馮公權及另二人 對 Ip Woon Shun, The Administrator of 馮靜及另一人

On 2 October 2026, Deputy District Judge Siu Chiu-kin handed down judgment in _Fung Kung Kuen & 2 Ors v IP Woon Shun, the administrator of the estate of Fung Ching Jess (deceased) & Anor_, DCCJ 4067/2019, [2026] HKDC 1806, finding in favour of the three plaintiffs on their claim to a one-quarter beneficial interest each in Flat D, 33/F, Block 1, Grand Horizon (海欣花園), 11 Cheung Wan Street, Tsing Yi (the "Tsing Yi Property"). The plaintiffs, who acted in person, succeeded against the second defendant (Micky Ren), the widower of the deceased Fung Ching Jess, who also acted in person. The first defendant, the estate administrator, was represented by Ko & Ip and took a neutral stance throughout.

The dispute concerned a property acquired in October 1998 by Fung Ching Jess, then a 26-year-old accounting clerk earning a basic monthly salary of HK$10,000–11,700, who had been working for barely 14 months. The property was registered in her sole name, but the plaintiffs (her parents, the first and second plaintiffs, and her brother, the third plaintiff) claimed that all four had agreed to acquire it as a joint investment, each taking a 25% beneficial interest, with Fung Ching Jess holding her share on trust. The second defendant, who married Fung Ching Jess in 2011 and has been in sole possession of the Tsing Yi Property since her death in December 2015 at age 42, contended the property was her sole asset and that any payments by the plaintiffs were either gifts or loans.

The court applied the modern approach to common intention constructive trusts, drawing on _Primecredit Ltd v Yeung Chun Pang Barry_ [2017] 4 HKC 588, _Mo Ying v Brillex Development Ltd_ [2015] 2 HKLRD 985, _Stack v Dowden_ [2007] 2 AC 432, and _Jones v Kernott_ [2012] 1 AC 776. It found that in a Chinese family context, especially among older generations, the absence of any written record of a common intention is unsurprising, and the court must look at the parties' conduct and the surrounding circumstances to infer their shared intention.

The court held that:

(1) The plaintiffs and Fung Ching Jess reached a common intention in or around October 1998, as pleaded, that they would jointly acquire the Tsing Yi Property as a co-investment, each taking a one-quarter beneficial interest held as tenants in common, with Fung Ching Jess as the registered owner and trustee.

(2) Alternatively, their agreement and conduct in purchasing and servicing the mortgage gave rise to a resulting trust, with each party holding a one-quarter share.

(3) The plaintiffs' contributions, namely the second plaintiff's payment of the full 10% deposit of HK$177,270 out of the family's savings, and subsequent mortgage instalments, were made in performance of the common intention and were neither gifts nor loans to Fung Ching Jess.

(4) The second defendant had been in unlawful possession of the Tsing Yi Property since 14 December 2015, and was liable to account for mesne profits.

The court rejected the second defendant's challenge based on Fung Ching Jess's rising income in later years: the relevant time was 1998, when she could not realistically have purchased the property alone. The court also drew an adverse inference from the fact that Fung Ching Jess waited 10 to 16 months after marriage before telling the second defendant about the property, finding that she had disclosed both the property and the common intention to him, which explained why he had never involved himself in its management during her lifetime (§141–143).

On mesne profits, the court accepted the second defendant's expert (using comparables within Grand Horizon) over the plaintiffs' expert (using wider Tsing Yi comparables), finding the plaintiffs' HK$14,000 monthly estimate unjustified against the actual rental history of HK$6,600–HK$9,300. Mesne profits from 14 December 2015 to 1 October 2026 were assessed at HK$1,618,354 in total, giving each plaintiff HK$404,588.50 plus pre-judgment interest at HSBC prime plus 1% per annum, departing from _Persaud v Glenealy Mansion Ltd_ [1987] 1 HKC 112 on the basis that the valuation method here used year-by-year rentals rather than a single judgment-date figure, following _Ho Yat Wah v Chung Hang Him_ (CACV 149/2022, unreported, 9 May 2024).

The court declared each plaintiff's one-quarter beneficial interest, ordered the second defendant to vacate within two months, and made a nisi costs order against him (excluding the costs of the plaintiffs' own expert report).

For practitioners: when advising on family-held property where the registered owner has since died, a Chinese family context and the absence of any written record will not defeat a common intention constructive trust claim, provided the claimant can demonstrate a coherent common intention through conduct, the parties' financial positions at the time of acquisition, and subsequent dealings with the property and its rental income. On mesne profits, expect the court to favour valuations grounded in the actual rental history of the subject property over expert comparables drawn from a wider district, and to award pre-judgment interest where the year-by-year rental method is used.