FU LAM LAM v. FU TING TING

CAMP 169/2025, [2026] HKCA 458

On An Intended Appeal from [2025] HKDC 474

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 169 OF 2025

(ON AN INTENDED APPEAL FROM DCMP NO 3116 OF 2021)

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J U D G M E N T

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Hon Harris J (giving the Judgment of the Court):

Introduction

1.  This is the Plaintiff’s renewed application for leave to appeal against the judgment[1] (“Judgment”)  of Deputy District Judge Joseph Vaughan (“Judge”)  dated 19 March 2025 together with a stay of execution of the Judgment.

2.  The Judge dismissed the Plaintiff’s claim against the Defendant and entered judgment for the Defendant’s counterclaim.  In short, the Judge declared that 79.6% of the beneficial interest, rights and title in relation to the Property[2] are held on trust for the Defendant.

3.  On 16 April 2025, the Plaintiff issued a summons to seek leave to appeal against the Judgment before the Judge pursuant to section 63(1) of the District Court Ordinance (Cap 336)  (“Ordinance”)  and Order 58, rule 2(4) of the Rules of the District Court (Cap 336H)  (“RDC”). On 18 August 2025, the Judge handed down a decision[3] (“Leave Decision”), refusing the Plaintiff’s application for leave to appeal and a stay of execution.

4.  Upon the Judge’s refusal, the Plaintiff issued a summons (“Summons”)  on 29 August 2025 to seek (a)  leave from this Court to appeal against the Judgment pursuant to section 63(1) of the Ordinance and Order 58, rule 2(4A) of the RDC; and (b)  stay of execution of the Judgment pending the determination of the appeal, if leave is granted.

5.  After reviewing the parties’ respective written submissions, we are of the view that it is proper to dispose of this application on paper in accordance with Order 59, rule 2A(5) of the Rules of the High Court (Cap 4A)  (“RHC”). This is our Judgment.

Background

6.  The factual background of this case has been set out comprehensively at [4]-[22] of the Judgment and need not be repeated here.  For present purposes, we will highlight the following.  It is undisputed that:

(1)  The Property was acquired at the price of HK$2,815,000 by the parties, who are sisters, as joint tenants on 23 November 1998, and that the purchase price was funded by both parties in equal shares, with a joint mortgage loan of HK$1,970,000 taken out with CITIC Ka Wah Bank Limited (“CITIC Mortgage”)  and a further joint mortgage loan of HK$600,000 with the Hong Kong Housing Society (“HKHS Mortgage”).

(2)  On 21 December 2001, the CITIC Mortgage was redeemed by a re-mortgage of the Property by the parties in favour of Wing Lung Bank Limited for a mortgage loan of HK$1,300,000 (“Wing Lung Mortgage”), repayable by 180 instalments.  The mortgage account, again, was in the joint names of the parties.

(3)  In December 2002, the Plaintiff married Mr Lee Ching Kit (“Mr Lee”), and the Plaintiff indicated to the Defendant that she would no longer reside at the Property.  The Plaintiff moved out of the Property soon afterwards.  Since then, the mortgage instalments were paid solely by the Defendant. The Wing Lung Mortgage was fully repaid on 11 June 2007, and the HKHS Mortgage was fully repaid on 28 September 2009.

(4)  On 25 March 2021, the Plaintiff registered a notice of severance of the joint tenancy at the Land Registry.  The notice was subsequently served on the Defendant on 21 April 2021.  On 14 May 2021, the Defendant, through her solicitors, asserted that given she had paid 79.6% of the purchase price of the Property and the Plaintiff had paid 20.4%, the beneficial interests of the Property should be divided in those proportions.

7.  The Plaintiff’s case can be summarised as follows:

(1)  Despite accepting that the Defendant would solely occupy the Property after the Plaintiff had moved out of the Property upon her marriage in late 2002, the parties had agreed that they would continue to be joint tenants.

(2)  In late 2002, it was agreed that the Defendant would be solely responsible for the repayment of the mortgage loans.  However, half of the mortgage instalments so paid by the Defendant would be treated as rental or a financial contribution by the Defendant to compensate the Plaintiff for the Defendant’s sole occupation of the Property.  The Defendant would also be solely responsible for all the outgoings of the Property such as management fees and utilities charges, in order to reflect her sole occupation of the Property (“Sole Occupancy Agreement”).

(3)  In August 2005, Mr Lee paid a sum of HK$730,000 on behalf of the Plaintiff as a one-off mortgage contribution for the early repayment of a substantial portion of the outstanding Wing Lung Mortgage, in order to alleviate the burden of bank interest on the parties.  The amount that Mr Lee paid was much more than the contribution made by the Defendant, HK$250,000, at that time.

(4)  In 2005, the Plaintiff and the Defendant had orally agreed (“2005 Agreement”)  that the Defendant would repay sums (not identified at that time)  to Mr Lee to balance the one-off mortgage contribution and equalise their respective contributions to the Wing Lung Mortgage.

(5)  The parties had agreed that the Defendant would make payments to the Plaintiff from time to time to account for her sole occupation of the Property. Thus, even after the Defendant had made payments to equalise Plaintiff’s one-off mortgage contribution, the Defendant still insisted on making payments to the Plaintiff to reflect the Defendant’s continued sole occupation of the Property.

(6)  The Plaintiff had requested the Property be maintained as a “family home” (娘家)  so that she would have a place to stay in case of any disputes with her husband.

(7)  The Defendant had paid HK$54,000 to the Plaintiff in around mid-2019 as the Plaintiff had proposed to the Defendant that either she should pay rent to the Plaintiff, or both of them should sell the Property and share the proceeds in equal shares, in response to which the Defendant said to the Plaintiff that she would pay rent in the sum of HK$9,000 per month.

8.  The Defendant’s case can be summarised as follows:

(1)  In around December 2002, the Plaintiff told the Defendant that, after her marriage, she would have to contribute to the mortgage repayments for her matrimonial home.  Thus, the Plaintiff would cease living at the Property or contributing to further mortgage repayments and outgoings related to the Property.

(2)  As the property market had fallen and comparable units at Galaxia were sold at prices far below the purchase price of the Property, the Plaintiff was unwilling to sell and the parties ultimately agreed not to sell the Property.  Instead, the Defendant would solely contribute to future mortgage instalments and outgoings, which she did.  The implication of this was that the parties’ interests in the Property would be in proportion to their respective contributions to the mortgage instalments and outgoings related to the Property.

(3)  In respect of the sum of HK$730,000 paid by Mr Lee, the Defendant denies that it was paid by Mr Lee on behalf of the Plaintiff as a one-off mortgage repayment.  Instead, the Defendant says this was a sum advanced by Mr Lee to her on around 11 August 2005 as a personal loan which the Defendant has repaid in full.

(4)  The Defendant alleges that the Plaintiff has kept her personal belongings at the Property, and that the Plaintiff has continued to use the Property as her correspondence address, and has continued to visit the Property, sometimes with her children, for meals and rest.

(5)  After their Father passed away in 2019, the Plaintiff began to harass the Defendant into selling the Property or paying rent to her because she was in need of money at that time.  The Defendant had paid the Plaintiff HK$54,000 out of affection and in the hope of putting a stop to the Plaintiff harassing her.  It had nothing to do with the ownership of the Property.  The payment was also made subject to the Plaintiff’s removal of her belongings from the Property and returning the keys and residence cards, but this was never done.

(6)  The Defendant counterclaimed for restitution of the amount of HK$54,000 on the ground of unjust enrichment in addition to asserting that she holds 79.6% of the beneficial interest in the Property.

The Judgment Below

9.  After carefully considering all the evidence, the Judge dismissed the Plaintiff’s claim that both parties are entitled to equal beneficial interests in the Property and that the Plaintiff is entitled to an order for sale pursuant to sections 2 and 6 of the Partition Ordinance (Cap 352).  Instead, the Judge allowed the Defendant’s counterclaim that there was a common intention constructive trust, that the Defendant now holds 79.6% of the beneficial interest in the Property, and that the Plaintiff holds the remaining 20.4%.  He did not, however, find for the Defendant on her counterclaim in restitution for the return of HK$54,000.

10.  The Judge made the following findings of fact:

(1)  The Judge rejected the making of the Sole Occupancy Agreement based on the totality of evidence[4] and found that given the Defendant had solely continued paying the mortgage instalments and other outgoings of the Property since late 2002 or early 2003, it made sense that there would be a change of beneficial ownership in the Property to reflect the Defendant’s additional contribution to the cost of the Property and its maintenance.

(2)  The Judge accepted the Defendant’s evidence concerning the common intention formed between the parties in late 2002, namely, that the parties were to have interests in the Property in accordance with their respective contributions to the acquisition cost of the Property.  The Judge found that the common intention was limited to the Defendant’s contribution to her mortgage repayments and the related legal fees[5] in the Property.  He accepted that the parties had expressly discussed the matter before reaching the common intention back in late 2002 due to the change of circumstances[6].

(3)  The Judge rejected the Plaintiff’s case that the HK$730,000 paid by Mr Lee was a one-off mortgage contribution on her part and accepted, instead, that it was a personal loan made by Mr Lee to the Defendant, which was independent from the mortgage repayments, and that the sum has since been fully repaid by the Defendant to Mr Lee[7].

(4)  The Judge found that the payment of HK$54,000 was not intended to be payment for rental for 6 months as alleged by the Plaintiff, but was merely a measure taken by the Defendant to stop the Plaintiff from harassing her[8].

(5)  The Judge accepted the Defendant’s case that the reason why the title deeds were in the Plaintiff’s possession was that when the title deeds were released after the mortgages over the Property were discharged, the Plaintiff offered to place the title deeds in their mother’s safe deposit box, which had all along been used by the Fu family to store valuable items[9].

Legal Principles

11.  Under section 63(1) of the Ordinance and Order 58, rules 2(4) and 2(4A) of the RDC, leave is required to appeal against the Judgment to the Court of Appeal.  Under section 63A(2) of the Ordinance, leave to appeal shall not be granted unless the court is satisfied that (1)  the intended appeal has a reasonable prospect of success, or that (2)  there is some other reason in the interests of justice why the appeal should be heard.

12.  To meet the threshold of “a reasonable prospect of success”, it must be shown that the prospect of succeeding is more than fanciful, without having to be probable[10].  In other words, the applicant is required to show more than just an arguable case, but an appeal that has merits and ought to be heard, although she does not have to demonstrate that the appeal will probably succeed[11].

13.  The principles governing an appeal against a trial judge’s findings of fact are well-established. In gist, the appellate court will only intervene if it is satisfied that the findings are “plainly wrong”.  Where what is impugned is a finding of primary fact, the Court of Appeal will only intervene if it is satisfied that (a)  there was no evidence to support the conclusion; (b)  the conclusion was based on a misunderstanding of the evidence; or (c)  the conclusion was one which no reasonable judge could have reached.  The threshold faced by an appellant challenging a finding of fact, particularly a primary fact, is high[12].

14.  The Court of Appeal may also grant leave if the question is one of general principle, decided for the first time, or a question of importance upon which further argument and a decision of the Court of Appeal would be to the public advantage[13].

15.  When dealing with renewed applications for leave to appeal, the remarks of this Court in Up Energy Development Group Ltd (in liquidation)[14]at [11]-[13] are relevant:

“11. A renewed application for leave to appeal is not a trial run of the intended appeal. The Court of Appeal is not expected to conduct in-depth analysis into the merits of the proposed grounds of appeal at this stage. The threshold requirements – that the appeal has a reasonable prospect of success, or that there is some other reason in the interests of justice why the intended appeal should be heard – are not onerous. If there are indeed grounds of appeal that merit further consideration, they should be fairly obvious to all concerned …

12. It is pertinent to note that the application before us is the second filtering exercise, the first having been conducted by the trial judge. It is not a mechanical exercise, to be pursued automatically having failed to obtain leave in the court below. The applicant is expected to demonstrate to the Court of Appeal that leave should be granted notwithstanding the reasons given by the court below in refusing leave. The starting point for the Court of Appeal is the leave decision below and it is incumbent on the applicant to point to palpable errors in that decision to justify a renewed application. The burden of showing that the threshold requirements are met is not discharged by repeating the arguments in the leave application below, without demonstrating in what way the judge went wrong in rejecting the arguments.

13. … It is not a proper use of the appellate process to repeat arguments for a third time in the hope that the Court of Appeal might be persuaded to a different view.” (emphasis added)

Leave Application

16.  By the Summons, the Plaintiff reapplied to this Court for leave to appeal.

17.  The Plaintiff has advanced the following proposed grounds in her Notice of Appeal (referred to as “Ground 1” and “Ground 2” respectively):

(1)  In determining whether there was a post-acquisition common intention to change the parties’ beneficial entitlement, the court should apply an “exceptional standard”. The Judge did not do so. His assessment of whether the Plaintiff and the Defendant had a common intention to alter their beneficial entitlement was consequently flawed. If the Judge had assessed the evidence by reference to the correct standard, he should have concluded that the Defendant had failed to prove a common intention to change their respective beneficial interest in the Property.

(2)  The Judge erred in accepting the Defendant’s case when the Defendant had, on multiple occasions, asserted matters which were either self-contradictory and/or unpleaded and/or being a recent invention in the witness box.

Discussion

Ground 1

18.  The Plaintiff’s argument misunderstands the authorities, which were discussed in detail in the Judgment. It is correct that there are references to a finding of a common intention constructive trust to vary post-acquisition beneficial interests being exceptional.  For example, in Stack v Dowden[15], Lady Hale explained at [68] and [69]:

“68. The burden will therefore be on the person seeking to show that the parties did intend their beneficial interests to be different from their legal interests, and in what way. This is not a task to be lightly embarked upon. In family disputes, strong feelings are aroused when couples split up. These often lead the parties, honestly but mistakenly, to reinterpret the past in self-exculpatory or vengeful terms …

69.  In law, ‘context is everything’ and the domestic context is very different from the commercial world … Many more factors than financial contributions may be relevant to divining the parties’ true intentions …”

19.  This recognises that absent an express written agreement recording an intention to vary the beneficial interests, proving the necessary intent will involve an assessment by the court of the parties’ recollection of what was said and done often many years after the event and commonly in a domestic context.  Satisfising a court in such circumstances that the necessary common intention was present will be challenging.  Consequently, successful cases will be exceptional[16].  This analysis does not involve, as the Plaintiff’s argument appears to propose, adopting an elevated standard of proof.  It identifies the practical problems a party will face in proving a common intention to change the beneficial interests in a property.  Mo Ying v Brillex Development & Anor[17] does not, as the Plaintiff contends, suggest anything more than this.

20.  The Plaintiff’s case is a challenge to the Judge’s findings of primary fact.  The grounds of appeal in this regard ask the Court of Appeal to review the evidence and reach a different conclusion.  They do not identify clear errors that satisfy the test referred to in, for example, Yu Pak Kan v Busy Firm Investment Ltd[18].  Rather, they invite the Court of Appeal to replace the Judge’s assessment of the totality of evidence with its own which, as we have explained, is impermissible.

21.  For completeness, we would record the following:

(1)  Both parties gave evidence at trial that there had been express oral discussions post-acquisition regarding their beneficial interests in the Property.  The controversy was what the parties had agreed upon, which required an assessment by the Judge of the credibility of the witnesses.

(2)  There was no dispute that the Defendant had continued paying the mortgage instalments and other outgoings because the Defendant was in sole occupation of the Property since late 2002 or early 2003.  The question was whether there was a Sole Occupancy Agreement as contended by the Plaintiff.  The Judge found there was not.  There is no basis to suggest that in reaching this decision he was plainly wrong.

(3)  The Plaintiff contends that it was “unusual for two close family members … to have agreed, subsequently, to a plan that may reduce the beneficial ownership of either one of them substantially”.  It may be uncommon, but that does not of itself demonstrate that the Judge was plainly wrong.  The Judge, on the totality of the evidence, found that given the Property had fallen in value by 2002, it was not unusual for the Plaintiff to agree to reduce her interest in the Property as the Defendant had already agreed to continue paying the mortgage instalments and other outgoings related to the Property.

Ground 2

22.  The Plaintiff complains that the Judge failed to appreciate:

(1)  The significant differences between the Defendant’s pleaded case concerning the alleged post-acquisition common intention, her witness statement and her evidence during examination in court;

(2)  The lack of a “cut-off” point in the contributions to be made by the Defendant, which would eventually reduce the Plaintiff’s share in the Property to nil;

(3)  The cumulative effects of the points raised by the Plaintiff and the incredibility of the Defendant’s evidence, including the Defendant’s evidence in the witness box that she had told the Plaintiff in 2009 that the Plaintiff had only 20% to 30% of beneficial interest in the Property and the Defendant’s case regarding deleted WhatsApp messages.

23.  We do not find that any of the complaints described in the previous paragraph are so plainly wrong as to justify reconsideration by this Court.  First, in relation to the alleged discrepancies in the Defendant’s evidence as complained by the Plaintiff, the Judge explained his reasoning satisfactorily in [54] and [55] of the Judgment.  Secondly, in relation to the Plaintiff’s complaint that there is a lack of any agreement on a “cut-off” point, the Judge explained his reasoning satisfactorily in [56] and [57] of the Judgment.  Thirdly, in relation to the complaint that the Judge has failed to appreciate the cumulative effects of the points raised by the Plaintiff and the incredibility of the Defendant’s evidence, these points have been dealt with satisfactorily in [71] of the Judgment.

Conclusion

24.  For the above reasons, we are not satisfied that the Plaintiff has demonstrated that the Judge was plainly wrong in accepting the Defendant’s case in preference to the Plaintiff’s case.  There is also no other reason in the interests of justice that the appeal should be heard. We refuse leave to appeal.

25.  Given that we refuse to grant leave to the Plaintiff to appeal, there is no basis for granting any stay of execution of the Judgment as sought under the Summons.

26.  We therefore dismiss the Summons.  We have considered the Statement of Costs filed by the Defendant’s legal representatives seeking costs of HK$55,475.  Taking a broad-brush approach, we order that the Plaintiff do pay the costs of the Defendant assessed summarily at the sum of HK$50,000.

27.  The costs order and assessment of costs are made on a nisi basis.  Unless any of the parties applies to vary it by summons, the costs order will become absolute 14 days from today.

28.  Since this application for leave to appeal is in our view totally without merit, we make an order pursuant to Order 59, rule 2A(8) of the RHC that no party may request this determination be reconsidered at an inter partes oral hearing.