Chan Lok Wah v. Chan Pang Chung

HCA002198/1996

HCA 2198/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2198 OF 1996

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(By Order to carry on proceedings dated 15th day of July 1999)

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Coram: Deputy High Court Judge S. Kwan in Court

Dates of Hearing: 22 to 24, 27 to 30 November 2000

Date of Handing Down Judgment: 12 December 2000

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J U D G M E N T

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1. The Plaintiff, Madam Chan Lok Wah, brings this action against the estate of her mother, Madam Mow Mo Woon, deceased ("the mother") for a declaration that the property known as Flat C4, 8th Floor, Arts Mansion, No. 31 Conduit Road, Hong Kong ("the Property") was at all material times held by the mother and, after her death by the mother's estate, upon an express, constructive or resulting trust on behalf of the Plaintiff. The writ herein was issued on 23 February 1996. By an order dated 21 June 1996, one of the Plaintiff's younger brothers, Chan Tak Wah, was appointed to represent the estate of the mother for the purpose of these proceedings. Chan Tak Wah did not defend the proceedings. By an order dated 15 July 1999, the Plaintiff's elder brother, Chan Pang Chung ("the Defendant"), was appointed to represent the mother's estate for the purpose of these proceedings in the place of Chan Tak Wah. A defence and counterclaim was then filed on behalf of the estate. The Defendant counterclaims for an order that the Plaintiff is to discharge the mortgage on the Property by paying the sum of HK$170,167.70 plus interest due to the Wing Lung Bank Ltd that had accrued since the death of the mother and had not been paid; an order that the Plaintiff is to deliver up vacant possession of the Property; and an order that the Plaintiff is to pay rent or mesne profits from November 1990 to the date of delivery up of vacant possession at a rate to be assessed.

2. The main issue between the parties is one of fact, and that is whether it was the Plaintiff or her father, Chan Sun Po ("the father"), who had put up the purchase price for the Property when this was purchased in March 1967.

3. In a family dispute of this kind, it is necessary to go into the family history. I will first set out the undisputed facts and background matters.

4. The Plaintiff is 60 years old. The Defendant is 70 years old. They come from a Shanghainese family. The father came to Hong Kong in 1957. He was an experienced tailor and had been operating a tailoring business in Shanghai for ten years or so. He had eight children. In the order of seniority, they are the Defendant, Chan Pang Yee (he had passed away in 1970), the Plaintiff, Madam Chan Lok Ping, Chan Shun Hong, Chan Tak Wah, Chan Ka Wah and Chan Chung Wah. The Defendant is the eldest son and the Plaintiff is the eldest daughter.

5. In the 60s, four of the children came from Shanghai to join the father in Hong Kong. Chan Pang Yee arrived first in 1961. Then the Plaintiff and Chan Tak Wah came in May 1962. The Plaintiff was then 21 years old. In about August 1962, the Defendant also came to settle in Hong Kong.

6. Since 1963, the father had operated a tailoring workshop known as Chan Sun Po Tailor Factory at the premises he rented at Flat B2, 8th Floor, Mirador Mansion, Nathan Road, Tsimshatsui, Kowloon ("Mirador Mansion"), in which the family also resided. Before setting up his own tailoring business, the father had been working in a tailoring or garment factory.

7. The Plaintiff became the registered owner of the Property by an assignment dated 30 March 1967. The purchase price as stated in the assignment was HK$38,000.00. The Property was purchased with a mortgage to the Hang Seng Bank Ltd to secure a loan in the principal sum of HK$20,000.00. The Property had a sitting tenant at the time it was purchased in 1967 and the rent was collected by the Plaintiff. Prior to the transactions which took place in 1982, the Plaintiff had on several occasions redeemed the Property from the bank and re-mortgaged it to obtain a higher loan. In January 1970, the property was redeemed and re-mortgaged to the Hang Seng Bank Ltd to secure a loan of HK$25,000.00. In September 1975, it was redeemed and re-mortgaged to the same bank to secure a loan of HK$60,000.00. In May 1979, the Property was redeemed and in December 1980, it was re-mortgaged to the Wing Lung Bank Ltd to secure a loan of HK$300,000.00.

8. Towards the end of 1971 or early 1972, the father closed down his tailoring workshop due to his poor health. In 1971, Chan Tak Wah left Hong Kong to study at a university in the United States. In 1972, the mother and the youngest son Chan Chung Wah came from Shanghai to join the family in Hong Kong.

9. In September 1973, the Plaintiff married Li See Chi in Hong Kong and they moved into the Property. They lived there until the Plaintiff emigrated to Costa Rica in January 1989.

10. In 1976, Chan Tak Wah returned to Hong Kong after completing his studies in the United States. In the same year, the father passed away. He did not leave any will. Other than the Property, the beneficial ownership of which is in dispute in these proceedings, the father did not leave any asset in his name.

11. In 1980, Chan Shun Hong came to Hong Kong to join the family. The other two members, Madam Chan Lok Ping and Chan Ka Wah, have remained in Shanghai to this day.

12. In 1980, Madam Chan Wee Ming came from Shanghai to settle in Hong Kong. She was married to Li See Chi in China and their marriage had not been dissolved. I shall refer to Madam Chan as the former wife. In 1981, the former wife brought proceedings against Li See Chi in the District Court under Section 8 of the Matrimonial Proceedings and Property Ordinance, Cap.192 alleging neglect by him to provide reasonable maintenance. The Plaintiff made an affirmation in the matrimonial proceedings in October 1981 in which she stated that she was holding the Property in trust for the father from 1967 to 1976 and for the mother thereafter. She stated that the Property was purchased with the money of the father in 1967, that the rentals were collected and received first by the father and subsequently by the mother, that the title deeds of the Property were kept all along by the mother who also issued rental receipts, and that the Property was let to Li See Chi since September 1973.

13. On 5 February 1982, the Plaintiff executed an assignment whereby the Property was assigned by her as the vendor to the mother as the purchaser for a stated consideration of HK$420,000.00 and the Plaintiff acknowledged receipt of the said sum in the assignment. The mother had not in fact made any payment to the Plaintiff under the assignment. On the same day, the Plaintiff redeemed the mortgage she had executed in favour of the Wing Lung Bank Ltd in December 1980 for a loan of HK$300,000.00 and made repayment with her own funds of about HK$135,000.00 and a sum of HK$170,000.00 which was borrowed from the same bank with a mortgage executed by the mother of the Property dated 5 February 1982. Also on that day, the mother had executed a power of attorney in favour of the Plaintiff authorising her to manage and to let the Property and to perform other acts. The power to sell and to mortgage the Property was however deleted in the power of attorney. The legal cost relating to the preparation and execution of these documents in the sum of HK$10,760.00 was paid by the Plaintiff.

14. Just three months after the execution of the power of attorney, it was endorsed on the document that it was revoked by the mother on 21 May 1982. The revocation was executed by the mother in the presence of the same solicitor who had prepared the power of attorney.

15. On 25 April 1984, the mother executed a will ("the first will") in a solicitors' firm. The solicitor handling the matter was Mr Remus Wong Sun Man and it was through the Plaintiff that arrangements were made with Mr Remus Wong to act for the mother. The mother did not understand English. She was also illiterate in Chinese. By the first will, the mother appointed the Plaintiff to be the sole executrix and trustee and she gave the Property to her trustee upon trust to sell with a declaration that half of the net proceeds of sale and the net rents and profits until sale should form part of her residuary estate and the remaining half was bequeathed to the Plaintiff absolutely. It was provided in the first will that the residuary estate was given to the trustee upon trust for all the children of the mother and remoter issue as if she had died possessed thereof intestate.

16. In 1988, Chan Tak Wah emigrated to Canada. In January 1989, the Plaintiff emigrated to Costa Rica.

17. On 20 October 1990, the mother executed another will ("the second will") in a solicitor's firm. By the second will, the mother appointed the Defendant as the sole executor and gave him absolutely all her real and personal property. It was stated in the second will that for the avoidance of doubt, the gift to the Defendant should include the Property. Also on 20 October 1990, the mother executed a deed of revocation prepared by the same solicitors whereby she revoked the power of attorney she had granted to the Plaintiff in relation to the Property.

18. The mother passed away on 4 May 1991. In about mid 1991, the Plaintiff had emigrated to Canada from Costa Rica. Upon hearing of the mother's death from Chan Tak Wah, the Plaintiff instructed Mr Remus Wong to obtain probate of the first will on her behalf. An application for grant of probate was filed on behalf of the Plaintiff in 1992.

19. The Property was left vacant when the Plaintiff moved out in January 1989. With the Plaintiff's agreement, Chan Tak Wah moved into the Property in September 1991 and he lived there until August 1995, during which period he discharged the outgoings and expenses in relation to the Property and he paid interest on the mortgage loan to Wing Lung Bank Ltd. The principal sum of HK$170,000.00 advanced by the bank in 1982 has not been paid as of today and only the interest on the loan was paid by the Plaintiff or by Chan Tak Wah all these years.

20. In March 1993, the Defendant applied for probate of the second will. On 3 June 1993, the Defendant issued a writ against the Plaintiff in a probate action being No. P5 of 1993 in which the Defendant sought a grant of probate of the second will to him and dismissal of the Plaintiff's application for probate of the first will. A defence and counterclaim was filed by the Plaintiff in the probate action in August 1993 in which the Plaintiff denied that the second will was executed by the mother and alleged in the alternative that if the mother had executed the second will, she was mentally unfit and incapable of doing so. The Plaintiff counterclaimed for probate of the first will.

21. By a letter from the Plaintiff's solicitors to the Defendant's solicitors dated 17 November 1993, the Plaintiff asserted that the mother was only the trustee of the Property and that the Plaintiff was and is at all times the beneficial owner. It was further stated that the Property should never have been included in the estate of the mother and that it should be transferred back to the Plaintiff. The Defendant's solicitors replied five months later by a letter dated 11 April 1994 stating that the Defendant would not agree to transfer the Property to the Plaintiff and requesting the Plaintiff to amend the defence and counterclaim in the probate action to include the allegations regarding the Property. No amendment was made to the defence and counterclaim in the probate action. Instead, the Plaintiff issued the writ herein on 23 February 1996. I understand that the Defendant has not taken further steps in the probate action pending the resolution of the dispute concerning the Property in this action. This would seem to be sensible because the Property is the only substantial asset in the mother's estate.

22. In 1996, the Plaintiff returned to Hong Kong from Canada. She has been living in the Property ever since.

The witnesses

23. Both the Plaintiff and the Defendant gave evidence. They each called one witness. The Plaintiff's witness was Chan Tak Wah who is aged 50. The Defendant's witness was Chan Shun Hong, who is aged 54. Except for Chan Tak Wah who gave evidence in English, all the others gave evidence in the Shanghai dialect.

The Plaintiff's evidence

24. The Plaintiff's evidence may be summarised as follows.

25. The Plaintiff had received training in Chinese medicine in an institute in Shanghai although she had not completed the course. Within a month of her arrival in Hong Kong, she was able to get a job as an assistant to a well-known herbalist doctor, Dr Chu Hok Ko. After working as Dr Chu's assistant for two years, the Plaintiff worked as a doctor in Dr Chu's clinic until she resigned in December 1973, shortly after her marriage. She claimed that she was able to accumulate savings of HK$50,000.00 in 1967 from her earnings in the clinic and from her investments in chit fund as well as in stocks and shares. The Property was bought by her in March 1967. The total amount she was required to pay was HK$45,000.00 including legal fees and stamp duty. She had borrowed HK$20,000.00 from a bank and the balance of HK$25,000.00 was paid from her own savings. The Property was bought with a sitting tenant paying rent of HK$600.00 a month. As the monthly mortgage instalment she had to pay the bank was only HK$365.00, she was able to pay the mortgage instalments with money to spare.

26. As for the father's financial condition between 1963 and 1971, the Plaintiff was not able to give a figure of how much the father had earned from the tailoring workshop. She denied that the father had given his net profit to her for safe-keeping and management as alleged by the Defendant. She accepted that in 1969, two years after the Property was purchased, the father might be able to afford a down payment of HK$20,000.00 towards the purchase of a property, and indeed she had suggested to the father to take over from her a property for which she had made initial payments in Middle Road, Tsimshatsui in 1969 but the father had no intention to buy a property. She claimed that the father had to meet various expenses from his earnings and he did not know how to invest. When the father closed down his business in 1971 or 1972, the Plaintiff had to subsidize the father's living expenses and later on the mother's expenses. In the beginning she paid HK$800.00 a month and she continued making such payment until November 1990 when the monthly contribution was HK$2,200.00.

27. The Plaintiff denied that the Defendant had given her his earnings to manage and invest when the Defendant was working in the father's tailoring workshop. She admitted that from about 1976 to November 1990, she had given the Defendant HK$350.00 a month. However this was not payment of interest in respect of the amount the Defendant had given to her for investment as alleged by the Defendant. She stated that the monthly payment was made to the Defendant in response to a request from their parents to help the Defendant who had lost money in the stock market in the 70's.

28. As for the affirmation she made in October 1981, the Plaintiff said it was a false affirmation and she had made up the story that the Property was purchased with the father's money as she was afraid that the Property might be divided up in the matrimonial proceedings brought by the former wife. The Plaintiff said the affirmation was done at the suggestion of the mother and she had discussed it with the family members including the Defendant and Chan Shun Hong. Likewise, the assignment of the Property to the mother in 1982 was made for the same reason and after discussion with her maiden family. The purchase price of HK$420,000.00 was written because the Plaintiff was told by a solicitor's clerk that a purchase price had to be stated for stamp duty purpose. She did not know about the revocation by the mother of the power of attorney in May 1982. She had never paid any rent for the occupation of the Property to any member of the family. The monthly payment of HK$2,200.00 she made in 1990 was for the living expenses of the mother. The rent of the Property at that time would be about HK$8,000.00 a month.

29. As for the first will, it was suggested by the mother to her that the mother would make a will for her benefit as the mother was not in good health at the time. She had expected that the mother would "return" the Property to her in the will. She was not privy to the instructions which the mother gave to Mr Remus Wong alone. After the first will was executed, the mother handed it to her in a sealed envelope, which the Plaintiff kept with her and on hearing of the mother's death, she sent the sealed envelope by courier service to Mr Remus Wong with a note asking him to obtain probate of the first will on her behalf. She learned about the second will in 1993. She was, however, unaware of the contents of the first will in that only half of the Property was bequeathed to her and the remaining half was shared among all the mother's children. The first time she learned about this was in a telephone conversation she had with the Defendant in January 1994.

30. The Plaintiff gave evidence of various demands made by the Defendant and other brothers to her relating to the Property between 1985 and 1994. In 1985, Chan Shun Hong and Chan Chung Wah went to see her at the Property on 25 November and the Defendant and Chan Chung Wah went to see her the next day. On those two occasions, she alleged that her brothers had demanded HK$200,000.00 from her as a condition for returning the Property to her and made threats of violence if she should refuse to comply. As a result, the Plaintiff instructed Mr Remus Wong to send the Defendant, Chan Shun Hong, Chan Chung Wah and the mother a letter stating that she considered reporting the matter to the police. The Plaintiff said that after the November 1985 incident, she did not go back to visit her maiden family at Mirador Mansion.

31. The next communication was after she had immigrated to Costa Rica. She received two letters written by the Defendant. The first was dated 19 February 1990. The second was dated 10 July 1990 in the name of the mother but written by the Defendant on her behalf. In the first letter, the Defendant asked the Plaintiff to sell the Property to him and to name a price. In the second letter, the Plaintiff was asked to contact the Defendant and the mother within a month to discuss a solution otherwise the mother would be forced to solve the problem in her own way. The Plaintiff did not reply to these two letters. The contents of these two letters were pleaded in the Plaintiff's Reply and mentioned in her witness statement but not disclosed in her lists of documents. At the trial, copies of the two letters were produced. It was claimed that the Plaintiff's present solicitors (the Plaintiff had changed solicitors twice) were unable to locate the original documents.

32. In November 1990, the Plaintiff received a letter from the mother's solicitors informing her that the mother had revoked the power of attorney. The Plaintiff immediately flew back to Hong Kong to see the mother but was unable to gain entry to Mirador Mansion as the Defendant and the other brothers had prevented her from entering the premises. She was also unable to contact the mother by telephone.

33. In early 1991, the Plaintiff received a telephone call from Chan Tak Wah who related the Defendant's demand to her. The Defendant asked for HK$300,000.00 for the Property to be returned to the Plaintiff. The Plaintiff agreed to this provided that the documents to give effect to the agreement would be prepared by solicitors. She had no response from the Defendant to her request.

34. The Plaintiff had stopped making monthly payments to the mother and to the Defendant since she was denied access to the mother in November 1990. The mother passed away in May 1991 and thereafter, the Plaintiff and the Defendant had each engaged solicitors applying for probate of the first will and the second will. After that, the only contact the Plaintiff had with the Defendant was in January 1994 when the Defendant went to see Chan Tak Wah in the City Garden Hotel and spoke to the Plaintiff who was in Canada on the mobile telephone of Chan Tak Wah. The Defendant proposed that he and the Plaintiff should each have half of the Property. This was refused by the Plaintiff.

Evidence of Chan Tak Wah

35. Chan Tak Wah was about 14 years old when the father set up the tailoring workshop in Mirador Mansion. He helped the father to calculate the wages that the father was to pay to each tailor in the workshop. He said that the Defendant's pay was the lowest because the workers were paid on a piece rate basis and the Defendant was a slow worker. He was unable to say how much profit the father had made from the business. He would only say that the family had average living standards at the time and the father could make ends meet. He believed that his father was too conservative to invest in the purchase of property and he recalled an incident when the Plaintiff had bought a property in Far East Mansion in Middle Road, Tsimshatsui, with the view that the family should move there and use Mirador Mansion exclusively for the workshop. However, there was no agreement within the family as to who was to pay the mortgage instalments, so they continued to live in Mirador Mansion although the living condition was not satisfactory whilst the place was used as a workshop. As for the purchase of the Property in 1967, he had gone to the Property with the Plaintiff to collect rent from the tenant who was a European and he had understood from his discussion with the Plaintiff that she had purchased the Property.

36. In early 1991, Chan Tak Wah had a long distance telephone call from the Defendant and Chan Shun Hong. They wanted him to pass word to the Plaintiff that if she wanted to have the Property transferred to her, she must pay HK$300,000.00. Chan Tak Wah was then in Toronto and he called the Plaintiff in Costa Rica. He related the Plaintiff's message back to the Defendant and Chan Shun Hong, namely, that she would agree to the payment of the sum provided that legal documents would be prepared for the purpose. The Defendant and Chan Shun Hong refused to accept the Plaintiff's proposal.

37. In January 1994, the Defendant looked for Chan Tak Wah and went to see him in the City Garden Hotel. The Defendant said he would ask for half of the Property and asked Chan Tak Wah to convey the message to the Plaintiff. He called the Plaintiff on his mobile telephone and passed it to the Defendant for the Defendant to talk to the Plaintiff directly. He learned from the Plaintiff afterwards that she had not accepted the Defendant's offer.

The Defendant's evidence

38. According to the Defendant, the father's workshop in Hong Kong employed 15 tailors including himself. The net profit was about HK$1,500.00 a month and the father gave the entire profit to the Plaintiff for safe-keeping and management at the Plaintiff's discretion. Part of the money was remitted by the Plaintiff to support the family in Shanghai. This was the father's practice since he operated the workshop to the day he closed down the business. The Defendant also followed the father's practice and gave all his earnings to the Plaintiff for safe-keeping and management from 1963 to 1971. As for the Plaintiff's financial condition, she was only paid HK$50.00 a month when she started to work in Dr Chu's clinic and this was increased by HK$50.00 a year later.

39. In 1965, the father told the Plaintiff to purchase a property for the family to reside using the money he had given to her for safe-keeping and management. As a result, the Property was purchased by the Plaintiff. The Property was rented out from the beginning and the Plaintiff collected rent for the father. The father did not know in whose name the property was registered until 1973. This was after the mother had come to Hong Kong and the father asked the Plaintiff to transfer the Property to the mother and to pay him HK$110,000.00 to HK$120,000.00 being the balance of the money he had given to her apart from what she had paid for the purchase of the Property. The Defendant also asked for the return of the money he had given to the Plaintiff and the amount with interest in 1973 was HK$68,000.00. The Plaintiff did not however pay the father or the Defendant the amounts she had received from them, nor did she comply with the father's request to transfer the Property to the mother during the father's life time. Indeed, it was not until 9 years later that she transferred the Property to the mother. The Defendant learned from the mother that this was because the Plaintiff was about to emigrate.

40. As for the monthly payments that the Plaintiff had made to the mother, these payments were not the Plaintiff's contribution towards the mother's living expenses but were payments of rent for the Plaintiff's occupation of the property since 1973. The amount she paid in 1973 was HK$800.00 a month and this was the market rent at the time. Between 1981 to 1984, the rent paid by the Plaintiff was HK$3,000.00 a month. She reduced it however in 1985 to HK$2,200.00. For a number of years, the Plaintiff paid the Defendant HK$350.00 a month. He claimed that this was the interest on the principal sum which the Plaintiff owed him and which she has still not repaid. He agreed that the Plaintiff stopped payment to the mother of HK$2,200.00 and to him of HK$350.00 after November 1990.

41. The Defendant denied that he had gone to the Property in November 1985 with one of his brothers to demand HK$200,000.00 from the Plaintiff for the Property to be returned to her. He admitted that he had received the letter of the Plaintiff's solicitors dated 29 November 1985 but did not reply because he does not know English and he was told by Chan Tak Wah, to whom he had shown the letter, that nothing would happen in relation to the letter.

42. He denied that the two letters to the Plaintiff dated 19 February 1990 and 10 July 1990 were written by him. He said that in July or August 1990, he had written a letter to the Plaintiff asking the Plaintiff to return the money he had given her between 1963 to 1971 which amounted to HK$68,000.00 in 1973 as he had the intention to purchase a property in Shanghai. He denied that the Plaintiff had tried to see the mother in Mirador Mansion in November 1990. He admitted that he had a telephone conversation with Chan Tak Wah in early 1991 in which he told the latter that he intended to buy a property in Shanghai worth HK$300,000.00 and asked Chan Tak Wah to inform the Plaintiff to return his money to him. He had a meeting with Chan Tak Wah in January 1994 at a hotel and he had proposed to the Plaintiff on the telephone that they should settle by each getting half of the Property. He did so because each had a will of the mother and he had not obtained legal aid for litigation, not because he accepted that the Plaintiff was entitled to any interest in the Property.

Evidence of Chan Shun Hong

43. Chan Shun Hong only came to Hong Kong in 1980. He gave evidence on the Plaintiff's earnings and the purchase of the Property on the basis of what he had learnt from the Plaintiff when she visited the family in Shanghai in 1965. During that visit, the Plaintiff told him that it was difficult to make a living in Hong Kong and she earned HK$50.00 a month as an apprentice to Dr Chu. She also told him that the father's income from the tailoring workshop was quite good and the father's money was managed by her. Also, the father had told her to buy a property in Hong Kong so if the family should go to Hong Kong in future, they would have a place to live in.

44. After he came to Hong Kong, he had witnessed many occasions in which the mother and the Defendant had asked the Plaintiff to return the Property, the father's money and the Defendant's money.

45. In mid 1981, the Plaintiff came to Mirador Mansion and informed the family that she was involved in a law suit brought by the former wife of her husband and the Property was involved in the litigation. She brought with her a draft statement which she related to the mother and Chan Shun Hong. She asked the mother to make a similar statement. The mother agreed to give the statement because the facts stated in the Plaintiff's draft statement were true and correct. Chan Shun Hong wrote the statement for the mother and she signed it. The Plaintiff's draft statement, the mother's statement and the Plaintiff's affirmation made on 10 October 1981 were all similar in contents.

46. The Plaintiff had paid rent to the mother since she occupied the Property with her husband in 1973. He denied that the family knew that the Property was vacant between 1989 to 1991 after the Plaintiff had emigrated to Costa Rica. In November 1985, he went to the Property with the view of asking for an increase of rent and had a quarrel with the Plaintiff. He denied that he had threatened to use violence or that the Defendant had also been to the Property in November 1985.

47. Neither he nor the Defendant had known about the first will. He did not know why the mother had, in the first will, bequeathed half of the Property to the Plaintiff. He denied that the Plaintiff had tried to see the mother in Mirador Mansion in November 1990.

Assessment of the witnesses

48. This case turns on my assessment of the credibility of the witnesses and they are essentially the Plaintiff and the Defendant. Chan Tak Wah was too young and had no involvement in the purchase of the Property in 1967. Chan Shun Hong did not come to Hong Kong until 1980. However, that is not to say that the testimony of these two witnesses is not important. Insofar as I may have initial doubts about the credibility or otherwise of the Plaintiff or the Defendant, I have found it helpful to consider the evidence of the supporting witness on each side where the supporting witness has given evidence on a matter covered by the principal witness. In the case of the Plaintiff, the initial doubts I have had regarding her credibility were dispelled after I have considered the evidence of Chan Tak Wah, who I am satisfied is a truthful and credible witness. In the case of the Defendant, the initial doubts I have had of his credibility are confirmed after I have listened to and considered the evidence of Chan Shun Hong, who I am satisfied is not a witness of truth. Chan Shun Hong came across as a poor and unreliable witness in cross-examination. I agree with the observation of counsel for the Plaintiff, Mr James Cheng, that Chan Shun Hong was apparently giving his testimony from a memorised text, and that was the reason why he was caught out a few times under cross-examination of giving inconsistent evidence. Chan Shun Hong struck me as an irascible man, with a strong sense of grievance and hostility against the Plaintiff. He is clearly not the impartial witness that he claimed to be.

49. As for the Defendant, it was submitted by Mr Peter Ho, who appeared for the Defendant, that he is a timid character and not the type of person to invest in stocks and shares because he was, at one time, working as a tailor in the father's workshop. The submission would appear to be that as the Defendant was an artisan, he would have no head for business. Whether the Defendant did or did not have any business skill is of little significance in this case. I certainly do not find him a timid character. It is true that he does not display a temper like Chan Shun Hong, but from the manner he responded to cross-examination, I form the view that he is a determined character and not one to be subdued easily. Despite his age, he has a clear head and has demonstrated in a few instances that he has quick thinking. I do not, however, form a favourable view of the Defendant as a witness, particularly as I scrutinise his testimony against that of Chan Shun Hong and test it against inherent probability. Also, the Defendant has disagreed too readily when counsel for the Plaintiff put certain matters to him asking him to indicate his agreement or disagreement. It struck me that as in the case of Chan Shun Hong, the Defendant was apparently sticking to a memorised text, hence his ready disagreement with the suggestion of counsel if the suggestion did not feature in his memorised text.

50. Mr Peter Ho has made strong criticisms regarding the Plaintiff's evidence, calling her case a litany of incomprehensible mistakes and misunderstandings which go against the grain of common sense and inherent probability. He has asked me to scrutinise her testimony with scepticism because she is a 'self-confessed liar' in that she has stated in evidence that the affirmation she gave in the matrimonial proceedings brought by the former wife in October 1981 was untrue. I should point out that Chan Shun Hong has stated otherwise, he said that the Plaintiff's affirmation in October 1981 was true and correct. That the Plaintiff had, accordingly to her, lied at one stage is clearly a matter that I should bear in mind when I assess her credibility. With that as a constant reminder, I turn to consider the Plaintiff's evidence and make my findings regarding the relevant matters in dispute. In so doing, I would test the Plaintiff's case against inherent probability and consider it with the evidence for and against her.

The Plaintiff's earnings

51. The Plaintiff gave evidence that for the first four years when she was employed in Dr Chu's clinic, i.e. from 1962 to 1965, her salary increased from HK$200.00 a month during the first three months to HK$750.00 in the fourth year. Further, from 1968 to 1970, the salary she earned during the four months in winter was equivalent to ten months' salary. From about 1964, she had invested her earnings in stocks and shares and by 1967, she had accumulated HK$50,000.00 as savings.

52. The Defendant gave evidence that the Plaintiff's earnings for the first year was only HK$50.00 a month and this was increased by HK$50.00 for each subsequent year. In the Defendant's witness statement, he mentioned that in 1973, the Plaintiff only earned HK$450.00 a month. However, this was not mentioned in his evidence when he was asked about the Plaintiff's earnings. Chan Shun Hong gave similar evidence that the Plaintiff earned HK$50.00 a month. He alleged that the Plaintiff told him about this when she visited the family in Shanghai in 1965. Chan Shun Hong was shaken under cross-examination as to whether the Plaintiff had also told him that her monthly salary was increased by HK$50.00 a year.

53. Looking at the Plaintiff's evidence against the evidence given by the Defendant and his witness, I am unable to say that I prefer the evidence of the Defendant. I reject the evidence given by the Defendant and Chan Shun Hong on the Plaintiff's earnings. As for the submission of Mr Peter Ho that it is inherently improbable that the Plaintiff's earnings could have made 'fantastic' leaps from HK$250.00 in the first year to HK$750.00 in the fourth year, I find nothing inherently improbable in this increase. It was not disputed by the Defendant that after working as Dr Chu's assistant for a period, the Plaintiff had been working on her own as a herbalist doctor in Dr Chu's clinic until she left the job after her marriage at the end of 1973. I accept the Plaintiff's evidence regarding her earnings. I also find that she was financially capable of making a substantial part payment for the purchase of the Property in 1967.

The father's earnings

54. It is the submission of the Defendant's counsel that it is inherently more probable that the father had made substantial earnings at the time the Property was purchased and that he was financially capable of coming up with the purchase price or a substantial part of it, having regard to the fact that the father had been operating a tailoring workshop for four or five years and employing about 15 tailors. The Defendant gave evidence that the father's net profit was HK$1,500.00 a month from the commencement to the closing down of the business.

55. According to the Plaintiff, the number of tailors employed by the father was only 8 to 10. Neither she nor Chan Tak Wah has given any figure as the amount of profit that the father had made from his business in a month. The tenor of their evidence is that the father was able to make ends meet, they had enjoyed an average standard of living but the business could not be described as very good throughout. In particular, at the time of the riots in 1967, business was very bad.

56. The Defendant did not give any basis or supporting fact for his assertion that the average monthly income of the father was HK$1,500.00. It was left to Mr Peter Ho in his closing submission to suggest that this figure was entirely reasonable as this would mean that the father had a net profit of HK$100.00 out of each tailor he employed. I am unable to accept this. If the Defendant had any factual basis to support his assertion regarding the father's monthly earnings, I would have expected the Defendant to say so in his evidence. On the contrary, the distinct impression I got from the Defendant's evidence was that he had very little idea as to what went to make up the net profit of the business. At first, he said the father gave all the money from his business to the Plaintiff for safe-keeping after paying wages to the tailors. After more probing under cross-examination, he agreed that the father would have to pay for fabrics for the lining, accessories for garments, threads and needles for the sewing machines, rent and utilities of the workshop. I reject the Defendant's evidence on the father's average monthly income from the tailoring workshop.

57. Although the Plaintiff did not give a figure as to how much the father had earned a month from the business, she did say in her evidence that in 1969, at the time when she suggested to the father to buy a property in Middle Road for the family to live in, the father might be able to make a down payment of HK$20,000.00. I accept her evidence on this, particularly as it is adverse to her interest to say so. I also accept the Plaintiff's evidence that notwithstanding the father was financially capable of making a down payment for a property in Middle Road in 1969, the father had no intention to buy a property and in the end she had no choice but to sell the property in Middle Road (for which she had made an initial payment) at a loss of HK$4,000.00 three months later. The Plaintiff's evidence in this respect is supported by Chan Tak Wah, whom I regard as a truthful witness.

58. Having rejected the Defendant's evidence on the average monthly earnings of the father, I do not propose to make any definite finding as to the father's means in 1967. The father's means in 1967 is not of any great significance in the resolution of the dispute, in view of my findings on the following two issues, namely, whether the father had entrusted his earnings to the Plaintiff and the circumstances in which the Property was purchased. I should also say that having regard to the incident concerning the purchase of the Middle Road property, if it were necessary for me to make a finding, I would find that the father had no desire to purchase a property in 1967, two years before the proposed purchase of the Middle Road property.

Whether the father had entrusted his earnings to the Plaintiff

59. The Defendant gave evidence that the father had entrusted all his earnings to the Plaintiff for safe-keeping and management with full discretion to invest the money as she thought fit. According to him, the father did so because she was the only female in the household at the time and the eldest daughter. When he was pressed as to why the father had given the earnings of his business to the Plaintiff, he said that the father was not a businessman, he was just running a tailoring workshop making western suits. As to why his father could not have asked him or the other children to manage his money, he said he had to do tailoring work and was fully engaged, Chan Pang Yee was not in good health and Chan Tak Wah was too young at the time. For good measure, he stated that he also gave all his earnings to the Plaintiff to manage and he produced a number of cheques issued by the Plaintiff to him in 1990 in the sum of HK$350.00 a month saying that these were payments by the Plaintiff of the interest of the sums he had entrusted to her and which she had never repaid.

60. I regard this evidence of the Defendant with great scepticism. I see no good reason for the father entrusting his entire earnings to any of his children to manage. After all, he had to discharge sundry expenses of the tailoring workshop from time to time, not to mention the rent and utilities. The Defendant stated that the father had, at the time of his death, a savings account with the Hang Seng Bank Ltd at the Tsimshatsui Branch in Carnavon Road. The Defendant was unable to give a proper explanation as to why the father had this bank account. I see no reason at all that the father should give his money to the Plaintiff for safe-keeping, leaving aside the question of management or investment.

61. Submissions were made on behalf of Defendant that the Plaintiff had 'surrogate matriarchal status' as the mother had not come to Hong Kong at the time and it was in accordance with Chinese custom that she should manage the father's money. I know of no such Chinese custom of which judicial notice can be taken. I also reject the suggestion in the Defendant's evidence that merely because the father had earned his living by his tailoring skill, he had not the inclination or interest to manage his earnings. I also regard it as inherently improbable that the father would have given the Plaintiff complete discretion to manage his earnings in any way she saw fit. The Plaintiff was merely in her 20's at the time. The only training she had before she came to Hong Kong was in Chinese medicine. She had only started to invest in shares in 1964. I would regard it as exceedingly odd that the father should entrust her with all his earnings, as alleged by the Defendant. As for the submission by the Defendant's counsel that as the father had left nothing in his name when he died, so he must have given all his moneys to the Plaintiff, I am wholly unpersuaded by this reasoning. It must be borne in mind that the father had not been working for four or five years before his death. The mother had to find a job in a garment factory after she came to Hong Kong. I would regard it as more probable that the father had used up what he managed to save from his business in the four to five years before his death.

62. By the same token, I also reject the Defendant's evidence that he had entrusted his entire earnings from the tailoring workshop to the Plaintiff. I accept the Plaintiff's evidence that the cheques she sent him over the years in the sum of HK$350.00 a month were as a result of her promise to the parents to help the Defendant who had suffered heavy losses in the stock market crash in 1973. In the same way, Chan Tak Wah had assisted the Defendant by introducing jobs to him on four occasions. I accept Chan Tak Wah's evidence that the Defendant's financial condition has not been good. If the Defendant had really entrusted all his earnings to the Plaintiff as alleged, I would think it highly unlikely that he had taken no or no effective action to press the Plaintiff for the return of his money for almost twenty years before she emigrated in 1989.

The circumstances in which the Property was bought

63. According to the Defendant, the father told the Plaintiff in 1965 to purchase a property and it was intended by the father that the family should move into the new property. The Plaintiff was to buy a property with the money entrusted to her by the father. The father did not tell the Plaintiff where she should buy a property. He had merely asked her to look around for a suitable place. Chan Shun Hong also gave evidence that when the Plaintiff visited the family in Shanghai in 1965, she told them she was asked by the father to buy a property so that the family would have a place to live in when they came to Hong Kong. It seems to me that the Defendant's evidence that the father had said this to the Plaintiff in 1965 was an afterthought on his part, so that his evidence would tally with Chan Shun Hong as the Plaintiff's only visit to the family in Shanghai before the purchase of the Property was in 1965. This is in marked contrast with the Defendant's statement in the probate action dated 4 June 1994. In that statement, no mention was made of any request or instruction from the father that the Plaintiff should purchase a property, whether in 1965 or at all. Instead, it was stated that in 1967 the Plaintiff mentioned that she would purchase the Property, which is very different from the evidence here. On the credibility of the witnesses alone, I would reject the Defendant's evidence as to the circumstances in which the Property was purchased. When I test this evidence against inherent probability, I am of the firm view that the Defendant and Chan Shun Hong are not telling the truth. If the father had really told the Plaintiff to find a property for the family to reside, it would be very odd that he did not tell her the district or districts he would prefer to live in. It would be odder still for the Plaintiff to purchase the Property which is in Conduit Road instead of in the Tsimshatsui area near to the workshop in Mirador Mansion. Last but not least, she would have purchased a property with vacant possession, not the Property which was bought with a sitting tenant.

64. I accept the Plaintiff's evidence that she purchased the Property with her own funds for her own benefit, not at the request or instruction of the father, and not with the view that the Property was to be a residence for the family. She did have the objective of buying a property as a residence for the family when she bought a property in Middle Road in 1969. That, however, came to nothing because the father had no intention to purchase a property and was not willing to take over the Middle Road property from her and keep up with the mortgage instalment payments.

Did the father ask for the return of his assets

65. According to the Defendant, the father asked the Plaintiff in 1973 to return to him the money he entrusted to her at about HK$120,000.00 and to transfer the Property to the mother. It was only on that occasion that the father learned that the Property was registered in the Plaintiff's name. The Plaintiff told the father that she had no money to repay him and the Property was not transferred to the mother until 1982 despite the mother had urged the Plaintiff to do so.

66. I regard this evidence as incredible. The father knew that the Property was purchased in 1967. It was his property as this was purchased with the money he entrusted to the Plaintiff. He could not have failed to realise that he did not sign any document in relation to the purchase of the Property, nor could he have failed to appreciate that as he had executed no document the Property could not have been in his name. It seems to me extraordinary that having asked the Plaintiff to purchase a property, and this must have been a substantial asset to him, the father could have failed to ask the Plaintiff at the time the purchase was made in whose name the Property was to be registered. No matter how much the father might have trusted the Plaintiff, there was no reason why he should not have told her that the Property should be under his name.

67. I also find it difficult to accept that the father had only asked for the return of his assets in 1973. If he had indeed entrusted all his earnings to the Plaintiff, it would make more sense for him to ask her to return his money to him when he ceased business at the end of 1971 or early 1972 as he would be without a source of income when he closed down the workshop. And if the idea of asking the Plaintiff to return the assets to him was to entrust them to the mother, there was no reason why the father did not ask the Plaintiff to return the assets and to transfer the Property to the mother when the mother came to Hong Kong in 1972.

68. As for the Defendant's evidence that the Plaintiff started to pay rent to mother in 1973 after she went to live in the Property when she got married and after the father had requested her to transfer the Property to the mother, I reject his evidence entirely. I find that the amount of HK$800.00 which the Plaintiff paid the family was her contribution to the living expenses of the parents. According to the Defendant, HK$800.00 was the market rent for the Property at the time. It seems to me unlikely that this could be the case, bearing in mind that the rent collected from the sitting tenant when the property was bought in 1967 was HK$600.00 a month and the rent paid by the last tenant before the Plaintiff and her husband moved into the Property was HK$1,800.00 a month, according to the Plaintiff.

69. I reject the Defendant's evidence entirely on his allegation that the father had asked the Plaintiff for return of his assets in 1973 or at any time.

The circumstances in which the Property was transferred to the mother

70. On the Plaintiff's evidence, she transferred the Property under the guise of an assignment for valuable consideration in February 1982 because she wanted to divest herself of interest in the Property so that it would not be subject to any claim of the former wife in the matrimonial proceedings. She claimed that the reason for the transfer was known to and supported by her maiden family.

71. According to the Defendant's evidence, he understood from the mother in 1982 that the Property was transferred to her because the Plaintiff had wished to emigrate. However, on the evidence of Chan Shun Hong, he would appear to suggest a different reason why the Property was transferred to the mother. Chan Shun Hong gave evidence of an incident in mid 1981 when the Plaintiff came to Mirador Mansion and informed the maiden family of the law suit brought by the former wife involving the Property and she requested and obtained a statement from the mother which was similar to the affirmation she made in the matrimonial proceedings in October 1981. In the closing submission of the Defendant's counsel, he submitted that the Plaintiff had been 'lying about the circumstances surrounding the execution of the transfer of the property'. The problem with that submission is that on the evidence adduced on behalf of the Defendant, two different reasons were given by the Defendant and Chan Shun Hong of the circumstances in which and why the transfer was made to the mother. The Defendant's version conflicts with that of the Plaintiff whereas Chan Shun Hong's version would seem to agree with that of the Plaintiff. I have no hesitation in rejecting the Defendant's evidence on this. It seems to me that the circumstances are compelling and there could be no other reason why the Plaintiff should have transferred the Property to the mother in 1982. I find that this was done for the reason as given by the Plaintiff, not because she had any plan to emigrate.

72. The Defendant's counsel took a number of points regarding matters arising from the transfer of the Property to the mother to cast doubt on the Plaintiff's credibility.

73. Firstly, it was submitted that in the power of attorney executed at the same time as the assignment, the provision giving the donee the power to sell and to mortgage the Property was deleted in that document. It was submitted that this was inconsistent with the Plaintiff's case because the deletion of this provision would tend to suggest that the transfer to the mother was not a sham in that the mother was to retain the power of sale and mortgage and the Plaintiff's beneficial interest in the Property was not safeguarded by the power of attorney. According to the Plaintiff's evidence, this provision in the power of attorney was deleted on the advice of a staff in the solicitor's firm who told her that it would be 'more proper' to do so because she did not in fact receive any consideration from the mother in 'selling' the Property to the mother. I find this alleged advice of the solicitor's staff difficult to understand. The Plaintiff could not explain that advice more fully. Be that as it may, I am not prepared to disbelieve the Plaintiff on the circumstances of the transfer of the Property to the mother or in the other aspects of her evidence merely because the power of sale and mortgage was deleted from the power of attorney. I accept the submission of the Plaintiff's counsel that it is not necessarily the case that the deletion of this provision would be inconsistent with the avowed purpose of the Plaintiff in transferring the property to the mother. The Plaintiff had no intention of selling the Property in 1982 or at any time. She had been living in the Property until she emigrated in 1989 and even after her emigration, she did not take any steps to sell the Property. She has continued to reside in the Property upon her return to Hong Kong in 1996. As for the power of mortgage, at the time the assignment and the power of attorney were executed, the Plaintiff had also arranged for the mother to execute a mortgage to the bank to secure a loan of HK$170,000.00. There was apparently no need for the Plaintiff to think of a further mortgage. Hence, the absence of a power of sale and mortgage would not have affected greatly the Plaintiff's interest in and enjoyment of the Property.

74. Next, it was submitted that it was significant that the power of attorney was revoked by the mother three months later as endorsed on the document. As the Plaintiff had claimed that she had kept the power of attorney all along, the revocation of it by endorsement could not be without her knowledge. Hence, she must be disbelieved on this and on other matters. How the power of attorney came to be revoked by the mother in May 1982 is an unresolved mystery. The Plaintiff claimed to be ignorant about this, she said that there was no reason why she should have agreed to have the power of attorney revoked three months later as she had paid substantial legal fees to have the power of attorney and other documents executed. The Defendant and Chan Shun Hong did not appear to know about the revocation in May 1982 either, neither had mentioned in the evidence how and why the mother came to revoke the power three months after execution. The mother had apparently not told them about this. Had she done so, I would have expected the Defendant and Chan Shun Hong to give evidence on this, as they have done in respect of other information they had allegedly learned from the mother. It is unnecessary for my decision to make any finding as to how and why the power of attorney came to be revoked by the mother three months after execution. I do find that the Plaintiff had no knowledge of this revocation. Had the Plaintiff known about this, she would have reacted to this at once, as she had done when she learned about the revocation of the power by the mother in October 1990. Notwithstanding she was in Costa Rica at that time, the Plaintiff immediately flew back to Hong Kong and tried to see the mother in Mirador Mansion but was denied access to the mother by her brothers. The Defendant and Chan Shun Hong denied that the Plaintiff had come back from Costa Rica in November 1990. However, I reject their evidence on this.

75. The last point taken by the Defendant's counsel is that the Plaintiff did not ask the mother to transfer the Property back to her after there was a court order in the matrimonial proceedings in 1982 or 1983 that Li See Chi was to pay one-third of his income to the former wife. It was submitted that as the risk of the claim of the former wife over the Property had disappeared, one would have expected the Plaintiff to ask the mother to re-assign the Property to her. The Plaintiff's answer was that no decree of divorce was made dissolving the marriage between Li See Chi and the former wife. Indeed, the affirmation the Plaintiff made in October 1981 was in proceedings brought by the former wife for neglect to maintain. She said that the matrimonial proceedings were not settled until 1992 when Li See Chi agreed to make a lump sum payment to the former wife by two instalments. That being the case, I do not think the risk of the former wife making any claim on the Property had disappeared when an order for periodic payment was made in 1982 or 1983. Besides, in 1984, the Plaintiff had been given to understand by the mother that the mother would make a will leaving the Property to her and the Plaintiff had made arrangements with a solicitor for the mother to execute the first will. I am not prepared to make any adverse finding on the Plaintiff's credibility for the reason as submitted by the Defendant's counsel.

The Plaintiff's ignorance of the contents of the first will

76. According to the Plaintiff, she did not come to realise that the mother had only left half of the Property to her under the first will until the Defendant had told her in the telephone discussion in January 1994. The Defendant's counsel made great play about this and mounted a vigorous attack on her credibility on account of her alleged ignorance.

77. Before dealing with the specific criticisms, it may be convenient to set out the Plaintiff's evidence in this respect. The Plaintiff stated that the mother gave instructions to Mr Remus Wong alone on the preparation of the first will. I see nothing odd about this as the Plaintiff might not wish to be seen by the solicitor that she was interfering with the mother in making the will. After all, she had been given to understand by the mother that the mother would make a will for her benefit. After the mother had executed the first will, the Plaintiff stated that the mother gave this to her in a sealed envelope, which she did not open at any time before sending it to Mr Remus Wong in May 1991 after the mother's death. When she was cross-examined why she did not open the envelope, the Plaintiff's answer was that she had no reason to doubt the mother. Besides, she does not know English. There was nothing to alert her to ask for assistance to have the first will interpreted until she had the discussion with the Defendant in 1994. I agree that it is odd that the Plaintiff did not seek to have the will interpreted to her before 1994. However, I do not think it is so inherently improbable that I should reject her evidence in this respect or form such an adverse view of her credibility that I should disbelieve her altogether in other matters. This is but one aspect of the evidence in this case and I do not think it should assume the kind of importance as the Defendant's counsel has submitted even though I am not entirely satisfied of the Plaintiff's explanation why she had not found out the contents of the first will earlier.

78. It was submitted on behalf of the Defendant that the Plaintiff's act of seeking probate of the first will, her acknowledgement in the two affirmations in the probate application that the mother was the beneficial owner of the Property and not a trustee, and the defence and counterclaim filed on her behalf in the probate action in August 1993 seeking probate of the first will, all demonstrated that she had acknowledged that the mother was the true beneficial owner of the Property. According to the Plaintiff's evidence, she had sent instructions to Mr Remus Wong in a piecemeal fashion over a period of time in response to his request for information and instructions. She was in Canada during that time. She could not be precise as to when she had given the solicitor the full details of her case that she was the beneficial owner of the Property and the circumstances in which it was transferred to the mother in 1982. It was, however, only on 17 November 1993 that Mr Remus Wong wrote to the Defendant's solicitors on the Plaintiff's behalf setting out the basis of the Plaintiff's claim of beneficial ownership in the Property. Even so, in that letter Mr Remus Wong did not refer to the first will. The Plaintiff said she had changed her solicitor on the advice of counsel because she was dissatisfied with the solicitor's service, apparently because the solicitor had not alerted her to the contents of the first will.

79. I am not prepared to find that the Plaintiff had accepted that the mother was the true beneficial owner of the Property on account of the Plaintiff's conduct of seeking probate of the first will. It seems to me that although Mr Remus Wong had known or must have known the contents of the first will, it is entirely possible that as full instructions were not obtained by him from the Plaintiff at the outset as to how she became the registered owner in 1967 and how the Property came to be transferred to the mother in 1982, it might not have occurred to him that there would be a conflict in the act of seeking probate of the first will with the Plaintiff's assertion of beneficial interest in the Property. Besides, Mr Wong only had instructions from the Plaintiff in the beginning to apply for probate of the first will. He would have no idea that the Plaintiff was ignorant of the contents of the first will and he was simply carrying out her instructions at that time by preparing various affirmations for her to make as the executrix, which she duly did. Further, although the affirmations were interpreted to the Plaintiff by Li See Chi, the Plaintiff might not have appreciated the significance of the statement in those affirmations that the mother was not a trustee of the Property. In my view, it was due to misunderstanding and the lack of adequate instructions from the Plaintiff at the outset that her former solicitor had applied for probate of the first will on her behalf. Once the error or inconsistent position was appreciated, although belatedly, the Plaintiff has acted to assert her interest in the Property. I should add that I do not think the letter of the Plaintiff's solicitors to the Defendant's solicitors dated 17 November 1993 must have meant that the Plaintiff had known about the contents of the first will by then and not in early 1994 as she said in evidence. As I have stated earlier, this letter simply made no mention of the first will.

Subsequent communications between the parties

80. Regarding the November 1985 incident, I reject the evidence of the Defendant and Chan Shun Hong on this. I find that they and Chan Chung Wah had gone to see the Plaintiff at the Property on two occasions and they had asked for HK$200,000.00 as a condition for returning the Property to her. Because of this, the Plaintiff asked Mr Remus Wong to send a letter to the three brothers and to the mother. I reject the evidence of Chan Shun Hong that he went there to seek an increase of rent. Firstly, I have rejected the evidence that the Plaintiff had paid any rent to her maiden family for her occupation of the Property. Secondly, assuming that Chan Shun Hong had made a demand for increase of rent in November 1985 when the Plaintiff reduced payment from HK$3,000.00 to HK$2,200.00, it would be strange to say the least that no action was taken by any of the brothers since 1985 to obtain an increase of rent.

81. As for the two letters produced by the Plaintiff as letters she had received from the Defendant in February and July 1990, I reject the Defendant's evidence that these letters are forgeries. I find that they were written by him. The Defendant knew about the Plaintiff's address in Costa Rica as he had said in his evidence that he did write to the Plaintiff in July or August 1990 asking for return of the money he had given her for safe-keeping and management between 1963 to 1971, which was denied by the Plaintiff. In the letter in February 1990 to the Plaintiff, it is stated that the landlord in Mirador Mansion had indicated to the Defendant that the rent of HK$3,700.00 would be increased to HK$4,800.00 in July 1990. The Defendant said in his evidence that rent for the premises at that time was indeed about HK$3,600.00 or HK$3,700.00. He did not deny that the landlord had proposed to increase rent to HK$4,800.00 in July 1990. These matters would not be within the Plaintiff's knowledge as she had not gone back to Mirador Mansion after the incident in November 1985 and she had emigrated to Costa Rica in 1989.

82. It is unnecessary for my decision to make any finding as to circumstances in which the second will was made by the mother in October 1990 and the circumstances in which the mother had revoked the power of attorney a second time. I make no finding in this respect. I accept the Plaintiff's evidence that she had flown back to Hong Kong from Costa Rica upon learning of the revocation of the power of attorney from the mother's solicitors but was denied access to the mother by her brothers.

83. As for the telephone conversation between the Defendant and Chan Tak Wah in early 1991, I accept the evidence of Chan Tak Wah on this and reject the evidence of the Defendant. I do not think the Defendant was telling the truth when he said he had mentioned the sum of HK$300,000.00 in the context of his plan to buy a property in Shanghai. I find that the Defendant had asked Chan Tak Wah to convey to the Plaintiff that she should pay HK$300,000.00 if she wanted to have the Property returned to her.

84. There is little dispute in substance regarding the conversation in January 1994 between the Plaintiff and the Defendant. It is common ground that the Defendant had proposed to divide up the Property equally between themselves and the Plaintiff had turned down this offer. I do not think one can read much into this telephone discussion as to the reason why the proposal was made and why it was rejected.

Conclusion

85. I am satisfied on the evidence that the Plaintiff has established her case that the Property was held by the mother on a constructive or resulting trust on her behalf when she transferred the Property to the mother in 1982. Accordingly, I give judgment in favour of the Plaintiff and grant relief as sought in the Amended Statement of Claim :

(1) a declaration is made that the Property was at all material times held by the mother and after her death by her estate upon a constructive or resulting trust on behalf of and for the benefit of the Plaintiff absolutely; and

(2) an order is made that the estate of the mother is to do all acts and things necessary to re-assign the Property and the interest therein to the Plaintiff free from encumbrance (save and except the mortgage executed by the mother in favour of Wing Lung Bank Ltd on 5 February 1982 to secure a loan of HK$170,000.00), failing which the Registrar be directed to execute in the name of the estate of the mother an assignment of the Property to the Plaintiff pursuant to Section 25A of the High Court Ordinance, Cap.4.

86. The counterclaim of the Defendant is dismissed.

87. I make an order nisi that the Plaintiff is to have the costs of the claim and of the counterclaim. The Defendant's own costs are to be taxed in accordance with the Legal Aid Regulations.

Representation:

Mr James C C Cheng, instructed by Messrs Johnnie Yam, Jacky Lee and Co., for the plaintiff

Mr Peter Ho, instructed by Messrs W M Lo & Co., for the defendant