Tsang Kam Chuen (曾金泉), The Administrator of the Estate of Leung Kin (梁堅), Deceased v. Kwok Ka Ping and Another

DCMP 3197/2019

[2026] HKDC 126

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 3197 OF 2019

--------------------------------

--------------------------------

(by original action)

--------------------------------

(by counterclaim)

--------------------

------------------------------------

JUDGMENT

------------------------------------

A.  Introduction

1.This action is concerned with the de facto ownership of the subject residential flat at Wing Fai Building (the “Building”), Nos 189, 191, 193 & 195 Tung Choi Street, Kowloon, Hong Kong (the “Property”).

2.The Property has been registered in the name of the late Madam Leung Kin (the “Deceased”), who passed away in March 2009.

3.The Plaintiff is a practicing solicitor and is a partner of Messrs Tsang, Chan & Woo, Solicitors & Notaries. On 22 June 2017, he was appointed to act as the administrator of the Deceased’s estate in place of Mr Ma Sik Hung Bruce (“Bruce Ma”) pursuant to a Consent Order (which was amended on 9 August 2017) made by the High Court under Section 36 of the Probate and Administration Ordinance, Cap 10. In this judgment, references to the Plaintiff include the Deceased and her estate.

4.In this action, the Plaintiff seeks the following substantive reliefs against the Defendants in relation to the Property: (i) an order for vacant possession of the Property; and (ii) mesne profits for the period of time to be determined by the Court.

5.It is not in dispute that the 1st Defendant has been controlling and possessing the Property.

6.The 1st Defendant contends that:-

(1)  by reason of operation of the doctrines of construction trust and/or proprietary estoppel, the Plaintiff holds the Property on trust for her and Bruce Ma and shall transfer the legal title to the Property to her and Bruce Ma.

(2)  Further or in the alternative, she has been in adverse possession of the Property for no less than 12 years, and as such the Plaintiff’s title over the Property has been extinguished.

7.By way of Counterclaim, the 1st Defendant claims against the Plaintiff (as the 1st Defendant by Counterclaim) for declarations based on the aforesaid contentions.

8.On the first day of the original trial fixed for February 2023, His Honour Judge K C Chan took the view that, subject to the stance of the trustee in bankruptcy of Bruce Ma, namely, the Official Receiver, joinder of Bruce Ma was necessary for the purpose of the Counterclaim. However, the Official Receiver was of the view that Bruce Ma had no locus standi. Ultimately, Bruce Ma was joined as the 2nd Defendant by Counterclaim herein, but one who defaults to appear, and the 1st and 2nd Defendants’ Amended Defence and Counterclaim was re-amended accordingly.

9.In the present trial, Mr Isaac Yung acts for the Plaintiff (who represents the interest of the Deceased’s estate), and the 1st Defendant Madam Kwok Ka Ping, who is also the occupant of the Property, ie the 2nd Defendant, acts in person. In the circumstance, the terms “1st Defendant”, “Defendant” and “Defendants” to be used hereinbelow in this Judgment shall be taken to mean the same person, namely, Madam Kwok Ka Ping.

10.The trial took place from 8 to 9 and 12 to 16 May 2025. The parties then exchanged their Closing Submissions. However, at the hearing on 30 June 2025, it is noted that further submissions from the parties were required. Hence, the parties exchanged one more round of submissions on 21 July, and then the Defendant lodged and served one more supplemental Closing Submissions on 4 August 2025.

11.I thank Mr Yung for his extensive research and assistance to this Court. However, this judgement does not seek to encapsulate all the points made by the parties in their voluminous submissions. Suffice to say, I have considered all of them.

B.  Factual Background

B1.  The acquisition of the Property by the Deceased and her late husband

12.Back in 1972, the Deceased and her late husband Mr Ma Yiu (“Ma Yiu”) acquired the Property.

B2.  The undisputed / indisputable facts

13.The following facts are not in dispute (or cannot be disputed):-

(1)  Prior to the purchase of the Property, the Ma family were living at a public rental housing unit at Shek Lei Estate, Kwai Chung, New Territories.

(2)  The Property was purchased by Ma Yiu and the Deceased as joint tenants in 1972, and it was used as their dwelling.

(3)  Ma Yiu and the Deceased had 3 children, namely:

(a)  Ma Pui Yin Flora (“Flora Ma”);

(b)  Ma Sik Nin (“Sidney Ma”); and

(c)  Bruce Ma.

(collectively, the “3 Beneficiaries”)

(4)  The 1st Defendant is also known as Erika. She is the wife of Bruce Ma. They married in Guam in 2004.

(5)  None of the 3 Beneficiaries or the 1st Defendant has made any financial contributions towards the purchase of the Property. Since the purchase of the Property as aforesaid, there has been no sale of the same.

(6)  Flora Ma moved out of the Property in 1991 and eventually migrated to the United States of America in 2001.

(7)  In 1994, Sidney Ma made an application under the Subsidized Home Ownership Scheme (“HOS”), and subsequently purchased a flat at Aberdeen under his sole name pursuant to the said application (the “Aberdeen Flat”). He married in October 1995 and moved into the Aberdeen Flat in or about April 1996 when its construction was completed.

(8)  Ma Yiu predeceased the Deceased and passed away on 8 December 2006.

(9)  Shortly after the death of Ma Yiu, the Deceased was relocated to live in an elderly home named Goodwise Gerocomy Centre (福慧護老中心) in Shum Shui Po, Kowloon (the “Elderly Home”).

(10)  Bruce Ma was appointed as the sole administrator of Ma Yiu’s estate by the Grant of Letters of Administration issued by the High Court on 16 June 2008.

(11)  The Deceased died intestate on 7 March 2009. The 3 Beneficiaries, namely, Flora Ma, Sidney Ma and Bruce Ma are the only beneficiaries of the estate of the Deceased.

(12)  Bruce Ma was also appointed as the sole administrator of the estate of the Deceased by the Grant of Letters of Administration issued by the High Court on 21 February 2011. When Bruce Ma made the said application for the Grant, he on 20 November 2010 signed on the Schedule of Assets and Liabilities of the Deceased (the “Schedule of Assets and Liabilities”) in which the Property is stated under the heading of “LAND AND BUILDINGS”.

(13)  From January 2015 to March 2016, there were emails exchanged amongst Flora Ma, Sidney Ma, Bruce Ma and the Defendant, and some of the emails also involved one solicitor named Jackson Ho (“Jackson Ho”).

(14)  In gist, these emails show that:-

(a)  Bruce Ma and the Defendant would consider whether they would take the ownership of the Property or not. Sidney Ma mentioned that the value of the Property was around $6 million.

(b)  There were two possible options, namely (i) transferring the Property to one of the 3 Beneficiaries and (ii) transferring it to all three of them. Flora Ma sought advice from Jackson Ho and then three of them would decide the path forward.

(c)  Bruce Ma said that he had “no financial power” to buy the Property. On one hand, if Flora Ma and Sidney Ma transferred the Property to him, he was not able to buy their shares based on the current market value. On the other hand, if the Property was transferred to Flora Ma or Sidney Ma, Bruce Ma did not want to move out of the Property because he could not afford the rent of another flat. He said that he would try to borrow money to buy their shares, but he could not afford the current market price. Bruce Ma also explained the difference between joint tenancy and tenancy-in-common to Flora Ma.

(d)  Bruce Ma then got valuation from 2 banks, and the market price of the Property was $4.7 million. Flora Ma asked him to discuss with the 1st Defendant see what level they would feel comfortable to afford.

(e)  Sidney Ma told Flora Ma and Bruce Ma that the one who wanted to own the Property had to pay up the difference, and if no one wanted to keep the Property, then the same should be sold in the market.

(f)  The 1st Defendant would provide the valuation of the Property from different sources, and she and Bruce Ma would propose a price.

(g)  Jackson Ho said Bruce Ma had told him that Sidney Ma and Flora Ma had agreed to transfer the Property to him (Bruce Ma) absolutely and therefore he had prepared a Deed of Family Arrangement and an Assent. However, the 1st Defendant said Bruce Ma had not done so.

(15)  No transfer of the Property to the 3 Beneficiaries or any of them has taken place.

(16)  Flora Ma and Sidney Ma instructed a solicitors firm, namely, Messrs Tang, Wong & Chow, solicitors to issue a pre-action letter to Bruce Ma on 5 May 2016 demanding him to, inter alia, use his best endeavour to sell the Property at open market within 3 months or to buy their interest in the Property at market price.

(17)  Bruce Ma was subsequently removed and substituted by the Plaintiff as the new administrator of the Deceased’s estate.

C.  The Plaintiff’s claim

14.This action was commenced in September 2019 by the Plaintiff against the 1st and 2nd Defendants.

C1.  The Plaintiff’s pleaded case

15.The Plaintiff’s case as pleaded in the Statement of Claim may be summarized as follows.

16.The Property was held by Ma Yiu and the Deceased as joint tenants. Since Ma Yiu, who died on 8 December 2006, was survived by the Deceased, Ma Yiu’s interest in the Property passed on to the Deceased by right of survivorship. Upon the death of the Deceased, the Property formed part of the Deceased’ estate.

17.The 1st and/or 2nd Defendants entered and/or occupied the Property unlawfully, and/or took possession of the same. Such act amounted to a trespass.

18.Ever since the Plaintiff’s appointment as the administrator of the Deceased’s estate in August 2017, the Plaintiff has been the legal owner of the Property and is entitled to possession of the same for the purpose of administering the Deceased’s estate.

19.Hence, the Plaintiff seeks vacant possession of the Property and mesne profits against the 1st and/or 2nd Defendants.

D.  The Defendant’s case

20.The Defendant relies on the doctrines of constructive trust and/or proprietary estoppel and adverse possession in her Re-Amended Defence and Amended Counterclaim (the “Defence and Counterclaim”).

D1.  Common intention constructive trust (“CICT”)

21.The Defendant’s CICT case has two parts. The first one is between Ma Yiu and the Deceased on one side and Bruce Ma on the other side. Plaintiff’s counsel Mr Yung in his Opening Submissions called it “the Bruce/CICT”, which I will adopt in this judgment.

22.The Bruce/CICT is pleaded in the Defence and Counterclaim as follows:

“In or about 1994, Sidney Ma succeeded in applying for purchasing a flat situated in the South Wave Court via Green Form which meant that Ma Yiu would surrender the flat in the public housing estate in order to purchase a flat in the South Wave Court (ie the Aberdeen Flat). After discussion, Ma Yiu and the Deceased agreed to purchase the new flat under the sole name of Sidney Ma and they would support the front payment for Sidney Ma as a gift to him. But after the said payment, Sidney Ma was required to settle the mortgage repayments himself. In about the mid of 1996, Ma Yiu and the Deceased promised and represented to Bruce Ma (the “Representation”) that they would transfer the Property to Bruce Ma in future. The consideration was that Bruce Ma would agree not to have his name in the title to surrender his residency status (“戶籍”) in the new flat and he had to bear the maintenance and repair expenses of the Property. The aforesaid arrangement was agreed by Ma Yiu, the Deceased, Sidney Ma and Bruce Ma (the “Family Arrangement”).”

23.Subsequently, Ma Yiu purchased the Aberdeen Flat and settled the front payment, the stamp duty and sundry expenses for the purchase of the Aberdeen Flat for Sidney Ma. Pursuant to the Family Arrangement and in reliance upon the Representation, Bruce Ma’s name was expunged from the residency registry of the Aberdeen Flat, and he bore all the maintenance and repair expenses of the Property (except during the period from about the beginning of 2007 to the beginning of 2008, in which the management fee and the government rent and rates were paid by the Deceased, but the Deceased was later reimbursed by the 1st Defendant). As such, “Ma Yiu and the Deceased were estopped from asserting any beneficial interest in the Property against Bruce Ma and they held the same on constructive trust for Bruce Ma”.

24.The second part of the CICT, which is called by Mr Yung in his Opening Submissions as “D1/CICT”, is pleaded as follows: Since Bruce Ma and the 1st Defendant married in 2004, it was their common understanding that Bruce Ma and the 1st Defendant jointly owned the Property on an equal basis. Furthermore, Bruce Ma impliedly represented to the 1st Defendant that if he passed away in the future, the Property would be wholly owned by the 1st Defendant. Based on the aforesaid common understanding and in reliance on the said implied representation, the 1st Defendant acted to her detriment by making monetary contribution to the outgoings in respect of the Property. Therefore, it would be inequitable for Bruce Ma and thus the Plaintiff to deny the 1st Defendant’s beneficial interest in the Property.

25.Hence, the 1st Defendant alleged that Ma Yiu had no beneficial interest in the Property to pass on to the Deceased by right of survivorship. Since the death of Ma Yiu, the Deceased held the Property on constructive trust for Bruce Ma and her. Upon the death of the Deceased, Bruce Ma and then the Plaintiff held the Property on constructive trust for Bruce Ma and the 1st Defendant.

D2.  Proprietary estoppel

26.Before the trial started, Mr Yung on behalf of the Plaintiff complained that proprietary estoppel was not pleaded in the Defence and Counterclaim. Mr Yung was of the view that the Defendant was therefore not entitled to rely on the doctrine of proprietary estoppel at the trial.

27.I agree with Mr Yung that the doctrines of CICT and proprietary estoppel are distinct and separate, despite they share similarities (see Stack v Dowden [2007] 2 WLR 831), and it is true that the 1st Defendant did not mentioned “proprietary estoppel” in her Defence and Counterclaim. However, the material facts in this regard are pleaded therein.

28.It is trite that a party is only required to plead the material facts, and he is at liberty to present in argument any legal consequence of which the facts permit: see Hong Kong Hua Qiao Co Ltd v Cham Ka Tai [2015] 4 HKC 167 at para 20 and Lo Yuk Sui v Fubon Bank (Hong Kong) Ltd (2020) 23 HKCFAR 138 at para 9.

29.In the premises, I cannot see how the Plaintiff and/or the 3 Beneficiaries may be prejudiced. After a second thought and after taking instructions, Mr Yung withdrew his complaint and did not object to the 1st Defendant’s reliance on the doctrine of proprietary estoppel.

30.In this regard, it is pleaded in the Defendants’ Defence and Counterclaim that:

“… In about the mid of 1996, Ma Yiu and the Deceased promised and represented to Bruce Ma (the “Representation”) that they would transfer the Property to Bruce Ma in future. The consideration was that Bruce Ma would agree not to have his name in the title to surrender his residency status (“戶籍”) in the new flat and he had to bear the maintenance and repair expenses of the Property. …”

“… Pursuant to the Family Arrangement and in reliance upon the Representation, (i) Bruce Ma’s name was expunged from the residency registry of the Aberdeen Property; (ii) since then, Bruce Ma bore all the maintenance and repair expenses of the Property (except during the period from about the beginning of 2007 to the beginning of 2008, the management fee and the government rent and rates were paid by the Deceased but the Deceased was later reimbursed by the 1^st Defendant).”

“By virtue of the aforesaid, Ma Yiu and the Deceased were estopped from asserting any beneficial interest in the Property against Bruce Ma and they held the same on constructive trust for Bruce Ma. Further, as Bruce Ma had acted to his detriment in reliance upon the Representation, it is inequitable for the Deceased and the Administrator of the estate of the Deceased to deny Bruce Ma’s beneficial interest in the Property.”

“Since the marriage of Bruce Ma and the 1^st Defendant in 2004, it is the common understanding between Bruce Ma and the 1^st Defendant that the Property is to be jointly beneficially owned by them on equal basis and Bruce Ma also impliedly represented to the 1^st Defendant that if he passed away in future, the Property would be wholly beneficially owned by the 1^st Defendant. Based on the said common understanding and in reliance upon the said implied representation, the 1^st Defendant had acted to her detriment by making monetary contribution to the outgoings in respect of the Property by herself and/or together with Bruce Ma ... and has acquired beneficial interest in the Property. It is therefore inequitable for Bruce Ma and thus the Plaintiff to deny the 1^st Defendant’s beneficial interest in the Property.”

31.The Defendant therefore denied that the Plaintiff is entitled to possession of the Property.

D3.  Adverse possession

32.Again, the 1st Defendant’s adverse possession case has two parts. The first one is that Bruce Ma and the 1st Defendant had been in exclusive possession since 2001 (with the intention to exclude the whole world, including Ma Yiu and the Deceased), and the second part is that since Bruce Ma had moved out of the Property in 2011, the Defendant has been exclusively and continuously possessing the Property with the intention to exclude the whole world (including the Deceased). Mr Yung in his Closing Submissions called it the “Joint AP Period” and the “D1 AP Period” respectively, which I will adopt in this judgment.

33.The 1st Defendant alleges that:-

(1)  In 2001, she engaged a locksmith to break the lock of the main door of the Property and then enter the Property. New locks of the Property were installed. The 1st Defendant then engaged workers to fix the water seepage problem at the Property, but it was not quite successful.

(2)  On 1 October 2001, Bruce Ma moved back to live in the Property, and the 1st Defendant occasionally came to stay there until about 27 October 2002 when she moved and started to live in the Property.

(3)  She and Bruce Ma married in 2004. They treated the Property as their matrimonial home. In 2005, they started to plan for a major renovation to the Property.

(4)  In February 2007, they retained a design company to carry out renovation of the Property and paid deposits for it. Subsequently, they in November 2007 retained another design company in its place. The renovation was ultimately completed in 2008. The renovation fee was paid by them jointly.

(5)  She and/or Bruce Ma paid all statutory payments, public utility expenses including all maintenance and repairing fees and outgoing of the Property, complied with the order issued by the Building Authority, and made contributions to the Incorporated Owners of the Building (“IO”) regarding maintenance and repairing work to the common area of the Building.

(6)  In around 2011, she discovered that Bruce Ma had another relationship and asked him to leave the Property. Since then, the Property has been in her exclusive possession.

(7)  Since 2011, she attended some of the meetings of the IO as the owner of the Property.

34.The 1st Defendant therefore pleaded that she is entitled to have a possessory title to the Property.

E.  The Plaintiff’s response to the Defendant’s case

35.In relation to the Defendant’s Counterclaim, the Plaintiff’s defence is as follows.

E1.  Response to the 1st Defendant’s claim under CICT and proprietary estoppel

36.In reply, the Plaintiff states the following regarding the Aberdeen Flat, the Representation and Family Arrangement:

(1)  Sidney Ma denies the existence of the Representation and the Family Arrangement. 

(2)  Sidney Ma was solely responsible for all financial contributions in relation to the purchase of the Aberdeen Flat, including the initial deposit of $64,180, legal fees and monthly mortgage repayments.

(3)  Bruce Ma’s surrendering his residential status (even if true) was unrelated to the Representation and/or the Family Arrangement.

(4)  Bruce Ma had not suffered any detriment pursuant to the Representation and/or the Family Arrangement. He had not paid any rent when occupying the Property and instead benefited from all maintenance and repairs done to the Property.

37.Besides, the Plaintiff avers that there was no basis for Bruce Ma and the 1st Defendant to come to any common understanding / implied representation that the Property was to be jointly beneficially owned by them on an equal basis. Further and/or alternatively, there is no reason for the Plaintiff to be bound by the alleged common understanding / implied representation between Bruce Ma and the 1st Defendant.

E2.  Response to the 1st Defendant’s claim of adverse possession

38.The Plaintiff and/or the 3 Beneficiaries dispute the 1st Defendant’s assertion of adverse possession. Their case is as follows:-

(1)  Both Ma Yiu and the Deceased were still alive in 2001 and both resided in the Property. Therefore, Bruce Ma and/or the Defendant’s occupation of the Property was subject to their permission.

(2)  Bruce Ma was the sole administrator of the Deceased’s estate since 21 February 2011 until his removal on 22 June 2017. Hence, he could not have had the intention to exclude the whole world from the Property for his own benefit and to the detriment of other beneficiaries.

(3)  Bruce Ma, as sole administrator of the Deceased’s estate, granted a licence and/or permission to the 1st Defendant for her occupation and/or use of the Property between 21 February 2011 and 22 June 2017. The 1st Defendant was merely a licensee of Bruce Ma.

(4)  Even though Sidney Ma and Flora Ma had moved out of the Property, they had retained keys to the Property.

(5)  At the family gathering in December 2005, Ma Yiu and the Deceased demonstrated that they were owners of the Property more so than Bruce Ma and the 1st Defendant.

(6)  In or around late 2006, the 3 Beneficiaries had set up two HSBC joint accounts to pay for the living expenses of the Deceased, which included the services at the Elderly Home, at which the Deceased stayed since late December 2006, and the upkeep / maintenance of the Property.

(7)  Pre-litigation and contemporaneous calls and emails between Flora Ma, Sidney Ma, Bruce Ma and the 1st Defendant clearly document how parties wished to deal with the Property. In particular, the valuation of the Property and how Bruce Ma and the 1st Defendant could take up the ownership of the Property were discussed.

F.  Witnesses

39.The Plaintiff adduces factual evidence from (i) Mr Cho Ka Cheong, who is the nephew of Ma Yiu; and (ii) Sidney Ma.

40.The 1st Defendant adduces factual evidence from herself and Bruce Ma.

41.Pursuant to the Order dated 17 August 2020, leave was granted to the Plaintiff to adduce expert evidence from a surveyor, namely, Mr Tang Kee Duen Christopher on quantum on the amount of loss of rental income of the Property suffered by the Plaintiff as from 8 March 2009 to December 2020. The Report by the Plaintiff’s Expert dated 16 December 2020 and the Supplemental Report dated 13 January 2023 were adduced accordingly. On the other hand, the 1st Defendant has elected not to adduce any expert evidence on quantum.

42.The aforesaid Expert’s Report and Supplemental Report were subsequently ordered be admitted into evidence without calling the expert Mr Tang, and his attendance has been dispensed with.

G.  Legal Principles on Assessing Credibility

43.In Lee Fu Wing v Yan Paul Po Ting [2009] 5 HKLRD 513 at 524, DHCJ Au (as Au JA then was) set out the well-established approach on assessing credibility. In the course of assessing the credibility of a party’s case, the court shall consider the following matters:

(1)  whether the party’s case is inherently plausible or implausible;

(2)  whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests, this is relevant to the assessment of his overall credibility; and

(4)  the demeanour of the witnesses.

44.In the context of adjudicating a dispute in relation to an alleged oral agreement or understanding, in The Joint and Several Trustees of the Property of Yeung Wing Sing v Yeung Wing Sing (a Bankrupt) & Anor, HCB 1174/2019, 16 July 2021, [2021] HKCFI 2018, at para 26, Recorder Yvonne Cheng SC (as Yvonne Cheng J then was) pointed out that:

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

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

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

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

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

45.The aforesaid approach is well-established. I will bear the same in mind when I assess the credibility of the witnesses in the present case.

H.  Main Issues in Dispute

46.The main issues in dispute in the present action are as follows:

(1)  The 1^st Main Issue: whether Bruce Ma had at any material time acquired any beneficial interest in the Property pursuant to the Bruce/CICT?

(2)  The 2^nd Main Issue: whether Bruce Ma had created beneficial interest in favour of the 1st Defendant by common intention constructive trust (D1/CICT)?

(3)  The 3^rd Main Issue: whether the Plaintiff and/or the 3 Beneficiaries (being the administrator and beneficiaries of the estate of the Deceased) are precluded from asserting interest and/or title over the Property by reason of the doctrine of proprietary estoppel?

(4)  The 4^th Main Issue: whether the Deceased’s title over the Property was extinguished by reason of adverse possession?

(5)  The 5^th Main Issue: if the Defendant shall fail to discharge her defences, is the Plaintiff entitled to vacant possession of the Property and mesne profits (and at what quantum?)

I.  The Legal Principles

I1.  Legal Principles on CICT

47.The principles concerning common intention constructive trust are well established.

48.In Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1, Ribeiro PJ held in para 38 that:

“Where a constructive trust is alleged to arise on the basis of the parties’ common intention, it is the intention commonly held by the property owner and the claimant regarding their shared beneficial interests in the property that matters. The trust is constituted by the claimant’s detrimental reliance on their common intention and the unconscionability of the property owner departing therefrom.”

49.In Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9, G Lam J (as he then was) also had the following to say:

“44. The principles of trust law applicable to the present case are not in dispute. The Property being registered in the 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 absolutely.

45. The plaintiff seeks to achieve that by pleading both a resulting trust and a constructive trust. However, given that both parties allege there was express discussion and actual intention as to where the beneficial interest in the Property should lie, there is little scope for the operation of resulting trust: Re Superyield Holdings Ltd [2000] 2 HKC 90, 111. At the commencement of the trial, indeed, counsel agreed that constructive trust is the real issue, and that resulting trust is not relevant except perhaps if I should decide to reject both parties’ evidence on intention. 

46. The focus of the inquiry is therefore on the elements that the plaintiff has to prove in order to establish a constructive trust in his favour. In the context of this case, this means that the plaintiff must prove (i) there was a common intention between him and the defendant that the plaintiff was to be the beneficial owner of the Property despite that it was acquired in the defendant’s name; (ii) the plaintiff altered his position in detrimental reliance upon such common intention; and (iii) it is unconscionable for the defendant to assert ownership in reliance on her legal title to the Property.

47. In ascertaining whether there was a common intention, it is the objective intention of each party ‘which was reasonably understood by the other party to be manifested by that party’s words and conduct’ that one must examine: Gissing v Gissing [1971] AC 886, 906; Jones v Kernott [2012] 1 AC 776, 794 at para. 51.

48. In the present case it is the parties’ common intention at the time of the acquisition of the Property that is relevant, there being no suggestion from anyone that the intention had changed.

49. Such intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the property concerned based on evidence of express discussions. It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention: Lloyds Bank v Rosset [1991] 1 AC 107, 132-133.

50. Even where, as in this case, reliance is placed on an express agreement, arrangement or understanding between the parties, their other conduct remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested.”

I2.  Legal Principles on Proprietary Estoppel

50.In Cheung Lai Mui (the executrix of the estate of Cheung Ping Kau and Cheung Ping Fuk) v Cheung Wai Shing & Ors (2021) 24 HKCFAR 116 at paras 23-27, Ribeiro PJ and Gummow NPJ stated:-

“23. Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are (a) a representation or assurance made to the claimant (b) reliance thereon by the claimant and (c) detriment to the claimant in the consequence of that reliance.

24. More specifically, in Gillett v Holt [2001] Ch 210 at 225, 232, Robert Walker LJ (as Lord Walker then was) emphasised that (i) “the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments”, (ii) “the quality of the relevant assurances may influence the issue of reliance”, (iii) “reliance and detriment are often intertwined”, (iv) “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the [proprietary estoppel] doctrine” and (v) detriment is “not a narrow or technical concept”; it need not consist of expenditure of money or other quantifiable financial detriment and may consist of manual labour. His Lordship added “In the end the Court must look at the matter in the round”; there is “a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.”

25. With respect to (v) in Clarke v Meadus [2010] EWHC 3117 (Ch) at [86] Warren J emphasised that “where promises are made over a period of years, it is necessary to stand back and look at the claim in the round.”

26. With respect to (iii), and to later statements by Robert Walker LJ in Jennings v Rice [2002] EWCA Civ 159 at [50], Lady Arden (then Arden LJ) in Suggitt v Sugitt [2012] EWCA Civ 1140 at [44] observed that there need not be “a relationship of proportionality between the level of detriment and the relief awarded”; the question on an appeal is whether the relief granted was “out of all proportion to the detriment which the claimant has suffered?”

27. It may be confusing to use the term “cause of action” in this context. Rather there are two steps involved. First, once the elements of the proprietary estoppel are established an equity arises; secondly the court then must decide the most appropriate form of relief, and may have regard to the circumstances as they then exist.”

51.The legal principles are succinctly summarized by DHCJ Sara Tong SC in Patrick Cowley and Wong Wing Sze Tiffany (joint and several trustees in bankruptcy of the property of Lau Yu) v Lau Sze & Anor, HCMP 363/2021, 21 June 2024, [2024] HKCFI 1662 at paras 24-25 as follows:-

(1)  The doctrine of proprietary estoppel has generally 3 elements, namely (i) a representation or assurance made to the claimant; (ii) reliance thereon by the claimant; and (iii) detriment to the claimant in consequence of such reliance.

(2)  The 3 elements are interrelated and underpinned by the notion of unconscionability. Even if the 3 elements are satisfied, the claim may still be refused if the Court takes the view that its conscience is not shocked.

I3.  Legal Principles on Adverse Possession

52.The following provisions of the Limitation Ordinance (Cap 347) are relevant:

(1)  Section 7(2):

“No action shall be brought by any other person to recover any land after the expiration of 12 years from the date on which the right of action accrued to him or, if it first accrued to some person through whom he claims, to that person …”

(2)  Section 8(1):

“Where the person bringing an action to recover land, or some person through whom he claims, has been in possession thereof, and has while entitled thereto been dispossessed or discontinued his possession, the right of action shall be deemed to have accrued on the date of the dispossession or discontinuance.”

(3)  Section 13(1):

“No right of action to recover land shall be deemed to accrue unless the land is in the possession of some person in whose favour the period of limitation can run (hereafter in this section referred to as adverse possession) and where under the foregoing provisions of this Ordinance any such right of action is deemed to accrue on a certain date and no person is in adverse possession on that date, the right of action shall not be deemed to accrue unless and until adverse possession is taken of the land.”

(4)  Section 17:

“Subject to the provisions of section 10, at the expiration of the period prescribed by this Ordinance for any person to bring an action to recover land (including a redemption action), the title of that person to the land shall be extinguished.”

Limitation Period

53.If the registered owner’s cause of action against the squatter accrues after 1 July 1991, the applicable limitation period is 12 years.

Constituting Elements

54.It is trite law that a person claiming adverse possession has to prove 2 elements: (i) physical possession or control; and (ii) the requisite intention to possess (animus possidendi). The legal principles are summarized by Li CJ in Wong Tak Yue v Kung Kwok Wai David & Anor (1997-1998) 1 HKCFAR 55 at paras 35-39:-

“35. The principles for the application of these provisions are well established. A person claiming to be in adverse possession must be shown to have both possession and the requisite intention to possess. See the Court of Appeal decisions in England in R v Secretary of State for the Environment Ex p Davies (1990) 61 P & CR 487, Buckinghamshire County Council v Moran [1990] 1 Ch 623 which treated as authoritative and applied the principles enunciated by Slade, J in Powell v McFarlane (1979) 38 P & CR 452.

…

37. As Nourse, LJ pointed out in Buckinghamshire County Council v Moran at 644, adverse possession can be described as “possession as of wrong” and with limitation it is the intention of the squatter that is essential.

38. The requisite intention to possess has been referred in various authorities under its latin tag “animus possidendi”. I shall refer to it simply as the intention to possess. As Slade, J observed in Powell v McFarlane at 471-472, the intention to possess requisite for adverse possession

“involves the intention, in one’s own name and on one’s own behalf, to exclude the world at large, including the owner with the paper title if he be not himself the possessor, so far as is reasonably practicable and so far as the process of the law will allow.”

39. The question of intention to possess, as with any other question of intention, is one of fact. Whether it can be established depends on an assessment of all the circumstances in a particular case.”

55.The evidence of exclusive possession and intention must be compelling in order to be commensurate with the serious consequences of finding that the holder of the paper title has been extinguished. It cannot be lightly assumed that the paper title holder has foregone his or her interest in land: Tsang Foo Keung v Chu Jim Mi Jimmy [2017] 3 HKC 527 at para 22.

56.Some conduct on the land can show both factual possession and intention to possess. In Ho Hang Wan v Ma Ting Chueng [1990] 1 HKLR 649, 654A-E, Hunter JA held that where the act of possession is unequivocal, it may in itself be sufficient to show the necessary animus. In an appropriate case, the “conduct [relating to] the land serves the twin masters of factual possession and animus possidendi”: see Goo & Lee, Land Law in Hong Kong (4^th Ed) at para 6.42.

57.In Powell v McFarlane (1979) 38 P & CR 452 at pp 477-478, Slade J held that:-

“There are a few acts which by their very nature are so drastic as to point unquestionably, in the absence of evidence to the contrary, to an intention on the part of the doer to appropriate the land concerned.

58.In JA Pye (Oxford) Ltd v Graham [2002] 3 WLR 221, 435H, Lord Browne Wilkinson held that:

“… there has always, both in Roman law and in common law, been a requirement to show an intention to possession in addition to objective acts of physical possession. Such intention may be, and frequently is, deducted from the physical acts themselves”

59.It has been suggested that enclosure of land, locking gates and controlling access are also obvious actions proving the elements of exclusive possession and intention to possess. As Slade J stated in Powell v McFarlane (supra) p 478:-

“The enclosure of land by a newly constructed fence is another. As Cockburn CJ said in Seddon v Smith [[1877] 36 LT 168, at 169] “Enclosure is the strongest possible evidence of adverse possession,” though he went on to add that it was not indispensable … So too is the locking or blocking of the only means of access.”

60.In Goo & Lee, Land Law in Hong Kong (4^th Ed) para 6.30, the learned authors, citing Lambeth London Borough Council v Blackburn [2001] 82 P&CR 39; Poolard v Jackson [1994] 67 P & CR 327, pointed out that:

“For a flat, changing the lock and occupying it would certainly be evidence of physical control.”

Acknowledgement

61.Where a squatter acknowledges the true owner’s title, the acknowledgment, whether oral or in writing, may show, when taken with the other circumstances of the case, that the squatter did not have the intention to possess: see Jourdan on Adverse Possession (2^nd Ed) at para 9-102 (p 221).

62.However, as pointed out by DHCJ Paul Lam SC in Sarah Sally Chan Kent (executrix of the Estate of Ruby Jim Sunyou) v Chim Sau Ching and another [2019] HKCFI 3066, which judgment was affirmed by the Court of Appeal, at para 35:-

“Once an owner’s title is extinguished, a subsequent acknowledgement cannot revive it (Sanders v Sanders [1881] 19 Ch D 373 at 379; Chong Yuk Por v Chan Kam Muk [2013] 1 HKC 505, §§19 – 20; Tsang Foo Keung& Another v Chu Jim Mi Jimmy & Others HCA 7140/1995 (12 July 2013, unreported), §113). Having said that, an acknowledgement of the paper owner’s title after the expiry of the limitation period may be evidence relevant to whether the possessor has the requisite intention to possess during the limitation period (Tsang Foo Keung & Another v Chu Jim Mi Jimmy & Others HCA 7140/1995 (12 July 2013, unreported), §114).” (emphasis added)

Licence or Permission

63.A person’s possession of a property will not be “adverse” if he uses or occupies the same under a licence or permission granted by the paper owner: see Lau Kwai Ping Joyce, the executrix of Tsang Fung Ying (deceased) v Fulland International Limited [2020] HKCFI 1501 at para 16 (per Marlene Ng J).

64.A licence or permission may be given unilaterally and does not require acceptance by the licensee. It may be given orally or in writing (express licence) or by conduct (implied licence). However, passive acquiescence is not sufficient to establish an implied licence. Rather, there must be some overt act(s) on the part of the licensor referable to the licence having been granted to give rise to an implication by conduct: see Sarah Sally Chan Kent (supra) at paras 25-27; Chow Chi Yuen v the Incorporated Owners of Wing Shun Building [2020] HKCFI 3085 at paras 16-17 (per DHCJ Alexander Stock SC).

65.A revocable licence is automatically terminated by the death of the licensor, and it is not necessary for the licensee to have received notice of the death: see Sarah Sally Chan Kent v Chim Sau Ching (supra) at para 30; Chow Chi Yuen v the Incorporated Owners of Wing Shun Building (supra) at para 18; Ho Hang Wan v Ma Ting Cheung (supra) at 652A–E.

J.  Discussion

66.The evidence of the witnesses can be summarized as follows.

J1.  Cho Ka Cheung

67.His evidence are as follows.

68.Ma Yiu is his uncle (舅父). He had a good relationship with Ma Yiu and the Deceased and would see them every one to two months. He would visit them at the Property occasionally. On every occasion, it was either Ma Yiu or the Deceased who opened the door for him.

69.At the end of 2004, when both Flora Ma and Sidney Ma were not in Hong Kong, Ma Yiu called him and requested him to assist them to install a water heater at the bathroom of the Property, as it was not convenient for him to carry a basin of hot water from the kitchen to the bathroom. He then bought a water heater at Mongkok. Mr Cho said if the 1st Defendant was living at the Property at the time, she would have been able to carry the hot water for Ma Yiu, or even buy the water heater for him.

70.He said in 2005 or 2006, when he visited Ma Yiu and the Deceased at the Property, Ma Yiu has asked Mr Cho to assist him to employ a foreign domestic helper to take care of the Deceased. However, since the Deceased considered that there would be language barrier, and that she did not want to have an outsider living in their home, she strongly objected to such suggestion. During the discussion, Ma Yiu and the Deceased have never mentioned that there were other person(s) living with them in the Property, and they have never mentioned about the 1st Defendant. He has never seen the 1st Defendant at the Property when he visited Ma Yiu and the Deceased there, and did not notice any other stuffs apart from those of Ma Yiu and the Deceased.

71.At the funeral of Ma Yiu at December 2006, that was the first time he met the 1st Defendant. He has seen her again several years later at ancestral worship ceremony.

72.Under cross-examination, Mr Cho said that Ma Yiu used to live on the 9^th floor in a public housing, and that Unit 849 was in fact on the 9^th floor. He confirmed that he had a good relationship with Ma Yiu and the Deceased and would discuss family matters with both of them. He would see them at least once a month. He did not see Ma Yiu in Panyu between 2001 and 2006. In fact he did not leave Hong Kong in 2005. Mr Cho said he only assisted Ma Yiu to replace the water heater in Hong Kong but not in Panyu. Mr Cho further said that he had visited Ma Yiu and the Deceased at the Property about a month before Ma Yiu passed away, ie around November 2006. It was the Deceased who opened the door for him. They mainly discussed about Bruce Ma (how he did not return home to sleep, they could not find him, and he had not returned for a long time) as well as small talk on daily living. He said that Ma Yiu had called him about hiring a helper to assist in taking care of the Deceased. Later when he arrived at the Property, the Deceased expressed that there would be language barrier with the helper and that she did not want an outsider at home. This happened in 2005 or 2006. He had tea with Ma Yiu before 2005, but he did not do so after 2005 because his wife had fallen ill. Nonetheless, Mr Cho confirmed that he had visited the Property near the end of 2006. He said Ma Yiu had requested replacement of the water heater in 2004. Mr Cho explained that he was only responsible for purchasing the water heater and that someone else would install it. He said he had paid HK$1,500 (as a gift) and the balance was paid by Ma Yiu because he only had three $500 dollar notes. He said Ma Yiu had explained to him that Ma Yiu had difficulty in carrying and pouring the boiled water into the bathtub, and thus requested a water heater in 2004. Mr Cho clarified that in his witness statement he meant Ma Yiu bringing the boiled water to the bathtub and not that he bathed the Deceased. Mr Cho firmly answered that the Deceased was living at her home (ie the Property) when the 1st Defendant put to him that the Deceased was living in an elderly home between 2000 to 2006, and that he visited the Deceased with other family members at the Elderly Home only after she had moved into it in 2006, which was after the death of Ma Yiu. Mr Cho disagreed that the 1st Defendant lived in the Property after 2001. He also disagreed that no one would have opened the door of the Property for him because the 1st Defendant would have been working at the time. Further, he disagreed that he had not been in the Property after 2001.

73.I agree with Mr Yung that Mr Cho has no stake in the outcome of this litigation. Further, Mr Cho’s evidence was unshaken under cross-examination. He is a witness who gave straightforward answers in court. Although the 1st Defendant submits that the motive of Mr Cho was in doubt, and she complains that he was not able to tell the details of some of his evidence, I have no hesitation to come to the conclusion that Mr Cho has been trying his best to tell the truth. I accept his evidence.

J2.  Sidney Ma

74.Sidney Ma said the Property is roughly 550 square feet and has two bedrooms, one kitchen, one bathroom and one powder room. The family of five lived together there since it was purchased in 1972 until the 3 Beneficiaries left to have their own respective families: Flora Ma moved out in 1991 and eventually migrated to USA in 2001, Sidney Ma himself moved out to the Aberdeen Flat in about April 1996, and Bruce Ma left the Property in around 2005.

75.In 1994, he considered that he had sufficient savings to make an initial deposit for the purchase of a flat when he was planning to marry his wife Stella Yu. Hence, in February 1994, He purchased the Aberdeen Flat under HOS using the “Green Form”. Neither Ma Yiu nor the Deceased has provided any financial support to him. He made all the financial contributions in relation to the purchase, including the initial deposit of HK$64,180 and legal fees, and obtained a mortgage for the flat, repayments for which at about HK$12,000 per month were made by him. He in his supplemental witness statement said the initial deposit of HK$64,180 was paid on 24 February 1994, and there was an official receipt issued by the Hong Kong Housing Authority. He denies any family arrangement between Bruce Ma, Ma Yiu, the Deceased and he himself.

76.After he has moved out of the Property, Sidney Ma would visit Ma Yiu and the Deceased on a monthly basis until around December 2006 when Ma Yiu passed away and the Deceased moved to the Elderly Home. Typically, when he arrived at the Property, he would ring the doorbell and either Ma Yiu or the Deceased would open the door for him. They have never informed him that the 1st Defendant was living there. During the monthly visits, it was only Ma Yiu, the Deceased and Bruce Ma (until he moved out) living at the Property and not the 1st Defendant. He never saw the 1st Defendant or her belongings in the Property. In or around 2005, Ma Yiu during one of his visits informed him that Bruce Ma had rarely come to the Property.

77.In late 2005, Flora Ma, Sidney Ma and Bruce Ma agreed to visit Ma Yiu and the Deceased at the Property. They agreed to bring with their respective family members. Sidney Ma in his supplemental witness statement explained that because Flora Ma had brought her two sons back to Hong Kong from USA during their Christmas holidays (and they did not have Chinese New Year holidays in USA) and therefore the said family gathering must be in December 2005 and not in February 2005 as alleged by the 1st Defendant and Bruce Ma. He said at no point Bruce Ma had said that the Property belonged to him and/or the 1st Defendant. On an early afternoon in late December 2005, the 3 Beneficiaries accompanied by their respective family member(s) separately traveled to the Property. He was the first one (with his wife) who arrived at the Property. They rang the doorbell and Ma Yiu opened the door for them. Shortly after, Flora Ma and her two children arrived. She rang the doorbell and Sidney Ma opened the door for them. Bruce Ma and the 1st Defendant were the last to arrive, and it was also Sidney Ma who opened the door for them when they rang the doorbell. It was the first time he had met the 1st Defendant and thus he clearly remembered that it was him who opened the door for them. During the gathering, it was clear to him that Bruce Ma and the 1st Defendant were not living there. For example, they were in street clothes and outdoor shoes. No personal belongings of the 1st Defendant were there. They displayed mannerisms and behaviour of a guest rather than owners / hosts of the Property. When the gathering ended, all the 3 Beneficiaries and their respective family members left the Property at the same time.

78.Although Ma Yiu had occasionally traveled and made brief stays in Mainland, he spent most of his time living in the Property with, and was the primary caretaker of, the Deceased. After Ma Yiu had passed away, the 3 Beneficiaries discussed available options for caring the Deceased. They agreed to send the Deceased to an elderly home to receive professional care, and therefore she was moved to the Elderly Home in Shum Shui Po sometime between 16 and 28 December 2006, as it was located in the same area as Bruce Ma’s then rental unit.

79.However, not long after the Deceased was moved to the Elderly Home, Bruce Ma expressed that he and the 1st Defendant wished to move into the Property to save on rental expenses. Flora Ma and Sidney Ma had no objection, and the 3 Beneficiaries agreed that Bruce Ma would have the financial obligation to share the expenses for the Deceased’s stay at the Elderly Home and the running expenses of the Property. Further, Flora Ma and Sidney Ma made it clear that the arrangement would only be temporary, and they would reconsider it when the Deceased passed away.

80.In late December 2006, the 3 Beneficiaries set up two HSBC joint accounts – one current account and one savings account – for keeping money to pay for the Deceased’s living expenses. Both Flora Ma and Sidney Ma, but not Bruce Ma or the 1st Defendant, had periodically transferred money to the HSBC accounts. Flora Ma stopped transferring money to the joint accounts at the end of 2007, and Sidney Ma stopped after the Deceased passed away in March 2009. From the time Bruce Ma and the 1st Defendant were allowed to move back to the Property until February 2008, Bruce Ma paid the management fees and rates by way of cheques drawn from the said joint current account. Sidney Ma in his supplemental witness statement said that in fact two joint accounts were opened: one with HSBC under the joint name of the Deceased and him; the second one with Hang Seng Bank under the joint name of the Deceased and Bruce Ma. He said that from the letter issued by HSBC with an excerpt of the Deceased’s bank passbook of her own HSBC account, it was shown that the Deceased’s money in her own account was all transferred to the HSBC joint accounts. He also mentioned that from the said excerpt one could see that electricity bills were paid from the Deceased’s own account in September and November 2006.

81.Emails and conference calls took place after the death of the Deceased. All 3 Beneficiaries tacitly acknowledged that the Property formed part of the estate of the Deceased and therefore should benefit the three of them equally. He summarized and reproduced some relevant parts of the emails in his witness statement.

82.Sidney Ma also said in his witness statement that it was not possible for the 1st Defendant to instruct a locksmith to install two new locks at the Property in 2001 as alleged, because at that time both Ma Yiu and the Deceased were still residing in the Property with Bruce Ma. Further, there were occasions during his monthly visits, both before and after 2001, that he used the same set of keys to gain entry to the Property.    

83.Under cross-examination, Sidney Ma said that he registered for marriage in January and held the banquet in October 1995. He confirmed that he and his wife lived at the Property after October 1995 until they moved to the Aberdeen Flat in April 1996. He acknowledged that he did not use the “white form” to apply for the Aberdeen Flat and explained because he wanted (to use the “green form”) to increase the chances of being picked for purchasing a HOS flat, which would require surrendering the family public housing unit. Regarding the application form for the Aberdeen Flat under HOS, initially he had filled in only four names (himself, Bruce Ma, Ma Yiu and the Deceased) and not Flora Ma. He had filled in two people with income, namely Bruce Ma and himself. However, after the Deceased brought the form to the Housing Authority, Flora Ma’s name was put back in as an additional person with her income added thereto. Thus, the income, which was initially stated as HK$28,000, was later amended to HK$38,000. He himself did not make such amendment. He said the Deceased agreed to the arrangement that the Aberdeen Flat to be his matrimonial home, and Ma Yiu has never objected to it. He paid the balance of the purchase price of the Aberdeen Flat, which was HK$219,420 as set out in the solicitors’ bill.

84.Sidney Ma also said that prior to Ma Yiu passing away, he visited Ma Yiu and the Deceased on weekdays. The last visit before Ma Yiu’s passing was in or around October or November 2006, but only the Deceased was there and Ma Yiu was not present. This last visit was no different from his usual visits. Concerning the death of Ma Yiu, he said that it was his uncle, namely, Ma Ho Sheung (also known as Uncle Ho Sheung), and not he himself, had discovered Ma Yiu unconscious in the Property. The said uncle arranged Ma Yiu be sent to the hospital. It was the Deceased who opened the door for the uncle.

85.Concerning Bruce Ma moving into the Property, he said that he had expressed no objection. When asked who had “allowed” Bruce Ma and the 1st Defendant to live in the Property, Sidney Ma explained since one of the Deceased’s children wished to move in, he gave no objection to it and did not regard the use of “allowed” in his witness statement to be problematic. In any event, he, as a sibling, had allowed Bruce Ma to live there. After the passing of the Deceased, Bruce Ma’s living arrangement at the Property was not discussed because Bruce Ma was to apply to become the administrator of the Deceased’s estate, which he did not object. He first sought legal advice about the Deceased’s estate because the 3 Beneficiaries could not come to agreement in 2016. It was his understanding that the Deceased’s estate would be divided into 3 shares, thus he would be entitled to a share of the Property, which was part of the Deceased’s estate. He did not agree that Bruce Ma held 100% beneficial interest in the Property as alleged. He only heard about this for the first time when Bruce Ma replied to the letter issued by the solicitor instructed by Sidney Ma named Mr Chan Sheung Tak (of Messrs Tang, Wong & Chow, Solicitors). As a follow up, Sidney Ma instructed Mr Chan to remove Bruce Ma as administrator of the Deceased’s estate. At that time (around May 2016), although he knew the 1st Defendant was living in the Property, he took no action to request her to move out of the Property.

86.Regarding the Deceased’s money, while part of it had been transferred to his personal account, Sidney Ma said he had fully accounted to the new administrator (ie the Plaintiff) in relation to the said monies. He admitted that he had mixed the funds of the Deceased with his own, but he said that he had explained it to Bruce Ma in an email. He denied he had misappropriated the Deceased’s money. Further, he said that he only invested the Deceased’s money on behalf of her estate so as to preserve its value. He had mixed his monies into the Deceased’s monies only for “top up” purposes.

87.I am of the view that Sidney Ma is a credible and reliable witness. His evidence was given in a calm manner. I agree with Mr Yung that Sidney Ma’s answers were straightforward and forthcoming. His evidence was unshaken under cross-examination. More importantly, his evidence is supported by contemporaneous evidence, including the documentation relating to his application for the purchase of the Aberdeen Flat, receipts, cheques drawn from the joint current account, bank statements, and the aforesaid emails etc., and his version of events accords with inherent probabilities. I accept his evidence in its entirety.

J3.  The 1st Defendant

88.In the witness statement prepared by the solicitors acting for her at the time, the 1st Defendant said she was acquainted with Bruce Ma in about 1998, and was in a relationship with him since about 2000. Since around 2001, she was asked by Bruce Ma to go to collect letters for him from the Property. Bruce Ma told her that the Property had been given to him by his parents. She started to clean the common area in front of the Property because of the complaints received. In 2001 (and she said in court that it was around May or June), complaint of water seepage from the Property to the flat downstairs was received. She therefore engaged a door smith to break into the Property and then installed two new locks at the main door and the front gate of the Property. She found that the water seepage was located near the back door of the Property. She therefore engaged workers to fix the water seepage problem. However, following the said repairing work, she still continued to receive complains from the management office.

89.Since about 1 October 2001, Bruce Ma moved back to the Property, and she would stay there overnight occasionally. Since about 27 October 2002, she moved and started to live in the Property. She and Bruce Ma married in Guam in 2004. After that, they continued to live in the Property. As the condition of the Property was bad, and verbal warning from the Building Authority about the unauthorized building works in the Property had been received, they planned to carry out a major renovation to the Property.

90.She said on the morning of 13 February 2005, Bruce Ma asked her to go back to the Property to meet his parents and siblings when she was having breakfast with her family members outside. She therefore went home and met them in the Property. After taking a photograph together, she left the Property again.

91.During the Easter holiday between 25 and 28 March 2005, she and Bruce Ma accompanied Ma Yiu to Mainland to visit Ma Yiu’s residence in Panyu, Guangdong. On 27 March 2005, while Bruce Ma was taking a shower, Ma Yiu mentioned to her about the family arrangement he had with Sidney Ma and Bruce Ma in relation to the Aberdeen Flat and the Property. He told her that he intended to give each son a house when they married, and he originally intended to give the Property to Sidney Ma. However, he later found that Sidney Ma became quite snobbish and often regarded the Property as old and in dilapidated condition. Ultimately, he decided to give the Property to Bruce Ma. On the other hand, since 1992, Ma Yiu asked Sidney Ma to apply for a flat under HOS and he would swap his then public housing unit for Sidney Ma if the application were successful. The said application of Sidney Ma succeeded in about 1994. In October 1995, Ma Yiu decided to pay the front payment and stamp duty for Sidney Ma in respect of the purchase of the Aberdeen Flat as a gift to Sidney Ma, but he had to repay the mortgage instalments himself. This was agreed by Sidney Ma. Regarding Bruce Ma, Ma Yiu mentioned to the 1st Defendant that at about the time of Bruce Ma’s first marriage (ie December 1996 according to the evidence of Bruce Ma), he and the Deceased had promised to give the Property to him. But as the Deceased did not like Bruce Ma’s then fiancée, she told Bruce Ma that they would withhold the transfer. Later, she also refused to let Bruce Ma’s first wife living with them after their marriage. Ma Yiu also mentioned that about the incident happened on 23 June 2000, ie Bruce Ma moved out of the Property after having raised a number of complaint to his parents, he and the Deceased did feel sorry for that. Ma Yiu further said that he and the Deceased would find a lawyer to proceed with the transfer matter to fulfil their promise to Bruce Ma. During the period of time when they stayed in Panyu, she, Ma Yiu and Bruce Ma had paid a visit to Cho Ka Cheung (ie PW1), and had dinner that night.

92.On 9 February 2007, an order from the Building Authority demanding the owners of the Property to demolish some unauthorized building works and to reinstate parts of the Building so affected was received. Two days later, Bruce Ma and the 1st Defendant retained one Majestic Design Ltd. to carry out the renovation of the Property, etc. She then paid them HK$43,000 in total as deposits. However, there were disputes between them and, after a claim was lodged in the Small Claims Tribunal, a sum of HK$43,130 was returned to her. Bruce Ma and the 1st Defendant then retained another design company on about 28 November 2007. The renovation, which was a very extensive one, was ultimately completed in about February to March 2008. The renovation fee in the sum of HK$204,100 was paid by her and Bruce Ma jointly. They treated the Property as their own property.

93.She was told by Bruce Ma that the Deceased had instructed Jackson Ho to transfer the Property to him, and the transfer documents were executed by Bruce Ma and the Deceased on 8 December 2008 at Jackson Ho’s office. Following the death of the Deceased, Bruce Ma retained Jackson Ho to apply for the administration of the estate of the Deceased. On 20 November 2010, Bruce Ma discovered that the Property remained a part of the Deceased’s estate because Jackson Ho had failed to complete the legal procedure of the transfer. She only knew about that on 26 March 2011 when she accompanied Bruce Ma to see Jackson Ho at his newly established firm. She said Jackson Ho told Bruce Ma that the Property formed part of the Deceased’s estate, and consent from Flora Ma and Sidney Ma was required to transfer the Property back to him. The 1st Defendant in her witness statement also mentioned that she worked as a legal clerk for Jackson Ho from 1 September 2012 to 4 June 2013 but did not handle Bruce Ma’s case.

94.In around 2011, she discovered that Bruce Ma had another relationship and thus asked him to leave the Property. Since then, the Property has been in her exclusive possession. Although they lived apart, they have not divorced and are still friends. She said Bruce Ma has all along asserted that the Property should not form part of the Deceased’s estate, but he failed to pursue his claim due to his financial difficulty.

95.The 1st Defendant said as she and Bruce Ma had been in exclusive possession of the Property since 2002 with the intention to exclude the whole world including the Deceased, and that she has been in exclusive possession of the Property with the aforesaid intention since Bruce Ma had left the Property in 2011, she should be entitled to claim a possessory title to the Property.

96.The 1st Defendant also said in her witness statement that during the time when she and Bruce Ma lived in the Property, they settled their share of contribution to the IO regarding maintenance work to the common area of the Building. She also attended some of the IO meetings. Further, Bruce Ma had promised her that everything belonging to him is hers as well, in particular he also represented to her that he would give the Property to her. In the premises, the Deceased’s estate holds the Property on trust for her. Alternatively, she is entitled to a possessory title to the Property based on adverse possession.

97.Under cross-examination, the 1st Defendant said she had not discussed the Family Arrangement with Bruce Ma before filing her Defence. She explained that she wished to use the version she heard from Ma Yiu. She could not remember when she first discussed the Family Arrangement with Bruce Ma, but it should have been around the time of drafting the witness statement.

98.When asked about the “common understanding” between her and Bruce Ma as pleaded in the Defence and Counterclaim that the Property is to be jointly beneficially owned by them on equal basis and Bruce Ma also impliedly represented to her that if he passed away in future, the Property would be wholly beneficially owned by her, she replied that Bruce Ma had said everything belonging to him was to be given to her, but that she would return half of it to him, and this also applied to the Property, meaning Bruce Ma had given her the entirety of the Property, but she had returned half to him. She said the “common understanding” not only existed in 2004 but also in 2002 when they bought their Zhuhai property, and that Bruce Ma “impliedly represented” to her and did not expressly tell her (because she simply knew) that upon his death everything would belong to her. However, at a later stage, the 1st Defendant explained that in fact, she and Bruce Ma had not discussed their respective share of ownership in the Property. Anyway, she considered that each of them were owning half of the Property, and Bruce Ma had expressly told her that the Property would be wholly owned by her when he passed away in future (and not impliedly represented to her as pleaded in the Defence and Counterclaim), and she did not realize that amendment to her Defence is required in this regard. She acknowledged that how she had received her portion of the beneficial interest in the Property is an important topic, and she also acknowledged that it was not mentioned in her joinder affirmation dated 3 December 2019 but only first appeared in paragraph 21 of her Defence. She explained that because she only mentioned about adverse possession when she first went to the solicitors firm.

99.The 1st Defendant confirmed that she did not mention about going to Panyu with Ma Yiu in 2005 and their conversation about “the family arrangement he had with Sidney and Bruce in relation to Aberdeen Property and the Property” in the Defence and Counterclaim or in her said affirmation for joinder, but she only stated it in her witness statement for the first time.

100.She admitted that she did not mention in her witness statement that Bruce Ma had to surrender his residency status in the Aberdeen Flat and had to bear the maintenance and repair expenses of the Property, but the same was pleaded in her Defence and Counterclaim. She agreed that in her witness statement she was saying that the parents of Bruce Ma were giving the Property to him unconditionally. She acknowledged that there were differences in her witness statement and her Defence, and she said that she was negligent and therefore she had not mentioned the same in her witness statement.

101.When asked about the change of the locks to the Property and the handling of the water seepage problem thereof in 2001, the 1st Defendant said in fact the worker she engaged in 2001 only taught her to turn off one valve, and she did not do any repairing work between 2001 and 2007. When she was asked why she used the words “following the said repairing work” in her witness statement, she first answered that it might due to her poor English. However, when further asked, the 1st Defendant admitted that in fact she had received tertiary education at the City University of Hong Kong and obtained a Bachelor degree in Laws after she had studied there for three and half years. She said that the so-called “repairing work” was in fact turning off the valve only.

102.Regarding detriments, the 1st Defendant agreed that the utilities and other expenses would be incurred if she occupied the Property, and that she and Bruce Ma paid the Property expenses because they wished to continue occupying the Property as well as because of their common understanding or the implied representation.

103.The 1st Defendant disagreed with the Plaintiff’s case put to her that between 2000 and 2006 the Deceased in fact lived at the Property and not at an elderly home as alleged. However, she was unable to tell the court in which elderly home the Deceased lived during this period of time, and she has never asked the Deceased about this. The 1st Defendant said both Bruce Ma and she did not visit the Deceased at the alleged elderly home between 2000 and 2006.

104.She said that the date of the gathering was 13 February 2005. At that time she has already been in adverse possession of the Property. However, she did not mention this fact to Ma Yiu or the Deceased when she saw them, although she knew that they were the registered owner of the Property. When it was put to her that at that time she did not have the intention to adversely possess the Property and therefore she did not consider it necessary to mention that to them, the 1st Defendant agreed.

105.She said that she did not seek the location of the unknown elderly home, at which the Deceased purportedly lived between 2000 and 2006. When Ma Yiu passed away and the Deceased returned to the Property to live with her and Bruce Ma, they did not seek to withdraw the Deceased from the unknown elderly home or deal with any of the Deceased’s belongings. Her explanation was that she was negligent. When she was asked if the Deceased was already living in an elderly home, there would be no need for the siblings to discuss how to deal with the living arrangements of the Deceased, which the 1st Defendant said she did not know.

106.There are quite a number of different problems in the 1st Defendant’s evidence. Firstly, many pieces of her evidence are self-contradictory. Here are some examples:

(1)  When she was asked whether the family arrangement pleaded in the Defence and Counterclaim in fact contained two parts: the first part about the Aberdeen Flat and the second part about the Property, the 1st Defendant initially said that was her understanding and that was what she told her solicitors. However, upon being further cross-examined, she changed her answer and said the family arrangement was only about that part between Bruce Ma and her family members (about the Property). When this court asked her why she gave two different answers, she then said her final answer was that the family arrangement concerned two properties and four people. She further said that the four people did not discuss the matters at the same time – it was the discussion between Ma Yiu, the Deceased and Sidney Ma on one occasion, and Ma Yiu, the Deceased and Bruce Ma on another occasion.

(2)  Although she knew that the “implied representation”  allegedly made by Bruce Ma as pleaded in the Defence and Counterclaim was incorrect, she did not seek to amend it because she concerned about the legal costs. However, when further asked, the 1st Defendant changed to say that she at the time did not know amending the Defence and Counterclaim is required. When asked what “at the time” was, the 1st Defendant first said that was the time when she engaged her solicitors, and then she further changed to say that all along she did not realise that amendment is required. When it was pointed to her that meant it was incorrect for her to say about legal costs as her concern, she then said she had mistakenly uttered it and would like to retract her words.

(3)  It was pleaded in the Defence and Counterclaim that “After discussion, Ma Yiu and the Deceased agreed to purchase the new flat under the sole name of Sidney Ma and they would support the front payment for Sidney Ma as a gift to him.”  However, in her witness statement she stated that Ma Yiu “would pay the front payment and stamp duty” for Sidney Ma. When asked about the discrepancies, the 1st Defendant replied that she only realised the same at the stage of drafting witness statement when her counsel asked her whether there were any other payments made by Ma Yiu. She knew that “stamp duty” was missing in her Defence but she did not know that amendments to the Defence are required.  

(4)  It was pleaded in the Defence and Counterclaim that “The consideration [for the Property to be transferred to Bruce Ma] was that Bruce Ma would agree (not to have his name in the title) to surrender his residency status (“戶籍”) in the new flat and he had to bear the maintenance and repair expenses of the Property.”  However, in her witness statement she stated that Ma Yiu and the Deceased would gift the Property to Bruce Ma unconditionally. She accepted that there was such a discrepancy and said that it was her negligence not to mention same in her witness statement. Upon being further cross-examined, she changed her answer and tried to lay the blame on her then legal representatives by saying that it was their fault for not to remind her when drafting the witness statement.

(5)  When asked why she has not disclosed water bills and electricity bills of the Property, she answered that she would throw away the bills after making payments. However, she did keep some of the bills for Government rates and did not throw all of them away even after payments.

(6)  Although the alleged adverse possession started in 2001, the demands for rates of the Property were in the name of Ma Yiu and the Deceased until the 4^th quarter of 2017. Subsequently it was changed to the name of Bruce Ma because she and Bruce Ma felt it should be done. When asked why she did not put either both of their names or her own name instead of Bruce Ma’s, she first said she did not know that it could have both of their names, despite the demands for rates were previously sent to Ma Yiu and the Deceased. She later changed to say that she knew but did not consider it.

107.Secondly, some of her answers did not make sense at all. For example:

(1)  When she was asked why she mentioned that during the visit to Panyu in March 2005 she “played a visit to Cho Ka Cheong (sic), Ma Senior’s nephew and we had a dinner that night” in her witness statement, she answered that she wanted to rebut Mr Cho’s allegation in his witness statement that he only met her at the funeral of Ma Yiu in December 2006 for the first time. However, in fact their respective witness statements were exchanged on the same day, and therefore the 1st Defendant should have no chance to read Mr Cho’s statement when hers was drafted.

(2)  In a conference call in January 2016, Sidney Ma has raised the question about the Property. The 1st Defendant said she in the said conference call had said that there was no need to discuss about it. However, it was recapped in the email dated 28 January 2016 sent by Sidney Ma to Flora Ma, Bruce Ma and the 1st Defendant that “Erika will provide the valuation of property from several sources, such as previous transactions, current valuation from local banks, and Bruce and Erika’s proposed price.”  She accepted that she could reply to the email (to clarify it), but she chose not to reply, because she did not want to discuss about the Property with Sidney Ma. When this court asked her about the reason for not to rebut him by email, the 1st Defendant simply said that she was unable to explain.

(3)  Her evidence is that Bruce Ma gave her the whole Property and she told him that she would give him back half of it and therefore half of the Property belonged to him. She further said that in 2011 there was a discussion between her and Bruce Ma in which Bruce Ma expressly told her that “I give you all my stuffs” and “here Wing Fai (ie the Property) is given to you”, and she said, “You give all to me, then I give half of them back to you”. In my judgment, it does not make sense at all when one is talking about the beneficial interest in the Property.   

(4)  She said that between 2000 and 2006, the Deceased lived at an unknown elderly home, but she has never asked about its name and address. In my view, if that were true, there would be no need for the children to discuss how to deal with the living arrangements of the Deceased after the passing of Ma Yiu. Further, it is not reasonable for them just to leave the Deceased’s personal belongings at the unknown elderly home and also not to cancel the Deceased’s registration at that elderly home.

(5)  She also said that Ma Yiu lived in Panyu at that time and would stay at an unknown place and not at the Property when he came back to Hong Kong. If that was true, it meant Ma Yiu and the Deceased had effectively abandoned the Property, and Ma Yiu lived on his own and the Deceased lived on her own. Further, she said on 8 December 2006, she left the Property about 10 to 15 minutes after Ma Yiu and the Deceased had arrived at the Property, leaving two of them at the Property alone. Such evidence, in my judgment, does not make sense at all.

(6)  She said she lived in the Property since 2002. However, she said that save for Bruce Ma, the entire world did not know they lived in the Property. She also said that all the tax documents were sent to the address of her maternal grandmother, notwithstanding that her grandmother has moved about three to four times between 2001 and 2006. She explained that because she did not want her employer, and also her colleagues to know that she was living at the Property, as she considered the address of the Property was her personal data, but not the address of her grandmother. Such evidence is, in my view, nonsensical.

108.Thirdly, some of her evidence are contradictory to documentary and indisputable evidence. For example,

(1)  despite the production of the email dated 28 January 2016 which show that the 1st Defendant has in the conference call agreed to provide the valuation of the Property from various sources and then to propose the price for it with Bruce Ma, she still denied that she had agreed to do so and said that she had in the conference call refused to discuss it with Sidney Ma.

(2)  She alleged that Ma Yiu had in Panyu told her about the family arrangement he had with Sidney Ma and Bruce Ma in relation to the Aberdeen Flat and the Property, etc. However, there is no mention of the same in the emails exchanged between her and the 3 Beneficiaries at all.

109.Fourthly, some of her evidence are different from what Bruce Ma said. Examples will be shown in section J4 below.

110.All in all, I take the view that the 1st Defendant is not an honest witness and therefore her evidence should be rejected.

J4.  Bruce Ma

111.In his witness statement, Bruce Ma said between 1986 and 1991 Ma Yiu kept asking him to apply for a flat under HOS via “Green Form”. However, such applications were not successful. He believed that since 1992 Ma Yiu had asked Sidney Ma to make the applications instead. Sidney Ma therefore in about April 1996 moved to live in the Aberdeen Flat.

112.In about mid-1996, he told his parents that he was going to marry. In the presence of the Deceased, Ma Yiu told him that he had already helped Sidney Ma to buy the Aberdeen Flat, the Property would be left for him, as both Sidney Ma and him were going to have their own family, but he had to be responsible for all the outgoings of the Property from then on and had to surrender his residency status in the Aberdeen Flat, to which he agreed. He said that is “the Representation”. Later, the Deceased told him that Ma Yiu had paid the front payment and other expenses in respect of the Aberdeen Flat for Sidney Ma. He believed that Sidney Ma also knew about the said family arrangement, ie his parents surrendered the public housing unit at Shek Lei Estate to help Sidney Ma to purchase the Aberdeen Flat and paid the front payment and the stamp duty therefor, while they would transfer the Property to him (Bruce Ma) in future. He also said that as a matter of fact, there was a transfer in the sum of HK$90,000 from Ma Yiu’s bank account on 12 October 1995 as shown in his bank passbook, and he verily believed that Ma Yiu had paid it for Sidney Ma in respect of the deposit, stamp duty and other sundry items in the purchase of the Aberdeen Flat, as the total sum of 5% of the purchase price plus the stamp duty was HK$88,780. He in his supplemental witness statement stated that Ma Yiu should have transferred the said sum of HK$90,000 to Sidney Ma as a gift, as the transfer took place two days before Sidney Ma’s marriage on 14 October 1995.

113.Since then, in reliance upon the Representation, he started to give HK$2,000 to HK$3,000 in cash to his parents monthly to cover the expenses and outgoings of the Property. However, the Property was not transferred to him because the Deceased did not like his then fiancée. In December 1996, he married his first wife (not the 1st Defendant). He continued to live in the Property until December 1999, but the Deceased did not allow his first wife to live there. In February 1999, he and his first wife were successful in buying a HOS flat, and they were going to move to live there in mid-2000. On the night of 23 June 2000, he moved out of the Property and started to live in his HOS flat, after he raised a number of complaint to his parents, including the complaint that they had not yet carried their promise of giving the Property to him into effect.

114.At the end of June 2000, Ma Yiu called Bruce Ma and said that he had made arrangement for the Deceased’s accommodation, and he himself would stay longer in Hong Kong in order to take care of the Deceased. He reiterated that the Property would be given to Bruce Ma as promised by him and the Deceased. He also said that they would move out of the Property and leave it to Bruce Ma to manage. Between 23 June 2000 and 30 September 2001, Bruce Ma did not see Ma Yiu and the Deceased at the Property when he returned there occasionally, and he settled all the outgoings of the Property himself. Bruce Ma in his supplemental witness statement said that he deposited money from time to time into the Deceased’s personal bank account for payment of electricity bills until the said account was closed on 16 December 2006.

115.Since around 2001, Bruce Ma asked the 1st Defendant to collect the letters for him by giving her the keys to the letter box of the Property. Subsequently, the 1st Defendant told him that there was water seepage from the Property. In order to fix the problem without further delay, the 1st Defendant engaged a door smith to break into the Property, and then changed the locks. The 1st Defendant then gave one set of the keys to him.

116.On 1 October 2001, Bruce Ma moved back to live in the Property, and the 1st Defendant would stay therein occasionally until about 27 October 2002 when she moved and started to live there with him. They continued to live in the Property after their marriage in 2004 and planned to carry out a major renovation to the Property. Between July 2000 and February 2005, Ma Yiu and Bruce Ma had telephone conversations but had not met face-to-face. On the morning of 13 February 2005, Ma Yiu and the Deceased arrived at the Property for a family gathering, and it was Bruce Ma who opened the door for them. Ma Yiu on that day mentioned to Bruce Ma that he mainly resided in Mainland China since 2002, and that the Deceased had been living in an elderly home since July 2000. Subsequently Sidney Ma and his wife arrived, and then Flora Ma and her two sons. He opened the door for them too. As his parents wanted to meet the 1st Defendant, he therefore asked her to come back home. After taking a photograph together, the 1st Defendant left home again. He put up a long-sleeved sweater and a pair of trousers before taking the photograph.

117.In November 2006, he and the 1st Defendant brought Ma Yiu and the Deceased to the Immigration Department to apply for their new identity card. On 8 December 2006, the parents paid a visit at the Property and asked when they could collect their new identity cards. After a while, Ma Yiu felt uncomfortable and was admitted to Kwong Wah Hospital, and passed away that night. Since then he and the 1st Defendant took care of the Deceased in the Property. On 16 December 2006, Sidney Ma asked him to bring the Deceased to different banks, in which Sidney Ma made use of her identity card to withdraw all her deposits, which was over one million, from her bank accounts. The Deceased reluctantly acceded to such request and was so angry and heart-broken, and was admitted to hospital due to high blood pressure. She stayed in the hospital for four days before moving to the Elderly Home on 20 December 2006. Sidney Ma later opened a joint savings account and a joint current account in the 3 Beneficiaries’ names and deposited only HK$36,000 into the savings account and siphoned off the majority of the Deceased’s money for his own investment use. Bruce Ma would draw cheques from the joint account to pay for the Deceased’s residence fee of the Elderly Home with the money transferred from the joint savings account by Sidney Ma. All the Deceased’s other living expenses including medical fees, diapers, milk powder and wheelchairs were settled by him and the 1st Defendant.

118.On 9 February 2007, a building order in respect of the Property was issued. Two days later, he and the 1st Defendant retained a design company to carry out renovation work to the Property. However, the said design company failed to perform, and they had to retain another design company to take its place. The renovation work, which was a very extensive one, ultimately completed in February to March 2008. But for the Representation made by Ma Yiu he would not spend so much money and time for the renovation. All along both he and the 1st Defendant had treated the Property as their property, and also had the intention to exclude the whole world when they occupy the Property since about October 2002.

119.As both parents ceased living in the Property since July 2000, they had never entered the Property, except they came to visit him and the 1st Defendant on 13 February 2005. Between April 1996 and June 2000, Sidney Ma seldom went to the Property to visit their parents. There was a water heater installed in the Property many years ago and therefore it was not necessary for Mr Cho to buy one for the Property in 2004. Bruce Ma also said that he had never seen Mr Cho at the Property since he had moved back to live there in October 2001.

120.The management fee and government rent and rates of the Property were paid out of the joint account for about one year from the beginning of 2007 as per the Deceased’s suggestion, because Bruce Ma had been unemployed for around eight months since mid-2006. At the beginning of 2008, the 1st Defendant paid for the legal fee of HK$5,000 to a solicitors firm in relation to the administration of the estate of Ma Yiu, as a repayment to the Deceased.

121.He said the Deceased had through him instructed Jackson Ho to prepare documents for transferring the Property to him pursuant to the said family arrangement. On 21 July 2008, he and the Deceased went to see Jackson Ho again. As the title deeds and documents of the Property were kept in the Deceased’s safe deposit box, Jackson Ho suggested that he would retrieve copies of the relevant title deeds from the Land Registry for the purpose of drafting the transfer documents. At the beginning of December 2008, Jackson Ho informed him that the transfer document was ready for execution. He and the Deceased then on 8 December 2008 went to execute the document(s) as instructed. The Deceased also handed over two keys to her safe deposit box to him. After that, his understanding was that the Property had already been transferred to him. Following the death of the Deceased on 7 March 2009, he instructed Jackson Ho to apply for letter of administration. On 20 November 2010, he signed the documents for the application and, to his surprise, noticed that the Property was referred to as one of the assets of the Deceased’s estate. Jackson Ho explained that the legal procedure regarding the transfer had not been completed yet and urged him to sign those documents first. Jackson Ho also told him that he would help transfer the title of the Property back to his name after the letter of administration has been granted. Hence, the Schedule of Assets and Liabilities was affirmed by him.  

122.In 2011, Bruce Ma moved out of the Property after the 1st Defendant discovered that he had a relationship with another. The Property has since then been in the 1st Defendant’s exclusive possession. However, they have not divorced, and he said that he would still honour his promise that everything belongs to him is hers. He asked this court to order the title of the Property be transferred to the 1st Defendant.

123.He said later Flora Ma and Sidney Ma became aware of the fact that the Property had not been transferred to him. They then started to press him to discuss the matter with them. He said all along he had asserted that the Property should not form part of the Deceased’s estate. However, as he only had limited resources, he had all along decided not to pursue his claim but asked the 1st Defendant to pursue her claim based on adverse possession. In order not to have further conflicts with his siblings, he also once suggested to buy out the shares of Flora Ma and Sidney Ma in the property. He further said in his witness statement that based on the family arrangement and the detriments made by him in reliance with the Representation, the Deceased’s estate should be estopped from denying his rights and interests in the Property.

124.He in his supplemental witness statement said that he had purchased a gas stove and also a gas heater which was installed at the toilet of the Property in 1998. Therefore it was not possible for Ma Yiu to request Mr Cho to buy and install a gas heater at the Property in 2004.

125.Under cross-examination, Bruce Ma admitted that in fact he did not know what were discussed between Sidney Ma and Ma Yiu and the Deceased regarding the handling of the Aberdeen Flat because he was not present during such discussions. He also said that only Ma Yiu, the Deceased and he himself were involved with discussing the handling of the Property and Sidney Ma was not involved. He said he was told by Ma Yiu and the Deceased that they would inform Sidney Ma about the handling of the Property, and he did not know whether Sidney Ma agreed to the handling of the Property. He simply relied on his parents. He agreed that the handling of both the Aberdeen Flat and the Property was considered “the family arrangement”. He confirmed that all four of them (Ma Yiu, the Deceased, Sidney Ma and himself) have never discussed the family arrangement together at the same time. Neither has he ever discussed the family arrangement with Sidney Ma.

126.He agreed that paragraph 6(1) of his affirmation dated 24 March 2017 in respect of the application made by Flora Ma and Sidney Ma for removing him as administrator of the estate of the Deceased was referring to the said family arrangement. However, it was only stated “there were arrangements between the Deceased and myself prior to her death, and that I verily believe that the beneficial interest of the Property has passed to me… the issue of the ownership of the Property is a matter between myself and the Estate”, and no details of the family arrangement was mentioned. Upon clarification, he confirmed that the 1st Defendant did not have any interest in the Property because it was a matter between him and the Deceased’s estate. He said his position is the same as that stated in paragraph 7(1) of his said affirmation, ie “I verily believe that I am the owner of the Property.”  He maintained that he owned 100% of the Property.

127.He also said in court that it was only on 16 December 2006 the Deceased told him that Ma Yiu had paid for the initial deposit of the Aberdeen Flat. He explained that he suddenly remembered that day because it was the same day in which Sidney Ma had obtained the Deceased’s identity card to take all her money, and the Deceased on that day retrieved the Po Sang Bank passbook and gave it to him and said one of the transactions was payment for the initial deposit, although she did not identify the said transaction in the passbook. He admitted that he only knew for the first time that the initial deposit was in fact paid on 24 February 1994. Hence, he agreed that he did not know how Ma Yiu helped Sidney Ma pay the initial deposit. He agreed that because the sum of HK$90,000 as shown in the passbook is close to his calculation of HK$88,780, he thus inferred that this was the sum Ma Yiu had used to help Sidney with the purchase of the Aberdeen property. His calculation did not include legal fees because he did not know how much it was.

128.Concerning the allegation that he surrendered his residency status in the Aberdeen Flat as the consideration for Ma Yiu and the Deceased to transfer the Property to him under the Representation, he confirmed that he wrote his name and the date “13.1.99” on the proforma letter addressed to the Hong Kong Housing Authority (the “HA Letter”) and signed it himself. However, he said that he did not go to sign any document to surrender his residency status in the Aberdeen Flat. He said according to his understanding the HA Letter was to inform him to surrender his residency status as soon as possible. However, upon clarification, Bruce Ma agreed that, according to the contents of the HA Letter, it was him who notified the manager of the estate of Aberdeen Flat that he would surrender his residency status. He explained that when he applied for HOS flat by way of “White Form”, he was required to state in the White Form if he had registered in any HOS flat, and therefore he state the Aberdeen Flat on it. Subsequently when he was successful in purchasing his HOS flat at Grand View Garden, Diamond Hill (the “Grand View Flat”) in 1999, the officer of the Housing Authority provided him with the HA Letter and asked him to write down the information therein. He agreed that purchasing the Grand View Flat would mean he was not able to keep his residency status in the Aberdeen Flat in any event.   

129.Regarding the monthly payments of HK$2,000 to HK$3,000 in cash to his parents, he admitted that sometimes he would pay, but sometimes he would not. He said that he began to pay from 1996 to end of June 2000 after his “complaint” to his parents on 23 June 2000. Upon clarification, he admitted that he would leave the Property and move into Grand View Flat in any event, regardless of his complaint.

130.Concerning the allegation that the 1st Defendant has obtained half interest in the Property from him, Bruce Ma said the “previous promise” that “everything belongs to me is hers” was made before marriage. However, at one stage he also said he believed that the Property belonged to him, and at another stage he said that it was his stance that 100% of the Property belongs to the 1st Defendant and not 50 / 50. He explained that although “everything belongs to me is hers”, he was still owning 100% of the Property before he has given it to her. He clarified that concerning the title / interest in the Property, it was his intention to give 100% to the 1st Defendant. Since he has not yet given it to her, he was still owning 100% of the Property for the time being. He confirmed that what he said 100% of the Property belonged to the 1st Defendant was not correct. It was his intention only. He agreed that he could have transferred the Property to the 1st Defendant after he had gone to Jackson Ho’s firm with the Deceased in December 2008 to execute the documents transferring the Property to him. He explained that he did not do so because there was no rush. He said it was just from the heart, and whether the Property was actually transferred to the 1st Defendant was not important.

131.When he said he and Ma Yiu had telephone calls between the time the parents moving out of the Property and the family gathering, he confirmed that Ma Yiu called him about 15 times between July 2000 and February 2005, and none of those calls were made by him. Further, never once did he ask where Ma Yiu or the Deceased lived. He only asked Ma Yiu in the 2005 gathering. He explained that he did not ask because he did not care for the Deceased during the period between 2000 and 2005. He further said under cross-examination that he received a call from Ma Yiu informing him that Flora Ma had returned from USA and wanted to meet the Deceased. He did not ask where Ma Yiu was living in Hong Kong and said he was negligent in caring for his elderly father. He admitted that he was negligent (by not telling lawyers) in setting out in his witness statement how the family gathering came about. However, upon further questioning, he said in fact he had told the lawyers that Ma Yiu had called him ahead of the family gathering. He further said Ma Yiu in the phone call told him that he did not want to go to Hong Kong Island. He then suggested to meet in the Property. At the family gathering, he asked Ma Yiu where the Deceased lived, but Ma Yiu refused to tell him. He agreed that he had the opportunity to ask the Deceased directly at the family gathering, but he did not ask. His explanation for not asking was simply because Ma Yiu (and not the Deceased) told him not to ask about it. He also did not seek any method of contacting the Deceased, such as phone number of the elderly home she lived. He also revealed that he only at the family gathering informed Ma Yiu for the first time that he married in 2004. He said he did not discuss with the 1st Defendant that she should return to the Property as soon as possible where his parents went to visit them and were waiting for her at the Property, of which she was the hostess. He said that people began leaving at around noontime. Afterwards, he went with the parents to eat at the Kam Wah Cafe nearby.   

132.Bruce Ma also revealed that the parents’ belongings were still kept in the Property, including clothing, Ma Yiu’s vases, Ma Yiu’s antiques, Ma Yiu’s family tree document, and the Deceased’s clothing, sewing machine, mirror and miscellaneous items. He further explained he disposed of the Deceased’s belongings about half a year after she went to live in the Elderly Home. However, he could not explain why he kept the Deceased’s belongings for 7 years but disposed of them 6 months after the Deceased moved into the Elderly Home. He also said some of the personal belongings were kept by the renovation company. The family tree document was disposed of in around 2010/2011. He subsequently said in fact he had asked the Deceased where her “original” elderly home was, but she had refused to answer, and he confirmed that his previous evidence was incorrect. He also confirmed that after the Deceased had moved to live at the Elderly Home, if she wished to return to the Property to live, he would welcome her and not object to it.

133.Regarding the alleged documents he and the Deceased executed for transferring the Property to him, he agreed that they were important documents, but he did not retain a copy himself. When he was asked why the title deeds were not brought to Jackson Ho’s office for the purpose of transferring the Property to him, he explained that the lawyer said it was not necessary, when he and the Deceased attended his office. Despite his agreeing that it would be common sense to bring the title deeds to Jackson Ho’s office for transferring the Property to him, he did not do so because he thought just accompanying the Deceased to the office would be sufficient. When asked why photocopying fees of HK$1,600 needed to be unnecessarily incurred when the title deeds were in fact stored in the safety deposit box, he answered that it was “simpler” that way.

134.Bruce Ma agreed that the email dated 6 January 2015 was a recap of a conference call. He also agreed that the value of the Property was discussed over the phone. In particular, he told Sidney Ma that the Property was part of the Deceased’s estate. He said Sidney Ma acknowledged that the Property was part of the estate and asked him to discuss with the 1st Defendant on how to get back the ownership of the Property. He admitted that he could have emailed Sidney Ma to express that the contents were inaccurate but he never did. Regarding the email dated 23 May 2015, he accepted that the wording of the email means that the Property belonged to the Deceased’s estate. He explained that despite the Property in fact was his, since the Property was part of the estate, he did not wish to litigate with Sidney Ma and Flora Ma and thus would buy their shares if they did not transfer it to him. He was willing to borrow money to buy the portion belonging to them. In the email dated 26 May 2015, he accepted that the Property is part of the Deceased’s estate, thus he proceeded to find out the value of the Property. He said he had discussed with the 1st Defendant that the value at the time of the Deceased’s death should be adopted as the value of the Property. The 1st Defendant had found the price of HK$4.7 million and then emailed Sidney Ma and Flora Ma. He further said that he had discussed with the 1st Defendant that they were willing to purchase the Property using HK$3 million, which was the value at the time of the Deceased’s death, and which mean he was willing to pay HK$2 million for Sidney Ma’s and Flora Ma’s portions. He acknowledged that there are no emails that ever mentioned about the family arrangement or said he or the 1st Defendant has adversely possessed the Property. He confirmed that between 1996 and 2011 he had no intention for adverse possession of the Property, because he could not adversely possess a flat that was owned by him. He also confirmed that the first document mentioning about adverse possession is his letter to the Plaintiff dated 3 July 2018, which was drafted by the 1st Defendant in Chinese. He agreed that before he left the Property in 2011, the 1st Defendant had not adversely possessed the Property.

135.Same as the 1st Defendant’s, there are quite a number of different problems in Bruce Ma’s evidence. Firstly, many pieces of his evidence are self-contradictory. The most apparent example is that he at one stage said he believed that the Property belonged to him, but at another stage he said it was his stance that 100% of the Property belongs to the 1st Defendant and not 50 / 50. He explained that although “everything belongs to me is hers”, he was still owning 100% of the Property before he has given it to her. He further said that concerning the title / interest in the Property, it was his intention to give 100% to the 1st Defendant. Since he has not yet given it to her, he was still owning 100% of the Property for the time being. He confirmed that what he said 100% of the Property belonged to the 1st Defendant was not correct. It was his intention only.

136.Another example is, in his witness statement, he said the family arrangement was that his parents would surrender the public housing unit at Shek Lei Estate to help Sidney Ma to purchase the Aberdeen Flat and paid the front payment and the stamp duty therefor, while they would transfer the Property to him in future. However, under cross-examination, he admitted that in fact he did not know what were discussed between Sidney Ma and Ma Yiu and the Deceased regarding the handling of the Aberdeen Flat because he was not present during such discussions. He also said that only Ma Yiu, the Deceased and he himself were involved in discussing the handling of the Property and Sidney Ma was not involved. He agreed that the handling of both the Aberdeen Flat and the Property was considered the “family arrangement”. However, the family arrangement stated in his affirmation was that “there were arrangements between the Deceased and myself prior to her death, and that I verily believe that the beneficial interest of the Property has passed to me… the issue of the ownership of the Property is a matter between myself and the Estate”.

137.Secondly, some of his answers did not make sense at all. Hereinbelow are some of the examples:

(1)  Bruce Ma said since around 2001 he gave the keys to the letter box of the Property to the 1st Defendant and asked her to collect letters for him. However, the 1st Defendant did not ask him for the keys to the Property but engaged a lock smith to break into the Property and change the locks instead when there was water seepage from the Property. Such evidence is, in my view, nonsensical.

(2)  He said that at the end of June 2000, Ma Yiu called him and said that he had made arrangement for the Deceased’s accommodation, and Ma Yiu himself would stay longer in Hong Kong in order to take care of the Deceased. He further said Ma Yiu reiterated that the Property would be given to him as promised by Ma Yiu and the Deceased. He also said that they would move out of the Property and leave it to him to manage. However, it was also his evidence that Ma Yiu at a later stage told him that he mainly resided in Mainland China since 2002. If that was the case, he was saying that the parents suddenly abandoned and moved out of the Property and lived at somewhere else, one in Mainland China and one in an unknown elderly home. This allegation is, in my judgment, against common sense at all.

(3)  It is unreasonable that he would completely disregard the whereabouts of the Deceased for 5 years. It is his evidence that Ma Yiu called him about 15 times between July 2000 and February 2005, but he never asked where Ma Yiu or the Deceased lived. He further said that he was unable to obtain the location of the unknown elderly home from Ma Yiu at the family gathering. If this were true, it is difficult to understand why he would not be insistent on asking Ma Yiu, or ask the Deceased direct.

(4)  He said on 8 December 2006, the parents paid a visit at the Property and asked when they could collect their new identity cards. After a while, Ma Yiu was admitted to Kwong Wah Hospital and then passed away that night. Since then he and the 1st Defendant took care of the Deceased in the Property until 16 December 2006. However, according to his evidence, the Deceased at the time was living at an unknown elderly home. There is no reason for her not to go back to the unknown elderly home but to stay at the Property with Bruce Ma and the 1st Defendant.

(5)  It is difficult to understand why the Deceased was prepared to leave all her belongings and deposit with the unknown elderly home and did not return to live there, but prepared to go to a “new” elderly home, ie the Elderly Home, on 20 December 2006. It simply does not make sense at all.

(6)  Some of the personal belongings of Ma Yiu and the Deceased were kept at the Property, including some important items which must have had high sentimental value, eg the vases, antiques, family tree document and sewing machine. He could not explain why he kept the Deceased’s belongings for 7 years but disposed of them 6 months after the Deceased had moved into the Elderly Home.

(7)  Despite the professional charges referring to “lost of title deeds”, he said the Deceased had informed the lawyer that the title deeds were in the safe deposit box and were not lost. If that were the case, it does not make sense that the lawyer would suggest to obtain a copy of the title deeds from the Land Registry, and that Bruce Ma and/or the Deceased needed to incur the fees of HK$1,600 unnecessarily.

(8)  If, according to him, the Property was his, he would not have to consider to buy the shares of Flora Ma and Sidney Ma, and even to borrow money to buy the portion belonging to them.

138.Thirdly, some of his evidence are contradictory to documentary and indisputable evidence. For example:

(1)  He alleged that Ma Yiu should have on 12 October 1995 transferred the sum of HK$90,000 to Sidney Ma as a gift for payment of the deposit, stamp duty and other sundry items in the purchase of the Aberdeen Flat, as the total sum of 5% of the purchase price plus the stamp duty was HK$88,780 and the transfer took place two days before Sidney Ma’s marriage on 14 October 1995. However, according to the official receipt issued by the Hong Kong Housing Authority, the deposit had already been paid on 24 February 1994.

(2)  He said the Deceased had in Jackson Ho’s office signed the documents to transfer the Property to him. However, the Property is included in the Schedule of Assets and Liabilities under the heading of Land and Buildings.

(3)  He alleged that there was a family arrangement between his parents and Sidney Ma and/or him, and that he and the 1st Defendant have been in adverse possession of the Property since October 2002. However, there are no emails that ever mentioned about the alleged family arrangement or the adverse possession at all.

(4)  Despite the email dated 6 January 2015 shows that Bruce Ma has in the telephone conference agreed to discuss with the 1st Defendant as to whether they would take the ownership of the Property, and that another email dated 28 January 2016 shows that the 1st Defendant agreed to provide the valuation of the Property from various sources and then to propose the price for it with him, he still said what Sidney Ma had asked him to do was to discuss with the 1st Defendant on how to get back the ownership of the Property.

(5)  He said when Flora Ma and Sidney Ma became aware of the fact that the Property had not been transferred to him, they then started to press him to discuss the matter with them. He said all along he had asserted that the Property should not form part of the Deceased’s estate. However, these allegations are not supported by the emails exchanged between them.

139.Fourthly, some of his evidence are different from what the 1st Defendant said. For example,

(1)  The 1st Defendant in her witness statement said “Bruce had promised to me that everything belonging to him is mine as well, in particular he also represented to me that he would give the Property to me.”, and in court added that she would return half of it to Bruce Ma. However, as shown in paragraph 130 above, Bruce Ma’s evidence in this regard is different.     

(2)  The 1st Defendant said that in effect everything in the Property was thrown away during the renovations, but it is Bruce Ma’s evidence that the parents’ belongings were still kept in the Property, including clothing, Ma Yiu’s vases, Ma Yiu’s antiques, Ma Yiu’s family tree document, and the Deceased’s clothing, sewing machine, mirror and miscellaneous items, until he disposed of the Deceased’s belongings about half a year after she went to live in the Elderly Home.

140.All in all, I take the view that Bruce Ma is not an honest witness and therefore his evidence should be rejected.

K.  The 1^st Main Issue: Bruce/CICT

K1.  Analysis and Deliberation

141.There is no dispute that the Property was purchased by Ma Yiu and the Deceased as joint tenants in 1972 and that it was at the material times registered in their joint names or in the name of the Deceased after the passing of Ma Yiu. The 1st Defendant therefore bears the burden of proving, on balance of probabilities, that Ma Yiu and/or the Deceased and now the Plaintiff held the Property on trust for Bruce Ma and/or the 1st Defendant absolutely.

K2.  Alleged common intention

142.The 1st Defendant’s case of Bruce/CICT is based on the alleged Family Arrangement pleaded in her Defence and Counterclaim as mentioned in paragraph 22 hereinabove.

143.I agree with Mr Yung that if the family agreement did exist, there should only be one version describing it. However, different versions have come up in these proceedings in the Defence and Counterclaim, the witness statements of the 1st Defendant and Bruce Ma, the affirmation of Bruce Ma, and their evidence in court.

144.Further, in my view, the emails exchanged between the 1st Defendant and the 3 Beneficiaries are the most important documents which can shed light on the issue before the court.

145.If Ma Yiu and/or the Deceased had really promised to transfer the Property to Bruce Ma (and the Deceased had also gone to Jackson Ho’s office to execute the transfer documents with Bruce Ma as alleged), then even if Flora Ma and Sidney Ma “pressed him to discuss the matter with them” as alleged by Bruce Ma, I would expect that Bruce Ma would have made it clear to them that the Property was in fact his, and he would not have proposed to buy their shares in the Property and even said that he would try to borrow money when he had “no financial power” to do so, as reflected in the emails. This contradicts the 1st Defendant’s case that Ma Yiu and/or the Deceased had agreed to gift the beneficial interest in the Property to Bruce Ma.

146.In any event, I have accepted the evidence of Mr Cho and Sidney Ma and rejected that of the 1st Defendant and Bruce Ma as aforesaid. I find that the transfer withdrawal of HK$90,000 on 12 October 1995 appearing in the bank passbook of Ma Yiu was not a sum paid to or paid for Sidney Ma for the front payment of the Aberdeen Flat as alleged by the 1st Defendant and Bruce Ma. I accept Sidney Ma’s evidence that the front payment was paid by him.

147.Further, I find that Bruce Ma signed on the HA Letter dated 13 January 1999 to surrender his residency status in the Aberdeen Flat because he was successful in purchasing his Grand View Flat and therefore he was not able to keep his residency status in the Aberdeen Flat, as both flats are HOS flats. It had nothing to do with the alleged Family Arrangement (or the alleged Representation). The act that Bruce Ma has signed on the HA Letter cannot support the allegation that the family arrangement did exist.

148.In the circumstances, I find that there was no such arrangement between the parents, Sidney Ma and Bruce Ma regarding the Aberdeen Flat and the Property as alleged by the 1st Defendant and/or Bruce Ma. Hence, there was no common intention between Bruce Ma and Ma Yiu and/or the Deceased that Bruce Ma was to be the beneficial owner of the Property.

K3.  The alleged detrimental reliance

149.Detrimental reliance is an element common to both common intention constructive trust and proprietary estoppel. The party asserting a claim to a beneficial interest must show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement, arrangement or understanding in order to give rise to a constructive trust. There must be some connection between his or her conduct and his or her belief that he or she has an interest in the property.

150.In view of my finding under section K2 above, there is no need for me to decide whether the 1st Defendant and/or Bruce Ma has altered their position in detrimental reliance upon the alleged common intention.

151.In any event, assuming the 1st Defendant and/or Bruce Ma has made monetary contribution to the outgoings in respect of the Property or the Building as pleaded in the Defence and Counterclaim, I agree with Mr Yung that such expenses do not qualify as detriment in this case. See Bostock (Exec) v Bryant and Another 61 P & C R 23 (C A), Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985 at para 7.20 (CA citing the CFI decision), Cheung Ping Sum v Wong Chi Hang, as administrator of the estate of Wong Sun, deceased [2019] HKCFI 2244, HCMP 1490/2016, 6 September 2019, at para 75 and Jong Lan Kiauw v Jong Yang Hwa & Another, DCMP 2540/2008, 17 November 2008, at paras 21 and 23.

152.Further, in view of my finding hereinabove that Bruce Ma signing on the HA Letter dated 13 January 1999 to surrender his residency status in the Aberdeen Flat had nothing to do with the alleged Family Arrangement, I do not accept that Bruce Ma has altered his position in detrimental reliance upon the alleged common intention.

K4.  Unconscionability

153.There is no evidence before the court of any hardship or unconscionability that may be suffered by Bruce Ma should the Plaintiff insist on his rights in the Property.

154.In my judgment, it would not be unconscionable for the Plaintiff to assert ownership in reliance on his legal title to the Property.

K5.  Conclusion on the Issue of Bruce/CICT

155.In the circumstance, I do not accept that Bruce Ma had acquired any beneficial interest in the Property pursuant to the Bruce/CICT.

L.   The 2^nd Main Issue: D1/CICT

L1.  Analysis and Deliberation

156.It is the 1st Defendant’s pleaded case that she has received the beneficial interest in the Property from Bruce Ma. However, Mr Yung in his Closing Submissions reminded this Court that how the 1st Defendant received her portion of the beneficial interest in the Property was not mentioned in her joinder affirmation dated 3 December 2019. Instead, it is stated in the said affirmation that “Regardless of whether Bruce will pursue his claim or succeed in his claim, he supports my claim based on adverse possession.”  

L2.  Alleged common intention

157.The 1st Defendant’s case of D1/CICT is based on the alleged common understanding pleaded in her Defence and Counterclaim as mentioned in paragraph 24 hereinabove.

158.However, as discussed in sections J3 and J4 hereinabove, the evidence of the 1st Defendant and that of Bruce Ma in this regard are conflicting and do not support the 1st Defendant’s pleaded case.  

159.Further, I agree with Mr Yung that even taking her evidence to the highest, it appears the 1st Defendant had received her portion in the Property by way of gift from Bruce Ma and not a purported trust arrangement as suggested in her pleaded case.

160.More importantly, Bruce Ma’s evidence is that he was 100% the owner of the Property. This evidence directly contradicts the 1st Defendant pleaded case that there was a common understanding between Bruce Ma and her that the Property was to be jointly beneficially owned by them on equal basis.

161.In any event, I have rejected the evidence of the 1st Defendant and Bruce Ma as aforesaid. I find that there was no common understanding between Bruce Ma and the 1st Defendant as alleged by the 1st Defendant and/or Bruce Ma and therefore no common intention between them that the 1st Defendant was to have any beneficial interest in the Property.

L3.  The alleged detrimental reliance

162.In view of my finding under section L2 above, there is no need for me to decide whether the 1st Defendant has altered her position in detrimental reliance upon the alleged common understanding.

163.In any event, the 1st Defendant agreed that the utilities and other expenses would be incurred if she occupied the Property, and that she and Bruce Ma paid the Property expenses because they wished to continue occupying the Property as well as because of the alleged common understanding or implied representation. I agree with Mr Yung that such expenses and the costs for redecoration do not qualify as detriment in this case.

L4.  Unconscionability

164.There is no evidence before the court of any hardship or unconscionability that may be suffered by the 1st Defendant should the Plaintiff insist on his rights in the Property.

165.In the circumstance, it would not be unconscionable for the Plaintiff to assert ownership in reliance on his legal title to the Property.

L5.  Conclusion on the Issue of D1/CICT

166.In the circumstance, I do not accept that the 1st Defendant had acquired any beneficial interest in the Property pursuant to the D1/CICT.

M.    The 3^rd Main Issue: Proprietary Estoppel

M1.  Analysis and Deliberation

167.The 1st Defendant’s case on proprietary estoppel has 2 parts:-

(1)  The 1^st part is based on the representation or assurance made by Ma Yiu and/or the Deceased to Bruce Ma.

(2)  The 2^nd part is based on the representation or assurance made by Bruce Ma to the 1st Defendant.

M2.  The 1^st part

168.The 1st Defendant contends that due to the representation or assurance made by Ma Yiu and/or the Deceased to Bruce Ma, Bruce Ma was led by Ma Yiu and/or the Deceased to believe that he had an interest or would have an interest in the Property.

169.I have rejected the evidence of the 1st Defendant and Bruce Ma and find that there was no such representation or assurance made by Ma Yiu or the Deceased as alleged.

170.Further, in the light of the emails exchanged between the 1st Defendant, Bruce Ma, Flora Ma and Sydney Ma and the answers given by Bruce Ma during cross-examination, I am of the view that Bruce Ma and the 1st Defendant treated the Deceased as the absolute owner of the Property at the time when the Deceased was still alive, and then the Property was part of the estate of the Deceased after her passing.

171.Further, had Bruce Ma genuinely believed that he had an equitable interest in the Property that derived from the Family Arrangement and/or the Representation, this would have been the forefront of his case. However, in the emails, the Family Arrangement and the Representation were not mentioned at all.

172.For the above reasons, I do not accept the first part of the 1st Defendant’s case on proprietary estoppel.

M3.  The 2^nd part

173.On the evidence of the 1st Defendant and Bruce Ma,

(1)  The 1st Defendant said there was express communication that Bruce Ma said everything belonging to him, including the Property, was to be given to her, but that she would return half of it to him.

(2)  However, it was pleaded in the Defence and Counterclaim that there was an “implied representation” that if Bruce Ma “passed away in future, the Property would be wholly beneficially owned by the 1st Defendant”. When she was asked about the inconsistency between her evidence about Bruce Ma’s express communication to give her everything and the term “implied representation”, she admitted that it was not “impliedly represented”.

(3)  On the other hand, Bruce Ma’s evidence is that he remained 100% owner of the Property, although at an earlier stage he also mentioned that everything he owned belonged to the 1st Defendant.

174.I repeat the findings and analysis set out hereinabove.

175.It is trite that to establish a proprietary estoppel, the representation or assurance must be clear enough or sufficiently clear and unequivocal. See Szeto Chak Mei v Chan Lam Shan and Others, HCMP 836/2012, 1 March 2016, cited by the 1st Defendant.

176.I find that there is no clear or unequivocal representation made by Bruce Ma to the 1st Defendant. I therefore do not accept the second part of the 1st Defendant’s case, too.

177.In relation to the alleged detrimental reliance on the part of the 1st Defendant and/or Bruce Ma, I repeat the analysis under sections K and L above.

M4.  Conclusion on the Issue of Proprietary Estoppel

178.For the above reasons, I reject the 1st Defendant’s case on proprietary estoppel.

N.  The 4^th Main Issue: Adverse Possession

N1.  Applicable Limitation Period

179.The Joint AP Period alleged by the 1st Defendant started in 2001 and the D1 AP Period in 2011. This was after 1 July 1991. Hence, the applicable limitation period is 12 years: see Tang Moon Lam v Tang Ying Yeung [2019] 5 HKLRD 556.

N2.  Exclusive Possession and Control

180.Following the analysis hereinabove, I find that the Property had been occupied by Ma Yiu and the Deceased until December 2006 when Ma Yiu passed away and the Deceased moved to the Elderly Home. After that, Bruce Ma and the 1st Defendant moved into the Property and lived there with the consent of Flora Ma and Sidney Ma.

181.I reject the 1st Defendant’s and Bruce Ma’s evidence and the 1st Defendant’s case that the 1st Defendant had in 2001 instructed a door smith to change the locks of the Property, that Bruce Ma moved to live in the Property on 1 October 2001, and that two of them have exercised exclusive physical control and/or possession over the Property since or about 27 October 2002. I find that they only moved into the Property and lived there since around December 2006 with the consent of Flora Ma and Sidney Ma, and then at a later stage only the 1st Defendant lived there after Bruce Ma had moved out of the Property.

N3.  Animus Possidendi

182.Bruce Ma’s intention to adversely possess the Property is necessary for the 1st Defendant to succeed because it is her case that she and Bruce Ma were jointly in adverse possession of the Property from October 2002 to 2011 during the Joint AP Period.

183.However, it is Bruce Ma’s evidence that had the Deceased wanted to return to the Property to live, he would welcome her and not object to it. This evidence clearly shows that he did not have the requisite intention to exclude the world at large including the registered owner, ie the Deceased.

184.Further, when it was put to the 1st Defendant that at the time of the family gathering in 2005 she did not have the intention to adversely possess the Property, and therefore she did not consider it necessary to mention the fact that she had already in adverse possession of the Property to Ma Yiu or the Deceased, the 1st Defendant agreed.

185.Besides, judging from the contents of the relevant emails, they clearly show that Bruce Ma and the 1st Defendant did not have the requisite intention at all.

186.For the aforesaid reasons, I find that at the material times both Bruce Ma and the 1st Defendant did not have the requisite intention for adverse possession.

N4.  Conclusion on the Issue of Adverse Possession

187.I am not satisfied that since 2001 Bruce Ma and/or the 1st Defendant had been in possession of the Property with the requisite intention to exclude the whole world until 2011 when Bruce Ma moved out of the Property, or that the 1st Defendant has been exercising exclusive physical control and/or possession over the Property with the requisite intention since 2011. I find that adverse possession is not established.

188.In any event, the 1st Defendant at the hearing on 30 June 2025 informed this Court that she would abandon her claim under adverse possession. Accordingly, her Counterclaim in this regard will be dismissed.

O.  Conclusion on the 1^st, 2^nd, 3^rd and 4^th Main Issues

189.For the reasons set out in sections K to M, I rule in favour of the Plaintiff and rule against the 1st Defendant on the issues of common intention constructive trust and proprietary estoppel. I do not accept the Defendants’ case that the Plaintiff holds the Property on constructive trust for the 1st Defendant and Bruce Ma, or that the Plaintiff (being the administrator of the Deceased’s estate) shall be estopped and/or precluded from asserting and/or enforcing any right, interest and/or title over the Property, or that he shall be compelled to transfer the title of the Property to the 1st Defendant and/or Bruce Ma.

190.Further, for the reasons set out in section N, I rule in favour of the Plaintiff and rule against the 1st Defendant on the issue of adverse possession. I do not accept the Defendants’ case that the registered title over the Property under the Deceased’s / the Plaintiff’s name was extinguished, or that the claim for recovering the Property has been time-barred.

O1.  The Plaintiff’s claims against the Defendants

191.In light of my findings and the aforesaid conclusions on the issues of common intention constructive trust, proprietary estoppel and adverse possession, I am satisfied that the Plaintiff is entitled to an order that the Defendants shall deliver vacant possession of the Property to him and pay mesne profits in the sum assessed hereunder.

192.At the hearing on 30 June 2025, the 1st Defendant confirmed that the title deeds of the Property are in her possession and that she would return the same to the Plaintiff if judgment should be in the Plaintiff’s favour. In the light of my findings and conclusions, the 1st Defendant would have no basis to keep the said title deeds, and I am of the view that the Plaintiff is entitled to all the title deeds and documents of the Property. I shall order the 1st Defendant to deliver all the title deeds and documents of the Property to him.

O2.  The 1st Defendant’s Counterclaims against the Plaintiff

193.In the premises, I dismiss all the 1st Defendant’s Counterclaims against the Plaintiff in this action.

P.  The 5^th Main Issue : relief and quantum

194.As a result, the Plaintiff is entitled to vacant possession (and the title deeds and documents) of the Property. The next question would be : Is the Plaintiff entitled to mesne profits and, if yes, at what quantum?

P1.  Mesne profits

195.Mr Yung referred me to para 18-76 of Clerk & Lindsell on Torts, 24^th Edition and submitted that mesne profits include compensation for the value of the use and occupation of the premises, and also any damage which has been caused to the premises themselves. He further submitted that it is a common law remedy, which requires a wrongdoer to pay a reasonable fee the use of another’s property, rather than equitable, citing Ali Gurgur v Amanda Rees, Elaine Rees, Simon Rees [2021] EWHC 2181 (Ch), Leung Chi Cheong (The Person Appointed to Represent the Estate of Leung Fai, Deceased) v Liu Che Wun and Another [2024] HKCFI 2181 and Devenish Nutrition Ltd v Sanofi-Aventis SA (France) & others [2007] EWHC 2394 (Ch).

196.Mr Yung also submitted that the general principle that a co-owner not in occupation generally cannot claim occupation rent (and mesne profits) from the co-owner in occupation has no application in this case. The reason is that, although the 3 Beneficiaries are the only beneficiaries of the Deceased’s estate, none of them can be considered as beneficial owners of the Property during the period of administration of the Deceased’s estate. See Re Yuen Kiu Kwan [2009] 3 HKLRD 371 (after considering Re Hayes’ Will Trusts [1971] 1 WLR 758 and other authorities): the estate being administered by a personal representative is the personal representative’s property. He has fiduciary duties with regard to it and his performance will be secured by the court; and he may be liable for breaches of his fiduciary duties. But no legatee, devisee or next-of-kin has any beneficial interests in the assets being administered. During the period of administration of an estate, they have no legal or equitable interest in the assets comprised in the estate. Their only right is to have the estate duly administered by the administrator in accordance with law. Whatever property that comes to the personal representative by virtue of his office as the administrator comes to him in full ownership, without distinction between legal and equitable interest, and the whole property is his. He is to hold the property for the purpose of carrying out his duties and functions as the administrator, subject to the direction of the court.

197.As such, the aforesaid general principle governing co-owners is not applicable here, and I accept that the Plaintiff is entitled to claim mesne profits against the Defendant.

198.Mr Yung submitted that the Defendant was and is a trespasser to the Property since the death of the Deceased on 7 March 2009 because the licence granted by the Deceased has been revoked by operation of law. Based on the evidence of the Plaintiff’s expert, mesne profits should be calculated as follows:

(1)	From 8 March 2009 to 13 December 2020	HK$ 1,449,300
(2)	From 14 December 2020 to 13 June 2025	HK$ 675,000
(3)	From 14 June 2025 until delivery of vacant possession	HK$ 12,500 per month

199.The submissions made by Mr Yung that the act of trespass committed by the 1st Defendant since the death of the Deceased on 7 March 2009 is technical, at least for the initial period after the death of the Deceased. Bruce Ma and the 1st Defendant are the son and the daughter-in-law of the Deceased and were, according to the evidence of Sidney Ma, “allowed” to live in the Property by Flora Ma and Sidney Ma. Further, Mr Yung’s proposition is contrary to the plea under paragraph 14(d) of the Re-Re-Amended Reply and Re-Re-Amended Defence to Counterclaim (“the Reply”) that “Bruce Ma, as sole administrator of the Estate, granted a license and/or permission to the 1^st Defendant’s occupation and/or use of the Property between 21 February 2011 and 22 June 2017. The 1^st Defendant was merely a licensee of Bruce Ma.”, although upon the enquiry made by this Court Mr Yung in his Closing Submissions said that the Plaintiff would not seek to rely on that plea.

200.According to the evidence of Sidney Ma, after the Deceased had moved to live in the Elderly Home, he and Flora Ma expressed no objection for Bruce Ma (and his family members) to move into the Property to save on some rent. In any event, he confirmed that he as a sibling had allowed Bruce Ma to live there. There should be no dispute that after the death of the Deceased, the Property would go to her estate, and the 3 Beneficiaries are the only beneficiaries of the estate of the Deceased (although not beneficial owners of the Property according to Re Yuen Kiu Kwan (supra)). The 1st Defendant in her Supplemental Closing Submissions also draws this Court’s attention to the Plaintiff’s plea under paragraph 14D(b) of the Reply that “such arrangement would be reconsidered if and when the Deceased passed away and further subject to all Three Beneficiaries agreeing to continue or vary such living arrangement”, and the fact that there was no further discussion between the 3 Beneficiaries in this regard after the death of the Deceased. It seems that all 3 Beneficiaries agreed (or at least did not express any objection) that such living arrangement should continue.  

201.Sidney Ma also said that he had not taken any action to request the 1st Defendant to move out of the Property before May 2016, notwithstanding he already knew that the 1st Defendant has been living there. In fact neither Flora Ma nor Sidney Ma has in the emails or any other forms of communication requested Bruce Ma and/or the 1st Defendant to move out of the Property, until a demand letter was issued to Bruce Ma on their behalf on 5 May 2016 as discussed below.

202.On 5 May 2016, a demand letter was issued to Bruce Ma by Messrs Tang, Wong & Chow, Solicitors on behalf of Flora Ma and Sidney Ma, in which it was mentioned as follows:

“7.3 … Upon the death of the Mother [ie the Deceased], the Property has become part of the estate of the Mother. Our clients and you are each entitled to one third of the interest of and in the Property.

7.4 We are instructed that you and your family have resided in the Property after the death of the Father [ie Ma Yiu] in about 2007, and continued to reside in the Property after the death of the Mother. Despite that you only have one third of beneficial interest of and in the Property, you and your family have been occupying the whole of the Property without paying any rent to our clients for more than 7 years after the death of the Mother.

…

8. In the circumstances, we are instructed to demand you:

…

8.2 (B) in respect of the estate of the Mother

…

4. to account for the mesne profit for occupying the Property without paying any rent since 7^th March 2009;

5. to use your best endeavor to sell the Property at market price at open market within 3 months, or to buy out our clients’ interest in the Property at market price; …”.

203.Further, Sidney Ma also in his affirmation dated 22 September 2016 stated, “Upon the death of the Deceased on 7 March 2009, Bruce continued to occupy the Property without seeking Sidney and Flora’s consent. Bruce did not pay any rent for the occupation of the Property. … Bruce became the administrator of the Estate on 21 February 2011. He continues to occupy the Property without paying any rent. Bruce has never consulted me or Flora about the occupation of the Property without paying rent, nor had we agreed to it. In fact, until we received legal advice for the present proceedings, we were not aware that Bruce was prohibited by his fiduciary duty to profit from the administration of the Estate of the Deceased and occupied the Property on a rent free basis.”  He also produced a copy of the emails which includes a message from Flora Ma to Bruce Ma (and cc Sidney Ma) dated 26 May 2015 that “I would encourage you to discuss with Erica (sic) what level you feel comfortable to afford. Let’s put everything on the table. I am sure we will find the most optimal solution.”  No request for Bruce Ma and/or the 1st Defendant to move out of the Property or demand for occupational rent or mesne profits was made in the said email.

204.It is well established that where a defendant wrongfully deprives the claimant of his land, damages are recoverable in the action for mesne profits. The normal measure of damages is the market rental value of the property occupied or used for the period of wrongful occupation. See Yeung Sui Yee v Tsang Yee Ming, HCA 419/2017, 7 January 2022, [2021] HKCFI 3922.

205.In view of the aforesaid facts and evidence, Bruce Ma’s and/or the 1st Defendant’s continued occupation and use of the Property after the death of the Deceased, at least for the initial period, can in my view hardly be regarded as wrongful. This is particularly so given that both Sidney Ma and Flora Ma expressed no objection to Bruce Ma’s and/or the 1st Defendant’s use and occupation of the Property after the Deceased had moved to the Elderly Home and Sidney Ma admitted that he as a sibling “allowed” Bruce Ma (and his family) to live in the Property. Further, this arrangement was made on the understanding that Bruce Ma and the 1st Defendant did not need to live in other rental premises, which could have saved their rental expenses. Their use and occupation of the Property had not been disturbed, and they had not been required to make any payments for it until May 2016. Apparently, Flora Ma and Sidney Ma had accepted the fact of Bruce Ma’s and/or the 1st Defendant’s use and occupation of the Property, and it was only in May 2016 that steps were taken to demand mesne profits and sale / buy-out of the Property.

206.However, in my judgment, the stance of Flora Ma and Sidney Ma is clear since May 2016. It is clearly stated in the said demand letter dated 5 May 2016 that Bruce Ma was required to account for the mesne profits and to sell the Property or to buy out the interest of Flora Ma and Sidney Ma in the Property at market price. Bruce Ma then by a letter of 12 May 2016 drafted by the 1st Defendant and signed by him replied to Messrs Tang, Wong & Chow alleging that pursuant to a family agreement, Sidney Ma was to possess the Aberdeen Flat and Bruce Ma was to possess the Property. He further said that he would ask for assistance from the court to protect his interest in the Property. As I have already found that there was no such family arrangement or agreement, I am of the view that the 1st Defendant’s possession of the Property since May 2016 is wrongful.

207.The 1st Defendant in her Supplemental Closing Submissions invited this Court, if mesne profits was to be awarded to the Plaintiff, to assess them from the date of the commencement of these proceedings.

208.In Li Kwong Sing & Others v Yeung Chung Ying & Another, DCMP 845/2019, 26 January 2024, [2024] HKDC 142, the learned Deputy District Judge only awarded mesne profits from the date of the Originating Summons. However, I would prefer to follow the courses taken by the trial judge in Kwan Hung Shing, as executor of the estate of Ho Shuk Ming, deceased v Fong Kwok Shan, Christine & Others, HCA 265/2012, 9 July 2019, [2019] HKCFI 1687 (and affirmed by the Court of Appeal) and also adopted by the parties (and approved by the trial judge) in Well Dynasty Development Limited v Clareville Enterprises Limited & Others, HCMP 478/2019, 5 January 2026, [2026] HKCFI 72 and award mesne profits to the Plaintiff since May 2016, at which date the clear stance of Flora Ma and Sidney Ma has been made known to Bruce Ma and the 1st Defendant, namely, to recover mesne profits and have the Property be sold in the market, or their interest be sold to Bruce Ma.  

209.I accept the undisputed expert evidence of the Plaintiff’s surveyor Mr Tang on mesne profits. In the circumstance, with reference to paragraph 4.4 of the Valuation Report dated 14 December 2020 and paragraph 3.1 of the Supplemental Valuation Report dated 13 January 2023, both prepared by Mr Tang, and the tables thereunder, the Plaintiff’s claim for mesne profits is assessed as follows:

(1)	From May 2016 to 13 December 2016 (HK$11,250 x 7 months)	HK$ 78,750
(2)	From 14 December 2016 to 13 December 2017 (HK$11,500 x 12 months)	HK$ 138,000
(3)	From 14 December 2017 to 13 December 2018 (HK$12,350 x 12 months)	HK$ 148,200
(4)	From 14 December 2018 to 13 December 2019 (HK$12,750 x 12 months)	HK$ 153,000
(5)	From 14 December 2019 to 13 December 2020 (HK$12,600 x 12 months)	HK$ 151,200
(6)	From 14 December 2020 to 13 January 2026 (HK$12,000 x 61 months)	HK$ 732,000
	Total :	HK$1,401,150

210.Thereafter, it is assessed at HK$12,000 per month until delivery of vacant possession of the Property.

211.Hence, mesne profits are to be paid by the 1st Defendant to the Plaintiff, as per paragraphs 209 and 210 above, together with interest thereon from the date of the Originating Summons until payment.    

212.The 1st Defendant also submitted that if this Court should consider that the Plaintiff is entitled to mesne profits, the expenses in relation to the Property settled by her, including Government rent, rates, management fees and building repairing expenses, etc., should be set off against the mesne profits to be awarded to the Plaintiff.

213.In my view, the 1st Defendant may be entitled to such claim of reimbursement on the ground of unjust enrichment if there is a plea of that, or if it was at least covered by a prayer of the counterclaim. See Ng Po Yu & Another v Lam Kai On, the executor of the estate of Wong Mui, deceased, HCA 77/2014, 13 July 2018, [2018] HKCFI 1618 (affirmed by the Court of Appeal in CACV 379/2018, 8 March 2021, [2021] HKCA 263). However, I agree with Mr Yung that set-off was not pleaded in the Defence and Counterclaim prepared by the 1st Defendant’s then legal representative and therefore the 1st Defendant is not entitled to request this Court to deduct such expenses from the mesne profits awarded to the Plaintiff. Besides, there is no evidence as to the amount of such expenses adduced by the 1st Defendant at the trial.

214.In the premises, mesne profits are awarded to the Plaintiff as above without deduction.

P2.  Interest on mesne profits

215.Since the mesne profits is in respect of a period of time, interest thereon shall be calculated at half judgment rate up to the date of judgment. Thereafter, interest shall be calculated on the basis of judgment rate. See Lee Yun Sau v D H Shuttlecocks Limited, HCA 1459/1991, 21 May 2002, by Lam J (as Lam PJ then was) and Kwan Hung Shing v Fong Kwok Shan, Christine (supra).

Q.  Conclusion and Orders

216.Accordingly, I make an order that:-

(1)  the 1st Defendant (by Original Action) do within 28 days from the date hereof deliver all title deeds and documents of the Property to the Plaintiff;

(2)  the 1st and 2nd Defendants (by Original Action) do within 56 days from the date hereof deliver vacant possession of the Property to the Plaintiff;

(3)  the 1st and 2nd Defendants (by Original Action) do pay mesne profits from May 2016 to 13 January 2026 in the sum of HK$1,401,150 to the Plaintiff, and thereafter at a monthly sum of HK$12,000 until delivery of vacant possession of the Property, together with interest thereon at half judgment rate from the date of the Originating Summons up to the date of this judgment, and thereafter at the judgment rate until payment; and

(4)  the 1st Defendant’s Counterclaim be dismissed.

217.There is no reason why costs does not follow the event. I make a costs order nisi that the costs of this action, including costs of the Counterclaim and all costs previously reserved (if any), be paid by the 1st Defendant to the Plaintiff to be taxed if not agreed (with certificate for counsel). Unless an application is made to vary this costs order nisi, the same shall become absolute after 14 days from the date of this judgment.

R.  Other Matters

218.It remains for me to thank Mr Yung, counsel for the Plaintiff, for his helpful assistance and submissions and Ms Kwok for her submissions.

Mr Issac Yung, instructed by Tsang, Chan &Woo Solicitors & Notaries, for the plaintiff (by original action) and the 1^st defendant (by counterclaim)

The 1^st and 2^nd defendants (by original action) and the plaintiff (by counterclaim) were not represented and were acting in person