CACV 190/2019
[2019] HKCA 1449
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 190 OF 2019
(ON APPEAL FROM HCA NO. 350 OF 2013)
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BETWEEN
| KONG HON KUI THOMAS and
KONG HON QUAN MARIUS (Administrators of the Estate of
Kong So Ngo, Deceased)
| Plaintiffs |
| and | |
| WU YUK CHUN JUDY
| 1st Defendant |
| ALL PERSONS IN OCCUPATION OF
2nd FLOOR, BOTANICAL COURT,
NO. 5 CAINE ROAD, HONG KONG | 2nd Defendant |
________________________
| Before : | Hon Cheung, Yuen and Chu JJA in Court |
| Date of Hearing : | 28 November 2019 |
| Date of Judgment : | 28 November 2019 |
| Date of Reasons for Judgment : | 19 December 2019 |
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REASONS FOR JUDGMENT
________________________
Hon Cheung JA :
I. Introduction
1. The plaintiffs are the administrators of the estate of Madam Kong So Ngo (‘Mrs Chung’) who was their aunt. They claim against the defendants for possession of a property at Botanical Court on Caine Road, Hong Kong (‘the Property’) and other assets of Mrs Chung. Judgment had been obtained against the 2nd defendant by default. The 1st defendant (‘Judy’) resisted the claim on the basis that Mrs Chung had promised to give the Property and her other assets to her. She claimed that Mrs Chung had repeatedly represented to her and promised her that if she agreed to live in the Property to look after Mrs Chung and her sister Madam Kong, then she would be entitled to all of Mrs Chung’s assets (‘the Promise’). Judy relied on the Promise in moving to reside in the Property with her family and as a result she had suffered detriment and she should be entitled to all the assets of Mrs Chung’s estate by reason of proprietary estoppel. B Chu J found for the plaintiffs and dismissed Judy’s claim. Judy appealed and we dismissed her appeal. I now give reasons for our judgment.
II. The background
2.1 The main events that happened in this case are as follows. In the late 1970s and 1980s when Judy was a student she befriended Mrs Chung and her husband Mr Chung. Judy came to know Mr Chung first who was a former educationalist. Mr Chung had by then retired and he helped Judy with her studies and preparation of examination. Later, Judy came to know Mrs Chung as well when Judy took lessons at their home. Judy maintained friendship with this elderly couple even after she left school and started to work.
2.2 Mr Chung passed away in August 1986 at the age of 77 years. Mrs Chung was about 68 at that time.
2.3 In 1988, Judy married a Mr Sin and they lived with Mr Sin’s grandmother in a flat in Caineway Mansion on the same street where Mrs Chung was living. Judy gave birth to her son William.
2.4 In February 1990, Mrs Chung purchased the Property. She moved into the Property together with her unmarried sister Madam Kong. The Property had three bedrooms originally. Mrs Chung had two lodgers staying at the Property for a while.
2.5 Judy claimed that Mrs Chung verbally made the Promise to her in 1991/1992. In the summer or autumn of 1994, Judy and her family together with a domestic helper Bucay moved into the Property to live with Mrs Chung and Madam Kong. The original lodgers had by then left.
2.6 In late 1995, Mr Sin moved out of the Property. Judy, her son and Bucay, however, continued to live there.
2.7 In 1996, Mrs Chung added Judy’s name to her bank accounts and also opened new joint accounts with Judy.
2.8 In 1996, Judy became an estate agent.
2.9 In April 2003, Mrs Chung was hospitalised and passed away on 13 April 2003. After the death of Mrs Chung, Judy and Madam Kong continued to live in the Property.
2.10 On 14 November 2008, Madam Kong passed away.
2.11 On 28 December 2009, the probate of Madam Kong’s estate was granted to the plaintiffs and on 17 October 2012 letters of administration of Mrs Chung’s estate were also granted to the plaintiffs.
2.12 The present action was commenced by the plaintiffs on 25 February 2013.
2.13 The plaintiffs and the wife of one of the plaintiffs provided evidence. Bucay also gave evidence for the plaintiffs. On Judy’s side, Judy gave evidence together with her son William and William’s friend Yeung.
III. The Judge’s Decision
3. The Judge rejected Judy’s case after considering the factual background, the credibility of Judy as a witness (both of which I will elaborate on later) and also the inherent probability of her claim. The Judge held that :
‘ 272. One of the main concerns I have with Judy’s case was that in light of her evidence that Madam Kong had been living with Mrs Chung (and Mr Chung) as early as late 1970s/early 1980s, and that Mrs Chung was clearly providing Madam Kong with a roof over her head and also I find the two sisters were very close to each other, it seems inherently improbable that Mrs Chung would make the Promise to Judy, promising to leave everything to Judy if Judy were to move into the Property in 1994, and/or repeating the Promise thereafter, without any provision to ensure that Madam Kong would have at least a roof over her head.
273. In particular, the words uttered by Mrs Chung “將来我留晒的嘢俾你”[Translation: In the future, I would leave all my things to you] were in my view vague in that there was no identified property/asset and no timing. Mrs Chung was not an uneducated person. Even though she did not have any gainful employment, it was not disputed that she had done voluntary work by joining the Red Cross and/or had worked as a nurse during the Second World War. As found earlier, Mrs Chung was also of a detailed mind and meticulous in her financial affairs and I have accepted earlier that Mrs Chung had a habit of recording her daily expenses and her financial affairs.
......
275. Judy herself had been working for over 6 years as an estate agent by early 2003 and she had studied commercial law. Through being an estate agent, she would have had dealings with conveyancing solicitors and she should also be well acquainted with conveyancing procedures. She did not dispute this and as said earlier Judy had said that in fall of 2002/early 2003, perhaps Mrs Chung was aware of her advanced age as she had to visit the hospital, she had repeated the Promise and had taken the initiative to discuss the idea of formally transferring her assets to Judy. It was also Judy’s own evidence that on about 23 March 2003, Mrs Chung was asking Judy to gift various items to [the plaintiffs] and two of their siblings, and Judy herself had recorded down Mrs Chung’s wishes. Since Judy had helped to arrange for the HSBC Customer Relationship Manager to attend the Property to help Mrs Chung to effect the change of the operating mode of the HSBC Sole Account, Judy should in my view be fully aware that she could also arrange for a solicitor to attend the Property to help Mrs Chung effect her various wishes, whether to transfer the Property to Judy, or to prepare a will or to prepare any other documents in relation to her intended gifts.’
IV. The appeal
1) The two issues
4.1 The parties identified six issues before the Judge. In this appeal, only two of them are relevant, namely,
(1) whether Mrs Chung made the Promise to Judy?
(2) If yes, whether Judy detrimentally relied on the Promise?
2) Grounds of appeal
4.2 Mr Ho for Judy confined himself to grounds 2, 3, 8 and 9 of the grounds of appeal which deal with these two issues. Ground 2 deals with the knowledge of Madam Kong and the plaintiffs of the Promise. Ground 3 deals with Yeung and William’s evidence on the Promise. Ground 8 deals with ‘reliance’ and ground 9 deals with ‘detriment’, both being necessary elements to constitute Judy’s case on proprietary estoppel.
3) The factual matters
4.3 I will address these grounds in turn. But before I do so it is necessary to see what were the facts that the Judge had considered when she rejected Judy’s case on the Promise. The Judge in a detailed judgment of 113 pages had considered a wide range of factual matters which she identified as follows :
(1) Mrs Chung’s financial affairs after Judy moved into the Property;
(2) Mrs Chung’s health condition after Judy moved into the Property;
(3) The plaintiffs’ relationship with Mrs Chung and Madam Kong;
(4) Judy’s relationship with Mr and Mrs Chung;
(5) Judy’s relationship with Madam Kong;
(6) Mrs Chung’s relationship with Madam Kong;
(7) Mrs Chung’s trips to the hospitals in early April 2003;
(8) Matters after Mrs Chung’s death.
4.4 Some of these factual matters are required to be mentioned again because they cast serious doubt on the credibility of Judy’s case.
(1) The Financial Arrangement
4.5 It was Judy’s case that she would be responsible for paying for all household expenses of the Property, including management fees, rates, utilities, food, salary of the domestic helper, and expenses of raising a pet dog, and that Mrs Chung and Madam Kong would only pay for their own medical expenses and other personal expenses from their private savings (‘Financial Arrangement’).
4.6 Judy further said as some of the household bills were previously paid under Mrs Chung’s name, Mrs Chung would first pay those bills with funds in her bank accounts and that Judy would reimburse her, pursuant to the Financial Arrangement.
4.7 The Judge rejected Judy’s case on the Financial Arrangement. She held :
‘ 105. Even though Judy had paid for Bucay’s contractual salary and her dog expenses, and Judy [m]ight have paid for food expenses for her own family or some common expenses, I do not find there was sufficient evidence that there was the Financial Arrangement as alleged by Judy, namely that she was paying for all household expenses including food expenses for Mrs Chung and Madam Kong or that Judy had reimbursed Mrs Chung for all the utilities or property related expenses or household expenses which had been paid by Mrs Chung, after she moved into the Property and prior to Mrs Chung’s death.’
4.8 In terms of the joint accounts and the adding of Judy’s name to Mrs Chung’s accounts, the Judge found that the adding of Judy’s name was for administrative purposes only, in order to facilitate Judy to withdraw funds on behalf of Mrs Chung. The Judge held that there was no sufficient evidence to show that by adding Judy’s name to the joint accounts, there was any intention by Mrs Chung that Judy would become a joint owner of the funds in these accounts. Mrs Chung continued to keep all the banking documents herself. This is what the Judge said :
‘ 111. The iron cabinet was kept in Mrs Chung’s bedroom. Notwithstanding that Mrs Chung appeared to have trusted Judy by adding Judy’s name to the Joint Accounts, there was no sufficient evidence that the bank passbooks or the time deposit certificates were ever kept by anyone other than Mrs Chung prior to her death. Even though Judy was a single signatory to the Joint Accounts, she had admitted that all withdrawals were made on the authorisation/instructions, and with the consent, of Mrs Chung. In fact, in her 1st witness statement, Judy had said her name was added so that it would be more convenient for her to manage Mrs Chung’s finances on her behalf. Having considered all the evidence, it is my finding that the adding of Judy’s name was for administrative purposes only, namely to facilitate Judy to withdraw funds on behalf of Mrs Chung. It is also my finding that all along Mrs Chung was in control of her own finances and/or financial affairs and the Handwritten Note indicated that even in July 2002, Mrs Chung was mentally alert and was still in control and there was no sufficient evidence that there had been any change until later when her health condition was said to have deteriorated at Queen Mary Hospital.
......
114. There was no evidence produced by Judy to show that whether there was a survivorship clause in the banking documents at the time of when Judy’s name was added to the Joint Accounts. Further, it was not her pleaded case to rely on such survivorship clause, if any, nor was it her pleaded case that there was any common intention of her and Mrs Chung that the survivor would be entitled to the funds. She only relied on the Promise and the proprietary estoppel and throughout, it was Judy’s own evidence that the source of the funds was solely from Mrs Chung. It is my finding that all funds in the Joint Accounts had remained beneficially Mrs Chung’s at the time of her death, as there was no sufficient evidence that by adding Judy’s name to the Joint Accounts, there was any intention on the part of Mrs Chung that upon the adding of her name, Judy would then become a joint owner of the funds therein.
.....
128. Having considered the evidence, I accept that it was probably in about 1999/2000 that Mrs Chung became less mobile and this would also be consistent with the fact that it was only in January 1999, that Judy started to make the withdrawals from the Joint Accounts as authorised and instructed by Mrs Chung. As Bucay had said, and which I have accepted, when Mrs Chung was able to walk, she would go to the bank herself, sometimes accompanied by Bucay.’
4.9 Mrs Chung’s estate apart from the Property and cash at bank also had 128 items of personal effects. The plaintiffs as administrators were not aware of these items until Judy disclosed them by way of discovery. In her 1st witness statement, Judy said that her name was added by Mrs Chung to a safe deposit box Mrs Chung kept at the Bank of East Asia and that Mrs Chung had taken her to the box in around 1995/1996 and showed her the items in the box, which included the title deeds of the Property and other memorable personal items of Mr Chung and Mrs Chung. Judy’s evidence was that she later closed the box in Mrs Chung’s name and the items including the 128 items were kept by her.
4.10 The Judge held there was no documentary evidence produced by Judy to show when Mrs Chung’s safe deposit box was opened and when Judy’s name was added, and when the box was closed. Suddenly during the trial Judy said that the 128 items were given to her by Mrs Chung at the time of her marriage. This was never mentioned by Judy in any of her witness statements. As a matter of fact Judy admitted in her defence that all the 128 items belonged to Mrs Chung. The Judge found Judy’s case on these ‘gifted’ items to be incredible because it was Judy’s evidence that the photographs of the 128 items produced by her were taken by her from the contents of Mrs Chung’s safe deposit box at Bank of East Asia and even though Judy’s name was added to the box, there was no reason nor evidence that Judy had placed in the same box her personal items and in any event, Judy was the one who disclosed all 128 items as being part of Mrs Chung’s estate.
(2) Judy’s relationship with Mr and Mrs Chung
4.11 Judy claimed to be the goddaughter of Mrs Chung. She also claimed that she had been looking after Mrs Chung on a very personal level including massaging her, trimming her toenails and assisting her with bathing and slept with her at night to keep her warm.
4.12 This is how the Judge described Judy and Mrs Chung’s relationship :
‘ 196. Judy had said Mrs Chung was sad and lonely after the death of Mr Chung. By the time Judy moved in, it was some 6 years after Mr Chung’s death, and further Mrs Chung did have the company of her sister Madam Kong and Marius’s evidence was that the two sisters were very close in their relationship, both physically and emotionally and that the two sisters were living under the same roof for over 20 years as seen from my finding later. Having said this, that Mrs Chung would like company, in particular someone younger to go and live with her and Madam Kong in the Property would be understandable. However, I do not find that there was sufficient evidence that Mrs Chung needed the care and attention as described by Judy. Even though I do not accept Judy’s evidence of her intimate or personal care of Mrs Chung, I am prepared to accept that Judy and Mrs Chung had known each other over a long period of time and it was not improbable that Mrs Chung could have regarded Judy as a goddaughter at some stage, even though there was no sufficient evidence that Mrs Chung had introduced Judy to friends, neighbour and relatives as her goddaughter in 1987.’
(3) Relationship with Madam Kong
4.13 Judy and Madam Kong did not get along well at all. It was Judy’s case that Mrs Chung had told Madam Kong about the Promise. It was also Judy’s case that she had informed the plaintiffs of the Promise, which was denied by the plaintiffs. This is one matter which clearly affects the Judge’s assessment of Judy’s credibility.
4.14 When Judy gave evidence she disclosed for the first time (despite having given four witness statements) that on an occasion in 2002 after Mrs Chung had told Madam Kong about the Promise, the two sisters got into an argument and Madam Kong accidentally pushed Mrs Chung who fell to the ground. The Judge did not accept Judy’s case on this. This was a most dramatic event, yet Judy chose only to reveal it at the hearing. The Judge found that both Madam Kong and the plaintiffs were not aware of the Promise. The Judge held that :
‘ 257. It seems that if Mrs Chung had indeed told Madam Kong about the Promise, Madam Kong should have become concerned as she might be evicted by Judy upon Mrs Chung’s death. Given her relationship with Judy, I would have thought Madam Kong would have informed or alerted [the plaintiffs]. There seemed no sufficient evidence that she had. Anyway, I find there was no sufficient evidence that Madam Kong was aware of Mrs Chung’s alleged intention of leaving all her assets to Judy or that Madam Kong was aware of the alleged Promise.’
4) Ground 2 : Knowledge of Madam Kong and the plaintiffs
4.15 I will now deal with the specific grounds of appeal. Mr Ho accepted the well-established principle that the Court of Appeal will only overturn findings of fact by a trial judge if the findings are plainly wrong. He attempted to overcome this hurdle by first referring to events subsequent to the Promise to demonstrate the Judge’s finding on the Promise to be plainly wrong. He argued that although the Judge found that ‘there was no sufficient evidence that Madam Kong was aware of Mrs Chung’s alleged intention of leaving all her assets to Judy or that Madam Kong was aware of the alleged Promise’, at the same time, the Judge also found :
(1) Judy did not stay in the Property as an employed nurse or a carer.
(2) Judy did not have a good relationship with Madam Kong and Madam Kong did not like Judy.
(3) Neither the plaintiffs nor Madam Kong (who was not in ill health until about 2005) took any steps to evict Judy during Madam Kong’s lifetime.
(4) The plaintiffs were keen to recover the possession of the Property as soon as Madam Kong passed away.
4.16 Mr Ho argued that if Madam Kong did not know about the Promise, this begs the question why the plaintiffs and Madam Kong consented to Judy’s staying in the Property all along until the death of Madam Kong, why the plaintiffs did nothing about the joint accounts and why the plaintiffs only took steps to apply as administrators of the estate of Mrs Chung shortly after the death of Madam Kong. Nothing in paragraphs 232 to 241 of the judgment (which deal with matters after Mrs Chung’s death) answers why the plaintiffs and Madam Kong acted against common sense during the lifetime of Madam Kong. Mr Ho argued that the Judge’s finding on this issue is plainly wrong.
4.17 In my view the Judge had already addressed the issue why the plaintiffs continued to allow the status quo to continue after Mrs Chung’s death and why they did not interfere with Judy’s residence in the Property. The Judge found that the plaintiffs were keen to recover the Property as soon as Madam Kong passed away and she accepted their explanation as to why they only took steps to recover the Property after her death. This is the summary of the plaintiffs’ evidence made by the Judge :
‘ 238. What was clear was that [the plaintiffs] had continued to allow the then status quo to continue after Mrs Chung’s death and that they did not interfere with Judy’s residence in the Property. Thomas’s evidence was after Mrs Chung’s death, he was not clear who paid the management fees and said that as Judy was living there it should be Judy who paid. Thomas had also said during the trial that prior to Mrs Cheung’s death that he had known of Judy’s name being added to the Joint Accounts and he had assumed that after Mrs Chung’s death, Judy was paying all the utilities and property related expenses with monies from the Joint Accounts.
239. Thomas’s evidence was that after Mrs Chung’s death, after being reminded by Madam Kong, he had taken steps to inform the Government Treasury of Mrs Chung’s death. He said as Mrs Chung left no will, he had understood that Madam Kong would be entitled to a share of Mrs Chung’s estate and that it should be Madam Kong who should apply for the letters of administration of Mrs Chung’s estate. He said he did not know that he and his siblings and/or Mrs Chung’s other members/nieces could have a share of Mrs Chung’s estate. Thomas had also said that Madam Kong had orally asked him to apply for the letters of administration but he could not do so unless Madam Kong formally authorised him through a power of attorney and as Madam Kong was in weak health, he did not take up the matter nor did he contact solicitors at that time. He said it was only after Madam Kong died that [h]be contacted solicitors.’
4.18 As mentioned earlier the Judge had expressly rejected the notion that Madam Kong and the plaintiffs were aware of the Promise. The inactivity of the plaintiffs after the death of Mrs Chung does not provide the linchpin for Judy to overturn the Judge’s findings of fact particularly in the light of other factual matters that the Judge had considered and which I had mentioned earlier. In my view this is sufficient to deal with ground 2.
5) Ground 3 : Yeung and William’s evidence
4.19 I will deal with Yeung’s evidence first. This is how the Judge dealt with the evidence of Yeung :
‘ 263. Yeung met William in September 2001 when she was 13 years old and when she and William were both in same Form 1 class and they were good friends and have remained good friends. Yeung said she had visited William at the Property about 3 times a week to have lunch with him there and that she would visit William also during weekends and after school until September 2002 when her visits reduced in frequency to once every several weeks as she and William were no longer in the same class and at end of 2002 due to SARS, she ceased visiting William at the Property.
264. Yeung’s evidence was that although she met Mrs Chung during her visits, Mrs Chung never had lunch together with her and William. Yeung had also said in her witness [statement] that on one occasion in the summer of 2002 when she went to visit William, he was taking a nap in his room when she arrived, and she then chatted to Mrs Chung who was in the sitting room. Yeung said Mrs Chung had told her that Judy treated her very well and looked after her living and that she would leave everything to Judy and William when she passed away.
265. Yeung was not cross-examined as to what exactly was said by Mrs Chung. Yeung would only be about 13 years old in the summer of 2002 and just completed Form 1. It was not quite clear in what context Mrs Chung had uttered those words save that Yeung said Mrs Chung had asked Yeung how her family members had treated her. In any event, Judy herself had said Mrs Chung would often speak in a piecemeal manner, namely “一舊舊” and also “忽然間講一句”. I do not find it probable that Mrs Chung who was then 84 years old would suddenly confide in Yeung or a 13 year old student about what she intended to do with her assets when she passed away.’
4.20 Mr Ho argued that the Judge’s finding effectively means Yeung fabricated the evidence. Yet the Judge made no adverse finding of credibility of Yeung, and the Judge accepted Yeung’s evidence in other aspects. The Judge also erred in law in holding that Yeung’s evidence would be unreliable because she was told about the Promise at the age of 13. In the absence of relevant cross-examination, the Judge ought not to have rejected Yeung’s evidence in total without allowing her any reasonable opportunity to explain.
4.21 In my view it is within the fact finding province of the Judge when she refused to accept the evidence of Yeung on the Promise. I do not accept Mr Ho’s argument that by rejecting Yeung’s evidence, the Judge had effectively treated her evidence as being fabricated. A witness’s evidence may be rejected for a myriad of reasons, like lack of proper recollection, uncertainty of the context in which certain words were said and the incoherence of the words that were being said. A judge does not need to go as far as to say that the witness had fabricated his evidence. In any event, the Judge had already rejected Judy’s evidence on the Promise. Since Judy was the main player in this litigation, the Judge was clearly entitled not to accept Yeung’s evidence. After all, Yeung was dealing with some matters that occurred 16 years ago when she was a child of 13 years.
4.22 As to William’s evidence, it was Judy’s and William’s evidence that William had bought a birthday cake for Mrs Chung on her 80th birthday. Mrs Chung had asked William if he would call her ‘paternal grandmother’ and William nodded and Mrs Chung was very touched and said all her money and her assets would eventually go to William and his mother. The Judge dealt with William’s evidence as follows :
‘ 266. In William’s 1st witness statement, he simply confirmed what was said by Judy regarding the Promise, and there was no independent evidence from him. When put to him that in 1994 he was only around 6 years old and that he would not have any independent recollection of events which took place in 1994, William objected and said he was aware of the situation in 1994. However, it was not really clear what he was aware of save that he and his parents had moved into the Property.
267. William admitted that he was not present when Yeung chatted to Mrs Chung during which Mrs Chung was alleged to have said everything would go to Judy and William. When he was asked about the post-funeral lunch, William said he was sitting at a separate table from Judy, and did not hear Judy telling Thomas and his other relatives about the Promise.
268. When he was asked about why Mrs Chung would ask him to call her paternal grandmother in her room on her 80th birthday, William’s response was that he recalled the incident and that he did not know why at the time and only nodded in response to Mrs Chung’s request, and later he sent Mrs Chung a Christmas card in 1998 addressing her as paternal grandmother. William did not really elaborate during the trial what Mrs Chung had said about her money and assets would eventually go to him and his mother. William was only about 10 days short of being 9 years old on Mrs Chung’s 80th birthday in 1997. Judy was not present, and it was not really clear what Mrs Chung had said to William or what William had told Judy at the time.
269. As said, Yeung was about 13 when Mrs Chung was chatting to her and William was only about to be 9 on Mrs Chung’s 80th birthday. In light of their then ages and for reasons set out above, I do not find their evidence in relation to what Mrs Chung had said to them would be reliable.’
4.23 Again, in my view, this is not sufficient to upset the judgment.
6) Ground 8 : Reliance
4.24 In respect of reliance, Mr Ho argued that Judy moved into the Property in 1994 and has stayed in the Property for over two decades. Judy’s case was that the Promise was repeated multiple times on different occasions, both before and after 1994. As a matter of common sense, Judy’s intention may change over time. It is plainly wrong to conclude that Judy never relied on the Promise merely because she did not have such thought when she first moved into the Property. The Judge had omitted to consider why Judy did the following acts if she did not rely on the Promise, namely,
(1) Judy withdrew all the balance in the joint bank accounts and the HSBC sole account shortly after the death of Mrs Chung (paragraph 114 of the judgment);
(2) Judy decided to stay in the Property notwithstanding that Mr Sin moved out of the Property in 1995 (paragraph 285 of the judgment);
(3) Judy took Mrs Chung’s personal properties in the safe deposit box (paragraph 36 of the judgment);
(4) Judy gave $200,000 to Thomas by cheque on 16 April 2003, and Thomas agreed that Mrs Chung instructed Judy to pay the sum to him (paragraph 237 of the judgment);
(5) Judy continued to live with Madam Kong, notwithstanding the Judge’s finding at paragraph 205 of the judgment that Judy did not have a good relationship with Madam Kong, and Madam Kong did not like Judy, and at paragraph 106 of the judgment that Judy did not stay in the Property as a ‘nurse’ or a ‘carer’.
4.25 In particular, Mr Ho argued that the decision to stay in the Property after Mr Sin left in 1995 came with the consequence of sacrificing the marriage and the obligation to raise William alone since 1995 without any financial assistance from Mr Sin. It is against human nature for Judy to shoulder such obligation without relying on the Promise at all. Further the act of giving HK$200,000 to Thomas by cheque on April 2003 (and Thomas saw no reason to dispute Judy’s explanation that the HK$200,000 was paid to him under Mrs Chung’s instruction) is wholly inexplicable if Judy was a mere trespasser of the Property who has neither heard nor relied on the Promise.
4.26 Mr Ho argued that these acts clearly show that Judy had relied on the Promise in remaining in the Property at various points of time after 1994 and it is plainly wrong for the Judge to find otherwise by not referring to these acts.
4.27 I disagree with Mr Ho’s arguments. The Judge clearly has considered Judy’s evidence as to why she moved into the Property. She described it as rather confusing and inconsistent :
‘ 286. Judy’s evidence as to why she moved into the Property was rather confusing and inconsistent. In paragraphs 17-20 of her 1st witness statement, Judy’s evidence appeared to be that she moved into the Property in reliance on the Promise. However, in paragraph 26 of her 1st witness statement, she had said that the “whole purpose” for her to move into the Property was that Mr Chung had told her to look after Mrs Chung and Madam Kong.
287. During the trial, when asked why she moved into the Property, Judy gave two reasons, namely :
(i) Mr Chung had told her to look after Mrs Chung and Madam Kong;
(ii) “唔忍心佢咁慘” – Judy could not bear to see Mrs Chung so sad
288. It was Judy’s evidence under cross examination during the trial that it was not because of Mrs Chung’s assets that she moved into the Property, although later she had added that Mrs Chung had said she would give everything to Judy/“佢話俾晒的嘢我”.’
4.28 As to the so-called ‘change of intention’, it clearly is very much an afterthought and is not even borne out by Judy’s own evidence.
4.29 The Judge had plainly considered the five acts relied upon by Mr Ho. In relation to the withdrawal of money, the Judge held that :
‘ 116. When Judy was asked why she immediately went to the banks to transfer away Mrs Chung’s monies on 14 April 2003, Judy had said she happened to have time that day and that the monies were promised to her. She had also said during the trial that she did not want so many accounts and so many documents and therefore she transferred all the monies to her account. I do not find her explanations credible or make sense.’
4.30 When one considers what the Judge had found to be Judy’s role in relation to these accounts, this act clearly had no significant role in establishing the reliance on the part of Judy on the Promise. The same applies to the withdrawal of the personal properties in the safe deposit box.
4.31 In relation to the moving out of Mr Sin, the Judge had considered, in the context of detriment, the following :
‘ (3) Sacrificing her marriage with Sin
305. As seen earlier, it was Judy’s evidence that she had sacrificed her marriage. However, she had said in her witness statements that there had been other problems with her marriage. Notwithstanding in the RRRAD&RAC, Judy had stated that Sin had a mistress and a child, there was no further elaboration on this and as said earlier, it transpired during the trial that she and Sin never got divorced and had remained on good terms and were in regular contact. Sin had remained her spouse and a beneficiary on Judy’s medical insurance policy with the Zuellig Group effective from 1 September 2000 with monthly premium payable by Judy. Whether this was due to Judy’s previous record with the Zuellig Group or not, Judy did not seem to have taken any steps to update the record and seemed to be content that Sin to remain a beneficiary of her medical policy. Also, according to Judy, Sin was the person she had first called when Mrs Chung was not well on 2 April 2003 and that she and Sin, and also Sin on his own, had visited Mrs Chung. Further, in 2006, when William was applying to a school in UK, the school invoice was addressed to both Sin and Judy at the address of the Property.’
4.32 I also do not see how the $200,000 would constitute evidence of reliance. This is how the Judge deals with the matter :
‘ 236. [The plaintiffs] denied that Judy had mentioned the Promise or that she invited either of [the plaintiffs] to move into the Property. [The plaintiffs] maintained there was no mention by Judy of any inheritance or legacy of Mrs Chung and that was why [the plaintiffs] had no knowledge thereof.
237. As seen earlier, it was Judy’s evidence that in the taxi to Queen Mary Hospital, Mrs Chung had indicated to her to give $200,000 to Thomas. Even though I did not find there was sufficient evidence that Mrs Chung gave such indication, it was not disputed that Judy did pay $200,000 to Thomas by cheque on 16 April 2003. Thomas had said in his 3rd witness statement that the payment was never communicated to him by Mrs Chung and that it was Judy who said the payment was at the request of Mrs Chung. Thomas’s evidence was that at the time, he did not question it as he thought that Judy would like to share his burden of Mrs Chung’s medical and hospital fees. During the trial, Thomas had also said that he assumed what Judy said was true, that it was Mrs Chung who instructed her to pay the sum to him.’
4.33 Having considered the way in which the Judge analysed the case, Judy’s continuous occupation of the Property does not support Judy’s case on reliance.
7) Ground 9 : Detriment
4.34 As to detriment, Mr Ho relied on the sacrifice of Judy’s marriage. I have already dealt with this point earlier.
V. Conclusion
5. In my view, there was ample evidence for the Judge to reject Judy’s claim that Mrs Chung had made the Promise. Judy has not come even close to showing that the decision was plainly wrong. Accordingly, the appeal was dismissed.
VI. Costs
6.1 The plaintiffs are entitled to the costs of the appeal which Mr Ho had accepted.
6.2 I will now deal with the costs summarily having given an opportunity to the parties to address the statement of costs. The plaintiffs claim a total sum of $533,786. In respect of Item C (Communication Including Conferences etc), a sum of $69,540 is claimed. This is excessive. The amount should be $40,000. In respect of Item D (Professional Work), $51,300 is claimed for preparation of documents (D1) for nine hours. This is excessive and the award should be $25,000. In relation to attendance of the hearing (D4) five hours was claimed. The actual hearing lasted two and half hours, the sum awarded is $13,000. Counsel fee (E) of $356,000 was claimed. In my view, two counsel’s attendance is not justified. Instead, counsel fee of $120,000 is awarded. The total amount is $226,446.
6.3 The plaintiffs filed a Respondent’s Notice, but as they had succeeded in opposing the appeal, it was not necessary to address it. Nonetheless, it is part of the plaintiffs’ case in opposing the appeal and the costs relating to the Respondent’s Notice is to be part of the plaintiffs’ costs of the appeal as well.
Hon Yuen JA :
7. I agree with Cheung JA’s Reasons for Judgment and costs order.
Hon Chu JA :
8. I agree with the reasons and the assessment of costs made by Cheung JA.
| (Peter Cheung) | (Maria Yuen) | (Carlye Chu) |
| Justice of Appeal | Justice of Appeal | Justice of Appeal |
Mr Jenkin Suen SC and Mr Tom Ng, instructed by Robertsons, for the plaintiffs
Mr Leon Ho, instructed by Hobson & Ma, for the 1st defendant