Laine, Else (雷翠霞) in Her Personal Capacity and in Her Capacity As the Executrix of the Estate of Ng Yau Cheong, Deceased v. Laine Cheuk Wai Roger Formerly Known As Ng Cheuk Wai

HCA 389/2019

[2026] HKCFI 2521

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 389 OF 2019

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AND BETWEEN

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J U D G M E N T

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A. INTRODUCTION

1.The Plaintiff (“Mother”) sues in a dual capacity – as executrix of the estate of her mother, Ng Yau Cheong deceased (“Grandmother”); and in her personal capacity.  The Defendant (“Roger”) is Mother’s eldest son.  The 2^nd Defendant (“CY”) and 3^rd Defendant (“MY”) by counterclaim are also Mother’s children.  Mother, CY and MY shall be referred to as “Mother’s Camp”.

2.The Mother sues Roger in respect of the beneficial ownership over 2 properties:

(1)     A 4-storey building (“the Property”) which was owned by Grandmother but was transferred to Roger in 1990; Mother claims that Roger holds the Property on constructive trust or resulting trust for the estate of Grandmother (“the Estate”);

(2)     A property in City Garden (“City Garden Property”) which Mother says was purchased by her in Roger’s name but sold without her consent.  She claims that Roger holds that property or the net proceeds of sale (“Net Proceeds”) on resulting trust or constructive trust for her.

3.The Building Authority has issued building orders for compulsory building works at the Property.  Mother claims that Roger had attempted to carry out compulsory building works, thereby damaging the Property.  She seeks damages, injunction against trespass, and a mandatory injunction for Roger to reinstate the Property to a proper condition.

4.Mother no longer pursues other claims, ie that Grandmother’s actual intention was not to transfer the Property to Roger as a gift but to retain beneficial ownership; that she was under the undue influence of Roger which caused her to transfer the Property to Roger; harassment by Roger and tracing of 2 other properties purchased in the name of Roger with the Net Proceeds.

5.CY and MY, who occupy part of the Property, assert that they are licensees of Mother.

6.Roger’s defence is that both Properties were gifts from Grandmother to him absolutely. Roger changed his surname to Laine before the assignment of the Property at the request of Grandmother to maintain the Laine’s line of descendants.  The City Garden Property was for him to use as a matrimonial home; he was entitled to keep the Net Proceeds.  Moreover, Mother is barred by laches (29 years from the transfer of the Property; and 17 years from the emergence of the Net Proceeds) from making her claims in 2019.

7.Roger counterclaims against Mother, CY and MY for vacant possession of the Property and that they should not return until he has completed compulsory building works. He does not pursue his claim in equitable accounting.

B.      UNDISPUTED FACTS

B1.    The parties and their family members

8.Mother’s father (“Grandfather”) was born on or about 11 November 1900. Immediately before his death, he worked at a furniture shop operated by Lui Gen（雷根）, his brother, in San Francisco.  Grandfather was the breadwinner of the family, who remitted funds from the USA to maintain his family in Hong Kong.  He died in San Francisco on 5 April 1976, at the age of 76.

9.Grandmother was born in 1909.  She is the lawful wife of Grandfather.  She died on 26 February 2006 in Hong Kong at the age of 97.  She left a will (“the Will”) that bequeathed all movable and immovable assets to Mother, who obtained grant of probate on 21 July 2006.

10.Mother was born in 1936 and was aged 89 at the time of the trial.  She is the only surviving biological child of Grandfather and Grandmother.

11.Mother married Ng Yuk Chum (“Father”) in around 1959 and gave birth to 7 children (“the Children”).  In order of seniority, Roger is the eldest, whereas CY is the 4^th and MY is the 7^th.   Father passed away on 20 November 2015.

12.On 18 June 1987, Roger changed his surname from Ng to Laine. 

B2.    The Property

13.The Property is a 4-storey building located at No. 65, Java Road, Hong Kong, comprised of the Ground Floor, Level 1, Level 2 and Level 3.  It was acquired in the joint names of Grandfather and Grandmother and was entirely financed by Grandfather through remittances from the USA.  Following Grandfather’s death in 1976, Grandmother became the sole legal and beneficial owner of the Property.

14.Level 1 once served as accommodation for Grandmother, Mother and the Children.  At the same time, the rest of the Property was rented out for income to maintain the family.  Currently, Mother and MY are still living on Level 1 whereas CY is using Level 3.

15.By an assignment dated 17 December 1990 (“the Assignment”), Grandmother transferred the Property to Roger for free (“the Transfer”) although the Assignment stated a consideration of HK$2,000,000.  At the time of the Assignment, Grandmother was aged 81, whereas Roger was 31. The reason for making the Assignment is disputed.

16.In about 2017, the shop on Ground Floor of the Property (the “Shop Space”) was let out to a tenant at a monthly rent of HK$6,000.  The tenant moved out on receiving a demand letter on 18 June 2018 from Roger, who claimed to be the sole owner and that the tenant was trespassing the Ground Floor.

B3.    City Garden Property

17.The City Garden Property was purchased in the sole name of Roger on 5 August 1986, at a price of HK$552,160, without a mortgage.  The funds came from either Grandmother or Mother.  It was used as the matrimonial home of Roger.

18.The City Garden Property was sold by the Defendant at HK$2,200,000 in November 2002 without the title deeds, which had always been in Mother’s possession.

B4.    Building Orders and Notices Issued by the Building Authority

19.The Building Authority issued various orders and notices against the Property(“BA Orders”) in 2010, 2018 and 2019, (a) requiring repair of defective concrete, steel bars, internal plastering, and window frames; (b) concerning the mandatory building inspection scheme and mandatory window inspection scheme; and (c) in respect of the inspection of the verandahs and windows of the Property.

20.In around February 2019, Roger caused workers to erect scaffolding outside the external wall of the Property.

21.On 6 October 2020, the Building Authority issued a Notice, informing Roger that arrangements had been made for a consultant to carry out the prescribed inspections in light of Roger’s failure to comply with the 2018 Notices. 

C.      PARTIES’ CASES

C1.    The Property

22.Mother’s case is that Roger is holding the Property on common intention constructive trust or resulting trust on behalf of the Estate. 

23.Grandfather died in San Francisco in 1976 under suspicious circumstances.  Grandmother, Mother and Roger became skeptical of the causes of death.  Mother, Madam Wong Ling Po (“Madam Wong”, a close family friend) and Roger became apprehensive of the possibility that Lui Gen might make a claim against Grandfather’s assets, in particular, the Property.

24.To guard against Lui Gen’s claim and given the fact that Grandmother was old, weak and vulnerable, Mother, Madam Wong and Roger reached a consensus that Roger was to be transferee of title so as to make it seem like an inheritance to Grandfather’s estate by a male descendant (“the Consensus”, §9 RASOC).

25.To carry out the Consensus, Roger changed his surname from “Ng” to Grandfather’s surname “Laine”.

26.Mother’s alternative case is that the Transfer was gratuitous and it should be presumed that Grandmother had retained the beneficial ownership of the Property by way of resulting trust. 

27.Roger’s case is that Grandfather and Grandmother had, after the death of their biological son, adopted a godson, namely Mr Lui Chak Man (雷澤民, “Mr Lui”) in Taishan, Mainland China.  They maintained the Chinese tradition that family assets should pass to the male descendants.  Mother was upset by the adoption. 

28.Grandfather and Grandmother had a serious row in around 1961 which resulted in Grandfather permanently deserting Grandmother.  Grandmother had to resort to rental income derived from the Property to maintain the family in Hong Kong.  Grandfather died in San Francisco following a fire accident on 5 April 1976.

29.Shortly before execution of the Assignment, Mother was engaged in a serious row with Grandmother since Mother was concerned that Grandmother would be gifting the Property to Mr Lui.  The dispute was resolved by a family compromise under which Mother agreed that the Property would be transferred to Roger (and not Mr Lui) as a gift absolutely, as Roger was the eldest son of Mother and had always been regarded by Grandmother as the first surviving male descendant in her bloodline (“the Compromise”).

30.As an essential condition of the Compromise and as a rite to recognize Roger’s status as the descendant of the Laine family as though he was the son of Grandfather and Grandmother, Roger complied with Grandmother’s request to change his surname from “Ng” to “Laine”.

31.On the day of the Assignment, Grandmother, Mother and Roger attended Ng & Yung to execute the Assignment.

32.Roger further avers that Mother’s claim is barred by laches.  Roger has conducted himself as the legal and beneficial owner of the Property all along since the Assignment.  The substantial delay in this claim has made it difficult or impossible for Roger to collect all relevant evidence. 

33.Mother denies Roger’s claim in gift.  She says that Grandfather and Grandmother never had any godson. She enjoyed good parent and child relationship with Grandmother and never had any serious row or engaged in any tension with Grandmother.

C2.    The City Garden Property

34.Mother’s case is that she funded the purchase. The City Garden Property was not only used as the matrimonial home of Roger but also as her investment.  Roger held it on resulting trust or common intention constructive for her until he sold it. Thereafter, he has held the Net Proceeds on trust for her.

35.Roger’s case is that, as directed by Grandmother, the City Garden Property was purchased in his name using funds belonging to but held by Mother on behalf of Grandmother.  It was a gift to him so that he could start his own family.  Further, he has conducted himself as the true owner. Even if the City Garden Property was held on trust for Mother,  Mother only claimed the Net Proceeds 17 years after the sale.  The substantial delay has made it difficult or impossible for Roger to collect all relevant evidence.  Laches bars her from recovery.  However, if the Court were to rule in favour of Mother, Roger would not pursue the equitable accounting claim.

C3.    Trespass and Roger’s counterclaim

36.Mother and Roger each claims to be true owner of the Property.  Each alleges that the other did unauthorized acts to the Property, which deprived Mother’s Camp/Roger of access to the Property and hindered compliance with the BA Orders.  It is not necessary to go into details of the allegations.  Suffice it to say that Mother and Roger each wants to comply with the BA Orders.  The claim in trespass and Roger’s counterclaim stands and falls with Mother or Roger’s respective case on ownership of the Property.

37.By the time of the trial, Mother only seeks injunctions against Roger to cease his conduct and reinstate the Property, but not damages.

38.Roger does not intend to evict Mother’s Camp from the Property.  He is concerned as to the risk of criminal prosecution and fines for non-compliance with the BA Orders.  He seeks an order for vacant possession against Mother’s Camp, upon reasonable notice (agreed to be 6 months) to be given by Roger, and that they shall not return until the works required to be done under the BA Orders are completed to the satisfaction of the Building Authority.  He does not seek damages.

D.      ISSUES

39.Based on the list of issues lodged by the parties, the issues are follows:

(1)     Whether the Property is held absolutely by Roger as a gift, or whether he holds it on constructive or resulting trust for the Estate;

(2)     Whether the Mother is barred by laches from suing Roger for recovery of the Property;

(3)     Whether the City Garden Property was a gift to Roger or was an investment of Mother which Roger held on resulting trust or constructive trust for her;

(4)     Whether Mother is barred by laches from claiming the Net Proceeds from Roger;

(5)     Whether Mother or Roger is the trespasser.

40.CY and MY’s case stands and falls with Mother’s on issue 1.  The answer to issue 5 stands and falls with that to issue 1 as well.

E.      WITNESSES AND THEIR CREDIBILITY

41.The core issues concern matters dating as far back as 40 years.  Much of the material facts require oral evidence in proof.  The parties are prejudiced by not having the evidence of Grandmother, a material witness.  Mother, Roger, CY and MY have given evidence.

42.In assessing the credibility of witnesses, the Court bears in mind the need to consider the inherent probability or logic of each witness’ evidence and to test their evidence against the contemporaneous documents.  In Hu Lan v David Golden [2023] HKCFI 873 at §36, DHCJ H Au-Yeung J (as he then was) held that:

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

(2)     Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events.

(3)     The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

(4)     The court should consider a witness’ motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest.

(5)     It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness' evidence is to be rejected. A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie.

(6)     On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility.

(7)     While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.

43.The Court may have regard to, eg evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleadings, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence and selective disclosure: Yu Man Fung Alice v Chiau Sing Chi Stephen, HCA 1584/2012 [2020] HKCFI 2923, §61.

44.Mother was aged 88 at the time of the trial.  She had been in the witness box for 2 ½ days.  Understandably, she could not recollect some details during cross-examination. She had sometimes misunderstood the questions and confused herself, especially when reading documents with visual difficulties.  These should not be counted against her.

45.Mother’s credibility was, however, severely undermined by the significant inconsistencies between her witness statement (“Mother-WS”) and oral evidence, and within her oral evidence itself.  

(1)     On Day 1 of the trial, she could not confirm the veracity of key paragraphs of her witness statement about the agreement among her, Grandmother, and Roger to transfer the Property to Roger in order to keep it out of the reach of Lui Gen.

(2)     She claimed that Grandmother did not execute a will when in fact she had.

(3)     She claimed that probate of the Will was not taken out when in fact it was.

(4)     She admitted repeatedly in the witness box that the Property and the City Garden Property were gifts to Roger. 

46.As the analyses of issues below will show, I do not think that Mother’s inconsistent evidence could only be explained by poor memory arising from old age.  She plainly had reason for not telling the truth – for fear of losing the Property and her accommodation and to boost her claim over the 2 Properties. Overall, I find that she was an unreliable witness and I treat her evidence with great caution.

47.Roger’s evidence was overly cautious and he took time to ponder upon a question even though it would only require a yes or no answer.  He was evasive at times, declining to answer a straight forward question like whether he was entitled to sell the Property if he was both the legal and beneficial owner, by saying that it was a hypothetical question. He mulled over the question of whether Grandmother trusted Mother and eventually gave the answer that Grandmother mainly entrusted Mother with management of real properties.

48.Roger had at times contradicted himself.  For example, he denied ever stating that CY helped Mother by having more children to defend the Property. And yet when shown his own witness statement, he retracted his denial. He attempted to explain away his inconsistency by saying that he believed CY wanted to have a male descendant to defend the family property.  Such evidence was quite inconsistent with his case that he was the sole owner of the Property.

49.There were aspects of his evidence which were “disturbing”, to say the least, eg his evidence about how he sold the City Garden Property without the title deeds was most suspicious and verging on deception.

50.Roger withdrew allegations, in his witness statement, that Mother made up a conspiracy about Lui Gen murdering Grandfather, conceding that to be an exaggeration.  His witness statement also smears Mother with derogatory words like “paranoid”, “manipulative”, “defiant”, “massive ego” and “grandiose”.  He also smears his Father as wanting to throw baby Roger away in front of Grandfather.  He refers to convictions of CY and MY, showing hostility towards them. Having heard the evidence, I find all such descriptions to be wholly unnecessary to the resolution of the issues before me.  Rather, they undermine the objective nature of Roger’s evidence.

51.Overall, I do not find Roger to be wholly truthful or reliable. 

52.I shall illustrate my views on Mother and CY’s credibility in the following analyses of the issues.  I place more reliance on objective circumstances, contemporaneous documents and inherent likelihood of asserted events.  I shall take a holistic approach but would not set out all the details in the evidence.

53.MY and CY were honest witnesses but, without disrespect, their evidence was not really helpful to the resolution of the issues.  CY’s evidence was mostly hearsay.

F.      LEGAL PRINCIPLES

F1.    Common intention constructive trusts

54.As a starting point, equity follows the law.  The onus is on the person seeking to show that beneficial ownership differs from legal ownership. Hence, in sole ownership cases it is upon the non-owner to show that she has any interest at all: Mo Ying v Brillex Development Ltd v Anor [2015] 2 HKLRD 985 at §5.5. 

55.For common intention constructive trust, the plaintiff has to prove three elements:

(1)     a common intention between the plaintiff and the property owner that the beneficial ownership is to be different to the legal ownership;

(2)     detrimental reliance on the common intention by the plaintiff; and

(3)     unconscionability of the property owner in departing from the common intention.

see Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at §38 per Ribeiro PJ.

56.Common intention is to be ascertained objectively.  One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct:

(1)     The common intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties based on evidence of express discussions.  Their other conduct remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested.

(2)     Where there is no evidence to support a finding of such an agreement or arrangement, the Court seeks to infer from the conduct of the parties the relevant common intention.

See: Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9at §§47-50 per Godfrey Lam J (as he then was), cited with approval in WML v LCK (unrep., CACV 82/2014, 27.02.2015) at §41 per Cheung JA.

57.Where intention cannot be ascertained from documentation, the court is not limited to inferring intention from the parties’ words and conduct, but should take a holistic approach that considers the context and the particular facts: Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819 at §8(5), DHCJ A Stock SC; and Ng Nim Chung, deceased & Anor v Ng Wing Man Terry [2021] HKCFI 2534 at §25).

58.In the context of a Hong Kong Chinese family, it is not uncommon that parents would acquire a property in the name of their children and yet retain control and beneficial ownership of the property during their lifetime: Primecredit at §§2.3, 2.4 & 2.9, Cheung JA.

59.Conduct subsequent to the transfer in question is admissible when determining the intention at the time of the transfer; the issue is one of weight: Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 at §55, Stock NPJ.

F2.    Resulting trusts

60.Where there is a gratuitous transfer containing no express or inferred provisions determining beneficial ownership, then the starting point is that there is a rebuttable presumption of resulting trust, in that the transferor did not intend to make a gift: Lewin on Trusts, §10-003.

61.The presumption may be rebutted where there is evidence as to the actual intention of the paying party at the time of the transfer, for example the intention to make a gift: Tang Lui Leo v Wong Elaine [2020] HKCFI 3087 at §23 per DHCJ Burns SC.

F3.    Laches

62.As stated by DHCJ Eugene Fung SC (as he then was) in Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 at §§159 and 160:

“159. Laches essentially consists of a substantial lapse of time coupled with the existence of circumstances which make it inequitable to enforce the claim. Accordingly, delay alone is insufficient to constitute laches. Further, there can be no abandonment of a right without full knowledge of all the relevant circumstances. See Snell’s Equity (32^nd edn, 2010) §5-019.

160. The essence of equitable doctrine of laches was summarised by Lord Selbourne LC in Lindsay Petroleum v Hurd (1874) LR 5 PC 221, 239-240:

‘Now the doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapses of time and delay are most material.’”

63.Mere delay is not sufficient.  The important considerations are the length of the delay and the nature of the acts done during the interval. The question is whether the lapse of time has given rise to circumstances that now mean it would not be inequitable to deny relief to the claimant: Unionward Investment Limited (supra) at §89 per K Yeung J.

64.By way of example, in Fernandes (As administrator of the estate of Antonio Francisco Fernandes deceased) v Fernandes[2015] EWHC 814 (Ch), a declaration of trust was made although the claimant made the claim only 23 years after the deceased had transferred the property to the defendant. Laches was considered as a defence although it was not established on the facts of the case: see §§62-70.

65.Prejudice is an essential element for a defence based on the doctrine of laches: Capital Century Textile Co Ltd v Li Dianxiao & Anor [2021] HKCFI 2216 at §145.  Whilst not an immutable requirement, some sort of detrimental reliance is usually an essential ingredient of laches: Unionward Investment Limited, at §90.

66.The Court does not act on bare and unparticularised assertions of detriment: Capital Century, §145.

67.Delay resulting in loss of evidence and witnesses can ground laches leading to equitable rights being denied.  For instance, a delay of nearly twenty years, during which witnesses have died, and the means of explanation have disappeared is sufficient to deny relief: Unionward Investment Limited, at §92(a).

68.Laches can only bar equitable relief: Chu Tsan Leung v Leung Mee Ling Amy & Ors (unrep., HCMP 774/2016, 31 October 2017) at §53, DHCJ Yee; see also Fisher v Brooker [2009] 1 WLR 1764 at §79.

69.Mr Tam, Ms Mui and Mr Kwok (counsel for Mother's Camp) submit that Mother would not be barred by laches from the declaratory reliefs sought, for they are not equitable reliefs, citing Chapman v Michaelson [1901] 1 Ch 238.

70.Mr Lo and Mr Tang (counsel for Roger) disagreed.  They submit that the doctrine of laches has been applied to cases where declarations were sought e.g. in Patel v Shah [2005] EWCA Civ 157, §§3-5, 32.  Mummery LJ adopted the modern approach that does not require an inquiry as to whether the circumstances can be fitted within the confines of a preconceived formula derived from earlier cases but is directed to ascertaining whether it would in all the circumstances be unconscionable for a party to be permitted to assert his beneficial right.

71.For reasons that will become apparent below, it is not necessary to resolve the differences in counsel’s views.

G.      BENEFICIAL OWNERSHIP OF THE PROPERTY 

G1.    Mother’s case on common intention constructive trust and resulting trust

72.There is no dispute that Mother bears the burden of proving that the beneficial interest differs from the legal title.  It is common ground that the Court should resolve this issue by reference to the parties’ actual intention at the time of the transfer of the Property.

73.Mother’s case as regards the Property is seriously flawed, in terms of pleading, timing of the Transfer and the evidence.

74.With regard to pleading, Mother’s plea on constructive trust rests on the Consensus that was reached among Mother, Madam Wong and Roger.  One thus queries: why wasn’t Grandmother involved when disposal of her Property was discussed?

75.It was only after Roger pointed out in §27C.3 of his Re-Amended Defence that the Consensus did not include Grandmother that Mother, in her Amended Reply, pleaded that the Consensus was reached “among themselves and on behalf of or as the agent of the Grandmother” (“the Alleged Agency”). 

76.However, a plaintiff must not put forward in his reply a new cause of action which is not raised either in the writ or the statement of claim.  If the plaintiff, after seeing the defence, finds it necessary to rely on a cause of action which has not been raised in the writ or statement of claim, the proper way is to amend the writ and the statement of claim: Singh Baljit v Forward & Co Lawyers [2022] HKCFI 153 at §21 per Au-Yeung J.  Mother’s pleadings violated these principles.

77.Even if Mother is allowed to plead the Alleged Agency, a person cannot appoint himself as agent of another.  An alleged agent, who does not have actual or apparent authority to bind the principal, can hardly acquire apparent authority to do so, simply by representing to the third party that he has such authority: Akai Holding Ltd v Thanakharn Kastkorn Thai Chamkat (Mahachun) (2010) 13 HKCFAR 479,§§63-70. 

78.There are simply no particulars as to when and how the Alleged Agency arose.  The mere fact of Grandmother going to a solicitor’s firm to execute the Assignment is not sufficient on the pleadings to show her being a party to the Consensus, especially since her counsel expressly reserved the right to rely on the pleaded particulars of undue influence in Mother’s cases based on resulting trust and common intention constructive trust.  See footnote 4 to the closing submission of Mother’s Camp.

79.Accordingly, Mother’s case on common intention constructive trust must fail.

80.With regard to resulting trust, there is of course no dispute that Roger never paid a cent to get the Property.  However, the case on resulting trust can be dismissed outright when Mother’s case is premised on an express Consensus which fails.

81.Accordingly, on pleading grounds alone, Mother’s case of common intention constructive trust fails and resulting trust falls with it.

82.With regard to the timing of the Transfer, Grandfather’s death was in 1976. If the transfer to Roger was to fend off a potential claim of Lui Gen, one would have expected this to be done as quickly as possible.  And yet the change of surname of Roger took place only in 1987 (11 years later) and the Assignment was executed in 1990 (3 more years later).  These delays in action gave no credence to Mother’s case.

83.With regard to the evidence, there are contemporaneous documents (emerging well before this action) starkly against Mother’s case:

(1)     The Will mentioned specific properties of Grandmother but made no mention of the Property, clearly indicating that Grandmother knew that the Property did not belong to her.

(2)     The grant of probate of the Will made no mention of the Property as an asset or a property held on trust for Grandmother.  The Schedule of Assets and Liabilities dated 22 May 2006 (16 years after the Assignment) was approved by Mother before signing.  At that time, she was residing at the Property and was the potential sole beneficiary to Grandmother’s estate.

84.The position was reinforced by Mother’s evidence in the witness box that Grandmother held no interests in the Property at the time she made the Will, after her death and at the time probate was applied for.

85.I now analyze the circumstances that led to the alleged Consensus as if Mother is able to overcome the pleading hurdle.

86.Firstly, I have alluded to the delays in action in paragraph 82 above.  According to Mother, it was because the whereabouts of Lui Gen were unknown.

87.Mother testified that she and Grandmother only saw Lui Gen twice in Hong Kong shortly before and after the death of Grandfather and no more thereafter.  Madam Wong allegedly told Grandmother and Mother that Lui Gen may have a false will of Grandfather and may go after the lifelong savings of Grandfather. 

88.I do not accept Mother’s explanation.  If Lui Gen could not be found, there was nothing to fear about him.  If he had done nothing to present a false will or make a claim on Grandfather’s estate for 14 years, it is difficult to see why the Transfer had to take place to create the impression that the Property had been inherited by Roger.

89.Secondly, the Transfer was wholly unnecessary even if Grandmother and Mother had wanted to protect Grandfather’s estate.  By operation of law, the Property would have devolved to Grandmother upon the death of Grandfather. Mother was clear about this concept of survivorship as she said “whoever died first, the later one could get it” (邊個走先，遲啲嗰個就得囉).

90.Grandmother’s status as the sole owner of the Property became crystal clear in the Land Registry records, latest by 1983, when Grandfather’s death certificate was registered.  There was simply no need to do the Assignment another 7 years later.

91.Thirdly, had it been necessary to protect Grandfather’s estate, it would have been logical to protect all his assets, not just the Property.  And yet, Mother admitted under cross-examination that she and Grandmother did not discuss about protecting Grandfather’s estate, and had not taken steps to protect another property that he had in Guangzhou.

92.Fourthly, Mother admitted that Grandmother did not participate in reaching the Consensus:

“雖然母親當時並未有與本人及黃令婆及卓威同一場合表達共識，但當時我們清楚從母親的說話及意願，她也是贊成推行此方案，母親的意向是要保護物業，防止雷根有不當的陰謀”. §57 of Mother-WS.

What Grandmother said (母親的説話) was not specified in Mother's-WS.  Her “intention” (意願/意向) could not be elevated to her agreement to the Consensus or the Assignment.

93.Fifthly, there was not even a discussion between Grandmother and Mother of a trust, as admitted by Mother under cross-examination. Nor did Grandmother ever authorise Mother to discuss a trust with Roger. 

94.Sixthly, Mother virtually admitted, under cross-examination, that she only put up a case of trust about a year before issue of the writ.  Roger’s act of removal of the external wall prompted Mother to ask him not to sell the Property as it was held on trust.  Roger replied that the Property was dangerous and the Property could be sold.  The inference was that the suggested sale antagonized her into suing Roger.  No one else but she had talked to Roger about there being a trust.

95.Seventhly, contrary to Mother’s pleaded case, Madam Wong was not a party to the Consensus.  According to §56 of Mother-WS, it was Madam Wong who advised Mother and Roger to do the Transfer and make him the nominal owner of the Property.  However, under cross-examination, Mother said that she never had any discussion regarding the Property with Madam Wong and Madam Wong did not propose the Transfer.  She could not recall why 4 pages in Mother-WS (B/1/16-19) were devoted to the Consensus involving Madam Wong.  She could not even confirm that the Property had been transferred to Roger and why. 

96.Eigthly, execution of the Consensus was only triggered, on Mother’s evidence, in around 1990 when an owner of a furniture shop near the Property told mother and Grandmother that a lady had come to inquire about the Property and the family.  After being shown a photo of Lui Gen’s wife, the owner told Mother that the lady he met looked similar to the one in the photo.

97.This triggering event based on a chance encounter with Lui Gen’s wife, who did nothing threatening, was wholly incredible.  Mother admitted that Lui Gen would have been aged about 80 in 1990 and that Lui Gen’s wife would have been aged 30+ in 1976 (at the time the photo was taken 30-40 years ago).  With the significant differences in age and appearance of Lui Gen’s wife in the picture, one just queries how the shop owner could associate the photo image with Lui Gen’s wife.

98.For the reasons given in Section G1, I find Mother’s case on common intention constructive trust to be wholly incredible and must fail. 

G2.    Roger’s case on gift

99.Given the conclusion in the preceding paragraph, I only deal with Roger’s case on gift for the sake of completeness. 

100.There is no dispute that Roger changed his surname from Ng to Laine for the purpose of holding the Property.  There was ample evidence pointing to a gift.

101.Firstly, Grandmother had great affection for Roger since he was young, as confirmed by Mother under cross-examination, Grandmother trusted Roger to manage her affairs, including accompanying her to banks and visiting her relatives.  Even after Roger moved to the City Garden Property in around 1986, Grandmother continued to visit him around 5 times a week to cook breakfast for him.  This lasted until around a year after Roger got married in around 1992. 

102.MY’s evidence showed that Grandmother had affection and took care of grand daughters too.  That, in my view, did not undermine the fact that Grandmother favoured Roger over other grandchildren.

103.Secondly, as confirmed by Mother under cross-examination, Grandmother was a person who adhered to Chinese traditions, including passing assets to male but not female descendants.  The Property was the ancestral home of the Laine family and should be held on to (把持) and inherited (繼承) by someone from the Laine family.  In fact, Mother’s oral testimony was that Roger has been holding the Property as its sole legal and beneficial owner by way of inheritance.  She admitted that Roger was chosen by Grandmother to inherit (“繼承”) the Property and therefore changed his surname.

104.Thirdly, Grandmother regarded Roger as the eldest male descendant in her bloodline. According to Roger, he had been “adopted” (過繼) by the Laine family since primary 4.  His unchallenged evidence was that Mother had presented him to Grandfather and Grandmother as if he were their first grandson in the Laine family’s bloodline. 

105.Fourthly,most tellingly, if Roger was just to hold the Property as a trustee, there was no need to change his surname.  The suggestion to change his surname came from Madam Wong, the purpose of which was to let the grandson hold on to the Property as a descendant of the Laine family.  Mother confirmed in the witness box that Grandmother told her that if Roger changed his surname to Laine, he could inherit the Property, to which Mother did not have any objection. 

106.Fifthly, the Transfer to Roger suited Mother as it would prevent Mr Luifrom getting the Property.  The evidence was a little tricky here and neither party was entirely reliable.

107.Mother was at pains to deny that Mr Lui was an adopted son.  She was supported by MY who stated that Lui Gen never appeared in the family and was not mentioned by anyone.  Such evidence has to be considered in the light of the following contemporaneous documents:

(1)     On 3 September 1997, Grandmother and Mother made a declaration entitled《繼承遺產聲明書》(“the Declaration”) before a Hong Kong notary public, wherein it was stated that Grandfather and Grandmother only gave birth to Mother and did not adopt any child[1].

(2)     There was an administrative decision of Guangzhou Liwan Notary Office ((98) 穗荔證撤字第 4 號) dated 21 September 1998, which held that Grandmother and Mother concealed the existence of other successors when they applied for succession to Grandfather’s assets (“the Decision”).  Accordingly, the Certificate of Right to Succession was revoked.

(3)     Grandmother and Mother lodged an Application for Administrative Review on 16 October 1998.  The Guangzhou Liwan Judicial Bureau upheld the Decision.

(4)     On 6 December 1999, the Guangzhou Liwan District People’s Court held that Grandmother, Mother and Mr Lui (all being parties in that case) were all successors to Grandfather’s Property in 長壽西路.

108.It can be seen that all along, Mother and Grandmother had maintained a consistent position that Mr Lui was not an adopted son even till 1999.  When the “row between Grandmother and Mother was put to Mother in cross-examination, Mother’s response was: what was there to argue about when there was no adoption of Mr Lui at all? 

109.The rhetorical question is: why would Grandmother care to make the Declaration and insist on reviewing the Decision?  In my view, it plainly reflected concerns over what Mr Lui might potentially claim against Grandfather’s estate or even against Grandmother. I am thus not surprised that before 1990, Mother did have concerns that the possible status of Mr Lui as an adopted son could threaten her succession to the Property. 

110.Mother ruined her own denial of the adoption when, by slip of tongue, she described Mr Lui as “younger brother” (細佬) when talking about buying of a train ticket. 

111.Mother had reason to avoid telling the truth about the status of Mr Lui because it would support the reasons given by Roger for the Transfer.

112.Sixthly, Roger eventually changed his surname to Laine on 18 June 1987, which I accept to be a big decision to him.  It was a formal recognition of his being a descendant of the Laine family.  Such a status in fact continued until Grandmother died, when Roger was responsible for leading the funeral procession (擔幡買水，進行道教儀式).

113.Seventhly, the terms of the Assignment was in the form of a gift as it did not state any consideration.  The Assignment was prepared by a firm of solicitors and bore the phrase “INTERPRETED BY” at the end of p.4 of the Assignment.  Roger’s unchallenged evidence was that the solicitor (“Mr Kan”) was told about Grandmother’s intention to make a gift of the Property for him to inherit the Laine family’s asset; and that Mr Kan explained the meaning of a gift. 

114.On the other hand, Mother-WS claimed that Mr Kan did not explain the contents of the Assignment to her, and that Grandmother and Mother had told Mr Kan that the Property was a transfer but not a gift.  Mr Kan then asked Grandmother to sign as directed.

115.Had Mother told Mr Kan that the Property was not a gift, I could discern no reason why Mr Kan would not have changed the wording of the Assignment.

116.Further, Mother’s denial, under cross-examination, that she did not even know that the Property was assigned to Roger and even claimed that he forged it, could not be believed.  She either had defective memory or was trying hard to explain away the Transfer.

117.Eighthly, the objective circumstances showed that Grandmother in fact trusted Mother but still favoured Roger:

(1)     On 23 October 1998, Grandmother made a power of attorney authorizing Mother to manage affairs regarding Grandmother’s property in Guangzhou.

(2)     On 8 March 1999, Grandmother made the Will appointing Mother as executrix and sole beneficial to Grandmother’s movable and immovable assets, including an ancestral house in Taishan.

(3)     Roger agreed, under cross-examination, that Grandmother fully relied on Mother to handle the properties and litigation in Mainland China and some rental matters in relation to the Property.

(4)     Roger confirmed that, post-1990, Grandmother reposed great trust in Mother for matters concerning real estate in Mainland China.

118.Whilst these were all post-Assignment, they demonstrated the clear mind of Grandmother to distribute different assets to different persons.  With her trust of Mother, there was no reason for her to transfer the Property to Roger except that it was to benefit him personally. 

119.On the other hand, Roger’s case was not watertight.

(1)     Roger tried to avoid answering the questions as to why Grandmother signed the Declaration when she did not have any motive to make a false declaration.  He claimed that those were hypothetical questions, until being required by the Court to answer. He could not come up with an explanation.

(2)     He could not explain why the document annexed to the Declaration and entitled 《行政复议申请书》 dated 23 October 1998, signed by Grandmother, stated one of the grounds of review to be that Grandfather had never adopted Mr. Lui as godson.  

(3)     On Roger’s own evidence in his witness statement, Mr. Lui was not “lawfully” adopted by Grandmother and Grandfather.

120.Further, Roger’s case as to when the Compromise came about changed from “shortly before execution of the Assignment” (pleaded) to “shortly after purchase of the City Garden Property” (at examination-in chief).

121.I can accept that it took time for Roger to decide on changing his surname but he could not explain the 3 year vacuum between that change and the Assignment.  The title deeds to the Property, according to Roger, were with Mother.  He even testified that Grandmother had taken concrete steps to apply for Mr Lui to come to Hong Kong for reunion in 1986.  There was no reason why the Assignment was not executed as soon as possible to allay Grandmother and Mother’s concerns as to Mr Lui’s status and potential claims.

122.On balance of probabilities, based on the timing and objective circumstances, I find that the Compromise, as opposed to the Consensus, could better explain the Transfer.

123.In any case, even if Roger failed to establish the gift, Mother still fails on the burden of proof.

G3.    Concept of ancestral home

124.I accept the evidence that Grandmother often asked the grandchildren to protect the ancestral home.  Throughout the evidence, the witnesses have referred to the Property as an ancestral home even after it was put under Roger’s name.

125.Mother accepted that whoever held the title to the Property owned it and was not just a nominal owner, provided the descendants could live there and the Property was passed down through generations.

126.Mother testified that from the beginning, the Property had been owned “substantively” by Grandfather and Grandmother, but it became owned by Roger as nominee owner.  Mother thought that even her sister’s son could live there if needs be.

127.CY testified that ancestral home only meant that the Property could not be sold to people outside the family.  It is not clear where this idea came from.  He testified that Mother and Grandmother rejected the offer to purchase the Property from South China Hotel, as the property had to be passed from generation to generation.

128.There were different interpretations to “ancestral home” advanced by the witnesses.  However, the focus was on the Property being kept available for descendants to live in; it did not affect beneficial ownership. That did not create a trust but at most a moral duty imposed by the transferor on the transferee. Mother's Camp’s has not produced authorities to show that there is such a legal concept as an ancestral home. 

129.Further, who should have beneficial interest?  The “ancestor” of the Property is from the Laine family.  Mother is a member but CY and MY are not.  Anyway, I do not need to make a finding on whether the Property is an ancestral home in this case.  In my view, there is nothing to undermine Roger’s absolute interests in the Property.

G4.    Finding on beneficial ownership of the Property

130.In view of the above analyses, I find that absolute ownership of the Property was vested in Roger upon the Assignment.  Mother has failed to discharge her burden of establishing her beneficial interest in it.

H.      BENEFICIAL OWNERSHIP OF THE CITY GARDEN PROPERTY

131.Roger’s case originally was that the purchase price came from Grandmother.  However, in his examination in chief, he stated that he actually did not have knowledge as to whether the money came from Mother or Grandmother. 

132.Once again, the delay in Mother’s claim has deprived the parties of the benefit of Grandmother’s evidence as to the source of the purchase price and the intention as to ownership.

133.Mother’s evidence on the source of the purchase price was as follows:

(1)     She accepted under cross-examination that the acquisition of the City Garden Property was funded by Grandmother.

(2)     She disclosed that she did have her own sources of income:

(a)     From income in the labour market for about 2-3 years in the 1970s;

(b)     From leasing out her properties at Pak Fuk Building and Goldfield Mansion; and

(c)     From Father’s salary.

However, those were all her say-so, without supporting documents.  More importantly, there was no correlation between the purchase price and each item of income (some way back in time before the purchase).  She also had 7 children to feed.  How much of her income or proportion of her income was available to buy City Garden Property was not clear. 

134.Mother accepted that it was actually Grandmother who received the rental income (presumably meaning properties in Grandmother’s name, including the Property) before Grandmother’s death.  She did not suggest that she had deployed Grandmother’s rental income to purchase the City Garden Property and, if she had, how much that was.

135.Such evidence was insufficient to prove, on balance of probabilities, who paid the purchase price.

136.Further, Mother’s evidence as to the intended ownership was inconsistent and unreliable:

(1)     In Mother’s-WS (§111), she claimed that she bought the City Garden Property as her own investment property.  However, she confirmed at least 3 times, under cross-examination and in response to queries by the Court, that she intended to and did give the City Garden Property to Roger as a gift from mother to son.

(2)     There was no reason why it was more “convenient” to use Roger’s name as owner as pleaded in §25 of the Reply.  Mother had prior experience of acquiring 2 properties in her own name and another property under joint names with Father. 

(3)     Mother admitted in the witness box (contrary to §111 of Mother’s-WS) that she never told Roger that the City Garden Property was her investment or that he would be holding it on trust for her.  Rather, she affirmed that Roger was free to deal with the City Garden Property as he wished.

(4)     She admitted that she was actually upset by the fact that Roger sold a property given to him as a gift, when he should have kept it instead of realizing it for money.

(5)     I accept the evidence that Grandmother actually moved the ancestral tablets of the Laine family there.  During her lifetime, she visited the City Garden Property almost daily to carry out rites there.  She also treated the City Garden Property as her second home and would occasionally sleep there.  There was no reason for her to do so if it were Mother’s investment.

137.From the 2 preceding paragraphs, Mother had made admissions against her own interest that the City Garden Property was funded by Grandmother and given as a gift to Roger.  Her inconsistent evidence could not be the result of her old age but was a reflection that she was not telling the truth or the whole truth.  She was not a credible witness.

138.There are, however, undisputed facts which the Court cannot ignore:

(1)     That the title deeds had always remained with Mother;

(2)     That Roger never enlisted the help of Grandmother in getting back the title deeds during her lifetime;

(3)     That the City Garden Property was sold without title deeds. 

139.Roger’s evidence, accepted by Mother, was that she was the only person in the family who had a safe deposit box at home and all their valuables (including the title deeds to City Garden Property) had always been kept in her custody. Roger admitted, however, that she had never requested him to hand over the title deeds to her. 

140.Roger described Mother as paranoid and did not trust anyone and would not accept others’ opinion.  She believed that properties were not for sale.  She did not understand the concept of personal autonomy, making it very difficult to retrieve something from her. 

141.I do not accept the explanation.  Mother did not oppose Roger’s purchase of another property to replace the City Garden Property.  She even viewed the properties at Lei King Wan and Harbour Heights with Roger.  It was just that she did not like those properties.  Eventually, Roger found another property which he purchased. 

142.This Court queried, with a warning on privilege against self-incrimination, how Roger was able to sell City Garden Property without title deeds.  Roger claimed that he had told his lawyer that Mother might not be willing to sell it but the lawyer said that he would fix it for Roger.  I find it totally incredible how a lawyer could “fix” something as important as title deeds which were not lost. The sale without title deeds verged on deceptive conduct.

143.Roger’s explanation as to why he did not retrieve the title deeds from Mother directly contradicted the example he gave as regards his marriage certificate.  Mother originally asked that his marriage certificate be kept in her safe but, upon objection by Roger’s wife, Mother returned the marriage certificate to him.  Roger could have done the same with the title deeds.

144.The Court ends up with having unsatisfactory evidence of Mother but there were admissions against her own interests that the purchase was funded by Grandmother and the City Garden Property was a gift to Roger.  There was evidence that Mother retained control over the title deeds but that could not, in my view, override the intention to make a gift to Roger at the time of purchase when Mother’s intention to make an investment was not disclosed to Roger.  It was more likely than not that she retained the title deeds only because she was the only one in the family who had a safe. 

145.I find that the City Garden Property was a gift to Roger. Mother’s claim in resulting trust or common intention constructive trust is dismissed.

146.If I am wrong, I have considered the reliefs claimed.  Mother seeks declaratory reliefs.  As the City Garden Property had been sold, it is futile to grant a declaration as to ownership.  Mother has abandoned her tracing claim but that would not bar her from seeking payment of the Net Proceeds.  The question is whether Mother is barred by laches.

147.The Net Proceeds arose 17 years before action.  Mother knew about the sale and even thought that it was at an undervalue but she took no action there and then. 

148.If the Court were to find that liability is established, then the prejudice in terms of loss of witness and evidence would not come into play.  Roger has not gone into details on expenditures as regards the City Garden Property in reliance on his absolute title.  He did not plead or prove that he was not in a position to pay back the Net Proceeds.  In fact, he at least has the Property to meet a money judgment. Therefore, if liability were established, I am inclined to think that Mother would not be barred by laches from recovering the Net Proceeds.

I.      CROSS CLAIMS IN TRESPASS

149.The tort of trespass to land is actionable per se against defendants who intentionally enter the land of another without permission. It is actionable only by a claimant who has possession of the land in question: Clerk and Lindsell on Torts, 24^th edat §§18-09 and 18-11.

150.Since I have dismissed Mother’s claim to the Property, Roger was not a trespasser.  Mother’s claim in trespass fails.  Roger’s counterclaim succeeds, although he does not say that Mother Camp are trespassers.

151.It is not necessary to go into details of the BA Orders and what each party has done or not done because all that Roger wants is possession in order to carry out building works pursuant to the Building Orders.  Damages would plainly not be an adequate remedy, because failure to comply with the BA Orders might open Roger to enforcement action by the Government.  A mandatory injunction in favour of Roger is appropriate: Clerk & Lindsell, at §§27-14 to 27-16. 

152.I therefore grant an order for possession in favour of Roger in the terms he suggested in paragraph 38 above.  The parties have agreed that Mother's Camp be given 6 months to move out.

J.      CONCLUSION AND COSTS

153.To answer the Issues in Section D, I find that the Property and City Garden Property were gifts to Roger absolutely. Roger was not a trespasser.  I therefore order as follows:

(1)     The Mother’s claims are dismissed.

(2)     On the counterclaim, each of Mother, CY and MY do, within 6 months of the handing down of this judgment (i) deliver vacant possession of the Property (and, for the avoidance of doubt, remove all their belongings thereat) to Roger to enable him to carry out the works required to be done under the 2010 BD Order, the two 2018 Notices, and the two 2019 Notices; and (ii) not to return to the Property for such period until the completion of such works to the satisfaction of the Building Authority.

(3)     There be liberty to apply with regard to implementation of this order.

154.Costs should follow the event.  On a nisi basis, costs of the action and Roger’s counterclaim, including all costs reserved, be to Roger, to be taxed if not agreed.  I order that 60% of such costs shall be borne by Mother’ Camp (as they relate to the Property) and 40% shall be borne solely by Mother (as they relate to the City Garden Property).

155.On the first day of trial, this Court made an order in terms of Mother’s Summons filed on 23 June 2025 (for Mother's Camp to file and serve a 4^th supplemental list of documents) with costs to Roger.  The question of taxation or summary assessment reserved.  I now make an order that those costs should be taxed with the costs ordered in the preceding paragraph.

156.I thank counsel for their assistance.

Mr Jeffery Tam, Ms Angela Mui and Mr William Kwok, instructed by Alex To & Co. Solicitors, for the Plaintiff (By Original Action) and the 1^st to 3^rd Defendants (By Counterclaim)

Mr Benny Lo and Mr Tang Lik Hang, instructed by Liu, Chan & Lam, for the Defendant (By Original Action) and the Plaintiff (By Counterclaim)