LAM CHUEN LUNG v. TSE HAU WOON
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HCA 1443/2011
[2022] HKCFI 828
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1443 OF 2011
________________________
BETWEEN
| LAM CHUEN LUNG | Plaintiff | |
| and | ||
| TSE HAU WOON | Defendant |
________________________
Before: Deputy High Court Judge Winnie Tsui in Court
Dates of Hearing: 1 to 5, 8 March and 15 June 2021
Date of Judgment: 25 March 2022
________________________
J U D G M E N T
________________________
INTRODUCTION
1. This is the re-trial of the plaintiff’s claim in respect of the beneficial ownership of a residential property against the defendant, his mother.
2. The property is at Flat F on 17/F of Block 4, Sceneway Garden, No 8 Sceneway Road, Lam Tin, Kowloon, Hong Kong (“the Property”). It was assigned to the plaintiff and the mother as joint tenants in April 1998. The purchase price was $4,200,000.
3. The plaintiff claims that he is the sole beneficial owner of the Property and the mother holds her legal title on trust for him. His case is based on common intention constructive trust and purchase money resulting trust.
4. In gist, he says that when the Property was acquired, the common intention was, and has been, that the Property wholly belongs to him. The mother’s name was added to the legal title solely so that he could obtain a more favourable mortgage rate. He paid the initial deposit and the estate agency fee. His father, Mr Lam Sing Yin, paid the further deposit, the stamp duty, the legal fees and part of the purchase price, in the total sum of just over $1,200,000. But that was by way of a loan to the plaintiff. The loan was fully repaid. In 1998, the plaintiff repaid on eight occasions in the total sum of $500,000. In October 2008, he paid the father the sums of $700,000 and $800,000. The former was the balance of the loan amount and the latter interest. The plaintiff made the mortgage repayments every month, without any contribution from the mother. In May 2008, he redeemed the mortgage. On this factual premise, the plaintiff contends that the mother holds her legal title for him.
5. The mother disputes the plaintiff’s narrative. She says that she and the plaintiff have equal beneficial interest in the Property. The two of them had agreed to purchase it jointly and that the understanding was for the mother to live there during her lifetime. They were to contribute to the purchase price together. The payments made by the father were contributions made on the mother’s behalf. It was not a loan. Each month, the mother also contributed to the mortgage repayments. But since about October 2007, the plaintiff refused to accept her contribution. In May 2008, the plaintiff redeemed the mortgage without telling her. It is now not quite possible to ascertain the precise extent of each party’s contributions over the years. The mother is however content with equal beneficial ownership between her and the plaintiff. She makes no counterclaim in these proceedings.
6. Throughout the years and up till now, the mother has been occupying the Property. There was a dispute over the change of the lock of the iron gate in April 2011. By letter from his former solicitors dated 2 August 2011, the plaintiff demanded the keys of the Property from the mother. (The mother places much reliance on the letter. I shall refer to it below as “the August 2011 letter”.) The demand was not met, according to the plaintiff. He commenced the present action shortly afterwards in the same month.
7. This case is primarily a factual dispute. The material disputed events span from shortly before 15 January 1998 when the plaintiff signed the provisional sale and purchase agreement to about October 2008 when he allegedly repaid the balance of the father’s loan.
8. There is conflicting evidence on who paid the government rates and rent, management fees and utility bills from about 2010 onwards. However, that will not have any significant bearing on the primary factual disputes as to the common intention behind the acquisition of the Property in the first place. I will not therefore deal with such evidence in detail.
9. The plaintiff himself testified and called two witnesses at trial, namely Ms Wendy Chan, his wife, and Mr Lam Kwok Wai, who was his private bodyguard at the time. The two witnesses were only very briefly cross-examined.
10. On the defendant’s side, the mother and the father gave evidence at trial.
11. In this judgment, I shall refer to the defendant generally as “the mother”.
12. At the trial, the plaintiff was represented by Mr CY Li, SC and Ms Angela Gwilt. Mr Mak Kin Ming and Mr Gavin Wan appeared for the mother.
RELATED LEGAL PROCEEDINGS
13. As part of the introduction, I should also say a few words about the long and unhappy history among the plaintiff, the father and the mother in the past 15 years or so. It is not in dispute that the relationship between the plaintiff, on the one hand, and the parents, on the other, turned sour in about October 2007. As to why that happened, I will have come back to it later. Since then they were involved in a number of litigations.
14. Since the breakdown in the relationship, there were heated arguments and confrontations between the plaintiff and the father on a number of occasions. One such occasion took place in December 2009. As a result of that encounter, the father was charged with the offence of criminal intimidation. The case was tried at the Kwun Tong magistrates’ court under KTCC 8143/2009. The plaintiff was one of the prosecution witnesses. The father was convicted in June 2010. He appealed and was successful. The conviction was quashed in February 2011. I shall refer to the father’s criminal case as “the criminal proceedings” below.
15. After that, the relationship between the plaintiff and the parents took a turn for the worse. They were then embroiled in three sets of civil litigation, including the present action.
16. From March to June 2011, the father posted up and distributed a notice about the plaintiff. Its content was broadly that the plaintiff was a dishonest person and cheated money out of people.
17. In August 2011, the plaintiff commenced the present action against the mother claiming full beneficial ownership of the Property.
18. In October of the same year, he commenced an action under HCA 1707/2011 against the father alleging trespass and nuisance (“the trespass action”).
19. In January 2012, the plaintiff brought a defamation claim against the father in relation to the above notice under HCA 139/2012 (“the defamation action”). The main issue there was whether the father had a defence of justification. The facts concerned the interests of the plaintiff and the parents in three shops in Sceneway Garden Plaza, Lam Tin, Kowloon. The shops were acquired in the name of the mother in 2004 and were later transferred to two companies owned by the plaintiff in 2006 and 2007.
20. The trespass action and the defamation action were ordered to be tried at the same time. The former was settled shortly before the trial which took place in January 2014. The plaintiff and the father were however not able to settle the defamation action. It was tried before Deputy High Court Judge Lok (as he then was). The father lost. The history recited in this section is largely extracted from the judgment dated 28 April 2014: see paras 4 to 18.
21. I refer to the defamation action for two reasons. First, while that case was about the three shops, the evidence also touched on the payment of $1,500,000 made by the plaintiff to the father in 2008. The plaintiff says that it was repayment of the father’s loan advanced to him in relation to the Property, together with interest. The mother and the father say it was repayment of a different loan. Hence that part of the evidence adduced in the defamation action is relevant here. Second, Mr Li relied on some parts of the judgment, including the judge’s finding on the 2008 payment, to advance the plaintiff’s case here.
PROCEDURAL HISTORY
22. The original trial of the present action was heard by Chung J in November 2014. Judgment was handed down in the following month. The judge found in favour of the mother. The plaintiff appealed.
23. While the appeal was pending, on 3 July 2015, the mother registered a notice of severance in respect of the Property in the Land Registry.
24. In July 2016, the Court of Appeal allowed the appeal and directed a re-trial of the action.
25. Since then, the parties took a number of further steps in these proceedings. Of note are the following:
(1) In October 2017, the plaintiff filed a supplemental witness statement and disclosed further documents. He put in further evidence to supplement his case about, first, his mortgage application and, second, his partial repayment of the loan to his father in 1998.
(2) In June 2018, the mother amended her pleading to, among other things, introduce for the first time a defence of illegality. She pleaded that the plaintiff’s alleged arrangement of the mortgage was illegal in that it was calculated to deceive the bank. However, Mr Mak confirmed at the trial that this defence would no longer be pursued.
(3) Lastly, shortly before the trial, the plaintiff filed a further supplemental witness statement disclosing two new documents to (a) support his case about his mortgage application, and (b) rebut the mother’s case on the payment of a cheque of $200,000 by the father for acquiring the Property (“the $200,000 cheque”). The plaintiff explained that he only managed to locate these new documents recently. The mother then filed a supplemental witness statement of the father in reply in relation to the $200,000 cheque.
FACTUAL BACKGROUND
26. The plaintiff is a medical doctor in private practice. He graduated from the University of Hong Kong. His clinic is at a shop in Sceneway Garden Plaza, Lam Tin, Kowloon.
27. He is the eldest of the seven children of the parents.
28. It will be seen below that the plaintiff and the parents are keen purchasers of real properties in Hong Kong. Apart from the Property and the three shops in Sceneway Garden Plaza (the subject-matter of the defamation action), set out below are some of the other properties purchased:
(1) The parents purchased two industrial units in Hung To Road, Kowloon – the first one in 1978 and the second one in 1991.
(2) In around 1997 and 1998, the plaintiff and his wife lived in a flat in Laguna City, Kowloon, which the plaintiff purchased.
(3) At that time, the parents and some of the plaintiff’s siblings lived in two public housing units in Tak Shing House, Tak Shing Estate, Kowloon (“the Tak Shing units”). The parents later purchased the units in May 1999.
(4) In May 1997, the plaintiff, through his company, acquired Flat D on 28/F of Block 2, Sceneway Garden (“the 28D Flat”).
(5) There was also the purchase by the plaintiff’s company in 1998 of Shop 67 of the Commercial Development of Sceneway Garden (“Shop 67”). This is the property to which the $200,000 cheque allegedly relates, on the plaintiff’s case.
(6) In June 1999, the plaintiff completed the purchase of a house in Clear Water Bay, New Territories (“the Clear Water Bay house”).
(7) In 2009, the parents purchased another flat in Sceneway Garden.
THE PLAINTIFF’S CASE
29. The plaintiff’s case is as follows.
30. The plaintiff, through his company, acquired the 28D Flat in 1997. Completion took place in May. He had intended that the parents would live there so as to ease the crowded living conditions in the Tak Shing units. However, the mother did not like the 28D Flat upon seeing it, because it was facing north and the view from the living room was bad as it was facing the long public escalators from Sceneway Garden leading to the Lam Tin MTR station. She declined the plaintiff’s offer.
31. The reply was unexpected. The plaintiff then said to the mother that he would purchase a “better” flat for her to live in in the future. After that, the plaintiff told the estate agents, who worked in offices near his clinic, that he preferred flats not facing north and preferably with a garden view from the living room.
32. On 15 January 1998, in the late afternoon, an estate agent informed the plaintiff that there was a flat in Sceneway Garden with a garden view (that is, the Property). The plaintiff briefly inspected it and found it satisfactory. After he finished work at about 10 pm that day, he signed the provisional sale and purchase agreement with himself as the purchaser at the estate agent’s office, and paid the initial deposit of $180,000 by cheque.
33. The plaintiff purchased the Property in his personal name, instead of using a company, because he had previously learnt that Bank of East Asia (“BEA”) had an offer for HKU graduates and that the bank would offer special mortgage interest rate for those graduates who made the applications successfully and who at the same time applied for credit cards from the bank.
34. In his further supplemental witness statement, he said that he first learnt of the BEA offer by reading the Convocation Newsletter of the University of Hong Kong (Spring 1998 issue).
35. According to an extract of the newsletter which he disclosed, BEA invited the graduates to apply for the “HKU Card”. As one of the benefits, the cardholder could enjoy favourable mortgage terms. It was expressly stated that this benefit applied only to mortgagors in personal name and the property must be Hong Kong residential property for self-use:
“東亞銀行提供優惠樓宇按揭計劃
…
• 以上貸款資料只適用於私人名義申請人士及所按物業必須為自住之香港住宅物業。”
36. Immediately following the signing of the provisional agreement, the plaintiff went about arranging mortgage. This is a material part of his case, which seeks to explain why the mother became a joint tenant of the Property, notwithstanding that she was not intended to have any beneficial interest in it.
37. On 16 January 1998, the plaintiff called a Mr Pang, who was the manager of the Laguna City branch of BEA and told him that he wished to apply for the special HKU mortgage. According to his first witness statement, the following exchange took place:
“… [Mr Pang] asked me various questions including the details of the Property and my particulars. However, when he learnt that the Property was not purchased for self-use as I was living in another flat in Laguna City, he informed me that the BEA may refuse my application for mortgage. I just asked if anything could be done to solve the problem because the Provisional Agreement had already been signed and I really needed that mortgage. I also explained to Mr. Pang that the Property was purchased to allow the Defendant to live in thereafter. Later, we came up with a solution that I could add the Defendant’s name as one of the registered owners of the Property and it would be very likely that the BEA would approve my mortgage application then.” (underline added)
38. In his supplemental witness statement filed in October 2017, the plaintiff said the following:
“I crave leave to refer to [the above passage] whereby I stated that Mr. Pang the BEA Laguna City sub-branch’s manager, suggested that I could add the Defendant’s name as one of the registered owners of the Property in order to fulfil the self-use requirement of BEA.”
39. In that statement, he added that he had tried to contact Mr Pang but because of the passage of time, Mr Pang could no longer recall the details of the conversation which happened in 1998.
40. The plaintiff then contacted the mother and told her that he had purchased the Property and would like to add her as one of the registered owners. He did not tell her the reason. During that conversation, the mother did not object to the proposal.
41. In the evidence are a fax from the plaintiff apparently to the estate agent dated 16 January 1998 stating that he would add the mother’s name to the title and attaching a copy of the provisional agreement with her name added.
42. The plaintiff also applied for a credit card from BEA at that time. He disclosed a subsequent letter from the bank showing that his credit card account was opened on 26 January 1998.
43. At that time, the plaintiff had already put in place overdraft facilities with four banks such that he was in a position to finance the purchase all by himself by drawing on those facilities and the contemplated mortgage. In cross-examination, the plaintiff explained that as a medical doctor in private practice, he would have no difficulty in securing overdraft lines from banks. In fact, it was more often that the banks would approach him to offer facilities, rather than the other way round.
44. In fact, the mother asked the plaintiff how he could afford to buy the Property soon after he had purchased the 28D Flat. He told her about his overdraft facilities. Then the mother said that the father could lend him money so that the plaintiff would not need to pay so much interest.
45. On 4 February 1998, the formal sale and purchase agreement was signed. The plaintiff paid the sums of $240,000 and $102,000 for the further deposit and the stamp duty respectively. They were cheques drawn by the father. The plaintiff’s case is that those funds were borrowed from the father.
46. The plaintiff and the mother signed an application form for mortgage. The form was dated 25 February 1998. A mortgage loan of $2,940,000 was applied for. There was a box in the form where the word “Self-use” was circled and the word “Rental” was crossed out.
47. On about 7 April 1998, the plaintiff paid further sums of $840,000 and $19,905 for further down payment and legal fees. The sums were paid by cheques drawn by the father. The plaintiff says that it was a loan from the father to him. The sale was completed on 8 April 1998.
48. The plaintiff paid the estate agency commission fee of $33,600. Two receipts were issued to him dated 12 and 17 April 1998.
49. The plaintiff made the following arrangements for paying the monthly mortgage instalments. He arranged for a savings account opened with BEA in the name of the mother. The passbook for that account was kept by the plaintiff. He would receive cash from his practice at the clinic. He would ask the mother to go to the clinic to collect the cash and the passbook each month. The mother would then go to the bank and pay the cash into the account to settle the month’s mortgage instalment. After that, the mother would return the passbook to the plaintiff for safekeeping. (On some isolated occasions, the plaintiff would draw cheques, instead of paying cash.)
50. In the evidence are three passbooks. The first one is in the name of the plaintiff and it shows the first three instalments of the mortgage repayments. The second one is in the name of the mother and shows mortgage repayments from August 1998 to October 2006. The third one is also in the name of the mother which covers the period from November 2006 to April 2008. According to the passbooks, the monthly instalment was about $32,000 initially to about $22,000 later.
51. In cross-examination, he explained why the above arrangement was put in place. He said that there was no BEA branch near his clinic and it was inconvenient for him to go to make the payment himself every month. He had a busy practice. He often worked till 9 or 10 pm. On the other hand, the mother and the father often went to Kwun Tong and they could make payment at the BEA branch there.
52. In fact, he specifically arranged for the account to be opened in the mother’s name. This was so that if there were administrative matters which needed to be attended to, such as the renewal of the passbook, the mother could deal with it herself at the bank. If the account was in the plaintiff’s name, he would have to go to the bank in person. But that would not be preferable as he was very busy in his practice.
53. In the course of 1998, he repaid the father’s loan on eight occasions, and in a total sum of $500,000. This happened when the father and the mother went to his clinic and the plaintiff would pay the father cash which he had accumulated from his practice at the clinic. He cannot now recall the exact dates of the eight instances of repayment.
54. But, each time, he would make a remark in his diary, which showed the following entry in pencil:
“4座17F 50000 80000 100000 80000 50000
還爸 60000 50000 30000”
55. At the trial, I inspected the original diary. It appeared to be a work diary, which recorded the on-call visits made by the plaintiff to patients in hotels or out of clinic. The dates of visits, the names of patients and the fees charged were recorded in sequence. The entries were recorded in ink. When the fee for a visit was paid, the plaintiff would circle the sum in pencil as a record that the fee was settled. The above entry concerning the repayment appeared at the top of the page which shows the on-call entries during the period from May 1998 to January 1999.
56. The plaintiff believes that those repayments were made in 1998. This is because he bought the Clear Water Bay house in 1999. It was a big investment for him which required a substantial amount of cash. He stopped repaying the father at around that time.
57. After the decoration works for the Clear Water Bay house were completed at the beginning of 2000, he told the mother that he was in a position to start repaying the balance of the father’s loan, which was then $700,000. But the mother later told him that it was not necessary as the father said he wanted to give him the sum of $700,000 as decoration expenses for the house.
58. The plaintiff and the parents were then on good terms. The plaintiff was grateful for the father’s generosity.
59. It is not in dispute that the relationship between the plaintiff and the parents turned sour in about October 2007. The plaintiff says that it was because of a dispute over the aborted business venture of one of his brothers, as recorded in para 40 of the judgment in the defamation action.
60. On 1 October 2008, the father went to his clinic demanding him to repay the sum of $700,000 which he had borrowed to decorate the Clear Water Bay house. The father demanded the plaintiff to pay him $800,000 in interest. He behaved in a threatening manner. The plaintiff called the police. He was very upset because all along he had wanted to repay the loan but the father refused to accept it. The father apparently changed his mind and wanted his money back. The plaintiff did not mind that but was surprised by the father’s demand for interest. However, he did not want to escalate the matter, so he gave him two cheques in the sum of $700,000 and $800,000. The father then left the clinic.
61. With those payments, the loan which the father had made to the plaintiff in 1998 in respect of the purchase of the Property was fully repaid.
62. In May 2008, the plaintiff redeemed the mortgage by the payment of a sum of $1,238,054.56 to the bank. He told the mother about it.
63. Throughout the years, the mother had been paying the expenses of the Property, including government rates and rent, management fees and utility bills. The plaintiff says that it had been agreed that she would pay for such expenses when she occupied the Property. However, after October 2008, the mother failed to pay some of the expenses.
64. Then in late February 2011, that is shortly after the father’s appeal was allowed in the criminal proceedings, the mother went to the plaintiff’s clinic one day to demand him to transfer the Property to her. The plaintiff was very angry and said that the payments were all made by him and he was the true owner of the Property. He asked her whether she had contributed any money. The mother made no reply. The plaintiff kept on asking. Then the mother said, “Yes, so what?” At the trial, Lam Kwok Wai, the plaintiff’s bodyguard, testified to this incident.
65. Then, in April 2011, the plaintiff found out that the lock to the iron gate of the Property was changed and he was not given the new key and was denied access to the Property.
66. On 2 August 2011, the plaintiff, through his former solicitors, wrote to the mother, demanding the new key and access to the Property. This is the August 2011 letter referred to earlier. The mother relies on it in support of her case. The relevant parts read:
“We act for Mr. Lam Chuen Lung, one of the registered owners of the property known as Flat F, 17th Floor, Block 4, Sceneway Garden, No.8 Sceneway Road, Kowloon (“the Property”). You are also one of the registered owners of the Property. As owners of the Property, both our client and you should have the rights to enter into the Property without any restriction.” (underline added)
67. The demand was not met. The plaintiff then commenced the present action.
68. On these factual premises, the plaintiff claims that he is the sole beneficial owner of the Property. If, however, the court finds that he and the mother are co-owners of the Property, there should be a determination of their shares and an order for sale of the Property under the Partition Ordinance.
THE MOTHER’S CASE
69. As a broad outline, the mother’s case is that it was the common intention and understanding between her and the plaintiff that they would beneficially own the Property equally. The father’s initial payment of the deposit and expenses in 1998 were contributions made on her behalf towards the purchase. In fact, the contributions in total amounted to $1,400,000, not $1,200,000 as alleged by the plaintiff. Each month she contributed to the mortgage instalments. The plaintiff did not repay $500,000 to the father in 1998. The payment of $1,500,000 to the father in October 2008 was repayment of a loan unrelated to the Property.
70. In respect of the 28D Flat, the mother disputes the plaintiff’s account. Her case is that the plaintiff had brought her to the flat and asked her to clean it. She and the father then went and cleaned it.
71. The background leading to the purchase of the Property is pleaded as follows.
72. The mother, the father, the fourth son, the fifth son, the sixth daughter, the seventh son and the seventh son’s girlfriend lived in the two Tak Shing units. The seventh son’s girlfriend was pregnant and she and the seventh son needed to have the exclusive use of one unit. The other unit became crowded with five adults living there. The mother therefore wanted to purchase a flat to improve the living condition.
73. In the re-re-amended defence, the mother set out the reasons for choosing a flat in Sceneway Garden:
“Although the Plaintiff was married and living apart from the Defendant, the relationship between the Plaintiff, the Defendant and the other family members was close. The Defendant prepared and brought lunch to the Plaintiff at his clinic everyday. The Plaintiff and his wife usually had dinner at the Tak Shing House Home. Sometimes the Plaintiff had to work late and the Defendant would bring dinner to him at the clinic.
…
The Defendant wanted to purchase a flat at Sceneway Garden because it is close to both the Plaintiff’s clinic and the Tak Shing House Home. The Defendant would move over with the 4th son and the 6th daughter. It would be convenient for the Defendant to continue bringing lunch to the Plaintiff’s clinic. It would also be convenient for her to continue taking care of the other family member who would stay at the Tak Shing House Home. As Sceneway Garden is also close to Laguna City, the Defendant could also take care of the Plaintiff’s pregnant wife and later the newborn.” (underline added)
74. She also said this in her witness statement:
“2. 在1998年時，… 林傳龍在匯景商場3樓開診所。他和他的妻子住在麗港城 …
3. 一直以來，我們一家人的關係都好好。我每天都會帶飯到診所給林傳龍。我每天亦會準備晚飯，林傳龍和他的妻子會來一起吃。有時林傳龍在診所工作晚了，我便會帶飯到他的診所給他。
4. 在那時，七子的女朋友懷孕了，所以七子和他的女朋友兩人要自己住932室，四子需要搬到931室和我們一起住。由於5個大人住一個單位太擠迫了，我和丈夫便打算購買另一個單位，改善生活環境。
5. 我想在匯景花園購買一個單位，林傳龍的診所就在匯景商場，德盛樓又近匯景花園，麗港城亦近匯景花園。我打算買匯景的單位和四子、六女一起搬去住，這樣我送飯去診所和照顧其他家庭成員會好方便。而且這時林傳龍的妻子已經懷孕，我去麗港城照顧她及日後的嬰兒會很方便。” (underline added)
75. However, in her supplemental witness statement, she made the following correction:
“當林傳龍和妻子在麗港城 … 居住時，我不需要為林傳龍準備午飯和晚飯。他們亦不來吃飯。只是過時過節才一齊出外吃。” (underline added)
76. In other words, before the purchase of the Property in 1998, the plaintiff and his wife did not go to the Tak Shing units for meals. Nor did the mother prepare lunch or dinner to bring to the plaintiff’s clinic. In fact, the mother said in the same statement that it was only some time after the plaintiff moved to live in the Clear Water Bay house that they would go to Tak Shing units for meals.
77. Returning to her pleaded case, the mother instructed some estate agents to look for a suitable flat in Sceneway Garden. She also told the plaintiff her plan. The plaintiff said that he would keep a lookout for her also.
78. Then over dinner one evening in mid-January 1998, the plaintiff told the mother and the father that he had found a suitable flat and he had already signed the provisional agreement with the vendor and paid the initial deposit that day.
79. After some discussion, it was agreed between the mother and the plaintiff that they would purchase the Property together. The father agreed to contribute towards the payment of the deposits for the purchase. The mother and the plaintiff agreed to pay the monthly mortgage instalments together. It was also agreed that the mother would use and occupy the Property during her lifetime. I shall refer to this as “the mother’s alleged agreement” below.
80. It was in these circumstances that the mother’s name was added to the provisional agreement on the following day.
81. It is not in dispute that the father drew four cheques and advanced a total of just over $1,200,000 towards the purchase. See paras 45 and 47 above.
82. What is in dispute is a cheque he drew on 2 June 1998 in the sum of $200,000 (that is, “the $200,000 cheque”).
83. The mother says that the sum was also a contribution by the father on her behalf towards the purchase of the Property. She refers to an entry relating to the $200,000 cheque in the father’s notebook. That entry appears on the same page where he jotted down his payment of the other expenses relating to the Property.
84. On the other hand, the plaintiff says that the cheque was unrelated to the Property. Instead, it was paid by the father for the purchase of Shop 67. In his latest witness statement, he produced a receipt issued by the law firm and a copy of the cheque showing that to be the case.
85. In reply, the father said in his supplemental statement that the plaintiff had requested him to issue a further cheque for $200,000 to cover the initial deposit and the estate agency commission paid for the Property. At that time, the relationship between the plaintiff and the father was good. He trusted what the plaintiff said. The plaintiff wrote the amount on the cheque and the father signed. When he signed, the payee was not yet filled in. In any event, he does not read English.
86. Over the years, the mother contributed her share of the monthly mortgage instalments. Initially, when the instalment was about $32,000, she contributed $20,000 each month and the plaintiff contributed the balance. Her monthly contribution subsequently decreased to $15,000 and eventually to $10,000 as the monthly instalment decreased over the years. The mother paid her contribution in cash to the plaintiff.
87. It is also the mother’s case that the plaintiff, the fourth son and the sixth daughter would give her money each month. And it was out of such money that she made the monthly contributions to the mortgage.
88. Since about October 2007, the plaintiff refused to accept her contribution.
89. As pleaded, since about the same time, the plaintiff became estranged from her. She does not know the reason.
90. Further, the plaintiff redeemed the mortgage in May 2008 without telling her.
91. Over the years, the mother paid all the expenses of the Property. However, after the breakdown in the relationship, the plaintiff unilaterally changed the correspondence address for receiving the rate demand notes and also arranged for the settlement of management fees by himself.
92. In April 2011, the mother changed the lock of the iron gate of the Property. It was because the old lock was out of order. She had no intention of denying access to the plaintiff. It was because the plaintiff had not gone to visit her at the Property for a long time that he did not know that a new lock was installed.
93. On 23 July 2011, the plaintiff called her to ask for the new key. She said that she would give him later, which she did. However, when the mother returned home later, she found that the plaintiff had already caused to have the iron gate locked up with a chain. On the following day, the mother took the new key to the clinic. That evening, the plaintiff and his wife went to the Property to scold her and asked her to leave the Property, saying that she had no entitlement to stay there.
94. Frustrated by the plaintiff’s action, the mother changed the locks again. Shortly after that, the plaintiff caused to lock up the iron gate with two chains. She asked him to remove the chains and then she would give him the new keys. But the plaintiff refused to remove the chains.
95. The mother points to the August 2011 letter in support of her case that both the plaintiff and she jointly own the Property beneficially.
96. In respect of the sum of about $1,200,000 advanced by the father towards the purchase, she denies that it was a loan. She also denies that the plaintiff repaid the father $500,000 in 1998.
97. In respect of the payment of the sums of $700,000 and $800,000 in October 2008, the mother’s case is that it was a repayment of a loan extended by the father to the plaintiff for the purchase and/or decoration of the Clear Water Bay house in 1999. I shall refer to this as “the alleged Clear Water Bay loan”.
98. I should point out here that the mother’s case on this alleged loan is not set out in her pleading or any of the witness statements filed on her behalf. The supporting evidence is a one-page document entitled “林傳龍和父親的部分欠款記錄”. The document was also relied on by the father in the defamation action and was referred to by the judge as the “Loan Records”.
99. The relevant part read:
“ 本金/借款 還款 1999年6月1日 清水灣屋 借款 1,500,000.00 利息(本金70萬) 800,000.00 利息(本金80萬) 1,060,000.00 2008年10月3日 清水灣屋 還款 700,000.00 2008年10月2日 利息(本金70萬) 800,000.00”
100. According to his evidence in cross-examination, the document was prepared by a student in a library when the father worked on it there.
101. On the face of the document, on 1 June 1999, the father extended a loan to the plaintiff in relation to the Clear Water Bay house in the principal sum of $1,500,000. The principal sum was divided into $700,000 and $800,000. Interest in the sums of $800,000 and $1,060,000 had accrued on these two sums respectively. Furthermore, the document records that principal in the sum of $700,000 was repaid on 3 October 2008 whereas interest in the sum of $800,000 was repaid on 2 October 2008.
102. In respect of the plaintiff’s fallback position that there should be an order for sale in the event that joint ownership is established, the mother disagrees. According to her alleged agreement, she could stay there for the rest of her life. Hence no order for sale should be made.
LEGAL PRINCIPLES
103. On common intention constructive trust, the principles are not in dispute. They are recently summarised by Deputy High Court Judge Alexander Stock, SC in Leung Hang Lin v Lam Mei Yung[2019] HKCFI 2819 at para 8.
(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him such that the beneficial ownership differs to the legal ownership.
(2) The burden may be discharged by showing that (a) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, after that) that the beneficial ownership was to be different to the legal ownership, (b) the plaintiff altered his position in detrimental reliance upon the common intention, and (c) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing from that.
(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s word and conduct.
(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference.
(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters.
104. In the present case, the Property is registered in the joint names of the plaintiff and the mother. The starting point of the analysis is therefore that prima facie the two of them enjoy joint and equal beneficial interests in it. The plaintiff, however, says that the beneficial interest solely belongs to him. The burden is therefore squarely on him to make good that case: Stack v Dowden [2007] 2 AC 432 at para 58.
THE ISSUES
105. As disclosed by the parties’ respective cases, I will need to adjudicate on the following material factual disputes:
(1) What was the reason for adding the mother’s name as the co-purchaser of the Property immediately after the plaintiff signed the provisional agreement on 15 January 1998? Was it because the plaintiff wanted to apply for the special HKU mortgage from BEA? Or was it because the parties reached the mother’s alleged agreement?
(2) When the father drew the four cheques to settle the deposits and the purchase expenses in February and April 1998 in the total sum of just over $1,200,000, what was the understanding of the parties? Was that a loan to the plaintiff? Or were the sums treated as the mother’s contributions towards the purchase of the Property?
(3) Why did the father draw the $200,000 cheque in June 1998? Was it to settle the purchase expenses of the Property? Or did it relate to the purchase of Shop 67?
(4) Who paid the monthly mortgage repayments? Only the plaintiff? Or did both the plaintiff and the mother contribute?
(5) Did the plaintiff pay $500,000 to the father in 1998 as partial repayment of the loan alleged by the plaintiff?
(6) Was the payment of the two cheques in the sums of $700,000 and $800,000 by the plaintiff to the father in October 2008 a repayment of the balance of the alleged loan? Or was it repayment of the alleged Clear Water Bay loan?
106. If the court finds in favour of the plaintiff’s factual case, does that support his case of common intention constructive trust? If so, what remedy is he entitled to? If not, does it support his case of purchase money resulting trust?
107. If the court finds in favour of the mother’s factual case, what should be their respective beneficial interests in the Property? Should there be an order for sale of the Property?
108. The plaintiff also makes a claim for mesne profits for the mother’s use and occupation of the Property as from 1 March 2012. What order should be made on this claim?
THE EVIDENCE
109. The parties have put forward conflicting versions of events.
110. The resolution of the factual disputes primarily turns on the credibility of the witnesses. My task is to evaluate the competing evidence against the backdrop of undisputed and indisputable facts. I am to weigh the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events. Generally speaking, contemporaneous documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility. The internal consistency (or inconsistency) of the witnesses’ evidence should be taken into account. The court would also be guided by its overall impression of the characters and motivations of the witnesses. The court should caution itself against the dangers of too readily drawing conclusions about the truthfulness and reliability solely or mainly from the appearance of the witnesses. See, eg, Re B (Children) [2009] 1 AC 11, para 31; Standard Chartered Bank v Li Wai Ping HCA 10587/2000 and 3575/2003, 17 February 2011, para 19; Hui Cheung Fai v Daiwa Development Limited HCA 1734/2009, 8 April 2014, paras 76 to 82.
111. On the whole, I find that the plaintiff’s version of events is more credible than the mother’s. I consider that the following matters are the material considerations in the evaluation exercise.
112. I will start the analysis by making the general observation that on the face of the parties’ cases, the plaintiff has a more onerous task to prove his case than the mother.
113. First, the onus is on him, not the mother, to make out the alleged common intention. The Property was assigned to them as joint tenants. It is for the plaintiff to explain with convincing evidence why the mother’s name was added to the legal title when the Property was meant to belong solely to him beneficially.
114. Secondly, the undisputed facts are that in 1998, the father advanced sums of at least $1,200,000 towards the purchase of the Property. The plaintiff says it was a loan. But there is no contemporaneous document in support of that allegation. It is only the words of the plaintiff.
115. Thirdly, as regards the alleged repayment of $500,000 in 1998, his case is that it was made in cash on eight occasions. There is therefore no objective documentary evidence (such as cheque stubs) to prove the payments.
116. Fourthly, he says that in early 2000 he wanted to resume repaying the balance of $700,000 to the father but the latter said he wanted to gift that sum to the plaintiff for the decoration expenses of the Clear Water Bay house. Again, it is just the words of the plaintiff. There is no objective document which supports that version of events.
117. Fifthly, he says that in October 2008, he gave the father the two cheques to settle the balance of the loan in the sum of $700,000 together with $800,000 in interest. On this occasion, there is objective evidence of payment. However, his narrative is met with the rebuttal by the mother and the father that the sum was a repayment of a different loan.
118. At first blush, there is therefore an apparent lack of contemporaneous or objective evidence in support of the plaintiff’s factual case. Mr Mak made a point of this and submitted that from the outset, there has never been any existence of even one piece of documentary evidence indicating that the beneficial interest of the Property is intended to be owned by the plaintiff alone.
119. I would say two things about this submission.
120. First, I do not think that the submission is entirely accurate.
121. In this re-trial, the plaintiff managed to retrieve two pieces of objective evidence to support his case on the special mortgage terms which he obtained from BEA. First, the HKU Convocation Letter. It set out the offer made by BEA to HKU graduates who were holders of the bank’s credit cards. Second, the BEA letter confirming that the plaintiff’s credit card account was opened in January 1998.
122. Second, it is true that generally speaking contemporaneous documents are of great importance when the court assesses the credibility of a party’s case. The lack of them may be an indicator that the case is not true. This is particularly so when contemporaneous documents are reasonably expected to be in existence, having regard to the nature of the party’s allegations. However, when one takes into account the context of the case, if it is inherently plausible and logical that there would not be any contemporaneous documents as a matter of fact given the nature of the allegations, the absence of documentary evidence may not necessarily undermine the credibility of the case.
123. In my view, having taken into account the relevant context in this case, I find that his case is, overall speaking, inherently plausible and at times supported by objective documentary evidence. His account of events is consistent throughout these proceedings. He is able to give details on many aspects of his case. All these have bolstered the credibility of his case. On the other hand, there are internal inconsistencies within the evidence of the mother and the father. There are also inexplicable features in their evidence. All these have undermined the credibility and reliability of the mother’s case.
First, the plaintiff’s case is inherently plausible and at times supported by documents
124. As pointed out above, there is a lot of explaining which the plaintiff has to do in order to make good his case. In my view, what stands out from his evidence is that he seems able to give explanations for all the material components of his case. The explanations all appear to be logical, inherently plausible and hence forceful.
125. The burden is on him to explain why he added the mother’s name to the legal title when there was no intention for her to share the beneficial interest in the Property. The reason was that he wanted to satisfy the self-use requirement imposed by BEA for the special mortgage offer available to HKU graduates who were holders of the bank’s HKU cards. The Convocation Letter is objective evidence that (1) the special offer existed at that time, and (2) the offer stipulated a self-use requirement. The BEA letter is objective evidence that he successfully applied for the BEA credit card before he applied for the mortgage.
126. His case on the self-use requirement is, in my view, quite straightforward. He was alerted to the requirement by Mr Pang. Mr Pang made the suggestion of adding the mother’s name. The plaintiff followed the suggestion. The mortgage was approved in the end. The plaintiff’s narrative is inherently plausible and logical.
127. According to the plaintiff, Mr Pang was no longer able to recall the details of this mortgage application. That seems to be me to be logical. The mortgage was approved back in 1998. The action was commenced in 2011. As a bank manager, it would indeed be unlikely for Mr Pang to be able to recall details of one single mortgage application which he had handled more than a decade ago.
128. Mr Mak raised a number of challenges about the plaintiff’s case on the self-use requirement. He submitted that there is a drastic amendment in his supplemental witness statement, which was filed after the original trial and the appeal. In the original witness statement, the plaintiff merely said that with the mother’s name added, it would be “very likely” that BEA would approve the mortgage application. However, in the supplemental statement, the plaintiff went further and said that doing so was “in order to” fulfil the requirement. Mr Mak asked why the plaintiff did not explicitly say so in his first witness statement. He submitted that the omission is incredible as the plaintiff could not have omitted such important information in the first place when the information was vital to his case.
129. I do not share Mr Mak’s observation that there was a “drastic” amendment. In my view, the theme of the plaintiff’s allegation is plainly consistent across the two witness statements.
130. Mr Mak also queried why the relationship between the plaintiff and the mother was not disclosed in the mortgage application form when there was a box which read “Relationship of Applicants” there and which was left blank. He submitted that there is no evidence how the bank could have known their relation when processing the application. Without this information, the application would completely defeat and frustrate the plaintiff’s plan. Mr Mak concluded that the plaintiff’s evidence on the self-use requirement is illogical, inconceivable and inconsistent.
131. I do not agree with that submission. I do not think that any significance can be attached to the issue of relationship. It is true that there is no evidence before the court how the bank had satisfied itself that the self-use requirement was fulfilled. However, the plain objective facts are that the “Self-use” box was ticked in the application form, and the mortgage was subsequently approved.
132. The next thing which the plaintiff has to explain is that the sums advanced by the father towards the purchase in 1998 were a loan.
133. In this regard, the plaintiff is able to give a clear account of how the loan came about. He explained that when he signed the provisional agreement, he already put in place arrangement to finance the purchase. See para 43 above. This seems to be an inherently plausible account.
134. Furthermore, his case is that the mother said to him that the father would give him a loan so that he did not need to pay so much interest expenses to the bank. When one bears in mind that at that time the relationship between the plaintiff and the parents were good, the suggestion of the father seems inherently plausible.
135. The next part of the plaintiff’s case which he has to prove is that he repaid the father a total sum of $500,000 in the course of 1998.
136. Mr Mak submitted that it is doubtful why the plaintiff would be repaying $500,000, when the loan was for $1,200,000 on the plaintiff’s own case. It is, Mr Mak contended, an arbitrary figure. The allegation is particularly unbelievable when one considers that on the plaintiff’s own case, it was in 2000 that the mother allegedly told him that the remaining $700,000 would be given to him as a gift for the renovation costs of the Clear Water Bay house.
137. As far as I understand, Mr Mak was in effect querying how the plaintiff would know in 1998 that the father would make him a gift of $700,000 in 2000 so that he knew that he only needed to repay $500,000 in 1998. In my view, that is not a sound submission.
138. The relevant context here is that according to his own explanation, the plaintiff received cash in his private practice at the clinic. This is in fact a recurring theme in his written and oral evidence. When the mother and the father went to his clinic, he would repay the father in cash which he had accumulated at the clinic. The payment was done in an informal manner. And he explained that because he needed money to pay for his purchase of the Clear Water Bay house in 1999, which was a substantial investment, he needed to cease repaying the balance of the loan in the meantime. Hence his case is not that he specifically chose to repay the exact sum of $500,000 in 1998. Rather, his case is that he simply paid the cash, which was then available, to his father when the latter visited the clinic.
139. When viewed against this context, the allegation that the plaintiff repaid part of the loan totalling $500,000 on eight occasions in 1998 is inherently plausible.
140. Furthermore, the allegation is supported by his diary entry. Mr Mak’s criticism in this regard is that unlike the other entries for his out-of-clinic appointments, the plaintiff simply noted the amount repaid on each occasion but did not make a note of the date of each repayment. Factually, it is a correct observation. The impression which one readily forms of the plaintiff is that he is a fastidious person. (In fact, that is the word used in Mr Mak’s closing submissions.) Mr Mak’s question is a valid query. On the other hand, the court should take into account the informal nature of the plaintiff’s dealings with his father at that time.
141. Lastly, while the plaintiff says he had solely contributed to the monthly mortgage repayments, for almost the entire mortgage period, the payments were made to the savings account held in the name of the mother. The plaintiff’s case is that he would give cash to the mother each month when she came to the clinic and she would go to the bank to make the payment. In cross-examination, the plaintiff was asked why the savings account used for repaying the mortgage would be in the mother’s name. The plaintiff’s explanation was that he was busy in his practice and had no time to go to the bank during the day. Hence the mother helped him out on the payments.
142. That the plaintiff had a busy practice is another recurrent theme of his case. This is inherently plausible. The objective fact is that he had been able to purchase a number of real properties within a short space of time. This seems consistent with his allegation that he was busy in his practice. In fact, it was his evidence that he often worked till as late as 9 or 10 at night. His wife, who helped him out in the clinic, also testified to that effect. The plaintiff said in cross-examination that his wife would go to the restaurant first to order the dishes for him so that he could eat dinner as soon as he finished work at the clinic. The plaintiff has produced meal receipts in this action. They include a number of receipts which show that the time of the dinner bills was often after 9 or 10 pm.
143. The allegation that he had a busy practice and would therefore ask the mother to help out with these bank matters is therefore inherently plausible, particularly against the background that the relationship at that time was good.
144. On the whole, when the plaintiff’s case is considered on its own, it is inherently plausible in all the material respects when viewed against the relevant context.
Secondly, the plaintiff’s case comprises a detailed account and the account is consistent throughout
145. In my view, apart from its inherent plausibility and its logical flow, what also stands out from the plaintiff’s case is its consistency throughout these proceedings. There is no internal inconsistency or discrepancy within the plaintiff’s own evidence, as far as one can tell, subject potentially to two exceptions. This has clearly bolstered the credibility and reliability of his case.
146. Furthermore, the plaintiff’s case is rich in details. I have referred to his explanation on how the loan from the father came about, how he repaid part of the loan in 1998, why he stopped the repayment when he purchased the Clear Water Bay house, and how and why he arranged for the mother to make the monthly mortgage repayments. These detailed explanations, in my view, lend much credence to his case.
147. Admittedly, some of the details were provided only when the plaintiff testified under cross-examination. For example, the plaintiff’s explanation why the bank passbook was in the name of the mother. However, the general tenet of the plaintiff’s case on all the material aspects of his case remains the same throughout. It was in fact in cross-examination when he was challenged on some of his evidence that he then gave a more detailed account. It is not a case where a witness embarks on some fresh allegations at trial which were not made at all in his previous witness statement.
148. It is clear that the plaintiff’s evidence remained unshaken throughout the cross-examination. In fact, he was able to make use of the opportunity to repeat and amplify with details various parts of his case, without any major inconsistency or discrepancy. All these are, in my view, positive indicators of the truth and reliability of his evidence.
149. The two potential exceptions are the August 2011 letter and the finding on the father’s loan to the plaintiff in the defamation action.
150. The relevant part of the August 2011 letter is reproduced in para 66 above. Mr Mak set much store by what was said there. He submitted that by that letter, the plaintiff had effectively admitted that both he and the mother enjoyed equal beneficial interest in the Property and that was why the letter referred to the equal right of access.
151. That would appear to be a possible interpretation of the letter. On that interpretation, the plaintiff’s position then would be inconsistent with his stance now. Mr Li countered that by pointing out that the letter only talked about legal ownership and did not make any reference to beneficial ownership. Hence, it cannot be taken as an admission of the mother’s beneficial interest. I have to say that the letter is equivocal. This is something which I should take into account in the overall evaluation exercise.
152. In the defamation judgment, the judge found that the loan made by the father to the plaintiff, as alleged by the latter, happened in 1999. In this action, the plaintiff’s case is that the loan was made in 1998 instead. I quote below the relevant parts of the judgment:
“43. The plaintiff also told the court about the payment of a sum of $1,500,000 to the [father] on 1 October 2008. The plaintiff claimed that such payment consisted of the repayment of an alleged loan in the sum of $700,000 advanced by the [father] to him back in 1999 and interest for such loan in the sum of $800,000.
…
85. Sixthly, I have serious doubt about the evidence of the [father] relating to a sum of $700,000 advanced by him to the plaintiff back in 1999. According to the plaintiff, [the mother] told him by that time that such sum of money was a gift to him for paying the decoration expenses of the plaintiff’s house in Sai Kung. When the [father] later asked him for the repayment, the plaintiff paid the [father] a sum of $1,500,000 on 1 October 2008 which comprised the repayment of the sum of $700,000 and interest of $800,000.
86. … In my judgment, there was no mistake that the [father] did charge substantial interest for the “loan” advanced by him to the plaintiff back in 1999. This incident also shows that demands for payment could have been made by the [father] arbitrarily, and the [father] expected the plaintiff to be submissive to him in money matters.” (underline added)
153. There is a discrepancy in the year in which the alleged loan took place. Here, I accept Mr Li’s submission that in the defamation action, the alleged loan was only a matter in the background as that case was about the three shops, not the Property. Hence the details of the alleged loan might not have been correctly recorded in that action.
154. On the whole, I conclude that the plaintiff’s case is inherently plausible, generally consistent and hence convincing.
Thirdly, on the contrary, the mother’s case is tainted with internal inconsistencies
155. In this action, the onus is not on the mother to prove her beneficial interest in the Property. Given the legal joint ownership, the starting point is that she and the plaintiff jointly own the Property beneficially. Furthermore, as remarked above, the objective evidence seems, on its face, to be in her favour. The father’s alleged contributions to the initial purchase price and expenses were made by cheques. The bank passbook, which shows the mortgage repayments, was in her name.
156. Having said that, however, when one scrutinises the mother’s case, one sees a number of internal inconsistencies and inexplicable features. These have the effect of undermining the credibility of her case.
157. The most notable internal inconsistency lies in the reasons she has put forward in this action to explain why she purchased the Property.
158. I have set out her evidence in paras 72 to 74 above. In her first witness statement, she unequivocally said that she would bring meals to the clinic every day and the plaintiff and his wife would come for dinner every day. The relevant time period was before the purchase of the Property on 15 January 1998 and perhaps some time after that. However, her evidence took a u-turn in her supplemental witness statement. She said that they only came to dinner in or after late 1999.
159. The plaintiff has produced meal receipts covering the one-year period from April 1997 to March 1998 which show that he ate out in restaurants on 289 occasions. That flatly contradicts the mother’s original allegation.
160. It may be the case that the mother has made a mistake about the relevant time period when she prepared meals for the plaintiff. It is not uncommon that a witness may mis-remember dates. However, in her case, the daily preparation of meals for the plaintiff was put forward as one of the reasons for wanting to buy a flat in Sceneway Garden. This is what she said in the re-re-amended defence:
“It would be convenient for the Defendant to continue bringing lunch to the Plaintiff’s clinic.” (underline added)
161. As the evidence reveals, she has in fact made a mistake about the reason why she wanted to purchase a flat in Sceneway Garden. The inconsistency in this material aspect of her factual case must cast doubt on the overall veracity of her case.
162. The other reason was the pregnancy of the girlfriend of her seventh son at the time. Because of that, she wanted to buy a new flat so as to ease the crowded living condition of the Tak Shing units.
163. Included in the evidence is the birth certificate of the daughter of the seventh son and his girlfriend. The certificate shows that the child was born on 23 April 1999. This shows that she could not have been conceived in or shortly before January 1998. That would seem to contradict the alleged reason of pregnancy, put forward by the mother. She was asked about this in cross-examination. She gave no or no satisfactory answer. In fact, at one point, the mother said that the person shown in the birth certificate was not her granddaughter. This is of course a baffling revelation.
164. To sum up, there are serious doubts over the veracity of the two reasons put forward by the mother for buying the Property. The reasons arguably form the foundation of the mother’s case. If they do not stand, the whole case is open to doubt.
165. The other significant inconsistency in the mother’s case is her account of how the plaintiff came to pay $1,500,000 to the father in October 2008. It is not in dispute that by then the relationship had already broken down.
166. Her case is that the payment was the repayment of the alleged Clear Water Bay loan. As noted above, nothing was said about this loan in the witness statements of the mother or the father. What we have on this issue is just the father’s oral evidence and the Loan Records. He was not forthcoming in his reply when asked about this in cross-examination. I agree with Mr Li’s observation that he tried to brush aside the question in his oral testimony. The only thing which he firmly spoke about was that he did not charge any interest on this alleged loan.
167. However, that statement is starkly contradicted by the Loan Records. As I have observed above, on the face of that document, interests were charged on the alleged Clear Water Bay loan.
168. On the whole, the father’s evidence on the alleged Clear Water Bay loan is incoherent and internally inconsistent. I note that the trial judge came to the same conclusion in the defamation action: see para 86.
169. The third inconsistency which is of note concerns the reason for the breakdown of the relationship between the plaintiff and the parents in October 2007. In her witness statement, the mother maintained that she did not know why. But in cross-examination, she said she knew and said that it was because another son of hers was hospitalised in October 2007 and she could not cook for the plaintiff on that day and the plaintiff became very angry and shouted to her about it.
170. It is not understood why her written and oral evidence is inconsistent on this issue. Worse still, the father and the mother put forward a totally different reason in the criminal proceedings, as recorded in para 88 of the defamation judgment.
171. On the whole, there are significant internal inconsistencies within the mother’s case, for which there is no apparent or immediate explanation.
Fourthly, there are also inexplicable features in some material aspects of the mother’s case
172. Apart from the above inconsistencies, there are also a fair number of inexplicable features in the mother’s case. These also cast doubt on the credibility of her and the father’s evidence. I set out a few of the more significant ones below.
173. First, it is bizarre why in cross-examination the mother denied that the named person in the birth certificate was her granddaughter. I have to say that that was one of the more dramatic moments in this re-trial. This obviously makes one wonder whether the mother had something to hide.
174. Second, in cross-examination, the father was asked why the plaintiff would go ahead to sign the provisional agreement in his name without telling the parents first when he was just asked by them to keep a lookout for a suitable flat. That was clearly a legitimate and reasonable question. The father was not able to give a coherent answer. At one point, he said something to the effect that the plaintiff had forced it upon them as he had already paid the initial deposit. The answer is not understood and is in any event at odds with the prevailing background that at that time the parties were in a good relationship.
175. Third, it is part of the mother’s case that her fourth son and sixth daughter gave her money so that she was able to make monthly contributions towards the mortgage. However, she has not called the two of them to testify on her behalf. The issue on who contributed to the mortgage repayments, and how, is obviously a material one in the context of determining the beneficial ownership of the Property. Yet the mother did not see fit to adduce the direct evidence of her two children to support her case on the issue. This is particularly puzzling as the mother is apparently in regular contact with the two of them. The fourth son was physically in court in the re-trial. The mother said herself that she regularly speaks to her daughter.
176. When assessing the overall credibility of the mother and the father, the court must take into account that they are both elderly people, their memory may not be good, and as a result their recollection of past events may not be accurate. Their performance at the trial might also have been affected by the fact that she was being sued by her own son. However, my observation is that both of them were alert and were able to understand the questions put to them and grasp the essence of the issues at hand. The mother did become emotional at some points in the course of her cross-examination. However, she was given ample opportunities to take rests so that she was not unduly strained by the exercise.
177. On the whole, having scrutinised the parties’ cases, the plaintiff’s evidence appears to be more convincing than the mother’s.
FINDINGS
178. On the balance of probabilities, I find that the plaintiff’s factual case is more likely than not to be true. I accept his factual case on the whole and where it conflicts or is inconsistent with the mother’s, I reject the latter.
179. On the facts as found, I am satisfied that, objectively speaking, there was a common intention shared between the plaintiff and the mother that he is the sole beneficial owner of the Property. The common intention existed at the time of the purchase and continued after that. It was only in February 2011 that the mother turned back on this understanding and asserted that she had beneficial interest in the Property. Based on that understanding, the plaintiff made all the contributions towards the purchase of the Property. It is unconscionable for the mother now to depart from that common intention. The court should give effect to it by granting the reliefs sought by the plaintiff.
180. Mr Mak submitted that on the plaintiff’s own case, he never told the mother why her name was added to the legal title. That would defeat the finding of a common intention. I do not agree with this submission.
181. The authorities have made it clear that the court takes a holistic approach in deducing the objective intention of the parties. As Mr Li succinctly put it in his oral closing submissions, the germane question is not confined to whether a particular thing was said or not said. The question to ask is when the overall circumstances are considered, whether there was an intention that the mother would have a share (with the burden of proof resting with the plaintiff).
182. On the facts as found, objectively speaking, it is plain that neither the mother nor the plaintiff intended that she would have a share when she was named one of the legal owners. It will be recalled that she specifically asked the plaintiff how he could afford to buy the Property so soon after he purchased the 28D Flat. She also said that the father would be able to lend money to the plaintiff to help him save interest expenses. All these unequivocally point to the common understanding that the plaintiff was to be the sole owner of the Property.
ORDERS
183. I make the following orders:
(1) The mother do deliver vacant possession of the Property to the plaintiff;
(2) A declaration that the mother holds her legal title and interest in the Property on trust for the plaintiff;
(3) A declaration that the plaintiff is the sole beneficial owner of the Property;
(4) The mother do assign her legal title of the Property to the plaintiff;
(5) The mother’s notice of severance dated 3 July 2015 be set aside;
(6) The mother do pay to the plaintiff mesne profits for her occupation of the Property from 1 March 2012 as follows:
(a) From 1 March 2012 to November 2013
$17,000 x 20 months = $340,000
(b) From December 2013 to November 2015
$17,000 x 24 months = $408,000
(c) From December 2015 to November 2017
$20,000 x 24 months = $480,000
(d) From December 2017 up to such time when the mother delivers vacant possession to the plaintiff
at $22,000 per month
184. The monthly figures used for the calculation of the mesne profits are agreed between the parties.
185. It is also agreed that the plaintiff should be entitled to interest on the mesne profits. Interest accrues at 1% above HSBC’s prime rate. I would fix the first interest period to be from 1 March 2012 to 30 November 2012. Each succeeding period would be from 1 December to 30 November of the following year. Interest accrues from the end of each interest period on the total mesne profits payable during that period.
186. On costs, I make an order nisi that the mother do pay the plaintiff’s costs of the re-trial including all reserved costs, to be taxed if not agreed, with certificate for two counsel.
| ( Winnie Tsui ) | |
| Deputy High Court Judge |
Mr CY Li, SC and Ms Angela Gwilt, instructed by YC Chow & Co, for the plaintiff
Mr Mak Kin Ming and Mr Gavin Wan, instructed by KB Chau & Co, for the defendant