Civil Action2011

LI PING CHUN AND ANOTHER v. LIANG TONGHUA

Related cases with same parties

CACV220/2016LI PING CHUN, the Co-Administratrix of the Estate of LEUNG FOO SU (or She), the Deceased AND ANOTHER v. LIANG TONGHUA
HCA2239/2017LI PING CHUN AND ANOTHER v. LIANG TONGHUA AND OTHERS

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[2018] HKCFI 2757-EN-2018-12-28

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HCA 745/2011 and
HCA 2239/2017
(Heard Together)
[2018] HKCFI 2757

HCA 745/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 745 OF 2011
________________

BETWEEN	LI PING CHUN, the Co‑Administratrix of the Estate of LEUNG FOO SU (or SHE), the deceased	1^st Plaintiff (Judgment Creditor)
	NG MEI KAM, the Co‑Administratrix of the Estate of LEUNG FOO SU (or SHE), the deceased	2^nd Plaintiff (Judgment Creditor)
	and
	LIANG TONGHUA	Defendant (Judgment Debtor)

________________

AND	HCA 2239/2017

ACTION NO 2239 OF 2017
________________

________________

BETWEEN
	LI PING CHUN, the Co‑Administratrix of the Estate of LEUNG FOO SU (or SHE), the deceased	1^st Plaintiff
	NG MEI KAM, the Co‑Administratrix of the Estate of LEUNG FOO SU (or SHE), the deceased	2^nd Plaintiff
	and
	LIANG TONGHUA also known as LEUNG TUNG WAH also known as LIANG TONG HUA also known as TUNG WAH LEUNG	1^st Defendant
	LEUNG HONG WAH	2^nd Defendant
	LEUNG KOON WAH also known as NG WINNIE LEUNG	3^rd Defendant

________________

(Heard Together)

Before: Deputy High Court Judge Leung in Chambers

Date of Hearing: 25 July 2018

Date of Decision: 28 December 2018

________________________

DECISION

________________________

1. The plaintiffs are the administratrice of the estate of Leung Foo Su (or Leung Foo She), the deceased (“the Deceased”). The 1^st plaintiff (“Li”) was the surviving widow of the Deceased while the 2^nd plaintiff is a closing family friend. The defendants in these actions are the sisters of the Deceased, namely Liang Tonghua (“TH”), Leung Hong Wah (“HW”) and Leung Koon Wah (“KW”). The plaintiffs have obtained interim injunctive relief effectively ex parte against the defendants. This is the substantive argument of the plaintiffs’ applications for the continuation of the interim orders and asset disclosure order against the defendants.

2. TH resisted the application, and filed her affirmation in opposition. Albeit acting in person, TH lodged before the hearing her written submissions in both English and Chinese, which bear all the resemblance to those prepared by legal professional. She appeared in person. HW and KW were absent.

Background

3. Back in 2011, the plaintiffs, as administratrice of the estate of the Deceased, commenced HCA 745/2011 to claim against TH for breach of trust by misappropriating the money in the joint bank accounts of the Deceased and TH that belonged to the Deceased beneficially. Both sides to the dispute were then legally represented. HW and KW sided with TH, and gave evidence for her at the trial.

4. After trial, DHCJ S T Poon handed down the judgment in HCA 745/2011 (“the Judgment”) on 6 October 2016. Whilst the learned deputy judge expressed reservation about reliance on Li’s evidence alone,he accepted the corroborative evidence of her witnesses including the 2^nd plaintiff herein. He found TH was not an honest witness and rejected her evidence, while the evidence of her witnesses, including HW and KW, were of no assistance. He found that the money in the joint bank accounts belonged to the Deceased beneficially and TH had no beneficial interest in it. It was only that TH was unwilling to share with Li the assets of the Leung family, including such money, and TH transferred the money from the joint bank accounts to herself without the authority of the Deceased.

5. Accordingly, DHCJ Poon gave judgment in favour of the plaintiffs, and ordered for an account by TH as well as payment to the plaintiffs of what would be found due from TH to the Deceased’s estate upon the taking of such account.

6. The relevant facts in HCA 745/2011 as found were set out in the Judgment[1], which I shall repeat no further for the present purpose. The background of that action was also set out in detail in the Court of Appeal judgment in CACV 220/2016 dated 19 October 2017 [2] mentioned below.

7. Subsequent to the Judgment, the plaintiffs, through their solicitors, had in October and November 2016 demanded TH in writing for the account in compliance with the Judgment but to no avail. Meanwhile, TH lodged an appeal against the Judgment. She also sought to stay the execution of the Judgment pending appeal, but failed.

8. On 31 March 2017, DHCJ S T Poon further ordered TH to make interim payment to the plaintiffs in the sums of HK$920,000 and US$76,000 within 14 days, together with costs forthwith in the sum of HK$25,000 (“the Interim Order”). By the same order, DHCJ Poon gave further directions in respect of the taking of the account pursuant to the Judgment.

9. Despite repeated written demands, TH defaulted in complying with the Interim Order and the further directions in respect of the taking of the account pursuant to the Judgment.

10. On 21 April 2017, the plaintiffs applied ex parte for a charging order against two properties which were then registered in the sole name of TH, namely (and collectively, “the Properties”):

(1) 2^ndFloor, No 169 Yee Kuk Street, Kowloon (“the Yee Kuk Street Property”); and
(2) 3^rd Floor, No 10 Shim Luen Street, Kowloon (“the Shim Luen Street Property”).

11. TH’s appeal against the Judgment was heard in May 2017. On 19 October 2017, the Court of Appeal handed down its judgment. The appeal was dismissed with costs.

12. On 19 June 2017, the plaintiffs obtained a charging order nisi in respect of the Properties (“the Charging Order”). They sought to register the Charging Order on 18 July 2017, but only to be informed by the Lands Registry on 19 September 2017 that TH had actually assigned the Yee Kuk Street Property and the Shim Luen Street Property to HW and KW respectively. Both assignments were dated 5 June 2017, ie, prior to the application for the Charging Order. The assignments were registered on 21 June 2017. Both were assignments for nil consideration. The registration of the Charging Order has since been withheld by the Land Registry.

13. In view of that, on 26 September 2017, the plaintiffs commenced HCA 2239/2017 asserting a proprietary claim in respect of the Properties. The three sisters were named the defendants. The plaintiffs claim that the assignments were made with intent to defraud creditors, namely, to evade the plaintiffs’ enforcement of the Judgment and the Interim Order against TH, and therefore are voidable pursuant to section 60 of the Conveyancing and Property Ordinance, Cap 219 (“CPO”). On this basis, they seek to set aside the assignments and claim declaratory relief, including that the Charging Order has validly attached to the Properties on 19 June 2017.

14. On the same day, the plaintiffs took out an application for a post-judgment Mareva injunction in HCA 745/2011 and an asset preservation order in equivalent terms in HCA 2239/2017. The Mareva injunction against HW and KW as non-parties in HCA 745/2011 was sought under what is known as the Chabra jurisdiction of the court [3]. The plaintiffs also applied for ancillary asset disclosure order against the defendants.

15. The plaintiffs’ applications came before Hon Ng J on 6 October 2017. The defendants were absent, and the hearing proceeded effectively ex parte. On the same basis, Ng J granted the orders, except the ancillary disclosure order, and fixed the return day on 3 November 2017.

16. The plaintiffs then took out their summonses dated 13 October 2017 for the continuation of the injunctive orders in both actions. They also applied for asset disclosure orders, which were not given ex parte on 6 October 2017. On 3 November 2017, DHCJ Yee adjourned the applications for substantive argument, and ordered the injunctive orders to continue in the interim.

The injunctive relief

17. It is trite that the court has jurisdiction to grant an asset preservation order, upon being satisfied with the following criteria: see Samtani v Samtani[2012] 4 HKLRD 872 at §§75 – 79, 87:

(1) The plaintiff demonstrates a serious issue to be tried in respect of his claim of proprietary right over the subject property.
(2) Damages will not be an adequate remedy so that something ought to be done for the security of the property.
(3) The balance of convenience is in favour of the granting of the order. This will be when justice demands an order to preserve the subject property to prevent the eventual determination of the dispute from becoming abortive.
(4) Unlike a Mareva injunction, there is no need for the plaintiff to show a risk of dissipation of assets [4].

18. The principles governing the grant of a Mareva injunction are equally trite: see Hong Kong Civil Procedure 2018 at§29/1/65 – 70:

(1) The plaintiff must have a good arguable case on a substantive claim.
(2) The defendant has assets within the jurisdiction.
(3) There is a real risk of dissipation or removal of assets, which would render the plaintiff’s judgment empty.
(4) The balance of convenience is in favour of granting the injunction.

19. The Court has power to grant a post-judgment Mareva injunction: see Hong Kong Civil Procedure 2018 (Vol 1) at §29/1/60; Orwell Steel (Erection and Fabrication) Ltd v Asphalt and Tarmac (UK) Ltd [1984] 1 WLR 1097 at 1100C–G.

20. A Mareva injunction can be extended to a third party against whom or which the plaintiff does not assert any cause of action — the Chabra jurisdiction. The principles were recently summarised by DHCJ Le Pichon in China Baoli Technologies Holdings Ltd v Orient Equal International Group Ltd & Ors HCA 1399/2016 (12 June 2017) at §70:

(1) The applicable principles are those enunciated by Lloyd LJ in SCF Finance Co v Masri [1985] 1 WLR 876 (at 884B–E). For those principles to apply, the court must be satisfied that there is good reason to suppose (to be equated with a good arguable case) that the assets in the hands of the non-party are in truth assets belonging to the defendant; or assets of which the defendant has control, or a right of access or some other right where the Mareva injunction is sought to restrain the disposal/removal of assets.
(2) It is not necessary for the applicant to demonstrate, at the injunction stage, that the assets sought to be frozen belong to the defendant. What has to be shown is good reason to suppose as against the non-party that the assets held by the non-party would be susceptible to a procedure which would lead to satisfaction of a judgment in the defendant’s favour.
(3) It is not necessary for the plaintiff to have a cause of action against the non-party.

21. Insofar as the asset preservation order is concerned, the plaintiffs in HCA 2239/2017 assert a proprietary claim in respect of TH’s beneficial interest in the Properties. They base such claim on the Charging Order, which remained attached to the Properties if the claim against the defendants in respect of the assignments of the Properties under section 60 of the CPO succeeds.

22. The plaintiffs applied for the Charging Order at the time when TH was the registered owner of the Properties. The assignments could in no way be known until after their registration on 21 June 2017. The plaintiffs had no way of discovering the assignments until they sought to have the Charging Order registered in July 2017.

23. Section 60 of the CPO provides that:

“ (1) Subject to subsections (2) and (3), every disposition of property made, whether before or after the commencement of this section, with intent to defraud creditors, shall be voidable, at the instance of any person thereby prejudiced.
…
(3) This section does not extend to any estate or interest in property disposed of for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the disposition, notice of the intent to defraud creditors.”

24. It is the burden of the plaintiffs to establish that the Properties were assigned to HW and KW with intent to defraud the plaintiffs, being the judgment creditor in HCA 745/2011. Such intention may be actual or objectively a matter of inference: see for instance Tradepower (Holdings) Ltd v Tradepower (HK) Ltd(2009) 12 HKCFAR 417 at §88; Cheung Ying Lun v Legal Way Ltd[2014] 1 HKLRD 106 at §§23 – 25.

25. The plaintiffs described the assignments of the Properties are suspicious in terms of their timing and terms. I can see why.

26. First, the assignments were on their face executed after the handing down of the Judgment, the making of the Interim Order and shortly after the hearing of TH’s appeal against the Judgment.

27. Second, HW and KW provided no monetary consideration to TH for theassignments. This was apparently explained by the fact that the assignmentswere executed in purported settlement of an action commenced back in 2007by KW against TH (HCA 138/2007). The purported settlement was effected by a Tomlin order dated 29 May 2017 (“the Tomlin Order”).

28. However, in HCA 138/2007, KW claimed as the executrix of the estate of the deceased mother of the sisters and the Deceased under the mother’s will dated January 1976. According to the indorsement of claim, she claimed that pursuant to the alleged instructions of the mother and the declarations of trust signed by TH dated 31 August 1989 in respect of the Properties, the three sisters were the beneficial owners of the Shim Luen Street Property and the six siblings were the beneficial owners of the Yee Kuk Street Property, as tenants in common in equal shares. KW claimed, amongst other things, for a declaration to that effect as well as an order compelling TH to vest the title, benefit and interests of and in the Properties into these alleged beneficial owners accordingly.

29. Now by the Tomlin Order, the claim was somehow settled by TH agreeing to transfer “all her interest and benefits” of the Yee Kuk Street Property and the Shim Luen Street Property to HW and KW respectively. No mention was made about the beneficial interests of the other siblings (or if any of them are deceased, their respective estates) as set out in the claim. Likewise, the assignments executed by TH as the assignor and HW and KWas the assignees of the two properties respectively likewise made no exception, reservation or even reference to the interests of the other siblings(or if any of them has deceased, their respective estates) as beneficial tenants in common as alleged in that action. The assignments, on their face, were mere assignments of Properties to KW and HW personally and absolutely.

30. It is readily apparent that the terms of the alleged settlement by the Tomlin Order and the subsequent assignments of the Properties went beyond the claim in HCA 138/2007. They also went beyond what TH, HWand KW respectively were said to be entitled to beneficially in the Properties.

31. Third, HCA 138/2007 had been dormant for 10 years. The parties therein, who are now on the same front in the action herein, somehowdecided to settle it in terms with the effect of stripping TH of any interest in the Properties at the time when TH was faced with an enforceable payment obligation upon account under the Judgment and the Interim Order.

32. In answer to the above queries, TH alleged that the Properties, albeit registered in her name before the assignments, were merely held by her on trust for the mother, and this was evidenced by her declarations of trust dated 31 August 1989. TH argued that the declarations of trust were amongst those documents included in the trial of HCA 745/2011, and the plaintiffs have never sought to deny them then.

33. However, it should be noted that the alleged trust did not feature in the relevant factual dispute that needed to be resolved in HCA 745/2011. As mentioned, the dispute concerned the beneficial interest in the money in the joint bank accounts of hers and the Deceased. It followed that neither DHCJ Poon nor the Court of Appeal considered it necessary to make any finding in relation to such alleged trust in respect of the Properties. They also did not do so, as a matter of fact.

34. TH also explained that the dispute between her and her siblings, including KW, arose out of her earlier attempt to administer the estate of the mother. This led to HCA 138/2007, but the same has since been left dormant for 10 years. It was only after the commencement of legal proceedings by the plaintiffs in this action when KW resumed proceeding with HCA 138/2007 and demanded TH to transfer the Properties. TH then agreed to do so with a view to facilitating KW’s administration of the mother’s estate, for which she allegedly held the Properties on trust. It was her conscious decision to suppress the reference to the alleged administration of the mother’s estate and to assign the Properties to HW and KW apparently absolutely in order to save stamp duty.

35. Nevertheless, the above assertion still could not explain the fact that KW, as executrix of the estate of the mother, indeed claimed against TH on the basis that TH had ⅓ beneficial interest in the Shim Luen Street Property and ⅙ beneficial interest in the Yee Kuk Street Property. Nor could the above assertion explain the alleged settlement in terms exceeding what KW claimed or the subsequent assignments of the Properties to HW and KW absolutely. Further, there is no dispute that the assignments were executed in the absence of passing of the title deeds to the Properties. One wonders how the assignments would have facilitated the alleged administration of the mother’s estate.

36. TH then argued that even on the basis of the plaintiffs’ case, merely showing that there is a serious question to be tried as to her ownership of the Properties is not enough, citing Standard Chartered Securities Ltd v Lai Arthur [1993] 1 HKC 375 at 390D–H in support.

37. In the circumstances of this case, I do not agree. The fact that TH was the registered owner of the Properties amounted to prima facie evidence of her ownership in the Properties. Even taking into account the alleged declarations of trust, the claim by KW in HCA 138/2007 was put forward on the basis that TH still had beneficial interest in the Properties. KW has not come out to explain or to corroborate the case of TH. In view of the admittedly sensitive timing and the terms of the alleged settlement and assignments, whether the assignments are caught by section 60 of the CPO must be seriously arguable. I do not agree that what the plaintiffs have put forward falls short of meeting the threshold of their applications.

38. TH argued that in any event, the fact was that as at the time of the Charging Order, she in fact had no, as she has assigned away, interest in the Properties. Therefore, the order in any event has not attached to the Properties unless and until the assignments are avoided.

39. Similar argument has previously been discussed and dismissed by the court. In Shui Yee Ltd v Rockwin Enterprises Ltd & OrsHCA 527/1995 (20 December 2000), Chu J (as she then was) said (at §12):

“ In opposing the appeal, Mr Lee for the 1^st defendant argues that section 60 of the Conveyancing and Property Ordinance only renders a disposition caught by it voidable but not void. Accordingly, the assignment by the 1^st defendant to Mr Hui remains valid until being set aside by an order of the court, which will only take effect as from the date of its pronouncement. Therefore, even if the plaintiff were to succeed in the s.60 Application, the beneficial interest remains with Mr Hui up to the date of the court order, so that the 1^st defendant would still have no beneficial interest on 22 September 2000 when the Charging Order nisi was made. I do not accept this argument. As Mr Chan for the plaintiff submits, the effect of section 60 is to provide that the disposition shall be a valid one unless and until its validity is being successfully challenged. The plaintiff now challenges the disposition by the 1^stdefendant to its director and if it succeeds in the challenge, then the disposition will be avoided. The result will be that the beneficial ownership had not passed tothe director by the assignment, so that it is subject to the Charging Order Nisi. If section 60 is to be read in the manner suggested by Mr Lee, then the very purpose of the section would be defeated in that the legitimate rights of the creditors can still be frustrated and defeated in the period before a fraudulent transaction is ordered to be set aside. That cannot be right.”

40. It follows that if the transaction disposing of TH’s beneficial interest is set aside pursuant to section 60 of the CPO, the assignments will be deemed to have never occurred so that the interest will be considered as remaining with her all the time and has been subject to the Charging Order since 19 June 2017.

41. Insofar as the application for an asset preservation order is concerned, I reject TH’s argument that the plaintiffs lack the necessary proprietary right over the Properties to found the claim and the interim relief sought.

42. On the basis of the above discussion, I also find that the plaintiffs have a good arguable case against TH, a pre-requisite to the Mareva injunction.

43. TH challenged the basis on which the court should extend the Mareva injunction under the Chabra jurisdiction to cover HW and KW. In particular, she argued that there was no evidence that she has substantial control over the Properties now in the hands of KW and HW.

44. I do not agree. As HW and KW have not come forward to resist these applications, it is strictly not for TH to speak on their behalf. In any event, the circumstances in which the Properties came into the hands of KW and HW discussed above must be relevant. From what could be seen to have happened in this case so far, I find that contrary to her allegation, whether or not TH was actually behind the steer, including initiating the assignments, is to say the least seriously arguable.

Risk of dissipation

45. Insofar as the asset preservation order in respect of the Properties is concerned, there is no need to show risk of dissipation.

46. As regards the post-judgment Mareva injunction, again the circumstances surrounding TH’s assignment of the Properties to KW and HW mentioned above refer. TH made clear that she assigned the Properties away without the title deeds. If what she meant by facilitating the alleged administration of the Properties was to further dispose of the Properties with a view to distribution, then I accept that even on TH’s own case, it cannot be assumed that KW and HW would or could never seek to somehow further dispose of the Properties even without the title deeds.

47. Again KW and HW have not appeared to put forward their respective case or to offer any undertaking in respect of the Properties now registered in their names. TH has failed or refused to comply with the order for account under the Judgment or the further directions of the court. At this stage, it is also unclear whether TH has other substantial assets in Hong Kong, apart from her interest in the Properties, that would serve to satisfy the Judgment and the Interim Order.

Balance of convenience

48. Behind these applications, the plaintiffs basically complain thatthe enforcement of the Judgment, including that of the Interim Order by way of the Charging Order, is under threat of frustration by TH in collaboration with HW and KW. Apart from the assertion made in her submissions, TH’strue state of assets is unknown. Neither KW or HW has come forward and offered any undertaking as to the preservation of the properties. These operate to tile the balance in favour of granting the orders.

49. On the other hand, there is no real basis for suggesting that in the event that it is found later that the orders should not have been granted, damages would not suffice as an adequate remedy for any of TH, HW and KW. The undertaking as to damages by the plaintiffs is good at least to the extent of the liability of TH under the Judgment and the Interim Order to the plaintiffs. In view of their capacities of the plaintiffs and the nature of their claim, I do not accept the criticism by TH that the undertaking did not come from the plaintiffs in their personal capacities.

Delay

50. TH raised the issue of delay on the part of the plaintiffs in taking out the applications. In principle, delay itself does not prevent the court from considering the grant of an asset preservation order: see Zimmer Sweden at §76. As to the Mareva injunction, the consideration of delay is fact sensitive, depending on the circumstances of each case: see Nicekind Holdings Ltd v Yim Wai NingCACV 435/2000 (26 March 2001) at §§45 – 48 per Leong CJHC; Lam Sik Ying v Lam Sik ShiHCA 4713/2001 (14 January 2011) at §12 per Recorder Benjamin Yu SC. The mere fact of delay in bringing an application for a Mareva injunction or that the application was made inter partes does not, without more, negate a risk of dissipation, though delay without proper explanation is a relevant consideration when assessing whether there is a real risk of dissipation: see Hong Kong Civil Procedure at§29/1/70.

51. As mentioned, it was not until 18 September 2017 when the plaintiffs were informed by the Land Registry could they possibly have come to know of TH’s assignments of the properties to KW and HW. From that point onwards, the plaintiffs reacted by commencing HCA 2239/2017 in the same month and applying for the interim orders, which came to be heard in the first week of the following month. I do not accept that there was any delay that was so inexplicable and substantial that would bar the plaintiffs’ entitlement to the interim remedies being sought.

Service

52. Much was said by TH about service of the court documents by the plaintiffs on her (and KW and HW). Amongst other complaints, TH criticised the plaintiffs’ service as attributing to her absence from the hearing before Hon Ng J on 6 October 2017.

53. Considering the evidence in respect of service, I tend to share the scepticism of the plaintiffs about the readiness of TH to accept service. I do not accept the criticism about the manner in which the plaintiffs’ solicitors have attempted to serve the documents in accordance with the defendants’ addresses last known to them.

54. On 6 October 2017, Hon Ng J indeed entertained the applications, which were taken out on an inter partes basis, in the absence of the defendants. However, his Lordship took the care to proceed on the basis that the applications before him were effectively ex parte. Hence the fixing of a return date. TH indeed appeared at the inter partes stage for the purpose of arguing whether the orders should be discharged or continued. The complaint about prejudice resulting from the orders being made in her absence lacks substance in reality.

Material non-disclosure

55. TH apparently did suggest that the orders ought to be discharged. Until her affirmation filed on 21 December 2017, TH has raised and relied on the allegations and matters discussed above as grounds in opposition of the continuation of the injunctive orders. It was when she lodged her written submissions did she seek to rely on those allegations and matters apparently as grounds of material non-disclosure. If she is right, the orders obtained ex parte would be liable to be discharged.

56. In this context, the law does not impose an obligation to disclose remotely relevant or not truly material matters, otherwise it will be open to counter abuse. Non-disclosure is culpable only when the information goes to the ex parte judge’s weighing operation, ie, what must have affected the judge’s decision on the ex parte application. See Secretary for Justice v Choy Bing Wing CACV 11/2004 (3 December 2004) at §48; Securities and Futures Commission v A HCMP 1407/2007 (29 November 2007); China Agri-Products Exchange Limited v Wang Xiu Qun & Anor HCA 1807/2011 (5 November 2013) at §§118 – 119.

57. Mr Chung did not seek to argue that his clients were not under the duty of full and frank disclosure when the applications were heard before Hon Ng J on 6 October 2017. But he did not agree that there was breach of such duty.

58. The key fact that TH argued to have been withheld from Hon Ng J was the existence and the terms of the declarations of trust by her in respect of the Properties mentioned above. I do not see how. For the purpose of the applications, the plaintiffs had to draw the learned Judge’s attention to the claim in HCA 138/2007 as well as the purported settlement of it by the Tomlin Order. The skeleton submissions before the court then indeed did that.

59. More importantly, by virtue of what can be discerned from the claim and the Tomlin Order in HCA 138/2007, the relevance of the declarations of trust has been overridden by the apparent fact that the terms of the settlement of that action went beyond the claim on the basis of, amongst others, the declarations of trust. The purported settlement resulted in HW and KW becoming beneficial owners of the Properties absolutely, contrary to what the declarations of trust suggested as pleaded in HCA 138/2007.

60. I add that even assuming that the orders obtained ex parte by the plaintiffs are liable to be discharged for material non-disclosure, the circumstances are such that I would have considered this a proper case for the exercise of discretion to re-grant the orders inter partes.

61. In the circumstances, there is proper basis for continuing the interim injunctive orders. However, the scope of the orders against KW and HW needs to be varied. KW and HW were named as defendants to the plaintiffs’ proprietary claim because they were at the receiving end of the assignments. This was also the basis on which they were joined as the third parties subject to the Mareva injunction. This is the sole basis, and no case is made out why they should be restrained from dealing with their assets other than the Properties. Mr Chung in his submissions acknowledged that the scope of the orders against KW and HW might be narrowed down.

Asset disclosure order

62. The Court has power to make such an ancillary disclosure order against the subject of the injunction in aid of the process of enforcement by identifying his or her assets: see Gee on Commercial Injunctions (6^th ed) at §1-004; Hong Kong Civil Procedure 2018 (Vol 1) at §29/1/74. As mentioned, Ng J did not give the order ex parte, and the plaintiffs now apply for it by way of their summons filed on 13 October 2017.

63. The amounts covered by the interim orders were HK$920,000 and US$76,000. They roughly represent the amounts in the joint bank accounts of TH and the Deceased back in 2002 [5]. However, the exact amount that TH will have to pay to the Deceased’s estate is uncertain until the taking of the account. As mentioned, TH has so far failed or refused to comply with the Judgment, the Interim Order and the further directions of the court in respect of the taking of an account pursuant to the Judgment. Further, given the dispute as to the precise extent of TH’s interest in the Properties, as now raised by her, her assertion that the Charging Order per se suffices in securing the plaintiffs’ recoverable interest from her cannot just be accepted for the present purpose. In the circumstances, there is justification for the grant of the asset disclosure order in respect of the assets of TH.

64. The same however is not true in the case of KW and HW. As mentioned, they were named as third parties in the Mareva injunction in HCA 745/2011 and as defendants in HCA 2239/2017 on the sole basis of their being the assignees of the Properties. No other basis has been put forward for the plaintiffs’ claim or relief against them. I am not prepared at least at this stage to grant the asset disclosure order against HW or KW.

Disposition

65. I order that the Mareva injunction in HCA 745/2011 and the asset preservation order in HCA 2239/2017 shall continue until further order of the court, subject to the variation that TH shall be subject to the orders in its current terms whereas HW and KW shall be subject to the orders against the disposal or dealing with the Properties only. I grant the asset disclosure order in terms as sought against TH but not KW or HW.

Costs

66. I make a nisi order that the plaintiffs shall have the costs of this hearing against TH while the costs of the applications shall be in the cause. The nisi order shall become absolute in the absence of application within 14 days to vary.

	(Simon Leung)
	Deputy High Court Judge

Mr Tommy Cheung, instructed by Tai, Tang & Chong, for the 1^st and 2^nd plaintiffs (in both cases)

The defendant (in HCA 745/2011) and the 1^st defendant (in HCA 2239/2017) appeared in person

The 2^nd and 3^rd defendants (in HCA 2239/2017) were not represented and did not appear

[1] At §§144 – 149.

[2] At §§4 – 33.

[3] See TSB Private Bank International SA v Chabra [1992] 1 WLR 231.

[4] See also Zimmer Sweden AB v KPN Hong Kong Ltd HCA 2264/2013 (2 May 2014) at §77.

[5] ie, HK$928,666.30 and US$76,848.86 mentioned in §6 of the Judgment.

106224-EN-2016-10-06

LI PING CHUN, THE CO ADMINISTRATRIX OF THE ESTATE OF LEUNG FOO SU (OR SHE), THE DECEASED AND ANOTHER v. LIANG TONGHUA

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HCA 745/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 745 OF 2011

____________

BETWEEN
	LI PING CHUN, the Co-Administratrix	1^st Plaintiff
	of the Estate of LEUNG FOO SU (or She),
	the Deceased
	NG MEI KAM, the Co-Administratrix	2^nd Plaintiff
	of the Estate of LEUNG FOO SU (or She),
	the Deceased
and
	LIANG TONGHUA	Defendant

____________

Before:

Deputy High Court Judge S T Poon in Court

Date of Hearing:	4 – 8, 11 and 15 August, 2014
Date of Judgment:	6 October 2016

_______________

J U D G M E N T

_______________

Introduction

1. This is a dispute about the beneficial ownership of the money in two joint bank accounts (the “BOC account” and the “HSB account”) of the Defendant and the Deceased. The Defendant was a younger sister of the Deceased. She withdrew all the money from the joint accounts and deposited to her own bank account a few months before the Deceased’s death.

2. The 1^st Plaintiff is the widow of the Deceased, suing as a co-administratrix of the estate of the Deceased. The 2^nd Plaintiff is the other co-administratrix of the estate of the Deceased who is an old friend of the Deceased’s family.

3. It is the case of the Plaintiffs that all the money in the two joint accounts was beneficially owned by the Deceased. The Defendant was in breach of an express and/or resulting trust in misappropriating the money.

4. The Deceased’s and the Defendant’s parents were the late Mr Leung Sik Man (“the Father”) and the late Madam Chan Ngan Ping (“the Mother”). They had altogether seven children. The Deceased was the second son and the Defendant is the fifth daughter.

5. Before the Mother’s death, she maintained a number of fixed deposits in accounts in the joint names of the Mother and the Deceased at the Bank of China (“BOC”) and Hang Seng Bank (“HSB”). The mandates of those accounts allowed each account holder to withdraw money from the accounts.

6. The Mother passed away in the United States (“USA”) on 24^th April 2002. In the period between 4^th June 2002 and 6^th August 2002, all the money[1] in the joint accounts of the Mother and the Deceased was transferred to the BOC account and the HSB account, which were apparently opened for the purpose of the transfers.

7. In or about March 2006, the Deceased suffered his third stroke. Subsequent to this, in the period between March and June 2006, the Defendant transferred all money in the BOC account and HSB account to her own bank account.

8. The Deceased passed away on 8^th June 2008.

The Plaintiffs’ case

9. It is the Plaintiffs’ case that all the money in the joint accounts of the Mother and the Deceased belonged to the Deceased upon the Mother’s death by virtue of the principle of survivorship. This also corresponds to the Mother’s intention expressed in a Chinese note (“the Chinese Note”) which was drafted by the Defendant in accordance with the Mother’s instructions.

10. On 29^th April 2002, without telling the Deceased about the Mother’s death and the contents of the Chinese Note, the Defendant asked the Deceased to transfer all the money in the joint accounts with the Mother to the newly-opened BOC account and HSB account purportedly on the Mother’s instructions. The Deceased gave instructions to the bank on that day to transfer the money to the HSB account upon the maturity of fixed deposits.

11. According to the 1^st Plaintiff, the Defendant had assured the Deceased and 1^st Plaintiff on the same day that all the money held in the BOC account and HSB account was solely belonged to the Deceased and the Defendant was named as a joint account holder simply for administrative convenience and the benefit of the Deceased. The Defendant acknowledged that she was a mere trustee holding the money for the Deceased.

12. In 2008 when the 1^st Plaintiff was applying for probate for administration of the Deceased’s estate, she learnt that the Defendant had transferred all the money in the BOC account and HSB account to her own account as early as in 2006. As the transfers were unauthorized, the Defendant was in breach of trust to the Deceased.

13. Alternatively, it is the Plaintiffs’ case that the money was transferred to the BOC account and HSB account under the Deceased’s mistaken belief that the transfers were pursuant to the Mother’s instructions. Further or alternatively, the money was transferred under the undue influence exerted on the Deceased by the Defendant.

The Defendant’s case

14. The Defendant maintained that the true intention of the Mother was that the money in the joint accounts of the Mother and the Deceased belonged to the Deceased in his lifetime but the ownership will pass to the Defendant upon the Deceased’s death.

15. Although the Defendant told the Deceased about the Mother’s death only on 1^st May 2002, she had already shown the Deceased the Chinese Note[2] before they went to open the HSB account on 29^th April 2002.

16. The transfers of the money to the BOC account were made separately in June and July 2002, after the Deceased’s return from the United States to attend the funeral of the Mother. The transfers had nothing to do with the Deceased’s ignorance of the Mother’s death.

17. The Defendant had never made the alleged assurance to the 1^st Plaintiff or the Deceased. She did not hold the money on trust for the Deceased.

18. The transfers of the money to the BOC account and HSB account were in accordance with the Deceased’s wish and he intended that the money in the accounts to be belonged to the Defendant upon his death. It was an inter vivos gift to the Defendant by the Deceased.

Issues

19. The issues of the present case are purely factual.

20. The main issue is the intention of the Deceased in transferring all money in the joint accounts with the Mother to the BOC account and HSB account. Was it a trust created for the benefit of the Deceased? Or was it an inter vivo gift from the Deceased to the Defendant?

21. Regarding whether the money was transferred under any mistake and/or undue influence, as I will explain later in this judgment, these complaints are more speculative than substantive in view of the available evidence before me.

Factual background

22. The following factual background is not much in dispute.

23. The Father was a respectable professor in Mainland China. He passed away in Guangzhou in1984.

24. The Mother owned a number of landed properties in Mainland China and Hong Kong. In or about 1965, the Mother purchased three properties situated at the 5^th, 6^th and 7^th floor of 171 Sai Yeung Choi Street, Mong Kok. (“the Property”) At that time, the 5^th floor of the Property (“5^thfloor”) was occupied by the family[3] consisting of the Mother, the Deceased, the 3^rd sister (“Hong Wah”), the 5^th brother (“Francis”) and the 6^thsister (“Koon Wah”). The 6^th and 7^th floors of the Property were rented out.

25. In 1981, the eldest brother (“Foo Chung”) obtained a “one-way permit” to Hong Kong. He and his family occupied the 6^th floor of the Property (“6^th floor”). Foo Chung passed away in 2001 leaving his widow (“Ms Lui”) and four children. Ms Lui and her children continued occupying the 6^th floor after Foo Chung’s death.

26. Hon Wah moved out from the 5^th floor in 1966. Francis and Koon Wah went to the USA to further their studies in 1970 and 1974. Thereafter, it left only the Mother and the Deceased living together in the 5^thfloor until 2000 when the Mother spent most of her time in the USA[4] since then.

27. In early 1991, the Deceased married the 1^stPlaintiff in Guangzhou. They gave birth to 2 daughters and a son respectively in 1992, 1994 and 1997. Until 2004, the 1^st Plaintiff and the three children were living in Guangzhou while the Deceased was living in Hong Kong in the 5^thfloor.

28. The Defendant and her family immigrated to the USA in 1994. When the Mother spent her time in the USA, she would stay at the Defendant’s home.

29. In or about 1995, the Deceased suffered his first stroke.

30. On or about 24 January 2002, the Defendant recorded in her own writings on the Chinese Note the Mother’s wish for disposal of her money. The Mother and the Defendant signed on the Chinese Note.

31. The Mother died on 24^th April 2002 in the USA. On or about 25^thApril 2002, the Defendant telephoned the 1^st Plaintiff and informed her of the Mother’s death and asked the 1^st Plaintiff to go to Hong Kong. The Defendant asked the 1^st Plaintiff not to tell the Deceased about the Mother’s death before the Defendant arrived.

32. On 29 April 2002, the Defendant and the Deceased went together to the bank to open the HSB account.

33. In the evening of 1 May 2002, Professor Chan, an old friend of the Leung family, told the Deceased the death of the Mother, in the presence of the Defendant and the 1^st Plaintiff.

34. In or about May 2002, the Defendant went together with the Deceased to Hong Kong Bank to open the safe deposit box of the Mother, which was in the joint name of the Mother and the Deceased. The Defendant put the documents contained in the safe deposit box into a sport bag (“the Sport Bag”) she brought along with her. The Sport Bag was then locked and put inside a wardrobe in the Defendant’s room in the 5^th floor.

35. On 4 May 2002, the Deceased, the 1^st Plaintiff and the Defendant went to the USA to arrange and attend the Mother’s funeral.

36. During the time between June and July 2002, the Deceased and the Defendant went to the banks to transfer the money in the joint accounts of the Mother and the Deceased into the BOC account and HSB account.

37. In or about 2002, the Defendant applied for a letter of administration of the Mother’s estate. In support of her application, the Defendant filed an affirmation listing out the beneficiaries to the Mother’s estate but Ms Lui and her children were left out from the list.

38. On or about April 2003, Ms Lui instructed solicitors to file and register a caveat at the probate registry against the Defendant’s probate application.

39. The Deceased suffered his second stroke in June 2004. The 1^st Plaintiff and the Deceased’s children came to Hong Kong to live with him thereafter.

40. In or about March 2006, the Deceased suffered his third stroke. Thereafter, the Deceased was unable to speak or write. Francis told the 1^st Plaintiff to lock the wardrobe where the Sport Bag was placed.

41. Francis came to Hong Kong in May 2006.

42. On 19 October 2006, the Sport Bag was opened on the 5^thfloor in the presence of all interested parties. In the Sport Bag, amongst other documents, the Mother’s will made in 1976 (“the 1976 Will”) was discovered. All the documents the parties considered important were put back to the Sport Bag and taken away by Mr Lo[5], the then solicitors for Francis and the 1^st Plaintiff.

43. The Sport Bag was opened again on 21 October 2006 at the office of Mr Lo. Copies of all the documents in the Sport Bag were provided to all parties.

44. On 7 December 2007, the Defendant’s application for a probate of the Mother’s estate was dismissed.

45. The Deceased died intestate on 8 June 2008.

Evidence

46. In this trial, among the siblings, Francis was on the side of the Plaintiffs while Hon Wah and Koon Wah were on the side of the Defendant. They all gave evidence.

47. Apart from the Plaintiffs, Madam Leung King Ying (“Madam Leung”), a cousin of the siblings, also gave evidence for the Plaintiffs. The Defendant’s husband (“Mr So”) gave evidence for the Defendant.

2^nd Plaintiff’s evidence

48. The 2^nd Plaintiff, Madam Ng, had been a very good friend of the Mother for over 30 years. She was 86 years old at the time of the trial and also a witness to the Mother’s will made in1998. Similar to the situation of the Mother, Madam Ng has children migrated to the United States and Hong Kong. During the Mother’s lifetime, they often travelled together between the Mainland, Hong Kong and the USA. As such, Madam Ng has been very familiar with the matters of the Mother’s family.

49. According to Madam Ng, the Mother concerned the Deceased most among her children as the Deceased was less self-sufficient when compared with his siblings. He could hardly secure any stable job. In or about 1990, the Mother got worried that the Deceased could not form his own family. On her initiative and through the help of her relatives in the village, the Deceased was arranged to meet with the 1^st Plaintiff. They then got married in 1991.

50. The 1^st Plaintiff and their three children were all born in Guangzhou. Although they have all successfully applied for a “one-way permit” to entitle them to live in Hong Kong permanently, they continued staying in Guangzhou due to the objection of the Defendant. In Guangzhou, the 1^st Plaintiff had to take care of the three children and also mend clothes for others to earn a humble income to help support their livings.

51. The Mother had told Madam Ng that the Mother always felt sorry about the 1^st Plaintiff having to live a tough life in Guangzhou by herself. The Mother said she had set aside about one million Hong Kong dollars for the Deceased and his family so that they do not have to worry about their children’s educational expenses in the future.

52. On 21 October 1998, Madam Ng witnessed a will (“the 1998 Will”) of the Mother. According to the 1998 Will, the 5^th floor is to be succeeded by Foo Chung and his two sons; the 6^th floor is to be succeeded by the Deceased; the 7^th floor is to be succeeded by Francis; a property in To Kwa Wan is to be succeeded by Hong Wah, the Defendant and Koon Wah; and a property in Sham Shui Po is to be succeeded by Foo Chung, the Deceased, Francis, Hong Wah, the Defendant and Koon Wah.

53. In or about 2006, when Madam Ng was in the USA, Koon Wah came to her and told her that the Defendant had taken away all the money left by the Mother to the Deceased. She told her that the Deceased suffered his third stroke and the Deceased’s family needed help. Koon Wah had told Francis about the Deceased’s family’s situation.

54. After the Deceased’s death, the 1^st Plaintiff invited Madam Ng to be a co-administratrix of the estate of the Deceased.

Francis’s evidence

55. Francis is residing in Chicago, the USA. He is a Professor of Computer Science.

56. At the time of the Mother’s purchase of the Property, the Mother signed three Declaration of Trusts in respect of the 5^th floor, 6^thfloor and 7^th floor to hold the respective properties for the benefit of Foo Chung, the Deceased and Francis.

57. The 7^th floor was all along rented out to generate incomes. Francis had promised the Mother to give the rental incomes of the 7^th floor to the Deceased’s family. In 2003, the Defendant convinced Francis to allow Hong Wah to occupy a room in the 7^th floor. They promised Francis that the rental incomes of the 7^th floor will be provided to the Deceased.

58. In or about January or February 2006, Koon Wah telephoned Francis from Hong Kong and told him that Hong Wah did not pay the rental incomes of the 7^th floor to the Deceased for long and that the Defendant had hidden the documents from the Mother’s safe deposit box in a locked sport bag. Francis was very concerned. He telephoned the Defendant and Hong Wah many times to ask for an explanation but they all ended up in quarrels.

59. Francis had also telephoned the Deceased to understand what happened but the Deceased said he did not want to trouble Francis on the matters and said he would take care of it by himself. Francis decided to go to Hong Kong to deal with the matters in the coming summer holiday.

60. Unfortunately, in or about March 2006, the Deceased suffered his third stroke. The 1^st Plaintiff told Francis on the phone that the Deceased suffered his third stroke right after he had a telephone conversation with the Defendant asking the Defendant to pay him back his money. The 1^st Plaintiff told Francis that the Defendant had taken away the Deceased’s money in the joint accounts with the Mother. Francis thought there might be important documents inside the Sport Bag and asked the 1^st Plaintiff to lock the wardrobe in the room of the 5^thfloor where the Sport Bag was placed.

61. Francis went to Hong Kong immediately after the end of school term in May 2006. He went to see the Deceased and the Deceased burst into tears when seeing him. Francis asked the Deceased if it was the case that he suffered stroke right after he had a telephone conversation with the Defendant asking her to pay him back his money. The Deceased nodded his head. He asked whether the Defendant had taken away the money left by the Mother to him, the Deceased nodded vigorously. He asked whether the amount was at least 1 million dollars, the Deceased nodded. He asked whether it was 1.1 million, the Deceased shook his head. Francis tried other amounts and the Deceased nodded vigorously again when he asked whether it was 1.7 million.

62. As Francis thought that the Mother might have made a will and suspected that it might be inside the Sport Bag, he requested the Defendant to open the Sport Bag but, despite his numerous requests, the Defendant did not agree.

63. Francis had also met the Defendant in person several times. He questioned the Defendant about the Deceased’s money and the Defendant had once agreed to give the money back or set up a foundation for the education of the Deceased’s children. However, in the end the Defendant refused to return the money saying that the 1^st Plaintiff has no right to succeed the estate of the Leung family as she was not one of them. Francis and the 1^st Plaintiff then decided to instruct solicitors to protect their interests.

64. As agreed by Francis, the 1^st Plaintiff, the Defendant and Ms Lui, the Sport Bag was finally opened at the 5^th floor on 19 October 2006 in the presence of Francis, the 1^st Plaintiff, Ms Lui and her son, the Defendant and Mr So, Hong Wah, and the parties’ solicitors and witnesses including Professor Chan. Inside the Sport Bag, the 1976 Will was found together with other important documents including the title deeds of the Mother’s properties and the relevant Declaration of Trusts.

65. All parties agreed that the Sport Bag and the important documents inside be brought back by Mr Lo to his office. Copies of all the documents were provided to all parties on 21 October 2006 at Mr Lo’s office.

66. It was not until 2009 that Francis discovered that amongst the documents found inside the Sport Bag there existed the Chinese Note which was signed by the Mother and the Defendant. In particular, paragraph 3 of the Chinese Note stated that :

“Money in the account under [the Mother’s] and [the Deceased’s] names be succeeded by [the Deceased], out of which HK$330,000 be changed to be deposited into the account under the names of [the Deceased] and [the Defendant]. HK$230,000 of the money in the account under [the Mother’s] and [the Deceased’s] names be succeeded by [the Deceased] and [the1^st Plaintiff] together and shall be deposited into the account under the names of [the Deceased] and [the 1^st Plaintiff]. The remaining amount of the money in the account under [the Mother’s] and [the Deceased’s] names shall be deposited into the account under the names of [the Deceased] and [the Defendant], to be succeeded by [the Deceased].”[6]

1^st Plaintiff’s evidence

67. The 1^st Plaintiff married the Deceased on 25 January 1991. In 2000 she obtained the “One-way Permit” to go to Hong Kong but due to the objection of the Defendant, she continued staying in Guangzhou with her children.

68. During the time when the 1^st Plaintiff and her children were living in Guangzhou, the Deceased from time to time came to Guangzhou to see them. The Mother and Madam Ng also visited them from time to time. As Madam Ng’s house in Guangzhou was very near to where the 1^st Plaintiff lived, Madam Ng visited them quite often.

69. In or about 1995, the Deceased suffered his first stroke. Thereafter, the Deceased had become more financially dependent on the Mother. The Mother had announced times and again to the Deceased’s brother and sisters that she had set aside a large sum of money for the Deceased’s future livings, and that there was over one million dollars in the joint accounts of the Mother and the Deceased.

70. Besides, Francis has agreed to provide the rental incomes of the 7^th floor to the Deceased as his living expenses. However, since after 2004, Hong Wah ceased paying the Deceased the rental incomes generated by the 7^th floor.

71. On 25 April 2002, the 1^st Plaintiff received a telephone call from the Defendant who was then in the USA. The Defendant told her that the Mother passed away in the USA and asked her to go to Hong Kong immediately. The Defendant told the 1^st Plaintiff not to tell anybody about the news especially the Deceased. The Defendant said she worried that the Deceased would be unable to cope with it if he learnt about this. The 1^st Plaintiff agreed.

72. The 1^st Plaintiff arrived at Hong Kong on 27 April 2002 and the Defendant arrived on 28 April. Both of them stayed at the 5^th floor with the Deceased.

73. On or about 29 April 2002, the 1^st Plaintiff, the Defendant and the Deceased went together in the morning to a restaurant for dim sum. Afterwards the Defendant told the 1^st Plaintiff to go to the market to buy food for dinner and said she would accompany the Deceased home. Instead, as she was told by the Deceased that night, the Defendant brought the Deceased to the BOC and HSB to transfer all the money in the joint accounts of the Mother and the Deceased to the joint accounts of the Deceased and the Defendant. The Deceased said the Defendant told him that that was the instructions of the Mother. The 1^st Plaintiff was very surprised as she heard the Mother said the money in the accounts was for her and the Deceased. The Deceased then questioned the Defendant about this and the Defendant assured them that :

(a)   Notwithstanding that the accounts are joint accounts of the Defendant and the Deceased, all the money therein belong to the Deceased. The Defendant will not take any money;
(b)   The Defendant merely wants to help the Deceased manage the accounts; and
(c)   The Defendant merely holds the money on trust for the Deceased.

74. The Defendant kept all the bank documents including the deposit slips of the fixed deposits accounts. The 1^st Plaintiff and the Deceased trusted the Defendant and thought the Defendant will give them the deposit slips should they find it necessary to use the money in the accounts. They thought that they must produce the deposit slips to the bank if they want to deal with the money in the accounts.

75. On 1 May 2002, the 1^st Plaintiff, the Deceased and the Defendant went to the Hong Kong Bank to open the safe deposit box of the Mother. There were many documents contained in the safe deposit box. Among the documents, the 1^st Plaintiff noticed an envelope with her name written on it. Inside the envelope there were 3 pay-in-slips to 3 bank accounts[7] of the BOC. The total deposited amount was HK$305,000.

76. The 1^st Plaintiff believed that this HK$305,000 should be the HK$300,000 which the Mother had previously mentioned she had set aside for the 1^st Plaintiff.

77. The Defendant then put all the documents into the Sport Bag. When they were back to the 5^th floor the Defendant took the Sport Bag inside her room. At that time the 1^st Plaintiff and the Deceased believed that all the arrangements were the idea of the Mother and the Defendant would help the Deceased to take care of his financial affairs properly.

78. In or about June 2004, the Deceased suffered his second stroke and was hospitalized for more than a month. He was unable to walk properly without aid. As a result, the Defendant no longer objected to the 1^stPlaintiff and the children staying together with the Deceased. In July 2004, the 1^st Plaintiff and the children moved into the 5^th floor.

79. Since their moving in to the 5^th floor, the Defendant came to Hong Kong every 6 months and each time she stayed at the 5^th floor. The 1^stPlaintiff had seen the Deceased asking the Defendant many times to give him the deposit slips of the bank accounts but the Defendant did not accede to his requests, giving all sort of excuses. The Defendant promised to provide photocopies of the deposit slips to the Deceased but in the end she did not do it. Both the Deceased and the 1^st Plaintiff thought that they need to produce the deposit slips to the banks if they want to deal with the bank accounts.

80. In or about January or February 2006, Koon Wah came to Hong Kong and visited the Deceased. Koon Wah noticed that the Deceased’s family was not living in a good condition. She asked the 1^st Plaintiff to let her see the Deceased’s bank statements so that she could teach the 1^st Plaintiff how to manage the money left to the Deceased by the Mother. The 1^st Plaintiff then told Koon Wah about the Defendant taking the Deceased to transfer money and putting the Mother’s documents into the Sport Bag. Koon Wah was very surprised and told the 1^st Plaintiff that the Mother had prepared to leave over a million dollars to the Deceased for his livings. Subsequently, Koon Wah telephoned Francis and told him about what the Defendant did. Koon Wah also told Madam Ng when she came back to the USA.

81. On or about 1 March 2006, the Deceased told the 1^st Plaintiff that he scolded the Defendant in a telephone conversation with the Defendant for cheating his money. The Deceased told the 1^st Plaintiff that the Defendant said it was the 1^st Plaintiff who has withheld the deposit slips from the Deceased. This made the Deceased very angry and caused him to become very suspicious about the Defendant having misappropriated his money. On the same day, the Deceased suffered his third stroke. In a subsequent telephone conversation with Francis, the 1^st Plaintiff told Francis about the above incident. Francis told the 1^st Plaintiff to lock the wardrobe where the Sport Bag was placed.

82. In or about the end of May 2006, Francis came to see the Deceased at the 5^th floor. The 1^st Plaintiff saw Francis asked the Deceased about his money and the Deceased’s responded to him as described in Francis’s evidence under paragraph 63 above.

83. The 1^st Plaintiff gave similar evidence to Francis’s evidence on how the Sport Bag was opened and the 1976 Will was discovered.

84. In or about November 2006, the Defendant and Hong Wah instituted legal proceedings in Guangzhou against the 1^st Plaintiff accusing her of misappropriating the rental incomes of a 5-storey building in Guangzhou (“the Guangzhou Property”) which was succeeded jointly by the Leung siblings from the Mother. It is the 1^st Plaintiff’s evidence that the Defendant and Hong Wah had falsely commenced the proceedings in the name of the Deceased, Francis and Koon Wah without their authorities. On 14 December 2006, Francis and Koon Wah signed a declaration stating that the Defendant had without their authority instituted legal proceedings in their names and used the Guangzhou Property as security for the litigation. They also declared that the rental incomes of the Guangzhou Property have been properly accounted for by the 1^st Plaintiff. The Deceased also signed an “appointment letter” appointing the 1^st Plaintiff to act as his agent to deal with the Guangzhou Property on his behalf and at the same time revoked the authority he has previously given to the Defendant to deal with the same.

85. Since April 2006, the Defendant had retained all rental incomes generated from the Guangzhou Property. The 1^st Plaintiff claimed on behalf of the Deceased, Francis and Koon Wah against the Defendant for the rent she received at the Guangzhou court.

86. On or about 6 January 2007, the 1^st Plaintiff and Ms Lui, accompanied by a solicitor, went to the police station to report that the Defendant had given false information in her affirmation for the application for a probate to administer the Mother’s estate.

87. After the Deceased passed away, in the course of her application for a probate to administer the Deceased’s estate, the 1^st Plaintiff discovered, through her solicitors, that the money transferred to the BOC account and the HSB account had all been transferred away by the Defendant during the period between March and June 2006.

Madam Leung’s evidence

88. Madam Leung said the Mother treated her like her own daughter. She knew that the Mother loved the Deceased most and she always worried about him being unable to support himself and his family. The Mother told Madam Leung that she had set aside a sum of money for the Deceased to use it for his children’s education expenses.

89. In or about 2000, the Mother introduced the 1^st Plaintiff to Madam Leung in Hong Kong. She had never heard the Mother saying anything bad about the 1^st Plaintiff.

The Defendant’s evidence

90. At the time of the trial the Defendant was 66 years old. Among her siblings, she was the one who took care of the parents most. In Guangzhou, she took care of the Father; and in the USA, she took care of the Mother.

91. The Guangzhou Property was originally purchased by the Defendant’s grandfather in 1947. It was however confiscated by the government in 1952. In 1982, the Father started to campaign to the government to return the Guangzhou Property to him but at the time when the Father died in 1984, it was still in vain.

92. In the period between 1984 and 1987, the Defendant had been vigilant in pursuing the Father’s quest. With her hard work the Guangzhou Property was finally returned to the Mother in October 1987. At that time it was a 4-storey building. In 1996, the Defendant had successfully sought permissions to build one more storey onto the building.

93. Under the Father’s will, there is a paragraph saying that, as the Defendant had taken care of the Father for over 20 years, the Father’s savings in his bank accounts in Guangzhou and Hong Kong shall be succeeded by the Defendant. At the time when the Father died the Defendant was still living in Guangzhou, the money succeeded by the Defendant from the Father had to be deposited into the joint accounts of the Mother and the Deceased at Hang Seng Bank. The amounts of the deposits were respectively USD18,804.88 and USD7,024.02.

94. In 2001, the Mother told Hong Wah that her money in the joint account with the Deceased shall be transferred to the joint accounts of the Deceased and the Defendant. The money shall be belonged to the Deceased when he is alive but the money will be belonged to the Defendant if the Deceased died.

95. On 24 January 2002, in a hospital in the USA where the Mother was admitted to, the Defendant recorded the Mother’s wish on the Chinese Note. The Mother mentioned two deposits in the Chinese Note. The amount of USD36,943.61 is reserved to pay for the funeral expenses of the Mother and the amount of USD14,076.35 is to be succeeded together by the Defendant and Hong Wah.

96. The Defendant asked the Mother if there is any money in the US dollars accounts left to the Deceased and the Mother answered “no”.

97. In relation to the money in the Hong Kong dollars accounts, it was the intention of the Mother that the money is to be deposited to the joint accounts of the Defendant and the Deceased. The money shall be belonged to the Deceased when he is alive but it will be belonged to the Defendant if the Deceased died. The Mother also asked the Defendant to take out the money once the health of the deceased deteriorated. The Mother said she had the money only because of the Defendant’s effort to take back the Guangzhou Property for the family. She wanted the Defendant to have the money.

98. The reason why the Mother had such an arrangement was that the Mother did not like and did not trust the 1^st Plaintiff. The 1^st Plaintiff had misappropriated the rent she received on behalf of the family for the family’s properties in the Mainland. The Mother had asked the 1^st Plaintiff to return the money but the 1^st Plaintiff refused. Therefore, the Mother did not want to leave any money to the 1^st Plaintiff. The Mother had also warned the Deceased not to trust the 1^st Plaintiff on money matters and as a result the Deceased did not tell the 1^st Plaintiff about the money in the joint accounts and did not use any of the money for the 1^st Plaintiff in his life.

99. Under the Chinese Note, the Mother had left two hundred odd thousand dollars for the Deceased and his children and the money is to be held jointly by the Deceased and the 1^st Plaintiff. However, the Deceased did not want the 1^st Plaintiff to know about this. He wanted to give the money to the Defendant.

100. The Mother died on 24 April 2002 but the Defendant and the other siblings agreed not to tell the Deceased about the Mother’s death immediately. They worried about the impact on the Deceased will be too great as the Deceased had the closest relationship with the Mother among all siblings. The Defendant decided to invite Professor Chan to tell the Deceased the sad news when the Deceased is accompanied by others.

101. On 29 April 2002, the Defendant went together with the Deceased to HSB to open a joint account. She had shown the Deceased the Chinese Note before that and the Deceased knew full well that the money in the Mother’s account belonged to the Defendant. However, as the fixed deposits had not matured yet, no transfer was done on that day. As the common intention was that the Defendant can withdraw money from the joint account anytime at her own will, it was mandated that either account holder can withdraw money from the account.

102. On 4 May 2002, they went back to the USA to attend the funeral of the Mother. The Defendant showed the Chinese Note to all siblings and told them the Mother’s intention.

103. In accordance with the Mother’s intention, in the period between June and July 2002, the Deceased brought the Defendant to the BOC and HSB to transfer money to the BOC account and HSB account. As all the money was originally fixed deposits, they have to wait until the different maturity dates to go for transfers. The money transferred to the BOC account was on 3 months’ fixed deposit and therefore, deposit slips of the account would be sent to the Deceased’s address in an interval of three months. There is no question of the Defendant keeping all deposit slips from the Deceased and the Deceased knew full well that he can withdraw money at any time in his own name.

104. According to the Defendant, the Deceased had told her many times that she should withdraw the money immediately if his condition of health got worse. The Deceased knew that the 1^st Plaintiff had misappropriated the rental incomes of the family and he felt very guilty about that. This was the reason why he did not use any money left to him by the Mother and decided to give all the money to the Defendant. The Deceased did not have to worry about his children’s livings as the 1^st Plaintiff had control of a lot of money from the rental incomes.

105. The Deceased suffered his third stroke on 1 March 2006. On that day the 1^st Plaintiff was out from home all day leaving the Deceased alone with one of the children. This caused the Deceased missed the golden time for treatment.

106. In or about mid-March 2006, the Defendant came to Hong Kong to look after the Deceased. The Deceased at that time had still a clear mind and he asked the Defendant to withdraw the money. In June 2006, the Defendant withdrew all the money from the accounts as she was told by the Deceased.

107. Regarding the documents retrieved from the Mother’s safe deposit box, she went to the bank together with the Deceased after the pronouncement of the Mother’s death by Professor Chan and before the departure to US for the funeral. She put the documents into the Sport Bag in order to bring the documents for inspection by solicitors. She and Hong Wah had looked at the documents at the solicitors’ office in the presence of a solicitor. However, they did not notice any will of the Mother. At the time when the Defendant applied for a probate to administer the Mother’s estate, she mistakenly believed that, as Foo Chung had predeceased the Mother, she did not have to mention Ms Lui and her children in the affirmation in support. She had later rectified the mistake by another affirmation.

108. Since after the 1^st Plaintiff came to settle down in Hong Kong in 2004, the Defendant and the Deceased had been asking the 1^st Plaintiff to account for the rental incomes she received. But the 1^st Plaintiff did not accede to their requests.

109. In 2005, the Deceased asked the Defendant to help him prepare a will and the Defendant recorded the Deceased’s wish in her personal notebook. However, the 1^st Plaintiff secretly read the Defendant’s notebook and photocopied the relevant pages. The 1^st Plaintiff then accused the Defendant of misappropriating the Deceased’s money before Koon Wah that triggered the unfortunate disputes among the family members.

Hong Wah’s evidence

110. Hong Wah is a retired principal of a primary school. She gave evidence that on or about 4 June 2002, the Deceased told her and the Defendant that should the Deceased encounter any misfortune, the Defendant must at once withdraw the nine hundred and twenty odd thousand dollars from the BOC account.

111. Hong Wah gave similar evidence as the Defendant in relation to the money in the HSB account. She said the 1^st Plaintiff had planned to snatch the money left by their ancestors from the Leung family.

112. Hong Wah said the Defendant contributed a lot to the Leung family. With her hard work the Defendant claimed back from the Chinese Government the Guangzhou Property. The Defendant also spent immense effort and vast amount of money in litigations to vacate the occupiers from the Guangzhou Property after it was returned. The Defendant even allowed the Deceased to use her own unit in the Guangzhou Property as his matrimonial home.

113. On the other hand, the 1^st Plaintiff enjoyed all benefits from the Leung family without any giving. The Mother treated her especially well but the 1^st Plaintiff did not listen to her.

114. Hong Wah basically corroborated the Defendant’s evidence without giving many particulars.

Koon Wah’s evidence

115. In her evidence, Koon Wah praised the Defendant as the person contributed most to the Leung family. Without the Defendant, the Leung family would not be successful in claiming back the Guangzhou Property and the Leung family would not have such amount of savings.

116. According to Koon Wah, on a day in 2006, at the 5^th floor she confronted the 1^st Plaintiff about her keeping of the rental incomes of the Guangzhou Property. The 1^st Plaintiff admitted to her that she had kept the money and that a relative taught her to do this. The 1^st Plaintiff asked Hong Wah not to disclose the name of the relative.

Mr So’s evidence

117. Mr So reiterated the 1^st Plaintiff’s misdeed of misappropriating the rental income of the Guangzhou Property. He said the 1^st Plaintiff was unwilling to go to Hong Kong to take care of the Mother and the Deceased until the Deceased suffered a stroke.

118. Mr So said the 1^st Plaintiff changed the lock of the 5^th floor to block away the Defendant from the Deceased. She also allowed her children to occupy the Defendant’s room in the 5^th floor. Moreover, the 1^st Plaintiff also gave instructions to the elderly home not to allow the Defendant to visit the Deceased when the Deceased was staying there.

Discussion

119. Having considered the evidence, I find Madam Ng, Francis and Madam Leung are honest and credible witnesses. On the contrary, I am not satisfied that the 1^st Plaintiff and the Defendant are honest witnesses. Regarding Hong Wah, Koon Wah and Mr So, I do not think they have told the whole truth to the court.

120. Madam Ng was an old friend of the Mother and has no personal interest whatsoever in the present proceedings or any other disputes between members of the Leung family. There is no reason to doubt her evidence, in particular, her evidence about the Mother’s feeling towards the 1^st Plaintiff and that the Mother had set aside more than a million dollars for the Deceased’s family.

121. The evidence of Madam Ng is consistent with the evidence of Madam Leung who has also no personal interest in the present proceedings.

122. The evidence of the Defendant and Hong Wah about the relationship between the Mother and the 1^st Plaintiff is contradictory to the evidence of Madam Ng and Madam Leung.

123. Francis impressed me as a forthcoming witness who always gives straight forward answers in the witness box. He has no direct interest in the subject matter of the present proceedings. Although he has a dispute with the Defendant and Hong Wah about their occupation of the 7^th floor, I do not think this will lead him to furnish false evidence to the court.

124. I have no reason to believe Francis would fabricate the whole incident about his questioning of the Deceased as to whether the Defendant has taken his money and whether he suffered stroke after he had quarreled with the Defendant on the phone. It happened in May 2006 and according to the Defendant’s evidence[8], the Deceased had a clear mind in mid-March 2006. There is no reason to suggest any misunderstandings existed in the communications between Francis and the Deceased.

125. Although a medical report dated 22 May 2008 recorded that the Deceased was admitted to a hospital in May 2006 and was diagnosed to be suffering from dementia, that was the first record of the Deceased suffering from the decease and there is no evidence to suggest that a person started to be suffering from dementia would be incapable of communicating in a way as described by Francis.

126. The responses of the Deceased to Francis’s questions are wholly inconsistent with the Defendant’s evidence that the Deceased willingly gifted to her the money in the joint accounts and asked her to withdraw the money after he suffered from the third stroke.

127. Mr Kwong, counsel for the Defendant, queried the credibility of Francis by saying that he did not disclose anywhere before his oral testimony he has withheld an investment sum of USD80,000 from the Deceased. In my view, there was simply too little information before the court to draw any conclusion on this matter against Francis. I do not think it is sufficient to cast doubt on Francis’s evidence on the whole.

128. On the other hand, many aspects of the Defendant’s evidence are inherently improbable.

129. First of all, as submitted by Ms Ling, counsel for the Plaintiffs, it would be very unusual that the Deceased would give away all his money to the Defendant instead of saving the money for the benefits of his three small children, knowing that the Defendant was herself not without means.

130. Secondly, the whole idea that the money in the BOC and HSB accounts belonged to the Deceased when he is alive but belonged to the Defendant after the Deceased death can make little sense. With such an arrangement, it would be entirely up to the Deceased whether to leave any money to the Defendant by not using up or giving away all the money in his life time, which he would be perfectly entitled to do. There would be no safeguard of any money left to the Defendant which was inconsistent with the Defendant’s evidence that the Mother wanted the Defendant to have the money.

131. Besides, such an arrangement does not conform to the plain meaning of the Mother’s intention recorded in the Chinese Note that the money be “succeeded” by the Deceased. It was not mentioned anywhere in the Chinese Note that the money was to be “succeeded” by the Defendant. The Defendant’s explanation in her oral evidence that the Chinese Note does not record accurately the Mother’s wish is simply incredible in that it was herself who heard directly from the Mother and written it down on the Chinese Note.

132. The Defendant changed her evidence in cross-examination to a new proposition that both the Mother and the Deceased intended that the money belonged jointly to the Defendant and the Deceased. Quite apart from it being a new proposition coming up late without explanation, it is still inconsistent with what was written on the Chinese Note.

133. Thirdly, the Defendant’s explanation as to why she has to transfer the money out from the joint accounts to her own account is unconvincing. There is no reason why the Deceased would tell the Defendant to withdraw the money if his condition of health gone worse. The 1^st Plaintiff was not a signatory to the BOC and HSB accounts and she could do nothing about the money. If the Deceased’s distrust against the 1^st Plaintiff was to such an extent that the 1^st Plaintiff would force him in an inappropriate way to take out the money for her, and the Deceased really had the intention to gift the money to the Defendant, there is no reason why the Deceased would not simply ask the Defendant to transfer all the money to herself right away but to wait until his health gone worse.

134. As submitted by Ms Ling, the Defendant had at many times changed her evidence or even her case to try to explain away inconsistencies and contemporaneous documents. Examples include:

(a)   Her original case in her Defence was that she denied going to the banks with the Deceased on 29 April 2002 and requested the Plaintiffs to produce proof. However, upon seeing the HSB account application form dated the same date with her signature on it, she changed her case to having gone to the HSB with the Deceased on 29 April 2002.
(b)   Her original case in her Defence was that she did notgo to the banks to transfer the money to the BOC and HSB accounts prior to telling the Deceased about the Mother’s death. However, upon seeing the said HSB account application form she changed her case.
(c)   In relation to the Mother’s probate, the Defendant’s original explanation in her witness statement as to excluding Ms Lui and her children was that she thought she did not have to mention them. However, in order to explain away her own notes on being advised by lawyers that Ms Lui and her children had an interest in the Mother’s estate, she changed her evidence and blamed it on another lawyer[9] in telling her that they did not have any interest, which is stated nowhere in her witness statement.

135. As submitted by Ms Ling, there are many other aspects in the Defendant’s evidence which are unclear, unbelievable, unreliable and/or illogical. Examples include:

(a)   She said that despite the Mother intended that one of the Mother’s properties in Hong Kong[10] belong to her solely but, for the sake of showing the Mother that the siblings had good relationship with each others, she put down in the Chinese Note that the property was to be inherited by the siblings jointly.
(b)   She said the 1^st Plaintiff refused to come to Hong Kong because she did not want to take care of the Mother and the Deceased. This is inconsistent with the fact that the 1^st Plaintiff came to Hong Kong immediately after the Deceased had his second stroke. The Defendant admitted that one of the reasons why the 1^stPlaintiff moved to Hong Kong was because of the Deceased’s illness.
(c)   She can hear the Deceased crying at the 5^th floor despite the fact that she was then at the 7^th floor.
(d)   Her evidence in cross-examination, which appears nowhere in her witness statement, that she went to HSB together with the Deceased to withdraw money for the Mother’s funeral on 29 April 2002, despite that she was hiding from the Deceased about the Mother’s death at that time.
(e)   Her evidence that she was not jealous of her brothers even though the Mother favoured her sons more than her daughters was flatly contradicted with the letter she wrote to, inter alia, the Mother and the Deceased, in which she complained about the same.

136. In my view, the Defendant is not an honest witness and her evidence shall not be relied upon.

137. Regarding the 1^st Plaintiff, there are certain areas in her evidence which I am uncomfortable with that made me reluctant to rely on her evidence completely.

138. As submitted by Mr Kwong, the 1^st Plaintiff admitted in court for the first time that she had secretly photocopied the Defendant’s notebook. This piece of document is relevant to the present proceedings and should have been disclosed much earlier. There is no reason to explain the late disclosure. In cross-examination, the 1^st Plaintiff initially said that she photocopied the notebook out of curiosity but later admitted that that was because she thought it may be relevant to the arrangement of her husband’s estate. Besides, no explanation was given by the 1^st Plaintiff as to why she did not ask the Deceased about the matters recorded on the notebook.

139. It was the 1^st Plaintiff’s evidence that the visit to the Hong Kong Bank to open the safe deposit box was on the same day as Professor Chan informed the Deceased of the Mother’s death. However, 1 May 2002, the day on which the Deceased was told the sad news, was a public holiday in Hong Kong and all banks were not open on that day. Besides, the description of how she copied the account numbers of the 3 bank deposit slips in split seconds is simply incredible.

140. I am not satisfied that the 1^st Plaintiff is an honest witness. Her evidence cannot be relied on alone without other corroborative evidence.

141. The alleged assurance given by the Defendant on 29 April 2002 can only be proved by relying on the 1^st Plaintiff’s evidence alone. I am not satisfied that it did happen. In any case, the suggestion that the Defendant would assure that she was holding the money on trust is incredible in that it would be improbable that the Defendant or any of them had a proper understanding of the concept of a trust relation in law.

142. The evidence of Hong Wah and Koon Wah as set out in their witness statements is vague and lack of particulars. There are also inconsistencies in their witness statements with their oral testimonies. I do not find their evidence useful for resolving the present dispute.

143. As regards Mr So’s evidence, it is more or less a repetition of the Defendant’s evidence and originated from the Defendant. I do not find his evidence of any assistance.

Conclusion

144. The followings are my findings of essential facts:

(a)   The Mother had a number of joint accounts with the Deceased in Hong Kong dollars and in US dollars in the BOC and the HSB;
(b)   The Mother intended to let the Deceased succeed all the money in their joint accounts out of the Mother’s affection to the Deceased, the 1^st Plaintiff and their children;
(c)   It was the intention of the Mother that the money in their joint accounts was jointly owned by the Mother and the Deceased in that all the money will be owned by the Deceased upon the Mother’s death by virtue of the principle of survivorship;
(d)   The Chinese Note recorded the true intention of the Mother;
(e)   As recorded in the Chinese Note, it was the intention of the Mother to open joint accounts in the names of the Deceased and the Defendant to manage the Deceased’s money. The purpose of naming the Defendant as one of the account holders was merely to allow the Defendant to assist the Deceased in managing his money;
(f)   The Deceased and the Defendant opened the BOC account and the HSB account to implement the Mother’s intention under para (e) above;
(g)   The Deceased and the Defendant transferred the money in the joint accounts of the Mother and the Deceased to the BOC account and the HSB account to implement the Mother’s intention under para (e) above;
(h)   The Defendant has no beneficial interest in the money transferred to the BOC and HSB accounts. As a signatory of the joint accounts, she held the money on trust for the Deceased;
(i)   The Deceased has at any time no intention to gift away any part of the money to the Defendant;
(j)   The relationship between the 1^st Plaintiff and the Defendant later turned sour, possibly because of their disputes in relation to the rental incomes of the Guangzhou Property and/or the Defendant’s administration of the Mother’s estate;
(k)   The Defendant was unwilling to share the assets of the Leung family to the 1^st Plaintiff, including the money of the Deceased in the BOC and HSB accounts;
(l)   Conflicts developed between the Deceased and the Defendant about the operations of the BOC and HSB accounts;
(m)   In order not to allow the 1^st Plaintiff to share or enjoy the Deceased’s money, the Defendant transferred all the money out from the BOC and HSB accounts into her own account without the authority from the Deceased.

145. Mr Kwong submitted that it is unbelievable that the Deceased and the 1^st Plaintiff would think that they need the deposit slips to enquire with or operate the BOC and HSB accounts. I agree with Mr Kwong to a certain extent but on balance, this defect on the part of the 1^st Plaintiff’s evidence does not on the whole affect my above factual findings based mainly on the evidence of Francis, Madam Ng, Madam Leung, and documentary evidence.

146. I make no findings on whether the 1^st Plaintiff had admitted to Koon Wah she was taught by a relative to keep away the rental incomes of the Guangzhou Property as it is in my view not material to the issues I need to resolve in this judgment.

147. In the circumstances, I find the Defendant in breach of an express trust in misappropriating the Deceased’s money in the BOC and HSB accounts. The Defendant is liable to return all the money to the estate of the Deceased.

148. As I mentioned previously in this judgment, there is no evidence to suggest that the Deceased transferred the money to the BOC and HSB accounts out of any mistakes or any undue influence from the Defendant. I am satisfied that the Defendant withheld the sad news of the Mother’s death from the Deceased only out of good will for the benefit of the Deceased and not otherwise.

Dispositions

149. I order that the Defendant shall give an account of what is due to the Deceased’s estate and pay to the Deceased’s estate the amounts found due on taking the account.

150. I make a costs order nisi that costs of the proceedings be to the Plaintiffs to be taxed if not agreed. This order nisi shall become absolute upon the expiry of 14 days from the date of this judgment.

151. I thank counsel for their able assistance.

(S. T. Poon)
Deputy High Court Judge
Court of First Instance

Ms Ebony Ling, instructed by Messrs Tai, Tang & Chong, for the 1^st and 2^nd Plaintiffs

Mr Hatten Kong, instructed by Messrs Peter W K Lo & Co, for the Defendant

[1] HK$928,666.30 to the BOC account and USD76,848.86 to the HSB account.

[2] On 27^th April 2002 on the Defendant’s return from the United States.

[3] The eldest brother and the Defendant were staying in Guangzhou and the 4^th sister passed away in 1960.

[4] The Mother was granted citizenship of the USA in 1986 but continued living in Hong Kong.

[5] Of Messrs Lo, Chan and Leung

[6]「我與扶樞名下存款交扶樞繼承，其中叁抬叁萬元港元改由扶樞、統華聯名存入銀行。本人與扶樞名下存款有弍抬叁萬元港元交扶樞與屏珍共同繼承，扶樞屏珍聯名存款。本人與扶樞聯名余下款項，交統華聯名存款，由扶樞繼承。」

[7] 031-351-5-339390-7 (in the joint names of the Mother and the Defendant), 031-351-5-379116-9 (in the joint names of the Mother and the Defendant) and 012-351-5-001568-6 (in the joint names of the Mother and the Deceased)

[8] Please refer to paragraph 107 above

[9] Mr Chow of Messrs B.C. Chow & Co

[10] The property in Sham Shui Po