Ng Nim Chung, Deceased and Another v. Ng Wing Man Terry

HCA 2221/2016

[2025] HKCFI 5314

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2221 OF 2016

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BETWEEN

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JUDGMENT

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A. Introduction

1.This is a mother and son litigation. More precisely, it is litigation between a mother, Madam Leung Wai Ping (“Mother”), now 92 years old, and her son, the Defendant.

2.The Mother and her late husband, Mr Ng Nim Chung (“Late Father”) had 5 children. The Defendant is their third child. Since 1967, the family lived in a public rental housing unit in Shatin Pass Estate (“PRH Unit”). Over time, the children moved away, including the Defendant.

3.In 1997, the Late Father and the Mother moved to the subject property, namely Flat 13 on the 20^th Floor of Block D, Hiu Lai Court, No. 21 Hiu Kwong Street, Kowloon, Hong Kong (“Property”). The Property was purchased under the Home Ownership Scheme (“HOS”) and was registered in the names of the Late Father and the Defendant as joint tenants.

4.The Late Father passed away in 2016. The Mother was appointed administratrix of his estate. The Mother, as administratrix and also in her personal capacity as well, commenced this action, asserting that the Late Father and/or she beneficially owned the Property, in which she has resided since 1997. On the other hand, the Defendant has never resided in the Property.

5.The Defendant denies the Mother’s allegation. The Defendant claims that, after the Late Father died, all the legal and beneficial interest in the Property vested in him as the surviving joint tenant. His solicitors issued a letter to the occupiers of the Property on 1 September 2016 requiring them, which necessarily included the Mother, to quit and deliver up vacant possession of the Property on or before 31 October 2016.

6.During the trial, however, the Defendant withdrew this position and gave an undertaking to the Court that he would allow the Mother to reside in the Property during her lifetime.

B. Brief Procedural History

7.Procedurally, these proceedings have taken a number of twists and turns. Very briefly:

(1) The Writ in this action was issued more than 9 years ago, in 2016.

(2) On 5 May 2021, the Defendant was absent at the Pre-trial Review. Mr Justice Yeung proceeded with the hearing and provisionally struck out his counterclaim. No application for restoration was ever made. The counterclaim remains dismissed to date.

(3) On 16 August 2021 when the trial started, the Defendant was again absent. He wrote to the Court asking for an adjournment but did not apply formally. Deputy High Court Judge Leung (as he then was) refused and heard the case in his absence.

(4) On 27 August 2021, the learned judge handed down judgment in favour of the Plaintiff.

(5) On 8 March 2022, upon the Defendant’s application, Deputy High Court Judge Leung set aside the said Judgment and ordered a re-trial.

(6) With leave, the Plaintiffs appealed against the said setting aside order, but the appeal was dismissed by the Court of Appeal on 14 June 2024.

8.This is the re-trial of the action. As mentioned above, as the Defendant’s counterclaim had been struck out and was not restored, the Court needs only dealing with the Plaintiffs’ claim.

C. The Plaintiffs’ Case

9.The Plaintiffs’ factual case is as follows:

(1) In or about October 1996, the Late Father and the Mother were notified that Shatin Pass Estate was to be demolished and redeveloped. They would therefore need to move out of the PRH Unit.

(2) The Late Father and the Mother discussed this matter with their children during a family dinner. The Defendant and their fifth daughter, Ng Yuen Har (who passed away in 2003) were not present at that time, as they were very busy with work and seldom had dinner with their parents. The other children, namely, Ng Ki Man (the eldest son) (“Ki Man”), Ng Chui King (the second daughter) (“Chui King”) and Ng Chui Ching Hermia (the fourth daughter) (“Chui Ching”) were supportive of their parents buying a new HOS flat.

(3) The main reason the Late Father and family decided to buy a new HOS flat was that the replacement unit offered by the Housing Authority (“HA”) was rather small. At that time, the Mother was helping Ki Man look after his two children. They needed a larger flat.

(4) The Late Father and family’s original intention was for the Late Father to be the sole registered owner of the property, similar to the arrangement with the PRH Unit, of which he was the sole registered tenant.

(5) Regarding the purchase costs, the children promised financial support. After discussion, the consensus within the family was that the Late Father would be responsible for the initial down payment, renovation costs, and other related expenses, while subsequent mortgage payments and other property-related costs would be covered by the monthly pocket money or household allowance given to the Mother. In particular, Ki Man would be primarily responsible for the mortgage payments because, as already mentioned, the Mother was helping him care for his two children at that time.

(6) In or about April 1996, the Late Father applied to the HA to purchase a flat under the HOS.

(7) In June 1996, HA notified the Late Father that his application had been accepted. He later enquired about a mortgage with Po Sang Bank. The bank staff informed him that, as he was nearing retirement age, it would be easier if he applied jointly with one of his children. The Late Father discussed this with his other children during a dinner. As the Defendant was the only child remaining as an “authorized occupant” of the PRH Unit, Chui King suggested asking the Defendant for help by lending his name for the mortgage application.

(8) The Late Father subsequently called the Defendant to discuss the matter. The Defendant agreed to lend his name for the purchase and mortgage application. He clearly knew that he was not required to provide any financial support for the property.

(9) During another dinner, the Late Father told the family that the Defendant had agreed to lend his name for the flat purchase to make it easier to secure a mortgage. Everyone in the family understood that that the flat was not intended as a gift for the Defendant, nor was it intended to benefit him alone.

(10) The Late Father and the Mother never helped any of their 5 children purchase a property. The Mother had once lent HK$15,000 to Ki Man for a down payment on a flat, which he later repaid.

(11) On 21 February 1997, the Late Father purchased the Property. It was registered in the names of the Late Father and the Defendant as joint tenants. He took out a mortgage loan with Po Sang Bank to finance the purchase. For repayment purposes, he opened a joint account with the Defendant and instructed the Mother to go to the bank in person every month to deposit cash directly into the joint account for the mortgage repayments.

(12) Around 2000, the mortgage was transferred to Hang Seng Bank. Initial mortgage repayments were made every two weeks, later changing to monthly. The Late Father and the Defendant also opened a joint account at Hang Seng Bank for repayment of the mortgage loan. Similarly, the Late Father instructed the Mother to go to the bank in person every month to deposit cash directly into the account for the mortgage repayment. The mother still has the deposit records from that time in her possession.

(13) Apart from the mortgage repayments, all incidental expenses and charges relating to the Property – such as management fees, rates, government rents, broadband service fees, water, the electricity, and gas – were paid by the Late Father and the Mother. The Defendant has never paid or contributed towards any of these expenses.

(14) The mortgage repayments were funded primarily from the pocket money and household allowances provided to the Mother by her children (other than the Defendant), namely Ki Man, Chui King, Chui Ching, and two of her grandchildren, Ng See Nga (Ki Man’s eldest daughter) (“See Nga”) and Ng Ho Hin (Ki Man’s younger son) (“Ho Hin”), together with the Old Age Allowance (commonly known as “Fruit Money”) and the parents’ own savings. In particular, Ki Man contributed approximately HK$8,000 per month. Chui King and Chui Ching also gave the Mother pocket money or household allowance over the years, the amounts varying with circumstances and being higher when the Mother helped care for their children. From 2004 onwards, See Nga also contributed, and after commencing work, Ho Hin gave about HK$2,000 per month. The Mother became eligible for the “Fruit Money” in 1998, while the Late Father had already been receiving it since 1996, about HK$2,000 per month. Additionally, upon his retirement in 1997, the Late Father had savings of approximately HK$400,000, and the Mother had savings of about HK$60,000 accumulated over the years.

(15) As for the Defendant, over the years he only gave the Late Father and the Mother a total of about HK$16,000, in two separate instances. This was merely for food and daily expenses, not for the mortgage. He never provided any financial assistance towards the purchase of the Property, nor did he give pocket money to his parents. After his marriage, he had very little contact with them or with the wider family. He never lived at the Property and rarely visited, being seen only on a few occasions such as the Mother’s birthday dinner in 2013, Ng Yuen Har’s funeral, and when the Late Father was hospitalized around March-April 2016.

(16) The Defendant has not contributed a single dollar towards the Property. The Late Father never asked him to do so, because the common understanding within the family was that the Defendant was merely holding the Property on his father's behalf. He was a nominal joint owner. In reality he had no beneficial interest. The consensus and intention were always that the Property was to be a home for the Late Father and the Mother in their old age, not an investment and not for the Defendant’s benefit.

(17) Around 2009, at Chui King’s suggestion, the Late Father asked the Defendant to transfer his interest in the Property back to him. The request was made because the Defendant had never contributed financially towards the Property, had become increasingly distant from the family, and the Late Father was by then getting older. The Defendant agreed and signed a Forfeiture Form[1] to remove his name, but the HA ultimately rejected the application due to insufficient justification. Since the Defendant had voluntarily signed the Forfeiture Form, the Mother and the rest of the family did not question his stance, nor did they anticipate he would later resile from it. They therefore did not follow up further.

(18) The Late Father never intended to sell the Property, as he lived there, nor did he ever indicate that he would buy out the Defendant’s interest. It would not have been possible for him to do so, because he knew that the Defendant had no beneficial interest in the Property.

(19) Throughout his lifetime, the Late Father never suggested that he had received any financial support from the Defendant. On the contrary, he often complained to other family members that he had not seen the Defendant and his family for a long time, and that they did not even visit during Chinese New Year. Apart from the aforementioned HK$16,000, he never indicated that the Defendant had given him any money, nor did he ever give the Mother any money said to have come from the Defendant.

10.Based on the above facts, the Plaintiffs claim that:

(1) The Defendant does not have any beneficial ownership, interest or title in the Property.

(2) The Property was owned beneficially by the Late Father solely pursuant to a common intention constructive trust and/or the Defendant is estopped from denying the Late Father’s sole title.

(3) Alternatively, the Property was beneficially owned by the Late Father and the Mother jointly, pursuant to a presumed resulting trust.

D. The Defendant’s Case

11.The Defendant alleges that:

(1) He jointly purchased the Property with the Late Father; they co-owned it as joint tenants.

(2) He paid the down payment of HK$59,000 for the purchase of the Property by way of a bank draft.

(3) He contributed approximately half of the mortgage repayments, amounting to about HK$5,000 per month.

(4) Accordingly, upon the demise of the Late Father, he became, as the surviving joint tenant, the sole owner of the Property.

E. The Witnesses

12.The Mother gave evidence. All members of the Late Father’s family, other than the Defendant, testified in support of the Mother’s case. They include Ki Man, his wife Madam Shet Yuk Lai (“Ki Man’s wife”), Chui King, Chui Ching, See Nga and Ho Hin.

13.The Defendant was the sole witness for his own case. His wife and son did not give evidence.

F. The Legal Principles

14.There is no disagreement on the applicable legal principles. In my view, the modern application of the common intention constructive trusts began with the UK House of Lords’ landmark judgment in Stack v Dowden [2007] 2 AC 432. The headnote captures the principles in a clear and succinct way:

“where a domestic property was conveyed into the joint names of cohabitants without any declaration of trust there was a prime facie case that both the legal and beneficial interests in the property were joint and equal; that the onus of proof lay upon any party seeking to establish that equity should not follow the law; that such a party had to prove that the parties had held a common intention that their beneficial interests be different from their legal interests, and in what way; that in order to discern the parties’ common intention the court should look at the parties’ whole course of conduct in relation to the property; that the law had moved on from the presumption of a resulting trust and many more factors other than the parties respective financial contributions might be relevant to divining their true intentions; and that when all relevant factors had been taken into account, cases in which the joint legal owners were to be taken to have intended that their beneficial interests should be different from their legal interests would be very unusual.”

These principles have since been followed and applied in Hong Kong, see Luo Xing Juan Angela v The Estate of Hui Shui See, Willy, deceased and Ors (2009) 12 HKCFAR 1, Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224; [2015] 2 HKLRD 985 (CA), Lo Kau Kun v Cheung Yuk Yun [2015] HKCU 415, Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, Leung Hang Lin v Lam Mei Yung [2019] HKCFI 2819, Kwok Mei Ha May v Chiu Yung [2020] HKCFI 2405, Lam Ka Kui v Choi Yuen Ling [2020] HKCFI 2647.

15.Whilst it is unusual for the legal and beneficial interests in a purchased property to diverge, the Court should nonetheless note a fundamental distinction from Stack v Dowden: that case concerned disputes between cohabitants whose relationship has broken down, whereas this case is a family dispute in which the protagonists – the Late Father, the Mother, Ki Man, the Defendant, Chui King, Chui Ching, and even the third generation witnesses – See Nga and Ho Hin, are all related by blood.

16.In the present case, the Mother, whose case is supported by all her other children, must prove on the balance of probabilities that the Defendant held his legal interest in the Property as a joint tenant on behalf of the Late Father, and that at the time of purchase it was the common intention of the Late Father and the Defendant, shared by the family, that the Late Father was the sole beneficial owner and the Defendant was only “lending” his name as a legal owner with no beneficial interest, for the purpose of facilitating mortgage finance from a bank for the purchase.

17.Apart from the question of financial contributions, it is paramount that the Court considers all the circumstances surrounding the purchase – the context in which it was made – in order to discern the parties’ true intention. In this connection, the following passages by Baroness Hale of Richmond (as she then was) in Stack v Dowden are particularly instructive:

“69. In law, “context is everything” and the domestic context is very different from the commercial world. Each case will turn on its own facts. Many more factors than financial contributions may be relevant to divining the parties’ true intentions. These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. When a couple are joint owners of the home and jointly liable for the mortgage, the inferences to be drawn from who pays for what may be very different from the inferences to be drawn when only one is owner of the home. The arithmetical calculation of how much was paid by each is also likely to be less important. It will be easier to draw the inference that they intended that each should contribute as much to the household as they reasonably could and that they would share the eventual benefit or burden equally. The parties’ individual characters and personalities may also be a factor in deciding where their true intentions lay. In the cohabitation context, mercenary considerations may be more to the fore than they would be in marriage, but it should not be assumed that they always take pride of place over natural love and affection. At the end of the day, having taken all this into account, cases in which the joint legal owners are to be taken to have intended that their beneficial interests should be different from their legal interests will be very unusual.

70. This is not, of course, an exhaustive list. There may also be reason to conclude that, whatever the parties’ intentions at the outset, these have now changed. An example might be where one party has financed (or constructed himself) an extension or substantial improvement to the property, so that what they have now is significantly different from what they had then.”

18.These observations emphasize that the inquiry extends beyond financial inputs to a holistic assessment of the family’s circumstances at the time of purchase.

G. Discussion of Evidence and Findings

G(1) The Defendant

19.I shall begin with the Defendant’s evidence, because it is wholly incredible.

20.His case cannot be accepted in any material respect:

(1) As to the Late Father’s intention in purchasing the Property:

(a) The Defendant’s pleaded case[2] is that the Late Father represented to him that he intended to pass all his shares and interests in the Property to the Defendant upon his death, and that he did not wish to bequeath any asset to any other children, especially to Ki Man. In his witness statement[3], the Defendant asserted that the Late Father had told him that the Late Father helped Ki Man to purchase a flat at Tseung Kwan O, that he would assist the Defendant in purchasing a flat in joint names, and that the Defendant could choose a flat from the HOS in the region of HK$1 million. He further deposed[4]: seeing the Late Father was so kind to him, he offered to contribute jointly to the purchase price and related expenses.

(b) However, during cross-examination, when he was asked why the Late Father would assist him in purchasing the Property at HK$1,180,000 but only assisted Ki Man in acquiring a property at around HK$330,000, the Defendant changed his case. He claimed that while Ki Man owned the entirety of his property, he himself was only entitled to half of the Property, which would amount to about HK$500,000 to HK$600,000. This claim contradicted his pleaded case that the Late Father’s intention was to enable him to become the owner of the entire Property upon the Late Father’s death. More fundamentally, it cast grave doubt on what the Late Father had really told him.

(c) Then came another remarkable volte-face. When the Defendant was put with his written opening submissions in Chinese for the trial on 16 August 2021 (as mentioned in paragraph 7(3) above) (“D’s Previous Opening”) ^[5], he accepted that it was the Late Father who raised the request for the Defendant to assist in the mortgage repayments. This assertion was diametrically opposite to what he stated in his witness statement, namely, that it was he who offered to contribute to the purchase price of the Property.

(d) When it was pointed out to him that, in his witness statement, it was the Late Father who intended to assist him to purchase the Property, yet he then said it was the Late Father who needed his financial assistance, the Defendant explained that this was because they picked a property at the purchase price of HK$1.18 million, which was around HK$200,000 more. When pressed whether it was because of the additional HK$200,000 that the Late Father asked him to assist in the mortgage repayment, the Defendant said the Late Father’s intention had always been that the Defendant should jointly repay the mortgage because the Late Father was near retirement.

(e) In my view, what the Defendant said here was illogical and again inconsistent with his own evidence, because, according to the Defendant’s own case, the choice of purchasing the Property at HK$1.18 million was made by him, not the Late Father, when they attended the HA’s office for flat selection on 1 July 1996[6]. Moreover, their discussion on purchasing a property jointly took place in around April 1996[7], which was well before they submitted the application form to the HA[8], let alone the selection of the Property. Therefore, at the initial discussion in early April 1996, it was impossible for the Late Father to request the Defendant’s financial assistance on the basis that they had picked the Property priced HK$200,000 more. Further, the Defendant’s answer that it was the Late Father and he who selected the Property is wholly inconsistent with his witness statement, that it was he alone who made the selection.

(f) Further, when the Plaintiff’s counsel put to the Defendant that his account of the Late Father requesting his financial assistance was contradictory to what was stated in his Defence and witness statement, he only disagreed. When I asked whether he had anything to add beyond expressing disagreement. He said no.

(g) Given the obvious inconsistency and given the Defendant’s silence even when offered the opportunity to explain, the only conclusion the Court can draw is that the Defendant’s evidence cannot stand.

(2) The other important aspect concerns the down payment for the purchase. The Defendant’s pleaded case is that he paid the down payment alone, relying on an official receipt issued by the HA on 1 July 1996[9]. This reliance was entirely misplaced. The copy of the HA’s official receipt produced by the Mother shows that both the Late Father and the Defendant were recorded as the payers of the down payment. This inaccuracy was conceded by the Defendant in his witness statement[10]. However, during cross-examination he nevertheless insisted that he alone had paid the down payment, despite there being no evidence in support.

(3) As to the Defendant’s case on mortgage repayment, there are multiple and serious problems which render his account entirely fanciful.

(a) Firstly, all evidence of the Defendant’s alleged mortgage repayments comes solely from his own mouth. There is no supporting documentary proof. No witness, not even his wife, has come forward to corroborate any repayments.

(b) Secondly, the Defendant repeatedly changed his case, advancing different versions at different stages:

(i) Defence[11]: He pleaded that the monthly sum of HK$5,000 he contributed was towards “the mortgage repayments and other outgoings”. However, he did not explain what “other outgoings” comprised.

(ii) Answer to Amended Request for Further and Better Particulars of the Defence[12]: He stated instead that the monthly sum of HK$5,000 was towards “half of the mortgage payments”. He did not mention other outgoings here. He alleged that his total contributions exceeded HK$1,050,000[13].

(iii) Witness statement[14]: He asserted that he sometimes gave the Late Father more than HK$5,000 “as a gesture” or “tea money”, and that despite the mortgage being changed to Hang Seng Finance Ltd for a lower interest rate, his monthly contribution of HK$5,000 towards the Property remained unchanged.

(iv) Cross-examination: When asked why he would still pay HK$5,000 for his half share of the mortgage when the monthly mortgage instalment had fallen to less than HK$7,000, he said that the remainder was at the Late Father’s free disposal. This necessarily means that part of the HK$5,000 was not a contribution to the purchase of the Property, yet the Defendant could not quantify how much. He had no record of his contributions. He admitted that his alleged total contribution of more than HK$1,050,000 was calculated retrospectively by multiplying the number of months since commencement of the mortgage in March 1997, namely 210 months by HK$5,000, with no evidence, documentary or otherwise, in support.

(c) Thirdly, his answers during cross-examination are, in my judgment, wholly inexplicable. When the Defendant was asked why there was no bank withdrawal record of his alleged monthly contribution of HK$5,000, he said it was because his wife was a tour guide and had a lot of cash, so there was a lot of cash at home and he used that cash for the monthly payment to the Late Father. When asked whether he had a scheduled date every month to meet the Late Father to pay the monthly sum, the Defendant said there was no fixed date, notwithstanding that there was a repayment deadline each month. When asked whether there was any occasion on which he deposited his contribution into the Late Father’s bank account or the joint account opened for mortgage repayment, he said no. When asked why the payments had to be made in cash and in person, he was unable to offer any explanation.

(d) In light of the above, I have grave doubt as to whether the Defendant has made any contribution to the mortgage repayments for the Property at all. In the absence of documentary proof or corroboration, his inconsistent and inherently unreliable assertions carry no weight, and his pleaded case of having borne half the mortgage repayments cannot be sustained.

(4) As to the circumstances surrounding the Forfeiture Form signed by the Defendant, his evidence is in disarray:

(a) There is no dispute that the Forfeiture Form was signed by the Defendant and dated 12 August 2009. It is the Mother’s case that it evidenced the Defendant’s intention to forgo his legal title in the Property and transfer it to the Late Father without consideration, which is in line with the original common intention that the Defendant never had any beneficial interest in the Property. The Defendant, in his pleaded case[15], accepted that he signed the Forfeiture Form, but, notwithstanding that it expressly stated that he forgent his title in the Property, he says it was a sale of his legal and beneficial interest in the Property to the Late Father.

(b) This is contradictory to paragraph 28 of his witness statement. In that paragraph, the Defendant stated that between 2006 and 2008, as he was considering sending his son to England for education, he discussed with the Late Father about the sale of the Property but the Late Father rejected his idea as the Late Father was of the view that the market price was not attractive. The plain reading of this statement is that the Defendant suggested that the Property be sold on the open market so that he could obtain funds for his son’s education in England. The Late Father refused because he considered the market price unattractive.

(c) However, the Defendant changed his account yet again during cross-examination, when it was put to him that if the Property was sold on the open market, the Late Father and the Mother needed to use the money to buy a new place to live, since the Property was their residence, the Defendant answered that what the Late Father intended was to purchase the Defendant’s share in the Property. When it was put to him that his answer was inconsistent with paragraph 28 of his witness statement, he answered that what was stated in paragraph 28 was wrong. It was further put to him that the Late Father simply did not have such a discussion with him. He conceded that there was no such discussion.

(d) The Defendant contradicted himself again in relation to paragraphs 30 and 31 of his witness statement. In paragraph 30, the Defendant stated that subsequently in 2009, when he decided to transfer his son to another school in the United Kingdom, he raised the idea of selling the Property again, and the Late Father offered to purchase his legal and beneficial interest in the Property by paying back the down payment and mortgage sums he had allegedly contributed over the years, and it was the Late Father who suggested applying for the HA’s approval first. In paragraph 31, the Defendant stated that he signed the Forfeiture Form when it was blank, that it was the Late Father who filled in the Forfeiture Form, and that he only learnt later that the reason given for his forfeiture of title to the Property was because he was getting married.

(e) However, he again gave no answer when cross-examined that his statement – that he did not know that his marriage was used as the reason for the application until later, was contradictory to what he stated in his earlier affirmation in support of his application to set aside the previous judgment[16], in which he stated that their joint application was based on marriage, though he had married before making the application. In that affirmation, he even mentioned that the Late Father and he appreciated that marriage was not one of the reasons acceptable to the Housing Department, and they were just trying to apply. He admitted that what was stated in the affirmation was not accurate, that it was the Late Father who decided how to fill in the Forfeiture Form, and subsequently told him that the Late Father used his marriage as the reason for the application.

(f) In other words, as is clear to me, the Defendant just signed the form as requested by the Late Father to forgo his legal title in the Property.

(g) I should mention three more points. First, the main thrust of the Defendant’s counsel’s cross-examination of the Mother’s witnesses and submissions was that the Late Father, as well as his other family members, did not have the financial means to purchase the whole of the Property or to pay the monthly mortgage instalments. It is inexplicable why the Defendant suggested during cross-examination that the Late Father had sufficient funds to purchase the Defendant’s interest in the Property. When he was pressed during cross-examination, the Defendant’s answer was incredible: that the Late Father would discuss with his family members. Such a suggestion was made for the first time – not in his pleadings or witness statements. If it were true, it would only lend more support to the Mother’s case that the Late Father, with the support of his other family members, had the ability to pay the down payment and mortgage instalments for the Property.

(h) Second, fundamentally, the Forfeiture Form simply could not be used to effect the Defendant’s alleged sale of any half interest in the Property to the Late Father. Clauses 1(A) and 7(A) of the 申請須知 (Application Guide) expressly stipulate that the Forfeiture Form cannot be used for any sale of title or interest, or transfer involving monetary consideration.

(i) Thirdly, the HA did not approve the application. When cross-examined further why he did not follow up with the alleged agreed sale of his interest to the Late Father, despite his financial need remaining, he could not offer any answer.

(j) In conclusion, the Defendant’s case is clearly a subsequent fabrication.

21.In the premises, the Defendant’s case has entirely collapsed. His evidence is riddled with contradictions, unsupported by any documentary proof, and wholly incapable of belief.

G(2) The Mother & Her Witnesses

22.I accept the Plaintiffs’ counsel’s submission that, in contrast to the manifestly contradictory account of events given by the Defendant, the Plaintiffs’ witnesses, especially the Mother herself, are honest and forthcoming. They came across consistently and impressed the Court as a family of hardworking individuals who live frugally and within their limited means, without the Defendant’s assistance or contribution.

23.Therefore, I therefore make the same findings as urged by counsel and accept the credibility of the Plaintiffs’ witnesses.

24.The Mother, despite her advanced age, gave direct and truthful answers. She was candid in acknowledging where her recollection of family discussions was uncertain, yet she remained clear and consistent in recalling what the Defendant did and did not contribute. Her evidence was straightforward and reliable.

25.The siblings, Ki Man, Chui King and Chui Ching gave honest and direct answers. In particular, Ki Man was forthcoming as to their feelings towards the Defendant: in Ki Man’s words, “we might not be close but we were not enemies.” This frankness reinforced the Court’s impression that he was not seeking to exaggerate or embellish his evidence. Ki Man’s wife likewise answered questions directly, even at times showing frustration with the nature of questions put to her. As for the grandchildren, Ho Hin and See Nga, their testimony was either hardly challenged or not challenged at all, and I accept it as truthful.

G(3) The Contemporaneous Documents

26.I accept the Plaintiffs’ submissions as to the contemporaneous documents. In my judgment, the contemporaneous documents produced by the Plaintiffs are overwhelmingly supportive of the Plaintiffs’ case and are inherently credible.

27.In relation to the payment of the purchase price and the ongoing expenses of the Property, the documentary record is compelling. The deposit slips and remittance advices for the mortgages, carefully kept and produced by the Mother, show that the relevant withdrawal account was in her name. These records correspond with the entries in the passbook of the joint bank account of the Late Father and the Defendant for mortgage repayment, which in turn demonstrate that deposits were made exclusively by the Mother. The documentary trail is consistent and complete.

28.The same is true of the bills and receipts for the maintenance and outgoings of the Property. The Court has seen copies of demands and receipts for Rates and Government Rent, utility bills for broadband, water, electricity and gas, as well as receipts from the management company and related banking records. These documents, kept by the Late Father and/or the Mother, show that the household expenses were borne by them, not by the Defendant.

29.Two further documents are of particular significance to the common understanding of the parties. First, the transaction advice dated 29 May 1997 records a payment of HK$100,393 by the Late Father to the Defendant, made shortly after the Property was purchased[17]. Secondly, the Forfeiture Form shows the Defendant’s willingness to forgo his legal title in favour of the Late Father, and to do so without consideration. Both documents are wholly consistent with the Plaintiffs’ case that the Defendant never had any beneficial interest in the Property.

30.By contrast, the Defendant’s assertion that he made monthly payments of HK$5,000 to the Deceased remains unsupported by any documentary evidence.

G(4) Findings

31.For the reasons explained above, I hold that the Plaintiffs have satisfactorily discharged their burden. I accept the Plaintiffs’ case in full and reject the Defendant’s case in its entirety.

32.Factually, having considered all the evidence and the circumstances of the matter, I find that:

(1) At the time of the purchase of the Property, there was a common understanding between the Late Father and the Defendant, and indeed among the Late Father’s whole family, including the Mother and all his other children, that

(a) The Late Father would purchase the Property and would be its sole beneficial owner.

(b) To facilitate the obtaining of mortgage finance from bank, the Defendant would “lend” his name as a joint tenant on the legal title. He would make no contribution towards the purchase price or related expenses. He would have no beneficial interest in the Property.

(2) Pursuant to that common understanding, the purchase price (including the down payment and mortgage repayments) and all related expenses (such as rates, government rents and management fees) were met from the common pool of funds of the Late Father and/or the Mother.

33.Given the existence of the common understanding described above, the detrimental reliance of the Late Father in paying the purchase price and expenses in relation to the Property and the obvious unconscionability of permitting the Defendant to resile from that common understanding, I hold that a common intention constructive trust was established in favour of the Late Father.

34.Having regard to the context and all the circumstances, and in light of my finding that a common intention constructive trust exists, I do not consider it necessary to deal with the Plaintiffs’ alternative claims for resulting trust and money had and received.

H. Conclusion

35.For the above reasons, I make the following order:

(1) Judgment be entered in favour of the Late Father’s estate, the 2^nd Plaintiff.

(2) A declaration that the Late Father was at all material times, and that his estate now is, solely entitled to the beneficial ownership, title and interest in the Property, that the Defendant was not, and is not, so entitled; and that the full beneficial ownership, title and interest in the Property now forms part of the estate of the Late Father.

(3) A declaration that the Defendant at all material times held his legal title and interest in the Property on trust for the Late Father, and that he now holds the same on trust for the estate of the Late Father.

(4) An order that the Defendant shall take all necessary steps to transfer his legal title and interest in the Property to the Mother, as the administratrix of the estate of the Late Father, the 2^nd Plaintiff, subject to the terms and regulations governing the HOS. For this purpose the parties shall have liberty to apply.

36.As to costs, I make an order nisi that the Defendant shall pay the Plaintiffs’ costs of the action, including any costs reserved, to be taxed if not agreed, and this order shall become absolute if no application for variation is made within 14 days from the date of this judgment.

37.I further order that the Plaintiffs’ own costs shall be taxed in accordance with the legal aid regulations.

Mr Kerby Lau and Ms Regina Yip (on pro bono basis), instructed by Hampton, Winter & Glynn, for the 1^st Plaintiff

Mr Kerby Lau and Ms Regina Yip (on pro bono basis), instructed by Hampton, Winter & Glynn, assigned by Director of Legal Aid, for the 2^nd Plaintiff

Ms Sezen Chong, instructed by Jackson Ho & Co., for the Defendant