Chui Wai Fong v. Chui Sun and Another
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HCA 2658/2007 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 2658 OF 2007 ------------------------
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----------------------- J U D G M E N T ----------------------- A. INTRODUCTION 1.This is an unfortunate case concerning a fight between the mother (the plaintiff) and a daughter (the 2nd defendant) over the ownership of a number of public light buses, in particular, when it is common ground that they had had a very close relationship before the dispute arose. 2.The 1st defendant was the father of the plaintiff and the grandfather of the 2nd defendant. He however passed away on 13 January 2011 after the commencement of this action. By an order of this court, it is ordered, among others that, the plaintiff do have leave to proceed her claims against the 1st defendant in the absence of a person representing his estate, provided certain procedures were taken by the plaintiff’s solicitors. These were complied with later. In the circumstances, this action proceeds in the absence of a person representing the 1st defendant’s estate. 3.For convenience, in this judgment, I would call the plaintiff “the mother”, the 2nd defendant “Vicky”, and the 1st defendant “the grandfather”. 4.For the purpose of this judgment, five public light buses are involved, and they respectively bear the following registration marks: JV5700, LD4376, LF9605, LH5054 and LT3927. I will refer to the specific registration mark as a reference to that particular public light bus (“PLB”). 5.Apart from JV5700 (which is registered in the name of the mother’s sister, Chui Wai Lin), the other four PLBs are all registered in Vicky’s name. 6.As summarized by Mr Suen (counsel for the mother) in his opening, the mother’s central case is that:
7.The mother therefore claims against the grandfather and Vicky effectively for (a) declarations of her beneficial interest in these PLBs and that they have been holding all rights, benefits and investments of these PLBs on trust for her, (b) an account and payments by the grandfather and Vicky for all benefits deriving from these PLBs and the investments coming therefrom, (c) an order requiring Vicky to (i) transfer the legal ownership of LF9605 an LT3927 to the mother, and (ii) pay the mother the respective sums of $63,243.83 (as the remaining balance of the proceeds arising from the sale of LD4376) and $85,043.87 (as the balance of the loan made to Vicky for her purchase of LH5054). 8.Vicky of course disagrees. She says effectively she has been owning all the disputed PLBs beneficially, and the mother had only provided her with loans in acquiring these PLBs. She has repaid all these loans. She therefore counterclaims for declarations of ownership of these PLBs. 9.It can immediately be seen that the central dispute in this case is a factual one. 10.Both sides have called a number of witnesses in the trial. But given that the nature of the dispute concerns and relates to the direct dealings between the mother and Vicky, the principal and most important witnesses are clearly the mother and Vicky themselves. B. THE UNDISPUTED FACTS 11.Before I go to the central disputes, it is helpful and important to set out what are the undisputed facts of this case first. They are as follows. 12.In the family, the grandfather had been engaged in buying and selling of PLBs as well as managing them for their operations. 13.Apparently, the registration document of a PLB only allows one person’s name to be registered as owner. Thus, even if a particular PLB is owned by more than one person, only one person’s name would appear as the registered owner. 14.The market value of PLBs (together with their operating licences) had at the material times been generally rising, sometimes even quite rapidly. Thus, the buying and selling of PLBs could generate handsome profits. At the same time, the purchases of PLBs usually involved the making of a down payment with the balance of the purchase price financed through a leasing loan. The operating monthly income of the PLB would generally be sufficient to cover the monthly repayments and the average maintenance cost. The trading of PLBs was usually conducted through a motor trading company, which also apparently provided the financing. 15.At the suggestion of the grandfather, the mother had also participated in the buying and selling of PLBs, with the assistance of the grandfather. She had been able to make profits in doing so. 16.It is common ground that in early 2003, she was the beneficial owner of half of JV5700, although it was registered in the name of her sister, Chui Wai Lin. 17.At that time, Vicky (who is the eldest daughter of the mother) was working at a stall in a wet market selling vegetables. The salary was not high and she had a saving of only about $10,000. 18.LD4376 was purchased on 4 August 2003 at the price of $4.39m, of which $3.8m was financed through a leasing loan. It was registered in the name of Vicky. At the same time, the down payment for the purchase of LD4376 came from the proceeds of sale of JV5700 arising from the mother’s half interest. 19.Vicky later also passed the PLB driving licence test and obtained a PLB driving licence. 20.LF9605 was purchased on 30 October 2003 at the price of $5.13m, of which $4.1m was financed through leasing. Again, LF9605 was registered in Vicky’s name. 21.LH5054 was purchased on 4 February 2004 at the price of $5.49m of which $4.1m was financed through leasing. Vicky borrowed $200,000 from her aunt, Chui Wai Ying for its purchase. LH5054 was registered in Vicky’s name. It is common ground that Vicky in fact owned beneficially LH5054. 22.At the same time, given that the market value of these PLBs had been constantly rising at that time, these PLBs had been subjected to a number of re-financing to raise cash. How these funds were then used are disputed. For now, I would set out the common grounds relating to these re-financing incidents. 23.On 27 April 2004, LD4376 was re-financed and generated a sum of $977,605.07. A cashier order of $977,605.07 drawn by Vicky was paid to the grandfather’s account. 24.On 3 May 2004, (a) LF9605 was re-financed and generated a sum of $639,491.69, and (b) LH5054 was also re-financed and generated a sum of $606,483.96. 25.On 27 October 2004, (a) LD4376 was further re-financed to raise a fund of $467,147.47, and the cheque was made payable to the grandfather, (b) LF9605 was also re-financed again and generated a sum of $466,763.54, and (c) LH5054 was again re-financed to generate a fund of $466,763.54. In other words, on 27 October 2004, a total sum of $1,400,674.55 was raised through the re-financing of these three PLBs. 26.On 2 December 2004, a sum of $250,000 was transferred by the mother to the grandfather. 27.In December 2004, LT3927 was purchased. It was registered in Vicky’s name. It is common ground that the grandfather had half interest in it when this was purchased. It is however disputed in this action whether the other interest was owned by the mother or Vicky at the time of purchase. 28.On 13 September 2006, (a) LD4376 was sold at the price of $5.96m, and (b) LH5054 was sold at the price of $5.59m. 29.On 18 September 2006, Vicky transferred $1m to the mother. 30.On 13 October 2006, a sum of $200,000 was paid to Chui Wai Ying. 31.In around the end of September and early October 2006, the grandfather wanted to sell his half interest in LT3927. 32.The mother and Chui Wai Ying attended the grandfather’s home giving him a Chinese Agreement (“the Chinese Agreement”), which stated that the grandfather and Vicky jointly invested in LT3927, and Vicky purchased the grandfather’s half share in LT3927. This was eventually signed by both the grandfather and Vicky. 33.The mother later made a transfer of $200,000 to the grandfather for Vicky. 34.On 17 October 2006, the grandfather’s solicitors wrote to Vicky demanding payment of the balance of the purchase price for his half share in LT3927. 35.On 6 November 2006, Yu & Associates (representing Vicky) wrote to the grandfather’s solicitors confirming that the grandfather and Vicky jointly invested in LT3927 and Vicky had purchased the grandfather’s interest. 36.On 20 November 2006, Yu & Associates sent a cheque to the grandfather’s solicitors to settle the balance of the purchase price in buying the grandfather’s interest in LT3927. 37.On 16 March 2007, the grandfather’s solicitors wrote to Vicky demanding reimbursement of expenses incurred in relation to LD4376, LH5054 and LF9605. 38.On 31 March 2007, Yu & Associates (representing Vicky) replied to the grandfather’s solicitors. In this letter, it was stated that Vicky was the owner of these PLBs. 39.On 9 May 2007, the grandfather’s solicitors replied and stated that those PLBs were held on trust by Vicky for the benefit of the grandfather, and demanded the return of them to the grandfather. 40.Yu & Associates by their letter dated 18 May 2007 sent to the grandfather’s solicitors again stating on instructions that Vicky was the actual owner of the PLBs. 41.The mother commenced this action in December 2007 against the grandfather and Vicky, claiming ownership of the various PLBs. C. THE PRINCIPAL CASE AND EVIDENCE C1. The mother’s case and evidence 42.The mother gave evidence in support of her case as follows. JV5700 43.The mother’s evidence is that JV5700 was owned by herself and her sister, Chui Wai Lin. She decided to sell it so as to separate her interest in the PLB from that of Chui Wai Lin’s. She had never decided to cease investing in PLBs. 44.It is also the mother’s evidence that she sold her half interest in JV5700 so as to buy and own entirely a PLB, instead of owning only half of JV5700. LD4376 45.The grandfather then helped the mother to identify and purchase LD4376 with the money raised via the selling of JV5700. She used the money so raised as down payment to purchase LD4376, and then used the income to be generated from the operation of LD4376 to cover the finance repayment and maintenance cost. 46.The mother’s evidence in relation to how and why she had however asked Vicky to complete the purchase of LD4376 and register as its owner is as follows. 47.The grandfather was a bad tempered person with little patience, and he always wanted to have things done very quickly and promptly. After the grandfather had identified a new PLB that was worth purchasing (ie LD4376), he demanded the mother to act very quickly to buy it. However, she had to work and could not find time to attend the motor trading company to complete the necessary paperwork and the transaction quickly as demanded. At the same time, given that Vicky was better educated, conversant in English (as she had completed Form 5 study) and had time, and that she also trusted Vicky (as her own daughter), the mother decided to ask Vicky to go to the motor company to sign the documents for her for the purchase of LD4376. That was why Vicky became the registered owner of LD4376. 48.It was also the mother’s evidence in court that she had a conversation with Vicky at the mother’s home (while she was cooking dinner) when she asked Vicky to go to the motor trading company the next day to sign the papers for the mother to purchase LD4376. The mother emphasized that it was understood by them at that time that Vicky was only to hold the PLB as the registered owner for her benefit. That was what actually happened, and Vicky became the registered owner of LD4376 on behalf of the mother. 49.LD4376 was however later sold by Vicky without the mother’s consent in September 2006. Vicky then only gave her $1 million back, and the balance of the proceeds of sale, ie $63,243.80, remains outstanding today. LF9605 50.Subsequently, the grandfather suggested to the mother that he could borrow a loan (the “Financing Loan”) of about $2,400,000 from his friends on her behalf at a monthly interest of $12,000, so that she could purchase two more PLBs. The grandfather also advised her not to fund the purchase by re-financing LD4376 because its price was increasing, and she could raise more money if it was re-financed later. 51.When asked why the incident relating to the Financing Loan was not mentioned in her witness statement, she explained that she thought that a private loan with interest payments was illegal and thus tried not to mention it in her witness statement. 52.Part of the Financing Loan was used by the mother to purchase LF9605 in late October 2003. In relation to Vicky’s allegation that LF9605 belonged to her, the mother explained that this was impossible as she was already helping Vicky with the purchase of LH5054 (see below) and would rather save the remaining money for herself. 53.In relation to the purchase of LF9605, the mother added in her evidence that there was one further reason why she had asked Vicky to be its registered owner. This was because as Vicky already had a business registration certificate, this arrangement could save money to get another certificate. 54.LF9605 was then purchased in October 2003. LH5054 55.LH5054 was bought with part of the Financing Loan in around February 2004. Around that time, Vicky suggested to the mother to let her becoming a true owner of a PLB. As a result, the mother agreed to on-loan part of the Financing Loan to her for the purchase of LH5054. The mother said in her oral evidence that the grandfather would not lend money to Vicky directly because he did not trust that Vicky would be able to repay him, as Vicky had no savings and no stable employment at that time. 56.However, since that Financing Loan was insufficient to cover the down payments for both LF9605 and LH5054[1], Vicky therefore had to borrow a further sum of $200,000 from Chui Wai Ying to purchase LH5054. 57.After the purchase of these two PLBs (LF9605 and LH5054), the mother and Vicky had each contributed $6,000 to the monthly interest payments for the Financing Loan. Vicky would give $6,000 to the mother, who would then pay a total sum of $12,000 to the grandfather. Re-financing of LD4376, LF9605 and LH5054 58.In April 2004, in light of the significant rise of the market values of the PLBs, the grandfather suggested to the mother to re-finance these PLBs to raise funds to repay the Financing Loan. 59.The mother agreed. But since the mother had asked Vicky to handle the re-financing on her behalf, she had no knowledge of the actual amount of funds raised and could only rely on her recollection as to what Vicky had told her. Based on Vicky’s own evidence, the re‑financing of LD4376, LF9605 and LH5054 in April 2004 had generated $977,605.07, $639,491.69 and $606,483.96 respectively. 60.On 27 October 2004, LD4376, LF9605 and LH5054 were further re-financed, generating a total extra fund of $1,400,674.55. From this, $466,763.54 came from LH5054. 61.However, since the money raised by Vicky’s LH5054 on these re-financing was still insufficient to repay Vicky’s part under the Financing Loan, the mother lent her some more money to assist her repayment. As a result, she still owed the mother $555,292.59. 62.Later, during a family gathering among the mother’s siblings, the grandfather told her and her husband that the surplus (after setting of the debts) that belonged to the mother after the re-financing was about $900,000. He then asked how much they wanted back first from this sum. The husband asked for $300,000, and, as a result, the grandfather wrote a cheque of $300,000 to the mother on 8 November 2004. LT3927 63.Shortly thereafter, the grandfather boarded LF9605, which the mother’s husband was there as the driver. The grandfather said to his son-in-law that he wanted to borrow back the $300,000 to purchase a new PLB. However, since the mother and the husband did not want to lend more money to grandfather, but did not know how to reject him, they decided to invest in the purchase of LT3927 with him jointly. 64.So, the mother transferred $250,000 back to the grandfather’s account and paid $50,000 cash to him directly. This sum of $300,000, together with the remaining $600,000 raised from the second re-financing mentioned above, which was kept by grandfather for the mother, made up the mother’s contribution to the down payment of LT3927. Thus, the mother and the grandfather each owned half of LT3927. When the grandfather asked the mother in whose name LT3927 should be registered, the mother again suggested Vicky. 65.After the purchase of LT3927, Poon Wing Suet (“Suet”) (who is the mother’s youngest daughter) asked the mother to also let her own half interest of a PLB. The mother agreed to give Suet her half stake in LT3927, but Suet in return had to be responsible for making monthly payments to contribute to the repair cost of LT3927. The mother said she wanted to treat these payments as contributions to the repair funds, because the operating income the PLB would be sufficient to cover the monthly financing repayments. Suet therefore made monthly payments, initially at $2,500, and subsequently at $3,000, sometimes to the mother and sometimes to Vicky. 66.However, during a family meeting in September 2006 where a quarrel happened, Suet decided to give back all her interest in LT3927 to the mother and waive all the monthly payments that she had already made. 67.In around October 2006, the grandfather wanted to sell his half interest in LT3927 for the sum of $555,292.59. The mother decided to purchase it from him. The original plan was for Vicky to pay $200,000 by cheque to grandfather on the mother’s behalf as Vicky was owing the mother money at that time as mentioned above. However, since the grandfather was not willing to accept Vicky’s cheque because he did not trust her, the mother herself eventually transferred the money directly to the grandfather’s account. The remaining payment of $355,292.59 by Vicky was treated as her repayment of the loan still owed to the mother, which was used to assist Vicky’s repayment of her part of the Financing Loan as mentioned above. 68.Thereafter, the mother owns the entire LT3927, and Vicky owed and still owes her $85,034.87 after netting off the payment Vicky had made (ie, $440,327.46 - $355,292.59)[2]. 69.In around December 2006, the mother and the husband wanted Vicky to report to them about the accounts of the PLBs, and so the mother, accompanied by Hung (her brother), went to Vicky’s place to request for the same. When she made the request, Vicky became agitated, and the mother and Hung returned to the mother’s place. Vicky came up to the mother’s place later and gave her handwritten notes angrily. They were written by Vicky in the mother’s absence, to account for what was still due to the mother under LH5054 and LT3927[3]. C2. Vicky’s case and evidence LD4376 70.Vicky gave evidence that in about 2003, upon the grandfather’s suggestion, she was interested in joining the PLB industry by purchasing a PLB. She however did not have the money to make the down payment. She therefore proposed to the mother to sell the mother’s half interest in JV5700 and lend the money to her. The mother agreed and lent her $1m, which was made through the motor trading company by direct transfer (upon the selling of JV5700 and the purchasing of LD4376). With that loan from the mother and a further loan of $130,000 from the grandfather, she managed to pay for the down payment and acquired LD4376 at $4.93m. 71.On 4 August 2003, Vicky signed the agreement to purchase LD4376. That was why the PLB was registered in her name, as she was the actual owner of it. LF9605 72.In October 2003, the grandfather told Vicky that there was another PLB available at a good price. The grandfather agreed to advance the down payment ($1.03m) to Vicky to purchase LF9605 at $5.13m. The loan was paid directly by the grandfather to the motor trading company. 73.On 30 October 2003, Vicky signed the agreement to purchase LF9605. Again, that was why the PLB was registered in her name as she owned it beneficially. LH5054 74.In early 2004, the grandfather told Vicky that there was another PLB available. Due to the lack of money, Vicky borrowed $200,000 from her aunt Chui Wai Ying, and $1.1m from the grandfather to make up the down payment. In February 2004, she purchased LH5054 at some $5.5m. 75.As mentioned above, there is no dispute that Vicky in fact owned this PLB beneficially. The 1st re-financing of the PLBs in April / May 2004 76.On 27 April 2004, LD4376 was re-financed and Vicky received a cheque of $977,605.07. Vicky then deposited the cheque and prepared a casher’s order for the sum of $977,600 for the grandfather, as partial repayment of the loan owed to him. 77.On 3 May 2004, LF9605 and LH5054 were re-financed. As directed by the grandfather, Vicky used the respective sums of $639,491.69 and $606,483.96 from the re-financing as partial payment to purchase a PLB (LK9580) in the name of the grandfather’s wife (ie, Vicky’s grandmother). This PLB was purchased by the grandfather for the grandmother, and those two sums were then treated as Vicky’s partial repayment of the debt then owed to the grandfather. 78.In summary, the re‑financing of LD4376, LF9605 and LH5054 generated cash in the total sum of $2,223,575.65, which was all used to repay the loan owed to the grandfather by Vicky. The 2nd re‑financing in October 2004 79.On 27 October 2004, LD4376, LF9605 and LH5054 were re‑financed again. Vicky was entitled to receive a total sum of about $1.4m. She then authorized the motor trading company to issue cheques to the grandfather directly, as suggested by the grandfather, so that the grandfather could handle the money for her for possible future investments. 80.Later on one occasion, the grandfather and Vicky made a calculation of the indebtedness between themselves. The grandfather said, and Vicky reluctantly agreed, that after setting off all the debts owed by Vicky to him and the sums he held for Vicky, the grandfather only owed Vicky $930,000. 81.Vicky then directed the grandfather to issue a cheque in the sum of $300,000 payable to the mother, as partial repayment of the $1m loan owed to her. The grandfather did that on 8 November 2004 and the mother deposited the cheque on the same day. LT3927 82.In December 2004, in order to purchase LT3927, Vicky borrowed from the mother another $250,000. A direct transfer of $250,000 was made by the mother to the grandfather (who handled the transaction), as directed by Vicky. Together with Vicky’s money then kept by the grandfather, Vicky successfully purchased half interest in LT3927, while the other half belonged to the grandfather. This was why the PLB was registered in her name, to be owned jointly with the grandfather. Selling of LD4376 and LH5054, and repayment of loans 83.In September, Vicky sold LD4376 and LH5054. On 18 September 2006, Vicky repaid HK$1m to the mother by direct transfer, as full repayment of all the loans owed to mother. 84.On 13 October 2006, Vicky repaid $200,000 to Chui Wai Ying. Buying out the grandfather’s share in LT3927 85.In around the end September 2006, the grandfather agreed to sell his half interest in LT3927 to Vicky at $555,292.59. Vicky prepared the Chinese Agreement[4] which recorded the initial joint ownership and sale. In the meantime, solicitors were instructed to handle the completion of the sale. 86.A deposit of $200,000 was made to the grandfather when the Chinese Agreement was signed. It was made by way of transfer from the mother’s account to grandfather’s account. Vicky explained that she was out of Hong Kong for a long trip and therefore requested the mother and Chui Wai Ying to assist to bring the Chinese Agreement and her cheque (of $200,000) to the grandfather’s home. However, the grandfather refused to accept the cheque but requested a direct transfer of money. Therefore, the mother made the transfer for Vicky. 87.The balance of the purchase price was settled by Vicky through solicitors. The mother admitted this, but alleged that it was a partial repayment of Vicky’s loan owed to her. 88.The last $200,000 owed by Vicky to the mother was fully settled by way of set-off in a family meeting. The set-off was made against the money Vicky had borrowed to help paying Suet’s wedding expenses (which was about $200,000 after deducting money received from relatives and friends as gifts) and supporting the younger brother going to study in Japan (also approximately $200,000)[5]. C3. Assessment of the mother and Vicky’s evidence C3.1 The primary case of the mother and Vicky 89.As I understand from the evidence and the pleadings, the mother’s principal case is thus:
90.Vicky’s primary case as supported by her evidence and pleadings is in gist as follows:
91.As I stated above, the mother and Vicky respectively gave lengthy evidence at trial to support their primary case. They were also subjected to extensive cross-examinations. 92.In my view, both of their oral evidence is largely unreliable. The evidence given by each of them in relation to the essential or central aspects of her primary case is inconsistent, inherently incredible and continued to change materially without any good reasons. Both of them had also been evasive under cross-examination. I will set out some of the notable examples below. C3.2 Finding in relation to LD4376, LH5054 and LF9605 C3.2.1 The mother’s evidence on the essential aspects of her primary case concerning LD4376, LH5054 and LF9605 The purchase of LD4376 93.The mother’s evidence as to why she had asked Vicky to be the registered owner of LD4376 is unreliable and incredible for the following reasons. 94.The mother first gave the reasons for such an arrangement in her witness statement as “當時崔新多次催促本人到車行簽署文件，但由於本人當時每天都要上班，多次均不能安排時間到車行辦理買車手續……我認為她有時間可代我辦理買小巴手續，再加上她是中五畢業有一定的英語水平，可協助處理文件……故本人便要求大女兒潘詠珊相約外公崔新代本人辦理買小巴手續。” [6] 95.At trial, the mother initially repeatedly confirmed that there were only two reasons for her to ask Vicky to sign the document for her to purchase LD4376. They are (a) she was too busy at work; and (b) Vicky knew English[7]. 96.For the reason that she was too busy at work to go to complete the paper work, the mother elaborated her evidence as this: She worked as a tea lady in a Japanese company. Her work hours were from 8:15 am to 5:15 pm from Mondays to Fridays. She said the grandfather requested her to go to the motor company immediately and in any event by noon on the next day[8]. She said the grandfather made that request once[9] in the morning[10]. When she could not think of any other ways, she decided to ask Vicky to go for her. 97.Testing the above reasons, the mother was asked in cross-examination on several possible alternatives of going to complete the sale herself. When viewed as a whole, she gave in my view inherently incredible and conflicting answers as to why all these alternatives were not workable:
98.As seen from the above, the mother’s evidence on her inability to find time to go to complete the purchase of LD4376 is inconsistent on its own, contrary to common sense and largely inherently improbable. She was also very evasive when giving evidence under cross-examination. I find this part of her evidence clearly unreliable and incredible. 99.As to the reasons of Vicky’s better education and English proficiency, the mother evidence is that, since the letters from the Government relating to the licensing of a PLB were printed in English and she could not understand them[24], she therefore needed Vicky to be the registered owner of LD4376, so that Vicky could deal with these letters better. 100.She was then asked by the court why she could not simply ask Vicky to read and explain the letters to her, without the need to ask Vicky to be the registered owner of the PLB. The mother could not give any or any reasonable explanations. 101.Further, later in cross-examination, the mother was reminded that she had previously managed EA9768 and received letters from Government. She was then asked whether those letters from the Government were printed in English only, or in both English and Chinese[25]. She eventually accepted that all those letters were printed in both languages. 102.As the letters from Government were printed in both languages, her reason that Vicky knew English and could read the letters could not stand. She then gave another reason, being that the documents from the motor trading company were in English only. However when further pressed under cross-examination, she was unable to identity what parts of the documents from the motor trading company that were in English only, except the models of the relevant PLBs[26]. The models were however provided in Chinese in the sale and purchase agreements. 103.The mother also gave a further reason at trial for engaging Vicky to handle the purchase procedure for her. She said Vicky had a higher education level[27]. She accepted that this reason was never mentioned in her witness statement[28]. 104.However, it is difficult to understand why a better education had any relationship (and the mother had not explained this) with being a registered owner of a PLB. 105.Lastly, the mother told the court during re-examination that there was in fact a main reason for asking Vicky to become the registered owner of PLBs on her behalf. She said as Vicky always stayed at home and had nothing to do, she therefore wanted to give Vicky something to take care of[29]. This answer prompted the court to ask a series of questions, to which the mother gave answers which were illogical[30]: It was simply not necessary to ask Vicky to become the registered owner for her to take care of the mother’s matters. There is also no reason why the mother did not disclose this “main reason” in her witness statement and examination-in-chief. Further, the “idling at home” story does not sit well with the fact that Vicky had a full time job in the wet market at that time. 106.Furthermore, it was only when the mother was giving oral evidence that she provided for the first time the details of the face to face discussion with Vicky the night before the purchase of LD4376 in asking her to be registered owner of the PLB on behalf of the mother. Initially, there was only a general statement in the witness statement that she requested Vicky to handle the purchase procedure for her. No details were given as to how and where she asked Vicky to do so. 107.The mother gave further evidence at trial that there was a face-to-face conversation at her home when she was preparing the dinner the night before the purchase[31]. She accepted that this was not mentioned in her witness statement[32] although she remembered this incident clearly[33]. No satisfactory explanation was given as to why she did not provide all these details in the witness statement. 108.For the reasons I have set out above, I similarly find this part of the mother’s evidence contrary to common sense and inherently incredible. I further find it unreliable as a lot of the purportedly important evidence was for no good reasons not contained in the witness statement. 109.In my view, as a whole, the mother’s oral evidence on why she had asked Vicky to be the registered owner of LD4376 is unreliable and incredible, and should not accepted. The purchase of LF9605 and LH5054 110.Similar to LD4376, the details of how the mother had asked Vicky to hold on trust for her in relation to the purchase of LF9605 were not mentioned in the mother’s witness statement. Only a brief description was given: “一如以往，由於本人仍需上班，故我亦委託潘詠珊以信託形式代我持有小巴LF9605。” At trial, she was asked for the details[34]. She said the grandfather told her that a few days later the papers could be signed. She then told Vicky that “潘詠珊，你同--幫阿公去簽囉，唔爭在簽埋佢。” 111.For the same reasons I have explained above in relation to the purchase of LD4376, I find this part of the mother’s evidence on why she had asked Vicky to be the registered owner unreliable. 112.Further, in relation to these purchases, certain essential aspects of the mother’s evidence as to how the purchases were financed are also inconsistent. 113.She said in her witness statement[35]:
114.However, her evidence under cross-examination was different from that of the witness statement, and even then, that oral evidence itself also changed twice:[36]
115.In light of this changing nature of the evidence, and her acceptance that she only changed her case after seeing Vicky’s case, it appears to me that the mother is prepared to change her evidence to suit and embellish her case as when it is so needed. This part of her evidence is clearly unreliable. 116.In relation to LH5054, the mother agreed that Vicky had borrowed $200,000 from her aunt Chui Wai Ying. On cross-examination, it was put to her that this fact was difficult to be reconciled with her case of the $2.4m loan, because if the $2.4m was sufficient to purchase LF9605 and LH5054 as she had suggested in her evidence, Vicky would not have to borrow $200,000 from the aunt. 117.Her answers were self-conflicting and also inherently improbable:
118.I also accept Mr Wong’s submissions that, in relation to the last part of her above evidence, it was unlikely that the grandfather would have told Vicky but not the mother about this if $2.4m was insufficient. It is also unlikely that Vicky did not inform the mother about this if she was asked by the grandfather to relay the message, and the mother had asked her directly why she had borrowed $200,000 from her aunt (see her evidence quoted at paragraph 117(1) above). Moreover, and importantly, in the circumstances, it is unclear as to how, in that case, the mother came to know what the grandfather had told Vicky, but not her. 119.The above shows that the mother’s oral evidence as to how the purchases of these two PLBs were financed is inexplicably inconsistent and clearly unreliable. C3.2.2 Vicky’s evidence vis-à-vis essential aspects of her primary case concerning LD4376, LH5054 and LF9605 120.Similarly, material aspects of Vicky’s oral evidence given in support of her primary case in the purchases of these three PLBs also suffer from material inconsistency and incredibility. I will give some main examples as follows. 121.One of the most important aspects of Vicky’s case in relation to the purchase of LD4376 is that she borrowed money from the mother (who sold her half share in JV5700 to lend Vicky the money), and she repaid that later by various payments. However, this part of her case is clearly incredible in light of the following. 122.First,Vicky’s oral evidence on the amount of loan kept changing at trial without good reasons, which in any event is also inconsistent with her pleaded case and what she has said in her witness statement:
123.Vicky’s evidence on borrowing money from the mother to purchase LD4376 is thus highly unreliable. 124.Second,Vicky’s evidenceon the various conversations with the grandfatherandher grandmother duringthe tripto EuropeinOctober 2004andthe re‑financingthereafteris alsoincredible in light of the following:
125.This part of Vicky’s evidence on how to repay the grandfather is therefore again clearly incredible and unreliable. 126.Third,I also agree with Mr Suen that thereisoneaspectin the use of the$1.4 million arising from the second re-financing, which shows that Vicky was not the beneficial owner of all the three PLBs at the time of the second re-financing in October 2004. Accordingto Vicky[49],the grandfather ultimately said she could get back only $930,000. If that was the case, Vicky would have more than sufficient fund to then repay the HK$200,000 loan to Chui Wai Ying immediately. This is particularly so given Vicky’s allegation(at paragraph 31 of her witness statement) that the grandfather told him that the mother was not in urgent need of repayment of the money owed to her. Vicky was unable to explain why she did not repay Chui Wai Ying until much later in October 2006. 127.Thefact that Vicky could not repay Chui Wai Ying the $200,000 even after the re-financing of the PLBs, coupled with a lack of explanation as to why, is (as Mr Suen says, which I agree) more consistent with the mother’s case that the said money belonged to the mother but not hers. As the mothersaid[50],afte rthe second re-financing in October 2004,the mothercouldgetbackaboutHK$900,000, whileVicky still owed her the financing loan in respect ofLH5054inthe sumof HK$440,327.46. 128.Moreover, many other parts of Vicky’scase and evidence are alsofullofinconsistencies. Some notable examples are:
129.For the above reasons, coupled with the evasive way in which Vicky gave evidence in court, in particular under cross-examination, I find Vicky’s evidence on her case regarding LD4376, LF9605 and LH5054 similarly not reliable and cannot be accepted. C3.2.3 Documentary evidence 130.As explained above, I have come to the view that both the mother and Vicky have not been truthful and candid in their evidence about what had happened in relation to the purchases of these subject PLBs. 131.However, after looking at some of the contemporaneous documents adduced in this action, on balance, I find that the mother’s principal claim that LD4376 and LF9605 have been held on trust by Vicky for her and that Vicky owes her $440,327.46 under the purchase of LH5054 is clearly supported by these documents. I would explain why. 132.In the trial, there are two handwritten notes and five typewritten notes that have been relied on by the mother to prove her case. It is the mother’s case that these notes were prepared by Vicky and given to her to give an account of the PLBs’ finances[57]. These type written notes and handwritten notes can be found at trial bundle [E1/461-467]. 133.One of the handwritten notes[58] stated, among others, that “VP” (which corresponds with the initials of Vicky (being Vicky Poon)) owed “F” or “Fong” (which corresponds with the mother’s name Chui Wai Fong) two specific and exact sums of $200,000 and $63,243.85. 134.Insofar as the sum of $63,243.85 is concerned, this is consistent with the mother’s case that is what Vicky should (as trustee holding LD4376) account to her after the sale of LD4376: $63,243.85 is the exact balance of the net proceeds of sale of LD4376 on 14 September 2006[59] after deducting $1m paid by Vicky to the mother on 18 September 2006[60]. 135.At the same time, the sum of $200,000 is the deposit paid by the mother to the grandfather for purchasing his half share in LT3927 on 29 September 2006. 136.This handwritten note is therefore consistent with the mother’s case that, in relation to LD4376, Vicky was holding it on the mother’s behalf and therefore had to account to her how the proceeds of its sale were used. This is thus Vicky’s clear own admission that she had to account to the mother the entire sale proceeds of LD4376 but not (as Vicky’s case says) only the alleged repayment of the loan of $1m (or even the $950,000 which Vicky in her oral evidence (see above) says was a sum agreed between the mother and her by way of a settlement of account made a few weeks before the sale). 137.Similarly, the other handwritten note[61] shows that in relation to LH5054, Vicky owed a specific and exact sum of $440,327.46 to the mother. If Vicky’s case were true, she could not have owed the mother any money at all in respect of LH5054. There was no other basis advanced by Vicky as to how and why such a figure was written on the note. 138.In the premises, this handwritten note is also clearly consistent with the mother’s case in relation to LH5054, but inconsistent with Vicky’s case. 139.These two handwritten notes are of significant evidential value, since they were made contemporaneously at the time before the relationship between the mother and Vicky had turned sour, and most importantly were prepared and written by Vicky herself (as she admitted under cross-examination). 140.Vicky in cross-examination sought to play down the significance of these handwritten notes by saying that they were only drafts and the figures in them were all wrong. Moreover, she said she had never given that to the mother and only put in on a tray at her desk at home at that time. She did not know how and why the mother got hold of them. 141.I do not accept Vicky’s said evidence or explanations. 142.First, she has never sought to explain in the witness statements how these notes came about (as she now sought to say in oral evidence). This failure to respond to these handwritten and typewritten notes earlier is very significant in light of the following:
143.Second and in any event, the explanations Vicky gave to say that the handwritten notes were only drafts and that the figures were all wrong, and she had never given them to the mother are similarly incredible and must be rejected for the following reasons:
144.For these reasons, I find that the handwritten notes were prepared by Vicky and given to the mother. I also find that the two handwritten notes clearly showed that Vicky was (a) accounting to the mother the balance of the sale proceeds of LD4376, and (b) confirming to the mother that she owed the mother $440,327.46 for the purchase of LH5054. 145.The handwritten notes are thus clearly and unequivocally supportive of the mother’s case that LD4376 was held on trust for her by Vicky, and in that respect, she still owes the mother $63,243.85. 146.As I said above, the mother further relies on the five typewritten documents[66] to support her case concerning LD4376, LH5054 and LF9605. These documents set out various calculations concerning these PLBs in relation to the funds raised by the two re-financing of them, and how much Vicky was owing to the mother for LH5054. 147.Similar to the handwritten notes, the mother’s case is that these typewritten documents were prepared and provided by Vicky to the mother to account for the use of money under the LD4376 and LF9605 and how much Vicky was still owing to the mother in respect of Vicky’s purchase of LH5054. It is therefore consistent with and supports the mother’s case under these PLBs. 148.For the same reasons set out in paragraph 142 above, I accept that these typewritten documents were prepared and produced by Vicky and given to the mother. 149.Therefore, I find that the mother’s case that LD4376 and LF9605 were held on trust by Vicky for her, and that Vicky owed her money for Vicky’s purchase of LH5054 are supported by these contemporaneous documents (ie, the typewritten and handwritten notes) prepared by Vicky herself. It must be noted that, if Vicky’s case were true, LF9605 was owned entirely by her and she did not borrow any money from the mother to purchase it, it would not be necessary for her to show to the mother the use of the fund raised by re‑financing it. 150.Mr Wong for Vicky has however submitted that Vicky’s case that she has owned beneficially all the disputed PLBs is similarly supported by a series of solicitors’ letters exchanged between the grandfather’s solicitors and Yu & Associates (for Vicky). See paragraphs 35 to 40 above. This is further underlined (Mr Wong further says) by the common ground that, when instructions were given to Ms Polly Chan (the handling solicitor in Yu & Associates), regarding the grandfather’s demands for payment of maintenance cost of the PLBs and for the return of the PLBs, the mother together with other relatives were also present. Thus, Mr Wong contends that it is clear that Vicky’s case should be preferred and accepted in light of those Yu & Associates’ letters. 151.I do not accept these submissions. 152.The Yu & Associates’ letters must be looked at and understood in these relevant contexts: (a) Yu & Associates were acting for Vicky (not the mother); (b) instructions were obtained from Vicky (not the mother), (c) at the same time, the dispute at that time was between the grandfather and Vicky in relation to the payment of the maintenance cost and the beneficial ownership of LD4376, LH5054 and LF9605, the mother was not a party to the dispute, (d) Vicky was the registered owner of these PLBs, and (e) the mother had by then already fallen out her relationship with the grandfather[67]. 153.Further, the fact that the mother also attended the meeting with Polly Chan is neither here nor there. In particular, it is Mr Wong’s own submissions that the mother’s evidence that she had expressly told Polly Chan that she was the actual owner of these PLBs should be rejected. 154.Once these letters are, and should be so read in light of all these, they cannot be treated as documents of the mother which are contrary to her own case. Therefore, the mere fact that Yu & Associates on Vicky’s instructions confirmed (self-servingly) in writing that Vicky was the actual owner of those PLBs cannot (in my view) be regarded as a piece of unequivocal or clear documentary evidence in support of Vicky’s case as against the mother. They are thus very different from the handwritten and typewritten notes, which are (as I have found above) Vicky’s own documents, and which are contradictory to her own case and supportive of the mother’s case. C3.2.4 Conclusion on LD4376, LF9605 and LH5054 155.For all the above reasons, based on the contemporaneous handwritten and typewritten notes, I conclude and hold that LD4376, LF9605 have been held on trust by Vicky for the benefit of the mother. Further, Vicky has to account to the mother the sum of $63,243.85, being the balance of the sale proceeds after selling LD4376. 156.I also find that and $85,043.87 is owed by Vicky to the mother as the balance of the loan made to her for the purchase of LH5054. As mentioned above, $440,327.46 was acknowledged in the handwritten and typewritten notes to be owed by Vicky to the mother. However, the mother has limited her claim to $85,043.87 in her Re-Amended Statement of Claim. This is based on her case that Vicky had repaid $355,292.59 to the mother when she settled the balance of the purchase price of the grandfather’s half interest LT3927 for the mother (see paragraph 68 above). As would be explained below, I reject that the mother has purchased any interest in LT3927 at all, and that would mean that the mother’s case on Vicky’s said repayment of $355,292.59 also could not stand. However, given that the mother has not claimed alternatively for the sum of $440,327.46, I am only prepared to give judgment in the sum of $85,043.87 as claimed. This is particularly so as the mother has amended the prayers in her Re-Amended Statement of Claim to ask for the repayment of $85,043.87 instead of the originally pleaded $440,327.46 as the balance of the loan advanced to Vicky. I would also repeat my observation at paragraph 204 below. C3.3 Finding in relation to LT3927 C3.3.1 Mother’s evidence vis-à-vis the purchase of LT3927’s first half stake 157.The mother said in her witness statement[68] that after the re‑financing, the grandfather first returned $300,000 to her. Later, the grandfather asked her to lend back to him $300,000. Since she did not want to lend money to him but also did not know how to refuse him, she could only jointly invest PLB with him. Therefore, she transferred $250,000 to the grandfather’s account and paid $50,000 cash to the grandfather. This $300,000 together with $600,000 kept by the grandfather represented her half stake in LT3927. 158.On the issue of ownership of LT3927’s first half, the mother also said at paragraph 29 of her witness statement that she had once agreed to transfer that ownership to her youngest daughter, Suet. She said she had asked Suet to “pay instalment on time” (準時供車) by which she meant (as explained in her oral evidence) to pay for repair fees[69]. 159.According to the mother, a family dispute arose later. Suet then volunteered to give back her interest in LT3927 to the mother, and all the payments she had made were treated as a gift to the mother. 160.Suet filed a witness statement in support of the mother’s case in this respect. It is her evidence that she had made those monthly payments sometimes to the mother and sometimes to Vicky. 161.Then, on the Saturday before the trial began, the mother disclosed a notebook of Suet, which contained a purported contemporaneous record of those monthly payments[70]. This very late evidence was adduced to support the mother’s and Suet’s case mentioned above. 162.Suet gave evidence at trial in support of the mother’s case in this respect. She also gave evidence as to how and why she managed to find the notebook only so close to the trial. 163.Insofar as the mother’s evidence in concerned, I reject it for the following reasons. 164.First, her case on the arrangement of the re-lending of $300,000 to the grandfather (ie $250,000 direct transfer and $50,000 cash) was rather unusual. She was therefore asked why in cross-examination. Her evidence was as follows[71]:
165.This part of her evidence is clearly incredible. It does not accord with any common sense, is inconsistent on its own, and kept changing when she gave evidence under cross-examination. 166.Second, the mother’s evidence is contradicted by the following contemporaneous documents:
167.Insofar as Suet’s evidence is concerned, for reasons I will explain later in this judgment, I also reject entirely Suet’s evidence. 168.For the above reasons, I come to the conclusion that the mother’s case that she owned half of LT3927 when it was first purchased is not credible. C3.3.2 The mother’s evidence as to the purchase of LT3927 second half interest from the grandfather 169.The mother’s pleaded case[83] is that on 4 October 2006, the grandfather’s half stake in LT3927 was bought out in consideration for the sum of $555,292.59. That sum was provided by the mother by way of (a) a deposit of $200,000 paid by the mother; and (b) the balance of $355,292.59 paid by Vicky on behalf of the mother. 170.In her witness statement, the mother said that the grandfather requested her to buy his half stake in LT3927. After discussing with Vicky, she paid the deposit of $200,000 and Vicky settled the balance of $355,292.59 on her behalf.[84] 171.It is common ground that the mother made a transfer of $200,000 from her own account to the grandfather. However, it is clear even from the mother’s own evidence that she was making this transfer only on behalf of Vicky:
172.The mother’s above evidence, in my view, clearly confirms that she did not purchase from the grandfather his half interest in LT3927. It was Vicky who was purchasing it. 173.The fact that it was Vicky who was purchasing this half interest from the grandfather is also supported by:
174.For the above reasons, I have no hesitation in rejecting the mother’s case, and I accept Vicky’s case and find that it was her who purchased the second half interest of LT3927 from the grandfather. 175.Insofar as if the mother is now relying on Vicky’s alleged later agreement to give the mother the interest in LT3927 is concerned, I reject it. This is never the mother’s case whether in her pleadings or in the witness statement filed. Thus, the mother has not mounted a claim based on an agreement. In any event, the evidence on this respect is also unreliable for the same reason that this is, for no good reasons, never pleaded or mentioned in the witness statement. C3.3.3 Conclusion under LT3927 176.In light of my above finding, I hold that LT3927 has been beneficially owned by Vicky. C4. The evidence of a hard disk 177.The mother has in the trial relied on an external hard disk (exhibit P2). 178.It is her case that this external hard disk was previously used by Vicky before she moved out of her home after the dispute between them has arisen. The hard disk contained, among others, soft copies of various calculations supporting the typewritten documents and the mother’s case. The mother sought to rely on the hard disk to support her case that Vicky had been keeping the calculations to account to the mother the use of the various PLBs. 179.The hard disk was only disclosed to Vicky’s side a few days before the trial. The mother gave some explanations as to why she only by then found the disk. 180.Suet and her husband (Cheung Yiu Keung) have also given evidence to explain how the disk was lately found, and how they were unable to open the files within it when first located. It is also the husband’s evidence that he then took the disk to a friendly computer shop, which was eventually fixed. The data was then transferred to a USB, from which the files were opened and viewed by the mother (and her lawyers). 181.Wong Hau Yan (王巧欣), a staff of the computer shop gave evidence to confirm that Suet’s husband had taken the disk to the shop. 182.After hearing these witnesses, I do not think it is reliable to look at the files contained in it purported to be Vicky’s calculations:
183.I therefore do not put any weight to this disk. C5. The other witnesses 184.The mother has also called the following witnesses to give evidence for her case:
185.Without the necessity of going through their evidence in detail (except Suet, which I would deal with later), I do not think any of their evidence adds any significant weight to the mother’s own evidence on her primary case. None of these witnesses were materially directly involved in the disputed parts of the dealings between the mother and Vicky on the purchases of the relevant PLBs. None of them had any direct dealings or knowledge as to how the disputed finances came about or used to purchase the PLBs. None of them had any direct knowledge or dealings with how the funds arising from the PLBs were used. Their evidence is thus at most peripheral to prove the mother’s claim that she owns all the disputed PLBs beneficially. 186.I therefore do not find any of their evidence helpful or useful to assist me in deciding the principal issues in this action between the mother and Vicky. I thus put very little weight to their evidence. Suffice to say that for matters that I have disbelieved the mother in support of her case as set out above, these witnesses evidence would not have added anything to the effect of affecting my said view. 187.Vicky has also called the following witnesses:
188.Similarly, the evidence from these other witnesses is only of marginal (if any) relevance to Vicky’s case. In my view, their evidence does not add any extra or material weight to Vicky’s own evidence. Again, none of them were materially directly involved in the disputed parts of the dealings between the mother and Vicky on the purchases of the relevant PLBs. None of them had any direct dealings or knowledge as to how the disputed part of the finances came about or used to purchase the PLBs. None of them had any direct knowledge or dealings in how the funds arising from the PLBs were used. In other words, again, for matters that I have disbelieved Vicky in support of her case as set out above, these witnesses evidence would not have added anything to the effect of affecting my said view. 189.I therefore also only put very little weight to their evidence. C6. Suet’s evidence 190.As I mentioned above, Suet gave evidence in support of the mother’s case that (a) the mother had given her the mother’s initial half share in LT3927, and (b) for that purpose, she had been paying a monthly sum (initially at $2,500 and later increased to $3,000) sometimes to Vicky and sometimes to the mother as maintenance cost or contribution to the repayment of the monthly instalments. 191.In support of her evidence, Suet produced at the trial a notebook[90]. She said she had at the material time recorded those monthly payments to Vicky. The notebook shows, among others, a schedule of her payments of these sums on a monthly basis between July 2005 and September 2006. 192.In explaining why the notebook (and copies of its relevant pages) was only produced so closed to the trial, Suet gave evidence in court that she only found the notebook just a few days before the trial, after the mother’s lawyers had urged them to look further for any supporting evidence. 193.In her explanations under cross-examination:
194.Her above evidence was demonstrated to be clearly untruthful during cross-examination:
195.In light of the above, it is clear to me that she has made up her evidence as to how she discovered this notebook just before the trial. It is clearly incredible and untruthful. 196.Further, in light of her inability to explain why the notebook contains references to matters that had happened after 2007, and why she could only find this notebook so close to the trial, the court have serious doubt as to whether the references in the notebook written at the back of its cover page and on the first page about the lease-financing information of and her monthly payments made for LT3927 were in fact recorded on the notebook contemporaneously in 2005 and 2006 as alleged by her. In other words, I have serious concerns that these parts of the notebook were only fabricated recently as evidence in support of the mother’s case for the trial. 197.For these reasons, I have no hesitation in rejecting Suet’s evidence as a whole. She is prepared to say things that are clearly not true or incorrect to support the mother’s case. 198.Further, given my observations above at paragraphs 193-196, the court will consider referring the matter (together with the notebook) to the Secretary for Justice for further investigation and determination as to whether Suet or anyone else should be prosecuted for fabricating evidence in support of the trial and for perverting the course of justice, and any other offences as the Secretary for Justice may consider appropriate. D. CONCLUSION 199.For the above reasons, I accept the mother’s claim that she is the beneficial owner of LD4376 and LF9605, but rejected her claim in regard to LT3927. I also accept her claim against Vicky for the payment of the sums of $63,343.83 and $85,043.87. 200.I therefore make the declarations that Vicky has been holding LD4376 and LF9605 on trust for the benefit of the mother. I also order that Vicky shall account to the mother for all the incomes derived from these two PLBs and transfer the legal ownership of LF9605 to the mother. I further order that Vicky should pay the mother the sums of $63,343.83 and $85,043.87 with interest at 1% above the prime rate quoted by HSBC from time to time from the date of this writ to the date of this judgment, and thereafter at judgment rate until payment. 201.I however dismiss the mother’s claim in relation to LT3927. 202.I also find there is nothing to justify granting any reliefs against the grandfather as claimed by the mother. 203.At the same time, for the same reasons, I dismiss Vicky’s counterclaim for declarations, save that I would grant the declaration that she is the beneficial owner of LT3927. I doubt very much she is entitled to the declaration as to LH5054 when there has never been any dispute that she owns it beneficially. I am therefore not prepared to grant that declaration. 204.I must however emphasise that, for the reasons I have set out in detail above, I find most of the material parts of the evidence from the mother and Vicky on how the purchases of these PLBs were financed unreliable, and have not accepted it. In my view, it is obvious that the mother, the grandfather and Vicky had had a lot of financial dealings in relation to the purchases of the various PLBs, and neither of the mother nor Vicky has been fully candid in their evidence on how the funds had come about and how they were used. My conclusion as to the beneficial ownership of the disputed PLBs is principally based on the documentary evidence. My conclusion as to the sums still owed by Vicky to the mother is also based on those typewritten and handwritten notes. These conclusions therefore may not necessarily tally with their respective evidence on the arithmetic of the various alleged flows of sums. These however should not in my view affect my findings on the above fundamental issues of ownership. 205.Similarly, the fact that I have not accepted the mother’s evidence on the reasons why Vicky has become the registered owner under LD4376 and LF9605 does not affect my conclusions on the true beneficial ownership of these two PLBs basing on the documents. There may well be other reasons why the mother had asked Vicky to be the registered owners of these PLBs, which both of them have not told the court. 206.I will now deal with costs. 207.The mother is successful in part of her case against Vicky, but has failed in respect of her claim in relation to LT3927. Given that substantial time has been involved in the preparation and hearing of the claim relating to LT3927, I think it is only fair in all the circumstances that the mother should only have half of her costs in her action against Vicky. The costs should be taxed if not agreed. 208.As the mother has not succeeded in her claim against the grandfather, the grandfather’s estate should have his costs of this action, to be taxed if not agreed. 209.The above costs orders are made as nisi orders. Unless any of the parties applies by summons to vary them, they shall be made absolute 14 days from today. 210.Finally, I thank counsel for their very helpful assistance in this matter.
Mr Jenkin Suen, instructed by Fong Yin Cheung & Co, for the plaintiff The 1st defendant, in person, absent Mr Simon S Wong, instructed by Jal N Karbhari & Co, for the 2nd defendant [1] In her evidence under cross-examination, the mother had been changing her position as to whether it was the grandfather or Vicky who had told her that the Financing Loan was insufficient to cover the down payments for the purchase of LF9605 and LH5054. See: Transcript [E3/745D-747H]. [2] Transcript [E3/656N]. [3] Transcript [E3/670F-672N]. [4] E2/592. [5] See paragraphs 42-42 of Vicky’s first witness statement. [6] At paragraphs 9-10. [7] Transcript [E3/704B-705K]. [8] Transcript [E3/715C-G]. [9] Transcript [E3/715N-P]. [10] Transcript [E3/717M]. [11] Transcript [E3/715R-S]. [12] Transcript [E3/716B-717D]. [13] Transcript [E3/717G, M]. [14] Transcript [E3/752B-753M]. [15] Transcript [E3/719P-720B]. [16] Transcript [E3/719R-V]. [17] Transcript [E3/750D-E]. [18] Transcript [E3/750-751C]. [19] Transcript [E3/751H-M]. [20] Transcript [E3/719R]. [21] Transcript [E3/343K-343P]. [22] At paragraph 9. [23] Transcript [E3/717J-718K]. [24] Transcript [E3/704M-705B]. [25] Transcript [E3/720T-721A]. [26] Transcript [E3/721J-722M]. [27] Transcript [E3/721H]. [28] Transcript [E3/934S-T]. [29] Transcript [E3/814U-815E]. [30] Transcript [E3/816I-818G]. [31] Transcript [E3/728K-729M]. [32] Transcript [E3/735O-Q]. [33] Transcript [E3/737E-I]. [34] Transcript [E3/748-749F]. [35] At paragraphs 11-12. [36] Transcript [E3/724U-736H]. [37] Transcript [E3/724U-725F]. [38] See: E1/312-315. [39] Transcript [E3/726K]. [40] Transcript [E3/727M-Q]. [41] Transcript [E3/727E-I]. [42] Transcript [E3/728A-730H]. [43] Transcript [E3/745E-F]. [44] Transcript [E3/745G-O]. [45] Transcript [E3/745P-745H]. [46] See also Vicky’s written opening at paragraph 7 and the handwritten tablepreparedby Vicky’scounsel for his opening. [47] At paragraphs 31, 34-35. [48] Transcript [E3/1012G-1013H]. [49] Paragraph 30 of her first witness statement. [50] See the mother’s witness statement, paragraphs 22-23. [51] Transcript [E3/875P‑876G]. [52] Transcript [E3/891L-S]. [53] Transcript [E3/909D-910K]. [54] Transcript [E3/910N-U]. [55] Transcript [E3/923B-U]. [56] Transcript [E3/889S-M]. [57] See paragraphs 22 and 40 of the mother’s witness statement. [58] At E1/466. [59] See the official receipt of the sale of LD4376 [E2/616], showing that the net amount received by Vicky after the sale is $1,063,243.85. [60] See the bank transfer slip dated 18 September 2006 [E1/20] whereby Vicky transferred $1m to the mother’s account. [61] E1/467. [62] See paragraphs 23(3) and 26(5) of the Re-Amended Statement of Claim. [63] See E3/1023(paragraph 14) and1063. [64] See mother’s list of documents dated 3 August 2009. [65] E1/466. [66] At E2/461-465. [67] It is common ground that around that time, the grandmother had a serious quarrel with the grandfather and they were engaged in a divorce proceedings. The mother was on the side of the grandmother. By a newspaper announcement, the grandfather even announced that he had severed his father and daughter relationship with the mother since 8 November 2006. [68] At paragraph 38. [69] Transcript [E3/792K-L]. [70] E2/594. [71] Transcript [E3/786J-788V]. [72] Transcript [E3/786N-V]. [73] Transcript [E3/787G]. [74] Transcript [E3/786N-V]. [75] Transcript [E3/787D]. [76] Transcript [E3/787C]. [77] E1/243. [78] Transcript [E3/789T-790E]. [79] See E1/592. [80] Transcript [E3/655B]. [81] Transcript [E3/838K-840D]. [82] E2/502. [83] Paragraph 22 of Re-Amended Statement of Claim. [84] At paragraph 40. [85] Transcript [E3/642F, U, 643E, N and 649O-P]. [86] Transcript [E3/656B-I], [T/806Q-T]. [87] Transcript [E3/649Q-R]. [88] Transcript [E3/653A]. [89] These letters are dated between 17 October 2006 and 20 November 2006. [90] Exhibit “P-6”. [91] See copies at E2/594-2, 594-4 and 594-5. [92] Suet’s evidence in this regard is made on Day 5 of the trial (23 April 2012) beginning at around 2:53pm. | |||||||||||||||||||||
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