Li Yi Ping v. Ng Mai Ngor
Read the full judgment text of DCCJ 1230/2004 on BabelCite. This District Court judgment.
1. Before her retirement, the Defendant (hereinafter called “D”) worked in a temple in Tsz Wan Shan, Kowloon (hereinafter called “the Temple”) run and managed by Tung Wah Group of Hospitals (hereinafter called “TWGH”). The Temple is open to the public and the Plaintiff (hereinafter called “P”) used to frequent the Temple.
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DCCJ 1230/2004 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO. 1230 OF 2004 -------------------- BETWEEN
-------------------- Coram: Deputy District Judge J. Ko in Court Dates of Hearing: 25th, 26th, 29th, 30th August 2005 & 2nd, 5th & 6th September 2005 Dates of submission of written submission: 3rd & 12th October 2005 Date of Handing Down Judgment: 7th December 2005 ___________________ J U D G M E N T __________________ 1.Before her retirement, the Defendant (hereinafter called “D”) worked in a temple in Tsz Wan Shan, Kowloon (hereinafter called “the Temple”) run and managed by Tung Wah Group of Hospitals (hereinafter called “TWGH”). The Temple is open to the public and the Plaintiff (hereinafter called “P”) used to frequent the Temple. 2.It is P’s case that she came to know D at the Temple in August 1992 and D became her master in Buddhism. Between end of 1992 and end of 2001, P lent a total sum of $489,500 to D at the latter’s requests and on terms. On 19th April 1996, the property known as Block D (No.42 Shung Ling Street, 5th Floor and Roof, Nos.40 and 42 Shung Ling Street, Kowloon (hereinafter called “the Property”) was purchased, partly paid for by part of P’s loans. 3.By this action, P is claiming against D for:
4.Although initially P has also claimed for damages to be assessed as an alternative to her claim for the above declarations. It has now become clear that P has elected to claim for declarations only as no evidence has been adduced on assessment of damages. 5.It is common ground that P has registered the writ herein as a lis pendens against the Property. 6.According to D, P belonged to a group of people who frequently visited and gathered at the Temple since 1980’s (hereinafter called “the Group”). Voluntary donations were made from time to time by members of the Group and others for the purpose of acquiring a place of worship and, thereafter, its running expenses. This has cumulated in the purchase of the Property in 1996. The Group has, since 18th November 1996, been registered under the Societies Ordinance under the name of “Buddhist Bodhi Followers Society”(佛教跟隨菩堤學會) (hereinafter called “the Society”). 7.D denies she is P’s master in Buddhism. It is D’s case that P has made voluntary donations of $130,000 to $135,000 in about 1994 towards the eventual purchase of the Property and $150,000 in about 1996 towards decoration of the Property. D denies such contributions were made in the nature of loans or upon her request. 8.D is counterclaiming in this action for:
The evidence and the issues 9.P herself testified at trial. She further called Chiu Che-ling (趙志玲) (hereinafter called “CHIU”) as her witness. 10.D also testified at trial. She further called Au Siu-tai (歐少提) (hereinafter called “AU”), Lee Shea-hing (李社卿) (hereinafter called “LEE”) and Lo Wing-cheung (盧永錩) (hereinafter called “LO”) as her witnesses. 11.CHIU, AU, LEE and LO are apparently members of the Group and the Society. 12.Despite the number of witnesses called and the voluminous documents adduced, the dispute in this action can be boiled down to the following issues:
Whether P has lent a total sum of $489,500 to D on the terms alleged by P? 13.According to P’s case, she lent a total sum of $489,500 to D at the latter’s request as follows:
14.These loans were said to be made on the following terms which have been agreed:
15.In the ensuring discussion, I shall examine P’s case from the following perspectives:
(A) P’s case as a whole 16.It is noted that P has not been consistent in putting forward her case. 17.In her pre-action letter dated 28th August 2003, P’s then solicitors alleged that:
18.D’s counsel has helpfully analyzed in his written closing submission how the above allegations differ from P’s pleaded case and her evidence in court. 19.First, the allegation that the Society is also a borrower and bears the responsibility to repay the loans is dropped. It is now P’s case that D and D alone was the borrower. P even went so far as to deny any knowledge of the existence of the Society in paragraph 3 of her Reply and Defence to Counterclaim! 20.Secondly, the alleged condition that the loans would be repaid on demand as soon as D or the Society had sufficient money is changed to the condition that the loans would be repaid on demand or as soon as D has sufficient money to repay whichever is the earlier. Based on the first formulation, demand for repayment will only be made when there is sufficient money. However, according to the second formulation, the loans will have to be repaid upon demand whether or not there is sufficient money to repay! 21.Thirdly, the allegation that the loans are secured by the Property and/or D’s assets is dropped altogether in P’s pleadings and testimony. 22.Fourthly, the purpose(s) for which the alleged loans were made is changed from purchase of the Property and its daily operation expenses to:
23.Fifthly, the interest in the Property acquired by P by reason of the loans is changed from residing at a room on the rooftop of the Property to residing in the Property! It is common ground that the “room on the rooftop of the Property” has been demolished pursuant to order(s) of the Building Authority. 24.The said letter was drafted by P’s former legal adviser. Copy of it has been sent to a legislative counselor, the licensing office of the Hong Kong Police and the Inland Revenue Department for the obvious purpose of hoping to initiate some form of investigation against D. In those circumstances, it is only reasonable to assume that P must have obtained legal advice on her case and taken care in setting out her allegations fully and correctly in the said letter for the relevant authorities to follow up and in order not to mislead the authorities. Be that as it may, it is most remarkable that P’s case can change so drastically in a matter of months between the said letter in August 2003 and the writ issued in March 2004! 25.In fact, there is yet another turn in P’s case when she testifies in court. She initially stood by her pleaded case that she would both be entitled to full repayment of the loans and to reside at the Property for life. When she was cross-examined as to why she would still be entitled to stay on at the Property if the loans had been repaid, she changed her story yet again and alleges that the agreement was in fact she is not entitled to stay on at the Property upon full repayment of the loans! 26.All these twists and turns tend to cast doubt on P’s case. This is all the more so as P’s case is mainly based on oral evidence. There is nothing to evidence the alleged loans and the alleged terms. If she cannot be consistent with herself, how can she expect others to believe her? (B) The amounts allegedly lent 27.It is P’s testimony in court that she lent money to P as follows:
Let me now examine each of these alleged loans more closely. (B1) The alleged loans of $130,000 and the $57,000 for purchase of the Property 28.The first alleged loan of $130,000 was dated end of 1992. According to P, D had asked her to lend as much as possible (“盡借”) for purchase of a premises for worshipping purposes. At that time, P had about $600,000 to $700,000 savings. She trusted D and so she lent her $130,000 with the intention of making further monthly contributions thereafter as well as saving some money for her own use. Between end of 1992 to mid-1996, P periodically lent varying amounts of money to D totaling $57,000. 29.To start with, P’s alleged loans of $130,000 and $57,000 are not evidenced by any documentary evidence. Although at one stage in P’s testimony, she seemed to suggest that there might be some form of record for these loans, she eventually agrees that there is no written record and that she just memorized the amounts by heart. Although, according to P, the loans were made in monthly intervals, the amount of each loan varies and ranged from $500 to $7,000. P apparently has difficulty in recounting in court how she has lent a total of $57,000 to D between end of 1992 to mid-1996 – a period of over 3 years! 30.Secondly, it is P’s case that she had only met D on 12th August 1992. So the first alleged loan of $130,000 was apparently made less than 4 months after P had met D. Why was P willing to part with such a significant sum of money? When P was cross-examined on this subject, she agrees that her elder sister Lai Wong-tai (黎旺弟) (hereinafter called “LAI”) had in fact contributed (“夾”) $100,000 odd for the purchase of a premises for worshipping purposes and she wanted to match the amount. LEE and AU have likewise contributed (“夾”) money for that purpose. P claims that she does not know whether the money “contributed” by LAI, LEE and AU were by way of loans or donations but she confirms that she has not heard of them demanding for repayment. This aspect of P’s testimony, read together with her evidence concerning the burning of the list of donors during the ceremony to mark the opening of the Property as a place of worship (dealt with below), tends to suggest that the $130,000 was given to D by way of donation. (B2) The alleged loans of $150,000 and $30,000 for the decoration of the Property and/or furniture 31.It is P’s case that D has asked for the alleged loans of $150,000 and $30,000 for decoration of the Property and/or furniture. 32.P’s case must be viewed against the background that LO has underwritten all the expenses for decoration of the Property and/or furniture. LO’s generosity is confirmed by his donations towards the purchase price of the Property, his further paying the 10% deposit for the purchase, his paying for the stamp duty, legal fees and estate agents charges to facilitate the purchase. All these “donations” from LO have not been challenged. 33.The fact that LO has offered to pay for the decoration of the Property has not been successfully challenged. It is LO’s testimony that he had initially refused to accept the $150,000 from P as he had already underwritten such expenses. Upon P’s insistence, LO accepted $150,000 not in the nature of loan but as P’s donation. 34.P’s testimony on the circumstances of the alleged loan of $30,000 for further decoration and furniture is also suspicious. According to P, D had told her that there was no money left after purchase of the Property and hence a loan was required for further decoration of the Property and furniture. P eventually made the loan on 21st May 1996. 35.However, P herself was apparently one of the account holders of the bank account for the Group at that time. The fact that P was one of the account holders of The Hongkong and Shanghai Banking Corporation Limited savings account no.174-6-015914 is evidenced by the bank statements produced (at Agreed Bundle pp.194-195). It can be noted that a sum of $1,017,000 was withdrawn from this account on 19th April 1996 apparently for the purchase of the Property. The balance after such withdrawal was $77,454.39. In fact the balance of that account did not fall below that figure until the account was closed in February 1997. It would be most risky for D to lie about the account balance since P (as one of the account holders) would be in a position to ascertain the actual balance from the bank. 36.In fact, P’s own testimony has also suggested that she might have contributed the sums of $130,000 and $150,000 in relation to the Property by way of donations (as opposed to loans). According to P, there was a ceremony marking the opening of the Property as a place of worship on 31st August 1996. At one stage of the ceremony and in front of all the people present including guests, a list of donors with the amount donated respectively was recited and then the list burnt as a gesture of offering the donations to the deities. P has confirmed under cross-examination that her name was indeed included in the list of donors recited and the amount attributed to her was $280,000. When she was asked why she did not object to it as she had meant the $280,000 to be loans, she could not give a satisfactory answer! (B3) The alleged loan of $122,500 for purchase of the flat next door to the Property 37.I also find that the alleged circumstances of the making of the loan of $122,500 to be suspicious. According to P, D mentioned to her sometime between July and September 1996 that the Property was too small and needed an extension. D asked P to lend as much as possible (“盡借”) for the purchase of the next door flat. The first sum of $5,000 was lent in August 1996, followed by loans of money ranging from $5,000 to $13,000 to end of 2001, totaling $122,500. 38.There is no record of the money lent over the alleged period of 4-5 years and P, again, has difficulty recounting the timing and the amounts lent in court. 39.P even says in her evidence that she had been asked by D to approach the owner of the next door flat to enquire about the possibility of acquiring her premises. However, the owner of the next door has flatly rejected the idea. Under these circumstances, it is quite amazing that P would still continue to lend to D for 4-5 years for that failed purpose. 40.What is even more amazing is that D would have lent these loans upon the same alleged terms as the previous “loans”. Assuming that D had already promised that P could reside at the Property for life, P should have realized by then that:
41.I find it quite unbelievable that P would continue to make these loans to D over the extended period when:
42.Perhaps, upon realizing the unreasonableness of the above circumstances, P suggests during cross-examination that D had further promised to give her a room as an additional condition for the $122,500 loans. However, this last twist in her testimony is neither pleaded nor mentioned in her witness statement filed herein! (C) The alleged terms of the loans 43.It is P’s case that the loans totaling $489,500 were all made upon the same terms, namely:
44.The inherent weakness of the first alleged term is quite obvious. The alleged basis for P’s loans was that D herself did not have the financial resources to acquire a worshipping hall. If this alleged purpose is fulfilled and the worshiping hall is purchased, D would then unlikely to be able to repay P! 45.I also have much doubt about the second alleged term. P’s testimony, quoting from her witness statement (at Agreed Bundle p.2) which P has adopted, is that:
It is quite difficult to discern from the above statement how an “irrevocable life interest” in the flat to be purchased is granted by D to P. 46.According to P, there had been no further discussion whatsoever concerning the relationship between P’s loans and the flat to be purchased. P has admittedly no idea as to:
The extent of P’s alleged irrevocable life interest in the flat to be purchased was anything but certain and defined. In the circumstances, what exactly was the agreement in terms of the scope or extent of P’s “irrevocable life interest” in the Property? 47.Lastly, it must be remembered that P is claiming both repayment of the loans and a right to reside at the Property for life in this action. Why should P still be entitled to reside at the Property upon full repayment of the loans? When P is confronted with this question during cross-examination, she alleges for the first time that the agreement in fact was that she would no longer be entitled to stay there upon full repayment of the loans! (D) The alleged underlying reason for the loans 48.P intends to explain away all the above weaknesses in her case by alleging a master and disciple relationship between D and P and that she would do whatever the master directs. 49.Both P and CHIU confess in their testimony that D is in fact a living deity by the name of “浮雲鶴世尊”. D has given them the name of “覺前根” and “善煥真” respectively when D became their master. Over the years, D has taught them “心法” and “掌法” or even “妙法” and it has even been pleaded that D could perform miracles in the eyes of P! 50.I find the testimony of P and CHIU concerning their relationship with D not up to scrutiny. 51.First, they say that D had in the past led the Group in public worship at the Temple. D would stand distinctly in front of the Group and led them to chant in public. This aspect of their evidence is inconsistent with their claim that D had, at the same time, asked them to be discreet about D’s identity. D has allegedly forbidden them to call her master in front of others. I also agree with D’s counsel that the fact that D has taken such an outstanding role in public worship is inconsistent with the D’s work as an employee of TWGH. It is common ground that D was at that time an employee of TWGH and had her own daily duties at the Temple to perform which did not include leading worships. 52.Secondly, both P and D allege in court to have undergone some sort of initiation ceremony to become a disciple of D. However, they have both omitted to mention these ceremonies in their witness statements filed herein. 53.Thirdly, if D could really work miracle and that D has taught them “心法” and “掌法”, I find it very strange that neither P nor CHIU can recite any “心法” or demonstrate any “掌法” when they testify in court. This is particularly so as they have apparently been practicing those “心法” and “掌法” many times daily for many years previously! 54.Fourthly, it is common ground that P did ask D to go on a retreat (閉關). It is rather strange for a disciple to ask his/her master to do that. 55.Lastly, CHIU alleges in her testimony that she has celebrated for D in the past the birthday of the living deity “浮雲鶴世尊”. She said that the disciples would even buy birthday cake for the occasion. Strangely enough, she cannot now remember what the birthday date is! 56.The evidence, on the whole, does suggest that every one involved in this case have quite some respect for D at one time or another. In my view, that is quite understandable given the looseness they organized their affairs, such as the pooling of money to purchase the Property in the past and the running the worshipping hall at the Property at present. They need someone to take on a more leading role. In fact, the same can be said of LAI (who held the public purse, so to speak) and LO (who became the chairman of the Society). In my view, the respect D (and CHIU) bestowed on D in the past does not provide adequate justification for the inconsistencies in P’s case. (E) Two essential elements of P’s case 57.In my view, P’s case can be looked at from another perspective. In order for P to succeed, she must establish that:
(E1) Whether the loans were indeed made to D? 58.It is P’s case that the $130,000 and the $57,000 she “lent” to D have been used to purchase the Property. P does not dispute the fact that a significant portion of the purchase money came from the bank account no.174-6-015914 then jointly held by D, LAI and Lam Chew-yang (林朝陽) (see Bundle B194). So P is, in effect, saying that the money in that bank account belonged to D. 59.The money in bank account no.174-6-015914 was in fact transferred from bank account no.174-9-014633 held jointly by LAI, Lam Chew-yang, Leung Yum-ting (梁欽庭). This account was closed on 10th February 1995 and the balance transferred to bank account no.174-6-015914. Bank account no.174-6-015914 was closed on 25th February 1997 and the balance transferred to bank account no.009-2-121797 held by LAI, Lam Chew-yang and CHIU jointly. Subsequently, bank account no.009-2-121797 was also closed and the balance transferred to bank account no.009-9-131674 held by LAI and CHIU jointly and the account is still in existence. 60.Indeed it was put to D during cross-examination that D was/is the beneficiary of all the money deposited in the above bank accounts as well as the other fixed deposits and savings accounts and that the various account holders were/are holding the respective account on trust for D. 61.LAI has all along remained an account holder of the above bank accounts. There is a statutory declaration from LAI (at Bundle B88-94) confirming that the money in the above accounts were all in the nature of donations and now belong to the Society. P does not oppose the said statutory declaration to be admitted as evidence. In fact, P has not seriously challenged its contents either. Indeed, LAI must be a key witness in this case from the point of view of P’s case. She has until recently been responsible for financial affairs such as receiving contributions from others for various purposes. According to P, LAI may even be a witness to some of the “loans” made by P to D. LAI is the elder sister of P. Yet, LAI is not called to testify in court. P cannot give any satisfactory explanation as to why LAI is not called. Having regard to all the circumstances of this case, including those considerations listed in section 49 of the Evidence Ordinance, I am satisfied that I should place full weight to the content of the said statutory declaration. 62.CHIU is currently the other account holder for bank account no.009-9-131674. However, she has not been consistent in her evidence concerning the nature of the money held in the above accounts. 63.In her witness statement filed herein on 22nd November 2004, she alleged that the money belonged to D (see Bundle A9, para.4). In court, she says that the money consist of contributions (“夾錢”) from others including herself for the purchase of the next door flat as well as donations for “香油錢” and “昭道祖先錢”. However, back in August 2003, she asserted in her letter to the Societies Officer (at Bundle B86) that the money in the bank account(s) jointly held be her and others included P’s private old-age pension (“私人養老金”)! 64.Furthermore, the Society has apparently asserted ownership to the money in the above accounts in April 2003 and requested CHIU to transfer them to the Society’s bank account (see Bundle B74-75). This was met with a most evasive reply from CHIU through her solicitors refusing the request (see Bundle B76-77). 65.By reason of the above inconsistencies, one does not even begin to understand what CHIU’s evidence is on the nature of the money in the above bank accounts. 66.On the other hand, it is D’s case that the money put in various bank accounts over the years was donation and belongs to the Group and/or the Society. 67.D’s case is apparently supported by the statutory declarations of LAI, AU (at Bundle B95-100) and LEE (at Bundle B101-106). I have decided to attach full weight to LAI’s statutory declaration. AU and LEE have confirmed the truthfulness of their respective statutory declaration in court and D has not succeeded, in my view, in discrediting them. 68.In any event, I also agree with the Defendant’s counsel’s submission that the way the money was held in the bank accounts over the years is more consistent with a group of people put together some money and have the money put in bank accounts held jointly by people they consider to be trust-worthy. 69.All in all, I am not satisfied with the evidence before me that the money held in any of the bank account at any time belong to D beneficially. 70.Given my above finding, it is unlikely that D would have asked for personal loans from P and then put the loans into bank accounts not beneficially owned by her and apparently not for her own use or purpose. (E2) Whether the Property was beneficially owned by D? 71.Another essential element of P’s case must be that the Property belongs to D beneficially. If the Property does not belong to D, then:
72.P has not challenged the fact that the money for the purchase of the Property came from bank account no.174-6-015914 and LO. Given my above finding that the money then deposited in bank account no.174-6-015914 did not belong to D, it is unlikely that the Property mainly purchased with such money would belong to D. 73.In fact there is other evidence pointing to the fact that D does not beneficially own the Property. 74.It is common ground that when the Property was purchased in 1996, it was initially held in the joint names of D and Lo Chi-wai. Lo Chi-wai is the son of LAI. It is the evidence of D that the decision for D and Lo Chi-wai to jointly hold the Property was made after a ceremony to consult a deity. If D really beneficially owns the Property, there was no reason why D should ask Lo Chi-wai to hold half of her interest for her. Lo Chi-wai is the son of D’s sister. If there was any special reason why Lo Chi-wai should hold half of the Property for D, it is likely that P would know. Furthermore, the legal costs for the purchase as well as a substantial part of the cost of decoration (i.e. other than the $150,000 from P) were apparently donated by LO. 75.It is common ground that Lo Chi-wai had wanted to withdraw from being an owner of the Property in 2001. More importantly, there is also evidence that the Society did take legal advice at about that time on having the Property transferred to the Society (see Bundle B33). According to LO, the plan to transfer the Property to the Society was not adopted for legal and practical reasons (see Bundle A41, para.16). Eventually, Lo Chi-wai transferred his half share of the Property to D for the consideration of $1 (see Bundle B35-44). The legal expenses for the transfer was billed to the Society (see Bundle B45) and paid for by LO. 76.There is then the evidence that the operating expenses for the Property (such as electricity, telephone and water bills) as well as rates were met by money deposited in bank accounts jointly held by members of the Group/Society (see Bundle B199-206). It is also the unchallenged evidence of LO that he had paid for the demolition of the illegal structure at the Property in 2002. 77.Lastly, there is also the evidence that many members of the Group/Society has key to the Property. 78.In my view, all the above evidence are more consistent with D not being the beneficial owner of the Property but merely holding the Property for others. (F) Whether P’s conduct is consistent with P’s case? 79.P’s case may also be tested against her own conduct at the material time. P is very particular about the fact that she has been promised an irrevocable life interest in the Property, in the sense that she may reside there for the whole of her life. This much is clear from P’s testimony quoted above. Yet, her conduct after the acquisition of the Property is not consistent with such contention. 80.If she had a life interest in the Property, one would expect her to stay on the 5/F premises of the Property. However, she had only stayed at an illegal corrugated iron structure on the roof premises of the Property. What’s more, D had apparently allowed other members of the Group/Society (namely, Ko Pik-shan and LAI) to move into the roof premises without consulting P! 81.It is P’s own evidence that D had in the past even forbidden her from entering 5/F premises of the Property where the worshipping hall is situated. 82.What is most telling is the incident in end of 2002 when D allegedly instructed (“吩咐”) P to move out of the roof premises. That happened after the relationship between P and D had broken down in 2001 (see Bundle A4, para.12) and the alleged refusal of D to “repay” $500,000 to P in September 2002. 83.P was apparently very furious and dictated several letters to CHIU for D (see Bundle B64-65). However, P mentioned nothing about her “irrevocable life interest” in these letters! 84.In the circumstances, it is rather unlikely that P had been promised an “irrevocable life interest” from the start as alleged by her. Other considerations regarding P’s claim 85.Much has been said by P regarding D’s alleged promise to “repay” P $500,000 in 2002. The evidence does suggest to me that the “hold-up” of the payment (so to speak) was due to CHIU. In any event, given the earlier incident of attempted “repayment” of $100,000 to Ko Pik-shan by the Group/Society when there is no evidence of any loan from Chi-wai in the first place and the subsequent donation of that sum of $100,000 to charity when Ko Pik-shan and her son refused to accept it, I am not persuaded that the offer to “repay” P $500,000 is evidence of any loans from P to D previously. 86.There is then the incident in end of 2002 when P was asked to vacate the roof of the Property. On the evidence, I am satisfied that the timing of the incident was consistent with the order of the Building Authority to demolish the illegal structure at the Property. In my view, this incident does not advance P’s case at all. 87.P’s counsel has suggested in his written closing submission that much of the inconsistencies in P’s case can be explained by the fact that we are dealing with elderly people in this case. Notwithstanding her age, P appears to be healthy, alert, clear and lucid when she testifies in court. She is able to comprehend and answer the questions put to her by counsel during examination. I cannot detect any signs of frailty in P let alone any lack of reasoning power. Given her performance in court, there is simply no basis for me to doubt her physical and mental fitness in the past. Conclusion on P’s claim 88.For the above reasons, I have serious doubt about P’s case. I find it unlikely that P has “lent” a total of $489,500 to D on the terms alleged by her. On the contrary, I find the evidence as a whole more consistent with D’s case that P has “donated” money towards the purchase of the Property as well as its decoration in the past. D’s counterclaim 89.Counsel for P has submitted in his written closing submission that should the court finds against P in her claim, P is agreeable to vacate the lis pendens. Furthermore, P is also agreeable to the declaratory relief sought by D. 90.D is counterclaiming against P for a declaration that D holds the Property on trust for the Group and/or the Society for the purposes stated in paragraph 4(c)(i) of the Defence and Counterclaim (at Bundle C13). 91.It is worth noting that the declaratory relief sought concerns not just the interests of P and D but some other parties, namely, the Group and the Society. Neither the Group nor the Society is a party to this action. In fact the term “the Group” has never been clearly defined. It is defined in paragraph 2(b) of the Defence and Counterclaim (at Bundle C11) as a group of people who frequently visited and gathered at the Temple since 1980’s. The precise composition of “the Group” is never made clear in the evidence. Indeed, D’s counsel has apparently appreciated the ambiguity when he explains in his written closing submission why the Property was not transferred to the Society back in 2001. 92.Given the fact that neither the Society nor the Group isa party to this action, it is not appropriate to make any declaration affecting their rights in their absence. This is all the more so as the precise composition of “the Group” is unknown! 93.It must also be appreciated that I have so far refrained from making any specifically findings in this judgment about the ownership of the money in the existing bank accounts and the Property. In my view, all these matters (including any declaration of trust) can be more appropriately dealt with amongst those concerned themselves. 94.There is another reason why the declaration sought by D may not be appropriately dealt with in this action. According to paragraph 4(c)(i) of the Defence and Counterclaim, the purpose of the alleged trust in relation to the Property is for use by the Group as a place for the Group, their friends and/or relatives to gather and worship the Buddha and to study and chant Buddhist sutra and to promote Buddhism. I consider it inappropriate to make a declaration of trust in such loose term without hearing the evidence of all those concerned. 95.Lastly, there is D’s counterclaim for an injunction restraining P, whether by herself, her servants or agents or otherwise howsoever, from further publishing or causing to be published P’s claim in terms of the declarations sought or any words of similar effect. 96.According to D’s counsel’s written closing submission, D’s claim in this regard is founded on the registration in the Land Registry of the writ herein indorsed with the statement of claim which include P’s claims of title to the Property. It is D’s case that P’s claims of title to the Property was calculated to disparage and diminish the value of the Property. 97.D’s claim in this regard is apparently based on the tort of malicious falsehood. The essential elements for the tort of malicious falsehood has been summarized by Chu J in Hong Kong Wing On Travel Service Limited v. Hong Thai Citizens Travel Services Limited [2001] 2 HKLRD 481 at 491G-492A as follows:
98.It is not disputed that Din this case bears the burden of proving all these elements: Clerk & Lindsell on Torts, 18thEdition (2000), para.23-09. I agree with P’s counsel that there is nothing in the evidence to show that P registered the lis pendens maliciously. It is P’s evidence that she registered the lis pendens for the purpose of avoiding any disposal of the Property before the dispute in this action is resolved. 99.To start with, according to Gatley on Libel and Slander, 10th Edition (2004), para.20.7:
100.And it is further said in paragraph 20.7 that
101.P’s action in registering the writ as a lis pendens is consistent with her claim in this action. There is really nothing in the evidence to challenge the fact that P had bona fide believed in her claim against D. 102.In the premises, I am not satisfied that D has made out a claim against P on malicious falsehood based on the registration of the lis pendens. Conclusion and orders 103.By reason of the above, I find for D on P’s claim. P’s claim in this action is therefore dismissed. 104.On D’s counterclaim, I grant an injunction directing P to cause the registration of the writ herein against the Property to be vacated within 21 days from the date of handing down of this judgment. 105.On the question of costs, it may be said that both parties have failed in their respective claim against the other and I make an order nisi that there be no order as to the costs of the claim and the costs of the counterclaim. Unless an application has been made to vary such order, such order shall become absolute 14 days after this written decision is handed down.
Mr. Gary Chung instructed by Messrs. Phillip Tsui & Co., assigned by D.L.A, for the Plaintiff. Mr. Lee Tung Ming instructed by Messrs. Au Yeung, Cheng Ho & Tin for Defendant. |
Cases cited in this judgment