HCA 2102/2017
[2021] HKCFI 3199
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2102 OF 2017
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| BETWEEN | | |
| | WONG KA YAN PATRICK (黃家仁) | Plaintiff |
and |
| CHEUNG KA YU NICOLE (張家瑜)
formerly known as CHEUNG LEE HUNG (張利紅) | Defendant |
_____________
Before: Hon Mimmie Chan J in Court
Dates of Hearing: 13, 14 and 16 July 2021
Date of Judgment: 27 October 2021
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J U D G M E N T
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Background
1. These are proceedings instituted by the Plaintiff (“Wong”), to seek recovery of a property in Wanchai (“Property”) from the Defendant (“Nicole”), with whom he claims to have developed a “casual affair” (in his words) for 6 years (Nicole claims it was for 9 years). Wong claims that the Property was purchased by him for $2.3 million in 2009, to facilitate his own comfortable luncheon visits and naps and to avoid dining out publicly, and that although the Property was registered in Nicole’s sole name, it had been agreed between them that the Property was to be held on trust for him, and that Nicole was not to have any beneficial interests. Wong further claims that Nicole was in breach of an oral agreement made between them in November 2016 (“11/16 Oral Agreement”), whereby Nicole was to use a cash transfer from Wong of $900,000 (“Cash Transfer”) to subscribe for shares in MTR Corporation Limited (“Shares”), which Shares were to be beneficially owned by Wong, were not to be sold by Nicole without his consent, and to be returned to Wong on his demand. Wong claims that in breach, Nicole had sold the Shares, and is liable to account to him for the $900,000 and the Shares sold, and to pay what is found due to him.
2. In gist, Nicole claims in her defence that she was the sole legal and beneficial owner of the Property, that there was no trust as alleged by Wong, that the Property was purchased “for and by” the Defendant, and that the Cash Transfer was paid to her pursuant to Wong’s promise to pay maintenance for the child that she bore Wong in 2016.
3. Other issues and claims hotly in dispute and argued in interlocutory proceedings have fallen away by the time of trial. Those related to Wong’s claims that Nicole had been harassing him and members of his family, between August 2016 and July 2017, and that she had converted two mobile telephones belonging to Wong. These have been settled at trial.
4. Despite the number of matters in dispute, what is agreed is that Wong met Nicole in September 2007. She was working as a masseuse in a massage parlor he frequented, and after several meetings, they began “an extra-marital affair” (as described by Wong). Shortly after their first encounter, Wong had asked Nicole to stop working and began to pay her a monthly cash allowance of $20,000. He rented a flat for her at Hennessy Court near his office, so that he could visit the flat during his lunch hour on week days, “to eat in private and to have a short rest”. Wong sought to emphasize the fact that since around 2007, he had developed symptoms of Parkinson’s disease, so that his motor abilities were affected and that by November 2007, it had become difficult and embarrassing for him to dine out in restaurants, as his body would sometimes seize and become stiff. He claimed therefore that he preferred to have lunches in private, and started to attend the flat which he had rented for Nicole in order to avoid lunching in public and causing embarrassment. Nicole’s previous residence, which Wong had visited before renting the unit at Hennessy Court for her, was too uncomfortable, and after renting Hennessy Court for her close to his office, he made it part of his daily routine to visit Nicole at her flat, before returning to his office to work in the afternoon.
5. Wong is 65 years old, married and has 3 adult children with his wife. He operates a business of real estate and property management. Wong emphasized in his evidence that as Nicole had always known him to be a married man, they had both understood that their affair was a casual one. Wong denied the assertion made by Nicole that they had cohabited for 10 years, and has sought to emphasize that he had never “undertaken any form of cohabitation” with Nicole for any period of time. He described his daily routine during the working week as regular and scheduled, from leaving home at 8 am, arriving at the office at 8:30 am, visiting his tea house in central at the same time each day, by the same route and on the same public light bus, and staying there until 10:30 am before returning to the office to work until lunchtime. He claims that it was around lunch that he would “sometimes” visit Nicole, to eat in private, and to have a short rest, before returning to the office to work, and then to return to his family home in the evening.
6. According to Wong, by 2009, he had been renting Hennessy Court for Nicole for a while, and he decided to purchase Flat Q, 12th floor, Block D, in Kwong Sang Building, 188 Wanchai Road, and let Nicole live there. In his witness statement, he explained that this was in consideration of the rental expenditure for Hennessy Court, and in order to ensure the convenience and comfort of his visits. He explained that it was preferable to incur the expenditure for the purchase of the Property, rather than to pay rent (which was about $4,000 per month on Nicole’s evidence), and as he had intended to retain beneficial interest in the Property, he envisaged that the value of the property would rise. Wong maintained that he had no intention to make a substantial gift of the Property (of $2.3 million in 2009) for such a casual affair.
7. On Wong’s case, he had funded the entire purchase price and expenses of the Property, and paid for the renovation of the Property in 2010. A mortgage loan was obtained in Nicole’s name for the acquisition of the Property, and from August/September 2009, Wong had increased Nicole’s monthly allowance from $20,000 to $30,000, in order to pay for the monthly mortgage installments. In August 2012, the mortgage loan was discharged in full, by Wong’s payment of $1.6 million.
8. Nicole was born on the Mainland, is now 46 years old, and came to Hong Kong on a one way permit in about 2006. On Nicole’s evidence, she had met Wong when she was working as a masseuse at a club in Wanchai, where Wong was a regular customer. They formed a close relationship, and only a month after their meeting, Wong asked her to stop working in the clubhouse, promising that he would take care of her for good. According to Nicole, they began what she had intended to be a long‑lasting relationship. Wong rented the Hennessy Court flat for her in November 2007, and from October 2007, he paid her living expenses of $20,000 per month. Her account of Wong’s daily visits and their activities in the late afternoon was in contrast to Wong’s description of his brief luncheon stop-overs.
9. On Nicole’s evidence, Wong had a fall in mid-2009, and had undergone a medical checkup. She recalled that it was on Wong’s birthday, on 3 August 2009, that he told her that he had developed symptoms of Parkinson’s disease and had been diagnosed as suffering from the disease. Wong did not dispute this in his testimony in Court. Nicole’s evidence was that Wong was worried and upset about his health, and she had assured him that she would take care of him and would not leave him despite his bad health.
10. As to Nicole’s case on the funding for the purchase of the Property, I accept the submissions made on behalf of Wong, that her evidence was evolving and difficult to pin down. In the Family Court proceedings, which Nicole had instituted against Wong in June 2017 for a declaration of paternity and for maintenance of her son (in FCMP 121/2017), she claimed that Wong had made a gift of the Property to her. In the pleadings and witness statements filed in these proceedings, Nicole alleged that the Property had been acquired with her own funds, from her own savings including savings from gifts of money received from Wong from time to time. It was claimed that Wong had given Nicole a sum of around $700,000 to $800,000 to “sponsor” her purchase. The Defence in this action also pleads (at paragraph 8 (f)) that Wong had paid to Nicole over $1 million by mid-2012, and that the mortgage loan on the Property was discharged with Nicole’s savings from her monthly maintenance and the pocket money received from Wong. Counsel for Wong highlighted the fact that in the course of her cross-examination, Nicole also acknowledged that she had herself suggested to Wong, before or at the time of purchase, that the Property should be held in their joint names, and that as she was on such good terms with Wong at the time, she had not thought of the issue of ownership of the Property at all.
11. The inconsistencies in Nicole’s evidence and the roving nature of her case will be taken into account, but the applicable principles of law have to be borne in mind.
Applicable legal principles
12. Wong’s pleaded claim is that whilst the Property was registered in the sole name of Nicole, it was their common intention and mutual understanding (“Mutual Understanding”) that Wong was to be the sole beneficial owner of the Property and that Nicole was not to have any beneficial interests therein. The Property was registered in the sole name of Nicole, in order to prevent Wong’s wife from finding out that the Property belongs to Wong beneficially. Wong claims that the Mutual Understanding was communicated orally, and made expressly clear to Nicole on at least 2 occasions prior to the acquisition of the Property: in the course of a telephone conversation at 11 am on 9 August 2009; and at around 5 pm on 11 August 2009, just before the provisional sale and purchase agreement for the Property was signed by Nicole. Wong claims that he acted to his detriment and altered his position by funding the entire purchase price for the Property.
13. The legal principles on common intention constructive trusts do not appear to be in dispute between the parties. They have been summarized in Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung[2019] HKCFI 2819, and conveniently set out at paragraph 23 of the judgment in Mok Wing Yi v Tam Shuk Wah Mary[2021] HKCFI 1630:
“(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 or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.
(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) 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 therefrom. See: Luo Xing Juan §38; Liu Wai Keung §46.
(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 words and conduct. See: Liu Wai Keung §47; Mo Ying §5.16.
(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. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.
(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. See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.”
Whether there was Mutual Understanding
14. Wong’s assertion of the oral agreement made in August 2009, or their Mutual Understanding, is that despite the Property being registered in the sole name of Nicole, it was to be owned solely and beneficially by Wong. The issue for determination by the Court is whether there was such an oral agreement made, and whether the Mutual Understanding can be inferred from the parties’ conduct.
15. Wong’s evidence as to the alleged oral agreement made in 2009 is scanty. In his witness statement, he only claimed that when he called Nicole on 9 August 2009 (2 days before the provisional sale and purchase agreement was signed) to ask her to view the Property, he had suggested, and Nicole had agreed, that he would provide the purchase price for the Property, the Property would be registered in her name, but “she can hold the Property for (him)”, and that this was in order not to let his wife detect his purchase.
16. On her part, Nicole’s case is that Wong had suggested subsidizing her purchase of the Property, that he had given her gifts of money including the $700,000 to $800,000 which were used to pay for the initial deposit of the purchase price, and that she had contributed to the balance with her own savings, which were from the monthly living expenses he had paid and the other pocket money he had given her. By the time of her testimony in court, Nicole had come to accept that apart from the initial deposit which was paid by Wong, the purchase money which she had said had come from her own savings in fact also consisted of the money which Wong had given her, and which she had saved up over the years. Her evidence was that she had received an average of $400,000 from Wong annually, as he would give her cash to buy things, and was also in a habit of making her gifts of cash when he successfully concluded a business deal. At one stage, Nicole had claimed that Wong had made a gift of the Property to her in order to maintain their relationship, after he had told her that he was suffering from Parkinson’s, as he was afraid that she might leave him. However, Nicole accepted in cross-examination that this was her own speculation.
17. Nicole denied throughout that Wong had made any mention of any trust arrangement relating to the Property. She was adamant in her testimony that Wong had told her, in August 2009, that he would purchase the Property for her, and that although she had suggested that the Property might be put into their joint names, Wong had said no, explaining that if his wife should discover that he had given the Property to Nicole, there would be problems as she might claim the Property and Nicole would be left with nothing. She maintained in her evidence that Wong had said to her, that what he gave to her would be hers (“我送俾 你嘅嘢就係你嘅”). Nicole explained that on hearing that, she had not insisted on the Property being registered in the joint names of Wong and herself.
18. Although I consider that Nicole had, in her witness statements and affirmations filed in these and the Family Court proceedings, given inconsistent evidence as to the funding for the purchase of the Property, in an attempt to give the impression that she had made her own financial contributions to the purchase price, her claim that Wong had purchased the Property for her is consistent. Her evidence as to the discussion between Wong and herself as to the holding of the Property is also credible. I bear in mind the context of this case, that Wong had asked Nicole very shortly after their encounter to leave her job, and had agreed to maintain her. Their relationship in 2009 was still close. Even on Wong’s own evidence, he had visited Nicole’s flat every weekday, for a comfortable stay over the lunch hour, and on Nicole’s version, in the early morning as well. It was an incentive for Wong to acquire the Property near to his office, as a preference to paying out monthly rent for the Hennessy Court flat, and (as Wong claims) coinciding with the time when his symptoms for Parkinson’s began to deteriorate and he required the need of a slightly bigger flat for his lunchtime visits.
19. A relevant consideration in this case is the fact that the purchase of the Property must have been within a very comfortable budget for Wong. He does not dispute Nicole’s evidence, that he held beneficial interests in 7 properties in Hong Kong, and 2 more properties outside Hong Kong. The property at Tai Hang Road, which was the matrimonial home for Wong and his wife, was worth over $88 million, and Wong holds 50% of the shares in the company which holds the property. Wong does not dispute that he had informed Nicole that his total assets were worth $800 million. I therefore have huge reservations as to the reliability of Wong’s assertion, that he would not make such a “substantial” gift of the Property for his allegedly casual affair. However casual as Wong purported the relationship to be, it did last from 2007 until 2016 (on the state of the evidence), although Wong’s case is that it had cooled off by 2013, and had completely broken down in mid-2016.
20. What is most telling is that of the properties in Hong Kong that Nicole has been able to find evidence as to Wong’s interests, all of them are held in the names of limited companies. The matrimonial home is held in the name of Happy Place Limited, of which Wong is a 50% shareholder and director. Happy Place Limited is also the registered owner of another property at Burrows Street. Five other properties in Hennessy Road, Taikoo Shing, and Russell Street are likewise registered in the names of four separate limited companies, of which Wong is a 50% shareholder and director.
21. Wong’s purchase of the Property is entirely unique in his pattern of holding and investing in estate. If he had indeed intended to invest in the Property, to save on the monthly rental of $4,000 for Hennessy Court, and to benefit from the rise in value of the Property, or if he had wished simply to withhold from his wife the fact of his interests in the Property, it would have been natural and easy for him to have used a limited company to hold the Property for him, instead of entrusting it to Nicole, with whom he merely had a casual relationship, and particularly if (as he suggested) the Property was such an expensive acquisition.
22. As Counsel for Nicole pointed out, Wong himself is in the business of real estate and property management, and is well familiar with matters concerning holding properties and transactions in properties. He would have been familiar with the use of written instruments and declarations of trust, if he had genuinely intended the Property to be held by Nicole on trust for him. The fact that he never asked for a written document to be signed by Nicole to reflect this trusteeship beggars belief.
23. It is clear from the authorities that since the Property is registered in Nicole’s name, the burden is on Wong to show, on the balance of probabilities, that the Property was held by Nicole on trust for him. On the entirety of the evidence, I reject Wong’s claims that there was any oral agreement, or any Mutual Understanding, as he alleges.
24. It has been held (Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985) that the court is not constrained to consider only pure direct monetary contributions made by parties to the purchase price. This is particularly so in a Chinese domestic setting. The approach of the court should be to assess the parties’ common intention by a holistic approach, paying regard to the context, and to the circumstantial matters. I also bear in mind that the presumption is that the beneficial interest follows the legal interest, and clear evidence will be required to reach a finding that there is a difference between the beneficial and legal interest.
25. Although I do not accept Nicole’s evidence that she had sufficient savings of her own to make any significant financial contribution to the purchase price for the Property, nor that she had saved enough cash from what Wong had given to her as living expenses and pocket money over the years, to be able to make the repayment of the balance of the mortgage loan in August 2012, I accept that whatever cash payments and living expenses Wong had paid to her over the years were gifts, and hence hers to use and save. I also find that the payments made by Wong for the purchase price of the Property were by way of gifts, for the purchase of the Property for Nicole. I find no other conduct sufficiently unequivocal to form any basis from which to infer a common intention of the Property being held by Nicole on trust for the sole benefit of Wong.
26. Having rejected Wong’s evidence as to the alleged common intention, and being satisfied that the Property was a gift to Nicole, any presumption of resulting trust is rebutted.
The Cash Transfer
27. I regret that Wong’s evidence in relation to the Cash Transfer is, as a whole, incredible and unreliable.
28. The timing of the Cash Transfer is pertinent. It was made in November 2016. On Wong’s case, his relationship with Nicole had by then completely broken down. Wong’s pleaded case on the 11/16 Oral Agreement is that he was to pay a sum of $900,000 into a joint savings account in the names of Nicole and himself at the Chong Hing Bank (“Joint Account”). Under the 11/16 Oral Agreement, the Cash Transfer was to be used to subscribe for the MTR Shares, of which Wong would be and remain as the sole beneficial owner, and Nicole was to be entitled only to the dividends on the Shares. She agreed not to sell the Shares without his permission, and would return the Shares to him on demand.
29. According to Wong, the Joint Account was opened on 3 November 2016 and on 8 November 2016, he went with Nicole to the bank, where he made a withdrawal of $900,000 from his own account. In breach of the 11/16 Oral Agreement, and without his noticing it, Nicole caused the Cash Transfer to be deposited into her own savings account at the bank, instead of into the Joint Account. Wong only discovered later, that $780,848.31 of the Cash Transfer had been used to acquire the Shares, and that in July 2017, the Shares were sold by Nicole without his consent for $862,949.84, at a profit of $82,101.53. In July 2017, Nicole also received dividends of $60,169 from the Shares.
30. The Joint Account was opened by Wong himself. This is evidenced by the message he sent to Nicole on 3 November 2016 at 5:34 pm, which read “Account already opened”. If Nicole was at the bank when the Joint Account was opened, it would not have been necessary for Wong to have sent her the message, to tell her of the fact.
31. Wong’s evidence on the circumstances of the deposit of the Cash Transfer into Nicole’s personal account on 8 November 2016 is unbelievable. On his account, he was at the bank with Nicole on 8 November 2016, when he instructed the teller to make the separate withdrawal and deposit of $900,000. As evidenced by the withdrawal slip, Wong signed it on 8 November 2016 at 14:49, effecting the withdrawal from his own account at the bank, and as evidenced by a deposit slip, the sum was deposited into Nicole’s own account at the bank at 14:50. Nicole’s name and account number were shown on the deposit slip. On Wong’s evidence, after signing the withdrawal slip, he had walked away from the counter, and Nicole had given to the teller the account number of her own account instead of the Joint Account as agreed, which explained why he did not know that the Cash Transfer was not paid into the Joint Account. He claims that it was only upon discovery made against the bank in October 2017 that he discovered the fact of the deposit into Nicole’s account.
32. On Nicole’s evidence, she became pregnant with Wong’s child in 2015 and informed Wong of the fact. He asked her to have an abortion, but she refused because she had already aborted their first child in late 2010. Wong’s wife also telephoned Nicole in November 2015, indicating that she would not divorce Wong and that Wong would not accept Nicole’s baby as his son. In March 2016, Wong told Nicole to have the baby at the hospital where his own daughter had given birth, and Wong paid $100,000 for the medical expenses for the birth. The child was born on 1 April 2016, but Wong refused to register as the child’s father. After the birth of the child, Nicole discovered that Wong had developed relationships with other women, and after a quarrel, Wong left Nicole in June 2016. This prompted Nicole to instruct solicitors to seek maintenance for her child and for Wong to recognize paternity, and correspondence between the parties’ solicitors ensued from August 2016.
33. Nicole claims that after Wong learnt that she intended to commence legal proceedings against him, he persuaded her not to do so, and informed Niclole that he would be prepared to pay her maintenance of $3 million, to enable her to purchase a 3-bedroom flat for herself and the child. On Nicole’s evidence, the relationship between Wong and himself somehow revived between October 2016 and March 2017, and it was in November 2016 that Wong opened the Joint Account for the purpose of making the payment of $3 million as maintenance.
34. In relation to the circumstances of the opening of the Account and the Cash Transfer, Nicole claims that Wong had simply telephoned her in early November 2016, to ask for her bank account number with the Chong Hing Bank for the purpose of paying the maintenance as Wong had promised. She had given him her name, but later was advised by Wong that this was not sufficient for the bank teller to make the deposit, and she had to furnish her identity card number as well, which she did. The Cash Transfer was duly made by Wong into her account on 8 November 2016.
35. On Nicole’s evidence, the Cash Transfer was for maintenance of the child, as Wong had promised her, but that he had reneged on paying $3 million, and had only made the Cash Transfer of $900,000. On Nicole’s evidence, Wong had suggested to her that the Cash Transfer could be invested to generate more money for the child. After the Cash Transfer, Nicole had in fact asked Wong for advice on how the Cash Transfer could be invested, and he had advised her to subscribe for the Shares. As the Cash Transfer was for maintenance, Nicole’s evidence is that she was free to use the Cash Transfer, to purchase the Shares, to sell the same and to keep the proceeds for herself and the child.
36. As Wong refused to honour his promise of paying maintenance of $3 million to purchase a flat for Nicole and the child, she finally commenced the Family Court proceedings in June 2017.
37. Throughout these proceedings, Wong has insisted that his relationship with Nicole was “casual”, and that their relationship had completely broken down in mid-2016. This, in my judgment, is in complete contradiction to his claim, that not only was the Property (which was purchased in 2009) but that the Shares (which were purchased in November 2016 when the Joint Account was opened) were agreed by him to be held by Nicole on trust for him. By November 2016, after the events of harassment in his work place and at the Jockey Club (of which Wong had complained in these proceedings), Wong claimed that he had been embarrassed and ridiculed, and eager to avoid further contact with Nicole. He had denied paternity of the child, and by then, members of his family had already become aware of and involved in his relationship with Nicole. In October 2015, Wong had already stopped paying monthly living expenses for Nicole, as he claimed that he was keen not to be mistaken for paying any form of maintenance, for Nicole and for the child. Wong also accepted that he knew of Nicole’s intention to commence proceedings against him.
38. In Wong’s mind by November 2016, Nicole was a nuisance, a source of embarrassment, with whom to cut all ties. He even claimed in his witness statement that by 2016, he was no longer on speaking terms with Nicole. Yet, on his case, he had agreed with Nicole, in November 2016, to give her $900,000, to subscribe for the Shares in her name, to hold such Shares on trust for him, and to approach him for his consent when she should sell the Shares. To create such a position of trust between Nicole and himself in November 2016 is simply incredulous, even on Wong’s own evidence.
39. Wong’s denial of the continuation of any further relationship with Nicole in 2016 is in fact contradicted by the chronology of events. After the child was born in April 2016, and even after the incidents of harassment complained of by Wong in August 2016, when the police had been involved, Wong had visited Nicole and the child at least on one occasion in October 2016. This was when he shared a drink with the child. In January 2017, Wong went on a trip to Guangzhou, not only with Nicole but with the child as well. He claimed that this was to deal with some insurance matter, but it is incredible that he would have agreed for the child to be brought on the trip if it was purely for business. In March 2017, Wong made booking arrangements and paid for a party to be held at a hotel in Hong Kong for the child’s birthday. It was attended by many guests, although Wong claimed that he did not know any of them.
40. All these may have sounded incredible to Wong as well, as he sought to excuse his conduct by claiming that he had been so harassed by Nicole that he had agreed to the Cash Transfer in November 2016, the Guangzhou trip in January 2017 and the birthday party in March 2017, all to appease Nicole only, and to make her desist from further exposing their affair to the public. His claims however ring extremely hollow. It is incredulous that he could have been forced to arrange for and to attend the birthday party, where photographs were taken, showing Wong to be completely at ease if not in enjoyment. In any event, if the relationship had deteriorated to the extent Wong claimed, and Nicole was in the process of starting proceedings to claim maintenance for her son, it is hard to understand how Nicole could have been “appeased” by an arrangement under which she would have no interest in the $900,000, nor in the Shares, apart from the small sum of dividends which may be declared on the Shares.
41. Wong’s account of the deposit into Nicole’s account at the bank counter is implausible. As Counsel for Nicole highlighted, it is simply inherently improbable that the bank teller would have permitted a stranger to effect the deposit from Wong’s personal account into Nicole’s personal account, without the knowledge, consent, and acknowledgment of Wong, the account holder.
42. To conclude, I reject Wong’s claim and evidence, that there was an 11/16 Oral Agreement as he alleged, that the Cash Transfer was made pursuant to such alleged agreement, and that the Shares were held on trust for him. On the balance of probabilities, it is more credible that the Cash Transfer was paid to Nicole, as maintenance for the child and for herself, or even as the “break-up fee” to which Wong had alluded in his witness statement. It was in any event an outright payment, with none of the conditions he claims attached. There is no plea of undue influence, and I reject Wong’s claim that the Cash Transfer was made otherwise than by his own free will.
Disposition
43. For all the above reasons, the action is dismissed, and the order nisi is that the costs of the action are to be paid by Wong to Nicole, with certificate for counsel.
| (Mimmie Chan)
Judge of the Court of First Instance |
| High Court |
Mr Osmond Lam, Ms Jacquelyn Ng and Mr Dexter Leung, instructed by Lee Wong & Co, for the plaintiff
Ms Carol Wong, instructed by Chan, Wong & Lam Solicitors, for the defendant