YAU KWONG CHIU AND ANOTHER v. YAU KWONG HA

HCA2607/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO.2607 OF 1997

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J U D G M E N T

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1. This is an action by the younger brother Yau Kwong Chiu against his elder sister Yau Kwong Ha. The 2nd plaintiff is the son of the 1st plaintiff who has now reached the age of majority. The action itself concerns with an account, the deceased mother opened jointly with the defendant on 7 June 1989. The plaintiffs said this account should form a part of the estates of the mother, the defendant said otherwise. It is common ground that the account was opened in the joint name of the mother and the daughter and there were specific instructions given to the bank that there should be a survivorship clause.

2. According to the defendant, the deceased specifically told her before that the money was intended for the defendant alone. Her mother even said that the defendant daughter should not tell the 1st plaintiff or anyone else about it. Although the defendant said the mother did mention that she hoped the defendant would provide financial or other means of assistance to her grandson, the 2nd plaintiff, the deceased had never specifically mentioned that such assistance was to come out of the money in the joint account. Her mother only reminded her to look after the 2nd plaintiff should he need help. In my view, it was just an expression of a wish with no legal implications. The mother did not secure a promise from the daughter before transferring the money to the joint account she had with the daughter.

3. As I have said before, the intention could also be derived from the fact that it was a joint name account and there was specifically a survivorship provision which they had instructed the bank to do so before they opened the account. It was explained to them by the bank staff, in particular clause 4, that the survivor would take the balance in the account.

4. After the account was opened, the mother had never operated the account at all. It is evident from the papers before me that the mother had two other accounts at least and she had been actively involved in operating her other accounts. If it was just a matter of convenience, the mother (1) need not have opened a joint account with the daughter, (2) could have only added the daughter as one of the signatories to operate the account. In my view, it is a typical informal arrangement in a Chinese family where the mother gave her own money to the daughter. It was also quite typical that the daughter withdrew the interest each month from the account and operated the account by deciding under what currency to renew the deposit money. From the interest drawn out from the account each month, invariably the daughter would give part of it, in the order of $8,000 - $10,000 to her mother but there was no fixed formal arrangement for it.

5. On 22 November 1990, the defendant again withdrew $316,529 from this account and from that amount of money, she paid for the medical and other expenses for the mother. The mother was admitted into hospital on 15 November and she died on 1 December 1990.

6. The 1st plaintiff gave no evidence to contradict that of the defendant. The 2nd plaintiff, in his examination-in-chief, said that earlier, his aunt, the defendant, had admitted that it was part of the estate and would be divided and a part would be given to him when he reached 18. It is quite clear from the condition of the 2nd plaintiff that he was not in a position to give any further evidence. He was very nervous. He broke down on one sensitive issue concerning his admission to hospital some years earlier in England and it was the benevolent attitude of the defendant that he should not be asked further questions. I do not find it reliable to rely on that part of the evidence of the 2nd plaintiff.

7. The family arrangement of this family involving the mother and father of the parties has something to tell on why the mother gave substantial amount of money to the daughter. The defendant brought out, in particular the several marital and extramarital relationships in the past years of the 1st plaintiff, not for this court to pass a moral judgment but to demonstrate why the father and mother did not trust the 1st plaintiff.

8. To start with, way back in 1978, the 1st plaintiff got involved and married with one Madam Siu Koo Fai. She was the mother of the 2nd plaintiff. The 2nd plaintiff was born in December 1978. However, since then, the 2nd plaintiff was actually taken care of by the mother until 1989 for some 11 years. In fact the defendant, before she got married in 1984 and when she was living with the mother, had taken part in taking care of the 2nd plaintiff. The evidence disclosed before me is that the relationship between the defendant and the 2nd plaintiff was very close. Even after the marriage of the defendant, she continued to take care of the well being of the 2nd plaintiff, and in particular supervising his homework by meeting him personally and by telephone calls. That part was never contradicted by the evidence of the 1st plaintiff.

9. In fact, the 1st plaintiff separated with Madam Siu in 1979. In May 1980, he cohabited with Madam Lai Ho and they lived together with the mother and father at Chau Wan house. In August that year, the father purchased a flat in Tai Wah Building. It was registered in the father's sole name. The 1st plaintiff said the father intended to give this flat to him but he was immature at that time and therefore the father did not register him as one of the owners. I do not quite believe that part of the evidence. The 1st plaintiff had already joined the Police Force in 1977, by 1980 he had had three years experience as a police constable. There is absolutely no reason why the father did not find him to be mature unless he was actually immature. If the father intended to give him that flat, he would have done so. I prefer the defendant's evidence that it was the 1st plaintiff who forcibly occupied the Tai Wah Building together with his then girlfriend, Madam Lai Ho.

10. The father passed away unfortunately in September 1980. I believe the defendant's version that the flat was originally intended to be used by the father's another son, Yau Kwong Yiu, not from the deceased, who was successful in his application to come to Hong Kong. He actually arrived sometime later in November that year and sadly enough after his father's death. But the 1st plaintiff was already living in the Tai Wah flat, thus Yau Kwong Yiu lived with the deceased at Chau Wan House where the defendant also lived until her marriage in 1984.

11. In 1982, the 1st plaintiff was involved in a burglary case and he was then separated with Madam Lai Ho. (He was acquitted on appeal and he continued on his career in the Police Force.) A daughter born of that relationship was taken care by Madam Lai instead.

12. In 1983, the 1st plaintiff cohabited with another woman, Leung Man Sze at Tai Wah House until in 1984 he got a married police quarters at Cheung Sha Wan. Tai Wah House was left vacant and it was sold by the mother in May 1984 and the mother kept the proceeds of about $178,000.

13. The mother made a will on 17 December 1986. Under the will, her estates would be divided equally into three parts for the 1st plaintiff, the 2nd plaintiff and the defendant.

14. In 1987, the mother purchased a flat at Tak Po Building and that was put in the joint name of the 1st plaintiff and herself. Admittedly, the 1st plaintiff did not contribute a cent in the purchase and the 1st plaintiff actually has never lived in Tak Po Building.

15. In mid-1989, the mother sold the father's shop for $3.9 million. At that time, the defendant was given $150,000, together with $380,000. It was shortly afterwards that the mother opened the joint accounts with the defendant for $1.3 million.

16. In August 1989, the 1st plaintiff cohabited with another woman called Madam Ho Yin Ling. In 1989, the 2nd plaintiff left the grandmother and lived with the 1st plaintiff in his then matrimonial home in Tuen Mun.

17. The aforesaid account is telltale of the fact that both the father and the mother did not trust the 1st plaintiff at all. It was quite logical and reasonable for the mother just to give the 1st plaintiff half of the Tak Po Building. In fact, later on, in 1997, the 1st plaintiff sold it for quite a substantial amount of money, about $1.3 million and part of it was used for the educational support of the 2nd plaintiff who was then studying in England. It was only through his investment in the Fairview Park house, which according to him, was lost in the property market since, we all know, mid-1997 was the peak of the market when he purchased the property.

18. I do not find the 1st plaintiff to be a reliable witness at all. There was a claim of harassment by the defendant against the 1st plaintiff. It was part of the defendant's case that 10 posters were put up outside the school where the defendant was working on 24 March 1997. The content of the poster was an allegation that the defendant was immoral in the sense that she took all the estates of the mother. This is in line with the faxed message the 1st plaintiff sent at one time to the defendant's husband's office. The evidence disclosed before me and admittedly that there were in fact numerous contacts by the 1st plaintiff (sometimes with the 2nd plaintiff) with the defendant at her school, at her family and with her husband at his office. There were telephone calls both to the family, the defendant, the defendant's school and even her husband's office. The 1st plaintiff denied those posters outside the school were put up by him. I find his suggestion that they might well be put up by the defendant herself to be wild and incredible.

19. I find that the 1st plaintiff is not a reliable witness and in so far as he contradicts the defendant's evidence, I prefer the defendant's evidence, including the defendant's husband, Mr Wong Tai's evidence and her half brother, Yau Kwong Yiu. I find both of them truthful witnesses. They were calm and restrictive. They would not say anything which is beyond their knowledge. The telephone conversation taped by Mr Wong Tai is also very telling. The 1st plaintiff resorted to very foul language. I find it really startling and surprising that out of no reason and from the blue the 1st plaintiff would say to the defendant's husband : "You better not commit any offence, if you had committed any wrong, I would certainly have no hesitation to arrest you". This is something a policeman should not say. If anyone known to him and especially one who was not having a good relationship with him and if that person became a suspect of a crime, he should not be involved in the investigation at all. If it is not putting pressure on the defendant, I know not what is putting pressure at all.

20. After accepting the defendant's evidence, I have no hesitation to find in this case that the joint account was meant to be a gift from the mother to the daughter. The expression that the defendant would take care of the 2nd plaintiff who was dear to her was just an expression of a wish, it has no legally binding relationship intended at all. If it was just intended that the defendant should take care of her investment, there was no need to do so. As I have said the deceased herself was seen to be capable of operating her own savings account.

21. In respect of the withdrawal of $200,000 by the deceased on 11 September 1989, there was no evidence that it was connected with the defendant's deposit to purchase the Tsuen Wan Town Plaza. The defendant at that time was given $150,000 and $383,000 by the mother. She had been buying and selling two previous flats. There was no reason she was in need of the mother's money in order to purchase the Tsuen Wan Town Plaza flat. The mother was given a house to live in and I could not infer, from the evidence before me, this $200,000 was given to the defendant at all.

22. In respect of a Memorandum dated 12 June 1996, the defendant's evidence was there was persistent pressure put by the 1st plaintiff to her and she discussed the matter with the 1st plaintiff in the presence of Yau Kwong Yiu and Yau Chat Yin, another cousin, who happened to be a solicitor, and also her husband just out of goodwill. There was a decision made by her to divide the remaining balance less the expenses as evidenced by receipts into three, less the $40,000 which the 1st plaintiff said he had expended on the mother's tomb and tombstone.

23. Everyone agreed that Yau Kwong Yiu was the one who wrote out the memorandum. He titled it as the division of the deceased's estate out of his understanding and it was not dictated to him. It would be fair to say that the meeting was intended to put an end to the dispute as to the estate of the mother. It was not wrong for him to title the document as such. This does not amount to an admission on the defendant's part that the money in the joint account belonged to the estate. In fact, the plaintiffs were not trying to enforce this memorandum as a kind of agreement. The plaintiffs only relied on the document as a kind of admission made by the defendant.

24. I am afraid I cannot find the admission on the part of the defendant. She intended to put an end to the disputes by way of settlement and that was why she had deducted $270,000 odd which she said was evidenced by the receipts. It is true that she had previously said she withdrew $316,000 from the bank before her mother's death in order to spend it on all other expenses. The calculations by itself would show that if the joint account was truly part of the estate, the $316,000 withdrawal would have to be taken into consideration. I consider her to be a truthful witness and I also accept her evidence that this amount was mentioned by the 1st plaintiff at that time and she said that it should not be taken into consideration. That was a give and take situation in the terms of a settlement.

25. On true accounting, of course, after the deduction of the amount evidenced by the receipts, and if that was the only expenses, the $316,000 should have been added back to the total amount. But her evidence was she did not take that as a kind of admission and she did not take the account as part of the estate. This was a give and take situation which she was willing to take the remaining balance of about $800,000 odd to be shared by three parties as a kind of settlement of the dispute. It was the 1st plaintiff who insisted to add back the $316,000 odd into account which resulted in the defendant withdrawing from the agreement in total.

26. I now come to the harassment allegations in the counterclaim. It is actually common ground as described in the counterclaim that most of the contacts were made by the 1st plaintiff and sometimes with the 2nd plaintiff. The 1st plaintiff in 1996, in particular between August and September, made frequent visits to the defendant's school. In this same period of time, there were frequent telephone calls to the school, to the defendant's home, and later on, even to her husband's office. On 24 March 1997, ten posters were put outside the school. The defendant was working as a teacher there and she was the master of discipline of the school. The wordings in posters were very derogatory remarks which affected the reputation of the defendant. It can easily be inferred that anyone faced with such posters would have emotional distress and I find that it is a kind of private nuisance.

27. The 1st plaintiff intended, as I can infer from all these contacts, to put a lot of pressure on the defendant in order that the defendant would succumb to this pressure and agree to share the money in the account. The defendant at one time agreed to do so in 1996 as I have said as evidenced by the memorandum of 12 June 1996, but it is the 1st plaintiff who reneged on the agreement and insisted that a further sum of $316,000 should be taken into account which resulted in the defendant's acceptance of the repudiation of the 1st plaintiff.

28. I find all these contacts in 1996 and 1997 were both proved by the defendant and also that they were all intended to cause emotional distress and harm to the defendant. One thing which really caused a lot of pain on the defendant was the 2nd plaintiff hanging a poster on his chest on 15, 18 and 20 July 1998. I believe the 1st plaintiff was the main mover behind this. He admitted that he discussed with the 2nd plaintiff and this was intended to put pressure on the defendant.

29. I accept the defendant's evidence that she believed the 2nd plaintiff was used as a pawn in the matter. This matter was even reported in the newspaper the day afterwards, on 16 July 1998, that it was intended to add a smear on the reputation of the defendant. I, of course, recognized this is not a libel action but the nuisance caused by the plaintiffs around that time on the defendant is quite extreme, and had caused her a lot of emotional distress and inconvenience. It had also caused a lot of embarrassment to the defendant's husband. He had to face the phone calls from the 1st plaintiff to his office. There was also an occasion where two men came to his office to demand that the defendant should pay back the money and they said they were authorized by the 1st plaintiff to do so. Though the 1st plaintiff denied all these, I could not imagine that out of the blue, two men would come without the direction of the 1st plaintiff at all. In fact, around this period of time, the 1st plaintiff reported to the very police stations in which he stationed (that was September 1996), and alleged that the defendant had stolen properties from the safety deposit box. The allegation was that the safety deposit box belonged to the deceased mother. In fact, the documentary evidence shows that the two safety deposit boxes were opened in the sole name of the defendant. The deceased was merely given the right to use it. The defendant said there were only a few things which at one time belonged to the deceased and they were one small piece of jade, one small piece of gold and the coffin nails of the defendant's father. According to the defendant's evidence, they had been given to the defendant. They are only of sentimental value. I find that there is no basis therefore upon which the plaintiffs can say that they belonged to the estate.

30. It was put to the defendant in cross-examination that there were also gifts to the 1st plaintiff's family from the 1st plaintiff's wedding, and it was denied by the defendant. There was no evidence whatsoever that they were in these two safety deposit boxes. I find that against the 1st plaintiff's as well.

31. That being the case, it does not require me to find whether the Tak Po flat should be brought into the estate because the counterclaim of the defendant is only that in case the court finds that the money in the joint account belonged to the estate, then the court should, by the hotch pot principle, also take the Tak Po flat into account. I find that there was nothing wrong and nothing unreasonable for the mother just to leave basically the Tak Po flat to her son, given her son has such a history of chaotic life. It was only through the unfortunate investment of the 1st plaintiff that he has lost the Tak Po flat after sale at the peak of the property market.

32. The last thing left to be done is the assessment of all these harassment and private nuisance, what they would amount to in terms of damages. Mrs Remedios for the defendant cited the Tony Kan's case [1987] 1 HKC 487. However, this is a case of a different nature. It is a libel case and the publication attacked severely the integrity of the plaintiff who was a solicitor and he was in a position of trust and that, as the court found, damaged his professional reputation. It is true that all these posters, pressures, including the admitted sign hung up by the 2nd plaintiff also cast a lot of attack on the professional integrity of the defendant who was working in the school as a master of discipline and a teacher. By comparing the two cases, I consider a sum of $30,000 is sufficient in the circumstances of the case as a kind of damages that should be awarded to the defendant out of the nuisance and harassment caused by the 1st plaintiff. I find that an injunction is also necessary in the circumstances of this case, and I am sure the 1st plaintiff would be advised not to continue those communications again. They are unwelcomed by the defendant and the defendant has stated clearly that she is represented by solicitors and any communication with her from now on should go through her solicitors.

33. It is also my finding that all these contacts, harassments and pressure put on the defendant were instigated by the 1st plaintiff and I therefore award the damages against the 1st plaintiff only as claimed by the defendant.

34. The order I make is this :

(1) The action of the plaintiffs is dismissed.

(2) Judgment for the defendant in the counterclaim in terms of paragraphs 1 , 2 and 3 of the injunctions sought by the defendant. I think in terms of paragraph 3, there should be an injunction restraining the 1st plaintiff to visit the defendant at her school. So, under paragraph 3, I add "from entering or remaining in the building where the defendant and her family reside and where the defendant is working at 204-208 Hiu Kwong Road, Kwai Chung". Damages, in terms of paragraph 4, for nuisance and/or harassment assessed at $30,000. I do not propose to award any interest from the date of the writ. I do not award any exemplary damages for nuisance and/or harassment.

(3) The costs of the action and counterclaim to the defendant, to be taxed if not agreed. The plaintiffs' own costs to be taxed according to the Legal Aid Regulations.

35. Lastly, I just want to add this. It is always very nasty for siblings to sue one another. If parties resorted to the due process of the law and if any party is not satisfied with the judgment, the proper course is to take it to appeal. I hope there will not be any further harassment and the matter should be put to a rest. I sincerely hope that parties would not have to appear before me for breach of the injunction orders.

HCA No. 2607/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2607 OF 1997

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REASONS FOR JUDGMENT

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1. This is the Plaintiffs' application for an injunction restraining the Defendant from selling or otherwise disposing of her property located at Flat A, 17th Floor, Block 1, Julimount Garden, Nos. 8-12 Fu Kin Street, Shatin, New Territories, Hong Kong ("the Property").

Background

2. The First Plaintiff and the Defendant are brother and sister. The Second Plaintiff is the First Plaintiff's son. Madam Tam Ling ("the Deceased") was the mother of the First Plaintiff and the Defendant. By her last will dated 17th December 1986, the Deceased:

(a) appointed the First Plaintiff and the Defendant as her estate's executors and trustees; and

(b) devised and bequeathed all her real and personal estate to the Defendant and the Plaintiffs in equal shares.

3. In the main action, the Plaintiffs claim against the Defendant:

(1) shares in moneys withdrawn by the Defendant from a bank account ("the Joint Account") held in the joint name of the Deceased and the Defendant;

(2) shares in valuables allegedly placed by the Deceased in a safe deposit box opened in the joint name of the Deceased and the Defendant.

4. The Defendant disputes the Plaintiffs' claim and contends that the moneys transferred into the Joint Account (and whatever balance left behind) was intended to be a gift from the Deceased to the Defendant. Further, no admission is made to the Plaintiffs' claim as to valuables (if any) placed in the safe deposit box.

The Application

5. What precipitated the present application can be gleaned from the contents of an affirmation by the First Plaintiff filed on 14th April 1999 ("the Affirmation"). The relevant parts of the Affirmation are:-

"4. I am a serving Police Officer. On 24th March 1999 I was on duty at the North New Territories Police Headquarters. I forwarded my mobile phone to my office telephone. At about 4 pm, I received a phone call from the Defendant's husband. I could recognize the voice of the caller was the Defendant's husband Mr. Wong Tai. He said that he wanted to discuss with me about my claim against my sister in respect of the estate of my deceased mother.

5. In the course of the conversation, Mr. Wong threatened that as I was not qualified for having legal aid (he thought that I am not qualified for legal aid) he would lodge a complaint to the Legal Aid Department and I would be sentenced to imprisonment; he further threatened that even if I succeed in the litigation, my sister would dispose of the assets under her name and I would not be getting a single cent. I responded by saying that he is very dirty.

6. I am concerned that unless restrained by an injunction order my elder sister would take steps to dissipate her assets or would transfer her assets in order to defeat any judgment or order in favour of my son and me."

6. According to Mr. Hung for the Plaintiff, those instructing him had written to solicitors for the Defendant soliciting an undertaking not to dispose of the Property. It was because no undertaking was offered that the Plaintiffs came to court for an injunction order.

The Opposition

7. Mr. Yuen for the Defendant pointed out that this action has nothing whatsoever to do with the Property which the Plaintiffs now seek to restrain the Defendant from disposing of. The Property at all material times has been registered under the Defendant's name and has never been (or has never been suggested) to fall within the Deceased's estate. Hence, whilst not expressed in so many words, the Plaintiffs are in substance seeking a Mareva injunction restraining the Defendant from selling or otherwise disposing of the Property so as to achieve pre-judgment security over the Defendant's assets.

8. I was reminded by counsel that before a Mareva injunction is to be granted, there must be solid evidence of risk of dissipation of assets and that the burden of proof rests with the applicant. See: Third Chandris Shipping Corp. v. Unimarine S.A. [1979] 1 Q.B. 645, per Lord Denning M.R. at p.669A; Ninemia Martime Corporation v. Trave GmbH [1983] 1 WLR 1412 per Kerr L.J. at p.1422H; Ha Sheung Ping v. Lo Siu Yin [1996] 3 HKC 144 per Le Pichon J. at p.153F-I; and 1999 Supreme Court Practice, Vol. I, para.29/L/46 (at pp. 583-584). Bare assertion by a plaintiff is never enough. See: Ninemia Martime Corporation v. Trave GmbH [1983] 1 WLR 1412 per Kerr L.J. at p.1419H and Steven Gee, Mareva Injunctions & Anton Piller Relief, 4th edn., pp. 195-7 (especially at p.197 and footnote 107 thereon)

9. In this application, the only evidence adduced by the Plaintiffs is a bare allegation of an oral threat by the Defendant's husband that the Defendant would dispose of her assets. There is a glaring and total lack of independent evidence which can establish the requisite risk of dissipation.

10. The Defendant's husband denies having made such a threat. He stated on oath that he did not even know the First Plaintiff's mobile phone number or which police station (and thus the telephone number) where he can be reached. In other words, not only the husband did not make the threat, he did not even had the means to do so. More importantly, there is no suggestion nor the slightest evidence that the Defendant procured the alleged threat by her husband, or even knew about it. Given this lacuna in the evidence, the threat allegedly made by the Defendant's husband (if made and which is denied) cannot be used against the Defendant. On the contrary, the Defendant has confirmed on oath that she has not instructed or procured her husband to make the alleged threat.

11. Needless to say, there is no suggestion or any evidence that the Defendant had put up the Property for sale, or has entered into any agreement (whether provisional or formal) for the sale of the Property. There is simply no evidence or any positive conduct on the part of the Defendant that she is in the course of disposing of the Property. In any event, the threat alleged by the Plaintiffs is inherently improbable. If the Defendant really intends to dispose of her assets so as to deprive the Plaintiffs of the fruit of this action (which is denied), why would the Defendant forewarn the Plaintiffs? Not only was there no need for the Defendant to do so, there would not be the slightest motive for her to make such a warning. Indeed, that would be the last thing the Defendant would do if she really has (which is denied) an intention to dispose of her assets.

12. The Property is the residence of the Defendant and her family. The Defendant has confirmed that she has no intention to sell or otherwise dispose of the Property.

13. For good measure, the Defendant mounted some kind of counter-attack. Mr. Yuen said that a mere offer to give undertaking as to damages is of no use, unless the Plaintiffs would be in a position to honour their undertaking. The burden rests with the Plaintiffs to adduce evidence to show that they will be good for their undertaking. See: Brigid Foley Ltd. v. Ellott [1982] R.P.C. 433, per Sir Robert Megarry V.C. at pp.435-436 and Intercontex v. Schmidt [1988] FSR 575, per Gibson J. at pp.579-580. If the Court considers the Plaintiffs may not be able to honour their undertaking as to damages, this Court can and should order the Plaintiffs to fortify their undertaking by either making payment into Court or by providing a bank guarantee. See: Third Chandris Shipping Corp. v. Unimarine S.A. [1979] 1 Q.B. 645, per Lord Denning M.R. at p. 669D-E and The Mito [1987] 2 Lloyd's L. Rep. 197, per Hirst J. at p.198

14. Despite the burden is on the Plaintiffs to show that they will be good for their undertaking as to damages, no evidence has been adduced as to their financial situation. Not to mention that no evidence whatsoever has been adduced to show that the Plaintiffs or either of them would be in a position to honour their undertakings as to damages. All that we know about the First Plaintiff is that he is a police officer. The amount of earning the First Plaintiff can make is thus understandably limited. On the other hand, we know nothing about the Second Plaintiff. The Second Defendant has not put in any affirmation, nor does the First Plaintiff's affirmation deal with the Second Defendant's position. In these circumstances, it would be wholly unfair and unjust to grant the injunction sought by the Plaintiffs.

RISKS OF DISSIPATION

15. Let me point out at once that, with respect, Mr. Yuen's arguments about bare allegations by the First Plaintiff are misleading and untenable. Of course bare assertion or bare allegation is not good enough. If a plaintiff comes to court saying "I fear that the defendant will dissipate its assets", it would attract hardly the slightest attention from the court. Here the First Plaintiff has stated on oath that the Defendant's husband indicated by word of mouth intention to deprive the Plaintiffs the fruits of judgment if the Plaintiff do succeed. There is clearly evidence tending to show risks of dissipation of assets. If there is independence evidence in support, that is all the better but independence evidence is not an absolute necessity. How many cases have been decided on oral evidence without a tint of extrinsic documentary support? If what First Plaintiff has stated in his affirmation as quoted above is believed, a court may well accept that there is solid evidence of risks of dissipation. And there is more.

16. On the face of the Defence filed, I was under the impression that the monies in the Joint Account were still in that account. However, when I enquired, it transpired that the roughly $1.3 to $1.4 million had been withdrawn by the Defendant from the Joint Account. Now, since the Joint Account is in the name of the Deceased and the Defendant, prima facie at least part of the monies in that account would form part of the estate of the Deceased. Indeed there is evidence that the Defendant had agreed in writing to share the balance in the Joint Account with the Plaintiff. By withdrawing monies from the Joint Account, and no justification or explanation for doing so has been given, the Court may very well conclude that there had been efforts to dissipate assets belonging to the estate.

17. Mr. Yuen contended that the allegations by the First Plaintiff of what the Defendant's husband had said is incredible, irrelevant and contradicted by affidavit evidence filed on behalf of the Defendant. I shall deal with this evidential problem below. Even if I disregard the evidence alleging what the Defendant's husband said, for what happened to the monies that were in the Joint Account, I would conclude that there are risks of dissipation.

18. I was not impressed by the fact that no attempt had been made by the Defendant to dispose of the Property after the alleged threat to deny the Plaintiffs the fruit of judgment or despite this application being made on notice. The threatened dissipation is executory. It is given to be understood as something that will happen if and when the Plaintiffs succeed in this action. Plainly, it will be too late to wait until the Defendant carries into effect the alleged threat indicated by her husband. In any event the threat would have served its purpose if the Plaintiffs were discouraged from proceeding with this action.

Balance of Justice

19. I fully accepted that there is conflict of evidence regarding the alleged threat by the Defendant's husband. Like Mr. Yuen said, at this stage, the court cannot on the basis of paper evidence determine whether the threat did occur or whether the Defendant has any part in the making of the threat. This being so, I was attracted by the approach canvassed by Mr. Hung.

20. Mr. Hung suggested that in a situation like this, I should derive assistance from the following dicta:-

"The fundamental principal underlying this jurisdiction is that, within the limits of its powers, no court should permit a defendant to take action designed to ensure that subsequent orders of the court are rendered less effective than would otherwise be the case. On the other hand, it is not its purpose to prevent a defendant carrying on business in the ordinary way or, if an individual, living his life normally pending the determination of the dispute, nor to impede him in any way in defending himself against the claim. Nor is it its purpose to place the plaintiff in the position of a secured creditor. In a word, whilst one of the hazards facing a plaintiff in litigation is that, come the day of judgment, it may not be possible for him to obtain satisfaction of that judgment fully or at all, the court should not permit the defendant artificially to create such a situation." Derby & Co. Ltd. v. Weldone (Nos. 3 & 4) [1990] Ch. 65 per Lord Donaldson MR at 76. (Emphasis added)

"But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as "guidelines," i.e. useful generalisation about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the "wrong" decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or would fail if there was a trail) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been "wrong" in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle." Films Rover Ltd. v. Cannon Film Sales Ltd. [1987] 1 W.L.R. 670 per Hoffman J. (as he then was) at 680. (Emphasis added)

Also, S.21L of the High Court Ordinance, Chapter 4 provides that:-

"The court of First Instance may by order (whether interlocutory or final) grant an injunction ..... in all cases in which it appears to the Court of First Instance to be just or convenient to do so".."

21. In this case, the Defendant has gone on oath to say she has no intention to sell the Property which is her residence, I really cannot see how an undertaking not to dispose of the Property or an injunction order to similar effect can cause any prejudice or inconvenience to her. I was told by Mr. Yuen that the Defendant refused to give an undertaking and opposed the application for injunction as a matter of principle. Well, for that matter, the test is balance of convenience. It is sad that the Defendant is fighting for fighting's sake only without regard to the consequences of costs and judicial resources which may be better utilized.

22. Following Lord Hoffman, I thought an interlocutory injunction would be justified.

Fortification of Undertaking

23. It was argued on behalf of the Defendant that either injunction should be refused or that the Plaintiffs be required to fortify their undertaking by way of monetary security as condition for grant of injunction. I accepted for argument's sake that the Plaintiffs might not have sufficient financial resources to honour their undertaking. However, two factors weighed heavily in my mind.

24. The first factor is that the Plaintiffs appeared to me to have a good arguable case in the action. The parties had previously reached a written agreement in the following terms:-

"AN AGREEMENT TO SHARE THE ESTATE OF THE LATE MOTHER (YAU TAM LING)

Beneficiaries: Yau Kwong Ha, Yau Kwong Chiu, Yau Shek Man (respectively son/daughter/grandson)

After the discussion, we hereby agree that the estate of late mother to be divided in the following manners. We have invited a solicitor Yap Chap Yin to witness the process, in order to avoid dispute.

Total value of the estate: HK$812,006.93 which does not include legal fee payable and miscellaneous expenses, the aforesaid amount would be divided into 3 equal parts. For details of the account, see breakdown of the accounts.

(sd.) Yau Kwong Ha

Beneficiary (signature)

(sd.) Yau Kwong Chiu

Witness by: (illegible) (illegible)

2-6-1996"

25. It is the Defendant's case that the Plaintiffs renegaded on the agreement. It is not suggested that the agreement was entered into on without prejudice basis. Thus it is likely that the Plaintiffs would eventually establish an interest or shares in monies that were in the Joint Account which is now basically empty.

26. The other factor is that the chances of calling upon the Plaintiffs to honour their undertaking are quite remote. As the Defendant stated on oath, she has no intention to sell the Property. An injunction order in terms sought preventing her from selling the Property is in the circumstances very unlikely to cause loss to the Defendant or any other party. Even if it may become necessary for the Defendant or a mortgagee to sell the Property, the time frame for conveyancing would permit the Defendant or the mortgage enough time to come before the court for variation or discharge of the order on sufficient ground.

27. In any event, as the English Court of Appeal held in Allen v. Jumbo Ltd [1980] 1 W.L.R. p.1252, a poor plaintiff should not be denied a Mareva injunction just because he is poor. The court should look at the matter at hand broadly and balance the convenience or inconvenience. The present case, in view of all relevant factors and circumstances, is , like Allen v. Jumbo Ltd, one where injunction should be granted.

Order

28. In the premises, I granted an order restraining the Defendant from disposing of the Property, the injunction to be discharged without further order upon the Defendant providing suitable security to the value of $500,000. Costs of the application be costs in the cause.

Representation:

Mr. Andy Hung instructed by M/s Lo, Chan & Leung for the Plaintiff

Mr. Rimsky Yuen instructed by M/s Cheng, Yeung & Co. for the Defendant