P v. D1 and Another
Read the full judgment text of DCCJ 811/2020 on BabelCite. This District Court judgment was delivered on 13 April 2026.
1. This is my judgment, after trial, for a strange case. At the time of the trial, the plaintiff ( “P” ) was 72 and the 1 st defendant ( “D1” ) was 74. P and D1 were married to each other. Despite their acrimonious dispute in relation to a residential property in Hung Hom ( “the Property” ) forming the subject of this litigation, they had no plan to divorce each other.
Cited by 3 cases · Cites 11 cases
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DCCJ 811/2020 [2026] HKDC 560 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 811 OF 2020 ________________________ BETWEEN
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________________________ J U D G M E N T ________________________ Introduction 1.This is my judgment, after trial, for a strange case. At the time of the trial, the plaintiff (“P”) was 72 and the 1st defendant (“D1”) was 74. P and D1 were married to each other. Despite their acrimonious dispute in relation to a residential property in Hung Hom (“the Property”) forming the subject of this litigation, they had no plan to divorce each other. 2.P was represented by Mr Dicky Cheung (“Mr Cheung”) and Ms Esther Leung. D1 and the 2nd Defendant (“D2”) (collectively, “Ds”) were at one point jointly represented by Mr Lawrence Cheung on private instructions from Yu Hung & Co Solicitors. On Day 6 of the trial, I found D1 to be a mentally incapacitated person (“MIP”). The Official Solicitor was appointed D1’s guardian ad litem: see P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744. Mr Lawrence Cheung and Yu Hung & Co Solicitors ceased to act for Ds. D2 became unrepresented. For directions hearings, Mr Samuel Chan acted for D1 on the Official Solicitor’s instructions: P v D1 [2025] HKDC 1337 and P v D1 [2025] HKDC 1496. Eventually, D1 applied for and was granted legal aid. Mr Damian Wong (“Mr Wong”) and Wan and Leung Solicitors, assigned by the Director of Legal Aid, acted for D1 for the remaining days. D2 continued to be unrepresented. I say at once all counsel had in my view done their very best to assist, and I thank all of them. Nothing in this judgment should be read as criticizing any of them. Undisputed Facts 3.Since D1 is an MIP but I intend to publish this judgment, care should be taken not to state anything, disputed or undisputed, which can be used to identify D1. D1 should remain anonymized. 4.In gist, D1 was born in August 1950 and had a first wife (“the 1st Wife”) in Mainland China. The two of them gave birth to D2, their son, in March 1970, and then divorced each other. D1 married P in 1974. Two children were born within this new marriage between D1 and P. They were L (born 1981) and G (born 1983) respectively. L and G grew up in Hong Kong and became accountants. D1 openly had an extra-marital affair with a certain lady (“Madam Leung”). In 1990, P and D1 bought the Property, and the Property became registered to them as joint tenants. The price was HK$948,000. There was a mortgage in favour of Standard Chartered Bank (“SCB”). That mortgage was discharged in 1995. Mortgage documents named the joint mortgagors as P and D1 but rather curiously named D1 as the sole borrower. For a number of years, the Property was rented out. The Property was never sold. 5.In February 2018 while D1 was in Mainland China, D1 had a head injury (“the Head Injury”). D1 was hospitalized in Mainland China, during which some surgery was performed on D1. On 5 March 2018, D1 was transferred to a hospital in Hong Kong. D1 stayed in Hong Kong until some point in August 2018, when D1 moved to Mainland China. 6.On 10 September 2018, D1 executed (1) a notice of severance (“the Notice of Severance”); and (2) a deed of gift (“the Deed of Gift”) vis-à-vis the Property. P became aware of these documents and challenged their alleged validity via this litigation, which P commenced on 16 March 2020. 7.On 30 November 2021, with leave granted by Master B Mak, P filed an Amended Statement of Claim (“ASoC”) which added a claim of adverse possession. This action was eventually set down for trial. On 22 April 2025, the trial started. It went part-heard. Despite some tribulations, the trial concluded on 13 October 2025. P’s Case 8.As pleaded by P via §§9 to 14 of the ASoC, P’s primary case was that the Property was subject to a common intention constructive trust (“CICT”) in P’s favour so that in Equity there was nothing for D1 to severe or give away making the Notice of Severance and the Deed of Gift void or voidable. In the alternative, P claimed via §§15A to 16C of the ASoC that she acquired a possessory title vis-à-vis the Property. P further claimed via §§16 to 33 of the ASoC that in any case D1 was of unsound mind or signed documents under duress from, or the undue influence of, D2 and D2’s wife. P also pleaded yet another alternative case that the Property was subject to a resulting trust in P’s favour so that the Notice of Severance and the Deed of Gift were for that alternative reason void. On the basis of the above, P asked for declarations vis-à-vis the Property and various title documents registered against it. P also asked that Yu Hung & Co Solicitors be ordered to personally pay for costs, though I should record that as at the date hereof I have not yet heard Yu Hung & Co Solicitors on the issue, and no costs order absolute shall be made against them until they have had a reasonable opportunity to make full submissions on the same. D1’s Case 9.Prior to the Official Solicitor’s appointment as D1’s guardian ad litem on 29 April 2025 in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, D1’s legal team (a different member of the Bar settled the pleadings) somehow saw fit to deny virtually everything. The Statements of Truth for D1’s pleadings did not seem to have the interpretation certificates required by §5 of Practice Direction 19.3, which was unsatisfactory. Fortunately, upon my appointment, the Official Solicitor and Mr Wong on behalf of D1 adopted a substantially more sensible approach and conceded, correctly in my view (more on that below), that D1 plainly did not have the requisite mental capacity to execute the Notice of Severance and the Deed of Gift in 2018 so that D1 for his part shall only contest P’s allegations of trust (“P’s Trust Claim”) and adverse possession (“P’s Adverse Possession Claim”), inviting me to reject both. On costs, Mr Wong simply asked that the parties be given a further opportunity to address me on costs after they have been notified of my factual findings. D2’s Case 10.As to D2’s stance, since D2 acted in person and addressed me orally in Cantonese on top of providing me with a written note, instead of paraphrasing D2 in English, I should perhaps set out the most relevant parts of his oral closing in his original words, as follows: -
11.In gist, D2 disagreed with most if not all points made by P and asked that P’s claims be dismissed. D2 maintained D1 made a valid gift of an interest in the Property to him when D1 was of sound mind. Legal Principles 12.The general principles on the assessment of evidence are well-known and had been appropriately summarized in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam) and Far East Rent-a-Car Ltd v Favour Link International Ltd [2026] HKDC 336. I apply the same principles in this case. Since D1 was an MIP, and D2 was a litigant-in-person, I paid special attention to the applicability of the rule in Browne v Dunn (1893) 6 R 67 and its well-known limitations, including what the Privy Council had on 13 March 2026 explained in Rubis Bahamas Ltd v Russell [2026] UKPC 9, where Lord Leggatt famously said the following (at §37): -
13.In treating all witnesses fairly in this judgment, I also read and duly considered what was said by Professor Ross Cranston, a former judge in England and Wales, in Judging (OUP, 23 October 2025, p.199 onwards, under “Fact-Finding”), and what was said by DHCJ Herbert Au-Yeung in Hu Lan v David Golden [2023] HKCFI 873 (§36). Given P’s allegation of CICT, I paid special attention to what was said by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§§46+) to the effect that in CICT litigation, a judge should start with “evidence of express discussions” whilst at all times recognizing and remembering the parties’ other conduct “remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested”. I agree with and apply what was said by Godfrey Lam J. 14.For the general principles vis-à-vis CICT litigation, one of the most helpful summaries can be found in HK Sources Finance Ltd v Ling Kai Wan Paul [2024] 2 HKLRD 1133 [2024] HKCFI 1141 (§§36 & 37 per Bebe Chu J). In gist, P had the burden of proving (1) the common intention; (2) her detrimental reliance on that; and (3) unconscionability of departing from it. An allegation that the beneficial interest is different from the legal interest is inherently unlikely to be true so clear evidence would be required for the allegation to be considered proven. Unequal financial contributions per se, even if established, would be unlikely to be enough for the Court to move away from the starting point that Equity follows the law. 15.For the legal principles vis-à-vis adverse possession I am fully aware that in Wong Chee Sing v Hung Wah [2026] HKCFA 7, the HKCFA granted leave to appeal and will on 9 September 2026 be reconsidering the well-known cases of Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98) 1 HKCFAR 55 and J A Pye (Oxford) Ltd v Graham [2003] 1 AC 419. I am satisfied I should nonetheless continue to give my judgment in this matter without waiting for that reconsideration, as nothing in this matter turns on the certified questions. 16.For resulting trust, D1 cited my own decision in Sophisticated Materials Limited v Sidepac International Limited [2018] HKCFI 2836 to the effect that Curley v Parkes [2004] EWCA Civ 1515 formed part of the laws of Hong Kong so that financial contributions in the form of mortgage loan repayments should be treated as those of the borrower for the purposes of any resulting trust analysis. I am satisfied that is still the legal position today. Witnesses – Overview 17.The following witnesses (5 factual 1 expert) gave evidence at the trial: -
Evidence of P (PW1) 18.P adopted her two witness statements and was cross-examined. In gist, P claimed she paid HK$400,000 from her own sources as the down payment for the Property, and she used rental income to repay the mortgage loan until the discharge of the mortgage in 1995. She claimed D1 “did not contribute any monies towards the Purchase Price”. When asked how she allegedly paid the HK$400,000, P said it was by a Hang Seng Bank Cheque, but no record of that had ever been disclosed or produced by P[1]. The source of the funds was also made a topic of cross-examination, and P was unable to explain her different versions of events on the same page of her Chinese witness statement[2]. On repayment of the mortgage loan P admitted she had no idea what the terms of the repayment were or whether the monthly rental income must be more than the monthly repayment instalment[3]. P admitted §29 of her Chinese witness statement vis-à-vis SCB’s letter was false[4], and P was wholly unable to explain why she confirmed illogical false contents in relation to that as correct[5]. 19.On adverse possession, P’s oral evidence shockingly showed she had no idea what it was despite the fact that she was legally represented by solicitors and counsel throughout the entire course of these proceedings and one would have thought P must have been properly advised on the law. The most relevant questions and answers went as follows[6]: -
20.As P’s oral evidence went on, it became increasingly obvious that at some points P was just guessing instead of telling the Court the truth, the whole truth and nothing but the truth based on actual knowledge. The following questions and answers neatly illustrated the serious problem with the way P’s evidence was partially just her own guesswork and thus of very little value[7]: -
21.For P’s allegation of CICT, P claimed that after the mortgage was discharged in 1995, there was a telephone call[8] where D1 told her the Property would belong to her going forward, and so P could live there with her children (“the Phone Call”). When asked about the Phone Call, P first alleged the contents of her own witness statements were false, only to then allege it was her oral correction which was false[9]: -
22.When asked about the question of reliance, the questions and answers went as follow[10]: -
23.My understanding of P’s evidence is that whatever intention or representation existed, it changed nothing as far as P was concerned. It did not result in any detrimental reliance or change of position. It made no difference to P. As I shall explain in a later part of this judgment, this piece of evidence appears to be fatal to P’s allegation of CICT. Evidence of G (PW2) 24.G, as a son and a factual witness of P, adopted his two witness statements and was cross-examined. In gist, G stated he studied accounting and finance at the University of Hong Kong and became an accountant. G was fluent in both Cantonese and English and could read both Chinese and English. His background was in audit. G recalled D1, as his father, getting “separated” from P when G was still in primary school, and felt sad about what happened. When asked about his own understanding of this litigation, G emphasized that to his own understanding, this legal action was triggered by the Notice of Severance and the Deed of Gift vis-à-vis the Property. At this point, G applied for my permission to give this part of his oral evidence in English instead of in Cantonese so that D2, who was sitting in the public gallery, could not understand it. I found the application somewhat unusual but since D2 was represented by bilingual lawyers who could, if necessary, translate evidence given in English to Cantonese for D2’s benefit at a later stage, I granted leave. What followed was an outburst of anger. Essentially, G said he considered D2 “a very bad guy” who had a record of transferring money away from D1 “with very mischievous intention”[11]. Speaking for himself, G wished to secure justice, with the alleged validity of the Notice of Severance and Deed of Gift judicially determined. Indeed, G’s witness statements spent considerable passages dealing specifically with the Head Injury sustained by D1 in Mainland China in February 2018 and its adverse effect on D1’s mental capacity thereafter. According to G, he managed to speak to D1 directly over the phone on 2 February 2019, and D1 appeared to G to be confused and of unsound mind with D1 claiming he did not know his own physical location, and with D1 being unable to comprehend what G was saying[12]. G gave detailed evidence of various other incidents which caused G to become exceedingly concerned D1 had literally lost his mind, including incidents where D1 simply failed to remember G’s name, told a false story about having been to Australia on holiday, being paranoid about people shooting him with guns, told a false story of G being a lawyer, and so on[13]. These parts of G’s evidence were unchallenged by Ds’ joint legal team at the time. After the Official Solicitor had been made D1’s guardian ad litem, the Official Solicitor eventually chose not to ask that G be recalled for his “top-up” cross-examination. These parts of G’s evidence had thus remained unchallenged. Evidence of L (PW3) 25.L was a daughter of P. L adopted her two witness statements and was cross-examined. In gist, L also went to a local university and then became an accountant. According to L, after the Head Injury sustained by D1 in Mainland China in February 2018, L visited D1, but D1 was unable to recognize her and told a false story about G being a lawyer, when G was an accountant. There were other incidents which occurred in L’s presence and caused L to become very concerned D1 had an unsound mind[14]. Again, these parts of L’s evidence were unchallenged by Ds’ joint legal team, and the Official Solicitor eventually chose not to ask that L be recalled for his “top-up” cross-examination. Evidence of D1 26.D1, aged 74 by the time of the trial, adopted his two witness statements and was cross-examined. In gist, D1 said the HK$400,000 odd downpayment for the Property was paid by him instead of P. The balance of the purchase price was also borrowed, and then repaid, entirely in D1’s own name. D1 considered the Property jointly owned by P and D1, as per the legal title registered in the Land Registry. He never gifted his interests in the Property to P. There was no trust agreement between P and D1. D1 claimed the Notice of Severance and the Deed of Gift vis-à-vis the Property were voluntary, valid and effective, and they represented D1’s true wishes. 27.In the course of the cross-examination, D1’s answers became increasingly absurd. D1 claimed the Property had been sold, giving minute details as to how that supposedly happened, all of which plainly false. The Land Registry record showed the Property had never been sold. It was also clear the suggested selling price could not possibly be true, as it was so low it would be absurd[15]. D1 could not remember what was said in his presence, such as the fact that I did not eat for 24 hours[16]. D1 stated he did not know whether there were one or two defendants in this very trial[17], or the number of registered owners for the Property at the time of purchase[18]. He claimed he was “the big shareholder” and owned at least 80 percent of the Property, when that 80 percent figure was no party’s case and was pulled out of thin air[19]. He then mistook P’s counsel as his own counsel[20]. At one-point D1 claimed he was well-known in Hong Kong as a murderer, in these bizarre words[21]: -
28.The last straw for D1’s own counsel at the time was D1’s non-sensical evidence to the effect that two ladies, whom everyone knew to be two separate ladies, were one and the same person with two separate names, in these bizarre words[22]: -
29.At this point, D1’s own counsel jumped up from his seat and made an application. The exchange went as follows: -
30.As I thereafter stated in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, eventually, having heard expert evidence on the issue, I found D1 to have no mental capacity to litigate, give valid instructions to lawyers, or give evidence in this matter. D1 was duly released without further cross-examination. Evidence of Dr Gabriel Hung 31.With my permission, Dr Gabriel Hung, a recognized expert in the field of psychiatry, gave evidence on both the substantive issues of this trial (specifically, whether D1 had the mental capacity, back in September 2018, to execute the Notice of Severance and the Deed of Gift vis-à-vis the Property), and on the new issue as to whether D1 had become an MIP with no mental capacity to litigate, or give valid instructions to lawyers, or give evidence, in this matter. In gist, as to whether D1 had the mental capacity back in September 2018 to execute the Notice of Severance and the Deed of Gift vis-à-vis the Property, Dr Gabriel Hung was of the view that it was more likely than not that D1 had no capacity, mainly because of the Head Injury. Independent medical records and reports produced by the Hospital Authority showed that as of August 2018[23], D1 was still “disorientated in time & place” and it was highly unlikely that there was significant recovery for the month which followed. Dr Gabrial Hung most responsibly qualified his opinion by saying he was never present at the time of execution and did not medically examine D1 back in September 2018, so he could only form a responsible opinion based on relative likelihood and assumptions[24]. As to whether D1 was by the time of D1’s giving evidence at this trial an MIP incapable of conducting litigation, Dr Gabriel Hung took the view that D1 was clearly an MIP. For this part of his expert evidence, Dr Gabriel Hung based his opinion on real-time observations, as Dr Gabriel Hung was at the public gallery observing D1 whilst D1 was answering questions under oath. According to Dr Gabriel Hung, D1, whilst answering questions under oath, showed signs of confabulation, with D1’s brain inserting completely false information into itself, tricking itself into believing the false information to be true, and tricking itself into giving false evidence believing it to be true. Detection of this was based on cross-referencing. According to Dr Gabriel Hung, D1’s brain ceased to be able to differentiate between truth and falsity. Accordingly, information in D1’s brain became wholly unreliable, and D1 was medically unable to understand this litigation. Possible medical causes included alcohol use, dementia, head injuries, and the like. Based on D1’s age, Dr Gabriel Hung predicted “a progressively declining course” vis-à-vis D1’s psychiatric deficiencies, saying “it is unlikely that there would be improvement”[25]. This was, medically speaking, a most “serious” situation for D1[26]. Evidence of D2 32.D2 adopted his shockingly short two-page witness statement[27] as his evidence-in-chief and was cross-examined. D2 denied there was any duress or undue influence affecting the validity of the Notice of Severance or the Deed of Gift vis-à-vis the Property. D2 confirmed D1 left D2 behind when D2 was just a baby. What happened was that D1 moved, by himself, from Mainland China to Hong Kong, and did not bring D2, despite the fact that D2 was D1’s son. By the time D2 reached the age of 18, D2 was aware D1 had a separate family in Hong Kong[28]. D2 was specifically asked why, to his own understanding, D1 allegedly “gifted” half of the Property to D2, and as to whether that was the result of oral conversations between the two of them. D2’s answer under cross-examination differed significantly from what he stated in his two-page witness statement. The following exchange followed[29]: -
33.As the cross-examination of D2 went on, D2 shifted his case from “it was an absolute gift” to “it was a transaction with consideration” and the following exchange took place[30]: -
34.As the cross-examination of D2 went on, D2’s answers under oath became increasingly illogical. The following exchange took place in Court[31]: -
35.Further, it seems clear that much of what D2 had said in Court was pure speculation. The following exchange took place[32]: -
36.D2 also made an oral application to adduce new documentary evidence, and all parties agreed I should look at the new document on a de bene esse basis, which I did. D2 read out the contents of the new document, marked “MFI-1”, in Court, in this manner[33]: -
37.D2 was asked why he buried the document marked “MFI-1” for so many years, when he was previously represented by solicitors so that he must have been advised on it. The following exchange took place[34]: -
38.I asked D2 clarification questions, and the following exchange took place[35]: -
39.D2 was asked why the document marked “MFI-1” was never stamped, and the following exchange took place[36]: -
Witnesses – Assessment 40.As far as P’s evidence is concerned I find it unreliable, though it is immaterial that I so find. 41.Firstly, P never managed to produce the necessary documents, such as bank statement entries or copies of personal cheques, to explain in any satisfactory manner how she supposedly paid the downpayment for the Property, and I am not at all satisfied she paid that sum of HK$400,000 out of her own funds as alleged. However, that seemed immaterial since even if P could prove that she paid HK$400,000 for the Property, the remaining sum of HK$548,000 was still paid by D1 as the sole borrower in question, and P’s financial contribution towards the Property would still be less than half, and that does not assist P in establishing a resulting trust vis-à-vis the whole of the Property. 42.Secondly, P’s evidence on the Phone Call was both confusing and self-contradictory. I am not at all satisfied the issue of the Property’s ownership was mentioned by D1 orally in any of the ways suggested by P, or whether it was mentioned at all. However, that seemed immaterial since even if P could prove the contents of the Phone Call, in the absence of any evidence of detrimental reliance, P’s pleaded allegation of CICT could not get off the ground. Evidence of a common intention, without any proof of detrimental reliance and unconscionability, would not give rise to any valid claim of CICT (see the discussion on the law above). 43.Thirdly, no weight could be given to P’s evidence on adverse possession, because she did not appear to understand the concept, and there was no reliable evidence that P had the necessary intention to exclude D1 from the Property in the sense as required by the law of adverse possession, so that P’s allegation of adverse possession could never get off the ground either. 44.Fourthly, on the Notice of Severance and the Deed of Gift vis-à-vis the Property, it seems clear from the evidence of G, L and Dr Gabriel Hung, all of which I accept as true and reliable for the reasons to be set out below, that D1 never had the necessary mental capacity, back in September 2018, to execute them, rendering them void. It seemed wholly unnecessary for me to go any further than that in my factual finding. 45.All in all, it is substantially more useful to focus on assessing the evidence of other witnesses. 46.As far as G’s evidence is concerned, it is truthful and reliable, and I accept what G said to be true. In particular, as I had explained above, G’s evidence was primarily about the Head Injury’s adverse effect on D1’s mental capacity. Those parts of G’s evidence was unchallenged. Whilst I am aware unchallenged evidence can still be false, and the caselaw is clear that I should never mechanically accept a piece of evidence as true simply because it was never challenged (see the discussion on the law above), as far as G’s evidence is concerned I am independently satisfied it was highly likely to be true. G’s first-hand account of D’s serious mental deficiencies before the commencement of this action was perfectly consistent with the independent contemporaneous records released by the Hospital Authority, which were unchallenged either. For my part, I can see no reason why G’s sworn oral evidence should be doubted. 47.For L’s evidence, on my assessment it is truthful and reliable for similar reasons as above, and I accept what L said to be true. I can see no reason why L’s sworn oral evidence should be doubted. 48.D1’s evidence is the most unreliable since he was an MIP and confabulating, which means his own brain could not differentiate between truth and falsity. I reject D1’s oral evidence in its entirety. I am aware D1, on becoming represented by Wan and Leung Solicitors on assignment by the Director of Legal Aid, filed and served a Hearsay Notice for his written statements, but with respect I am unable to attach any weight on what was written by D1 in this matter, given his known mental deficiencies. D1 did not call any of his doctors, qualified as psychiatrists or otherwise, to testify on D1’s mental capacity during the period from February 2018 to the start of the trial, and I am unable to accept D1 had mental capacity for litigation at any point during that entire period. However, as I shall explain at a later part of this judgment below, nothing really turns on the documents covered by D1’s Hearsay Notice, so D1’s Hearsay Notice is a red-herring. 49.As to Dr Gabriel Hung’s expert evidence, it was responsible, fair, based on unchallenged or unchallengeable documentary evidence and actual observations, and well-reasoned. I independently checked reference materials cited by him and am satisfied they do support his opinion. I find Dr Gabriel Hung’s expert evidence most reliable and I give full weight to the same. 50.For D2’s evidence I do find it illogical and inherently unlikely to be true. D2’s “ever-changing explanations” on the Notice of Severance and the Deed of Gift vis-à-vis the Property, including his burial of MFI-1 until Day 7 of the trial despite being represented and advised by solicitors for a large number of years, were all unsatisfactory. I reject D2’s evidence as unreliable and likely to be false. P’s Trust Claim 51.For those reasons set out in §§40 to 42 above, P’s Trust Claim was and remains thoroughly bad and is dismissed. P’s resulting trust claim was based on a fundamental misunderstanding of the law, as P did not seem to understand that repayment of the mortgage loan borrowed in D1’s name was in law D1’s financial contribution so that on a legally correct analysis P could never have contributed more than half of the HK$948,000. P had no answer to D1’s citation of my own decision in Sophisticated Materials Limited v Sidepac International Limited [2018] HKCFI 2836 to the effect that Curley v Parkes [2004] EWCA Civ 1515 formed part our laws so that financial contributions in the form of mortgage loan repayments should be treated as those of the borrower for the purposes of a resulting trust analysis. Sophisticated Materials [2018] HKCFI 2836 remains good law. 52.In any case, evidentially speaking P failed to prove her alleged contribution (ie HK$400,000 as the downpayment), there being not a single sheet of paper in support of P’s allegation and P’s bare oral assertions were unreliable. For CICT, there was no evidence of detrimental reliance. There was no evidence of unconscionability. For either of these reasons the CICT claim must be dismissed. For completeness, in §22 of P’s Written Closing, P sought to say she refrained from requesting the transfer of D1’s legal title to her, but that did not assist as the cause of that was said to be D1’s demand of “not divorcing him”, instead of the Phone Call or any common intention of any kind[37]. The evidential gap was obvious. Similarly, for completeness, in §23 of P’s Written Closing, P sought to say the “non-divorce” qualified as P’s detrimental reliance, but that made no sense as no person, certainly not P, was ever barred from divorcing a living spouse. Even if P refrained from starting divorce proceedings because of the Phone Call or a common intention (which I do not accept to be the truth), there was nothing to stop P from doing that at any point from the point of their falling out with each other. Indeed, P can still divorce D1 today and the Family Court shall have the jurisdiction to claw back assets which had been transferred, or add back expenses which had been spent. Further, it is actually possible for P to be getting more (instead of less) financial reliefs from D1 if P were to divorce D1 today instead of back in the 1990s – we do not know that for sure as no evidence on this had ever been led. I am not satisfied a temporary decision on the part of P not to start divorce proceedings can on the facts of this case be treated as “detrimental reliance”[38]. 53.Further, P’s latest suggestion that the “non-divorce” qualified as P’s detrimental reliance was in fact unpleaded, and I should not even let P run such a case. The oral discussions on this at closing submissions went as follows[39]: -
54.All in all, despite Mr Cheung’s admirable best effort, I am not satisfied P’s ASoC allowed P to run this innovative case of “non-divorce” as P’s detrimental reliance. In any case, in my view, even if I were to allow P to run such a case, I would have rejected it as legally misconceived and evidentially not established. The “detrimental reliance” element of CICT being absent, P’s claim of CICT must be, and is hereby, dismissed. P’s Adverse Possession Claim 55.For those reasons set out in §43 above P’s Adverse Possession Claim was and remains thoroughly bad and is dismissed. P’s evidence and submissions curiously focused on P’s continuous usage of the Property and that does not help at all because all parties agreed P was a co-owner of the Property at law and in Equity, so P’s usage of the Property tells us nothing of value. P was of course using the Property – all parties agreed she was a co-owner entitled to do so as of right. There was no evidence that P had in fact excluded D1 in the sense as required by the law of adverse possession, and there was also no evidence of P’s intention to permanently exclude D1 in the sense as required by the law of adverse possession. For all we know, D1 exercised its ownership rights by collecting rent and visiting. P did not even understand what adverse possession was, which showed P could not have an honest belief that she supposedly had a claim in adverse possession. In this connection, I accept §§78 to 84 of D1’s Written Closing as correct. The further discussions on this at closing submissions went as follows[40]: -
56.Despite Mr Cheung’s effort, I am not at all satisfied P had any genuine claim in adverse possession, as P had no intention to permanently exclude D1 from using the Property (including collecting rent or visiting it as an owner), and P did not even know she was suing in adverse possession or if so what that meant. Since P was not just a witness but was at the same time a litigant represented and advised by competent lawyers, the fact that P did not even know she was suing in adverse possession or if so what that meant is actually rather shocking. P’s Adverse Possession Claim was and remains thoroughly bad and is dismissed. Notice of Severance and Deed of Gift 57.By §§36(3) & 36(4) of the ASoC, P claimed declarations that the Notice of Severance and the Deed of Gift were null and void and of no legal effect. This part of P’s claims succeeds and I do hereby grant the two declarations sought. I also make an order that those two documents, if they are still registered in the Land Registry, shall be vacated and removed from the Land Registry forthwith. As I had stated in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933, that jurisdiction exists because what was said by DHCJ Andrew Cheung (as the Honourable Chief Justice then was) in the famous case of Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594 (§16) applies to the District Court as well, and the District Court does have the jurisdiction to vacate the purported registration of any instrument in the Land Registry which does not affect or no longer affects land. 58.As to why this part of P’s claims succeeds, I say at once I am deciding this issue based on Dr Gabriel Hung’s expert evidence on mental capacity, as opposed to allegations of duress and undue influence. In gist, having carefully considered Dr Gabriel Hung’s evidence – see §§31 & 49 above – it is crystal clear to me D1 could not have had the capacity to sign documents as complicated as the Notice of Severance and the Deed of Gift in September 2018. As Dr Gabriel Hung previously explained in his expert report[41], mental capacity to make decisions required the ability to inter alia (1) fully understand; (2) retain for a sufficiently long period; and (3) weigh up information relevant to that decision, and it was clear from the Hospital Authority medical records and Dr Gabriel Hung’s analysis of them that D1 did not have those abilities back in September 2018. Whilst the signatures were there, they were void in law. 59.It remains for me to address D2’s submissions on the issue. 60.D2 acted in person and his position was as follows[42]: -
61.It is important that I state, for the benefit of D2, why I rejected his case. D2 seemed to have laboured under the false impression that if the signatures on legal documents were handled by solicitors and doctors then they would somehow be valid and immune from challenge. That would be an incorrect understanding of our laws. All documents can be challenged. Further, as the UKSC had said in Griffiths v TUI (UK) Ltd [2025] AC 374 [2023] UKSC 48 (per Lord Hodge DPSC), whilst as a very general rule it would be best that if the opinion of an expert, such as that of a solicitor or a medical doctor, should be rejected, he should first be heard and properly challenged with a comprehensive set of Browne v Dunn questions, this is not always necessary. It all depends on the factual circumstances. Classic exceptions included (1) where the matter to be challenged was collateral or insignificant; (2) the evidence was manifestly incredible; (3) the evidence consisted of a bold assertion of opinion without any reasoning; (4) obvious mistakes existed on the face of reports; (5) evidence or finding of primary facts was contrary to the basis on which the expert expressed his view; (6) the expert in question having been given a sufficient opportunity to respond to criticism of or otherwise clarify his report; and (7) the opinion did not comply with other requirements, such as the requirement that its reasoning must also be sufficiently set out, etc. The above formed part of the laws of Hong Kong. Applying the above principle to Ds’ situation, the documents from D1’s private doctors and the Mainland China Hospital are caught by the classic exceptions in that there was no or insufficient reasoning, such as detailed analysis of established clinical psychiatric tests on things like D1’s concentration, memory or decision making abilities, and there was no citation of reference literature, to enable me to assess the alleged value of what they said. As such they can be, and are hereby, rejected by me without first calling them to give evidence or subjecting them to a comprehensive set of Browne v Dunn questions. In this world, any person can say anything, but the words they utter or write do not carry more weight just because of their occupation, unless they also responsibly explain their reasoning in an acceptable manner with the expertise they have, supporting what they say with proper materials. Bold assertions of opinion without reasoning by any person, including lawyers and doctors, simply do not assist the Court, and can be rejected by the Court without a Browne v Dunn exercise. 62.Indeed, until my appointment of the Official Solicitor as D1’s guardian ad litem in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, Ds were jointly represented by solicitors and counsel, and Ds did not seek to call the solicitors responsible for the Notice of Severance and the Deed of Gift to give evidence, and their office file was never disclosed or produced by Ds. Ds could have applied for leave to adduce expert evidence, but Ds had never done so. On 22 April 2025[43], I specifically asked Ds’ counsel at the time “on what basis” would he be cross-examining P’s expert since he chose to call no expert himself, and his answer was “we don’t see the need to do that”, and “an expert is expensive”[44]. The need was actually obvious. That choice appeared to me to be unwise but as I had also stated at the time I should not “force the parties to spend more money”[45]. D2 was bound by the way his legal team at the time chose to handle this matter for him. Dr Gabriel Hung’s expert report was dated 5 July 2023, and I assumed it was disclosed soon after that, way before the start of the trial on 22 April 2025. Having read the comprehensive, well-reasoned and persuasive contents of that report in July 2023 and being fully aware what Dr Gabriel Hung would be saying in Court, D2 still knowingly chose to call no expert to rebut any of the things Dr Gabriel Hung would be saying. In such circumstances, D2 cannot complain that I ended up agreeing with Dr Gabriel Hung’s opinion that D1 in most likelihood had no mental capacity to execute the Notice of Severance and the Deed of Gift in 2018. Given the comprehensiveness and persuasiveness of Dr Gabriel Hung’s expert report, I would have thought if D2 was serious in trying to persuade me Dr Gabriel Hung was wrong, he should have done much more than just instructing his counsel to maybe ask Dr Gabriel Hung a few random or unimportant questions here and there by way of clarifications. The way D2 had been defending this matter appears to me to be bizarre. D2 ignored all evidence conspicuously adverse to his interests and conspicuously contradicting his case. Putting it graphically if I may, D2 was very much like an ostrich burying its head in the sand, with himself being unable to see anything of importance, but with everyone else being able to clearly see the weaknesses of his case. It was a strange way to handle litigation. 63.For the avoidance of doubt, I make no finding on the serious allegations of duress and undue influence, as it is unnecessary for me to do so, given the clear evidence that D1 simply had no mental capacity to sign the Notice of Severance and the Deed of Gift. D2’s Counterclaim 64.D2’s counterclaim[46] assumed the Notice of Severance and the Deed of Gift were valid. Since those documents were void, the entire basis of D2’s counterclaim was wrong. I dismiss D2’s counterclaim. Costs 65.The last issue is costs. I should start by saying given all of the above, and the fact that my substantive rulings turned out to be very much along the lines as advocated by Mr Wong on behalf of D1 once Mr Wong took over the conduct of these proceedings upon legal aid being granted to D1, the Director of Legal Aid and the Official Solicitor should be allowed to recover their costs from others. 66.The more difficult question is who, then, should pay for costs? 67.My observations are as follows. 68.Firstly, whilst I ruled against P on (1) P’s Trust Claim; and (2) P’s Adverse Possession Claim, P did have to incur costs in this legal action to get the Notice of Severance and the Deed of Gift declared void by me, so P should be allowed to recover, at the very least, those costs. Secondly, whilst P would first and foremost wish to recover costs from Yu Hung & Co Solicitors personally, no inter partes summons for that had been taken out by P under Part E of Practice Direction 14.5, and the required procedure as set out in that practice direction has not yet been complied with. Thirdly, the Hong Kong Court of Appeal has on 1 August 2025 in Indah Veby Mega v OWT Asia Ltd [2025] 4 HKLRD 421 [2025] HKCA 720 (§31, per Kwan V-P) emphasized the importance of procedural fairness in proceedings for wasted costs against solicitors, and I agree with what the Hong Kong Court of Appeal had said in relation to this. 69.Given the above, apart from the declarations and other orders referred to above, I also give the following directions on the issue of costs for this whole matter: -
Publication 70.In compliance with Practice Direction 25.2, unless any party lodges full written submissions, reaching this Court before 4pm on 17 April 2026, explaining why this judgment should not be published, this judgment shall be published (by being uploaded to the Judiciary’s public website) on 20 April 2026 without further order. Final Remarks 71.I do thank all counsel for the most able assistance. As I stated in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, in my view, D1 was a person in urgent need of proper psychiatric medical care. D1’s situation was dire. Any person who confabulates needs to be protected properly. In fact, in my view, a formal application should be made under Part II of the Mental Health Ordinance (Cap 136) to protect D1 from harm, but that is not something for me to decide. I shall leave it to D1’s responsible relatives to decide for themselves whether they need to do more to protect D1 from harm.
Mr Dicky Cheung and Ms Esther Leung instructed by CW Lawyers for the plaintiff Mr Damian Wong instructed by Wan and Leung assigned by the Director of Legal Aid for the 1st defendant The 2nd defendant appeared in person [1] Transcript, Day 1, p.26. [2] Bundle A, p.228, §§17 & 19. Transcript, Day 1, p.29. [3] Transcript, Day 1, pp.32 & 33. [4] Bundle A, p.231, §29. [5] Transcript, Day 1, pp.34 & 35. [6] Transcript, Day 1, p.46. [7] Transcript, Day 1, p.65. [8] Bundle A, p.142, §21+, p.231, §30+. [9] Transcript, Day 3, pp.147-149. [10] Transcript, Day 3, p.152+. [11] Transcript, Day 3, p.229. [12] Bundle A, p.163, §31+. [13] Bundle A, p.243, §30+. [14] Bundle A, p.173, §24+. [15] Transcript, Day 4, p.286. [16] Transcript, Day 4, p.333. [17] Transcript, Day 4, p.342. [18] Transcript, Day 4, p.343. [19] Transcript, Day 4, p.343. [20] Transcript, Day 4, p.343. [21] Transcript, Day 4, p.348. [22] Transcript, Day 4, p.355. [23] Bundle C, p.987. [24] Bundle C, p.1023. [25] Transcript, Day 6, p.398. [26] Transcript, Day 6, p.400. [27] Bundle A, p.205. [28] Transcript, Day 7, p.10. [29] Transcript, Day 7, p.25. [30] Transcript, Day 7, p.30. [31] Transcript, Day 7, p.38. [32] Transcript, Day 7, p.63. [33] Transcript, Day 7, p.69. [34] Transcript, Day 7, p.69. [35] Transcript, Day 7, p.75. [36] Transcript, Day 7, p.79. [37] Bundle A, p.231, §31. [38] Transcript, Day 8, p.104. [39] Transcript, Day 8, p.106. [40] Transcript, Day 8, p.115. [41] Bundle C, p.1022, §§9.10 to 9.14. [42] Transcript, Day 8, p.128. [43] Transcript, Day 1, p.10 onwards. [44] Transcript, Day 1, p.11, line F. [45] Transcript, Day 1, p.11, line N. [46] Bundle A, p.74, §31. |
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