Kwok Chi Wai v. Kwok Ying Ting
Read the full judgment text of DCCJ 17040/2000 on BabelCite. This District Court judgment was delivered on 26 January 2004.
1. The defendant appeared in person at the trial and the trial was conducted in the punti dialect of the Chinese language. The defendant has however agreed that the judgment can be given in the English language.
Cited by 5 cases
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DCCJ017040/2000 DCCJ 17040/2000 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 17040 OF 2000
Coram: His Honour Judge L Chan Date of hearing: 2, 5 to 9 January 2004 Date of handing down judgment: 26 January 2004 _________________________ J U D G M E N T _________________________ 1.The defendant appeared in person at the trial and the trial was conducted in the punti dialect of the Chinese language. The defendant has however agreed that the judgment can be given in the English language. 2.The plaintiff and the defendant are brother and sister. There are a total of five brothers and sisters in the family. The parents have passed away already. The plaintiff is the youngest brother and the defendant the second youngest. The dispute is over the beneficial ownership of a Home Ownership Scheme ("HOS") flat in Choi Po Court, Sheung Shui. Though the case only involved the plaintiff and the defendant, the two elder brothers, the eldest sister and her husband are also involved as witnesses or potential witness. Before this dispute had come into existence, all the brothers and sisters were in a harmonious relationship. The relationship between the plaintiff and the defendant was particularly close as they were the youngest and had a narrow age gap. This is thus a particular sad family dispute. 3.The defendant is the registered owner of the flat in question and the plaintiff is current residing in it. The plaintiff has in fact resided in it since sometime in 1986 though the exact timing and the cause leading to his moving in are matters in dispute. The plaintiff's case 4.The plaintiff pleads that back in mid-1985, he had a saving agreement with the defendant to the effect that he should deposit HK$2,500.00 per month with the defendant and the defendant would repay him on demand both the deposit and interest at a rate higher than that offered by financial institutions. The plaintiff further pleads that the defendant purchased another property in September, 1986 and offered to let him live in the flat in question for as long as he liked provided that he would deposit HK$130,000 with her. The savings he had with the defendant would be treated as part of the HK$130,000. He would have to continue depositing money into her bank account until the total reached HK$130,000.00. If he should move out of this flat, she would pay him back this sum of HK$130,000.00. The savings agreement thus upon the occupation agreement taking effect. 5.In about the end of 1988, the hut in Holy Cross Village on the hillside of Shaukeiwan, where the family used to reside in, was demolished by the Government and the Housing Authority offered rehousing in a low cost housing flat in Chaiwan. In reliance of the defendant's representation that he could live in the flat for as long as he liked, the plaintiff gave up the resettlement offer by the housing department. 6.Pursuant to the occupation agreement, the plaintiff by 31st January, 1990 had deposited in total HK$144,780.00 into the defendant's account which was in excess of the HK$130,000.00 as required by the occupation agreement. In schedule 1 annexed to his witness statement dated 1st February, 2001, the plaintiff said that the overpayment was at HK$7,000 only as the said sum also included his repayments to the defendant of two other loans each at HK$3,000, a third loan at HK$1,600 and his reimbursement to her HK$180 management fees paid by her on his behalf. 7.In about December, 1996, the plaintiff orally agreed to purchase the flat from the defendant at HK$130,000.00 and the HK$130,000 previously given by the plaintiff to the defendant under the occupation agreement would be treated as the purchase price. The defendant agreed to execute the formal conveyancing document as soon as it was convenient and when the conveyance was to be executed, the plaintiff would have to pay the premium to the Housing Authority and the other expenses. Premium for the land price has to be paid upon the sale of an HOS unit by the owner, who had purchased the unit directly from the Authority, to a private purchaser. 8.In reliance on this, the plaintiff incurred about HK$150,000 for decoration of the flat. For the decoration, he raised a loan of HK$110,000 from the defendant which had been fully repaid with interest. Schedule II annexed to his witness statement of 1st February, 2001 showed that he had repaid in excess by HK$4,000 after deducting a payment by him to the defendant at HK$1,500. That payment was a reimbursement by him to the defendant for the expenses for a dinner hosted by him for his brothers and sisters to celebrate his promotion to the position of a manager. 9.In about April, 1997, the defendant agreed with the plaintiff to buy back the flat at HK$600,000 if the plaintiff should be able to buy another HOS unit. However, the plaintiff had not purchased any HOS unit and there was no final agreement of buying back. 10.In the light of these averments, the plaintiff claims, inter alia, conveyance of the flat or alternatively payment by the defendant of the sums of HK$144,780.00 (deposits) and HK$150,000.00 (decoration money). The defendant's case 11.The defendant denies the plaintiff's case. Her case has been set forth more clearly in her witness statement. She said back in 1985, the plaintiff had a friend who wanted to work overseas and needed a monetary guarantee of HK$50,000. The plaintiff was asked to help but he did not have sufficient money. He therefore asked the defendant for a loan, but the defendant declined and in turn discussed this matter with the eldest sister about this. As a result of the discussion, the defendant suggested to the plaintiff that he could save up his money with the defendant for use in his future wedding as he already had a girlfriend of 5 year standing. The plaintiff agreed and deposited HK$24,000 into her bank account. 12.In 1986, the plaintiff, who was then living in his brother Kwan Nam's home, told the defendant that the two sons of his brother were very noisy, furthermore the plaintiff's employer would soon be moving from Tsuen Wan to Shatin, he therefore wanted to move into the defendant's flat in Sheung Shui to live with the defendant. The defendant agreed to his request and also lent him HK$3,000 for purchase of furniture and accessories for use and for his removal. 13.As the plaintiff had several girlfriends to entertain and only had a small income, he therefore withdrew in the course of January, 1986 to January, 1987 from the defendant HK$10,000 for his own use. 14.In March, 1987, the plaintiff had to be hospitalized for an operation and he needed nutritious food afterwards which cost HK$2,000. In June, 1987, his girlfriend (his present wife) Ho Lai Shan ("Ho") became ill and had to seek medical treatment. He therefore borrowed HK$6,000 from the defendant. In August, 1987, Ho was pregnant and he and Ho wanted to abort the pregnancy. He borrowed HK$10,000 from the defendant for that purpose. 15.In about September, 1987, Ho's pregnancy had reached the fifth month and the plaintiff wanted to marry her. The plaintiff therefore asked the defendant to let him have exclusive use of the flat. She agreed to move out but the plaintiff had to give her HK$1,000 per month as a subsidy to the rental that she had to pay her landlord for leased premises. 16.In October, 1987, the plaintiff had HK$60,000 odd savings with the defendant. There was then a meeting of the two families in a restaurant in Tsuen Wan to discuss the marriage and associated matters. Ho's mother asked for HK$68,000 as "the betrothment money gift" (禮金) ("betrothment gift"). Such cash gift is commonly paid by the male family to the female family when the couple is about to get marry. Its source can perhaps be traced back to the six ceremonies for marriage (六禮). The Ho's demand of betrothment gift was then negotiated down to and agreed at HK$38,000. Ho's mother then asked for an extra HK$10,000 to represent the gifts for "delivery of the grand ceremonial gift" (過大禮). This ceremony can again be traced back to the six ceremonies. The plaintiff's eldest sister then suggested that the HK$38,000 be used for both purposes, but Ho's father immediately put up an indignant look and the meeting ended in displeasure. 17.There was then arranged a second meeting for payment of the betrothment gift. The brother-in-law Lau Kam Cheung at the direction of his wife drove the defendant to the same restaurant in Tsuen Wan for the occasion but Ho's parents did not turn up. The defendant then gave the HK$38,000 to the plaintiff for him to pass it on to Ho's father. 18.The wedding banquet was held on 2nd November, 1987 at the Asiania Restaurant and Nightclub in Wanchai, but none of the Hos had turn up. The banquet bill of about HK$30,000 was paid by the defendant on behalf of the plaintiff. After the payment of HK$38,000 betrothment gift and HK$30,000 banquet expenses, the plaintiff had exhausted his savings with the defendant and instead owed her HK$3,000. 19.In February, 1988, the plaintiff borrowed HK$5,000 from the defendant to defray expenses that he would have to incur upon birth of the baby. In April, 1988, HO, after giving birth to the baby, needed nutritious food. He thus further borrowed HK$10,000 from the defendant to buy such food for her. 20.By September, 1990, the plaintiff told the defendant that his employer was about to be wound up and he would become unemployed, his son was aged 21/2 years old and had to go to kindergarten, his wife had no job or income, he therefore wished to stop payment the rental temporarily to ease his financial plight and to resume the payment when his finance was better. She also learnt that the plaintiff had to turn to hawking, thus he did not pay her any rental compensation from October, 1990 onwards. 21.Regarding the decoration, the defendant said that the plaintiff in December, 1996 asked her to decorate the flat in question. She declined but agreed to lend HK$120,000 to the plaintiff for to decorate the flat. The plaintiff promised to repay the loan by 24 monthly instalments and to pay interest at HK$500.00 per instalment. 22.In July, 1998, the plaintiff withdrew his name as an occupant of the flat and hoped to purchase an HOS flat for himself. 23.In July, 1999, the relationship between the defendant and Ho had turned sour. The defendant caused a notice to be published in the 11th November, 1999 edition of the Sun declaring the severance of her relationship with the plaintiff and the cessation of the plaintiff's right to enjoy her properties. There were other episodes of unhappy incidents during this period from July, 1999 and they culminated in a quarrel between Ho and the defendant on 2nd December, 1999. As a result of this quarrel, the defendant reported to the police that she had been threatened and blackmailed by Ho. Ho was then asked to make a statement to the police explaining the matter. The defendant argued that Ho's statement contradicted the plaintiff's case that the plaintiff had purchased the flat from the defendant at HK$130,000. The material part of Ho's statement is as follows:
24.The plaintiff then engaged Paul Kwong & Co. to act for him. Paul Kwong & Co. on 6th December, 1999 sent a letter to the defendant alleging that there was an occupation agreement under which the plaintiff had to deposit HK$110,000 with the defendant. The letter further alleged that the plaintiff moved in in August, 1986 and allowed the defendant to retain under this agreement a sum of HK$29,000 which was the total of the deposits by the plaintiff with the defendant between 4th September, 1985 to 28th June, 1986. The letter did not mention anything about HK$130,000. It also did not say that the HK$110,000 could be withdrawn by the plaintiff from the defendant if he should decide to move out. There was also no mention about the sale and purchase agreement in December, 1996 as alleged by the plaintiff in this action. The defendant therefore relied on this letter to rebut the plaintiff's case. 25.When the plaintiff engaged Paul Kwong & Co., he had asked his elder brother Kwok Kwan Nam to attend an interview by Mr. Kwong for instructions. As a result, Kwan Nam was aware of the dispute between the plaintiff and the defendant. On 6th December, 1999, a family meeting was held at the home of the eldest sister Kwok King with a view to solve the dispute between them. The plaintiff brought along Ho, her third sister-in-law Choi Nui Hung (PW2) and his son. The defendant alleged that the plaintiff and Ho apologized to her for their misdeeds and asked her to sell them the flat. But the negotiation failed. When the plaintiff's party was leaving, she asked the plaintiff to pay her a monthly rental of HK$3,000 starting 1st January, 2000. 26.The last incident relied on by the defendant to show that she was the legal and beneficial owner of the flat was a dinner gathering in the evening of 9th December, 2000. She said that the second brother Chi Wah and his wife Chan Fan Ling learnt about this dispute and wished to solve it. They therefore summoned a dinner gathering in the evening of 9th December, 2000 at the Sun Kwong Restaurant in Chaiwan just above the Chaiwan MTR Station. When the plaintiff, Ho and their son arrived, they refused to sit at the same table with the defendant and the rest. Chi Wah and Chan Fan Ling then sit with them in an adjacent smaller table. In the course of this dinner, Chan Fan Ling, with a view to clarify the matter for everyone, asked the plaintiff loudly whether the defendant had said that she would sell this flat to him. The plaintiff replied that the defendant had not said so, but she said that she would let him reside in it. The defendant relied on this as part of the evidence to show that she had never sold or agreed to sell the flat to the plaintiff. Counterclaim 27.At the start of the trial, I asked the defendant if she would like to formally include a counterclaim for delivery up of vacant possession of the flat by the plaintiff to her as she had asked for possession in various documents but not in the pleadings. She appeared to be reluctant. She said she wished to see how her brother would behave before deciding whether to ask for possession of the flat. I then explained to her that it is desirable to have all issues including her counterclaim for possession to be included in the action. She then opted to include a counterclaim for delivery up by the plaintiff of vacant possession of the flat, but she did not want to pursue any counterclaim for payment of money lent by her to the plaintiff as that might lead to an adjournment of the case as intimated by Mr. Chan for the plaintiff. The plaintiff's evidence
28.The plaintiff was allowed to adopt his two witness statements as part of his evidence in chief. His evidence followed his pleaded case. He said that at the end of 1994, the defendant asked him for assistance in her application for a unit in the HOS. Since there had to be at least two occupants for any unit to be purchased from the scheme, the defendant wished to name him as an authorized occupant. He agreed to the request and was so named in her purchase. 29.He then referred to the making of the savings agreement in about June, 1985. He said the defendant had promised to give him interest higher than that offered by financial institutions. He then deposited money into her account at the Hong Kong Bank. He clarified in oral evidence that there was no discussion on repayment and he just assumed that it would be repayable on demand. Under this agreement, he deposited HK$24,000 into her account on 20th June, 1985. He also made regular deposits into her account from July, 1985 onwards. 30.At the end of 1985, he started dating his present wife Ho. In about June, 1986, he and Ho wanted to buy a flat in Tuen Mun for HK$130,000. He wanted to use his savings for the purpose and discussed it with the defendant. The defendant however persuaded him not to do so as there would be a lot of costs and expenses for the purchase of a flat and he did not have enough money for such purpose. He accepted her advice. 31.In September, 1986 (or mid-1986 according to his oral evidence), the defendant telephoned him and said that she had purchased another property in Tsing Lung Tau, the New Territories and would move to that property. She further asked him if he would like to live in the flat in question. They then made the occupation agreement verbally over the telephone. Under this agreement, he had top deposit HK$2,500 with the defendant every month until the total had reached HK$130,000. He moved into the flat in about November, 1986 after the defendant had moved into her new property in Tsing Lung Tau and he enjoyed exclusive possession of the flat. He also had a house warming party for his friends and colleagues in December, 1986. He denied that he had asked the defendant for permission to move into her flat in Sheung Shui because the children of his brother Kwan Nam were making too much noise for him at their Kwai Shing home and his factory would be moving from Tsuen Wan to Shatin soon. He also denied that he had shared this flat with the defendant until shortly before his marriage when the defendant moved out to give him exclusive possession of the whole flat. In cross-examination of the defendant, it was revealed that whilst he was living in this flat before his marriage, he had paid all the rates and utility charges and has kept all the receipts till now. 32.Regarding the betrothment gift, he said that the two families agreed at the tea gathering that the sum should be at HK$15,000. Ho's parents then requested for an extra HK$3,000 to represent the "delivery of the grand ceremonial gift", but there was no agreement over this. He later quarrelled with the defendant over the phone on this HK$3,000. Though the defendant had never said that she would not pay the agreed HK$15,000 and the plaintiff did not expect that she would withhold this sum, the plaintiff never asked her for this sum and Ho's father had also never mentioned it. Thus even the agreed betrothment gift of HK$15,000 was also not paid to Ho's father. 33.He also agreed that he had borrowed HK$3,000 from the defendant in August, 1987 because of his marriage. He also obtained the defendant's agreement to suspend the payment of deposits under the occupation agreement for October and November, 1987. After the marriage, he reduced his monthly deposit under this agreement to HK$1,500.00 per month because of heavier financial burden. 34.He registered his marriage on 27th October, 1987 and held a wedding banquet on 2nd November, 1987 in Asiania Restaurant and Nightclub. Regarding the expenses for the wedding banquet, he insisted that it was only at about HK$15,000.00 and not about HK$30,000. He agreed that these expenses were paid by the defendant on his behalf, but said that he had reimbursed the defendant in full on the next day when he deposited the equivalent sum into the defendant's account at the Choi Yuen Estate Branch of the Hong Kong Bank. He gave a full description of how he deposited the money into her account. He also said that the bank teller had asked him if the money was to be deposited into the account of Kwok Ying Ting. He was then given a receipt by the teller which had the defendant's name on it. There was also nothing unusual in the whole course of the deposit. After depositing the money with the defendant's account, he also told the defendant on the telephone about the deposit and asked her to check it out herself. However, despite his habit of keeping all deposit slips and payment records, he has not kept this particular deposit slip. 35.In 1988, the Government demolished the family hut in Holy Cross Village, Shaukeiwan and offered rehousing in Chaiwan. He had applied for rehousing, but had encountered some difficulties because his sister-in-law Chan Fan Ling, who was then living in the hut, had not reported his name to the Housing Authority. He therefore had to apply for it. He however abandoned the application as he thought that it was too cumbersome for his wife to visit the Squatter Control Unit of the Housing Department to pursue the application, his payment under the occupation agreement with the defendant was almost complete and thus had a place to live and he did not know what to do with a low cost housing unit in Chaiwan. 36.He kept on depositing money with the defendant under the occupation agreement until 5th September, 1990 and the defendant confirmed to him that he had made full payment and he could live there for as long as he liked. In his oral evidence, he said that before making the last payment, he had phoned the defendant who told him to make the 5th September payment as the last one. Schedule I annexed to his witness statement showed that he had deposited a total of HK$144,780 with the defendant and, after deducting HK$7,780 which was repayment for other purposes, he had overpaid the defendant HK$7,000.00. In his oral evidence, he clarified that a sum of HK$3,000 should not have been included in the sum of HK$7,780, he thus overpaid the defendant by HK$10,000 and not just HK$7,000. He has kept all the deposit slips for payments under the savings and occupation agreements in a file and has produced them as evidence at the trial, but he was unaware of the overpayment until the time of the litigation. 37.In 1996, his second son was born and he and Ho contemplated the decoration of the flat to create a larger useable area by putting put a partition for an extra room and relocating the kitchen to the balcony at the cost of HK$150,000. They considered that it was important for them to clarify with the plaintiff on the ownership of the flat before proceeding with the decoration. They thought that if the defendant was unwilling to transfer the flat to him, they would not put in so much money for refurbishment but would get back the money from the defendant to buy a larger unit. He then had a discussion with the defendant in December, 1996 and the defendant confirmed that she would transfer him the ownership of the flat at HK$130,000 and the HK$130,000 he had deposited with her would be taken as the purchase price. The defendant also agreed to convey the flat to him on a date to be agreed in which event he would have to pay the premium. He then asked the Defendant for a loan to decorate the flat. He intended that after he had repaid the decoration loan, he would ask the defendant to transfer the title to him. He would mortgage the flat to obtain finance for the premium to the Housing Authority. 38.On the same occasion, the defendant agreed to advance to him a decoration loan of HK$110,000 to be repaid by instalments of about HK$5,000 each at about monthly intervals with a charge of HK$500 levied on each instalment and to be paid by him until full repayment of the loan. In his oral evidence, he clarified that the charge of HK$500 would be payable upon repayment of any instalment by him regardless of the amount of the instalment. Thus it would be to his advantage if he should repay fewer instalments each of larger amounts so that he would have to pay less charges. If he should choose to repay more instalments, he would have to pay more charges. He said he had made full repayment including all charges by 18 instalments with the last one on 31st January, 1999. The total sum he repaid was at HK$123,000, but he was only obliged to pay HK$119,000 including all charges, he thus overpaid the defendant by HK$4,000. He clarified in oral evidence that he in fact only repaid HK$120,000 in 17 instalments as HK$3,000 was for other purposes. He had thus overpaid HK$1,500 as the principal was HK$110,000 and the charges for 17 instalments was at HK$8,500. He denied that this loan was in the sum of HK$120,000. Again, he was unaware of the overpayment be it at HK$4,000 or HK$1,500 despite the fact that he has kept all deposit slips till now and has produced them all at the trial. 39.After the decoration, the defendant was very fond of the decoration and in about April, 1997, proposed to buy back the property from the plaintiff. They thus agreed that the defendant would buy back the flat from the plaintiff at HK$600,000 if the plaintiff should succeed in buying an HOS flat and the plaintiff had absolute discretion on the choice of the new flat. As a result, he had made three applications for an HOS flat and succeeded on the third attempt. But the defendant talked him out of it as she opined that real property price was on the slide. On the defendant's advice, he on about 7th July, 1998 cancelled his status as an authorized occupant of the flat so as to purchase a new flat under the HOS in future. 40.Between 1998 and July, 1999, the defendant and Ho had various disputes over his children. As a result of the disputes and remarks made by the defendant on Ho, the plaintiff did not allow his children to see the defendant. The dispute eventually led to the defendant's report to the police against Ho and Ho's statement to the police as referred to above. 41.The plaintiff then engaged Paul Kwong & Co. to act for him. Paul Kwong & Co. on 6th December, 1999 sent a letter to the defendant setting forth his rights in the flat. This letter has been referred to above. The plaintiff says that Paul Kwong has made a number of mistakes in this letter, but he could not correct them as it was sent out without his confirmation of the contents and he did not know about the mistakes until quite sometime afterwards as Paul Kwong did not give him a copy of the letter soon after it was sent out. 42.Regarding the meeting on 6th December, 1999 at Kwok King's home, he alleged that when he was downstairs, his brother-in-law Lau Kam Cheung had persuaded him to apologize to the defendant to pacify her and hopefully solve the dispute. Lau also told his party to go up first and he would come later so that people would not know that Lau had seen them before the meeting. He also said that at the meeting, the defendant was asked to transfer the title of the flat to him, but the defendant demanded HK$700,000. Since he had already paid the defendant for the flat, he refused the demand. There was eventually no agreement and the meeting broke up. When the plaintiff's party was leaving, the defendant asked the plaintiff to pay her monthly rental of HK$3,000 starting 1st January, 2000. 43.Regarding the meeting in the evening of 9th December, 2000, he denied the conversation with Chan Fan Ling as alleged by the defendant. He instead said that he had relayed to Chi Wah and Chan Fan Ling his full story from the savings agreement, the occupation agreement and the sale and purchase agreement in December, 1996. 44.Except for a few loans of a few thousand dollars, the plaintiff denied that he had borrowed from the defendant the loans alleged by the defendant. 45.In cross-examination, the defendant put to him that Paul Kowng's letter referred to his savings of HK$29,000 by 28th June, 1986 because he had taking into account of his withdrawal of HK$30,000 from the defendant prior to that date, but he denied it. The defendant further put to him that he had in fact withdrawn HK$31,000 prior to that date but he also denied that. 46.He also admitted that he asked the defendant to be present at the gathering in September or October, 1987 for negotiating the betrothment gift because he had savings for marriage which was kept by the defendant. This however contradicted his case that he had in about September, 1986 already converted his savings into payments under the occupation agreement and there was no more savings agreement since about September, 1986. 47.Regarding the amount he had deposited with the defendant and evidenced by the deposit slips he kept, he said that he merely had an idea as when he would have paid up the required sum but he had not added up the figures in the slips. He also said that he had not asked the defendant for repayment of the excess deposit HK$7,000 (which he clarified in evidence in chief to be at HK$10,000). He was asked why he did not raise with the defendant the excess deposit when he asked the defendant for the decoration loan in December, 1996, he said a few thousand dollars was nothing to him. He also said that when the defendant asked him to pay one more instalment under the occupation agreement (in September, 1990), he knew that he had already paid enough, but he did not tell the defendant but just paid the instalment of HK$1,500. 48.On whether he had reimbursed the defendant the expenses for the wedding banquet, he insisted it was only HK$15,000 and he had reimbursed the defendant the full amount on the next day by depositing it at the Choi Yuen Branch of the Hong Kong bank. However, despite his having kept all slips for all his deposits to the defendant's bank account, he had not kept this one. He said it was too long ago and he could not tell how he had lost it.
49.Madam Choi gave evidence orally instead of adopting her witness statement as her evidence in chief. She married an elder brother of Ho in December, 1988. Her husband is a police officer. She has been an estate agent for over 10 years and has been working in the Mongkok area. In the evening of 6th December, 1999, she accompanied the plaintiff and HO to the home of Kwok King, the plaintiff's eldest sister. Before going there, she had already learnt from the plaintiff that he had purchased the flat from his elder sister at HK$130,000 but the sister had refused to convey the flat unto his name. 50.In that evening when she got off the taxi with the plaintiff, his wife and son, they were met by Kwok King's husband Lau Kam Cheung. Lau told them that the defendant was in a furious mood and persuaded them to apologize to the defendant so as to pacify her. If they could pacify her, it is possible that she would let the plaintiff have the flat. Lau also told them to go to his home first and he would follow later so that the defendant would not know that he had talked to them. 51.They then went upstairs to Lau's home. Upon entering, Choi on behalf of the plaintiff and Ho apologized to the defendant. She further asked the defendant on what needed to be done for the flat to be conveyed to the plaintiff. The defendant asked for HK$700,000.00 which would not include the premium for the Housing Authority and she would not perform any conveyance. She would only sign a document at a solicitor's office to confirm that the flat belonged to the plaintiff. The plaintiff however disagreed. He said that flat was his and he need not pay for it again. Choi also said that HK$700,000 was the market price. Kwok King then suggested HK$500,000 as the price, but the plaintiff still disagreed as he had already paid for the flat. They then went inside a room for a while. When they came out, they said that the price was HK$450,000, but the plaintiff refused as he had already purchased it at HK$130,000 and there was no reason for her to pay anything more. Choi then suggested that the defendant could pay the plaintiff HK$400,000 (to reflect the HK$130,000 and the money spent on decoration) and the plaintiff would move out, but the defendant retorted and asked if Choi was blackmailing her. The party then broke up disconsolately. When the plaintiff's party was leaving, the defendant said that from 1st January, 2000, the plaintiff would have to pay her rental at HK$3,000 per month for the flat. She denied that the plaintiff's party went to Kwok King's home to apologize to the defendant and to negotiate for a price to purchase the defendant's flat. 52.In cross-examination, Choi said that both the plaintiff and Ho had said in family gatherings of the Ho family that the plaintiff had paid his elder sister HK$130,000 for purchase of the flat, but that the defendant had failed to convey the flat unto the plaintiff's name despite long lapse of time. She said that the plaintiff and Ho have been saying this for 2 to 3 years before 6th December, 1999. She was not sure if they had been saying this since 1996, but she was certain that they had been saying this repeatedly in the Ho family gatherings since 1997 to 1999. She had advised them since 1997 to get the flat conveyed unto the plaintiff's name so as to finalize matters. The plaintiff's reply was that he would wait until his elder sister was in a better mood. The plaintiff's father in law and mother in law had also frequently asked the plaintiff to get the conveyance done and clarify matters. The plaintiff was repeating this issue to the Ho family gatherings from 1997 to 1999 and the members of the Ho family were very worried that he would not get the flat into his name and be cheated by his elder sister. 53.This piece of evidence of Choi does not lie comfortably with the evidence of the plaintiff. The plaintiff's case is that he had the sale and purchase agreement made in December, 1996, but that he had borrowed a decoration loan from the defendant which he only repaid in full on 31st January, 1999. He would only go about changing the name of the owner after he had repaid the decoration loan as he had to pay the premium upon conveyance. He thus had never requested the defendant to convey the property into his name until the letter of 6th December, 1999 by Paul Kwong & Co. on his behalf. Furthermore, he also alleged a buy back agreement under which the defendant would pay him HK$600,000 for this flat upon his purchasing another HOS flat. Thus on the plaintiff's case, from April, 1997 onwards, he would have no cause for asking the defendant to convey this flat to him.
54.Madam Ho's evidence is more or less as that of the plaintiff. She said that the betrothment gift had been agreed at HK$15,000. Regarding the extra HK$3,000, the Kwoks did not say whether they agreed to it or not. Since the Kwoks did not agree to the extra HK$3,000, her father probably thought that he was not being respected and was angry. He thus said that the Hos would not host any wedding and the Kwoks should also not host any such banquet. Despite the Kwoks' agreement to pay HK$15,000, not a dollar was paid. However, nobody including her father had mentioned it at all. She did not think that the sum would not be paid. 55.On the meetings on 6th December, 1999 and 9th December, 2000, she corroborated the plaintiff. She had knowledge about the money dealings between the plaintiff and the defendant, but she denied that the plaintiff had borrowed or withdrawn any money from the defendant. On the change of the owner of the flat after the plaintiff had purchased the flat from the defendant in December, 1996, she said that they had no money to pay the premium and they did not want to do it in haste.
56.Mr. Ho is the plaintiff's father in law and he was called to deal with the issue of betrothment gift (禮金). Though he had made a written witness statement just before going into the witness box, he gave oral evidence and did not adopt the statement as his evidence. He was firm that he had not received a dollar of betrothment gift. He referred to two gatherings of the two families before the marriage. The plaintiff's eldest sister and brother-in-law attended the first one. Contrary to the evidence of the plaintiff and Ho, he was adamant that betrothment gift was never mentioned in this gathering at all. Though he could not remember all the details of that occasion as it was over ten years ago, he was firm that betrothment gift was not mentioned by any body on this occasion. He was repeatedly asked in evidence in chief if betrothment gift had been mentioned in that meeting, but he was firm that it was not. He was also adamant that his recollection on this issue was clear. Not just that betrothment gift was not mentioned in that meeting, he was also firm that other ceremonial payments like "wedding banquet money" or "delivery of the grand ceremonial gift" were also not mentioned. His idea was to jointly host a banquet with the Kwoks for celebration and he would take the money gifts from the guests, but the discussion had not reached this issue and no such banquet was held. Also contrary to the evidence of the plaintiff and Ho, he said that this meeting ended in harmony instead of displeasure. 57.He also referred to a second meeting of the two families and the Kwoks were only represented by the plaintiff himself. His third son Ho Wai Shan was also present. The plaintiff in this meeting offered HK$12,000 as betrothment gift, but his third son told him not to take it as it would become the plaintiff's marriage burden which would lay on top of the plaintiff's baby burden as he would be having a newborn baby soon. On this suggestion and with a view to make the plaintiff's life easier, he declined the HK$12,000 betrothment gift. 58.In cross-examination, he contradicted the plaintiff's evidence by saying that the plaintiff had told him that he had saved up some money with his sister for use in his marriage though the plaintiff did not say how much. The issue of betrothment gift was raised with him again and he said he could not recall if there was any discussion over this as it was long ago, but he was again adamant that he himself had not mentioned it at all. 59.He was asked whether he had asked the Kwoks for HK$15,000 betrothment gift and then asked for an extra of HK$3,000, his firm denial again contradicted the evidence of the plaintiff and Ho. However, his newly made witness statement clearly showed that he had discussed this matter with the Kwoks. When he was referred to it, he retreated into ignorance for poor memory and said that he merely kept people company on that occasion. He said though he intended to have a joint banquet and to collect the guests' money gifts, he had not raised such banquet with the plaintiff or the Kwoks as it should have been raised by the other side. In answer to a query from the court, he said that in this second meeting of the two families (in October or November, 1987), his third son, in telling him to decline the HK$12,000 betrothment gift, also reminded the plaintiff that he should effect change of the owner's name of the flat as soon as possible and to provide a comfortable home for Ho. This piece of evidence is a bit surprising as at that time, the plaintiff according to his own case was still making payment under the occupation agreement and had no title in the flat at all. He was at liberty to take his money back if he should choose to move out. The defendant's evidence
60.The plaintiff insisted that he had reimbursed the defendant the banquet expenses on third November, 1987 at about HK$15,000 by depositing the same into the defendant's account at the Choi Yuen Branch of the Hong Kong Bank. The plaintiff had sought specific discovery by the defendant of her bank statement of her account for the period from 1st to 10th November, 1987. The defendant applied for and obtained a re-print of this statement from the Hong Kong bank, but the statement did not show any such deposit on or about that date at all. At the insistence of the plaintiff, one Mr. Ho Tat Fai, the manager of the Hong Kong Bank's Day and Night Banking Centre at HSBC Centre, was required to attend the trial on subpoena. 61.Mr. Ho said that if a customer should request for a reprint of an account statement covering a period in the past, he would feed the request data into the computer system. The Central Record Management Office would then print out the requested document and, depending on the request, would either post it directly to the customer or to the relevant branch to be handed over to the customer. He confirmed that the statement as produced in court was printed pursuant to a history request and the statement contained all the transactions in the account during the period of 1st November, 1987 to 10th November, 1987. He also confirmed that a person could deposit money into an account held by another person simply by presenting the money to any branch of the bank and giving the staff the relevant account number. It would not be necessary for the name of the account holder to be given though the teller would normally confirm with the depositor the name of the account holder. A slip would then be issued to the depositor which contained (i) the amount deposited, (ii) the date of the deposit, (iii) the account number and (iv) the name of the account holder. He has also never heard of any case where a teller had misappropriated the money from a depositor by issuing a handwritten receipt to the depositor and the bank has no record of the deposit.
62.The defendant adopted her witness statements as part of her evidence in chief. Her story has been set out above. She further said that the defendant in about November, 1986, the defendant asked to move in to live with her at her flat in Sheung Shui on the grounds that the children of Kwan Nam were too noisy and his employer would move the factory to Shatin soon. She agreed and he moved in at about the end of November, 1986 to live with her. When he was about to get marry (in late 1987), he asked her for exclusive occupation of the flat and promised to pay her HK$1,000 per month as a subsidy for her to rent a place elsewhere. She felt more comfortable in describing this sum as the brother's subsidy to her rental rather than as rental from her brother as she did not think it sound right to require her brother to pay her rent. 63.At that time, the plaintiff was very busy in assisting the removal of his employer, his wife was also pregnant, thus he had no time to look for a flat as his residence. She agreed and then moved out to a leased flat on the 15th floor of Tak Bo Garden in Ngau Tau Kok. She lived in Tak Bo Garden for 6 to 7 years and had changed units twice in the course of which. 64.She was firm that she had not moved into her other property in Tsing Lung Tau as alleged by the plaintiff as there was not even a bed there. She bought the property for rental income and let it out to an engineer surnamed Chu on 1st March, 1987 for 2 years. When this gentleman moved out before the end of the term, she let it to another engineer also surnamed Chu for another two year term commencing 1st October, 1988. He then moved to a flat in Shun Ning Road which was owned by the younger brother of her boyfriend. She then moved to a flat in Po On Road which was owned by her boyfriend. She would pay HK$2,000 to HK$3,000 to her boyfriend's mother as her rental for a room in this flat. 65.Regarding the savings and withdrawals by the plaintiff, she said that she used to keep a book which recorded of all the plaintiff's deposits and withdrawals. She had been trying to look for this book since the commencement of this litigation in the High Court, but could not have found it. The particulars of withdrawals that she has stated in her witness statement were all from her memories. She was cross-examined extensively on why she had only provided some but not all of these particulars in her Defence filed on 31st August, 2000 and her answers to requests for further and better particulars filed on 26th October, 2000. She said that when she prepared the defence, she did it in haste as she thought that she had to file her defence urgently to prevent default judgment to be entered against her. Thus she filed her Defence within 10 days after the writ of summons was served on her. She had no one to assist her and did not know what to write and what not to write or how much she should write. She only spelt out the particulars of money owed to her by the plaintiff. She did not know that she also had to spell out those sums that the plaintiff had saved with her but had later withdrawn from her. Regarding her answers to requests for further and better particulars, she said at the time when she prepared them, she was still not sure of the particulars. When she prepared the witness statement, she already had the benefit of reading the copies of the plaintiff's deposit slips. These slips jogged as well as confirmed her memory on the withdrawals. She also said that she had settled the account with the plaintiff shortly after his marriage. At that time, her account showed that the plaintiff owed her about HK$5,000 but the plaintiff's account showed that he only owed her about HK$3,000. She accepted the plaintiff's account and he then repaid her at HK$500 per month. Together with the rental subsidy of HK$1,000 per month, he paid her HK$1,500 per month. Before the HK$3,000 was repaid, the plaintiff borrowed further sums from her and the repayment had to continue. 66.On the decoration loan, she was firm that he had borrowed from her HK$120,000 with the first HK$10,000 advanced in cash. This sum was advanced on 9th December, 1996. She can remember this clearly as she had just returned from a trip to Indonesia on the previous day. The HK$10,000 cash was from the money she brought back from the trip. She also produced her passport to show that she had departed from a certain place in Indonesia on 8th December, 1996. 67.On the whole, she was unshaken in the cross-examination.
68.Kwan Nam is the 2nd son of the family. He has always been a taxi driver. He lives in a low costs housing flat in Kwai Shing West Estate. When he moved into this flat, the plaintiff also moved in to live with him. He recalled that the plaintiff had moved out from his flat before getting married and he moved to live with the defendant in Sheung Shui. He knew that the plaintiff moved out because his children were making too much noise and the plaintiff's place of work would move to Shatin soon. He learnt about these afterwards in family gatherings. He had also been to the defendant's flat in Sheung Shui before the plaintiff's marriage and knew that he was living there with the defendant. He also heard that the plaintiff had saved up some money with the defendant but he had used it up in his marriage. 69.He also recalled his interview by Paul Kwong and he had told Kwong that the plaintiff had lived with him but had moved out for the above reasons. Kwong then remarked that his answers did not assist the plaintiff. 70.Since he had been asked to meet Paul Kwong, he learnt that there was a dispute between the plaintiff and the defendant. He therefore arranged with the eldest sister Kwok King to have a family meeting at her home with a view to solve the problem for them. He remembered that the plaintiff had brought along Ho's third sister-in-law who was an estate agent. At the meeting, the plaintiff suggested to purchase the flat from the defendant. His brother-in-law Lau Kam Cheung acted as a go-between in the negotiation, but it did not result in any deal as the defendant did not want to sell the flat. When the party broke up, the defendant told the plaintiff that he had to pay her a monthly rental of HK$3,000 from 1st January, 2000 if he wanted to remain residing in the flat. He also recalled that the plaintiff had not said that he had any money kept by the defendant or that he had already purchased the flat from the defendant or that he had the title to the flat. 71.Kwan Nam also testified on the family dinner gathering in the evening of 9th December, 2000 in Sun Kwong Restaurant in Chaiwan. He recalled that at the dinner, Madam Chan Fan Ling, the wife of his elder brother Kwok Chi Wah, had asked the plaintiff whether he had purchased the flat from the defendant and he said no. Since the plaintiff and Chan Fan Ling were sitting in a smaller adjacent table, Chan therefore spoke in a loud manner so that everybody could hear her what she said. The plaintiff also answered in an audible manner. 72.In cross-examination, he confirmed that it was the plaintiff who offered a price first. He could not say anything about the offer as he did not take part in the negotiation, he merely asked the defendant to sell the flat at a lower price. 73.He also said that he had not heard of any occupation agreement between the plaintiff and the defendant or that the plaintiff would or had paid the defendant HK$130,000. He also maintained that the plaintiff and the defendant were living together in the Sheung Shui flat. He denied the plaintiff's story about his interview by Paul Kwong and maintained what he had said in evidence in chief. On the whole, he maintained his case and disagreed with the plaintiff's case as put to him.
74.Mr. Lau is the husband of the eldest sister Kwok King. He was present at the tea gathering for negotiation of the betrothment gift back in September or October, 1987. He recalled that Ho's parents had asked for HK$68,000 but the Kwoks counter offered HK$38,000. Ho's mother was not very pleased with the counter offer but agreed after a long discussion. They then asked for another HK$10,000 to represent the "delivery of the grand ceremonial gift". The Kwoks discussed about this and declined it. The Hos were very unhappy and the gathering ended in displeasure. 75.Lau also confirmed that the betrothment gift agreed at HK$38,000 was indeed paid on another day. On this other day, he at the request of his wife drove the defendant to the same restaurant in Tsuen Wan for her to hand over the gift. He saw the defendant putting the money into a red packet or envelope. They waited at the restaurant for quite sometime, but the Hos did not turn up. The defendant therefore passed the money to the plaintiff and he and the defendant left. 76.On the wedding banquet in the Asiania Restaurant, there were twelve tables. He checked the bill and the total was about HK$29,000 to HK$30,000. The sum was then paid by the defendant. 77.He then dealt with the family meeting at his home in the evening of 6th December, 1999. He recalled that he had gone downstairs to receive the plaintiff and Ho who had brought along Ho's third sister-in-law. When they met, Ho told him that it was a big problem as they (meaning the plaintiff's family) would have no place to live. She then introduced to Lau her third sister-in-law who was an estate agent and told Lau that she wished to purchase the defendant's flat at a lower price. The party then went upstairs. Ho also said that she would apologize to the defendant so that she could continue living in the flat. The plaintiff and Ho immediately apologized to the defendant. They then asked the defendant to sell them the flat. The defendant was angry and retreated into one of the rooms. The plaintiff then offered a price and asked Lau to persuade the defendant to sell him the flat. The third sister-in-law Choi also took part in the negotiation, but it did not result in any deal. The plaintiff's party then left. 78.He was firm on his evidence and disagreed with the plaintiff's case as put to him.
79.Madam Kwok is the eldest sister. She remembered that she had heard that the plaintiff had been approached by a friend for a loan to use as some guarantee money as his friend was going abroad to work. She told him not to advance the loan. Since the plaintiff already had a girlfriend of 5 year standing, she suggested that he should save up some money with the defendant, but she did not know how much the plaintiff had saved with the defendant. When the plaintiff started dating Ho, the defendant told her that the plaintiff was spending a lot of money and had to withdraw his money from the defendant. She also knew that the plaintiff had taken over HK$10,000 from the defendant for medical use. She asked the plaintiff the reason for the medical fees, but she said the plaintiff did not tell her the true story. Soon after that, he told her that his girlfriend was pregnant and he had to get marry. She also recalled that before the plaintiff was married, he had to be hospitalized for a surgery. After that, he went to live with her for convalescence. She bought some nutritious food for the plaintiff. The defendant then gave some money to the plaintiff for him to pass to her as reimbursement for the nutritious food and other food expenses and she witnessed this. 80.On the negotiation of betrothment gift, she remembered that the parents of Ho asked for HK$68,000 but after long negotiation, agreed to HK$38,000. She also recalled the Hos' request for an extra HK$10,000 which was not accepted by the Kwoks. The parents of Ho were unhappy about it and the gathering ended in displeasure. She had also told her husband to drive the defendant to Tsuen Wan to hand over the money. 81.On the decoration of the flat in question, she said she had told the defendant not to advance money to the plaintiff for such purpose, but the defendant was very fond of the plaintiff and advanced the loan against her advice. 82.She was aware of the quarrel between the defendant and Ho sometime before December, 1999 over the care of the sons of Ho and the plaintiff. She took the view that Ho was not right on the matter as she had not exercised sufficient care over her own sons. 83.In the evening of 6th December, 1999, there was a family meeting at her home. The plaintiff, Ho and the third sister-in-law of Ho came and it was her husband who brought them up. The plaintiff and Ho then apologized to the defendant and said that they hoped to continue living in the flat. The plaintiff offered to buy the flat from the defendant but the defendant was unwilling to sell. Eventually there was no agreement and the plaintiff's party left. 84.Regarding the gathering on 9th December, 2000 in Sun Kwong Restaurant which was arranged by Kwok Chi Wah and his wife Chan Fan Ling, she remembered that Chan Fan Ling had asked the plaintiff if he had purchased the flat in question and the plaintiff replied that he had not but that the defendant had allowed him to live in it. 85.She also said that when the plaintiff first moved into this flat, he was sharing it with the defendant. The defendant only moved out to Tak Bo Garden at about the time when the plaintiff was to get marry. She also knew that the plaintiff had to pay the defendant HK$1,000 as subsidy for her rental as they had openly confirmed payments at family gatherings. 86.She also suggested to the plaintiff to borrow money from the defendant to buy nutritious food for Ho after the birth of their first son. She later asked the plaintiff how much nutritious food he had purchased for Ho and the plaintiff said over HK$10,000. She then remarked that it was unnecessary for him to have borrowed so much money from the defendant for that purpose. 87.The plaintiff's case was then put to her but she disagreed with it.
88.The other brother Chi Wah did not give evidence. He had in fact asked for leave from his employer and come to the court twice, but his turn only came on the third day when he could not have obtained further leave from his employer. I therefore place no weight whatsoever on the content of his witness statement. Analysis and Findings
89.There is no dispute on the sums deposited by the plaintiff into the defendant's bank account. The dispute is on whether they were deposited initially pursuant to a savings agreement made in 1995 which was changed to an occupation agreement sometime in about September, 1986. The defendant's case is that the deposits had been fully withdrawn after the plaintiff's marriage and the plaintiff became indebted to the defendant since then. Indeed, the deposit of HK$130,000 by the plaintiff with the defendant is the cornerstone of his case. But the plaintiff said that he had deposited not just HK$130,000 with the defendant. According to his evidence at the trial, he had in fact overpaid the defendant by HK$10,000. It is difficult to accept that despite the fact that he had kept all the deposit slips but had not added up the sums so that he had unknowingly overpaid the defendant so much. Even when he asked the defendant for a decoration loan, he never bothered to check how much he had paid the defendant previously. He said he only discovered the overpayment at the time of this action. If he never checked the amount deposited, one wonders why he took the trouble to keep all of them in a file. 90.The defendant's case sounds more reasonable. She was corroborated by the eldest sister on the several causes of and occasions when the plaintiff withdrew money from her before his marriage. One of the causes for the withdrawal was when the plaintiff started dating Ho. Another one was when the plaintiff had withdrawn over HK$10,000 from the defendant for medical use. This tallied with the withdrawals referred to by the defendant in June and August, 1987 when the plaintiff had withdrawn monies for Ho's medical use and for an abortion. The eldest sister also recalled that the defendant had given money to the plaintiff for nutritious food during his convalescence after his surgery. These causes and occasions more or less coincided with those referred to in the defendant's evidence which accounted for HK$31,000 of his savings. 91.The other two major expenditures were the betrothment gift and the wedding expenses. On the betrothment gift, I find the evidence of the plaintiff and Ho surprising. They say that there was an agreed sum of HK$15,000. The sum not agreed was an extra HK$3,000. However, for no obvious reason, the agreed sum was not paid by the defendant at all. One has to bear in mind that this sum, if paid, would be on account of the plaintiff and not on the defendant's account. To withhold payment of this agreed betrothment gift is an omission of serious bad faith on the part of the plaintiff and the Kwoks. Even if the defendant should have for any reason or excuse failed to pay this sum to Ho's father directly or indirectly, I cannot imagine why the plaintiff and Ho would have just kept quiet and not raise it with the defendant. I also cannot see why Ho's father should just ignore that and not clarify it with the plaintiff or Ho on whether such sum would or would not be paid. The evidence of Ho's father presented a further problem as he said that the agreed sum was only HK$12,000 and not HK$15,000, but that for the sake of helping the plaintiff, he declined the plaintiff's offer to pay him this sum. 92.The defendant's story on this issue was corroborated by the eldest sister and her husband. All three of them said that the initial request for betrothment gift was at HK$68,000 and it was negotiated down to HK$38,000. The disagreement was over an extra HK$10,000. The husband of the eldest sister also corroborated the defendant that this agreed sum was indeed paid to the plaintiff for his to pass on to Ho's father. He said he saw the defendant putting the money into a red packet or envelope, he had driven the defendant to the restaurant in Tsuen Wan and he saw the defendant handing over this packet or envelope to the plaintiff for him to hand over to Ho's father as they had waited for too long and Ho's father did not turn up. 93.I find that the plaintiff, Ho and Ho's father have made up their stories on the amount of betrothment gift, but they have failed to be consistent. Their stories are unreasonable and unbelievable. On the other hand, I accept the version given by the defendant, her eldest sister and her husband. The eldest sister and her husband have nothing to do with the outcome of this action. I cannot see any reason why the eldest sister and her husband should lie to the court on this matter and side with the defendant to the prejudice of the plaintiff. 94.On the wedding expenses, the version given by the plaintiff and that by the defendant is again very different. The plaintiff said that it was only at HK$15,000 and he had fully reimbursed the defendant about it. This version was however not supported by the bank statement issued by the Hong Kong Bank and the evidence of the bank manager Mr. Ho Tat Fai. I find that there was never any deposit of about HK$15,000 or at all into the defendant's account with the Hong Kong Bank on or about third November, 1987 and thus reject the plaintiff's evidence on this. I on the other hand accept the evidence of the defendant which was corroborated by her eldest brother-in-law Mr. Lau. Mr. Lau was the person who checked the bill and I see no reason for him to lie to the court and inflate the amount from about HK$15,000 to about HK$29,000 to HK$30,000. I therefore accept that the defendant had paid on behalf of the plaintiff about HK$30,000 for his wedding expenses on 2nd November, 1987 and that the plaintiff had never reimbursed her this sum. This sum therefore had to come from his savings with the defendant. 95.With the pre-marriage withdrawal of about HK$31,000, the betrothment gift of HK$38,000 and wedding expenses of about HK$30,000, the plaintiff had by the time after his marriage more than exhausted all his savings with the defendant. He had only HK$93,500 kept by the defendant by 2nd September, 1987. I therefore find that there was never any occupation agreement as alleged by him. If there was indeed such agreement, he would not have withdrawn and spent his savings in the manner that he did. The manner of his withdrawal of money was inconsistent with the existence of an occupation agreement as alleged. I also accept the defendant's explanation on the paucity of particulars of the withdrawals in her Defence and her answers to requests for further and better particulars. She has never been represented by any lawyer in this action and, with that in mind, I consider that she has already done a good job. Furthermore, the plaintiff is a person who is keen to keep records. I cannot see how he would have paid so much money under a verbal occupation agreement without reducing it in writing and get the defendant's signature on it. 96.I also find that when the plaintiff moved into the flat in question at the end of 1986, he had to share this flat with the defendant because I do not accept his evidence that the defendant wanted to move to her new property at Tsing Lung Tau and to let him have exclusive possession of this flat. I take accept the defendant's case that he had never lived in her Tsing Lung Tau flat and in fact had let it out since 1st March, 1986. It would not have been reasonable for the defendant to decorate the new property and to live in it just for a few months and then let it out for rental return. It would have been too troublesome for her to move from this property to leased property just after settling in for a few months. Since the defendant had not moved to the Tsing Lung Tau property, there was never any need for her to invite the plaintiff to occupy her Sheung Shui flat. There was therefore no need for her to come to any occupation agreement with the plaintiff. On this matter, I also accept the evidence of Kwan Nam and the eldest sister. 97.The plaintiff said that after his marriage, he continued to deposit money with the defendant pursuant to the occupation agreement culminating in the last deposit on 5th September, 1990. When this action was commenced, he discovered that he had in fact deposited an extra HK$7,000 with the defendant. He discovered that at the trial that the excess should be HK$10,000.00 He has produced deposit slips showing regular deposits of HK$1,500 per month from December, 1987 to September, 1990. However, I do not accept that he would have overpaid the defendant HK$7,000 or HK$10,000 and remained unaware of it until the commencement of this action. The sum overpaid was his savings net of all expenses and tax. He had to earn a fairly large sum in order to have a net saving of HK$7,000 or HK$10,000. His story would be more believable if he had not kept all the deposit slips in a file. I cannot see any purpose of keeping these slips if they were not for checking how much had been deposited with the defendant. For this reason also, I find that there was no occupation agreement. 98.The defendant's case on the monthly deposits of HK$1,500 is that HK$1,000 were for the rental subsidy from the plaintiff and HK$500 were partial repayments for what the plaintiff had owed her. Since the defendant had to move out of the flat at about the time of the plaintiff's marriage, it was only reasonable that he should pay her something to subsidize the rental that she had to pay for her rented dwelling. Sine I have found against the existence of the occupation agreement, I find that the payment of HK$1,000 as rental subsidy reason and accept that there were such payment. Furthermore, the defendant's case on this is corroborated by her eldest sister who said that the plaintiff and the defendant had confirmed such payment during family gatherings. For the repayment of money owed by the plaintiff, I have already found that by the time of his marriage, the plaintiff had more than exhausted his savings. To repay the defendant at the rate of HK$500 a month was entirely reasonable and I so find. The fact that the plaintiff had borrowed money from the defendant to purchase nutritious food for Ho after the birth of their first son was again corroborated by the eldest sister and I accept her evidence. 99.The defendant says that the plaintiff had stopped further payment after September, 1990 because he feared that his finance would become problematic as he was to be laid off by the end of that year. He was in fact laid off at the end of that year. He said he had another job right away, but the defendant and the elder brother Kwan Nam both said that he had been a hawker for sometime after the laid off. Kwan Nam said that the plaintiff had given him one of those backpacks that the plaintiff was selling. I see no reason for Kwan Nam lying on this matter or on any other matter that he has deposed to at the trial. I accept his evidence and thus also find that the plaintiff stopped further payment after September, 1990 because he was about to be laid off.
100.Since I have found against the plaintiff on the occupation agreement and that the monthly deposits of HK$1,500 were for rental subsidy and repayment, I also find that there was no sale and purchase agreement in December, 1996. There could not have been such agreement as the plaintiff did not have HK$130,000 with the defendant. In fact, he was still indebted to the defendant after September, 1990. 101.Though my finding against the plaintiff on the sale and purchase agreement may mean that I do not have to make further findings, I think it is still necessary for me to dispose of the plaintiff's argument that if he had not purchased the flat, he would not have spent so much money to decorate it. All the brothers and sisters agreed that the plaintiff and the defendant were very close to each other and the defendant was very fond of the plaintiff. As I have found against the plaintiff on the occupation agreement and sale and purchase agreement, it follows that the plaintiff had been allowed to reside in the flat since sometime in 1986. He only had to pay HK$1,000 rental subsidy per month to the defendant from December, 1987 to September, 1990 and otherwise free of charge. In December, 1996, the relationship between the plaintiff and the defendant was still extremely good. The defendant had the wellbeing of the plaintiff's family close to her heart. Her quarrels with Ho in July, 1999 was because of her concern over the plaintiff's sons. Therefore, the plaintiff in December 1996 had no fear that the defendant would turn him out of her flat. Hence, he was willing to borrow the loan from the defendant to decorate the flat in December, 1996. 102.On the decoration loan, I also find that he had borrowed HK$120,000 from the defendant and repaid her in full by instalments, but he did not pay her any interest or charge. I reject the plaintiff's story that the loan was at HK$110,000 with interest or charge at HK$500 per instalment repaid. The plaintiff's alleged interest or charge was unreasonable. It was not linked to the period of the loan or the length of the interval of repayment. If he was right, he would have no incentive to repay early or in small sums. He could have saved up the whole sum slowly and repaid at one go. I also reject his evidence that he had repaid the defendant in excess. He was not sure how much he had overpaid. He had to change the figures even in the course of the trial. But he had kept all the deposit slips neatly. He could not have been so ignorant on how much he had to repay and how much he had actually repaid. In fact, even if the plaintiff should have admitted to a loan of HK$120,000 and that he had only repaid the loan but did not pay the defendant any interest, his case would not have been further damaged. His denial of the defendant's case showed that he was not prepared to admit that he owed the defendant any money when in fact the defendant had been helping along all the time. 103.Since I have found against the plaintiff on the existence of a sale and purchase agreement, I would also find against him on the alleged agreement by the defendant to buy back the flat. 104.I now deal with the family gatherings. The plaintiff and Ho naturally corroborated each other. The plaintiff also called Ho's third sister-in-law PW2 Choi with a view to corroborate them on the meeting on 6th December, 1999. Thus Choi had one task to perform and one story to tell. That story as told was the same as that of the plaintiff and Ho. However, when she was questioned on things beyond this meeting, she contradicted the plaintiff and Ho. I have already pointed out this in the summary of Choi's evidence above. She said that both the plaintiff and Ho had complained in gatherings of the Ho family that the plaintiff had paid his elder sister HK$130,000 for purchase of the flat, but that the defendant had failed to convey the flat unto the plaintiff's name despite long lapse of time. It is the plaintiff's case that he was not in a hurry to get the name of the owner changed as he did not have the money to pay the premium. Thus he had no ground to make such complaint from 1997 to 1999. It was also unreasonable for the plaintiff not to have told the Ho family including Choi that the defendant had promised to buy back the flat from the plaintiff, but to continue with the complaint that the defendant did not change the owner's name for him. But that was Choi's evidence. I therefore reject the evidence of the plaintiff, Ho and Choi on the meeting on 6th December, 1999. I instead accept the evidence of the defendant, her eldest sister, the husband of the eldest sister and the brother Kwan Nam. I thus find that the plaintiff had in that meeting offered to purchase the flat from the defendant and not asked the defendant to convey the flat unto his name on the ground that he had already bought it. Regarding the meeting on 9th December, 2000 at Sun Kwong Restaurant in Chaiwan, I also accept the evidence of the defendant, her eldest sister and the brother Kwan Nam. I see no reason why the eldest sister and the brother Kwan Nam should have lied. Furthermore, having made my finding on the meeting on 6th December, 1999, there was no event thereafter to change the status of the parties vis-à-vis the flat. 105.I would also say that I have accepted the evidence of the defendant, Kwan Nam, the eldest sister and her husband because they appeared to be forthright, their stories were reasonable and consistent with one another. I also cannot detect any reason why these witnesses should have teamed up against the plaintiff and in favour of the defendant. I also find the plaintiff's witnesses unreliable. The father and third sister in law came to court preparing to tell just one story. On other things, they provided material contradictions to the story of the plaintiff and Ho.
106.Finally, there are a few subsidiary or marginal issues that I wish to dispose of. Regarding the letter dated 6th December, 1999 written by Paul Kwong on behalf of the plaintiff, the contents were inconsistent with the plaintiff's case in the action. But I do not accept the plaintiff's explanation that Paul Kwong had sent out the letter without confirming with him its contents. If Paul Kwong should have made so many errors, there is no reason why he would not or should not have corrected them in subsequent correspondence. Indeed, if they were Kwong's errors, Kwong should have been most willing to correct them. The fact that the errors remain uncorrected by Kwong was because they were not Kwong's errors. I find that they had only become errors because the plaintiff had subsequent made changes to his story. 107.The defendant has also emphasised the inconsistency of Ho's statement to the police dated 2nd December, 1999 with the plaintiff's story. This statement was taken in the middle of the night. I accept that one has to give Ho and the plaintiff some leeway on the understanding of the contents of this statement. I therefore do not make any finding on this statement. Judgment 108.I have rejected the evidence of the plaintiff and Ho almost in toto. I have also accepted the defendant's evidence which in many aspects were corroborated by her brother and sister and brother-in-law. I thus conclude that the defendant had not sold the flat to the plaintiff and she is still the legal and beneficial owner of this flat. I therefore dismiss the claims made in the statement of claim. I also give judgment in favour of the defendant on the counterclaim and order the plaintiff to deliver up vacant possession of the flat to the defendant. 109.At the end of the trial, counsel for the plaintiff asked me to allow a period of stay of execution in case I should hold against the plaintiff. Both parties then agreed that a stay for a period of four months would be reasonable. I therefore order that there will be stay of execution for four months from the date when this judgment is handed down. I also make an order nisi that the plaintiff do pay the defendant the costs of this action and the counterclaim and that the plaintiff's own costs be taxed in accordance with the legal aid regulations with a certificate for counsel.
Representation: Present : Mr. CHAN Chi-hung, Counsel instructed by M/s W.K. To & Co., assigned by DLA for Plaintiff. Defendant KWOK Ying-ting, in person. |