Pan Haifei v. Tai Karen Kai Lun
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HCA 1017/2021 [2026] HKCFI 3064 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 1017 OF 2021 ________________________ BETWEEN
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________________ JUDGMENT ________________ A. INTRODUCTION 1.This is a very peculiar case involving some rather unusual facts. It also involves some rather technical legal arguments. 2.The dispute centres around the ownership of a property in a high-end residential development called Cluny Park on Conduit Road (“the Property”)[1]. 3.The defendant Ms Tai Karen Kai Lun (戴凱倫) (“D”) is the registered / legal owner of the Property. The plaintiff Mr Pan Haifei (潘海飛) (“P”) claims that he is the beneficial owner of the Property. 4.P claims against D for a declaration that the entire beneficial and/or equitable interests in relation to the Property have been held on resulting trust or common intention constructive trust (“CICT”) for P. P also seeks an order for D to convey, transfer and/or assign the entire interests, rights and/or title to the Property in favour of P. Alternatively, P claims restitution for the sums of HK$19,349,368.04 and HK$1,946,446. B. BACKGROUND B1. The Undisputed or Indisputable Facts 5.P is a businessman carrying on business in Hong Kong and the Mainland. 6.D is the daughter of Mr Tony Tai Chak Leung (戴澤良) (“Mr Tai”), a successful industrialist and businessman. 7.P and Mr Tai first met in or around 2012. From November 2012 to at least mid-2015, it is not disputed that the parties had enjoyed good business and personal relationship. They trusted each other. Based on such trust, Mr Tai introduced D (his only daughter) to P, with a view that she could learn how to do business from P. D would participate in social gatherings with P with her parents and would attend business meetings with P. 8.It is not disputed that P had business dealings with Mr Tai prior to the acquisition of the Property. These dealings included certain loan/investment arrangements made by Mr Tai to P. For example:-
9.It is common ground that sometime in 2015, P had indicated to D that he wished to acquire a residential property in Hong Kong, although the exact date was not agreed. P puts the time at mid-2015[6] and D says the time was in late October 2015[7]. 10.Between November 2015 and March 2016, P paid and/or contributed the aggregate downpayment of HK$12,132,121.38 for the acquisition of the Property. 11.Between November 2015 and April 2016, P paid and/or borne all the expenses in relation to the acquisition of the Property in the amount of HK$1,946,446. 12.On 31 March 2016, completion took place in relation to the purchase of the Property and D became the registered owner thereof. 13.On 13 April 2016, which was exactly two weeks after completion, D executed a Declaration of Trust (“DoT”) over the Property in favour of P. The DoT was prepared by a solicitor and was “signed, sealed and delivered” by D as trustee and P as beneficiary. It has been specifically declared by D that “as from the date of this Deed she will hold the Property and the net proceeds of sale and net income until sale upon trust for sale for herself and the Beneficiary as Sole Owner.” (emphasis appeared in original document). 14.Between 31 March 2016 and May 2018, P solely paid and/or borne the monthly instalments under (i) a mortgage loan of HK$15,590,387.62 provided by the Standard Chartered Bank pursuant to the legal charge dated 31 March 2016 (“the SCB Mortgage”); and (ii) a further mortgage loan of HK$14,927,500 provided by Global Honest Finance Limited pursuant to the legal charge dated 31 March 2016 (“the GHF Mortgage”). 15.On 8 June 2016, P paid a sum of HK$1,020,000 to D (“the HK$1.02M Payment”). On P’s case, it represents a service fee to D for helping him with searching of properties, contacting the estate agent, arranging the mortgages and decoration (“the One-Stop Arrangement”). On D’s case, it represents a “thank you gift” from P to thank D’s help as a middle person to facilitate her parents’ investments, including saying positive things about P in relation to the Liantang Project (蓮塘項目)[8] (“Thank You Gift”). 16.On 16 January 2018, which was almost 2 years after completion, by way of a tenancy agreement executed by P as tenant and D as landlord (“the TA”), the parties agreed that:-
17.On 29 May 2018, the Property was mortgaged in favour of the Bank of East Asia pursuant to a legal charge (“the BEA Mortgage”). From May 2018 onwards, P solely paid and/or borne the monthly instalments under the BEA Mortgage. 18.On 8 June 2019, P, Zhu and Mr Tai executed a loan confirmation (借款總結算保證書) (“the Loan Confirmation”), in which it was stated that P and Zhu agreed to repay to Mr Tai interest in the amount of RMB 1.5 million before 30 June 2019 in respect of the RMB300M Loan. 19.On 25 June 2019, Mr Tai obtained a Mainland court order freezing the assets of P, his associates and companies in the Mainland totalling over RMB1700M (on P’s case) (“Freezing Order”): (2019) 粤03财保79号. 20.On 25 July 2019, Mr Tai commenced litigation at the Shenzhen Intermediate People's Court (深圳市中級人民法院) (“Mainland’s 1st Instance Court”) against P and others in the PRC to sue for repayment of the RMB 300M Loan. 21.On 6 August 2019, D applied for recovery of possession of the Property at the Lands Tribunal on the ground of P’s failure to pay rent since 1 February 208 under LDPD 1293/2019. 22.On 21 August 2019, D applied for default judgment against P at the Lands Tribunal and obtained the same on 26 August 2019. On 15 October 2019, D arranged bailiffs to execute the default judgment and took possession of the Property. 23.In or around 2021, D took possession of the Property and P has been ousted from the Property. 24.By a consent order dated 10 August 2022, the parties agreed to set aside the default judgment of the Lands Tribunal pending the determination of this action. 25.On 5 July 2021, P commenced the present proceedings against D. 26.On 31 December 2021, the Mainland 1st Instance Court rendered its judgment and ordered P to pay RMB 300M together with interests to Mr Tai. 27.On 25 October 2024, the Shenzhen High People’s Court (深圳市高級人民法院) (“the Mainland 2nd Instance Court”) upheld the Mainland 1st Instance Court’s judgment that P is required to pay RMB 300M (together with interests) to Mr Tai. 28.On 9 May 2025, P applied to the Supreme People’s Court of P.R.C. (中華人民共和國最高人民法院) to appeal against the judgment of the Mainland 2nd Instance Court. 29.At the time of the trial of this Action, the result of the appeal to the Supreme People’s Court of P.R.C. is still not available and therefore the Mainland 1st and 2nd Instance Courts’ orders / judgments against P still stand. B2. The Parties’ Respective Case B2.1 P’s Case 30.P’s case can be briefly summarized as follows:-
B2.2 D’s Case 31.D’s case can be briefly stated as follows:-.
32.As to the beneficial ownership of the Property, D admits that she does not enjoy any. According to her own pleaded case, she says:-
33.Based on the Security Arrangement, D counterclaims against P for:-
34.It should be noted here that D was initially represented by solicitors at the early stage of these proceedings. D’s defence and counterclaim (“D&C”) was originally drafted by counsel. However, by the time when the D&C was amended[18] and the AD&C was filed on 14 August 2023, D was already acting in person. A notice to act in person in fact was filed on 21 March 2023. D continued to act in person during the case management stage of the proceedings before the masters and at the Pre-trial Review (“PTR”) before me on 2 April 2025. It was only a couple of days prior to the commencement of the adjourned trial on 4 August 2025[19] when D was represented by her present solicitors and counsel Mr Raphael Leung. 35.I also notice that D’s WS, the witness statement of Mr Tai dated 8 March 2023 (“Tai’s WS”) and Mr Tai’s supplemental witness statement dated 12 December 2023 (“Tai’s Supp WS”) were all “homemade” and prepared by D. The same applies to D’s opening submissions lodged with the court on 27 June 2025. It was prepared by D, perhaps with assistance from someone with legal knowledge. While there is nothing wrong with that as a matter of principle, I notice that they have failed to address some of the key issues raised in the pleadings. Her opening submissions also made no mention of the possible legal arguments which was belatedly raised by her counsel Mr Leung during closing submissions. C. DISCUSSION C1. Issues in Dispute 36.Prior to D’s present solicitors and counsel coming into the picture, the following appears to be the only issues in dispute between the parties as defined by the list of issues prepared by P[20]:-
37.However, by the closing stage of the trial, D’s counsel Mr Leung has shifted the whole emphasis of the case by relying on a technical legal point, based on the case of Goodman v Gallant [1986] Fam 106 (“the Goodman Point”), which according to him, if the court accepts his submission, both P’s claim and D’s counterclaim must be dismissed. Mr Leung further submits that if the court rules in favour of D on the legal issue, which he says is a legal consequence of the parties’ factual case which needs not be pleaded, this will be the end of the matter[21]. 38.Given this rather unexpected turn of event, I would like to deal with the issues in this case in the following order:-
C2. Evidence given by the witnesses and the court’s findings 39.The principles in assessing the credibility of witnesses are trite and have been succinctly summarised by DHCJ Eugene Fung (as he then was) in Hui Cheung Fai and Another v Daiwa Development Ltd and Others, unreported (HCA 1734/2009; 8 April 2014) at §§76-82 as follows:-
40.I shall respectfully adopt those well-established principles in this case. 41.At the trial, both P and D gave evidence. In addition, D called her father Mr Tai to give evidence in support of her case. 42.I shall summarise the evidence they gave and comment on their credibility below. C2.1 P’s Evidence 43.Like Mr Tai, P is a highly educated and sophisticated businessman. After obtaining a bachelor degree in Shenzhen University and a master degree in project management from King’s College London, he served as the General Manager (總經理) of the Shenzhen-based parent company of 集德創建有限公司 from 2005 to 2014, during which P was responsible for, amongst others, (1) its real estate business in Mainland China and (2) monitoring its business performance. 44.As P accepted during cross-examination, he was also a person of means. Apart from receiving a yearly salary of over HK$1 million by virtue of his position at 集德創建有限公司, he also maintained assets of significant value in the Mainland. 45.As an experienced businessman, P also participated in various real estate projects in the Mainland. In fact, P confirmed during cross-examination that the RMB 300M Loan was used to finance real estate-related projects in the Mainland. 46.The following are the main gist of P’s evidence he gave in the witness box as summed up by Mr Tang, counsel for P, in P’s Closing:-
47.In relation to the TA, P’s explanations under cross-examination are as follows:-
48.In relation to the HK$1.02M Payment, P confirmed that it was not a sum calculated by him but one proposed by D. P thought it was a reasonable sum as he recognised that D had been working hard on the deal for around a year. When he was asked why he would require D’s service, P explained that at that time he was not familiar with the property market in Hong Kong. He did not know where the prime locations were. When his friend in Hong Kong (ie D) offered to help, he trusted her and let her handle the transaction. 49.P also explained why it took him 2.5 years before commencing the present action. He explained that as early as in June 2020, at the height of the pandemic caused by Covid, P had already commended HCA 850/2020 for claiming ownership of the Property. The writ was registered in the Land Registry on 2 June 2020. However, the writ in that case expired and P did not renew it in time due to the lockdown in the Mainland. Instead, shortly afterwards, P commenced the present action. 50.I find P as a straightforward and direct witness. As his case is amply supported by contemporaneous documents, including the initial downpayment and expenses for acquiring of the Property, the significant sums of mortgage repayments over the years, payments of the utilities charges and management fees over the years and perhaps, most importantly, the DoT, the evidence he gave at the trial helps to explain the parties’ then understanding and surrounding circumstances leading to the purchase of the Property. 51.Further, his evidence in regard to the HK$1.02M Payment to D shortly after the completion of the Property tends to support the case that it was more likely to be a service fee for the “One-Stop Arrangement” provided by D rather than a Thank You Gift as alleged by D. 52.In relation to the TA, which clearly does not sit well with his claim that he is the beneficial owner of the Property who had paid for most of the purchase price, mortgaged repayments and outgoings of the Property by that time, I find his explanations given under cross-examination plausible and was something that was done to appease D at the time. Although at first glance it does not look like this is something which an astute businessman like P would do, if put in the context of the then relationship between P, D and Mr Tai, his explanations of why he agreed to sign the TA could not be outright dismissed. 53.However, in my view, what P has failed to explain satisfactorily to the court in his evidence is the real reason why he would allow D to become the registered owner of the Property when he was the one who had paid for the downpayment, the acquisition costs, the utilities charges and the various mortgage repayments. Being an astute businessman and a very smart individual, it is unlikely that he would do that without any good reasons. Whether this was to appease Mr Tai and/or to smoothen the investments or loans to be advanced by Mr Tai in his various projects in the Mainland, it is difficult to tell. However, whatever it is, it was mitigated by the DoT which was signed by the parties 2 weeks after completion. On this matter, neither D nor Mr Tai has offered any plausible explanation as to why DoT does not reflect what it actually says. 54.While I consider P’s evidence is by no means perfect or without its problems, generally speaking, I find P’s evidence is more consistent with the contemporaneous documents and accords with the inherent probabilities of the case. I find overall P is a credible and reliable witness, at least when compared with D and Mr Tai. C2.2 D's Evidence 55.I find D as a rather unimpressive witness. Despite in her 30s who comes from a very good family background and having received a good education, it is clear that she is rather naive when it comes to how the business world operates. In comparison with P and her father Mr Tai’s sophistication and business acumen, D has had difficulty in even able to understand some basic commercial concepts like how the mortgage / negative equity work. While I would not describe her as a dishonest witness, much of the evidence she gave was confusing, inconsistent and contradictory to the documentary evidence and her own pleaded case. 56.On the core of her case that the HK$1.02M Payment was a Thank You Gift due to her help in saying good things about P before her parents in order to gain their support for his investment projects, it is clearly not believable for the following reasons. 57.First, it is not disputed that D was sent to P’s Shenzhen office to learn from P. D says that it was during her time there, P introduced her to the Liantang Project and asked D to persuade her parents to invest in it. When D subsequently managed to convince her parents to invest, P was said to have paid D the HK$1.02M in June 2016 to “thank” her for facilitating the investment. 58.However, as pointed out by Mr Tang for P, D’s case that the payment as Thank You Gift simply does not stand up to the indisputable timing of the events:-
59.Second, D’s case that the HK$1.02M Payment was a Thank You Gift is also inherent improbable in that:-
60.Under cross-examination, D then retracted the Thank You Gift theory and tried to explain that the HK$1.02M Payment was indeed an “upfront persuasion fee” (「俾102萬就係為咗我同爸媽講好說話，推佢哋去投資」). This is equally unconvincing as I do not see why P as a shrewd businessman would need to pay someone like D to do that, months before the Liantang Project was materialised. 61.In contrast, in my judgment, the evidence strongly suggests that it tallies with P’s claim that the HK$1.02M Payment was a service fee for D’s One-Stop Arrangement in assisting P in the acquisition of the Property:-
62.On another crucial part of the case where she signed the DoT merely two weeks after the completion of the Property, D offered no plausible explanation as to why she did that and why she had made no mention of this at all in D’s witness statements. If she truly believed that she was the legal and beneficial owner of the Property, or on her case holding the beneficial interest of the Property on behalf of her father Mr Tai, then there was simply no reason for her to sign the DoT at all. Given that the DoT was prepared by a solicitor and that the legal effect must have explained to her before she signed the document, in my view D really has no answer to that at all. C2.3 Mr Tai’s Evidence 63.Mr Tai is a highly educated and successful businessman who is now in his late 70s. Before acquiring the control of W Haking Enterprises Limited, a well-known compact cameras and binoculars manufacturer, in 2002, he served as a lecturer at the Engineering Faculty at The University of Hong Kong from 1978 to 1983 and set up his own manufacturing business in 1983. He is a person of substantial means. 64.As an experienced businessman, he had and has various investments in Mainland China, including (1) advancing the RMB 300M Loan to P and Zhu and 深圳市南海汉能投资有限公司 (“P’s Company”); and (2) investing at least RMB 1.77M from November 2016 to September 2017 into a trust vehicle known as 深圳海石云州基金股权投资合伙企业 (“the Trust Vehicle”) to fund the Liantang Project. 65.I find Mr Tai on the whole as a sincere and well-meaning witness who tried very hard to help his daughter to prove her case. Despite of his age, he has a very sharp mind and has a firm grasp of the facts and details of the case. At least that was the case when he first gave his evidence. However, under cross-examination, his evidence began to fall apart. 66.The main problem I find with Mr Tai’s evidence is that he has no personal knowledge in a lot of dealings between P and D when it comes to the purchase of the Property and the subsequent running of it. He had largely left it to his daughter D to deal with P on those matters, as in the present litigation. Thus, much of the evidence he gave in relation to the issues in this case were information provided to him by D or prepared on his behalf, including the contents of Tai’s WS and Tai’s Supp WS. It is clear from his evidence that he has no direct dealing with P in relation to the acquisition of the Property and the mode of holding the Property. 67.Insofar as D relies on Mr Tai’s evidence to support her case that the purchase of the Property was pursuant to the Security Arrangement, I find it difficult to accept for a number of reasons. 68.First, the timing of the Security Arrangement simply does not tie in with the purchase of the Property. 69.According to D’s case, the Security Arrangement was made necessary due to the delay payments in interest by P and Zhu. Mr Tai in Tai’s WS put this in the following manner:-
70.However, this does not make sense in terms of timing as the delay in interest repayment had not even taken place yet when the Security Arrangement was made. 71.According to Mr Tai, the offer of the Security Arrangement was made by P in mid-2015, well before the purchase of the Property:-
72.As the delay in the interest repayments only took place in late 2015 and early 2016 according to Mr Tai’s own evidence, it does not make sense why P would offer the Security Arrangement to him in mid-2015. 73.Second, the documentary evidence also shows that there was no significant default in payment which would cause P to offer the Security Arrangement when it was not needed:-
74.Third, as confirmed by Mr Tai at the outset of his evidence, the cooperation between P and him was smooth until 2019. According to him, issues only arose in 2018. This is consistent with the timing of the Loan Confirmation. He also confirmed that their relationship only deteriorated since 2018-2019. Given the fact that they had enjoyed good relationship up to then, there was no good reason why P needs to offer the Security Arrangement back in mid-2015. 75.In relation to the DoT signed by D in favour of P shortly after the completion, Mr Tai’s evidence also does not help D’s case. 76.While it cannot be denied that the DoT is an important document which goes directly against D’s case, Mr Tai’s evidence on this in my view is far from satisfactory. 77.First, Mr Tai started with the claim that the DoT was signed at the request of P. He confirmed that he knew there would be a DoT even before the execution of the document. However, when he was asked whether he knew the DoT was a trust document, he claimed that he was the beneficiary under the DoT. He thought that P signed the document to reflect the fact that D holds the Property on his behalf, which clearly was not what the DoT says. 78.When asked whether he had read the DoT before, Mr Tai gave the following contradictory answers:-
79.I do not find Mr Tai’s evidence on the DoT believable and have no hesitation to reject his various interpretations on that particular document. 80.In respect of the TA, Mr Tai tried to distance himself from the arrangement and the subsequent Lands Tribunal proceedings. He denies that he had any involvement with the Lands Tribunal proceedings at all. During re-examination, Mr Tai says it was D’s idea to request P to sign the TA. The reason he gave was that D wanted to have further security and therefore proposed to request P to execute the TA. This however directly contradicts D’s case that the TA was the brainchild of Mr Tai. 81.Perhaps most significantly, like D, Mr Tai was not able to point to any documentary evidence to support D’s case that the Property was registered in D’s name pursuant to the Security Arrangement. In particular:-
82.In view of the above evidence, I find Mr Tai had no direct involvement with the purchase and registration of the Property. I also find that the Property was not related to his business dealings with P or his partner Zhu in the Mainland. This explains why in none of the documents in relation to the RMB 300M Loan Agreement or the subsequent litigation in the Mainland, the Property was mentioned. This also explains why despite being a very intelligent and articulated individual, Mr Tai was not able to explain satisfactorily why the DoT and TA came into existence and how it would assist D’s case. In my judgment, there is simply no documentary evidence to tie Mr Tai or his investments in P’s companies / Projects in the Mainland to the Property, particularly back in 2015/16. 83.Overall, despite being a well-meaning witness who has tried his best to help his daughter in establishing her case, I do not find Mr Tai’s evidence helpful at all. D. Whether the Property was held on trust by D on behalf of P or it was beneficially owned by her through the Security Arrangement D1. The evidence strongly support P’s case 84.In my judgment, the evidence in this case as summarized above strongly supports P’s case that the Property was being held on trust by D with P being the beneficial owner. Conversely, the evidence in my view does not support D’s case that either she or Mr Tai owned the beneficial interest of the Property based on the Security Arrangement. 85.In my view, the fact that the Property was being held on trust by D for P can be seen from the following:-
D2. The unequivocal terms of the DoT 86.First, I think the wordings of the DoT have made it beyond any shadow of doubt that D was holding the Property on trust for P. It was the case at the time when the Property was first purchased and it is still the case today. 87.Second, despite the fact that this matter has been specifically stated both in P’s Re-amended R&DTC and in P’s WS, no attempt has been made by D to deal with this in D’s WS and Tai’s WS and Tai’s SWS at all. 88.Under cross-examination, D not only admitted that she had signed the DoT voluntarily but she also agreed that, according to the terms of the DoT, she would hold the Property on trust for P. She offered no plausible explanation when giving evidence as to how the DoT can be reconciled with D’s case that the Property was held pursuant to the Security Arrangement. 89.Third, Mr Tai’s purported explanation under cross-examination that the DoT was executed to “protect” P’s residual interest in the Property, ie such that it was to be returned to P only after the RMB 300M Loan was repaid in full, also does not make sense as mentioned above. 90.When judged against the simple language of the DoT, I find both D and Mr Tai have failed to reconcile D’s case based on the Security Arrangement with this important document. In my view, they are simply incompatible and irreconcilable. D3. Whether the Security Arrangement is credible 91.I find there is a dire lack of credible evidence to support D’s claim that she was holding the Property pursuant to the Security Arrangement. In particular:-
92.In my judgment, not only there is not a single document which goes to support D’s case that the Property was held pursuant to the Security Arrangement, contemporaneous documents like the DoT directly contradicts to such allegation. D3.1 Whether the TA supports the Security Arrangement 93.Further, on an evidential level, I find the TA in fact does not support D’s contention that it goes to support the Security Arrangement. 94.In this regard, I accept P’s explanation as stated in P’s WS that he signed the TA upon D’s request and it was their mutual understanding that the TA did not reflect the true legal relationship between them[27]. I further accept that he paid the deposit and an initial tranche of rent as a matter of formality and the same were eventually returned to him. Although there were no documents like bank statements to support the return of those payments, this is mitigated by the fact that P had been paying all the outgoings of the Property long before the retrospective commencement date of the TA on 1 June 2017. These included electricity and water charges and management fees which can all be traced to P’s HSBC bank statements from April 2016 to June 2017. 95.In my view, there is no real reason for P to pay for all the outgoings of the Property right from the beginning of the occupation of the Property and after completion unless he is the beneficial owner of it. 96.In contrast to P’s case on the TA, D’s case was confusing and inconsistent. 97.On how the TA came into existence, I find D’s case not credible at all. First, in D’s WS, she suggests that the TA was her idea, however she has not mentioned the fact that she had ever consulted her father Mr Tai on the matter in that document, in particular using the TA as way of “further security”[28]. Under cross-examination, she then changed her reason for requesting P to give further security. She claimed that the core reason why she became suspicious is because P asked D’s parents to convert the RMB 300M Loan into shareholdings. She claimed to have discussed with Mr Tai and it was her father who had asked her to sign the TA with P in order to obtain further protection. While D claimed that P would admit to the existence of the Security Arrangement at the time, D said that this did not cause P to execute any proper security documents because “she did not know how to protect themselves by legal documents”. 98.I find D’s above explanations not believable for the following reasons:-
99.In my view, the TA clearly has nothing to do with the Security Arrangement. I find it is an afterthought of D who tried to link the TA arrangement in order to justify the existence of the Security Arrangement. D3.2 The Security Arrangement is inherently improbable 100.In my view, the Security Arrangement is inherently improbable as it does not make any commercial sense at all. 101.As submitted by P’s counsel, the Property was not purchased mortgaged-free. Instead, only about one quarter if the purchase price was paid by way of downpayment by P. The rest of the purchase price was raised via several mortgages by P. In the context of 2015/16, it means that D as the mortgagor would likely run the risk of repaying in a negative equity situation. Thus, it offers no security to D at all. 102.When D was cross-examined on this, she did not seem to be able to understand the concept at all. Whether she truly did not understand it or pretend not to be able to understand it, I agree with Mr Tang that the effect of the protection provided by the alleged Security Arrangement in fact was extremely limited (only up to the HK12 M downpayment) and D would risk losing money for being “on the hook” in a negative equity situation. 103.In summary, I reject D’s contention that the Property was beneficially owned by her through the Security Arrangement. D4. Was it D or Mr Tai who claims to be the beneficial owner of the Property? 104.I do not think D really knows what is her case on the beneficial and/or equitable interest of the Property at all as it has been shifting multiple times throughout the proceedings:-
105.There was no attempt from D to try to amend the pleadings during the trial. Thus, her case remains that she does not enjoy beneficial and/or equitable interest of the Property. D5. Summary of Factual Findings 106.In summary, I find that:-
E. Legal Consequences E1. Legal consequences based on the court’s factual findings 107.Based on my factual findings above, I consider that the following legal consequences will follow. 108.First, D’s primary case is that D was registered as the sole owner of the Property pursuant to the Security Arrangement, as agent and fiduciary of Mr Tai and that D does not enjoy any beneficial and/or equitable interest as such[32]. Under the counterclaim, D seeks “[a] declaration that the Plaintiff’s equitable and/or beneficial interest in the Property is subordinate to the security interests of Mr Tai pursuant to the Security Arrangement”.[33] 109.Thus, her case is premised on the basis that P is actually the beneficial owner of the Property. Once her allegation that the Security Arrangement fails (as I found it was the case), then it must follow that, according to her own pleaded case and own admission, P was the beneficial and equitable owner. 110.Second, I consider that the fact that P had provided all monies for the purchase of the Property and continues to do so (including repayment of the mortgage loans for the Property) would create a resulting trust. 111.The legal principles concerning resulting trust are trite. Where a person purchases property with his money but in the name of another, in the absence of contrary evidence, there is a presumption that the property is held by the legal owner under a resulting trust in favour of the person who paid for the property. The law imputes a common intention to the parties to hold the property under a resulting trust even in the absence of such intention: see Lee Tso Fong v Kwok Wai Sun [2008] 4 HKLRD 270 at §5. 112.In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at §§2.6-2.8, Cheung JA summarized two doctrines on the rationale of a resulting trust as follows:-
113.It was further emphasized in Primecredit at §2.15 that, “[i]n ascertaining the beneficial ownership of a party who provided the purchase price of a property acquired in another person’s name, the issue of financial contribution is clearly a most weighty consideration.” 114.Applying the above principles to the facts of this case, in light of the P’s contributions to the acquisition of the Property, and the fact that there is no evidence of any intention on his part to make a gift to D and/or Mr Tai, a purchase money resulting trust arose in the P’s favour. As such, in my view, D held the entirety of the beneficial interest in the Property on trust for P under a resulting trust. 115.Mr Leung in D’s Closing disputes the resulting trust on the basis that the court should be readily depart from the resulting trust analysis if there exists evidence of the parties’ intention. Mr Leung submits that in light of the parties’ respective case of the Security Arrangement vis-à-vis the One-Stop Arrangement, ample evidence of the parties’ intention is now placed before the court. Hence, Mr Leung submits that even if the court eventually consider the parties have failed to discharge their burden of showing their respective case on common intention, the court ought not fall back on a presumption created by equity for it has been rebutted by the existence of other evidence showing the parties’ intention. D submits that this is the end of the resulting trust analysis. 116.With respect, I do not agree. 117.Once the court rejects D’s Security Arrangement argument, the only version left (and of which the court accepts) is that of P’s, ie the One-Stop Arrangement. Based on that version of event, there is in my view plenty of room for the court to make the finding that a resulting trust can be found. 118.Third, I am of the view that the circumstances of this case have created a CICT. 119.As submitted by Mr Tang for P, the legal principles on CICT have been well established. As have recently been summarized by DHCJ Alan Kwong in Lam Kwok Hing v Lau Ha [2025] HKCFI 1354 at §42:-
120.Applying the above principles to the facts, I agree with P that:-
121.Mr Leung for D submits that D is not admitting to P’s beneficial interest simply because D pleads to a case of non-admission as regards P’s payment of the acquisition expenses. Mr Leung further submits that in a CICT situation, payment of acquisition expenses is never conclusive. Instead, the court is required to undertake a holistic analysis to ascertain the parties’ common intention and consider other elements have been fulfilled. 122.With respect, I do not agree with D’s above submissions. Instead, I agree with P that this is not about non-admission as to payments in D’s pleadings, but D’s conduct in raising a positive case under the counterclaim, with all the necessary implications. Further, in considering whether a CICT existed in the case, the court has not only taken into account of the acquisition expenses as alleged by D but also all the other factual matters in order to form a holistic picture. Thus, I agree with Mr Tang that D, having chosen to put forward her case of Security Arrangement, cannot now say that it is not opened for the court to make a finding of the existence of a CICT. 123.In the aforesaid circumstances, I find that a common intention existed between the parties. I further find that both a CICT and resulting trust existed in the circumstances of this case where P was the beneficial owner of the Property. E2. The Security Arrangement cannot be upheld as a matter of law 124.I further agree with Mr Tang that the Security Arrangement raised by D cannot be enforced as a matter of law as it is in the nature of a mortgage. 125.In this regard, the law does not allow for mortgages to be created without proper formalities:-
126.Thus, I agree with P that the Security Arrangement is defective as a matter of law due to (a) want of consideration and/or (b) compliance with the provisions of CPO. 127.I further reject Mr Leung’s attempt to make light of the situation by making the following submissions in D’s Closing:-
128.Instead I agree with the following submissions made by Mr Tang on behalf of P on this issue:-
129.In the aforestated circumstances, I am of the view that even if the Security Arrangement is held to exist (which I found it did not), its effect in law is precluded by the lack of writing. F. The Goodman Point 130.Mr Leung has put a lot of emphasis on the technical argument based on the Goodman Point in D’s Closing as well as in his oral submissions during the closing stage of the trial. In fact, he spent most of the time in his oral submissions on what he would regard as the “killer” point of D’s case. F1. D’s case based on the Goodman Point 131.In gist, this is how Mr Leung tried to run the Goodman Point in D’s Closing. 132.The starting point is where there is sole legal ownership, the onus is on the person seeking to show that beneficial ownership differs from the legal ownership. In other words, it is for the non-owner to show he has any interest at all: see Woo Tat Huen v Lee Wai Ping [2021] HKCFI 576 at §42 per Recorder Sit SC, citing Stack v Dowden [2007] 2 AC 432 at §56. 133.D submits that, as explained during the trial, there is only one core factual dispute for the court’s determination, ie whether the Property was acquired and held on trust by D pursuant to the Security Arrangement or the One-Stop Arrangement. 134.Mr Leung submits it is common ground that both the Security Arrangement and the One-Stop Arrangement, insofar as they constitute the common intention and/or understanding between the parties in respect of the beneficial interest of the Property, were formed before the acquisition thereof, ie in October/November 2015 (on D’s case) and mid-2015 (on P’s case) respectively. 135.Mr Leung submits that, if neither P nor D can show that the beneficial owner of the Property differs from its legal ownership, the starting point that equity follows the law prevails: see Stack (supra) at §§54, 68-69, Woo Tat Huen (supra) at §43(7). In such scenario, Mr Leung submits that both P’s claim and D’s counterclaims must be dismissed. 136.As such, according to D, the prior legal issue for the court to resolve (before the court is in a position to decide the said factual dispute) lies in whether, by reason of the principles propounded by the English Court of Appeal in Goodman v Gallant [1986] Fam 106 per Slade L.J. at p.117, and re-affirmed in Pankhania v Chandegra [2013] 1 P & CR 16 per Patten L.J. at §§13-17, and Mummery L.J. at §§26-28, that a valid express declaration of trust (ie absent any vitiating factors) in respect of the beneficial interest of a property (here, the DoT) is conclusive, and precludes the court from imposing (or indeed inquiring the existence of) any implied trust (including common intention constructive trust and resulting trust) which arises prior to, or at the same time as, the express declaration of trust: Cf summary of the law by DHCJ James Pickering KC in Cynberg v Nilsson [2025] Ch. 103 at §48 (upon surveying the authorities at §§32-47). 137.Mr Leung submits that if the court rules in favour of D in respect of the legal issue, which is a legal consequence of the parties’ factual case and needs not be pleaded: see Lo Yuk Sui v Fubon Bank (Hong Kong) Ltd (2020) 23 HKCFAR 138 at §9, P’s case and D’s counterclaim (which premise upon implied trust arising prior to the DoT) must both be dismissed – since an implied trust inquiry is “simply not open to” the court: see Pankhania (supra) at §16. 138.Mr Leung says that this really would be the end of the analysis – for P never relied on express trust in the ASOC to make out his case – and equity follows the law. 139.Finally, Mr Leung submits that it is only if the court expressly declines to follow the long line of English appellant court authorities and/or consider the same inapplicable on the facts of this case, that the court may embark on resolving the core factual dispute identified above. F2. P’s answer to D’s case based on the Goodman Point 140.Mr Tang in P’s Closing points out why the Goodman Point is bad on two fronts, namely (1) the point is unpleaded and should not be allowed to run at the closing stage of the proceedings; and (2) in any event the Goodman principle is inapplicable to the facts of the present case. 141.I agree with Mr Tang on both. F2.1 The Goodman Point is unpleaded 142.In my view, D should not be allowed to rely on this unpleaded issue which was only raised at the closing submissions of the trial. 143.The indisputable fact is that P had nailed his colour to the mast by relying on the claims of resulting trust and CICT in the SOC right from the outset of the case: see §§5-6 of ASOC. However, neither the Goodman Point, nor the DoT upon which it rests, was pleaded by D at all in the D&C: see §§6-7 of D&C. 144.I agree with Mr Tang that this is not a simple matter of a legal consequence of the parties’ factual case that needs not to be pleaded as submitted by Mr Leung at all. In my judgment, this technical argument needs to base on a material fact, ie a positive factual averment by D that it relies on the DoT. In my view, this is something which has to be specifically pleaded. 145.In this regard, I agree with Mr Tang that, had this been pleaded, the whole landscape of this case may well have been very different. For example, if D expressly averred and accepted the DoT, summary judgment can be obtained in the DoT from the outset. What D cannot have in my view is blowing hot and cold on the matter and wants to have the best of both worlds but without committing to one. She cannot on one hand refuses to plead and accepts the terms of the DoT while on the other hands tries to takes advantage of the Goodman Point. This in my view would create a most unfair situation to her opponent and should not be allowed in modern litigation. 146.Further, the absurdity about the Goodman Point is that Mr Leung is inviting the court not only to dismiss P’s claim but D’s counterclaim also and to accept the Goodman Point as a prior legal issue. I find this rather astounding as basically Mr Leung is inviting the court to dismiss the counterclaim which his client had spent years in preparing and she and her father Mr Tai had spent 2 days in the witness box trying to convince the court to accept. Besides, at no time during the case management stage of the proceedings had D invited the court to treat this as a prior or preliminary issue before this was raised in D’s Closing for the first time. 147.In this regard, I find the dicta of Yuen JA in Mui So Bing v Wan Chi Shing [2020] 1 HKC 85 helpful. As Tam J noted in the recent case of Jadespring v Rise Top [2025] HKCFI 2310 in an analogous case where Ds raised a locus issue at the eleventh hour:-
148.In passing, I should mention that Mr Tang has also cited the case of Angela Chen v Wai Wai Chen [2024] HKCFI 1837, per Wilson Chan J in support of this lack of pleading point:-
149.In his oral submissions, Mr Leung tried to deal with P’s above submissions by making the following points. 150.First, Mr Leung referred the court to the Court of Final Appeal (“CFA”) case of Lo Yuk Sui (supra), where in answering to one of the two questions of great general or public importance, namely, “(1) Whether it is necessary for a pleader to plead all the legal consequences to which the pleaded facts validly lead, with the effect that the parties would be barred from contending different legal consequences on appeal?”, Fok PJ at §9 stated the following:-
151.In my view, while it is true to say that there is no requirement under the RHC for a party to plead the legal consequences of particular facts, it does not mean that a party can do so without even pleading the facts on which he is going to rely on in order to achieve those legal consequences. In each case, I think the cardinal rule must be fairness and not to take the other side, and the court, by surprise as explained by Fok PJ in the following paragraph (§10) in Lo Yuk Sui (supra):-
152.While noting the CFA’s observation that the Court of Appeal (“CA”) was not laying down a rigid requirement to plead legal consequences flowing from the pleaded facts, I note that Yuen JA in Mui So Bing (supra) at §23.1 was trying to reiterate the importance of achieving the underlying objectives of the Civil Justice Reform and the ensuring fairness between the parties. I cannot agree more. 153.The problem I have with Mr Leung’s last-minute raising of the Goodman Point is that D has not even pleaded the basic facts on which D was trying to rely on in order to achieve the desired legal consequences. 154.Second, Mr Leung tried to distinguish Jadespring by submitting that (i) Yuen JA’s comments must now be seen in the light of the observation of Fok PJ in the CFA judgment of Lo Yuk Sui (supra); and (ii) that the issue of locus in that case was in an Order 14 application context and does not therefore apply in our case. 155.I do not think this would help to advance D’s argument at all as the fundamental problem with the Goodman Point belatedly raised by D is that it has taken the parties (and the court) totally by surprise and has created a most unfair situation to P. 156.Third, insofar as P’s reliance on the passage of Angela Chen (supra) is concerned, I agree with Mr Leung that the case only confines to a situation where a party advance a claim diametrically opposed to the taken “in an earlier set of proceedings” and does not apply in a situation like the present case where D is taking a very different position in the same case. 157.Thus, for the above reasons, I am of the view that D is not permitted to raise this unpleaded matter at the closing submissions of the case. F2.2 The Goodman Point is not applicable to the facts of the present case 158.Mr Leung in D’s Closing further expounded the rule in Goodman by stating that the starting point lies in Slade LJ’s reliance of the general principle mentioned by Lord Diplock in Gissing v Gissing [1971] AC 886 at §905 “where the trust is expressly declared in the instrument by which the legal estate is transferred to the trustee or by a written declaration of trust by the trustee, the court must give effect to it.” (emphasis added). 159.Mr Leung says that whilst the rule of Goodman was only briefly alluded to once in this jurisdiction in Ip Man Shan Henry v Ching Hing Construction Co Ltd [2003] 1 HKC 256 per DHCJ Johnson Lam (as Lam PJ then was) at §150 (but was mentioned 5 times in this jurisdiction), the rule of Goodman was repeatedly approved by the English High Court and appellant courts in a string of cases. 160.Mr Leung submits that this led to DHCJ James Pickering KC’s summary of the law in Cynberg (supra) at §48, that:-
161.Mr Leung further submits that, this rule (1) is not confined to cases where a party to an express declaration of trust seeks to depart therefrom by asserting a common intention of beneficial interest which departs from the express trust; and (2) does not cease to apply simply because a plaintiff’s claim of beneficial interest under common intention constructive trust mirrors his shares pursuant to the express trust. 162.Instead, the gist of this rule is that the presence of an express declaration of trust evidencing the parties’ intention means that there is no room for inserting a common intention constructive trust in substitution for the express trust (as in Pankhania (supra)) or resulting trust (as in Goodman (supra)). 163.Mr Leung submits that this was confirmed by the English Court of Appeal in Pankhania (supra). 164.Finally, D submits that such rule is premised upon the rationale of explained by Professor Simon Gardener, ie by treating the express declaration as the parties’ own settlement, or compromise, of the claims they might otherwise have made against each other; and therefore to regard it as determinative. In other words, such express trust precludes the parties thereto from relying on the implied trust arises prior to the execution of such express declaration of trust: Understanding Goodman v Gallant (2015) Conv. 3, 199-209, Cf the similar view shared by Professor Chris Bevan in The Search for Common Intention: the Status of an Executed, Express Declaration of Trust Post-Stack and Jones (2019) L.Q.R., 135(Oct), §§660-681. 165.Hence, D submits that insofar as Stack forms part of Hong Kong law, its application must be properly confined and understood in light of the rule of Goodman – which clearly decametre the circumstances under which common intention constructive trust and resulting trust can arise. 166.With respect, I do not agree with the above submissions made on behalf of D. 167.For the reasons expanded in P’s Closing, I come to the view that the principle laid down in Goodman does not apply to the facts of our present case. 168.First and foremost, I agree with P that the principle laid down by Goodman simply precludes a person from collaterally challenging the contents of a declaration of trust by raising a CICT or resulting trust which is inconsistent therewith, it does not preclude a person from raising a CICT or resulting trust when the declaration of trust is consistent and merely affirms the same distribution of beneficial interest. 169.To make good this point, Mr Tang cited Professor Simon Gardner’s article “Understanding Goodman v Gallant”, which was an article also relied upon by D also, where the learned professor neatly summarized the ratio behind the principle:-
170.Indeed, the learned professor went on to summarize the net effect of the principle as follows:-
171.Viewed in this light, I agree with P’s submission that the principle in Goodman is but a facet of the law respecting contractual autonomy and upholding written agreements – if, rightly or wrongly, parties enter into a written declaration regarding the distribution of interests, the law would be slow to allow a person to stake an inconsistent claim via the backdoor (through equitable relief), unless, of course, one finds grounds to set aside the written declaration – it is in fact a principle upholding consistency. Indeed, in Bahia as cited by D, the principle in Goodman is summarized as follows - “i) An express declaration of trust will be conclusive subject to rectification or rescission…ii) A constructive trust cannot be relied upon to contradict or override the terms of a subsequent declaration of trust.” [§123]; cited also in Cynberg at §41. 172.The fact that the principle in Goodman is grounded upon ensuring consistency is further illustrated by a list of cases cited by Mr Tang which applied it:-
173.In the aforestated premises, I do not consider that the Goodman Point applies in this case. 174.Thus, based on the above two grounds, I have no hesitation to dismiss D’s claim insofar as it is relying on the Goodman Point. G. Unjust Enrichment 175.Given my findings above, this issue can be quickly disposed of as follows. 176.Mr Leung in D’s Closing submits that, irrespective of whether the court disposes of the legal and factual disputes in this case, P’s case on unjust enrichment must fail for the following reasons:-
177.Mr Tang accepts that, if P obtains the proprietary relief, there would be no mistake or failure of consideration, the two “unjust factors” which he referred to in P’s Opening by relying on Zief Incorporated v Tekchandani Ajai Mohan (T/A D’ziner Collections (Hong Kong) & Ors [2021] 3 HKC 69 at §23 and Goff & Jones (10th Edn) at §12-01; or if P loses its factual case (ie if D’s case on Security Arrangement prevails), unjust enrichment would not arise. 178.Since I have found P’s case has prevailed, the issue of unjust enrichment simply does not arise. 179.As far as D’s argument that if D prevails on the Goodman Point, unjust enrichment is barred, I do not agree with such submission for two simple reasons. First, the DoT was never pleaded as a basis upon which to deny unjust enrichment: see SOC §§8-10; D&C §9. Second, D would have obtained a windfall and become unjustly enriched if the court finds D prevails on the Goodman Point and no propriety relief is ordered. In my view, it will not be just or right for D to become unjustly enriched on a technical ground. H. CONCLUSION 180.In conclusion, based on the above findings I made in this case, judgment will be entered in favour of P under P’s claim with costs. D’s counterclaim is hereby dismissed with costs to be borne by D. 181.The following reliefs have been sought by Mr Tang in P’s Closing which is a revised version of the reliefs sought under the ASOC (as amended by the court):-
182.I consider the above revised version of the reliefs sought by P by the court is reasonable and practical and would grant those reliefs under the judgment accordingly.
Mr Alexander Tang and Mr Stephen Siu instructed by DeHeng Law Offices (Hong Kong) LLP for the plaintiff Mr Raphael Leung instructed by Yung & Au for the defendant [1] Unit C, 10th Floor, Cluny Park, No.53 Conduit Road, Hong Kong [2] Cl.4 of 26 September 2014 Loan Agreement (“the RMB 140M Loan Agreement”) [3] Cl.5 of the RMB 140M Loan Agreement [4] Under the loan agreement entered between Mr Tai as lender and P and Zhu as borrowers (“the RMB 300M Loan Agreement”) [5] Cl.4, 5 of the RMB 300M Loan Agreement [6] §5(2) Reply and Defence to Counterclaim (“R&DTC”) [7] §5(3)(b) Amended Defence and Counterclaim (“AD&C”) [8] See 2nd para on p3 of D’s WS at [1/13/89] [9] §5(2) R&DTC; P’s WS §3 [10] §5(3)-(5) R&DTC; P’s WS §§4-8 [11] §5(6)-(7) R&DTC; P’s WS §§9-12 [12] 2 Amended Statement of Claim (“ASOC”); P’s WS §14 [13] P’s witness statement (“P’s WS”) §35; Cheque by P to D [14] §5(3)(b) of the AD&C [15] D’s WS, bottom of p.2 [16] D’s WS p.3 2nd para [17] §9(2) of AD&C [18] The only amendment made by D in the AD&C is at §12 where she added the plea that “[P] and [D] signed a Tenancy Agreement in respect of the property, [P] failed to pay the rent to [D]”. [19] It was adjourned from the original trial dates scheduled to commence on 3 July 2025. D was represented by Ms Ivy Ho of counsel on 8 July 2025 to ask the court to adjourn the trial to early August 2025 due to D’s hospitalization in the Mainland after she was allegedly infected with Covid. The trial proper therefore only commenced on 4 August 2025: see the court’s Decision dated 8 July 2025. [20] D failed to agree the list of issues of dispute with P while she was acting in person. [21] see D’s Closing §12 [22] D’s WS last para on p3 & first line on p4 [23] Tai’s WS at [1/93/last paragraph] [24] Tai’s WS at [1/94/1st half] [25] Tai’s WS at [1/102-3] [26] 這是從2012年開始長達6、7年必須年每月按時足額履行的義務 [5/1122]; 歸還利息的行為持續、穩定 [1/1145]). In this regard, §70(1)(a) of DWC has conveniently omitted Mr Tai’s own case that the repayment was made punctually every month (每月按時足額履行). [27] See §5 of P’s WS at [1/15/99] [28] See last paragraph of D’s WS on [1/13/89] [29] See §9(2) of AD&C at [1/3/26] [30] See §3 and §14 of D’s Opening Submissions [31] See §4 of D’s Opening Submissions [32] See §9(1) of AD&C [33] See Prayer (2) of AD&C at [1/3/28] [34] R&DTC at §5(15) [35] ss.1-3, 5-9, ie the predecessor to LPA 1925 ss.53-55, which in turn is the predecessor of CPO ss.5-7. See Target Holdings Ltd v Priestley (2000) 79 P. & C.R. 305 at §§53-55. |
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