Ip Man Shan, Henry v. Ching Hing Construction Co Ltd
Read the full judgment text of CACV 183/2003 on BabelCite. This Court of Appeal judgment was delivered on 19 January 2005 before Rogers VP, Le Pichon JA, Sakhrani J.
Property law – gift – family property – nominee/trustee – appellate review of factual findings – Civil appeal – Fei Ngo Shan family residence acquired at 1957 auction with Henry Ip signing the memorandum of agreement – premium of $121,000 paid by Ching Hing Construction Company Limited – construction costs of $1,014,566 booked as Ching Hing's expenses – 1958 power of attorney granted by Henry to his mother WMS – 1965 lease from Henry to Ching Hing executed by WMS under the power of attorney – Henry never lived at the property – whether parents intended a gift of the property to Henry – main issue whether ICP and WMS intended to make a gift of the property to their eldest son Henry, with the claim of gift not advanced until decades after acquisition – held no gift was intended and Henry was a mere nominee – Madam Koo's disinterested evidence of pre-auction discussions between ICP and WMS that Henry's name was to be used but the land would belong to Ching Hing was decisive – judge entitled to find on the balance of probabilities that no gift was intended – restrictive building covenant and Special Condition 25 made the land a liability rather than an asset – Henry had no means to defray the premium or construction costs – power of attorney divested Henry of all powers in favour of WMS – 1965 lease back to Ching Hing pointed away from gift – notes to Ching Hing's audited accounts at best equivocal as to type of ownership and of limited weight – Henry never asserted beneficial ownership during his lifetime – Cecilia's failure to testify about alleged assurances to her mother supported adverse inference – appellate court slow to interfere with trial judge's findings on weight of evidence absent error of law – Shephard v Cartwright [1955] AC 431 referred to in submissions but unnecessary to decide admissibility – appeals in CACV 183/2003 and CACV 184/2003 dismissed with costs – subsequent Court of Final Appeal appeal in FAMV 26 and 27/2005 also dismissed.
Legal issues: Whether ICP and WMS intended to make a gift of the Fei Ngo Shan property to Henry · Effect of power of attorney and lease on the question of beneficial ownership · Evidential weight of notes to Ching Hing's audited accounts
Outcome: Appeals dismissed with costs. The judge's finding that no gift of the property to Henry was intended was upheld. The Court of Final Appeal appeal was dismissed per FAMV 26 and 27/2005.
Cites 4 cases
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cacv 183/2003 & CACV 184/2003 cacv 183/2003 in the high court of the hong kong special administrative region court of appeal civil appeal no. 183 of 2003 (on appeal from HCA NO. 3675 of 1985) _________________________ BETWEEN
AND BETWEEN
_________________________ cacv 184/2003 in the high court of the hong kong special administrative region court of appeal civil appeal no. 184 of 2003 (on appeal from HCA NO. 11768 of 1995) _________________________ BETWEEN
_________________________ Before: Hon Rogers VP, Le Pichon JA and Sakhrani J in Court Dates of Hearing: 18-19 January 2005 Date of Judgment: 19 January 2005 Date of Handing Down Reasons for Judgment: 4 February 2005 _________________________ REASONS FOR JUDGMENT _________________________ Hon Rogers VP: 1.I agree with the reasons for judgment of Le Pichon JA. Hon Le Pichon JA: 2.These are appeals from the orders of Deputy High Court Judge Lam (as he then was) dated 15 January 2003 made in HCA 3675 of 1985 (“the first action”) and HCA 11768 of 1995 (“the second action”). The first action was brought by the late Ip Man Shan, Henry (“Henry”) against Ching Hing Construction Company Ltd (“Ching Hing”) for possession of a property comprising a large family residence erected on Lot No. 1940 in S.D.2, Fei Ngo Shan. For convenience the land and the residence erected on it are hereinafter referred to as “the property”. Henry died in 1988. His executors executed an assent vesting the property in Henry’s son Arnold in 1995. The second action which was brought by Arnold against Ching Hing in 1995 was also for possession of the property. The judge dismissed both claims and also the counterclaims by Henry’s personal representatives and by Arnold in the first action. At the heart of this family litigation is the ownership of the property. At the conclusion of the hearing, the appeals were dismissed with costs with written reasons to be handed down later which we now do. Background 3.Ching Hing is a construction company founded by the late Ip Ching Ping (“ICP”) and his wife, the late Madam Wong Miu Sim (“WMS”). ICP married WMS in 1931. They had two sons and five daughters. Three of the children, namely, Henry, Loretta and Sammy were born between 1931 and 1935. After a gap of 7 years, they had another four children, Roseanna, Maimie, Marion and Henrietta who were born between 1941 and 1947. At the time of his marriage, ICP was a clerk in the Public Works Department. It would appear that in the 1930s, ICP acquired a qualification in engineering and began to be engaged in the construction industry before the Second World War. For her part, WMS contributed substantially to the family wealth through her hard work and acumen as a property agent. The judge found ICP and WMS to have been self-made entrepreneurs. They acquired land which they developed and ICP operated a construction firm by the name of Ching Hing. From about 1944, the family lived in various properties which had been developed by Ching Hing. Typically, the family would occupy one storey of the building and the other storeys would be let out for rent. 4.By 1950, ICP and WMS had become active property developers with considerable accumulated wealth. They developed a property in Tai Po Road called Park Mansion and in about 1950 moved there, occupying the two units comprising the ground floor which had been converted into a single residence and leasing out the upper floors. 5.Ching Hing was incorporated in 1954. The shareholders were ICP, WMS and the 3 older children – Henry, Loretta and Sammy. Of the 150 issued shares, ICP and WMS were allotted 40 shares each and were the permanent directors. Together they held just over 53% of Ching Hing. Henry and Sammy were allotted 30 shares each and Loretta 10. The facts
6.Henry who was the eldest of the seven children graduated from the University of London with a degree in engineering in 1957. He returned to Hong Kong in the latter part of that year. Prior to his return, ICP and WMS had taken the daughters and some relatives to visit a vacant site at Fei Ngo Shan and informed them that a new family residence would be built there although the land was yet to be acquired. This visit appeared to have taken place when the sons were still studying in England. 7.The auction of the land which was a vacant site took place on 14 November 1957. Henry had, by then, returned from England to live with the family at Park Mansion. He attended the auction with ICP. The land was successfully bid for. The memorandum of agreement dated 14 November 1957 was signed by Henry and witnessed by ICP. The premium of $121,000 was settled by a cheque issued by Ching Hing. On the same day, ICP deposited $121,000 into Ching Hing’s bank account. 8.The lease conditions contained a building covenant requiring that a sum of not less than $175,000 be expended on the erection of a building within 24 months such sum to exclude monies spent on site formation, foundations, access roads and other ancillary works. Special Condition 25 was in these terms:
9.The construction of the property took a great deal longer than the two years allowed for under the lease conditions. Extensions had to be obtained from and penalties paid to government. The delays were largely due to the rejection of plans submitted as not complying with Special Condition 25. It was not until January 1963 that the plans were approved, the mansion comprising four separate wings or units. Building work was mainly undertaken in 1963 to 1964. The occupation permit was issued in February 1965. Ching Hing was involved in the project from inception: apart from issuing the cheque for the premium, it carried out the construction and the construction costs and related expenses totalling $1,014,566 were booked as Ching Hing’s expenses. The title deeds were retained by the parents and kept in their safe at the office of Ching Hing. Whilst the building was recorded as a fixed asset in Ching Hing’s books, the land cost was not included.
10.Approximately 6 months after the acquisition of the land, on 23 May 1958, Henry granted a power of attorney in favour of his mother. WMS was authorised, inter alia, to build on, to take possession of, to manage, demise or let, to mortgage or charge, to sell and “… to convey or assign by way of gift …” the property as she should think fit. A more comprehensive set of powers would be difficult to devise. 11.A year later, Henry married Cecilia. At about the same time, on 1 June 1959, he started his own business – Henry Engineering & Construction Company. It will be convenient to digress at this point to mention Henry’s matrimonial home as from 1959. It changed several times. It was initially in Estoril Court and then in Henry’s Mansion which had been built by Ching Hing. Arnold was born in 1962 and around the time of his birth, Henry and his family moved to an upper unit in Park Mansion. Henry and his family never lived in the property at any time after it became habitable. Instead, in late 1965/early 1966 they moved to Brewin Court and lived there until 1972 when they moved to Grenville House. Henry and Cecilia divorced in 1980 after which Henry lived in Shouson Hill. 12.Returning to the events of 1959, it is to be noted that the younger daughters became shareholders of Ching Hing in April 1959. The shareholders thus comprised ICP, WMS and their seven children albeit that the shares allotted to the sons were double those allotted to the daughters. Henry was made a director of Ching Hing in May/June 1959. 13.Later the same year, Roseanna and Maimie were sent to study abroad, followed by Marion and then Henrietta. By September 1963, the four younger daughters were all studying in England.
14.As mentioned above, the family mansion consisted of four separate wings or units. ICP and WMS moved into unit B during the first half of 1965, shortly after the occupation permit was issued. This became the family residence. It was accepted that ICP intended the property to be occupied by members of his family. When the younger daughters returned during the summer holidays in 1965, they stayed with their parents in unit B except for Henrietta who stayed in unit C. When Sammy returned from London in late 1965/1966, he occupied unit C and did so until his death in November 1997. All 4 units have from time to time been occupied by members of the family. 15.At about the time ICP and WMS moved to the property or shortly thereafter, WMS exercised her power of attorney and executed a lease in Henry’s name demising the property to Ching Hing from 1 June 1965 for the residue of the term of years under which the demised premises were or should be held from the Crown less the last day for $500 per calendar month. 16.ICP and WMS resided there until 1968 when, as a result of a stroke, ICP moved to live on Hong Kong island so as to be closer to medical care. Nonetheless, he visited the property on a daily basis and, indeed, the house was adapted to suit his needs. One of the daughters continued to live there until 1971 and, as noted above, Sammy lived there from 1965/66 until his demise in 1997. Henry and his family never lived at the property. Units A, B and D were rented out periodically when they were not used by family members but after June 1988, all unoccupied units have been left vacant.
17.ICP and WMS had made mutual wills in 1967, leaving their estates to the children with the sons receiving double the shares of the daughters. These wills were revoked in the following circumstances. In the case of WMS, she made a new will on 17 January 1981 giving all her shares in Ching Hing to the daughters and the remainder of her estate to her seven children in equal shares. This was provoked by Henry’s objection at the annual general meeting of Ching Hing in December 1979 to her proposal to allot more shares to the daughters. Henry even threatened legal action. 18.In the case of ICP, a number of incidents in the early 1980s made him extremely angry with Henry. It is sufficient to mention the following: two weeks after the sudden death of WMS, on 15 May 1981, after the reading of WMS’s will whereby she bequeathed all her shares in Ching Hing to the daughters, Henry called for a director’s meeting at which he requested ICP to execute a minute for the transfer of all ICP’s shares in Ching Hing to the two sons. ICP became very angry and refused. A week later, when ICP proposed the appointment of Roseanna to fill WMS’s vacancy on the board and of Henrietta as an additional director, Henry opposed and Sammy abstained. ICP had to exercise his casting vote as chairman whereupon Henry resigned as director of Ching Hing. Following those incidents, ICP made his last will on 6 January 1982. ICP’s displeasure with his sons manifested itself in clause 7 where certain words had to be excised as a result of the probate action in respect of the will. He left his entire estate to his daughters, stating that each of his sons was well provided for. ICP died in April 1983. Roseanna, Marion and Henrietta were appointed executrices of his estate. The first action 19.After the death of ICP, in June 1985, Henry commenced the first action seeking possession of the property from Ching Hing on the basis that on the true construction of the lease, the term expired by effluxion of time on 29 June 1973 but that notwithstanding due notice, Ching Hing had continued in wrongful occupation. In the alternative, Henry relied on a collateral contract which was pleaded in paragraph 14 of the statement of claim as follows:
Henry sought a declaration on this alternative claim that notwithstanding the terms of the lease, he was entitled to the use of that unit. It is to be noted that the first action did not assert any gift of the property in favour of Henry during his lifetime. The assertion of a gift in the first action was not made until the filing of the amended reply and defence to counterclaim on 24 May 1996, many years after Henry’s death. The particulars relied on in support of that assertion included the following:
These particulars mirrored those that had been filed 5 months earlier, on 16 January 1996, in the reply and defence to counterclaim in the second action brought by Arnold, when the assertion of a gift to Henry was made for the first time. 20.Henry died in 1988 having by his will dated 19 January 1985 bequeathed the property to Arnold. His personal representatives executed an assent of the property in favour of Arnold on 10 May 1995. By an order dated 18 June 1996, the first action was discontinued against Ching Hing upon payment to Ching Hing of its costs. The second action 21.This action was commenced by Arnold against Ching Hing on 16 November 1995 seeking possession on the basis that the lease had expired, that the option to renew was void for uncertainty, that the defendants had no right to remain on the property as well as a declaration that the defendant had no interest, legal or equitable in the property. Notwithstanding that prayer, there was no assertion that there had been a gift by ICP and WMS to Henry. As noted above, that assertion first emerged in the reply and defence to counterclaim dated 16 January 1996 and the particulars relied on were those mirrored in the particulars relied on in the first action set out in paragraph 19 above. The executrices were joined as the 2nd defendant in July 1996. The judgment below 22.The crucial issue that had to be determined in the actions was whether the parents intended to make a gift of the property to Henry. Unless there had been a gift, Henry would not have had any beneficial interest in the property and would have been a bare nominee. Arnold’s position would not have been better than Henry’s. The judge had no difficulty in reaching the conclusion that there had been no gift to Henry. He further found that the premium had been paid by ICP rather than Ching Hing and that ICP and Ching Hing were entitled to the beneficial interest in the property in certain proportions. However, as was conceded by Mr Strachan, these appeals do not impinge on that question and there is no respondents’ notice that challenges the apportionment made by the judge.
23.It would be convenient to digress here to refer to the evidence of Madam Koo since I regard her evidence as crucial on the question of the intention of ICP and WMS at the time of the auction. Madam Koo was 87 years of age when she gave evidence. The circumstances in which she did so are set out in paragraphs 115 to 118 of the judgment. Suffice it to say that having lost touch with the family for many years, she read about the litigation in the newspapers and contacted Roseanna to volunteer information “out of a sense of righteousness”. She had known WMS when they were both at school. In 1957, they were good friends and saw each other very often. She frequently accompanied WMS and ICP on their trips to inspect projects. She remembered an occasion when she was in the car with WMS and ICP at a time when Henry had already returned from England. ICP and WMS had a discussion about the property from which it would appear that the auction was imminent. ICP and WMS agreed that Henry’s name would be used to sign the contract but that he would do so for Ching Hing. According to Madam Koo, the understanding was that the land would belong to Ching Hing. The judge rejected the challenge made to Madam Koo’s integrity in coming forward to give evidence. In the judge’s words,
He accepted her evidence without reservation.
24.The judge found that there was ample evidence as to the intention of the parents and Ching Hing which may be summarized as follows. He found there was evidence of discussions between ICP and WMS prior to the auction. These included the pre-auction site visit when ICP announced that a new family home was to be built on the land and Madam Koo’s evidence which, crucially, was entirely consistent with what had been announced at the site visit. Apart from that, there was the nature of the land. Given the building covenant and Special Condition 25, upon its acquisition, the land could properly be regarded as a liability rather than an asset. Compliance with the lease conditions alone meant construction costs which exceeded the premium paid, much less the actual construction costs incurred which were more than 8.5 times the amount of the premium. In 1957, Henry had no means with which to defray either the premium or the expenses required in order to comply with the lease conditions, and paying for both would have been totally out of the question. The restriction on the use of the land, limiting it to the construction of a single private dwelling house for private residential purposes meant that part of the land could not have been sold off to finance the commitment. 25.Then there was the fact that all the construction costs which were substantial had been defrayed by Ching Hing. By the end of 1964, not only were the seven children common shareholders of Ching Hing together with the parents, Cecilia and Arnold (who had then been born) were also shareholders as was a relative, Ip Man Kong. In fact, the parents’ shareholding only represented approximately 37% of the issued capital. Accordingly, a gift by the parents at that time would not have been synonymous with a gift by Ching Hing and there was no valid reason why they would have wanted to make a gift to Henry of what would otherwise have been available as assets of Ching Hing for the benefit of other members of the family. 26.Other circumstantial evidence included the fact that Henry had little or no input at all into the design of the building. He never lived there. The property in fact served as the family residence for a number of years for the parents and the unmarried children once it was ready for occupation until ICP’s stroke. While this necessitated his moving out of the property for medical reasons, ICP continued to visit the property on a daily basis and substantial alterations were carried out, again by Ching Hing, to suit ICP’s needs. Rent payable under the lease had been paid by Ching Hing to WMS and not to Henry. Moreover, during his lifetime, he never once asserted that the property had been a gift to him. As noted above, that claim was never made by Henry when he commenced the first action. Indeed, he was there asserting a collateral contract entitling him to the use of a unit in the property as distinct from asserting beneficial ownership of the property. The claim of a gift was not advanced until after Arnold had commenced the second action 8 years after Henry’s demise and almost 30 years after the acquisition of the land.
27.Mr Strachan, who appeared for Arnold, contended that it was extremely likely that ICP had intended a gift to Henry. He relied on the fact that Henry who had returned from England shortly before the auction was the eldest child and possessed the necessary qualifications to take over the business. He submitted that ICP favoured sons over daughters. The land together with the attendant obligation to build meant a commitment of about $300,000. It was said that the amount involved was not so huge as not to be a gift and Mr Strachan prayed in aid the gift from the parents to Henry of $303,000 on the occasion of his wedding in 1959 as well as the lavishness of the wedding celebrations. But all these matters had been ventilated below and taken into consideration by the judge in determining whether or not there had been a gift of the property to Henry. They were not matters that had been overlooked: rather, the judge took the view that they were outweighed by the other evidence before him, in particular, the evidence as to the intention of ICP and WMS summarized in paragraphs 23 to 26 above. In this connection, Madam Koo’s evidence was clearly crucial. She was a disinterested party, her evidence serving to tip the balance heavily against the assertion that there had been a gift and dispelling any residual doubts on the matter. 28.Mr Strachan also criticized the judge’s conclusion that there must have been pre-acquisition discussions between the parents and Henry. Leaving aside any evidence as to those discussions that may have been in the statements and statutory declaration of ICP (which are dealt with below in paragraph 43), the judge inferred such discussions from the fact that by agreeing to and signing the memorandum of agreement at the auction, Henry was taking on liabilities that he was in no position to discharge. That being so, it stands to reason and accords with common sense that discussions between him and his parents must have taken place as to how the purchase was to be financed and a common understanding reached as to what Henry was supposed to do with the land in the event of a successful bid. However filial Henry might have been, it is inconceivable that he would have done his parents’ bidding, attended the auction and put his name to the memorandum thus taking on the substantial financial obligations when he did not have the wherewithal to discharge them without prior discussion with his parents. 29.As to the nature of those discussions, subsequent events throw some light on the matter. Far from supporting any inference of a gift having been made to Henry, as will become apparent below, subsequent events, namely, the execution of the power of attorney and the creation of the lease shortly after the completion of construction pointed in the other direction and were entirely consistent with his being a nominee. Thus, the judge was perfectly entitled to infer (at paragraph 152) that on the balance of probabilities the parents had told Henry prior to the auction that he was not to have any beneficial ownership in the property and that the property was put under his name as nominee. 30.Moreover, as already noted, the pleadings contained positive averments of a gift by ICP to Henry. It was said that Cecilia’s mother had been told by WMS on three occasions prior to and immediately after Cecilia’s marriage to Henry that the lot had been bought for Henry and his family. Although present in court, Cecilia never gave evidence despite the pleading set out in paragraph 19 above. Mr Strachan sought to downplay the effect of the absence of evidence to support the positive case of a gift. In my view, it goes beyond simply ‘taking out’ the alleged conversations between WMS and Cecilia’s mother: it must, at the very least, dent the credibility of Arnold’s case. In my view, the judge was perfectly entitled to draw the adverse inference that he did against Arnold in paragraph 156 viz. that even if Cecilia had been called as a witness, her evidence could not have displaced the evidence adduced by Ching Hing and the executrices of ICP’s estate to the effect that the parents did not intend to make a gift of the property to Henry. 31.But the main thrust of Mr Strachan’s submissions before this court was that the judge’s finding was contrary to the documentary evidence which all pointed one way – that a gift was intended. He relied heavily on the power of attorney, the lease and the notes to the accounts of Ching Hing to which I now turn. It was accepted by Mr Strachan that if this court were to conclude otherwise, his appeal must fail.
32.Much importance was attached to the use of the words “my leasehold property” in the power of attorney. It was said that those words recognised Henry’s beneficial interest in the land and had Henry been no more than a trustee, the power of attorney would have used words such as “the leasehold property registered in my name” which would have reflected that status. For my part, I do not consider that the use of words “my leasehold interest” rather than the formula suggested necessarily supports the distinction that Mr Strachan sought to make. Those words were plainly consistent with the fact of Henry being the legal owner of the land. 33.As the judge recognized, what was of crucial importance was the substance of the transaction. The effect of the power of attorney was to divest all powers of ownership from Henry and to vest them in WMS so long as the power of attorney remained unrevoked. Not only was WMS authorised to exercise the extensive and all embracing powers conferred on her, she was authorised to delegate the exercise of any of those powers. See clause 24. The judge rightly focussed on the nature of the powers conferred on the attorney and came to the following conclusion (at paragraph 139):
In my view, the judge’s analysis was unassailable. 34.Mr Yu SC who appeared for Ching Hing and the executrices submitted that the reason why Henry gave the power of attorney was because he was a mere nominee and hence did as he was asked. It enabled the true beneficiaries (ICP/Ching Hing) to do what they liked with the land without having to call upon Henry every time. I agree. Had Henry considered himself the beneficial as well as the legal owner, it would have been surprising that he would have executed the power of attorney containing such sweeping powers when there was no good reason for him to have done so. It would have been very different had a need been shown for having the power of attorney, for example, absence from Hong Kong necessitating an attorney to act in his absence. 35.As to the lease which came into existence through the exercise of the powers contained in the power of attorney, Mr Strachan submitted that the proper way of looking at it was the carving out of an interest for Ching Hing to reflect its interest through the expenditure incurred in putting up the building. Ching Hing was given the benefit of the Crown lease through the creation of the 1965 lease which was for the duration the whole of the term held from the Crown (including any renewed term) less one day. The difficulty with that approach is that Henry would not derive any real benefit from the alleged gift until many years later. That does not sit comfortably with the “graduation gift” theory advanced before the judge when the real benefit of the alleged gift accrued not to Henry but to ICP and WMS: the property was fully at their disposal and served as their family residence. Moreover, during her lifetime, all rents were collected by WMS. I do not therefore agree that the lease compelled a conclusion that a gift of the property to Henry had been intended. If anything, both the power of attorney and the lease point the other way.
36.As noted above, the land was never treated in the audited accounts of Ching Hing as an asset of the company: the cost of the land had never been included in the balance sheet. From 1974/1975 onwards until 1996/1997, the notes to the audited accounts recorded the land variously as being owned “by a director”, “by a shareholder” and “by a former shareholder”, the relevant periods precisely mirroring Henry’s actual status within Ching Hing. The point being made was that if ICP had intended that Ching Hing should have a beneficial interest in the property, the land would have been treated as an asset in the accounts and the notes would not have recorded the land as being “owned” by Henry. 37.The judge noted the evidence that there had been a change in accounting treatment from the mid-1970s when the accounting profession considered it more appropriate to segregate the treatment of the land and building regarding depreciation policies. There was also evidence that suggested that the notes were probably made on the advice of Ching Hing’s auditors. The judge was of the view that the note would have allayed concerns that the building was erected on land not registered under the name of Ching Hing. It was in those circumstances that he remarked (at paragraph 143) that “the evidential value of this note would not be as high as the contemporaneous events between 1957 and 1965”. Those remarks are, in my view, unexceptionable. 38.Next, the judge concluded that the notes were not an unequivocal acknowledgement of beneficial ownership and did not have the same effect as a declaration of a beneficial interest in a conveyance in that they were equally consistent with Henry being the legal owner of the land on which the building was erected. It was also suggested that in the accounts, the use of the word “registered” reflected legal ownership whereas the use of the word “owned” reflected beneficial ownership. This point was made in the court below by Arnold’s previous counsel which Mr Strachan readily embraced, based on the different manner in which Ching Hing’s interest in Inland Lot No. 1308 was recorded in Ching Hing’s accounts for the period from 1985/1986 to 1989/1990. The accounts refer to “the group’s land and buildings” in respect of Inland Lot No. 1308 as being “registered” in the name of Ching Hing and the executrices of WMS. On this last point, the judge considered that little assistance could be derived from the contrasting treatment given in the notes to the accounts filed in the second half of the 1980s as indicating beneficial ownership rather than legal ownership since ICP and WMS had been dead when those notes first appeared in 1985/86. The judge then concluded that given the circumstances, the weight to be attached to the notes “would not [be] very great when compared with the other evidence pointing against a gift in favour of Henry”. In my view, it was a conclusion that was open to him to reach based on the evidence. 39.It is apparent from paragraphs 142 - 146 of the judgment that the judge had taken note of all the points made in relation to the notes to the accounts. No new points have been made in this court. Putting the matter at its highest, the notes to the accounts were at best equivocal as to the type of ownership being referred to. That is plainly insufficient to get Mr Strachan home in this appeal. 40.In short, Mr Strachan’s challenge to the judge’s conclusions regarding the notes to the accounts was directed at the weight he attached to them. But the weight of evidence is a matter for the judge and unless he can be shown to have gone wrong in law, this court would be slow to interfere. Mr Strachan has not begun to show that the judge erred in law in coming to the conclusions that he did. Conclusion 41.In my view, this appeal falls to be dismissed for the reasons set out above. Additional matters 42.I would briefly mention two other matters.
43.Submissions were made as to the admissibility or otherwise of (1) the statutory declaration dated 13 November 1981; (2) the statement dated 15 March 1982; and (3) the draft statutory declaration dated 14 October 1982 made by ICP and the application of the rule in Shephard v Cartwright [1955] AC 431. The first matter to note is that the judge reached the conclusion that there had been no gift to Henry without taking the statement and statutory declarations into account. That being so, it is unnecessary to the resolution of this appeal to decide the question of admissibility of that evidence and I do not propose to do so.
44.Although the judge addressed the question of a common intention constructive trust in some detail, the issue in the present appeal is whether or not there had been a gift of the property to Henry. It is a factual question which the judge resolved against Henry. The rights as between ICP and Ching Hing were not in issue on this appeal. That being so, for my part, I do not see that the interesting question relating to common intention constructive trust arises. Hon Sakhrani J: 45.I agree.
Mr Benjamin Yu SC and Mr Eugene Fung, instructed by Messrs Lo & Lo, for the Defendant (By Original Action) and the Plaintiff (By Counterclaim) in CACV 183/2003 and the 1st and 2nd Defendants in CACV 184/2003/Respondents Mr Mark Strachan and Ms Jennifer Tsang, instructed by Messrs Robertsons, for the 2nd Defendant (By Counterclaim) in CACV 183/2003 and the Plaintiff in CACV 184/2003/Appellant Appeal by the 2nd Defendant in CACV183/2003 and Plaintiff in CACV184/2003 to Court of Final Appeal. Appeal dismissed. Please refer to the appeal judgment of FAMV26 and 27/2005. |
Cases cited in this judgment
Further hearings and rulings under CACV 183/2003