Chan Chung Nam v. Chan Chung Kay Being the Person Appointed To Represent the Estate of Chan Kin Kwong, Deceased

HCA 1106/2020

[2026] HKCFI 3695

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1106 OF 2020

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BETWEEN

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J U D G M E N T

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Background

1.This is a regrettable and sad story of a family dispute. The facts are of a family from a humble background, each member working diligently and contributing in his/her own way to the upkeep of the family, the support of the parents and the improvement of the entire family’s livelihood. Trust somehow broke down towards the end, and what was originally a source of pride became the focus of bitter dispute and contest. Legal proceedings were commenced, the family and the wider clan was divided, acrimonious accusations were made, and it is not certain whether resolution of the litigation can achieve the best outcome for everyone concerned.

2.In this action, the Plaintiff Chan Chung Nam claims that he is the beneficial owner of Lot No 642 in DD 106, otherwise known as No 44 Ng Ka Tsuen, Kam Sheung Road, Kam Tin, Yuen Long, New Territories (“Property”). The Plaintiff alleges that the Defendant, who is the personal representative of the estate of Chan Kin Kwong (“Father”), holds the Property on the Plaintiff’s behalf on the basis of common intention constructive trust, resulting trust and/or proprietary estoppel.

3.The Plaintiff is the eldest son of the deceased Father. The Defendant Chan Chung Kay (“4^th Brother”) is the 4^th son, and was appointed as the Personal Representative of the Father’s estate (“Estate”) after Father passed away on 17 October 2017.

4.The other siblings in the family are: Chan Chung Piu (“2^nd Brother”), Chan Chung Hin (“3^rd Brother”), Chan Chung Wah (“5^th Brother”), Chan Chung Keung (“6^th Brother”), and Mary Chan (“7^th Sister”) (collectively, together with the Defendant, “Siblings”). Father died in October 2017. His wife (“Mother”) had pre-deceased him in 2008.

5.In 1968, when the Plaintiff was 18 years old, he joined the service of a shipping company, Treasure Maritime Limited (“Maritime”). He started there as an apprentice, worked on various vessels of Maritime and made long voyages away from home, until he became a Captain. The Plaintiff then worked on land-based posts until his retirement from the company in 2012, after 44 years of service. By then, the Plaintiff was a director of Maritime, and the managing director of a related company of Maritime. It was an impressive story of hard work and success.

6.According to the evidence of Mr Young Ching Shing (“Young”) of Maritime, the Plaintiff was one of the most successful seamen that Young had witnessed in his 30 years’ working at Maritime. Young had heard the Plaintiff’s supervisors making compliments on the Plaintiff to Young’s boss, the managing director of Maritime (“Mr Chen”), and Young described the Plaintiff as one who was known amongst the staff as a diligent, responsible and reliable employee. Young had witnessed how the Plaintiff was promoted several times in a short course of time, to Chief Officer in just 5 years, and ultimately rising to the rank of Master, or Captain of a ship.

7.In the 1970s, when the Plaintiff was working as Chief Officer, he earned what he described as a “very decent income”, compared to other jobs available at the time in Hong Kong. In January 1976, the Plaintiff’s monthly income was in the region of $4,000 to $5,000, whilst Father was making about $830 a month around that time. $4,500 would have an equivalent value of at least around $20,000 to $26,000 today.

The pleaded case

8.As the pleadings dictate the issues for determination at trial as well as the evidence to be admitted and considered for trial, the pleadings filed in this action will be considered first.

9.On the Plaintiff’s case, his service was greatly appreciated by his superiors at Maritime. In 1975, Mr Chen (the managing director of Maritime) had visited the Plaintiff at his home. During that time, the Plaintiff resided with the other 8 members of the Chan family, in cramped conditions in a one-bedroom apartment of 345 sq feet. After that home visit, Mr Chen encouraged the Plaintiff to buy a property, to improve the living conditions of himself and his family. He offered Maritime’s financial assistance to the Plaintiff for such purpose, as part of the benefits available to staff members of Maritime.

10.In gist, the Plaintiff’s case according to the Statement of Claim (“SOC”) is that he took on Mr Chen’s offer, and applied for and obtained a loan from Maritime (“Maritime Loan”) which he used, together with loans from other sources, to purchase the Property and to build a house thereon. Because the Plaintiff was frequently away at sea for long periods of time, he agreed with Father in 1975 that the Property would be acquired and registered in Father’s name, but for convenience only. On the Plaintiff’s account, it was agreed that Father would hold the Property for the Plaintiff’s benefit and it was on this agreed basis and understanding that the Plaintiff committed to taking out personal loans and applying all of his monthly income towards payment of the purchase price and the related expenses for the Property. The Plaintiff contends that, prior to the acquisition of the Property in 1975, Father and the Siblings had very limited financial means and none of them were in any position to acquire the Property, whether individually or collectively, and he was the only member of the family who had the financial means to do so.

11.According to paragraph 10 of the SOC, there was an oral agreement between Father and himself, and/or they shared the common understanding (“Common Understanding”) that:

“(1) The Plaintiff would seek financial assistance from (Maritime) for initial funding for the acquisition and construction of the Property. The Plaintiff would personally borrow a loan from Maritime (“Maritime Loan”);

(2) On top of the (Maritime Loan), the Plaintiff would also borrow from his colleagues and from his clansmen (鄉里) (the 3 types of loans referred to as the “Initial Loans”);

(3) On top of these Initial Loans, the Plaintiff would provide most (if not all) of his monthly income (the “Income”) to finance (the Property). The Income would also be applied to settle any repayment required under the Maritime Loan in the meantime;

(4) On the strength of these 4 sources of funds, a piece of land would first be acquired, and a 3-storey house would then be built upon it;

(5) After the Property was built, it would be mortgaged to a bank for a loan (the “Bank Loan”). The Bank Loan would be applied to repay the outstanding amount under the Maritime Loan and the remaining Initial Loans. All mortgage repayments of the Bank Loan would be settled by the Income.

(6) In light of the Plaintiff’s material absence from Hong Kong at sea, the Property would be registered in the name of the Deceased for convenience sake, not least because of the need to apply for various permits, approval and registration in acquiring and constructing the Property; and

(7) Despite the legal owner of the Property being the Deceased, the Plaintiff retain its beneficial ownership. The Deceased would transfer the legal ownership of the Property back to the Plaintiff in the future.”

12.The Plaintiff claims that it was in reliance on the Common Understanding that the Plaintiff, to his own detriment, borrowed a total sum of $147,500 from Maritime (ie the Maritime Loan), borrowed the Initial Loans of a total of $31,000 from his kinsmen and colleagues, and utilized almost the entirety of his Income to repay the Initial Loans and to pay for expenses of the Property, through Maritime or otherwise. The land for the Property was purchased in April 1975 at the consideration of $80,000, and construction costs of $132,000 were incurred. When construction of the house on the Property was completed, it was mortgaged to a bank for the Bank Loan of $130,000. The Bank Loan was made in the name of Father since he was the registered owner of the Property, and the Bank Loan was applied to settle the outstanding amount of the Maritime Loan and the remainder of the Initial Loans. The mortgage repayments were paid by Father, using funds provided by the Plaintiff, until the mortgage was discharged in November 1990.

13.The Plaintiff did not spend a lot of time at the Property due to the nature of his seafaring work, but he agreed to let Father, Mother and his 6 siblings live there, at a time when most of the Siblings were still very young and some were still attending school. It was not until 1989 that the Plaintiff took on land-based work at Maritime and commenced residing in the Property full time.

14.The Defence is made up of denials. Understandably, Father had passed away before the commencement of these proceedings, and the Siblings were not in a position to plead to Father’s intentions at the relevant time of the alleged Common Understanding.

15.The Defence sought reliance on the contents of a will purportedly made by Father on 12 January 2014 (“2014 Will”), by which he appointed 4^th Brother as the sole executor of the Estate, and divided the entire interest in the Property into 9 shares, with each of the 7 Siblings being assigned one share each, and the remaining 2 shares to form part of his Estate. The 2014 Will stated that from the Plaintiff’s one share in the Property, a sum of $1,044,000 had to be deducted, as reimbursement for 29 years’ of living expenses for Father and Mother, which the Plaintiff had failed to pay. The Defendant claims that the Plaintiff is only entitled to one-ninth of the Property, after the necessary deduction.

16.Similar deductions were sought to be made under the 2014 Will from the respective shares of the 3^rd Brother, 5^th Brother and 6^th Brother to the Estate.

17.The validity of the 2014 Will is disputed by the Plaintiff, and is the subject matter of separate proceedings.

18.Father had an earlier will made in May 2008, whereby he had appointed the 6^th Brother as executor and left his entire estate (without specific reference to the Property) to his 7 children in equal shares.

19.On behalf of the Plaintiff, Counsel emphasized that, apart from the bare denial of the Common Understanding trust asserted by the Plaintiff in the SOC, no positive case has been put forward by the Defendant.

20.The Common Understanding, the Maritime Loan, the Initial Loans and the Bank Loan are all denied in the Defence, but at paragraph 9 of the Defence, the Defendant claims that the Property had been purchased by the Father, after the Siblings and their Mother had all agreed to make contributions to finance the acquisition of the Property and the erection of the building(s) thereon. It is averred at paragraph 9.6 of the Defence that the Property was in fact bought by Father in April 1975 with money contributed by the Father, his wife and the Siblings. It was denied that the Plaintiff is entitled to any of the relief sought in the proceedings, but as Counsel for the Plaintiff sought to highlight, no relief is sought by the Estate, or by any of the Siblings, by way of counterclaim in this action. The case maintained by the Defendant at trial is that Father was the sole legal and beneficial owner of the Property.

Assessment of the evidence

21.All the Siblings have filed witness statements. There is of course no direct evidence from Father (who died in October 2017) in response to any of the assertions made by the Plaintiff, or in support of those made by the other Siblings.

22.The key events in this case occurred more than 50 years ago, in around 1975. The crux of the dispute between the parties concerns the nature and effect of certain informal arrangements or understanding said to have preceded the acquisition of the Property. These arrangements, made between family members, are largely undocumented and must therefore be established through the evidence of witnesses. The determination of the issues in this case must necessarily depend upon the Court’s assessment of the credibility and reliability of those witnesses and, ultimately, on the burden of proof. As the Court endeavoured to explain in earlier judgments (see for example Maxful Sail Limited v Yan Chung Wo Jeremiah [2024] HKCFI 2994, para 1):

“In litigation, he who comes to assert must prove his case and it is the Court which is tasked to ascertain, on a balance of probabilities, on the evidence available and on the case as pleaded, what is more probably the true version of facts. At times, reality may well be stranger than fiction, but the Court must decide what is objectively more reasonable and credible on any independent evidence as may be available, short of relying on the protagonists’ own self-interested and often biased assertions.”

23.With regard to assessing the credibility of witnesses, I bear in mind the following observations made by the courts, as summarized in the parties’ written submissions:

(1) In assessing credibility, the Court will consider the inherent probabilities and logicality in a party’s case, whether the party’s case is contradicted in a material way by other undisputed or indisputable evidence, and whether it is shown that a witness has been discredited over one or more matters to which he had given evidence using the above tests: Chan Pak Hung v Keung Lai Nor Winnie [2022] HKCFI 1264, paragraph 43.

(2) The Court will have regard to the witnesses’ difficulty in recalling clearly what had happened in relation to events that took place a long time ago, and the fact that their evidence may not be reliable, but not because they deliberately lied: Triunion (HK) Cereal & Oil Co Ltd v APAC Investment Holdings Ltd [2022] HKCFI 3326, paragraph 51.

(3) Memory may be fallible. If the relevant events had happened a long time ago, the Court will place more weight on contemporaneous documents: Chan Pak Hung v Keung Lai Nor Winnie [2022] HKCFI 1264, paragraph 45.

24.Determining what was said or agreed orally at a meeting which occurred many years before trial is problematic, because not only do memories fade, but even honest witnesses are prone to construct their memory of events to confirm their beliefs, prejudices, or interests. Pursuing a claim based on an oral agreement, understanding or a witness’s recollection of an event for which there is little, if any, corroborating documents, may be very difficult. The court does not have to choose who to believe. If it takes the view that the evidence is unreliable, it can decide the case on the burden of proof: Moorthy Selvaraj v Karupayee Ammal & Ors [2024] HKCFI 403, paragraphs 10 -13.

25.When the only other protagonist is not available to give evidence on his version of the relevant and disputed events, I have to bear in mind that the Plaintiff in this case, who is the only witness to give account of the alleged Common Understanding, has interest in the relevant transaction and that the Court should approach his claims with caution, bearing in mind the fallacy and unreliability of human memory (as reminded by the Court in Yu Man Fung Alice v Chiau Sing Chi Stephen [2020] HKCFI 2923, at paras 54 - 56). The Court should endeavour, at least, to test the Plaintiff’s one-sided evidence against whatever independent and contemporaneous evidence as is available, and of course, against plain common sense and inherent improbabilities.

26.I also bear in mind the very helpful guidance on assessment of evidence given by Leggatt J in Gestmin SGPS SA v Credit Suisse (UK) Ltd [2013] EWHC 3650 (Comm), which was actually referred to by Harris J in Moorthy Selvaraj. After referring to the reasons why memory of witnesses is fallible, Leggatt J explained:

“In the light of these considerations, the best approach for a judge to adopt in the trial of the commercial case is, in my view, to place little if any reliance at all on witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts. This does not mean that oral testimony serves no useful purpose -though its utility is often disproportionate to its length. But its value lies largely, as I see it, in the opportunity which cross-examination affords to subject the documentary record to critical scrutiny and to gauge the personality, motivations and working practices of a witness, rather than in testimony of what the witness recalls of particular conversations and events. Above all, it is important to avoid the fallacy of supposing that, because a witness has confidence in his or her recollection and is honest, evidence based on that recollection provides any reliable guide to the truth.”

Issues in dispute

27.In deciding whether the Plaintiff is the beneficial owner of the Property, as he claims to be, the essential issue is whether the Plaintiff and Father had made an oral agreement, or shared the Common Understanding, in relation to the acquisition of the Property in 1974/1975. The Plaintiff claims that it was in reliance on such understanding that he had acted to his detriment, by making all the contributions by way of payments to finance the purchase of the Property, the construction of the building(s) on the Property, and the repayment of the loans with his salary (or Income, as defined in the SOC).

28.If there was a Common Understanding, then the Property would be held by Father, the registered owner, on constructive trust for the Plaintiff, as the Plaintiff claims, and the Plaintiff seeks an order for the Estate to transfer the legal interest in the Property to him. As Counsel for the Plaintiff pointed out, the Defendant has not made any counterclaim in these proceedings, that the beneficial interest in any part of the Property should be vested in any party other than the Plaintiff.

29.The parties accordingly agree that the issues for determination at trial are: whether there was the oral agreement and/or Common Understanding as alleged by the Plaintiff in around 1974/1975, whether the Plaintiff had acted to his detriment in reliance on the alleged Common Understanding, whether the Property is held by the Estate on constructive trust or resulting trust for the Plaintiff, and alternatively, whether the Estate is estopped from disputing the Plaintiff’s beneficial ownership of the Property.

Legal principles

30.The applicable legal principles for determination of the issues are not in substantial dispute in these proceedings.

31.The starting point is that beneficial ownership follows legal ownership, and the onus is vested upon the Plaintiff in this case to show that the beneficial ownership in the Property is different from the legal ownership which is registered in the name of Father (Lam Kwok Hing v Lau Ha [2025] HKCFI 1354 at para 42 (3)).

32.Counsel for the Plaintiff referred to the Court of Appeal’s decision in Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, where the two situations giving rise to a common intention constructive trust were described:

“ “2.3 The first situation where common intention constructive trust may arise is where at any time prior to acquisition, or exceptionally at some later date, there is an agreement, arrangement or understanding reached between the parties on how the property is to be held beneficially.

2.4 The second situation is where there is no evidence to support a finding of an agreement or arrangement on the beneficial ownership of the property and the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention on the beneficial ownership of the property and as the conduct relied on to give rise to a constructive trust. In this situation, direct contributions to the purchase price by the party who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. See the judgment of Lord Bridge of Harwich in Lloyds Bank Plc v Rosset [1991] 1 AC 107, 132.” (emphasis added)

27. In Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 [P#3] at paras 46-50, G Lam J (as G Lam JA then was) further elaborated on the elements of CICT: -

“46. The focus of the inquiry is therefore on the elements that the plaintiff has to prove in order to establish a constructive trust in his favor. In the context of this case, this means that the plaintiff must prove: (a) there was a common intention between him and the defendant that the plaintiff was to be the beneficial owner of the Property despite that it was acquired in the defendant’s name; (b) the plaintiff altered his position in detrimental reliance upon such common intention; and (c) it is unconscionable for the defendant to assert ownership in reliance on her legal title to the Property.

47. In ascertaining whether there was a common intention, it is the objective intention of each party ‘which was reasonably understood by the other party to be manifested by that party’s words and conduct’ that one must examine: Gissing v Gissing [1971] AC 886, 906; Jones v Kernott [2012] 1 AC 776, 794 [51].

48. In the present case it is the parties’ common intention at the time of the acquisition of the Property that is relevant, there being no suggestion from anyone that the intention had changed.

49. Such intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the property concerned based on evidence of express discussions. It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention: Lloyds Bank Plc v Rosset [1991] 1 AC 107, 132-133.

50. Even where, as in this case, reliance is placed on an express agreement, arrangement or understanding between the parties, their other conduct remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested.” (emphases added)”

33.In its attempt to ascertain the parties’ intention, the Court is to adopt an objective and holistic approach, taking into account the whole course of conduct of the parties, and bearing in mind that a domestic context is very different from a commercial one (paras 42 (1)-(2), Lam Kwok Hing v Lau Ha).

Dispute as to Common Understanding/oral agreement

34.The Defendant denies that there was ever any oral agreement or Common Understanding as alleged by the Plaintiff. None of the Siblings has claimed, however, that they were privy to the Plaintiff’s own discussions with the Father, or to the fact that the Plaintiff, their eldest brother, had for years transferred nearly all his Income as a seaman to Father, and none of them could give any evidence as to Father’s plans for the Property, and how he had financed the purchase of the Property and the construction of the buildings thereon.

35.From the evidence, it would appear to be quite clear that this was a patriarchal and traditional Chinese family. Father made the decisions for the household and all the Siblings’ evidence is that they were happy for him to do so and had never questioned him as to how matters should be run and decided. The evidence (including the testimony of the 3^rd Brother and the 4^th Brother) further suggests that Father was not in the habit of consulting, and did not consult, his children before making financial decisions for the family. After all, at the relevant time in 1974/1975, apart from the Plaintiff who was the eldest, the other Siblings were only in their early twenties – and in particular, 4^th Brother was only aged 20, 5^th Brother 18, and 6^th Brother and 7^th Sister were in their teens and attending school.

36.In the 1960s and 1970s, Father worked in the Shek Kong barracks as a “room boy”, with a monthly income of around $300. At the same time, he and Mother sold tea and did the laundry for the British soldiers at the barracks, to earn extra money to support his family. In 1966, Father set up a company (“Chen’s”) to sell sundry products in a small shop (“Shop”). 2^nd Brother, 3^rd Brother, 4^th Brother and later 7^th Sister worked or helped out at the Shop at different times. This humble family business made a modest income which was again used to pay for the family’s expenses.

37.The evidence of all the Siblings is that throughout the years, they had each agreed to pay (and did pay) family expenses (“家用”) to Father, for housekeeping, in respective sums each could afford, to help with Father’s maintenance of and provision for the whole family. Apart from the Plaintiff, the Siblings’ evidence is clear, that the money they paid to Father was for Father’s use, at his discretion, for the family.

38.It was argued for the Estate that the Plaintiff’s payments, or the contributions made from the Plaintiff’s salary to Father was of the same nature – for the family’s maintenance and housekeeping, rather than for the specific use of buying the land and constructing the house, and that the Plaintiff’s payments to Father did not mean that the Property was his.

39.It is pertinent that no counterclaim is made by the Defendant for the Estate, or by any of the Siblings, for any specific share of the interest in the Property according to the actual contributions made by any particular sibling, or by Father, towards payment of the purchase price of the Property, its upkeep, or the mortgage repayments. The Defence pleads (at paragraph 9.4) that the Father’s idea was to buy a property “such that all his family can have their own house to live in without renting it from others”. Counsel for the Plaintiff submitted that this was an assertion that the entire family had beneficial interest in the Property. However, 4^th Brother, who is also the Defendant representing the Estate, claims in his testimony that the Property belongs to Father entirely, to be apportioned or divided by Father in accordance with his sole wishes (as reflected in his will).

40.The essential difference in the Plaintiff’s payment and the Siblings’ payment of maintenance to Father is that, according to the Plaintiff, there was an oral agreement or Common Understanding made between the Plaintiff and Father, before the Property was purchased in 1975, that the Plaintiff’s payments from his salary were made to and transferred to Father in accordance with and in reliance on the terms of the oral agreement and the Common Understanding reached between them. In short, under this Common Understanding, all the Plaintiff’s payments to Father were for the purchase of the Property and the construction of the house on the Property, and the Plaintiff would personally assume the liability to repay the Maritime Loan and the other loans obtained from the kinsmen, and would repay these loans from his own income. It was on such Common Understanding that the Property was bought and registered in Father’s name, to facilitate Father’s dealings in the Property during the Plaintiff’s absence on the high seas, but that the Property was to be owned beneficially by the Plaintiff. The Plaintiff’s payments to Father were pursuant to this Common Understanding and oral agreement, and were not for Father’s or the family’s general maintenance or general living expenses, but the Common Understanding was that the entire family could reside in the Plaintiff’s Property.

41.In the absence of any evidence from Father, I of course have to decide whether the Plaintiff’s unilateral account of the Common Understanding can be believed. The Plaintiff’s evidence has to be weighed against any corroborative evidence from independent witnesses, and tested against the contemporaneous documentary evidence, and any other undisputed or indisputable evidence as may be available.

42.Counsel for the Defendant criticized the Plaintiff’s memory of events as being unreliable, the Plaintiff himself admitting in cross-examination that he could not recall the details of what had been spoken decades ago. Counsel’s criticism, if valid and justified, would apply to all of the witnesses who have given evidence in this case. Since the events recounted by all of the witnesses took place in the 1970s, which is over 50 years ago, it would in fact be incredible if any witness could give a clear, verbatim account of all the discussions that had allegedly taken place. A witness’s difficulty in recounting all the minute details of any discussion cannot be taken against them as showing that their evidence is either untrue, or completely unreliable.

43.Overall, having considered the Plaintiff’s evidence and heard his testimony in court, I find him to be an honest and credible witness. His evidence on his work and his income, and how the substantial bulk of his monthly salary and bonuses (at times amounting to 80 to 90%) was transferred to the bank account in Hong Kong managed and operated by Father, is evidenced by historical records and documents which emanated from Maritime. The “Seaman’s Voluntary Allotment Application”, with the dates and amounts of the Plaintiff’s monthly wages, and the monthly amounts to be paid over to the account of the nominee specified (Father), are examples of the evidence. These show the Plaintiff’s standard form of instructions to Maritime, to make the “monthly home allotment” to Father of the sums of money, to be deducted from the Plaintiff’s monthly wages payable by Maritime to him, for the period from January 1968 to as late as January 1988. The payments made to Father, and deducted from the Plaintiff’s salary from Maritime, ranged from the original amounts of $200 in 1968, to $10,000 in 1988, the transfers being at least over 80% to over 90% of the Plaintiff’s monthly salary and bonuses. This was during the period when the Plaintiff was working on the high seas, making voyages which usually lasted for a whole year, and could only return to Hong Kong for limited periods of time in the year.

44.These records (up to at least 1988) of the Plaintiff’s transfers of almost the entirety of his monthly income to Father make it surprising for Father to state, in the 2014 Will, that over $1 million should be deducted from the Plaintiff’s share under Father’s will, on the stated ground that the Plaintiff had failed to pay any of Father’s living expenses for 29 years (ie from 1985). It may be some support of the fact that Father had understood that all of the payments made by the Plaintiff to Father in 1985 and up to 1988 (as evidenced by the Allotment Application for these years) were not for Father’s living expenses, but for the funding of the purchase and mortgage repayments of the Property, in which Father had no share.

45.The Plaintiff’s account of and evidence on his agreement and understanding with Father in 1975 as to the purchase of the Property is, in my judgment, very credible. As the Plaintiff explained, he was in 1975 making sea voyages which meant that he only spent less than 60 days on the shore in a year. During that time, the only means of communication between the Plaintiff and Father would have to be by cable. It would certainly make sense, for him to appoint Father to act in his name and on his behalf to deal with formalities and documents on land during his absence. His brothers were all young and it was natural for him to make Father his agent and trustee, to receive the monthly salaries from his work at Maritime, and to authorise Father to deal with and manage the money sent by the Plaintiff for the Property, in such manner as Father thought necessary.

46.The Plaintiff explained that when Mr Chen approached him and offered to help in the acquisition of a property, it was because of the fact that the Plaintiff was considered by Mr Chen to be a trusted employee with a promising and long-term future with Maritime, and also because Mr Chen wanted to help the Plaintiff to improve his living conditions. Maritime was prepared to extend the loan to the Plaintiff, obviously because it had the assurance that repayment of the Maritime Loan could be made from the salaries payable by Maritime to the Plaintiff.

47.The Plaintiff explained that, when he informed Father of Mr Chen’s offer, of extending financial assistance in the form of the Maritime Loan, to enable the Plaintiff to buy a piece of land to build a bigger house for the Plaintiff and his family, Father was at first skeptical and reluctant to agree to the proposal. The Plaintiff pointed out that at that time, Father was only making a meager income from his job at the barracks, and sales from the Shop were only around several hundred dollars a month, which could barely make ends meet for the family, let alone afford any repayment of loans for the Property. Father was accordingly not confident that he would be able to repay the Maritime Loan himself.

48.At the relevant time, in 1975, the Plaintiff’s monthly income at Maritime was $4,500. He envisaged that he could save more than 80% of his salary, and could utilize around $4,000 each month to repay the Maritime Loan. Providing for a total expenditure of around $200,000 to purchase the land for the Property and to construct a building thereon, the Plaintiff envisaged that he could repay the Maritime Loan in 50 months, slightly over 4 years. The Plaintiff thought that as the eldest son, he had the responsibility to take care of his siblings, and he was happy to purchase a property, with himself contributing fully to the purchase price, to house the entire family. It is clear from the Plaintiff’s evidence that this was his original intention.

49.The Plaintiff explained that with his income from Maritime and the prospect of a long-term employment with Maritime, the Plaintiff considered that he was financially capable of repaying the Maritime Loan and funding the acquisition of the Property with his monthly salary.

50.On the above basis, the Plaintiff suggested to Father in 1975 that he would personally take up the loan offered by Mr Chen, and be responsible to repay it with his monthly salary. The Plaintiff also explained that as he already had the habit then, of saving and sending most of his salary to Father, it had demonstrated to Father that the Plaintiff was indeed able to make enough money and to shoulder the repayment of the Maritime Loan, to finance the purchase of and the construction on the Property. Father therefore agreed to the Plaintiff’s proposal.

51.The Plaintiff’s evidence therefore is that in around January 1975, he and Father orally agreed to the following for the purchase of the Property:

(1) The Plaintiff would accept Mr Chen’s offer, to take out the Maritime Loan. The Plaintiff explained that at the material time, it was not possible to obtain a bank loan to buy land, since banks only offered mortgage loans when a property had been built on the land. Hence, it was not possible to simply obtain a bank loan for the purchase of the Property in 1975, and to pay for the acquisition under a mortgage.

(2) The Plaintiff would be the one solely responsible to repay the Maritime Loan, since such repayment could be made from his salary at Maritime. The Plaintiff explained that it was in fact unrealistic to include Father in the application for or in the repayment of the loan, since Father did not have any financial ability to help with the repayment.

(3) The amount of the Maritime Loan had not yet been agreed between Mr Chen and the Plaintiff, and it was envisaged that some further loans might have to be obtained from the kinsmen and from the Plaintiff’s colleagues, but it was agreed that because of the Plaintiff’s financial ability, these loans would be made in his name and he would be the one responsible for repayment.

(4) The Plaintiff would continue to allot almost all of his salaries and bonuses to Father, for the purchase of the Property and the construction thereon.

(5) Because the Plaintiff was always away on sea voyages, and each voyage usually lasted for over a year, it would be too troublesome if the Property was to be registered in the Plaintiff’s name, as he could not be in Hong Kong to apply for the different permits, approval or registrations for the Property and construction thereon in person. It was therefore agreed between Father and the Plaintiff that the Property would be registered in Father’s name, but solely for convenience. It was expressly agreed that since the Plaintiff was the one making full contribution to the payment of the Property, the beneficial ownership would be vested in the Plaintiff, and not Father, although it was understood that as the eldest son, the Plaintiff would take care of his siblings and allow them, Father and Mother, to stay in the Property.

(6) Once the house on the Property was built, it would be mortgaged to a bank to obtain a loan, which would then be applied immediately to repay the Maritime Loan and the Initial Loans from colleagues and kinsmen. Thereafter, the Plaintiff would repay the mortgage loan with his own salary, via Father.

(7) Because the Property was to be registered in Father’s name, it was agreed that the mortgage would also be taken out in Father’s name, although the Plaintiff would be the one responsible to discharge the mortgage loan.

52.The Plaintiff’s assertions and evidence are credible, and largely consistent with the contemporaneous documents. His case also accords with common sense to be very probable.

53.The Plaintiff’s monthly remittances to Father whilst he was at sea are largely substantiated by the “Seamen’s Voluntary Application” forms for the period from October 1970 to January 1988. The fact that such records as were available at trial were retained is fortuitous and invaluable, and it is not surprising that, due to the lapse of time, these records may not be a complete or full set of the ancient documents. The Defendant highlighted the fact that some of the documents did not bear the signatures of Maritime’s personnel under either the “Approved” or “Entered” columns, but I do not place much significance on this as the documents produced were the carbon copies retained by Father/the Plaintiff, and the original documents kept by Maritime may have been signed. Only 2 documents (for June 1973 and June 1980) did not bear signatures in both the “Approved” and the “Entered” columns. Even if the amounts involved, of $1,600 and $7,500, were to be excluded (and I am not persuaded that they should be), they would have insignificant impact on the overall scheme and amounts of the payments made by the Plaintiff to Father. The Plaintiff’s evidence on his monthly allotment of wages to Father is corroborated by Young’s evidence, which is dealt with below.

54.The Plaintiff’s documents also include the record of Father’s signatures of receipt of the allotments of income made by the Plaintiff to Father for the period from March 1968 to March 1970, and from November 1970 to January 1972, in support of the Plaintiff’s claims that even before 1974/1975, he had been making payments of his income from Maritime to Father, and that by the time of the acquisition of the Property in 1974/1975, Father should have accumulated an amount from such receipts.

55.The Plaintiff further produced in evidence a notebook compiled by Father which recorded his finances from 14 March 1975 to 3 March 1977 (“Notebook”). The Plaintiff claims that when he returned to work on land in about 1989, Father had shown him the notes he had kept of the money received from the Plaintiff and of the expenditure made by Father for the Property, together with the bank books which recorded the bank balances of the money received from the Plaintiff. According to the Plaintiff, Father told him then that the Plaintiff’s money was “still there”, and gave the Notebook to the Plaintiff for safekeeping. According to the Plaintiff, there were other notebooks and records compiled by Father for the period after March 1977. After the commencement of the present proceedings, the Plaintiff was also able to locate from the residence at the Property the Profit and Loss Statements of Chen’s, for the years ending 31 March 1975, 31 March 1976, 31 March 1977 and 31 March 1978 (“Accounts”). The Notebook and the Accounts have been referred to at trial, and are relied upon by the Plaintiff to support his case that all of the funds for the purchase of the Property, the construction on the Property and the repayment of the Mortgage Loan for the Property emanated from the Plaintiff, with the Plaintiff’s salaries and bonuses as the source of all the payments.

56.Apart from the evidence of the Plaintiff’s income and Father’s receipt of the Plaintiff’s salaries, there is no other evidence to show that Father himself had any savings or substantial income in 1975. Counsel for the Plaintiff relies on the Accounts to show that for the years from 1973 to 1978, the annual net profit of Chen’s (which operated the business of the Shop) had been in the range of $2,814 to $3,956, giving a range of $200 to $300 per month as net profits. The Accounts record “salaries” paid (to unidentified persons), in amounts ranging from $9,600 to $12,000 per year. The evidence is that 2^nd Brother, 3^rd Brother and 4^th Brother had worked in the Shop at different times, and had received pocket money from Father of $200 to $300 per month. Even assuming that the recorded “salaries” of Chen’s had all been paid to Father, that would only mean that Father had a monthly salary from Chen’s which ranged from $800 to $1,000 per month.

57.Apart from any income from Chen’s, there would only be Father’s salary as a room boy, which does not appear to be substantial although there is no direct evidence as to how much it was.

58.The Defence relies on Chen’s business as being Father’s principal source of income, and the bare allegations made by the 4^th Brother and the 7^th Sister are that Chen’s and Father made much more money than as reflected in the Accounts. Such claims are based on their mere speculation, as none of the Siblings purport to have any direct or personal knowledge of the income and expenditure of the Shop, or of Chen’s, and there is no evidence at trial which can show Father’s substantial income. According to 2^nd Brother, it was Father’s practice to make and keep a clear record of his purchases, loans, and other important matters, and there is no reason why the Accounts and the Notebook would not reflect the entire record of Father’s income and receipts. It was mere speculation on his part, to claim that the figures in the Accounts had been “made up” to make them smaller, to avoid payment of tax. 2^nd Brother admitted that this belief of his was not based on anything Father had told him.

59.Even 4^th Brother had to admit in cross-examination that he was aware that Father had to seek loans from others in the 1960s and 1970s in order to make ends meet for the family. Despite claiming that it was Father who had purchased the Property himself, 4^th Brother had no knowledge at all as to the costs of purchasing and building on the Property at the time, to be able to maintain that Father had the means to do so.

60.Likewise, when 7^th Sister asserted her belief that Father had the financial capacity to purchase the Property in 1975, and that the recorded “net profit” of Chen’s excluded salaries paid to Father, it was only her surmise and belief that Father had financial means in 1975, as she admitted that she had no knowledge whatsoever of the Maritime Loan which had been made on the basis of the Plaintiff’s employment by Maritime, and which was used to acquire the Property. She was only 12 or 13 years of age at the material time. I do not find 7^th Sister to be a convincing or reliable witness, as she was not only speculative but argumentative in giving evidence and was keen to advance her own opinions and beliefs regardless of any factual bases.

61.3^rd Brother’s evidence is that the income of Chen’s was “petty”, and that Chen’s only operated a small scale family business. Chen’s Accounts certainly support 3^rd Brother’s evidence in this regard. The evidence of the Plaintiff and of 3^rd Brother is that because of Father’s small income, Father and Mother had to borrow money from friends and relatives in order to make ends meet. According to 3^rd Brother, it was only after the Plaintiff started working at Maritime, and contributed his income to the family, that the family’s financial situation was alleviated. 3^rd Brother’s evidence is that the family of 9 could barely make ends meet with Father’s income only, and without the Plaintiff’s contributions. Having witnessed the Plaintiff’s successful career, 3^rd Brother also joined Maritime in 1976 as a radio cadet.

62.As for the contributions made by the other Siblings for the maintenance of Father and the family around and shortly after 1975, these were only small amounts. On the evidence of 2^nd Brother, 3^rd Brother and 4^th Brother, they were helping out at the Shop at the relevant time around 1975, and only received small sums of pocket money from Father, instead of being in a position to pay for or contribute in a meaningful way to the family’s expenses. According to 5^th Brother, he gave Father about $200 per month in 1975 from his salary of $350, working at a department store. The Siblings also earned around $210 per month by making plastic flowers and watch straps at the relevant time, in 1975.

63.The Property was purchased in March/April 1975. The Maritime Loan was drawn down in April 1975. The family residence on the Property was constructed in 1977, and after construction, the Property was mortgaged to the Bank in December 1977 in exchange for the Bank Loan of $130,000. It was not in dispute that the mortgage repayments were around $1,000 per month. The mortgage was released in November 1990 after full repayment.

64.The Notebook records the payments received and made by Father at the material time from March to June 1975, and until 1977.

65.Disposing first of the payments Father received from the Plaintiff and the Siblings during this period, there were the following records: $2,215.20 from the Plaintiff on 17 March 1975; $3,500 from the Plaintiff on 20 March 1975; $3,000 from the Plaintiff on 1 May 1975; $2,000 from the Plaintiff on 12 May 1975; $4,600 from the Plaintiff on 2 June 1975; $4,600 from the Plaintiff on 6 July 1976; $200 received from 3^rd Brother on 2 June 1976; $200 from 3^rd Brother on 6 July 1976; $200 from 5^th Brother on 28 July 1976; $4,800 from both the Plaintiff and 3^rd Brother on 3 August 1976; $5,000 from the Plaintiff on 16 August 1976; $450 from 4^th Brother on 21 August 1976; $4,800 received from the Plaintiff and 3^rd Brother on 1 September 1976; $13,743 from the Plaintiff on 22 September 1976; $500 from 4^th Brother on 20 September 1976; $400 from 5^th Brother on 26 September 1976; $400 from 4^th Brother on 7 October 1976; $600 from 4^th Brother on 22 October 1976; $700 from 4^th Brother on 25 October 1976; $3,000 from the Plaintiff on 29 October 1976; $400 from 4^th Brother on 22 November 1976; $2,949.90 from the Plaintiff on 18 November 1976; $300 from 5^th Brother on 25 November 1976; $200 from 3^rd Brother on 2 December 1976; $300 from 4^th Brother on 21 December 1976; and $300 from 5^th Brother on 24 December 1976.

66.As the Plaintiff pointed out, the contributions from 3^rd Brother, 4^th Brother and 5^th Brother only commenced in June, August and July 1976 respectively.

67.For 1977, there were also records of Father’s receipt of a total sum of $400 from 3^rd Brother, $10,000 from the Plaintiff, $600 from 4^th Brother, and $300 from 5^th Brother in January 1977; and further receipts of $10,000 from the Plaintiff, $400 from 3^rd Brother and $400 from 4^th Brother in March and April 1977.

68.It is clear from the Siblings’ evidence that they had given money to Father, to pay for or contribute to the family expenses. They were clear in their evidence that the money was given to Father for his support, to be spent by Father as he wished, for whatever purpose he considered appropriate. The claim is that they had agreed with Father “to support him”. There was no agreement or understanding that the contributions made by the Siblings were for the purpose of the acquisition of the Property or the financing thereof. This is in contrast to the Plaintiff’s case, that his payments in and after 1975 were made to Father on the basis of and in reliance on their oral agreement and Common Understanding, that the Property was to be purchased with the Plaintiff’s money, and that the Property was to be held in Father’s name only for convenience.

69.As pointed out in the earlier part of this Judgment, the contributions made by the Plaintiff represented almost the entirety of his income from Maritime. As a matter of common sense, it is not likely or probable that the Plaintiff would pay his income almost entirely to Father, without any understanding at all that the Plaintiff would have the beneficial interest in the Property to be purchased and financed by the Plaintiff’s contributions. I believe the Plaintiff, that he had done so under the Common Understanding, and that he had acted to his detriment when he paid over his income to Father over the years, in the belief that the Property would be held by Father on trust for him, in accordance with their oral agreement and understanding.

70.I have reviewed the Notebook entries for March and May 1975, and the Plaintiff’s evidence, and I accept the Plaintiff’s explanation for how the purchase price for the Property was paid, from the money received by Father from the Plaintiff. In essence, the funding comprised the Maritime Loan, and the Initial Loans from kinsmen and the Plaintiff’s colleagues (with the Plaintiff’s promises to repay).

71.The Defendant relies on the fact that the Notebook records that the initial expenditure for payment of the purchase price of the Property included a deposit of $10,000 which the Defendant claims should have come from Father’s own funds, and further, that the Notebook records a total sum of $11,145 as having been paid by “self”, which the Defendant says refers to Father himself and the contribution made by Father personally. On that basis, the Defendant claims that even on the records made in the Notebook, Father had contributed to the purchase of the Property. This is consistent with other records in the Notebook, of sundry receipts (of around $5,500 in total) stated to be Father’s salaries or receipts from Father in 1976 and 1977.

72.Although the Notebook had on the cover a notation of “House Construction”, and a notation of “Lot 642 DD 106” on the first page (which page recorded the receipts and payments for the Property from 14 March to 10 May 1975), it is fair to say that upon reviewing all its contents, the Notebook should be described as a record of Father’s general income and expenditure, and not just for the Property. In other words, the Notebook does not only record payments and receipts which were for the purchase of and construction on the Property. The expenditure recorded includes, for example, rent paid for the Shop (which was not on the Property), expenditure made on gifts to relatives, items purchased for the residence, purchase of a watch for 2^nd Brother, entertainment expenses for meals and drinks, donations to the Church, etc. Overall, and objectively considered, the Notebook shows that the recorded contributions made by the Siblings and by Father (from his alleged personal income) were for the purposes of these general living expenses of the family.

73.In relation to the Notebook’s recorded payments and receipts from 14 March 1975 to 10 May 1975, the Estate relies on the fact that there were sums of $2,500, $2,000 and $6,645 stated to have been deposited by Father (“self” (自己)), which indicate that Father had contributed the total sum of $11,145 from his own funds for the purchase of the Property. The Estate also referred to the fact that there was a recorded payment of deposit in the sum of $10,000, which was not stated as having been received from the Plaintiff or Maritime.

74.In the absence of any evidence as to Father’s income in and before 1975, I accept the Plaintiff’s evidence, that the initial deposit of $10,000 and the sum of $11,145 were also sourced from the Plaintiff, from remittances made by the Plaintiff to Father before March 1975, out of his income. According to Maritime’s Allotment Application Receipts, Father had received at least $3,000 from the Plaintiff between April 1968 and June 1969, and at least $11,200 from the Plaintiff between November 1970 and January 1972. On the Plaintiff’s evidence, the $10,000 was paid from the savings made from his remittances sent to Father, consistent with the oral agreement and Common Understanding that the purchase price of the Property was to be paid with the Plaintiff’s money and salaries sent to Father.

75.Even if Father had other income during this period, in light of the Plaintiff’s assurances to father that he would be bearing the responsibility for the costs of the Property acquisition, and the oral agreement and the Common Understanding which I accept was made between the Plaintiff and Father, it is more probable than not that when the initial payments were made for the Property in 1975, Father would have first utilized the Plaintiff’s funds then kept with Father, and kept any of his own funds for the other needs of the family’s daily living. As Counsel for the Plaintiff highlighted, the Plaintiff had entrusted his earnings to Father, and had given Father a free hand in deciding how to utilize the money the Plaintiff had transferred to him, in the management of the Property and for whatever expenditure as was required for the purchase and construction of the Property and the discharge of the Maritime, Initial and Bank Loans.

76.There is no dispute that the initial payments for the purchase of the Property in April and May 1975 were partly funded by the Initial Loans. However, on the Plaintiff’s evidence, these were extended by the Plaintiff’s colleagues and by the kinsmen, on the promise that the Plaintiff would be making repayment from his salary. They were indeed repaid when the Bank Loan was obtained.

77.As the Defence pointed out, the mortgage repayments were only around $1,000, and the Mortgage was discharged in November 1990. Whereas it is the Plaintiff’s evidence and case that the mortgage repayments were financed by his salary transferred to Father, there is no other evidence from the Estate or the Siblings to show how the repayments had in any way been contributed or paid for by Father, or by any other Sibling. Nor is there any document which can suggest that Father had the means and the funds to pay for the mortgage instalments from 1977. Even if the Siblings had made any form of regular monthly payments to Father, they admit that these were paid as contributions for the family expenses, and were not for any specific purpose of financing the purchase of the Property or the mortgage repayments. They only served to alleviate Father’s financial burden, while the Plaintiff on his part assumed the burden and responsibility of financing the Property acquisition and the repayment of the Maritime Loan, the Initial Loans and the Bank Loan.

78.On the Siblings’ own evidence, Father never told them how the purchase money for the Property was obtained and paid for, and never discussed with them nor informed them of aspects relating to the title to or ownership of the Property.

79.3^rd Brother’s evidence is that he had on many occasions heard Father saying to the Siblings that the Plaintiff had contributed entirely to the purchase of and the construction on the Property with the help of the Maritime Loan, and that the Property belonged to the Plaintiff solely. According to 3^rd Brother, Father had said that the Plaintiff was a good role model, and that the Siblings should be like him, and take care of the family. According to 3^rd Brother, Father had said the same thing to friends and relatives, that the Property had been built with the Plaintiff’s money, that it was the Plaintiff’s property, and that the Plaintiff was a good son, in taking care of the whole family and allowing all of them to stay in the Property whilst he worked hard at sea.

80.When 3^rd Brother joined Maritime in 1976, the captain of the ship had said to 3^rd Brother that he had heard from Mr Chen, that the Plaintiff had obtained a loan from Maritime and had built a large property. According to 3^rd Brother, when this captain was on land, he went to visit 3^rd Brother and to view the Property, accompanied by his wife and 2 other employees of Maritime. On that occasion, Father had proudly told everyone that the Property had been built with the Plaintiff’s salaries, and that the Property would be transferred back to the Plaintiff. 3^rd Brother claims that Father had repeated this later, in the presence of Mother, 7^th Sister and 3^rd Brother.

81.3^rd Brother has a share to the Property if Father’s 2014 Will should be given effect to, and Counsel for the Plaintiff submitted that the Court should give credence to 3^rd Brother’s evidence which supports the Plaintiff’s case in this action but is prejudicial or detrimental to 3^rd Brother’s own interests under the 2014 Will. I agree that 3^rd Brother’s evidence is more objective and reflective of the realities of the case.

82.3^rd Brother’s evidence is corroborated by that of one Madam Wong Lee Yun Chun (“Wong”). She was the Plaintiff’s primary school classmate, and had visited the Plaintiff at the Property more than once, since 1978. During her visit, and in the presence of other former classmates of the Plaintiff and their respective spouses, Father had proudly said to Wong and the others present that the Property had been purchased and built with funds obtained by the Plaintiff from his company, and referred to the Property as the Plaintiff’s.

83.The Siblings’ evidence, that Father had looked at various properties in 1975 and had informed the Siblings that he would be purchasing a house for the family to reside in without having to rent, does not contradict the existence of the Common Understanding or agreement with the Plaintiff. That was what the Plaintiff had been persuading Father to do, but with the assistance of the Maritime Loan, which would be repaid by the Plaintiff with his salary, and on the Plaintiff’s understanding with Father that the Property would be purchased in Father’s name for convenience only.

84.Young of Maritime also gave evidence in support of the Plaintiff’s case, that the Property had been purchased and built utilizing the Maritime Loan extended by the company. Despite the events having taken place more than 4 decades ago, Young explained that he could specifically remember special features of the loan arrangement, because in his 30 years of working with Maritime, he had never seen an employee taking out a loan with Maritime, in the way the Plaintiff did. Young was present when Mr Chen and the Plaintiff discussed and agreed on the terms of the Maritime Loan, which was extended to the Plaintiff personally, so that he could purchase land and build a property on the land for himself and his family. Since Mr Chen had high regard for the Plaintiff as his employee, the amount of the loan and the terms of payment were flexible, and the Plaintiff could choose to set off the loan with his salaries and bonuses. Young explained that he was very impressed as the Plaintiff was able to repay the Maritime Loan in less than 2 years’ time, and after the building on the Property was completed, Mr Chen had recommended to the Plaintiff a manager working at the Overseas Trust Bank, to arrange for and to facilitate obtaining the mortgage on the Property.

85.Young confirmed in his evidence that he was responsible for the financial matters of Maritime, and in particular, the home allotment of employees’ salaries. On Young’s evidence, even before the Maritime Loan, the Plaintiff had been allotting almost 80% of his salaries and bonuses to his family, on which Young had assisted. He signed off on the Plaintiff’s home allotment forms, and would also keep track of the amounts of the Maritime Loan drawn out and repaid. On Young’s evidence, after the Plaintiff had taken out the Maritime Loan, he had allotted 100% of his salaries and bonuses to his father. Young recalled that it was extremely rare for an employee to allot his entire salary home, without keeping any cash at sea, which was what the Plaintiff did.

86.Counsel for the Plaintiff highlighted the fact that Young and Wong are independent witnesses who have no interest in the outcome of the litigation, and submitted that their evidence should be accepted by the Court.

87.The Plaintiff’s wife (“Lam”) also gave evidence, claiming (amongst other things) that prior to her marriage, Mr Chen of Maritime (who knew Lam’s father) had praised the Plaintiff and his work performance, and had informed Lam’s father (inter alia) that the Plaintiff was the owner of the Property which he had purchased with the Maritime Loan. Lam also claimed in her evidence that both Father and Mother had given assurances to her parents, before her marriage, that the Property was the Plaintiff’s and that Lam would be well taken care of. She attested to the fact that Father had shown the Plaintiff a notebook of the finances for the Property, and had said that the notebook would show that the Property had been purchased with money from the Plaintiff. I refer to Lam’s evidence but do not consider it to be material to my findings and conclusion.

88.From their testimony in Court, the Siblings (with the exception of 3^rd Brother) deny the Plaintiff’s entitlement to the Property and his contributions made to the acquisition of the Property, since they had no knowledge whatsoever of the circumstances of the Maritime Loan and the remittances made by the Plaintiff to Father from his salaries over the years. Even at trial, they maintain that they did not know of the Plaintiff’s case, nor of the documents on which the Plaintiff relies. This is surprising, given the evidence filed in the course of the litigation and made available to the Defence before trial, and is regrettable.

89.The Siblings seem to rely on the fact that the Plaintiff had not asserted or taken any action to claim the Property as his, prior to 2020. The Plaintiff had allowed Father, Mother, and the Siblings to reside at the Property, even after the Plaintiff returned to work on land in 1989.

90.On the Plaintiff’s case, it was part of the Common Understanding with Father that he would allow the Siblings to live in the Property together with Father and Mother. This is scarcely surprising for a traditional Chinese family, the Plaintiff being the eldest son.

91.The Plaintiff got married in 1986, and in 1989, he worked on land-based jobs of Maritime. According to the Plaintiff, he only stopped allotting the substantial part of his salaries to Father after February 1989, when his wife and son moved from Shanghai to Hong Kong to reside on the Property. Thereafter he only paid $3,000 per month to Father for his living expenses.

92.In October 1990, the Plaintiff asked Father to transfer the legal title in the Property back to himself. Father refused, and there was an incident during which the Plaintiff’s wife was said to have been assaulted. This led to the Plaintiff moving out of the Property with his family.

93.It was only after Father’s death in October 2017, and the Plaintiff’s discovery of the 2014 Will, by which Father purported to dispose of the Property as his own, that these proceedings were instituted by the Plaintiff. This was after attempts to resolve the ownership of the Property had failed.

94.Having seen and heard the Plaintiff’s testimony in court, my impression is that he is a reserved and taciturn man. He had been contributing the substantial part if not the entirety of his income to Father for the family for nearly the entire period of his career, from 1968 until 1989. The payments were made by him in complete trust of Father, without ever requiring documentary proof of their oral agreement or understanding. It is understandable, consistent with the Plaintiff’s character and very probable, that the Plaintiff would wish to avoid confrontation, and a falling out, with Father and his Siblings if other options for settlement were available. His relationship with Father and some members of the Siblings appeared to have turned sour only after his marriage, and after his wife had moved to Hong Kong. The Plaintiff must have been put in a difficult position, between his wife and the other members of his family, and Father in particular. It is very credible that the Plaintiff would prefer not to raise or insist on sorting out the legal ownership of the Property during Father’s life, in the hope that matters could be clarified with the Siblings after Father’s death - which eventually did not play out.

95.For these reasons, I do not consider the Plaintiff’s failure to take active steps to seek the transfer of the legal title of the Property to himself before Father’s death or before the commencement of these proceedings to mean that he had recognized that Father was the beneficial owner of the Property. Nor does the Plaintiff’s permission to the occupation of the Property by Father or the Siblings amount to any waiver of his rights to the Property, or in any way prevent him from asserting his rights, or as being inconsistent with the existence of the Common Understanding and the oral agreement made with Father. It was his original intention at the time of the Common Understanding that Father and the Siblings could all stay and reside at the Property.

96.The oral agreement and Common Understanding is one between the Plaintiff and Father, and did not at any time involve any of the Siblings. The discussions at the 2019 Meeting between the Plaintiff and the Siblings could not alter the effect of the oral agreement and Common Understanding, and any proposal made by the Plaintiff with regard to the Property and the sharing of the interest in the Property could only have been his goodwill offer, made to the Siblings as part of the settlement of matters arising from Father’s death, to avoid litigation in court.

97.Needless to say, the fact that Father purported to deal with the Property as his own does not mean that he was the beneficial owner. If I accept that there was an oral agreement and Common Understanding as alleged by the Plaintiff, as I do, it only means that Father had acted in breach of the oral agreement and Common Understanding.

98.Nor does the name of the Property 恩建園bear any unequivocal meaning, to enable this Court to conclude that it was Father’s, and not the Plaintiff’s. It could, or may not, be a reference to the name of Father (建綱), and it could equally bear the meaning claimed by the Plaintiff, “to show gratitude to God” as named by the priest of the Church. Even if the Property bears Father’s name, as the head of this traditional patriarchal family, it does not in all the circumstances of this case mean that Father and only Father had the legal and beneficial interests in the Property.

Disposition

99.For all the above reasons, I accept that there was an oral agreement and Common Understanding between Father and the Plaintiff, as the Plaintiff claims, and that the Plaintiff had taken steps in reliance on the Common Understanding and acted to his detriment, by making and authorizing the payments from his salary and bonuses to finance the purchase of the Property including the mortgage repayments.

100.I find that the Property was held by Father on constructive trust for the Plaintiff and make the orders sought in paragraphs (1) to (3) of the prayer to the Statement of Claim, save that in paragraph (3) of the prayer, the Plaintiff should specify the appointment of a party other than the Registrar of the High Court to execute the assignment and the documents, if required. The transfer specified in paragraph (2) of the prayer shall be made within 62 days from the date of the judgment.

101.The Defendant shall pay to the Plaintiff the costs of the action, with Certificate for Counsel, to be taxed if not argued.

Mr Ken To and Mr Kenny Kwok, instructed by KWC & Associates, for the plaintiff

Ms Ma On Ki, instructed by Mac Chan & Co, Solicitors, for the defendant