Pang Wing Sang v. Wing Yee Pang, One of the Two Executrixes of the Estate of Pang Chuen Sang, Deceased and Another

DCCJ 4623/2023

[2026] HKDC 1119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 4623 OF 2023

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JUDGMENT

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A.  INTRODUCTION

1.This action concerns a dispute over the beneficial ownership of a parcel of land registered as Section A of Lot No 1845 in Demarcation District 51, commonly known as 643B Fan Leng Wai, North, New Territories (the “Land”). The Land is registered in the sole name of the late Mr Pang Chuen Sang (the “Deceased”).

2.The Plaintiff, Mr Pang Wing Sang, is the younger brother of the Deceased. The 1^st and 2^nd Defendants are the daughters of the Deceased and the executrixes of his estate.

3.The Plaintiff seeks a declaration that the Deceased held a half-share of the interest in the Land on a common intention constructive trust or, alternatively, on a resulting trust, for the Plaintiff. The Defendants deny these claims in their entirety.

B.  FACTUAL BACKGROUND

4.The Deceased and the Plaintiff were the only sons of the late Mr Pang Kan On (“Father”), who passed away in 1969. Father and his wife (“Mother”) had 7 children. The Deceased was the eldest, followed by the Plaintiff. The Deceased and the Plaintiff had 5 younger sisters. Following Father’s death, the Deceased went abroad to work, eventually settling in the United Kingdom, while the Plaintiff went to the United States to pursue his studies.

5.On 18 June 1980, the Deceased acquired the Land from Pang Lai Tak T’ong (the “Tong”) for a consideration of HK$2,800. A 3-storey small house, known as “House 643B”, was subsequently built on the Land pursuant to a Building Licence issued to the Deceased on 7 April 1989 under the Small House Policy.

C.  THE PLAINTIFF’S CASE

6.The Plaintiff asserts that the funds used by the Deceased to acquire the Land and construct House 643B originated from joint funds belonging to both brothers, which were held by Mother. He claims he was kept in the dark about the sole registration until around 2015, when the Deceased allegedly confessed that the Land was a family property to be shared equally.

7.The Plaintiff contends that from 2015 onwards, a common intention constructive trust arose. He argues that he acted to his detriment by consenting to the use of the common funds by the Deceased, allowing the Deceased to retain the rental income from the Land, and by providing further financial assistance to the Deceased.

8.Alternatively, the Plaintiff contends that the Deceased held a half-share of his interest in the Land on a resulting trust for the Plaintiff, based on the assertion that the monies used to purchase the Land were joint funds belonging to both of them.

D.  THE DEFENDANTS’ CASE

9.The Defendants deny the existence of any joint funds being used for the purchase. They assert that the Land and House 643B were acquired and built by the Deceased using his own resources and his personal “ding” right.

10.The Defendants highlight the Plaintiff’s failure to assert the alleged trust in the previous consolidated legal proceedings between the parties in DCMP 1326/2020, DCMP 1327/2020 and DCMP 1328/2020 (the “2020 Proceedings”), which involved a dispute over a neighboring property (“House 643A”) and alleged debts owed by the Deceased to the Plaintiff.

E.  ISSUES IN DISPUTE

11.The parties filed a Joint Statement of Issues dated 20 June 2025 setting out the issues in dispute. The first issue in the Joint Statement of Issues is whether the Land is or was property of Father’s “fong”.

12.However, the Plaintiff did not plead or adduce any evidence regarding Chinese customary law in this action. In Tang Kai Chung & anor v Tang Chik Shang & ors [1970] HKLR 277, Mills-Owens J observed at p  294 that a Tso (and by the same token, a T’ong) was a mode of devolution unknown to the English common law, which is preserved by section 13 of the New Territories Ordinance (Cap 97).

13.In the absence of any specific plea on the applicable Chinese customary law and expert evidence on the same, I do not have to, and am unable to, decide whether when the Land was conveyed to the Deceased, it was meant to be distributed to Father’s “fong”, or that the Land belongs/belonged to the same.

14.The Plaintiff clarified in his oral opening submissions that he is not relying on any Chinese customary law as such, but is simply relying on the fact that the Land belonged to Father’s “fong” as a background to the Plaintiff’s case that the monies used to purchase the Land and build House 643B were joint funds belonging to him and the Deceased. I will return to this in Section H1 below.

15.As such, the parties agreed at the beginning of the trial that the question of whether the Land is or was property of Father’s “fong” does not constitute a separate issue in dispute.

16.The agreed issues in dispute are therefore:

(1)  Whether the funds used in purchasing the Land and building House 643B were derived from:

(a)  monies distributed by “t’ong(s)” to the Deceased and the Plaintiff;

(b)  rentals received from Father’s lands; and/or

(c)  monies jointly owned by the Deceased and the Plaintiff (“Issue 1”);

(2)  Whether there was a common intention constructive trust over the Land between the Deceased and the Plaintiff by virtue of which the Plaintiff is entitled to a half share of the interest therein (“Issue 2”); and

(3)  Whether there was any resulting trust over the Land between the Deceased and the Plaintiff by virtue of which the Plaintiff is entitled to a half share of the interest therein (“Issue 3”).

F.  APPLICABLE LEGAL PRINCIPELS

F1.  Common Intention Constructive Trust

17.To establish a common intention constructive trust, the Plaintiff must prove a common intention that he should have a beneficial interest, and that he acted to his detriment in reliance on that intention. The burden of proof lies squarely on the Plaintiff.

18.The well-established principles governing common intention constructive trust are summarised by DHCJ Alan Kwong in Lam Kwok Hing (as Administrator of the Estate of Lam Ping Sang, deceased) v Lau Ha also known as Lau Ha Lily & ors [2025] HKC 267, §42 as follows:

“(1) The task of the court is to ascertain the parties’ intention, and this is to be done objectively: Mo Ying v. Brillex Development Ltd [2015] 2 HKLRD 985 at para 5.16 (per Cheung JA); Liu Wai Keung (supra)[1] at para 47 (per G Lam J, as he then was); Leung Hang Lin & Anor v. Lam Mei Yung [2019] HKCFI 2819 at para 8(3) (per DHCJ Alexander Stock SC).

(2) The court would adopt a holistic approach, and take into account the whole course of conduct of the parties. The court will also take into account that the domestic context is very different from the commercial context: Stack v. Dowden [2007] 2 AC 432 at paras 60 and 69 (per Baroness Hale); Mo Ying (supra) at para 5.13-5.14 (per Cheung JA); Primecredit Ltd v. Yeung Chun Pang Barry [2017] 4 HKLRD 327 at para 1.6 (per Lam VP, as he then was).

(3) The starting point is that beneficial ownership follows legal ownership, and the onus is vested upon the party who seeks to show that the beneficial ownership is different from the legal or registered ownership: Stack v Dowden (supra) at para 56 (per Baroness Hale); Mo Ying (supra) at para 5.16 (per Cheung JA); Leung Hang Lin (supra) at para 8(1) (per DHCJ Alexander Stock SC).

(4) The onus can be discharged by showing that: (i) there was a common intention that the beneficial ownership was to be different from the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title: Luo Xing Juan v. Estate of Hui Shui See (2009) 12 HKCFAR 1 at para 38 (per Ribeiro PJ); Liu Wai Keung (supra) at para 46 (per G Lam J as he then was); Leung Hang Lin (supra) §8(2) (per DHCJ Alexander Stock SC).

(5) The court may find the parties’ common intention based on the parties’ express discussion as to how the property is to be held: Leung Hang Lin (supra) at para 8(4) (per DHCJ Alexander Stock SC); Mo Ying (supra) at para 5.8 (per Cheung JA).

(6) The court can also rely on the parties’ conduct to infer the common intention, and direct financial contributions will readily justify an inference that the parties’ common intention is such that the plaintiff is to have an interest in the property: Mo Ying (supra) at para 5.8 (per Cheung JA); Primecredit Ltd (supra) §2.4 (per Lam VP, as he then was); Leung Hang Lin (supra) at para 8(4) (per DHCJ Alexander Stock SC).”

19.In Fu Lam Lam v Fu Ting Ting [2025] HKCA 458, the Court of Appeal highlights the practical problems a party faces in proving a common intention to change the beneficial interests in a property in establishing a post-acquisition common intention constructive trust:

“18. … It is correct that there are references to a finding of a common intention constructive trust to vary post-acquisition beneficial interests being exceptional. For example, in Stack v Dowden, Lady Hale explained at [68] and [69]:

‘68. The burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be lightly embarked upon. In family disputes, strong feelings are aroused when couples split up. These often lead the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms …

69. In law, ‘context is everything’ and the domestic context is very different from the commercial world … Many more factors than financial contributions may be relevant to divining the parties’ true intentions …’

19. This recognises that absent an express written agreement recording an intention to vary the beneficial interests, proving the necessary intent will involve an assessment by the court of the parties’ recollection of what was said and done often many years after the event and commonly in a domestic context. [Satisfying] a court in such circumstances that the necessary common intention was present will be challenging. Consequently, successful cases will be exceptional. This analysis does not involve, as the Plaintiff’s argument appears to propose, adopting an elevated standard of proof. It identifies the practical problems a party will face in proving a common intention to change the beneficial interests in a property. Mo Ying v Brillex Development & Anor does not, as the Plaintiff contends, suggest anything more than this.”

20.In footnote 16 of the judgment, the Court of Appeal added that “the courts increasingly recognise, relying on oral testimony to determine contentious matters is highly problematic. See by way of example Moorthy Selvaraj v Karupayee Ammal & Ors [2024] HKCFI 403, [10]-[14].”

21.In respect of the required detrimental reliance, DHCJ Eugene Fung SC (as he then was) held in Mo Ying v Brillex Development Ltd & anor [2014] 3 HKLRD 224, §42:

“There must be some connection between the plaintiff’s conduct and his/her belief that he/she has an interest in the property. To constitute conduct amounting to an acting upon the common intention, it must be conduct on which the plaintiff could not reasonably have been expected to embark unless he/she was to have an interest in the property: see Grant v Edwards at 648G‑H (Nourse LJ).”

F2.  Resulting Trust

22.In Chan Ka Chun v Sin Hin Tung Hidy formerly known as Sin Wai Hang & anor [2026] HKDC 709, DDJ Sabrina Ho held:

“51. If it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust. In other words, resulting trust operates in the absence of evidence of intention of the parties. In such circumstances, the beneficial ownership of a party who provided the purchase price of a property acquired in another’s name, the issue of financial contribution is a weighty consideration: see Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 (supra) at §§1.3, 2.15.

52. Where a party pays wholly or in part for the purchase of property that is vested in joint names, there is a presumption that the payor did not intend to make a gift. The property is presumed to be held on a resulting trust for the person who provided the purchase money, proportionate to this contribution: see Westdeutsche Landesbank Girozentrale v Islington LBC [1996] AC 669.

53. The recent approach has been to strive to determine the real intentions of the parties. It may only resort to the formal presumptions where the direct evidence of those intentions is absent and a default rule is needed: see Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (2015) 18 HKCFAR 382 at §46.”

G.  WITNESSES

G1.  Plaintiff’s Witnesses

(1)  Plaintiff – Pang Wing Sang

23.The Plaintiff is an argumentative, evasive, unreliable and dishonest witness. His oral evidence on the most important matters of this case is inconsistent with his pleaded case and witness statement. It is also clear that at times he was making up his evidence as he went along. Further, most of his evidence is based on his subjective belief and assumptions, which are unsupported by contemporaneous or independent evidence.

24.First, on the important question of when he allegedly found out that the Deceased had used their joint funds to purchase the Land and build House 643B, the Plaintiff’s pleaded case is that in around 2015, the Deceased confessed to him that the Land was a family property which the Deceased held on behalf of the Deceased and the Plaintiff. In alleged detrimental reliance on this, the Plaintiff consented to the use of the joint funds by the Deceased to purchase the Land.

25.Similarly, in his witness statement, the Plaintiff stated that in around 2015, the Deceased confessed to him that the Land was allocated by the Tong to Father’s “fong”, being the Deceased and the Plaintiff, and that the funds used to purchase the Land were jointly owned by them.

26.However:

(1)  First, in the pre-action letter from his solicitors, Messrs C F Lee & Co, to the Defendants dated 26 July 2023, it was stated that the Plaintiff “was kept in the dark as to all these until the Deceased, in the last few years of his life before he passed away on 31^st July 2026, confessed to the younger brother that the Land was actually a family property” (emphasis added).

(2)  During cross-examination, he said that the timing of “the last few years of [the Deceased’s] life” stated in the solicitors’ letter is incorrect.

(3)  Secondly, during cross-examination, the Plaintiff repeated many times that he did not know that the Deceased had used their joint funds to purchase the Land and build House 643B until he began digging into the matters concerning House 643B during the 2020 Proceedings, eventually finding out about the alleged use of joint funds in 2022.

(4)  His evidence on this important question is entirely inconsistent. If the Deceased had already told him back in 2015 that the Deceased had used the joint funds to purchase the Land, there is no reason why the Plaintiff would say that he did not know about the same until 2022.

(5)  The Plaintiff tried to explain it away by saying that when the Deceased confessed to him back in 2015, he did not care about it. But whether he cared or not is a separate matter. It does not change the timing as to when he found out about the use of joint funds. It also does not answer the question as to why the Plaintiff would say that he did not know about the alleged use of joint funds until 2022.

27.Further, regarding when the conversation with the Deceased occurred – during which the Deceased allegedly confessed to him about the use of joint funds and co-ownership of the Land – his memory incredibly improves, rather than deteriorates, over time, and the timing of the event became more and more exact.

(1)  As mentioned above, he first stated in the pre-action letter from his solicitors dated 26 July 2023 that “the Deceased, in the last few years of his life before he passed away on 31^st July 2026, confessed to the younger brother that the Land was actually a family property” (emphasis added).

(2)  Then, in his Statement of Claim dated 19 October 2023, he pleaded that it was “in or around 2015” (emphasis added).

(3)  In his witness statement dated 19 August 2024, he said that it was “in around 2015”.

(4)  During cross-examination, he said it was around Ching Ming Festival in 2015.

28.I find this unbelievable and cannot believe that he would remember when exactly that conversation happened more precisely over time.

29.In the premises, I find that he was not telling the truth in relation to his alleged conversation with the Deceased and the Deceased’s alleged confession in around 2015. I do not accept his evidence in this regard.

30.Secondly, as mentioned above, it is his pleaded case and evidence in his witness statement that the Deceased told him in around 2015 that the Land belonged to both of them. This forms the basis of his claim in common intention constructive trust.

31.In his witness statement, he also said that if he had known that the monies used to purchase the Land came from their joint funds, he would certainly have objected to the Land being registered in the sole name of the Deceased.

32.However, the Plaintiff’s oral evidence was that:

(1)  When the Deceased allegedly confessed to him that their joint funds were used to purchase the Land and so the Land belonged to both of them, his only response was, “Oh, thank you”.

(2)  He said he was shocked and needed time to digest it and think about what it means, and that was the end of the conversation. He also said that he understood what the Deceased said but he did not consent to it.

(3)  Whilst he said he intended to discuss about the matter with the Deceased later, he never had the opportunity to do so.

(4)  The Plaintiff also repeatedly said that he did not know about the Deceased’s use of the joint funds to purchase the Land until 2022. He all along believed that the Land belonged solely to the Deceased, and he was always happy to let his nieces, ie the Defendants, have the Land and House 643B even after the Deceased’s alleged confession in 2015.

(5)  It was only after the 2020 Proceedings, when he felt that the Defendants were greedy and disrespectful, that he started digging into the matter and found out in 2022 about the Deceased’s use of joint funds to purchase the Land. He eventually started these proceedings in 2023.

(6)  If the Plaintiff did not have any intention to share the ownership of the Land before around 2022/2023, then how could he assert that there was a common intention between the Deceased and himself since 2015 that each of them owned half of the beneficial interests in the Land, upon which his claim for common intention constructive trust was based?

33.Based on his evidence, during the Deceased’s lifetime and up until around 2022/2023, the Plaintiff believed that the Land belonged to the Deceased solely and was happy to let the Defendants inherit it.

34.In the premises, I find that his allegations that there was a common intention between him and the Deceased that the latter would hold half of his interests in the Land on the Plaintiff’s behalf, and that the Plaintiff had paid for half of the purchase price of the Land, are an afterthought and a recent concoction.

35.Thirdly, as to why he did not ask the Deceased to sign any written transfer document or leave any written record of the fact that the Land was purchased with their joint funds and that the Plaintiff was entitled to half of the interests in the Land held by the Deceased, the Plaintiff’s evidence is clearly inconsistent.

(1)  First, in paragraph 20 of his witness statement, he stated that it was because (a) the Deceased was already in poor health at the time, (b) he never intended to covet anything, nor did he want the Deceased to feel that he was coveting the latter’s property, and (c) he completely trusted the Deceased and never imaged that this matter would ultimately lead to legal proceedings.

(2)  Pausing here, I am unable to understand how he would be coveting the Deceased’s property, or how the Deceased would feel that way, if half of the beneficial interests in the Land belonged to the Plaintiff as alleged. Even if he were to ask the Deceased to transfer half of the interests in the Land to him, the Plaintiff would only be getting back his own share of the property.

(3)  Further, whether he trusted the Deceased is beside the point. As he said in his witness statement, the Deceased was already in poor health at the time. The purpose of the requesting the Deceased to leave some sort of written record is to secure evidence that the Deceased was holding half of his interests in the Land for the Plaintiff. I do not understand or believe the Plaintiff’s evidence in this regard.

(4)  Then, in the witness box, he gave a different answer. He explained that it was because (a) he did not know that the Deceased would pass away that soon, (b) he had no problem with his nieces having the Land and the house, and (c) he intended to sort the matter out when the Deceased’s condition improves later because the Deceased had recovered from cancer once.

(5)  However, none of the above explanations were stated in his witness statement.

36.Fourthly, on the question of what joint funds were used to purchase the Land and build House 643B, in the pleadings, the Plaintiff said that it was “mostly monies distributed by t’ong(s) in which the Deceased and the Plaintiff were members and/or rentals that the brothers received from the Father’s lands”.

37.It was not pleaded that the compensation in the sum of HK$42,471 from the Government’s resumption of Section B of Lot 791 of DD 91 in 1979 (“Lot 791B” and “Resumption Compensation”, respectively), which was jointly owned by the Deceased and the Plaintiff, was part of the joint funds used by the Deceased to purchase the Land.

38.However, in his witness statement and oral evidence, he said that it was in fact the Resumption Money and the monies from the farmland or “fong” that were used to purchase the Land and build House 643B.

(1)  First, no proper explanation was given as to why the alleged use of Resumption Compensation was not pleaded.

(2)  Secondly, when it was pointed out to him that he and the Deceased were tenants-in-common in relation to Lot 791B, and half of the Resumption Compensation alone was more than enough for the Deceased to purchase the Land in 1980, he gave an incredible answer that (a) they did not split up the money, and (b) Mother did not tell him that she was using the Deceased’s share of the money to purchase the Land.

(3)  Not only is the answer incredible, but it also contradicts paragraph 13 of his witness statement that Mother in fact told him that the Land was bought by the Deceased.

(4)  Further, there is simply no need to physically split up the Resumption Compensation or any of the farmland or “fong” monies for the Deceased to use his share of the same.

(5)  Thirdly, when asked how he knew that the Resumption Compensation was used to purchase the Land and build House 643B as alleged, he said that was based on his Mother’s letter to him dated 22 February 1989 (“Mother’s Letter”), which for some unknown reason was not sent out and which only came to his knowledge in 2022.

(6)  However, Mother’s Letter clearly does not state that. It does not even mention anything about the Land or the funds used to purchase the Land. When this was put to him, he said that he “assumed” that the monies used to purchase the Land came from their joint funds.

(7)  This shows that his whole case on resulting trust is based purely on his own assumption, which is completely unsupported by evidence.

39.Fifthly, the Plaintiff insisted that because the Deceased first applied for a building licence in 1981, which application was rejected, the Deceased must have used their joint funds to build House 643B on the Land because the Deceased did not have the financial means to do so back then.

40.It was pointed out to him that the Building Licence pursuant to which the Deceased built House 643B on the Land was dated 7 April 1989. The Deceased could therefore only begin building the house after that date.

41.While accepting that the Deceased’s financial position had improved after he started his restaurant business in 1984, and by 1989, the Deceased did have sufficient means to pay for the construction costs of the house on the Land, the Plaintiff nonetheless maintained that the Deceased had used their joint funds to build the house in 1989 because the first application for building licence was made in 1981.

(1)  First, the alleged unsuccessful application by the Deceased to apply for building licence in 1981 was never mentioned in the Plaintiff’s witness statement despite he said that this is an “important” fact and placed heavy reliance on it during his oral evidence.

(2)  Secondly, the suggestion that because the Deceased first made his application for building licence in 1981 when he had no money back then, he must be using the joint funds to build his house 8 years later in 1989 even though he had since then become financially capable, is not only purely speculative and unsubstantiated by evidence, but also makes no common sense.

42.Sixthly, he said he knew about his right to apply for distribution of land from the Tong and his small house concessionary right only in the 1990s. Having grown up in the village and in his family where most if not all indigenous male villagers would apply for land from the Tong and exercise their small house concessionary right, I find it unbelievable that he would only know about it when he was in his mid-30s to 40s.

43.In any event, having had knowledge about such rights, he nonetheless said that he never applied to the Tong for land or exercised his small house concessionary right. He said that whilst he had given power of attorney to Mother to act on his behalf while he was in the USA, Mother never applied for him because there was no land available from the Tong.

44.This contradicts his earlier evidence in relation to Mother’s Letter that the Tong had more than enough land available to distribute to its male members, and the “drawing lots” referred to in Mother’s Letter means that the Tong would draw lots to decide which male member would get which piece of land.

45.When the contradiction was pointed out to him, he changed his evidence and explained that what he said in relation to Mother’s Letter was only his interpretation of it and he did not know whether that was true.

46.Seventhly, putting aside the question of whether Mother’s Letter could be interpreted in the way he suggested, especially when Mother specifically stated therein that they would have to “draw lots” to decide whether the Plaintiff could get a piece a land, rather than to decide who would get which piece of land as the Plaintiff alleged, Mother’s intention that each of the Deceased and the Plaintiff would get a piece of land from the Tong contradicts the Plaintiff’s case that the Land belonged to their “fong”, ie to be shared between the Deceased and the Plaintiff, when it was conveyed to the Deceased.

47.Eighthly, whilst the Plaintiff stated in his witness statement that he believed Mother wrote Mother’s Letter because she was worried that the Plaintiff would be jealous of the Deceased because only the latter could build a small house, he changed his evidence during cross-examination and said that he could not speak for his Mother.

48.Ninthly, in relation to his memorial speech given at the Deceased’s funeral, the Plaintiff first confirmed that its contents were correct. Then when it was shown to him that he wrote in his own script that when the Deceased was in the UK, the latter “work in restaurant and support the family back in Fanling Village”, the Plaintiff tried to resile from it by saying what he meant was that when the Deceased worked in the UK and supported himself, the rest of the family did not have to support him, and that counted as the Deceased’s “support” for his family back in Fanling village. I find this a most convoluted and contrived interpretation of “support[ing] the family”.

49.The Plaintiff then tried to explain it away by saying that when he said that the contents of his speech were correct, he only meant that the contents were what he had written, but they did not represent the whole truth.

50.However, when asked about another part of his speech where he said that the Deceased had “sponsored three younger sisters to England to study higher education”, the Plaintiff first confirmed to the court that it reflected the truth. Then, he again tried to resile from it by giving a contrived interpretation to the word “sponsor”.

51.He said that the Deceased merely did some research and went to the schools to find out whether they were good for their sisters and whether Mother had enough money to support them. When being asked how that could be said to be “sponsoring”, he changed his answer to “sponsor” meaning acting as a guarantor or sponsor in the sisters’ visa applications. Further, he again said that his speech did not represent the whole truth and he was only trying to pay respect to the Deceased at his funeral.

52.Putting aside whether the Plaintiff was merely trying to pay respect to the Deceased at his funeral in making that speech, the above shows that the Plaintiff is constantly changing his evidence and making up his evidence as he went along, and is not to be believed.

53.Finally, and crucially, the Plaintiff's conduct severely undermines his claims. During the 2020 Proceedings, the Plaintiff actively pursued claims for alleged debts owed to him by the Deceased, yet he made no mention of his purported half-interest in the Land at all.

54.The Plaintiff tried to explain this away by saying that he “didn’t have the time and energy to handle multiple cases at the same time while also managing family and career in three different places”. However, if:

(1)  the Deceased really confessed to him;

(2)  the Deceased and the Plaintiff had a common intention to share the Land; and/or

(3)  the Plaintiff truly believed that he was the beneficial owner of half of the Land and House 643B since 2015,

it defies logic and common sense that he would remain entirely silent on this significant asset during a contentious legal battle against his nieces over his brother’s estate.

55.For all the reasons above, I disbelieve the Plaintiff, find his evidence unbelievable, unreliable and incredible, and do not accept his evidence.

(2)  Pang Kwok Tai (“Tai”)

56.Although Tai is the uncle of the Deceased and the Plaintiff, they were of roughly the same age. They lived and grew up together in the same village.

57.In the 1970s, Tai worked with the Deceased at a Chinese restaurant in the Netherlands for three years. They lived in the restaurant’s dormitory and he observed that the Deceased did not save much money as their salaries were not high.

58.Tai’s evidence that the Deceased once told him that the Deceased’s “fong” was lucky enough to be allowed to purchase land from the Tong. Further, Tai said that the Deceased mentioned that the Land was purchased with monies from the farmland saved up by Mother.

59.I find Tai a generally honest witness. In any event, apart from a few areas of limited relevance (which I deal with specifically below), I do not consider his evidence to be particularly controversial.

(3)  Pang Kwok Wah (“Wah”)

60.Wah is the younger brother of Tai. He is also the uncle of the Deceased and the Plaintiff. Again, they were of roughly the same age, and they lived and grew up together in the same village.

61.In the 1970s, Wah worked with the Deceased at a Chinese restaurant in the Netherlands for around two years. During that time, they lived in the restaurant’s dormitory. Based on Wah’s observation, the Deceased did not have any saving habit and he had never seen or heard about the Deceased sending money back to Hong Kong. Wah added that the salaries paid by the restaurant were not high, and he himself only had very limited amount of money to send back to Hong Kong.

62.He said that the Tong would distribute money to the members of each “fong” every year. In relation to the Land, Wah’s evidence is that his father told him in the early 1980s that Father’s family was distributed a piece of land by the Tong, which he later understood to be the Land.

63.I find Wah a generally honest witness. In any event, apart from a few areas of limited relevance (which I deal with specifically below), I do not consider his evidence to be particularly controversial.

G2.  Defendants’ Witnesses

(1)  1^st Defendant – Wing Yee Pang

64.The 1^st Defendant is the 2^nd Defendant’s older sister and one of the two executrixes of the Deceased’s estate. She confirms and adopts the contents of the 2^nd Defendant’s witness statement.

65.In the 2^nd Defendant’s witness statement, which the 1^st Defendant adopts, it was stated that they had never heard from the Deceased that he had borrowed money from the Plaintiff. However, in the Reply filed in the 2020 Proceedings, the Defendants pleaded that about two weeks before the Deceased’s passing, the Deceased told the 1^st Defendant that no money was owed to the Plaintiff, and in fact, the Plaintiff was indebted to the Deceased.

66.When the 1^st Defendant was being cross-examined on this, she simply said that she could not recall. I find her evidence in this aspect inconsistent and unreliable.

67.As to the other aspects of her evidence, given that she was not present when the Deceased allegedly discussed and confessed to the Plaintiff in around 2015, whereupon the Plaintiff said they shared a common intention as to the beneficial interests of the Land, I do not find her evidence crucial.

(2)  2^nd Defendant – Jenny Ho Yee Pang

68.The 2^nd Defendant is the 1^st Defendant’s younger sister and one of the two executrixes of the Deceased’s estate.

69.According to her, in early 2017 and early 2018 respectively, the Defendants engaged a property agent, Ms Ivy Lee (“Ms Lee”), to collect rents from the tenants of House 643A and House 643B respectively. On 26 September 2017, the Plaintiff sent a WhatsApp message to Ms Lee, asking the latter to stop collecting rent from the tenants of House 643A. This aspect of her evidence was not challenged at trial.

70.Similar to the 1^st Defendant, the 2^nd Defendant was not present when the Deceased allegedly discussed and confessed to the Plaintiff in around 2015, whereupon the Plaintiff said they shared a common intention as to the beneficial interests of the Land. The 2^nd Defendant also does not know whether the Land was purchased, and whether House 643B was built, with the joint funds of the Deceased and the Plaintiff. I therefore do not find her evidence crucial.

71.Moreover, given that she has no personal knowledge about whether the Deceased had remitted his income to Mother in Hong Kong to support the living of Mother and his 6 siblings and the education of his 6 siblings, I place no reliance on the 2^nd Defendant’s evidence in relation to the same.

72.During cross-examination, the 2^nd Defendant suddenly said that the Deceased had a written document listing out his properties in Hong Kong and stating specifically that the Land was left to her and her sister. She said that the document was prepared in around April 2016, ie 3 months before the Deceased’s passing, when the Plaintiff and the Defendants’ aunts visited the Deceased in England. The Deceased allegedly said that he intended to leave all his Hong Kong assets to the Defendants in the presence of the Plaintiff and the Deceased’s aunts.

73.However, the alleged document was never mentioned in the 2^nd Defendant’s witness statement or produced in these proceedings. When asked, the 2^nd Defendant simply said she did not know where it is now, and that upon discussion with her solicitors, they decided not to disclose it.

74.The alleged document stating that the Deceased intended to leave the Land to the Defendants is clearly a very important piece of document in these proceedings if it existed. I find it plainly unbelievable for the Defendants to choose not to disclose or even mention it if it really existed.

75.In the premises, I find the 2^nd Defendant’s evidence in relation to the same a recent fabrication and unbelievable. This also casts doubt on her evidence as to whether the Deceased had even mentioned in front of his siblings and the Defendants in around April 2016 that he intended to leave the Land to the Defendants.

76.Although I disbelieve the Defendants’ evidence on (a) whether the Deceased had told them about any loans advanced to or from the Plaintiff, and (b) whether the Deceased had mentioned in front of his siblings and the Defendants in around April 2016 that he intended to leave the Land to the Defendants and prepared the alleged document stating the same, this does not prevent me from deciding the case on the burden of proof: see Moorthy Selvaraj (supra), §13.

77.As accepted by the Plaintiff in his closing submissions, the Defendants did not advance any positive case, and the determination of the issues in dispute essentially hinges on the assessment of the Plaintiff’s case.

H.  ANALYSIS AND FINDINGS

H1.  Issue 1: Whether the funds for purchasing the Land and building House 643B are joint funds of the Plaintiff and the Deceased?

78.It is the Plaintiff’s case that the funds used in purchasing the Land and building House 643B were derived from:

(1)  monies distributed by “t’ong(s)” to the Deceased and the Plaintiff;

(2)  rentals received from Father’s lands; and/or

(3)  monies jointly owed by the Deceased and the Plaintiff.

79.First, the Plaintiff himself agrees during cross-examination that there is no direct evidence showing that the money used to purchase the Land and build House 643B came from funds jointly owned by the Deceased and the Plaintiff.

80.Secondly, the Plaintiff relies on Mother’s Letter and contends that it shows that Mother and the Deceased had used the farmland money which belonged jointly to the Deceased and the Plaintiff to purchase the Land. However, the letter mentions nothing about the Land, farmland money, or any joint funds. It only states that there were small houses available, and in that letter, Mother suggested the Plaintiff to apply for a small house.

81.Thirdly, the Plaintiff’s evidence is that the Deceased was impecunious in around 1980s. According to the Plaintiff, the Deceased worked as a waiter in a Chinese restaurant from around 1978 to the early 1980s and lived in the restaurant’s dormitory. He said that in around 1984, Mother gave financial assistance (from the joint funds of the Deceased and the Plaintiff) to the Deceased to help him start his restaurant business in the UK.

82.The Plaintiff also relies on the evidence of Tai that the Deceased did not have much savings, as well as Wah’s evidence that the Deceased did not have any saving habit and he had never seen or heard about the Deceased sending money back to Hong Kong.

83.However, none of the above shows that the funds used to purchase the Land came from any of the alleged sources. Further:

(1)  As accepted by Tai and Wah, even if they never saw or heard about the Deceased sending money back to Hong Kong or saving money, it does not mean that the Deceased did not do so.

(2)  In any event, neither Tai nor Wah had any contact with the Deceased at the material time when the Deceased purchased the Land in 1980. They would not have known about the Deceased’s financial situation when he purchased the Land or build House 643B.

84.The Plaintiff contends that unless the Defendants can show that the Deceased had other sources of funds, then it must mean that he used the joint funds belonging to both of them to purchase the Land. This is not correct. The burden rests squarely on the Plaintiff to prove that the monies used to purchase the Land came from the joint funds.

85.Fourthly, the Plaintiff said that in 1979, ie one year before the Deceased purchased the Land, the Government resumed Lot 791B, which belonged to the Deceased and the Plaintiff, and the Resumption Compensation of HK$42,471 was received by Mother on behalf of the Deceased and the Plaintiff. It is the Plaintiff’s belief that Mother gave part of the Resumption Compensation to the Deceased to purchase the Land.

86.However, this is not pleaded in the Statement of Claim, in paragraph 7 of which the Plaintiff pleaded that the joint funds “were mostly monies distributed by t’ong(s) in which the Deceased and the Plaintiff were members and/or rentals that the brothers received from the Father’s lands”. It was not pleaded that the Resumption Compensation was part of the joint funds used by the Deceased to purchase the Land.

87.It is also purely speculative:

(1)  First, there is no direct evidence that the Deceased had used the Resumption Compensation to purchase the Land.

(2)  Secondly, as mentioned above, even half of the Resumption Compensation which belonged to the Deceased was more than enough for the Deceased to purchase the Land in 1980. The Deceased could well have used his own share of the Resumption Compensation to purchase the Land.

88.Fifthly, the Plaintiff relies on the allegation that the Deceased told him in around 2015 that the Land was distributed by the Tong to Father’s “fong”, and so it belonged to the Deceased and the Plaintiff.

89.The Plaintiff also relies on:

(1)  Tai’s evidence that the Deceased once told him that the latter’s “fong” was lucky enough to be allowed to purchase land from the Tong; and

(2)  Wah’s evidence is that his father told him in the early 1980s that Father’s family was distributed a piece of land by the Tong, which he later understood to be the Land.

90.However, this argument is conceptually flawed. Even if the Land was distributed to Father’s “fong”, it does not mean that the joint funds of the Deceased and the Plaintiff were used to purchase the Land.

91.In any event, in relation to the above evidence concerning the alleged distribution of the Land to Father’s “fong”:

(1)  I have already explained above that I disbelieve the Plaintiff’s evidence as to the alleged conversation between him and the Deceased in 2015.

(2)  None of the evidence of the Plaintiff, Tai and Wah is supported by any contemporaneous document.

(3)  Further, Wah clarified in court that when a piece of land is distributed by the Tong to a male descendant, the land will pass down to, and shared between, the sons of that male descendants, and the male descendant’s brothers would not be entitled to share it. This suggests that, contrary to the Plaintiff’s allegation, the Plaintiff, being the Deceased’s brother, has no right to share the Land which was distributed by the Tong to the Deceased.

(4)  Mother’s Letter also suggested that the Deceased and the Plaintiff should each apply for their own piece of land from the Tong.

(5)  In fact, the agreement for sale and purchase of the Land between the Tong and the Deceased dated 18 June 1980 clearly states that the purchaser was the Deceased and does not mention Father’s “fong” at all.

92.Finally, the Plaintiff relies on Tai’s evidence that the Deceased said that the Land was purchased with monies from the farmland saved up by Mother. However, even if this is true:

(1)  This does not mean that such monies belonged to the Deceased and the Plaintiff jointly.

(2)  Moreover, there is no plea or evidence that the farmland or “fong” monies were held in the form of joint tenancy. Even if the farmland or “fong” monies were collected by Mother on behalf of both the Deceased and the Plaintiff, Mother and/or the Deceased could well have used solely the Deceased’s share to purchase the Land, leaving the Plaintiff’s share untouched.

93.For all the reasons above, I do not accept the Plaintiff’s case that the funds used for purchasing the Land and building House 643B were derived from the sources alleged by the Plaintiff or were joint funds of the Plaintiff and the Deceased.

H2.  Issue 2: Common Intention Constructive Trust

94.The starting point is that the beneficial ownership of the Land follows the legal ownership. There can be no dispute that the Land was registered solely in the name of the Deceased, and he utilised his own small house concessionary right to develop it.

(1)  Common intention that the beneficial ownership was to be different from the legal ownership?

95.The Plaintiff has the burden of proving his case that pursuant to the alleged oral confession by the Deceased in 2015, the Deceased agreed to give up half of his beneficial interests in the Land in favour of the Plaintiff.

96.First and foremost, based on the Plaintiff’s evidence analysed in paragraph 32 and 33 above, during the Deceased’s lifetime and up until around 2022/2023, the Plaintiff believed that the Land belonged to the Deceased solely and was happy to let the Defendants inherit it.

97.The fact that the Plaintiff did not have any intention to share the ownership of the Land before the Deceased’s passing strongly suggests the absence of any common intention between the Deceased and himself that each of them owned half of the beneficial interests in the Land. This is sufficient to dispose of the Plaintiff’s claim in common intention constructive trust.

98.For the sake of completeness and out of abundance of caution, I will analyse other parts of the Plaintiff’s evidence below.

99.The Plaintiff relies heavily on an alleged oral confession made by the Deceased in 2015. However, first, the alleged oral confession by the Deceased is uncorroborated. Determining what was said or agreed orally in that conversation, which occurred more than 10 years before trial, is inherently problematic for reasons explained in Moorthy Selvaraj (supra), §§10-14.

100.For all the reasons set out in Section G1(1) above, I do not believe the Plaintiff’s evidence in relation to the existence and content of the alleged confession or discussion between him and the Deceased at all.

101.Secondly, against the background that the Deceased had used his own valuable once-in-a-lifetime small house concessionary right to build House 643B on the Land. I find it highly unlikely that the Deceased would agree to give up half of his beneficial interests in the Land in favour of the Plaintiff.

102.Thirdly, insofar as the Plaintiff relies on the allegation that the funds for purchasing the Land and building House 643B were derived from the sources alleged by the Plaintiff or were joint funds of the Plaintiff and the Deceased, there is insufficient evidence to establish that. I refer to Section H1 above.

103.Fourthly, I find it telling that the Plaintiff has never mentioned about his alleged 50% interest in the Land in the following contemporaneous communications between him and the Defendants:

(1)  the WhatsApp communications between the Plaintiff and the 1^st Defendant in September and October 2016 concerning the alleged loans owed by the Deceased to the Plaintiff;

(2)  the two emails from the Plaintiff to the 1^st Defendant sent on 12 October 2016 concerning the alleged loans owed by the Deceased to the Plaintiff; and

(3)  the WhatsApp communications between the Plaintiff and the 2^nd Defendant in November 2017 where the “financial subjects” between the Deceased and the Plaintiff were mentioned.

104.Further, in the Plaintiff’s WhatsApp message to the property agent, Ms Lee, sent on 26 September 2017, the Plaintiff asked Ms Lee not to collect rent from House 643A because the 1^st Defendant had no authority to do so. However, the Plaintiff did not object to Ms Lee collecting rent from the tenants of House 643B. If the Plaintiff owns 50% of the beneficial interests in the Land, it is inconceivable for him to allow the Defendants and/or Ms Lee to collect and keep the entirety of the rent from the tenants of House 643B.

105.Finally, and importantly, as explained above, the Plaintiff's conduct severely undermines his claim. During the 2020 Proceedings, the Plaintiff actively pursued claims for alleged debts owed to him by the Deceased, yet he made no mention of his purported half-interest in the Land. If there was any common intention that the Plaintiff owned 50% of the beneficial interests in the Land, it defies logic and common sense that he would remain entirely silent on this significant asset during a contentious legal battle over the Deceased’s estate.

106.For the reasons above, I find that there was in fact no such alleged oral confession made by the Deceased in 2015 and there was no common intention shared between the Deceased and the Plaintiff that the beneficial ownership of the Land was to be different from the legal ownership.

(2)  Detrimental reliance

107.Further, the Plaintiff’s allegations of detrimental reliance are completely unsustainable. His case is that he acted to his detriment by:

(1)  consenting to “the use of the common funds by the Deceased as he did”;

(2)  allowing the Deceased to retain the rental income from the Land; and

(3)  providing further financial assistance to the Deceased.

108.However, first, in relation to the alleged consent to “the use of the common funds by the Deceased as he did”:

(1)  The Plaintiff’s evidence at trial was that he only said, “Oh”, when the Deceased confessed to him, but he did not consent to the Deceased’s use of funds.

(2)  In any event, for reasons explained in Section H1 above, I have already explained that there is insufficient evidence to establish the alleged use of common funds by the Deceased to purchase the Land.

109.Secondly, in respect of allowing the Deceased to retain the rental income:

(1)  The Deceased, as the registered sole owner, was legally entitled to retain the rental income. The Plaintiff's “permission” for him to do so constitutes no detriment.

(2)  Further, the Plaintiff’s evidence at trial was that the discussion about the rental income had nothing to do with his 50% ownership in the interests in the Land. In the premises, the Plaintiff’s alleged permission to the Deceased to keep the rental income has no connection with any understanding that he has an interest in the Land.

110.Thirdly, in respect of the alleged financial assistance provided to the Deceased, it also has no connection with any belief that he has an interest in the Land.

(1)  In the 2020 Proceedings, the Plaintiff alleged that in each of 2015 and 2016, the Deceased borrowed a sum of US$10,000 per year from him. However, the Plaintiff never mentioned that there was any connection between the loans and his belief that he has an interest in the Land.

(2)  In fact, in the 2020 Proceedings, the Plaintiff counterclaimed against the Defendants for repayment of all the loans he had allegedly advanced to the Deceased, together with interest. He also alleged that he was entitled to use the rental income from House 643A (which belongs to the Deceased and/or his estate) to set off such loans. Where then is the detriment?

(3)  Further, there is not a single shred of evidence in these proceedings in relation to the alleged financial assistance. The allegations in this regard are just bare allegations.

(3)  Unconscionable for the Defendants to assert ownership in reliance on the legal title?

111.Accordingly, there is nothing unconscionable for the Defendants to assert ownership in reliance on the Deceased’s legal title to the Land.

112.For all the reasons above, the Plaintiff has failed to satisfy his burden of proving that the Deceased held half of the interests in the Land on a common intention constructive trust for him. His claim based on common intention constructive trust therefore fails.

H3.  Issue 3: Resulting Trust

113.First and foremost, the Defendants contend that the arithmetic quantification of the Plaintiff’s financial contribution towards the acquisition of the Land is not sufficiently pleaded.

114.I accept the Defendant’s submissions that the law on resulting trust requires an arithmetic quantification of the claimant’s financial contribution towards the acquisition of the property: see Ko Yin Fun v. Ko Chi Hung [2024] HKCFI 1608.

115.However, I do not agree that the Plaintiff has failed to plead the necessary material facts to establish his specific financial contribution to the purchase price of the Land in the amount of HK$2,800. In the Statement of Claim, the Plaintiff pleaded that:

(1)  “the consideration which the Deceased used to acquire the Land and the monies he subsequently spent on building the small house thereon all came from funds that were jointly owned by himself and the Plaintiff” (paragraph 7); and

(2)  “the Deceased held half share of his interest in the Land on resulting trust for the Plaintiff” (paragraph 10).

116.In the premises, I find it abundantly clear that the Plaintiff’s case is that he had contributed to half of the purchase price of the Land.

117.That said, for reasons explained in Section H1 above, I do not find that the purchase price of the Land came from the joint funds of the Deceased and the Plaintiff. Accordingly, the Plaintiff’s claim that the Deceased held half of the interests in the Land on resulting trust for him fails.

I.  CONCLUSION

118.For all of the above reasons, I dismiss the Plaintiff’s claims against the 1^st and 2^nd Defendants.

119.I make an order nisi that the costs of the 1^st and 2^nd Defendants in this action are to be paid by the Plaintiff, with certificate for one counsel, to be taxed if not agreed. The costs order nisi shall be made absolute 14 days from the date of this judgment.

Mr Sit Bache, instructed by C F Lee & Co, for the Plaintiff

Mr Lam Vincent and Mr Ng Kurt, instructed by Cheung Wong & Associates, for the 1^st and 2^nd Defendants