Kwei Wah Shan v. John Kui and Another

HCA000166/1970

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO.166 OF 1970

-----------------

-----------------

Coram: Li, J. in Court

Date of Judgment: 14 July 1973

-----------------

JUDGMENT

-----------------

1. This action is an aftermath of the divorce proceedings in which the 2nd defendant obtained a decree against the 1st defendant who is the son of the plaintiff. The two defendants were married in 1964. At that time certain articles of jewellery went into possession of the 2nd defendant. I use the term "possession" because the question of ownership or beneficial interest is very much an issue between the parties.

2. The two defendants established their matrimonial home in Manila while maintaining a link with Hong Kong. Consequently some of the articles of jewellery were put in a safe deposit box in the Chartered Bank, Hong Kong, in the name of the 2nd defendant and some were put in a safe deposit box in a bank in Manila in the name of Mary Kui, the 1st defendant's sister. After the 2nd defendant obtained her decree she claimed from the 1st defendant for the return of the articles of jewellery not now in her possession and presumably kept in the safe deposit box in Manila. On the other hand the 1st defendant's father, the plaintiff in this action, claimed for the return of some of the articles of jewellery now in the 2nd defendant's possession and certain shares and properties on the ground that such articles were heirlooms and alternatively on the basis of a resulting trust.

3. The writ of summons in this action was issued on 31st January, 1970. By his statement of claim the plaintiff alleges that between 1951 and 1962 he purchased two sets of properties with his own money in the name of the 1st defendant. He also purchased shares in the name of the 1st defendant. However the plaintiff at all material times retained control of such properties and shares and received the income and dividends deriving from the same. Thus at all times the 1st defendant has been holding the properties and shares as trustee for the plaintiff. He further alleges that he purchased certain articles of jewellery set out in the schedule annexed to the statement of claim. He entrusted such jewellery to the 1st defendant's branch of the family to be worn by the women of Kui family from generation to generation as heirlooms and alternatively in accordance with Chinese custom as practised in Hong Kong. It is alleged that such entrustment was void because it was in breach of the rule against perpetuity and/or that it came to an end when the marriage between the 1st defendant and 2nd defendant was dissolved. The plaintiff further alleges that the articles of jewellery are now in 2 deposit boxes to one of which only the 2nd defendant has the key and as to the other of which the 2nd defendant and the plaintiff's daughter Mary Kui each has a key. In the aforesaid premise the plaintiff claims:

4. To this claim the 1st defendant raises practically no defence at all. By his statement of defence he admits to every single allegation contained in the statement of claim but pleads that the articles of jewellery, with the exception of the goldset named in para.(f) of the schedule to the statement of claim, are in possession of the 2nd defendant and he is unable, though willing, to return them to the plaintiff.

5. In her defence the 2nd defendant denies all knowledge of the property and shares transactions nor does she admit the same. She admits that the plaintiff bought the various articles of jewellery but contends that they were given to her as an absolute gift in contemplation of the marriage between her and the 1st defendant in 1964. She further admits that she has in her possession all the items of jewellery set out in the schedule with the exception of the brooch and ring in para.(b), the brooch in para.(c) and all the items in para.(d). She alleges that she is now the absolute owner of all the articles set out in the schedule of the statement of claim and she is currently suing the 1st defendant and the plaintiff for the above-mentioned items not now in her possession in O.J. Action No.1464 of 1970.

6. From the pleadings it is quite apparent that the 1st defendant takes no active interest in this action save to support his father's claim. Having regard to his admissions to the plaintiff's claim for the properties and shares, it is surprising that the plaintiff need bring this action to claim for the same. There is no doubt in my mind that the sole reason for the plaintiff to include in this action his claim for the shares and properties against the 1st and 2nd defendants is an attempt, with the collaboration of the 1st defendant, to defeat whatever subsequent action the 2nd defendant may take to obtain alimony from the 1st defendant.

7. Mr. Bernaochi for the plaintiff contends that since the 2nd defendant raised no positive defence to the plaintiff's claim for the shares and properties judgment ought to be given against the 2nd defendant in respect of the same. For the reasons I have given at the time for my ruling and for the reason aforesaid I give judgment to the plaintiff in terms with costs against the 1st defendant only. I further decline to give judgment against the 2nd defendant in respect of the plaintiff's claim for the shares and properties. What remains in this action is therefore the issue whether the articles of jewellery were given to the 2nd defendant as heirlooms or in trust or as gifts in contemplation of marriage as between the 1st defendant and the 2nd defendant. The 1st defendant takes no further interest in this action apart from being a stake holder, if he is one at all. The 1st defendant is allowed to cross-examine the 2nd defendant and her witnesses solely because the parties agree to accept the findings of facts in this action for the purpose of Action No.1464 of 1970.

8. The issue between the plaintiff and the 2nd defendant should be a relatively simple one. In view of the background to this action, however, the feeling of all the parties is high. Consequently a lot of evidence which are not strictly relevant to the main issue have been adduced by both parties. Some witnesses who are normally honest and straight forward citizens are inclined to exaggerations. Such additional factor tend to lengthen the proceedings and complicate the problem. For this reason I have to sieve through the some what massive evidence disentangle such involvement as found and ignore the obvious exaggerations to arrive at the findings of facts.

9. The plaintiff's case is that the jewellery pieces he claims in this action are all family treasures which he describes as "ka po". In 1951-1952 he and his wife, the late Dr. Mary Lee (hereinafter referred to as Dr. Lee), discussed matters and decided to create some family treasure to be handed down to their children and grandchildren. What prompted the decision was that in his younger days the plaintiff was given four pieces of jade by his father which was handed down to his father by his grandfather. Since then Dr. Lee had been in the habit of buying various items of jewelleries like jade, diamonds, pearls and semi precious stones. She bought some in loose pieces and some already set. With regard to her jade purchases she often bought jades already set, dismantled the jade pieces, selected the best pieces from each set to match the four pieces of jade in the plaintiff's possession and then have them reset into various items to form one set of jade collection. Similarly she also caused to be set various pieces of diamonds, pearls and semi precious stones in sets of collection. By 1961-62 she had many sets of collections viz.: a jade set comprising 1 necklace, 1 ring, 1 pair of ear-rings, one brooch and one bracelet; a diamond set of 1 necklace, one ring, a pair of ear-rings, a bracelet, a brooch and a diamond Rolex watch; a pearl set of 1 necklace, 1 brooch, 1 pair of ear-rings, a ring and 1 bracelet; a coloured stones set of 1 necklace, 1 brooch, a pair of ear-rings, a ring and a bracelet. She also purchased gold in Manila and made a set of gold ornaments consisting of a ring, a pair of ear-rings, a bracelet, a brooch and a chain with a cross. In addition to the aforesaid Dr. Lee also had other sets of jade made for their daughters. A diamond piece and possibly a jade set was given to their married daughter Mariana on her marriage. The plaintiff has, up to now, another jade set kept in a safe deposit box reserved for their daughter Mary on her marriage. But these sets given or reserved for their daughters are not family treasures. They are simply ordinary jewels.

10. I do not think the plaintiff puts it as high as that Dr. Lee designed all the sets of family treasures herself. He gives me the impression that she would cause the sketches to be drawn by her jeweller for approval. She consulted the plaintiff and their daughter Mary from time to time. But neither the plaintiff nor Mary took very active part. However the plaintiff paid for all items of the jewels purchased and set. He produced extracts from his accounts books for the years between 1951 and 1964 to show various payments for jewellery from time to time.

11. The various sets of jewellery were not completed altogether. They were completed one by one during the period. The plaintiff rarely saw them. However such jewels were used to encourage the 1st defendant to get married. Both Dr. Lee and the plaintiff had numerous conversation with the 1st defendant on the subject of the 1st defendant getting married to carry on the family line. At least on two occasions some items of the sets of jewellery were shown to the 1st defendant in this connection. On one occasion in 1960 the plaintiff showed the 1st defendant the diamond ring - shown as item No.8 in Exh.3 and told him (the 1st defendant) that he (the plaintiff) had prepared to entrust him things obtained from his (the plaintiff's) father. The plaintiff also referred to the 4 pieces of jade and said "I have 4 pieces from my ancestor. I am now ready to turn over to you as a set".

12. A few years later the plaintiff's dream came true. In November, 1963 the 1st defendant and 2nd defendant had a chance meeting at the Mandarin Hotel restaurant. There was an arranged lunch meeting at the Hong Kong Country Club in January, 1964 when members of the Kwei family and the 2nd defendant and her parents met together. The 1st defendant had been in and out of the Colony but since then he dated the 2nd defendant regularly whenever he was in Hong Kong. They were engaged on 15th June, 1964. On that morning Dr. Lee requested the plaintiff's permission to take 5 sets of the jewellery over to the Tan family at the engagement party to display them. The plaintiff agreed and told Dr. Lee and the 1st defendant that those sets became heirlooms of the Kwei family and should be handed down to sons and grandsons as such. Thus Dr. Lee brought the 5 sets of heirlooms in a box with a glass top. She also carried another box containing the usual gifts of betrothal. Both boxes were put on the dining table of the Tan family. After the party the plaintiff left first after telling the 1st defendant to bring back the jewellery. The next morning he asked the 1st defendant whether the jewellery had been brought back. The 1st defendant replied that he did not leave the Tan home until late the previous night and therefore entrusted them to the 2nd defendant. The plaintiff did not see the jewellery again until a few days before the wedding on 13th September, 1964. He was not in a position to say whether they were brought back to the Kwei family together with the prospective bride's dowry. Anyway he saw all the sets there and they were complete.

13. Three days after their wedding the 1st defendant and 2nd defendant went to Japan for their honeymoon. They returned on or about the 22nd or 23rd of September, 1964. The next morning the members of the Kwei family had breakfast together as it was their invariable habit to do so. In the presence of the 2nd defendant the plaintiff told Dr. Lee to take a photograph of the jewellery because they were heirlooms of the Kwei family. He further gave Dr. Lee $100 to go and rent a safe deposit box for their safe-keeping. Dr. Lee did rent a deposit box. The plaintiff told her go to open the deposit box if the jewellery were needed for wearing. The next day 1st defendant showed the plaintiff a receipt for payment of the rental for the box in the Chartered Bank - Exh.2(1). The deposit was issued in the 2nd defendant's name. Since then the plaintiff paid for all the rental for the deposit box. Further the plaintiff was eventually shown a photograph of the jewellery - Exh.8.

14. Then their daughter Mary and the plaintiff's principal wife went to Manila ahead of the 1st defendant and 2nd defendant. She took some of the items of the 5 sets of jewellery to Manila. She was instructed to rent a safe deposit box in her name. About the middle of October 1964, 1st defendant and 2nd defendant left for Manila by ship. The plaintiff saw them off. On board ship the plaintiff told 1st defendant and 2nd defendant that the jewellery were heirlooms of the family and when they reach Manila they should put them in a safe deposit box. The plaintiff even wrote to 1st defendant, 2nd defendant and Mary to inquire about the renting of the deposit box - Exh.1(33)(F)(1). To this letter Mary replied in terms of Exh.9. He also gave instructions that should the 2nd defendant need the jewellery to wear she should go with Mary to get them since the 2nd defendant was not familiar with Manila. Exhs.2(8) to 2(14) inclusive show the receipt of the deposit box rental paid in the name of Mary throughout the period.

15. In 1969-1970 1st defendant and 2nd defendant were divorced. This upset the plaintiff. There has been no issue to the union. The plaintiff was bitterly disappointed. Hence he claims all the items of jewellery in question because they were merely entrusted to 1st defendant and 2nd defendant for handing down to future generations of the Kwei family. Now that 1st defendant and 2nd defendant are divorced he wants to take back the jewellery to be given to Marciana's son whom he has adopted to perpetuate the family line of his deceased eldest son when the boy comes of age. He maintains that the sets were merely taken to the Tan family for display as part of the Chinese customs. He never intended to give them to 2nd defendant. He even instructed the 1st defendant to keep a record of the jewellery taken out and put back in the safe deposit box.

16. The plaintiff also calls Mr. Henry Hu to give evidence as an expert on Chinese Law and Customs. According to Mr. Hu, the plaintiff, as head of the Kwei family, has unlimited power to deal with the family business including property during his life time. He holds the family in trust. The system of heirlooms dated back to the time of Confucius. They were referred to as "Ka Chun" a family treasure to be handed down from sons to grandsons as heirloom. The term "Ka Po" implies handing down from generation to generation. An object may be an heirloom because of its historical or monetary value. Any person can create an heirloom. Family treasure is indivisible. It is normally handed down to the eldest son. It may be exhibited on important occasions such as the 4th part of the Chinese betrothal viz "Ma Chai" meaning exchange of gifts. Apart from heirlooms wedding presents are given to the bride on such an occasion. Since heirlooms are property of the family he can recall them and do anything he likes with them. With reference to the four sets of jewellery Mr. Hu is of the opinion that the 2nd defendant is not entitled to have them if they are heirlooms. In answer to me Mr. Hu says that an heirloom is inalienable. No one should buy it. In cross-examination he says that by Chinese custom he meant an established usage having the force of law. However, regarding the 6 rites of betrothal in Hong Kong, he says that it is entirely a matter of personal preference. Even the pouring of tea to the grooms parents can be dispensed with. He goes on to say that the jade set, diamond set and the coloured stones are heirlooms but he is uncertain about the pearl set.

17. The 1st defendant's evidence is in corroboration of the plaintiff's case. He refers to the lunch meeting at the Hong Kong Country Club as being arranged by his parents at his request. He further gives a detailed account of the events at the engagement party. He and Dr. Lee went to collect his 4th uncle and 4th aunt to the party. The plaintiff arrived later. Upon arrival Dr. Lee carried the box containing the heirlooms and another red box. He carried 24 pieces of dress material. Some other gifts like chocolates and flowers were brought in by the driver. Nothing was said about the jewellery or the gifts. They were just left there. After the ceremony the plaintiff left first together with Dr. Lee, 4th uncle, 4th aunt and 3rd uncle. They took away the red box only. The 1st defendant remained for dinner with the Tan family. After dinner he had a long chat with 2nd defendant in the course of which he told the 2nd defendant that the jewellery brought over were heirlooms to be handed down from generation to generation. Before he left he told the 2nd defendant to take care of the jewellery and keep them under lock and key and that Dr. Lee would be in touch with her. He had to leave for Manila the next afternoon and requested Dr. Lee to attend to the matter. At the airport that afternoon he told Dr. Lee in the presence of the 2nd defendant that the jewellery was with the 2nd defendant. He also told the 2nd defendant that Dr. Lee would take the jewellery back that day or as soon as possible. He confirms the breakfast table conversation on or about the 23rd September 1964. The plaintiff asked that a photographer be engaged to take a picture of the heirlooms and that a deposit box be opened for the safe keeping of the same. Referring to the plaintiff, his father, he said:

"He turned his face to Hester and me and said he was turning over to us the heirloom jewellery into our custody for us to pass down to sons and grandsons".

18. The plaintiff also told them to have a safe deposit box opened in Manila for whatever heirloom jewellery they brought over. Eventually a deposit box was opened at the Chartered Bank and Dr. Lee arranged for a photographer to take the picture as shown in Exh.8.

19. He regarded all the five sets of jewellery were merely put into his and 2nd defendant's custody. He does not claim any proprietary right to them. In fact the jade ring was given to his custody in December 1948 by the plaintiff when he left Shanghai for Manila. He disclaims any connection with other pieces of jade till they were handed to his custody after the wedding. He also support the evidence of Mary Kui in that the plaintiff instructed Mary to open the deposit box in her own name in Manila and that a record be kept on the movement of the heirloom jewellery. Accordingly a deposit box in the bank was opened in January 1965. He was personally present when the heirloom jewellery were put into the box. All the sets except the coloured stone set were brought over. Both he and Mary were signatories to this box and each of them had a key. They made it a practice that whenever they took the 2nd defendant with them to open the box either of them would put the letter "H" beside their signature. Mary would use the small letter and he the capital letter.

20. The 2nd defendant's case is that only 4 sets of jewellery viz: the jade, the diamond, the pearl and the coloured stone sets were brought to her home on the day of the engagement party as gifts to her from the Kwei family. This was done through the plaintiff's sister-in-law i.e. the 1st defendant's 4th aunt (hereinafter referred to as the 4th aunt).

21. According to the 2nd defendant and her mother (hereinafter referred to as Mrs. Tan) the 4th aunt who is a good friend of Mrs. Tan acted as go-between for the two families throughout the betrothal. Soon after the chance meeting of the 1st defendant and 2nd defendant at the Mandarin Hotel Restaurant the 4th aunt saw Mrs. Tan and inquired if the 2nd defendant had any boy friend. On that occasion she gave Mrs. Tan a photograph of the 1st defendant suggesting that he and the 2nd defendant be friends which suggestion, I assume, indicate that the 1st defendant should start courting the 2nd defendant.

22. On the afternoon of the 15th June 1964 the engagement between the 1st defendant and 2nd defendant took place at the Tan's home. Members of the Kwei family arrived together. This included the plaintiff, Dr. Lee, the 1st defendant, the 4th aunt and her husband and the 3rd uncle including 2 of the 4th aunt's children. The 4th aunt led the way carrying two boxes, one red lacquer box containing traditional gifts of good omen such as dried lotus seeds, dried artichoke, a pair of gold "Kam Quat" and $10,000 in a red packet, and another box with glass top containing the 4 sets of jewellery. She handed the 2 boxes to Mrs. Tan saying "Chin Poo Soh, this is the things from the Kwei family for Mei Mei". "Chin Poo Soh" is her way of greeting Mrs. Tan and "Mei Mei" is the pet name of the 2nd defendant. Mrs. Tan received them and put them on the dining table. Later when tea was served the 2 boxes were removed into Mrs. Tan's bed room. The red box was opened and the pair of "Kam Quats" was taken and in their place Mrs. Tan put in a pair of gold "pomegranate". The red lacquer box was returned with the rest of its contents plus another packets written "Shu Kam". Throughout the occasion there was no mention of heirloom or entrustment. Further, during the party the diamond ring shown as item No.8(y) in Exh.3 was put by 1st defendant on 2nd defendant's finger. This was followed by a toast. Again there was no mention of heirloom or entrustment. This diamond ring, part of the diamond set, was carried to the Tan family by the 1st defendant and was never put in the box containing the four sets. Other members of the Kwei family left after tea taking the red lacquer box with its contents with them. The box containing the jewellery was left with the Tans. The 1st defendant stayed for dinner with the Tan family. According to the 2nd defendant in her long conversation with the 1st defendant that evening the subject of jewellery was never raised. There was certainly no mention of heirloom or entrustment. Generally they discussed about their future matrimonial home in Manila. At the time when the 1st defendant left that night he did not mention anything about Dr. Lee going to retrieve the jewellery at all. The 4 sets of jewellery were not taken back to the Kwei home until a few days prior to the wedding on the 13/9/64. They were taken there with the 2nd defendant's dowry as part of her possession.

23. The 2nd defendant denies categorically any conversation about entrustment of the jewellery or any mention of heirlooms at the breakfast table after her honeymoon trip. She also denies that the plaintiff ever asked for a photograph to be taken of the jewellery or that the plaintiff suggested or gave $100 for the opening of a deposit box in Hong Kong. When the young couple left for Manila by sea the plaintiff saw them off. On board the ship the plaintiff merely expressed his good wishes to them in their new home but never mentioned anything about heirlooms or opening of a deposit box in Manila. She never saw plaintiff's letter Exh.13.

24. She agrees that soon after her return from the honeymoon trip she opened a deposit box at the Chartered Bank in her own name as John the 1st defendant mentioned that it was unsafe to keep so much jewellery at the Kennedy Road flat. She put all her jewellery there. When she left for Manila in October 1964 she took with her the diamond set, part of the pearl set and some of the jewellery given to her by her parents and relatives. She left the jade set and the coloured stone set in the deposit box in Hong Kong. These are kept in Hong Kong till she produces them in Court. She denies that Mary or Mary's mother took any of the jewellery for her to Manila.

25. In Manila the 1st defendant again suggested that the jewellery be put in a safe deposit box of his company. The 2nd defendant never asked about his company. She put all the jewellery she brought over in a jewel box to be placed in the safe deposit box. Whenever she wanted the jewellery John would accompany her to the bank - sometimes with Mary present. But she never went with Mary alone. She never asked for the key to the deposit box because John never allowed her to go out alone and she did not drive in Manila, a city with which she was not familiar.

26. Mrs. Tan who gives evidence for the 2nd defendant says that she was a close friend of Dr. Lee. She used to help Dr. Lee in her selection of jewelleries in the 1950's. They invariably went to Tai Loy, a jeweller. She says that it is completely untrue that Dr. Lee bought various items of set jewellery to dismantle them, matched loose stones to make a necklace so as to create one set of heirloom in jade. She took Dr. Lee to Tai Loy in the years between 1950 and 1959 to purchase 3 necklaces which were already set. All three were of about the same quality. Dr. Lee told her the 3 necklaces were to be kept one each for Marciana, Mary and the 1st defendant. She can recognise the necklace produced in Court is the same as one of the 3 necklaces and the one shown as item No.1 in Exh.3. There had been no change of design or any of the stones. As to the coloured stone set she purchased the stones for Dr. Lee. She took Dr. Lee to Tai Loy to have them set. They are the same as shown in items 14, 15, 16 and 18 in Exh.3.

27. To corroborate the evidence on this point Kwok Kai Lau a partner of the Tai Loy jewellers was called. Mr. Kwok's evidence is that his company has a system in marking any item of jewellery in his shop. If a piece of jewellery is the company's only creation, i.e. sold as a ready made item, it bears not only the percentage of gold or platinum and the name Tai Loy but also a serial number. From this serial number he can trace his record of the original cost of that piece and the approximate quality of the stones used. If the customer brings his only stone for setting or even selects loose stones from his company to be set into one piece then that piece only bears the percentage of gold and the firm name of Tai Loy but not the serial number. He has inspected the pieces of jewellery produced in Court. He says that the jade bracelet, jade brooch, jade ear-rings, the jade necklace and a pair of pearl ear-rings must have been purchased from Tai Loy as ready made pieces without any resetting. These are items shown as Nos. 4, 5, 2, 1, and 9 in Exh.3. As to the coloured stone set i.e. items Nos. 14, 15, 16 and 18 he says that the markings show that they were set by his company with the owners material. Regarding the pearl necklace No.11 in Exh.3 there's no marking except the frames 14K. This indicates that possibly the customer asked the company to re-string it for her. The pearl bracelet falls into the same category.

28. As to the existance of Exh.3 and Exh.8 the 2nd defendant's explanation is that Mrs. Tan's mother was in Singapore and did not attend the engagement or wedding party of the 2nd defendant but wanted a picture taken of the 2nd defendant's jewellery so that she could see them. As a result Mr. Tan arranged for one Lai Man to take some pictures of the 2nd defendant's at the house of the Kwei family after the 2nd defendant returned from her honeymoon trip. A number of pictures were taken of the jewels in the presence of Dr. Lee, and the defendants. Later 2-3 copies of post-card size of such pictures were given to the plaintiff. Exhs. 3 and 8 are enlarged copies of some of them. In corroboration to this evidence one Lai Leung was called to give evidence. Mr. Lai has known the Tan family for over 20 years. Lai Man is his nephew and was working as a partner with Lai Leung in 1964 at the New Standard Studio. Mr, Lai Man has migrated to the U.S.A. Hence Lai Leung was called to give evidence as to what he has observed and what he can trace from his studio record. He is still operating the same studio. He testified that some ten days or so after 2nd defendant's wedding ceremony his nephew Lai Man received a telephone call and went to take some pictures. Such pictures were developed and printed by Universal Studio since they were colour prints. But all the negatives were returned and kept by his own studio, and he saw some of the prints at the time. He produced all the negative - Exh.19 and from Exh.19 he has made prints from all the negatives. The prints are Exh.20 (A-H). He also says that late in 1969 a lady who walked with a limp, identified herself as Mrs. Kwei and claimed to be a relative of the Tans showed him a post-card picture and asked him to develope some bigger photos. After an initial refusal he traced the negatives in Exh.19 and enlarged 3 copies for her for $150. He identified Dr. Lee as that lady from some of the wedding pictures Exh. 10-12 (inclusive). Further, from the numbering in the numbering in the strips of negatives he can tell that Exh.8 showing only one box was taken before Exh.3.

29. Having related the evidence of parties in some detail it is quite clear to me that the sympathy of the 1st defendant is, at all times, with the plaintiff. There is clearly a conflict of interest between the 1st defendant and the 2nd defendant. For this reason alone I shall not allow any admission by the 1st defendant to be regarded as against the 2nd defendant even though they are co-defendants. I shall treat as no more and no less as corroborative evidence to the plaintiff's testimony. I can only describe the plaintiff's action against the 1st defendant as a bogus action - bogus in the sense that it is entirely unnecessary. I have already remarked on the plaintiff's claim for the properties and shares against the 1st defendant. In fact one of the properties in the plaintiff's claim is not even registered in the 1st defendant's name. Despite the 1st defendant's emphatic protestation that at all times he was prepared to return whatever jewellery in his possession to the plaintiff, the 1st defendant did not even bother to check what was in fact in his possession. He certainly did not bring them back to Hong Kong which he could have done with the assistance of the plaintiff's daughter Mary. He would rather let them remain in a safe deposit box in Manila out of reach and out of the jurisdiction of this Court. Both the plaintiff and the 1st defendant allege that they took this attitude on legal advice. If their allegation were true I am shocked by such legal advice. The plaintiff also advanced an additional reason for maintaining this action against the 1st defendant as that of showing his disappointment and anger at the 1st defendant to the world. In my opinion either that is a sham or, if true, it is an abuse of legal process. For these reasons I shall consider the case as one between the plaintiff and the 2nd defendant only.

30. By para 10 of the statement of claim the plaintiff alleges that the articles of jewellery were entrusted to the 1st defendant's branch of the family to be worn by the women of the Kui (otherwise spelled as Kwei) family from generation to generation, as heirlooms. Para 10(a) alleges "Further or in the alternative the said entrustment was in accordance with Chinese custom as practised in Hong Kong". Thus the foundation of the plaintiff's claim is that of an entrustment. The word "heirloom" in para 10 is in fact superfluous. It is not used in its strict sense in common law i.e. pensonality which devolved together with realty to the heir as an incident of the tenure of land or for maintaining the dignity of a possessor of title. But chattels which are not heirlooms at common law can be settled in a manner corresponding to the trusts of a settlement of land so as to be inseparable from the land: In re Beresford Hope 1917 1 Ch. 287 at 299. In the present case the various sets of jewellery are not chattels settled to devolve with realty or in a manner corresponding to the trust of a settlement of land. The term "heirloom" means something which though not by its own nature heritable is to have a heritable character impressed upon it - per Lord Cranworth Byng v. Byng 1862 10 H.L. Case 183. Indeed Mr. Henry Hu, the expert witness for the plaintiff, excluded this meaning of the term in his evidence in cross-examination. He used the word "heirloom" as synonimous as the term "family treasure" or "Ka Po". He referred to the term "family treasure" as something entrusted to pass from generation to generation. If the plaintiff relies on para 10 of his statement of claim he has to establish that there is a trust to the effect that these are heirlooms of the family to be passed on to sons and grandsons in future. If he relies on para 10(a) of the statement of claim he has to establish a form of trust known to the Chinese custom as practised in Hong Kong.

31. Mr. Hu's evidence is that according to Chinese custom an heirloom is something of value - either of historical value or of monetary value. He goes on to say that a Chinese heirloom can be created and is indivisible and inalienable. It can be entrusted by the head of the family who has absolute power over all family property or business. It can be recalled at any time by the head of the family. Of the 5 sets of jewellery claimed by the plaintiff he says that the jade set, the diamond set and the coloured stone set are definitely heirlooms. There is a 50% possibility of the pearl set being an heirloom. But the gold set which has not been shown is not. I take it that Mr. Hu found his opinion on the value of these sets with the possible exception of the 4 pieces of jade alleged by the plaintiff to have been given to him by his father included in the jade set. Even so the plaintiff has given no evidence of any entrustment between his grandfather and father or between his father and him. The 4 pieces, if given at all by his forebears were simply given to him. There is therefore no evidence that the 4 pieces of jade were family treasure or subject matter of a trust according to Chinese custom. The plaintiff said he, after discussion with Dr. Lee, started to create some sets of jewels to be handed down to the children. In this connection I can see how Mr. Hu's expert evidence can assist me. First of all he is an expert in Chinese law and custom. He is not an expert valuer of jewels. Even if the evidence of the plaintiff and of Mary Kui be taken into consideration all he knew was that from 1951 to 1964 the plaintiff had spent various sums ranging from a few hundred dollars to $27,000 for the purchase and setting of jewels. No one can assign any specific value to any of the sets which are the subject matter of the plaintiff's claim. After all the question of value is relative and not absolute. What may be of high monetary value in one family may be considered cheap in another. We all know the plaintiff is well off. No one in this court know his personal fortune. What Mr. Hu considers as high monetary value in any article may be considered as a pittance by the plaintiff. In view of this I am surprised that he can say with such certainty as to which set should be regarded as family treasure or heirlooms.

32. As to Chinese customs the 6 rites of betrothal Mr. Hu says that it is entirely a matter of personal preference. Even the tea pouring ceremony can be dispensed with. In fact the 1st defendant and the 2nd defendant went through a form of Christian marriage in church. This is one example of the Chinese custom being practised in Hong Kong at the whim of fancy by individual Chinese. It certainly is not an established usage having the force of law - a phrase attributed to Captain Elliott's pronouncement by Mr. Hu. Thus there must be certain Chinese custom which is practised and established in Hong Kong and certain Chinese custom is not. It is also of interest to observe that while Mr. Hu quite correctly enumerate various Chinese custom on the authority of the head of the family over family property and family treasures and said that Chinese families in Hong Kong do observe ancient Chinese custom he has not told us whether the Chinese custom of heirloom being regarded as family treasure with the inherent characteristic of indivisibility, inalienability and subject matter of an automatic revokable trust without any verbal or written trust is an established usage in Hong Kong having the force of law. If that is so then any family treasure can be handed by a head of the family to his children without any clear intention of establishing a trust but subject to be recalled at will. Such a proposition will conflict with the English law of trust and the doctrine of advancement as known and practised in Hong Kong. It will also amount to another way of establishing a discretionary trust which may be used to defraud a creditor of any member of the family. If that is to be a system of Chinese law in Hong Kong then we are going beyond the spirit of Captain Elliott's proclamation which has already haunted the Chinese in Hong Kong for far too long.

33. For the aforesaid reasons and in view of the plaintiff's own pleadings I am not satisfied that the 5 sets of jewellery can be subject of a trust by virtue of Chinese custom perse. Even if Mr. Hu's evidence is accepted the Chinese custom in Hong Kong would not operate unless there is a formal handing over on a grand occasion. It is the plaintiff's case that even at the engagement party the sets were merely put on display and there was no formal handing over at that time or any other time. If they are to be the subject matter of a trust such trust must be created verbally or in writing. In short before the plaintiff can succeed he must satisfy me that he had created a trust on the 5 sets of jewellery even if it was by words.

34. On the facts before me Mr. Bernacchi for the plaintiff contends that the onus is on the 2nd defendant to prove that the sets of jewels claimed by the plaintiff were gifts to her. This contention is based on the admission that the plaintiff paid for all those sets of jewellery the ownership of which originally belonged to the plaintiff. The 2nd defendant must discharge her burden first before the plaintiff is required to prove the trust. If it is found that the 2nd defendant's possession of the jewels is equally consistent with the result of a gift and that of an entrustment then the 2nd defendant has not discharged her burden of proof because there cannot be any presumption of gift. He further submits that before gift can be established the word and conduct of the donor must be clear and unequivocal. There must be an intention to give accompanied by delivery. He continues to cite a number of authorities in support of his contention. I do not think that it is necessary to refer to the authorities in detail. It is sufficient to observe that before a gift of chattels takes effect the words and conduct of the donor must be clear and unequivocal and that there must be a delivery by the donor and an acceptance by the donee. There is no necessity to make heavy weather on a simple proposition of law. As to the burden of proof I observe that the sets of jewels were delivered to the 2nd defendant's home at the engagement party on the 15/6/64. The plaintiff's case is that they were taken there on display and they were subsequently entrusted to the 1st defendant and the 2nd defendant. On the simple principle he who alleges must prove the burden is clearly on the plaintiff that there was never any intention of a gift to the 2nd defendant. In this connection it is proper to say that the plaintiff's intention is to be construed on the evidence of his conduct and the circumstances then prevailing in 1964.

35. The circumstances and the feelings of the parties to-day are very different. My impression is that although the witnesses of both parties have not deliberately given false evidence quite a few of them are inclined to exaggerate and colour their evidence.

36. In my consideration whether the 5 sets of jewellery are family treasures or heirlooms of the Kwei family the evidence of several witnesses are relevant. The plaintiff's contention is that out of the various sets of jewellery at least 4 pieces of jade were handed down to him from his grandfather. But the plaintiff never contends that when his father handed him the jade pieces they were given upon trust. Thus the idea of handing down from generation to generation, if such exist at all, is very much his own. Further, such idea was formed only in the early nineteen fifties in his discussion with Dr. Lee. However, according to the 1st defendant the piece of jade which was made into a ring shown as item No.3 in Exh.3 had been handed to him by the plaintiff in December 1948. There is no evidence that the plaintiff mentioned any entrustment to the 1st defendant at the time. It is true that the 1st defendant used the term "given to his custody". If so, it is a surprising the other three smaller pieces of jade were not handed to the 1st defendant at the same time. In my opinion there was nothing to suggest the existence of any family treasures of the Kwei's up to 1950. Whatever in the possession of the plaintiff was nothing but ordinary jewels. I have seen the jade set in question. Pretty as the pieces are there is nothing to show that they are of rare quality or outstanding value. But the plaintiff says that as a result of his discussion with Dr. Lee some 20 years ago they decided to collect jewelleries to start a collection of family treasure.

37. In support of this evidence Mary Kui says that Dr. Lee practically created this jade set as part of the family treasure. Between 1952 and 1960 she (Dr. Lee) used to buy loose stones to match the original 4 pieces of jade. In addition Dr. Lee bought ready set pieces of jewellery in jade, had them broken up, chose the rest matching jade stones and had them reset into pieces in an approved design. According to Mary Kui that was how the jade set was created. However, during this period Mary Kui was not in Hong Kong all the time. Her evidence in this respect must have been hearsay although she gave it as direct knowledge of facts. The 2nd defendant's mother Liu Kim Suan (hereinafter referred to as Mrs. Tan) says that she is a good friend of Dr. Lee. She used to accompany Dr. Lee on her shopping expeditions at the jewellers. She helped Dr. Lee to select 3 jade necklaces of which she identifies the jade necklace produced in Exh.3 as one. The witness Kwok Lai Lau of Tai Loy Jewellery identifies the same jade necklace as one purchased from his firm ready made. There is no question of setting or resetting. He gives reasons for his being so able to identify it. Kwok has been extensively cross-examined and his evidence has been severely criticized. However, I find that he stood up well under such cross-examination and he knew what he was talking about. I find that the questions put to Kwok relating to changing every jade stone in the necklace except the clip so as to explain the presence of the serial number on the clip of the necklace so improbable that they fringe on very remote possibility and do not lend themselves to serious consideration. Miss Mary Kui's evidence that Dr. Lee used to purchase ready made set pieces of jade ornaments to break them up in order to find matching stones for the jade set gives me the impression that it is about the most wasteful cumbersome and expensive way of making up a necklace or bracelet of a quality as those produced in Court. Miss Kui also impliedly suggests that certain items in the jade set and, indeed, of other sets have been changed by the 2nd defendant. If that is so it will explain why Mr. Kwok is able to identify some of the items as ready made jewels from the Tai Loy Jewellery. This, however, is emphatically denied by the 2nd defendant and Mrs. Tan. I accept the evidence of the 2nd defendant and Mrs. Tan on the point. At least the 2nd defendant has the courtesy to produce all she possesses in Court to be identified. The same can not be said of the plaintiff in the items that he or the 1st defendant could have produced. In cross-examination the plaintiff admits that Dr. Lee could have purchased 3 necklaces one of which had been given to their daughter Marciana and another kept in reservation for Mary Kui. This in part tallies with Mrs. Tan's evidence about the purchase of 3 necklaces. Mr. Kwok appears to me to be a straight forward honest witness. I accept his evidence regarding the jade set as well as the other sets. On the other hand I find the plaintiff's allegations of designing and matching stones to set up a collection or of switching pieces of jewellery as exaggerations on the part of himself and his daughter Mary Kui and I am not inclined to believe them. For these reasons I find as a fact that the various sets of jewellery now claimed by the plaintiff may be regarded as fairly expensive jewels normally acquired by a person of means from time to time but not within the description of inalienable family treasures according to Chinese customs. Even if they were there is no established custom to prevent the plaintiff disposing of them as the living head of the Kwei family. I have dealt with Mr. Henry Hu's evidence in this respect and I shall not repeat it.

38. Before I come to the most important question of entrustment I would like to refer to one or two matters of minor issue. These will go to show credit of the witnesses. The circumstances under which the photograph of the various sets Exh.3 and Exh.8 were taken is one example. Having regard to the evidence on this point I am satisfied beyond doubt that Exh.3 and 8 are photographs taken in the circumstances as given by the 2nd defendant and Mrs. Tan. I also accept the evidence of Lai Leung as to how the copies fell into the plaintiff's hand. The plaintiff says he ordered the photographs to be taken for remembrance of the family treasure. Mary Kui says the purpose was to keep a record of such. If that be so the gold set was never included. I can only conclude that that is yet another exaggeration on the part of the plaintiff and his daughter Mary in a minor issue.

39. On the question of entrustment the plaintiff says that the first time he talked to the 1st defendant was in the morning of the 14/6/64, the day of the engagement party. I quote:-

But Mary Kui says in cross-examination that as early as 1960 the plaintiff showed the 1st defendant the jade ring and told the 1st defendant that he (the plaintiff) had prepared to entrust to the 1st defendant things obtained from grandfather. The plaintiff is alleged to have said on that occasion "I have 4 pieces from my ancestor which I now am ready to turn over as a set". According to the 1st defendant the piece of jade which was made up as the ring was handed to his (1st defendant's) custody as early as December 1948. The plaintiff should know what he's talking about. If so Mary Kui's evidence is just an embellishment in her attempt to strengthen the plaintiff's case. I view in the same light her evidence regarding her part in helping the 2nd defendant to bring a few items in the various sets of jewellery into Manila just before the 1st defendant and 2nd defendant took their trip there. The plaintiff spoke of this in evidence but both he and the 1st defendant could not tell what item was taken by Mary. The evidence concerning the plaintiff's instructions to Mary to hire a safe deposit box for the jewellery is equally conflicting. The plaintiff says that he gave such instructions because the 2nd defendant was unfamiliar with Manila. Both Mary and the 1st defendant say that the instructions were given because they - Mary and the 1st defendant were suppose to keep a record of the movement of the family treasure. If that was so then Mary and the 1st defendant did a very poor job in carrying out the instructions. They never kept an inventory of the jewels brought over to Manila. They never kept record of any piece taken out or put back into the safe deposit box in Manila. From time to time either Mary or the 1st defendant brought the jewel box from the safe deposit box to their home in Manila for the 2nd defendant to take out or put back various pieces of jewellery into it. Apparently the only record they kept was that whenever either of them took the 2nd defendant to the safe deposit box she or he would put the letter "h" or "H" beside their respective signatures on the Bank register. Neither had any clue of the movements of the jewellery at any time. As a result the plaintiff claims as part of the family treasure a gold set which has always been in the possession of the plaintiff's principal wife in Manila since 1965. The statement of claim is amended by deleting the claim for the gold set only after the 1st defendant gave evidence in court. All the aforesaid are evidence relating to the plaintiff's intention only. I find as a fact that the first time the plaintiff talked to the 1st defendant about the jewels was in the morning of the day of the 1st defendant's engagement; and even so the object was to impress upon the 1st defendant how valuable were the jewels.

40. I now come to the circumstances in which the 4 sets of jewellery were taken to the 2nd defendant's family at the engagement party. In this connection I have to consider the evidence of Tsang Shuk Kim, the plaintiff's sister-in-law. She is the 1st defendant's 4th aunt Madam Tsang says she has not been a go-between for the match making of the 1st defendant and 2nd defendant. She went to their engagement party at 2nd defendant's house with the plaintiff and Dr. Lee and saw the two boxes carried in by Dr. Lee. She cannot remember the complete contents of the two boxes but remembers one box contains some of the jewelleries shown in Exh.8. The two boxes were put on the dining table and remained there throughout the party. She cannot remember anything said by anyone on that occasion. She admits, however, that she knows the 2nd defendant and Mrs. Tan well and that the 2nd defendant is also known to her as "Mei Mei". In cross-examination she says that no one received the 2 boxes which were just left on the dining table by Dr. Lee. This is in direct conflict with the evidence of Mrs. Tan. But her answers to Questions put in cross-examination show that she is not a witness who has told the whole truth. I have the impression that her memory lapses as a matter of convenience. Some of her answers are near absurdity. Madam Tsang says that the first time she knew she was to come to court to give evidence was when the 1st defendant telephoned her the evening before she came. No one asked her any question before that occasion except once when the Plaintiff went with her to a lawyer's office to be asked only one question viz: to confirm that she is the 4th aunt. Apart from that no one knew what she is going to say in court nor did she know what question would be put to her. She is questioned on the events after the meeting at the Mandarin between the 1st defendant and the 2nd defendant. She says that after that meeting Dr. Lee telephoned her only to ask for Mrs. Tan's telephone number. She cannot remember any other part of this telephone conversation. But Dr. Lee and Mrs. Lee were very good friends. They used to go out together. It is surprising that Dr. Lee had to ask for Mrs. Tan's telephone number. She says she did nothing. This is part of her evidence in cross-examination.

She denies that she was the person who carried the box of jewellery into the Tan family or having said anything about the jewellery on that day and repeats that it was Dr. Lee who carried it. According to her Dr. Lee simply put the boxes on the dining table. Her evidence in cross-examination on this point is as follows.

41. Her evidence is so full of improbables and half truth that I can hardly accept it as true. On the other hand Mrs. Tan's evidence as to the events at the engagement party is clear and straightforward. Despite her damaging reply to a question in cross-examination owing to misunderstand of the word "perjury" I am satisfied that she is a truthful witness. In this connection it is pertinent to observe that the plaintiff's only explanation for the jewels to be brought over to the Tan family is that they were taken there on display. Yet not one single witness called by the plaintiff can testify as to anything at all being said at the party. Had there been an intention to display the jewellery common courtesy dictates that someone from the plaintiff's party would mention it to members of the bride's family. After all the plaintiff was making use of the occasion to show off his wealth and his taste in jewellery and normally one would expect Dr. Lee or someone to announce the display when she placed the box on the dining table. In view of the circumstances I accept Mrs. Tan's evidence and find as fact that Madam Tsang did carry the 4 sets of jewellery into the Tan's home and said "Chin Poo So, these are the gifts from the Kwei family for Mei Mei".

42. However, the plaintiff's case does not rest there. His contention is that on the morning of the engagement party when he gave permission to display the jewellery at the party he saw fit to inform the 1st defendant that such jewellery were family treasures to be handed down to the 1st defendant's sons and grandsons. There is, understandably, no other evidence to contradict it. But there is no evidence that the plaintiff instructed anyone to pass on this information to the 2nd defendant or any member of her family. I find it hard to believe that the 1st defendant gratuitously brought up the serious topic of entrustment in the course of his conversation with the 2nd defendant in that evening. In any event the 1st defendant, in his evidence, never claims that he told the 2nd defendant the jewellery were brought over for display only. The 2nd defendant is definite that their conversation never touched on the jewellery at all. I accept her evidence as more probable. I also find the explanation given for leaving the jewellery with the 2nd defendant's family on that day dubious. If Dr. Lee brought them there for display she would take them away at the time she left the party. She was then well escorted by her relatives.

43. I have dealt with the evidence about the photograph taking of the set of jewellery. I find as a fact that the photographs were taken in the circumstances as the 2nd defendant and Mrs. Tan told the Court. This cast grave doubt on the plaintiff's evidence concerning the breakfast table conversation on the morning after the 1st defendant and 2nd defendant's return from their honeymoon trip. There is no evidence that the jewellery were taken out. There was no occasion for the plaintiff to repeat the entrustment (if any) which he alleged to have told the 1st defendant on the day of the engagement party. I am inclined to believe the 2nd defendant that this conversation never took place at all. Similarly I reject the plaintiff's evidence on another occasion of his alleged entrustment on board ship when he saw the 1st defendant and 2nd defendant off to Manila. The 2nd defendant says she heard nothing of that. The plaintiff did not know what part of the jewellery was being taken over to Manila. There was no occasion for him to bring up the subject of entrustment again. If he did so he appears to make very heavy weather of a simple matter. He is head of the family. The impression I have is that what he says is law in his family. There is no need for him to be so long winded to keep on repeating over the simple matter of a family trust. He makes the matter far too completed to be true.

44. If the plaintiff seriously intended the 4 sets of jewellery to be subject matter of a trust only and took such good care to impress upon the 1st defendant and the 2nd defendant repeatedly for so many times then his own children failed him in no uncertain terms. Firstly the 1st defendant had no business to permit the 2nd defendant open a safe deposit box in her own name alone. Then in defiance of the plaintiff's instructions no record was kept of the movements of the jewellery in Manila at all. The 2nd defendant was allowed to remove the jewellery in whatever way she likes without the knowledge of the 1st defendant or Mary Kui - so much so that the plaintiff was obliged originally to claim for the gold set which at all material times was in the possession of the plaintiff's principal wife in Manila.

45. Perhaps the plaintiff's letter to his children a copy of which is produced as Exh.13 expresses the plaintiff's sentiments. It is in the following terms:-

46. There is no evidence that the 2nd defendant has read it. The 1st defendant said that he gave the original to the 2nd defendant to put in the file. I see nothing in this document to evidence even an oral trust. In the 2nd para, the plaintiff's instructions were that of opening a deposit box to keep the jewellery. The whole tenor of that paragraph expresses only the plaintiff's wish and hope as to how the jewels should be preserved by the 1st defendant. The letter was never addressed to the 2nd defendant who was merely mentioned at the end of the letter after the greetings. I observe that in the 3rd paragraph the plaintiff referred to Mary's entitled share of articles of family treasure jewellery. Similar instructions to pass on to sons and grandsons were given. In cross-examination the plaintiff frankly admits that he never intended to impose a trust on Mary.

47. In the plaintiff's own words the term "family treasure" in the 2nd and 3rd paragraphs respectively have different meanings. This I am certain is a subsequent change of mind. I am of the opinion that they have exactly the same meaning. By the letter the plaintiff had no more desire to impose a trust on the 2nd defendant as he had on Mary Kui. Even if I am wrong such an intention was expressed after the 2nd defendant accepted the jewellery without any condition attached thereto.

48. For the aforesaid reasons I am satisfied that the sets of jewelleries now claimed by the plaintiff were gifts given by the plaintiff to the 2nd defendant in contemplation of the marriage between the 1st defendant and the 2nd defendant. I am also satisfied that the gifts were taken to the 2nd defendant's home as such on the day of engagement without any other condition attached and the 2nd defendant accepted them as a prospective bride of the plaintiff's son. The plaintiff's idea of such articles being passed on to the 1st defendant's son and grandsons is nothing more than a hope of any parent who gives something of value to his children and such hope was never communicated to the 2nd defendant until after the marriage. I have grave doubts whether the plaintiff would claim for the return of the jewellery had the 2nd defendant turned out to be sterile but remained the 1st defendant's wife.

49. In the circumstances the plaintiff's claim must be dismissed with costs.

Representation:

B. Bernacchi, Q.C. and P. Woo (Yu, Tsang & Loong) for Plaintiff

B. Liu and Miss T. Trieu (L.S. Shum & Co.) for 1st Defendant

Martin Lee (Lo & Lo) for 2nd Defendant