Leung Kam v. Wong Yuk Ling

DCCJ 1913/2025

[2026] HKDC 116

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1913 OF 2025

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BETWEEN

(by original action)

AND BETWEEN

(by counterclaim)

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JUDGMENT

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A. Introduction

1.It is always unfortunate to see another family feud on public display before the court. In the present case, the family members involved are vying over Unit D, 22/F, Block 22, Richland Gardens, Kowloon Bay (“the Property”).

2.Madam Leung Kam (the plaintiff by original action and the 1^st defendant by counterclaim) (“the Mother”) is the mother of both Madam Wong Yuk Ling (the defendant by original action and the plaintiff by counterclaim) (“Yuk Ling”) and Mr Wong Chi Keung (the 2^nd defendant by counterclaim) (“Chi Keung”). Ms Maggie Wong, SC leading Mr Brian Lee appeared before me on behalf of the Mother and Chi Keung; Mr Kenny Lin and Ms Joanne Szeto appeared before me for Yuk Ling.

3.The Mother (now 93 years old) and her late husband Mr Wong Ming (“the Father”)[1] have 6 children. They are, in sequence:-

3.1. Wong Yuk Ying 黃玉英 (“Yuk Ying”), born in 1956 or 1957;

3.2. Chi Keung, born in 1959;

3.3. Wong Chi Cheung 黃志昌 (“Chi Cheung”), born in 1961;

3.4. Yuk Ling, born in 1965;

3.5. Wong Yuk Sim 黃玉嬋 (“Yuk Sim”), born in 1968; and

3.6. Wong Yuk Yin 黃玉燕 (“Yuk Yin”), born in 1970.

4.The Property was sold by the Hong Kong Housing Authority (“the HA”) under Phase VIB of the Home Ownership Scheme (Private Sector Participation Scheme) (“the HOS”). Phase VIB refers to the 6^th instalment for which subsidized housing was sold under the HOS; the Private Sector Participation Scheme[2] means that the housing was built by private developers for the government; it is operated in the same way as the HOS generally in relation to the present case.

5.On 4 June 1985, Chi Keung became the registered owner of the Property, in the circumstances to be further described below.

6.By way of a Deed of Gift dated 4 December 1989 (“the Deed of Gift”), the Property was assigned by Chi Keung to Yuk Ling at nil consideration, upon consent being given by the Registrar General of the Land Office. Since then, Yuk Ling has been the registered owner of the Property.

7.There is no dispute that the Mother has been residing at the Property.

8.The Mother commenced HCA 615/2022 by taking out a Writ of Summons on 24 May 2022 at the High Court, asserting that Yuk Ling has been holding the property on trust for her; she seeks a declaration that she has all long been the beneficial owner of the Property, and other orders to have it registered under her name.

9.Yuk Ling claims that she has been the legal and beneficial owner of the Property since the execution of the Deed of Gift. She counterclaims for a declaration to that effect, and for other ancillary relief.

10.By his Order dated 11 March 2025, Deputy High Court Judge M K Liu transferred HCA 615/2022 to this court for trial; thus the present case has become DCCJ 1913/2025.

B. Background and the factual disputes

11.Prior to the purchase of the Property, the Wong family lived in Tung Tau Estate, a public housing estate managed by the HA, in Wong Tai Sin. They were originally allotted (in 1966) a public housing unit in Block 23. Probably because of the size of the family, they were allotted an additional unit in Block 16 some time in 1982.

12.It is the Mother’s case that:-

12.1. The Father worked in the shipping industry in the 1980s, earning around $3,000.00 per month. After keeping a small fraction of his salary for lunch and cigarettes, the Father would pass the rest of the salary to her to defray family expenses. If there was any money left after paying all expenses, the Father would gift it to her, and she would save it up. She also earned extra money by making plastic flowers at home.

12.2. When the family was allotted the Block 16 unit in 1982, the parents arranged Chi Keung and Chi Cheung to move there. This was because Block 16 had a rowdy neighbourhood, and they did not want their daughters to go there.

12.3. Since then, however, it was mainly just Chi Cheung who resided at the Block 16 unit; Chi Keung spent most of his time in the dormitory as he was studying medicine at the University of Hong Kong (HKU). Chi Cheung complained that hooligans and drug addicts around Block 16 harassed him from time to time; he was unwilling to stay there anymore. The Father and the Mother decided to return the Block 16 unit to the HA as they were wasting rent on it.

12.4. In 1984, the Mother attended the HA’s office at Tung Tau Estate to apply to return the Block 16 unit. An HA officer suggested to her that she could surrender the Block 16 unit to apply for an HOS flat in Richland Garden. But she was informed that she could not be the applicant for the HOS flat, because she was the spouse of the Father, who was the registered head tenant of the Block 23 unit. The HA officers suggested that she could nominate one of the registered tenants of the Block 16 unit to be the applicant instead.

12.5. Therefore, the Mother asked Chi Keung to be the applicant for an HOS flat on her behalf, to which he agreed. This arrangement was known amongst all family members.

12.6. Chi Keung entered into an agreement to buy the Property at $337,400.00 on 23 February 1985, and was formally assigned the Property on 4 June 1985. A mortgage in the amount of $200,000.00 was also taken out by Chi Keung (“the 1^st Charge”) with Hang Seng Bank (“HSB”). The Mother paid for the downpayment and all the incidental charges in purchasing the Property; she put money into Chi Keung’s bank account with HSB every month to repay the mortgage installments.

12.7. When the Property was ready for occupation in 1985, the parents and the 3 daughters moved into it. Chi Keung spent his time at hospital lodging; Chi Cheung stayed in the Block 23 unit.

12.8. Chi Keung was employed by the government as a medical officer in 1985. He became entitled to housing subsidy in 1988. But when he was applying for the housing subsidy, he was told that he had to get rid of his ownership of the Property. Chi Keung then agreed with Yuk Ling that Yuk Ling should hold the Property as the registered owner for the Mother. Thus, the Deed of Gift was executed on 4 December 1989. The Mother paid for all the incidental charges. Another mortgage of around $120,000.00 was taken out by Yuk Ling (“the 2^nd Charge”) with HSB to pay off the 1^st Charge. The Mother continued to pay for the mortgage installments under the 2^nd Charge.

12.9. In 1991, the Father retired and received around $400,000.00 as his lump sum pension. After keeping part of it for himself, the Father gave the rest to the Mother to spend it as she pleased. The Mother decided to pay off the 2^nd Charge. This was done in August 1991.

12.10. Afterwards, the Mother kept the title deeds to the Property. She later entrusted them to Chi Keung. Prior to her stroke in December 2018, Yuk Ling never disputed that the Mother was the beneficial owner of the Property.

12.11. When the Mother was admitted to the hospital as a result of the stroke in December 2018, Yuk Ling and her husband visited her at the hospital. They complained that they were cheated money by Chi Keung, and would like the Mother to pressure Chi Keung to repay them.

12.12. Further, in July or August 2021, Yuk Ling called the Mother. In the telephone conversation, Yuk Ling said the Mother should better look for alternative accommodation; or else she might need to sleep on the streets. The Mother was shocked hearing that; and told Yuk Ling that she had no right to evict her, as she did not pay much for the Property.

12.13. Upon discussing with her other children, the Mother retained her former solicitors to issue 2 letters to Yuk Ling respectively on 23 February 2022 and 1 April 2022, but Yuk Ling did not respond to them. Instead, Yuk Ling sought to terminate the existing utilities accounts of the Property, and have them transferred to her name. She arranged prospective buyers to inspect the Property without the Mother’s consent. The Mother then decided to commence the present case to assert her beneficial ownership over the Property.

13.Chi Keung’s case aligns with the Mother’s case.

14.In summary, Yuk Ling’s case is as follows:-

14.1. The Father was a coxswain, and was the breadwinner of the family. He earned $4,000.00 to $5,000.00 by the time he retired in around 1989.

14.2. The Mother was a housewife; she supplemented the family income by making plastic flowers at home, but that did not earn much. Prior to the purchase of the Property, she did not have significant savings.

14.3. The Father was in control of the finances. Even the Mother needed to surrender whatever she earned from making plastic flowers to the Father for him to distribute pocket money to the children and defray family expenses.

14.4. In 1982, the family was allotted the Block 16 unit to alleviate the congested living condition at the Block 23 unit. The Block 16 unit was allotted to them because many residents moved out of Tung Tau Estate pending redevelopment, and thus many units became vacant.

14.5. The Father then asked Chi Keung and Chi Cheung to live in the Block 16 unit, because (i) the unit had no private bathroom, so it would be inconvenient for the daughters to live there; and (ii) the Father disliked living with Chi Keung and Chi Cheung because they were mischievous and trouble-making. In 1984, Chi Keung and Chi Cheung moved out of the Block 16 unit because it was to be redeveloped; in any event, Chi Keung spent most of his time at the HKU dormitory.

14.6. In 1984, Chi Keung graduated from HKU. He wanted to borrow money from the Father to buy a flat, as he was planning to marry his girlfriend. The Father agreed to Keung’s proposition.

14.7. At that time, the Father did not need to surrender the Block 16 unit to participate in the HOS. But the Father told Yuk Ling that her name and Chi Keung’s name had to be removed from the household in order to participate in the HOS.

14.8. Later, Chi Keung went to the HA headquarters with the parents to select the HOS flat they would like to purchase. However, the Father complained to Yuk Ling that Chi Keung was disrespectful to them, as he left the parents outside the office, and chose the Property on his own without discussing with them.

14.9. Apart from taking out the 1^st Charge, Chi Keung borrowed money from the Father to pay for the deposit, the remainder of the purchase price, and other incidental charges. The Father lent him the money from his own savings.

14.10. There was never any agreement or discussion amongst family members that Chi Keung would hold the Property for the Mother. This could not have happened because the Mother did not have the means to purchase the Property. Further, Chi Keung repaid the mortgage installments using his income as a medical officer.

14.11. After purchasing the Property, the 3 daughters moved into the Property. The parents would occasionally stay in the Property, but they mainly lived in the Block 23 unit still.

14.12. After his marriage, Chi Keung was desirous of purchasing a more luxurious property with the help of the government’s housing subsidy. But he was told that he could not apply for such subsidy to purchase another property whilst he still owned the Property. Therefore, Chi Keung asked the Father whether he would be able to take over the Property. But the Father could not afford to take up the Property as he was retired by then.

14.13. Chi Keung then explored with his siblings to see whether any one could take over the Property from him. Yuk Ling was the only one with the affordability and interest to do so. She was working as a private tutor in 1989 earning around $10,000.00 per month. Hence, the Father proposed to Chi Keung that he should transfer the Property to Yuk Ling on the condition that she would become responsible for discharging the outstanding mortgage. Chi Keung agreed; and thus the Deed of Gift was executed, and the 2^nd Charge taken out.

14.14. Yuk Ling paid the mortgage installments for the 2^nd Charge from her own income, even though the money was paid to Chi Keung’s account with HSB for the sake of convenience. Subsequently in February 1991, Chi Keung purchased a house in Tuen Mun for $3.65 million.

14.15. In 1991, the Father received his retirement fund. Yuk Ling asked him whether he could use part of the fund to pay off the 2^nd Charge to save on interest. The Father agreed to do so in exchange of Yuk Ling’s promise that she would take care of the parents. Yuk Ling agreed and the 2^nd Charge was paid off in August 1991. She kept the title deeds at the Property since then; she last saw them in the Property in 2019 or 2020.

14.16. Yuk Ling paid $2,000.00 to $3,000.00 to the Father every month up to 2001 or 2002 when he was admitted to a nursing home. She then paid the Mother around $30,000.00 every year to discharge the expenses of the Property. She also paid the contribution for the renovation of Richland Garden in 2006.

14.17. The Mother suffered a stroke in 2018; she became physically and mentally impaired as a result. Since then, she became increasingly forgetful and absent-minded; she gradually relied on Chi Keung.

14.18. Yuk Ling believed that the Mother commenced the present case because of Chi Keung’s influence. Since 2014, Chi Keung was embroiled in a dispute with Yuk Ling and her husband over a sum of $5.75 million. The dispute led to Yuk Ling’s husband and her father-in-law commencing a claim against, amongst others, Chi Keung in January 2020 (i.e. HCA 32/2020).

14.19. In August 2021, Yuk Ling told the Mother about her financial dispute with Chi Keung over a phone call; but the Mother sided with Chi Keung completely. Yuk Ling further told the Mother that Chi Keung had asked her to sell the Property to cover his debts, as he gifted the Property to her. Yuk Ling then said metaphorically that if she were to follow Chi Keung’s request, the Mother would need to sleep on the streets. Yuk Ling meant to convey the message that she rejected Chi Keung’s request, but the phone call ended on an unhappy note.

14.20. Yuk Ling believed that Chi Keung caused her mother to commence the present case. She was surprised to receive the writ, as she thought she remained on good terms with the Mother.

15.Yuk Ling further relies on the following defences:-

15.1. Since the Mother was admittedly not eligible to purchase the Property, being the spouse of the registered head tenant of the Block 23 unit, she must have conspired with Chi Keung to defraud the HA in the acquisition of the Property. This is because Chi Keung must have confirmed with the HA and HSB that he was the true owner of the Property, when he knew that was not the case. The Mother and Chi Keung must also have committed the offence of obtaining a pecuniary advantage by deception, in that (i) the Mother became the owner of a government subsidized flat when she was ineligible to do so, and (ii) Chi Keung must have falsely represented to HSB that he was the true owner of the Property in obtaining the loan under the 1^st Charge with HSB. Therefore, any common intention allegedly existed between the Mother and Chi Keung would be void for illegality.

15.2. The proviso to the Deed of Gift stated that Chi Keung assigned the Property by way of gift to Yuk Ling as the beneficial owner. Hence, he is now estopped from denying that she is the legal and beneficial owner of the Property.

16.Parties agree that this court needs to resolve the following issues:-

16.1. Issue 1: whether there was any common intention or understanding between the Mother and Chi Keung, and subsequently between Chi Keung and Yuk Ling that the Mother should have the beneficial ownership of the Property.

16.2. Issue 2: whether the Mother acted to her detriment in reliance of the common intention or understanding found existing.

16.3. Issue 3: whether it was the Mother or Yuk Ling who paid for the purchase price of the Property (including the downpayment, the mortgage repayments and all attendant expenses).

16.4. Issue 4: based on the findings to be made in relation to issues 1 to 3, whether Chi Keung and Yuk Ling respectively held the Property on constructive trust or resulting trust for the Mother.

16.5. Issue 5: whether the common intention or understanding claimed by the Mother is unenforceable by reasons of the matters pleaded in §§5 and 6.12 of the Amended Defence and Counterclaim (“ADCC”); in particular:-

16.5.1. Whether Yuk Ling should be permitted to run the defence of illegality based on the pleaded facts in §5 of the ADCC;

16.5.2. Whether such defence operates against the Mother if the Mother does not need to rely on an illegal arrangement to establish her proprietary interests in the Property; and

16.5.3. Whether Chi Keung is estopped by deed or convention from denying that Yuk Ling has been the legal and beneficial owner of the Property.

16.6. Issue 6 is just a general issue asking this court to consider the appropriate relief based on the outcome of issues 1 to 5.

17.The Mother, Chi Keung and Yuk Ling gave evidence at trial. Parties originally also named Chi Cheung and Yuk Ying as witnesses; but at the end they were not called. Hence, I have disregarded the witness statements respectively filed by Chi Cheung and Yuk Ying.

18.Before I analyze the evidence, I shall set out the reasons of the disposal of the Summons taken out by the Mother on 3 June 2025, i.e. on the 1^st day of trial. By this Summons, she sought leave to adduce a supplemental list of documents, discovering (i) the will she executed on 16 May 2022 (“the 2022 Will”); and (ii) a video clip recorded on 5 January 2022. This application was supported by the 2^nd Affirmation of Wong Chi Keung affirmed on the same day.

19.Ms Wong SC explained the basis of the Mother’s application as follows:-

19.1. In §6.18 of the ADCC, it was averred that the Mother commenced the present case because of the control and/or influence of Chi Keung over her. Since there had been dispute between Chi Keung and Yuk Ling[3], the present case was instituted against Yuk Ling out of spite and/or in retaliation.

19.2. In Yuk Ling’s 2^nd supplemental witness statement dated 14 March 2024, she claimed to have been told by Yuk Ying that the Mother had made a will leaving her estate to Chi Keung and Chi Cheung. Therefore, Chi Keung and Chi Cheung would stand to benefit if the Property formed part of the Mother’s estate.

19.3. In the written opening filed by Yuk Ling, it was submitted that Chi Cheung gave evidence in support of the Mother’s claim because he would stand to make financial gain out of the will, and cross examination on this was intended on the witnesses to be called by the Mother and Chi Keung.

19.4. In answer to the unpleaded allegation of financial gain, it would be fair to allow the Mother and Chi Keung to properly respond by further adducing the 2002 Will, and a video recording her testamentary wishes.

20.A further twist arose when Mr Lin rose to make his submissions in reply on the 2^nd day of trial. On 3 June 2025, the Mother’s solicitors sent a letter to Yuk Ling’s solicitors, enclosing a copy of another will made by the Mother on 23 May 2024 (“the 2024 Will”). The 2024 Will revoked all previous wills. It was stated in the letter that, although the Mother took the view that the 2024 Will was irrelevant to the present case, she decided to provide a copy to Yuk Ling as a matter of fairness.

21.Yuk Ling did not oppose to the Mother’s application with respect to the 2022 Will; but she opposed to admitting the video recording as evidence.

22.After hearing counsel, I granted leave to the Mother to file and serve a supplemental list of documents to formally discover the 2022 Will, and include it as part of the evidence for the trial. I refused leave with respect to the video recording. I also gave consequential leave to Yuk Ling to file and serve a supplemental list of documents to formally discover the copy of the 2024 Will. My reasons, then reserved, are as follows:-

22.1. I agreed with Mr Lin this was a very late application. I did not agree with the Mother that she had good excuse justifying the lateness. I do not think the application can be justified by couching Yuk Ling’s belief of Chi Cheung’s motive as an unpleaded allegation – the motive is not a necessary constituent to Yuk Ling’s defence. It only serves as a piece of evidence that this court may consider in evaluating the respective credibility of the witnesses. There seemed to me to be no good explanation for the Mother’s failure to discover the 2002 Will and the video recording shortly after Yuk Ling’s 2^nd supplemental witness statement was filed, if she thought Yuk Ling’s belief baseless. The same applied to Chi Keung.

22.2. The video recording was 38 minutes long. Without setting out its content exhaustively, it must have touched on many matters that Mr Lin might find it worthwhile to explore by way of cross examination, to say at least. It would not be fair to ask Mr Lin to conduct cross examination of the witnesses when he virtually had no time to prepare for it; nor would it be right to adjourn the whole trial and waste valuable judicial resources to allow Mr Lin time to prepare his case properly. In my decision, the only reasonable course was to reject the Mother’s application regarding the video recording altogether.

22.3. The 2022 Will was only a few pages long. It left the Property to 5 of the 6 siblings in equal shares (except Yuk Ying); each grandchild would get $30,000.00, with the residual estate again going to the siblings in equal shares. On the face of it, Yuk Ling’s benefit under the will would be co-extensive with that of Chi Keung and/or Chi Cheung.

22.4. It seemed to me that, by admitting the 2022 Will as part of the evidence, some of the cross examination might be dispensed with. I was of the view that the interests of justice would be better served by admitting the 2022 Will as part of the evidence.

22.5. And since the Mother’s testamentary wishes were matters which Mr Lin indicated that he would like to explore by way of cross examination, it would only be fair that the 2024 Will, which essentially removed Yuk Ling as one of the beneficiaries of the Property, should also form part of the evidence.

23.As a matter of costs, I ordered the Mother to pay Yuk Ling the costs of and occasioned by her belated application, 2/3 of which shall be taxed on indemnity basis with a certificate for 2 counsel, and 1/3 of which shall be taxed on party and party basis with a certificate for 1 counsel. The Mother must pay for the indulgence given by the court to allow the admission of new evidence at this late stage. It is also trite that a party raising an unsuccessful application late should normally expect to be visited by indemnity costs: Li Xiao Yun & Anr v China Gas Holdings Ltd CACV 38/2013 (Lam JA, Bharwaney & McWalters JJ; 11 March 2013) at §18.

C. THE LEGAL PRINCIPLES

24.The court is frequently asked to adjudicate on claims involving common intention constructive trusts and/or resulting trusts, in the context of a dispute between family members over land. The applicable legal principles are thus trite. I adopt the summary of the relevant case law in counsel’s submissions, and set the same out below.

25.The Court of Appeal in Kwan Kwai Lin v Yeung On Ki [2025] 2 HKLRD 170 held that a common intention constructive trust may arise as follows:-

“32. … In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, at §§2.3 and 2.4, Cheung JA summarized the position as follows:

“[2.3] The first situation where common intention constructive trust may arise is where at any time prior to acquisition, or exceptionally at some later date, there is an agreement, arrangement or understanding reached between the parties on how the property is to be held beneficially.

[2.4] The second situation is where there is no evidence to support a finding of an agreement or arrangement on the beneficial ownership of the property and the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention on the beneficial ownership of the property and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the party who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust…”

33. In respect of express common intention constructive trust, as pointed out by Lord Bridge of Harwich in Lloyds Bank Plc v Rosset [1991] 1 AC 107 (at 132), “[t]he finding of an agreement or arrangement to share in this sense can only, I think, be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.”

26.A summary as to how one can establish a common intention constructive trust was given in Leung Hang Lin & Anor v Lam Mei Yung [2019] HKCFI 2819 (Deputy Judge Alexander Stock, SC; 22 November 2019) at §§8-9:-

“(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[4] §44; Mo Ying[5] §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[6] §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.

(6) As Mr Liu submitted, the said principles apply in the same manner to properties acquired under the Home Ownership Scheme: see Cheuk Shu Yin v Yip So Wan (2012) 15 HKCFAR 1. Mr Chung made no contrary submission.”

27.With respect to establishing a resulting trust for a property, Ms Wong SC submits it can arise when there was an absence of intention on the part of the person providing the purchase price of the property to benefit the recipient, or arises from the presumed intention of the parties. A presumption arises by operation of law that the person providing the purchase price did not intend to make a gift to the recipient. The property is held on trust by the latter for the former; or in the case where both parties made contribution to the purchase price but the property is held by the recipient alone, the property is held on trust by the recipient for both parties in shares proportionate to their contributions: Tang Hin Fai Chris & Anr v Tang Hin Lung & Ors [2023] HKCFI 2637 (Deputy Judge Jenkin Suen, SC; 19 October 2023); Tam Sui Lim William v Fung Ho [2023] HKCFI 1583 (Ng J; 19 June 2023).

28.In his opening, Mr Lin submits that the present case concern an express trust rather than a trust arising out of the operation of law. With respect, I cannot agree with this general observation. There is no issue as to the existence of an express trust per se, because the Mother also relies on the circumstances at the time of the acquisition of the Property and thereafter to invite this court to find that there was a common intention constructive trust in her favour. The imposition of such a constructive trust (or a resulting trust based on the payment of purchase price) arises as an operation of law in response to what justice and fairness demands in the circumstances.

29.Ms Wong SC reminds me the approach the court should take when material events go back a long time, quoting Au Yeung Pui Chun v Cheng Wing Sang [2021] HKCFI 463 (G Lam J; 5 March 2021) at §§23-25:-

“23. The contentious allegations and the seminal events go back a very long time indeed. The initial purchase of the Property took place over 45 years ago; the assignment to the defendant, Lydia and Queennie 21 years ago; and the October 2008 Agreement 12 years ago. In the light of the long lapse of time, I have had regard to the oft-cited observations of Leggett J in Gestmin SGPS SA v Credit Suisse (UK) Ltd & another [2013] EWHC 3560 (Comm) at §§15-22, which I shall not set out here, though I bear in mind that they do not lay down any general principle for the assessment of evidence: see Kogan v Martin & others [2019] EWCA Civ 1645, §88. In a similar vein, in Watson v Foxman & others (1995) 49 NSWLR 315 at 319, McClelland CJ in Eq said:

“ Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

Although his Honour was addressing evidence of the content of conversations, his observations seem to me to be of general application.

24. I have also borne in mind the guidance given by Stock JA in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439 at §135:

“ … I do not say that an assessment of the character of a witness plays no part in the fact finding process, but it is a task that may sometimes be elusive even to the best trained eye and ear, and I would venture to suggest that the truth, in so far as one is able to reach it or, as is sometimes the case, to reach a version of it that is more likely to be correct than not, can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known. … This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent probabilities in their historical context. That documentation, as well as conflicts within the evidence, inherent probabilities, and a study of how matters were originally pleaded and asserted in witness statements — these are the factors which in a trial such as this, so long removed from the time of the events in question, were likely to be of particular use in assessing the facts …”

25. The only safe course in a case such as the present, it seems to me, is to steer oneself with primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court taking into account all the circumstances including the motivations and characters of the people involved and the relationship between them.”

C2. The illegality defence

30.It is Yuk Ling’s defence that any common intention allegedly existed between the Mother and Chi Keung is unenforceable, because it was tainted with illegality.

31.In weighing the merits of the defence on illegality, I think one should start with the Court of Final Appeal’s judgment in Cheuk Shu Yin v Yip So Wan (2012) 15 HKCFAR 344.

32.The 2 appeals before the Court of Final Appeal shared similar facts. A flat was purchased and registered in the name of the defendants upon the successful application under the HOS. However, the plaintiffs argued that there was a family arrangement by which they paid the purchase price (either in the form of a down payment, or by repaying the mortgage installments). The plaintiffs argued that they were the beneficial owners of the HOS flat because a common intention constructive trust arose upon the family arrangement. The court was asked whether the imposition of a common intention constructive trust would infringe the restriction on alienation imposed by s.17B of the Housing Ordinance (Cap.283). I hasten to add that the Court of Final Appeal was not asked the wider and more general question, viz whether the common intention between family members should remain unenforceable because it was tainted with illegality.

33.The Court of Final Appeal unanimously decided that the imposition of a common intention constructive trust did not amount to alienation restricted by statute. Chan PJ[7] held that the HOS clearly anticipated that an applicant for an HOS flat and his/her family members who would be occupying the flat with him/her may have to pool their financial resources together in paying for the purchase price or making repayments towards any mortgage loan. The pooling of family resources was said to be clearly different from any subsequent re-sale or transfer or parting with possession of the flat by the owner after acquisition without the consent of the HA. The restriction against alienation was to prevent an owner from taking advantage of the discounted sale price, and making a quick profit by unauthorized re-sale; it was not intended to frustrate or outlaw genuine family arrangements of pooling financial resources of family members together to acquire an HOS flat. Thus, properly construed, “alienation” under s.17B did not include the imposition of a constructive or resulting trust by way of operation of law.

34.In my view, it is also important to consider Lord Hoffmann NPJ’s judgment with respect to his Lordship’s reasons differing from the Court of Appeal’s judgment. In §29, his Lordship quoted the Court of Appeal’s judgment in which it was raised hypothetically that an applicant for an HOS flat might reach an agreement with a third party that the applicant would hold the beneficial interest in the flat for the latter. His Lordship explained in §30 why he disagreed with the Court of Appeal:-

“… For my part, I do not see how the creation of equitable interests in the flat can give rise to abuses which s.17B was intended to prevent. What can the owner of an equitable interest do to enforce his rights? In the ordinary way and apart from statutory restrictions, a person for whom property is held on trust absolutely can terminate the trust and require the trustee to convey him the legal estate. In the case of a HOS flat, however, this remedy is not open to him. An assignment of the legal estate would be unlawful under s.17B … Until the expiration of the restriction period, all the equitable owner’s normal means of realizing the value of his interest are barred. So there is nothing which he can do which would interfere with the occupation of the flat by the eligible purchasers to whom it was sold.”

35.I also note that his Lordship said in §36 that the outcome of the appeal would not have been different even if there was an express declaration of trust rather than a resulting or constructive trust.

36.I find it important to recognize that the Court of Final Appeal stressed that s.17B prohibits an attempt for a quick flip of an HOS flat for profit, but not an attempt to climb up the ownership ladder with help from other family members.

37.Mr Lin submits that the present case is distinguishable from Cheuk Shu Yin. He invites me to come to a conclusion similar to that reached in Leung Ching Wai v Li Yun Lim, the sole executor of the estate of Ng Bo Chuen, deceased & Anr [2023] HKDC 459 (Deputy Judge Frances Lok; 18 July 2023).

38.In Leung Ching Wai, the plaintiff claimed to be the beneficiary of a constructive or resulting trust which ought to be imposed on the beneficial interest of an HOS flat, on the basis that she repaid the mortgage loan taken out to acquire the flat. She was the former girlfriend of the 2^nd defendant. The legal owner of the HOS flat was the 1^st defendant, the 2^nd defendant’s paternal grandmother. After trial, the court held that the 2^nd defendant (who became the legal owner upon the 1^st defendant’s demise) held 28% of the interest in the flat in favour of the plaintiff on a common intention constructive trust. However, it was further held that the plaintiff’s claim was defeated by illegality, in that there was an abuse of public housing resources. The Court of Final Appeal’s judgment in Cheuk Shu Yin was distinguished on the basis that the plaintiff was not a registered tenant of the original public housing unit, which was surrendered on the purchase of the flat. Further, the common intention in Leung Ching Wai was that the registered owner would not own or reside in the flat at all, which was said to be different from the situation envisaged in Cheuk Shu Yin, where family members were said to have pooled resources to enable an eligible applicant to purchase an HOS flat and reside there. The illegality was described as the 1^st defendant misusing her eligibility under the HOS to benefit illegal third parties, namely the plaintiff.

39.I should highlight that the court in Leung Ching Wai ultimately allowed the plaintiff’s claim on the basis of resulting trust. The court indicated that the plaintiff’s claim in unjust enrichment would also succeed if it was necessary to adjudicate upon it. It is however not clear on the face of the judgment whether the plaintiff was obligated, at the time of the purchase of the flat, to pay back the mortgage loan taken out by the 1^st defendant on the basis that she acted as a guarantor; if not, it is difficult to see how a resulting trust (rather than a common intention constructive trust) might arise on the plaintiff’s subsequent agreement to repay the mortgage installments: Chan Chun Ni v Chan Ngai Keung [2022] HKCFI 3031 (Au-Yeung J; 30 September 2022) at §30.

40.I now turn to consider the factual disputes separating the parties.

D. ANALYSIS

D1. Evaluation of the evidence

41.In the present case, the Mother and Chi Keung on one hand, and Yuk Ling on the other have given different accounts as to how the Property became acquired by Chi Keung first, and then transferred to Yuk Ling by the Deed of Gift.

42.In my judgment, logic dictates that I should first decide whether Yuk Ling’s evidence should be accepted on a balance of probabilities. If I so accept her evidence, she must be the legal and beneficial owner of the Property, and her case must prevail.

43.If I reject Yuk Ling’s evidence, it remains for me to decide whether the Mother successfully shows, on a balance of probabilities, any common intention existed recognizing her beneficial ownership. As Mr Lin submitted, the Mother needs to prove such common intention to have existed (i) between her and Chi Keung at the time when Chi Keung acquired the Property in June 1985; and (ii) between Chi Keung and Yuk Ling when the Deed of Gift was executed in December 1989.

44.If I find that the Mother fails to prove the existence of such common intention, then Yuk Ling’s case should still prevail because equity follows the law.

45.Whilst the present case is similar with other cases involving family arrangement, in that contemporaneous documentation directly showing the existence (or otherwise) of any common intention is scanty, I think it is still correct to start the analysis from the limited documents.

46.I have been shown the application form dated 29 October 1984, submitted to the HA to apply for an HOS flat under Phase VIB. I think it is important to highlight the following:-

46.1. The form was stated to be used by tenants of the HA (and of the Housing Society) only.

46.2. Chi Keung was stated to be the applicant. He reported his monthly income to be $5,600.00. Yuk Ling and another sibling (probably Yuk Yin or Yuk Sim) were named as further family members. Yuk Ling did not report any income.

46.3. The applicant’s home address was stated to be the Block 23 unit. But the Block 16 unit was added next to it with an apparently different handwriting. At the bottom left hand corner of the 2^nd page of the form, it was further written that:-

“Note: Tenant is willing to surrender Flat 418, Block 16 if the application is successful & the Aps would remain at flat 11090, Block 23.”

46.4. On the 2^nd page of the form, the eligibility criteria were stated to be as follows:-

“Housing Authority … tenants are eligible, irrespective of their income, provided that:

(i) they surrender their existing tenancies on acquiring a flat;

(ii) their family size is not less than TWO persons;

(iii) the applicant is at least 21 years old; and

(iv) the applicant and at least one member of his family are permanent residents and have lived in Hong Kong for the previous seven years.”

46.5. The applicant made, inter alia, the following declaration when submitting the form to the HA:-

“1. All the particulars given in this form are true and correct in all respects and I have not withheld any information nor have provided any misleading information required in this form.

…

5. I undertake to surrender vacant possession of my present premises to the Housing Authority or Housing Society upon acquiring a flat under the Private Sector Participation Scheme.

…

7. I understand that all persons listed in Part I of this Application Form will live together in the Private Sector Participation Scheme flat purchased under the Scheme.

8. I also understand that any person who makes any statement to the Housing Authority or provides any information in respect of any matter relating to the purchase of a flat which he knows to be false or misleading shall be guilty of an offence under Section 26(2) of the Housing Ordinance and shall be liable on conviction to a fine of $200,000 and to imprisonment for 1 year …”

47.Next, the Mother has obtained the transaction records of her bank account with HSB for the period between 1 July 1987 and 31 December 1991. Since September 1988, time deposits matured with the principal and interest paid into the account, followed by withdrawals of new principal for new ones. There were further deposits of sums from time to time as well. The principal of the time deposits grew from $50,000.00[8] in September 1988 to $200,000.00 in December 1991.

48.In my judgment, the above documents are more consistent with the Mother’s evidence rather than with Yuk Ling’s evidence.

49.First, whilst I accept that the transaction record of the Mother’s HSB account did not exactly go back to 1985, I think it does not support Yuk Ling’s evidence that the Mother had meagre savings prior to the purchase of the Property. I have not heard evidence suggesting that the Mother only became much more capable to save up after the acquisition of the Property, either because she found a new way to derive income, or the children paid her much more every month. Therefore, the fact that the Mother could put aside $50,000.00 for time deposit in 1988, which appears to me to be not an insignificant sum back then, shows that she must have been able to accumulate savings from whatever income the family derived for quite some years.

50.Secondly, the fact that the Mother maintained a bank account with HSB is also at odds with Yuk Ling’s evidence that the Father was in control of the family finance. Yuk Ling does not suggest that despite the Mother being the account owner, it was actually operated by the Father solely.

51.Thirdly, the application form does not conform with Yuk Ling’s understanding as to how the application was made. The form clearly indicates that the applicant was eligible to apply for an HOS flat because the public housing unit he was then living in would have to be surrendered on a successful application. There is no evidence to show how Yuk Ling’s understanding[9] that the Father did not need to surrender the Block 16 unit to participate in the HOS could have been correct. I also find her evidence perplexing as to how then the Father allegedly decided that, afterall, her name and Chi Keung’s name should be removed from the public housing tenancy to exchange for the eligibility to apply for an HOS flat.

52.Apart from the above, I also accept Ms Wong SC’s submissions that Yuk Ling’s evidence was unsatisfactory.

53.It is Yuk Ling’s case that she maintained good relationship with the Mother prior to Chi Keung’s undue influence over the Mother. She seeks corroboration by adducing some photos she allegedly took with the Mother. For example, she referred to a photo of the Mother and stated that it was taken whilst having afternoon tea with her[10]. But this was shown by Chi Keung to be a photo taken by Yuk Sim having afternoon tea with the Mother in February 2016; Yuk Sim shared it in the WhatsApp group with other family members[11]. Despite Chi Keung showing that the photo was shared by Yuk Sim, Yuk Ling did not put forward any explanation in any of her witness statements. It was only under cross examination that she explained she was also at the afternoon tea when Yuk Sim took the photo. I agree with Ms Wong SC that the fact was that Yuk Ling just used Yuk Sim’s photo as if it was her own, in an attempt to paint a rosier picture of her relationship with the Mother. I agree that this suggests that Yuk Ling’s evidence tends to be unreliable.

54.Another photo adduced by Yuk Ling showed the Mother sat on a hospital bed; she stated that it was taken after the Mother suffered a stroke in 2018[12]. When she was cross examined on it, Yuk Ling said the photo was taken at the United Christian Hospital. But again, the photo was actually shared by Chi Keung’s daughter in the family WhatsApp group on 2 January 2019[13], and the Mother was hospitalized at the Pamela Youde Nethersole Eastern Hospital. I refuse to accept Yuk Ling’s evidence under cross examination that Chi Keung’s daughter was lying, and she was actually present at the hospital; this remains to be her bare assertion first raised under cross examination and not before. According to the WhatsApp message sent by Chi Keung’s wife on 30 December 2018 just after the stroke happened, the Mother was sent to the Eastern Hospital[14]. In my view, the hospital the Mother went to should have left a vivid memory to the family members if they visited her at the hospital, or at least cared to pay attention to the Mother’s condition. This was such a major event within the family that memory could not have easily faded or mixed up. In my judgment, Yuk Ling’s insistence that the Mother was at United Christian Hospital shows that her case tends to be less than truthful.

55.Further, it is my judgment that Yuk Ling’s evidence as to how the Father agreed that she should be transferred the Property is inconsistent. It is her case that the Father was not keen to take up the Property from Chi Keung when Chi Keung allegedly raised the request in 1989, because the Father already retired by then[15]. This was at odds with the fact that the Father only received his lump sum pension in 1991. Moreover, under cross examination, Yuk Ling claimed that when Chi Keung asked her to shoulder the mortgage repayment of the Property in 1989, because the Father would retire in 2 years (and thus would not be able to do so). This again contradicted her own evidence that the Father actually retired by then.

56.Yuk Ling’s evidence is also inconsistent as to how the Father managed to lend around $130,000.00 to Chi Keung to acquire the Property, on top of the mortgage loan. It is her case that the Father obtained the money out of his savings. However, when she was cross examined as to the circumstances surrounding the purchase, she claimed that the Father was not happy about buying the Property, because it was difficult for him to get together $130,000.00; Chi Keung and the Father had argument over this. She further clarified that the Father had to seek advance on his salary from his company to come up with all the money. I do not accept Yuk Ling’s explanation that she did not manage to put these details in her witness statements because these happened 3 decades ago. As stated above, she managed to recall in her witness statement how the Father complained about Chi Keung’s disrespectful behaviour of choosing the Property without the parents’ involvement. It is incredible that she did not include the argument Chi Keung and the Father had about the difficulty of finding $130,000.00 to purchase the Property, if such argument indeed happened.

57.Having considered Yuk Ling’s evidence in the round, I refuse to accept her evidence to be truthful and accurate.

58.It is then necessary for me to consider whether the Mother’s evidence has shown the existence of a common intention about her beneficial ownership of the Property.

59.Mr Lin submits that Yuk Ling’s illegality defence, apart from acting as a standalone defence, is also relevant to show that it would be less likely for the common intention alleged by the Mother to exist. This is because there should be a lesser tendency for the Mother and Chi Keung to do something which was illegal.

60.I do not agree with such submissions on the assumption that the common intention alleged by the Mother was indeed tainted by illegality. In my judgment, when local families decide how they may be able to pool together resources to acquire a property, they seldom have in the forefront of their minds as to whether their arrangement would be illegal; this is particularly so in the context of ownership of HOS flats. This is well illustrated by Cheuk Shu Yin. I find the present case falling into the same situation. After the conclusion of the trial in the present case, the Court of Appeal handed down its judgment in Pang Kam Chuen, the sole executory of the estate of Pang Yeuk Chi, deceased v Pang Kam Bor [2025] HKCA 895 (Chu VP, Cheung & Au JJA; 30 September 2025). The Court of Appeal found in favour of the plaintiff (as the executor of his father’s will) and decided that the defendant held the property in question for the benefit of their father by way of common intention constructive trust. The trial judge, when considering the credibility of the defendant’s claim that the property was a gift from his father, held it was inherently improbable for the father to retain the beneficial interest, because such arrangement might amount to a criminal conspiracy to defraud the mortgagee bank. Cheung JA at §78 held that the trial judge failed to consider that it had never crossed the minds of the father and the defendant that such agreement might potentially be a criminal conspiracy. His Lordship further pointed out that local case law was full of similar cases involving similar arrangements; committing a crime or not would be the last thing on the minds of the family members entering into such arrangements. It was concluded that the trial judge plainly took irrelevant matters into account[16].

61.I have given anxious thoughts as to whether, and if so the extent to which I can rely on the Mother’s evidence to find any common intention. The Mother’s advanced age has certainly impaired her ability to accurately recall past events. This is well demonstrated by Mr Lin’s cross examination. At times, the Mother gave answers which were contradictory to her witness statements or other documents, and she contradicted herself at different parts of the cross examination. The quality of her evidence is particularly important in a case like the present, as the court has to largely rely on the credibility of the witnesses to find the existence of any common intention or otherwise.

62.Ultimately, I have come to the conclusion that the evidence given by the Mother was generally truthful, subject to the particular findings of fact I shall make below. My reasoning is as follows:-

62.1. The description given by the Mother and Chi Keung on how the Mother managed the finance of the family has a ring of truth; in the 1970s and 1980s, it was common for a wife to stay home and manage the family affairs when the husband focused on his work, particularly when the wife did not have the benefit of much education. Whilst the wife might not necessarily become the matriarch in the family, she would be the one dealing with the family expenses.

62.2. I find that the Mother’s case is naturally more attractive than Yuk Ling’s case, because the Mother and Chi Keung are giving evidence on their own acts and intentions. On the other hand, Yuk Ling’s case hinges on what she was told or what she perceived to be other people’s acts and intentions.

62.3. I do not find it improbable that Chi Keung was asked to hold the Property as a matter of family arrangement. As Cheuk Shu Yin stated, this was not uncommon in local families. In 1984, Yuk Ying already moved out and got married; Chi Keung was the only child in the family who reached majority (which was still 21 years old back then). Chi Keung was the natural choice.

62.4. I think that the WhatsApp messages sent out by the siblings lend support to the Mother’s case:-

62.4.1. Chi Cheung sent out a message on 17 August 2021 at 22:48:35[17] that the Mother earlier that day had told him Yuk Ling did not pay a cent for the Property. He claimed that the downpayment of a hundred odd thousand was all paid out of the expenses of the parents; all siblings knew that the Property belonged to the parents. In my view, Chi Cheung’s message was probative as to his reaction towards what the Mother said. In view of the Mother’s assertion that the Property was paid by the parents rather than Yuk Ling, he did not find it improbable or untruthful. This tends to show that the Mother’s case was indeed truthful.

62.4.2. Yuk Sim sent out a message on 20 August 2021 at 00:33:30[18] that the Mother had told her that the parents paid for the downpayment, the monthly mortgage installments, and the redemption money for the 2^nd Charge; Yuk Ling did not pay a cent on it. Again, I find the message probative in that Yuk Sim did not find the Mother’s claim improbable or untruthful.

63.Despite accepting her evidence as generally truthful, I reject the Mother’s evidence that she was gifted by the Father whatever that was left from his salary after defraying the family expenses, such that she was the sole owner of any savings she was able to accumulate. In my judgment, both the Father and the Mother considered any savings to be theirs jointly:-

63.1. Joint ownership on any savings accords with common sense in a family setting. There is no evidence adduced by the Mother to suggest that she and her husband managed their finances differently from other ordinary local families.

63.2. The Mother told me at trial that she kept her savings in a box under the bed, or in a drawer. When I asked how she viewed as to the ownership of those savings, she spontaneously answered that they belonged to her and her husband jointly. I find this particular answer credible. On the other hand, her evidence in her witness statement that the Father gifted her the remainder of his salary as artificial.

63.3. As I set out above, the WhatsApp messages sent by Chi Cheung and Yuk Sim are probative to show that they did not find the parents using the joint savings to acquire the Property improbable or untruthful. This tends to support an inference that all family members always considered the savings to be jointly owned by the Father and the Mother.

64.I am also unable to accept that there were specific discussions between the family members when the Property was acquired confirming Chi Keung was to hold it for the Mother; nor was there any specific discussion between Chi Keung and Yuk Ling when the Deed of Gift was to be executed, expressly agreeing that Yuk Ling would continue to hold the Property for the Mother. The evidence of the Mother and Chi Keung on the details of such alleged discussions appears to me to be imprecise and lacking in particulars. I accept Mr Lin’s submissions that, according to Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 at §38, the law requires any express discussion supporting a common intention pleaded with particularity. In my judgment, the Mother has not met the standard imposed by case law.

65.As a matter of completeness, I find Yuk Ling’s criticisms on the Mother’s case unsubstantiated:-

65.1. HCA 32/2020 was struck out with costs by Deputy High Court Judge Winnie Tsui (as Winnie Tsui J then was) on 10 June 2021 on the basis that the generally indorsed writ was defective, and the amendment application by Yuk Ling’s father-in-law and her husband, if allowed, would deprive the defendants, including Chi Keung, the benefit of the limitation defence. If anything, it would be more likely Yuk Ling herself, rather than Chi Keung, to continue to hold grudges since then, as she and her husband could no longer go after Chi Keung for the $5.75 million they allegedly lost. It seems to me that Yuk Ling’s phone call to the Mother in August 2021 not entirely coincidental in terms of timing. I do not find it convincing to suggest that Chi Keung procured the Mother to commence the present case to seek revenge. The tone of the WhatsApp messages Chi Keung sent in the family WhatsApp group do not suggest otherwise.

65.2. I do not consider it problematic that the Mother only asserted her beneficial ownership by 2022. I accept that the Mother felt things turned for the worse when she received Yuk Ling’s phone call in August 2021, saying that she should go find alternative accommodation. Her evidence is consistent with Chi Cheung’s WhatsApp message on 17 August 2021. I do not accept Yuk Ling’s explanation as to what she actually said to the Mother.

65.3. I do not accept Mr Lin’s submissions that adverse inference should be drawn on the Mother’s decision not to call Chi Cheung to give evidence at trial. I agree with Ms Wong SC that there is no basis for such an adverse inference to be drawn, because Chi Cheung’s evidence is also covered and corroborated by that of the Mother and Chi Keung. It is not possible to infer that Chi Cheung’s absence indicates that the Mother has something to hide with respect to the evidence.

D2. Existence of common intention

66.On the basis of the conduct of the family members since the acquisition of the Property, together with (i) I find the Mother’s case generally truthful; and (ii) I accept that the parents’ money was used to acquire the Property and pay the mortgage installments, I find that they support an inference that the family members understood the Property was acquired in Chi Keung’s name for the benefit of the parents. The same common intention continued to exist between Chi Keung and Yuk Ling when the Deed of Gift was executed.

67.I further find that in relation to the respective entitlement of the Father and the Mother, the common intention amongst the family members did not really see any differentiation between the parents. I consider that this is also borne out by Mother’s evidence that the Father could use his salary in the Mother’s possession as he pleased; and the Mother could use the money as she would like as well. Since the parents’ access to the money was indistinguishable as a matter of extent, it is right that they should be considered as equal joint owners of the money, and hence equal owners of the Property.

68.In my judgment, the parents obviously relied on such common intention, as they continued to use their money to repay the mortgage installments whilst being content to have Chi Keung or Yuk Ling holding the Property as the legal owner. For the sake of clarity, I find that the 2^nd Charge was discharged using the Father’s money in the form of his lump sum pension, rather than first lending it to Yuk Ling for her to redeem the mortgage as if using her own resources.

D3. Analysis on the illegality defence

69.In my judgment, Yuk Ling’s defence on illegality must be rejected. With respect, I think Leung Ching Wai wrongly distinguished Cheuk Shu Yin, and the reasoning therein should not be adopted.

70.First, I do not think it right to say that public policy demands the rejection of a common intention constructive trust regarding the acquisition of an HOS flat. The public policy must be ascertained by the interpretation of the Housing Ordinance itself. As Lord Hoffmann held in Cheuk Shu Yin, if it was thought that a person originally ineligible to apply for an HOS flat should not benefit from such subsidy by way of a family arrangement, the statute could have been specifically amended to outlaw it. In fact, the legislature has not done so despite numerous amendments to the Housing Ordinance; as referred to by Cheuk Shu Yin at §23(b), the HA was similarly unfazed by the prospect of a segregation of legal and beneficial interests. Based on Lord Hoffmann’s judgment as quoted above, the fact that Chi Keung never resided in the Property since acquisition similarly did not make any common intention constructive trust (if existed at all) an alienation prohibited under s.17B. In my judgment, it is wrong to refuse to impose a common intention constructive trust on the wider but more nebulous notion that public housing resources are abused in the present case. I think the outcome of Cheuk Shu Yin would have been quite different if the Court of Final Appeal were of the view that the imposition of a common intention constructive trust was against public policy even though it was compliant with s.17B. The actual outcome of Cheuk Shu Yin, and the reasoning supporting it, shows that the recognition of a separate beneficial interest for an HOS flat should not be regarded to be against public policy (and hence illegal). I think one should not lose sight, when considering whether public policy is infringed for cases like the present, of the fact that a successful white form applicant under the HOS usually loses eligibility to apply for any further subsidized housing; similarly, a successful green form applicant has to give up his public housing unit on top of losing eligibility to apply for further subsidized housing.

71.Secondly, Cheuk Shu Yin recognized that domestic financial arrangement to enable home ownership is commonly seen in Hong Kong. I would suggest that mortgagee banks rarely complain that such domestic arrangement bring them prejudice in relation to the mortgage[19]. Again, on the facts of Cheuk Shu Yin, there must have been representations made to the mortgagee banks that the legal owners held the HOS flats outright, as the fact referred to subsequent payments of mortgage installments. If the Court of Final Appeal thought that such representations were problematic, it would have decided the case differently. Further, it is my judgment that there is no utility in preventing local families from putting their domestic financial arrangement in place by insisting that they ought not misrepresent the bank on the beneficial ownership in obtaining a mortgage.

72.For the present case, I do not accept Mr Lin’s submissions that the Mother should be denied relief because she conspired with Chi Keung to obtain pecuniary advantage (in the form of government subsidy) in acquiring the Property. On the basis of my acceptance of the Mother’s evidence, I do not think it is shown that she was ineligible to apply for an HOS flat. All she was told by the HA officer was that she could not be the applicant. There is no evidence to prove that the HA officer said so because the Mother was indeed ineligible; there might well be administrative reasons for the HA officer to say that. All the Mother and Chi Keung did was to act on the advice of the HA’s officer. I think the element of deception is clearly lacking.

73.I similarly find that there was no conspiracy between the Mother and Chi Keung to defraud the HA. On the face of the application form itself, there was no declaration that Chi Keung was to be the real owner. And again, the Mother could not have intended to defraud the HA by acting on the advice given by the HA officer.

74.Even if one may argue that Chi Keung wrongly stated to the mortgagee bank that he was the beneficial owner of the Property, I do not think the Mother’s claim for the beneficial interest in the Property should be denied as a matter of public policy. Similar to the sentiments expressed by Cheung JA in Pang Kam Chuen, it is difficult to imagine that the Mother and Chi Keung intentionally conspired to misrepresent the bank regarding the beneficial ownership of the Property to enable them to obtain a mortgage.

D4. The defence on estoppel

75.I think Yuk Ling’s defence on estoppel has no merit.

76.In short:-

76.1. Based on the factual findings, Yuk Ling knew, at the time when the Deed of Gift was executed, that Chi Keung was not the beneficial owner of the Property. She cannot assert any estoppel based on the wordings of the Deed of Gift.

76.2. In any event, Chi Keung could not have given Yuk Ling the beneficial ownership of the Property, because of the nemo dat rule.

D5. The proper relief to be granted

77.Since the common intention was for Chi Keung or Yuk Ling to hold the Property for both the Father and the Mother, this court has to consider what ought to be the appropriate relief. I raised with counsel at the close of evidence as to whether this court can give partial relief in the event that I find that the common intention was to benefit both parents but not just the Mother. Counsel then made submissions at closing as to whether, and if so to what extent, I can give relief based on the factual findings.

78.Ms Wong SC submits that I am entitled to grant relief recognizing the common intention that Yuk Ling holds the Property for the Father and the Mother jointly, based on the following:-

78.1. There is a general principle of law that “the greater includes the lesser”. A party may rely on a less ambitious case at trial than the one pleaded: Waddington Ltd v Chan Chun Hoo Thomas & Ors HCA 3291/2003 (Recorder P Fung, SC; 18 December 2013) at §81. For example, in Chen Kam Nga v Lee Ho Yin [2021] HKCFI 1352 (Au-Yeung J; 12 May 2021)[20], the trial judge found that neither party was completely honest and reliable. Whilst the plaintiff asked for a declaration that she was the sole legal and beneficial owner by way of a common intention constructive trust and/or a resulting trust, the court awarded a partial interest to her based on the factual findings.

78.2. It is trite that a party only need to plead material facts in the pleadings; it is open to the court to determine what ought to be the legal consequences of the facts found to be true. As long as there is no radical departure from the pleaded case to the extent that the relief is new, separate and distinct, the court may grant relief which is to some extent a variation or modification of the winner’s pleaded case.

78.3. Ultimately, the court is to decide whether granting a particular relief is just in a particular case, in that the losing party is not prejudiced by being asked to meet a case by surprise, or that it is disabled from having the full opportunity to deal with such a case at trial.

79.I agree with Ms Wong SC’s submissions. In the present case, I do not accept that Yuk Ling has suffered any prejudice at trial when she was told to meet a case that the Mother was the sole beneficial owner of the Property, but I now conclude that both the Father and the Mother should be the beneficial owners. The parties’ respective cases are diametrically opposite to each other. Since Yuk Ling has put forward a positive case as to how she has been the rightful owner of the Property, I find that the conduct of her defence would not be materially different if she were told that the Mother also argued in the alternative that both parents should be recognized as the beneficial owners – she would still seek to invite this court to find that aspect of the Mother’s case as incredible.

80.I think this court should declare that both the Father and the Mother have been the beneficial owners of the Property since its acquisition from the HA in 1985. In my judgment, the common intention did not envisage how the beneficial ownership should be vested on the death of one of the parents. I think it is right to mirror the presumption under s.9 of the Conveyancing and Property Ordinance (Cap.219), and hold that the parents have been beneficial owners of the Property as tenants-in-common in equal shares. On the Father’s passing, his half share should have been passed to the beneficiaries of his estate according to the intestacy rules.

D6. Answers to the agreed issues

81.I answer the agreed issues as follows:-

Issue 1: There was a common intention that Chi Keung, and subsequently Yuk Ling, should hold the Property for both the Father and the Mother.

Issue 2: The parents acted in their detriment by relying on the common intention, in that they paid for the acquisition of the Property and the subsequently mortgage installments despite they were not the registered owners.

Issue 3: See answer to issue 2 above.

Issue 4: The common intention is enforceable, and is not defeated by any illegality and/or estoppel.

Issue 5: There ought to be a common intention constructive trust in favour of the Father and the Mother as tenants-in-common in equal shares with respect to the beneficial ownership of the Property. Further and/or in the alternative, there ought to be a resulting trust in their favour as tenants-in-common in equal shares with respect to the beneficial ownership of the Property.

Issue 6: There is no need for a separate answer for this issue.

E. CONCLUSION

82.I make a declaration that Yuk Ling has been holding the Property on common intention constructive trust in favour of the Father and the Mother as tenants-in-common in equal shares.

83.I do not think it is right for me to grant any vesting order as requested by the Mother at this stage. As far as the land search shows, the HA’s consent to allow the Property to be sold in the open market has not been obtained. This may impact whether the legal ownership of the Property can simply be parted by way of a vesting order. This may similarly apply to the Mother’s request for an order compelling Yuk Ling to execute an assignment to transfer the Property to her.

84.In the circumstances, on top of the declaration, I will just give liberty to the parties to apply for further directions in light of this Judgment.

85.Yuk Ling’s counterclaim is dismissed.

86.I order that Yuk Ling shall pay the costs of the Mother and Chi Keung for both the main action and the counterclaim (including all costs reserved, but excluding any costs order I separately granted in the course of the trial), with certificate for 1 counsel. Costs shall be taxed on the High Court scale prior to the transfer to this court, and on the District Court scale thereafter if not agreed. Notwithstanding the assistance leading counsel on both sides have provided to this court, I do not see the complexity of the present case requiring the engagement of 2 counsel. Even though the Mother does not manage to obtain the entire beneficial interest in the Property, she still had to commence the present case to have her partial beneficial interest recognized. The evidence and the conduct of the trial is no different despite her success only being partial. Hence, I do not think it is right to award her only part of the costs.

87.The above costs order is nisi. It shall be made absolute unless there is any application for variation within 14 days of this Judgment.

F. POSTSCRIPT

88.On the first day of trial, I raised with counsel as to the source of my jurisdiction: whether HCA 615/2022 was transferred to this court based on s.43 of the District Court Ordinance (Cap.336) (“the DCO”), because the present case falls within the jurisdiction of this court; or s.44, because parties consented to the transfer irrespective of jurisdiction.

89.The basis of the transfer does not appear to have been clearly spelt out. In any event, I am satisfied that this court has the jurisdiction:-

89.1. In the demand for rates and government rent issued by the Rating and Valuation Department on 28 July 2022, the annual rateable value of the Property was assessed to be $143,520.00. I take judicial notice that there has not been substantial increases in the local rent from July 2022, to the extent that the annual rateable value of the Property may now exceed $320,000.00. Hence, this court certainly enjoys jurisdiction to hear the present case pursuant to ss.36(b) and 37(4) of the DCO;

89.2. By consent, the parties adduced online valuation of the Property done on 4 June 2025, which shows its value to be below $7 million. I am hence satisfied that this court does have the jurisdiction in equity to try the present case pursuant to ss.37(1)(b) & (2)(b) of the DCO. Insofar as it is necessary, it is my view that I have the jurisdiction to preside over the trial and give judgment thereafter, as long as the value of the Property falls below the jurisdictional limit imposed by s.37(2) at the commencement of the trial.

90.It remains for me to thank all counsel for their assistance.

Ms Maggie Wong, SC leading Mr Brian Lee, instructed by T H Koo & Associates, for the plaintiff (by original action) and the defendants (by counterclaim)

Mr Kenny Lin and Ms Joanne Szeto, instructed by H Y Leung & Co LLP, for the defendant (by original action) and the plaintiff (by counterclaim)