Wong Kiu, in Her Capacity As the Administratrix of the Estate of Ng Wai Kwong, Deceased v. Pang Hang Ngor

HCA 602/2023

[2026] HKCFI 3381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 602 OF 2023

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D E C I S I O N

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1.The Plaintiff is the lawful wife of the late Mr Ng Wai Kwong (“Deceased”). The Defendant was in a long-term relationship with the Deceased from 1981 until he died in September 2018. In these proceedings, the dispute between the Plaintiff and the Defendant relates to the beneficial ownership of the shares in two companies, namely Hoi Kong Holdings Limited (“Hoi Kong Holdings”) and Shine Wheel Limited (“Shine Wheel”). Shortly before the Deceased’s death, all the Deceased’s shares in Hoi Kong Holdings (250,000 shares) and Shine Wheel (6,000 shares) (collectively as the “Transferred Shares”) were transferred by the Deceased to the Defendant.

2.On 24 November 2025, the learned Master declined to give leave to the Plaintiff to plead (1) the proposed pleas in paragraphs 22 and 23 of the draft Amended Statement of Claim (“Draft ASOC”) in relation to what happened at a family meeting in November 2018 concerning the transfer of the 250,000 shares in Hoi Kong Holdings and the 6,000 shares in Shine Wheel, and (2) the pleas in paragraph 26 of the Draft ASOC in relation to a claim in common intention constructive trust.

3.This is the Plaintiff’s appeal against the learned Master’s order refusing the Plaintiff leave to amend her Statement of Claim to plead these proposed pleas.

4.The principles on amendment of pleadings are well established. The court’s guiding principles on the exercise of discretion to allow or refuse an amendment of pleadings post-CJR remain the same as those laid down in Ketteman v Hansel Properties Ltd [1987] AC 189 at 212, namely:

(1)  All such amendments should be made as are necessary to enable the real questions in controversy between the parties to be decided.

(2)  Amendments should not be refused solely because they have been made necessary by the honest fault or mistake of the party applying for leave to make them: it is not the function of the court to punish parties for mistakes which they have made in the conduct of their cases by deciding otherwise than in accordance with their rights.

(3)  However blameworthy (short of bad faith) may have been a party’s failure to plead the subject matter of a proposed amendment earlier, and however late the application for leave to make such amendment may have been, the application should, in general, be allowed, providing that allowing it will not prejudice the other party.

(4)  There is no injustice to the other party if he can be compensated by appropriate orders as to costs.

5.Nonetheless, the court must now also take into account the underlying objectives in RHC O.1A to decide how its discretion should be exercised. A pertinent consideration in giving effect to the underlying objectives is that the court “shall always recognise 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”: RHC O.1A r.2(2). See Topwell Corp Ltd v Kwan Kam Kee [2014] 5 HKLRD 1 at [39] (Kwan JA).

A.  PROPOSED PLEAS IN PARAGRAPHS 22 AND 23

6.In the original paragraphs 22 and 23 of the Statement of Claim dated 22 August 2023 (“original SOC”), the Plaintiff pleaded that during a family meeting in November 2018, (1) the Defendant informed the Plaintiff’s children that prior to the Deceased’s death, she had arranged for the Deceased to transfer 250,000 shares in Hoi Kong Holdings and the 6,000 shares in Shine Wheel to her, (2) the Defendant confirmed that she was willing to return all such shares to the Deceased’s estate and (3) the Defendant repeated the same representation and confirmation at the meetings in January and March 2019.

7.In paragraphs 22 and 23 of the Draft ASOC, the Plaintiff wishes to plead a somewhat different factual case. The new proposed pleas differ from the original pleas in three material respects, namely (1) the Defendant never disclosed the transfer of 250,000 shares in Hoi Kong Holdings during a family meeting in November 2018, (2) the Defendant did not confirm that she was willing to return the 250,000 shares in Hoi Kong Holdings to the Deceased’s estate during a family meeting in November 2018, and (3) the Defendant only disclosed the transfer of the 250,000 shares in Hoi Kong Holdings at the meetings in January and March 2019.

8.In my view, it is clear that the Plaintiff is seeking to amend her original pleading to put forward a different factual case as to what the Defendant is alleged to have said at the family meeting in November 2018.

9.“A party will be required to explain why its proposed amendment is required if it seeks to amend a pleading by introducing allegations inconsistent with those previously verified”: Hong Kong Civil Procedure 2026 §20/13/1. See also Joesh Overseas Ltd v Lee Sai Nam [2020] HKCFI 350 at [14] (Harris J); Shih Mei Ling v Shih Mei Kei [2021] HKCFI 2964 at [24] (Recorder J Pao SC).

10.In the statement of truth for the original SOC, the Plaintiff verified the facts stated in her Statement of Claim, including the matters pleaded in paragraphs 22 and 23, to be true. The Plaintiff’s new proposed pleas in paragraphs 22 and 23 of the Draft ASOC involve introducing allegations which are inconsistent with those previously verified. In these circumstances, I consider that it is incumbent on the Plaintiff to adequately explain why the current proposed amendments should be allowed.

11.In paragraphs 18 and 19 of her 4^th affirmation filed on 4 November 2025, the Plaintiff attempted to provide an explanation. She asserted that she needs to clarify and supplement her case after the discovery of documents and the exchange of witness statement. In my view, this explanation is inadequate. I disagree with the Plaintiff’s submission that she is only seeking to “clarify” her case on what happened at the first family meeting in November 2018. In my view, by putting forward the proposed amendments in paragraphs 22 and 23 of the Draft ASOC, the Plaintiff is going beyond mere clarification of her factual case. She is clearly putting forward a different factual case as to what the Defendant is alleged to have said during the family meeting in November 2018. I am unable to see how the Plaintiff was able to correct what she said in paragraphs 22 and 23 of the original SOC after having the benefit of the discovery of documents and the exchange of witness statements. Indeed, this was not explained in the Plaintiff’s affidavit evidence.

12.The situation is particularly unsatisfactory because the proposed pleas in paragraphs 22 and 23 of the Draft ASOC are inconsistent with the Plaintiff’s own evidence in these proceedings, and the proposed evidence she intends to adduce at the trial.

(1)  In paragraphs 31 to 37 of her 1^st affirmation filed on 2 June 2023 to support her application for an injunction in these proceedings, the Plaintiff deposed the same matters as those set out in paragraphs 22 and 23 of the original SOC. Even though she had the opportunity to do so, the Plaintiff has not filed any evidence to suggest that what she said previously on oath is incorrect, or explain how she came to say what she did previously. The proposed pleas are therefore inconsistent with the Plaintiff’s own evidence in these proceedings.

(2)  Further, the parties exchanged witness statements in May 2025. In the witness statement of the Plaintiff’s eldest son, Mr Ng Sui Ho (“Mr Ng”), filed on behalf of the Plaintiff, it appears to be Mr Ng’s proposed evidence at the trial that the Defendant did refer to the 250,000 shares in Hoi Kong Holdings at the family meeting in November 2018 (see paragraphs 36 and 39 of Mr Ng’s Statement). The proposed pleas are therefore also inconsistent with the proposed evidence that Mr Ng intends to give at the trial. I have not lost sight of the fact that Mr Ng did say in paragraph 55 of his witness statement that the Defendant referred to 6,000 shares in Shine Wheel at the November 2018 family meeting. However, this does not detract from the point made earlier about the inconsistency between paragraphs 36 and 39 of his statement and the proposed pleas.

13.In the particular circumstances of this case, I am of the view that both the court and the Defendant are entitled to a full explanation as to why a departure from the original pleading is being made, in the light of the fact that (1) the original SOC had been endorsed with a statement of truth, and (2) the proposed pleas in paragraphs 22 and 23 of the Draft ASOC are inconsistent with the Plaintiff’s own evidence in these proceedings, and the proposed evidence she intends to adduce at the trial.

14.Even though such explanation is not currently before the court, I do not believe I should just disallow the proposed amendments in this case. I recognise that the primary aim in exercising the court’s powers is to secure the just resolution of disputes in accordance with the substantive rights of the parties. I also bear in mind the principles that all amendments to a pleading should be made as are necessary to enable the real questions in controversy between the parties to be decided. Further, it is not the function of the court to punish a party for mistakes which he has made in the conduct of his case by deciding otherwise than in accordance with his rights. Subject to the condition that I will exercise my case management discretion to make, it seems to me that I should allow the Plaintiff to plead the proposed pleas in paragraph 22 and 23 of the Draft ASOC, so that she can advance that factual case at the trial, even though it is different from her original pleaded case.

15.Under RHC O.20 r.5(1), the court may allow a plaintiff to amend his pleading “on such terms as to costs or otherwise as may be just and in such manner (if any) as it may direct”. Further, under RHC O.1B r.1(3)(a), the court may make an order subject to conditions. At the hearing, the Plaintiff’s Leading Counsel accepts that the court has the power to impose conditions upon the giving of leave to amend pleadings.

16.In the present case, I believe it is just to give leave to the Plaintiff to amend according to paragraphs 22 and 23 of the Draft ASOC on the condition that the Plaintiff is to file an affirmation solely to provide an explanation in relation to the matters which I mentioned earlier. An important reason for imposing this condition is to enable the Defendant to know before the trial the Plaintiff’s reason(s) for departing from her original factual case and to know what the Plaintiff’s position is in relation to the inconsistencies mentioned earlier, so that the Defendant can adequately prepare for the trial. In the event that the Defendant remains unsatisfied with the forthcoming explanation from the Plaintiff’s affirmation, the court would expect the matter to be taken up further at the trial, and not before. Satellite litigation arising out of the adequacy or otherwise of the further explanation must be avoided.

17.For the sake of completeness, I should mention that I have not lost sight of the Defendant’s submissions on delay and prejudice. I do not consider such points to be sufficiently weighty so that my discretion should be exercised the other way to refuse the granting of leave.

B.  PROPOSED PLEAS IN PARAGRAPH 26

18.The Plaintiff also seeks leave to introduce pleas in paragraph 26 of the Draft ASOC in relation to a claim in common intention constructive trust.

19.In paragraph 26 of the original SOC, the Plaintiff pleads that the Transferred Shares were transferred to the Defendant “at nil consideration on the basis and/or understanding (whether express, implied, inferred or imputed) that the Defendant shall receive and hold the Transferred Shares on behalf and for the benefit of the Deceased and/or the Estate. If and insofar as it may be necessary, the Plaintiff will rely on the presumed intention of resulting trust”.

20.In paragraph 26 of the Draft ASOC, in addition to the original pleas, the Plaintiff seeks to plead (1) that she will rely on express trust, (2) that she will also rely on common intention constructive trust and (3) various particulars to support her case of common intention constructive trust.

21.The Plaintiff submits that the plea of constructive trust was already pleaded in paragraph 29 of the original SOC and the prayer, and the present common intention constructive trust claim is not a new claim. I disagree. At paragraph 29 of the original pleading, the plea is that “the Defendant received and held the Transferred Shares on trust (whether express, implied, constructive, resulting or otherwise) for the Deceased and/or the Estate...”. Such a rolled-up plea is highly ambiguous, and is sloppy. It does not give the readers any idea what the Plaintiff’s case is in relation to the nature of the alleged trust, or how the alleged trust is said to have arisen. This is the antithesis of a proper pleading, which is supposed to fairly and precisely inform the other party in the litigation what case he has to meet. This kind of rolled-up plea in my view should never have found its way into a pleading. Furthermore, no constructive trust can be said to have arisen by reference to the matters pleaded in paragraph 26 of the original SOC (or the matters pleaded before that paragraph).

22.For the same reasons, I also disagree with the Plaintiff’s submission that the purpose of the proposed pleas in paragraph 26 of the Draft ASOC is to clarify her case by providing particulars to support a case based on common intention constructive trust. In my view, the Plaintiff is seeking to introduce a new case of common intention constructive trust, and the court must ascertain whether sufficient material facts have been pleaded in the proposed pleading to support such a claim.

23.It is important to properly understand the context of the Plaintiff’s current claim based on common intention constructive trust. The Plaintiff’s case is that a common intention constructive trust arose when the Transferred Shares were transferred from the Deceased to the Defendant. Because the transfers took place in July and September 2018, the alleged constructive trust can only have arisen at that time in 2018. To support the alleged common intention between the Deceased and the Defendant, all the Plaintiff has done is to refer to “matters pleaded hereinabove (including, but not limited to, the Defendant’s Admission)”, or alternatively to contend that the common intention may be inferred by “the Deceased’s family background and the conduct of the Deceased and the Defendant as pleaded hereinabove”. I am unable to agree that the Plaintiff’s proposed pleas are sufficient to found a proper case of common intention constructive trust.

(1)  The common intention, or the agreement, arrangement or understanding, between the parties may be based on express discussions between them or inferred from their conduct: Lloyds Bank Plc v Rosset [1991] 1 AC 107 at 132E-133B (Lord Bridge), approved in Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985 at [5.8] (Cheung JA).

(2)  Express discussions should be pleaded in the greatest detail, both as to language and as to circumstance: Hammond v Mitchell [1991] 1 WLR 1127 at 1139E‑F (Waite J).

(3)  In my view, there is nothing in the Draft ASOC which pleads any actual discussion between the Deceased and the Defendant relating to the Transferred Shares.

(4)  As to inferred common intention, the parties’ whole course of conduct in relation to the property must be taken into account in determining their shared intentions as to its ownership: Stack v Dowden [2007] 2 AC 432 at [60] (Baroness Hale), approved in Mo Ying (above) at [5.13] & [5.15] (Cheung JA). Nonetheless, the basis for contending that the common intention is to be inferred or ascertained must be clearly pleaded: Lee Tak Yee v Lee Tak Yan (unreported, HCA 766/2008, 10 March 2010) at [33] (Chu J).

(5)  In paragraph 48 of the Plaintiff’s skeleton argument, various pleaded matters have been referred to as matters sought to be relied upon to establish the alleged common intention. These matters include the structure and composition of the Deceased’s family, the Deceased’s character, the representations made by the Deceased to the Plaintiff and the Plaintiff’s children, the Deceased’s conduct regarding the other shares in the two companies, and the implications of the change of shareholding in the two companies. Other than the reference to the Defendant and her sons, all these matters do not involve the Defendant. I am unable to see how these matters, even if they are looked at holistically, can be used to infer a common intention between the Deceased and the Defendant in relation to the Transferred Shares. No explanation was provided in the Plaintiff’s skeleton argument. Significantly, the Plaintiff has not provided a date when the alleged common intention between the Deceased and the Defendant was formed.

(6)  As far as the alleged admission made by the Defendant is concerned, that event (according to the Plaintiff’s case) happened after the demise of the Deceased. Even assuming that such an admission was made as alleged by the Plaintiff, that admission only suggests that the Defendant acknowledged that she has no beneficial interest in the Transferred Shares. It is unclear how the admission can be used to evidence a common intention between the Deceased and Defendant regarding their shared beneficial interest in the Transferred Shares.

24.For these reasons, I do not believe the Plaintiff has pleaded sufficient material facts to support a case of common intention constructive trust in relation to the Transferred Shares. It does not assist the Plaintiff to say that this is only a matter of evidence or inference to be determined at the trial. If insufficient material facts are pleaded to support a proper cause of action in a pleading, the court should not give leave to amend to introduce such a cause of action and leave the matter to be determined at the trial.

25.In view of this conclusion, it is unnecessary to deal with the Defendant’s submissions regarding the sufficiency of the Plaintiff’s plea on detrimental reliance.

26.For these reasons, I refuse to grant leave to the Plaintiff to plead the proposed pleas in paragraph 26 of the Draft ASOC.

C.  EXTENSION OF TIME

27.I now deal with the Plaintiff’s application for extension of time. The Plaintiff was out of time by 1 day to issue her notice of appeal against the learned Master’s orders. The reason given for the delay is due to the failure of clerk of the Plaintiff’s solicitors to file the notice of appeal on time before the court registry closed. The degree of prejudice caused to the Defendant as a result of the 1-day delay is minimal. Given that I have come to a view different from the learned Master in relation to paragraphs 22 and 23 of the Draft ASOC, I consider the Plaintiff’s appeal has sufficient merits. For these reasons, I extend time for the Plaintiff to appeal the learned Master’s order and issue her notice of appeal by one day to 9 December 2025.

D.  DISPOSITION

28.For all the reasons given, the orders that I make are as follows.

(1)  Subject to the filing and service of an affirmation of the Plaintiff to explain (a) the full circumstances leading to the Plaintiff’s departure from paragraphs 22 and 23 of the original SOC and (b) how the proposed pleas in paragraphs 22 and 23 of the Draft ASOC are to be reconciled with paragraphs 31 to 37 of the Plaintiff’s 1^st affirmation and paragraphs 36 and 39 of Mr Ng Sui Ho’s Witness Statement within 14 days, leave be granted to the Plaintiff to file and serve the Amended Statement of Claim with the proposed amendments at paragraphs 22 and 23, together with the other proposed amendments allowed by the Master, within 7 days thereafter.

(2)  Time for the Plaintiff to appeal the learned Master’s order and issue her notice of appeal be extended by one day to 9 December 2025.

29.I will now hear the parties on costs and the further directions to be made.

[Submissions on costs and further directions]

30.Although I have granted leave to the Plaintiff in relation to the proposed pleas in paragraphs 22 and 23 of the Draft ASOC, that is conditional upon the filing of an affirmation of the Plaintiff to provide further explanation in relation to her change of case. The Defendant’s oppositions to this appeal are reasonable and have turned out to be substantially successful. In these circumstances, I consider the Defendant to be the overall winner in this appeal. I order that the costs of and occasioned by the Plaintiff’s notice of appeal be paid by the Plaintiff to the Defendant to be summarily assessed. I consider the cost orders made by the learned Master to be correct and they are to be left undisturbed.

31.I also make the following directions: (1) leave is given to the Defendant to file and serve the Re-Amended Defence within 28 days from the date of the service of the Amended Statement of Claim, and (2) leave is given to the Plaintiff to file and serve the Amended Reply within 28 days thereafter.

[Submissions on summary assessment]

32.Taking a broad-brush approach, I summarily assess the Defendant’s costs at HK$200,000.

Mr Anson Wong SC and Mr Christopher KH To, instructed by Cocking & Co LLP, for the Plaintiff

Mr Keith Chan, instructed by Withers, for the Defendant