Law Yuet Ying v. Law Kwong Chiu
Read the full judgment text of HCA 720/2010 on BabelCite. This High Court CFI judgment was delivered on 16 May 2014.
1. This is a dispute between two siblings of the Law/Lo family (“ Family ”), ie the plaintiff Law Yuet Ying (羅月英, “ Yuet Ying ”) and the defendant Law Kwong Chiu (羅廣潮, “ Kwong Chiu ”).
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HCA 720/2010 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE ACTION NO 720 OF 2010 ____________
_______________ J U D G M E N T _______________ I. INTRODUCTION 1.This is a dispute between two siblings of the Law/Lo family (“Family”), ie the plaintiff Law Yuet Ying (羅月英, “Yuet Ying”) and the defendant Law Kwong Chiu (羅廣潮, “Kwong Chiu”). 2.Law Yat Cheung (羅溫祥, “Father”) and Yip Fu Lin (葉富蓮, “Mother”) had eight children, ie the eldest son Kwong Chiu, the late 2nd son Law Yau Chiu (羅佑潮), the eldest daughter Yuet Ying, the 2nd daughter Law Fung Yee (羅鳳儀, “Fung Yee”), the 3rd son Law Yiu Wing (羅耀榮, “Yiu Wing”), the 4th son Lo Yiu Wah (羅耀華, “Yiu Wah”), the 5th son Lo Yiu Chung (羅耀松, “Yiu Chung”), and the 6th son Lo Yiu Chuen (羅耀荃, “Yiu Chuen”). For easy reference, the seven surviving children are collectively referred to as the “Siblings”. 3.I start with a few words on the key players in the present action. Kwong Chiu was born in Mainland China in 1947. He married Au Oi Ngan (“Au”) in 1974, and they have four daughters. Yuet Ying was born in Hong Kong in 1956. In 1993 she emigrated to France to be married, but was later divorced. She then returned to settle in Hong Kong. Yiu Chuen is married to Lau Chau Mei Queenie (“Lau”). Yiu Wah as co-plaintiff sued the Mother in HCA2401/2009 (“2401 Action”), but such proceedings settled shortly before the trial of the present action. 4.The Mother and Yip Dai Mui (“Yip”) had known each other since childhood and were close to each other. The Mother said Yip had been her neighbour and good friend, and Yip said she is the Mother’s sworn sister (契姐). The Family used to invite Yip to celebrate festivities with them, and Yip frequently visited the Mother at her home where she was bound to run into some Siblings, including Yuet Ying who lived with the Mother until she left for France. II. YUET YING’S CLAIM 5.Yuet Ying claimed she was the registered/beneficial owner of a 14-seater minibus with registration number DD7619 (“DD7619”) that she purchased in 1986. She also established a minibus business called “Wing Cheong Minibus”, and let out DD7619 to Kwong Chiu (with permission for him to sublet to other drivers) at a daily rental ($200 in 1986) for 28 days a month. In/about 1989, she replaced DD4619 with a 16-seater minibus with registration number EF1626 (“Old EF1626”) of which she was also the registered/beneficial owner. 6.In 1990, Yuet Ying raised a hire purchase (“HP”) loan in the sum of $600,000 (“1990 HP Loan”) on the Old EF1626. In 1992 (ie just before Yuet Ying emigrated to France to be married and to invest there), at Kwong Chiu’s request she transferred the legal ownership of the Old EF1626 to him so that as paper owner he would manage and hold it on trust for her during her absence from Hong Kong, and he promised to transfer the legal ownership back to her upon request. Kwong Chiu also agreed to use the rental from the Old EF1626 (which would be adjusted from time to time) to pay the HP instalments (“Intsalments”) and the miscellaneous outgoings/expenses (eg repair/maintenance, vehicle examination and other expenses) (“Expenses”), and to give her any excess rental after such payments (“Excess Rental”). Before 1995 Kwong Chiu seldom gave her any Excess Rental, but after full repayment of the 1990 HP Loan in 1995 he gave her the Excess Rental whenever she returned to Hong Kong. Yuet Ying’s marriage broke down in/about 2006, and she eventually returned to settle in Hong Kong. Although in 2006 Kwong Chiu at Yuet Ying’s request agreed to transfer the legal ownership of the “Minibus” back to her, he failed to pay her any Excess Rental since August 2007 and refused to meet her in July/August 2008 when she returned to Hong Kong. 7.On 18 May 2010, Yuet Ying commenced the present action against Kwong Chiu to claim inter alia for (a) a declaration that she is the sole beneficial owner of “the Minibus with registration number EF1626” and that he held/holds such “Minibus” for her benefit, (b) delivery up of such “Minibus” to her, (c) payment of outstanding rental from August 2007 to July 2009 in the sum of $604,800 (at the monthly rate of $25,200 being $900 per day x 28 days), (d) an account of profits he made from use of such “Minibus” from 1 August 2009 to delivery up thereof and payment of any profits so ascertained, (e) further or alternatively, damages or equitable compensation to be assessed, and (f) all other necessary accounts, inquiries and directions. 8.In the written closing submissions of Mr Lee, counsel for Yuet Ying, it became apparent that Yuet Ying now sought the reliefs in paragraph 7(a)-(c) above, but “[subject] to the above”, she no longer sought the relief in paragraph 7(e) above. It is unclear whether Yuet Ying still maintained her claim for the relief in paragraph 7(d) above, but since it had not been expressly abandoned, I shall assume she still pursued the same. III. INJUNCTION 9.On 19 May 2010, Yuet Ying obtained an ex parte Mareva injunction against Kwong Chiu restraining him from dealing with his assets up to the value of $6,000,000 (“Ex Parte Injunction”). On 28 May 2010, such injunction order was continued until further order save that the value limit was reduced to $3,300,000, and he was free to spend any money for his medical expenses (“Inter Partes Injunction”). IV. KWONG CHIU’S DEFENCE 10.Kwong Chiu claimed that as a young child he started to work at the family business of Wing Cheong Ho (永昌號, “Wing Cheong”)[1] without salary. In 1979, he left Wing Cheong to become a lorry driver for a year to support his wife and children. In/about the early 1980s, the Mother asked him to (and he did) return to help set up Wing Cheong’s business at Workshop No 15A on Ground Floor, Man Lee Industrial Building, Nos 10-14 Kin Chuen Street, Kwai Chung, New Territories (“Man Lee Ppty”), but later he left again to become a minibus driver to support his family. In/about 1996, the Mother/Wing Cheong suggested (and he agreed) to buy a minibus for letting out to him, which resulted in the purchase of DD7619. The down payment was paid by the Mother/Wing Cheong and not Yuet Ying. 11.In 1989, the Mother/Wing Cheong replaced DD7619 with the Old EF1626, and the daily rental increased from $200 to $230. All along Kwong Chiu arranged for payment of the Instalments and the Expenses out of the rental income from DD7619 and the Old EF1626, and through Au gave the Excess Rental to the Mother (and not Yuet Ying) in cash on a weekly basis. 12.Kwong Chiu claimed that in/about 1992 the Mother offered to transfer the Old EF1626 to him and subsidise the down payment (which meant he had to pay the Instalments for the remaining value) on condition that he would (a) maintain the trade name of Wing Cheong and (b) not sell the “Minibus” during her lifetime. He agreed, and the Mother told the Siblings about this at a subsequent family gathering. Upon completion of the legal and financial formalities for the transfer in 1993, Kwong Chiu became the sole registered/beneficial owner of the Old EF1626. The Mother/Wing Cheong subsidised about $500,000 for the down payment. 13.Kwong Chiu averred that on/about 27 August 2007 the Mother signed a deed to the effect inter alia that she had gifted to him the down payment of $512,878 for the Old EF1626, and that all interests in the Old EF1626 belonged to him (“Deed”). Kwong Chiu denied Yuet Ying’s claim. V. WITNESSES 14.Yuet Ying gave evidence and called the Mother and Fung Yee as her witnesses. Although Yuet Ying served the affirmation of a Lo Ping Keung (“Lo”) filed on 18 May 2010, she did not call him to give evidence and his affirmation was not read. Kwong Chiu, Yiu Wah and Yip were the defence witnesses. Koo Tsang Hoi (“Koo”), solicitor/partner of TH Koo & Associates (“THKA”), was subpoenaed by the defence to give evidence. The affirmations and witness statements (except paragraphs 47-52 of Yuet Ying’s affirmation filed on 18 May 2010 (“YY Aff”)) of the various witnesses stood as their evidence-in-chief. 15.This case turns very much on the facts. In assessing witnesses’ credibility, I bear in mind not only their demeanour in court but also the intrinsic value of their evidence upon considering the totality of their evidence against the chronology of events, the documentary evidence and the inferences based on inherent probabilities and/or undisputed facts[2]. 16.Witness evidence in the present action covered events that spanned several decades. I have carefully considered whether certain lapses in evidence might be due to faded memory, but on balance I find Yuet Ying was not a credible/reliable witness. Her veneer of civility hid a quick temper and deep animosity towards Kwong Chiu and Yiu Wah that tainted her objectivity and reliability. There were also inherent inconsistencies within in her own evidence and when viewed against other evidence (which observations also applied to the Mother’s testimony). Yuet Ying’s and the Mother’s explanations over various important matters were improbable and unconvincing, and both of them were not above making attempts to embellish their case. Yuet Ying’s overall evidence was unsatisfactory, and except for the matters that I accept in the analysis below I reject her evidence on the core matters. 17.In my view, Koo was an independent witness, and his evidence was trustworthy and reliable. His evidence contradicted the Mother’s evidence in a material way, which served to diminish her overall credibility. Even upon recognising the Mother’s old age and practical illiteracy[3] and further upon assessing the possibility of faded memory, the Mother’s testimony still gave a strong impression of an astute witness who parried cross-examination with wary caution. I am unable to draw assistance from the illustrative example of a forgetful old lady as witness in Suen Shu Tai v Tam Fung Tai[4] since findings of witness credibility must be case sensitive. 18.In my view, significant events over the years became understandable because of the Mother’s role/attitude both at home and at work. As a businesswoman of her own company and the matriarch of the Family through hard and trying times, the Mother (especially in the early years) ran a tight-fisted operation at Wing Cheong and exercised domineering control at home. Her word/decision carried the day for many years, and the Siblings accepted her strong-willed management of the finances/assets of the Family and Wing Cheong. In my view, even though she was practically illiterate and not too familiar with bank account operations, she had a good head for money. She emphasised she repaid her debts but held debtors accountable, and as apparent in the discussion below she also made investments in landed properties and stocks. 19.There was no doubt that the Mother’s relationship with Kwong Chiu and Yiu Wah had gone sour, and she had lined up her guns with Yuet Ying. The fact that she persistently rejected Kwong Chiu’s case did not make her evidence truthful. In my view, the quality and reliability of her evidence were questionable, and her displeasure with Kwong Chiu and Au had so coloured her overall evidence that (save the parts that I accept) it was unsatisfactory and unreliable. Although Fung Yee’s evidence was less significant, I find on balance she too was a partial witness who decided to help Yuet Ying. The fallibility of the testimony of Yuet Ying and the Mother only served to demonstrate the weaknesses in Fung Yee’s evidence that echoed theirs. 20.On the other hand, I find Kwong Chiu to be an honest/reliable witness on the core matters. Although he was a bit nervous in the witness box, he gave evidence in a straightforward manner and his overall account sat well with the factual matrix and documentary evidence. He was largely unshaken in cross-examination on the core issues. 21.Mr Lee suggested Yiu Wah was argumentative in his evidence, which he read as “an indicia of a dishonest and unreliable witness”. I disagree. Although his evidence reflected some disdain for the Mother with whom he had fallen out, I find on balance it did not corrode his testimony to render it unreliably partial on the core issues. He had worked for many years at Wing Cheong, and demonstrated convincing familiarity and experience with its affairs and operations. I find that none of Mr Lee’s criticisms against the evidence of Kwong Chiu and Yiu Wah detract from their overall veracity. 22.On balance, I find Yip’s evidence fair and reliable. Although she gave evidence at Kwong Chiu’s behest, her testimony had a sense of spontaneity and fair-handedness that reflected honesty and impartiality. I accept that Yip and the Mother used to be close bosom buddies and Yip would often visit the Mother to drink tea and chat with her, which was how Yip acquired knowledge about the Family. But in recent years Yip seldom got in touch with the Mother since her own health had deteriorated and her son had discouraged her due to disputes within the Family. VI. MISCELLANEOUS MATTERS (a) Documents 23.In the 2041 Action, Yiu Wah served a witness statement dated 13 April 2011 (“YW 2041 Stmt”)[5]. On the first day of trial, Mr Cheuk, counsel for Kwong Chiu, produced a copy of Yuet Ying’s witness statement dated 23 February 2011 served in the 2041 Action (“YY 2041 Stmt”), which Kwong Chiu obtained only on 28 August 2013 and immediately disclosed to Yuet Ying’s solicitors on the following day. Despite Mr Lee’s objection to the late discovery, I granted leave for (a) Kwong Chiu to make discovery and disclose the YY 2041 Stmt, and (b) Yuet Ying to amplify her witness evidence if so advised (“Order”). Both counsel agreed that the YW 2041 Stmt and YY 2041 Stmt would be used merely for cross-examination and not as admissible documentary evidence. 24.I reserved my reasons for the Order which I now hand down in this Judgment. There is no dispute that the YY 2041 Stmt is relevant to the disputed issues at trial insofar as it touched upon the Man Lee Ppty and other landed properties[6] and revealed potential inconsistencies with the version given by Yuet Ying in her supplemental witness statement dated 9 October 2012 (“YY 2nd Stmt”). Mr Lee’s essential complaint was the lateness of the discovery of the YY 2041 Stmt, especially when Kwong Chiu’s supplemental witness statement dated 29 November 2012 (“KC 2nd Stmt”) made no mention of the alleged inconsistencies between the YY 2041 Stmt and Yuet Ying’s case in the present action. However, it must be plain and I accept that the YY 2041 Stmt was not a document in Kwong Chiu’s possession, custody or power since it was prepared/served for the 2041 Action to which Kwong Chiu was not a party, and Mr Cheuk explained that Kwong Chiu only obtained the YY 2041 Stmt shortly before trial and then promptly disclosed the same. 25.I am also not persuaded that Yuet Ying would suffer any irreparable prejudice despite the late production of the YY 2041 Stmt. After all, it was Yuet Ying’s own statement which she had verified by statement of truth. She must have full knowledge of her own statement, and she must have known that the ownership of the Man Lee Ppty and other landed properties[7] was in issue in the present action. It was not suggested that Yuet Ying would have any difficulty in dealing with her own statement, and any concern (if at all) could be ameliorated by appropriate case management directions that (a) allowed Yuet Ying to amplify on such matter in her evidence-in-chief and (b) limited the use of the YY 2041 Stmt for cross-examination and not as evidence of the truth of its entire contents. In my view, granting leave for Kwong Chiu to discover/disclose the YY 2041 Stmt was necessary for the just determination of the dispute between the parties. 26.Both counsel agreed that a table of income/expenses from 1992 to 2003 in respect of the Minibus bearing registration number EF1626 be expunged from the trial bundle since it was prepared by Kwong Chiu for the present litigation (and was not a contemporaneous document), and the supporting documents referred to therein were unclear. The parties also agreed on a transcript of a video recording made in respect of a gathering of the members of the Family in August 2009 (“Recording”). (b) Amended Statement of Claim 27.DD7619 was bought in/about 1986 and was replaced by the Old EF1626 in 1989. But the Statement of Claim averred that the Old EF1626 was bought in/about 1986. On the first day of trial, I granted leave for Yuet Ying to amend her Statement of Claim to correct such error. VII. BACKGROUND FACTS (a) Minibus 28.When the 14-seater Mitsubishi minibus DD7619 was purchased in/about 1986, it was registered in Yuet Ying’s name. In/about 1988, the government introduced 16-seater minibuses to replace 14-seater ones, so in/about 1989 a new 16-seater Toyota minibus (ie the Old EF1626) was purchased to replace DD7619. The first registration of the Old EF1626 was on 12 July 1989[8]. The Old EF1626 was registered in Yuet Ying’s name [9] from 28 July 1989 to 30 March 1993[10], and thereafter it was in Kwong Chiu’s name. On 10 March 1993, Kwong Chiu applied for business registration of his sole proprietorship company of “Wing Cheong PLB” (永昌小巴)[11], which commenced business on 15 December 1992. Au joined as partner of Wing Cheong PLB on 6 May 1996[12]. 29.The vehicle licence (kept by the bank if the minibus was subject to HP arrangements) and the passenger service licence (affixed to the minibus) of a public minibus would be issued in the name of the registered owner. When all monies due under the HP arrangements had been fully paid, the hirer (who would be the registered owner of the minibus) would be able to collect the vehicle licence and other relevant documents of the minibus under HP from the bank[13]. The vehicle licence had to be renewed annually, but the passenger service licence would be renewed every two years[14], and the bank would notify the hirer to renew such licences at the Transport Department. 30.In 2004, pursuant to the government incentive scheme to encourage owners of diesel minibuses to replace their vehicles with ones that ran on liquefied petroleum gas (石油氣, “LPG”), Kwong Chiu replaced the Old EF1626 with a new 16-seater LPG minibus (“New EF1626”) but retained the vehicle registration number EF1626. This is evident from a comparison of the certificates of particulars of vehicle for the Old EF1626 and New EF1626 below[15]:
31.There is no dispute that the value of a public minibus comprised the value of the vehicle itself and the value of its passenger service licence, and the latter was more valuable than the former. Yuet Ying’s claim in the present action was for delivery up of the “Minibus” with registration number EF1626 together with the vehicle and passenger service licences. For the sake of convenience, “Minibus” in this Judgment refers to DD7619, the Old EF1626 or the New EF1626, whichever would be appropriate for the particular time under discussion. (b) Family 32.The Father came to Hong Kong in the 1950s. Since about 1952 he set up a metal recycling business, ie Wing Cheong. The Mother came to Hong Kong in 1953, and she also worked at Wing Cheong. In/about 1965, their home was swept away by floods, and the Father passed away. The Family fell on hard times and went into debt. The Mother took control and became the owner of Wing Cheong. The older children had to help out at Wing Cheong. The Mother was frugal, and brought up the Siblings by dint of hard work in carrying on the business of Wing Cheong. 33.The Family used to live and Wing Cheong used to carry on business at Pak Tin Par Village (白田背村), but had to move out upon land resumption by the Mass Transit Railway. In about 1979/1980, the Family moved to DD454 Lots 326 (Pt) & 335sc and DD455 Lots 32, 33, 34 and 35, Wo Yi Hop Village, Tsuen Wan, New Territories (城門道和宜合村455地段, “Wo Yi Hop Ppty”), and Wing Cheong carried on business there. After the Man Lee Ppty was purchased in 1984, Wing Cheong moved its operations to the Man Lee Ppty, and the Wo Yi Hop Ppty was used as a warehouse. It also remained as the Mother’s residence. VIII. YUET YING’S SOURCE OF FUNDS 34.Yuet Ying claimed she was the registered/beneficial owner of DD7619. The cash price of DD7619 bought in/about 1986 was $600,000 to $700,000 (“DD7619 Cash Price”). Yuet Ying claimed she (and not the Mother) paid the down payment of $180,000 (“DD7619 Down Payment”) with her own monies, and the balance was settled by a HP loan by Dao Heng Bank Limited (“Dao Heng”). On the other hand, Kwong Chiu claimed that DD7619 was purchased and the DD7619 Down Payment was paid by the Mother/Wing Cheong even though (a) the Mother was only familiar with waste recycle business, (b) she was practically illiterate, and (c) DD7619 was registered in Yuet Ying’s name. 35.There was vigorous debate as to whether Yuet Ying could have afforded to pay the DD7619 Down Payment. Yuet Ying claimed her funds were (a) salary income from working at Wing Cheong, (b) investment income from buying/selling properties, (c) investment income from buying/selling stocks, and (d) profit income from her own business of buying and exporting metal products to factories in Mainland China (“Export Business”). She alleged that at the material time she had savings of about $100,000-$200,000. (a) Salary income from Wing Cheong 36.I first turn to the circumstances of the Family and Wing Cheong in the 1970s, which were also relevant to Kwong Chiu’s explanation as to why he (as a minibus driver) rented DD7619. 37.Kwong Chiu started working at Wing Cheong without salary when he was a nine year old Primary 2 student. He delivered lunch for Wing Cheong’s workers at Pak Tin Par Village. Later, he helped the Father collect metal waste from factories. When the Father passed away, he worked full-time at Wing Cheong and looked after the other Siblings. 38.Kwong Chiu married in 1974 and moved out of the family home in 1979 with Au and their three daughters. He asked the Mother for a salary several times, but the Mother always put him off. In the early 1980s, he had a dispute with the Mother who refused his request for salary (as he had to support a large family) without reason, and he left Wing Cheong to work as a truck/lorry driver for about a year (probably in 1982-1983). 39.When the Man Lee Ppty was purchased in 1984, the Mother invited Kwong Chiu back to help “set up” (成立) the Wing Cheong factory (known by the Family as “收買舖”) there, and she promised to pay him a monthly salary of $2,000-$3,000, but ultimately she only gave him some pocket money on an irregular basis. After about a year, Kwong Chiu had a dispute with the Mother over the non-payment of salary, and he left Wing Cheong (probably in late 1984 or 1985) to become a minibus driver. 40.When Kwong Chiu gave evidence, there was some confusion over the timing of the events in paragraphs 38-39 above, but he was firm that there were two occasions of dispute with the Mother, and eventually the chronology of events became clear when cross-referenced to the purchase of the Man Lee Ppty. The slight confusion did not reflect any unreliability, and I accept Kwong Chiu’s case as set out in paragraphs 38-39 above. 41.In my view, the Wing Cheong factory at the Man Lee Ppty was a small Family-run waste recycle shop, and the Siblings working there were engaged in different tasks. Mr Lee cross-examined Kwong Chiu on the meaning of “成立” and suggested he was evasive in his answers. I disagree. Kwong Chiu frankly accepted that the Wing Cheong factory had started operation at the Man Lee Ppty by the time he returned to work for Wing Cheong. I find on balance that the Mother wished to harness Kwong Chiu’s labour and experience, so she invited him back to help get the family business going at the new factory premises. In my view, Kwong Chiu helped to establish the business at the Man Lee Ppty by filling the manpower shortage and carrying on the daily operations. 42.The Mother claimed (and Kwong Chiu denied) she paid salary to Kwong Chiu when he worked for Wing Cheong, and further complained that he often gambled and accumulated debts, and he even fled from home after stealing $4,000 from Wing Cheong. On balance, I reject such assertions. The Mother would not have invited Kwong Chiu back to Wing Cheong if he had such bad habits and particularly if he had stolen Wing Cheong’s monies. 43.Yiu Wah claimed (and I accept) that in 1973 he quit school and joined Wing Cheong. In 1980/1981 he was paid $40 a day (but the Mother saved part of it for return to him when he got married or when he started his own business), which increased to $100 in 1983-1984 (when he started to drive a truck to deliver/collect waste materials) and to $120 in 1985-1986. On average he worked 20-26 days a month. 44.As said, the Mother took charge of Wing Cheong and the Family after the Father died. To the Siblings who lived and worked together, the Mother was consonant with Wing Cheong, and Wing Cheong was family (屋企). In my view, the Mother was tight-fisted and autocratic in managing Wing Cheong and her household. This is not meant as a criticism for she had to struggle through difficult times. It was simply the way she was, and the Siblings would not question her. On balance I find neither Kwong Chiu nor (until 1980/1981) Yiu Wah received any salary at Wing Cheong, and the pocket monies they received were barely sufficient for their expenses. 45.As for the other Siblings, Kwong Chiu said the Mother would separately deal with each Sibling who worked at Wing Cheong. He was not quite sure which of them had salary and which did not. He believed Yiu Wing had salary because he had seen the Mother give money to him and told him it was his salary. Sometimes the Mother would take money out of the till at the shop and give it to a Sibling to buy food, which he regarded as pocket money and not salary. Kwong Chiu never actually saw the Mother pay salary to Yuet Ying, and he did not hear her expressly say that she did not pay salary to Yuet Ying. But sometimes the Mother would say that Yuet Ying needed money and that she had given her some. He also knew Yuet Ying would attend the Wing Cheong shop to get money for lunch, and he regarded that as pocket money. 46.Yiu Wah also said he had not actually seen the Mother pay salary to the other Siblings, but she would talk to him and he would talk to the other Siblings so he had a rough idea how much they made. He confirmed that prior to 1980 none of the Siblings who worked at Wing Cheong (including Yuet Ying) received any salary. They lived at home and the Mother would buy clothes for them. Yiu Wah learned from the Mother that Yuet Ying did not receive any salary in the 1970s. He knew (but did not actually witness) that since 1973 the Mother would give Yuet Ying some pocket money, but it would not be much. 47.Kwong Chiu had no idea what work the Mother delegated to Yuet Ying, but Yiu Wah said Yuet Ying’s work (which comprised buying food for the Family after yum cha in the morning) was not as hard as his, so her pocket money would at best be similar to but probably less than his salary. It would probably be sufficient for her to buy some sweets and a Coke when she was small and to watch a movie or buy some underwear or pretty shoes/clothes when she got older. 48.In my view, although Kwong Chiu and Yiu Wah did not personally witness actual payments of money by the Mother to Yuet Ying, findings of fact do not necessarily turn on the fortuity of having witness(es) who eyeballed events and/or incidents. Given the Mother’s control over Wing Cheong, the confined living/working environment of the Siblings, the overall credibility of Kwong Chiu and Yiu Wah, and the fallacies in the evidence of Yuet Ying and the Mother as discussed below, Kwong Chiu’s and Yiu Wah’s evidence in paragraphs 43-47 above had a sense of reality. In those early years, Yiu Wah was closer to the Mother and the other Siblings than Kwong Chiu who had disputes with the Mother and had left Wing Cheong twice, so Yiu Wah was more knowledgeable than Kwong Chiu as to what the other Siblings made. 49.Mr Lee suggested that on the basis of Yiu Wah’s evidence that Yuet Ying’s pocket money would be similar to (but ignoring his evidence it might be less than) his salary, she would have received $110,400 to $143,000 by 1986. But it would still be less than the DD7619 Down Payment of $180,000, and Mr Lee’s suggestion also ignored Yiu Wah’s evidence that Yuet Ying would have spent her pocket money[16]. 50.I accept on balance Yiu Wah’s evidence that even if Yuet Ying received any salary (which he disagreed), it would not be much since the Mother was too frugal to give them any money that exceeded their daily expenditure. Mr Lee questioned why Yiu Wah would refer to Yuet Ying’s “salary” in his supplemental witness statement dated 29 November 2012 (“YW 2nd Stmt”) when he claimed she only received pocket money, but in my view there was no inconsistency since such reference was made under the umbrella of Yiu Wah’s statement that “[he]曾獲 [the Mother] 告知，[Yuet Ying] 在1970年代任職 [Wing Cheong]時並不是受薪的 …… 因此 [Yiu Wah] 確然地相信，最起碼在1980年前，[Yuet Ying] 就其薪金的指稱乃不真實。無論如何，就算 [Yuet Ying] 有獲發薪金，該金額亦不會多 ……” 51.Whilst I do not need to rely on Yip’s knowledge that by 1986 Yuet Ying was still working at Wing Cheong and did not have enough money to purchase DD7619, it did not mean I find such evidence unreliable. The fact that Yip did not chat with Yuet Ying when they met did not mean Yip had no idea about the Family’s circumstances[17]. 52.Turning to Yuet Ying’s evidence, she said under cross-examination that in the 1970s she gave up her studies in her teens to work full-time at Wing Cheong, but in re-examination she said she started to work in 1965 when she was nine to ten years old. She admitted under cross-examination she had no salary in the first two to three years, but since 1971 the Mother paid her a monthly salary of $1,000 with annual increase of $200-$300 per month, so her monthly salary was $3,000-$4,000 by 1986. But in re-examination she said she received salary every year she worked at Wing Cheong, and her monthly expenses were merely $200-$300 since she lived with the Mother. By 1992, her expenditure had increased but so did her salary. She continued to work at Wing Cheong and receive salary until 1992, and thereafter she left for France to be married. 53.The Mother gave evidence that Yuet Ying started to work without salary at Wing Cheong in 1971 when she was 15 years old, and she started to give Yuet Ying $40 a day in early 1980 as “pocket money” because she was hardworking and familiar with bank account operations. The Mother agreed there was an annual increase of $200 a month, and she might pay a bit more if she made a profit or Yuet Ying’s performance was good. The Mother claimed that by 1992 (ie when Yuet Ying was about to emigrate to France) Yuet Ying was paid about $5,000 a month, but she also agreed that in/about 1986, ie being the middle of the period from 1980 (when the Mother started to pay salary to Yuet Ying) to 1992 (when Yuet Ying was about to emigrate to France), Yuet Ying received about $1,200 a month. 54.Plainly, Yuet Ying’s own evidence was inherently inconsistent and also contradicted by the Mother’s testimony, and the latter in fact lent weight to Yiu Wah’s evidence that none of the Siblings received any salary before 1980. Even if one would ignore usual personal expenditure by a teenager, receipt of $40 a day or $1,200 a month from 1980 to 1986 by Yuet Ying (on the Mother’s evidence) would not have generated sufficient savings to pay the DD7619 Down Payment in 1986. The Mother tried to overcome this by claiming Yuet Ying was good at other investment/business, but as seen below I reject such suggestion. 55.On balance, I reject (a) the Mother’s claim that the reason why Yuet Ying quitted school in her teens to work at Wing Cheong was because Kwong Chiu was a lazy ne’er-do-well, (b) Yuet Ying’s claim that she earned $3,000-$4,000 a month in 1986 (which was different from the Mother’s claim of either $1,200 or $5,000 a month), and (c) Mr Lee’s suggestion that the Mother possibly got the dates/years wrong. I find their evidence unconvincing and unreliable. 56.I bear in mind the Family was not well-to-do in the 1970s, and indeed went into debt after the Father passed away. The Mother was tight-fisted, frugal and hardworking, as she had to be, and the Siblings one by one had to quit school to help out at Wing Cheong. The Mother ran a tight ship at home/work, and the Mother/Wing Cheong gradually accumulated some wealth to acquire some landed properties and DD7619 in the 1980s. I further find on balance that (a) Yuet Ying’s workload was not as heavy as her brothers’, (b) the Mother all along gave her pocket money (and not salary), and (c) any savings she might have made after personal expenditure would not have been substantial, and in any event they were insufficient for the DD7619 Down Payment. (b) Income from property investment 57.Yuet Ying and Fung Yee claimed they would discuss about investments from time to time, and since 1983 they (sometimes jointly) invested in landed properties. The Mother claimed Yuet Ying was good at investment, and she already invested in landed properties since the 1980s when she was working for Wing Cheong. 58.Yuet Ying referred to investments in three properties, ie (a) the Man Lee Ppty, (b) Flat C on 17/F of Tower 11, Tsuen King Garden Phase 2, 78 Tsuen King Circuit, Tsuen Wan, New Territories (“Tsuen King Ppty”) and (c) Workshop No A and Unit B on G/F, Wing Hong Factory Building, Nos 18-26 Kwai Fung Crescent, Kwai Chung, New Territories (“Wing Hong A and Wing Hong B”, collectively “Wing Hong Ppty”) to suggest that she was financially able to pay the DD7619 Down Payment. I will deal with these three properties in turn. 59.Man Lee Ppty On 2 July 1984, the Man Lee Ppty was purchased in the names of Yuet Ying and Yiu Wah as tenants in common for $112,000 with a bank mortgage. Yuet Ying in the YY Aff claimed she and Yiu Wah each “have 50% interest in [the Man Lee Ppty]” and in the YY 2nd Stmt she claimed they purchased the Man Lee Ppty. 60.The YY Aff and/or YY 2nd Stmt did not say it was the Mother who beneficially owned the Man Lee Ppty. But Yuet Ying was constrained to admit in evidence the Mother/Wing Cheong paid the down payment for and actually owned the Man Lee Ppty. I reject Yuet Ying’s explanation that she forgot to mention this when her lawyers asked her what properties she held. After all, Yuet Ying knew the YY Aff was made with a view to demonstrate that she personally had assets to support her undertaking as to damages for the Ex Parte Injunction[18], and she must have been advised of the duty of full and frank disclosure. As for the YY 2nd Stmt, Yuet Ying admittedly knew she was asked to provide information to establish her (and not the Mother’s) financial ability to acquire DD7619, and she must have been aware such statement was verified by statement of truth. Further, Yuet Ying’s suggestion that she forgot about the YY 2041 Stmt was unconvincing[19]. 61.In my view, Yuet Ying confessed to the Mother’s/Wing Cheong’s beneficial ownership of the Man Lee Property because her own YY 2041 Stmt stated the Mother bought (and paid the down payment for) the Man Lee Ppty for inter alia Wing Cheong’s business expansion, and emphasised that the fact Yuet Ying was one of the registered co-owners did not mean the Mother gifted the Man Lee Ppty to her. 62.The Mother confirmed that in 1984 she paid the down payment for the purchase of the Man Lee Ppty, but such property was registered in the names of Yuet Ying and Yiu Wah because she was too old to hold the requisite business licences for Wing Cheong. Yiu Wah added that he paid the mortgage instalments for the Man Lee Ppty because he also used such property for his own business. 63.Tsuen King Ppty On 23 September 1988, the Tsuen King Ppty was purchased in the name of Yuet Ying for $473,300 with a bank mortgage. Yuet Ying in the YY 2nd Stmt claimed to have paid the down payment of $141,900 and stamp duty and legal fees of $11,177.75, and to have sold such property “for a profit of about HK$766,000” in 2004. She even gave graphic evidence of the estate agent giving her a cheque for such “profit”. But when confronted with the land search records that showed it was in fact the bank that sold the Tsuen King Ppty on 3 July 2004 for $1,240,000 under their mortgagee’s power of sale, Yuet Ying was constrained to accept that the proceeds from such mortgagee sale (and not her sale) were used for repayment of the outstanding indebtedness due to the bank. This showed Yuet Ying was not above embellishing her evidence to bolster her case. 64.But Yuet Ying blamed the bank for failing to notify her of (a) her own default in payment and/or (b) their repossession of the Tsuen King Ppty until it was too late. She claimed the property was let and the tenant would deposit the rent into her sole-name bank account for payment of the mortgage instalments. But she admittedly knew (i) she was obliged to make timely mortgage instalment payments without any bank reminder, and (ii) there were problems in collecting rent from the tenant. So if (as she claimed) she was not financially strained, she could/should have made arrangements to ensure timely payment of the mortgage instalments. At first, she claimed she did not arrange for anyone to help, but later said that before she left for France she made arrangements with her sister-in-law to oversee the property. 65.On balance, I do not accept Yuet Ying’s testimony that when her sister-in-law informed her of her default it was already too late and the Tsuen King Ppty had been sold by auction. After her initial default in making payment to the bank, and bearing in mind the Tsuen King Ppty was then occupied, time would be required for the bank to proceed with the mortgagee action, to repossess the property and to sell the property by auction, so I am not convinced that Yuet Ying’s sister-in-law had no time to inform her to take necessary remedial action. In my view, Yuet Ying tailored her case when confronted with the mortgagee sale by the bank. I also fail to see the relevance of Re To Ch Ping[20] cited by Mr Lee. 66.Further, since Yuet Ying asserted that from 1993 to 2005 she returned to Hong Kong almost every year in July/August to collect the annual Excess Rental of about $80,000-$160,000[21], her inability to make timely mortgage instalment payments was difficult to understand. Indeed, her failure to make such payments did not reflect well on her allegation that she received the Excess Rental from Kwong Chiu from 1993 to 2005. I will return to this topic below. 67.Yuet Ying could not remember how much she owed the bank, but I do not accept that upon the sale of the Tsuen King Ppty in 2004 she received a cheque for the surplus proceeds from the estate agent. At best, she would have received surplus proceeds (if any) from the mortgagee bank. When pressed, Yuet Ying shied from her earlier stance that she made a profit of $766,000 and merely claimed she received a “sum of money”. In all, I am not confident of her veracity given the inconsistencies in her overall testimony. I find on balance it was the Mother/Wing Cheong (as she admitted and as Yiu Wah said) who paid the down payment for the Tsuen King Ppty. 68.Mr Lee asked me to ignore the sale of the Tsuen King Ppty in 2004 and concentrate on Yuet Ying’s financial means in 1986, but at the same time he urged me to consider Yiu Wah’s evidence in respect of the Mother’s distribution of properties/assets in 1992[22] to conclude that Yuet Ying ought not to be disbelieved. But I cannot ignore the sale of the Tsuen King Ppty since Yuet Ying relied on the profits from such sale as evidence of her financial strength. In my view, the totality of the evidence failed to demonstrate any substantial financial ability on the part of Yuet Ying in 1986. I will deal with the events in 1992 below, but suffice to state here they do not assist Yuet Ying. 69.Wing Hong Ppty On 23 August 1990, the Wing Hong Ppty was purchased in the names of Yiu Wing, Yiu Wah, Yiu Chung, Yuet Ying and Yiu Chuen as tenants in common for $1,650,000 with a bank mortgage. On 9 July 1990, Yiu Chung granted a general power of attorney in favour of Fung Yee. On 8 August 2003, Yuet Ying (who had left for France) gave an irrevocable power of attorney in Lau’s favour. On 20 November 2003, the bank mortgage was discharged, and Yuet Ying and Yiu Chung sold the 1/5 shares in their names in Wing Hong A and Wing Hong B respectively to Lau and Yiu Chuen for $360,000 and $300,000. When Yuet Ying gave evidence, she confirmed the Wing Hong Ppty was purchased and paid for by the Mother. The Mother also said she bought the Wing Hong Ppty even though it was in Yuet Ying’s name. 70.Summary The above evidence went a long way to show that as at 1986 Yuet Ying could not have afforded to pay for DD7619. As at 1986 she had no beneficial interest in any of the three landed properties since she did not purchase any of them, and there was no evidence she personally paid the mortgage instalments. Anyway, such purchases did not establish any profit gain before 1986 from buying and selling landed properties that would have enabled Yuet Ying to acquire funds to pay the DD7619 Down Payment. Rather, the above analysis tended to support Kwong Chiu’s case that it was the Mother/Wing Cheong who paid for and who became the actual owner of the Man Lee Ppty, Tsuen King Ppty and Wing Hong Ppty. (c) Income from stock investment 71.Yuet Ying and Fung Yee claimed that since about 1983 they discussed and actually invested in stocks, but not anticipating any future litigation, Yuet Ying said she did not keep her stock-trading records. The Mother claimed Yuet Ying was good at investment, and since the 1980s she already invested in stocks when she was still working at Wing Cheong. But there was paucity of evidence as to what stocks were acquired, what was the pattern of stock-trading, what was the broad range of profits made (if any), and whether any stocks had to be realised to pay for the DD7619 Down Payment. In my view, Yuet Ying’s assertions as to stock investment were nothing more than bare assertions. 72.Yiu Wah said there were some HSBC shares held in Yuet Ying’s name for the Mother/Wing Cheong. Under cross-examination the Mother claimed the HSBC shares were bought by Yuet Ying, but she could not remember whether they were in Yuet Ying’s or Wing Cheong’s name. I find on balance the HSBC shares were bought by the Mother/Wing Cheong but held in Yuet Ying’s name[23]. I am not satisfied Yuet Ying traded in stocks on her own account prior to 1986, but even if she did (which I disagree), I find on balance that she would not have earned enough profits by 1986 to pay for the DD7619 Down Payment. (d) Income from the Export Business 73.Yuet Ying claimed that in 1980 she set up the Export Business which continued until the end of 1992. At first the Mother gave evidence that Yuet Ying worked full-time at Wing Cheong and had no other business, and Kwong Chiu, Yiu Wah and Yip all gave similar evidence. The Mother later gave evidence that Yuet Ying had her own side-line business (even though she was unclear what that was), which was inherently inconsistent with her earlier evidence. There were no business registration and/or tax records and, more significantly, there was complete paucity of particulars as to even, say, the name/address of the Export Business. These matters all served to demonstrate the implausibility of Yuet Ying’s case on the Export Business, which on balance I reject. 74.Yuet Ying claimed that due to the booming economy of Mainland China at that time her commission from the Export Business (ie buying metal products in Hong Kong and exporting them to factories in Mainland China) calculated at the rate of (a) a few hundred dollars to $1,000 per container and (b) 20 odd containers per month was quite handsome. But when confronted with the suggestion that business licences would be required for buying and exporting metal products, she shifted her evidence to say the Export Business was only engaged in the arrangement of lorry transportation for the delivery of metal products to factories in Mainland China, and no business licence was required because the factories in Mainland China would have the requisite PRC material processing licence (來料加工牌) for importing metal products. 75.In my view, Yuet Ying’s case had a sense of unreality. First, if she were earning $20,000 a month (on the basis of 20 containers and $1,000 per container), ie five times more than her alleged monthly salary for her full-time job at Wing Cheong, she had not explained why she would continue to remain at Wing Cheong and not focus on running/expanding the Export Business. Secondly, if Wing Cheong obtained the requisite business licences in early 1980 at about the same time as she set up the Export Business and not in 1987 as Yiu Wah said, Yuet Ying did not explain why the Mother and the other Siblings working at Wing Cheong at the time would have tolerated her operation of the Export Business in open and direct competition against Wing Cheong where she continued to work full-time. 76.But there was more. Yiu Wah said it was very difficult to obtain the necessary business licences. The PRC material processing licence for importing metal products into Mainland China was required for customs check at the Man Kam To Control Point, and even a well-established recycling business such as Wing Cheong had to spend about $100,000 and wait for almost a year for approval by different government departments before obtaining such licence in 1986/1987. Yiu Wah knew of such requirements for some time before 1986/1987 because he had heard from others in the trade, and he himself handled the application for such licence for Wing Cheong. He believed that as an individual with little connections/resources Yuet Ying would not have been able to obtain such licence. Yiu Wah also knew that a Hong Kong metal recycling licence (五金收買牌) was required for customs declaration to export metal products from Hong Kong because he was the licence holder of Wing Cheong’s metal recycling licence. 77.Mr Lee submitted that the issue of whether it was illegal to import metal products into Mainland China without a PRC metal processing licence was a matter of foreign law. I disagree because the only question here was one of fact, ie whether or not a PRC material processing licence was part of the required paperwork for the import of metal products into Mainland China. I cannot see the relevance of HKSAR v Tam Hung[24] cited by Mr Lee. Anyway, Mr Lee accepted Yiu Wah could give evidence on his own knowledge/experience, and at the latest by 1986/1987 Yiu Wah plainly knew (and I accept) a PRC material processing licence was required for importing metal products into Mainland China. On balance I reject Yuet Ying’s claim that even up to the end of 1992 she was able to operate the Export Business without such licence. 78.But even if it were enough for the factories in Mainland China to have such licence, a Hong Kong metal recycling licence was still required for customs declaration and export of metal products from Hong Kong (and the factories in Mainland China could hardly have provided such licence). Yuet Ying did not say she moonlighted by using Wing Cheong’s licence, so she could not have bought metal products in Hong Kong and exported them to Mainland China without licence since (as Yiu Wah explained) this would be tantamount to smuggling. In my view, this was why Yuet Ying shifted her evidence to say the Export Business’ mode of operation was not buying/selling but delivery/transportation only. Even so, such mode of operation did not make any practical commercial sense. Even if it was theoretically possible to adopt such mode of operation, the Export Business would be seriously disadvantaged because of stiff competition from other licence-holding metal recycling businesses that could perform the same delivery/transportation service as well as other value added services that only licence holders could perform. I am not persuaded the Export Business as described by Yuet Ying would have been a viable business let alone one that made handsome profits. 79.In all the circumstances, I find Yuet Ying’s evidence unconvincing. I am not persuaded she operated the Export Business, but even if she did (which I disagree), she would not have been able to earn sufficient profits to pay the DD7619 Down Payment. IX. PURCHASE OF DD7619 (a) “Wing Cheong Minibus” 80.Prior to 1986, Yuet Ying had no knowledge, experience and/or time for managing a minibus. Fung Yee said that since 1983 she and Yuet Ying discussed about investing in minibuses, and they thought minibuses would appreciate in value and be a good investment. Mr Lee suggested the purchase of DD7619 was for investment purpose, but Yuet Ying gave evidence she intended to buy one to two minibuses and establish a minibus company and part of such plan was to purchase DD7619 and establish “Wing Cheong Minibus” to let out DD7619 to earn rental income. Mr Lee claimed there was no inconsistency because all that was required of a minibus company was money to buy a minibus. But this was exactly where Yuet Ying’s case fell apart because she failed to establish she had the requisite funds in 1986 to pay the DD7619 Down Payment. 81.In the circumstances, the Mother’s evidence that in/about 1986 Yuet Ying told her she intended to purchase a minibus for investment purpose was also unreliable. Further, even though Fung Yee claimed she also bought a minibus herself for investment purpose, she did not provide any particulars (eg registration number and date of purchase). Although Yuet Ying said she no longer retained the business registration records of “Wing Cheong Minibus”, she admitted she had done a business registration search with nil result (but such search records were not discovered/disclosed). On balance, I am not satisfied with Yuet Ying’s evidence in respect of “Wing Cheong Minibus”. (b) 1986 Family gathering 82.In/about 1986, Kwong Chiu had just started to make his living as a minibus driver. Yiu Wah said that at that time it was difficult for minibus drivers (like Kwong Chiu) to rent minibus, and the Mother wanted to help Kwong Chiu. Yiu Wah further said that since Wing Cheong was seeking an investment opportunity anyway, the Mother, Yuet Ying and Yiu Wah (but not Kwong Chiu) discussed/agreed on the purchase of a minibus (eventually turned out to be DD7619) for letting out to Kwong Chiu in order to earn rental income. Yiu Wah claimed that since Yuet Ying also worked at Wing Cheong, DD7619 was eventually registered in her name as paper owner. 83.Kwong Chiu said that at a Family gathering in 1986 (with all Siblings except Yiu Chung present), the Mother proposed (to him) that she intended to buy a minibus for letting out to him. He roughly remembered the Mother said “你橫掂都係同人揸小巴，不如我哋永昌買架小巴你揸好唔好?” He was agreeable to (but not particularly excited about) such proposal. He told the Mother that minibuses were normally purchased from large motor dealers. The Mother did not tell him the proposed purchase of the minibus was for investment purpose, but he understood the Mother made the above proposal to help/support him and to maintain her relationship with him. 84.I am unable to discern any material inconsistency in the evidence of Yiu Wah and Kwong Chiu that would threaten their veracity. Plainly, the Mother told Yiu Wah (but not in Kwong Chiu’s presence) she wanted to help Kwong Chiu, and consistent with such intention the Mother (on the strength of the understanding with Yiu Wah and Yuet Ying, and knowing that Kwong Chiu had just started to be a minibus driver) at the Family gathering offered to buy a minibus for letting out to Kwong Chiu. When viewed against the previous disputes between the Mother and Kwong Chiu, this was understandably perceived by Kwong Chiu as the Mother’s olive branch to help him. (c) Purchase at Kam Loong Motors (“KLM”) 85.Kwong Chiu said the Mother told him Yuet Ying would be the registered owner of DD7619, which he considered natural because the Mother was practically illiterate and Yuet Ying (daughter/companion) as paper owner would be able to sign documents for her. The Mother did not say much about the purchase of DD7619, but he recalled she asked him and Yuet Ying to go to KLM (ie the motor dealer that sold DD7619) to collect DD7619. He could not remember whether he went there with others, but he was not present when the DD7619 Down Payment was paid by the Mother. 86.Yiu Wah said before the purchase was made there had been negotiation/liaison with KLM on the cash price of DD7619, and KLM reminded them to bring a cheque book for the purchase. Yiu Wah went with the Mother (who brought her cheque book), Yuet Ying and Kwong Chiu to KLM, and DD7619 was purchased on the same day. Although (a) Yiu Wah did not know the amount of the DD7619 Down Payment, (b) the cash price of DD7619 was not mentioned in his presence, (c) he did not actually witness the Mother sign and/or hand over the cheque for the down payment, and (d) he could not remember whether or not some one had written out the cheque for the Mother (because at that time he and Kwong Chiu went out of the shop to view DD7619 parked outside, and they were not involved in the procedures/formalities for the purchase), he believed the DD7619 Down Payment was paid to KLM on that occasion by cheque drawn on Wing Cheong’s bank account because, quite simply, at that time the Mother/Wing Cheong was the one with the money. When they left KLM, the Mother briefly mentioned that DD7619 had been purchased, but all Yiu Wah was interested in then was when they could take away DD7619. 87.In my view, it was not strange at all that Kwong Chiu had less recollection of the purchase of DD7619 at KLM and no idea of the arrangements for payment of the DD7619 Down Payment because at that time, unlike Yiu Wah, he was not working at Wing Cheong and was not involved in discussions with the Mother about the purchase. Both Kwong Chiu and Yiu Wah frankly admitted they did not witness the Mother handing over a cheque to KLM, but it did not mean the Mother did not pay the DD7619 Down Payment. In all the circumstances, given that DD7619 was bought on the occasion in 1986 when the Mother (ie the only person who had sufficient money for the DD7619 Down Payment and who brought her cheque book), Yuet Ying, Yiu Wah and Kwong Chiu went to KLM as described above, the irresistible inference was that the Mother/Wing Cheong paid the DD7619 Down Payment by cheque. Neither Yuet Ying nor Kwong Chiu would have possession of such cheque or cheque stub (as they were not their documents), and there was no evidence/suggestion that bank retrieval would have been possible after more than 20 years. (d) Yuet Ying’s case 88.On the other hand, Yuet Ying claimed she asked Yiu Chuen to manage “Wing Cheong Minibus” for her, but he had no spare time to expand such business as he had to look after his own recycling business. Yuet Ying claimed that after the purchase of DD7619 there was a Family gathering during which Kwong Chiu (who was then a minibus driver) expressed interest in renting DD7619, and she agreed because he is her brother and she would let out DD7619 in any event. She allowed him to find other drivers for the day shift (as he would drive the night shift) and to pay her the Excess Rental on the basis of 28 days a month. The Mother also claimed that at Kwong Chiu’s request Yuet Ying let out DD7619 to him. 89.On balance, I do not believe Yuet Ying or the Mother. At that time, Kwong Chiu was the only person in the Family who had any connection with minibuses since he had just started to be a minibus driver. I find on balance that the Mother branched out from her trusted investments in landed properties (eg the Man Lee Ppty) and stocks (eg HSBC shares) into minibus (ie DD7619) because she wanted to let out such minibus to Kwong Chiu. Since Kwong Chiu’s acceptance of such arrangement was essential, I find Yuet Ying’s assertion that the 1986 Family gathering took place after the purchase of DD7619 or that Kwong Chiu took the initiative to suggest renting DD7619 implausible and unreliable, and I reject such evidence. (e) Summary 90.In my view, the above findings (and in particular the finding that the Mother/Wing Cheong paid the DD7619 Down Payment and was the beneficial owner of DD7619) dealt a severe (if not fatal) blow to Yuet Ying’s case. This immediately raised serious doubt as to whether Yuet Ying was the beneficial owner of the Old EF1626 that replaced DD7619. Yuet Ying’s evidence that she received the Excess Rental from Kwong Chiu up to 2005 was also suspect. X. RENTING DD7619 91.Even on Yuet Ying’s own case, both she and Yiu Chuen had no time to deal with DD7619, and in any event they were unfamiliar with minibus operations. On balance I reject Yuet Ying’s evidence that during the first year Kwong Chiu gave her or Yiu Chuen (who was helping Yuet Ying) the rental from DD7619 in cash, and that she would use such rental to pay the Instalments and the Expenses. On balance, I prefer Kwong Chiu’s evidence that Yuet Ying seldom took time to deal with DD7619 after its purchase and instead he was responsible for its daily management and operation. I further find that Kwong Chiu (through Au) paid the Excess Rental to the Mother (and not Yuet Ying or Yiu Chuen) as beneficial owner of DD7619. The Mother preferred payment in cash, and as between members of the Family Kwong Chiu did not ask for any written receipt. At that time, the daily rental for DD7619 was about $200, and that for the Old EF1626 was about $230. Kwong Chiu said in about six years from 1986 to the end of 1992 (ie just before he became the owner of the Old EF1626), he paid Excess Rental of over $430,000 to the Mother. XI. OLD EF1626 AND 1990 HP LOAN 92.In/about 1988, the government allowed owners to replace 14-seater minibuses with 16-seater ones. In 1989, DD7619 was replaced by the Old EF1626. Yuet Ying continued to be registered owner of the Old EF1626, and I find that the Mother/Wing Cheong continued to be the beneficial owner. 93.In 1990, Yuet Ying intended to emigrate to France to be married and to invest there. Under a new HP arrangement with Dao Heng via KLM, Yuet Ying as registered owner of the Old EF1626 and the hirer under such HP arrangements borrowed the 1990 HP Loan of $600,000. The certificate issued by KLM dated 27 July 1990 (“1990 KLM Cert”) stated “車會$600,000車號EF1626銀行道亨期數60M” and “代贖車會$152019.15”, which meant the 1990 HP Loan was disbursed as follows: (a) partly used to settle the then indebtedness due ($152,019.65) under the old HP arrangements with Dao Heng, and (b) the remaining balance ($447,980.35) was made payable to Yuet Ying as registered owner and hirer by KLM’s cheque dated 27 July 2009 (“Loan Cheque”). Yuet Ying signed her acknowledgment on the 1990 KLM Cert, and the Loan Cheque was paid into an account with the Bank of Communications in the joint names of Yuet Ying and the Mother (“Joint Account”) on the following day. XII. JOINT ACCOUNT 94.Yuet Ying emigrated to France in 1993. Between 1990 and 1993 she shuttled between France and Hong Kong, and spent about two to three months a year in France. Yuet Ying claimed that all monies in the Joint Account belonged to her, and denied that the Joint Account was the Mother’s/Wing Cheong’s. She claimed it was convenient for the Loan Cheque to be deposited into the Joint Account for the Mother to withdraw monies to buy things for her when she was not in Hong Kong. Although the Mother was not as familiar with bank account operations as she was, the Mother knew how to withdraw money. But when queried as to why she would need such assistance when she was in Hong Kong for nine to ten months a year, Yuet Ying maintained it would be convenient for the Mother to buy things (eg tonics and gold jewellry) for her. The Mother also claimed the Joint Account was Yuet Ying’s personal account, but she kept the passbook when Yuet Ying left for France. But the Mother later gave evidence that the monies in such account belonged to her and Yuet Ying but not Wing Cheong[25]. 95.On balance, I find the Mother’s wavering uncertainty as to who owned the monies in the Joint Account evasive and unreliable. First, the Mother claimed she opened the Joint Account with Yuet Ying because Yuet Ying was familiar with the operation of bank accounts. But such reason would be relevant only if the monies or at least part of the monies in the Joint Account were the Mother’s and not Yuet Ying’s, and there was no suggestion the Mother was joined as co-account holder only when Yuet Ying left for France. Secondly, despite her lack of formal education and/or sophistication, the Mother had always been clear-headed about money (as she had to be in operating Wing Cheong as her sole proprietorship, and in borrowing loans and repaying debts). The aforesaid prevarication over the ownership of the monies in the Joint Account in her evidence is tellingly unreliable. Thirdly, I also rely on the analysis in paragraphs 131 and 135-140 below. 96.Further, I am not convinced by Yuet Ying’s explanation about entrusting the Mother to make purchases for her when she spent a large part of the year in Hong Kong during the period from 1990 to 1993. Tonics to be consumed and jewellery to be worn were eminently purchases that could have awaited her return to Hong Kong. 97.In my view, it is more probable that the Joint Account was the Mother’s, and Yuet Ying was joined as co-account holder to assist the Mother as she was more familiar with bank account operations, which explained why the Mother kept the passbook of such account. But it is unnecessary for me to come to any specific finding as to (a) whether all of the monies in the Joint Account belonged to Yuet Ying or the Mother, (b) who ultimately had the use of the monies under the Loan Cheque, or (c) what were the arrangements (if any) between the Mother/Wing Cheong and Yuet Ying in respect of the 1990 HP Loan and the repayment thereof. In my view, these matters had no impact on the Mother’s/Wing Cheong’s beneficial ownership of the Old EF1626 as derived from DD7619. But on balance I reject Yuet Ying’s evidence that all monies in the Joint Account at all times belonged to her. As seen below, I find that at least certain deposit(s) of monies in the Joint Account was not Yuet Ying’s but the Mother’s. XIII. ACCIDENT 98.Yuet Ying claimed that in 1990 Kwong Chiu telephoned to tell her that the Old EF1626 had a collision with a private car and suffered some vehicle damage (“Accident”), and that he had arranged to meet the driver of the private car to negotiate a settlement. At Kwong Chiu’s request, she went to the garage the following morning, and Kwong Chiu introduced her to the day shift driver Lo as his sister and owner of the Old EF1626. She negotiated the compensation with the driver of the private car. 99.On the other hand, Kwong Chiu said he was taken to the hospital after the Accident, and another minibus driver drove the Old EF1626 back to the terminus that evening and then to the garage for repairs the following morning. Since he did not know how long the repairs would take (and in fact they took a whole day), Kwong Chiu telephoned to tell Lo he could not drive the Old EF1626 the following day. But Kwong Chiu did meet the driver of the private car the following morning at the garage and they agreed on the compensation. Kwong Chiu denied any alleged meeting with Lo and Yuet Ying. 100.Plainly, Yuet Ying introduced the Accident in her evidence with a view to demonstrate that Kwong Chiu recognised her as the owner of the Old EF1626. But even without drawing any adverse inference on her failure to call Lo to give evidence (when his affirmation filed on 18 May 2010 was served as his witness statement), I have no hesitation in preferring Kwong Chiu’s evidence over that of Yuet Ying. On balance, I do not believe Kwong Chiu would ask Lo to go to the garage the following morning when the Old EF1626 was driven there for repairs only that morning. I further find on balance that all along Yuet Ying as paper owner of DD7619 and the Old EF1626 had not much idea about maintenance and repairs, and left such matters to Kwong Chiu. XIV. 1992 (a) 1992 Family discussion 101.In/about 1992 Yuet Ying was about to emigrate to France to be married, but there were properties/assets of Wing Cheong still registered under her name. Yiu Wah claimed the Mother also discovered Yuet Ying had without consent withdrawn about $2,000,000 from Wing Cheong’s bank account. According to Yiu Wah, the Mother had a discussion with him, Yiu Wing, Yiu Chuen, Yuet Ying and Fung Yee in 1992 (“1992 Discussion”) for one to two hours at the Mother’s home, which discussion continued at a restaurant in Tsuen Wan. They discussed the distribution of “[Yuet Ying] 在單獨的名義下或與其兄弟姊妹聯權共同持有的 [properties/assets] (雖然那些物業並非一定打算給 [Yuet Ying]，如 [the Old EF1626] 及 [HSBC shares] )”. It was finally agreed that (a) Yuet Ying “可保存其在 [the Tsuen King Ppty]、[Wing Hong Ppty] 及 [Man Lee Ppty] 的利益，但 [Yuet Ying] 須交回 [the Old EF1626] 及 [HSBC shares]”, and (b) the other Siblings “亦可保存他們在 [the Wing Hong Ppty] 及 [Man Lee Ppty] 的利益”. The Mother also mentioned to them she intended to gift the down payment of the Old EF1626 (“EF1626 Down Payment”) to Kwong Chiu, and they did not raise any objection. 102.The YW 2041 Stmt also referred to the 1992 Discussion:
103.The YW 2041 Stmt went on to say that:
104.In his oral evidence, Yiu Wah clarified that notwithstanding the aforesaid distribution, (a) such gifts by the Mother would only take effect (if at all) after the Mother died and if the Siblings behaved themselves, but (b) during the Mother’s lifetime she could “recall” or demand the return of such properties/assets if she considered the Sibling(s) who held them failed to behave themselves. Yiu Wah agreed such information was elicited from him under cross-examination, and the YW 2041 Stmt was not so detailed. But there is no evidence before me on what the disputed issues in the 2041 Action were to determine whether such details would have been pertinent for inclusion in the YW 2041 Stmt. 105.Mr Lee described Yiu Wah’s clarification in evidence as a “third possibility” because it was different from Kwong Chiu’s case that until 1992 Yuet Ying was a mere paper owner of the Old EF1626 whilst the real owner was the Mother and, more significantly, also different from Yuet Ying’s case that in 1992 she was the legal/beneficial owner of the Old EF1626 because she paid the DD7619 Down Payment to buy DD7619 which was later converted into the Old EF1626. Mr Lee submitted such “third possibility” demonstrated that the Man Lee Ppty, Tsuen King Ppty and Wing Hong Ppty were effectively the Mother’s absolute gifts to the relevant Siblings subject to conditions subsequent which, if unfulfilled, would revert the gifts to the donor[26], so likewise the Old EF1626 effectively was the Mother’s gift to Yuet Ying subject to conditions subsequent. 106.I am not persuaded that the “third possibility” as described by Mr Lee established any inter vivos absolute gift subject to conditions subsequent. According to Yiu Wah’s evidence, these so-called gifts were not lifetime gifts (such as the absolute inter vivos gift in Ellis v Chief Adjudication Officer)[27] since they were to take effect (if at all) upon death, but at the same time they were not effective written testamentary gifts (such as the testamentary disposition under a written will in In re McDonnell)[28]. In any event, even if we put aside for the moment the formal requirements for proper testamentary disposition, these gifts that were to take effect upon death had no impact on the Mother’s full discretion to deal with such properties/assets and to decide whether or not to “recall” them during her lifetime. Yiu Wah’s explanation was simple and to the point: those properties/assets were in fact the Mother’s. The Mother’s lifetime discretion was borne out by Yiu Wah’s frank admission that the Mother decided he failed to behave himself so she required him to (and he did in 2013) transfer/return back to the Mother the shares in the Man Lee Ppty and Wing Hong Ppty held in his name. In my view, this was quite different from the authorities cited by Mr Lee. 107.Mr Lee complained that the alleged distribution of the Man Lee Ppty, Tsuen King Ppty and Wing Hong Ppty as described by Yiu Wah was not reduced into writing. But the effect of Yiu Wah’s evidence was that there would be no change to the legal ownership subject to the Mother’s discretion to deal with such properties exercisable during her lifetime. That being the case, I do not discern any need for written record when there was none before. 108.Further, I do not find Yiu Wah’s evidence materially inconsistent with that of Kwong Chiu. They both confirmed that Yuet Ying was a mere paper owner of the Old EF1626 whilst the Mother was the real owner with power to deal with the Minibus during her lifetime. I am unsurprised that Kwong Chiu did not know the full details of the 1992 Discussion as he was not a participant of such discussion, and particularly when he had no interest in the Man Lee Ppty, Tsuen King Ppty and Wing Hong Ppty and the HSBC shares. Indeed, Kwong Chiu fairly accepted he was reliant on Yiu Wah’s evidence in respect of these matters[29], and he was not too clear about the distribution of properties/assets to the Siblings because the Mother did not talk to him in detail about such matters[30]. 109.Looking at the totality of Yiu Wah’s evidence in respect of the Old EF1626, he was clear and firm that pursuant to the 1992 Discussion the Mother “recalled” the Old EF1626 held (持有) by Yuet Ying (which asset “並非一定打算給 [Yuet Ying]，如 [the Old EF1626]……”) so that it would no longer be held in her name. Mr Lee queried why the Old EF1626 was treated differently from the “wait-and-see” approach adopted for, say, the three landed properties in respect of which the relevant Siblings remained as legal/registered owners until the Mother’s decision otherwise. But as explained above, the Old EF1626 was not the only property/asset that was “recalled” (see, for example, the HSBC shares), and such “recall” was made pursuant to the agreement reached by the Family members (including Yuet Ying) present at the 1992 Discussion[31]. Given such background and the Mother’s intention to transfer the Old EF1626 to Kwong Chiu by gifting him the EF1626 Down Payment, I find it unsurprising that the Old EF1626 was dealt with in the manner as agreed, which eventually was brought into effect by the transfer of ownership to Kwong Chiu in 1992 as discussed below. 110.But more fundamentally, Yuet Ying could not rely on the “third possibility” as described by Mr Lam since it was not her case (and she did not plead any alternative case):
111.Further, even though Yuet Ying denied the 1992 Discussion had taken place and Fung Yee in her witness statement dated 9 October 2012 said the Mother did not discuss family asset distribution before the 1992 Gathering referred to in paragraph 116 below, Fung Yee confirmed in evidence that she attended a Family meeting with the Mother, Yuet Ying, Yiu Chuen and Yiu Wah before Yuet Ying emigrated to France. In respect of such Family meeting, Fung Yee could not remember whether she went to the Mother’s home, but she did attend the dinner at the restaurant and the Mother was present. She also agreed that a purpose of such meeting was to decide how to handle (處理) properties/assets held in Yuet Ying’s name upon her emigration to France, and she realised the Family members present were discussing such matter when she arrived at the restaurant. Fung Yee claimed she did not pay much attention to the Mother who did not participate in the discussion, but the Family members present concluded that Yuet Ying could “保留” the Man Lee Ppty, Tsuen King Ppty and Wing Hong Ppty. She did not hear that Yuet Ying had to return the Old EF1626 and HSBC shares or that the Mother would gift the EF1626 Down Payment to Kwong Chiu. Indeed, she claimed to have heard that the Old EF1626 would be transferred to Kwong Chiu for him to manage the same. 112.The Mother also agreed that when Yuet Ying planned to emigrate to France there were Wing Cheong properties/assets in Yuet Ying’s name[33], but she did not know Yuet Ying’s arrangements concerning them. When cross-examined on the 1992 Discussion, the Mother said she would not pay attention to what the Siblings talked about because she would “行開行埋” at home, and she would concentrate on her food at the restaurant. The Mother insisted the Old EF1626 did not concern her because it was Yuet Ying who paid the DD7619 Down Payment. 113.In my view, Fung Yee’s admission of a family meeting attended by her, the Mother, Yuet Ying, Yiu Chuen and Yiu Wah for deciding inter alia how to deal with the properties/assets held under Yuet Ying’s name before she emigrated to France corroborated Yiu Wah’s evidence of the 1992 Discussion. I find the Mother’s claim that she did not hear what was discussed to be an unreliable attempt to sidestep the 1992 Discussion, and her unreliability was evident from her insistence that Yuet Ying paid the DD7619 Down Payment (which assertion I have rejected). In view of Yuet Ying’s admission that the Man Lee Ppty, Tsuen King Ppty and Wing Hong Ppty were in fact bought by the Mother/Wing Cheong even though they were registered in her name (together with other Sibling(s) where appropriate), Fung Yee’s evidence that Yuet Ying could “保留” such landed properties did not detract from the viability of Kwong Chiu’s case that she would remain as registered owner of such landed properties whilst the Mother as beneficial owner could decide how to deal with them. On balance I do not accept Fung Yee’s evidence that she heard that the Old EF1626 would be transferred to Kwong Chiu for his management whether at the 1992 Discussion or otherwise. (b) Mother’s proposal 114.Kwong Chiu said that in/about 1992 the Mother came on board the Old EF1626 whilst he was waiting at the Tsuen Wan terminus and proposed to him that she would get back the Old EF1626 from Yuet Ying who was about to be married, and then transfer the ownership of the Old EF1626 to him by subsiding payment of the EF1626 Down Payment so that he would only have to pay the HP Instalments for the remaining value of such minibus. This meant he would have his own minibus and his livelihood would be assured even when he got old and his daughters married. The Mother requested him to keep the trade name of Wing Cheong used by the Father and not to sell the Minibus during her lifetime. At first he did not agree but eventually accepted her proposal and request, and he informed Au and their children about this. Kwong Chiu understood that the Mother by her proposal wanted to help him. 115.Kwong Chiu frankly agreed that even though he said in his witness statement dated 12 December 2011 that the Mother proposed to pay the EF1626 Down Payment of about $500,000 whilst on board the Old EF1626, in fact she only made reference to the amount of such down payment when the ownership of the Old EF1626 was transferred to him. I refer to the discussion in Part XV below, and accept Kwong Chiu’s clarification. (c) 1992 Family gathering 116.In 1992 around Chung Yeung festival[34], there was a family gathering at a restaurant attended by the Mother and all Siblings except Yiu Chung (“1992 Gathering”). Kwong Chiu and Yiu Wah said that almost at the end of the dinner the Mother made known to all the Siblings present her intention to transfer the ownership of the Old EF1626 to Kwong Chiu by paying the EF1626 Down Payment, and they tacitly accepted (or did not raise any objection) then or thereafter until the present action. Mr Lee found it strange that Yiu Wah did not mention the 1992 Discussion, but on balance I accept Yiu Wah’s evidence that he did not say anything because it had been previously discussed and agreed as to how to deal with the Old EF1626. Indeed, the 1992 Discussion also canvassed other properties/assets that did not concern Kwong Chiu. 117.Kwong Chiu’s case was also consistent with Yip’s evidence that she had heard the Mother say to her relatives and to her many times that she had decided to gift the EF1626 Down Payment to Kwong Chiu so he could make his living even when he got old. Yip said that (a) the Mother was concerned Kwong Chiu had no son and there was no telling whether or not his daughters would look after him, and (b) the Mother claimed she had urged Kwong Chiu to accept her proposal. Yip said she and the Mother often talked about these matters because they were sworn sisters. 118.On the other hand, Yuet Ying claimed she asked Yiu Chuen at the 1992 Gathering to help her manage Wing Cheong Minibus, but he was busy and declined. She then appealed to the other Siblings at the gathering, but she did not know if Fung Yee heard her request. Yuet Ying said Kwong Chiu claimed it would be troublesome after her emigration to France if there were an accident or if vehicle documents had to be signed, so he suggested that the Old EF1626 be transferred to him and as paper owner he would be able to deal with the minibus but she would always be its real owner (which meant Kwong Chiu would hold the Old EF1626 for her benefit), and he promised to use the rental from the Old EF1626 to pay the Instalments and Expenses and give her the Excess Rental. 119.But even though Yuet Ying claimed the Mother was present at the 1992 Gathering, the Mother insisted she was not present when Yuet Ying and Kwong Chiu discussed about the Old EF1626, and she even said that after the ownership of the Old EF1626 was transferred to Kwong Chiu (which was long before the commencement of the present action), Yuet Ying came home to briefly mention such fact to her, but she replied it was not her concern since such Minibus was bought with Yuet Ying’s monies. In my view, the Mother’s evidence plainly contradicted Yuet Ying’s evidence that the Mother was present at the 1992 Gathering, and I reject both Yuet Ying’s and the Mother’s evidence as unreliable. 120.Yuet Ying claimed she entrusted Kwong Chiu (who was renting the Old EF1626 at that time) with the legal ownership of the Old EF1626 because he is her brother and nothing untoward happened in the years since he rented DD7619. But even on Yuet Ying’s own case, I find it improbable that she would transfer the Old EF1626 to Kwong Chiu as paper owner when, again on her case, they seldom had contact with each other and she only knew he worked in the logistics industry. Yuet Ying also had not satisfactorily explained why she did not directly approach or follow up with Fung Yee (with whom she had closer contact) whether at the 1992 Gathering or otherwise to help her look after the Old EF1626 when, even on Yuet Ying’s case, Fung Yee was active in investments since 1983 and even bought a minibus for investment herself. 121.On balance, I accept Kwong Chiu’s case in respect of the 1992 Discussion and 1992 Gathering, and I find that the Mother, Yiu Wah, Fung Yee, Yuet Ying and Yiu Chuen all agreed and understood that Yuet Ying would “return” the Old EF1626 (ie she would cease to be the legal owner) before she left for France. I further find that the Mother offered to transfer the ownership of the Old EF1626 to Kwong Chiu by subsidising the EF1626 Down Payment, which proposal Kwong Chiu accepted and which the other Siblings (including Yuet Ying) also tacitly agreed. XV. HP IN 1992 122.In December 1992, Yuet Ying signed the “transfer papers” (過戶紙) for the transfer of ownership of the Old EF1626 to Kwong Chiu, and at the same time Kwong Chiu entered into a HP agreement with The Wing On Bank Limited (“Wing On”) as part of the legal and financial formalities in taking up the Old EF1626. 123.According to the HP agreement made between Kwong Chiu (as hirer) and Wing On dated 15 December 1992 and countersigned by KLM (“WOHP Agt”),
124.The certificate issued by KLM dated 14 December 1992 (“1992 KLM Cert”) stated that “姓名羅廣潮車會$850,000車號EF1626銀行永安期數120M” and as follows:
125.Kwong Chiu explained in layman’s terms that to effect the transfer of the ownership of the Old EF1626, Yuet Ying as paper owner had to “贖會” and notionally “sell” the Old EF1626 to the motor dealer, and he would have to notionally “buy” such minibus and “pay” the cash price as worked out by the motor dealer. In my view, this is borne out by WO HP Agt and 1992 KLM Cert. 126.The WO HP Agt and 1992 KLM Cert clearly showed it was necessary to discharge the existing HP agreement between Yuet Ying as registerd owner/hirer and Dao Heng, ie the outstanding amount under the 1990 HP Loan ($380,569.53), before the Old EF1626 could be transferred to Kwong Chiu. To free the Old EF1626 from the 1990 HP Loan and bearing in mind the Mother would only subsidise the EF1626 Down Payment and not the full value of the Old EF1626, Kwong Chiu (being the intended new registered owner pursuant to the “transfer papers” executed by Yuet Ying at the same time[35]) as hirer had to enter into a new HP arrangement to obtain a new HP loan to pay the remaining value of the Old EF1626 over and above the EF1626 Down Payment ($837,122), which would include the sum for settling the outstanding 1990 HP Loan and miscellaneous fees ($384,794.53), to the Mother. 127.The WO HP Agt and the 1992 KLM Cert also showed that in respect of the Old EF1626 the motor dealer KLM had worked out the value or cash price of the Old EF1626 ($1,350,000), the EF1626 Down Payment to be subsidised by the Mother/Wing Cheong ($544,198), and the remaining value to be paid by Kwong Chiu by way of the 1992 HP Loan ($837,122). Although Yuet Ying as paper owner had to “sell” the Old EF1626 and the Mother/Wing Cheong as actual owner should in principle receive the value or cash price ($1,350,000), Kwong Chiu did not have to pay the EF1626 Down Payment ($512,878) because the Mother/Wing Cheong would subsidise the same, so he paid the remaining value ($837,122) from the 1992 HP Loan by (a) discharging the outstanding amount under the 1990 HP Loan ($384,794.53) and (b) (as evident on the face of the 1992 KLM Cert) giving a cash cheque ($465,205.47) drawn by KLM on Dao Heng and payable to Wing Cheong (“Redeem Cheque”) that was deposited in the Joint Account on 15 December 1992. The overall effect was that the Mother/Wing Cheong “received” the value of the Old EF1626 ($1,350,000) less the EF1626 Down Payment ($512,878), and Kwong Chiu obtained the ownership of the Old EF1626 at the cost of the 1992 HP Loan ($873,122) payable by 120 Intalments without having to pay the EF1626 Down Payment. 128.Mr Lee submitted that the fact Yuet Ying signed the “transfer papers” did not mean she had knowledge of the HP arrangements between Wing On and Kwong Chiu, especially when the WO HP Agt and 1992 KLM Cert were signed by Kwong Chiu. I have no doubt that the HP arrangements with Wing On came into existence at the same time as the “transfer papers”, and I find on balance that Yuet Ying as registered owner of the Old EF1626 and the hirer under the existing HP agreement with Dao Heng was necessarily involved in (a) the discharge of the 1990 HP Loan by utilising the 1992 HP Loan and (b) the transfer of licence book/insurance etc from Dao Heng to Wing On as part of the transfer of the ownership of the Old EF1626 arranged by KLM. By reason of the above analysis, I am of the view that the value of the EF1626 Down Payment and Kwong Chiu’s need for a new HP Loan on the Old EF1626 for the transfer of the ownership of the Old EF1626 to him were known to both Yuet Ying and the Mother as paper and actual owners of the Old EF1626 (and that was why the Mother mentioned to Kwong Chiu that he would have to pay the Instalments himself when she made the proposal to him on board the Old EF1626)[36]. 129.Mr Lee suggested that a less complicated approach for the Mother to gift and transfer the ownership of the Old EF1626 to Kwong Chiu would be for her to simply pay the outstanding indebtedness under the 1990 HP Loan ($384,794.53), which approach, Mr Lee submitted, would obviate the need for the 1992 HP Loan under the new HP agreement with Wing On. In my view, such contention is misconceived since it would be contrary to the Mother’s desired intention to only gift the EF1626 Down Payment. On Mr Lee’s suggested approach, Kwong Chiu would have made a windfall gain by not having to pay the remaining value of the Old EF1626 ($837,122), and the Mother/Wing Cheong would have subsidised the full value or cash price of such minibus ($1,350,000). 130.I agree with Mr Cheuk that if Kwong Chiu was to be a mere paper owner to manage the Old EF1626, there was no or no satisfactory reason for him to enter into WO HP Agt and the 1992 HP Loan and to pay the “Balance of Hire” ($1,381,320) by 120 Instalments to (a) discharge the 1990 HP Loan ($384,794.53) and (b) pay the remaining value of the Old EF1626 to the Mother by way of the Redeem Cheque ($465,205.47). Mr Lee’s suggestion that Kwong Chiu must have done so for his own purpose is also misconceived because the WO HP Agt and the 1992 KLM Cert plainly showed that the 1992 HP Loan was used for the aforesaid purposes and not pocketed by Kwong Chiu. In my view, the WO HP Agt and 1992 HP Loan plainly and strongly supported Kwong Chiu’s case that the legal/beneficial ownership of the Old EF1626 was transferred to him upon the Mother/Wing Cheong subsiding the EF1626 Down Payment. In my view, the fact that in later years Kwong Chiu as the legal/beneficial owner of the Old EF1626 and later the New EF1626 in his own right obtained other HP finance[37] was neither here nor there. 131.Likewise, if Yuet Ying were the beneficial owner of the Old EF1626, there was no plausible reason (and she had not offered any) as to why the Redeem Cheque (being part of the value of the Old EF1626) would be made payable to Wing Cheong. The Redeem Cheque lent weight to Kwong Chiu’s case that prior to the transfer of the ownership of the Old EF1626 to him it was the Mother/Wing Cheong who was the beneficial owner, and the deposit of the Redeem Cheque into the Joint Account also suggested at the very least that some of the monies in such bank account belonged to the Mother/Wing Cheong. 132.Yuet Ying claimed she was unaware of the Redeem Cheque since (a) the Mother who kept the passbook of the Joint Account did not tell her about the deposit of the sum of $465,205.47 into such bank account, and (b) she herself only made withdrawals from the Joint Account by telephone and did not check her bank records. She said it was much later that the Mother told her Kwong Chiu gave the Redeem Cheque for the Mother to deposit it for him but not to tell others as he did not want others to know. 133.The Mother confirmed Kwong Chiu gave her the Redeem Cheque, told her to deposit it but not to tell others, and said he would ask her when he needed the monies. The Mother said Kwong Chiu did not explain why he did not deposit the Redeem Cheque in his own bank account, but she acceded to his request so she deposited the Redeem Cheque into the Joint Account. She later asked Kwong Chiu about the Redeem Cheque, but he told her not to be concerned. She kept the passbook for the Joint Account, and from time to time Kwong Chiu asked her to withdraw some monies for him. 134.On balance, I reject Yuet Ying’s and the Mother’s evidence. First, Yuet Ying’s denial of any knowledge of the Redeem Cheque is unconvincing and unreliable. Although she claimed the Mother told her about it much later, the Mother gave evidence that it was not long after the deposit of the Redeem Cheque into the Joint Account (ie about a month) that she told Yuet Ying about the deposit, and it was only later that she shifted her evidence to say she did not tell Yuet Ying (who had left for France) because Kwong Chiu told her not to tell others. 135.Secondly, Yuet Ying insisted that all monies in the Joint Account were hers. I find this strange (a) when even on her own case she herself confessed to have no idea as to source of funds for the Redeem Cheque ($465,205.47) that was deposited in the Joint Account, and (b) the Mother would deposit the Redeem Cheque (which according to her was Kwong Chiu’s monies that he asked her to keep on his behalf and not to let others know, and that had nothing to do with Yuet Ying) into the Joint Account and not into the Mother’s own bank account. 136.Thirdly, there is no plausible commercial reason for Kwong Chiu to apply to Wing On for the 1992 HP Loan only to park about half of it with the Mother by the Redeem Cheque and then repay such loan together with the hire charges by 120 monthly Instalments. Even if he wanted to park away such monies, there was no need to trouble the Mother when he could have deposited them into his own bank account. 137.Fourthly, during the period from 1993 to 2005, Yuet Ying returned to Hong Kong for one to two months a year. If the monies in the Joint Account were her own monies, I find it strange that she did not even once ask the Mother to have sight of the passbook over all those years. Even a cursory glance would have revealed the substantial deposit of monies by the Redeem Cheque on 15 December 1992. 138.Fifthly, the Mother at first gave evidence she could not remember whether all monies of the deposit of the Redeem Cheque had been withdrawn and given back to Kwong Chiu, but she later said all had been repaid to him. Since the Mother claimed that she was always clear-headed about money (ie repaying all her debts and holding debtors accountable), such inherent inconsistency is unconvincing. 139.Sixthly, the Mother claimed the withdrawals from the Joint Account in November[38]/December[39] 1992 were for Kwong Chiu, but when queried as to why the withdrawals prior to the deposit of the Redeem Cheque on 15 December 1992 were for Kwong Chiu, she was constrained to say she herself lent monies to Kwong Chiu who claimed to have no money, and that was why the withdrawals in November/December 1992 exceeded the amount of the Redeem Cheque. Nevertheless, the Mother said she told Yuet Ying the withdrawals prior to 15 December 2012 were for her own use, but between mother and son she would hold Kwong Chiu accountable (同佢計) for the loans. Such evidence by the Mother at the very least was an admission that she had monies in the Joint Account which, of course, contradicted Yuet Ying’s case in a fundamental way. 140.I find on balance that the Mother and Yuet Ying both knew the Redeem Cheque was given to the Mother/Wing Cheong as beneficial owner of the Old EF1626 as part payment of the value of such minibus upon the transfer of the ownership to Kwong Chiu, and the Mother deposited the Redeem Cheque (being her own monies) into the Joint Account. I reject Yuet Ying’s and the Mother’s claim that the Redeem Cheque and its deposit into the Joint Account was Kwong Chiu’s secret stash of monies that was withdrawn from time to time by the Mother on his behalf. I hold that no part of the monies from the deposit of the Redeem Cheque into the Joint Account was ever returned to Kwong Chiu, and I further reject the suggestion that the Mother lent monies to Kwong Chiu, which I find to be an unreliable attempt to explain away the withdrawals from the Joint Account in November/December 1992 that exceeded the value of the Redeem Cheque. XVI. 1993-2005 141.After Kwong Chiu became the beneficial owner of the Old EF1626 upon the transfer of the ownership in December 1992, KLM handled his application to change the vehicle and passenger service licences to his name. Although Kwong Chiu applied for business registration of Wing Cheong PLB on 10 March 1993, he stated in the application form he had commenced business on 15 December 1992 (which was consistent with the transfer of the ownership of the Old EF1626 in December 1992). All legal/financial formalities were completed by March 1993, so the Transport Department records showed Yuet Ying was the registered owner of the Old EF1626 from 28 July 1989 to 30 March 1993, and thereafter Kwong Chiu became the registered owner. 142.Since 1993 (other than a few years in/about 1995 when he was engaged in waste paper recycle business and Au helped him manage the Old EF1626), Kwong Chiu personally oversaw the management of the Old EF1626. Au would look after the more mundane matters (eg rental collection, tyre replacement, and general repair/maintenance) whilst Kwong Chiu as the legal/beneficial owner would attend to more significant matters (eg repairs for accident damage or air-conditioner breakdown that would exceed $10,000 and vehicle examination). Kwong Chiu would sign application forms for licence renewal upon being notified by the bank, and Au would process them at the Transport Department for him. Kwong Chiu said (and I accept) he never paid any Excess Rental to Yuet Ying, and neither she nor other members of the Family ever questioned his ownership of the Old EF1626. 143.Yuet Ying in the YY 2nd Stmt claimed Kwong Chiu managed the Old EF1626 for her by collecting the rental and paying the Instalments. At first Yuet Ying said she trusted him as a Sibling and did not want him to think she did not trust him, so she never questioned his management, or asked him to provide her with an account of the rental and/or to give her the receipts for the Expenses. But she later said she asked Kwong Chiu for such documents whenever he paid her the Excess Rental and he refused to give them, so she did not chase him any more. I find such inherent inconsistency in Yuet Ying’s evidence unreliable. In my view, Yuet Ying never asked Kwong Chiu about the management of the Minibus because she knew such Minibus was Kwong Chiu’s and not hers. 144.Yuet Ying claimed that before 1995 Kwong Chiu seldom gave her any Excess Rental as it was used to pay the Instalments and Expenses, but after 1995 she received the Excess Rental because by then all Instalment payments for the 1990 HP Loan had been completed. She did not know what documents she should have received upon clearing such HP loan, but believed that at least the vehicle licence should be returned to her. Yet she never asked for or received the vehicle licence, and I find on balance this was because she knew she was no longer the paper owner of the Old EF1626. If it were otherwise (ie she remained as the beneficial owner of the Minibus), it was strange that Yuet Ying never bothered to find out from Dao Heng the status of the 1990 HP Loan and/or the vehicle licence all through the years. 145.Yuet Ying claimed that from 1996 to 2005 she usually returned to Hong Kong about once a year (usually in July/August). She claimed that on each such visit Kwong Chiu would pay her the Excess Rental for the year which usually varied from $80,000 to $160,000. Yuet Ying claimed it was more convenient for her to receive such Excess Rental in cash, and any monies left over after expenditure during her annual visit to Hong Kong (eg buying necessities not available in France) would be brought back to France. 146.I agree with Mr Cheuk that Yuet Ying’s allegations beggar belief. First, $80,000 to $160,000 in cash was not a small sum, and there was no explanation why it could not be paid by cheque or bank transfer into Yuet Ying’s bank account for her to dispose of as she chose. Secondly, there is no plausible explanation why Yuet Ying would bring any leftover cash in Hong Kong dollars to France (where it could not be used) and not deposit it in a Hong Kong dollar bank account here. Thirdly, Yuet Ying’s alleged expenditure of $80,000 to $160,000 within a month or so in Hong Kong rang hollow, and no particulars were given as to such substantial expenditure. Mr Lee submitted that once it was established that it was entirely possible (and probable) for the rental to be received in cash, how Yuet Ying dealt with the cash was of little relevance. I disagree. Whilst I accept the Excess Rental was paid to the Mother in cash, I cannot see why such fact can be transformed into support for Yuet Ying’s case that Kwong Chiu gave the Excess Rental in cash to her. As Mr Cheuk submitted, the alleged payment to Yuet Ying was a large annual sum whilst the payment to the Mother was a small weekly sum. 147.I find on balance that after the transfer of the ownership of the Old EF1626 to Kwong Chiu on December 1992, (a) he managed the Minibus by collecting the rental, paying the Expenses and paying the Instalments without intervention or objection by Yuet Ying and/or other members of the Family, (b) until the present action Yuet Ying had never requested him to provide any account of the income and expenditure of the Minibus, (c) he never paid any Excess Rental to Yuet Ying, and (d) until the present action the other members of the Family (including Yuet Ying) never questioned his ownership of the Minibus. These findings went to show that Kwong Chiu was the legal/beneficial owner of the Minibus and he was not holding it merely for Yuet Ying’s benefit. XVII. NEW EF1626 148.On 25 February 1997, Kwong Chiu trading as Wing Cheong PLB entered into a HP agreement with Hang Seng Finance Limited (“Hang Seng”) for a new HP loan via the motor dealer Holy Gain Limited trading as Chiap Sing Motors Co (“HG”). On 24 November 2001, Kwong Chiu trading as Wing Cheong PLB entered into a new HP agreement with Hang Seng for a new HP loan via HG and settled the HP loan under the earlier HP arrangements in 1997. 149.As explained in paragraph 30 above, Kwong Chiu replaced the Old EF1626 with the purchase of the New EF1626 in 2004 via HG. This was also borne out by the novation agreement dated 2 June 2004 between Hang Seng and Kwong Chiu and Au trading as Wing Cheong PLB. To put such novation agreement into effect, on 24 June 2004 the old HP account for the Old EF1626 was settled/closed by Hang Seng, and a new HP account was set up by Hang Seng for the New EF1626, and Kwong Chiu and Au trading as Wing Cheong PLB entered into a new HP agreement with Hang Seng in respect of the New EF1626 to be repaid by 60 monthly Instalments of $24,934 each. The new HP loan was fully repaid by 30 June 2009[40]. Kwong Chiu paid the Instalments under the aforesaid HP agreements. 150.Indeed, the purchase of the New EF1626 was evidenced by following receipt (marked as paid by Hang Seng cheque) together with a breakdown of the cost of the New EF1626:
XVIII. ALLEGED DEMAND IN 2006 151.In/about 2006, Yuet Ying’s marriage broke down and there was litigation in France over the custody of her only child and the distribution of matrimonial assets. Since her child would not live with her and she did not have many friends/relatives in France, she decided to return and settle in Hong Kong. At the time of the YY Aff in May 2010, Yuet Ying was spending for more than half of each year in Hong Kong, and returning to France mainly to visit her child and to deal with ancillary relief matters. 152.In the YY Aff, Yuet Ying claimed that since she would return to Hong Kong for good, there was no further need for Kwong Chiu to manage the Minibus, so in 2006 when she returned to Hong Kong she asked Kwong Chiu to transfer the ownership of the Minibus back to her and Kwong Chiu agreed to do so when she moved back to Hong Kong, and upon being satisfied with Kwong Chiu’s promise she went back to France to tackle the family litigation. But when Yuet Ying gave evidence, she said the YY Aff was erroneous because she did not return to Hong Kong in 2006 and 2007, and in fact she telephoned from France in July/August 2006 to tell Kwong Chiu of her marriage problems and her intention to return to Hong Kong, and to request for the return of the Minibus to her. 153.On balance, I do not accept Yuet Ying made any demand for the return of the Minibus in 2006. First, the obvious discrepancy of the demand being made in person in Hong Kong or via long distance telephone could not be satisfactorily explained. Secondly, I do not believe that Yuet Ying would have discussed her marriage problems with Kwong Chiu because they were not that close. Thirdly, even in the context of Yuet Ying’s demand for the return of the Minibus, I find it surprising there was no mention by Kwong Chiu of the replacement of the Old EF1626 by the New EF1626 given that this was a material development since December 1992, and he himself had expended money on it. Fourthly and importantly, I have found that Yuet Ying knew the ownership of the Minibus had been transferred to Kwong Chiu as legal/beneficial owner, so she would not have demanded for the return of the Minibus. 154.Still further, Yuet Ying gave evidence that when she returned to Hong Kong in 2008 she intended to collect three years of Excess Rental (ie from 2006 to 2008 inclusive) in one go, but Kwong Chiu did not pay any to her. But in the Statement of Claim, Yuet Ying only sought payment of outstanding rental from August 2007 onwards. Mr Lee submitted this must have been an innocent mistake because Yuet Ying would not have been prepared to forego a year’s rental of some $300,000 ($900 x 365 = $328,500). I disagree this was any innocent mistake. Rather, it reflected the unreliability of Yuet Ying’s evidence, and her tendency to make up her case as she went along. 155.The Mother in her affirmation filed on 18 May 2010 (“Mother Aff”) claimed that in/about 2006 Kwong Chiu told her Yuet Ying had asked her to transfer the Minibus back to her, and he was willing to do so. But in her oral testimony, although she confirmed she signed such affirmation, she insisted the above information was not given by her because the Minibus was not hers and she would not be bothered. Again, such inconsistency speaks of the unreliability of the Mother’s evidence. 156.In the circumstances, I find on balance Yuet Ying never made any demand for the return of the Minibus in 2006, and Kwong Chiu did not accede to any such request. Further, Kwong Chiu was not obliged to and did not pay any Excess Rental to Yuet Ying. XIX. DEED 157.On 27 August 2007, the Mother signed the Deed which provided as follows:
158.Koo said the Deed was drafted and prepared by THKA. He was the supervising partner and Kwok Po Tai Charlotte (“Kwok”) was the handling solicitor. Koo recognised Kwok’s signature on the Deed. According to THKA’s file record, the Deed was drafted by Kwok, and as supervising partner Koo asked Kwok about the case and amended her draft of the Deed. The Mother attended THKA’s offices on 27 August 2007 to sign the Deed in the presence of a third person (but Koo was not present), and the whole exercise took about 20 minutes. There was no dispute that such third person was Au.[41] 159.The Mother claimed she was hospitalised for 11 days in 2007 for serious lung problem, but Kwong Chiu denied this. A receipt by Adventist Hospital showed she was hospitalised for chest/thoracic problems for 11 days from 18 to 28 January 2008. There was also a receipt issued by St Teresa’s Hospital for 25 May 2007, and the Mother agreed she had cataract surgery for both eyes. In my view, it is more probable than not that the Mother was hospitalised for lung problem in 2008 rather than 2007, but since the parties agreed that the Mother was hospitalised due to health problem in 2007 I shall proceed on such basis. 160.Kwong Chiu claimed that ever since Yuet Ying emigrated to France his family had a good/close relationship with the Mother, and took good care of her when she was hospitalised in 2007. After her discharge from hospital, the Mother worried about her health condition. She anticipated there might be family disputes over the ownership of the Minibus after her death because the other Siblings had mentioned a number of times that the price of minibus licence had soared, so she asked Kwong Chiu how to avoid possible dispute. Kwong Chiu suggested she could make a written record to confirm the ownership of the Minibus and her gift of the EF1626 Down Payment to him, but he did not suggest that such record be made at a lawfirm. The Mother accepted his suggestion, and later invited Au to accompany her to a lawfirm to sign the Deed. Kwong Chiu denied it was Au who told the Mother the contents of the Deed, or that he and/or Au threatened her. Kwong Chiu knew of the contents of the Deed when Au returned home from the visit to the lawfirm and gave the Deed to him. Kwong Chiu trusted the professionalism of the solicitors who prepared the Deed and witnessed the Mother’s signature. 161.On the other hand, the Mother claimed that Kwong Chiu had heart surgery in 2007 and asked her to tell Yuet Ying not to claim for or discuss with him about the return of the Minibus because he could not take the pressure. The Mother therefore told Yuet Ying to withhold pressing Kwong Chiu for the transfer of the Minibus back to her for the time being, and even said she would not recognise Yuet Ying as a daughter if she agitated Kwong Chiu again. Yuet Ying said this was said in a telephone conversation in 2007, and she promised to defer her claim until Kwong Chiu’s health condition stabilised. 162.The Mother agreed that Kwong Chiu’s family was good to her when she was hospitalised in 2007 even though many other friends/relatives also visited her. She claimed Kwong Chiu’s family clinged to her so much that the younger Siblings could not get close to her. About a week after her discharge from hospital, Au brought her to a lawfirm (but at that time the Mother did not know it was a lawfirm and she would not know the way there without Au) to sign the Deed. Upon arrival a woman invited them in, and they sat down at an open space with a table and few chairs. The Mother claimed Au took out a piece of paper from her handbag and asked her to sign on the same. 163.The Mother said Au told her that if she signed the Deed, there would not be any more argument and Yuet Ying would not be able to claim against Kwong Chiu for the Minibus and/or “nag” (囉唆) after the Mother died, and only then would Au properly handle the Mother’s funeral. In the Mother Aff, the Mother said “[she] explained to Au the Minibus was not [hers] and it was [Yuet Ying] who paid the purchase price of the Minibus, so [the Mother] should not be able to sign [the Deed]”. But Au said if she failed to do so, Au might not handle her funeral properly. The Mother, who was weak after discharge from the hospital and old-fashioned about funeral matters, and who worried that arguments over the ownership of the Minibus would affect Kwong Chiu’s health, was unhappy and wanted to leave as soon as possible, so she signed the Deed even though the contents were untrue in that she never gave or lent any money for Kwong Chiu and/or Au to buy the Minibus. The Mother said the whole exercise took a short time, and all along the woman did not say anything and only watched her sign the paper. 164.The tenor of the Mother’s evidence was that she knew the contents of the Deed were incorrect and that she should not sign it[42], but she was overcome by Au’s threats about not handling her funeral properly and her wish to avoid future dispute amongst the Siblings over the ownership of the Minibus. But under cross-examination, the Mother claimed she did not (a) understand that the Deed stated she had gifted the Old EF1626 to Kwong Chiu, (b) know whether it was right or wrong to sign the Deed even though she was unhappy about it, and (c) know she was under threat by Au. In short, the Mother was saying that at the material time she was unaware of Au’s threat, and she signed the Deed because she trusted Au. Indeed, she maintained that up to the end of 2009 she still trusted Au and did not realise there was any problem with the Deed (because Au clinged to her and the younger Siblings could not get close to her). And yet when she was pressed further under cross-examination as to whether she knew the contents of the Deed when she signed it, the Mother said “咁佢話即你我死咗，就宜得咁唔使羅月英囉嗦佢，話我送畀佢” and confessed she felt it strange to be asked to sign the Deed. 165.The Mother said that when Yuet Ying returned to Hong Kong in December 2009 she told the Mother she would return to Hong Kong for good after her divorce/custody proceedings. The Mother believed Yuet Ying would need the Minibus for her business, so she told Yuet Ying “that [Kwong Chiu] had requested her to sign [the Deed] pretending that [she] had given him money for the down payment of the Minibus”[43]. Yuet Ying became agitated and asked the Mother why she gifted the Minibus to Kwong Chiu when it belonged to her and whether the Mother had a copy of the Deed. Since the Mother did not possess a copy of the Deed, she brought Yuet Ying to the lawfirm to obtain a copy of the same. Yuet Ying also said it was only in December 2009 when she returned to Hong Kong that she asked the Mother about the Minibus and the Mother told her she signed the Deed to gift the Minibus to Kwong Chiu upon Au’s request/threat. 166.On balance, I find the Mother’s and Yuet Ying’s allegations incredible, and reject the same. First, I have found that to the knowledge of the Mother and Yuet Ying the Old EF1626 belonged to Kwong Chiu after December 1992, and the contents of the Deed merely reflected the actual situation. There could not have been (or any need for) any threat to the Mother for her to acknowledge by the Deed what was the actual situation. 167.Secondly, Mr Lee confirmed that the Mother and Yuet Ying would not allege any impropriety against the solicitors in respect of the Deed. I find it strange and incredible that the “woman” at the lawfirm (possibly Kwok who witnessed the Mother’s signature) took a passive role (when it was Kwok and Koo who prepared the Deed) whilst Au gave the Mother the Deed and asked for her signature. In my view, THKA were the Mother’s solicitors, and the Deed was made for the Mother and witnessed by Kwok. I further find on balance that Kwok and Koo prepared the Deed on the instructions of the Mother, who merely invited Au to accompany her to the lawfirm. 168.Thirdly, I do not believe the Mother that she did not know she signed the Deed at a lawfirm or that she did not know where such lawfirm was located. The discussion below about her return to the lawfirm to obtain a copy of the Deed and the preparation of her will in 2008[44] reflected the implausibility of such suggestion. 169.Fourthly, the Mother’s case wavered uncertainly between whether at the time of signing the Deed she actually knew the contents of the Deed were incorrect but signed under Au’s threat or whether at the time of signing the Deed she did not know the contents of the Deed but still signed it because she trusted Au. In my view, such uncertainty undermined her allegations. The Mother Aff plainly suggested that the Mother knew the contents of the Deed were wrong and she signed the same under Au’s threat. If that were the case, I see no reason why she could not have mentioned it to her other children or THKA within the two years until December 2009[45]. But if she was all along unaware of the contents of the Deed and trusted Au, it is not understood why she was able to tell Yuet Ying about the contents of the Deed and Au’s threat in December 2009. 170.Fifthly, I am not persuaded by the Mother’s allegation that Au made the threat that she would not properly handle the Mother’s funeral unless she signed the Deed. There was no evidence that the Mother ever approached Kwong Chiu being her eldest son afterwards for assurance or clarification about this. Further, she had six other children, and in her evidence the Mother agreed that if Au did not properly handle her funeral, the younger Siblings would cooperate to handle her funeral. 171.Sixthly, on balance I reject the suggestion that the Mother did not mention to Yuet Ying about the Deed until December 2009. In my view, if (as the Mother at one stage claimed) she knew that the contents of the Deed did not reflect her understanding and she was unhappy over Au’s threat (and it is interesting to note that on her case she was able to tell Yuet Ying what the Deed was all about in December 2009 which revelation agitated Yuet Ying), there was no plausible reason why she could not have told any of her other children (including Yuet Ying) in the ensuing two years. A telephone call would have sufficed, and yet nothing was done. In my view, this could only be because the Deed reflected the truth and the Mother accepted that. 172.Seventhly, I do not agree that the Mother was silent over the Deed because she trusted Au until three to four years later when Au scolded her and criticised her for being domineering. This did not sit well with her knowledge of the allegedly erroneous contents of the Deed and Au’s threat as set out in the Mother Aff. In my view, the relationship between the Mother and Kwong Chiu/Au had soured over (a) the matter of the tenancy agreement over the Wo Yi Hop Ppty in/about July 2009[46], (b) Au’s return of $80,000 to the Mother in/about September 2009[47], and (c) the 2041 Action[48], and it was due to such fall-out that the Mother now refused to recognise the Deed. 173.Eighthly, the Mother’s evidence as to how in/after December 2009 she again found the lawfirm where she signed the Deed is unbelievable. The Mother claimed that upon Yuet Ying’s enquiry as to whether she knew the address of the lawfirm, she replied that she roughly knew where it was and once they reached Hong Kong Island they could make enquiries. Initially the Mother said by asking around and strolling about they arrived at the lawfirm, but she later said she forgot how she found the place. This explanation is especially unbelievable because (a) the Mother claimed she did not even know it was a lawfirm or where such lawfirm was located when Au first brought her there, (b) she also claimed that she spent all her time in Tsuen Wan and was unfamiliar with Hong Kong Island or Kowloon, but (c) she in fact had personal meetings with solicitors of THKA on three occasions and telephone conversations with them on six occasions in 2007-2008 in respect of her will[49]. 174.Ninthly, as Mr Cheuk pointed out, there was no application by the Mother or Yuet Ying to set aside the Deed in the present action or otherwise. 175.Mr Lee criticised the Deed for referring to the partnership in the name of Kwong Chiu and Au and their identity card numbers which he said could only come from them. But such information was available from publicly accessible business registration records[50], and the Deed was prepared by a professional lawfirm. Indeed, the Deed referred to the business registration number of Wing Cheong PLB. 176.Mr Lee next complained that the Deed made precise reference to $512,878 being the EF1626 Down Payment, but I have found that the Mother and Yuet Ying were aware of Kwong Chiu’s HP arrangements with Wing On for effecting the transfer of the ownership of the Old EF1626 in December 1992. 177.Mr Lee also argued that the “condition clause” in the penultimate paragraph of the Deed was redundant since it was Kwong Chiu’s case was that he became the owner of the Old EF1626 since 1992 and the Mother had no further interest in the Old EF1626 for disposal in 2007. Mr Lee also submitted that the last paragraph of the Deed was unnecessary if it was to record the historical fact of a gift back in 1992 otherwise the other potential contestants of interest in the Old EF1626 (ie family members and relatives of the Mother) ought to be joined as parties to the Deed. I reject these arguments. It must be remembered that the Deed was prepared by solicitors and the purpose of the Deed was to avoid future dispute over the ownership of the Minibus. Consistent with such purpose, the “condition clause” was lawyerly precaution against any possible dispute. It did not say the Mother actually had any interest in the Minibus, but rather made clear that in case it was suggested there was any interest whatsoever she would relinquish it to Kwong Chiu. Likewise, the last paragraph of the Deed was declaratory of the Mother’s clear intent. Since this was intended to a declaration by the donor, I see no reason for others to be joined as parties to the Deed. 178.In all the circumstances, I find that the Deed reflected the true situation, and that the Mother well knew and agreed to its contents when she voluntarily signed it. THKA (and hence Koo and Kwok) were the Mother’s lawyers, and they prepared the Deed for her. Au merely accompanied her to the lawfirm and did not make any threat at all[51]. XXI. 2008 179.Yuet Ying claimed that in/about July/August 2008 she returned to Hong Kong and telephoned Kwong Chiu to request for a meeting but he refused to meet her. Yuet Ying also said Kwong Chiu refused to pay her the Excess Rental for 2007 to 2009 (according to the YY Aff and the Amended Statement of Claim which amendment was made on the first day of trial) and she chased him three to four times by telephone but she did not really press him. Thereafter, she was in a hurry to leave Hong Kong to deal with her family litigation in France. But when Yuet Ying gave evidence, she said Kwong Chiu failed to pay her the Excess Rental since 2006 (because she did not return to Hong Kong in 2006 and 2007)[52], and admitted she was careless in failing to claim for non-payment of the Excess Rental for 2006. 180.Kwong Chiu denied these allegations. I have found that by 2008 Yuet Ying and the Mother knew the Minibus belonged Kwong Chiu, and there was no reason for Yuet Ying to talk to Kwong Chiu about any Excess Rental any more. In any event, I find it incredible even on Yuet Ying’s own case that she would have forgotten about the loss of Excess Rental for 2006 throughout all these years and suddenly remembered it in the course of evidence. I find this reflected a tailoring of evidence to suit her allegation that she did not return to Hong Kong in 2006 to collect the Excess Rental for that year. I find her evidence wholly unreliable. XXI. MOTHER’S ALLEGED LOAN 181.On 31 December 2008, the Mother deposited $200,000 by cashier order into Au’s bank account with Nanyang Commercial Bank, Ltd. The Mother claimed Au asked her for a loan, and she acceded because she pitied Au who was carrying on business then and had no money. On the other hand, Kwong Chiu said that in/about December 2008 the Mother requested Au to hold $200,000 for her because the Mother did not use the ATM and only withdrew limited cash from the bank for daily use so it would be convenient for her to ask Au for money if she had no cash to use when the bank was closed on Sundays and public holidays. Kwong Chiu said that from time to time the Mother did ask Au for cash, which would be deducted from the deposit until it was reduced to $80,000 in September 2009. Kwong Chiu claimed that by that time his relationship with the Mother was not as good as before and Au felt it was troublesome to handle the Mother’s money, so Au decided to return the remaining balance of $80,000 to the Mother by cheque dated 25 September 2009. The mother signed her acknowledgment on a photocopy of such cheque as follows:
On the other hand, the Mother claimed Kwong Chiu was a frequent gambler who often borrowed from her, and in 2009 he borrowed $80,000 from her but later repaid the same. In short, the Mother claimed there were two separate loans of $200,000 and $80,000 to Au and Kwong Chiu respectively. But she later said she could not be sure due to long lapse of time. 182.I do not believe the Mother in this respect. If Au had threatened the Mother to make her sign the Deed and she was unhappy about the Deed since its contents were not true[53], there was no reason for the Mother to still lend $200,000 to Au in December 2008. It is even more incredible when the Mother claimed Au threatened her and thereby made her sign her will in November 2008 (ie a month before she allegedly lent $200,000 to Au)[54]. Further, the acknowledgment signed the Mother clearly stated that the sum of $200,000 was deposited with (寄存) and not lent to Au. Still further, save for helping Kwong Chiu with managing the Minibus and assisting him at his office, Au was a housewife. The Mother did not say what business Au was engaged in that required a loan from her. In any event, the Mother never explained whether or not the alleged loan of $200,000 was repaid. On balance, I prefer Kwong Chiu’s explanation and reject the Mother’s evidence in respect of the deposit of $200,000 with Au in December 2008 and Au’s return of the remaining balance of $80,000 to the Mother in September 2009, and I have already rejected the Mother’s evidence that Kwong Chiu was a frequent gambler and ne’er-do-well[55]. I also find that Au returned the sum of $80,000 to the Mother because of the fall-out between the Mother and Kwong Chiu over the tenancy agreement in respect of the Wo Yip Hop Ppty in/about July 2009[56]. I prefer Kwong Chiu’s evidence that as at 2008/2009 he had sufficient funds and would not need to borrow $80,000 from the Mother. I note that the HP loan by Hang Seng on the New EF1929 was fully repaid by June 2009, so a substantial portion of the loan must have been repaid by November 2008, and there should be no difficulty for him to raise funds by re-mortgaging the New EF1626 in 2008/2009. Such re-mortgaging was possible as evident by the 1990 HP Loan in respect of the Old EF1626. XXII. MOTHER’S WILL 183.On 13 November 2008, the Mother signed/initialled her will (“Will”) at TKHA’s offices, and by such Will appointed Au as her executor and trustee and bequeathed her properties/assets amongst the Siblings in equal shares. The signature clause of the Will was as follows:
184.Koo confirmed that both Kwok and Shiu Ka Yip Arthur were THKA’s solicitors, and he recognised their signatures on the Will. He was the supervising partner and Kwok was the handling solicitor in respect of the preparation and execution of the Will. Before the Mother signed the Will, TKHA’s personnel had three personal meetings with the Mother on 27 August and 21 December 2007 and 13 November 2008 (ie date of the Will) and six personal telephone conversations with the Mother on 21 December 2007 and 12 January, 5 May, 7 May, 2 September and 16 October 2008. 185.The Mother claimed she did not want to make the Will, but Au brought her to the lawfirm. The same woman who watched her sign the Deed opened the door to let them in. They sat down and Au took the Will out of her handbag. Au told the Mother to sign her name, and she then put the Will back into her handbag and they left. The Mother said that up to the time they left, she had not seen any person other than Au and the woman who opened the door for them. The Mother claimed she only went to the lawfirm once for the purpose of the Will. 186.The Mother claimed she could not remember whether any lawyer interpreted the contents of the Will to her, but Au told her to sign the Deed by saying that when she died “就宜得打理妳身後事，我家人，唔係就好麻煩，妳咁多仔女”, and to appoint Au as her executrix and trustee by saying she had T’ing house/land and “又係我做大，呢啲地，第日你死，我就做處理”. The Mother claimed that at that time she was just discharged from hospital, and she was ill/confused and worried that Au would not handle her funeral properly. She even cried over the matter. But the Mother also said in evidence that she trusted Au then and could not say whether Au forced her to sign the Will, but she now realised Au threatened her. 187.The Mother made no accusations against the solicitors. In such circumstances, there could not be any doubt that the Mother and not Au was the client of THKA. In fact, the matter of making a will was first raised between the Mother and THKA on 27 August 2007 (ie the very day that she signed the Deed), and the Will was only finalised and signed after three personal interviews and six personal telephone conversations that spanned more than a year. Further, there was also no doubt that Kwok had interpreted the contents of the Will to the Mother who appeared to understand and approve the contents before she signed the Will in the presence of two (and not one) solicitors. I totally reject the Mother’s account as to how she came to execute the Will, including her allegation that Au took out the Will from her handbag for her to sign and then put the signed Will back into handbag or that there was no male solicitor present. 188.Further, there was no evidence to show that the Mother was hospitalised just before the execution of the Will in November 2008. If her allegation was referable to her hospitalisation in 2007, there was no reason why she could not have spoken with the solicitors of TKHA about her concerns in relation to the executed Deed and the intended Will in her personal meetings and personal telephone conversations with them. There was no evidence that Au was present on those occasions. Further, even on the basis of the Mother’s claim that it was Au who suggested distribution of her estate amongst the Siblings (and the Will provided for provision of 1/7 of the Mother’s estate to Kwong Chiu), I am unable to understand why Au would threaten the Mother to sign the Will when Kwong Chiu, Au and their family would not be favoured over the other Siblings in respect of the Mother’s estate. More importantly, even though the Mother complained that Au threatened her and she did not want to make the Will, she did not say she disagreed with the manner of distribution of her estate as set out in the Will or that she had since formally revoked the Will. 189.On balance I do not believe the Mother. I find she was a strong-willed lady who would not be coerced or threatened by any suggestion that Au would not handle her funeral properly and/or who would not remain under the influence of such threat for more than two years. In my view, the Mother trusted Au and that was why she asked Au to accompany her to sign the Deed and why she nominated Au as her executrix and trustee of her estate. I also find that Au did not put any threat or pressure to bear on the Mother. After all, the Deed reflected the truth and the Mother made equal distribution of her estate amongst the Siblings. XXIII. 2009 FAMILY GATHERING 190.There was another Family dinner gathering at a restaurant in August 2009. The Mother, Kwong Chiu, Au, his daughters, his son-in-law and Yiu Wah sat at one table. Yuet Ying sat at another table. Yip was also present at the gathering. 191.Yuet Ying claimed that when she arrived at the gathering the dishes were being served and Kwong Chiu’s family was already there. Yuet Ying and the Mother considered that Kwong Chiu’s health had stabilised by then, so Yuet Ying asked him when he would transfer the Minibus back to her. According to the YY Aff, Kwong Chiu became agitated and asserted Yuet Ying was not the owner of the Minibus, and they had a serious quarrel. The Mother and Fung Yee also mentioned Kwong Chiu refused to transfer the Minibus back to Yuet Ying, and there was heated argument over the ownership and rental of the Minibus. 192.But under cross-examination, Yuet Ying said when she first saw Kwong Chiu at the gathering she walked over to ask him about the ownership and rental of the Minibus. Kwong Chiu and his family talked amongst themselves and did not answer her. After several dishes were served, Au stood up and said loudly the Minibus would not be returned, so Yuet Ying stood up and declared that the Minibus was hers and told Au not to interfere in her dispute with Kwong Chiu since she was not surnamed Lo/Law. Kwong Chiu retorted that Yuet Ying herself was not surnamed Lo/Law. Before the end of the meal, Kwong Chiu’s family left. After that, Yuet Ying challenged Yiu Wah as to why he urged the Mother to pay tax, and there was a row over such tax issue[57]. 193.Yuet Ying in the YY 2nd Stmt said Yip left early so it was unsurprising that she did not hear the argument about the Minibus. But when Yuet Ying gave evidence, she said she did not pay attention and was unaware whether Yip was still present or whether she left in the middle of the meal. But when pressed under cross-examination, she accepted Yip was still present up to the time when three to four dishes had been served, but claimed she did not know whether Yip heard the argument over the Minibus. 194.On the other hand, Kwong Chiu denied there was discussion/argument or claim made against him in respect of the Minibus at the gathering even though he believed Yuet Ying was not happy that he did not assist her and the Mother in their dispute with Yiu Wah[58]. When almost all dishes were served, Yip was the first to leave. Then Fung Yee’s son asked his wife and daughter to leave. About five to ten minutes later, Yuet Ying came over to sit down at Kwong Chiu’s table, but there was no conversation between her and Au. Yuet Ying told Yiu Wah she had something to say to him, but the Mother told her not to stir things up. Kwong Chiu felt something was going to happen, and since he had heart disease and his second daughter was pregnant, he stood up to leave with his family. Yuet Ying tried to stop them from leaving by pointing at them and saying “if your surname is Lo/Law, then you can’t leave”. Kwong Chiu thought Yuet Ying hoped he might assist in resolving the dispute with Yiu Wah, but he did not want to be involved. Au responded by asking why they could not leave, and their family just kept going. Yuet Ying threw a plate at their direction, but they ignored her and left. Subsequently, they learned that Yuet Ying had a fierce quarrel with Yiu Wah as recorded in the Recording, but Kwong Chiu himself never viewed such recording. 195.Yiu Wah also said Yuet Ying did not make any claim against Kwong Chiu or discuss with him about the ownership of the Minibus at the Family gathering in August 2009. Yiu Wah’s son made the Recording, but when the Recording started Kwong Chiu and his family had left the scene. 196.Yip had clear recollection of the Family gathering in August 2009, which she said was on the third day of the seventh month of the lunar calendar. She left after the chicken dish was served because she took away a doggie bag of chicken. She recalled Yuet Ying did not have any discussion with or make any claim against Kwong Chiu over the ownership of the Minibus. 197.On balance, I reject the evidence by Yuet Ying, Fung Yee and the Mother in respect of the Family gathering in August 2009. First, I find there was no reason for Yuet Ying to raise the subject of the Minibus because to her knowledge the Old EF1626 had been transferred to Kwong Chiu since December 1992. Secondly, her evidence as to how the quarrel with Kwong Chiu took place was inherently inconsistent as to whether she had words with Kwong Chiu (see the YYAff) or Au (Yuet Ying’s oral evidence). Thirdly, Yuet Ying at first suggested that Yip was unaware of the quarrel over the Minibus because of her early departure, but this did not sit well with Yuet Ying’s own evidence that she raised the issue of the Minibus at the beginning of the dinner when she first saw Kwong Chiu at the gathering, and also with Yip’s evidence that she only left after the chicken dish (ie after several dishes had been served). On balance, I prefer the evidence of Kwong Chiu, Yiu Wah and Yip as to what happened at the Family gathering in August 2009. XXIV. MISCELLANEOUS MATTERS (a) Tenancy agreement 198.Kwong Chiu said that in/about July 2009 the Mother asked Au to draft a tenancy agreement for Yiu Wah in respect of the Wo Yi Hop Ppty, but Kwong Chiu found the conditions proposed by the Mother unreasonable. There were also tax issues because the Inland Revenue Department (“IRD”) raised requisitions as to why the Mother never paid property tax when she had let the Wo Yi Hop Ppty to Yiu Wah for so many years. The IRD also demanded the Mother to pay property tax, but she felt it should be paid by Yiu Wah since he carried on business at the Wo Yi Hop Ppty. Kwong Chiu tried to explain to her that property tax had nothing to do with Yiu Wah’s business, but the Mother felt he sided with Yiu Wah and since then his relationship with her soured. 199.I accept on balance the above account by Kwong Chiu. In my view, this was one of the reasons why the Mother turned against Kwong Chiu and Au, and made up the allegations against them in respect of inter alia the Minibus, the Deed, the Will and the alleged loans of $200,000 and $80,000 to Au and Kwong Chiu respectively. Further, the issue over property tax with the IRD was the subject matter of the dispute between Yuet Ying and Yiu Wah at the Family gathering in August 2009 and of the Recording, and it was plain from the Recording that Yuet Ying made a fierce and aggressive attack of words on Yiu Wah, which palpably demonstrated her deep animosity against him (and Kwong Chiu whom she perceived to have sided with him). (b) 2401 Action 200.Kwong Chiu said the dispute between the Mother and Yiu Wah finally led to the 2041 Action which was settled shortly before the trial of the present action. I accept on balance that during the course of the 2041 Action, the Mother called Kwong Chiu twice to ask for a loan of $1,000,000 to fund her resistance to Yiu Wah’s claim, but he refused so their relationship turned for the worse. In my view, this was also why the Mother inter alia renounced the Deed, the Will and the transfer of the Minibus to Kwong Chiu. On balance I do not accept that Yiu Wah testified against Yuet Ying because she helped the Mother by testifying against him in the 2041 Action. (c) Sale of land 201.The Mother claimed that in 2009 Kwong Chiu asked her to pretend to sell the Wo Yi Hop Ppty to him so that he would be the sole owner after her death, and there would not be any argument over her property. He also suggested that she could tell the other Siblings (if they asked about the the sale proceeds) the money was spent in a Macau casino to cover up the fact he never paid for the transfer, but the Mother refused his request. 202.I reject the Mother’s allegation which I find implausible. It was the Mother’s own stance that Au persuaded her to make the Will in November 2008 that provided for even distribution of her estate amongst the Siblings without favouring Kwong Chiu. The Mother did not give any sensible reason for Kwong Chiu’s change of stance shortly thereafter or why Au did not simply persuade her to favour their family in the Will. I find such allegation by the Mother to be an unwarranted attempt to smear Kwong Chiu, which I do not accept. (d) 2010 203.The Mother claimed that in/about early 2010 she was having a meal with Fung Yee at a restaurant in Tsuen Wan when she overheard two men talking about their intention to buy the Minibus which its owner offered for sale at below the market price. The Mother claimed she told Yuet Ying about this. Kwong Chiu denied this and I accept his evidence. But even if what the Mother overheard was true, it was irrelevant because by 2010 Kwong Chiu was the owner of the Minibus. (e) Visit to Mr Hung’s factory 204.Yuet Ying claimed Yip gave evidence against her because of an unhappy incident which led to a fall-out between the Mother and Yip. Yuet Ying said that after the commencement of the 2401 Action, she went with Yip, the Mother and Fung Yee to a factory in Mainland China to urge its owner Mr Hung to provide copy documents for the litigation. Mr Hung was cooperative and was prepared to locate documents for them. But when they contacted him later, he did not want to be involved and was unwilling to provide the documents. The Mother, Yuet Ying and Fung Yee suspected Yip might have leaked news of their visit to Yiu Wah who might have put pressure on Mr Hung. Later the Mother questioned Yip about this over a meal with Fung Yee, but Yip did not reply and left the restaurant. 205.The Mother’s supplemental witness statement dated 9 October 2012 (“Mother 2nd Stmt”) gave the same account as the one given by Yuet Ying. But when she gave evidence, she said that Yip went to Mainland China to visit her younger brother, and after such visit Yip stayed with them. Fung Yee and Yuet Ying went out to do work, but the Mother said she was tired and did not go to the factory and Yip stayed with her at the hotel. The Mother said she was not sure whether Yip leaked news of their visit to Yiu Wah, but she did tell Yip not to interfere in these matters, or repeat what she had heard, or pass information to either side. Later the Mother said in evidence she had not heard of any Mr Hung or any factory in Shenzhen, and she only passed through but did not actually visit that city. 206.Yip frankly admitted she has a younger brother in Mainland China and she accompanied the Mother, Yuet Ying and Fung Yee to Mainland China in/about August 2009 shortly after the Family gathering in 2009. She was unaware of any visit to Mr Hung or who was Mr Hung. Yip stayed with the Mother at the hotel, and only Yuet Ying and Fung Yee went out to deal with their own affairs. They stayed overnight in Mainland China and came back to Hong Kong the following day. Yip and Yiu Wah both said Yip never disclosed the visit to Yiu Wah. Yip Wah said he had spoken with Mr Hung who told him Yuet Ying and/or the Mother first visited him in June 2012 and not in 2009. Yip denied any confrontation with the Mother in a restaurant. 207.In my view, Yuet Ying introduced the evidence of the visit to Mr Hung with a view to undermine Yip’s credibility by suggesting that the Mother and Yip had a fall-out in 2009. However, such effort backfired when the fundamental inconsistencies in evidence between Yuet Ying and the Mother only served to highlight their implausibility and unreliability. The Mother confessed in evidence that she never heard of Mr Hung, and she did not visit Mr Hung’s factory, which flatly contradicted the Mother 2nd Stmt but corroborated Yip’s evidence. On balance, I reject the evidence of the Mother, Yuet Ying and Fung Yee in this respect. I prefer accept the evidence of Yip and Yiu Wah. XXV. RELIEFS SOUGHT 208.On the basis of the above findings, Yuet Ying’s claim fell to be dismissed. But in case I am wrong, I shall briefly deal with the reliefs sought by Yuet Ying. 209.First, even if Yuet Ying were able to establish that she was the beneficial owner of DD7619 and the Old EF1626, it is doubtful whether Yuet Ying could obtain a declaration that Kwong Chiu held the New EF1626 (in contra-distinction to the Old EF1626) for her benefit as the sole beneficial owner and to deliver up to her the New EF1626 with all necessary documents and licences. 210.As discussed in Part XVII above, the Old EF1626 had been replaced by the New EF1626 which was purchased by Kwong Chiu with the assistance of a HP loan from Hang Seng in 2004, which loan was repaid by Kwong Chiu. Since the Old EF1626 had been disposed of[59] and the New EF1626 was a different chattel, and the vehicle and passenger service licences went hand in hand with the New EF1626, Yuet Ying could not ask for the declaration and the order for specific delivery sought in respect of the New EF1626. 211.As regards Yuet Ying’s alternative claim for damages or equitable compensation, she claimed “[the] value of the Minibus is over HK$6 million now”. At the pre-trial review of this action, counsel for Yuet Ying (not Mr Lee) informed me that she would not seek to adduce expert valuation evidence. Yuet Ying was a witness as to fact, and she did not explain how she came to know as a fact the current value of the Minibus was $6,000,000. She also confessed in evidence that she had no experience in matters concerning minibuses. That being so, her evidence as to the current value of the Minibus (which I only allowed to be adduced on de bene esse basis) was nothing more than inadmissible opinion evidence without leave. I reject Mr Lee’s suggestion that it was factual evidence of general knowledge about minibuses. In the absence of admissible evidence as to the value of the Minibus, Yuet Ying’s alternative claim would also fail. 212.In respect of the claim for loss of rental from August 2007 to July 2009 in the sum of $604,800 (ie $900 x 28 days x 24 months), Mr Lee submitted there was evidence from Kwong Chiu that the daily rental for the relevant period was $900. But Kwong Chiu’s evidence was that the daily rental was increased to $900 after 2004 when the Old EF1626 was replaced by the New EF1626. This head of claim by Yuet Ying conveniently ignored that impact of the New EF1626 acquired by Kwong Chiu (in contra-distinction to the Old EF1626 transferred to him in December 1992) as well as the Instalments and Expenses in respect of the New EF1626 paid during the relevant period. Even if one were to ignore the impact of the New EF1626, Yuet Ying still had to give credit for the Expenses over the relevant period which she accepted in evidence would have to be defrayed from the rental income. But she failed to lead evidence on the same. Since there was no evidence before me as to the amount of Expenses over the relevant period which Yuet Ying accepted would have to be paid out of the rental income, she failed to prove she was entitled to accrued loss of rental of $604,800. 213.Since the Old EF1626 had been disposed of in 2004, I am also not persuaded that Yuet Ying would have been able to ask for an account of profits Kwong Chiu made from use of the New EF1626 from 1 August 2009 to delivery up thereof and payment of any profits so ascertained. Her claim at best would have been for the loss of the Old EF1626, but she failed to prove the quantum of such damages in the present action. XXVI. CONCLUSION 214.In the circumstances, I grant judgment in favour of Kwong Chiu against Yuet Ying for dismissal of her claim in this action. I also order that the Inter Partes Injunction be discharged. There is no reason why costs should not follow event. I therefore grant a costs order nisi that Yuet Ying shall pay costs of the action (including all costs reserved if any) in favour of Kwong Chiu to be taxed if not agreed.
Mr Lee Siu Him, instructed by Cham & Co, for the plaintiff Mr Calvin Cheuk, instructed by Cheung & Yip, for the defendant [1] see paragraph 32 below [2] see Star Glory Investment Ltd v Kai Tua (HK) Technology Ltd & ors HCA2523/2002, Chung J (unreported, 13 August 2005) para 12 (see also Four Seas Fishballs Co Ltd v Yeung Hung Sin & anor HCA4159/2003, Chung J (unreported, 25 August 2006) para 20, and Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corp Ltd [2007] 3 HKLRD 439, 494) [3] she could only understand Arabic numerals and simple written Chinese but could write her own name [4] HCA1455/2010, Mr Recorder H Wong SC (unreported, 15 August 2013) [5] annexed to Yuet Ying’s supplemental witness statement dated 9 October 2012 in the present action [6] see paragraph 58 below [7] see paragraph 58 below [8] see footnote 9 below [9] see Certificate of Particulars of Vehicle dated 26 April 2010 issued by the Transport Department [10] see letter from the Transport Department to Yuet Ying dated 17 November 2011 [11] see certified extracts of information of the business register in respect of Wing Cheong PLB dated 7 January 2010, and business registration certificate valid until 14 December 1994 issued to Wing Cheong PLB [12] see business registration certificates issued to Wing Cheong PLB valid until 15 December 2002, 15 December 2006, 15 December 2007, 15 December 2008 and 15 December 2009 respectively, and certified extracts of information of the business register in respect of Wing Cheong PLB dated 7 January 2010 [13] see letter from Hang Seng Finance Limited to the customer dated 30 June 2009 in respect of the New EF1626 referred to in paragraph 30 below [14] see Passenger Service Licence – Public Light Bus Service in respect of EF1626 issued by the Transport Department on 11 June 2007 in favour of Kwong Chiu for the period from 13 July 2007 to 12 July 2009 [15] see also the discussion in Part XVII below [16] see paragraph 47 above [17] see paragraph 22 above [18] see paragraph 45 of the YY Aff [19] see paragraph 61 below [20] [2012] 1 HKLRD 125 [21] see paragraph 145 below [22] see Part XIV below [23] see paragraphs 101-102 below [24] CACC127/2010 (unreported, 27 July 2011) [25] see paragraphs 131 and 135-140 below [26] see Ellis v Chief Adjudication Officer [1998] 1 FLR 184, 187-188 and 190-191 (Mr Lee further suggested that in the analogous context of testamentarty disposition similarly phrased conditions subsequent were held to be good in law, see In re McDonnell [1965] IR 354, 355 and 358-360) [27] [1998] 1 FLR 184 [28] [1965] IR 354 [29] KC 2nd Stmt stated that “正如 [Yiu Wah] 所述” Yuet Ying was required to return the HSBC shares and the Old EF1626 (which did not belong to her but were held (持有) by her for the Mother/Wing Cheong), and “[the Mother] 同意 [Yuet Ying] 及其他兄弟姊妹分配到一些利益於 [the Tsuen King Ppty] (只有 [Yuet Ying] 一人), [the Wing Hong Ppty] ([Yuet Ying]、[Yiu Wing]、[Yiu Wah]、[Yiu Chung]及[Yiu Chuen]) 及 [the Man Lee Ppty] ([Yuet Ying] 及 [Yiu Wah])” [30] save that he had heard mention, say, that the Mother paid the down payments for the Man Lee Ppty and Wing Hong Ppty, that Yiu Wing and Yiu Chuen used the Wing Hong Ppty to carry on the business of “安記五金”, and that Yuet Ying remitted $2,000,000 to France [31] which discussion (according to Yiu Wah) was triggered by concern that quite a number of Wing Cheong’s properties/assets were still in Yuet Ying’s name even though she was about to leave for France [32] see paragraph 9 of the YY 2nd Stmt [33] eg the Man Lee Ppty, Wing Hong Ppty and Tsuen King Ppty [34] according to Yiu Wah the 1992 Gathering took place after the 1992 Discussion, and according to Kwong Chiu the 1992 Gathering took place after the Mother’s proposal to him on board the Old EF1626 [35] see paragraph 128 below [36] see paragraph 114 above [37] on/about 25 February 1997, 24 November 2001 and 24 June 2004 [38] see withdrawals of $20,000 each on 2, 5, 9, 13, 16, 23 and 27 November 1992, $30,000 on 19 November 1992, and $40,000 on 25 November 1992 [39] see withdrawals of $30,000 each on 1 and 7 December 1992, $20,000 on 10 December 1992, $12,000 on 14 December 1992, $30,000 each on 16, 17 and 28 December 1992, $40,000 each on 21 and 31 December 1992 and $50,000 on 30 December 1992 [40] see letter from Hang Seng to the customer dated 30 June 2009 in respect of the Minibus [41] see paragraphs 160 and 162 below [42] see paragraph 12 of the YY Aff [43] see paragraph 18 of the Mother Aff [44] see Part XXII below [45] see paragraphs 171-172 below [46] see Part XXIV(a) below [47] see Part XXI below [48] see Part XXIV(b) below [49] see Part XXII below [50] see certified extracts of information of the business registration register in respect of Wing Cheong PLB dated 7 January 2010 [51] see also paragraph 189 below [52] see paragraph 154 above [53] see paragraph 12 of the Mother Aff and paragraphs 163-164 and 169-171 above [54] see paragraphs 183 and 186 below [55] see paragraphs 42 and 55 above [56] see paragraph Part XXIV(a) below [57] see Part XXIV(a) below [58] see Part XXIV(b) below [59] see paragraph 150 above which referred to “代折車殼EF1626” of $7,000 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||