found that P was not a credible witness, whilst D1 to D3 and Madam Li were.  She gave main reasons for so finding.  The Judgment is more than sufficient in allowing the parties and the appellate court to understand and appreciate the reasons for her decision.  The procedure was not unfair to P.  The Browne v Dunn rule was not infringed.  None of Grounds#1 to #7 is made out.  Whether singly or collectively, they fail to make out any case which warrants this Court’s intervention.

N.  Conclusion and disposition

74.For the above reasons, we dismiss P’s appeal.

75.Parties accept that costs of the appeal are to follow the event.  We order that P shall bear the costs of the appeal, with certificate for 2 counsel for avoidance of doubt, to be taxed if not agreed.