Chan Kam Tsuen Walter v. Chan Chun Hei David

HCA001678/1997

1995, No. A12972
1997, No. A1678
(Consolidated)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTRANCE

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Coram : The Hon. Mr. Justice Hartmann in Court

Dates of Hearing : 10, 11 and 12 June 1998

Date of Handing Down Judgment : 19 June 1998

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JUDGMENT

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1. The Plaintiff and Defendant in this matter are brothers. They are the only two children of the late Madam Tao Shun Yau who died in Hong Kong on 26th September 1990.

2. In December 1995, the Plaintiff instituted action against Defendant for the sum of US$100,000. The claim was for moneys which in April of that year had been leant and advanced to Defendant on condition that they would be repaid at the end of 6 months together with interest thereon calculated at the rate of 6.875% per annum. In February 1997, the Plaintiff instituted a further action against Defendant. This second action concerned a car parking space in an apartment block called Elegance Tower which Defendant, acting as Plaintiff's agent, had purchased in July 1993. The property was registered in Defendant's name. In this second action Plaintiff sought a declaration that he was the beneficial owner of the property and an order that it be transferred to him. Both actions were later consolidated.

While Defendant did not deny either claim, it was originally his pleaded case that on or about 28th June 1990, in terms of an oral agreement, he had leant and advanced the sum of US$400,000 to the Plaintiff with interest thereon at the rate of 5% per annum and that, despite demand, Plaintiff had failed to repay those moneys. Defendant, therefore, relied on set off as his defence to the first action and counter-claimed for the balance of US$300,000. As concerns the second action, Defendant pleaded an agreement in terms of which he was entitled to retain the property in his name until the loan of US$400,000 was repaid in full.

The Plaintiff denied any such loan. While he accepted that in late June 1990 he had received a sum of US$400,000 (paid into a Luxembourg bank account controlled by him), this, he said, had been a gift to him from his mother and Defendant had done no more than act as an agent in remitting those funds from Hong Kong. It follows that Plaintiff denied any agreement in terms of which Defendant was entitled, as some form of security, to hold the parking space (the subject of the second action) in his name.

3. At the opening of the trial, Defendant was given leave to amend his pleadings by adding an alternative defence and counterclaim of 'money had and received'. By the conclusion of the trial, this alternative had become the sole basis upon which Plaintiff's claims were resisted。No evidence of any alleged loan of US$400,000 was led (whether subject to interest or not) and no submissions made in regard thereto. Nor were any submissions made regarding the defence to Plaintiff's second action; namely, a pleaded agreement to hold the parking space as a form of security.

What then of the remaining defence? The Law of Restitution, edited by Gareth Jones (4th Edition) at page 3, describes it as being quasi-contractual in nature and being available to recover moneys which have been paid under a mistake or compulsion or for a consideration which has wholly failed.

Lord Mansfield CJ in Moses v Macferlan (1760) 2 Burr,1005 sought to rationalise the action and illustrate it with typical instances. It lies, he said -

'... for money paid by mistake; or upon a consideration which happens to fail; or for money got through imposition (express or implied) or extortion or oppression, or an undue advantage taken of the Plaintiff's situation contrary to laws made for the protection of persons under those circumstances. In one word, the gist of this kind of action is that the Defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money.'

4. On this basis, it was Defendant's defence and counterclaim that, on or about 28th June 1990, he had remitted to Plaintiff US$400,000 of his own funds, being moneys already donated to him by his mother; these were funds to which Plaintiff had no entitlement and, after the exercise of set-off, Defendant was therefore entitled to restitution.

5. How was it alleged that Plaintiff had no entitlement to the US$400,000? This was not detailed in the amended pleadings nor did Defendant chose to give evidence. But, as I understand the submissions of defence counsel, it was either because the funds had been paid to Plaintiff by Defendant under a mistake or that they had been paid for a consideration which had wholly failed. To better understand the foundations of the defence, some background matters must first be detailed.

A brief history.

6. The father of the two litigants died in 1957 when they must have been boys. It appears, however, that he left his widow, Madam Tao, with a reasonably substantial estate.

On an unknown date, but seemingly in 1989, Madam Tao was diagnosed to be suffering from cancer. This was, in fact, her final illness and, as I have said, she died on 26th September 1990.

7. A couple of years earlier, in May 1988, Madam Tao had made a will leaving her entire estate to her two sons, the Plaintiff and Defendant, in equal shares. There was no change to that will until 6th September 1990, a matter of days before her death, when she made a new will leaving her estate in trust to be divided between her two brothers and certain charitable causes. That will excluded her two sons from inheriting what remained of her estate. It is pertinent to note that the Defendant has not accepted the validity of this latter document and has brought an action to have it set aside. I am told that the action has not yet come to trial. The Plaintiff has declined to join his brother in this suit.

8. At this juncture, something should be said of the two litigants and their relationship with their mother. Although both had been raised in Hong Kong, by early 1990, the Plaintiff, an accountant, had been living and working for many years in England. He was a married man with children and had a home in England. If only because of the physical distances involved, he accepted that his relationship with his mother was not an intimate one. By contrast, the Defendant, a schoolteacher, had been living for many years in Hong Kong. He was a bachelor without children and was in closer contact with his mother. For example, he was able, on a face-to-face basis, to advise her on financial matters.

9. Over the years Madam Tao had given intermittent financial assistance to both her sons by way of gifts of money although it is not disputed that historically the Defendant had been the mother's preferred son, at least in terms of favours bestowed upon him.

In the months of April and May 1990, a series of substantial money transfers took place which lie at the heart of this litigation. All the moneys - amounting to more than HK$7,000,000, made up of Hong Kong dollars and different denominations of foreign currency - came from Madam Tao's various bank accounts and all were transferred into Defendant's name. The Plaintiff, who was in England at the time, knew nothing of these transfers. No funds at that time were transferred into his name or into any account under his control.

10. A few weeks after the last of these transfers had been made, the Plaintiff came to Hong Kong to visit his mother. During much of that time Madam Tao was in hospital but she was allowed home for the last week of Plaintiff's visit. Although she was suffering from a grave illness, there is no suggestion that Madam Tao was in any way mentally incapacitated.

The Plaintiff returned to England on or about 17th June 1990. It was his unchallenged evidence that during his stay in Hong Kong neither his brother nor his mother told him of the transfers. To the contrary, it was Plaintiff's evidence that on the day of his departure his mother offered to give him DM300,000. The Plaintiff said that the offer came as a surprise, especially as there had been no earlier mention of moneys, but he did not want to appear to be behaving 'like a vulture' so he indirectly declined the offer by saying that he would talk to his mother about it when he next came out to Hong Kong.

Concerning this sum of DM300,000, there is no evidence that on 17th June 1990 the mother had such a sum in any account under her name. However, there is evidence that a month or so earlier; that is, on 23rd April and 7th May 1990, the mother had transferred to the Defendant DM205,238 and DM118,182, making for a total sum of DM323,420. It is the Plaintiff's case that his mother must, therefore, have been speaking 'in round terms' of this sum and, by doing so, indicating that she believed she was still the true owner of that money with the right to decide to whom it should be disposed even though it may have been deposited into Defendant's account.

11. Shortly after Plaintiff had returned to England, it appears that Madam Tao was visited by a Miss Chan Yau Kit, one of her sworn god daughters, who came from France. Madam Tao was very generous to this woman; among other things it appears that she gave her HK$100,000 to cover her travelling expenses. What exactly took place between Madam Tao and Ms. Chan is not known but it is evident that the Defendant considered Ms. Chan's motives to be predatory, so much so that he reported her to the police for theft. This report was recorded at Happy Valley Police Station at 0025 hours on 29th June, the allegation being that Miss Chan had stolen HK$5,000, five taels of gold and a number of gold rings. The matter was resolved a few hours later when Miss Chan handed over the disputed property. The police endorsed their papers to the effect that no crime had been detected and the case was closed.

12. That same day, however; that is, on 29th June 1990, it is accepted that the Defendant arranged for all the funds that his mother had transferred to him in April and May to be transferred back into a single Hong Kong dollar savings account which was in his mother's name. In addition, a further sum of HK$300,000 came from an account Defendant had with the Hang Seng Bank, it not being disputed that the source of this money too was the mother. The total sum transferred to the account on that day amounted to HK$7,500,000.

13. But the matter did not end there. That same day the Defendant effectively emptied the mother's savings account by making just two transfers. The one transfer was to the bank account in Luxembourg controlled by Plaintiff. The amount transferred was US$400,000 and is the sum which Defendant now claims from the Plaintiff. The other transfer was to Defendant's own bank account in Canada and was effectively for the balance of the funds held in the mother's account. As to the share of the HK$7,500,000 that each brother obtained, Defendant remitted 58.44% of the funds to his Canadian account and 41.56% to his brother's Luxembourg account.

14. What was the cause of this flurry of activity on Defendant's part? As I have said, Defendant chose not to give evidence so there was no evidence from him nor any contemporaneous document written by him to explain his reasoning. However, the Plaintiff did give evidence and he spoke of receiving an emotional telephone call from Defendant on 28th June which, having regard to the time difference between Hong Kong and the United Kingdom would (in all probability) have been made a matter of hours before he lodged his complaint of theft against Ms. Chan at the Happy Valley Police Station.

15. It was the Plaintiff's unchallenged testimony that his brother appeared to be in a state of high anxiety. His brother told him, he said, that lots of people in Hong Kong were asking their mother for money, trying to get money out of her one way or the other. He told him of the sworn god daughter from France taking so much. According to Plaintiff, his brother told him that after 'a hard fight' he had managed to get together US$400,000 which he would remit to the Plaintiff. That sum, said the Defendant, would be the Plaintiff's share of his mother's estate and after he had accepted it, the rest of the estate would have nothing further to do with him. He; that is, the Defendant would deal with the balance of the estate. The Plaintiff said that he raised no objection to the suggestion at that time as he felt he had no choice in the matter. He therefore gave his brother the necessary details of his Luxembourg account. However, he said that he had reservations at being pressured in this way into accepting what could well be less than his fair entitlement under their mother's will and although he did not voice any objection he did not feel that he had to be bound by any such proposal.

16. Why did the Plaintiff agree to accept the money? He did so, he said, because at that time he did not regard the money as belonging to his brother. In his mind at that time the money belonged to their mother. She was still alive and these were her funds. The Defendant, he said, spoke all the time of their mother's funds; at no time did he indicate that the funds belonged to him because they had been transferred to him by their mother as a gift. Accordingly, even though there was a likelihood that the US$400,000 would remain with him until his mother's death, the Plaintiff indicated that he believed at the time that he and his brother were doing no more than holding her moneys in trust for her, even if it was a form of 'protective trust' to prevent dissipation. If required by the mother to pay them back, he believed they would be obliged to do so. During the telephone conversation, said the Plaintiff, the Defendant never indicated (directly or indirectly) that he was sending the funds as some sort of loan.

17. The Plaintiff said that he did not ask the Defendant how he had managed to obtain the moneys but, according to him, during that telephone conversation, the Defendant gave the impression that there was not much money available. This impression was so strong, he said, that he asked the Defendant about their mother's medical bills and whether they could be met. The Defendant indicated that he could raise funds to meet them but hoped that the Plaintiff would pay his share in due course. The Plaintiff said that he agreed immediately to do so and immediately after this conversation he wrote a letter to his brother. This letter sympathised with Defendant for having to deal with their mother's foolish dissipation of moneys and offered assistance with her medical bills:-

'I'm lost for words to hear that mum would make such a fool of herself yet again even though her life may end at any moment... I feel sorry that you are now lumbered with the burden of dealing yet again with her carelessness and stupidity. We know full well that she has to bear all the blame but I simply hope that it will all end very soon. You are going to wire me some money but if any time you need money, don't hesitate to ask. My money is on fixed deposit on monthly deposits so whenever it is needed it has to wait for maturity, apart from that there will be no problem.'

During that telephone conversation, said the Plaintiff, no mention was made of the fact that the Defendant had consolidated a sum of HK$7,500,000 into a single account, all those funds having come from their mother; certainly no mention was made of the fact that simultaneously the Defendant was remitting funds to his own account in Canada which exceeded (by some 16%) the US$400,000 being remitted to Plaintiff. It was the Plaintiff's evidence that he only learnt of this a year or more later, well after their mother's death.

18. As for the US$400,000 which now rested in his Luxembourg account, the Plaintiff testified that, while originally he believed he was simply holding his mother's money in trust, about a month later - in or about late July - his belief changed. On that occasion, he said, he received a telephone call from the Defendant who told him that their mother was with him. During that conversation the Defendant asked Plaintiff to thank their mother for the gift of US$400,000 and gave the telephone to the mother to enable this to be done. The Plaintiff said that he then spoke to his mother direct to thank her for the gift. He said that his mother's response was a little cold, as if it did not really matter to her.

It is the Plaintiff's case that, first, the Defendant, by his words and actions in the presence of the mother, made it clear that he considered the US$400,000 to be a gift from her and not from himself and, second, that, while the mother's response may have been equivocal, there was no suggestion by her during the telephone conversation that the money had not come from her as a gift.

19. Concerning the true provenance of the US$400,000, the Plaintiff also spoke of a letter dated 26th June 1990 which he received from his mother. This letter, he said, was not received, however, until after he had spoken to his brother on 28th June and had written his letter in reply.

The authenticity of this letter was challenged by the defence but I am satisfied that it was an authentic letter written by the mother to the Plaintiff. Both the Plaintiff and a close friend of the mother, Dr. Lily Ma, testified that they were able to identify the mother's signature at the foot of that letter. The Plaintiff in addition was able to produce the envelope endorsed by the mother with her home address and bearing the English post mark: Croydon 29th June 1990. Other than the bald challenge, the defence placed no relevant evidence before me nor argued any matters of substance in regard to the challenge.

20. This letter from the mother to the Plaintiff dated 26th June 1990 was written in Chinese characters. Translated, it began as follows:

'Ah Chuen, when you left Hong Kong on the 17th of this month, I forgot to tell you about my foreign currency accounts and the cash deposited with the Hang Seng Bank. Chun Hei [Defendant] said that he has already told you of this. You can get DM300,000 odd. Apart from that there is only shares worth $2,340,000 and this flat of mine. Has he also told you that I also have AUD$50,000 odd, cash $1,800,000 and US$30,116.34 deposited at the Citibank's Causeway Bay Branch? In addition, I have 10 odd gold coins and 10 odd taels of gold kept in the safe deposit box of Chun Hei...'

21. I am satisfied that, on an ordinary reading, the letter spoke of several sums of money - the DM300,000, AUD50,000 odd and HK$1,800,000 - in terms which made it clear that the mother on the date the letter was written still considered those moneys to be her property even though the available evidence showed that each of these sums (or sums very similar) had been transferred by her to the Defendant in April and May.

22. Later in the same letter, the mother spoke of other sums in terms which indicate that she had given those sums to the Defendant as gifts for him. In short, it is the Plaintiff's case that she was differentiating between moneys donated by her to the Defendant and moneys which she believed were still her own property, whether now held by the Defendant or not. In the letter, she continued as follows:

'Chun Hei has already taken away CAD$200,000. Besides, last year at Vancouver, I helped him to buy a flat by paying CAD$200,000. My US$220,000-230,000 deposited at Citibank Bank was also given to him. If he could have learnt to be frugal, he could have had enough to spend for himself. He should have felt remorseful and should have known that he has paid too much attention on superficial looks but not knowledge. He has squandered all my property...'

23. The US$220,000 spoken of by the mother as being in her Citibank account was an amount transferred from the mother to Defendant on 30th April 1990 which the Defendant subsequently consolidated with other moneys to make up the HK$7,500,000 which he then split into two remittances: one to himself, one to the Plaintiff.

24. It is apparent from this letter that the relationship between the mother and Defendant had become a turbulent one. Matters between them deteriorated even further during the last three months of the mother's life; that is, in July, August and September 1990. During this time, the mother had to go into hospital again for several protracted periods of time and there is evidence that on occasions she had to change the class of her ward, spending some time in the ordinary public ward. The mother became convinced that the Defendant was refusing to pay for a higher class ward in order to save money for himself even though the vast majority of the funds had come from the mother in the first place. Her sense of betrayal was seemingly expressed in her change of will in terms of which she excluded both her sons from the balance of her estate.

25. As I have said, after the mother's death, when the Defendant learnt of the change of will, he began litigation to challenge the will. The Plaintiff did not join him in that litigation. Indeed the evidence shows that, despite his initial private reservations as to the terms proposed to him by his brother in the telephone conversation of 28th June 1990, the Plaintiff was content to rest with what he had received; that is, the US$400,000 and other (earlier) gifts from his mother. In this regard, for example, it is accepted that some time after the mother's death, the Defendant arranged for the Plaintiff to sign a document renouncing any interest he might have in the apartment where the mother had lived and which had been registered in the joint names of the mother and the Defendant. That document was signed by Plaintiff.

26. What then did the Defendant do in respect of the US$400,000 which may be of relevance to the matter now before me? It appears that for a prolonged period of time he effectively did nothing. In early 1995, the Defendant borrowed US$100,000 from the Plaintiff upon set terms and conditions including payment of a defined interest. There is no evidence that at that time he attempted to arrange any form of set-off. Indeed, it appears that the first mention of the Defendant's allegation that the Plaintiff was not entitled to the US$400,000 appears arose in or about October 1995, more than five years after the remittance had been made.

On 3rd October 1995, the Defendant wrote to the Plaintiff. In part, that letter reads as follows:

'...I would like to know your intention on the US$400,000 in June 1990...the US$400,000 you received in June 1990 was a partial sum from the joint account of Tao Shu Yau (deceased) and Chan Chun Hei, David. Mum did not know who was Singtam but I made the loan to him because he agreed it was a loan at a moderate rate...'

The name 'Singtam' was an identifying name on Plaintiff's Luxembourg account, the Plaintiff preferring to use a pseudonym on that account rather than his true name. Defendant's plainly stated allegation, therefore, was that there had been a loan to the Plaintiff at a 'moderate rate' of interest. However, thereafter the letter continued by detailing a series of allegations as to how well Plaintiff has apparently fared financially since 1990 while the Defendant had fared far worse. In my judgment, the general tone of that portion of the letter was to the effect that Plaintiff had some form of moral obligation to pay back the money because, first, he had turned his back on his family and, second, Defendant had been unemployed and had suffered financially. Part of that portion reads:-

'... I am writing to you to find out what are you going to do before either one of us might leave this world. I expect a straight forward answer to solve the misfortune I have been suffering in the past ten years as soon as possible...I know you have the ability to make the necessary arrangement within days and I am looking forward to hearing your reasonable offer but please make it once and for all.'

27. In his reply, Plaintiff made it clear that he was perplexed at the claim for a refund of the US$400,000.

The burden of proof.

28. In light of what has been outlined, there has been no dispute that the burden of proof in the consolidated actions has fallen on Defendant.

The Defendant's case.

29. In the absence now of any suggestion of moneys leant and advanced, as I understand it, the defence may be set out in the following manner:

30. First, the transfer of moneys by the mother to Defendant in April and May 1990 were gifts from the mother; that at the time she intended them to be gifts and they were accepted as such. All the funds transferred therefore became the property of the Defendant. However, because of the constraints of family, while he accepted that the funds had been donated to him, he nevertheless believed himself to be under some form of obligation to pay the funds back to his mother if she so demanded. This was, of course, a mistaken belief.

31. Second, that on or about 29th June 1990, believing that his mother was foolishly distributing her moneys to third parties and may well demand back the funds she had transferred to him, he determined to place the moneys out of harm's reach. He telephoned the Plaintiff and suggested a bargain in terms of which he would remit to the Plaintiff US$400,000 if the Plaintiff accepted this in final settlement of any claim he had against the estate of their mother when she died. The balance of the moneys he remitted to his own account in Canada. The Plaintiff, however, never accepted the bargain suggested by the Defendant and accordingly there was no agreement reached.

In all the circumstances, Plaintiff has never had an entitlement to the US$400,000 and has been unjustly enriched at the Defendant's expense. There should therefore be an order for restitution.

An analysis of Defendant's case.

32. If the Defendant hopes to succeed in his defence and counter-claim, in my judgment, he must first prove on a balance of probabilities that in April and May 1990 his mother transferred moneys into his name intending to donate those moneys to him and not intending for them to be held by him in trust.

The defence has argued that the mother was at the material time a person in loco parentis, that she was a widowed mother and accordingly very little proof is required that she intended to donate the moneys to Defendant. In this regard, reference has been made to Bennet v. Bennet (1876) 10 ChD 474 and to the dicta of Jessel M.R. :-

'...a person in loco parentis means a person taking upon himself the duty of a father of a child to make provision for that child. It is clear that in that case the presumption can only arise from the obligation [to give] and therefore in that case the doctrine can only have reference to the obligation of a father to provide for his child and nothing else. But the father is under that obligation from the mere fact of his being the father, and therefore no evidence is necessary to shew the obligation to provide for his child, because that is part of his duty. In the case of a father, you have only to prove the fact that he is the father, and when you have done that the obligation at once arises; but in the case of a person in loco parentis you must prove that he took upon himself the obligation.'

As to a widowed mother, the following is said later in the judgment:-

'We then arrive at this conclusion, that in the case of a mother - this is the case of a widowed mother - it is easier to prove a gift than in the case of a stranger: in the case of a mother very little evidence beyond the relationship is wanted, there being very little additional motive required to induce a mother to make a gift to her child.'

Each case, of course, must be considered on its particular facts and in the matter now before me there was not one son, there were two sons and each of them was entitled under the mother's will (as it stood at that time) to share equally in her estate upon her death. It is accepted that the Defendant was usually the preferred son and there is evidence that the mother felt an obligation to assist him because of his perceived inability to make his way successfully in the world but this (of itself) cannot lead to any inference that the mother would donate the vast bulk of her estate to the Defendant alone to the exclusion of Plaintiff.

33. What then is the evidence relevant to the transfer of funds from the mother to Defendant in the months of April and May 1990?

First, there is the letter from the mother to Plaintiff dated 26th June 1990 in which she speaks of several of the larger amounts already transferred to the Defendant in terms which show quite clearly that she still considers the moneys to be her property. For example: 'Has he also told you that I also have AUD$50,000 odd...?' The terms of that letter, in my judgement, are not consistent with the mother believing that she had donated all the moneys to the Defendant a month or so earlier, the terms of that letter are more consistent with the mother believing that she had left the moneys in the care of the Defendant; that is, in trust with him.

Second, there is evidence that over the years the mother had donated amounts of money to both sons, money which they had accepted as being their property and had used accordingly. In respect of the funds transferred to him in the months of April and May 1990, however, in my judgment, the actions of the Defendant do not indicate that he believed himself to be the donee of several gifts of money and therefore the outright owner of them. For example -

a. If he believed he was the outright owner of the moneys, why remit them with such speed (and in such an apparent panic) at the time when he feared his mother might dissipate her estate? That must be an indication that at the time he believed his mother had some claim on the moneys earlier transferred to him. Did he believe it was just a moral claim rather than a legal one? I do not know. The Defendant, as I have said, chose not to testify.

b. If he believed he was the outright owner of the funds, why consolidate them all in an account in his mother's name and remit the moneys from that account so that it appeared the moneys were being sent by the mother?

c. If he believed he was the outright owner of the moneys, why not tell that to the Plaintiff when he telephoned him on 29th June to say that he was remitting US$400,000? For example, why not say: 'these are my moneys but I am afraid our mother will want them back to give away and I want to remit the funds to you so that you can keep them safely for me?'

d. If he believed he was the outright owner of the moneys, why attempt to strike a bargain with his brother in terms of which his brother would accept the remittance in full and final settlement of any claims not against him but against the mother's estate? Was he not thereby acknowledging that these were his mother's moneys to which, on her death, his brother would have a valid claim?

e. If he believed he was the outright owner of the moneys, why request his brother to speak direct to the mother to thank her for her gift of the US$400,000? Surely, that can only be interpreted as an acceptance by him at that time that the moneys had been the property of the mother and that she was therefore the donor. During his submissions, defence counsel, Mr. Chan, spoke of the possibility of Defendant not wishing to hurt his mother's feelings, either that or of wishing to make his mother feel good. But that is supposition unsupported by the evidence.

f. If he believed he was the outright owner of the moneys, why, after the death of the mother, did not the Defendant within a reasonable time contact the Plaintiff and request the return of the moneys? Why wait for over five years until an acknowledged debt was due and payable?

34. It must also be remembered that it is not unusual in Hong Kong, without there being any suggestion of illegality or of an intention to defraud the fiscus, for family members to transfer funds to other family members to be held in trust. Indeed, the Plaintiff in this case testified to her mother sometimes 'parking' her funds in his account. It must be remembered too that the mother was dying of cancer and may well have accepted that her funds should rest in trust with one or more of her sons as they could better manage them.

35. In all the circumstances, I am not satisfied that the Defendant has shown on the probabilities that the transfers amounted to donations to him. In fact, I go so far as to say that the available evidence indicates the contrary; namely, that they were transferred to him to be held in trust and the Defendant at the time knew full well that this was the case and that, if she wished, his mother would have the right in law to use those funds as she saw fit. On all the evidence, that, in fact, was why he moved the funds out of Hong Kong; it was in order to prevent his mother using her money as she saw fit.

36. While, therefore, the relevant events of April, May and June 1990 are shrouded with a degree of confusion, I am satisfied that the probabilities clearly indicate that at the time Defendant remitted the moneys out of Hong Kong on 29th June 1990 the great bulk of those moneys remained the property of the mother. As concerns the US$400,000 received by the Plaintiff, I am satisfied on the available evidence that, once the mother was aware of the remittance, she ratified that as a gift to the Plaintiff; put simply, that she accepted that the Plaintiff could now keep those funds as a gift made by her to him.

37. That being the case, there will be judgment for the Plaintiff in respect of both consolidated actions, the Defendant's counter-claims being dismissed.

Orders.

1. That Defendant shall pay to Plaintiff the sum of US$100,000 together with interest thereon at the rate of 6.875% calculated from 24th April 1995 until judgment. Thereafter, until payment, interest shall be calculated at the prevailing judgment rate.

2. That it is declared that the Plaintiff is the beneficial owner of the property known as car park 3, 3rd floor, Elegance Tower, Village Road, Hong Kong.

3. That Defendant shall within sixty days from the date hereof transfer the said property to Plaintiff, the costs and disbursements thereof being for the account of Plaintiff.

4. That Defendant shall within sixty days from the date hereof render to Plaintiff an account concerning all expenses and income relevant to the said property and shall account to Plaintiff for any sums that may be due and owing.

5. That the costs of both consolidated actions be and are hereby awarded to Plaintiff.

6. That there shall be liberty to apply.

Representation:

Mr. Nelson Miu instructed by Messrs. Chung & Kwan for Plaintiff.

Mr. Maurice Chan instructed by Messrs. Ho & Chan for Defendant.