Cln v. Lwl

FCMC 2030/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MATRIMONIAL CAUSES

SUIT NO. 2030 OF 2013

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Judgment
(Preliminary Issue on 3^rd Party’s Interest in Property)
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1.The matter before me is for the determination of a preliminary issue before proceeding to the parties’ FDR hearing over the dispute of certain funds totalling about HK$1.2 million in Hong Kong dollars and RMB in certain bank accounts of the Petitioner Wife, which turns on the beneficial ownership of a property purchased during her marriage with the Respondent Husband but put in her sole name from which those funds were sourced upon its subsequent sale.

2.The Wife’s case is that the said property was bought and paid for by her mother as her home with the assistance of a bank mortgage, but as her mother had no regular employment or income proof and hence not eligible for the mortgage application, it was decided that the property be purchased in the Wife’s sole name on trust for the Mother without any express declaration thereof, and upon its sale and from the proceeds those funds were placed with the Wife in RMB currency as investment on behalf of the Mother, but which is disputed by the Husband that the said property was in fact the parties’ own investment during the marriage and hence its sale proceeds should form part of their marital assets for division between them upon the dissolution of their childless marriage, and thus form the subject of dispute for determination in this hearing.

Background

3.The Husband, who was born in 1978 and is now aged 37, started working for Bank of China in 2000 and has since been promoted to his present job as a manager.

4.The Wife was born in 1979 and is now aged 36. She used to live with her brother and parents in her father’s property at Siu Lun Court, Tuen Mun (“Siu Lun Court Property”) which became vested in her mother’s sole name upon her father’s death in 2001 under a deed of family arrangement. The brother subsequently got married and moved out of the Siu Lun Court Property which was then occupied by mother and daughter.

5.In 2004 the Wife met the Husband at their job when she joined the Bank of China and they soon started a relationship. In early 2005 the Husband moved in with the Wife at the said Siu Lun Court Property with the consent of the Mother.

6.In 2007 with a plan for marriage the parties purchased a flat at Nanning Court, Tsuen Wan Centre (“Nanning Court Property”) for HK$1,180,000 by means of a mortgage to the Bank of China in the Husband’s sole name to take advantage of his entitlement to the best lending rate available to his post in the bank.

7.On 22^nd November 2008 the parties registered their marriage and made their home at the Nanning Court Property. Shortly thereafter the Mother sold her Siu Lun Court Property for HK$1,128,000 and for the next 6 months or so she stayed at the parties’ Nanning Court Property.

8.In June 2009 a flat in the same Tsuen Wan Centre at Kunming Court (“Kunming Court Property”) was purchased in the Wife’s sole name for HK$1,190,000 by means of a bank mortgage from Bank of China. This is the subject property in dispute which was according to the Wife purchased on trust for the Mother as her home and funded by her but put in the Wife’s name only to facilitate the mortgage application as the Mother had no regular income herself and would not have been eligible for the application.

9.This is as noted above disputed by the Husband whose case is that since their Nanning Court Property was too small to accommodate the Mother as well, and that rather than renting another place for the Mother and hence to incur rental expenses, it would be a better investment for them to purchase another property close by to accommodate the Mother by means of a bank loan for which they were to pay the monthly mortgage instalments, and that all they needed was a loan from the Mother to meet the down payment, and so they borrowed HK$500,000 from her but which they had since repaid, hence the Kunming Court Property was their own investment and not the Mother’s property.

10.In October 2010 the Wife left her job at the Bank of China to join JP Morgan as a computer software developer at a higher salary. In the following year of 2011 the parties decided to purchase a bigger flat and so in May 2011 they sold their Nanning Court Property for HK$2.3 million and used its net proceeds of about HK$1.1 million to fund the purchase of a flat at Ma Wan, Hong Kong (“Ma Wan Property”) for HK$3,268,000 in their joint names with the assistance of a mortgage loan of HK$2,240,000 from Nanyang Commercial Bank. In about July 2011 the parties together with the Mother moved into the newly renovated Ma Wan Property.

11.In August 2011 the Kunming Court Property was sold for HK$1,915,000 and upon deducting the outstanding mortgage the net proceeds of HK$1,260,000 were paid into the Wife’s Hang Seng Bank account, the bulk of which were subsequently converted into some RMB820,000 and held in an account in the Wife’s sole name with Nanyang Commercial Bank in its Shenzhen branch in China. It is the beneficial interest of this money that is at the heart of the parties’ dispute in their ancillary relief proceedings.

12.Sadly the parties thereafter started to experience marital difficulties which eventually led to the Wife moving out of their Ma Wan Property in October 2012 to reside in a rented apartment in Shatin, and in February 2013 she commenced these proceedings for divorce based on the Husband’s behaviour and for an order for the sale of the Ma Wan Property with its sale proceeds to be shared equally with the Husband.

13.Initially the Husband filed an answer to oppose the Wife’s petition, but the matter was subsequently resolved by the Wife amending her petition to one based on 1 year separation with the Husband’s consent, and the decree of divorce was eventually granted on 22^nd October 2013, with the question of ancillary relief adjourned for FDR hearing.

14.By then the parties had of course filed their Form E, with the Wife disclosing essentially a current monthly income of almost HK$43,000, bank savings of about HK$330,000 and a half-share in the said Ma Wan Property, but that she was also holding on trust for the Mother about HK$100,000 in 3 Bank of China accounts and RMB820,000 in the said Nanyang Commercial Bank account in Shenzhen.

15.As for his Form E the Husband disclosed an income of HK$32,000 per month, cash in the bank of about HK$211,000, and similarly his interest in the said Ma Wan Property. By then it was apparent that the Husband had taken issue with the beneficial ownership of the said Kunming Court Property and its subsequent sale proceeds in the Wife’s various bank accounts in particularly the RMB820,000, and that these factual disputes could not be resolved through FDR hearing, hence it was agreed by the parties that it be dealt with first by way of preliminary issue to determine whether the Mother was in fact the beneficial owner of those funds which would otherwise form part of the marital assets for distribution, which is essentially a civil action to which the civil procedure should normally apply, but in order to save costs and as the parties including the Mother had by then already filed their evidence by affirmation, it was also agreed between the parties that the procedure outlined in TL v ML & Ors (Ancillary Relief: Claim Against Assets Of Extended Family) [2006] 1 FLR 1236 and generally adopted by our Court of Appeal such as the filing of points of claims and defence, list of documents and witness statements were to be dispensed with.

16.As it is not in dispute that those funds in the Wife’s accounts were in fact sourced from the sale proceeds of the Kunming Court Property, and since it is not the Husband’s case that the Mother had gifted them to the Wife, the real issue before the court is therefore over the beneficial ownership of that property, of which it would be relevant to first set out the parties’ respective case and evidence as follows, starting with the Wife’s.

The Wife’s Case

17.As referred to above the Wife’s evidence is first set out in her Form E [A/1, 8 and 21-22], and then in her 2^nd and 3^rd Affirmations [A/28-40, 42-54] in more details, which can be summarised as follows:

(a) Upon her marriage to the Husband in November 2008 and made their new home at Tsuen Wan Centre, her mother sold her Siu Lun Court Property for HK$1,128,000 in order to live closer to the Wife, and the Mother was looking for a suitable property in the same neighbourhood, she temporarily stayed at the parties’ Nanning Court Property in their study room and slept on a makeshift bed;

(b) When the Mother eventually decided on the Kunming Court Property, she wanted to purchase it with a bank mortgage, but when she was advised by her estate agent that without any formal employment or income she would not be qualified for bank mortgage, and having discussed the matter with the Wife, it was decided that the Kunming Court Property would be purchased in the Wife’s sole name on trust for the Mother;

(c) The Kunming Court Property was purchased for HK$1,190,000 with a bank loan of HK$790,000, with the initial and down payments of HK$400,000 and necessary expenses including legal costs, stamp duty and agency fees all paid for by the Mother by transferring HK$500,000 from her Hang Seng Bank account into the Wife’s in the same bank on 10^th June 2009;

(d) The money left of the said HK$500,000 from the Mother were then applied by the Wife towards the monthly mortgage instalments of the Kunming Court Property;

(e) In 2011 the parties decided to sell their Nanning Court Property for the bigger Ma Wan Property so that the Mother could move in to live with them after an accident in her own home so that they could look after her in view of her advancing age;

(f) As a result the Mother sold her Kunming Court Property for HK$1,915,000 and upon paying off the outstanding mortgage of HK$646,251 and other relevant expenses, the balance of about HK$1,260,000 were deposited into the Wife’s said Hang Seng Bank account on various occasions in June and August 2011;

(g) Of this sale proceeds of HK$1,260,000, HK$200,000 were returned by the Wife to the Mother on 4 occasions between August and September 2011, about HK$1 million were then converted into RMB800,000 and invested for the Mother in a fixed deposit account held in the Wife’s name in the Nanyang Commercial Bank in Shenzhen to earn higher interest rate, while the remaining HK$100,000 were held in some of the Wife’s Bank of China accounts in Hong Kong to meet the Mother’s regular needs; 

18.The Wife’s evidence was corroborated by those of the Mother, now aged 63 and is said to be a part-time cleaner, as set out in her only affirmation [A/62 – 66] in which she explained inter alia why she decided to sell her Siu Lun Court Property to finance her purchase of the Kunming Court Property in order to live close to the Wife, the details of which no doubt will be examined more closely later in this judgment. 

The Husband’s Case

19.The Husband’s case is set out in his 3^rd Affirmation [A/114-133] and can be summarised as follows:

(a) It was the agreement of the parties that after their marriage, the Husband would spend his income on their regular household expenses including the mortgage payments, utilities and food expenses, while the Wife would save up her income for their investments and overseas holiday expenses;

(b) Pursuant to this agreement the parties shortly after their marriage on 24^th November 2008 opened an account in their joint names with the Bank of China and its passbook and ATM Card were kept by the Wife;

(c) After she sold her Siu Lun Court Property in December 2008, the Mother came to stay with the parties at their Nanning Court Property sleeping on the floor of their study room;

(d) When the Wife later realised that it would not be convenient for the Mother to continue to stay in their study room, the parties decided that rather than to incur expenses renting another flat to accommodate the Mother, it would be a better investment for them to use the money to pay for the monthly mortgage instalment if they were to purchase such a flat, and although they did not have enough savings to meet the down payment, they were to borrow it from the Mother who had more than HK$1 million in her hands from her recent sale of her Siu Lung Court Property;

(e) The parties therefore started looking for an appropriate flat in the Tsuen Wan area in mid-2009, and eventually decided on the said Kunming Court Property. On 8^th June 2009 the Wife paid HK$50,000 from their Bank of China joint account for the initial deposit, and 2 days later on 10^th June 2009 she obtained a loan of HK$500,000 from the Mother for the remaining down payment and other expenses, with the balance of the purchase price secured by a mortgage loan of HK$790,000 from Bank of China, and that the property was registered in the Wife’s sole name as their Nanning Court Property was already registered in the Husband’s sole name, it was thought to be fair that this property was to be registered in the Wife’s sole name; 

(f) In 2011 as property prices were on the rise, the Wife suggested to sell both Nanning Court Property and Kunming Court Property in order to purchase a bigger and more spacious home and that her mother could come live with them, to which the Husband agreed that it would make a good investment;

(g) As a result they sold the Nanning Court Property and used its net proceeds of HK$1,120,000 to pay for the down payment of the Ma Wan Property of HK$1,028,000, with the balance by means of a mortgage loan of HK$2,240,000 from Nanyang Commercial Bank, while the monthly repayment of which at about HK$10,800 as well as the legal costs and renovation expenses were all paid for by the Husband from his then monthly income of HK$29,000 and personal savings;

(h) Upon the parties moving into the Ma Wan Property in July 2011 together with the Mother, in addition to the monthly mortgage payments the Husband would as before also pay for all the household expenses including rate and utilities, while the Wife would save up her monthly income of about HK$30,000 for the family together with the sale proceeds of the Kunming Court Property, which explains why she has been able to accumulate substantial savings including those RMB820,000 in her Nanyang Commercial Bank account, and hence they cannot be any money held on trust for the Mother as the Wife had never mentioned it before until this litigation; 

20.It is therefore clear that the beneficial ownership of the Kunming Court Property is at the heart of the parties’ dispute, which turns on the following legal principles applicable to such dispute over properties.

Applicable Law and Principles

21.The legal principles to be applied to a property dispute such as this have been well established and very helpfully summarised by Mostyn J in the recent case of Bhura v Bhura & Others [2014] EWHC 727 at paragraph 8 of his judgment as follows:

“The applicable legal principles concerning a property dispute such as this are tolerably clear and have most recently been re-stated by the Supreme Court in Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776. In summary I think they are as follows:-

i) If there is an express declaration of beneficial interests then that is, almost invariably, the end of the matter. Such an express declaration can only be displaced if it has been procured by fraudulent conduct …

ii) If there is no express agreement about the beneficial interests then there is likely to be (at least) a tacit understanding. This is hardly surprising as one would expect that when people enter into what may very well be the most important economic transaction in their lives – buying a home – they would have a pretty clear understanding of who owned what share of it. In determining whether there was such a tacit understanding, and if so what it was, the court will look at all the evidence holistically and will examine the whole course of the parties’ conduct in relation to the property.

iii) In the rare case where the evidence does not reveal a tacit understanding about ownership the court can reach for the presumptions. An obvious presumption is that beneficial ownership is the same as legal title (see Jones v Kernott as paras 17 and 51(1)).

iv) Another is the presumption of resulting trust. In Pettitt v Pettitt [1970] AC 777 at 824 Lord Diplock doubted that it was of much relevance in the modern era …

v) A further presumption is the presumption of advancement but this can be regarded as being on its death-bed …

vi) But presumptions are only presumptions …

vii) “Actual facts” are those which suggest that a result steered by a presumption is unfair. Although there are different degrees of emphasis and nuance all of the Justices in Jones v Kernott accepted that where a tacit agreement could not be found by a process of inference the court could impute to the parties a fair agreement which they never in fact made but which they should “be taken” as having made (see paras 45, 60, 72, 85(2))). Of course, as Woodhouse J pointed out, this involves a “fictional attribution of intention”, but the process has a long pedigree. One only needs to remind oneself of Lord Denning MR’s statement in Appleton v Appleton [1965] 1 WLR 25 at 28 to see how the wheel has turned full circle. There he said “A judge can only do what is fair and reasonable in the circumstances. Sometimes this test has been put in the cases: What term is to be implied? What would the parties have stipulated had they thought about it? That is one way of putting it. But, as they never did think about it at all, I prefer to take the simple test: What is reasonable and fair in the circumstances as they have developed, seeing that they are circumstances which no one contemplated before?” I cannot see any difference between that statement and that of Lord Wilson in para 87 where he rhetorically asked “where equity is driven to impute the common intention, how can it do so other than by search for the result which the court itself considers fair?”

22.Since it is common ground that there was no express declaration of the Wife holding the Kunming Court Property on trust for the Mother at the time of its purchase, the first obvious question to ask must be what was the intention or purpose of its purchase, and then to look at all the evidence holistically as to the parties’ conduct in relation to the property and to see how they fit in their respective case.

Reason for the Purchase of the Kunming Court Property

23.The Wife’s case is straight forward: it was purchased by the Mother with the sale proceeds of her own property in Siu Lun Court Property but put in her daughter’s name for the sole purpose of obtaining the bank mortgage, an arrangement admittedly not uncommon in Hong Kong amongst family members, but Mr Kwan for the Husband argues that if that was the purpose all that was required was for the Mother to just add the Wife as a co-owner of the property, and that there was absolutely no need to register the entire property under the sole name of the Wife. I agree that it may not be necessary but that cannot be the sole reason to disbelieve the Wife that the property was purchased on behalf of the Mother. 

24.Mr Kwan however submits for the Husband that it is inherently improbable for the Mother to purchase the property as she simply could not afford it after taking into account of her assets, income and expenses at the time of the purchase, when she confirmed under cross-examination of having no regular employment and with only HK$776,000 in her savings, she could not have afforded a property that cost almost HK$1.2 million, or to be able to meet its mortgage payments of more than HK$6,700 per month.

25.Mr Kwan also criticises the Mother’s credibility for changing and shifting her evidence from having no regular employment to working part-time as a cleaner earning HK$3,000 per month, and from little savings to having gold reserve to subsidize her monthly expenses.  

26.Mr Kwan’s argument that the Mother had only HK$776,000 when the property was purchased was based on the amount of savings in her Hang Seng Bank account No. 241-4-092912 exhibited to the Wife’s 2^nd Affirmation as “CLN-3” [B/445] which revealed a balance of HK$776,326.94 before the withdrawal of HK$500,000 to pay for the down payment and with only HK$276,326.94 left thereafter to meet the mortgage payments and her living expenses which he submits as inherently improbable.

27.While that may well be the balance of her Hang Seng Bank account, there is however no evidence to suggest that that was all the Mother had, or for that matter that was the only bank account that she had at that time, when the fact is that only some 6 months ago she had sold her Siu Lun Court Property and received HK$1,128,000, hence there were more than HK300,000 unaccounted from those sale proceeds in that bank account, and in the absence of any evidence to suggest that she had by then already spent those HK$300,000, there is always the possibility that they could be kept in another bank account of hers, and hence the Husband’s argument that she only had HK$276,000 left after paying HK$500,000 to the Wife for the down payment is indeed neither here nor there.

28.Whether or not the Mother did have any job with whatever income, or what savings or gold reserve that she may have at that time, the obvious question to ask must be that so soon after she had sold her own property in the Siu Lun Court Property which was free of mortgage for HK$1,128,000, in my judgment it cannot be argued that it would be so inherently improbable for her to then purchase the Kunming Court Property for just slightly more at HK$1,190,000, and with the assistance of a substantial mortgage of HK$790,000. It is in fact financially quite possible, especially if with her daughter’s assistance.

29.The Husband of course also challenges the Mother’s financial ability to meet the mortgage repayment of HK$6,700 per month, or rather HK$3,385.23 every 2 weeks from the balance of the HK$500,000 given to the Wife for the down payment of HK$400,000 which essentially means leaving only HK$100,000 which he argues were clearly insufficient to meet the legal costs, stamp duty and estate agent’s fees for the purchase as well as the mortgage payments for the following 2 years of more than HK$144,000 before the Kunming Court Property was sold in June 2011.

30.On the other hand, the Husband argues, with their joint monthly income at that time at HK$27,000 for him and HK$22,000 for her, other than the down payment which was to be borrowed from the Mother, the parties could well afford to handle another set of mortgage payments, and hence it would be much more credible that the property was purchased as a good investment for the parties and at the same time provide a home for the Mother without incurring rental expenses.

31.Whether a combined monthly income of HK$49,000 could indeed enable the parties to afford 2 properties at that time as argued by the Husband should be easily resolved by hard figures, but given the fact that the Kunming Court Property was purchased some 6 years ago in June 2009, when information of the parties’ monthly expenditure is obviously not entirely clear nor complete, one can only gauge from the evidence before the court, starting with the Husband’s that from his income of HK$27,000, he would pay for the mortgage payment of the Nanning Court Property of HK$5,392 – 5,890, all its rates and utilities, all the household expenses, all the car expenses including gas, repair and maintenance and parking fees, all the parties’ outside meals and entertainment expenses, and HK$6,000 for his parents [B/117-118 §10-11], hence one can safely conclude that there would not be much left from his income to meet the mortgage payments and relevant expenses for the Kunming Court Property, which would then have to come from the Wife’s income if it was indeed their asset.

32.As for the Wife’s income, according to the Husband, she was supposed to save it up for investments and their favourite hobby: holidays with 2 or 3 overseas trips each year [B/117 §10], which seems not disputed by her as far as the latter was concerned, but she must of course also have her own personal expenses to be met by her income, while it was also accepted that she was at that time paying HK$4,000 per month to the Mother, and hence if the monthly mortgage payments of HK$6,700 for the Kunming Court Property as well as its rates and other relevant expenses were to be met from her then income of HK$22,000, while it may not inherently impossible or improbable, it would certainly mean that the parties would be operating on a very tight budget, with virtually nil or little provision for holiday expenses or family savings, not to mention the risk of any rising interests or mortgage rates which could have caused the 2^nd property to become unaffordable or no longer such a good investment. All these do certainly in my view throw doubts on whether the parties did purchase this property as an investment or at all.

33.I do of course accept that It is part of human nature to take risks which sometimes lead to bad financial decisions, and the fact that it may not make sense for the parties to borrow HK$500,000 from the Mother to purchase the property under their financial circumstances does not necessarily mean that they did not do as alleged by the Husband, as submitted by Mr Kwan that much depends on the parties’ credibility, but there is however no evidence or even explanation at all from the Husband on the issue of repayment to the Mother if it was indeed a loan which must of course be repaid, which bags the obvious question of what were the arrangements for its repayments, such as time and amount of the instalments which was clearly the only option available to the parties given their financial circumstances at the time? There was simply no answer from the Husband who just claimed that it was the personal matter between mother and daughter, that he was not personally involved in their discussion, and that he trusted that the Wife would deal with the necessary arrangements of the loan including its repayment.

34.Mr Tsu for the Wife submits that there was of course no answer from the Husband because there was no repayment at all since the HK$500,000 was not a loan but instead money from the Mother for purchasing her own property, which brings me to another argument of the Husband about the Wife’s case that she used the residual money of HK$100,000 after the down payment to meet the monthly mortgage instalments, the total of which would amount to more than HK$162,000 for the following 24 months before the property was sold, as factually impossible even before taking into account of the legal costs and relevant expenses of the purchase.

35.The Wife’s explanation can be found in her 3^rd Affirmation [B/42, 46] where she admitted in paragraph 18 that due to lapse of time she may have been mistaken with her figures, and that her assertion of using the balance of HK$100,000 to meet the mortgage payments was just a broad brush statement of generally how she used the remaining balance of that sum of HK$500,000 without realizing that the Husband would be so critical about her details, and that her financial dealings with her mother were always based on their mutual trust and would include her making rough adjustments or setoffs from her monthly payment of HK$4,000 to her mother over her credit card spending of which the Wife was the principal card holder, as well as any shortfall of the mortgage payments made on behalf of her mother without bothering with details.

36.The Wife’s evidence were by and large corroborated by the Mother in both her affirmation [B/62] and her testimony in court. Of particular relevancy is her close relationship with her daughter after the death of her husband and her frequent conflicts with her son which led her to decide to sell her Siu Lun Court Property in order to live close to the Wife upon her marriage and hence to look for a property in the same neighbourhood.

37.As for the purchase of the Kunming Court Property and its financing, the Mother stated as follows in her affirmation [A/63]:

“ 6. 在2009年6月，本人經地產經紀介紹，看中荃灣中心昆明樓XX樓X室(以下簡稱“本人物業”)，一個約400呎的細單位，開價119萬。在落訂前女兒及答辯人亦有一同參觀單位給予意見，最後本人決定購入單位，而由於本人並無足夠現金在身，因而由女兒安排代寫五萬元支票以支付首訂。

7. 在購入單位後，本人與女兒協定本人會給予女兒一筆過五十萬現金作為首期及單位裝修之用，當中包括償還女兒代為支付的五萬元首訂支票，剩下的餘款亦會留作供款之用，而女兒每月給予本人的每月家用也將會全數作為日後供款之用。除此以外，本人亦會替女兒及答辯人打掃家居，以及每晚由本人造飯給女兒及答辯人。雖然本人曾告訴女兒，本人百年歸老之後，本人物業將留給本人的女兒，但本人現在尚未離世，故此不論是本人的物業或賣掉本人物業後所得，亦應屬於本人，不論是本人女兒或是答辯人亦無權奪去。”

38.Both the Wife and the Mother were subject to extensive cross-examination at the trial and were criticized by Mr Kwan for the Husband as shifty, evasive and convoluted with various examples cited in his closing submission, and much has also been made of the Wife’s failure to produce a record of such expenses of her mother with details of adjustments which the Wife claimed to have kept, to the extent that both her evidence and of the Mother should be rejected as inconsistent and unreliable.

39.Having heard and seen both witnesses in court, however, I must say that I do not share Mr Kwan’s negative impression about their testimony, of which in fact I find in the main fairly straight forward and spontaneous, and that I do not view their answers of not remembering details of various financial dealings between them which went back some years any cause for suspicion. Given their evidently very close and trusted mother/daughter relationship and in the particular circumstances of their family, I find the Wife’s following responses in her said 3^rd Affirmation [A/46] to the Husband’s criticisms not without merits:

“18. 本人承認本人因日子久遠記錯供款數目，每月$3,385.23實為每兩星期供款一次。本人跟母親之間有自己的記數與扣數方式，如她使用了本人之信用卡後，本人會於她的每月家用中扣除，因此，本人深信與母親之間的款項已於當時扣清。本人亦想借此機會提出，答辯人不斷向本人提出問題，並於本人的回答及提供的文件中找出本人記錯或忘掉的事情以作質問，到底答辯人居心何在?本人亦想反問，如果母親的物業跟答辯人有關，為何答辯人對每月供款多少全不知情?反而在本人提供單據後才作計算，然後指出本人計錯數?本人承認本人的確記性不算一流，過去的事情的確無法完全記起，尤其是數字亦非本人強項，但是否記錯了，就代表物業跟答辯人有關?

19. 本人與母親之間沒有任何代理物業或資產的文件，全因本人母親相信本人，本人亦深信在這個世間上極大部份的父母與兒女之間的錢財代理事宜，亦不會有寫這些欠單式文件的需要。至於本人母親的物業只寫本人的名字，是因為本人母親自本人爸爸過身以後就一直跟著本人，本人雖然有位哥哥，但哥哥在爸爸過身後並無照顧她，我們孤兒寡婦一直相依為命，她亦深知本人最疼她，跟她最親，所以她希望將來百年歸老，物業可以在無爭議之下全留給我!另外，分期歸還是因為ATM每天最多過數$50000，本人不懂到底是那一個部份令人費解?相反，以上種種答辯人全都知情，但亦要作出提問，本人實在深感煩厭!”

40.In fact, in that same affirmation the Wife raised what I believe to be the crux of her argument that the Kunming Court property could not be the parties’ investment in that there was simply no evidence as to how that sum of HK$500,000 from the Mother was to be repaid if it was indeed a loan as alleged by the Husband when she said as follows [A/45]:

“15. 答辯人於此段所述全部不是事實，母親的物業由本人母親自己提出要購買，並於落訂當天主動要求本人及答辯人一起幫忙睇樓及給予意見。而從上表一看亦能得知，以我倆在當時(2009年)的收入及生活模式，根本不可能投資購買“本人母親物業”並交出每兩星期$3,385.23(大約每月$6770.46，每年約$88,000)的供款，雖然每年我們或許會有年尾花紅，但任誰也知道長遠買樓不可能把花紅計算入內，再者，本人當時在大新銀行任職，全年花紅只得數千元，答辯人當年花紅也只有數萬，所以答辯人所言根本不成立亦亳無可能。

16. 因簽名樣式問題，$50000訂金的確先由答辯人代為寫支票(因為需要立即落訂才請求答辯人幫忙) ，本人已忘記答辯人是用那個戶口寫支票付款，但本人絕對已跟答辯人商討好還款細節及已經以某個方式還款，而之後的所有其它款項(無需使用支票) ，本人亦親身到銀行辦理轉賬事宜!本人亦想借此機會提出，答辯人自己亦於2008年12月於聯名戶口轉走$50000到他自己的私人戶口，轉走的錢是甚麼用途本人也無法記起，但本人相信聯名戶口的錢，不論是誰提走轉走，都是經過雙方商討並在雙方同意下才提走的，但因日子久遠，本人工作繁忙，實在無法清楚記得所有細節。

17. 全段非事實，若本人母親是借五十萬予本人投資，那麼本人為什麼到現在仍不用還清款項?”

41.To make her point the Wife in her 2^nd Affirmation [A/35] set out the expenses she had paid for their overseas holiday trips during the marriage in particularly those 6 trips between June 2009 when the property was purchased and August 2011 when it was sold, for which she claimed to have paid HK$250,000 in total during that period from her income and to which the Husband did not seem to have any dispute, which would have amounted to almost half of her then total income and left her virtually with no money for any repayment of the said sum of HK$500,000 even by instalments to her mother if it was indeed a loan, thus rendering the Husband’s argument that that property was their investment untenable.

42.Furthermore, upon the sale of both the Nanning Court Property and Kunming Court Property in 2011 as according to the Husband both had appreciated in value which led to the parties’ decision to sell them so as to fund their purchase of the bigger and much more expensive Ma Wan Property, yet all its down payments and expenses as well as decoration expenses totalling more than HK$1.4 million were paid out of the sale proceeds of only the Nanning Court Property and the Husband’s own pocket as alleged by him in paragraph 22 of his 3^rd Affirmation [A/123], which then bags the obvious question of why not also use the proceeds of the Kunming Court Property of more than HK$1.2 million as well for the purchase? Even accepting that some of it would have to be used to repay the Mother, but as it turned out the bulk of it instead ended up in the Wife’s RMB account in Shenzhen, this just make the Husband’s case that the Kunming Court Property was their investment with a loan of HK$500,000 from the Mother all the more inexplicable.

43.As a matter of fact, as explained by the Wife above that since the parties would not have been able to repay the alleged loan of HK$500,000 to the Mother even by monthly instalments during that short period of 2 years until the Kunming Court Property was sold, the entire amount of that sum or the bulk thereof would have to be repaid to the Mother and could not have formed part of the parties’ joint savings in the Wife’s account as alleged by the Husband.

44.All of these in my view just go to support the Wife’s case that with the Mother coming to live with them in their Ma Wan Property after selling her Kunming Court Property and hence would not be in immediate need of such large sum of money, she decided to invest the money on her behalf by placing the bulk of it her RMB currency account in Shenzhen, and given the Mainland law on currencies restriction, she had had to enlist the Husband’s assistance to help her to bring the money into Shenzhen by various sums.

45.Given the fact that HK$1.2 million was clearly a very large sum of money to both parties during their marriage, if it were indeed the windfall of their joint investment on the Kunming Court Property, any decision as to what to do with it and how to invest it must obviously be some very important decisions to be made jointly by the parties notwithstanding the Husband’s case that all along it was the Wife who was supposed to manage their savings and investments, and of the latter there is in fact very little evidence of what exactly they were. In the premises I find it most incredible that the Husband appeared to have very little idea or knowledge of what the Wife did with this money, or for that matter anything about any arrangement over the loan repayment to the Mother, as evidenced by the very little details he had provided in his 3^rd Affirmation.

46.In his defence Mr Kwan in his closing submission pointed out that the Husband “honestly, perhaps somewhat foolishly, answered that he did not know anything about the sale of the (Property) perfectly illustrates that he was honest even if the evidence he gave may not be in his favour. To that I would at least agree that it certainly did not assist his case at all.  

47.Equally inconsistent in my view with his case is the Husband’s allegation that the decision to purchase the Kunming Court Property was made only after the Mother had moved in with them at Nanning Court Property to sleep on the floor in their study room, and only afterwards when the Wife found that arrangement inconvenient to her mother that they decided to purchase a property as an investment and to house her mother. 

48.If indeed it was a decision of the parties and the Mother to live together at the Nanning Court Property in the long run, it would be very surprising and in fact incredible to me that the they would intend for the Mother to just sleep on the floor of their study room or even a make-shaft bed instead of providing a proper bedroom for her, an arrangement wholly inconsistent with that decision or with their close relationship with the Mother, in particularly given the repeated wish and desire of the Husband to properly look after her in view of her being a widow and her advancing age.

49.Instead it rather looks to me just a temporary arrangement for the Mother to stay while looking for her new home in the same neighbourhood of her daughter in view of her desire to live close to her daughter upon her marriage, which is wholly consistent with the evidence of both the Wife and the Mother as set out in their affirmations.

50.Above all, if indeed the Kunming Court Property was part of the party’s assets, I fail to see why he did not disclose its sale in 2011 in his Form E filed in 2013 under Part 5.1 which required him to state any significant change to his assets during the last 36 months, to which he just left blank [A/85]. In my view the logical inference that can be drawn is that he did not regard that property as part of his assets, and I believe that was when he did reveal the truth about the beneficial ownership of the property.  

Conclusion

51.In the premises and for all the reasons referred to above, I am satisfied that the Kunming Court Property was purchased by the Mother but put in the Wife’s name for the purpose of obtaining the bank mortgage, and that upon its sale the Wife has been holding its proceeds in some of her bank accounts in particularly her RMB account in Shenzhen on trust for the Mother, as both holistically much more reasonable and plausible in the circumstances and evidentially much more consistent.  

52.On the contrary, I find the Husband’s case that the property was purchased by the parties as an investment with a loan of HK$500,000 from the Mother not only inherently improbable but also financially nonsensical and unrealistic, and ultimately untenable. I believe it was a case of the Husband not agreeable to the Wife exiting their marriage with a half share of their former matrimonial home which had all been paid for by him and hence he did not think it fair for her to do so, as reflected in his Form E where he stated that he owned 95% of that property notwithstanding that it was registered in their joint names [A/72], and hence when he learnt of the RMB820,000 in the Wife’s bank account, he instinctively refused to accept that it was her mother’s money and instead used it as a reason to justify his entitlement to a bigger share in their former matrimonial home.   

53.Accordingly I declare that the Kunming Court Property was beneficially owned by the Mother and so are its sale proceeds in the Wife’s account in Shenzhen with the Nanyang Commercial Bank. In the circumstances costs should therefore follow the event in favour of both the Wife and the Mother to be taxed if not agreed which is an order nisi to be made absolute at the expiration of 14 days.

54.Last but not least, it remains for me to express my gratitude to both Mr Tsu and Mr Kwan for their assistance in the trial. 

Mr Edmund Tsu of Messrs. Chan & Tsu for the Petitioner.

Mr Ray Kwan instructed by Messrs. CMK Lawyers for the Respondent.