Civil Action1996

ZHOU CUI HAO v. TING FUNG YEE

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HCMA1523/1996R. v. TING FUNG YEE

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HCA007558A/1996

HCA 7558/1996

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 7558 OF 1996

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BETWEEN
	ZHOU CUI HAO suing on her own behalf and as the sole executrix of the estate of the late NG CHING POON	Plaintiff

	AND

	TING FUNG YEE	Defendant

____________

Coram: Deputy High Court Judge S Kwan in Court

Dates of Hearing: 3 - 7 and 10 - 13 July 2000

Date of Handing Down of Judgment: 27 July 2000

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J U D G M E N T

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1. Mr Ng Ching Poon ("the Deceased") passed away on 9 December 1990, having made a will on 5 December 1990 leaving all his estate to his wife Madam Zhou Cui Hao, who is the Plaintiff in this action. It is a sad fact that nearly 10 years after his demise, litigation is still going on between the Plaintiff and Madam Ting Fung Yee, the Defendant in this action, who claims to be the common law wife of the Deceased.

2. The subject matter of their dispute relates to two properties held in the name of the Deceased. The first property was located at No. 187 Reclamation Street, 2nd Floor and Roof, Yaumatei, Kowloon ("the Reclamation Street Property"). The Reclamation Street Property was resumed by the Government in 1989 and HK$597,000.00 was paid to the Deceased as compensation with HK$115,874.07 being interest thereon from 16 March 1989 to 15 March 1994. The second property is No. 146, 1st Floor, Camp Street, Shamshuipo, Kowloon ("The Camp Street Property"). The Defendant claims the compensation and interest of the Reclamation Street Property and the possession and ownership of the Camp Street Property on the basis of constructive trust and proprietary estoppel, alleging that there was an arrangement or understanding between her and the Deceased with regard to the acquisition of the Reclamation Street Property and the Camp Street Property and that she had made a substantial contribution towards the purchase price of the Reclamation Street Property. It is not her case that she had made direct contribution to the purchase price of the Camp Street Property.

3. The litigation between the parties started with a probate action brought by the Plaintiff against the Defendant in December 1993 in which the Plaintiff claimed probate of the will to be granted to her. The Defendant had challenged the validity of the will alleging that the Deceased was not mentally capable of making a will at the time. That action was resolved in favour of the Plaintiff in September 1995 when it was held that the Defendant had no locus to challenge the validity of the will. Probate of the will was issued to the Plaintiff on 1 December 1995. By an assent dated 17 April 1996, the Plaintiff in her capacity as the executrix of the estate of the Deceased assented to the vesting of the Camp Street Property in herself as the sole beneficiary under the will. By a letter dated 1 June 1996 from the Plaintiff's solicitors to the Defendant, the Plaintiff purported to terminate the licence of the Defendant to occupy the Camp Street Property and required her to move out within a month of the letter. As the Defendant refused to comply with that letter, the writ in the present proceedings was issued on 4 July 1996.

4. The first trial of this action took place between 27 March to 3 April 1998. Two days before the trial, the Defendant's solicitors withdrew from the case. The Defendant conducted her defence in person. Notwithstanding she was given every opportunity by the court to present her case, she was seriously handicapped in the first trial. All the documents that had been prepared by her former solicitors were in English, a language which the Defendant does not understand as she had only received education for 31/2 years. Further, it would appear from the documents filed on her behalf, such as the pleadings, affirmations and witness statement, that the preparation work done by her solicitors before they withdrew was somewhat inadequate. Lastly, her defence involved laying a proper factual foundation for a claim in constructive trust and/or proprietary estoppel and the factual foundation covered events spreading over a period of 10 years or more. Without the proper assistance of solicitors and counsel, it is understandable that the Defendant had failed to satisfy the court of the matters she had to prove to establish her case. Judgment was given in the Plaintiff's favour on 30 April 1998 and the counterclaim was dismissed.

5. The Defendant obtained leave to appeal out of time on 12 November 1998 and the appeal was heard on 5 March 1999. The Court of Appeal allowed the Defendant's appeal on 19 April 1999 and ordered a re-trial before a different judge. A recommendation was made by the Court of Appeal that the Defendant should be given legal aid in view of the factual disputes and law points involved in the litigation. In this trial before me, the Defendant has been given legal aid. The Plaintiff is also legally aided. I am obliged to counsel and solicitors on both parties for their assistance, without which the case of the parties could not have been properly presented to the court.

The properties

6. Before I set out the background facts, it would be convenient to give a summary of the dealings with the properties covered in the evidence in this trial. There are four properties in all, and in chronological order of their acquisition, they are as follows.

(1) No. 85 Tai Po Road, 1st Floor, Man On Building, Kowloon ("No. 85 Tai Po Road")
No. 85 Tai Po Road was purchased by Madam Ng Kam Yuk in 1964. Ng Kam Yuk was the eldest sister of the Deceased. She passed away in 1975. In 1974, Ng Kam Yuk mortgaged No. 85 Tai Po Road to a bank as security for a loan made to the Deceased in the sum of HK$30,000.00. The property was re-assigned by the bank in 1978 on repayment of the loan. It is not known when the Deceased first went to live in this property, which he operated as a male dormitory, filling the premises with bunk beds for the occupants he took in. I find on the evidence that the Deceased had resided there and operated the dormitory business not later than 1978, when the Deceased first became acquainted with the Defendant.
By an assent dated 19 March 1984, the Deceased as the administrator of the estate of Ng Kam Yuk assented to the vesting of No. 85 Tai Po Road to Ng Pak Leung and Ng Sau Kuen also known as Ng Sed Ying, the beneficiaries of the estate of Ng Kam Yuk. Ng Pak Leung and Ng Sed Ying are the son and daughter respectively of the Deceased. They were adopted by Ng Kam Yuk and had emigrated with her to the United States in the 60s.

No. 85 Tai Po Road was operated as a dormitory by the Deceased at all material times until it was sold by Ng Pak Leung in November 1990.
(2) No. 83 Tai Po Road, 1st Floor, Man On Building, Kowloon ("No. 83 Tai Po Road")
This is an adjoining property to No. 85 Tai Po Road and was also operated as a male dormitory by the Deceased at all times. This property was purchased by the Deceased for his 4th sister Madam Ng Lin in November 1981. Ng Lin allowed the Deceased to use the property for his dormitory business and the arrangement between them was that the Deceased was to pay her a fixed sum as rent every month. At the time of the Deceased's death, the amount paid to Ng Lin was HK$2,000.00 a month. Ng Lin sold the property in October 1990.

(3) The Reclamation Street Property
The Deceased became the owner of this property by an assignment dated 20 February 1984. The purchase price was HK$380,000.00 and this was financed by a mortgage to the Bank of East Asia Limited on the same date for banking facilities not exceeding HK$180,000.00. On 24 February 1986, the mortgage was discharged by the bank upon receipt of all moneys secured. By a legal charge dated 27 March 1986 executed in favour of the Nanyang Commercial Bank Limited, the Reclamation Street Property and the Camp Street Property were mortgaged to secure general banking facilities to the extent of HK$440,000.00. This legal charge was discharged on receipt of the moneys secured on 1 October 1988. As mentioned earlier, the Reclamation Street Property was resumed by the Government in 1989.

From the acquisition of the property until its resumption by the Government, the 2nd Floor was used by the Deceased to operate a male dormitory. The structure on the roof, which was on top of the 6th floor, was used as the Deceased's residence.
(4) The Camp Street Property
By a memorandum for sale and purchase dated 13 March 1986, the Deceased agreed to purchase the Camp Street Property from his friend Mr Leung Man Fai and the property was assigned to the Deceased on 27 March 1986. The consideration stated in the documents was HK$260,000.00. As mentioned earlier, the Camp Street Property and the Reclamation Street Property were mortgaged to the Nanyang Commercial Bank Limited by a legal charge dated 27 March 1986. This property is now vested in the Plaintiff by an assent dated 17 April 1996.

Ever since the Camp Street Property was acquired and up to present, the Camp Street Property has been used for a male dormitory business.

The background facts

7. I set out below the background facts which are not controversial.

8. The Deceased married the Plaintiff in China in 1942. The Plaintiff gave birth to 4 children, two of whom have survived. They are a daughter Ng Suet Ching who was born on 10 December 1944 according to her identity card, and a son Ng Pak Keung who was born in 1948. The Deceased left his family in China and came to Hong Kong after World War II. From 1953 to 1957, he cohabited with Madam Wong Yau Choi, who gave birth to Ng Pak Leung and Ng Sed Ying and they were later adopted by the Deceased's eldest sister Ng Kam Yuk as I have mentioned.

9. The Deceased last visited his family in China in about 1953. He did not set foot in China again and did not see the Plaintiff and their 2 children until they left the native village one by one. In 1972, the son Ng Pak Keung came to Hong Kong as an illegal immigrant and he went to the United States shortly thereafter. He has settled there ever since. The daughter Ng Suet Ching, married a Hong Kong resident in Guangzhou in 1969 and came to Hong Kong to settle in 1982. She has been living in Hong Kong ever since. As for the Plaintiff, she came to Hong Kong in 1984 on her way to the United States to join her son Pak Keung, who had applied for her to join him there. The Plaintiff stayed in Hong Kong for about a week in 1984. The next time she came to Hong Kong was in November 1989.

10. In December 1988, the Deceased was admitted to St Teresa Hospital for the first time as he was diagnosed to be suffering from acromegaly, a clinical condition due to excessive secretion of growth hormone in an adult. CT scan of the brain revealed a pituitary tumour. He had a major operation for the excision of the tumour from the pituitary gland. One of his sons, Ng Pak Leung, came back from the United States a few days before the operation to be with him. He was discharged on 25 December 1988. Although the Deceased had recovered from the surgery, his health started to deteriorate from then onwards.

11. In November 1989, after the Plaintiff had obtained resident status in the United States, she came to Hong Kong and stayed for about a year. This was the only period in which she was with the Deceased constantly after being separated for over 30 years.

12. In July 1990, the Deceased was admitted to Caritas Medical Centre for acute pneumonia. He was discharged on 24 July 1990. On 27 July 1990, he was admitted to St Teresa Hospital the second time because of severe pneumonia. On 31 July 1990, he was transferred from the intensive care unit of that hospital to the intensive care unit of Caritas Medical Centre. When he was discharged from Caritas Medical Centre at the end of October 1990, the Deceased was admitted to two elderly homes in succession. He did not return to his residence and he died in hospital on 9 December 1990.

13. I have not mentioned anything about the Defendant in the above narrative of background facts. The Plaintiff puts the Defendant to proof of all that she alleges. The Plaintiff denies that the Defendant was the common law wife of the Deceased or that she had ever cohabited with him, let alone that the Deceased had made representations or promises to the Defendant regarding the Reclamation Street Property or the Camp Street Property. It is the Plaintiff's case that the Defendant was employed by the Deceased to collect rent from the occupants in the dormitory in the Camp Street Property at a monthly salary of HK$2,800.00 and that she was allowed to collect commission when mahjong games were played in the premises. Alternatively, it is alleged by the Plaintiff that the Deceased had employed the Defendant as his private nurse. The Defendant had merely a licence from the Deceased to occupy a cubicle in the Camp Street Property, that was a licence revocable at will and it was determined by the letter of the Plaintiff's solicitors to the Defendant dated 1 June 1996 that I referred to earlier.

The issues

14. The main issues I need to resolve are as follows:

(1) what was the relationship between the Defendant and the Deceased at all material times, whether she was his common law wife or merely an employee as contended by the Plaintiff;
(2) whether any arrangement or understanding was reached between the Defendant and the Deceased on the acquisition of the Reclamation Street Property;
(3) if the answer to (2) is yes, whether the Defendant had acted to her detriment or had significantly altered her position in reliance on such an arrangement or understanding;

(4) whether the Defendant had made financial contribution to the purchase of the Reclamation Street Property;
(5) whether there was any arrangement or understanding between the Defendant and the Deceased as regards the acquisition of the Camp Street Property; and
(6) if the answer to (5) is yes, whether the Defendant had acted to her detriment or had significantly altered her position in reliance on such an arrangement or understanding.

The witnesses

15. In the last trial, only the Plaintiff and the Defendant gave evidence. In this trial, the Plaintiff gave evidence and called her daughter Ng Suet Ching as her witness. The Defendant gave evidence over 5 days. In addition, she called 3 witnesses. 2 of them were the occupants of Camp Street, Mr Lam Kwok On and Mr Luk Keung. The other witness was the Deceased's 4th sister Ng Lin. The Plaintiff and Ng Lin gave their evidence in the Toi Shan dialect.

The Plaintiff's evidence

16. The Plaintiff is 78 years old. She cannot remember the years in which events had occurred. Other than that, she has impressed me with having a good memory and a clear and perceptive mind. She is literate in Chinese. She married the Deceased when she was 21 years old. He was of the same age as the Plaintiff. They were forced to live apart when the Deceased went to Hong Kong a few years after their marriage because the Deceased was afraid to return to China on account of his class background due to the political situation at the time. The Plaintiff knew about the Deceased's relationship with Madam Wong Yau Choi in the 1950s when the Deceased wrote to her about it after Madam Wong gave birth to the Deceased's child. She had no choice but to tolerate this because she could not join the Deceased in Hong Kong.

17. Due to her long separation from the Deceased, the Plaintiff has little knowledge of the Deceased's life and what he did in the 1980s until she came to Hong Kong in November 1989 and stayed for about a year. Her evidence as to what she knew and had observed of the relationship between the Defendant and the Deceased may be summarized as follows.

18. In 1984, the Plaintiff came to Hong Kong on her way to the United States and stayed for 7 days. She claimed that she had stayed with the Deceased in his residence on the roof of the Reclamation Street Property. She did not see the Defendant during her stay. When she returned to Hong Kong in 1989, she said that the Deceased was living alone in No. 85 Tai Po Road as by then the Reclamation Street Property had been resumed by the Government and she lived with the Deceased at Tai Po Road. During this period, she and the Deceased had also stayed at the Camp Street Property, but she maintained that it was only for a night or two and that most of the time she had stayed at Tai Po Road.

19. The Plaintiff first saw the Defendant when she returned to Hong Kong in 1989. The Defendant was introduced to her by the Deceased as his worker who was managing the Camp Street Property for him. She was told by the Deceased that the Defendant was paid a salary and that she also received commission from mahjong games held in the property. In cross-examination, she admitted that the living arrangements when she came in 1989 were different from what she said in her evidence-in-chief. She said that she had lived with her daughter Ng Suet Ching in Yuen Long for the first 2 to 3 months when she came back in 1989. It would also appear that she had stayed in the Camp Street Property for the night more often than just once or twice as she had initially stated. However, she denied that she had spent the night in the Camp Street Property at the invitation of the Defendant.

20. There are 3 incidents in the matters related by the Plaintiff that are important to my assessment of the credibility of the witnesses. I shall refer to them as the ambulance incident, the identity card incident and the title deeds incident.

21. On the ambulance incident, the Plaintiff stated that when the Deceased was taken to St Teresa Hospital for the second time (that was on 27 July 1990), she and the Defendant accompanied the Deceased when he was carried to an ambulance. The ambulance's staff asked them their relationship to the Deceased. The Plaintiff said she was the wife and the Defendant said she was the daughter-in-law of the Deceased. The Plaintiff just kept quiet and did not tell the ambulance staff what was said by the Defendant was untrue, notwithstanding that she had been having an argument with the Defendant earlier whether the Deceased should be taken to St Teresa Hospital.

22. On the identity card incident, the Plaintiff said that the Deceased's identity card was given to the Defendant for the purpose of processing his registration when he was admitted to St Teresa Hospital. She was unable to attend to the registration because she can only speak the Toi Shan dialect not the punti dialect. After the registration was done, the Defendant had kept the Deceased's identity card. The Plaintiff and Mr Lam Sai Fu (who helped the Deceased to manage the dormitory in Tai Po Road as alleged by the Plaintiff) went to the Camp Street Property to ask the Defendant to return the Deceased's identity card to the Plaintiff. According to the Plaintiff, the Defendant said she would only return the identity card if the Plaintiff was to pay her HK$100,000.00. As the Plaintiff refused to pay the money, she was unable to get back the Deceased's identity card. Eventually, on 8 November 1990, a month before the Deceased's death, the Deceased applied for and obtained a new identity card. The Plaintiff said she and Mr Lam went to ask the Defendant for the return of the identity card after the Deceased's death. I find this somewhat puzzling as the Deceased had already been issued with a new identity card before his death. It may be that the Plaintiff was mistaken about the sequence of events. Her evidence in this respect does not tally with Ng Suet Ching's evidence and is different from the Defendant's evidence, which I shall deal with in due course. The Plaintiff had obviously regarded the Deceased's identity card as very important, otherwise she would not have brought Mr Lam Sai Fu with her to the Camp Street Property to ask the Defendant for its return. Moreover, arrangements would not have been made for the Deceased to apply for a new identity card in person less than a month before his death, when the Deceased was a sick man being kept in a home for the elderly. The Plaintiff did not explain why the Deceased's identity card was so important to her.

23. As for the title deeds incident, this took place in the Deceased's cubicle in Tai Po Road some time in July 1990 before his second admission to St Teresa Hospital. The Deceased, the Plaintiff and the Defendant were the only persons present. It was put to the Plaintiff in cross-examination that the Defendant went to Tai Po Road to ask for the title deeds of the Camp Street Property to be returned to her. This was denied by the Plaintiff who maintained that the Defendant had come to ask for the title deeds of the Reclamation Street Property and that the title deeds of this property were given to the Defendant for her to deal with the compensation payable by the Government. I do not accept the Plaintiff's evidence that the Defendant had asked for the title deeds of the Reclamation Street Property on that occasion, as her evidence is contradicted by a letter dated 16 February 1990 from a firm of surveyors called Raine, Horne & Lau to the Deceased acknowledging receipt of the title deeds of the Reclamation Street Property they had received from the Deceased when they were retained by the Deceased to deal with compensation. The Plaintiff accepted that the Defendant did not obtain the title deeds of the Camp Street Property on that occasion and that the Camp Street Property title deeds were put back in a cupboard in the cubicle of the Deceased in Tai Po Road. The Plaintiff however denied that all the Deceased's belongings, including the title deeds of the Camp Street Property, were removed by her family from the cubicle in Tai Po Road shortly after the Deceased was admitted to the hospital on 27 July 1990. I will have more to say about the removal of the Deceased's belongings.

The evidence of Ng Suet Ching

24. This witness gave evidence of a number of matters of which she has no personal knowledge, being information passed on to her by the Plaintiff (but which was not mentioned by the Plaintiff in her evidence), her late husband (who passed away in 1991 and who had allegedly been told of certain matters by the Deceased) or her half brother Ng Pak Leung (who was not called as a witness). I have to disregard her evidence on those matters. The salient matters covered in her evidence are as follows.

25. Ng Suet Ching did not meet the Defendant when she came to Hong Kong to settle in 1982, notwithstanding that she had visited the Deceased frequently in Tai Po Road and she had also been to the Reclamation Street Property and that she was the only child of the Deceased in Hong Kong during this period as the other 3 children were living in the United States. She first met the Defendant on the occasion when the Deceased was first admitted to St Teresa Hospital in December 1988. She said that she and her brother Ng Pak Leung were taking their father to hospital and they met the Defendant by chance in the street. The Deceased suggested that the Defendant and Pak Leung should accompany him to the hospital instead because Ng Suet Ching lived far away. The Defendant was introduced to her as "Auntie Ting". The Deceased did not say who the Defendant was at that time but later told Ng Suet Ching that the Defendant was his employee at the Camp Street Property.

26. She said that after the Deceased was discharged from St Teresa Hospital in December 1988, he went back to live in Tai Po Road and she went there to visit her father very often. On one occasion when she visited, she saw a large heap of dirty clothes of her father in the premises and there was no one to do the laundry. Hence, she wrote to the Plaintiff and asked her to come back to take care of her father and the Plaintiff duly returned in November 1989.

27. As for the identity card incident, she said that the day after her father was admitted to St Teresa Hospital in July 1990, she, the Plaintiff, Lam Sai Fu, her late husband, her son, her maternal uncle and his friend, a total of 7 persons went to the Camp Street Property to ask for the return of the Deceased's identity card. Her husband and her uncle waited downstairs whilst Lam Sai Fu and the Plaintiff went up to speak to the Defendant. They failed to get back the identity card on that occasion.

28. On the following day, and when Ng Pak Leung came back from the United States to attend to the Deceased, Ng Suet Ching told him that the Defendant had taken the Deceased's identity card and the title deeds of Reclamation Street and she asked Pak Leung to go to the Defendant to ask for the return of the identity card. She later followed Pak Leung to Camp Street when he did not return after a long interval. They were unsuccessful in their attempt to get back the Deceased's identity card from the Defendant.

29. Ng Suet Ching admitted that when the Deceased was in St Teresa Hospital in July 1990, the Defendant had suggested to her to pledge the title deeds of the Camp Street Property to pay for the medical expenses of the Deceased in that hospital. She also agreed that her family had got hold of the title deeds of the Camp Street Property at that time and that they refused to pledge the title deeds as suggested by the Defendant.

30. Ng Suet Ching suggested a reason why the Deceased had applied for a new identity card a month before his death. After the Deceased was admitted to a home for the elderly, the staff there said that the Deceased would be eligible for a disability allowance and suggested that he should apply for it. As an identity card was needed for the application, Ng Pak Leung took the Deceased to obtain a new identity card. She said that although her father's application for disability allowance was approved, he did not in fact obtain any allowance before his death.

31. On the same day when the will was executed by the Deceased (the will was executed by Ng Suet Ching's husband at the direction of the Deceased), the Deceased gave a power of attorney to Ng Suet Ching and Ng Pak Leung in respect of the Camp Street Property and the Reclamation Street Property. The power of attorney was likewise executed by Ng Suet Ching's husband at the direction of the Deceased and Ng Suet Ching and Ng Pak Leung were authorized to sell, mortgage, and to receive rent of these 2 properties.

32. Ng Suet Ching denied that the Deceased's belongings kept in his cubicle in the Tai Po Road were removed to her place shortly after the Deceased was admitted to St Teresa Hospital on 27 July 1990. She maintained that the Deceased's belongings were only removed from Tai Po Road in December 1990 when the Plaintiff left for the United States.

The Defendant and her background

33. I will deal with the Defendant's background before I move on to those parts of her evidence covering the 10-year period between 1980 and 1990. I accept her evidence relating to her background and this may be set out as follows.

34. The Defendant was born in China in 1945 and came to Hong Kong with her parents when she was a few months old. Her father ran a business selling charcoal and firewood and their circumstances were comfortable. She got married for the first time in 1964 when she was in her late teens. She was wedded according to customary rites. In 1969, she gave birth to a son and had a hysterectomy soon after for medical reasons. She separated from her first husband in 1976. Her second marriage was in earlier 1979. This marriage was also not registered. Within a year of the marriage, she left her second husband because she could not give birth and her second husband was the only son in the family. She was introduced to the Deceased in 1978 in a mahjong game.

35. After the Defendant was separated from her first husband, she began to work for her own living. Her son was taken care of and supported financially by her maiden family. At first, she worked as a manicurist in a beauty parlour. Then she became a hawker selling clothes in the beginning and food stuff and Chinese herbs subsequently. She only stopped working as a hawker some time in 1984.

36. As I have mentioned earlier, the Defendant gave evidence over 5 days, during which period I observed her closely. She is a difficult witness, in the sense that she had a tendency of not answering questions in a straightforward manner. She also tried to second guess the purpose of the questions put to her instead of answering them in a direct manner. Her rambling account appeared to be inconsistent at times because she failed to mention important matters one would have expected her to mention when she was asked initially. A striking example was that she mentioned for the first time in her re-examination a property in Lantau which she purchased in the early 1980s and for which she had approached a solicitor in 1990 to transfer into the joint names of the Deceased and herself and produced a letter from the solicitors dated 24 May 1990 to support what she said.

37. I have to be careful to ascertain whether her failure to mention an important matter the first time she was asked was because she was not giving a truthful account and whether the later additions were an attempt to embellish her evidence. The Plaintiff's counsel, Ms Liza Yip, had made great play about the fact that many of the matters alleged by the Defendant in her evidence in this trial were just not mentioned in the previous trial and there were instances in which the Defendant's testimony in this trial was different from her testimony in the last trial.

38. On her failure to mention important matters to the court at the last trial, I am satisfied that this was not due to untruthfulness on the Defendant's part. I have already mentioned the circumstances in which the Defendant found herself unrepresented in the last trial and the inadequate pre-trial preparation of her former solicitors. As for the inconsistent answers given by the Defendant in the last trial and this trial, again I have not attached any significant weight to this. I accept what the Defendant told me that she was frightened and confused when she was driven to represent herself at the last trial, notwithstanding that the judge at the last trial had treated her with consideration. Her state of mind at the last trial might well have affected the testimony she gave. One glaring example was her telling the court in the last trial that she had only met the Deceased's 4th sister Ng Lin for the first time in 1990 and that she did not meet Ng Lin during 1980 to 1984. This is untrue as borne out by Ng Lin's evidence in this trial. That statement is also inherently unlikely as Ng Lin had given the Defendant a power of attorney in August 1990 authorizing her to collect rent from the occupants of No. 83 Tai Po Road. It is just improbable that Ng Lin would have given the Defendant this power of attorney if they had met only for the first time in 1990. The Defendant's explanation why she had told the court at the last trial of meeting Ng Lin for the first time in 1990 was because this power of attorney was produced in evidence and she was anxious to make the court believe her that she had known Ng Lin. Hence, she mentioned 1990 as the time when she first met Ng Lin and denied that their first meeting was during 1980 to 1984. She thought that her evidence would have a better chance of being accepted by the court as she could point to the power of attorney in 1990 to support her testimony.

39. The Defendant was subjected to a thorough and searching cross-examination in this trial. At times, she was exasperating, argumentative and just not answering what was asked of her. She lost her temper a few times. I am, however, satisfied that she could not have recalled what she said at the last trial (as she was also subjected to a lengthy cross-examination by Ms Liza Yip on that occasion) and that she had tailored her evidence accordingly in this trial because her evidence was not accepted by the judge in the last trial. Having considered the Defendant's evidence carefully, as well as the evidence given by the Plaintiff, Ng Suet Ching and the Defendant's witnesses, I am satisfied that the Defendant is essentially a truthful witness.

40. I shall turn to each of the issues of fact that the Defendant is required to establish to make out her case.

Had the Defendant cohabited with the Deceased

41. I have no difficulty in coming to the view that the Defendant had cohabited with the Deceased during 1980 to 1990. I say this for the following reasons.

42. Firstly, the Defendant gave detailed and convincing evidence of the life she had led with the Deceased during this period. I am satisfied from her evidence that her relationship with the Deceased was a most intimate one and that this could not have been the relationship of merely an employer and an employee. Two of the Deceased's children, Pak Leung and Sed Ying, came to visit the Deceased in Hong Kong in 1983 and 1987 respectively. The Deceased's nephew Fu Ling came from Canada to visit him in 1985. They were all introduced to the Defendant and were asked to address her as "Auntie Ting". Even for Ng Suet Ching, who has denied that she had known the Defendant when she first came to Hong Kong in 1982, admitted that she was asked by the Deceased to address the Defendant as "Auntie Ting". Ng Suet Ching is one year older than the Defendant and she also looks older judging by their present looks. It would be extraordinary for the Deceased to ask Ng Suet Ching to address the Defendant as auntie if the Defendant was merely his employee. I am satisfied from the Defendant's evidence, particularly in the last 3 years of the Deceased's life, that her concern for the Deceased's well being was most genuine. In contrast, even though Ng Suet Ching was the Deceased's only child in Hong Kong and she claimed she had visited her father often, she was not able to give a description of the Deceased's symptoms, illness and medical treatment except in a facile manner. Only someone who had lived with the Deceased and had enjoyed a loving relationship with him could have given evidence as the Defendant had done on the life that they had shared.

43. Secondly, there is supporting evidence from the Defendant's witnesses that she had been living with the Deceased as man and wife. Lam Kwok On had known the Deceased and the Defendant ever since he lived in Tai Po Road in 1980. He was one of the first occupants in the Camp Street Property when this was acquired in 1986. He had regarded the Defendant and the Deceased as a couple and he gave evidence that they shared a room. He addressed the Deceased as "principal tenant" and the Defendant as the "lady principal tenant". Another occupant in the Camp Street Property, Luk Keung, also one of the first to move into that property, gave similar evidence. Lastly, the Deceased's 4th sister, Ng Lin, gave evidence that she knew the Defendant at about the time when the Deceased purchased No. 83 in Ng Lin's name (which was in 1981) and that the Defendant was introduced to her by the Deceased as his wife. I accept the evidence of these 3 witnesses.

44. Thirdly, as for the Plaintiff's evidence that was meant to cast doubt on the Defendant's intimate relationship with the Deceased, I reject her evidence in this regard. I accept the Plaintiff's evidence that she was not introduced to the Defendant when she first came to Hong Kong for a 7-day visit in 1984. However, I reject her evidence that she had stayed in the Reclamation Street Property during that period. I find that she had stayed with her daughter Ng Suet Ching on that occasion, as she had also done for the first 2 to 3 months when she came to Hong Kong a second time in 1989. I also reject the Plaintiff's evidence on the ambulance incident. I accept the Defendant's version on this and that it was not the Defendant who had told the ambulance staff she was the Deceased's daughter-in-law. I find that it was the Plaintiff who had told the ambulance staff that the Defendant was the daughter-in-law. From what I observed of the Plaintiff, it was quite unlike her to keep quiet in that situation if it was the Defendant who had given that information.

45. Fourthly, I also reject Ng Suet Ching's evidence that she had only met the Defendant for the first time in 1988. I regard that as inherently unlikely, bearing in mind that she was the Plaintiff's only child living in Hong Kong between 1982 and 1988 and that the Deceased had introduced all his children and relations to the Defendant when they came from abroad to visit him as borne out by the photographs produced by the Defendant. The Defendant also gave evidence that she had known the husband of Ng Suet Ching even before Ng Suet Ching had arrived in 1982 to join her husband. This matter was not challenged by the Plaintiff's counsel. It would be most unlikely that Ng Suet Ching had not met the Defendant all this time.

46. Fifthly, I reject the Plaintiff's evidence that she had not known that the Defendant had been living with her husband for years. I find that the Plaintiff must have known the relationship between the Deceased and the Defendant. That was why the Plaintiff and her family members had attempted to stop the Defendant from visiting the Deceased when he was transferred from St Teresa Hospital to Caritas Medical Centre in July 1990. That was also the reason why the Plaintiff and her family members had removed the Deceased to a home for the elderly when he was discharged from Caritas Medical Centre in October 1990 without telling the Defendant the whereabouts of the Deceased notwithstanding that they knew she had made a report to the police that the Deceased was missing. I find that the Plaintiff and Ng Suet Ching knew, at the latest in July 1990, that the Defendant had asserted an interest in the Reclamation Street Property and the Camp Street Property and that the Plaintiff and Ng Suet Ching had taken action to thwart the Defendant when she asserted an interest over these 2 properties. Because they wished to deny that the Defendant had an interest over these 2 properties, they maintained that she had not cohabited with the Deceased. I find that the reason why they were so anxious to get back the Deceased's identity card from the Defendant was because they were under the belief that the Deceased's identity card was required to collect the compensation from the Government for the resumption of the Reclamation Street Property. That was why they arranged for the Deceased to obtain a new identity card when they failed to get the Deceased's identity card from the Defendant. I also reject the evidence of the Plaintiff and Ng Suet Ching that they had not removed the title deeds of Camp Street from the Tai Po Road premises shortly after the Deceased was admitted to St Teresa Hospital on 27 July 1990. I accept the Defendant's evidence in this regard that she had gone to the Tai Po Road premises intending to take into her possession the title deeds of the Camp Street Property shortly after the Deceased was admitted to St Teresa Hospital but she was beaten to it by the Plaintiff and Ng Suet Ching who had arranged for all the Deceased's belongings in his cubicle in Tai Po Road to be removed to Ng Suet Ching's home in Yuen Long once the Deceased was taken to hospital. It was in fact acknowledged by Ng Suet Ching that her family had already got the title deeds of the Camp Street Property when they declined to pledge the title deeds to pay for the expenses of the Deceased in St Teresa Hospital as proposed by the Defendant.

47. In summary, I find that the Defendant had cohabited with the Deceased from 1980 until his death in 1990. Between 1980 to 1984, they had stayed in the Tai Po Road premises and they had also spent the night in hotels every now and then because it was awkward for the Defendant to reside in the Tai Po Road premises with limited bathroom facilities shared by nearly a hundred male occupants in the dormitory in Nos 83 and 85 of Tai Po Road. From 1984 until the Deceased was first admitted to St Teresa Hospital in December 1988, they lived mainly on the roof top of the Reclamation Street Property, which they had entirely to themselves as only the 2nd floor premises were used as a male dormitory. After the Deceased's surgery in December 1988 and as it was inconvenient for him to climb the stairs to reach the roof top, the Deceased and the Defendant had cohabited in the Camp Street Property until he was admitted to hospital again in July 1990.

The financial resources of the Deceased

48. It would be convenient at this stage to consider the financial resources of the Deceased and the Defendant respectively before I deal with the purchase of the Reclamation Street Property in 1984 and the Camp Street Property in 1986.

49. The Deceased came to Hong Kong after Word War II with virtually no money. He depended on his 4th sister Ng Lin who was married into a wealthy family at that time. She owned 2 blocks of property and she asked the Deceased to manage a four-storey building in Shanghai Street for her in 1948. Without the acknowledge and consent of Ng Lin, the Deceased sold the building in 1951 and pocketed the proceeds being HK$49,000.00. This was later discovered by Ng Lin and the Deceased agreed to repay his sister at HK$400.00 a month. These matters were admitted by the Deceased in a formal note and acknowledgement to his sister dated 21 February 1953, which has been retained by Ng Lin and produced in this trial.

50. According to Ng Lin, even in the 1970s, the Deceased had depended on her for his living. In 1974, the Deceased had, with the consent of his elder sister Ng Kam Yuk, borrowed HK$30,000.00 from a bank with the mortgage of No. 85 Tai Po Road, which was owned by Ng Kam Yuk. The loan of HK$30,000.00 was paid off in 1978. It is not known when the Deceased first started to operate the male dormitories at Nos 83 and 85 Tai Po Road but by 1978 when the Defendant first met him, he was already running the dormitories there. The Deceased apparently saved enough money for him to buy No. 83 Tai Po Road for Ng Lin in 1981 in the sum of HK$210,000.00, which he paid without the assistance of a mortgage. No. 83 was purchased for Ng Lin as compensation for the wrong that the Deceased had done her in selling her building in 1951. Ng Lin did not regard that as sufficient compensation.

51. Between 1980 to 1984, the Deceased operated the dormitories at Nos 83 and 85 Tai Po Road. He paid HK$2,000.00 per month to Ng Lin for allowing him to use No. 83. It is not known what amount, if any, he had paid to his children Ng Pak Leung and Ng Sed Ying, to whom Ng Kam Yuk had left No. 85 Tai Po Road, for his use of that property as a dormitory. It is also not known what arrangement, if any, was reached the Deceased and Pak Leung as regards the basis on which the Deceased was allowed to operate a dormitory there after Ng Pak Leung and Ng Sed Ying became the registered owners by an assent in 1984. I find that it is likely that the Deceased would have saved some money during 1982 and 1983 (after he had purchased No. 83 Tai Po Road in November 1981) which could be used towards the purchase of the Reclamation Street Property in February 1984. I accept Ng Lin's evidence of the conversation she had with the Deceased at around the time when he purchased the Reclamation Street Property and I find that the Deceased's savings at that time were insufficient to pay the purchase price of the property as well as the expenses for the necessary decorations, furniture and fittings to make the 2nd floor premises suitable for a dormitory.

52. During 1984 to 1986, the Deceased was operating dormitories in 3 places. In about 1985, the Deceased had paid HK$200,000.00 to Ng Lin as further compensation after much badgering from her. The rentals received from the Reclamation Street Property were used to discharge the mortgage instalments of the Reclamation Street Property. I also accept the Defendant's evidence that the Deceased had also given quite substantial sums to his son Pak Leung for the latter's garage business in the United States. I find that the Deceased could not have accumulated much savings from his business operations between 1984 to 1986. The Camp Street Property had the purchase price of HK$260,000.00 stated on the agreement and assignment. However, a loan was obtained from a bank to the extent of HK$440,000.00 by mortgaging both the Reclamation Street Property and the Camp Street Property. I accept the Defendant's evidence that the purchase price was under-stated in the title documents, otherwise there would be no good reason why the Deceased should borrow so much from the bank, particularly when he was just about to pay off the mortgage of the Reclamation Street Property. I find that in addition to the stated purchase price of HK$260,000.00, HK$100,000.00 was paid to the vendor Leung Man Fai (who was a good friend of the Deceased) as part of the purchase price and HK$100,000.00 was paid to Mr Leung for the decoration, furniture and fittings as Mr Leung had already fitted out the premises as a dormitory prior to his sale to the Deceased.

53. During 1986 to October 1998, the rentals received from the Reclamation Street Property and the Camp Street Property were used to discharge the mortgage instalments.

54. It is my finding that during the 10-year period of 1980 to 1990, although the Deceased had made money from the dormitories in 4 places, I would not regard his savings as substantial. Certainly, his means were not such that he would be able to pay for the 2 properties registered in his name without financial assistance.

The Defendant's financial resources

55. The Defendant alleged that when the Reclamation Street Property was purchased in February 1984, she had accumulated savings of about HK$100,000.00. She had been working as a hawker between her first and second marriage. She was in partnership with a friend and they shared their profits equally. According to her, her friend had also saved sufficient money from the hawking to purchase a flat in Yuen Long by instalments in a building under construction. The Defendant was unable to give an estimate of her average monthly earnings. She said that the amount she earned a day would depend on the quality of the goods she sold with her friend. At times, profit was good but there were occasions when they did not make much money. I accept her evidence that by the end of 1983 or early 1984, she had saved up about HK$100,000.00 from her hawking.

56. The Defendant's earnings from hawking came to an end with the purchase of the Reclamation Street Property. Thereafter, she became involved in the operation of the dormitories in the Reclamation Street Property and later on in the Camp Street Property.

Acquisition of the Reclamation Street Property

57. The Defendant's claim for the entire amount of the compensation paid by the Government with interest thereon was made on 2 grounds. Firstly, it was alleged by her that there was an arrangement or understanding between the Deceased and herself when this property was acquired that she should have the entire interest in the property if the Deceased should pass away and in reliance on that understanding, she had altered her position accordingly. Secondly, it was alleged by her that she had made a direct financial contribution towards the purchase price and was entitled to an interest in the property on a constructive trust. The Defendant's evidence in this regard may be summarized as follows.

58. In about 1983, the Defendant intended to purchase a property in Yuen Long for herself and her son with the money she had saved from hawking and she discussed this with the Deceased. By then, she had been together with the Deceased for some 3 years. Their living condition was unsatisfactory as the Deceased was then living in a cubicle in the Tai Po Road and it was inconvenient for the Defendant to live in the premises operated as a dormitory for a hundred men. One of the Deceased's sons in the United States, Ng Pak Keung, had at about that time applied for the Plaintiff to emigrate. It is unnecessary for my decision to make any finding on the reason why the Deceased did not emigrate to the United States with the Plaintiff in 1984. The fact is that he had not done so notwithstanding he had tried to emigrate to the United States in the 1950s.

59. In the discussion between the Deceased and the Defendant, the Deceased persuaded her to abandon the idea of buying a flat in Yuen Long and suggested that they should pool their money together to buy a property in the urban area and operate it as a dormitory. The Defendant agreed to that suggestion. She picked the area or district that she liked and they looked at advertisements of properties for sale in the area that she preferred. The Reclamation Street Property was found by the Deceased. They liked the property because the 2nd floor could be used as a dormitory and they would have the structure on the roof top to themselves as their residence. The property was in a dilapidated condition and substantial renovation was required to be carried out to the 2nd floor to make it suitable as a dormitory. The Defendant contributed HK$80,000.00 towards the purchase price and HK$20,000.00 odd for the renovation expenses. The purchase price was HK$380,000.00 and a mortgage loan of HK$180,000.00 was obtained. According to the Defendant, she and the Deceased had paid almost all they had in making a large down payment. That was why the mortgage loan was to be repaid over a relatively short period of 2 years. As she had left it to the Deceased to attend to the money matters in the conveyancing, she had no idea of the actual amount of the down payment and other expenses paid towards legal fees, stamp duty and the total renovation expenses.

60. The Defendant gave evidence that when this property was purchased, the Deceased told her that as they had been living together as man and wife, he was buying the property for her sake. As he was older than the Defendant (the Deceased was aged 62 in 1984 and the Defendant was aged 39), it was likely that he would predecease her. He told her that when he died, she would have a place to live on the roof and she would be able to collect rent from the dormitory operated on the 2nd floor.

61. If I were to accept the Defendant's evidence on the above representation, there would be an arrangement or understanding between them that she was to have the entire interest in the property when the Deceased passed away. I am, however, unable to accept this part of the Defendant's evidence, notwithstanding that I have accepted her evidence on most matters and I regard her as essentially truthful. My reasons for rejecting her evidence in this respect are as follows.

62. The Defendant has advanced this case that the Deceased had made the alleged representation to her she was to have the entire interest in the Reclamation Street Property when he passed away only at a very late stage in these proceedings. It was not pleaded in the Defencefiled on her behalf in August 1996. I am prepared to make allowance for the Defendant for various inconsistencies and omissions due to the inadequate preparation of her case by her former solicitors and the fact that she had to represent herself at very short notice at the last trial. However, one thing must have been very clear to the Defendant from the Defencefiled on her behalf in 1996 and that she was claiming a half interest, not the entire interest, in the compensation paid in respect of the Reclamation Street Property. The Defendant might have omitted to mention to her former solicitors the alleged representation of the Deceased but she would not have failed to appreciate the difference between a claim for the entire compensation and a claim for a half share in the compensation of the Reclamation Street Property. For a long time, she was apparently content with claiming for a half share. Indeed, her counsel, Mr Meyrick Wong, only applied to amend her Defence and Counterclaim on the last day of the trial after the close of the Defendant's case to claim an interest in the entire amount of the compensation instead of a half share. Given this background, I regard the Defendant's evidence of the alleged representation by the Deceased that she was to have the entire interest on his death with considerable scepticism.

63. Secondly, I have considered the Defendant's evidence as to the representation allegedly made by the Deceased to her when the Camp Street Property was bought in 1986. According to the Defendant, the Deceased had also told her on that occasion that the Camp Street Property was for her to manage as a dormitory and the place would be hers eventually. When she was old, she and her son "would have a place to live in", and she could collect rent from the Camp Street Property and her livelihood would be secured. I accept that the Deceased might well have assured the Defendant at some stage that the property operated by her as a dormitory would provide a place for her to live in as well as a source of income when the Deceased passed away. However, I find it odd that the Deceased would have made a similar assurance to the Defendant on each of the 2 occasions when the properties were purchased. They were the only substantial assets of the Deceased and it would appear from the Defendant's evidence that the Deceased was mindful of the needs of his family and he had been giving financial help to at least 2 of his children, Ng Pak Leung and Ng Sed Ying over the years. Further, the Defendant would not need two properties as her residence. In my judgment, I think it is more likely than not that the Deceased had not made the alleged representation to the Defendant on the occasion when the Reclamation Street Property was purchased as it was probably unnecessary for him to do so. If the Defendant had indeed contributed towards the purchase price of the Reclamation Street Property, as she said she had done at the Deceased's suggestion, and that she had helped him to operate the dormitory there, it was only but natural for her to expect, and it must have been understood by both of them, that the Defendant should have a share in this property without an express assurance from the Deceased of what would happen when he passed away.

64. My view is fortified by the different treatment of the Camp Street Property from the Reclamation Street Property. According to the Defendant, all the rentals collected from the occupants in the Reclamation Street Property were taken to the Deceased in Tai Po Road, where the Deceased kept the rentals, books and records of the dormitories that he operated. The Camp Street Property was treated differently from the very beginning. The occupants were asked to pay rent only to the Defendant and she kept the rentals for her own use, only giving the Deceased the amounts that he asked for to make up what he would need to pay the mortgage instalments and after the mortgage was discharged money was given for other uses of the Deceased from time to time.

65. I have not overlooked the fact that there is evidence from the Defendant that the Deceased had given her his identity card so that she could collect the compensation money from the Government. I do not regard this as sufficiently strong to support the Defendant's allegation that it was intended by the Deceased she should receive for her own use the entire compensation money. If that was the Deceased's intention, he could easily have given instructions to the firm of surveyors handling the compensation application for him that the money was to be paid to the Defendant. He had not done so.

66. As I have come to the view that there was no arrangement or understanding that the Defendant was to have the entire interest in the Reclamation Street Property upon the Deceased's death, it would not be necessary for me to find whether she had acted to her detriment or had significantly altered her position in reliance on the arrangement or understanding. For the sake of completeness, and as I have considered the evidence, I would mention that if it were necessary to so find, I would have found that there were acts on the Defendant's part that could be regarded as alteration of position on her part:

(1) The Defendant abandoned the idea of purchasing a property in Yuen Long to live with her son.
(2) Instead, she moved to the roof top structure of the Reclamation Street Property and established lodgings there with the Deceased, living together as man and wife.
(3) She contributed her time and efforts in managing the dormitory in the Reclamation Street Property until this was resumed by the Government in 1989.

67. I turn to consider the other ground relied on by the Defendant, namely, that she had made a direct financial contribution towards the purchase price. I am mindful of the inconsistencies in the Defendant's evidence in this regard, as submitted by the Plaintiff's counsel, Ms Liza Yip. The Defendant's evidence as to the amount of contribution that she made and the manner in which the contribution was paid was inconsistent with her affirmation in the probate action, the further and better particularsfiled on her behalf in this action, and her testimony in the previous trial. However, I accept her evidence in this regard and I find that she had contributed HK$80,000.00 towards the purchase price and a sum of HK$20,000.00 odd towards the renovation expenses for the installation of bunk beds and the metal work for the account room. My reasons are as follows:

(1) I have found that the Defendant had made enough savings from her hawking business and she was in a position to contribute to the purchase price of the Reclamation Street Property. I also accept her evidence that she had intended to purchase a property for herself and her son in Yuen Long making use of her own savings, and that she was dissuaded from this by the Deceased and decided to pool her money with his to buy a property in Kowloon.
(2) I have found that the Deceased had accumulated some savings from his dormitory business in Tai Po Road but not sufficient at that time to buy the Reclamation Street Property and to pay for the renovation work which was considerable with his own resources.
(3) There is support for the Defendant's case from Ng Lin whom I regard as a truthful witness notwithstanding that she and the Plaintiff were not on good terms. Ng Lin knew that her brother did not have enough money to buy the Reclamation Street Property and the Deceased had admitted to her that part of the money came from the Defendant.

68. This being the conclusion I have reached, what should be the share of the Defendant in the compensation and interest thereon of the Reclamation Street Property? I have had regard to the fact that 47% of the purchase price was provided by a loan from a bank. The Defendant's contribution at HK$80,000.00 was 40% of the balance of the purchase price. She had shouldered the responsibility of running the dormitory there to a significant extent. In the circumstances, I think it would be proper to approach this on the basis that it was the presumed intention of the Deceased and the Defendant that she should have a half interest in the property and subsequently a half share in the compensation payable in respect of the property, on the authority of Midland Bank plc v. Cooke [1995] 4 All ER 562.

69. Mr Meyrick Wong has also relied on proprietary estoppel to found a claim in the Reclamation Street Property. I will deal with this briefly as this is probably unnecessary in view of my conclusion in the Defendant's favour on constructive trust. On the findings I have reached above, I find that the Defendant had the belief that she was to acquire a share in the Reclamation Street Property by virtue of the financial contribution that she made and her belief was known to and encouraged by the Deceased. I further find that the Defendant had acted to her detriment on the faith of such a belief in the manner that I have set out above. As a result, the Plaintiff being the Deceased's executrix must be estopped from denying that the Defendant is entitled to a half share in the compensation and interest thereon of the Reclamation Street Property.

Acquisition of the Camp Street Property

70. The Defendant's case is based solely on an arrangement or understanding reached with the Deceased at the time of the acquisition of this property. She alleged that there was an assurance from the Deceased she should have the property when he passed away. It is not alleged by her that she had made direct financial contribution towards the purchase price, as she admitted she had used up her savings in the purchase of the Reclamation Street Property and she had ceased working as a hawker after she was involved in the running of the dormitory in the Reclamation Street Property. The Defendant's evidence may be summarized as follows.

71. The Camp Street Property was sold to the Deceased by his friend Leung Man Fai. Mr Leung had bought the property and had fitted it out as a dormitory. The Deceased had a discussion with Mr Leung and persuaded Mr Leung to sell the property to him as it would be too much trouble for Mr Leung, who was in his 70s, to run a dormitory business. When Mr Leung queried why the Deceased should want to operate another dormitory as the Deceased already had 3, the Deceased said he was to buy the Camp Street Property for the Defendant to operate. A deal was struck between Mr Leung and the Deceased and the actual purchase price was as I have found earlier.

72. The Defendant was present when the Deceased had the discussion with Mr Leung but did not take part in it. The Deceased discussed the matter with her afterwards. The Deceased told her the arrangement was that she should manage the Camp Street Property and the property would be hers eventually. She would have a place to live in with her son and she could collect rent from the occupants in the dormitory.

73. I have already described what the arrangement was regarding the rentals collected from the occupants of the Camp Street Property.

74. I find that the Defendant had gone to the Tai Po Road premises the day after the Deceased was admitted to St Teresa Hospital intending to remove the title deeds of the Camp Street Property but was unsuccessful as the Plaintiff had caused all the Deceased's belongings in the Tai Po Road, including the title deeds of the Camp Street Property, to be removed to her daughter's place before the Defendant went there. The Defendant claimed that she had possession of the title deeds of the Camp Street Property all along until 2 months before the Deceased was admitted to St Teresa Hospital and she gave evidence that the Deceased had instructed a solicitor at that time to transfer the Camp Street Property into her name. It was for this reason that she had taken the title deeds of the Camp Street Property to be kept by the Deceased in Tai Po Road. I have reservations about this part of the Defendant's evidence and I doubt whether she did have possession of the title deeds of the Camp Street Property all the time until 2 months before the Deceased's admission to hospital, as I find it inexplicable that she should take the title deeds to be kept by the Deceased in Tai Po Road instead of taking them to the solicitors if the Deceased had given instructions to the solicitors for the transfer of the property to her name. Further, if the Deceased had indeed given instructions to his solicitors to that effect, it is very odd that the solicitors had failed to carry out those instructions on such a simple matter for 2 months.

75. I do, however, accept the other parts of the Defendant's evidence. I am satisfied that the Deceased did need the Defendant's help to run the dormitory in Camp Street and that he had intended to secure her livelihood when he passed away. I find that the Deceased had given the assurance to the Defendant that she was to have the property on his death and I further find that she had altered her position in reliance on that assurance by these acts:

(1) She had pawned her valuables and she gave the proceeds of about HK$20,000.00 to the Deceased to help pay for various expenses and outgoings in respect of the Camp Street Property.
(2) The Reclamation Street Property, in which she had an interest, was mortgaged with the Camp Street Property to raise HK$440,000.00 which was used by the Deceased to pay the purchase price of the Camp Street Property and the decoration expenses of HK$100,000.00.
(3) She had spent time and effort in running a dormitory in the Camp Street Property ever since it was acquired.

76. I should mention that I have not taken into consideration that the Defendant had given up her chance of re-housing by the Government on the resumption of the Reclamation Street Property because she was dissuaded by the Deceased from posing as a tenant of the Reclamation Street Property as she already had a place to live in the Camp Street Property. There is no evidence before me that she could successfully have obtained re-housing if she were to pose as a tenant in the Reclamation Street Property.

77. I therefore find in favour of the Defendant on the basis of a constructive trust as well as proprietary estoppel that she is entitled to possession of the Camp Street Property and that the ownership of this property should be vested in her.

Conclusion and Orders

78. I dismiss the Plaintiff's claim and give judgment for the Defendant on her counterclaim in these terms:

(1) It is adjudged and declared that the Defendant is entitled to a half share in the statutory compensation and interest payable in respect of the Reclamation Street Property, being in the respective sums of HK$597,000.00 and HK$115,874.07.
(2) It is adjudged and declared that the Defendant is entitled to possession of the Camp Street Property and that the property has been held by the Plaintiff on constructive trust for the Defendant.
(3) It is ordered that the legal title and beneficial interest of the Camp Street Property are hereby vested in the Defendant.

79. As for costs, both parties are legally aided. Under Section 16C(1)(c) of the Legal Aid Ordinance Cap. 91, it is provided that where the court makes an order for costs against an aided person in favour of a person who is also receiving legal aid, neither such person shall be liable for such costs in excess of his contribution. The Plaintiff's contribution has been determined as nil by the Director of Legal Aid whereas the Defendant's maximum contribution payable has been determined at HK$58,681.00. In the circumstances, following the decision of Hunter J. in Chan Sau Kut and Another v. Gray & Iron Construction and Engineering Company HCA No. 6006 of 1982, 24 May 1985 (unreported), I make an order nisi that the Defendant is to have the costs of the claim and counterclaim limited to HK$58,681.00, which is the maximum contribution payable by the Defendant, and that the Plaintiff's own costs and the Defendant's own costs are to be taxed in accordance with the Legal Aid Regulations.

	(S. Kwan)
	Deputy High Court Judge

Representation:

Ms Liza S H Yip, instructed by Messrs Hobson & Ma, for the Plaintiff

Mr Meyrick Wong, instructed by Messrs Michael Cheuk, Wong & Kee, for the Defendant

16273-ET-1998-04-30

ZHOU CUI HAO v. TING FUNG YEE

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HCA007558/1996

1996, No. A7558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

_______________

BETWEEN
	ZHOU CUI HAO suing on her own behalf and as the sole executrix of the estate of the late NG CHING POON	Plaintiff

	AND

	TING FUNG YEE	Defendant

________________

Coram: The Honourable Mrs Justice V. Bokhary in Court

Dates of Hearing: 27, 30, 31 March 1998 and 1, 3 April 1998

Date of Handing Down of Judgment: 30 April 1998

________________

J U D G M E N T

________________

1. I completed this judgment in English some time ago but put back handing it down until that could be done together with a Chinese version.

2. This case concerns a flat, being the one on the 1st floor of 146 Camp Street in Kowloon ("the Suit Premises").

3. The Plaintiff is the widow of the late Mr Ng Ching Poon ("the Deceased") who died on 9th December 1990. He was the sole registered and beneficial owner of the Suit Premises which he purchased on 27th March 1986. She is the sole executrix named in his last will executed on 5th December 1990 and the sole beneficiary thereunder.

4. In 1995 this Court pronounced in favour of that will in solemn form. Later that year the Plaintiff obtained probate of the Deceased's estate and was appointed the sole executrix thereof.

5. On 17th April 1996 she, as sole executrix, assented to the vesting of the Suit Premises in herself as sole beneficiary.

6. The Defendant, according to her pleadings, was cohabiting with the Deceased since 1980, at first elsewhere and finally in the Suit Premises. She is still living in the Suit Premises.

7. It is the Plaintiff's case that the Defendant never had anything more than a licence determinable at will to occupy the Suit Premises. And it is common ground that on 1st June 1996 solicitors acting on behalf of the Plaintiff wrote to the Defendant saying that her licence to occupy the Suit Premises was determined and that she was required to vacate the Suit Premises not later than one calendar month from the date of such letter.

8. It is the Plaintiff's case that the Defendant's occupation of the Suit Premises constitutes trespass and has done so since 1st July 1996. Further, it is the Plaintiff's case that the Defendant has, since the deceased's death on 9th December 1990, been receiving rent from the tenants occupying those parts of the Suit Premises other than the portion thereof occupied by the Defendant herself. Those "tenants", the evidence disclosed, are persons each of whom occupy a bed space in return for payment.

9. The prayer to the Plaintiff's Statement of Claim reads as follows:

"1. An Order that the Defendant do forthwith vacate and move out from the Suit Premises.
2. (a)An Account of all the rents received by the Defendant from the tenants of the Suit Premises since 9th December 1990.
(b) An Order that the Defendant do pay over to the Plaintiff any and all of the rents so received upon the taking of the Account ordered in sub-paragraph (a) above.
(c) All necessary and consequential directions.
3. (a) Mesne profits for the Defendant's said wrongful occupation of the Suit Premises.
(b) Further or alternatively, damages for trespass.
4. Interest.
5. Costs.
6. Further and/or other relief or reliefs as this Court may think fit."

10. Although she had the services of solicitors and counsel at an earlier stage of this litigation, the Defendant has been in person throughout the hearing before me.

11. The facts averred in the Defendant's Defence and Counterclaim, settled by her then counsel, appear in the following paragraphs of that pleading:

"6. Since the year 1980, the Defendant was in cohabitation with the Deceased until he was taken ill and his eventual death in the month of December 1990.
7. (a) In or about the year 1984:-
(i) The Defendant contributed out of her own savings for the down payment toward the purchase of a property with the Deceased namely, 2nd Floor and Roof, 187 Reclamation Street, Kowloon, Hong Kong (hereinafter called "the said Property").
(ii) The 2nd Floor of the said Property was converted and used for carrying on the business of a male dormitory of which the Defendant and the Deceased were partners in equal shares.
(iii) The Defendant and the Deceased occupied the Roof of the said Property.
(b) The income from the said business was used, inter alia, to pay for the mortgage repayments in respect of the said Property;
(c) The said Property was resumed by Government in or about the year 1989;
(d) The statutory compensation payable in respect of the resumption of the said Property amounted, inter alia, to the sum of HK$597,000.00 together with interest thereon.
8. In or about the year 1988 the Deceased, in order to persuade the Defendant into agreeing to contribute in the purchase of the Suit Premises for the purpose of carrying on the business of another male dormitory, orally promised and represented to the Defendant that :
(a) The Defendant should work harder to ensure that they would be financially secured in their old age; and
(b) The business and the Suit Premises would belong to the Defendant in the event of his death.
9. In reliance upon the aforesaid promise and representation, the Defendant :-
(a) Contributed out of her own savings towards the down payment for the purchase of the Suit Premises with the Deceased.
(b) Expended money in converting and decorating the Suit Premises as a male dormitory.
(c) Expended time and labour in carrying on and managing the said business at the Suit Premises mainly on her own.
(d) Paid inter alia out of the income from the aforesaid business the mortgage repayments on the Suit Premises.
(e) Paid up the mortgage on the Suit Premises after 5 years from the date of its purchase.
(f) Occupied part of the Suit Premises with the Deceased since the year 1986 as their home and remained in occupation of the Suit Premises as her home after the death of the Deceased.
10. In the year 1990, on the occasion when the Deceased refused the request by the Plaintiff to transfer the Suit Premises to the Plaintiff, the Deceased repeated his promises to the Defendant that the Suit Premises would belong to the Defendant upon his death."

Then the legal consequences for which the pleader contends on those averments of facts are pleaded thus in the Defence and Counterclaim :

"11. In the premises and by reason of the matters hereinbefore pleaded the Defendant avers that :-
(a) The Deceased (and his successors in title and all persons claiming title through him including the Plaintiff) is estopped from reneging from his aforesaid promise and representation by claiming against the Defendant for possession of the premises.
Alternatively,
(b) The Plaintiff as the successor-in-title of the Deceased is estopped from :
(i) Denying the Defendant's right interests and equities in the Suit Premises.
(ii) Claiming possession of the Suit Premises from the Defendant.
(c) The Plaintiff holds the Suit Premises subject to the Defendant's right, interest and equities therein.
(d) The Plaintiff holds the Suit Premises as constructive trustee for the Defendant.
Further and/or alternatively,
(e) (i) The Plaintiff had full knowledge and notice of the Defendant's actual occupation of the Suit Premises.
(ii) The Plaintiff's right to the Suit Premises, if any, is subject to the Defendant's overriding interest therein.

12. In the premises and by reason of the aforesaid :-
(a) The Plaintiff is not entitled to claim possession of the Suit Premises from the Defendant.
(b) The Plaintiff is not entitled to the relief claimed in the Statement of Claim or to any relief.
13. Save as hereinbefore to the contrary expressly appears the Defendant denies each and every allegation contained in the Statement of Claim as if the same were set forth herein and traversed seriatim.

AND BY WAY OF COUNTERCLAIM

14. The Defendant repeats her Defence herein.
15. By reason of the matters hereinbefore pleaded :-
(a) The Defendant has acquired rights and interests Suit Premises in equity.
(b) The Defendant is entitled topossession of the Suit Premises.
(c) The Defendant is entitled to her half share in the statutory compensation payable in respect of the said Property.
16. Further and insofar as may be necessary in the alternative the Plaintiff's right to the Suit Premises if any is subject to the Defendant's overriding interests therein by reason of her actual occupation of the Suit Premises with the deceased before his death and is still in actual occupation of the same as her home after the death of the Deceased."

Finally the prayer to the Counterclaim reads :

"1. A declaration that the Defendant is entitled to her share in the statutory compensation payable in respect of the said Property.
2. A declaration that the Defendant is entitled topossession of the Suit Premises.
3. A declaration that the Plaintiff holds the Suit Premises on trust for the Defendant.

Alternatively,

4. A declaration that the Plaintiff holds the Suit Premises subject to the Defendant's rights, interests and equities therein.
5. Such further or other orders or relief as this Honourable Court shall deem just or equitable.
6. Costs."

12. The Defendant went into the witness-box and gave evidence in support of her defence and counterclaim. She did not call any witness. Nor did she produce any document which showed anything more than that she managed the Suit Premises and collected payment - whether one calls it "rent" or anything else - from the men who occupied bed spaces in those premises and paid for such occupation. That she functioned in that way is not in dispute.

13. What is in dispute is the rest of her case: about her cohabiting with the Deceased; about her contributing to the purchase of the property in Reclamation Street; about her being a partner in the business carried on at that property; about her having received promises and representations from the Deceased about such promises and the Suit Premises; about her acting on such promises and representations by contributing money and labour; about a repetition by the Deceased of such promises; and so on.

14. All of those matters are for the Defendant to prove on a balance of probabilities. And she has not satisfied me of any of them on such a balance. I do not regard her story as inherently likely. But it is by no means impossible. I listened to her with the greatest care - and with a more benevolent desposition given that she is in person. But, having done so, I have to say that she did not impress me as a credible witness.

15. It is not necessary for me to deal with what the legal position would be if the disputed facts were as alleged by the Defendant. I do not find that to be the factual position.

16. What remains is to consider the Plaintiff's legal entitlement on the admitted or uncontroversial facts left once the Defendant's allegations fail, as they do.

17. I would prefer to grant such relief as would bring this litigation to an end here and now. But the way in which this action has been conducted drives me to the conclusion that the best thing that I can do in fairness to both sides is the following. Accordingly, what I do is to:

(1) Order that the Defendant do vacate and move out of the Suit Premises on or before 30th May 1998.
(2) Declare that the Plaintiff (in her capacity as sole executrix of the Deceased's estate is so far as the period 9th December 1990 to 1st April 1996 is concerned and in her capacity as sole owner of the Suit Premises in so far as the period thereafter is concerned) is entitled to have the Defendant account to her for all rent and/or other payments recovered by the Defendant since 9th December 1990 from (i) tenants of the Suit Premises or any part thereof and/or (ii) other persons who occupied the Suit Premises or any part thereof and paid for occupying the same.
(3) Order that such account be taken before a Master.
(4) Order that all such directions as may be just and proper for the taking of such account be made by the Master before whom such account is taken or, if it is more convenient in any instance, by any other Master.

(5) Order that the interest on any sums found due upon the taking of such account be dealt with by the Master before whom such account is taken.
(6) Order that the costs of and incidental to the taking of such account be dealt with by the Master before whom such account is taken.
(7) Order that the Defendant do pay to the Plaintiff (in the Plaintiff's respective capacities set out above) all sums found due upon the taking of such account together with such interest and costs as may be awarded by the Master before whom such account is taken.
(8) Order that the Defendant do pay to the Plaintiff as sole owner of the Suit Premises mesne profits as assessed by a Master for the Defendant's occupation of the Suit Premise from 1st July 1996 to the day when she vacates and moves out of the Suit Premises together with such interest and costs as may be awarded by the Master hearing such assessment.

(9) Order that all directions as may be appropriate for such assessment be made by the Master before whom it takes place or, if it is more convenient in any instance, before any other Master.
(10) Direct that the taking of the account and the assessment of mesne profits be before the same Master unless that is not practicable.
(11) Order that the Counterclaim be dismissed.
(12) Make an order nisi that the Defendant do pay the Plaintiff the costs of the claim and counterclaim to be taxed on a party and party basis if not agreed.

18. Since the Defendant is in person I will mention for her information that Order 42 rule 5B(6) of the Rules of the High Court provides in regard to orders nisi as to costs that "unless an application has been made to vary that order, that order shall become absolute 14 days after the decision is pronounced".

	(V. Bokhary)
	Judge of the Court of First Instance, High Court

Representation:

Ms Lisa Yip, instructed by M/s C. K. Mok & Co, for the Plaintiff.

Defendant, present in person.

Remarks:

On appeal by the Defendant to the Court of Appeal: Appeal allowed. Please refer to the Appeal Judgment CACV000108BX/1998.

"1.	An Order that the Defendant do forthwith vacate and move out from the Suit Premises.

2.	(a)An Account of all the rents received by the Defendant from the tenants of the Suit Premises since 9th December 1990.

	(b) An Order that the Defendant do pay over to the Plaintiff any and all of the rents so received upon the taking of the Account ordered in sub-paragraph (a) above.

	(c) All necessary and consequential directions.

3.	(a) Mesne profits for the Defendant's said wrongful occupation of the Suit Premises.

	(b) Further or alternatively, damages for trespass.

4.	Interest.

5.	Costs.

6.	Further and/or other relief or reliefs as this Court may think fit."

"6.	Since the year 1980, the Defendant was in cohabitation with the Deceased until he was taken ill and his eventual death in the month of December 1990.

7.	(a) In or about the year 1984:-

	(i) The Defendant contributed out of her own savings for the down payment toward the purchase of a property with the Deceased namely, 2nd Floor and Roof, 187 Reclamation Street, Kowloon, Hong Kong (hereinafter called "the said Property"). (ii) The 2nd Floor of the said Property was converted and used for carrying on the business of a male dormitory of which the Defendant and the Deceased were partners in equal shares. (iii) The Defendant and the Deceased occupied the Roof of the said Property.
	(b) The income from the said business was used, inter alia, to pay for the mortgage repayments in respect of the said Property;

	(c) The said Property was resumed by Government in or about the year 1989;

	(d) The statutory compensation payable in respect of the resumption of the said Property amounted, inter alia, to the sum of HK$597,000.00 together with interest thereon.

8.	In or about the year 1988 the Deceased, in order to persuade the Defendant into agreeing to contribute in the purchase of the Suit Premises for the purpose of carrying on the business of another male dormitory, orally promised and represented to the Defendant that :

	(a) The Defendant should work harder to ensure that they would be financially secured in their old age; and (b) The business and the Suit Premises would belong to the Defendant in the event of his death.

9.	In reliance upon the aforesaid promise and representation, the Defendant :-

	(a) Contributed out of her own savings towards the down payment for the purchase of the Suit Premises with the Deceased. (b) Expended money in converting and decorating the Suit Premises as a male dormitory. (c) Expended time and labour in carrying on and managing the said business at the Suit Premises mainly on her own. (d) Paid inter alia out of the income from the aforesaid business the mortgage repayments on the Suit Premises. (e) Paid up the mortgage on the Suit Premises after 5 years from the date of its purchase. (f) Occupied part of the Suit Premises with the Deceased since the year 1986 as their home and remained in occupation of the Suit Premises as her home after the death of the Deceased.

10.	In the year 1990, on the occasion when the Deceased refused the request by the Plaintiff to transfer the Suit Premises to the Plaintiff, the Deceased repeated his promises to the Defendant that the Suit Premises would belong to the Defendant upon his death."

"11.	In the premises and by reason of the matters hereinbefore pleaded the Defendant avers that :-

	(a) The Deceased (and his successors in title and all persons claiming title through him including the Plaintiff) is estopped from reneging from his aforesaid promise and representation by claiming against the Defendant for possession of the premises.
	Alternatively,

	(b) The Plaintiff as the successor-in-title of the Deceased is estopped from :
	(i) Denying the Defendant's right interests and equities in the Suit Premises. (ii) Claiming possession of the Suit Premises from the Defendant.
	(c) The Plaintiff holds the Suit Premises subject to the Defendant's right, interest and equities therein.
	(d) The Plaintiff holds the Suit Premises as constructive trustee for the Defendant.
	Further and/or alternatively,

	(e)	(i) The Plaintiff had full knowledge and notice of the Defendant's actual occupation of the Suit Premises.

		(ii) The Plaintiff's right to the Suit Premises, if any, is subject to the Defendant's overriding interest therein.

12.	In the premises and by reason of the aforesaid :-

	(a) The Plaintiff is not entitled to claim possession of the Suit Premises from the Defendant. (b) The Plaintiff is not entitled to the relief claimed in the Statement of Claim or to any relief.

13.	Save as hereinbefore to the contrary expressly appears the Defendant denies each and every allegation contained in the Statement of Claim as if the same were set forth herein and traversed seriatim.

14.	The Defendant repeats her Defence herein.

15.	By reason of the matters hereinbefore pleaded :-

	(a) The Defendant has acquired rights and interests Suit Premises in equity. (b) The Defendant is entitled topossession of the Suit Premises. (c) The Defendant is entitled to her half share in the statutory compensation payable in respect of the said Property.
16.	Further and insofar as may be necessary in the alternative the Plaintiff's right to the Suit Premises if any is subject to the Defendant's overriding interests therein by reason of her actual occupation of the Suit Premises with the deceased before his death and is still in actual occupation of the same as her home after the death of the Deceased."