Mok Lai Kwan v. Lun Lai Tin

HCA000474/1953

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

ACTION NO. 474 OF 1953.

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CORAM: Briggs J. in Court

Date of Judgment: 10th February, 1971.

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JUDGMENT

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1. The following is a brief history of this case. The writ was issued on December 10th, 1953, that is, more than seventeen years ago. The Defendant entered an appearance on February 17th, 1954.

2. Then, except that the Plaintiff gave notice of a change of Solicitors on January 30th, 1956, nothing occurred until January 29th, 1970. On that date the Defendant applied to have the case struck out for want of prosecution. This summons was withdrawn. The Plaintiff's then Solicitors withdrew from the case and the Defendant made another application to strike out the case.

3. The Plaintiff filed a statement of claim on May 1st, 1970. The second summons to strike out was heard on the next day. No order was made on the summons but further pleadings were ordered. A defence was filed on May 28th, 1970 and a Reply on June 19th, 1970. The case came on for trial on February 1st, 1971 after a further delay at the request of the Plaintiff. It will be seen from the above history that the Plaintiff has conducted this action with the utmost dilatoriness. And I have heard no real explanation for the delay of seventeen years.

4. The Plaintiff married the Defendant according to Chinese rites and custom in 1929 in Hong Kong. The Plaintiff being the wife and the Defendant, the husband. Five children were born of the union.

5. In 1939, a property known as No. 13 Tsun Yuen Street, was purchased and the family went to live there. The parents of the Defendant also lived there.

6. In 1948 the parties agreed upon a divorce which was effected in the customary manner but which was evidenced by an agreement in writing drawn up by a solicitor.

7. The writ, which as I have said, was issued in 1953, is endorsed with a claim for a declaration that the Plaintiff is the beneficial owner of No. 13 Tsun Yuen Street and that the Defendant holds it as trustee for her. The Plaintiff also asked for an order that the Defendant should assign the whole premises to her. This endorsement was signed by a solicitor.

8. The Statement of Claim was signed by the Plaintiff in person and differs from the endorsement on the writ. The Plaintiff asks for a declaration that the Defendant holds No. 13 Tsun Yuen Street as trustee for himself and the Plaintiff in equal shares: and she asks for an order that the Defendant assigns one half of the legal estate in the property to her.

9. The Plaintiff's case is that the property in question was purchased as the matrimonial home: that it was purchased for $6,000 of which she provided half, the Defendant providing the other half.

10. The Defendant denies this. His case is that the whole of the purchase price was supplied by him: he purchased the property himself and there never was any intention that the property should be jointly owned. The Defendant also states that all differences between the two were settled by an agreement made between the parties in writing on July 6th, 1950. This agreement, he says, acts as an estoppel to the Plaintiff's claim. In reply the Plaintiff gave an explanation of the circumstances surrounding the agreement which in effect amounts to a plea of non est factum.

11. Both the Plaintiff and the Defendant gave evidence on their own behalf. The case falls into two points. (1) was the property purchased either jointly or with the intention that it should be held jointly? (2) what is the effect of the agreement of July 6th, 1950?

12. The Plaintiff said she was very young when she married the Defendant and her father had plenty of money and gave her a dowry. She said she provided $3,000 towards the cost of No. 13 Tsun Yuen Street. $2,000 of this came from her dowry and $1,000 was from certain customary gifts she had been given at the time of her marriage and on account of the children at their Full Moon parties. By 1939 the time the property was purchased, there were four children. One being born in 1933 and one in each successive year, the last of the four in 1936. A fifth child was born after the family moved into No. 13 Tsun Yuen Street.

13. In fact the parties did not live for very long at No. 13 Tsun Yuen Street for during the war they moved out into the Central District and never returned to it.

14. The Plaintiff said that the true name of the Defendant is Lun Tin Lok However in the assignment of No. 13 Tsun Yuen Street the purchaser's name is given as Lun Lai Tin, the name under which the Plaintiff is suing the Defendant.

15. The Plaintiff's name is Mok Lai Kwan. She said that it was agreed between herself and the Defendant that the property should be bought in a fictitious name i.e. Lun Lai Tin. It was to be a composite name - the characters Lun and Tin coming from the Defendant's name, the character Lai coming from the Plaintiff's name. This she says is proof that the property was purchased by the two of them.

16. The Plaintiff proved and indeed it is not denied that she has been, and still is collecting rent for the ground floor of the premises. Again she says that this shows that the Defendant admits that she has an interest in the property.

17. The parties as I have said divorced each other in 1948. The agreement was exhibited and it contains a clause which has been deleted and initialled. This provides that the Defendant shall pay $15,000 to the Plaintiff "by way of compassionate grant" (The document is in the English language).

18. The Plaintiff says that this sum represents the value of half of the property at that time, i.e. 1948: that she refused to have money as she wanted to have half of the property itself. We shall see what she has to say about the deletion of the clause later.

19. So much for the evidence of the Plaintiff. The Defendant said that he provided all the purchase money: i.e. the whole $6,000. Nothing was provided by the Plaintiff who was then very young and wholly occupied with the children.

20. He agrees that the assignment was in the name of Lun Lai Tin which was the name given to him upon his marriage by his father.

21. After purchasing the property he registered it in that name with the Land Registry. He said he is fully aware that the Plaintiff collects and has been collecting rent from the ground floor but he allows that as an act of charity to one who is after all the mother of his children.

22. The Defendant said that it was the Plaintiff and not himself who wanted a divorce. The clause in the agreement referring to $15,000 meant what it said. However since she wanted a divorce quickly for personal reasons, another man being involved, it was agreed that that would be deleted. She waiving her claim to it.

23. I heard both parties gave evidence in Court and I much prefer the evidence of the Defendant to that of the Plaintiff. When the two stories conflict I accept that of the former in preference to that of the latter.

24. I do not believe that the Plaintiff contributed $3,000 towards the purchase of the property. There is no evidence that the parties purchased jointly or intended that the property would be owned by them jointly. The evidence is all the other way.

25. $3,000 would have been a very considerable sum in 1939. The Plaintiff had not worked before her marriage which I understand was, as it were, from the schoolroom. Nor did she work after the marriage.

26. As to the name of the Defendant used in the assignment, I do not believe the fanciful version given by the Plaintiff. It is true that the English word 'Lai' occurs in the Plaintiff's name as well as in the name used in the assignment. But the character 'Lai' there used is, in its Chinese version, a different character from the 'Lai' occurring in her name. There was no joining together of the two names. If two Chinese were to make a composition of their names one would expect the result to be composed of the Chinese characters not of their so-called equivalents in English. Further in cross-examination the Plaintiff admitted that the character 'Lai' as written by the Defendant in the Assignment was in fact correctly written by the Defendant. It was his name. I accept the version of the Defendant on this part of the case. The name was given to him by his father on his marriage and so he used it.

27. Again I can well understand the Defendant allowing the Plaintiff to collect the rent of the ground floor. She is not at all well off and the rent is only $50 per month though she has a pied-a-terre there.

28. From her evidence it would appear that the Plaintiff was anxious to divorce her husband. She said that one reason was that the Defendant was setting up or had set up a business and that he preferred to trust and employ his partner, a Mr. Poon, in preference to herself. And there was a quarrel about this. She agreed that there was a man in the case also with whom she later set up a home. This confirms the evidence of the Defendant.

29. The children remained with the Defendant and have been brought up by him. They have now scattered, but the Plaintiff said that she visited them at first. The Plaintiff also has a second family I understand. There are no children of the second marriage of the Defendant.

30. The Plaintiff told the Court that she had invested a lot of her money in the Defendant's Company, as much as $40,000 being mentioned. However her evidence on this point was far from clear and she has made no claim in these proceedings as to any such sum. And the Defendant has denied the whole story. It is unnecessary to say any more about this part of her evidence.

31. As to the clause in the divorce agreement concerning $15,000, I was shown a letter written on the Plaintiff's behalf to the Defendant by her solicitor in which it is stated that she only agreed to its deletion on the understanding that she could have the rent of the whole property. That is a very different story from what she said in the witness box. For she then said that the clause in question had been deleted after the agreement had been signed. She said that when she went to collect the agreement the day after it had been signed she found the clause had been deleted and she knew nothing about it. This of course is an allegation of fraud not only against the Defendant but also against the solicitor and his articled clerk who signed the agreement as witnesses and who apparently also initialled the deleted clause. I do not believe this part of her evidence.

32. All through her evidence I noticed a tendency in the Plaintiff to twist facts to her advantage and to pose as a woman wronged.

33. As I have said this part, what I have called the first part of the case must be decided in the Defendant's favour. The evidence is that the Defendant provided the whole purchase money and there is no evidence that the parties intended that the property should be jointly owned or held.

34. During the course of his case Mr. Hu for the Plaintiff asked the Court to hold that the Married Women Property Ordinance applied to Chinese customary marriages. This is an interesting point. But in my view the Ordinance can only apply to a monogamous marriage, which the marriage of the parties to each other in this case was not. It is however unnecessary to decide this point in these proceedings since they are not brought under that Ordinance. They could not have been in any event, since the parties are no longer husband and wife. However I agree with Mr. Hu that in cases where the Ordinance does apply the principles on which the modern line of cases brought under the equivalent Act in England are decided may be of great materiality, even when only a declaration is sought, as here: though of course where the Ordinance does not apply there will always be the matter of the absence of the wide statutory discretion given by the Ordinance to the Court to be considered. In any event since I have decided that the Defendant was the sole purchaser and that there is no evidence on which the Plaintiff can base her claim to relief under this head, the point does not arise.

35. I now come to the second part of this case. On June 6th, 1950 the parties attended at the Secretariat for Chinese Affairs and an agreement was reached between the parties.

36. The Defendant agreed to pay the Plaintiff $3,000 on condition that she abstained in future from making any claim against him.

37. It is agreed that the money was paid and the following receipt was signed by the Plaintiff.

38. The receipt is signed by the Plaintiff in Chinese and witnessed by a Mr. Luddington, an Assistant Secretary for Chinese Affairs, and it was stamped.

39. The Plaintiff said that the $3,000 was a fee for the divorce. She said that the agreement for divorce did not mention any money and she and the Defendant were doubtful as it its effect. The transaction on July 6th, 1950, two years after the divorce, was to correct this.

40. She said that the Defendant was present and that an official of the Secretariat for Chinese Affairs explained the receipt to her. She said that she was told that the receipt meant that she would have no claim against the Defendant if he were to remarry. She then said that she raised the matter of the property No. 13 Tsun Yuen Street and the shares in the Defendant's Company, which she claimed. She said the Defendant agreed that he would accompany her to a solicitor's firm and have her name inserted in the Assignment of the property. In addition she said she was told by the officer who conducted the interview that she must go to a solicitor if she had a claim against the Defendant in connexion with any property.

41. Later in cross-examination, she said she was told that the receipt which was, she said, explained to her in Chinese, was a document of divorce.

42. The Defendant said that after the divorce in 1948 the Plaintiff used to go to the Secretariat for Chinese Affairs and lodge complaints about him. In order to stop this an interview was arranged and the agreement of July 6th, 1950 was signed. He was emphatic that the Plaintiff knew exactly what she was signing. He said the receipt means exactly what it says. It was intended to bar all further claims against him.

43. The divorce agreement is perfectly clear in its wording. I cannot accept the story of the Plaintiff that the parties were in any doubt as to its validity. Equally certain is the language of the receipt which I have quoted above. It is drafted in the most sweeping terms and obviously covers and was intended to cover all and every claim which could be made by the Plaintiff against the Defendant. I accept the version given by the Defendant as to this transaction. The Plaintiff who was not in good financial circumstances at that time had been making a nuisance of herself to him and in order to stop this he gave her $3,000 and received her assurance that all matters between them were at an end.

44. The Defendant says that the property was not mentioned at the time. The Plaintiff said it was referred to and there was an agreement that she should have her name put in the assignment. I cannot believe this. The receipt deals with all claims: it was unnecessary to mention the property or for that matter the shares. Any claim to either is included in the phrase "any further claims whatsoever". The agreement was nothing to do with the divorce. That was over and done with.

45. Finally I am quite certain that the Plaintiff knew what she was signing and I reject her suggestion that the document was explained to her as being part of the agreement for a divorce. The defence of non est factum does not therefore arise. It was signed 2 years after the divorce. By that time the Defendant according to his own account was already married to his present wife though the Registry Office marriage was not effected until 1952. And the Plaintiff herself was living with another man as his wife. The intention behind the document is clear and unambiguous. And the Plaintiff is clearly bound. This agreement in my view clearly prevents the Plaintiff from succeeding in the present proceedings. I have found against the Plaintiff on both parts of the case. There must be Judgment for the Defendant with costs.

46. The Plaintiff's costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Henry Hu (Peter Mark & Co.) for Plaintiff

H.Y. Leung (Hon & Co.) for Defendant

Judgment read in Court.