Kwan Kwai Lin and Another v. Yeung Ting Kwan Previously Known As Yeung on Ki
Read the full judgment text of HCA 3013/2015 on BabelCite. This High Court CFI judgment was delivered on 8 June 2026.
1. This action was brought by Kwan Kwai Lin ( “Husband” ) in both his personal capacity and his capacity as the administrator of the estate of his wife ( “the Deceased” ) against Yeung On Ki, the Deceased’s younger sister ( “Younger Sister” ).
Cited by 2 cases · Cites 18 cases
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HCA 3013/2015 [2026] HKCFI 3354 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO. 3013 OF 2015 _________________
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________________ JUDGMENT ________________ A. INTRODUCTION 1.This action was brought by Kwan Kwai Lin (“Husband”) in both his personal capacity and his capacity as the administrator of the estate of his wife (“the Deceased”) against Yeung On Ki, the Deceased’s younger sister (“Younger Sister”). 2.The subject matter of this action is a residential flat located in Yuen Long (“the Property”)[1], which was purchased in August 2003 and registered under the sole name of Younger Sister. 3.In gist, it was the plaintiffs’ case that Husband and the Deceased were and are the 100% beneficial owner of the Property on the following 3 (not mutually exclusive) alternatives:
4.Younger Sister denied the plaintiffs’ claims and counterclaimed against them for, inter alia, vacant possession of the Property. 5.The first trial of the action took place in October 2021 (“the First Trial”). By a Judgment handed down on 14 January 2022 (“the First Trial Judgment”), the learned Judge, inter alia, dismissed the plaintiffs’ claims, and ordered the plaintiffs to deliver vacant possession of the Property to Younger Sister. 6.The plaintiffs then appealed to the Court of Appeal. By a Judgment dated 10 March 2025[2] (“the CA Judgment”), the Court of Appeal:
and ordered that:
7.The re-trial has since then been fixed to be heard by this Court. This is the Judgment of the re-trial. B. BACKGROUND 8.The following background is largely adopted from the CA Judgment. 9.On 8 August 2003, Younger Sister entered into a written agreement (“the SPA”) for the purchase of the Property at the price of HK$600,000, of which HK$10,000 was paid as deposit and in part payment of the purchase price and the balance of HK$590,000 was to be paid on completion.
11.The BOC Loan was also secured by a joint and several guarantee dated 8 October 2003 executed by Husband and the Deceased to the extent of HK$305,000 together with interest thereon and other costs and charges (“the Guarantee”). 12.It was the plaintiffs’ case that prior to the making of the SPA, there was an express oral agreement (“the plaintiffs’ Alleged Agreement”) between Husband and the Deceased on the one part and Younger Sister on the other part that:
13.According to the plaintiffs:
14.The plaintiffs’ Alleged Agreement was denied by Younger Sister, who claims that prior to the execution of the SPA, it was the common agreement and/or understanding and/or intention between her and the Deceased (“the Alleged Common Understanding and/or Intention”) that:
15.In other words, each side put forward a version of an express oral agreement, understanding or arrangement in support of a claim for the sole beneficial ownership of, or a beneficial interest in, the Property. 16.After completion of the purchase of the Property, the Deceased’s family and Younger Sister all resided in the Property until around October 2007 when Younger Sister moved out of the Property to co-habit with her then boy-friend. 17.The Deceased passed away on 4 June 2013. According to the plaintiffs, Younger Sister voluntarily agreed to and did repay the Loans after the death of the Deceased. Disputes later arose between Husband and Younger Sister concerning the ownership of the Property. 18.According to Husband, in about the end of 2014, he asked Younger Sister to transfer the Property to him. She originally said she would do so, but subsequently failed to follow up with the matter. 19.On 26 March 2015, Husband obtained letters of administration of the estate of the Deceased. He later found out that Younger Sister had, without his knowledge, mortgaged the Property as security for a loan of HK$2,310,000 from BOC in 2015 (“the 2015 Mortgage”). 20.On the other hand, Younger Sister says that in about early December 2015, she revoked her permission (the Oral Licence) and asked Husband and his daughter (“Daughter”) to move out of the Property, but they failed or refused to do so despite repeated demands. 21.On 18 December 2015, the plaintiffs commenced the present action against Younger Sister, claiming to be beneficially entitled to the Property. As aforesaid, originally, the plaintiffs’ claim was advanced on 3 alternative, but non-mutually exclusive, bases as referred to in [3] above. 22.There was also a claim by the plaintiffs against Younger Sister for breach of trust for causing and/or procuring the creation of the 2015 Mortgage. 23.Younger Sister denied the plaintiffs’ claim for the Property, and counterclaimed for vacant possession of the Property and mesne profits on the ground of the plaintiffs’ alleged wrongful occupation of the Property despite the revocation of the Oral Licence. 24.As aforesaid, while Younger Sister succeeded at the trial, the appeal lodged by Husband in his capacity as the administrator of the Deceased’s estate was allowed. 25.A re-trial has therefore taken place on:
C. CREDIBILITY OF WITNESSESS 26.The approaches for assessing the credibility of witnesses are well established, and are summarised as follows[6]:
27.As this action involves disputes within a family, what G Lam JA said in Cheung Yuk Ying Engracia v Macgregor Isabella [2023] 3 HKLRD 164, [2023] HKCA 749 is relevant:
28.I would add that there is normally a fundamental difference between a family dispute and a business dispute – not only that it would be less likely for family members to put every agreement in writing, it would also be unrealistic to expect that family members would always conduct themselves according to strict logic and without being affected by family dynamics as well as their close relationships. 29.When assessing credibility of witnesses in the present case, it should also be borne in mind that the key events mostly happened more than 20 years ago. As a result, what Coleman J said in Yu Man Fung Alice v Chiau Sing Chi Stephen (HCA 1584/2012, unreported, 23 December 2020, [2020] HKCFI 2923) is relevant:
30.I will now consider the credibility of the witnesses in turn below. 31.I regret to say that Husband is not a reliable witness to say the least. This can be demonstrated by the following examples:
32.I would therefore not accept Husband’s evidence lightly unless his evidence is corroborated by other more reliable evidence or there is any other good reason which justify the acceptance of his evidence. C3. Cheung Ying Ming Yvonne (“Cheung”) 33.Cheung was the Deceased’s friend. She has been called by the plaintiffs to give evidence on a conversation between herself and the Deceased in around 2006 – 2007. 34.At the beginning of the trial, this Court has given a direction that all witnesses who are yet to give evidence should not stay inside the court while the other witnesses are giving evidence. However, for some reasons, Cheung was not informed about this requirement, and the plaintiffs’ legal team could not recognise Cheung at all when she was sitting at the public gallery while Husband was giving evidence. 35.As a result, the court direction mentioned above was breached. 36.Because of this, Ms Law for Younger Sister submitted that this Court should treat Cheung’s evidence with extreme caution. 37.Having exercised such caution, it is still my finding that Cheung’s evidence on her conversation with the Deceased (see Section E9 below) is reliable and must be accepted as the truth. This is despite the fact that Cheung has already forgotten the exact words used in the subject conversation. Neither do I think Cheung’s ignorance on the precise financial arrangement matters at all. The most crucial point is that she recalled that the Deceased had told her generally that:
38.I have come to the above conclusion because Cheung is apparently an independent witness who has no personal interest in the subject dispute in this action. There is simply no motive on her part to exaggerate or fabricate evidence for the plaintiffs. 39.Although she could not recall the exact words used by the Deceased, I am of the view that there should not be any difficulty on her part to recall the general meaning of the Deceased’s statements, for those are not complicated concepts. 40.Further, her presence in court while Husband was giving evidence would not affect my assessment of her credibility. After all, Husband’s evidence did not touch on her conversation with the Deceased. 41.On the matter of exaggeration, Cheung at one stage added in her oral evidence that she knew that it was the Deceased and Husband who paid the mortgage instalments. However, she sought to retract what she said subsequently. Be that as it may, the conclusion reached above would not be affected, because:
42.Ho was a friend of the Deceased. 43.She has also been called to give evidence on her conversation with the Deceased in the period between 2003 and 2006 (see Section E9 below). 44.I find that Ho is a meticulous and reliable witness. She was always trying to make sure that her evidence was 100% accurate. Further, she is an independent witness who has no financial stake in the outcome of this action. 45.I therefore accept her evidence. 46.In gist, Daughter gave evidence on the following matters:
47.For the reason to be explained under Section E13 below, I do not accept Daughter’s evidence that Younger Sister had ever made any admission to her in 2013 or 2015. It is more likely than not that those alleged admissions were made up by Daughter so as to boost Husband’s case. 48.In relation to what exactly happened when the Deceased was brought back to the Property in around March 2013 from the hospital, Daughter’s evidence contradicts the evidence of Fong Po Ling (“Fong”) (See Section C7 below). As Fong is an independent witness who has no financial stake in the present action, I prefer her evidence on the matter. 49.As to Daughter’s evidence on the Deceased’s explanation as to why the Property was bought, I have reservation as to whether she could really recall that the Deceased had used the word “buy”, given the alleged conversation took place when she was 10 or 11 years old (Primary 4 – 5). I therefore decide to put no weight on such evidence. 50.For the Deceased’s monthly contributions to the Parents, since Daughter could not tell how much the Deceased had paid the Parents, I do not think such evidence is helpful. 51.For the effect of the WhatsApp messages, as this Court pointed out during the trial, I wonder whether there is any probative value if the witness is simply telling the Court what she thinks should be the meaning of the instant messages if all that she is doing is, without more, to read and interpret those messages. This is something which the Court is able to do without assistance. The situation would be different if the witness adds colour to the messages by giving evidence on the background of the messages or explaining the special meaning of certain terms used by her and the other side. However, that is not the situation here. Therefore, Daughter’s interpretation of the messages would not be given any weight. 52.To conclude, I would generally speaking not accept Daughter’s evidence. 53.Younger Sister held an extremely hostile attitude against the plaintiffs’ counsel from the very beginning of her cross-examination. Her attitude was so bad that I have very serious doubt as to whether she would be willing to tell the truth, or rather, she was only there to argue with the plaintiffs’ counsel. Indeed, she was always argumentative and evasive while she was cross-examined. 54.Having considered her evidence as a whole, I find that she is an unreliable and incredible witness. 55.This finding is amply supported by many of the evidence which she gave. I only need to refer to the followings as examples:
56.There are many other parts in Younger Sister’s evidence that do not make sense and/or are incredible. I will refer to those parts of her evidence with more details under Section E below. 57.Fong was the Deceased’s part-time domestic helper. 58.She has been called to give evidence on the following matters:
59.I find that Fong is an honest witness. After all, she has no personal interest in the matter. 60.As far as the incident which happened in March 2013 is concerned, Fong said that Daughter did not even agree to see her mother when the Deceased was brought back to the Property. This is contrary to the evidence of Daughter, who said that she did accompany the Deceased all the way to the latter’s bedroom. On this matter, I tend to think that Fong’s evidence is more credible. If Daughter did what she alleged, it would be difficult to imagine that she, as she admitted, would refuse to go to the Deceased’s bedroom to see the Deceased again within those few hours while the Deceased was still there. I therefore think that logically Fong’s version of event is more likely to be the truth: Daughter went back to her own room once she saw that the Deceased was brought back and she refused to come out again while the Deceased was still at home. This in fact is more consistent with what Daughter described to be her mind-set all along: She simply could not face the reality that the Deceased was going to die soon. D. LEGAL PRINCIPLES ON COMMON INTENTION CONSTRUCTIVE TRUST 61.It is trite that, 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 the non-legal owner who has to show that he/she has interest in the property: Mo Ying v Brillex Development Ltd & Anor [2015] 2 HKLRD 985 at [5.5]. 62.Pausing here, Mr Ma submitted that:
63.With respect, insofar as it is submitted that Younger Sister has the burden of proving anything, I reject Mr Ma’s submissions. The well-established principle that the onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership would not be changed by the fact that the legal ownership holder has put forward a positive case. While the Court should of course take into consideration such a positive case advanced by Younger Sister, the ultimate burden of proof still lies on the person who does not have legal interest in the property (i.e. Husband in the present case). In other words, even if this Court rejects Younger Sister’s evidence, it does not necessarily mean that Husband has successfully discharged his burden in proving his case on common intention constructive trust. 64.In Chin Nai Man v Chin Yat Keung Alex [2020] HKCFI 403, Madam Recorder Winnie Tam SC had also summarised the legal principles applicable to common intention constructive trust as follows:
65.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)]; and Ng Nim Chung, deceased & Another v Ng Wing Man Terry [2021] HKCFI 2534 at [25]. 66.Conduct subsequent to the transfer in question is admissible when determining the intention at the time of the transfer, and the issue is one of weight: Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 at [55]. E. DISCUSSION 67.In the present case, I think the most reliable indicators of the truth are the conduct of the parties at the material time, including the sending of various instant messages by the Deceased, Husband and Daughter. The court should also rely heavily on the inherent probabilities and logic of the alleged versions of event. 68.Moreover, weight should be placed on matters which cannot be otherwise explained. It is futile to rely on matters which can be explained by both Husband’s case and Younger Sister’s case. An obvious example is the payment of the monthly mortgage instalments – I do not think the Court can derive any assistance from looking at the fact of repayments made by the Deceased because those repayments fit the stories of both sides. Another example is the Deceased’s payment of utilities expenses. Since the Deceased’s family was living in the Property at the material time, it is not surprising at all that she had paid those expenses. She would have done so even if the Property was indeed owned beneficially by Younger Sister. 69.Bearing the above in mind, and having considered the overall circumstances, I take the view that it is more likely than not that the Deceased is the beneficial owner of the Property, and that Younger Sister is only a legal owner who holds the Property for and on behalf of the Deceased. It is my finding that this situation was brought about by an arrangement that Younger Sister gave the Deceased the former’s quota and eligibility to apply for the HKHA Loan for the purpose of purchasing the Property, which in turn was led to by the fact that while the Deceased wanted to buy a property at the Yuen Long city centre, she could not afford to do so without the HKHA Loan, for which she was ineligible to apply. Although it is true that by entering into this arrangement, Younger Sister would have used up her only chance of obtaining a loan under the special scheme offered by HKHA, I find that she was still willing to do so for the sake of the Deceased because of their very close relationship. 70.When coming to the above conclusion, I have also borne in mind that this is a domestic arrangement entered into by 2 very close sisters. As a result, I do not think the Court should look too closely as to the adequacy of the terms of the arrangement (for example, whether there is any agreement as to when the Property should be transferred back to the Deceased or her family) when considering whether it is more likely than not that Husband’s case is true, particularly when it is evident that the 2 sisters have great trust on each other. 71.As to why Younger Sister would fight for the Property despite the fact that she has never been the real beneficial owner thereof, I am of the view that it must at least be partly because of the Deceased’s instructions to her that the Property must not fall into the hands of Husband (see Section E13 below). 72.I will now discuss the individual matters which support the above findings under separate sub-sections below. I will also explain why I consider that Younger Sister’s case does not hold water at all. Further, I will demonstrate below that Younger Sister’s evidence on various material matters are internally inconsistent and incredible. For the avoidance of doubt, it is the holistic assessment of all these matters which lead to the conclusion as explained above. E2. Motive and ability for buying the Property in 2003 73.It is Younger Sister’s case that the Property was bought by her in 2003 on her own initiative. 74.When assessing the inherent likelihood of Younger Sister’s case in this respect, the following facts have to be borne in mind:
75.She said that teachers generally like buying landed properties as investment, and that was the reason why she bought the Property in 2003. 76.With greatest respect, Younger Sister’s evidence in this regard is incredible and inherently improbable. Therefore, I reject such evidence. 77.In my view, given the fact that she was just a fresh graduate, it is more likely than not that she would not jump into the land market even before she started her first full time job (the SPA was dated 8 August 2003). There was simply no urgency in the matter (and Younger Sister did not say that it was urgent for her to buy landed property at the material time). Her explanation that “老師鍾意買磚頭” is totally unpersuasive. 78.Younger Sister also said that by the time of 2003, she thought that she had reached a stage in life at which she should move away from her parents and lived independently by herself[8]. I do not think this evidence assists her:
79.She also alleged that, by 2003, there had been HK$30,000 remaining from the Government Grant which she obtained previously, although the sum was not contributed towards the purchase of the Property. This is a bare assertion which I am not prepared to accept, given my assessment of her credibility, particularly when her income was not stable for a whole year after her graduation in 2002. 80.On the other hand, the Deceased had every motive to buy the Property. Even Younger Sister’s counsel submitted (with reference to Younger Sister’s own evidence) that:
81.As far as financial ability is concerned, since the Deceased had started to work by 1991 the latest, it is more likely than not that she rather than Younger Sister had the means to buy the Property. 82.Younger Sister’s counsel pointed out that, at the material time, the Deceased and Husband did not even have enough money to pay for the down payment of a property worth HK$1 million. This argument is not understood, because the undisputed fact is that the purchase price of the Property was only HK$600,000. Further, with the assistance of the Loans, the upfront payment required to be made towards the purchase price of the Property was only HK$30,000. 83.While arguing on the relative financial strength of the parties, Younger Sister’s counsel had also referred to various matters which happened subsequent to the purchase of the Property. With greatest respect, such submissions are not helpful at all, because what matters is the financial ability of the parties back in 2003 when the Property was purchased, not subsequently. E3. Younger Sister’s case on the rationale of the arrangement 84.It may be recalled that, according to Younger Sister’s pleaded case, pursuant to the Alleged Common Understanding and/or Intention, one of the elements of the arrangement between the parties is that Younger Sister would take care of the Parents[10]. For the sake of clarity, I set out Younger Sister’s pleaded case which I will focus on in this Sub-Section as follows:
85.It can be seen that Younger Sister’s promise in return for the Deceased’s payment of monthly mortgage instalments (apart from allowing the Deceased’s family to live in the Property) is that Younger Sister would take care of the Parents. 86.However, it is undisputed that both the Deceased and Younger Sister had taken care of the Parents both before and after the purchase of the Property. 87.Viewed in that light, Younger Sister’s pleaded case seems strange to say the least. 88.What is even more extraordinary is the actual evidence given by Younger Sister in this regard. In paragraph 10 of her witness statement, Younger Sister stated that:
89.In paragraph 8(1) of Younger Sister’s supplemental witness statement, she added:
90.During cross-examination, Younger Sister went further and stated that she had made an express agreement with the Deceased before the execution of the SPA (i.e. before 8 August 2003) that Younger Sister would give the Parents HK$8,000 to HK$10,000 every month. 91.The above shows that Younger Sister’s case is incredible:
92.As to the rationale of entering into such an agreement with the Deceased, Younger Sister explained that she wanted to ensure that the Parents would be able to receive at least HK$8,000 every month, and that she had concerns that, without this arrangement, the Deceased might have a tendency to default irresponsibly on her part to support the Parents financially, despite residing in the Property[11]. 93.This explanation is totally incredible, as Younger Sister also confirmed in court that the Deceased had never had any previous record of not giving the Parents monthly contribution unless “she was too poor”[12]. Moreover, given the very close relationship among the Parents and the 2 sisters, I do not accept that Younger Sister really had the concern which she said she had in relation to the Deceased’s contributions to the Parents at the material time. 94.Moreover, I do not understand how this arrangement could achieve the alleged purpose of Younger Sister. On one hand, she said she wanted to make sure that the Deceased would make her monthly contributions, however, on the other hand, she accepted that the Deceased was a responsible person and had had a good relationship with the Parents, and that, as aforesaid, the Deceased had not defaulted on her contribution to the Parents unless “she was too poor”. That being the case, if the Deceased became “too poor” again and as a result was not financially capable to make any payment in any particular month, Younger Sister could not do anything about it. The arrangement would not help. 95.Younger Sister further explained that the arrangement was arrived at after having considered the factor of “convenience”. In the words of her counsel:
96.Insofar as it is said that it would be inconvenient for the Deceased to hand over cash to the Parents as monthly contributions (because she was busy during weekends), this evidence is rejected. The truth of the matter is that it cannot be disputed that, in 2003, Daughter was studying in a kindergarten which was located near the Parents’ home, and as a result, Daughter was taken care of by the Parents every school day until the evening when the Deceased went to pick Daughter up at the Parents’ home. It was therefore convenient for the Deceased to hand over cash to the Parents as her monthly contributions if she wanted to. 97.During Closing Submissions, this Court was reminded by Ms Law that when it was put to Younger Sister that the Deceased would go up to the Parents’ home every school day, she had denied the same. However, such a denial was plainly unfounded and I reject her evidence. The fact that Daughter was taken care of by the Parents on every school day is actually consistent with Younger Sister’s case, otherwise she would not say that as a result thereof she wanted to make sure that the Deceased would pay the Parents. 98.All in all, Younger Sister’s case on the rationale of the arrangement simply does not make sense, and must be rejected. E4. Younger Sister’s case on her entitlement of evicting the Deceased 99.As quoted in [14] above, it is Younger Sister’s pleaded case that the Deceased’s family had been allowed to reside at the Property on the strength of a bare licence which was revokable upon reasonable notice. 100.As to when Younger Sister could theoretically exercise her right to revoke such a bare licence, she stated in her supplemental witness statement that the Deceased only asked to reside at the Property for a short period of time. She further explained in court that the Deceased was expected to move out once the latter had the financial ability to do so, for example, upon the Deceased’s sale of another landed property of hers or when the Deceased had a pay rise. 101.However, this is quite different from what she told the court during the First Trial, when she gave evidence that the Deceased would be allowed to live in the Property so long as she would pay the monthly mortgage instalments. 102.In my view, such a discrepancy shows that Younger Sister’s case is incredible. It is something that was made up by her. The fact of the matter is that theoretically Younger Sister could not evict the Deceased’s family, because Younger Sister has never been the beneficial owner of the Property at all. In law, it was she who was a bare licencee. 103.I am aware that there is no evidence as to when Younger Sister had to move out of the Property. That is natural and totally understandable, because of the very close relationship between the 2 sisters. Further, it is more likely than not that Husband did not have any say on this matter because it was always the Deceased who was making the call in the family. 104.Younger Sister’s evidence on “down payment” is also quite hopeless and has exposed her incredibility. 105.In her pleading, she pleaded that pursuant to the Alleged Common Understanding and/or Intention, she would pay “down payment” of HK$80,000 upfront and from her own resources for the purchase of the Property. 106.In her witness statement, Younger Sister alleged that she had reached an agreement with the Deceased before the execution of the SPA on 8 August 2003 that:
107.However, the problem is that according to the SPA, the “down payment” was only HK$10,000 rather than HK$80,000. Even if we take into account the part of the purchase price which was not covered by the Loans (i.e. the balance of the purchase price which she had to pay out of her own pocket upon completion), the total amount was only HK$30,000 (HK$600,000 – HK$570,000). 108.When Younger Sister was confronted with this matter, she explained that the problem arose from her unfortunate choice of words. What she actually meant was that she had spent HK$80,000 as initial costs for the purpose of the Property, which included not only “down payment” but also renovation fees, stamp duty, legal fees, agency fees and other miscellaneous fees. She also alleged that “預付資金” should mean “預算” (“budget”). 109.I reject Younger Sister’s evidence in this regard as her explanation is totally incredible. No matter whether it is “down payment” or “預付資金”, these are simple terms which should not be difficult to understand, especially if we take into account her academic qualification. I find that she knew what these terms meant when she filed her pleading and when she signed her witness statement. In this regard, references should also be made to 2 matters:
In my view, the above shows that Younger Sister was not harboured under any misunderstanding. 110.The fact that the actual down payment was not HK$80,000 as Younger Sister alleged means that she was making her evidence up. 111.Even if we take it that the sum of HK$80,000 actually means not only “down payment” but also renovation expenses etc (which I do not accept), this cannot salvage Younger Sister’s case. This is because, according to her case, the agreement with the Deceased to pay HK$80,000 was reached before the execution of the SPA. At such an early stage, it was extremely unlikely that Younger Sister had already known how much would have to be spent on renovation expenses. 112.It should be made clear that my rejection of Younger Sister’s evidence above does not necessarily mean I am bound to find that the Deceased had paid for the aforesaid expenses. This is because Husband’s evidence is also unhelpful in this regard. Further, neither party could produce any satisfactory documentary proof in support of the payments. I therefore cannot rely on this “down payment” factor when I decide the ultimate issue of this re-trial. 113.It is undisputed that both the Deceased and Husband acted as guarantors for the BOC Loan. 114.However, according to Younger Sister’s evidence:
115.Younger Sister’s evidence are clearly incredible. 116.Firstly, her evidence that she could have obtained the BOC Loan without the Guarantee is contradictory to documentary evidence. In the Mortgage Loan Facility Letter dated 3 October 2003, it was expressly provided that the provision of the Guarantee was a condition precedent for the grant of the BOC Loan:
117.Secondly, Younger Sister’s alleged reason for asking the Deceased to be a guarantor does not make sense at all because:
118.Thirdly, Younger Sister’s evidence is contradictory – on one hand, she said that she did not consider asking the Deceased to be a guarantor a significant matter at all, but on the other hand, she alleged that she needed the Guarantee so as to ensure that the Deceased would honour her obligation for monthly mortgage repayments. She also incredibly alleged that she was eager to make sure that the Deceased would carry on to make monthly contributions to the Parents by such a means. 119.Fourthly, if there was no requirement from anyone (the bank or Younger Sister) that there should be a co-guarantor, there is no reason why the Deceased would ask Husband to be a guarantor at all. 120.In relation to Younger Sister’s evidence that she did not know at the material time that Husband acted as a guarantor, I find that at least one of the followings must be true:
121.In my view, the matter concerning the Guarantee is straight forward:
122.There is no dispute that it was the Deceased who paid all the utilities bills in relation to the Property at all material times. 123.As aforesaid, I am not prepared to attach weight on this fact, because in my view, this can also be consistent with the situation where Younger Sister is the beneficial owner of the Property. After all, the Deceased’s family had been living in the Property. 124.However, what is also undisputed is that all the utilities accounts were registered under the Deceased’s name. In this regard, Younger Sister’s evidence is that the Deceased proceeded with the registrations without seeking prior approval from her (Younger Sister). 125.In my view, this undisputed factual matter clearly supports Husband’s case that the Deceased (but not Younger Sister) has always been the beneficial owner of the Property, particularly when, according to Younger Sister, the living arrangement as agreed between the parties was originally intended to be a short term one. If the Deceased considered that Younger Sister was the real owner of the Property, I do not believe that the Deceased would have done the registrations without discussing with (or at least informing) Younger Sister. 126.The fact that the parties had never discussed about the registration matter even after they had moved in and lived together for so long further reinforces the aforesaid finding. 127.As for Younger Sister’s evidence that she has taken up the payment of the utilities expenses from July 2022 onwards, I do not think any weight should be attached thereto because this happened after the handing down of the First Trial Judgment by which Younger Sister was found to be the beneficial owner of the Property. E8. Building renovation expenses 128.There is no dispute between the parties that the Deceased had also paid for the Property’s share for the renovation expenses for the entire building. Their difference is only in respect of the amount paid. Husband alleged that such contributions amounted to HK$100,000, whereas Younger Sister said the Property’s share was only a few thousand dollars. 129.No matter whether the sum was HK$100,000 or a few thousand dollars only, this undisputed fact on contribution would still be a material matter which shows that it was the Deceased rather than Younger Sister who has beneficial interest in the Property. It goes without saying that making such contributions must be the obligation of the real owner of the Property. If the Alleged Common Understanding and/or Intention (as alleged by Younger Sister) ever existed, there is no reason why the Deceased would have assumed the responsibility of making such contributions herself without even informing Younger Sister. On this matter, it should be noted that Younger Sister did not even know about the exact amount of such contributions at the material time – she only found that out in around August 2025 by asking the management office. E9. The Deceased’s representations to Cheung and Ho 130.Husband’s case is also supported by the evidence of Cheung and Ho. 131.Cheung told this Court that, in around 2006 and 2007, the Deceased had told her at least once that:
132.Ho also told this Court that the Deceased had told her that the Deceased would like to transfer the Property to Daughter after the latter had grown up and that since the Deceased and Husband were not eligible to obtain Government subsidy for the purpose of purchasing the Property, they had purchased the same under the name of Younger Sister. 133.As aforesaid, both Cheung and Ho are independent witnesses. There is no evidence that they knew each other at any time even though both of them were good friends of the Deceased. I have found them to be honest witnesses whose evidence should be accepted. I have no doubt that the Deceased had indeed told them about the purchase of the Property as they explained. 134.As Younger Sister confirmed, the Deceased was not the sort of person who would talk irresponsibly (信口開河). I therefore hold the view that the Deceased would not falsely claim to be the owner of the Property in front of her friends. Further, it seems to me there was no need for her to do so. 135.Younger Sister stated in her evidence that she guessed that the Deceased claimed to be the owner of the Property because she wanted to save the face of Husband. This is pure speculation and I do not accept this allegation. 136.My view is that the Deceased was simply telling the truth to her good friends. In fact, borrowing the name of Younger Sister to purchase the Property is improper to say the least in the circumstances of the present case and it is more likely than not that the Deceased knew well about this. I do not think the Deceased would create a story like that. E10. Keeping of passbook to the BOC bank account 137.It is undisputed that BOC received the monthly mortgage instalments from a BOC bank account opened under the name of Younger Sister (“the BOC Mortgage Account”), and that a passbook had been issued by BOC for this account (“the BOC Mortgage Passbook”) 138.It is also undisputed that the BOC Mortgage Passbook had always remained inside the Property, and that Younger Sister did not take it away when she moved out in 2007. 139.In the First Trial, Younger Sister gave evidence that:
140.However, Younger Sister changed her evidence at the re-trial:
141.In my view, when denying the fact that the BOC Mortgage Passbook was kept by the Deceased, Younger Sister was trying to avoid giving an answer which she thought might be favourable to Husband’s case. 142.This change of evidence further reinforces my view that Younger Sister is an incredible witness. 143.Further, in my view, the Deceased’s retention of the BOC Mortgage Passbook supports Husband’s case that the Deceased but not Younger Sister was the beneficial owner of the Property. 144.Younger Sister also explained in her evidence at the re-trial that while she appreciates the importance of the BOC Mortgage Passbook, the significance thereof was not as important as title deeds because the passbook could be easily replaced. With respect, this is quite a desperate explanation. There was no need to think about replacement if Younger Sister took the passbook with her when she moved away from the Property. However, she chose not to do so, despite the fact that she had taken nearly all her other personal belongings away. E11. Questions on the disposal of the Property after the Deceased’s demise 145.According to Husband’s evidence, he had verbally requested Younger Sister to transfer the Property back to him after the demise of the Deceased. 146.Younger Sister disagreed with Husband’s allegation. 147.Even when it was put to her during cross-examination that Husband had asked her in 2014 how she would like to deal with the Property, she denied the same, and alleged that Husband would never talk to her about such a matter verbally. 148.However, this is plainly contrary to her evidence given in the First Trial, in which there was the following question and answer:
149.It was only after Younger Sister was shown the relevant part of the transcripts of the First Trial that she admitted that what she said in the First Trial was correct. 150.Younger Sister explained her aforesaid denial at the re-trial by blaming Mr Ma for asking her a different question – she said Mr Ma was asking about Husband’s requests to transfer the Property to him rather than disposal of the Property generally. I reject this explanation. Although Mr Ma did ask her about Husband’s requests of transferring the Property, that was asked sometime ago, and Mr Ma had asked about some other matters (including the making of wills and addition of Daughter’s name as a co-owner of the Property) before asking her about “disposal of the Property”. There is simply no room for Younger Sister to say that she had misunderstood Mr Ma’s questions. Indeed, I find that Younger Sister was very alert during the entirety of the cross-examination and even argued back during the process. There was no way that she would miss what was asked of her. In my view, it was just yet another desperate attempt on her part to explain away her evidence which was made up along the way. 151.When this Court enquired further why she denied that Husband had asked her how she would deal with the Property, Younger Sister said she had forgotten about the matter. Again, this is incredible. Although the conversation took place back in 2014, it is evident that Younger Sister could still remember this when she gave evidence in the First Trial (in October 2021). I do not believe that she would then forget about such conversations (which happened repeatedly according to her) at the re-trial. 152.On the basis of Younger Sister’s own admission that Husband had asked her repeatedly how she would dispose of the Property, I also find that this must be a matter which shows that the Deceased rather than Younger Sister was the beneficial owner of the Property. If Younger Sister was the real owner of the Property and the Deceased’s family was only residing at the Property with the approval of Younger Sister, there was no way (and no need) that Husband would ask her how she would deal with the Property. It should be borne in mind that there is no evidence that Younger Sister had ever told the Deceased or Husband while the Deceased was still alive that Younger Sister was minded to give Daughter the Property as a gift. E12. WhatsApp messages between Husband and Younger Sister 153.After the demise of the Deceased, there had been direct WhatsApp communications between Husband and Younger Sister on 11 November 2014, 15 June 2015, 4 August 2015 and 24 November 2015 respectively. 154.In my view, the messages exchanged on 11 November 2014 and 15 June 2015 are particularly useful for finding the truth because it can be seen from those messages that Husband and Younger Sister were still on good terms at the time (even though Younger Sister denied it at the re-trial, which I have found to be incredible – see Section C6 above). 155.In relation to the messages sent on 24 November 2015, the Court should be more careful in terms of accepting what were said to be the truth because by then the parties were not of a relationship which was as good as before. 156.I will analyse those messages in turn below. E12.1 Messages on 11 November 2014 157.On 11 November 2014, Husband and Younger Sister had had the following WhatsApp communications:
158.Before I analyse the contents of the above conversations, I should resolve a factual dispute which concerns the background of the above WhatsApp messages first. 159.According to Husband, the above conversation took place because he had verbally requested Younger Sister to transfer the Property back to him, and he would repay the mortgage instalments himself. 160.Husband further explained that the parties had also considered to have the Property re-mortgaged to the bank, so that more cashflow could be obtained. 161.However, Younger Sister disagreed. She alleged that the real background was that the parties were discussing to enter into a real sale and purchase transaction, so that the Property could be sold to Husband. She also said that she was minded at the time to sell the Property to Husband at a price which was much lower than the market price (“賤賣”). 162.In my view, Husband’s explanation clearly makes much more sense, whereas Younger Sister’s evidence in this regard is incredible. As Younger Sister emphasized, Husband was very bad in terms of financial management, and as a result it was the Deceased who had to shoulder the burden of financially supporting the family. Objectively speaking, the evidence shows that Husband would not have the financial ability to purchase the Property from Younger Sister at the material time. 163.Husband’s explanation is also supported by the messages above, for example, “直接自己供樓”, “套d錢”, etc. 164.Moreover, if the parties were talking about selling the Property to Husband, he would not be referring to having reserved a sum of money for the purpose of paying off university tuition fees for Daughter. Again, this is more consistent with Husband’s version of events. 165.Husband’s explanation of the background of the above messages is also supported by their further messages exchanged on 15 June 2015 (see Section E12.2 below). 166.On the other hand, Younger Sister confirmed in Court that she had never told Husband about her alleged plan to sell the Property to him at a very cheap price. That being the case, the messages would not make any sense. For example, Younger Sister would not need to worry about Husband selling the Property immediately because he would not do so if he simply did not know that he would reap a profit out of the sale (by reason of the cheap price offered by Younger Sister). If Husband purchased the Property at market price from Younger Sister and then immediately sold it at market price, he would not make any profit. 167.Having resolved the above factual dispute on the background, I now proceed to analyse the content of the WhatsApp messages. In my view, the above conversations clearly support Husband’s case that it is the Deceased rather than Younger Sister who is the beneficial owner of the Property. 168.The most obvious indication came from Younger Sister’s assertion therein that the Deceased was persuaded by estate agents to sell the Property in 2006 (“當年2006，家姐聽地產游說，要賣金寶，取錢，等樓價跌，再買”). If the Deceased was not the real owner of the Property, how would she ever consider selling the flat? 169.If the abovementioned line is not enough, Younger Sister’s further explanation must put the matter beyond doubt when she said “好彩金寶個名係我，家姐才聽我講，無賣咋”. This apparently shows that the Deceased had the ultimate power to decide whether to sell the Property. This is only consistent with Husband’s case but not Younger Sister’s. It is also clear that Younger Sister was emphasising that she only held the Property “in name”. 170.Younger Sister had tried to explain these messages of hers at the re-trial. However, with respect, the more she tried to explain, the more she demonstrated that she is an incredible witness who would be willing to say anything in court so long as that might (in her view) assist her case, even if such explanations are totally incomprehensible and unreasonable. For example, she stated that it was the Deceased who attempted to persuade her in selling the Property, just that she had refused. This is simply not the meaning which the messages conveyed. E12.2 Messages on 15 June 2015 171.On 15 June 2015, Husband and Younger Sister had had further WhatsApp communications as follows:
172.There was also an audio message by Husband at the end of the aforesaid conversation. There is no dispute that he said in the message that:
173.I hold that most of the above messages support Husband’s case that Younger Sister is not the beneficial owner of the Property, but instead, the Deceased is. 174.Firstly, it can be seen that Husband asked Younger Sister again, on his own initiative, when she would deal with the “transfer matter” (“轉名”) as if it were a matter of course. In my view, that shows that he truly believed at the time that it was his entitlement. 175.Most importantly, Younger Sister did not question Husband’s entitlement in raising that question. She only said that she would do the transfer later to “BB” (the nickname of Daughter). In a way, she had acceded to Husband’s request. 176.Secondly, Husband then said that the money would be dealt with by Younger Sister and that he would “treat” (“當”) himself as a new buyer and pay off the mortgage instalments himself. These support Husband’s case that he was not a real buyer, and that the transfer were not going to be a real sale and purchase transaction. Indeed, if it were a genuine transaction, it would be strange to the extreme for Husband to say to the real vendor the most obvious that she would handle the money herself. 177.Moreover, these lines further support Husband’s case that he would get a mortgage from the bank so as to borrow money for the purpose of saving for Daughter’s university studies in future, and that the “money” referred to in the message was the loan to be obtained from the mortgagee. 178.Again, upon reading Husband’s message, Younger Sister did not query what he said, but just insisted to transfer the Property to Daughter in due course. 179.Moreover, it should also be pointed out that the above conversation shows that Younger Sister was telling a blatant lie in court when she gave evidence that she had not decided which one of her landed properties would be gifted to Daughter. 180.Thirdly, the audio recording made by Husband further strongly supports his case. In gist, he was urging Younger Sister to make a will before she got married because he was worried that the Property would fall into the hands of her newly wed husband (Benson) if she passed away unexpectedly. It is clear that unless the Property was indeed beneficially owned by the Deceased, Husband had no reason to have the abovementioned worry. 181.While Younger Sister admitted that she did agree with Husband that she would make a will before she got married to Benson, she explained in court that that was only because, in her view, the Property was her pre-marriage asset, and therefore she would like to keep it for her and the Parents’ own use when she and they got old to the exclusion of Benson[17]. 182.With respect, this must be something that Younger Sister made up in the witness box which does not make any sense. How could she preserve the Property for her own use by making a will which, at the risk of stating the obvious, would only take effect upon her own demise? 183.Furthermore, if the Property indeed belongs to Younger Sister beneficially, there was simply no need for her to tell Husband what she was going to do with it. 184.I have not lost sight of Younger Sister’s message which referred to the market price of the Property at the material time (HK$3.8 million), and stated that Husband could not afford to purchase the Property with his monthly salary of HK$14,000. Reading that message in isolation, it may suggest that Younger Sister was the real owner of the Property because otherwise it would not make any sense for her to mention about Husband’s financial capability to purchase the Property. However, it is noted that when Husband sought clarification as to what Younger Sister’s message meant, she did not answer directly, but only kept saying that she would transfer the Property to Daughter directly. In my view, her message is at best vague. 185.Another possible interpretation of Younger Sister’s aforesaid message is that she was saying that Husband’s plan to have the Property transferred to him and then for him to obtain a mortgage loan does not work, because he would not be able to repay the monthly instalments if a large amount of loan was obtained. This seems more consistent with what the parties had been discussing in the messages. 186.It is noteworthy that Husband admitted during cross-examination that he, by virtue of the aforesaid WhatsApp messages, was negotiating with Younger Sister on the purchase price of the Property. If they were really doing that, then of course it would be a factor which may show that the Property could not belong to the Deceased in the first place. However, I do not think Husband’s interpretation of those messages is correct (even though he was a party to those messages), and I would place no weight on such an interpretation. This is because, from the messages, it can be seen that Husband was only querying why the Property would be sold to him at HK$3.8 million. He did not ask for a cheaper price, nor did he make any counter-offer. It is therefore puzzling as to why he would admit that they were negotiating. In my view, this Court is entitled to interpret the messages itself by reference to the wordings used, and disregard Husband’s interpretation, because Husband was not referring to any other evidence but only the messages themselves when he gave the aforesaid interpretation. 187.All in all, I find that the messages exchanged between the parties are generally speaking much more consistent with Husband’s case. E12.3 Messages on 4 August 2015 188.On 4 August 2015, there were the following messages exchanged between Younger Sister and Husband:
189.Younger Sister submits that the above messages demonstrate her keen interest in the hygiene of the Property, and that they are consistent with her claim to the beneficial interest in the Property, for otherwise, it is said, she would not be interested in the hygiene of the Property. 190.I do not accept this submission. 191.It can be seen from the messages that the parties were still on good terms at the material time. In my view, the messages only show that Younger Sister was keen to offer her advice to Husband on the upkeeping of the Property. This is totally understandable, given there no longer was any grown-up lady in Husband’s family. Since Younger Sister was very close to the Deceased, it was completely natural for her to be keen to give her advice on hygienic matters as a way to take care of Husband’s family. 192.Apart from the above, I take the view that there is something else one can gather from the above messages. It is this: At the material time, there must have been a clear understanding between Younger Sister and Husband that the former would assist the latter to manage his finances, so as to make sure that Daughter would have some funds for her tertiary education. This is in fact consistent with the overall evidence which this Court has heard, namely, that Husband is not a person who is good at finance management, and that he would tend to overspend. On the other hand, it is also evident that Husband knew about his own problem, and as a result, given his trust on Younger Sister, he readily accepted what Younger Sister did to the joint account (i.e. to withdraw the entire fund (apart from HK$1,000) from the joint account). This in fact also explains why Husband was content with not taking any court action against Younger Sister for the recovery of the Property for such a long time even though she refused to transfer it back to him after the Deceased’s passing. In addition, it explains why Younger Sister refused to transfer the Property back to Husband upon the demise of the Deceased – this is because, as shown by various messages quoted under Sections 12.1 and 12.2, Younger Sister worried that if the Property fell into the hands of Husband, it would be sold or would somehow be disposed of without reserving any money for the tertiary education of Daughter. E12.4 Messages on 24 November 2015 193.Younger Sister and Husband further conversed via WhatsApp as follows on 24 November 2015:
194.Younger Sister relies on her messages “我唔收你租”, “你唔付，就立即搬出金寶” and “我係業主” and the fact that Husband did not dispute her aforesaid assertions and threats, to submit that they show that she must be the beneficial owner of the Property. 195.Despite the fact that only 3 messages are relied on, I have quoted extensively the messages exchanged on that particular day between the parties, so as to demonstrate that, at the material time, parties were having heated disputes. In such circumstances, the weight which should be attached to the said self-serving messages must be much limited. 196.Moreover, during cross-examination, this Court has witnessed first-hand how unreasonable Younger Sister could be when she was angry. She would just say anything or even argue even though what she said was totally absurd and different from the truth. In my view, it is more likely than not that the aforesaid messages were composed under similar circumstances. 197.Furthermore, although I have found that Husband is generally speaking an unreliable witness, I do accept his evidence that he did not see fit to rebut each and every allegation made by Younger Sister at the time. 198.Hence, I do not consider that the said messages would assist Younger Sister. E13. WhatsApp messages between Younger Sisterand Daughter 199.There were also messages exchanged between Younger Sister and Daughter on 10 December 2015. As a matter of background, these messages were sent after Husband had delivered the first demand letter dated 8 December 2015 through solicitors to Younger Sister and asked for a transfer of the Property back to him. 200.In my view, these messages also shed light on the truth of the matter. Their messages are quoted below:
201.In my view, there are quite a number of messages which are indicative of the beneficial ownership of the Property. It should be made clear that, when coming to this conclusion, I have already exercised extra caution, because by the time of these messages, it seems that Daughter and Younger Sister were not of very good relationship, and they were arguing in the messages. Yet, I hold the view that I can safely come to the aforesaid conclusion because the messages to be referred to below are clear. 202.Firstly, Younger Sister stated in the messages that the reason why she wanted to fight for the Property was that “唔係我想要金寶, 係賤人想要 […]”. In my view, if she were the real beneficial owner, it would be extremely strange for her to state the above. When this message is looked at together with other parts of the dialogue, it can be seen that Younger Sister was trying her best to defend Husband’s claim because she did not want the landed property to fall into Husband’s hands, rather than due to the simple (alleged) fact that she is the real owner thereof. I find that Younger Sister was simply following the Deceased’s instructions (see the following paragraph). 203.Secondly, Younger Sister told Daughter that “家姐臨走前，交托金寶一定不可以交比賤人”. This message is totally incompatible with Younger Sister’s case. If the arrangement in relation to the Property was as per the Alleged Common Understanding and/or Intention, such that the Deceased’s family was all along only living in the Property on the strength of Younger Sister’s permission, then why did the Deceased have to worry about the Property falling into the hands of Husband? 204.On the assumption that the Alleged Common Understanding and/or Intention was the truth, this instruction given by the Deceased would make more sense if Younger Sister had told the Deceased the former’s plan to give Daughter the Property as a gift. However, there is no such evidence. 205.If the Alleged Common Understanding and/or Intention was not the truth, then the aforementioned instruction given by the Deceased would only make sense if the Deceased herself was the beneficial owner of the Property, such that upon her demise, the Property (or at least part of it) would be passed to Husband. 206.While I am on this matter, I should also make it clear that I reject Younger Sister’s submissions that there had been a “lack of arrangements by the Deceased in relation to the Property”, as the aforesaid message was squarely such an arrangement. It is true that the Deceased did not execute any will, Letter of Wishes, and/or written directions. However, the very close relationship between the 2 sisters means that the Deceased was very confident that an oral instruction like what Younger Sister described in the above message would be adequate, and the Deceased must have taken the view that there was no need to worry that Younger Sister would take the Property away for her own benefit. 207.Thirdly, Younger Sister also said that “金寶買入既關鍵，又點解要比你地住原因，只有我 + 家姐知”. In my view, this statement is also more consistent with Husband’s case that the ownership issue relating to the Property is not a straight forward one. If the real situation was simply that Younger Sister was the legal and beneficial owner of the Property, I do not think Younger Sister would present the matter in such a way. 208.In relation to this matter, Daughter has given the evidence that:
209.In my view, it is more likely than not that Younger Sister did not make any of the aforesaid statements to Daughter as alleged. This is because if Younger Sister had indeed told Daughter about those matters, Daughter would not have asked the following questions in the WhatsApp exchanges: “間屋係你名，但係你供曬咩? 媽咪都供左大半段” and “媽咪供緊個陣你有一齊供?”. Rather, Daughter would have pointed out to Younger Sister that the latter had admitted that the Property actually belonged to the Deceased. Yet, Daughter had not referred to the alleged conversation between them. Furthermore, when Younger Sister stated “金寶買入既關鍵，又點解要比你地住原因，只有我 + 家姐知”, Daughter would have referred to the aforesaid previous admissions of Younger Sister again. However, she did not. 210.Having said that, it should be emphasised that while Husband’s case cannot be boosted by Daughter’s evidence on the conversation, that would not affect the strength of the above analysis on the WhatsApp messages. E14. Younger Sister’s payment of mortgage instalments 211.There is no dispute that Younger Sister had at some stage taken up the responsibility to repay the mortgage instalments. 212.However, there is a “dispute” as to when Younger Sister started to do so. 213.I have put the word “dispute” in quotation because such a dispute only appeared in the defendant’s Closing Submissions, but not in the pleadings nor in the evidence. 214.In the pleadings, the position is actually quite clear – it is common ground that Younger Sister started to repay the mortgage only upon the demise of the Deceased, i.e. June 2013. This is because she pleaded in paragraph 3(2B) of the Re-Re-Amended Defence that:
215.In paragraph 18 of Younger Sister’s witness statement, she also stated that:
216.There is therefore no room for Younger Sister’s counsel to submit otherwise. 217.While there is no dispute that she did pay mortgage instalments since the death of the Deceased, parties do not agree on the circumstances under which she started to do so. 218.Husband stated that she did so voluntarily so as to help out, knowing that his financial ability was not good, but on the other hand Younger Sister said that she did so simply because the Property belonged solely to her. 219.While this Court has found that generally speaking Husband is an unreliable witness, I am of the view that it is inherently probable that Younger Sister did in fact tell Husband that she would voluntarily help out by making the monthly mortgage repayments. At the material time, they were on good terms, and most importantly, Younger Sister was very close to the Deceased, and she was most caring for Daughter. There was every reason for Younger Sister to keep repaying the mortgage so as to make sure that Daughter would be able to reside at the Property. 220.I have not lost sight of the fact that Husband’s evidence that the alleged telephone conversation between him and Younger Sister after the passing of the Deceased in which the “voluntary payments by Younger Sister” was raised was never mentioned in his witness statement. However, I am of the view that the inherent probability of the matter should be given more weight. Further, it would be strange if the parties did not discuss about the financial arrangement after the Deceased’s death, given it was the Deceased who had always been responsible for making the repayments. 221.It is this Court’s finding that Younger Sister knew full well that she was not the sole beneficial owner of the Property but just a legal owner thereof, holding the same on trust for the Deceased. Therefore, Younger Sister’s case that she made the mortgage instalment since mid-2013 by reason of her beneficial interest in the Property must be rejected. F. BREACH OF TRUST 222.It is undisputed that, if it is found by this Court that the Deceased was the sole beneficial owner of the Property, then Younger Sister’s taking out of the 2015 Mortgage constitutes a breach of trust. 223.Hence, Younger Sister is a constructive trustee of the loan obtained pursuant to the 2015 Mortgage. G. THE RELIEFS SOUGHT G1. The original reliefs sought 224.In Mr Ma’s Closing Submissions, he asked this Court to make the following orders:
G2. The 2nd plaintiffs’ application to amend 225.In the defendant’s Closing Submissions, Ms Law had already drawn this Court’s attention to the authority of Lam Hong Ching Andy v Wong Kam Tong (HCA 1144/2006 & HCA 2320/2007, unreported, 12 October 2009) (in particular, [93] and [94] thereof), and submitted that, in the event the 2nd plaintiff succeeds in his claim of common intention constructive trust, the usual remedy for the defendant’s breach of trust (for taking out the 2015 Mortgage) would be requiring the defendant to discharge all outstanding indebtedness secured by the mortgage and procure the release of the mortgage. It can also be seen in the Lam Hong Ching Andy case that the Court would order a transfer of the trust property free from encumbrances back to the beneficial owner. 226.However, the problem in the 2nd plaintiff’s case is that no order of transfer has been sought in his Re-Re-Amended Statement of Claim. 227.Despite the defendant’s submissions in the Closing Submissions, Mr Ma in his 121-page long Reply Closing Submissions did not really deal with the point raised. 228.On the last day of the trial which was reserved for oral closing submissions, after Ms Law had completed her oral closing submissions, Mr Ma handed up a set of “Ps’ Proposed Draft Order”, in which he has revised the orders which he was minded to ask this Court to make in the event the 2nd plaintiff succeeds (“the Additional Reliefs”). In the Additional Reliefs, he sought to add:
229.In effect, Mr Ma was making an application to amend the Re-Re-Amended Statement of Claim. 230.Understandably, this application (which was not even made by a summons) was met with strong objections from Ms Law, mainly on the ground that it was a very late application. As set out in Section A above, this is a re-trial of an action which was commenced in 2015. The pleadings had been filed long time ago. Although the point on “usual remedy” was raised when the defendant lodged her Closing Submissions on 17 April 2026, the 2nd plaintiff did not see fit to take out a summons for the purpose of adding more reliefs. Worse still, although Mr Ma had decided on 8 May 2026 to ask this Court for the Additional Reliefs, he chose to withhold the “Ps’ Proposed Draft Order” and did not alert the defendant’s counsel right away about his intended application. Even though Mr Ma stated that it was already after office hour when he finally made up his mind, he did not send the said document, for example, by email or facsimile to Ms Law. Neither did he hand over the said document to Ms Law before the hearing on 8 May 2026, when he apparently had already made enough copies for everyone. 231.With greatest respect, I must say that Mr Ma’s way of handling this amendment application is totally unacceptable. He should not have ambushed the defendant by withholding his intended application. 232.Be that as it may, I do not think the 2nd plaintiff’s application for amendment should be dismissed for such a reason. After all, it should be borne in mind that one of the underlying objectives of the rules are to ensure fairness between the parties[18], and that in giving effect to the underlying objectives, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties[19]. 233.With the above in mind, I will now consider whether the Additional Reliefs below should be allowed to be added. G2.1 The order for transfer and discharge of the 2015 Mortgage 234.With greatest respect, it is difficult to understand why these reliefs were not included in the plaintiffs’ Statement of Claim in the first place. If the Court finds against the defendant, the most natural remedy must be for the defendant to transfer the legal title of the Property (which is free from encumbrances) back to the beneficial owner. As the Re-Re-Amended Statement of Claim now stands, although there are declarations sought in respect of the Property, full justice cannot be done. Although Relief (3) seems to suggest that the 2nd plaintiff was minded to obtain the monetary value of the Property from the defendant rather than the Property itself, the problem with this claim is that it has not even been pleaded in the Re-Re-Amended Statement of Claim. Even if Relief (3) were added, there is no evidence on the current value of the Property. In this regard, Mr Ma drew this Court’s attention to the fact that the sum of HK$5.75 million was in fact the agreed valuation of the Property between the parties. However, that valuation was agreed before the commencement of the First Trial in October 2021. For the purpose of the re-trial, the 2nd plaintiff did not seek to agree with the defendant on an updated valuation at all. Given the notorious fact that the Hong Kong property market is always fluctuating, it is unrealistic to expect that the current market price has remained more or less the same more than 4 years later. 235.As aforesaid, the defendant strenuously opposed the 2nd plaintiff’s application to add the reliefs of order for transfer and for the discharge of the 2015 Mortgage. However, when Ms Law was asked what prejudice the defendant would suffer if this Court were to allow the amendment, she could not really point to any apart from emphasising that this is a very late application. 236.Late as it is, I hold the view that justice cannot be done if these orders are not granted. There is really no reason why the defendant should be allowed to hold onto the Property if it is this Court’s finding that she has always been holding the Property on trust for the Deceased. 237.I would therefore allow the addition of these reliefs as follows:
G2.2 Payment of damages in default of transfer 238.The 2nd plaintiff seeks to add the following relief:
239.As pointed out above, this relief is not supported by evidence, as the valuation of HK$5,750,000 is obviously outdated. 240.I therefore do not allow this amendment. G2.3 Damages to be assessed 241.The 2nd plaintiff also seeks to add the following relief:
242.There has never been any order for a split trial. I do not think it is right for the 2nd plaintiff to have a second bite of the cherry as such. 243.I will therefore refuse leave to add this relief. 244.Under Relief (5), the 2nd plaintiff seeks an order for accounts and inquiries as to what has happened to the mortgage loan in the sum of HK$2,310,000 which the defendant obtained. He now seeks to add the followings to this relief:
245.In my view, this is a fair amendment which is favourable to the defendant. I would allow this amendment. G2.5 Further terms on the injunction 246.The original draft of “Ps’ Proposed Draft Order” also contains further terms to the injunction sought under Relief (8). However, during Mr Ma’s oral closing submissions, he informed this Court that he would abandon the claim of injunction altogether. 247.As a result, this addition is no longer necessary and I do not have to deal with this matter further. 248.To conclude, I would give leave to the 2nd plaintiff to further amend the Re-Re-Amended Statement of Claim by:
249.The 2nd plaintiff shall file and serve the Re-Re-Re-Amended Statement of Claim within 14 days hereof. 250.Before I leave this Section, it should be emphasised that this Court has decided to exercise its discretion and give leave for the amendment only because of the very special circumstances of the present case. It should not be taken as if it is the norm that a party would be granted leave to amend even at last minute and even if no summons has been filed. 251.I will now deal with the substantive merits of the reliefs sought. G3. Claim against the Property 252.Younger Sister’s counsel accepts that Husband would be entitled to Relief (1) and Relief (2) in the event his case on common intention constructive trust is accepted. I will therefore grant these reliefs accordingly. 253.For the avoidance of doubt, since I accept that there is sufficient evidence to infer the common intention that the Deceased would be the sole beneficial owner of the Property, there is no need to resort to the concept of resulting trust. Therefore, the exact amounts of contributions made by the parties (and the respective percentages they represent) are irrelevant. 254.Under Relief (3), Husband asks for equitable compensation in the sum of HK$5,750,000. However, Mr Ma accepts that if the Court grants the Transfer Reliefs (see Section G4 below), he would not pursue Relief (3) further. 255.As a result, Relief (4) would also become academic. 256.As mentioned above, it is accepted by the defendant’s counsel that these are the usual reliefs which the Court should grant in the circumstances of the present case. I will therefore grant these reliefs accordingly. 257.As for the timing of transfer, parties agreed that a reasonable period should be 3 months. I will adopt the same in the order. 258.Husband asks for an order for account and payment of the sum found due. 259.In Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681, Lord Millett had the following to say:
260.In Hui Chun Ping v Hui Kau Mo [2024] 2 HKLRD178, [2024] HKCA 194, it was held by the Court of Appeal that:
261.Younger Sister submits that Husband is not entitled to an account because he has “failed to plead any profits that are to be the subject of the accounting remedies”. 262.This submission is not understood, and she has failed to cite any authority in support of such a submission. 263.In my view, since Younger Sister accepts rightly that she is a constructive trustee of the loan obtained pursuant to the 2015 Mortgage in the event it is held to be a breach of trust, there is no question that Husband would be entitled to an account, and an order for payment of any profit made out of the 2015 Mortgage. Ms Law also fairly agrees with this proposition. 264.I will therefore make an order in term of Relief (5) (subject to the addition of the Setting Off Provision), Relief (6) and Relief (7). 265.As aforesaid, Husband has abandoned his claim for post-judgment injunction (Relief (8)) against Younger Sister. I therefore say no more on this matter. G6. Younger Sister’s wrongful occupation of the Property 266.Under Relief (9), Husband asks for an order that Younger Sister do pay mesne profits at the agreed rate of HK$9,000 per month since 15 February 2023 until the date of the order to be made herein (or until the full payment of the sum HK$5,750,000.00 to him). 267.Since this Court does not make any order on equitable compensation, an order will be made in terms of Husband’s proposed order and the calculation of mesne profits will be up to the date of this Judgment. 268.As far as interest (Relief (11)) is concerned, Husband only asks for interest to be calculated from the date of this Judgment. 269.On top of mesne profits, Husband also asks for damages for rental and expenses of alternative accommodation from 15 February 2023, estate agency commission as well as expenses for moving home (Relief (10)). 270.Husband’s difficulty in this regard is that he cannot show that he has incurred the aforesaid expenses in his capacity as administrator of the estate of the Deceased, who is the only succeeding party at this re-trial. Therefore, the expenses which he has incurred in his personal capacity cannot be recovered. H. ORDER 271.I therefore make the following orders:
I. COSTS 272.As far as the 2nd plaintiff’s application for leave to amend, I will make no order as to the costs thereof. 273.In relation to the costs of the action, while the plaintiffs are the succeeding parties, I think the Court should take into account the fact that the Transfer Reliefs, which must be part of the most crucial reliefs, were only added at the very last stage of the trial, upon the defendant’s reminder in her Closing Submissions. 274.With the above in mind, I make a costs order nisi that the defendant shall bear 85% of the plaintiffs’ costs (including all costs reserved and the costs of the First Trial), to be taxed if not agreed. 275.The plaintiffs’ own costs shall be taxed in accordance with Legal Aid Regulations. 276.The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.
Mr Billy N. P. Ma, instructed by Kwok Hei Law Office, for the plaintiffs Ms Deanna Law, instructed by Alex To & Co. Solicitors, for the defendant [1] The full address has been set out in paragraph 2 of the Re-Re-Amended Statement of Claim. There is an obvious typing mistake in the said address, in that “Yuen Long” has been typed as “Yeung Long”. To make the record straight, leave to amend is granted to correct the mistake. See Section G2.6 below. [2] [2025] 2 HKLRD 170, [2025] HKCA 203 [3] At [56] [4] See paragraph 3 of the Re-Re-Amended Statement of Claim filed on 10 November 2025 [5] Paragraph 3(1) of the Re-Re-Amended Defence and Counterclaim filed on 5 December 2025 [6] Hu Lan v David Golden [2023] HKCFI 873 at [36], and Painter v Hutchison [2007] EWHC 758 (Ch) at [3] [7] Paragraph 30 of the plaintiffs’ Closing Submissions [8] “我覺得人大咗，就要自己出去獨立住” (emphasis added) [9] Paragraph 79.3 of the defendant’s Closing Submissions [10] See [14] above [11] “因為我就係吾想家姐痴住我住，跟住側側膊又唔俾父母” [12] “除非太窮” [13] Paragraph 118.3 of the defendant’s Closing Submissions [14] There is no dispute that there is a typo in the message. The word “買” should be replaced by the word “賣” [15] Ditto [16] Ditto [17] “嗰啲係留返畀我同我父母養老㗎” [18] Order 1A rule 1(d) of the Rules of the High Court [19] Order 1A rule 2 of the Rules of the High Court | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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