Tse Ho Kong v. Liu Weirong

DCCJ 2681/2021

[2026] HKDC 1735

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 2681 OF 2021

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JUDGMENT

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1.This is a dispute as to the beneficial ownership of the property situates at No 8 on the 12^th Floor of Block C, Hong Pak Court, No 139 Pik Wan Road, Kowloon (“the Property”).

BACKGROUND OF THE CASE

2.The Plaintiff (“the P”) is the only son of the family.  He has 4 sisters.  In or around 1979, the P came to Hong Kong with his late father (“the Deceased”) from Dongguan leaving behind his mother and the sisters.  In or around 1991, with the assistance of a mortgage of HK$250,000, the P purchased the Property together with the Deceased as joint tenant in the consideration of HK$578,000.

3.In or around April 1993, the Plaintiff and his parents moved into the Property.

4.In September 1996, the P got married and his wife also moved into the Property.

5.In May 1997, the P’s daughter was born and the P and his wife considered that the Property was too small and they moved to Tuen Mun in 1999.

6.The P’s mother died in February 2013.  The Deceased and the Defendant (“the D”) met in early 2014 and they lawfully married on 11 June 2014.  They lived in the Property as their matrimonial home.

7.On 13 August 2020, the Deceased was diagnosed with a brain tumour and he was hospitalised from 13 August 2020 to 23 September 2020.

8.In October 2020, the Deceased signed the Change of Specimen Signatures dated 15 October 2020 with the Bank of East Asia Limited and the New / Additional / Change of Authorized Representatives / Signing Arrangement/Chop Form with Chong Hing Bank Limited.  The D was added as an authorised signatory to the Deceased’s bank accounts. 

9.On 8 November 2020, the Deceased fell in the bathroom and the he was sent to the United Christian Hospital and was hospitalised again.  The Deceased was later transferred to Haven of Hope Hospital where he remained there until January 2021.

10.Since the Deceased's mobility had deteriorated so severely that he could barely move his right side of his body, the hospital advised that the Deceased would need at least two people to look after him.

11.On 4 January 2021, the P placed the Deceased into a care home in To Kwa Wan.

12.The Deceased passed away on 5 February 2021 and the D became the Deceased's principal beneficiary on intestacy.

13.Following the Deceased’s death, the P attended the Property on 27 April 2021 and demanded the D to move out, which she refused.

14.By a letter dated 3 May 2021, the P repeated the demand asking her to move out of the Property on or before 31 May 2021. Despite these demands, the D has remained in what she regards as her matrimonial home at all material times.

15.The P therefore claims against the D:-

(1)  An Order for vacant possession of the Property;

(2)  Damages to be assessed for mesne profit for the unlawful occupation of the Property from (i) 8 November 2020, or (ii) alternatively, 27 April 2021, or (iii) in the further alternative, such date as the Court finds until the delivery of vacant possession of the Property;

(3)  Interests;

(4)  Costs.

16.On the other hand, it is the D1’s case that:

(a)  It was the common intention of the Deceased and the P that the Property should be beneficially owned by the Deceased solely;

(b)  It was the Deceased alone who paid for the purchase price of the Property; and

(c)  The Deceased consistently assured her that the Property would be hers after his death.

17.Further or in the alternative, if this Court finds that the P and the Deceased were indeed the beneficial joint tenants, the D1’s case is that the joint tenant was severed when the Deceased obtained an Application for Transfer of Ownership (“Form HD7-c”) from the Housing Authority and completed it at home naming the D1 as the transferee and subsequently passed it on to the P for his signature but the P refused to sign it.  As the Deceased has on numerous occasions indicated his intention to transfer, the joint tenancy was thereby severed (“the 2019 Incident”). 

18.The Ds therefore asked for the relief that:-

(1)  A declaration that the Deceased and, upon his passing away, his estate beneficially owns the Property; and

(2)  A declaration that the 50% interest registered in the name of the P is held on trust for the Deceased and, upon his passing away, for his estate.

19.The P on the other hand denies that the Deceased had ever indicated to him any intention to transfer the Property to D1 and he even said that he saw the Form HK7-c the first time in these proceedings.

JOINT STATEMENT OF THE ISSUES IN DISPUTE

Beneficial Ownership

20.What was the common intention of the Plaintiff and the Deceased at the time of the purchase of the Property?

(1)  Had the Deceased been holding his interests in the Property on common intention constructive trust in favour of the Plaintiff, as pleaded by the Plaintiff?

(2)  Had the Plaintiff been holding his interests in the Property on common intention constructive trust in favour of the Deceased, as pleaded by the Defendants?

21.Had the Deceased been holding his interests in the Property for the Plaintiff on resulting trust since around the end of 2001, after the Plaintiff had paid the full purchase price of the Property, as pleaded by the Plaintiff?  Or is it the case that it was the Deceased who paid for the whole of the purchase price of the Property, and the Plaintiff has been holding his interest in the Property on resulting trust for the Deceased, as pleaded by the Defendants?

Joint Tenancy

22.Did the 2019 Incident pleaded in paragraph 8 of the Re-Amended Defence and Counterclaim happen as alleged by the Defendants?

23.If the 2019 Incident happened, did it sever the Plaintiff and the Deceased's joint ownership in the Property?

Trespass

24.Was the 1^st Defendant entitled to stay in the Property on or after 1 June 2021?

25.If not, is the Plaintiff entitled to claim damages for mesne profit against the 1^st Defendant from 1 June 2021 or any date as the Courts finds, until the delivery of vacant possession of the Property.

Common Intention Constructive Trust

26.It is not in dispute that the Property was registered in the joint names of the Deceased and the P because there was a common understanding that the purchase of a Home Ownership Scheme (“HOS”) Unit needed two names.  The issue is whether it was the P or the Deceased who held the Property for the other side.

27.It is the P’s case that it has been the family tradition that parents would build, purchase or transfer a landed property as a gift to each son for the use upon marriage.

28.Although the Deceased had told the P on multiple occasions that he would purchase a property in Hong Kong for the P pursuant to the family tradition, it is the P’s case that he should contribute solely to the purchase price of the property. 

29.Mr Lau representing the P in his Opening Submission submitted the P’s case as follows:-

“18…..While studying in secondary school, the P worked in construction sites during the school holidays and paid his salary of about HK$88,000 to the Deceased as funds to purchase a property.

19. In or around 1991, the Deceased and P viewed properties under Phase 13B of the HOS and decided to purchase the Property following the express discussions set out below:

(1) The Deceased and P wished to purchase a flat in Hong Pak Court rather than in another housing estate, as it was close to their then residence in King Lam Estate.

(2) The Deceased initially suggested purchasing a flat on a lower floor facing the roads, as it was cheaper, but P considered, and the Deceased agreed, that a flat on a higher floor facing the sea was a better option.

(3)  P insisted, and the Deceased agreed, that P would make monthly payments to the Deceased as his contribution towards the purchase price of the Property.

(4)  To express his gratitude to the Deceased for helping him purchase the Property, P suggested, and the Deceased agreed, that P would continue to make monthly payments to support the Deceased’s living expenses after paying the full purchase price of the Property.

(5)  They agreed that P would be responsible for paying the utilities and rates for the Property.

(6)  They opted for a plan under which mortgage repayment would commence immediately, in order to enjoy an additional discount on the purchase price of the Property.

(7)  They purchased the Property in joint names, rather than in the sole name of P, because the Deceased, who was financially more stable than P, would make mortgage repayments directly, and they understood that they were required to purchase the Property jointly under the Scheme.

20.  In light of the matters aforesaid, there was an express common intention between the Deceased and P that P would have sole beneficial interests in the Property.

22.  Between August 1991 and September 1996, P paid the Deceased HK$3,500 per month, totalling HK$217,000, as a contribution towards the purchase price of the Property. 

23.  In or around April 1993, P and his parents moved into the Property, and P began paying the utilities and rates.

25.  From October 1996 onwards, P paid the Deceased HK$6,000 per month as a contribution towards the purchase price of the Property.

27.  In September 1997, following the discharge of the legal charge, the Deceased passed all the title documents relating to the Property to P.

28.  Taking into account the sum of HK$88,000 previously contributed towards the funds for purchasing the Property, P had paid the full purchase price by July 2000. 

29.  Thereafter, P continued to pay HK$6,000 per month to the Deceased towards his living expenses until shortly before the Deceased was hospitalised in November 2020. P was the only child who supported the Deceased’s living expenses by making regular monthly payments.

30.  In the premises, the Deceased had been holding his interests in the Property on a common intention constructive trust for P since the date of purchase of the Property, or alternatively, on a resulting trust from around July 2000, or such other date as the Court may find, after P had paid the Deceased the full purchase price of the Property.”

30.The D1 on the other hand said that the purchase price was fully paid by the Deceased and the P’s name was only added as a matter of procedural formality.

Applicable legal principles

31.Mr Lau in his Opening Submission helpfully summarized the law which I shall adopt,

“11. In Leung Hang Lin & Another v Lam Mei Yung [2019] HKCFI 2819, §8 [P#1], DHCJ Alexander Stock SC succinctly summarised the principles of common intention constructive trust as follows:

“(1) The starting point is that equity follows the law.  There is a presumption that the beneficial interest follows the legal interest.  Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership.

(2) The burden may be discharged by showing that:(i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to 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.  The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom.  See: Luo Xing Juan §38; Liu Wai Keung §46.

(3) The approach to ascertaining common intention is objective.  One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct.  See: Liu Wai Keung §47; Mo Ying §5.16.

(4) The doctrine is sometimes described as having two limbs.  First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions.  Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention.  There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference.  See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts.  The court is not constrained to consider only pure direct monetary contributions to the purchase price.  In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters.  See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.” (Emphasis added)

12. In Chau Kwan Lam v Chau Ka Yee Carie [2025] HKCFI 1629 [P#2], it was said that where “The parties are family members and not legal professionals. It is not out of the ordinary for them to reach an agreement that was vague and imprecise” (§80), and “… however imperfectly remembered and imprecise the terms may be, I have regard to the principle that it would not be a barrier to finding that there was an express agreement, arrange or understanding between them” (§78).

32.Mr Ko in his Opening Submission quoted the followings:-

“27. It is trite that the party seeking to depart from legal ownership and establish a common intention constructive trust bears the burden of proof: Fu Lam Lam v Fu Ting Ting [2026] HKCA 458 [DLOA#1].

28. In Fu Lam Lam [DLOA#1], the Court of Appeal recognises the practical difficulties of proving that the parties intended their beneficial interests to differ from their legal interests absent of an express written agreement recording such an intention. Harris J remarked at §§18-19 that:

“18. 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." (emphasis added)

29. The Court of Appeal further remarked in Fu Lam Lam, at footnote 16 that “the courts increasingly recognise, relying on oral testimony to determine contentious matters is highly problematic”.

30. In a conventional Chinese family context, children's financial contributions to their parents are commonplace and could stem from a variety of reasons such as filial piety, love, duty, or moral obligation.  Such contributions, in the absence of an express agreement or understanding, cannot be readily invoked to infer an intention to share a beneficial interest in the property. In this regard, Recorder Lisa Wong SC (as she then was) observed in Fung Oi Ha y Fung Pui On and Another (unreported, HCA 17/2012, 6 June 2016) at §102 that:

“The relationship with which lam concerned is that between parents and children in what appears to be a conventional Chinese family practising traditional family values. In such a setting, the parents raise and provide for the children until adulthood. It is then commonplace for the children, after they attain financial independence or some measure thereof, to share with the parents a portion of their income. This may be done for a variety of reasons. Sometimes, the children are acting out of natural love and affection for the parents.  Sometimes, they are required to do so by the parents.  Sometimes, they volunteer to perform their filial duties to the parents. Sometimes, they are motivated by a moral obligation to help with the care of younger siblings who are still at school. Sometimes, the burden of the family expenses may require sharing. The children's contributions may or may not happen to be used to discharge mortgage loan payments and outgoings and expenses of the family home. I daresay, in a lot of these cases, the parents (and probably the children too) would be taken aback if they be told that, even in the absence of an express agreement or arrangement or understanding, the children's contributions could be used to support the inference of an intention to share the beneficial interest of the parents’ property (which may be the parents only shelter in old age) if such contributions should happen to be applied toward the mortgage payments of the property.” (emphasis added)

31. As to detrimental reliance, there must be some connection between the plaintiffs 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. Nourse LJ noted in Grant v Edwards [1986] Ch 638 [DLOA#3] at 648G-H that:

“So what sort of conduct is required? In my judgment it must be conduct on which the woman could not reasonably have been expected to embark unless she was to have an interest in the house. If she was not to have such an interest, she could reasonably be expected to go and live with her lover, but not, for example, to wield a 14-lb. sledge hammer in the front garden. In adopting the latter kind of conduct she is seen to act to her detriment on the faith of the common intention.”

33.Mr Lau in his Closing Submission said that Ds’ reliance on Fu Lam Lam v Fu Ting Ting is misplaced, as it concerns post-acquisition change of common intention.

34.Mr Ko on the other hand submitted that “The Plaintiff's point that Fu Lam Lam is a post-acquisition case is a red-herring.  Baroness Hale’s observations in Stack v Dowden have been applied in cases, regardless of whether the common intention was formed at the time of purchase or subsequently.”

35.In relation to the Ds’ reference to Fung Oi Ha v Fung Pui On & Another [D#2] for the proposition that the children’s contributions may or may not happen to be used to discharge mortgage payments and outgoings and expenses of the family home,  Mr Lau submitted in his Closing Submission that the same paragraph also states that such contributions may support an inference for the children to share the beneficial interest in the parents’ property where there is an “express agreement or arrangement or understanding” that the contributions are to be so used.

Discussion

36.D admitted in her oral evidence that she came to HK in 2012 and in July 2013 she knew that the Deceased became a widower.  She admitted that she met the Deceased on the 1st day of Lunar New Year in 2014 and got married on 11 June the same year. The D1 therefore only came into the picture around 23 years after the Property was purchased.  D1 would not have know what communications were held between the Deceased and the P at or prior to the time of acquisition.  In her oral testimony, the D1 admitted that she learnt everything from what the Deceased told her and she believed the Deceased.

37.Mr Lau submitted in his Closing Submission that “the entirety of the evidence relied upon in support of the D1’s primary case – that there was a common intention between the Deceased and the P that the former would be the sole beneficial owner of the Property – is heresay.”

38.I agree.

39.Is the D1’s evidence trustworthy?

40.In her witness statement, the D1 said,

“10. 自從我認識丈夫以來，我己經知道他以前有過一段婚姻：他的前妻於2013 年離世；他與前妻育有 個名兒女，分別叫謝愛嬌、謝愛順、謝浩光（即本案的原告人，下稱「原告人」）、謝愛月及謝愛嫦。就我所知，他們現年分別約為 60, 58, 56, 54 及52 歲。他們都有各自的家庭，其中謝愛嫦、謝愛順及謝愛嬌長居於中國大陸，而謝愛月及原告人則在香港。據我與丈夫結婚後所作的觀察，他的5 名兒女偶爾會與他來往，一年相聚約幾次。原告人一家過節時會來康栢苑單位食飯。

11.  多年來，丈夫都不會吝嗇與我分享有關自己的種種，例如有關自己兒女的事情，以及他自己於中國大陸所擁有的資產及物業等等。…”

41.Nevertheless, in Probate Form L1.2a, the D1 did not instruct her superior who helped her to fill in the form about the details of the children of the Decease because she did not know their names and ages.  From the inter-partes correspondence, it can be seen that as at 25 June 2024, the D1 was still seeking information for the purpose of applying for a letter of administration.

42.Paragraphs 10 and 11 of her witness statement were therefore incorrect.

43.The P was in fact 9 years old only when he came with the Deceased to settle down in Hong Kong but the D1 wrongly stated the P was around 11 in paragraph 14 of her witness statement.

44.Under the same paragraph of her witness statement, the D1 again stated wrongly that the P repeated primary 1 but as a matter of fact, the P repeated primary 2.

45.The D1 said that in 1991 when the Property was purchased, the P was still not graduated but the P was in fact graduated in June 1990.

46.As to when P started working, the D said that it was one year prior to his marriage in 1996.  However, it is clear from the evidence that he started working for the supermarket in June 1991.

47.As to when the P’s mother came to Hong Kong, the D1 in her oral testimony said that the P and his parents moved into the Property in 1993 but her 1^st and 2^nd affirmations stated that the P’s mother was about to come to Hong Kong in 1997.  When cross-examined, the D1 changed her evidence and claimed that she did not know when the P’s mother moved into the Property.

48.The D1 incorrectly stated in her 1^st and 2^nd affirmations that the P was married in 1997 but in fact the P was married in September 1996.

49.The D1 also incorrectly stated in her 1^st and 2^nd affirmations that the P and his family moved out in 2022 and she later corrected herself under cross-examination that they moved out in 1999.

50.In the D1’s witness statement, she stated,

“13. ...丈夫生前曾告訴我，於原告人與媳婦結婚後的初期，丈夫曾經將港幣＄ 10 萬元贈予原告人作為置業用的首期，用以購入原告人一家現在居住、位近屯門碼頭的一間居屋單位。然而，不知何故，該物業最後由媳婦和其妹妹所聯名持有。丈夫曾經告訴我，當時安排的本意是原告人一家會住在該位於屯門的居屋單位，而丈夫只會居住在康栢苑單位。”

51.In the P’s supplemental witness statement, he said,

“6. 屯門物業是由太太的妹妹程瑞美（即我的姨仔）及其丈夫陳漢坤購買的，父親從未就購買該物業支付任何金錢（見附件為一份日期2025年5月19日關於屯門物業的土地查冊）。

7. 姨仔及其丈夫在購買屯門物業後有移民到加拿大的打算，計劃大部分時間在加拿大逗留。當時適逢我和大大另覓新屋，所以他倆便讓我們一家三口住進屯門物業，順便幫他們看管及打理物業。

8.  直至2016年，當姨仔一家移民加拿大多年並確定不會回流香港後，太太以港幣3,650,000元向姨仔購入屯門物業（見附件為一份日期為2016年9月14日由太太和中國銀行簽署的按揭）。”

52.From the land search record, it clearly shows that the Tuen Mun Property was owned by the sister and her husband of the P’s wife (“Madam Ching”) in 1999 and Madam Ching acquired the Tuen Mun Property in 2016 only.  The P denied that he had ever received HK$100,000 from the Deceased.  When put to the D1 as to her inaccurate information about the Tuen Mun Property and as to the P never acquired the Tuen Mun Property with Madam Ching, the D1 said that it was the Deceased who told her.

53.In Court, the D also said that the P’s whole family together with his parents moved to Tuen Mun in 1999 and the Property was let out to the P’s wife’s friend but in fact only the P’s family moved out and his parents remained in the Property.  When asked why this piece of evidence was never mentioned in any of her affirmations/witness statement, the D1 said that her legal team 改編.

54.Regarding the PRC properties, the D1 said in her witness statement that;

“15.1 …丈夫亦提及原告人雖然是康栢苑單位的業主之一，但原告人本身自己擁有很多物業資產，因此不會與爭奪康栢苑單位的業權。丈夫亦進一步說自己在中國大陸的兩棟房屋每個月都有租金收入，可以安排我們夫妻收取其中一棟物業的租金作為收入，並將另外一棟的租金收入讓給原告人。在這個安排下，即使我不外出工作賺錢也可以過生活。”

55.At paragraph 32 of the D1’s witness statement, she stated;

“事緣我和丈夫決定結婚後（約於2014月，實際日期我已忘記），當時丈夫在其老家東坑鎮有四幢樓出租，每個月租金收入總共約有4萬多元人民幣，全數均由原告人收取，而其中兩幢本身為丈夫所擁有。原告人及媳婦要求該兩幢樓的租金收入全部給予他們倆夫婦，而原告人及媳婦則會每個月給予港幣$6,000元作家用。

56.Mr Lau submitted in his Closing Submission that,

“19. (3) Under cross-examination, D1 said the Deceased owned four, rather than two, PRC properties. Two had already been rented out in 2014, while the other two were rebuilt and let out only in 2016. She further said that the two rebuilt properties were subsequently transferred to P, although she was unsure when that had occurred.

(4) At one stage, D1 confusingly said that two of the four properties belonged to Madam Ching, while P and the Deceased each owned one of the other two.

(5) D1 was then referred to her 1st affirmation, in which she said that the Deceased had four properties in the PRC which were let out, generating approximately $40,000 per month, and that all rental income was paid to P and Madam Ching (“丈夫鄉下有 4 棟屋出租房租每個月 4 萬元，全部歸兒子與媳婦了媳婦每個月給 6 千元港幣我夫妻兩人用”). Upon further questioning, she said that she was unsure who owned the four properties.

(6) Next, D1 was referred to her 2nd affirmation, in which she said the Deceased had four properties in the PRC which were rented out for about $40,000, and that all of the properties had been gifted to P (“丈夫兒子媳婦鄉下有4棟屋出租，每月收租4萬元，丈夫同我結婚鄉下屋全部給了兒子，媳婦每月給 6 千元港幣我們家用…”). This suggests she indeed knew that P was the owner of all four properties.

(7)  Finally, when it was suggested to D1 that the four PRC properties had belonged to P since she met the Deceased, D1 said that she was unsure who owned them. She nevertheless said that she had heard from the Deceased that all four belonged to him, and that he had paid for the construction of three of the four properties.”

57.On the other hand, in the P’s supplementary witness statement, he stated,

“11. 在該證人陳述書第32段，劉女士聲稱父親在東莞東坑鎮有四棟樓出租，每個月租金收入總共約有4萬多元人民幣，全數均由我收取，而其中兩棟本身為父親所擁有。她續稱我和太太要求該兩棟樓的租金收入全部給予我們，而我和太太則每個月給予父親港幣6,000元作家用。這些全部都不是事實。

12. 該四棟樓分別位於：

(1)  東莞市東坑鎮中興南路井美路段（下稱「物業一」）；

(2)  東莞市東坑鎮東興路290號（下稱「物業二」）；

(3)  東莞市東坑鎮井美村35號（下稱「物業三」）；及

(4)  東莞市東坑鎮井美村66號（下稱「物業四」）。

13.  我在1998年成為物業－的業主（見附件為物業一的房地産權証第C0695808號）及在2006年成為物業二的業主（見附件為物業二的房地產權証第C4955839 號）。

14.  我在2013年安排重建物業二，工程費全由我支付，工程大約一年完成（見附件5）。

15.  我大約在1996年成為物業三和四的業主，有由東莞市東坑鎮測繪隊批核及繪製印有我姓名的紅線圖各一張見附件6和附件7)。

16.  我在2016年向井美村村民委會申請將物業三和四改建，政建工程大約在2017年初至中完成，工程費全由我支付。由於我是兩個物業的業主，兩張日期為2016年4月26日的《井美村房屋改建申請表》均寫上我的姓名（見附件8和附件9)。

17.  此外，由於大家姐謝愛嬌一家在東莞市居住，我經常託她和大姐夫謝楊德處理四個物業的事宜，包括租賃事宜及改建物業三和四的事宜。因此，兩份日期為2016日與改建工程相關的《保證書》均由大姐夫簽訂（見附件10和附件11)。

18.  從上述可見，這四個物業在2014年至 2021年間（即劉女士認識父親那年直至父親過身那年）都是我的物業，並非由父親擁有。這些與本案的爭議毫無關係。＂

58.As the P has submitted documents to support his versions, the D1’s allegation must be incorrect.

59.In her 1st Affirmation, it was also wrong to state that the P would soon be graduating and the P’s mother would also be settling down in HK in 1997.

60.From a letter from the D1’s solicitors to the P, it said, “We are instructed that out of his love and affection for our client and in view of his worsening health, in or about September 2020 the Deceased expressed his wish that all the monies in the Deceased's Accounts be given to our client and at her disposal.  In the D1’s oral testimony however, she said that the withdrawals were for the joint use of her and the Deceased.

61.I do not believe that the withdrawals were also for the use of the Deceased.  In her oral testimony, the D1 agreed that the medical expenses were paid for by the P.  She also agreed that she only needed to spend small amount of money such as diapers, ingredients for cooking soup and fruits etc.  She did not give any explanation as to why she needed to withdraw such a substantial amount of money.

62.Mr Ko submitted in his Closing Submission that,

“96. The Plaintiff admitted that he and his wife retained the Deceased’s identity card and did not return it. The D1’s evidence is that the Deceased requested for the return but was refused, and had to obtain a replacement. The old and new identity cards appear in the bundle, which serves as clear documentary evidence in support of the D1’s evidence – why else would the Deceased obtain a new ID card?  The Plaintiff’s explanation—that he kept the card because it might be needed for medical care—is improbable. The Deceased could have supplied his own identification whenever it was required. The more natural inference is that the Plaintiff retained it against the Deceased’s wishes.”

63.I do not accept that the P’s retention of the Deceased’s identity cars was against the Deceased’s wishes.  From the exhibit submitted by the D1, the new identity card was issued on 6 October 2020 and the D1 had made the following substantial withdrawals:-

The Deceased’s Account	Withdrawal Date	Amount (HK$)
Chong Hing Bank Limited	28 September 2020	5,000
Chong Hing Bank Limited	29 September 2020	8,000
The Bank of East Asia, Limited	30 September 2020	10,000
The Bank of East Asia, Limited	5 October 2020	10,000
Chong Hing Bank Limited	5 October 2020	9,000
The Bank of East Asia, Limited	6 October 2020	14,000
The Bank of East Asia, Limited	15 October 2020	10,000
Chong Hing Bank Limited	20 October 2020	5,000
Chong Hing Bank Limited	30 October 2020	15,000
Chong Hing Bank Limited	30 October 2020	50,921
The Bank of East Asia, Limited	11 November 2020	4,000
The Bank of East Asia, Limited	16 November 2020	3,800
The Bank of East Asia, Limited	23 November 2020	3,720
Chong Hing Bank Limited	1 December 2020	2,500
The Bank of East Asia, Limited	16 January 2021	3,710
Total:		154,651

64.I find that the replacement of the Deceased’s identity card was solely to enable the D1 to withdraw money from the Deceased’s account.  I find that the D1 was very money conscious.

65.The P in his witness statement said,

“47. 　　2020年9月 28 日，我和大大到薑田物業探訪父親，並且給他港6,000 元現金。 父親當時說話不大清晰，但透過反覆聆聽和向他覆述我們理解的意思再讓他點頭確認，我們理解到：他向我們投訴，稱劉女士用輪椅推他到銀行提款，要求他將所有積蓄都轉給她，最終提了港幣 5,000 元現金給劉女士。 當我質問劉女士推父親到哪裡時，她起初拒絕回答並躲到廚房，直到我多次追問，她才坦白說她推父親去銀行提款。 我當時責罵劉女士，指那些是父親的積蓄，不要這麼過分地將父親的錢取出來自己用。

48. 　我在此訟案展開後，從劉女士披露的文件得知，劉女士在 2020年9月至 2021年1 月期間在父親的創興銀行戶口及東亞銀行戶口一共提取港幣 154,651 元，而且每次提款都非常頻密。”

66.I accept the P’s version.

67.Mr Lau in his Closing Submission submitted that,

“109. (4) Third, it is undisputed that the Deceased was admitted to hospital again on 8 November 2020.  D1 said in her witness statement that after the Deceased was admitted to hospital, she found out that P had not paid HK$6,000 to the Deceased since August 2020.  She allegedly complained to the Deceased twice and even involved the eldest sister. Under cross-examination, she agreed with the proposition that she had to complain to the Deceased because, without the monthly HK$6,000, she was worried there would be insufficient money to support the Deceased’s and her living expenses, which according to her ranged from HK$10,000 to HK$20,000 per month.”

68.For my part, under cross-examination, the D1 also said that the P was under the duty to pay because he had received rent from the PRC properties.

69.If the D1 was not money conscious, how would she find out that the P did not pay?

70.In the P’s witness statement, he said,

“57. 當父親從醫院回到家中安頓好後，劉女士要求我向她支付工資，否則她不會無償照顧父親。 她更指：「我出去打工都有一份人工。」我當時非常憤怒地貴罵她，指她作為太太，竟然說沒有工資就不照顧父親，應該立刻搬離藍田物業。

63.  我於是打電話給劉女士，討論照顧父親的問題，並告訴她護士的建議。怎料劉女士不僅要求我立即聘請外傭照顧父親，還再次要求我支付她工資。她一再強調說：「我出去打工都有一份人工。」”

71.I believe that the D1 did ask for her salary.

72.In her witness statement, the D1 said that,

“15. (2) 未結婚前，丈夫說我倆結婚後都是住在康栢苑單位。他說這個家是謝權發給老婆劉偉容的。如果原告人有意見，他就會提出把康栢苑單位賣出去，到時也有錢可以出去租屋住。

(3) 丈夫亦曾經對我的父母許下承諾：當年與他結婚前，我們曾結伴回到我位於惠陽淡水鎮的老家探我的家人。吃飯期間，丈夫向我父母提親。當時我的父母問他：「你的年紀這麼大，卻要與我的女兒結婚，你有什麼給她？」。丈夫回應說：「爸爸媽媽你兩人可以放心。我是個老實人，說過的話一定算數。香港藍田康栢苑祥柏閣12室是我買的，在屋契有我的兒子謝浩光的名字。劉偉容與我結婚後到香港拿身份證，我謝權發那份會安排給老婆劉偉容，法律是這樣，老公的物業是歸老婆的。」

(4)  結婚後，我們都有共識我們兩夫妻都會在康栢苑單位終老，而他擁有的業權最終亦將歸我擁有。我們結婚多年來，權發也不時提到他在康栢苑單位的業權最終將是歸我的，並以「我退出，你加入」來表示。”

73.Mr Lau put to the D that either what the Deceased told the D was not true or he had never mentioned those matters.

74.I agree.  I do not believe that the Deceased had told her that the purchase money was paid by the Deceased solely and that the P’s name was only added as a matter of procedural formality. I also do not believe that the Decease would have told her the Property would be hers in due course.

75.I did not find the D1’s to be a credible and reliable witness.  I found her evidence inconsistent with the contemporaneous document and/or undisputed background and was internally inconsistent.  When given an opportunity to explain, she was either evasive or was not able to give a satisfactory or convincing explanation for the inconsistencies.

76.On the contrary, I find the P’s and Madam Ching’s evidence honest and consistent.  At the request of this Court, it was directed that Madam Ching be excused from the courtroom while the P was giving evidence. Mr Lau submitted that “The fact that their evidence remained consistent despite such an arrangement is telling; it demonstrates that they were both truthful and credible.”

77.I agree.

78.I accept that the P kept no record of the cash payments to the Deceased and Madam Ching also said that many bank accounts did not have bank passbook.  In any event, banks only keep record for a certain period.

79.Regarding the issue of title deeds, I accept the P’s evidence.  The P could not recall whether he went with the Deceased to collect the title deeds from the solicitors’ firm and yet the acknowledge of the receipt of title deeds were signed by both the P and the Deceased.  If both went together to collect the title deeds, I believe that the P kept them with the consent of the Deceased but if the Deceased went alone, it is highly likely that he later gave the title deeds to the P for his safe keeping.  I do not accept that the Deceased had repeatedly demanded the return of title deeds because one does not need them to instruct lawyer for the preparation of a Will.

80.Mr Lau drew my attention to the following case in his Closing Submission,

“69. The significance of retention of title deeds is emphasised by the Court of Appeal in Leung Chung Ching Edwin v Estate of Leung On Mei Amy [2019] 1 HKLRD 109, §56 [P#34]:

“56. In respect of Mr and Mrs Leung’s retention of the title deeds of the Thyrse House properties, Mr Ismail did not dispute that the Judge was entitled to have regard to it when considering whether the 17th Floor Property was gifted to Amy or held by her on trust.  Indeed, retention of the title deeds is a significant piece of evidence that can go to show that the keeper of the title deeds is the beneficial owner: see Ip Man Shan Henry v. Ching Hing Construction Co Ltd, supra…” (emphasis added)

81.I accept it has been the family tradition of the P to favour boys.  I can infer from the fact that the P was the only child whom the Deceased brought with him to settle in Hong Kong. 

82.Mr Lau also submitted in his Closing Submission,

“48. The Court is respectfully invited to consider the application of the rule in Browne v Dunn and whether it would be fair to permit Ds to rely on any criticisms that were not put to P or Madam Ching, thereby depriving them of an opportunity to respond. See Bontex International Ltd v Kaiser Investment (Group) Ltd [2026] HKCFI 117, §§24, 31 and 34 [P#33], where the Court held that the defendant, who was acting in person, was not entitled to contend that the plaintiff’s witnesses’ accounts were untrue when he had not cross-examined them on the relevant matters.

49. P’s evidence regarding the Tse Family Tradition and her sisters’ compliance with that tradition was not challenged under cross-examination.

50.  Ds should not be permitted to maintain the criticism in §§66-67 of Ds’ Opening Submissions, namely the Tse Family Tradition only applied in Dongguan but not in Hong Kong or that P failed to call any family member to testify about it.  These matters were not put to P in cross-examination.”

83.I accept that the Property was the P’s matrimonial home when he got married with Madam Ching.  It was only subsequently after the daughter was about 2 years old and the P ‘s financial condition has improved that they moved to Tuen Mun.

84.Regarding the D1’s new evidence that Madam Ching took away the tittle deeds after the death of the P’s mother, I do not accept that as it was neither in her two affirmations, pleadings and witness statement.

85.Mr Lau also submitted that,

“56. As regards P’s monthly payments towards the purchase price of the Property, P was clear that the monthly sums of HK$3,500 paid to the Deceased between August 1991 and September 1996 were exclusively for the purchase of the Property.

57. Under cross-examination, P unequivocally denied the suggestion that part of the HK$3,500 represented a contribution to the household expenses (“家用”). He explained that he separately paid for basic pantry items using staff discount in ParknShop, while the Deceased paid for food.

58.  In §73(2) of Ds’ Opening Submissions, Ds challenge financial plausibility of the arrangement under which P paid HK$3,500 per month.  However, Ds did not explore the plausibility of that arrangement with P during cross-examination and should not be allowed to maintain the challenge.”

86.I agree and, in any event, Mr Ko also submitted that,

“83. The evidence is particularly implausible in relation to the early monthly sums. In August 1991 the Plaintiff’s income was just over HK$4,000 a month. The alleged payment of HK$3,500 would have consumed almost all of his income, leaving little for his own expenses. No bank record, receipt or independent witness corroborates this extraordinary assertion.”

87.I accept that there are no bank records due to the long lapse of time and as it is financial matter between father and son, I also accept that there is no independent witness. The sum of HK$3,500 out of the P’s income of HK$4,000 was a lot of money if it was for household. I do not accept that the regular payments were for contribution of household expenses.  I accept that they were contribution of the purchase price.

88.Mr Ko submitted in his Closing Submission that,

“29. The Property was not an investment or surplus family asset. It was the Deceased’s Hong Kong home. He lived there with his first wife, the Plaintiff’s mother, until her death in February 2013. Thereafter he lived there with Ms Liu after their marriage. The Property therefore supplied the Deceased’s and his spouses’ ordinary domestic shelter over many years.

65. In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, §1.5, A distinction is drawn between cases involving “the only property which the parents had” and “a case where the parents purchased an additional property in the name of their only son as his matrimonial home shortly before he got married or where they paid the down payment for the son's home after he had established himself in life”.

66.  Here the Property was the Deceased’s only Hong Kong home and his matrimonial home. It was not an additional asset placed in the Plaintiff’s name shortly before the Plaintiff’s marriage. The factual foundation for any presumption of advancement is absent; if it arises at all, it is decisively rebutted by the evidence.”

89.In the P’s witness statement, he said,

“9. 我和父親到達香港後，最初住在鑽石山木屋區，直至住處需要拆遷時，政府安排我們入住將軍澳景林邨景楠樓的公屋單位。”

90.The Deceased never owned any property before in Hong Kong.  The Property was the Deceased’s and the P’s first property.  The question is whether it was the Deceased or the P who held on trust for the other.

91.As the P could account for the chronology and the background leading to the purchase of the Property clearly whereas the D1 ‘s evidence could not be believed, I accept the P’s case.

92.I do not accept that the Deceased repeatedly assured to the D1 that the Property would be hers after his death.

93.In the P’s witness statement, he said,

“38. 2019年2月那日，起初我們只是輕鬆地閒聊，但父親突然語氣變得沈重，面有難色地跟我說：「阿容（即劉女士）成日鵝我，要我將間屋我個名轉俾佢，我唔會啦，間屋係你嘅。」

39. 我當時問父親劉女士是如何要求他轉名的，以及她有否帶父親到律師樓或要求他簽署任何文件。父親回答指劉女士只是一味煩擾他，沒有做任何實質行動。我於是提醒父親上述約2000年他被搶走或騙走福田居所的事件，干叮萬囑他不要隨便簽署文件：「老豆，唔好亂簽名呀，你記唔記得福田間屋，簽左名就被人搶走。」最後，我跟父親說他無視劉女士的要求便好：「佢鵝你，煩你，就當佢唱歌，唔好理佢。」

40. 之後，父親經常和我或大家姐抱怨劉女士煩着要求他轉名，次數很多無法一一記錄，我只提及以下幾件印象較深刻的事情。

42. 2019 年6月26日，我的兩個家姐從東莞來到香港，籌備二家姐的孫兒的百日宴。她們兩和父親來我家探訪我，我們四人一起到茶樓飲茶，期間聊起劉女士要求父親將他在藍田物業的名轉給她。父親強調藍田物業是我的，向我們幾姊弟保證他不會答應劉女士的要求。

43. 2020年初，由於新冠疫情，父親大部分時間都留在家裡，但他經常通過電話向我抱怨劉女士不斷催促他轉名，並表示因此睡不好。我將父親的情況告知大家姐，而她也提到父親亦有致電給他講述同樣事情。經商量後，我們建議父親暫時到大家姐的家住，與劉女士分開，父親亦同意這個安排。 然而，基於香港政府和中國政府在疫情期間的旅遊限制，我們不得不擱置這個安排。

44.  2020年6月25日端午節那天，大家姐在晚上告訴我，父親剛打電話給她，哭訴他娶錯了劉女士，指劉女士一領取香港身份證後就「現其身」，逼他將藍田物業的名轉給她，還抱怨劉女士將大部分現金帶回家鄉給外家。 大家姐指她建議父親趁劉女士不在家時多休息，儘量避免爭吵。”

94.Mr Lau in his Closing Submission submitted that,

“107. … it is P’s case that since early 2019, D1 repeatedly nagged the Deceased to transfer the Property to her.  The Deceased was annoyed by D1 and complained about her conduct to his children, including P, on numerous occasions.  P’s evidence on this issue remains unchallenged during P’s cross-examination and should therefore be accepted by the Court.

108.  The above unchallenged conduct of D1 suggests that the Alleged 2019 Incident did not happen, and that, instead of the Deceased initiating and suggesting that the Property be transferred to D1, it was D1 who nagged the Deceased to do so.”

95.I agree and I also believe that it was the D1 who nagged the Deceased to do so.

96.By reasons that I have given, I accept that there was a common intention constructive trust that the Deceased was to hold the Property for the P at the time of the acquisition of the Property.

97.Alternatively, after the P fully repaid the purchase price of the Property, the Deceased held the Property on resulting trust for the P.

Severance

98.Mr Ko submitted in his Opening Submission that,

“40. The principles of severance of joint tenancy as stated in Chiu Kwok Yin Wendy and Chiu Kang Huen Kenneth as the Executors of the Estate of Chiu Wan Yin Vernessa Deceased v Lo Wai Hung Peter And Another [2022] HKCFI 65 5 [DLOA#9] at §§18-20:

“18. A joint tenancy can be severed at law or in equity: see Conveyancing and Property Ordinance (“CPO”) (Cap 219) s.8.

19. At law, a joint tenancy in land may be severed only by either (a) a notice of severance or (b) an instrument: see CPO s. 8(1). A will is not an ''instrument" for the purpose of severance: CPO s. 2. Therefore, the Will per se did not sever the interests of the Deceased and Peter in the Property held as joint tenants.

20. In equity, a joint tenancy can be severed “by any other method that is effective in equity ": CPO s. 8(2). In this regard, it is well-established that a joint tenancy can be severed by three methods, namely:

(1) an act of any joint tenant "operating upon his own Share”;

(2) by mutual agreement between the joint tenants; and

(3) any “course of dealing" sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common."

99.Mr Lau submitted in his oral submission that the Ds must be relying on the first method because the second and the third one require mutuality.  I agree.

100.In respect of the first method, Mr Lau submitted that an act of severance must be final or irrevocable.

101.In the case of In re Wilks [1891] 3 Ch59, Stirling J held that,

“….if the act of a joint tenant amounts to a severance it must be such as to preclude him from claiming by survivorship any interest in the subject-matter of the joint tenancy.

In the present case all that was done by or on behalf if Wilks Child was to take out and prosecute a summons for payment of one-third of the fund to himself; but no order was made.  Until an order was made on that summons Wilks Child was completely master of the proceedings; he was at liberty, if he thought fit, to discontinue them at any moment, paying of course the costs incurred by the other parties.  It was therefore held that nothing had been done by or on behalf of Wilks which amounted to a severance of the joint tenancy.

102.Gray & Gray Elements of Land Law (5^th ed) (at §7.4.73) the author says:

“…in order to amount to severance the ‘act’ of the joint tenant must be such as to preclude him from claiming by survivorship any interest in the subject-matter of the joint tenancy. In other words, the ‘act’ which operates upon the joint tenant’s share must have a final and irrevocable character which estops any future claim that longevity has conferred the benefits of survivorship on that co-owner.”

103.Mr Lau in his Opening Submission also drew my attention to the following paragraph §7.4.82;

“Despite isolated statements to the contrary, a mere declaration of intention to sever is ineffective towards that end.  Unless incorporated in a written notice or contained in a specifically enforceable agreement to alienate the ‘share’ concerned, it is difficult to see how a unilateral declaration by a joint tenant can truly be said to ‘operate upon’ his own share or destroy the unity of title which is constitutive of joint tenancy.  This stern approach to mere declarations of intention is aimed at countering the hazard of uncertainty: such declarations, like the execution of a testamentary disposition, lack the irrevocable or definitive quality required for severance. If a statement of intention were effective to sever, it could become infinitely more difficult to identify the precise beneficial ownership of jointly held land.” (Emphasis added)

104.Mr Lau also submitted,

“57. The isolated statements referred to in the passage above are found in Hawkesley v May [1956] 1 QB 304 [P#18] and In re Draper’s Conveyance [1969] 1 Ch 486 [P#19].

58. In Hawkesley v May [P#18], Havers J said, after referring to Williams v Hensman [P#13], that the first method “obviously includes a declaration of intention to sever by one party”.

59. In In re Draper’s Conveyance [P#19], Plowman J, relying on what Havers J said in Hawkesley v May [P#18], held that the wife’s summons pursuant to s.17 of the Married Women’s Property Act 1882, coupled with her supporting affidavit, showed an intention inconsistent with the continued joint tenancy and operated to sever her beneficial joint tenancy.  At p.49B-C, he held that there should be a severance “whether they are based on the new provision in section 36(2) of the Law of Property Act, 1925, or whether they are based on the old law which applied to severing a joint tenancy in the case of a personal estate”.

66. Subsequently, in Harris v Goddard [P#11], the Court of Appeal considered the conflicting authorities as such:

(1)  At p. 1209H-1210B, Lawton LJ agreed with Plowman J’s decision in In re Draper’s Conveyance [P#19], and said that “The fact that the wife…could have withdrawn the summons is a factor which could have been taken into account in deciding whether what was done was effectual to sever the joint tenancy in equity.  The weight of that factor would have depended upon all the other circumstances and was in that case clearly negligible.”

(2) P submits that, in saying so, Lawton LJ did not hold that an act under the first method need not satisfy the requirement of finality or irrevocability. Rather, based on the facts of that case, the possibility of withdrawal of the summons was negligible: see also Gray & Gray, Elements of Land Law (5th ed), §7.4.83 [P#16].

(3)  It is also pertinent to note that, in In re Draper’s Conveyance, p.489D [P#19], by the time when the matter came on for hearing before Plowman J, an order for sale had already been made and the wife could no longer withdraw or amend the summons. She therefore appeared to have carried her acts to such a point as to preclude her from claiming any right by survivorship.

(4)  At p.1210C-D, Dillon LJ affirmed Plowman J’s decision in In re Draper’s Conveyance [P#19] only to the extent that it was based on severance by notice under s. 36 of the Law of Property Act 1925. At the same time, his lordship affirmed Stirling J’s decision In re Wilks [P#14], but said that it would have been decided differently in light of s.36 of the Law of Property Act 1925. 

(5)  In light of the positions taken by Lawton LJ and Dillon LJ, it is respectfully submitted that In re Wilks [P#14] should remain good law insofar as the first method is concerned.  Accordingly, a mere declaration of intention is insufficient to effect severance under the first method because it does not satisfy the requirement of finality or irrevocability.

67.  In Megarry & Wade, The Law of Real Property (10th Ed), §12-041 [P#23] similarly states that:

“It has been suggested that a mere declaration of intention to effect a severance by one joint tenant will effect a severance under this head.  However the better view is that such an act is insufficient and that this method of severance is successful only where a joint tenant alienates his interest, or in some other way acts so that there is a change in his equitable interest in the property.”

70.  P’s submission on law relating to the first method can be summarised as follows:

(1)  A mere declaration of intention to sever cannot effect severance under the first method because it does not fulfil the requirement of finality or irrevocability. 

(2)  The decision in Hawkesley v May [P#18] should be confined to its own facts or should not be followed insofar as it treats a unilateral declaration of intention, without more, as sufficient to effect a severance under the first method. It was decided without examining the relevant authorities which had suggested that a declaration of intent did not sever, and without providing sufficient reasoning why the first method included a declaration of intention to sever. 

(3)  The decision in In re Draper’s Conveyance [P#19] should be considered in light of the comments of Lawton LJ and Dillon LJ in Harris v Goddard [P#11]. It should not be read as having abandoned the requirement of finality or irrevocability under the first method and is better to be followed to the extent that it was based on s.36 of the Law of Property Act 1925 only.

(4)  In re Wilks [P#14] should remain good law insofar as the first method is concerned, although it would have been decided differently in light of s.36 of the Law of Property Act 1925.

(5)  A declaration of intention to sever should not be recognised under the third method, as suggested by Lord Denning MR in Burgess v Rawnsley [P#22], because the third method concerns a “mutual intention” arising from the course of dealing between the joint tenants.

(6)  Recognising a declaration of an intention to sever as a method of severance will cause logical inconsistency, because it would be difficult to justify why the declaration would need to be communicated when other acts of severance under the first method could be concealed from the other joint tenants.

(7)  It is undesirable to recognise a declaration of intention as a way of severance as it would create uncertainty and render other methods of severance nugatory.”

105.I am grateful for Mr Lau’s helpful submission.

106.On the other hand, Mr Ko submitted in his Opening Submission that,

“95. The Court held (obiter) in Tam Tak Ming [DLOA#11] that a Form HD7-C is capable of severing a joint tenancy in law. The present case shares striking factual similarities with Tam Tak Ming [DLOA#11]:

(1) In both cases, the subject property was a HOS unit held by two family members as registered owners and thus joint tenants.

(2) In both instances, one joint tenant, upon falling ill, obtained the Form HD7-C with the intention of transferring his or her interest in the HOS property to a family member other than the co-owning joint tenant.

(3)  Similarly, the completed HD7-C Form was presented to the Other joint tenant at a family gathering.

(4)  In both cases, the other joint tenant also refused to sign the form despite repeated requests.

(5)  Both transfers could not be completed because all registered owners were required to sign the Form HD7-C before it could be submitted to the Housing Authority. The transferring joint tenant had done everything within his/her power but was frustrated by the refusal of the other joint tenant.

96.  It is submitted that the HD7-C Form constitutes a valid notice of severance under section 8(1) of the Conveyancing and Property Ordinance (Cap 219).”

107.Mr Lau however in his Closing Submission submitted that,

“83. In Tam Tak Ming v Tam Chi Ming, §68-69, the Court emphasised that it was a prerequisite for the transfer of ownership of the property that the intended transferee be a registered family member:

“68. 根據被告人提交的證物，包括一封由房委會發出的信件，證明被告人為居屋單位的已登記的家庭成員。另外還有一份房委會「業權轉讓申請須知」的文件，文件列明，根據《房屋條例》，居屋的業權是不可自由轉讓，但在特殊情況下，房委會可根據個別情況，酌情批核業權轉讓之申請。先決條件包括 (i) 業權轉讓必須不涉及金錢代價的轉讓契據形式辦理；及 (ii) 準承讓人必須為該物業已登記的家庭成員。一般房委會考慮轉讓業權申請的原因，包括業主去世、業主年紀老邁 (即65歲或以上)，或業主身患危疾 (如癌症) 而更改業權。

69. 換句話說，譚母將其業權轉給被告人，是完全符合房委會所定下的居屋業權轉讓的先決條件和申請的原因。” (emphasis added)

108.In these proceedings, apart from the Form HD7-c, the D also disclosed Application for Addition / Deletion of Family Member(s) (Form HD771C) (加入/刪除家庭成員申請書).  It was blank.

109.In her oral testimony, the D1 said that both forms had been obtained on the same occasion from the Housing Authority office in Sau Mau Ping (“the HA office”).

110.Mr Lau submitted in his Closing Submission that,

“82. In the “Information for Applicants” section in Form HD7-c, it is clearly stipulated that the proposed assignee must be a registered family member (except in deceased cases) of the property concerned (“準承讓人必須為該物業已登記的家庭成員(業主去世個案除外)”). Therefore, if an intended transferee has not been registered as a family member, it is necessary for both the transferor and the transferee to complete Form HD771C in addition to Form HD7-c.

84.  In the present case, there is no documentary evidence to show that D1 has been registered as a family member of the Deceased (such as a letter from the Housing Authority as in Tam Tak Ming). The fact that, on Ds’ case, Form HD771C was obtained together with Form HD7-c, suggests that D1 has not been registered as a family member of the Deceased.”

111.I accept that. The case of Tam Tak Ming v Tam Chi Ming does not apply.

Did the 2019 Incident happen?

112.Under cross-examination, the D admitted that both she and the Deceased did not know how to fill in the forms and yet they did not make any enquiries to any of the staff in the HO office.  It is clear from the disclosed Form HD7-c that the form was partially filled and marked.  These included circling the letter “H” under the grounds for applying for consent to a transfer of ownership, circling “HK$2,850” as the administrative fee for the application for transfer of ownership and circling “HK$2,350” as the administrative fee payable upon approval of the transfer. 

113.Mr Lau submitted in his Closing Submission that;

“91.  Under cross-examination, D1 confirmed that the Deceased could read Chinese and alleged that the handwritten markings in the “Information for Applicants” section in Form HD7-c were made by the Deceased….If so, it is more likely than not that the Deceased had studied the information for applicants, knew how to complete the form and understood that it was necessary to register D1 as a family member.”

114.I agree.

115.However, Form HD7-c was not completed and Form 771 C was left blank in its entirety.

116.Looking at Form 771 C, all that is required is the address of the Property, personal particulars of D1 including her name, HKID number, relationship with the transferor, current residential address, contact telephone number and signatures.

117.Mr Lau submitted in his Closing Submission that,

“92. Form HD7c is straightforward to complete, at least insofar as it requires the address of the Property and the reason for the transfer to be stated, as well as responses – by circling the applicable options – to a number of matters which the applicant is required to acknowledge.”

118.I agree.

119.Mr Lau also submitted in his Closing Submission that,

“93. Third, there is substantial inconsistency as to who filled out Form HD7-c.  In the Re-Amended Defence and Counterclaim, it is pleaded that the Deceased alone “filled in the form with the personal particulars of himself and those of the Defendant, naming her as the transferee”.  In D1’s witness statement, however, she said that the Deceased asked her to fill out her personal information in the space for the intended transferee (“權發在申請書上填寫資料，亦叫我在「準承讓人」一欄中填上我自己的個人資料”). Under cross-examination, she gave a third version, namely, that she merely signed the form and stated the date, while the Deceased filled in her HKID card number and mobile phone .  These inconsistencies strongly suggest that her evidence was untruthful.

94. Fourth, and importantly, the purported signature of the Deceased as it appears on Form HD7-c is wholly different from his usual signature.  Under cross-examination, D1 clearly and unequivocally confirmed that the Deceased’s name in traditional Chinese characters, although written in the space for name, was the Deceased’s signature.  However, the Deceased would only sign his name in simplified Chinese characters, as shown in the following documents:

Document	The Deceased’s purported signature and his usual signature
(1)  The purported Form HD7-c [D2/86/700]
(2)  Letter from Hong Kong Housing Authority to the Deceased dated 25 October 1991 [D1/23/372]
(3)  Sale and purchase agreement of the Property dated 30 October 1991 [D1/15/314]
(4)  Sale and purchase agreement of the Property dated 30 October 1991 [D1/15/315]
(5)  Cashier’s order application dated 30 October 1991 [D1/36/413]
(6)  Cashier’s order application dated 30 October 1991 [D1/36/413]
(7)  Letter from Nanyang Commercial Bank to P and the Deceased dated 18 November 1991 [D1/25/374]
(8)  Equitable mortgage dated 18 November 1991 [D1/16/331]
(9)  Equitable mortgage dated 18 November 1991 [D1/16/331]
(10)  Legal charge dated 14 April 1993 [D1/17/355]
(11)  Legal charge dated 14 April 1993 [D1/17/355]
(12)  Assignment dated 14 April 1993 [D1/18/362]
(13)  Acknowledgement of receipt of title deeds dated 5 November 1997 [D1/36/416]
(14)  Undated Postal Savings Bank of China application form [D1/36/418]
(15)  Old age living allowance “postal review” form dated 5 March 2014 [B/10/131]
(16)  Marriage certificate dated 21 June 2014 [D2/77/660]
(17)  China Construction Bank application form dated 18 August 2015 [D1/36/420]
(18)  Authorised signatory form of BEA dated 15 October 2020 [D3/99/854]
(19)  Authorised signatory form of BEA dated 15 October 2020 [D3/99/854]
(20)  Authorised signatory form of BEA dated 15 October 2020 [D3/99/856]
(21)  Authorised signatory form of BEA dated 15 October 2020 [D3/99/856]
(22)  Authorised signatory form of Chong Hing Bank Limited [D3/100/859]

120.In Mr Ko’s Opening Submission, he said,

“88. The Plaintiffs challenge cannot stand:

(1) The HD7-C Form does not bear a signature. The Deceased wrote his name in Traditional Chinese. The Plaintiffs challenge that the Deceased usually signed in Simplified Chinese is therefore beside the point.

(2)  The Deceased regularly wrote his name in Traditional Chinese. The Court is invited to examine the HD7-C Form alongside and the bank forms from the Bank of East Asia and Chong Hing Bank, as well as substantial documents in the Plaintiffs own List of Documents, all of which shows that the Deceased consistently wrote his name in Traditional Chinese.”

121.As for the name in the Form HK7-C, the D1 had already confirmed in her answer to cross-examination that it was the Decease’s signature rather than his name.

122.As for the two bank forms, the D1 also confirmed under cross examination that she was not sure whether those were written by the Deceased.

123.For my part, I do not accept that those were written by the Deceased for two reasons:

(i)  there were English written on the two forms and the D1 had confirmed that the Deceased did not know English;

(ii)  the D1 in her Chinese affirmation said that the Deceased could not write already when she accompanied him to Messrs Yip, Tse and Tang after 23 September 2025.

124.I find that the purported signature of the Deceased on the Form HD-7 which was in traditional Chinese characters was not the Deceased’s usual signatures, which were all in simplified Chinese characters. 

125.It is also my finding that the P might have seen the Form HD-7 the first time in these proceedings as otherwise he would have made query with the Deceased during the Dragon Boat lunch.

126.Regarding the Dragon Boat lunch on 7 June 2019, the D1 said in her witness statement,

“21. 在我拿到香港身份證後，於約2019月，丈夫和我及一位街坊大姐到秀茂坪房委會辦公室拿取有關資助出售單的位業權轉讓申請書（「申請書」）。回到家中，權發在申請書上填寫資料，亦叫我在「準承讓人」一欄中填上我自己的個人資料。

22. 之後有一天（實際日期我已忘記），原告人一家（包括媳婦及其女兒）到訪康栢苑單位在家中進食過端午節飯後 ，丈夫拿出申請書並告訴原告人他想將康栢苑單位的業權轉給我，並吩咐原告人填寫及簽署他自己作為業主須填寫的部份。語畢，媳婦隨即破口大罵，說什麼長命契、業權不能更改云云。老公回應說： 「為什麼不行？我把我的業權轉給阿姨，鄉下的房屋都己經歸你們，阿姨不會與你們爭！」丈夫跟媳婦吵了有約有 20 分鐘。原告人始終不肯在申請書上填上他的資料及簽署。丈夫因此極度生氣，甚至說要報警。媳婦聽到後，便帶著他們一家三口一起離開。”

127.Under cross-examination, the D1 said that the Deceased did not speak to the P for one month. 

128.In the P’s witness statement however, he stated,

“41. 2019年6月9日，我、大太和女兒去旅行回港後的第一個星期天，我們中午到藍田物業探訪父親，和他和劉女士一起吃中午飯。當劉女士在廚房時，父親悄悄跟我說他剛在社區活動抽獎羸了一個「烤蒸寶」，吩咐我將它帶回家煮食用，否則劉女士會將它帶回家鄉給她的家人用。以我所知，父親一直負責劉女士的生活費，邏輯上不會介意劉女士用他的財物，但他當日卻連一個蒸烤爐都不願意送給劉女士使用，這反映他們的關係正在惡化。

42.  2019年6月26日，我的兩個家姐從東莞來到香港，籌備二家姐的孫兒的百日宴。 她們兩和父親來我家探訪我，我們四人一起到茶樓飲茶，期間聊起劉女士要求父親將他在藍田物業的名轉給她。親強調藍田物業是我的，向我們幾姊弟保證他不會答應劉女士的要求。我在翻查電話的相簿時，找到一張當日我和父親的合照（見我的文件清單第 39 項第一張照片）。 在照片中，我和父親坐在沙發上，靠得很近，兩人都面帶笑容。”

129.Looking at the photo, the Deceased and the P indeed looked happy.  The P’s evidence is more credible.

130.Mr Lau submitted in his Closing Submission that,

“100. Sixth, the Deceased and D1 made no further attempts to effect the transfer of the Deceased’s interest in the Property to D1. D1 alleged that she and the Deceased attended to Messrs. Paul Tse in June 2020 and Messrs. Yip, Tse & Tang in September 2020 for the Deceased to make a will, allegedly for the purpose of transferring his interest in the Property to her . When asked whether she had sought advice from the solicitors as to how the transfer could be effected, she said she was advised by both firms that this could be achieved by the Deceased making a will .  This was plainly incorrect, since a joint tenancy cannot be severed by a will: sections 2 and 8 of the Conveyancing and Property Ordinance, Cap.219.  It is inherently unlikely that both firms of solicitors gave the same erroneous advice. It is more likely than not that the Deceased and D1 never sought advice on how to effect the transfer of the Deceased’s interest in the Property to D1.  Further, had they sought such advice, it is surprising that they were not advised to execute a deed of severance, as mentioned by the Court, or to serve a proper notice of severance on P.”

131.I agree in its entirety. 

132.Mr Lau also submitted in his Closing Submission that,

“102. Seventh, D1 failed to call the female neighbour, who allegedly accompanied her and the Deceased to the HA Office and Messrs. Paul Tse, to give evidence.  Under cross-examination, D1 confirmed that the female neighbour had knowledge of the Deceased’s alleged intention to transfer his interest in the Property to D1, the Alleged 2019 Incident and the Deceased alleged attempt to retrieve the title deeds of the Property from Madam Ching.  D1 also confirmed that she was able to contact the female neighbour but did not wish to trouble her and therefore did not ask her to give evidence.  There is no reasonable explanation for D1’s failure even to approach the female neighbour to give evidence in support of her case.

103. The applicable approach to drawing adverse inference from the absence of a witness who might have been called is set out in Ahuja Investments Ltd v Victorygame Ltd [2021] EWHC 2382, §23 [P#36] as follows:

“(1) In certain circumstances, a court may be entitled to draw adverse inferences from the absence, or the silence, of a witness who might be expected to have material evidence to give on an issue in that action.

(2) If a court is willing to draw such inferences, they may go to strengthen the evidence adduced on that issue by the other party, or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.

(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.

(4) If the reason for the witness’s absence or silence satisfies the court, then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his or her absence or silence may be reduced or nullified.

104. It is clear from the Re-Amended Reply and Defence to Counterclaim and P’s witness statement that: (i) P’s case is that the Deceased never indicated to P an intention to transfer any interest in the Property to D1; (ii) P denies the existence of the Alleged 2019 Incident; and (iii) P challenges the authenticity and genuineness of the Purported Application Form. The female neighbour was a material witness who could have given direct evidence on the Deceased’s alleged intention to transfer his interest in the Property to D1, as well as corroborative evidence concerning the Alleged 2019 Incident.

105.  Since D1 has failed to give a satisfactory explanation for not calling the female neighbour, the Court is invited to draw adverse inference against Ds.  In particular, the Court is invited to find that the female neighbour’s evidence would not have supported D1’s account, including her allegation that the Deceased intended to transfer her interest in the Property to D1, and that the Alleged 2019 Incident occurred.”

133.I agree.  The D1 should have been advised that the evidence of this female neighbour would have at least supported some of her versions that the Deceased had the intention to transfer the Property to her.

134.It is therefore my finding that Form HD7-c could not effect the transfer and that the 2019 incident did not happen as alleged by D1.

135.In view of my finding, as the P through his solicitors by a letter dated 3 May 2021 had requested D1 to move out of the Property on or before 31 May 2021, it follows that D1’s continued occupation of the Property since 1 June 2021 must be wrongful.

136.Mr Lau submitted in his Opening Submission,

“77. The normal measure of damages is the ordinary letting value of the Property for the period of wrongful occupation or user, irrespective of whether P would have let the Property out to someone else, and interest should be awarded at prime plus 1%: Tan Kok Pooh, The Administrator of the Estate of Tan Su Chin, Deceased & Others v Leong Foong Yin [2026] HKCFI 3493, §§106-111 [P#26].

78. Relying on the monthly market rent for the Property assessed by the valuation expert, P invites the Court to award mesne profits, with interest at prime plus 1%, as follows:

(1) 1 June 2021 to 7 November 2022: HK$11,300 per month;

(2) 8 November 2022 to 7 November 2024: HK$11,600 per month;

(3) 8 November 2024 until the date of delivery of vacant possession of the Property: HK$13,100 per month or HK$433 per day.”

137.Mr Ko on the other hand submitted that,

“177. Even if the Court were against the Defendants on liability, the expert’s market-rent assessment should not be adopted without substantial qualification. The Single Joint Expert records that the HOS premium has not been paid and, in those circumstances, the Property could not lawfully be let on the open market [C/282, §4.3.3]. The theoretical market rent is therefore not a rent that the Plaintiff could lawfully have obtained.”

138.However, even the D1 in her oral testimony said that the Property was at one stage let out to Madam Ching’s friend.

139.I accept the assessment by the valuation expert.

140.In the light of my findings, the D2’s counter-claim be dismissed.

141.The D1 do deliver vacant possession forthwith,

142.The D1 do pay mense profit with interest at prime plus 1% in the following:-

(1)  1 June 2021 to 7 November 2022: HK$11,300 per month;

(2)  8 November 2022 to 7 November 2024: HK$11,600 per month;

(3)  8 November 2024 until the date of delivery of vacant possession of the Property: HK$13,100 per month or HK$433 per day.

Costs

143.I fail to see why costs should not follow the event. I therefore make an order nisi that the Ds do pay the P including all costs reserved with Certificate of Counsel and such costs order nisi be made absolute if no application is made by any party to vary the same within 14 days.

144.The D1 own costs together with Certificate of Counsel be taxed in accordance with Legal Aid Regulations.

145.Last but not the least, it remains for me to express my gratitude to both Mr Lau and Mr Ko for their helpful submissions.

Mr Cyrus Lau, instructed by K B Chau & Co, for the Plaintiff

Mr Tony Ko, instructed by Ho, Tse, Wai & Partners, for the 1^st and 2^nd Defendants