Choi Wong Koon Loi v. Choi Ma Kiu

HCA007847/1993

HCA7847/1993

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.7847 OF 1993

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Coram: Deputy High Court Judge Poon in Court

Dates of Hearing: 13-17 October 2003

Date of Handing Down Judgment: 4 November 2003

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J U D G M E N T

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Preliminary matters

1.This action involved various members of the "蔡" family in Che Ha, Sai Kung, New Territories. In the pleadings and the documents, the Chinese surname "蔡" has been transliterated as either "Choi" or "Tsoi" in English. In this judgment, I will adopt the transliteration "Choi" for clarity and consistency. This applies notwithstanding the fact that in some of the documents referred to, the transliteration "Tsoi" is used.

2.As will be seen, the true identity of a person called "蔡振祥" is hotly in dispute. Again, different English transliterations have been used in the pleadings and documents. To avoid confusion, I will adopt the transliteration "Choi Chan Cheung" throughout this judgment when I refer to "蔡振祥".

3.Another person that featured is called Choi Tso Po (蔡灶保). He had an elder brother whose name was Choi Yung Fook (蔡容福) according to the defendant or Choi Yeung Fook (蔡揚福) according to the plaintiff. The difference in name appears to be immaterial. For it is common ground that Choi Tso Po (蔡灶保) had one brother only. It would appear from the documentary evidence, namely, the schedules to the relevant Crown Leases, that his name was in fact Choi Yung Fook. Even one of the plaintiff's witnesses so described him in the course of oral testimony. The confusion in his name may well be explained by the similarity in the pronunciation of the two Chinese characters "容" and "揚" in the Wai Tau (圍頭) dialect spoken in Che Ha. For the purposes of and in the rest of this judgment, I will refer to him as Choi Yung Fook.

The Choi family

4.As noted already, Choi Tso Po and Choi Yung Fook were brothers. Choi Yung Fook was married to Chung Yung Mui (鍾容妹). They had three sons, Choi Hing (蔡興), Choi To Kiu (蔡土嬌), Choi Kam Fook (蔡金福) and one daughter, Choi Fook Kiu (蔡福嬌). Choi Tso Po did not have any children of his own. He adopted Choi Kam Fook as his son.

5.Choi Hing and Choi To Kiu were married to Wong Koon Loi (黄觀來) and Wong Kung Tai (黄勤娣) respectively. Choi To Kiu and Wong Kung Tai had two sons, Choi Sang (蔡生) and Choi Yau (蔡有). Choi Hing and Wong Koon Loi did not have any children of their own. They adopted as their daughter and son, Choi Tai Tai and Choi Sang. Choi Sang was married to Li Yung Ho (李容好); Choi Yau, Chan Yam Tai (陳壬娣).

6.Choi Kam Fook was married to Li Cheung Kiu (李長嬌). They had two sons, Choi Ma Kiu (蔡馬嬌) and Choi Kwok Wah (蔡國華). Choi Ma Kiu was married to Cheung Koon Tai (張觀娣).

7.For easy reference, a table of the Choi family setting out their relationship is appended to this judgment.

Lots 1825 and 1832

8.This action concerns two pieces of land, namely, Lot Nos.1825 and 1832 in Demarcation District No. 218 in Che Ha, Sai Kung, New Territories ("Lot 1825", "Lot 1832" individually and "the Lots" collectively). They were acquired by Choi Chan Cheung in the early 1930s.

9.On 11 November 1949, a Lee Sam (李三), the then village representative of Che Ha, certified that Choi Tso Po, alias Choi Chan Cheung died on 16 April 1939 without issue and that the property left by him should be succeeded to by Choi Ma Kiu ("the Certificate"). By a succession to property dated 26 January 1950 registered under Memorial No.125527 ("the Memorial"), Choi Ma Kiu and his mother Li Cheung Kiu succeeded to the Lots together with some other lots in DD218 from Choi Tso Po upon his death.

10.On 3 March 1983, Li Cheung Kiu died in England. By an order dated 11 October 1991 made by the court in HCMP3039/1991 brought by Choi Ma Kiu, the Lots were, among other lots, vested in him.

11.Choi Hing died on 16 November 1966. His wife, Wong Koon Loi, obtained the letters of administration on 29 September 1980. On 2 September 1993, she commenced the present action against Choi Ma Kiu in her capacity as the administratrix of the estate of her late husband. Sometime in 2000, Choi Ma Kiu died. Subsequently, his wife and also the executrix of his estate, Cheung Koon Tai, was joined in these proceedings to represent his estate.

The plaintiff's claim

12.In the re-amended Statement of Claim, the plaintiff alleged that Choi To Kiu had the alias Choi Chan Cheung. Prior to 1931, Houses Nos.27 and 28 of Che Ha were occupied by Chung Yung Mui, Choi Tai Tai, Choi To Kiu, Wong Kun Tai, Choi Yau and Choi San. The houses had become dilapidated. In or about 1931, Chung Yung Mui and Choi To Kiu requested Choi Hing, who was then working in the United States, to provide finance to rebuild the houses. Choi Hing agreed. The parties also agreed that Choi Hing would remit money to Choi To Kiu to acquire on the behalf and for the benefit of Choi Hing land in Che Ha and to construct thereon a house and a pigsty for his use and occupation when he returned to Hong Kong. Pursuant to these agreements, Choi Hing remitted funds to Choi To Kiu who, using his alias Choi Chan Cheung, used the funds so remitted to buy Lot 1825 in October 1931 and Lot 1832 in May 1932. Later, Choi To Kiu again using the funds remitted by Choi Hing built on Lot 1825 a house (House 29) in or about 1932 or 1933 and a pigsty on Lot 1832 in or about the early 1930's. The plaintiff alleged that Choi To Kiu held the Lots on an express trust or alternatively an implied resulting trust for Choi Hing.

13.The plaintiff went on to plead that without Choi Hing's prior knowledge or consent, Li Cheung Kiu and Choi Ma Kiu in or about 1949 falsely represented to the District Office, Tai Po that (1) Choi Tso Po was also known as Choi Chan Cheung when in fact it was Choi To Kiu who had that alias; and (2) that Choi Tso Po died on 16 April 1939 when in fact he died before the completion of the new house on Lot 1825. It was because of the false representations that Li Cheung Kiu and Choi Ma Kiu became registered owners of the Lots by virtue of the Memorial. They therefore held the Lots as constructive trustee for Choi Hing. The plaintiff claimed for a declaration that the beneficial interest of the Lots belonged to Choi Hing and upon his death, his estate; a declaration that the defendant was holding the legal title of the lots as a trustee for Choi Hing and upon his death, his estate; and consequential orders. This is the plaintiff's primary case pleaded against the defendant.

14.The alternative case that the plaintiff raised in the pleadings is this. In about 1959, the parties entered into an oral division agreement regarding the Lots, House 29 and the pigsty. Subsequently, there was part performance of this oral agreement. In the course of the trial, the defendant sought to amend the pleadings regarding this oral agreement. But in the end, she abandoned not only the attempt to amend but also the entire cause of action based on this division agreement. What is left is therefore the primary cause of action on trust.

Defence & Counterclaim

15.The defendant averred in the re-re-amended Defence and Counterclaim that Choi Chan Cheung was in fact Choi Tso Po's alias and that it was he who purchased the Lots. She denied that Li Cheung Kiu and Choi Ma Kiu had made the false representations to the District Office as alleged. They were entitled to succeed to the Lots. By a sales and purchase agreement dated 16 November 1992, Choi Ma Kiu agreed to sell Lot 1825 to a third party. Completion was to take place on or before 15 November 1993. However, the plaintiff commenced these proceedings and wrongfully registered the writ with the District Land Office. As a result, the sale fell through. The defendant therefore counterclaimed for damages suffered accordingly.

Oral evidence and choice of language

16.In view of the hotly contested factual disputes, upon submissions by counsel, I ordered that the witnesses should give their evidence-in-chief viva voce. Their witness statements would stand not as evidence-in-chief but merely as previous statements made outside court. Both the plaintiff and the defendant gave evidence. The plaintiff further called Choi Tai Tai and Choi Sau as witnesses, the defendant, Cheung Sze Wan and Kan Kau. Pursuant to my direction, they all gave evidence in Chinese.

17.As to submissions, counsel wished to and did address me in English.

Basis of the plaintiff's claim

18.Choi Ma Kiu was the registered owner of the Lots. That being the case, the burden rests squarely on the plaintiff to prove her case of trust against the defendant. Before going into the evidence to see if the plaintiff is able to discharge the burden, it is convenient to first formulate the precise basis of the plaintiff's case so that the evidence can be properly understood in context.

19.Three forms of trust, namely express trust, implied resulting trust and constructive trust, have been pleaded and relied on. But not all of them are raised as a direct cause of action against the defendant.

20.Express trust is obviously not a viable cause of action against the defendant because on the plaintiff's own case, the alleged trust was made solely between Choi Hing and Choi To Kiu. Li Cheung Kiu and/or Choi Ma Kiu were not privy to it at all.

21.It is the plaintiff's case that the implied resulting trust arose out of the financial contributions by Choi Hing in acquiring the Lots. The defendant would be liable under this limb if Li Cheung Kiu and/or Choi Ma Kiu succeeded to Choi To Kiu's title in the Lots. But that is simply not the plaintiff's case.

22.In fact, the only basis upon which the defendant can be held liable is constructive trust. In order to raise it, the plaintiff must first prove that Choi Hing owned the beneficial interests in the Lots by virtue of the express and/or implied resulting trust as alleged. The plaintiff must next prove the circumstances under which Li Cheung Kiu and/or Choi Ma Kiu succeeded to the Lots as alleged so as to impose the constructive trust on them. As I understand it, this was how the plaintiff's case has been advanced and argued before me.

23.With the foregoing in mind, I now turn to consider if the plaintiff's case is made out.

Express trust

24.I first deal with the express trust. Despite the pleaded case, there was no evidence, either from the witnesses' oral testimony or documents, to prove the alleged trust agreement between Choi Hing and Choi To Kiu, the precise terms thereof, if any, and that Choi Hing had remitted money to Choi To Kiu pursuant only to this alleged express trust agreement. Mr Wong, counsel for the plaintiff, understandably, did not seek to rely on the express trust in his closing submissions at all. In the circumstances, I find that the plaintiff has failed to prove the express trust as alleged.

Implied resulting trust

25.In this connection, the plaintiff has to prove two principal matters. First, it was Choi To Kiu (using the alias Choi Chan Cheung) who bought the Lots in the early 1930s. Put in a slightly different way, Choi Chan Cheung was in fact Choi To Kiu. Second, Choi To Kiu used the funds remitted by Choi Hing to buy the Lots. I will examine these matters in turn.

Who was Choi Chan Cheung?

26.According to the new grant index for the Lots, the purchaser was Choi Chan Cheung. Nothing further about his identity was revealed.

27.It is common ground that Li Cheung Kiu and Choi Ma Kiu applied to the District Office, Tai Po to succeed to Choi Tso Po's estate. By a notice dated 17 January 1949, the District Office asked Li Cheung Kiu to attend for interrogation in connection with the application. It is not apparent from the evidence if Li Cheung Kiu did attend the interrogation. But apparently the Certificate (dated 11 November 1949) was submitted to the District Office in support of the application. The Certificate, made by the then village representative and duly witnessed by a third party, showed : (1) Choi Tso Po had an alias Choi Chan Cheung; (2) Choi Tso Po died on 16 April 1939; and (3) Choi Ma Kiu was entitled to succeed to his properties. Subsequently, the Memorial (dated 26 January 1950) was registered with the District Office.

28.The Certificate and the Memorial, considered in the circumstances under which they came into existence, clearly supports the defendant's version that Choi Chan Cheung was in fact Choi Tso Po. It is the plaintiff's pleaded case that the Certificate contained false representations. No direct evidence has however been adduced to make good this serious allegation. Mr Wong was only able to argue that the Certificate was suspicious. He said it did not make any sense why Choi Tso Po's properties should be succeeded to by Choi Ma Kiu and Li Cheung Kiu. They were son and wife of Choi Kam Fook, Choi Tso Po's adopted son but did not have any direct blood relationship with him. The Certificate should state Choi Kam Fook was Choi Tso Po's adopted son and since he had passed away, the properties should pass to Choi Ma Kiu and Li Cheung Kiu.

29.On the evidence before me, it is common ground that Choi Kam Fook died sometime during the Second World War. None of the witnesses who have been asked on the matter was able to state precisely when he died. The plaintiff has not adduced any evidence on when Choi Tso Po died. The defendant did not know when he died although when she married Choi Ma Kiu in 1948, both Choi Tso Po and Choi Kam Fook had already passed away. In other words, when the application to succeed Choi Tso Po's properties was made in 1949, both Choi Tso Po and Choi Kam Fook had already passed away. In such circumstances, I can see nothing suspicious or objectionable for the Certificate to simply state that Choi Tso Po's properties were to be succeeded to by Li Cheung Kiu, the wife of his adopted son and his "grandson" Choi Ma Kiu, who were then the only "decedents" of Choi Tso Po's line. I accordingly reject Mr Wong's submissions.

30.Mr Wong next sought to counter the documentary evidence by relying on another piece of document once filed with the Tai Po District Office. This document contained eleven entries, the gist of which that the plaintiff relies on is this. Choi Tso Po had an alias Choi Chan Cheung. He died in Che Ha on 16 March 1939. The successor of his estate was his nephew Choi Ma Kiu. Mr Wong contended that this document was the back of the Certificate. With the greatest respect, I disagree. For no evidence, direct or otherwise, to this effect has been adduced before me. Counsel should not make a submission on facts when he knows perfectly well that not an iota of evidence has been adduced in support. Mr Wong further submitted that this document wrongly described Choi Ma Kiu as Choi Tso Po's nephew. While that may be true, it does not provide any leverage in the attack on the Certificate. Mr Leong, SC, counsel for the defendant, took a number of objections to this document. It was unknown who wrote the words thereon. No persons had signed on it. It was undated. The District Office did not endorse on it. It was unknown for what purpose this document was kept in the District Office. There is no evidence that the District Office had actually relied on it or satisfied with the contents therein. Lastly, the plaintiff has failed to explain why it came into existence. I fully agree. I will not attach any weight whatsoever to this document. Any reliance on it must be futile. In my view, the plaintiff has failed to prove, by direct evidence or otherwise, the alleged false representations. The attacks launched against the Certificate all fail.

31.In light of my finding above, the plaintiff's attack on the Memorial must also fail evidentially. Mr Leong took a further point. He submitted that the Memorial is per se a title document : see Yip Chor Leung v. Shek Kin Sang HCMP70/2002, 15 November 2000, unreported. I do not consider it necessary to deal with this point except to mention that it perhaps does not take the matter any further. Assuming that the Memorial is a title document, that alone does not preclude the plaintiff from raising a claim based on trust.

32.Mr Wong finally relied on the various schedules to the Crown Leases dated 18 May 1907 for DD 218 which showed that Choi Tso Po used his real name only without stating the alias Choi Chan Cheung. Again that may well be true. But it does not necessarily follow that Choi Tso Po did not have an alias Choi Chan Cheung or that he could not possibly be the "Choi Chan Cheung" who bought the Lots in the early 1930s. In my view, nothing of substance can be derived from these schedules.

33.I now turn to the oral testimony on this identity issue.

34.The plaintiff (in her 80s) did not know the name of Choi To Kiu. She therefore did not give evidence on this issue. Both Choi Tai Tai and Choi Sau gave evidence on the plaintiff's behalf on this point. I will deal with their testimony in turn.

35.Choi Tai Tai (now aged 77) first testified that when she was 12 years old, she saw the name "蔡振祥" on a mirror at the wedding banquet of Choi To Kiu. And she heard guests calling Choi To Kiu as Choi Chan Cheung. In none of the three witness statements (dated 14 March 2000, 5 June 2002 and 24 September 2003 respectively) did she mention this particular incident. She justified the omission by alleging that the lawyers had failed to ask her about those matters. I refuse to accept such explanation. The identity of "蔡振祥" has always been the bone of the parties' contention. It could not have possibly skipped the mind of the lawyers handling the plaintiff's case to ask Choi Tai Tai the circumstances under which she came to know Choi To Kiu was Choi Chan Cheung. In fact, she did explain how she came to know that in her first witness statements. The only reasonable inference is that the lawyers did ask her about the relevant circumstances. Given the importance of the wedding incident, I fail to see how she would have omitted it in her witness statement. In my view, she made that story up, which I have no hesitation to reject.

36.Choi Tai Tai further testified that she heard from her grandmother, Chung Chung Mui once that Choi Chan Cheung was Choi To Kiu. Her aunt Choi Fuk Kiu told her once that Choi Chan Cheung was the alias and school name of Choi To Kiu. Such oral testimony is inconsistent with what she said in her first witness statement. There she said that she had asked her aunt many times the question before she passed away on 7 September 1997 and she invariably replied that Choi Chan Cheung was Choi To Kiu's school mane. As to her grandmother, she did not say she heard it from her at all. She has not offered any explanation on the inconsistency between her oral testimony and the witness statement.

37.Finally, Choi Tai Tai said that she all along knew how to write the name of Choi Chan Cheung. In particular, she put emphasis on the character "祥". She said " 吉祥個祥，我讀過書". If that is the case, there is no reason for her to state in her second witness statement that she did not know how to write the character "祥". In re-examination, she said at the time she made the second witness statement, she did not recall the incident of Choi To Kiu's wedding banquet. This is nothing but a hollow explanation. Whether she knew how to write the character is straightforward enough. It had nothing to do with her recollection of the wedding incident at all.

38.For these reasons, I find Choi Tai Tai a poor witness. I reject her oral testimony that Choi Chan Cheung was Choi To Kiu. I now come to Choi Sau' evidence.

39.Chou Sau (now aged 86) was Choi To Kiu's cousin. Choi Tau Kiu married when he was six years old. At his wedding banquet, he heard people calling Choi Toi Kiu as Choi Chan Cheung. Before the wedding banquet, he had not heard people calling Choi To Kiu in such a way. His oral testimony was completely different from what he stated in his first witness statement dated 17 May 2000. There he said that he knew Choi To Kiu had the alias of Choi Chan Cheung because he had heard of the latter's schoolmates at Sub Sze Heung Kun Hang Pubic School call him by that name. And he understood that this was the name given to Choi To Kiu by his teacher Shing Tin Sau. He made no mention of the wedding incident at all. Choi Sau has not given any explanation on this glaring inconsistency. I reject his evidence.

40.The defendant (aged 74) gave evidence to prove that Choi Tso Po was Choi Chan Cheung. She said that soon after she was married, both Li Cheung Kiu (mother in law) and Choi Ma Kiu (husband) told her that Choi Tso Po was also called Choi Chan Cheung, although she could not recall on what occasions they told her so. This aspect of her oral testimony cannot be found in her witness statement filed on 21 June 2000. Like Choi Tai Tai and Choi Sau, she has not given any explanation on the inconsistency. I do not accept her evidence.

41.The only defendant's witness who testified on this issue is Cheung Sze Wan, now aged 79. He said that he knew Choi Cho Po was called Choi Chan Cheung because his uncle who ran a store in Sai Kung told him so when he was about six to seven years old. At that time, Choi Tso Po came to the store occasionally. He had also heard the peers of Choi Tso Po in Che Ha calling him Choi Chan Cheung. Cheung is an independent witness. He has no relation with any of the members of the Choi family. His oral testimony is more or less consistent with his witness statement. He has not been shaken under cross-examination. I accept his evidence. If I were wrong to accept his evidence, the net result be this. I would be unable to derive any assistance from the oral testimony on the issue as to Choi Chan Cheung's true identity. I would then be left with the clear, contemporaneous documentary evidence, namely, the Certificate and the Memorial, not susceptible to any meaningful or meritorious challenge, which shows that Choi Chan Cheung was Choi Tso Po.

42.For the above reasons, I find on a balance of probabilities that Choi Chan Cheung was in fact Choi Tso Po. The plaintiff has failed to prove that Choi To Kiu was Choi Chan Cheung. It follows that the plaintiff has also failed to prove that it was Choi To Kiu, using the alias Choi Chan Cheung, who bought the Lots. One of the basis upon which the plaintiff builds her case of implied resulting trust is that Choi To Kiu bought the Lots. That very basis is now gone. The case of implied resulting trust must collapse.

43.For completeness, I proceed to consider the second matter the plaintiff needs to prove in order to raise the implied resulting trust as alleged, namely, Choi To Kiu (assuming for this purpose he was Choi Chan Cheung) had used the funds remitted by Choi Hing to buy the Lots.

Choi To Kiu paid for the Lots by Choi Hing's funds?

44.In this connection, the plaintiff again relied on the evidence of Choi Tai Tai and Choi Sau. Choi Tai Tai said that when she was about five years old, Choi Hing remitted money to Chung Yung Mui, as opposed to Choi To Kiu. Of the money so remitted on each occasion, US$10 was given to her for buying food. However, she readily admitted that she did not know how much money was actually remitted by Choi Hing. Her evidence simply does not support the plaintiff's case.

45.Choi Sau accepted that he had not actually seen Choi Hing remitting money to Choi To Kiu. When he was about 12 years old, he overheard his father said over meal that Choi Hing remitted money to his mother. He further said that he once went to pay respect to the ancestors with Choi To Kiu. Choi To Kiu prayed to the ancestors that he wished Choi Hing could send $1,500 to build a house. Under cross-examination, he said Choi To Kiu prayed for the money to renovate the graveyard for fung shui purpose. A few months later, Choi Hing did send $1,500, which was used by Choi To Kiu for buying land and building a house. The incident in the graveyard was not mentioned in Choi Sau's witness statement. His explanation is that nobody had asked him about it. I have no hesitation to reject this untenable explanation. In my view, the graveyard story is nothing but fabrication by Choi Sau in the box. I also reject it without reservation.

46.For the above reasons, the plaintiff has failed to prove that Choi To Kiu had used any money remitted by Choi Hing to buy the Lots. The other basis of the plaintiff's case on implied resulting trust is also gone.

47.In light of my findings, the plaintiff has failed to prove the implied resulting trust as alleged.

48.In the circumstances, it is sufficient for me to just briefly state the defendant's evidence on who paid for the Lots. It is her oral testimony that she was told by her mother in law and husband that the Lots were bought by Choi Tso Po and Choi Kam Fook financed the building of the house. It should be noted that she married Choi Ma Kiu in 1948 when she was 19. Her oral evidence summarized above is necessarily hearsay in nature. I do not propose and it is not necessary to make any finding based on such testimony. The absence of such finding does not affect the outcome of this case.

49.For completeness, I would mention that the plaintiff has been given leave to adduce the witness statement of Kan Sui dated 26 November 1993 under the hearsay rule on the ground that he was dead. Likewise, the defendant has also been given leave on the very same ground to adduce the witness statement of Choi Ma Kiu dated 21 June 2000. I have already reached my findings on the factual disputes by the documentary evidence and oral testimony from live witnesses. Nothing further can be derived from these hearsay and untested statements. Counsel has also seen fit not to make any submissions on them. I will therefore just leave them aside.

Constructive trust

50.The plaintiff having failed to prove either the express or implied resulting trust as alleged, her case on constructive trust must fail.

51.Again for completeness, I will deal with counsel's closing submissions briefly. In his closing submissions, Mr Wong submitted that if I accept that :

(1) Choi Tso Po died in or around 1927;

(2) Choi To Kiu was Choi Chan Cheung; or

(3) Choi Hing had remitted money to Choi To Kiu for the purchase of the Lots,

then I can draw the inference that Choi Ma Kiu and Li Cheung Kiu certainly knew that the Lots did not belong to Choi Tso Po when they became its registered owners by virtue of the Memorial. They had thereby become constructive trustees for Choi Hing : Halsbury's Laws of Hong Kong, 2002, Vol.26 at pp.635-636.

52.On the first point, there is no evidence to prove that Choi Tso Po died in around 1927. On the second and third point, I have already found against the plaintiff on evidence. There is accordingly no evidential basis to draw the inference at all.

53.Mr Leong submitted that the plaintiff's claim was incredible when one took into account the following circumstances. First, Choi Hing failed to take any action in 1949 or 1950 when Li Cheung Kiu and Choi Ma Kiu applied for succession of the Lots. Secondly and more importantly, according to undisputed evidence, Choi Hing returned to Hong Kong in about 1958. But he had taken no step to assert any proprietary right over the Lots before he died in 1966. Thirdly, it is common ground that in or about 1959, House 29 erected on Lot 1825 was partitioned into three houses. The plaintiff alleged that it was made pursuant to the division agreement, which the defendant denied. But the thing is if the Lots were purchased with Choi Hing's money, why would Choi Hing, on the plaintiff's pleaded case, agree to have just one-third of the land and the house and leave one-third to Li Cheung Kiu. He could have simply evicted Li Cheung Kiu and her family members. Fourthly, if the Lots were bought using Choi Hing's money, there was no reason for his wife not to list the two Lots in the Schedule to the letters of administration dated 27 February 1980. I agree.

Conclusion

54.For the above reasons, the plaintiff's claim fails and I dismiss it accordingly. Registration of the writ against the Lots is clearly wrongful and must be vacated forthwith. I so order.

55.On the defendant's counterclaim, it transpired in the evidence that the action commenced by the third party against Choi Ma Kiu for breach of the sale and purchase agreement referred to in paragraph 15 above was later discontinued. The defendant has not adduced any evidence to show that she had suffered any loss and damage because of the wrongful registration of the writ. She also complained that there had been undue delay on the plaintiff's part in prosecuting the claim. But she has not adduced any evidence on the loss she has thereby suffered. In these circumstances, I will not accede to counsel's submission that the defendant should be awarded with damages to be assessed. I will not make any order on this part of the counterclaim.

56.On costs, I will make an order nisi that the defendant shall have the costs of the action, to be taxed if not agreed.

Representation:

Mr Peter K.C. Wong, instructed by Messrs So, Lung & Associates,for the Plaintiff

Mr Alan Leong, SC and Mr Stanley Siu, instructed by Messrs Pang & Associates, for the Defendant

A diagram is put in here