HUI SAU NGAI v. WANG CHAO, the personal representative of WANG JIANGUO, deceased

HCA 1960/2013

[2025] HKCFI 2536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1960 OF 2013

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(By original writ and by order of Master Chow to carry
on proceedings, dated the 28^th day of July 2017)

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JUDGMENT

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Introduction

1.  This is the trial of the Action.[1]

2.  It is a case about who is entitled to the estate of Mr Wang Jianguo (“Wang Snr” or “the Deceased”) who died intestate in a car accident in Shaoguan, Guangdong, PRC on 22 June 2008. Wang Snr was in his lifetime a man with a colourful love life.

3.  When he died, Wang Snr left behind the Plaintiff with whom he had had a romantic[2] and business/property investment relationship since about 1996 when they first met in Shenzhen PRC (“SZ”). At that time, the Plaintiff was about 31 years old and Wang Snr was in fact younger but not by much. It is said in the Plaintiff’s amended Opening that the two were cohabitees and lived as husband and wife from 1996 up to June 2008 when Wang Snr passed away. They were said to be life partners, they went to family and social events together, their finances were intermingled, they made joint investments and they had joint bank accounts.

4.  Wang Snr also left behind (i) his ex-wife Madam Li Li (“Madam Li”) with whom he married in 1987 in Shijiazhuang in northern PRC, separated in 1991 and divorced in 1996; and (ii) their son Wang Chao (“Wang Jnr”), born in 1989 in Shijiazhuang.

5.  In 1991, Wang Snr left Shijiazhuang and moved to SZ alone to look for business opportunities. According to Madam Li, she and Wang Jnr moved to SZ to join Wang Snr in 1993. She said while in SZ, she took care of the daily lives of the Wangs. Not only that, Madam Li also assisted Wang Snr in managing his business[3] and financial matters. Later, in about 1998, Wang Snr ventured into the real estate business in the Hebei Province in northern PRC. After their divorce in 1996, Madam Li maintained a close relationship with Wang Snr because of their son. Notwithstanding their divorce, whenever Wang Snr was in SZ, the Wang family including Madam Li lived under the same roof. Their relationship had turned from husband and wife to close friends.

6.  Also according to Madam Li, Wang Snr had many “female friends” in his life[4]. One of the most important one is Madam Wang Ying (“Wang Ying”) whom he met in around 1998 in the Hebei Province and had worked together since[5]. From the Hebei Province in northern PRC, Wang Ying followed Wang Snr to help him out with his real estate business in Shaoguan, Guangdong. She was in the car with Wang Snr when the accident that claimed Wang Snr’s life took place. Wang Ying was seriously injured and hospitalised for quite a while. She survived the accident. She is a witness at the trial for the Defendant.

7.  In March 2016, Wang Jnr obtained letters of administration of Wang Snr’s estate in Hong Kong. Owing to Wang Jnr’s medical condition, Madam Li has acted as his Guardian ad Litem for the purpose of these proceedings since and by virtue of the grant of an Order dated 28 February 2024 by this court. While Wang Jnr had made 2 witness statements, he did not testify at the trial owed to his condition. His 2 statements were treated as hearsay evidence.

8.  As far as property investments are concerned, there were altogether 4 Hong Kong properties in question[6]:

(a)  Flat D on 5/F No.29 Broadway, Mei Foo Sun Chuen, Kowloon (九龍美孚新邨百老匯街29號5樓D室) (“Mei Foo”).

(b)  Flat A on 36^th Floor of Tower 1 Harbourfront Landmark No.11 Wan Hoi Street, Kowloon (九龍環海街11號海名軒1座36樓A室) (“Harbourfront”).

(c)  Flat B on 46/F of Tower 3, The Victoria Towers, No.188 Canton Road, Kowloon (九龍廣東道188號港景峯3座46樓B室) (“Victoria Towers Property”).

(d)  Units A, B, C, D on 1/F & 2/F, Shun Cheong Building, No.28 Hau Wo Street, Hong Kong (香港厚和街28號順昌大廈1及2樓 A, B, C, D室) (“Shun Cheong Property”).

(collectively “HK Properties”)

9.  All the HK Properties were assigned into Wang Snr’s sole name save that Mei Foo was subsequently assigned by Wang Snr to the Plaintiff in 2004 before the Plaintiff sold it in 2005. All the HK Properties were residential except Shun Cheong Property which is a commercial property. Mei Foo and Harbourfront had since been sold. Victoria Towers Property and Shun Cheong Property are still registered in the name of Wang Snr according to the land search records.

10.  Essentially, in this Action, the Plaintiff claims a half share of Wang Snr’s interests in Victoria Towers Property and Shun Cheong Property, an Order for sale of the 2 properties and payment of the net proceeds of sale. The legal basis of the Plaintiff’s claim is by operation of common intention constructive trust, although the Plaintiff also has a fall back position based on purchase money resulting trust. While the Plaintiff claims she has proprietary interests in other properties in the PRC which were in Wang Snr’s sole name eg in Shijiazhuang, she has limited her claims in this Action to the 2 HK Properties.

11.  The Defendant, apart from denying the Plaintiff’s claim, has pleaded a Counterclaim against her on 4 bases including in particular, the Plaintiff’s unlawful occupation of Victoria Towers Property after the demise of Wang Snr, at which point of time her licence to reside in it was said to be terminated. Despite written demand for vacant possession by the Defendant’s solicitors dated 17 May 2016 ie after Wang Jnr had obtained letters of administration of Wang Snr’s estate in Hong Kong, the Plaintiff remained in Victoria Towers Property.

12.  As things progressed at the trial, eventually, Counsel for the Defendant Mr Chui confined himself to the Counterclaim based on the Plaintiff’s unlawful occupation of Victoria Towers Property.

The parties’ pleaded cases, witnesses and issues

Plaintiff’s case

13.  The gist of the Plaintiff’s case can be summarised as follows.

14.  The Plaintiff was born in Guangzhou PRC in 1965, now 60 years old. She was a university graduate and came to Hong Kong in 1992 where she worked in an accountancy firm. She is a Hong Kong permanent resident. She was the lover of Wang Snr whom she met in SZ in 1996 until he passed away in June 2008. When they met in 1996, Wang Snr was the proprietor of a small textile business in SZ that was closing down. He planned to develop other businesses and enhance his business prospects by obtaining US and Hong Kong residency and by venturing into property development and investment.

15.  Wang Snr was a PRC resident. Apart from having obtained a US Green Card, he had also applied to emigrate to Hong Kong under the Capital Investment Entrant Scheme (“CIES”). His application was approved in around 2005[7]. To the Plaintiff and Wang Snr’s understanding, the CIES had certain investment requirements from an applicant ie he must own real properties (which was one of the “Permissible investment assets”) in Hong Kong for at least 7 years[8] continuously. This is one of the reasons why, despite the common intention of the Plaintiff and Wang Snr about equal beneficial ownership, the HK Properties were assigned to Wang Snr alone (the other reason being to boost his creditworthiness to impress his bankers so as to obtain loans more easily and on more favourable terms).

16.  It is not disputed by the Defendant that Wang Snr had applied under the CIES in around 2004 and used one of the HK Properties for that purpose. It is Madam Li’s evidence that Wang Snr had designated Harbourfront, purchased in 2004, as the permissible investment in his application while the Plaintiff’s evidence is that later he had designated Shun Cheong Property for that purpose. According to Madam Li, the designated real property must be valued at least at HK$6.5 million which is not really an issue in dispute.

17.  Counsel for the Plaintiff submits that when Madam Li refers to Wang Snr’s application having been approved, this marks the beginning of the 7-year period where Wang Snr was required to park over HK$6.5 million of assets in Hong Kong. The Harbourfront Property was sold at the end of 2007 and he would have had to maintain his capital investment of at least HK$6.5 million in Hong Kong. This is consistent with the Plaintiff’s position as to Wang Snr’s request that, although there was a common intention that both the Plaintiff and Wang Snr would beneficially own the HK Properties, they would be in Wang Snr’s name only.

18.  Soon after the Plaintiff and Wang Snr had met in 1996, they formed an intimate relationship in that:

(a)  The Plaintiff moved from her residence in Sai Wan Ho to a property in Fanling owing to its proximity to SZ (“Fanling Property”).

(b)  The Plaintiff and Wang Snr cohabited at the Fanling Property as well as at Wang Snr’s property in Nantin Tower, Futian, SZ (“Nantin Property”). The Nantin Property was registered in the joint names of Wang Snr and Madam Li as part of the divorce settlement between them. Madam Li and Wang Jnr lived there from a date in 1996 after their divorce.

(c)  By around late 1999[9], the relationship between the Plaintiff and Wang Snr had developed to such an extent that they became investment and business partners. Their personal relationship, joint financial arrangements, joint business ventures, joint property investments and other joint financial activities continued until the death of Wang Snr.

19.  It was the common intention of the Plaintiff and Wang Snr that irrespective of the nominal/legal ownership, all their assets, whether in terms of properties, businesses, investments or funds in bank accounts, whether in Hong Kong, PRC or elsewhere, would be beneficially owned by them in equal shares. In particular, this common intention would cover properties in Hong Kong and bank accounts, whether in the sole name of the Plaintiff or Wang Snr, or in the joint names of the Plaintiff and Wang Snr. As far as joint bank accounts are concerned, the Plaintiff and Wang Snr had such a joint account with Standard Chartered Bank (“SCB”) and the Bank of China (Hong Kong) (“BOC”).

20.  As far as properties are concerned, the Plaintiff and Wang Snr invested in the HK Properties in Hong Kong between 1999 and 2007/2008 ie Mei Foo in 1999, Harbourfront in 2004, Victoria Towers Property in 2005 and Shun Cheong Property in 2007/2008[10] which were all assigned into the name of Wang Snr. It was the common intention of the Plaintiff and Wang Snr at the time of the purchase of each of the HK Properties that irrespective of who the registered owner was, each property was beneficially owned by them in equal shares. Hence, properties registered in the name of Wang Snr were held by him on trust for himself and the Plaintiff.

21.  For Mei Foo, the purchase price was HK$2.2 million all paid with the Plaintiff’s funds[11]:

(a)  The initial deposit was HK$100,000 and paid at the time of Preliminary Sale and Purchase Agreement around 17 October 1999.

(b)  The balance of the 10% deposit of HK$120,000 was paid at the time of the Sale and Purchase Agreement around 28 October 1999.

(c)  The full balance of HK$1,980,000 was paid on completion on 29 November 1999.

22.  Mei Foo was where the Plaintiff and Wang Snr cohabited when Wang Snr was in Hong Kong. It was said to be their first quasi-matrimonial home. It was purchased in the name of Wang Snr and assigned to him at his request. The reason given by Wang Snr was in order to improve his credit status with banks in the PRC so that he could obtain bank loans on more favourable terms. Whether or not objectively that was what PRC banks required, that was what Wang Snr had told the Plaintiff.

23.  Mei Foo was subsequently transferred by Wang Snr to the Plaintiff on 31 March 2004 at the purchase price of HK$980,000 which, according to the Plaintiff, was never paid. It was sold by the Plaintiff in 2005 for HK$2.5 million. The entire sale price was paid to the Plaintiff.

24.  For Harbourfront, it was purchased in June 2004 at the price of HK$22.85 million. The initial deposit was HK$1,142,500 and the balance of the deposit of HK$1,142,500 were all paid with Wang Snr’s funds from his bank account or his credit card. On completion on 10 June 2004, HK$6,855,000 was paid from the Plaintiff’s account and the balance from a mortgage loan with SCB in the sum of HK$13,710,000. The mortgage was granted to the Plaintiff and Wang Snr jointly as borrowers.

25.  Harbourfront was used as the Hong Kong residence of the Plaintiff and Wang Snr. It was sold in December 2007.

26.  For Victoria Towers Property, it was purchased in May 2005 at the price of HK$8.28 million. The initial deposit of HK$410,000, the balance of the 10% deposit of HK$418,000 [12] and the full balance of HK$7,452,000 were paid with funds from the Plaintiff and Wang Snr’s joint bank account held at SCB (“SCB Joint account”). The estate agent’s commission of HK$41,400 was paid by a cheque drawn on the Plaintiff’s account with BOC (“P’s BOC account”).

27.  Since its opening, the SCB Joint account was a channel through which the Plaintiff and Wang Snr jointly managed their finances. She had at all material times handled all the transactions in connection with it and had exercised effective control of all the funds in it. The Plaintiff contributed to the SCB Joint account because it was the common intention of Wang Snr and her that funds in it were their joint assets.

28.  The Plaintiff and Wang Snr acquired Victoria Towers Property as their quasi-matrimonial home. They had co-habited in it from 2005 to shortly before Wang Snr passed away in 2008.

29.  While the purchase of Victoria Towers Property was not financed by a mortgage loan, in order to finance Wang Snr’s investment activities, the Plaintiff agreed to enter into a legal charge on Victoria Towers Property dated 28 September 2007 (“SCB Mortgage”) for a loan of HK$5,590,000 as a co-borrower with Wang Snr. The monthly repayment amount for the SCB Mortgage was slightly over HK$30,000. The Plaintiff agreed to become jointly liable for repayment of the said mortgage since she was also a co-owner and in reliance on Wang Snr’s assurance that she would eventually become the sole owner of Victoria Towers Property.

30.  Wang Snr had made mortgage repayments via his own bank account with SCB (“Wang’s SCB account”). The Plaintiff has also been repaying the mortgage loan by making deposits to Wang’s SCB account by (i) cheques drawn on the Plaintiff’s BOC Account or the SCB Joint account and (ii) by cash deposits into Wang’s SCB account. Further, as it was their quasi-matrimonial home, the Plaintiff has incurred expenditure and paid for various expenses in connection with Victoria Towers Property:

(a)  refurbishment of the property in 2005 for approximately HK$547,918;

(b)  payment of utilities bills up to May 2013 of about HK$20,000 in total;

(c)  payment of management fees up to May 2013 of about HK$120,302 in total; and

(d)  payment of rates up to May 2013 of about HK$131,792 in total.

31.  Lastly, for Shun Cheong Property, it was purchased in 2007/2008 at the price of HK$16.08 million. The initial deposit of HK$500,000 was paid by cheque drawn on the SCB Joint account. The further deposit of HK$1,108,000 was paid for with funds originating from Wang Snr’s SCB Account. The balance of the purchase price plus expenses was paid for by a mortgage loan of HK$6 million from Wing Hang Bank and from part of the sale proceeds of Harbourfront in the sum of HK$9,044,279.

32.  Shun Cheong Property was purchased subject to existing leases. The rental income derived therefrom was HK$59,000 per month from 1 October 2006 to 30 September 2009 and increased to HK$67,850 from 1 October 2009 to 30 September 2011. All rental income was paid into Wang Snr’s bank accounts, including those with SCB and BOC, and was used to service the monthly mortgage repayment of around HK$56,000.

33.  Shun Cheong Property was purchased for the Plaintiff’s commercial use as a residential care home for the elderly. It was however conveyed into the sole name of Wang Snr because of their understanding of the requirements under the CIES.

34.  Around the time of and subsequent to the acquisition of Shun Cheong Property, Wang Snr had repeatedly assured the Plaintiff that she had a beneficial interest in Shun Cheong Property and that he intended to transfer its legal title to her sometime in the future. Such assurances were given by Wang Snr in about October 2007, on about 18 January 2008 and in about May 2008. This court accepts the Plaintiff’s testimony in this regard and will accord it with the appropriate evidential value, albeit the Plaintiff is not making a claim on the basis of these assurances as such.

35.  In the belief that she had a share in Shun Cheong Property and that ultimately its legal title would be vested in her, the Plaintiff has, both prior and subsequent to Wang Snr’s death, incurred expenses in connection with Shun Cheong Property eg annual fire insurance premium, monthly management fees and rates.

Defendant’s case

36.  Apart from denying the Plaintiff’s claims, the Defendant has pleaded 4 items of counterclaim against the Plaintiff in the Amended Defence and Counterclaim (“Defence and Counterclaim”). These 4 items are entitled “Unlawful occupation of the Victoria Towers Property”, “Shun Cheong Building Property”, “Sums in the joint accounts”, and “Unrepaid loan”.

37.  By the time of Mr Chui’s written Opening, only 2 items were mentioned in Section J “Relief Sought” viz:

(a)  An order for mesne profits in respect of the Plaintiff’s occupation of the Victoria Towers Property from August 2008 to the present, in the amount to be assessed by the Court;

(b)  An order for the repayment of loans made by the estate of Wang Snr to the Plaintiff, in the sums of HK$2,662,000 and RMB 2,350,000.

38.  By the time of Mr Chui’s written Closing, only the counterclaim for “Unlawful occupation of the Victoria Towers Property” remained in it. Also, Mr Chui did not attempt to pursue the other 3 items during his oral Closing. This court will thus disregard the rest and concentrate on this one item in so far as may be necessary.

39.  The pleaded basis of this claim is that that during the lifetime of Wang Snr, the Plaintiff was staying at Victoria Towers Property in the capacity of a licensee by way of a licence granted by Wang Snr. The said licence came to an end when Wang Snr passed away, yet the Plaintiff stayed on[13]. Further, the Plaintiff refused to deliver possession of Victoria Towers Property despite a written demand by the Defendant’s solicitors dated 17 May 2016, after the Defendant had obtained letters of administration of Wang Snr’s estate in Hong Kong in March 2016.

40.  The Defendant thus claims against the Plaintiff in the prayer for relief for (i) delivery of possession of Victoria Towers Property and (ii) mesne profits for her unlawful and unauthorised occupation of Victoria Towers Property at the prevailing market rate of its monthly rental from 29 June 2008 to the date of delivery of possession.

41.  Since Mr Chui’s written Closing contains only 7 short paras on the Defendant’s Counterclaim, this court will set them out in full for ease of reference.

“F. Submission 5: Defence’s counterclaim

137. It is the Defence's case that the Plaintiff was never granted any valid licence to occupy the Victoria Towers property, [whether before or][14] after the Deceased’s passing. The alleged licence is not supported by any contemporaneous documentary evidence and appears to be a recent invention by the Plaintiff to justify her continued occupation of the property rent-free.

138. In any event, even if the Court finds that a licence was granted to the Plaintiff during the Deceased’s lifetime (which is denied), it is clear that no fresh licence was granted to the Plaintiff after the Deceased’s death in 2008. The Plaintiff's continued occupation of the Victoria Towers property since 2008 has therefore been as a trespasser at all material times.

139. Crucially, the 2008 Agreement relied upon by the Plaintiff (B2/25/442) does not contain any express grant of a licence to occupy the Victoria Towers property. Clause 5 of the 2008 Agreement merely provides for the distribution ratio of rental income from the property, without granting the Plaintiff any right to occupy the same. The Plaintiff's attempt to imply a licence into the 2008 Agreement is wholly unmeritorious.

140. Further, Mdm Li Li has given unchallenged evidence that even if a licence had been granted to the Plaintiff, it was conditional upon the Plaintiff obtaining a grant of probate in respect of the Deceased’s estate within 1 year [B1/10/285-286/57]. It is common ground that the Plaintiff has failed to obtain probate to date. Accordingly, any licence to occupy the Victoria Towers property would have lapsed by 2009 in any event.

141. Furthermore, clause 3 of the 2008 Agreement states that “if the inheritance procedures cannot be completed within one year from the date of signing [the Plaintiff] will need to rent out the Victoria Towers Residence and use the rent to pay the bank mortgage and other expenses”. This clearly shows that the Plaintiff had no right to occupy.

142. In the premises, the Plaintiff's licence to occupy the Victoria Towers property (if any) came to an end, at the very latest, in 2015 [sic][15] when the Defendant unequivocally revoked the same by asking the Plaintiff to deliver vacant possession [B2/49/596-597]. The Plaintiff has had no right to occupy the property since 2015 [sic].

143. It follows that the Plaintiff is liable to pay mesne profits to the Defendant for her trespassory [sic] occupation of the Victoria Towers property from the date of the Deceased’s death to the date of vacant possession. As confirmed on day 1 of the trial, the quantum should be determined by a Master at a subsequent stage.”

The issues and witnesses

42.  The main issues to be determined in this case are:

(a)  Whether the Plaintiff has 50% beneficial interest in Victoria Towers Property and Shun Cheong Property on the basis of common intention constructive trust. (“Issue 1”)

(b)  Whether the Plaintiff has beneficial interest in Victoria Towers Property and Shun Cheong Property on the basis of resulting trust by reason of her financial contribution towards their acquisition, and if yes, the nature and extent of the Plaintiff's financial contributions and the extent of her beneficial interest in the 2 properties. (“Issue 2”)

(c)  If the Plaintiff did not have any beneficial interests in Victoria Towers Property as alleged, whether she has been in unlawful occupation of it and if yes since when and whether she is liable to pay mesne profits to the Defendant. (“Issue 3”)

43.  At trial, the Plaintiff called herself as the only witness.

44.  The Defendant called Wang Ying and Madam Li as witnesses. Wang Jnr’s 2 witness statements (Wang Jnr 1 and Wang Jnr 2) were treated as hearsay evidence.

45.  Both the Plaintiff and Madam Li have made 3 witness statements. They will be referred to as Hui 1, 2, 3 and Li 1, 2, 3 as the case may be.

46.  This court has carefully considered the testimony, as well as the demeanour, of all witnesses at the trial and assessed it against such of the documentary evidence as there is and the known and undisputed circumstances of this case. This court has in particular considered the inherent probabilities or otherwise of the witnesses’ testimony and assessed their credibility accordingly. As a matter of longstanding practice and out of abundance of caution, this court has also reviewed its own notes taken at the trial (especially its observation on the manner in which the witnesses testified) and the official transcripts of the trial in order to refresh its memory.

47.  As a preliminary observation, this court has borne in mind that at various times, the 3 factual witnesses were the women in Wang Snr’s life and love and had been disappointed by him. Thus, it is not improbable that their testimony would somewhat be colored by their emotions and feelings towards Wang Snr and perhaps one another. Further, some of the testimony of the 3 factual witnesses was obviously a repetition of what Wang Snr had told them. One glaring example is Madam Li’s testimony that Wang Snr had stopped loving the Plaintiff since about 2002 albeit they had not completely broken up until later. Another example is Wang Ying’s testimony that she believed Wang Snr genuinely loved her when he pursued her from around end of 2003. This court does not question their subjective belief was genuine but the weight to be accorded to such belief is another matter.

48.  A piece of evidence that the Defendant relies heavily on is what is said to be extracts of the notebooks of Wang Snr (“Notebooks extracts”). The scribbles in these extracts are not exactly self-explanatory and Madam Li had volunteered to decipher them in her witness statements. Yet, Mr Chui did not see fit to give an oral Opening on them. In his Closing, Mr Chui devoted 1½ pages to them. His main submission is that they corroborate the Plaintiff’s role as a finance manager of Wang Snr rather than a beneficial owner of his assets. Mr Chui submits that the absence of any entries supporting the Plaintiff's claimed beneficial interest is a glaring omission that undermines her case. He submits that the Notebooks extracts are strong evidence that the Plaintiff was merely a finance manager of Wang Snr, not a beneficial co-owner.

49.  On the other hand, Counsel for the Plaintiff submits that the Notebooks extracts have little or no evidential value. Wang Jnr who referred to some selected extracts of them was unable to testify. Madam Li, who referred to some more selected extracts of them, had testified but in the morning of 19 April 2024, in answer to questions from the bench, frankly admitted that she had no personal knowledge of their contents. In this court’s view, it is difficult to see what probative value this court can assign to these Notebooks extracts which after all are not complete (they are extracts) and not entirely self-explanatory.

50.  Lastly, while the expert reports of Mr James Wardell and Ms Lam Wai I had been filed and put in the trial bundles, neither experts were called to testify, for reasons which need not be gone into. For the purpose of this Judgment, this court will concentrate on the factual issues and the evidence thereon.

Deliberation

Issue 1 – common intention constructive trust

51.  The resolution of this issue depends principally if not exclusively on the credibility of the Plaintiff’s testimony.

52.  Given the personal relationship between the Plaintiff and Wang Snr and in particular the alleged common intention was a matter between the two of them, the most that the Defendant’s side can expect to do is to try to discredit the Plaintiff to such an extent that this court should wholly disbelieve her. This is a heavy task on the Defendant’s part.

53.  As far as the law is concerned, this court needs only to refer to the following.

54.  The starting point where there is sole legal ownership is sole beneficial ownership, and the onus is on the non-owner to show that he has any interest at all: Stack v Dowden [2007] 2 AC 432 at [56].

55.  In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at [2.3] - [2.4], Cheung JA identified two situations where a common intention constructive trust may arise.

“2.3 The first situation where common intention constructive trust may arise is where at any time prior to acquisition, or exceptionally at some later date, there is an agreement, arrangement or understanding reached between the parties on how the property is to be held beneficially.

2.4 The second situation is where there is no evidence to support a finding of an agreement or arrangement on the beneficial ownership of the property and the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention on the beneficial ownership of the property and as the conduct relied on to give rise to a constructive trust. In this situation direct contributions to the purchase price by the party who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference necessary to the creation of a constructive trust. …”

56.  At [1.6], Lam VP (as he then was) emphasised that the modern approach to constructive trust is to assess the common intention of the parties by a holistic approach having regard to the context. Further, as between resulting trust and constructive trust, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust: per Lam VP at [1.3].

Subjective and Objective Evidence in support of the Plaintiff

57.  Regarding the Plaintiff’s personal and financial relationship with Wang Snr, this is of course supported by the Plaintiff’s own testimony including their co-habitation arrangement in Hong Kong, their financial arrangement such as their joint accounts with and joint mortgage loans from banks in Hong Kong, which are all indisputable. It is also supported by the Plaintiff’s testimony concerning Wang Snr’s oral assurances to her regarding his assets, particularly the 2 properties in dispute, although that is more controversial.

58.  Understandably, Mr Chui for the Defendant goes to great length in his written Closing to criticise the Plaintiff as being an incredible and unreliable witness. These criticisms will be not be overlooked – they will be dealt with later in this Judgment.

59.  On the close relationship between the Plaintiff and Wang Snr, counsel for the Plaintiff invites this court to focus specifically on the following viz:

(a)  Evidence on the Plaintiff’s relationship not just with Wang Snr but also with his family members as well as his family members’ recognition of their intimate relationship, which, counsel for the Plaintiff submits, is also evidence of the Plaintiff’s intimate relationship with Wang Snr.

(b)  The manner in which the Plaintiff and Wang Snr handled matters of money and investment. In this regard, their banking arrangement as well as their arrangement with regard to all the HK properties must be considered as a whole.

60.  Apart from the Plaintiff’s own subjective testimony, there is objective evidence in support of her case.

61.  First, a video taken of the funeral of Wang Snr held in Shaoguan Guangdong in July 2008 in which the Plaintiff, Madam Li and Wang Jnr among others were seen attending it, queuing side by side or one after another. Wang Snr’s other family members and friends were also present at the funeral. No one suggests the funeral was organised by the Plaintiff. Nor does anyone suggest the video was commissioned by the Plaintiff.

62.  What can be seen from the video is that the Plaintiff was dressed in traditional Chinese mourning costume suitable for a family member. The Plaintiff was next to Madam Li when walking into the funeral parlour and standing in line as one of Wang Snr’s family members, receiving condolences from family and friends. The Plaintiff was seen hugging the body of Wang Snr (wrapped in golden cloth) before it was put inside the coffin in front of everyone else. Before Wang Snr’s body was about to be cremated, the Plaintiff went hysterical and was screaming and crying. At one stage the Plaintiff almost fainted and had to be supported by others around her. While it was suggested to the Plaintiff in cross-examination that it was just a “show”, that suggestion seems a bit farfetched – back in 2008, it was highly improbable that the Plaintiff had the foresight that this video would eventually be viewed in court proceedings years later.

63.  To put the funeral arrangement in context, one must bear in mind the death of Wang Snr in a traffic accident in Shaoguan was wholly unexpected.

64.  According to Hui 3, Wang Jnr was at that time studying in USA. The Plaintiff was at that time visiting the UK. Both had to fly back to the PRC in a hurry to attend the funeral. On the Plaintiff’s testimony, she met up with Wang Jnr in SZ and took the train together from SZ to Shaoguan where the funeral was held. Wang Jnr did not say anything to the contrary in Wang Jnr 2 which post-dated Hui 3.

65.  Further, the Plaintiff was not the one who organized the funeral – the arrangement was all organised by the time she returned to Shaoguan. The costume and other arrangements at the funeral could only show that whoever organized the event was aware of the relationship between the Plaintiff and Wang Snr.

66.  All this of course does not prove the common intention of the Plaintiff and Wang Snr regarding the HK Properties and other assets. But it does prove their close relationship and disprove the Defendant’s contention that Wang Snr had broken up his romantic relationship with the Plaintiff in around 2003, long before his death.

67.  In his Closing, Counsel for the Plaintiff submits that the video of the funeral provides significant insight into the grief and devastation of the Plaintiff as well as the recognition of her relationship with Wang Snr, even by Madam Li. This court agrees that the Plaintiff’s behaviour at the funeral was genuine and the video is evidence of the grief and devastation of the Plaintiff as well as the recognition of her relationship with Wang Snr, even by Madam Li.

68.  Second, a written Agreement dated 20 August 2008 signed by Wang Jnr and the Plaintiff (“2008 Agreement”) in which Wang Jnr entrusted to the Plaintiff the task of handling Wang Snr’s “inheritance procedure in Hong Kong”. Wang Jnr further agreed to transfer Victoria Towers Property to the Plaintiff and that, after the sale of Shun Cheong Property by the Plaintiff, she would get 70% of the proceeds of sale after deducting the “original down payment” of HK$10.8 million and certain fees, taxes and other expenses.

69.  The 2008 Agreement is in this court’s view a significant piece of evidence. It was signed when Wang Jnr was already 19 years old. He was an intelligent[16] young man. He was also the person entitled to inherit Wang Snr’s estate as his only child[17]. According to Wang Jnr 1, in December 2008, he obtained the right to inherit Wang Snr’s estate in the PRC in accordance with the then Law of Succession of the PRC.

70.  That document gives significant insight into Wang Jnr’s acceptance of the close relationship, personal and financial, between the Plaintiff and Wang Snr. It also contradicts the Defendant’s contention that the Plaintiff was merely an ex-girlfriend of Wang Snr: Wang Jnr 2 at para 8, Li 1 at para 9; Wang Ying at para 2.

71.  The following is the working translation of the 2008 Agreement [18] prepared by the parties.

“Party A: Wang Chao (identity card no.: 44031198905194411)

Residential address: 18E, Block 6, Yiyou Garden, Huangpu Yayuan, Futian District, Shenzhen City, Guangdong Province

Party B: Hui Sau-ngai [identity card no.: P224499(7)]

Residential address: Flat 46B, Tower 3, The Victoria Towers, No. 188 Canton Road, Tsim Sha Tsui, Hong Kong

Wang Jianguo owned two properties in Hong Kong: (Property 1: Flat 46B, Tower 3, The Victoria Towers, No. 188 Canton Road, Tsim Sha Tsui, Hong Kong (estimated outstanding bank mortgage is five million and six hundred thousand Hong Kong dollars), hereinafter referred to as the “Apartment at Victoria Towers”; Property 2: 1^st and 2^nd Floors, Shun Cheong Building, No. 28 Hau Wo Street, Kennedy Town, Hong Kong (estimated outstanding bank mortgage is six million Hong Kong dollars), hereinafter referred to as the “Shop Premises at Hau Wo Street”). After friendly negotiation between Party A and Party B, both parties agreed to handle the above-mentioned properties in the following manner:

1. Since Wang Jianguo entrusted Party B with full authority over all his financial matters in Hong Kong when he was alive, in order to go through the inheritance process soonest, Party A agreed to entrust Party B to be the administrator for the inheritance procedures in Hong Kong. Party B shall be responsible for handling the relevant matters, while Party A shall provide the documents and information required.

2. Party A agreed to give the “Apartment at Victoria Towers” to Party B as a gift, and agreed to assist Party B to handle the notarial and ownership transfer procedures within three months from the date of having obtained the lawful grant of representation, or to handle this simultaneously during the ownership transfer after selling the “Shop Premises at Hau Wo Street”, and the relevant costs for ownership transfer etc. shall be borne by Party B. Party B shall be responsible for paying the bank mortgage and all daily expenses etc. for the “Apartment at Victoria Towers”.

3. If the inheritance procedures cannot be completed within one year from the date of signing this agreement, Party B would need to rent out the “Apartment at Victoria Towers”, and to pay the bank mortgage and other expenses with the rent collected.

4. Party A shall be responsible for all daily expenses (bank mortgage payments, land rent and government rates, utilities and management fees etc.) of the “Shop Premises at Hau Wo Street). Income from rent should be used to pay for the above daily expenses, any remaining balance should be used to make bank mortgage payment for the “Apartment at Victoria Towers”. Party B shall be responsible for handling the daily matters (negotiation on leasing matters, rent collection and sale etc.) of the “Shop Premises at Hau Wo Street”[19].

5. Party B shall be responsible for selling the “Shop Premises at Hau Wo Street” at the right price. After having sold the premises, Party A should first recover the originally invested down payment of ten million and eighty thousand Hong Kong dollars only (HK$10,080,000.00). After paying all the fees related to the inheritance procedures and the relevant taxes due, the remaining balance shall be divided between Party A and Party B at a ratio of 3:7.

6. Party B must provide Party A with all the original lists and duplicate copies of the legal documents and the relevant rental income and expenses etc., monthly reports should be provided to Party A during the transition period.

7. This agreement is made in duplicate, each party shall retain one copy. Should dispute arises between Party A and Party B, they may file a case at their respective places of household registration.

Party A: [signed, fingerprinted] Wang Chao Date: 20 August 2008 (emphasis added)

Party B: [signed, fingerprinted] Hui Sau-ngai Date: October 2008”

72.  It was only in December 2011 that Wang Jnr filed a civil complaint with the Court in the Futian District, SZ (“SZ Court”) to terminate the Plaintiff’s appointment as the person to handle the inheritance of Wang Snr’s estate in Hong Kong. The ground of the application was that after signing the 2008 Agreement, the Plaintiff had failed to perform the task entrusted to her, “resulting in repeated delays in the inheritance matters. To this day, the Plaintiff has not been able to complete the inheritance procedures. To sum up, the Defendant did not take the initiative to perform her obligations, resulting in the plaintiff's inability to inherit the estate.”

73.  Hence, it can be seen that the complaint filed by Wang Jnr only concerned Clause 1 of the 2008 Agreement, the so-called Power of Attorney in his witness statement, and nothing else.[20]

74.  By a Judgment dated 6 December 2012, the SZ Court stated:

“The court holds that the above Agreement between the plaintiff and the defendant is an entrustment contract in nature, is not against the mandatory provisions of laws and regulations, and is lawful and valid. Article 410 of the Contract Law of the People’s Republic of China stipulates that the principal or the agent may rescind an entrustment contract at any time. In this case, the plaintiff is the principal and has the right to rescind the entrustment contract at any time according to law. Therefore, the court supports the plaintiff’s request. The defendant, who believes to have incurred losses due to the plaintiff’s act of rescinding the contract, may resolve the matter through other legal channels.

In summary, in accordance with Articles 8 and 410 of the Contract Law of the People’s Republic of China and Article 64, paragraph 1, of the Civil Procedure Law of the People’s Republic of China, the judgment of the court is as follows:

The Agreement signed by plaintiff Chao Wang and defendant Hui Sau Ngai on August 20, 2008, in which plaintiff Chao Wang entrusts defendant Hui Sau Ngai to deal with the inheritance in Hong Kong is terminated.”[21] (emphasis added)

75.  The background to Wang Jnr’s application to terminate the Plaintiff’s appointment was dealt with in Wang Jnr 2 and Hui 3.

76.  In Wang Jnr 2 at paras 22 to 23, he explained that in the two and half years following the execution of the 2008 Agreement, the Plaintiff failed to apply to the Hong Kong Court for the administration of Wang Snr’s estate in Hong Kong or to provide “the status of Hong Kong assets in accordance with the Agreement”. The Plaintiff also went into a quarrel with Madam Li. Hence, Wang Jnr sued the Plaintiff in the SZ Court in December 2011, requesting the Court to terminate the Plaintiff’s authorization to apply for letters of administration in Hong Kong under the 2008 Agreement.

77.  The Plaintiff’s explanation can be found in Hui 3 at para 13. Essentially, by late 2009 and early 2010, her relationship with Madam Li turned sour. Madam Li was all along reluctant to provide the Plaintiff with the necessary PRC documents in relation to Wang Snr and was sometimes very rude on the phone. Around early 2010, Madam Li even refused to speak to the Plaintiff or to provide her with the relevant documents so that the Plaintiff could not proceed anymore with the application.

78.  Since this is not an issue in this Action and the Plaintiff is not suing the Defendant on the 2008 Agreement, it is unnecessary for this court to find out the real reason why the Plaintiff failed to apply for the administration of Wang Snr’s estate in Hong Kong in accordance with it. As this court states earlier, the significance of that document is that it is evidence of Wang Jnr’s understanding and acceptance of the close relationship, personal and financial, between the Plaintiff and his father and would support the Plaintiff’s case of a common intention concerning Wang Snr’s assets including the HK Properties.

79.  Third, Madam Li and Wang Jnr’s acceptance of the close relationship between the Plaintiff and Wang Snr.

80.  This court notes that Madam Li does not dispute the Plaintiff and Wang Snr had a romantic relationship at least from 1996 to 2002. At paras 17 and 18 of Li 2, Madam Li said this:

“17. Ms. Hui produced one of Mr. Wang’s lover letters (HSN-17) to prove that Mr. Wang used to love her. I do not question the fact that Ms. Hui and Mr. Wang used to love each other, and Mr. Wang told me about it. During the three years from 1996 to 2002, Mr. Wang did love Ms. Hui. This love letter dated December 1997 was written when their love was intense. If Mr. Wang married Ms. Hui at that time, I would have my best wishes for them.

18. Mr. Wang loves “money” but is capricious in relationships. The relationship between Ms. Hui and Mr. Wang went down in 1999, changed in 2002 and ended in 2003…” (emphasis added)

81.  The love letter from Wang Snr to the Plaintiff referred to in para 17 was stated to have been written at 4 am on 4 December 1997. Just to give a flavor of that letter, this court sets out below an extract of its working English translation:

“…Sau, do you know how much I miss you after you left? Do you know how dearly I hold you in my heart? I would say, I miss you all the time. I silently tell myself that Sau, my dear, when will you come back, when will I see you? We are both in our 30s should be mature. I think in this lifetime, I would live only with my dear Sau. I didn’t realize anything when we were together, but once when I come to think of it when we separated and calmed down, I owe my Sau an apology on a lot of things…”

82.  As can be seen above, Madam Li testimony is that Wang Snr’s relationship with the Plaintiff ended in 2003. Counsel for the Plaintiff submits that this is clearly not supported by the behavior of inter alia Madam Li who sent a phone message to the Plaintiff on 20 August 2008. That message acknowledged the close relationship between Wang Snr and the Plaintiff and also expressed her thoughts that Victoria Tower Property should belong to the Plaintiff:

“From: Li Li

2008-08-20

10:10

Frankly speaking, I have not treated you as an outsider, but as a friend. I believe Jianguo would hope I would do this. I have always thought you have the deepest feelings for him, so, from the beginning I have always had one viewpoint, the Victoria Towers should be given to you. Lao Qin [老秦], his eldest brother and I have always said this. You can ask them.” (emphasis added)

83.  Next, in an email dated 27 February 2011 from Wang Jnr’s PRC lawyer Wang Xin to the Plaintiff, offering a solution to the essentially “family” matters between the Plaintiff and Wang Jnr. Wang Xin said, no doubt after taking instructions from Wang Jnr, in the 3^rd paragraph of that email that:

“I can understand your feelings. Both you and Wang Chao are related to Wang Jianguo. It can be said to be a family matter. Few people use the law to handle family matters….” (emphasis added)

84.  Wang Xin, while claiming that the 2008 Agreement was legally invalid based on his PRC legal knowledge and after consulting lawyers in Hong Kong, then went on to set out Wang Jnr’s settlement offer, including the making of a gift of Victoria Towers Property to the Plaintiff while Wang Jnr would keep Shun Cheong Property as his own. As thing’s turned out, that offer was rejected.

85.  The evidential value of that email is that as late as 2011, Wang Jnr was prepared to treat the Plaintiff as part of the family and offered Victoria Towers Property to her on condition of the Plaintiff assisting in the handling of the inheritance of Wang Snr’s assets in Hong Kong. Of course, one can argue that Wang Jnr did not really mean it. But the thing is Victoria Towers Property was a valuable piece of property worth HK$8.28 million when it was purchased in mid- 2005. Wang Jnr could have obtained letters of administration of his father’s estate in Hong Kong, which he did in 2016 well after this Action had commenced, without the assistance of the Plaintiff by instructing sufficiently competent lawyers in Hong Kong.

86.  Equally important is that the email shows in his lifetime, Wang Snr’s finance and investments in Hong Kong were only known to himself and the Plaintiff, and that not even his son or Madam Li knew very much save for the 2 HK properties ie Victoria Towers Property and Shun Cheong Property. While Madam Li might subjectively believe the relationship between Wang Snr and the Plaintiff had ended in 2003 whereas she and Wang Snr had remained close friends after their divorce in 1996, Wang Snr might not have thought the same way – otherwise, Madam Li would not have been less informed than the Plaintiff about Wang Snr’s assets in Hong Kong.

87.  Fourth, the cohabitation arrangement between the Plaintiff and Wang Snr in Hong Kong[22]. This was detailed in Hui 1 and Hui 3. Essentially, the Plaintiff’s testimony is that whenever Wang Snr was in Hong Kong, they lived together – at first, in a place in Fanling, then Mei Foo (purchase completed in 1999), then Harbourfront (purchase completed in 2004) and lastly Victoria Towers Property (purchased completed in 2005). This is a matter entirely between the Plaintiff and Wang Snr, it is difficult to see how the Defendant could seriously challenge it.

88.  If documentary evidence is required, the Plaintiff’s cohabitation with Wang Snr in Hong Kong is also supported by contemporaneous documentary evidence. As an example, Mei Foo was the residential address used by Wang Snr and the Plaintiff when Harbourfront was purchased in 2004 ie after Madam Li claimed they had broken up in 2003. This can be seen from the provisional sale and purchase agreement dated 11 March 2004, the formal sale and purchase agreement dated 13 March 2004, bills issued to Wang Snr by Woo Kwan Lee & Lo, and SCB’s written offer of a mortgage loan to Wang Snr and the Plaintiff in the sum of HK$13.71 million dated 30 March 2004. Another example was in relation to Victoria Towers Property in 2005 – it was purchased without the assistance of a mortgage loan but one was obtained from SCB years later: in SCB’s written offer of a mortgage loan to Wang Snr and the Plaintiff in the sum of HK$5.59 million dated 24 August 2007 and in the legal charge dated 28 September 2007, their residential address was stated to be Victoria Towers Property. Yet another example was in relation to the purchase of Shun Cheong Property – in the legal charge dated 21 January 2008, Wang Snr’s residential address was stated to be Victoria Towers Property.

89.  Fifth, the joint bank accounts of the Plaintiff and Wang Snr. In addition to bank accounts in their sole names in Hong Kong, it is not in dispute that the Plaintiff and Wang Snr held joint bank accounts in Hong Kong with BOC and SCB. In Wang Jnr 1, he was even able to list out their account numbers:

“Joint Bank Accounts

1. After the death of Father, I know Father and Ms HUI had the following joint accounts:

	Bank	Account No.
1	Bank of China (Hong Kong) Co., Ltd.	012-586-0-005008-7 (Closed by Ms HUI in March 2009)
2	Bank of China (Hong Kong) Co., Ltd.	012-586-1-016007-1 (Closed by Ms HUI in March 2009)
3	Bank of China (Hong Kong) Co., Ltd.	012-586-9-207201-3 (Closed by Ms HUI in March 2009)
4	Bank of China (Hong Kong) Co., Ltd.	012-586-63-15149-1 (“Securities Account”) (Closed by Ms HUI in March 2009)
5	Standard Chartered Bank Hong Kong Limited	17712823
6	Standard Chartered Bank Hong Kong Limited”	958-0-012223-3

90.  Wang Jnr went on to say that he believed the assets in these joint accounts belonged to his father, because his father had told Madam Li that the opening of the joint accounts was to facilitate the handling of his assets and payment of expenses by the Plaintiff on his behalf in Hong Kong. As Wang Jnr was unable to testify at the trial, it is difficult to verify what he claimed to be his belief. The important point here is the indisputable objective fact that Wang Snr and the Plaintiff had behaved in a way what many couples are known to have done in managing their finance ie by having joint name bank accounts.

91.  Sixth, joint investments in the HK Properties by the Plaintiff and Wang Snr.

92.  As stated earlier, the HK Properties were all assigned into the name of Wang Snr. However, the documentary evidence shows that either the property in question was paid for by the Plaintiff herself, or was financed by a mortgage loan granted to the Plaintiff and Wang Snr jointly, or was mortgaged to a bank for other purposes but with the Plaintiff and Wang Snr as co-borrowers and hence co-obligors under the relevant legal charge.

Mei Foo – purchase price HK$2.2 million in November 1999

93.  Mei Foo has been sold and is not the subject of the Plaintiff’s claims in this Action but the whole arrangement regarding its purchase is still relevant.

94.  On the documentary evidence provided by the Plaintiff [23], this court is satisfied that she had paid for the purchase price by cheques in the sums of HK$100,000 and HK$120,000[24] in October 1999 and by cashier orders in the sums of HK$480,000 and HK$1.5 million[25] on 29 November 1999, totaling HK$2.2 million. There is also evidence that the Plaintiff paid for some miscellaneous expenses such as stamp duty and legal costs.

95.  In March 2004, Wang Snr assigned Mei Foo to the Plaintiff for the sum of HK$980,000 which according to the Plaintiff had not been paid by her. There is no evidence from the Defendant to contradict the Plaintiff on this. Yet, in Li 2, Madam Li said it was embarrassing for the Plaintiff to say she spent money to buy back Mei Foo that she already owned.

96.  However, the point is that Mei Foo was re-assigned by Wang Snr to the Plaintiff who in 2005 sold it at a much higher price. Irrespective of whether it was paid by her, the sum of HK$980,000 was much lower than the initial purchase price of HK$2.2 million. There is no logical explanation as to why Wang Snr would have agreed to do that. The only explanation for the entire arrangement was the one provided by the Plaintiff ie the purchase of Mei Foo in 1999 was funded by her in the first place and this was acknowledged by Wang Snr.

97.  Madam Li’s theory, given in Li 2 at para 21 is that “…by then[26] Ms. Hui already knew Mr. Wang loved someone else. Mr. Wang assigned the Mei Foo Property to Ms. Hui at half price, i.e. gave half of the property to her, so that they could separate their respective assets thereafter. I also understand that this was because they had already broken up, and Mr. Wang did not frequently go to Hong Kong, so he authorized Ms. Hui to handle his financial affairs in Hong Kong and gave her the property as consideration.” In this court’s view, that is merely Madam Li’s own theory.

98.  Madam Li in Li 1 at para 24 claims she believes it was Wang Snr who paid for Mei Foo including the purchase price, stamp duty etc. on the basis it was marked in his notebook. However, she also acknowledges that she could not find any direct evidence to support her claim. So that’s that.

99.  The purchase of Mei Foo with the Plaintiff’s funds but assigned into the name of Wang Snr is important. It is a clear example that the legal title to the HK Properties did not necessarily correspond to their beneficial ownership and it is evidence of the common intention alleged by the Plaintiff.

Harbourfront – purchase price HK$22.85 million in June 2004

100.  Like Mei Foo, Harbourfront has been sold and is not the subject of the Plaintiff’s claims in this Action. However, the arrangement between the Plaintiff and Wang Snr regarding Harbourfront can also shed light on the Plaintiff’s alleged common intention.

101.  In the Statement of Claim, the Plaintiff has pleaded that the 10% deposit of HK$2.285 million was paid out of Wang Snr’s funds. On completion, part of the balance of purchase price ie HK$6,855,000 was paid from the Plaintiff’s bank account while the balance was funded by a mortgage loan from SCB. On the documentary evidence ie the completion statement by Terry Yeung & Lai, solicitors, the amount required for completion was actually HK$7,747,699.85 which included stamp duty and other miscellaneous expenses. This amount was shown to have been paid by a cheque dated 8 June 2004 out of the Plaintiff’s BOC account number 012-566-0-001178-7. Further, it is indisputable that the SCB mortgage loan was granted to Wang Snr and the Plaintiff as joint borrowers. The mortgage loan was HK$13.71 million which was not an insignificant amount.

102.  In order to service the SCB mortgage loan, the Plaintiff and Wang Snr had opened a joint account with SCB no. 958-0-012223-3 ie the SCB Joint account. On the Plaintiff’s evidence, it was the common intention of Wang Snr and her that there would be a mixing of funds deposited in this SCB Joint account in which they had an equal share and that is supported by independent evidence. As far as the Plaintiff is concerned, she had paid over HK$5.49 million into it between 25 June 2004 and 23 May 2007[27]. Further, the initial and further deposits upon the sale of Harbourfront were also paid into this account, as explained below.

103.  In this court’s view, if there was no common intention regarding the beneficial interest in Harbourfront, it is rather improbable that she would have taken up the substantial burden of being a co-obligor of the mortgage loan. In Li 1 at para 29, Madam Li suggested that because Wang Snr was not a Hong Kong resident but the Plaintiff was, he asked her to be one of the borrowers of the mortgage loan. The Plaintiff agreed to that arrangement but it was Wang Snr alone who was responsible for repaying the loan.

104.  As this court sees it, Madam Li’s suggestion may or may not be one of the things in the mind of Wang Snr, but it cannot explain why the Plaintiff would have been agreeable to that arrangement.

105.  Further, Madam Li’s suggestion that it was Wang Snr alone who was responsible for repaying the mortgage loan is contradicted by the documentary evidence adduced by the Plaintiff (deposit slips, BOC bank statements and SCB bank statements) which shows that between 25 June 2004 and 23 May 2007, the Plaintiff had paid a total of over HK$5.49 million (mostly from her BOC current account) into the SCB Joint account.

106.  Counsel for the Plaintiff emphasises that throughout the period when Harbourfront was registered in Wang Snr’s sole name from 2004 to 2007, the Plaintiff took on the obligations which normally only a co-owner would take. Not only was she a co-borrower under the SCB mortgage loan, the documentary evidence shows she has also paid some of the expenses relating to the property eg management fees[28], rates and utilities (electricity and gas) from her own funds. In this regard, the electricity bills issued by CLP Power and the Town Gas bills were all issued to the Plaintiff personally.

107.  Subsequently, Harbourfront was sold in December 2007 for HK$25,500,000. As far as the sale proceeds are concerned, they were received as follows:

(a)  The initial and further deposits were paid into the SCB Joint account – the account statement dated 22 November 2007 shows 2 cheque deposits of HK$765,000 and HK$1,785,000 on 16 November 2007.

(b)  HK$12,176,872.91, being the balance of the sale proceeds (after deducting the money to redeem the SCB mortgage) was paid by cheque to Wang Snr’s account no. 325-1-100490-0 on 20 December 2007.

Victoria Towers Property - purchase price HK$8.28 million in May 2005

108.  It is the Plaintiff’s evidence, corroborated by documents, that the entire purchase price of Victoria Towers Property plus expenses were funded from monies in the SCB Joint account in 3 tranches of HK$410,000, HK$730,700[29] and HK$7.457 million[30]. Since the purchase of Victoria Towers Property was from monies in a joint account, counsel for the Plaintiff submits that it is strong evidence of the alleged common intention and in any event 50% of the purchase price should be attributable to the Plaintiff. This court agrees.

109.  Further, the Plaintiff had paid with her own money the estate agent’s commission of HK$41,400 and contributed with her own money to various expenses in connection with Victoria Towers Property, mostly from her BOC current or savings account. These included management fees and rates[31] , fitting out expenses of HK$339,000 odd and HKD 232,000 odd [32] (as set out in a table prepared by the Plaintiff and supported by various invoices, cheques, and cash memos, all disclosed by the Plaintiff), and utilities expenses [33]. The CLP electricity bills and Town Gas bills were all issued in the name of the Plaintiff. In this court’s view, if anything, these are evidence of the co-habitation of the Plaintiff and Wang Snr in Victoria Towers Property after its purchase and prior to Wang Snr’s death.

110.  Victoria Towers Property was at first mortgage free when it was purchased in May 2005. Subsequently, on 28 September 2007, the Plaintiff and Wang Snr as co-borrowers entered into a legal charge with SCB ie the SCB Mortgage for a loan of HK$5.59 million to finance inter alia Wang Snr’s stock trading. Although this is less than the mortgage loan in respect of Harbourfront, it is still not a small sum. Further, there is documentary evidence that the Plaintiff had contributed on and off to the mortgage repayments which contribution continued after Wang Snr had passed away.

111.  As with Harbourfront, if there was no common intention regarding the beneficial interest in Victoria Towers Property as claimed by the Plaintiff, it is rather improbable that she would have taken up the substantial burden of being a co-obligor of the mortgage loan. Further, this court asks why the Plaintiff should continue to contribute to the mortgage repayments even after Wang Snr had passed away, when Victoria Towers Property was all along registered in his sole name and the property would unlikely pass to her under the law of succession?

112.  In addition, it is the Plaintiff’s testimony that Wang Snr had given assurances to her, both prior and subsequent to the acquisition of Victoria Towers Property, that she would be entitled to the beneficial ownership of Victoria Towers Property and that he intended to vest its legal title in her sometime in the future. Given their co-habitation and intimate personal and financial relationship, in light of the objective evidence outlined above, this court is prepared to find as a fact that such assurances had indeed been given by Wang Snr in his lifetime and as a piece of evidence supporting the common intention.

Shun Cheong Property – purchase price HK$16.08 million in 2007/2008

113.  Counsel for the Plaintiff submits that the way the purchase was funded, according to contemporaneous documents, was as follows.

114.  The initial deposit of HK$500,000, payable on 5 December 2007, came from the SCB Joint account, as shown by a cheque dated 5 December 2007 and the SCB Joint account statement dated 22 December 2007.

115.  The funding of the further deposit of HK$1,108,000, payable on or before 19 December 2007, also originated from the SCB Joint account. What happened was that there was first a withdrawal of HK$2 million on 18 December 2007 which was deposited into Wang Snr’s SCB savings account no. 325-1-100490-0 on 18 December 2007[34] and immediately HK$1,108,000 was withdrawn on the same day. This sum was transferred to Hau Lau Li & Yeung solicitors also on the same day, as shown by the transfer slip issued by SCB dated 18 December 2007.

116.  After taking into account the mortgage loan of HK$6 million from Wing Hang Bank and refund of rental deposit of HK$177,000, a sum of HK$9,044,279 was required to complete the purchase (as shown in the statement of account of Hau, Lau, Li and Yeung solicitors dated 17 January 2008). This sum came from the sale proceeds of Harbourfront, moved through the joint bank accounts of the Plaintiff and Wang Snr and then the sole account of Wang Snr with BOC before reaching Hau, Lau, Li and Yeung solicitors.

117.  The movement of funds might be a bit complicated but the long and short of it is that even Madam Li accepted in Li 1 at para 52 that after the completion of the sale of Harbourfront in December 2007, Wang Snr used part of the sale proceeds to repay the SCB mortgage loan and used the balance to fund the completion of Shun Cheong Property.

Challenge to the Plaintiff’s case

118.  At the beginning of his written Closing, Mr Chui puts forward 4 submissions in Defence.

119.  First, the Plaintiff has not contributed to any purchase price of the subject properties, viz Harbourfront, Victoria Towers Property, and Shun Cheong Property.

120.  Second, the Plaintiff was a finance manager of Wang Snr assisting him with his Hong Kong financial affairs during his lifetime.

121.  Third, the 2008 Agreement showed the intention of the parties.

122.  Fourth, the Plaintiff is not a credible and reliable witness.

123.  After carefully considering Mr Chui’s submissions and the available evidence, this court is not persuaded by any of them.

124.  First, it is submitted by the Defendant that the Plaintiff has not contributed to any purchase price of the subject properties. This is not borne out by the evidence.

125.  To start with, Mr Chui has deliberately or otherwise omitted to mention the purchase of Mei Foo by the Plaintiff with her own funds and the Defendant’s unfounded case and Madam Li’s misguided belief that Mei Foo was paid for by Wang Snr. The basis of her belief was the Notebooks extracts.

126.  In Li 1 from paras 20 onwards, Madam Li, after referring to her interpretation of the Notebooks extracts, concluded at para 24 that:

“24. I believe Mr WANG himself paid all money for the Mei Foo Property, including the purchase price, stamp duty, legal fee, brokerage commission and renovation costs. If he hadn’t paid all the money, it would be groundless for Mr WANG to write down the amount of each of them, and it would be equally groundless for him to analyse and take notes about the historical transactions of the property at Mei Foo Sun Chuen. I couldn't find direct evidence for Mr WANG’s payment of the above money, because Mainland China at that time did not allow wiring money out and it is my belief that the payment was done through a third party.” (emphasis added)

127.  That paragraph reveals that Madam Li’s analysis of the Notebooks extracts in her witness statements is a complete non sequitur, however genuine her subjective belief might be. For reasons already explained, on the evidence, this court is satisfied that it was the Plaintiff who paid for Mei Foo so as to enable the Plaintiff and Wang Snr to live together when he was in Hong Kong. In this respect, the objective evidence speaks for itself. Importantly, Madam Li’s emphasis on the Notebooks extracts in her witness statements shows just how unreliable such emphasis is and leads this court to conclude that it cannot place weight on the Notebooks extracts in making any findings of fact.

128.  Next, Harbourfront. Mr Chui accepts that HK$6,855,000, being the balance of the purchase price payable upon completion, was paid out of the Plaintiff’s own bank account. In fact, on the evidence, the Plaintiff had paid HK$7,747,699.85 upon completion, corroborated by a copy of her cheque in that amount and a corresponding entry in her bank statement. That sum included the balance of purchase price, stamp duty, solicitors’ costs and disbursement etc, as shown in the solicitors’ completion statement. On such contemporaneous documentary evidence, it is difficult to see how Mr Chui can still dispute the Plaintiff had contributed to the purchase of Harbourfront.

129.  Yet, Mr Chui asserts in his Closing that the balance of purchase price ie HK$6,855,000 represented Wang Snr’s own money. In support of his assertion, Mr Chui relies on some scribbles in the Notebooks extracts as well as Madam Li’s interpretation of them.

130.  This court has already commented on the unreliability of the Notebooks extracts.

131.  In his Closing, Mr Chui submits that in the Notebooks extracts, Wang Snr put down the need to remit HK$10.08 million to Hong Kong before 14 May 2004 for the purpose of property purchase. Even if the scribbles refer to Harbourfront, there is however no explanation in the Notebooks extracts or by Mr Chui as to why there was a need to remit HK$10.08 million to Hong Kong before 14 May 2004, when the completion date of Harbourfront was only 10 June 2004.

132.  In Hui 3, the Plaintiff explained the remittance of HK$10.08 million in this way. She said she had worked and lived with Wang Snr since 2000 wherever he worked, which was mainly in the PRC. While they were not formal business partners, Wang Snr had promised he would share his profits with her. Thus, in around 2004, after Wang Snr had made profits from his real estate business in 石家莊市中浩房地產有限公司, he shared some of them with her - on 14 May 2004, the total amount of HK$10,080,000 was transferred to the Plaintiff’s BOC saving account in 3 separate tranches - HK$3,000,000, HK$5,500,000 and HK$1,580,000. These remittances were arranged by Wang Snr to be deposited into her bank account.

133.  As between Mr Chui’s and Madam Li’s own interpretation of the Notebooks extracts and the Plaintiff’s testimony, this court has no difficulty in preferring the Plaintiff’s testimony.

134.  Mr Chui further submits in his Closing that the nature and purpose of the HK$10.08 million can also be ascertained from clause 5 of the 2008 Agreement, which states that HK$10.08 million of the sale proceeds of Shun Cheong Property should first be repaid to Wang Jnr before the remainder was to be split between the Plaintiff and him. This is said to be indicative that the HK$10.08 million was Wang Snr’s money, not a distribution of profits to the Plaintiff.

135.  This court does not accept Mr Chui’s said submission. This court has already set out the working translation of the 2008 Agreement. It can be seen that Clause 5 had nothing to do with the purchase of Harbourfront whatsoever. Further, the Plaintiff does not dispute that the HK$10,080,000 was transferred to her by Wang Snr at all – her testimony is that it was a distribution of business profits from Wang Snr to her. This court does not see any reason why the HK$10,080,000 could not be a distribution of business profits from Wang Snr to the Plaintiff just because the money came from Wang Snr himself.

136.  Next, Victoria Towers Property. There is no dispute by Mr Chui that the purchase of this property was paid out of monies in the SCB Joint account. However, Mr Chui submits, without analysing the evidence, that the monies were solely contributed by Wang Snr. This is unsatisfactory.

137.  Mr Chui submits at para 25 of his Closing that that the mere fact that money is deposited into a joint bank account does not necessarily mean that the account holders own the funds beneficially in equal shares and that the presumption of joint beneficial ownership is rebuttable by evidence of the parties’ contrary intention: Aroso v Coutts & Co [2002] 1 All ER (Comm) 241 at [22].

138.  The facts of Aroso v Coutts were sufficiently stated in the headnote. The claimant, the fourth child and legal personal representative of the deceased, claimed that a joint investment account held at the defendant bank in the names of the deceased and his nephew had been in the sole beneficial ownership of the deceased and that the bank had wrongfully paid money or transferred assets out of the account at the direction of the nephew after the death of the deceased.

139.  What was actually decided in that case was also set out in the headnote:

“The fact that one of the holders of a joint account did not contribute to or draw upon the joint account did not prevent that person from having a beneficial interest. It would not matter if such a person did not even know of the existence of the joint account…. In the instant case, the bank had adduced sufficient evidence to displace the presumption of resulting trust, and had established that the deceased had intended to give his nephew a beneficial interest in the assets in the account. According, the claim would be dismissed.” (emphasis added)

140.  At [22], Lawrence Collins J (as he then was), stated this:

“[22] The starting point is that where a person transfers property, or directs a trustee for him to transfer property, otherwise than for valuable consideration, and where the presumption of advancement does not apply, it is a question of the intention of the transferor in making the transfer whether the transferee was to take beneficially or on trust, and if on trust, what trusts.”

141.  It can be seen that Aroso v Coutts does not assist the Defendant at all. The Plaintiff’s case here is different from that of the nephew in Aroso v Coutts since (i) there is evidence that the Plaintiff had contributed significant amount of funds to the SCB Joint account and (ii) there is the testimony of the Plaintiff on her common intention with Wang Snr that the funds in the SCB Joint account belonged to them beneficially. In this regard, the Plaintiff’s testimony in Hui 1 cannot be clearer. At para 30, the Plaintiff testified:

“30. At this point, we had already opened and been keeping a joint bank account with the Standard Chartered Bank ("SCB Joint Account"). This joint account was set up originally in connection with a mortgage loan obtained by Wang and me as borrowers in respect of the Harbourfront Property jointly purchased by us in or about March 2004. It was our common intention that there would be a mixing of funds standing in the SCB Joint Account in which we had an equal share. Wang and l each would put our own moneys into this joint account whenever there was any surplus of funds that would not find any immediate use. I reckon that Wang probably would have put over the years as much as I did into the SCB Joint Account, but this is irrelevant, because we both intended that there was to be a mixing of funds in the SCB Joint Account in which we would have an equal share.” (emphasis added)

142.  At para 37, the Plaintiff had listed out the amounts of her contribution to the SCB Joint account over the years which were to the tune of over HK$5.49 million.[35]

143.  In light of the Plaintiff’s testimony on the common intention that she and Wang Snr should have an equal share in the SCB Joint account as well as her financial contribution to it, which this court accepts, and in the absence of credible contrary evidence from the Defence, it is rather surprising for Mr Chui to submit at [28] of his Closing that:

“The Plaintiff has failed to adduce any credible evidence that the Deceased intended the funds in the Joint SCB Account to be jointly owned with the Plaintiff. The Defence’s position that the account was funded almost entirely by the Deceased’s funds, including the proceeds of sale of his solely-owned Harbourfront Property. There is no evidence that the Plaintiff made any substantial contribution to the account….”

144.  Even assuming for the sake of argument that the burden is on the Plaintiff to prove joint beneficial ownership of the SCB Joint account which after all is in the joint names of the Plaintiff and Wang Snr, for the reasons given above, this court rejects the Defendant’s submission that the purchase of Victoria Towers Property was solely funded by Wang Snr.

145.  Lastly, Shun Cheong Property.

146.  The way the purchase of Shun Cheong Property was funded had been explained earlier in this Judgment. It was partly funded from monies in the SCB Joint account, partly from the sales proceeds of Harbourfront and partly from the mortgage loan from Wing Hang Bank.

147.  In his Closing, Mr Chui submits that the Plaintiff did not contribute to the purchase of Shun Cheong Property at all. The basis of that submission, as this court understands it, is that the Plaintiff had no beneficial interest in the monies in the SCB Joint account or in Harbourfront. Given this court’s findings that the Plaintiff had an equal share in the monies in the SCB Joint account and an equal beneficial interest in Harbourfront, the basis of Mr Chui’s submission simply falls apart.

148.  Second, the Defendant submits that the Plaintiff was merely a finance manager of Wang Snr, assisting him with his Hong Kong financial affairs during his lifetime. She has no beneficial interest in the HK Properties, whether by way of common intention constructive trust or resulting trust.

149.  In this regard, Mr Chui prays in aid (i) Clause 1 of the 2008 Agreement, (ii) Madam Li’s testimony that she was the one who managed Wang Snr’s bank accounts and assets in SZ but admittedly without any beneficial entitlement to them, and that her role in managing Wang Snr’s assets in SZ mirrored that of the Plaintiff in managing Wang Snr’s Hong Kong assets and is clear evidence of his modus operandi (iii) the Notebooks extracts do not contain any entries suggesting that the Plaintiff had a beneficial interest in the HK Properties or that Wang Snr intended to give her such an interest, (iv) the Plaintiff’s own conduct during Wang Snr’s lifetime (in failing to assert any beneficial interest in the HK Properties) and after his death (for delaying in asserting her rights to the 2 subject properties ie Victoria Towers Property and Shun Cheong Property until 2013), (v) the Plaintiff’s use of a power of attorney granted to her by Wang Snr to sign off conveyancing instruments with regard to the HK Properties and (vi) the fact that financial reports were prepared by both the Plaintiff and Wang Jnr, which according to Mr Chui confirms that the Plaintiff, just like Wang Jnr, was merely performing a managerial function in keeping records of Wang Snr’s assets in Hong Kong.

150.  This court has carefully considered Mr Chui’s lengthy submissions in this regard and conclude that none of them are meritorious:

(a)  Clause 1 of the 2008 Agreement does not say the Plaintiff was merely Wang Snr’s finance manager in Hong Kong – rather it says the Plaintiff was entrusted with full authority over all the financial matters of Wang Snr in Hong Kong; the fact that the Plaintiff had such authority and her 50% beneficial interest in the HK Properties were not mutually exclusive – they were complimentary to each other;

(b)  the fact that Madam Li had no beneficial entitlement to Wang Snr’s assets in SZ proves nothing – it certainly does not prove Wang Snr and the Plaintiff did not share the common intention over their assets in Hong Kong;

(c)  the Notebooks extracts, as already noted earlier in this Judgment, are unreliable evidence first because they are incomplete and second because they are not entirely comprehensible; even assuming for the sake of argument that there is nothing in the Notebooks extracts (they were extracts after all) which states that the Plaintiff had a beneficial interest in the HK Properties or that Wang Snr intended to give her such an interest, that does not disprove the Plaintiff’s case;

(d)  to start with, the Plaintiff did assert and obtain both legal and beneficial title in Mei Foo; the fact that she did not assert any beneficial interest to the other 3 HK Properties during the lifetime of Wang Snr simply proves she trusted Wang Snr, especially his assurances, and accepted his explanation that he needed the properties to be in his sole name for reasons already explained; her delay in asserting her interest to Victoria Towers Property and Shun Cheong Property after Wang Snr’s death proves nothing except that she had her hesitation in taking Wang Jnr to court by reason of their cordial relationship;

(e)  the Plaintiff’s use of a power of attorney granted to her by Wang Snr to sign off conveyancing instruments with regard to the HK Properties was purely a legal requirement, given Wang Snr was the legal owner of the HK Properties – it is difficult to see how else the Plaintiff could have signed off the conveyancing instruments on behalf of Wang Snr;

(f)  the financial records prepared by the Plaintiff were much more detailed than those prepared by Wang Jnr which consisted of only a few pages and were confined to some very basic information about Mei Foo, Harbourfront and Victoria Towers Property; if they prove anything, the financial records prepared by the Plaintiff proves she was in charge of Wang Snr’s financial matters in Hong Kong, just as she said. Those few pages prepared by Wang Jnr do not disprove the Plaintiff’s role as a beneficial owner while managing Wang Snr’s financial matters in Hong Kong.

151.  Most importantly, this court is prepared to accept the Plaintiff’s testimony and make factual findings of the intimate personal and financial relationship between the Plaintiff and Wang Snr, of the fact that the Plaintiff has made financial contributions to the purchase of the HK Properties and the existence of the common intention between the two that the HK Properties belonged beneficially to them in equal shares. In these circumstances, the Defendant’s submission that the Plaintiff was merely a finance manager of Wang Snr is without merits and should be rejected right away.

152.  Third, Mr Chui submits that the 2008 Agreement shows the Plaintiff had no beneficial interest in Victoria Towers Property or any of the other assets in dispute. The main thrust of the Defendant’s submission is that in Clause 2 of the 2008 Agreement, the Plaintiff acknowledged Wang Snr’s sole beneficial ownership of Victoria Towers Property by accepting it as a “gift” to her, contradicting her claim to a subsisting beneficial interest in it[36].

153.  At para 80 of his Closing, Mr Chui submits that if, as the Plaintiff now contends, she already had a beneficial interest in Victoria Towers Property during Wang Snr’s lifetime, then Clause 2 would make no sense. There would be no need for Wang Jnr to make a gift of the property to the Plaintiff if she was already the beneficial co-owner. The only coherent interpretation of Clause 2 is that it reflected the parties’ understanding at the time that Wang Snr was the sole beneficial owner of the property.

154.  In this court’s view, the fallacy of that submission is two-fold.

155.  First, the Plaintiff had never asserted a 100% beneficial interest in Victoria Towers Property – her claim has always been a 50/50 share of Victoria Towers Property with Wang Snr. Hence, contrary to Mr Chui’s reading of Clause 2 of the 2008 Agreement, the Plaintiff never acknowledged Wang Snr had sole beneficial ownership of Victoria Towers Property – rather, she only accepted as a gift of whatever Wang Jnr was able to give to her on behalf of his father. Importantly, only Wang Snr had legal title to the property. The “gift” could be a reference to that legal title.

156.  Second, Wang Jnr had no understanding of what the common intention between the Plaintiff and Wang Snr might be with regard to Victoria Towers Property. Given the unexpected death of Wang Snr in a traffic accident, there was no opportunity for Wang Jnr to ascertain from his father, prior to his death, what his intention regarding Victoria Towers Property was. All that Wang Jnr said in Wang Jnr 1 at para 8 was that:

“…In the process of making those statements [relating to Victoria Towers and Mei Foo], Father never mentioned that Ms HUI was one of the buyers of either Victoria Towers Property or the Mei Foo Property. Father never indicated that he would give his properties in Hong Kong to Ms HUI as a gift.”

157.  The fact that Wang Snr did not tell his son anything about the HK Properties or his common intention with the Plaintiff is no proof that such common intention did not exist – there could be any number of reasons why Wang Snr did not wish or see fit to tell his son about it.

158.  Ultimately, as this court notes earlier in this Judgment, the 2008 Agreement gives significant insight into Wang Jnr’s acceptance of the close relationship, personal and financial, between the Plaintiff and Wang Snr. Otherwise, why else would he have agreed to give Victoria Towers Property to the Plaintiff? Or why else would he agree to split the sale proceeds of Shun Cheong Property with the Plaintiff in the proportion of 30/70? Victoria Towers Property and Shun Cheong Property were valuable properties and Wang Jnr was supposed to be the heir to his father’s estate. The explanation given in Wang Jnr 1 that he wished to handle Wang Snr’s probate procedure as soon as possible and he did not know the laws of Hong Kong just does not withstand scrutiny.

159.  Fourth, the Defendant submits the Plaintiff is not a credible and reliable witness. At para 97 of his Closing, Mr Chui submits that the Plaintiff’s case is fundamentally premised on her alleged intimate relationship with Wang Snr and the oral assurances and promises he purportedly made to her regarding the properties in dispute. However, a careful analysis of the evidence adduced at trial reveals that the Plaintiff’s account is riddled with inconsistencies, improbabilities and outright fabrications that fatally undermine her credibility. In particular, the Plaintiff has grossly exaggerated the nature and duration of her relationship with Wang Snr, invented self-serving evidence of her financial means, and belatedly sought to amend her case in an attempt to bolster her untenable claims.

160.  This court disagrees. Having carefully observed the way in which the Plaintiff testified, as well as her demeanour, at the trial and assessed the inherent probabilities or otherwise of her testimony and her credibility accordingly, this court finds the Plaintiff a credible witness and accepts her testimony. While Mr Chui has made a number of scathing attack on the Plaintiff, this court will only deal with those which are serious enough for a response.

161.  Mr Chui’s first attack against the Plaintiff is that she had exaggerated her intimate relationship with Wang Snr. In particular, Mr Chui submits that the Plaintiff’s rose-tinted account of her relationship with Wang Snr is directly contradicted by the evidence of Wang Ying who was Wang Snr’s intimate partner from around 2003 to early 2008 when the two split up. Importantly, Wang Ying testified that when Wang Snr tried to pursue a relationship with her, she had to make sure his previous entanglements were “cleaned up” before agreeing. This is wholly inconsistent with the Plaintiff's claim that she remained Wang Snr’s exclusive partner until his death. Lastly, Wang Ying’s testimony is corroborated by their intimate photographs which show her and Wang Snr together in Australia and Hong Kong.

162.  It does not require a psychologist to assess Wang Snr was a typical person who could not stay loyal to one woman. This is also the assessment of his ex-wife Madam Li. Counsel for the Plaintiff submits in his written Closing that the Plaintiff has never asserted her relationship with Wang Snr was “exclusive” which is true. There is in this court’s view no contradiction between the Plaintiff’s testimony on her relationship with Wang Snr and Wang Ying’s description of her relationship with him.

163.  This court has considerable sympathy for Wang Ying who genuinely believed she was the only woman in Wang Snr’s life during their time together and that he loved her the most. However, the fact that Wang Snr had an intimate relationship with Wang Ying, assuming that was the case between 2003 and 2008, is no proof that the Plaintiff had exaggerated her relationship with Wang Snr at all. As this court points out earlier, there is a whole lot of objective evidence in support of the Plaintiff’s case that she had an intimate relationship with Wang Snr. The evidence is too numerous to be recited here again but it includes inter alia Wang Snr’s love letters to her, their co-habitation in Hong Kong and the PRC, the Plaintiff’s free hand in dealing with his assets in Hong Kong, the acceptance of the Plaintiff by Wang Snr’s family members at his funeral etc. It is unreal to describe the relationship between the Plaintiff and Wang Snr has deteriorated from being lovers to being Wang Snr’s finance manager.

164.  Mr Chui also submits that the Plaintiff’s attempt to portray herself as a grieving quasi-widow at the funeral of Wang Snr is difficult to reconcile with her own conduct. On her own evidence, the Plaintiff did not return to Hong Kong until at least some 10 days after Wang Snr’s passing, and played no role in arranging the funeral. Mr Chui also criticizes the Plaintiff’s melodramatic and over-the-top emotional display at the funeral, which stood in marked contrast to the more restrained behaviour of Madam Li and Wang Jnr, and appeared calculated to create an exaggerated impression for the cameras. This court finds such criticisms completely unjustified. This court has earlier in this Judgment commented on the funeral of Wang Snr as shown in the video. Those comments speak for themselves.

165.  Next, Mr Chui submits that the Plaintiff’s testimony in Hui 1 that Wang Snr had made a made a series of oral assurances and promises to her that she would be entitled to Victoria Towers Property (as well as Shun Cheong Property) is highly improbable and is pure fabrication. This court has carefully considered Mr Chui’s submission in this regard, and takes the view that there is nothing extraordinary about these oral assurances and promises from a man like Wang Snr - any assurances and promises which were accepted as genuine by the Plaintiff would suffice as far as he was concerned. Even for the sake of argument that they were illogical, this court does not accept that the Plaintiff would fabricate something illogical in an attempt to bolster her proprietary claims, when she is not even making a claim on the basis of those oral assurances and promises.

166.  Mr Chui submits at paras 107 to 109 of his Closing that those assurances and promises are illogical and inconsistent with the objective facts as to the timing of Wang Snr’s application in 2004 for permanent residence in Hong Kong, as far as Victoria Towers Property was concerned. Counsel for the Plaintiff replies that there was no evidence that Victoria Towers Property was designated by Wang Snr as a permissible investment for the purpose of his CIES application. Hence, Mr Chui’s criticism in this regard was put on a completely false premise. This court agrees.

167.  Next, Mr Chui criticises the Plaintiff for exaggerating her source of investment income from the UK in order to boost her claim of a resulting trust by virtue of her financial contributions towards the purchase of the subject properties. The main thrust of his criticism is that the Plaintiff was unable to provide documentary proof of her earnings but purely from her own recollection. In this court’s experience, the failure of a witness to provide sufficient documentary proof is nothing out of the ordinary. At most, it means the witness cannot come up to proof. It does not mean the court should jump to the conclusion that the witness is a liar.

168.  Lastly, Mr Chui challenges the Plaintiff’s credibility in that in Hui 3, filed in April 2021, she had amended and disowned certain paragraphs contained in Hui 1, filed in July 2017, as not being in accordance with her instructions to her previous solicitors. The Plaintiff’s explanation for doing this is that it was only when her present lawyers interpreted Hui 1 (as well as Hui 2) to her word for word that she realized that there were errors in her two statements and wished to correct them.

169.  This court has considered the corrections that the Plaintiff sought to make to her earlier statement. On the face of it, in terms of the number of paragraphs which require revisions and/or expansion, it may seem quite a lot. But if one looks at the substance of those revisions, this court does not see any fundamental change to the Plaintiff’s case.

170.  For instance, there are revisions to the Plaintiff’s family background from paras 3 to 8 of Hui 1. But those paragraphs are mostly about the background of the Plaintiff’s father and have little impact on the gist of the Plaintiff’s case. The next correction was to the part on how Wang Snr and the Plaintiff came together in paras 9 and 10 of Hui 1. It is true that the Plaintiff has expanded on that in Hui 3 and has disowned the entire para 10 of Hui 1. But if one reads para 10 of Hui 1, which is repeated below, one can see that it is an immaterial paragraph.

“10. It was not a secret that there were a lot of business opportunities in China in the 1990s, but neither was it that these opportunities would fall evenly on each and every man. Only those people who had the right connections would be able to have a grip on these things in China. Although Wang had never gone to university and was originally born and raised in northern China, his upbringing never stopped him from his ambition and struggle to climb the top of the social pyramid in Chinese society (and so he thought) . He would single-mindedly devote virtually all of his waking hours to the thought of making money. As I reckon, what I was first attracted to Wang was partly about his incessant source of energy and savoir-faire. In short, he would never be short of thinking up new ways of making better use of my father's connections. With that, it would often come new business opportunities, new business partners and most importantly new sources of funds for investment.”

171.  The next revision was about Wang Snr’s business turning point in 1999 in paras 11 to 18 of Hui 1, when he went back to Shijiazhuang and started his property development business and then a few years later, Wang Snr explored new property developments in Shaoguan. The Plaintiff has expanded that part of Wang Snr’s business in Hui 3 which showed that his property development business was highly successful. For instance, at para 56 of Hui 3, the Plaintiff expanded on this:

“56. In 2000, I worked and lived full time with Wang. I was with him, wherever his work took him; this was mainly in the PRC. Wang and I were not formal business partners; I worked in Wang’s business out of affection and love for him; Wang promised that he would share the profits with me. Indeed, in around 2004 when he reaped profits from 石家莊市中浩房地產有限公司 Wang gave me some of the profits. On 14 May 2004, the total amount of HK$10,080,000 was transferred into my Bank of China saving accounts in 3 separate sums - $3,000,000, $5,500,000 and $1,580,000. These amounts were arranged by Wang to be deposited into my account in Hong Kong currency. I withdrew $7,747,699.85 for payments the down payment, stamp duty and legal fees of the Harbourfront Property. “HSN-25” is the copy of my Bank of China savings account passbook from 26 February 2004 to 6 August 2004.”

172.  While Madam Li complains that this part is new, the gist what the Plaintiff had said is in part backed up by contemporaneous documentary evidence ie her savings account passbook showing the deposits of HK$10,080,000.

173.  Instead of labouring over the minute difference between Hui 1 and Hui 3, this court should make this observation.

174.  Mr Chui makes a bold submission at para 128 of his written Closing that the Plaintiff’s amendments were “a calculated ploy to rewrite the evidentiary record in her favour after her case had been shown to be untenable”. The amendments had “everything to do with improving the Plaintiff's litigation position by abandoning allegations she could no longer sustain.” If Mr Chui is so certain that those deleted or revised paragraphs from Hui 1 can be objectively shown to be untenable or contain allegations she could no longer sustain, it is incumbent on him to point that out in his Closing, paragraph by paragraph, and explain why those paragraphs are untenable or unsustainable. This Mr Chui has failed to do. Instead, he has simply taken a broad brush quantitative approach and concluded at para 130 that because the Plaintiff has made quite a number of revisions to Hui 1, the inference must be that she was seeking to reconstruct her evidence “to meet the exigencies of trial” without even specifying what exigencies of trial the Plaintiff was trying to meet.

175.  Mr Chui submits that the Plaintiff’s testimony should be approached with the utmost caution and circumspection. But having done that, this court is still of the view that Mr Chui’s attack on the Plaintiff’s credibility is not such as to persuade this court to disbelieve her.

Conclusion on Issue 1

176.  This court accepts the Plaintiff’s testimony as truthful and is prepared to find in favour of the Plaintiff on Issue 1.

177.  This court thus rules that the Plaintiff has 50% beneficial interest in Victoria Towers Property and Shun Cheong Property on the basis of common intention constructive trust.

Issue 2 – resulting trust

178.  Since this court has resolved Issue 1 in favour of the Plaintiff by reference to the common intention of the Plaintiff and Wang Snr, there is no need to resort to resulting trust.

Issue 3 – unlawful occupation of Victoria Towers Property

179.  Again, given this court’s finding that the Plaintiff has always been a 50% beneficial owner of Victoria Towers Property, the question of her unlawful occupation does not arise.

Disposition and costs order nisi

180.  In the premises, this court hereby makes the following orders.

(a)  A Declaration that the Defendant (as personal representative of Wang Snr) holds the Plaintiff’s equitable interest in the Victoria Towers Property on trust for the Plaintiff on the basis that Wang Snr held the said property on trust for himself and the Plaintiff in equal shares.

(b)  An Order for sale of the Victoria Towers Property and for the net proceeds of sale to be paid to the Plaintiff and to the Defendant in equal shares.

(c)  A Declaration that the Defendant (as personal representative of Wang Snr) holds the Plaintiff’s equitable interest in the Shun Cheong Property on trust for the Plaintiff on the basis that Wang Snr held the said property on trust for himself and the Plaintiff in equal shares.

(d)  An Order for sale of the Shun Cheong Property and for the net proceeds of sale to be paid to the Plaintiff and to the Defendant in equal shares.

(e)  The Defendant’s Counterclaim is hereby dismissed.

(f)  There be an Order nisi that costs of the Action, including the Claim and the Counterclaim, be to the Plaintiff, to be taxed if not agreed, and paid by the Defendant forthwith, certificate for leading counsel.