Cheung Cho Kam Sindy and Another v. Cheung Yuet Ying Rose
Read the full judgment text of CACV 178/2008 on BabelCite. This Court of Appeal judgment was delivered on 8 December 2009 before Rogers VP, Le Pichon JA and Stone J.
Equity – trust – presumption of advancement – bank accounts – share trading – family dispute – appeal. Civil law – trust – breach of trust – wrongful conversion – whether funds were gifts inter vivos or held on trust. The deceased, Madam Lau Mei-tai, was a shrewd businesswoman who operated a store in Wong Chuk Hang Estate and accumulated considerable wealth largely through share dealing. Towards the end of her life, her health deteriorated, and she arranged for her daughter, the defendant Rose, to help manage her bank accounts, many of which were held solely in the deceased's name but were controlled by the defendant, with some held jointly in their names. The deceased had her bank statements explained to her at the bank when she was able, but in later years and during hospitalisation this was not possible. The trial judge examined the evidence over a five-day trial and concluded that he was not satisfied that the funds or the contents of the safe deposit box were given to Rose as gifts inter vivos, nor that the deceased had approved and consented to the withdrawals Rose made. He found that Rose held the funds on trust for the mother, and to the extent she took them for herself she was in breach of trust. As to the 2nd plaintiff's account, the judge found the mother kept the funds for Stella as the beneficial owner, and Rose had wrongfully converted the sum pleaded to her own use. On appeal, the defendant argued that the trial judge should have applied the presumption of advancement as a starting point. The Court of Appeal held that the presumption of advancement is not a starting point that immediately reverses the burden of proof; it is relevant only when there is no evidence of actual intention, or when the evidence as to actual intention is evenly balanced. Once the trial judge has made firm findings of fact, there is no scope for the presumption. – Whether the trial judge erred in not applying the presumption of advancement – Held: no; the judge made firm findings of fact after careful scrutiny of the evidence, including the defendant's own shifting evidence, so the presumption had no role. – Appeal dismissed – Order that all moneys, securities and assets deposited in bank accounts of the deceased held by the defendant, whether solely or jointly with others, declared to be held on trust for the deceased absolutely – Interim payment of over $5 million to the 1st plaintiff – Interim payment of over $1.5 million to the 2nd plaintiff – Certificate for two counsel granted.
Legal issues: Application of presumption of advancement in finding whether funds were held on trust or gifted
Outcome: Appeal dismissed.
Cited by 12 cases
|
CACV 178/2008 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 178 OF 2008 (ON APPEAL FROM HCA NO. 885 OF 2005) ----------------------
---------------------- Before: Hon Rogers VP, Le Pichon JA and Stone J in Court Date of Hearing: 8 December 2009 Date of Judgment: 8 December 2009 ---------------------- J U D G M E N T ---------------------- Hon Rogers VP: 1.This is an appeal from a judgment of Deputy High Court Judge Muttrie given on 13 July 2007. The order that was made by the judge was that all moneys and securities and assets deposited in bank accounts of the deceased, Madam Lau Mei-tai, which were and are held by the defendant, whether solely or jointly with others, were declared to be held on trust for the deceased absolutely. 2.The judge made other and further orders, including orders for interim payment of a sum in excess of $5 million to the 1st plaintiff, and a sum in excess of $1.5 million to the 2nd plaintiff. I should state at the outset that the 1st and 2nd plaintiffs are sisters of the defendant. There were other siblings who took part in the case but were not parties to the action. There was also a father. 3.The history of the matter is relatively simple, although the judgment is extensive. For the full facts of the case reference can be made to the judgment. In essence, the deceased was the mother of the family. She, by all accounts, must have been a fairly shrewd lady. She operated a store in the Wong Chuk Hang Estate. By dint of her financial acumen - which was not apparently learned at school, but in practice - she managed to accumulate considerable wealth, largely probably by dealing in shares. Towards the end of her life her health was not good. 4.In summary, what the judge held was that the deceased had arranged for the defendant to help her manage her bank accounts. There were a large number of bank accounts. They are set out in paragraph 5 of the Amended Statement of Claim. There was also a deposit box. Many of those bank accounts were held in the name of the deceased solely, but the defendant had control of them. Some of them were held in the name of the deceased and the defendant. One of the interesting points of the evidence is that, while she was able, the deceased used to go to the bank to have her bank statements explained to her. In later years, especially when she was in hospital, that was not possible. 5.The judge carefully examined and considered the evidence that was given at the trial before him that had extended for a period of some five days. He reached firm conclusions. I think I need only cite from paragraph 80 of the judgment, where he said:
6.The judge did not alight upon that finding simply as such, but he had scrutinised the evidence. He had examined in particular the evidence which had been given by Rose, and the way in which it had emerged over the course of time that Rose actually had claimed that the moneys and the contents of the deposit box belonged to her and had been given to her. The judge was not satisfied and, thus, he came to his firm conclusions. His judgment followed accordingly. 7.On this appeal Mr Yip has manfully tried to argue that the judge should have applied the presumption of advancement. He says that the judge should have started with that. But the fact of the matter is that the presumption of advancement is only a presumption which is applied when there are no facts upon which the court can operate which would determine one way or the other where the particular property was intended to be owned. Once the judge has made findings of fact, as has the judge in this case, there is no scope, in my view, for the presumption of advancement. 8.For those simple reasons, in my view this appeal must fail. Hon Le Pichon JA: 9.I agree. Hon Stone J: 10.I entirely agree with the judgment of the Vice President. 11.It seems to me, with respect, that the Appellant has given an wholly erroneous significance to the so-called “presumption of advancement.” It is not a ‘starting point’, as Mr Yip strongly has maintained, which thus immediately reverses the burden of proof. As the Vice President has intimated, the presumption is relevant only when there is no evidence of actual intention, or when the evidence available as to actual intention is evenly balanced. This patently is not the case here. The learned judge considered all the evidence and made his firm findings of fact. In the circumstances I, too, fail to see how the presumption comes into play at all. (Submission re costs) Hon Rogers VP: 12.We have generally adopted the approach that even if people do not ask for it, they will be entitled to a certificate for two counsel into the Order. But we now will make it clear, as very often people forget to ask for it. In this court we think that no case should come to this court unless it merits two counsel.
Mr Samuel Chan & Mr Simon Wong, instructed by Messrs Christopher K Y Wong, for the 1st and 2nd Plaintiffs/Respondents Mr Arthur C H Yip, instructed by Messrs Fung, Law & Ng, for the Defendant/Appellant |
Other judgments that cite this case
Further hearings and rulings under CACV 178/2008