HO HON PIU v. HO HON KA

HCA 1966/2013 &
HCA 660/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1966 OF 2013 ＆ NO 660 OF 2014

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J U D G M E NT

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INTRODUCTION

1.  Hon Piu (the plaintiff) and Hon Ka (the defendant) are brothers.  Their mother passed away in 2010.  Hon Piu claims that a property in North Point held in the name of Hon Ka, which was purchased in 1987 and sold in 1994, belonged beneficially to Hon Piu, Hon Ka and their mother in equal shares.  Hon Piu further claims that another property in Chai Wan purchased in 1992 originally in the joint names of Hon Ka and their mother and currently held in the sole name of Hon Ka is also beneficially owned by the three of them in equal shares.  On the other hand, Hon Ka claims that:-

(1)  their mother’s will, executed in 2007, in which she gave the whole of her residuary estate to Hon Piu, is invalid because (a) it was not properly executed by her and/or (b) of her lack of understanding of its contents; alternatively

(2)  the disposition in favour of Hon Piu under that will is invalid because the will was witnessed by his wife (and one other person).

2.  The principal issues which I have to determine are as follows:-

(1)  whether the North Point Property belonged beneficially to Hon Piu, Hon Ka and their mother in equal shares;

(2)  whether the Chai Wan Property belongs beneficially to Hon Piu, Hon Ka and the estate of their mother in equal shares; and

(3)  whether the mother’s will, alternatively the disposition in favour of Hon Piu under that will, is invalid.

Background facts

3.  At the trial, Hon Piu, his wife (“Sai Mui”) and Hon Ka gave oral evidence. In addition, the parties agreed that a witness statement made by Sai Mui’s younger sister (“Sai Chun”) could be admitted as evidence without cross examination.  In what follows, I shall set out what I understand to be undisputed background facts, save where otherwise expressly indicated.

(i)    Family background

4.  Mr Ho (the father) and Madam Chan (the mother) had two sons, namely, Hon Piu (born in 1947) and Hon Ka (born in 1950).

5.  In the 1960s, the Ho family was not financially well off.  Mr Ho did not work because of ill health.  Madam Chan worked as a dish cleaner.  Both Hon Piu and Hon Ka received primary education only and started to work to support the family since about 1963/64.

6.  In around 1965, the Ho family moved into a public housing unit in Chai Wan.

7.  Prior to 1967, Hon Piu worked as a messenger.  In April 1967, Hon Piu joined the police force and became a police officer.  He retired from the police force as a sergeant in April 2003.

8.  On the other hand, in the 1960s, Hon Ka worked as an electrical apprentice.  Later, he worked in different trades in Hong Kong and the Mainland until around 1994 when he became a taxi driver.  Hon Ka has been working as a taxi driver up to now although, because of his current ill health, he has temporarily ceased working.

9.  Mr Ho passed away in 1974.

10.  Hon Piu and Sai Mui got married in 1977.  Soon after their marriage, they moved to live in police married quarters in North Point.

11.  In around 1989, Madam Chan retired.

12.  In 1991, Hon Ka remarried in the Mainland.  Hon Ka’s wife and their two daughters came to Hong Kong in about mid-1997, and they lived together with Madam Chan in the Chai Wan Property (more particularly described below).

13.  In January 2010, Madam Chan passed away.

(ii)   The purchase of the North Point Property

14.  On 20 February 1987, Sai Mui signed a provisional agreement as agent for Hon Ka for the purchase of a property known as Flat C, 11/F, Ka Fook Court, Bedford Gardens, 151 Tin Hau Temple Road, Hong Kong (“the North Point Property”) at the price of HK$519,000.  In that provisional agreement, the name of the purchaser was stated to be “Ho Hon Chiu”, an alias of “Ho Hon Ka”.  “Ho Hon Ka” was also named as the purchaser in the subsequent formal sale and purchase agreement dated 4 March 1987 and assignment dated 8 May 1987.

15.  As stated in the provisional agreement, an initial deposit of HK$10,000 was paid to the vendor upon the signing of that agreement, and a further deposit of HK$41,900 was payable upon the signing of the formal sale and purchase agreement on or before 4 March 1987.

16.  In relation to the purchase of the North Point Property, a mortgage loan of HK$467,100 was obtained in the name of Hon Ka from HSBC repayable over a period of 15 years.

17.  After the purchase of the North Point Property, it was let to three sisters of Sai Mui, namely, Sai Chun, Sai Hing and Sai Ha initially at the rent of HK$2,500 per month which was subsequently increased to HK$3,000 per month in around 1991.

(iii)  The purchase of the Chai Wan Property

18.  On 2 May 1992, Madam Chan and Hon Ka entered into a formal agreement for the purchase of Flat J, 11/F, Block 3, Fullview Garden, 18 Siu Sai Wan Road, Hong Kong (“the Chai Wan Property”), a Home Ownership Scheme flat, as joint tenants at the price of HK$750,700.  As stated in the formal agreement, a deposit of HK$37,535 was paid upon the signing of that agreement, and the balance of the purchase price in the sum HK$713,165 was payable upon completion.

19.  The purchase of the Chai Wan Property was completed on 29 March 1993.  It was used as Madam Chan and Hon Ka’s residence.  According to Hon Piu and Sai Mui, Madam Chan and Hon Ka moved in to the Chai Wan Property on 15 March 1993.  On the other hand, Hon Ka said that they moved in after completion of the purchase of the Chai Wan Property, which took place on 29 March 1993.

(iv)  The sale of the North Point Property

20.  On 21 February 1994, Sai Mui entered into a provisional agreement as agent for Hon Ka for the sale of the North Point Property at the price of HK$2,400,000.  Out of the proceeds of sale, approximately HK$400,000 was used to discharge the outstanding mortgage loan in relation to the North Point Property, and HK$800,000 was used to discharge the outstanding mortgage loan in relation to the Chai Wan Property, leaving a balance of HK$1,200,000.  The sale of the North Point Property was completed on 31 March 1994.

21.  Out of the balance of HK$1,200,000, Hon Ka paid HK$200,000 to Hon Piu.  Hon Piu’s case is that the HK$200,000 represented a portion of his entitlement to the proceeds of sale of the North Point Property, whereas Hon Ka’s case is that he originally intended to pay the HK$200,000 to Madam Chan in appreciation of her support in the purchase of the two properties and it was upon Madam Chan’s suggestion and direction that he paid the said sum to Hon Piu.

(v)   The transfer of the Chai Wan Property to Hon Ka

22.  On 4 July 2007, Hong Kong Housing Authority gave consent to Madam Chan and Hon Ka for them to assign the Chai Wan Property to Hon Ka at nil consideration.

23.  On 11 October 2007, an assignment of the Chai Wan Property was executed by Madam Chan and Hon Ka (as assignors) to Hon Ka (as assignee) for no consideration.  The validity of this assignment is disputed by Hon Piu.

(vi)  The Will

24.  On 22 October 2007, Madam Chan was admitted to Mr and Mrs Lawrence Wong Lutheran Home for the Elderly (“the Elderly Home”).

25.  Also on 22 October 2007, Madam Chan executed the disputed will (“the Will”) in the presence of two witnesses, namely, Sai Mui and Ho Hang Nga (Hon Piu and Sai Mui’s daughter), using a standard form provided by the Elderly Home.

26.  Under the Will, Madam Chan appointed Hon Piu as the sole executor and trustee of the Will, and bequeathed the whole of her residuary estate to Hon Piu.

27.  In the course of the trial, Hon Piu (who acted in person) raised a number of allegations in respect of a variety of matters, including a proposed investment in a “7-Eleven Franchise”, the purchase of a taxi and two other properties in the PRC, and an allegation that Madam Chan was beaten up and even tortured (虐打) by Hon Ka’s wife (which I do not accept).  These allegations are peripheral to the main issues to be resolved in this action and I do not propose to deal with them further in this judgment unless they are relevant and necessary for the proper resolution of those issues.

The Alleged Family Fund

28.  It is Hon Piu’s case that, in or about April 1967, there was an oral agreement (“the First Oral Agreement”) reached amongst Madam Chan, Hon Piu and Hon Ka that:-

(1) a fund (“the Family Fund”) would be set up with moneys contributed or to be contributed by the three of them, and the Family Fund was intended to be used for three purposes: (a) investment, (b) emergencies and special events, and (c) Madam Chan’s maintenance;

(2) the Family Fund was to be kept in a savings account with Bank of East Asia (no 015-144-10-06412-6) held in the sole name of Madam Chan; and

(3) on a broad-brush basis, Madam Chan, Hon Piu and Hon Ka would each be entitled to a one-third interest in the Family Fund even though the respective amounts contributed by them might be different. 

29.  Hon Ka denies that there was any such oral agreement reached amongst Madam Chan, Hon Piu and Hon Ka.  Hon Ka accepts that both Hon Piu and he did pay a part of their respective earnings to Madam Chan, but the moneys that they paid to Madam Chan were given to her as their contributions to the living or household expenses of the family and out of their filial piety.  According to Hon Ka, the family’s earnings were barely sufficient to support their living.  There was no question of them setting up any fund for (inter alia) investment purpose.

30.  There is no contemporaneous documentary evidence of the First Oral Agreement, or of the existence of a separate Family Fund, as alleged by Hon Piu.  At the trial, Hon Piu produced evidence of various bank accounts and/or foreign currency deposits held in the name(s) of Madam Chan, or Madam Chan and Hon Piu jointly, or Madam Chan and Hon Ka jointly in support of his case.  However, the fact that such accounts or deposits existed is no evidence of the First Oral Agreement or the existence of the Family Fund.

31.  Hon Piu also said that Madam Chan used to keep records of the moneys contributed by him and Hon Ka in a Hang Seng Bank passbook for the Family Fund.  Hon Ka accepted that Madam Chan did keep written records of the moneys paid by him and Hon Piu as well as her own earnings, but that had nothing to do with the alleged Family Fund.

32.  In view of the common ground that the Ho family’s financial position in the 1960s was, to say the least, tight, and their earnings could barely cover their living expenses, I consider it to be inherently improbable that Madam Chan, Hon Piu and Hon Ka would, in around April 1967, agree to set up a family fund for the purpose of, inter alia, investment.  In the context of a small, traditional, Chinese family, it is, in my view, also inherently improbable that the mother and her two sons would agree to set up a family fund on an express basis that each would be entitled to a one-third beneficial interest in the fund.  As a matter of fact, Hon Piu did not state in his witness statement that there was any oral agreement that each of Madam Chan, Hon Piu and Hon Ka would be entitled to a one-third beneficial interest in the Family Fund, although it was mentioned in his oral evidence.  In fairness to Hon Piu, I note that such agreement was mentioned in the Consolidated Statement of Claim. 

33.  On this issue, I accept Hon Ka’s evidence that the moneys that he and Hon Piu paid to Madam Chan were given to her as their contributions to the living or household expenses of the family and out of their filial piety.  I reject Hon Piu’s case of the First Oral Agreement regarding the Family Fund.

Whether the North Point property belonged beneficially to Hon Piu, Hon Ka and Madam Chan in equal shares?

34.  According to Hon Piu:-

(1) In early 1987, Madam Chan told him and Sai Mui that the Family Fund had accumulated about HK$320,000 and she asked him how the money should be invested.  Hon Piu suggested buying a property.  An oral agreement (“the Second Oral Agreement”) was then reached amongst Madam Chan, Hon Piu, Hon Ka and Sai Mui as follows:-

(a) Hon Ka would be nominated as the registered owner of the property to be purchased, and he would hold the property on trust for Madam Chan, Hon Piu and Hon Ka.

(b) Madam Chan, Hon Piu and Hon Ka would each be entitled to a one-third interest in the property even though their respective contributions to the purchase of the property might be different.

(c) The property would be let to generate rental income.

(d) Hon Ka would be entitled to receive the rents from letting the property and responsible for the monthly mortgage repayment, while the rest of the acquisition costs would be paid either by Hon Piu or out of the Family Fund.

(e) Hon Piu would continue to make monthly contribution (which was at the rate of HK$500 per month in 1987) to the Family Fund, while Hon Ka would no longer be required to make any contribution to the Family Fund.

(2) The North Point Property was purchased in the name of Hon Ka pursuant to the Second Oral Agreement in February 1987, and then let to Sai Mui’s 3 sisters.

(3) In relation to the purchase of the North Point Property:-

(a) Hon Piu paid the sum of HK$10,000 to the vendor as initial deposit, and the sum of HK$2,600 to the estate agent as commission.

(b) The further deposit of HK$41,900, legal fee of HK$40,000 and miscellaneous fees of approximately HK$20,000 were paid out of the Family Fund.

(c) A mortgage loan of HK$467,100 was raised in the name of Hon Ka from HSBC.

(d) Hon Ka was responsible for making the monthly mortgage repayment (initially in the sum of HK$4,397 per month), and received the monthly rent from letting the North Point Property to Sai Mui’s three sisters (initially at HK$2,500 per month).

35.  On the other hand, according to Hon Ka:-

(1) In around mid-1980s, Madam Chan proposed to assist him to purchase a property in view of the fact that he did not have a stable job or income whereas his brother, Hon Piu, had secured a career in the Police Force and was entitled to live in police married quarters while serving as a police officer and to priority public housing after retirement.

(2) Hon Piu agreed with Madam Chan’s proposal and located the North Point Property for Hon Ka.

(3) In relation to the purchase of the North Point Property:-

(a) Madam Chan made a gift of HK$100,000 to Hon Ka to assist him in the purchase of the North Point Property.

(b) Out of the money provided by Madam Chan, Hon Ka used HK$2,600 to pay (through Sai Mui) the estate agent’s commission and HK$10,000 to pay the initial deposit for the purchase of the North Point Property.

(c) Hon Ka also used the money provided by Madam Chan to pay the legal and other incidental expenses in connection with the acquisition of the North Point Property.

(d) Hon Ka received the rents paid by Sai Mui’s three sisters and was responsible for making the monthly mortgage repayment until March 1994 when he sold the North Point Property for HK$2,400,000.

36.  I accept the evidence of Hon Ka and reject the evidence of Hon Piu and Sai Mui in relation to the circumstances in which the North Point Property came to be purchased in 1987, and find that Hon Ka was at all material times the sole legal and beneficial owner of the North Point Property, for the following reasons.

37.  First, as earlier mentioned, I reject Hon Piu’s allegation in respect of the First Oral Agreement regarding the Family Fund.  This allegation forms an integral part of his case in respect of the Second Oral Agreement.

38.  Second, Hon Piu has not produced any evidence that the initial deposit of HK$10,000 was paid by him as alleged.

39.  Third, it is, in my view, inherently improbable that Hon Ka would agree to take only a one-third beneficial interest in the North Point Property when he would be responsible for making the mortgage repayments (at the rate of HK$4,397 per month).  Even taking into account the rents received from letting the property (at the rate of HK$2,500 per month), Hon Ka would still need to fork out nearly HK$1,900 per month whereas, according to Hon Piu, he (Hon Piu) was only required to continue to contribute to the Family Fund at the rate of HK$500 per month.

40.  Fourth, according to Hon Piu, Hon Ka’s monthly income in 1987 was only HK$2,000 odd (and in any event less than HK$3,000), and it was known that he could hardly afford the monthly mortgage repayment.  That being the position, it seems to me to be inherently improbable that Hon Ka would agree to be responsible for making the monthly mortgage repayment.

41.  Fifth, if, as alleged by Hon Piu, the North Point Property was not to be owned by Hon Ka solely, but was intended to be beneficially owned by Madam Chan, Hon Piu and Hon Ka equally, it is difficult to see why Hon Ka would be nominated to act as the legal owner and mortgagor of the Property when it was known that Hon Ka at that time did not have sufficient income and assets to apply for a mortgage loan from HSBC.  According to Hon Piu, he had to stand as guarantor for Hon Ka’s indebtedness to HSBC, while Hon Ka said that he was able to obtain the mortgage loan only because he could produce proof that Madam Chan had sufficient assets to support his purchase of the property.  Hon Piu has not produced the alleged guarantee as evidence at the trial.  In my view, if the North Point Property was not to be owned solely by Hon Ka but was intended to be beneficially owned by Madam Chan, Hon Piu and Hon Ka equally, it would have been far more logical and reasonable for Madam Chan and/or Hon Piu to be nominated as the legal owner(s) and mortgagor(s) of the North Point Property.

42.  Sixth, if, as alleged by Hon Piu, the North Point Property was beneficially owned by Madam Chan, Hon Piu and Hon Ka equally, I believe that Hon Piu would have demanded Ho Ka to pay him one third of the net proceeds of sale of the North Point Property (after discharging the outstanding mortgage loans on the two properties).  It is, however, not in dispute that he only received HK$200,000 from Hon Ka.  Standing alone, the fact that Hon Ka paid HK$200,000 to Hon Piu out of the proceeds of sale of the North Point Property would be evidence that Hon Piu had some beneficial interest in that property.  However, the evidence of Hon Ka, which I accept, is that he originally intended to pay the HK$200,000 to Madam Chan in appreciation of her support in the purchase of the two properties and it was only upon Madam Chan’s suggestion and direction that he paid the said sum to Hon Piu.

whether the Chai Wan property belongs beneficially to Hon Piu, Hon Ka and the estate of madam chan in equal shares?

43.  According to Hon Piu, in or about 1992, Madam Chan, Hon Piu and Hon Ka entered into an oral agreement (“the Third Oral Agreement) as follows:-

(1) Madam Chan and Hon Ka, being the registered occupants of their existing public housing unit, would apply for the purchase of a Home Ownership Scheme flat using the “Green Form” and give up the public housing unit in the event of their application being successful.

(2) An arrangement similar to the investment in the North Point Property would be employed, namely –

(a) the property to be purchased would be held by Madam Chan and Hon Ka on trust for the three of them;

(b) on a broad-brush basis, Madam Chan, Hon Piu and Hon Ka would each be entitled to a one-third beneficial interest in the property even though their respective contributions might be different; and

(c) a mortgage loan would be raised for the acquisition of the property, and the monthly mortgage repayment would be made by Hon Ka while the rest of the costs would be paid either out of the Family Fund or by Hon Piu as circumstances might require.

44.  It is also Hon Piu’s case that, pursuant to the Third Oral Agreement:-

(1) Madam Chan and Hon Ka applied, successfully, to Hong Kong Housing Authority for the purchase of the Chai Wan Property.

(2) A formal agreement for the purchase of the Chai Wan Property at the price of HK$750,700 was entered into by Madam Chan and Hon Ka as joint tenants on 2 May 1992.

(3) The purchase consideration, legal fee and other miscellaneous expenses were paid as follows -

(a) the deposit of HK$37,535, legal fee of HK$38,258, miscellaneous fees of approximately HK$3,678, and moving expenses of HK$2,500 were paid using moneys in the Family Fund;

(b) decoration and furniture expenses of approximately HK$100,000 were paid by Hon Piu; and

(c) the balance of the purchase price was paid by raising a mortgage loan.

(4) The monthly mortgage repayment of approximately HK$6,000 was made by Hon Ka.

45.  On the other hand, it is Hon Ka’s case that:-

(1) The Chai Wan Property was purchased in preparation for his wife coming to Hong Kong.

(2) Apart from a portion of the down payment, legal expenses and decoration expenses, he provided the rest of the funds for the purchase of the Chai Wan Property, including all mortgage repayments.

(3) The joint tenancy arrangement in respect of the Chai Wan Property reflected Madam Chan’s intention to leave the property to him after her death.

(4) Hon Piu did not make any contribution towards the purchase of the Chai Wan Property.

46.  I reject the evidence of Hon Piu and Sai Mui in respect of the Third Oral Agreement, for the following reasons.

47.  First, as in relation to the North Point Property, I reject Hon Piu’s allegation in respect of the First Oral Agreement regarding the Family Fund. This allegation forms an integral part of his case in respect of the Third Oral Agreement.

48.  Second, it is Hon Piu’s evidence that in early 1992, Hon Ka’s salary was only approximately HK$3,000 per month.  He has not suggested that Hon Ka had any other source of income or any substantial savings.  That being the position, it seems to me to be inherently improbable that Hon Ka would agree to be responsible for the mortgage repayment of approximately HK$6,000 per month.  In passing, I should mention that according to Hon Ka, in around 1991, his salary was over HK$6,000 per month.

49.  Third, it is Hon Piu’s case that in 1992, his contribution to the Family Fund was only HK$13,000 per year (or HK$1,000 per month x 13 months), while Hon Ka would be responsible for the mortgage repayment of approximately HK$6,000 per month.  On Hon Piu’s evidence, his financial position was much better than that of Hon Ka.  That being the position, I consider it to be inherently improbable that Hon Ka would agree to take only a one-third beneficial interest in the Chai Wan Property while Hon Piu would also be entitled to a one-third interest in it.

50.  Fourth, Hon Piu has not produced any satisfactory evidence that he contributed HK$100,000 towards the decoration and furniture expenses of the Chai Wan Property.  Hon Piu referred the court to two withdrawals each in the sum of HK$50,000 from his bank accounts on 15 March 1993 and 19 March 1993 respectively which he said were paid to Madam Chan to defray the decoration and furniture expenses of the Chai Wan Property.  There is, however, no evidence to show that the moneys withdrawn from his bank accounts were in fact paid to Madam Chan or used for the purpose as alleged by him.  I am not prepared to accept Hon Piu’s assertion that the moneys were so paid or used.

51.  Hon Piu also challenges the validity of the assignment of the Chai Wan Property dated 11 October 2007 on the ground that it was not properly executed by Madam Chan. It is strictly speaking not necessary for me to make any finding on this issue because Hon Ka would, in any event, be entitled to the Chai Wan Property as the surviving joint tenant after the death of Madam Chan.  For the sake of completeness, I should mention that I reject Hon Piu’s allegation that the assignment was not properly executed by Madam Chan in view of the fact that it was apparently executed by her in front of a solicitor after having been interpreted the contents thereof by the solicitor.  I also accept Hon Ka’s evidence that the assignment was executed by Madam Chan in order that she would become qualified to apply for comprehensive social security allowance.

whether madam chan’s will, alternatively the disposition in favour of hon Piu under that will, is invalid?

52.  Hon Ka alleges that the Will is not valid because (i) it was not properly executed by Madam Chan and/or (ii) of her lack of understanding of its contents.

53.  I find that the Will was properly executed by Madam Chan, for the following reasons:-

(1)  On the face of the Will, Madam Chan executed it using her name chop, and her execution was witnessed by two persons, namely, Hon Piu’s wife (Sai Mui) and his daughter.

(2)  Sai Mui has given evidence, which I accept, on the due execution of the Will by Madam Chan.

(3)  There is before the court a letter from the Director of the Elderly Home dated 21 May 2013 stating that the contents of the Will had been explained to Madam Chan and she agreed to them.  I note that in the letter, it is stated that the explanation of the contents of the Will was given by the Director, whereas the evidence would suggest that the explanation was given by a staff of the Elderly Home.  I do not, however, consider this discrepancy in the letter to be material, or is such as would cause me to reject the veracity of what is stated in the rest of the letter.

(4)  There is also before the court a Medical Examination Form of the Elderly Home dated 17 October 2007 which indicates that Madam Chan’s mental state was normal on the date of the examination.

(5)  I do not consider the fact that Madam Chan executed the Will using her name chop to be suspicious in view of the fact that, apparently, she also used to sign various bank documents using her name chop.

54.  However, it is clear that the disposition of Madam Chan’s residuary estate to Hon Piu under the Will is invalid, by virtue of section 10(1) of the Wills Ordinance, Cap 30, which provides as follows:-

“If a person attests the execution of a will, and any disposition of or affecting any property (other than charges and directions for the payment of any debt) is given or made by the will to that person or his spouse, that disposition shall, so far only as concerns the person attesting the execution of the will, or the spouse of that person, or any person claiming under that person or spouse, be void.”

disposition

55.  For the foregoing reasons, I make the following declarations:-

(1)  the Will was validly executed by Madam Chan; and

(2)  the disposition of her entire residuary estate in favour of Hon Piu under the Will is void by reason of section 10(1) of the Wills Ordinance, Cap 30.

56.  Hon Piu may proceed to apply for probate of the Will in the common form, but Madam Chan’s estate shall be distributed as on an intestacy.

57.  I dismiss the rest of (i) Hon Piu’s claim against Hon Ka, and (ii) Hon Ka’s counterclaim against Hon Piu.

58.  In view of the fact that Hon Ka has been substantially successful in this consolidated action and has failed only in his challenge of the validity of the Will, I make an order that Hon Piu shall pay 90% of the costs of Hon Ka in this consolidated action, to be taxed if not agreed.