LEE YUN SHING, the Sole Executor of the Estate of LAU SHUI KWAN, deceased v. LAU YUN CHIU

DCCJ 6227/2020

[2023] HKDC 1792

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 6227 OF 2020

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JUDGMENT

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INTRODUCTION

1.  This is a case where family members feuded over the ownership of a landed property, situate at Flat F, 24/F, Tower 2, Dragon Centre, 25 Wun Sha Street, Tai Hang, Hong Kong (the “Subject Property”). At the trial, the plaintiff was represented by counsel Mr Edward Chan (“Mr Chan”), and the defendant was represented by counsel Ms Emma Wong (“Ms Wong”).

2.  In the section below, I shall adopt the facts undisputed by the parties, as reflected in their pleadings and witness statements, and/or supported by documentary evidence, to set out the background of this case.

The Lau’s family

3.  Madam Liu Choi (the “Mother”) is the mother of the Lau’s family. Her children, in descending order in terms of their ages, are:

(1)  daughter, Lau Siu Kwan (“S.K.”);

(2)  son, Lau Yun Chiu, the defendant in this case (the “Defendant”);

(3)  son, Lau Yun Hung (“Y.H.”);

(4)  daughter, Lau Yin Kwan (“Y.K.”); and

(5)  daughter, Lau Shui Kwan (the “Deceased”).

4.  The Mother passed away on 24 November 1997; the Deceased died on 31 March 2020.

5.  Mr Lee Yun Shing (the “Plaintiff”), was the husband of the Deceased. He and the Deceased had gotten married on 6 December 1992. He is the sole executor named in the last will and testament of the Deceased dated 6 July 2019 (the “Will”), and probate was granted to him on 3 March 2021.

The Catchick Flat

6.  The history presented by the parties went as far back as 1967, when some members of the Lau’s family moved into a tenement at Catchick Road (“Catchick Flat”). This is a crucial venue, as we shall see later on in this Judgment, some of the alleged key events took place here.

7.  In 1967, the Mother, S.K., Y.K. and the Deceased moved into a partitioned room inside the Catchick Flat. The room was located at the frontal part of the Catchick Flat (the “Front Room”). On the other hand, Y.H., already married at that time, resided at his wife’s employer’s abode. Whether the Defendant had resided at the Front Room is disputed, but, in my view, irrelevant.

8.  The Defendant married Ms Ching Suet Mui (“Ms Ching”) in 1973. Shortly after the birth of their son, a room at the back end of the Catchick Flat was available (“Back Room”) for rent. The couple, together with their son, moved into it, and continued to reside there until 1980, when they successfully applied for a public housing flat known as Tanner Hill Estate (“THF”) from the Hong Kong Housing Society (“HKHS”).

9.  As for the other siblings whom resided at the Front Room, S.K. and Y.K. eventually moved out and formed their own families. Only the Mother and the Deceased remained living there, until 1989.

The THF

10.  All witnesses agreed that the THF is small. The original intention was to have the Defendant and his immediate family (Ms Ching, their son and daughter), the Mother, and the Deceased, to reside at the THF together. Nevertheless, the Mother and the Deceased changed their minds; as aforesaid, they had continued living at the Front Room until about 1989. This led to their names being deleted from the list of registered residents of the THF.

The Subject Property, LK Property, and VD Property

11.  The Dragon Centre are properties developed by the HKHS under the Urban Improvement Scheme (the “UIS”). The project was completed in 1989. In 1988, the Deceased applied to purchase a flat in Tower 1 of the Dragon Centre, which was designated for sale to the public. Her application was unsuccessful.

12.  In about the same time, the Defendant had used the THF as a trading chip to apply for a flat in Tower 2 of the Dragon Centre, and the Subject Property was the consequence. An Agreement for Sale and Purchase dated 26 October 1988 (“SPA”) was entered into between HKHS as the vendor and the Defendant as the purchaser. The purchase price for the Subject Property was HK$377,000.00.

13.  Pausing here, prior to the purchase of the Subject Property, the Defendant and Ms Ching had on 15 February 1988 entered into a sale and purchase agreement for a private domestic property situate at Flat B, 25^th Floor, Lei King Mansion, No. 93 Nam On Street, Hong Kong (“LK Property”), at the purchase price of HK$724,800.00. The assignment for the LK Property was dated 15 September 1988. To finance the purchase, the Defendant and Ms Ching took out a loan of HK$600,000.00 with The China State Bank Limited (“CSB”), and as a security for such loan, they mortgaged the LK Property to CSB. The LK Property was sold in November 2009 at a price of HK$3,380,000.00.

14.  Coming back to the Subject Property, the SPA was followed by an Assignment dated 27 February 1989, and a formal mortgage also dated 27 February 1989 (the “Mortgage”) between Wayfoong Credit Limited (“Wayfoong”) as the mortgagee and the Defendant as the mortgagor[1]. Under the Mortgage, Wayfoong agreed to lend a sum of HK$340,000.00 to the Defendant, with interest thereon at the rate of 9.75% per annum. The principal and interest on the loan were repayable by monthly instalments. In this regard, the documentary evidence shows that each instalment was worth HK$3,720.00.

15.  Although the Defendant became legal owner of the Subject Property, he was never an occupant of the same. It was occupied by the Mother and the Deceased, and the Plaintiff after his marriage with the Deceased in 1992.

16.  Since about 1994 and up to her passing on 24 November 1997, the Mother had ceased living at the Subject Property due to her health issues. Originally, it was said that she moved to live at Y.K.’s flat. It was later on revealed that a flat just beside Y.K.’s place was rented for the Mother, with the siblings sharing the rent (the “Mother’s Flat”).

17.  In the meantime, the Deceased and the Plaintiff had continued to reside at the Subject Property until about 2000, when they moved into another property that they purchased in November 1999, namely Flat D, 31^st Floor, Villa D’Arte, No. 55 Wun Sha Street, Hong Kong (“VD Property”).

18.  Throughout her occupation of the Subject Property, and beyond, the Deceased had paid the Mortgage, Government rents and rates, and management fees. The Mortgage was fully repaid in or about August 2002, and discharged in October 2003. Since then, the Defendant have been in possession of the title deeds and documents relating to the ownership of the Subject Property.

19.  Despite moving to the VD Property, the Deceased and the Plaintiff had maintained possession of the Subject Property. The Deceased used the Subject Property to store her personal belongings. The keys to the Subject Property were kept by them, until August 2020, when the Defendant obtained them from the Plaintiff.

Passing of the Deceased and the Will

20.  As aforementioned, the Deceased passed away on 31 March 2020. In the Will, the Plaintiff, S.K., Y.H. and Y.K. are named as the beneficiaries. Respectively, they are bequeathed 64%, 12%, 12% and 12% of the Deceased’s estate. The Defendant is left out of the Will. If the Court ruled in favour of the Plaintiff, the Subject Property would fall within the Deceased’s estate.

THE PLAINTIFF’S CASE [2]

21.  By a specially indorsed Writ of Summons filed on 20 November 2020, the Plaintiff, on behalf of the Deceased’s estate, commenced the present action against the Defendant. In it, the Plaintiff claims that the Deceased is the beneficial owner of the Subject Property. Even though the legal ownership is with the Defendant, he is merely a trustee holding the Subject Property for the Deceased. Hence, the Plaintiff asks for a declaration from the Court to this effect, and an order that the Defendant should assign and vest his legal title in the Subject Property to or in the estate of the Deceased.

1988 Oral Agreement and its terms

22.  The Plaintiff’s claim is based on an oral agreement made between the Deceased and the Defendant on an evening during the summer of 1988 (the “1988 Oral Agreement”). The events leading to the 1988 Oral Agreement are as follows: -

(1)  The Deceased and the Mother had moved out of the THF by 1986, and returned to the Front Room. The Plaintiff supplements that, although the original intention was to have the Mother and the Deceased also residing at the THF, they considered THF too small to house a family of six. And, with the Mother feeling that Ms Ching did not respect her, they decided not to move to THF.

(2)  On 3 to 5 occasions in or about 1987, the Defendant told the family members during gatherings at the Catchick Flat that there were mid-night inspections conducted by the staff of the HKHS at THF, which led to their discovery of the Mother and the Deceased not living there.

(3)  Learning about this, the HKHS had in or about 1987 ordered the Defendant and his immediate family to move to a smaller unit.

(4)  At that time, the Defendant, being employed as a civil servant, also wanted to invest in a private property, i.e., the LK Property, with subsidies from the Government. In order to do so, he would have to give up the THF (“Housing Allowance Reason”).

(5)  For these reasons, the Defendant initiated a discussion with the Deceased, eventually giving rise to the 1988 Oral Agreement.

23.  The Plaintiff says that the 1988 Oral Agreement contains the following terms: -

(1)  The Defendant would surrender the THF to the HKHS in return for a chance to purchase the Subject Property. Although he would be the owner of the Subject Property, beneficial interest of the same should belong to the Deceased, provided that she would pay for the down payment, and to repay all mortgage loan (“Term 1”).

(2)  The Deceased and the Mother would live at the Subject Property, and the Defendant did not have to live with them (“Term 2”).

(3)  After moving into the Subject Property, the Deceased would be the one responsible for the care and support of the Mother. The Defendant would not provide the Mother with any financial support, as he had to maintain his immediate family (“Term 3”)[3].

24.  The Plaintiff adds that the parties reached the 1988 Oral Agreement at the Catchick Flat, and witnessed by the Mother, S.K., Y.H. and Y.K. After the making of the 1988 Oral Agreement, the parties had reconfirmed the contents of it 2 to 3 times during subsequent family gatherings, which also took place in the summer of 1988. In addition, he explains that there were family gatherings at the Catchick Flat 1 to 2 times per week. It was during one of these family gatherings that the Defendant initiated the discussions that gave rise to the 1988 Oral Agreement.

25.  After the Defendant succeeded in his application to purchase a flat at Tower 2 of the Dragon Centre, he and the Deceased, accompanied by Y.K., attended the office of HKHS, to select a unit which suited the Deceased’s financial ability and her preference. Ultimately, the Subject Property was selected, and an initial deposit of HK$10,000.00 was paid to HKHS by the Deceased. The Plaintiff highlights that, whilst they were outside the HKHS office, Y.K. personally heard the Deceased and the Defendant reconfirming the contents of the 1988 Oral Agreement.

26.  It is suggested that, the 1988 Oral Agreement was a mutual understanding or common intention amongst the Deceased, the Defendant, the Mother, and the other three siblings.

Performance of the 1988 Oral Agreement

27.  Pursuant to the 1988 Oral Agreement, the Plaintiff says that the Deceased had paid the down payment for the Subject Property, and all expenses relating to the acquisition of the same (i.e., legal costs and costs of renovation), on top of the Mortgage repayment and the payments of Government rents and rates, and the management fees.

December 1997 incident

28.  In December 1997, after passing of the Mother, the siblings gathered at the home of S.K.. The Plaintiff says that during the meeting, the Defendant requested from the Deceased the return of the Subject Property to him; this request was rejected by the Deceased, S.K., Y.H. and Y.K. (the “12.1997 Incident”). Following the 12.1997 Incident, the Deceased had continued to live and/or remained in occupation of the Subject Property, until her passing.

August 2020 incident

29.  Then came August 2020, when the Defendant allegedly tricked the Plaintiff into passing him the keys to the Subject Property, under the false pretence that the Defendant would clean up the Subject Property for the Plaintiff. However, the Defendant then changed the lock of the entrance of the Subject Property, thereby evicting the Plaintiff from it (the “08.2020 Incident”).

DEFENDANT’S CASE [4]

30.  The Defendant started his case with the denial that the HKHS had ever ordered him and his immediate family to move to a smaller flat. He explains that the THF was designed to house 4 to 6 occupants. Hence, even with the exclusion of the Mother and the Deceased as the registered residents thereat, the Defendant and his immediate family were still eligible to continue residing there.

1988 Oral Agreement vs Deceased’s promise

31.  The Defendant has made it clear in the Defence that there is no 1988 Oral Agreement as alleged by the Plaintiff. Instead, he acquired the Subject Property relying on the verbal promises of the Deceased (the “Promises”). The events leading to the Promises and acquisition of the Subject Property, according to the Defendant, are as follows: -

(1)  As said, the Mother and the Deceased had resided at the Front Room, despite the initial intention that they would also move to THF.

(2)  In 1988, the Deceased learnt that the Catchick Flat would be demolished.

(3)  She also learnt that the Defendant and Ms Ching had purchased the LK Property.

(4)  Due to the above, the Deceased and the Mother attended the THF, and, in the presence of Ms Ching, tried to persuade the Defendant to surrender the THF in return for a chance to purchase a unit in Tower 2 of the Dragon Centre, which would then be occupied by the Deceased and the Mother as the Defendant’s licensees.

(5)  The Defendant initially rejected the suggestion, as his intention at the time was to continue residing at the THF; the LK Property would be lease out to generate rental income to apply toward the repayment of mortgage loan. Acquisition of another property in the Dragon Centre would create extra financial burden on the Defendant.

(6)  Hearing the Defendant’s concerns, the Deceased gave the Promises.

32.  The Promises are as follows: -

(1)  The Deceased would move out of the Subject Property after the Mother passed away, or the Deceased became married.

(2)  She would pay the monthly instalments of the Mortgage and other expenses during her occupation at the Subject Property.

(3)  The Defendant had to repay to the Deceased that part of the principal of the mortgage loan after she had moved out of the Subject Property.

33.  The Defendant acceded to the request of the Deceased, upon reliance of the Promises, and due to his love and affection for the Deceased and the Mother.

34.  The Defendant explains that, as the conveyancing matters were handled by the Deceased, he had paid the deposit, part of the purchase price, and other expenses, amounting to about HK$40,000.00, to the Deceased via the Mother. He adds that he passed the HK$40,000.00 to the Mother at the Catchick Flat. Out of the HK$40,000.00, HK$37,000.00 represented the deposit, with the remaining HK$3,000.00 for the expenses and costs incurred for the purchase of the Subject Property.

35.  And based on the above, the Defendant asserts that:

(1)  the Subject Property was acquired by the Defendant for his own benefit;

(2)  the Deceased would not acquire any beneficial interest in the Subject Property; and

(3)  the monthly instalments paid by the Deceased were intended to be non-interest bearing loans advanced to the Defendant, in consideration of his agreement to surrender the THF for the purchase of the Subject Property, and in consideration of the licence granted to the Deceased and the Mother to reside thereat (hereinafter referred to as the “Understanding”).

36.  The Defendant also stresses that, by acquiring the Subject Property in reliance of the Promises, he had acted to his detriment, namely:

(1)  surrendering the THF;

(2)  entering into and bearing the liability under the Mortgage, amid he was also responsible for the repayment of mortgage over the LK Property; and

(3)  allowing the Deceased and the Mother to reside at the Subject Property under a licence (hereinafter referred to as the “Detriment”).

Demands for return of the Subject Property, 12.1997 Incident, and the 08.2020 Incident

37.  The Defendant says that he had repeatedly demanded return of the Subject Property from the Deceased after two events. The first of these events was the passing of the Mother in November 1997. That being so, however, the Defendant denies the 12.1997 Incident.

38.  The second event was in 1999, when he learnt that the Deceased had purchased the VD Property.

39.  The above demands were ignored. It was not until August 2020, after the passing of the Deceased, that the Plaintiff had voluntarily returned to him the keys of the Subject Property. The Defendant denies that he had tricked the Plaintiff into passing him the keys as alleged in the 08.2020 Incident.

Illegality

40.  Apart from the above, the Defendant accuses the alleged arrangements under the 1988 Oral Agreement were tainted with illegality and/or against the public policy, rendering the same of no effect and/or unenforceable. In support of this, he highlights that:

(1)  the Deceased was not eligible to apply for the purchase of the Subject Property;

(2)  the Defendant, in order to purchase the Subject Property, and as required by the HKHS, had to declare and acknowledge that he would be the sole beneficial owner and did not dispose of the interest of the Subject Property or any part of it to a third party; and

(3)  he had also warranted and declared in the SPA that he did not enter into any agreement with any person to dispose of the interest of the Subject Property or any part of it, or to hold the Subject Property for any person.

41.  Based on the above, if the 1988 Oral Agreement existed, it would mean that the Deceased had conspired with him in misrepresenting to the HKHS that he was the true owner of the Subject Property, causing HKHS to sell it for the ultimate benefit of the Deceased.

AGREED LIST OF ISSUES

42.  Based on their cases above, the parties agreed that the following issues have to be resolved by the Court: -

(1)  Whether the Deceased and the Defendant had reached the 1988 Oral Agreement?

(2)  Whether the 1988 Oral Agreement was a mutual understanding or common intention amongst the Deceased, the Defendant, the Mother, S.K., Y.H., and Y.K.?

(3)  Whether the Deceased acquired the beneficial interest of the Subject Property under a resulting trust or common intention constructive trust, hence the Defendant was and is at all times holding the Subject Property as trustee for the benefit of the Deceased absolutely?

(4)  Whether the Deceased paid the entire purchase price for the Subject Property, including the down payment and all expenses, or did the Defendant contribute HK$40,000.00 covering part of the purchase price and the expenses incurred for the acquisition?

(5)  Whether the 1988 Oral Agreement, if found to exist, is tainted by illegality and/or against public policy, rendering the same of no effect and/or unenforceable?

(6)  Whether there were the Promises?

(7)  Whether there was the Understanding between the Deceased and the Defendant?

(8)  Whether the Defendant had suffered the Detriment?

43.  Notwithstanding how the parties had structured the above issues, I will, in the discussion sections below, reshuffle and merge them where necessary to achieve clearer and simpler resolution of them.

44.  At the trial, the Plaintiff and the Defendant gave testimonies in support of their respective case. Joining the Plaintiff was S.K., Y.H. and Y.K., whilst Ms Ching gave evidence for the Defendant.

45.  As commonly seen in cases of similar nature, witnesses’ evidence is vital to the outcomes. In the section below, I shall thus reproduce the salient parts of their evidence in as much detail as possible.

PLAINTIFF’S EVIDENCE

46.  The Plaintiff adopted his witness statement as his evidence-in-chief. In it, his evidence largely resembles the facts stated in the SOC, with the following additional information: -

(1)  He became a teacher in 1977. He met and started a relationship with the Deceased in 1989, whom was also a teacher.

(2)  The Deceased was a shopaholic, causing the Subject Property to be stacked with clothes, furniture and sundries. This led to the need to purchase the VD Property. Since 2000, the Plaintiff and the Deceased resided at the VD Property, and the Subject Property became a storage for the couple.

(3)  He learnt about the history of the Lau’s family, and the 1988 Oral Agreement, from the Deceased.

(4)  Regarding the 08.2020 Incident, the Plaintiff narrated that the passing of the Deceased still troubled him, thus he was in no mood to handle the sundries stored in the Subject Property. At this time, the Defendant offered to clean up the Subject Property. It led to the Plaintiff mistrusting, and passing the keys to, the Defendant. The Defendant then changed the lock and denied his possession of the Subject Property.

47.  The Plaintiff had these to say under cross-examination and re-examination.

1988 Oral Agreement

48.  The Plaintiff said that he learnt about the 1988 Oral Agreement in around 1995. The Deceased revealed to him the existence of the 1988 Oral Agreement and the Terms, when he queried why they had to reside at the Subject Property, which was too small to house 3 persons. When he pressed on with the topic of selling the Subject Property, the Deceased disclosed to him that it was not under her name and the 1988 Oral Agreement forbade her from doing so. At trial, the Plaintiff repeatedly emphasised that the Deceased would own the Subject Property only after passing of the Mother.

49.  When asked, the Plaintiff explained that, although the Defendant was all along not living with the Mother, he had reasons to enter into the 1988 Oral Agreement, so as to avoid living with the Mother in the future. The Plaintiff supplemented that, while the Defendant was caring of the Mother, the Mother could not get along with Ms Ching, and thus the Defendant did not want them living under the same roof. If the Mother was to live alone after the Deceased got married, the Mother would want to live temporarily with her children in turn, and eventually, it would be the Defendant’s turn. The Plaintiff remarked that the key purpose of the 1988 Oral Agreement was to ensure that the Deceased would continue to live with the Mother after marriage. This could settle all concerns that the Lau’s family would have regarding the Mother’s financial needs and accommodation. In case the Deceased breached the 1988 Oral Agreement, she would be denied ownership over the Subject Property. On this point, the Plaintiff conceded that, if the Mother refused to live with the Deceased at the Subject Property, it would also constitute a violation of the 1988 Oral Agreement.

50.  The Plaintiff agreed that the 1988 Oral Agreement would relieve not only the Defendant, but also S.K., Y.H. and Y.K. from the need to provide for the Mother. He speculated that the Defendant agreed to do so for the other siblings at no costs from them, because he had the biggest issue with the Mother living with him.

51.  He had no quarrel with Ms Wong’s suggestion that the responsibility to repay the Mortgage would be greater than providing for the Mother. Equally, he accepted there was a risk that the Deceased would cease paying the Mortgage, and the situation could become dire for the Defendant, as there was no written agreement from the Deceased that would bind her to the repayment obligation. But the Plaintiff recalled that the Deceased was earning about HK$15,000.00 to HK$20,000.00 per month in 1989.

12.1997 Incident

52.  Following up on his answer in §48 above, the Plaintiff was asked what measure had the Deceased taken to protect her interest in or to realise her ownership over the Subject Property after passing of the Mother in November 1997. He answered that, apart from seeking and receiving legal advice, the Deceased took no step to achieve those purposes. This was so despite that the Defendant had requested from her the return of possession over the Subject Property, and their apprehension that the Defendant had the legal title to sell it at any time. The Deceased did not even ask for the title deeds of the Subject Property from the Defendant after the Mortgage was discharged. The Plaintiff opined that the inaction on the part of the Deceased was due to the mutual trust between her and the Defendant. The Plaintiff said he shared the same trust in the Defendant.

53.  The Plaintiff added that, they could not sell the Subject Property and used the proceeds to purchase the VD Property, because the Defendant refused to transfer the ownership of the Subject Property to the Deceased, in violation of the 1988 Oral Agreement.

08.2020 Incident

54.  On this topic, the Plaintiff admitted that at the time when the keys were passed to the Defendant, he was aware of the latter’s intention to take back the Subject Property. However, he had no fear of giving the Defendant the keys, because he had already received legal advice in August 2020. In addition, the Plaintiff and the Defendant were at the time negotiating amicably for a settlement over the dispute. He felt that the Defendant was sincere in resolving the dispute with him.

55.  That being so, the Plaintiff was not worried that passing the Defendant the keys would increase the chance of the latter selling the Subject Property behind his back. He said he was protected by having the Writ in this action registered against the Subject Property.

56.  Questions were asked as to why it was necessary for the Plaintiff to let his adversary, the Defendant, to clean up the Subject Property. His answer was that the Defendant was retired and had the time, whereas he was busy attending to various matters after Deceased’s passing. In addition, some repair works were required on the gas pipes inside the Subject Property.

57.  The Plaintiff supplemented that he did not have the time to open the doors of the Subject Property for the Defendant to clean the same, preferring just to pass the keys to the Defendant. However, he had several communications with the Defendant about the tasks, and had shown the Defendant where the garbage disposal spot was located inside the Dragon Centre.

58.  The Plaintiff remarked that it was easier to register the Writ against the Subject Property, than to clean the same by himself or to open the door for the Defendant. The Plaintiff said he simply had to place a phone call with his lawyers in taking the former course.

Y.K.’S EVIDENCE

59.  Y.K. was next to give evidence at trial. Her witness statement was adopted as her evidence-in-chief. In it, apart from repeating the facts stated in the SOC, she had the following information to share: -

(1)  The Mother, S.K., Y.H., herself and the Deceased started living in the Front Room since 1967. Gradually, the siblings got married and moved out of the Front Room, save the Deceased and Mother. Notwithstanding so, S.K., Y.H. and herself were close to the Mother, and they would often return to visit and dine with the Mother.

(2)  Y.K. was disapproving of the Defendant. She described him as a son whom had no love for the Mother, and was calculative towards the siblings. The Defendant refused to provide for the Mother once he had a girlfriend (Ms Ching) and started to cohabit with her; the Defendant rarely visited the Mother.

(3)  When the Deceased and the Defendant went to the office of HKHS to pick a unit to purchase, she was the only person from the family whom accompanied the Deceased and the Defendant on that occasion. After the Subject Property was chosen, the three of them reconfirmed the Terms while standing outside the HKHS office. At that time, the Defendant reminded the Deceased of her responsibilities to repay the Mortgage, and to take care of the Mother; in return, he would confer the entire Subject Property to the Deceased.

(4)  About 2 to 3 years prior to her passing, the Mother resided at Y.K.’s place. In or about 1996, the Mother told Y.K. at Y.K’s place that the Defendant had taken away HK$200,000.00 from the Mother’s bank account (the “Mother’s Savings”), alleging that he would use the same to pay for the Mother’s funeral. Nevertheless, come the time when such expenses were required, the Defendant refused to pay out the Mother’s Savings. Instead, he contributed HK$35,000.00 towards the funeral expenses, like what each sibling did.

(5)  Concerning the 12.1997 Incident, Y.K. narrated that the Defendant attended the meeting uninvited. His sudden appearance was to request HK$500,000.00 from the Deceased in return for him to transfer the Subject Property to her. Such proposal was rejected by all siblings.

60.  Below are what Y.K. said under cross-examination and re-examination.

Background

61.  Y.K. maintained her saying that the Defendant infrequently visited the Mother. Even if he did, it would be at a time when other siblings were not there. However, if he had visited, the Mother would be ecstatic, and would tell her about it. It was, however, rare to hear from the Mother about visits from the Defendant.

62.  On top of the above, Y.K. reiterated that the Defendant was unwilling to financially support the Mother. She described him as self-centred, and would not care about others.

THF

63.  Although the Mother and the Deceased could reside at THF, it did not mean that the Defendant was willing to live with them. Y.K. alleged that the Defendant was only using them to get a bigger unit from the HKHS. Ultimately, the THF was still too small to house 6 persons.

1988 Oral Agreement

64.  At trial, Y.K. provided more information on the 1988 Oral Agreement.

65.  First, Y.K. agreed that it was the Deceased whom initiated discussions with the Defendant which led to the 1988 Oral Agreement. The Deceased first indicated that she wanted to purchase a flat at the Dragon Centre, followed by the Defendant’s willingness to use the THF to purchase a flat there as well. However, since the Defendant exhausted his financial resources after purchasing the LK Property, the Deceased should be the one whom purchase the flat if the application was successful. Y.K. believed the Defendant was confident that the Deceased could afford to repay the Mortgage and to provide for the Mother, as the Deceased was earning over HK$30,000.00 per month in 1988.

66.  Y.K. denied that, by entering into the 1988 Oral Agreement, the Defendant was kind to the Deceased. She emphasised that his intention was to avoid any obligations to take care of the Mother. As to why that would be necessary if the Defendant had all along ignored the welfare of the Mother, Y.K. suspected that it could be the Defendant’s desire to relieve himself from the duties once and for all.

67.  Second, ownership of the Subject Property would only be passed to the Deceased if two conditions were fulfilled: (1) she had to live with the Mother; and (2) the Mortgage should be fully repaid.

68.  Third, after having the 1988 Oral Agreement in place, there were 2 to 3 family gatherings at restaurant and the Catchick Flat, during which the Terms were reconfirmed. Y.K. said that the Defendant deliberately joined the family gatherings to boast about his kindness. She recalled that the Mother was there at the gatherings, and was aware of Term 3, that neither the Defendant nor the other siblings (save the Deceased) have to provide for the Mother. Y.K. confirmed that Y.H., S.K. and herself made no financial contribution towards the upkeep of the Mother from 1989 to about 1995, save giving her some pocket money on festive occasions.

69.  Y.K. added that, despite the Defendant openly declaring his intention not to take care of the Mother during the gatherings, there was no reaction from the Mother. Y.K. suspected that the Mother might be sad or angry, but she was tight-lipped about it. The other siblings had likewise not expressly objected to the arrangement. She said there was nothing they could do but to feel sad about the whole thing.

70.  Fourth, the Deceased and the Defendant reached the 1988 Oral Agreement upon mutual trust. The former believed that the Defendant would honour his side of the bargain and transfer the Subject Property to her when the obligations under the 1988 Oral Agreement were fulfilled. The latter trusted the Deceased to fulfil her obligations to repay the Mortgage and to live with the Mother.

71.  Fifth, notwithstanding what she stated in §16 of her witness statement, Y.K. conceded that she erred in saying that the Defendant and his immediately family was forced by the HKHS to move to a smaller flat, which was allegedly a foundation for entering into the 1988 Oral Agreement. Y.K. admitted that the names of the Mother and the Deceased were removed from the list of tenants of the THF shortly after the Defendant and his family had moved into the same in 1980. She also agreed that the Defendant’s family had continued to reside at the THF for more than 5 years after the Mother and the Deceased’s names were removed from the list.

72.  Sixth, Y.K. concurred that, since the Deceased was not married at the time of the 1988 Oral Agreement, there was no certainty that her future husband would agree to the arrangements.

73.  Seventh, Y.K. clarified that the Housing Allowance Reason should have happened after 1988, when the Defendant got higher in ranks in terms of his employment. Hence, his intention to apply for such benefit was not a cause for entering into the 1988 Oral Agreement.

74.  Eighth, on the day when the Deceased and the Defendant went to the HKHS office to select a flat in the Dragon Centre, the Mother was also present. Y.K. and the Mother waited outside the HKHS office. She went on to explain that, all along, the Deceased aimed at purchasing a flat that has one bedroom. If the Deceased got married in the future, the Mother could sleep in the living room. When she was asked whether the siblings were agreeable to such arrangement, Y.K. replied that the Deceased should buy a flat that was affordable to her. Although, according to Y.K., the Deceased was earning more than HK$30,000.00 per month, she was a frugal person.

Mother’s Flat

75.  As aforementioned, Y.K. revealed at trial that, rather than living at her flat, the Mother’s Flat was rented to house the Mother. The rent for the Mother’s Flat was HK$6,500.00 per month. S.K., the Defendant, Y.H., and the Deceased, each contributed HK$1,000.00 towards the rent, with the balance of HK$2,500.00 shouldered by Y.K.. This arrangement lasted for about 3 years. Y.K. supplemented that the Mother was diagnosed with lung cancer at that time, thus would require more care from the family and assistance from a domestic helper; the Deceased could not offer the same.

76.  She agreed that, pursuant to the 1988 Oral Agreement, the Defendant was not obliged to share the rent of the Mother’s Flat. Nevertheless, she did ask him for the contribution, pretending that she knew nothing about the 1988 Oral Agreement.

Mother’s Savings

77.  Turning to the accusation that the Defendant had taken away the Mother’s Savings, Y.K. explained that this became a topic in her witness statement because she was asked to do so. She also clarified that the Mother told S.K., Y.H. and herself about this incident separately.

12.1997 Incident

78.  On this matter, Y.K. confirmed that they held the meeting for discussions of the Mother’s funeral and the Subject Property. The Defendant appeared suddenly without invitation. She later clarified that the Defendant was informed about the meeting, and he said he would join the meeting to discuss about the Subject Property. Against such clarification, Y.K. was asked why she said the Defendant’s appearance at the meeting was treated as a surprise. Her answer was that the Defendant was crazy, hence, he might not appear.

79.  Y.K. agreed that the Deceased initiated the discussions about the Subject Property during the 12.1997 Incident, by asking for the transfer of the Subject Property. The Defendant replied that the Deceased would have to pay him HK$500,000.00.

80.  Y.K. supplemented that the 1988 Oral Agreement ended with the passing of the Mother. Hence, the Deceased had every right to request for the transfer of the Subject Property to her, even though the Mortgage had yet been fully repaid at that time.

Y.H.’S EVIDENCE

81.  Y.H. adopted his witness statement as his evidence-in-chief at the trial. On top of repeating the facts pleaded in the SOC, his witness statement contains the following information: -

(1)  He became a civil servant when he was 28 years old, employed as a driver. He retired in 2012 when he reached 60.

(2)  The Defendant resided at the Front Room together with the Mother, S.K., Y.K. and the Deceased, until 1970. The Defendant moved out and lived with his girlfriend, Ms Ching.

(3)  The Defendant was heartless towards the Mother and his siblings; he placed all burden of taking care of the Mother to them.

(4)  In 1996, the siblings found out that the Defendant took away the Mother’s Savings from her bank account. The said sum was reserved for the Mother’s funeral costs when she passed away. However, when the Mother died, the Defendant refused to return the Mother’s Savings to pay for the costs of the funeral. This led to all siblings, including the Defendant, to each contribute HK$35,000.00 towards the costs.

(5)  Y.H. and the Defendant had jointly invested in real property in the past, where they would share the mortgage repayment. However, before the property was sold in 1980, the Defendant had been in arrears for 6 months for his share of the repayment, amounting to over HK$10,000.00 (the “Debt”). Y.H. had chased the Defendant for the Debt for over 30 years, but to no avail.

(6)  The Mother did not move into the THF, because she felt that Ms Ching disrespected her, and the THF was too small.

(7)  The 1988 Oral Agreement was reached between the Deceased and the Defendant over a dinner at the Front Room. The Terms were confirmed on 2 or 3 subsequent dinner gatherings, also at the Front Room.

(8)  In early 1990s, both Y.H. and the Defendant were employed as drivers by the Government. On occasions, they met at the basement level of the Wanchai Tower (which is where the District Court and the Government Offices are now located). On 2 of these occasions, the Defendant had mentioned to Y.H. that, after full repayment of the Mortgage by the Deceased, the Defendant would transfer the Subject Property to her. The Defendant also emphasised that he would not shoulder the obligation if the Deceased failed to repay the Mortgage.

82.  The section below covers the testimonies Y.H. gave under cross-examination and re-examination.

Joint investment with the Defendant

83.  Y.H. expanded on this episode during cross-examination. He and the Defendant purchased the property in 1975, and sold it in 1980. The property was purchased under the name of the Mother, although it was the brothers who paid for it. Between 1975 and 1980, the monthly repayment of the mortgage was made at the bank. Y.H. said the obligation fell on him to do so. As per their arrangement, the Defendant had to pay his share to Y.H., but there were times when the Defendant failed to do so, and Y.H. had to pay for his share first.

84.  Y.H. reiterated that he had chased the Defendant for over 30 years for the Debt. The Defendant had all along evaded him: they would not dine together; the Defendant would not telephone Y.H.; and Y.H. did not, and still does not, know the Defendant’s telephone number.

85.  When asked, Y.H. confirmed that he had never personally demanded repayment of the Debt from the Defendant. He did it through the Mother, but he was uncertain whether she had conveyed his demands to the Defendant.

1988 Oral Agreement

86.  He narrated that his presence on the night when the 1988 Oral Agreement was reached as a mere coincident. He went back to the Front Room for the usual dinner gathering. By the time he arrived, the Deceased and the Defendant were already having their discussions. Y.H. said he had no interest in knowing the contents of their discussions, but the Deceased wanted him to be a witness to the 1988 Oral Agreement, as she did not trust the Defendant. The Defendant was thus requested to repeat the terms to Y.H. He alleged that, by these discussions, the Defendant was seducing the Deceased to purchase a flat.

87.  Y.H. expressed that he had told the Deceased about the Defendant’s conducts regarding the said joint investment and the Debt. This led to the Deceased taking extra care when dealing with the Defendant in terms of the 1988 Oral Agreement, fearing that she would be cheated. This was also the reason why she wanted Y.H. to be a witness to it. Against such assertion, Y.H. was asked why the 1988 Oral Agreement was not reduced into writing. His reply was that the Deceased was still young and innocent at the time. Oddly, Y.H. also said that the Deceased did not have the sense that the Defendant would lie to her.

88.  As to the time and venue where the 1988 Oral Agreement was made, Y.H. initially confirmed that the 1988 Oral Agreement was reached before his arrival. He later asserted that, during the first dinner, the parties merely set out the Terms, and at the second dinner, the Deceased and the Defendant met again to discuss on whether the Terms were agreeable to each party. It was at the third dinner that the 1988 Oral Agreement was reached. All 3 dinner gatherings happened at the Front Room, rebuffing the possibility that he would ever dine with the Defendant at a restaurant.

89.  Regarding the Terms, he recalled that both the Deceased and the Defendant were applying for a flat in the Dragon Centre. If the latter were successful, he would let the Deceased to purchase it. After she paid all costs and the mortgage, the flat would belong to the Deceased. However, such transfer would also be conditional upon the Deceased’s agreement to take care of the Mother. Y.H. added that, so long as the last condition was fulfilled, the Subject Property would belong to her. There was no prerequisite that the Mother must have died before the transfer would be effected. Neither was there the prerequisite that the Mortgage had to be fully repaid. Y.H. then supplemented the Subject Property would be transferred to the Deceased when she fully paid the Mortgage. Nevertheless, he conceded that the Deceased would not know about this, as the Defendant uttered it in early 1990s and in the Deceased’s absence.

90.  Y.H. opined that it was impossible for the Deceased to refuse living with the Mother. The Deceased did not know how to cook, and would need to be taken care of by the Mother. He also denied the possibility that the Deceased’s future husband would refuse living with the Mother, as the Deceased was very obedient.

91.  He confessed that the Mother was sad and teary when she heard that only the Deceased would provide for her under the 1988 Oral Agreement. That being the case, none of the siblings, including himself, dissuaded the Deceased from entering into the 1988 Oral Agreement.

92.  According to §14 of his witness statement, Y.H. gave 4 reasons why the Defendant had entered into the 1988 Oral Agreement. At trial, he said that those reasons were given to him directly from the Defendant during the 3 dinner gatherings. He emphasised the key reason was that the Defendant did not want the Mother to live with his immediate family. Notwithstanding such assertion, Y.H. later agreed that it was the Mother whom refused to live with the Defendant at the THF, as it was too small. He also admitted that, since the Mother was all along not living with the Defendant, and it was unnecessary for the Mother to live with the Defendant, there was no reason for the Defendant to enter into the 1988 Oral Agreement just to avoid living with the Mother in the future. He supplemented that, because the Catchick Flat would be demolished, the Deceased was eager to buy a flat.

93.  Turning to the allegation that HKHS had in or about 1987 forced the Defendant to move to a smaller flat, Y.H. confessed he has no knowledge about this.

94.  As to the Housing Allowance Reason, Y.H. said the Defendant told him about it in 1990s when they met at the carpark of the Wanchai Tower. When asked, Y.H. said the intention of the Defendant was to transfer the Subject Property to the Deceased for the Housing Allowance Reason. He denied that the Housing Allowance Reason related to the THF. When I asked him how a reason, which arose in early 1990s, would become a reason for entering into the 1988 Oral Agreement, Y.H. simply said it was what it was.

95.  Y.H. agreed that in neither of the said 3 dinner gatherings, nor when they met twice at the carpark of Wanchai Tower, did the Defendant try to evade him. He also agreed that he did not chase the Defendant for the Debt on these occasions. Y.H. said that he wanted to make the Deceased happy, therefore he mentioned nothing about the Debt at the dinner gatherings. He speculated that the Defendant had no fear facing him at the Wanchai Tower, knowing that he would not lift the veil and spoke badly of the Defendant in front of the colleagues. Moreover, by the early 1990s, the Defendant could have forgotten about the Debt.

Mother’s Flat

96.  Under re-examination, Y.H. repeated what he had said in the above, namely that the Deceased was unable to take care of herself, and the Mother was required to look after her. Hence, when the Mother became ill, they had to move her to the Mother’s Flat, so that Y.K. could care for the ailing Mother with the assistance of a domestic helper.

97.  As to the HK$1,000.00 contribution from the Defendant towards the rent of the Mother’s Flat, Y.H. said Y.K. was the one who made the request to the Defendant.

Mother’s Savings

98.  Regarding this accusation, Y.H. explained that the siblings found out the Mother’s bank passbook was missing, which led to their inquiries with her. He added this episode to his witness statement because he wanted to highlight that the Defendant was a fraudster. He did not seek against the Defendant for the return of the Mother’s Savings, as he did not have the Defendant’s address and telephone number.

12.1997 Incident

99.  Y.H. explained that the siblings met to discuss about the funeral arrangements for the Mother. Uninvited, the Defendant suddenly appeared. He said that no one invited the Defendant because it was none of his business. Y.H. criticised the Defendant for not caring for the Mother all along, thus there was no purpose for him to be involved in the matter.

100.  Y.H. added that the Defendant was just there to request HK$500,000.00 from the Deceased, before he would transfer the Subject Property to her. Y.H. suspected that the Defendant made such request at the meeting because the Deceased had been chasing him for the transfer.

S.K.’S EVIDENCE

101.  S.K. adopted her witness statement as her evidence-in-chief. In it, she had much less to say as compared to Y.K. and Y.H.. Nevertheless, she largely echoed what they had said in their witness statements. Below are the additional information that she provided in her statement: -

(1)  Both S.K. and the Defendant moved out from the Front Room in 1970. The former got married at that time, whilst the Defendant moved to cohabit with Ms Ching.

(2)  Before the passing of the Mother, the Defendant had cheated from her the Mother’s Savings. When asked about it, the Mother told the siblings that she had given the Mother’s Savings to the Defendant to be applied towards her funeral’s expenses.

102.  As a preview, not much evidence was obtained from S.K. during cross-examination and re-examination, as she had the habit of not answering what she was asked, or regurgitating the contents of her witness statement regardless of the questions. Below are the evidence that I could pick up from her answers.

Background

103.  She agreed that the Defendant was quire caring of the Mother, although Ms Ching’s relationship with the Mother was inharmonious.

1988 Oral Agreement

104.  S.K. admitted that the Deceased was in urgent need to find a place to live with the Mother, at the time of the 1988 Oral Agreement. This was due to the upcoming demolition of the Catchick Flat.

105.  S.K. revealed that she did not actually witness the making of the 1988 Oral Agreement. She was busy with her work at the material times, and she heard about it and the terms from the Deceased and Y.K. Under re-examination, S.K. corrected herself, claiming what she said in the witness statement should be the correct version of events.

Mother’s Savings

106.  S.K. narrated that the Mother voluntarily revealed to the siblings that she had given the Mother’s Savings to the Defendant. They had no knowledge about the matter until the Mother told them so. S.K. added that the Mother had shown them her bank passbook, and the records showed that the Mother’s Savings were withdrawn. When Ms Wong asked her whether the siblings kept the Mother passbook, S.K. retaliated that there was no reason for the siblings and the Mother to lie about this.

107.  Mr Chan asked her during re-examination, as to why she said on one hand that the Mother gave the Mother’s Savings to the Defendant, but on the other hand alleged that the Defendant had deceived the Mother when he took away the Mother’s Savings. She answered that it was impossible for the Mother to have given the money to the Defendant, as the Mother was still alive at that time. Subsequently, the Mother did say to them that she was deceived by the Defendant.

12.1997 Incident

108.  S.K. was asked the purpose of the family meeting at her place. She said she could not recall, but the Defendant appeared uninvited and demanded HK$500,000.00 from the Deceased. She did not know much about the discussions, as she had to clean the dishes after meal.

DEFENDANT’S EVIDENCE

109.  Like the others before him, the Defendant adopted his witness statement as his evidence-in-chief. In it, he echoed on his pleaded case, with additional information provided: -

(1)  The Government started employing him in 1975 as a driver, until his retirement in 2009.

(2)  He had all along resided at the Front Room together with the Mother and his siblings, until 1973 when he was married to Ms Ching. After the birth of his son in 1975, the young family moved into the Back Room, and remained living there until 1980. The Defendant said moving back to the Back Room made it more convenient for him to take care of the Mother.

(3)  The Mother and the Deceased moved into THF in 1980, together with the Defendant’s family. THF was small, about 100 square feet in size. A double-deck bed was placed in the living room for the Deceased and the Mother to sleep on. However, they moved back to the Front Room shortly thereafter, as they found the THF too small.

(4)  Learning that the Deceased and the Mother no longer resided at the THF, HKHS demanded the Defendant to delete their names from the list of tenants. He complied with such demand. Thereafter, the Defendant and his family continued to live at the THF, without being forced by the HKHS to move to a smaller unit as alleged by the Plaintiff.

(5)  The Defendant denied the allegation that he seldom visited the Mother after moving away from the Front Room. He explained that, due to the demanding nature of his employment, and the crowdedness of the Front Room, he would visit the Mother alone. In addition, he asserted that he would bring the Mother out for meals almost on a weekly basis, and he would give her some pocket money at times.

(6)  On top of this, he was willing to contribute to the rent for the Mother’s Flat, and shared the costs of her funeral. The Defendant had also arranged for the Mother to stay in the hospital when she became ill in or about 1994.

(7)  He intended the LK Property to be an investment; he and Ms Ching planned to lease it out and used the rent received to repay the loan. More importantly, based on his earnings at the time, it would be financially strenuous to shoulder the monthly loan repayment. Hence, he intended to remain living at the THF.

(8)  The Defendant agreed to change the plan, and to give up the THF in return for the Subject Property, was mainly because of his concern as to the Mother’s welfare. He wanted the Mother to have a place to live in light of the pending demolition of the Catchick Flat.

(9)  As he was busy with his work, the Defendant let the Deceased took charge of the details in the acquisition of the Subject Property. After he passed the HK$40,000.00 to the Mother, he had told her in the case the money was not enough to cover the down payment and expenses, the Deceased could talk to him.

(10)  On the day when they attended the office of HKHS to choose a unit, Y.K. was not present. Instead, the Defendant requested Ms Ching to go with the Deceased and the Mother, as he would be late due to work. Ms Ching left after the Defendant arrived at the office.

(11)  After the Subject Property was selected, the Deceased and the Defendant spent time building a model for, and discussing on, the renovation of the same.

(12)  The Deceased accompanied him to the solicitors’ office on 26 October 1988 and 27 February 1989 to sign the SPA, the Assignment and the Mortgage. During these meetings, the lawyers had explained the terms of the documents to them. Hence, the Deceased should be well aware of the restrictions contained therein; she should know that the Subject Property belonged to him, and she would not have any benefits in it.

(13)  The Defendant made clear that the other siblings were not involved in the acquisition of the Subject Property. Giving up the THF in return for the Subject Property was his own decision, thus it was unnecessary to consult their views. He countered that, should the other siblings be concerned about the well-being of the Mother, they could have offered to jointly rent a flat for her. In such case, the Defendant would not even have to sacrifice the THF, and the welfare of his immediate family.

(14)  There is no truth in the allegation that he had to give up the THF for the Housing Allowance Reason in 1988. He would not be entitled to apply for housing allowance if he was the owner of a subsidised flat. In fact, he only applied for housing allowance from his employer in 2001.

(15)  After learning about her marriage, the Defendant had repeatedly requested the Deceased to move out of the Subject Property, but to no avail. He did not want to pursue on the matter, as he wanted to protect their relationship.

(16)  He repeated the same request to the Deceased after the passing of the Mother in 1997. The Defendant described that he had, on a number of occasions, met with the Deceased for such purpose. During the discussions, the Deceased asked for time to seek alternative accommodation. As there was no urgency for him to get back the Subject Property, the Defendant did not press on the matter.

(17)  Then came the time after the Deceased had purchased VD Property. The Defendant repeated the request that she should vacate the Subject Property and returned the possession to him. She refused to do so on the excuse that she had many belongings stored therein.

(18)  After the Mortgage was fully repaid, the Deceased passed to the Defendant a letter from HSBC, which led to him making arrangements for the discharge of the Mortgage, and ultimately regaining the title deeds from HSBC.

(19)  As to the 08.2020 Incident, the Defendant narrated that he received the keys to the Subject Property from the Plaintiff, including key to the letterbox.

110.  I now turn to the Defendant’s evidence given under cross-examination and re-examination.

Background

111.  The Defendant was asked about his earnings in 1988. His answer was that he should receive about HK$5,000.00 per month as his basic salary. On top of that, he would have overtime pay amounting to HK$3,000.00 each month. Totality of the same would give him about HK$8,000.00 to HK$9,000.00 as his average monthly earnings.

LK Property

112.  He agreed with Mr Chan that the monthly instalment payable for the mortgage over LK Property was about HK$6,000.00. Based on his average monthly earnings at that time, he had a hard time repaying the monthly instalments. This led to his initial decision to lease out the LK Property and used the rent received to pay the monthly instalments.

113.  The Defendant admitted that the LK Property was more spacious than the THF. He and Ms Ching, the son, and the daughter, would each have a bedroom. He had no doubt that the LK Property was more comfortable and provided a better environment to the children. However, these were not reasons for his decision to move away from THF.

The Promises

114.  Although he could not recall exactly when the Deceased and the Mother went to the THF, the Defendant agreed that the Promises should be given sometime between the purchase of the LK Property (February 1988) and the signing of the SPA (October 1988). At the time, Ms Ching and their children were at home. He made the decision there and then after hearing the Promises, and without seeking Ms Ching’s views on the matter.

115.  The Defendant had no quarrel with Mr Chan’s suggestion that there were 3 consensuses reached on that day with the Deceased under the Promises.

116.  The first consensus was that: (1) after the Deceased got married; (2) she might have her own property; (3) in the circumstances, she would move out of the Subject Property; and (4) after the Mother passed away; (5) the Defendant could then recover possession of the Subject Property (these 5 steps are individually referred to “1^st to 5^th Steps”, and collectively referred to as the “1^st Consensus”, hereinafter in this Judgment).

117.  As to the second consensus, the Deceased would pay the monthly instalments of the Mortgage and other expenses during her occupation at the Subject Property (the “2^nd Consensus”).

118.  Regarding the third consensus, the Defendant had to repay to the Deceased that part of the principal of the mortgage loan after she had moved out of the Subject Property (the “3^rd Consensus”).

119.  On the question of the 1^st Consensus, the Defendant conceded there were situations that were not catered for under it. For example, there was no discussion as to what would happen if the Deceased was not married but acquired her own property, at a time when the Mother was still alive (the “1^st Scenario”). There was no discussion as to whether the Deceased would have to leave the Subject Property if the 1^st Scenario was changed to the extent that the Mother had passed away (the “2^nd Scenario”). Neither was there discussion of the situation where the Deceased became married but did not acquire her own property, at a time when the Mother had passed away (the “3^rd Scenario”). Nor was there any discussion as to who would shoulder the duty to take care of the Mother if the Deceased moved out of the Subject Property (the “4^th Scenario”).

120.  The Defendant said that, if any of the said 1^st to 4^th Scenarios materialised, he and the Deceased would discuss about the way forward. He added that he would consider taking over the duty to repay the Mortgage, subject to his financially ability at the time. He further said that the 1^st and 4^th Scenarios would likely not arise, as the Deceased loved to live with, and needed the care of, the Mother.

121.  Against the 1^st Consensus, and in light of the 1^st to 4^th Scenarios, the Defendant agreed, from hindsight, that he should not have demanded the Deceased to vacate the Subject Property before 1999 when she purchased the VD Property.

122.  In relation to the 2^nd Consensus, the Defendant agreed that, based on the Deceased’s earnings (and the Plaintiff’s earnings after they got married), her ability to repay the Mortgage was not a concern in his mind.

123.  As to the 3^rd Consensus, the Defendant conceded that he would have to repay to the Deceased the sum of HK$340,000.00 representing the principal under the Mortgage. He said he was ready and willing to do so, but since the Deceased had continued to occupy the Subject Property until her passing, the time to do so had not arrived. He intended to make the payment after getting the keys of the Subject Property in August 2020, and whilst he was at the law office for the Will reading. However, he was asked to leave prematurely. Then came this action. For these reasons, he did not know when, how and to whom the said sum should be paid.

Joint investment

124.  The Defendant denied that he owed Y.H. the Debt as alleged. Naturally, he also said that neither Y.H. nor the Mother had ever demanded him to repay the Debt.

MS CHING’S EVIDENCE

125.  Ms Ching adopted her witness statement as her evidence-in-chief at the trial. In it, her evidence resembled those stated in the Defendant’s witness statement. Below are the additional information that she provided: -

(1)  She became a housewife after marrying the Defendant. The Defendant was the sole breadwinner of the family.

(2)  Ms Ching recalled the day when the Promises were made. She was not involved in the discussions, as she was doing household chores at the time. However, she could hear the contents, as the THF was small.

(3)  She confirmed that the Defendant made the decision without consulting her. Ms Ching added that the decision to move out of THF was against her will, and unpopular amongst the children, especially their daughter. However, she understood that the Defendant made the decision for the welfare of the Mother.

(4)  On the day when the Subject Property was selected, Ms Ching accompanied the Mother and the Deceased to the HKHS office, as the Defendant could not get there on time due to work. She recalled that, by the time the Defendant arrived, they had chosen the Subject Property. She left after her husband had arrived.

(5)  After that, the Deceased would often attend the THF and discuss with the Defendant as to how to renovate the Subject Property. They even built a model for such purpose, and were having fun doing so.

(6)  Ms Ching had never heard about the 1988 Oral Agreement from anyone. She asserted that the Defendant had continued to provide for the Mother, as shown by his willingness to contribute to the rent of the Mother’s Flat, and bringing the Mother to the hospital when she was ill.

126.  Below is her evidence given during cross-examination and re-examination.

LK Property and the Promises

127.  Ms Ching denied that the Promises was not given or the Understanding was not reached between the Deceased and the Defendant on the day in question. She was unhappy about the Defendant’s decision, but did not let him know about her feelings at the time.

128.  Ms Ching admitted that the size of the LK Property was bigger than the THF. The son and the daughter would have their own bedroom. However, she was conservative with her answer as to whether the LK Property provided better living environment to the children; she did not think that there was much difference between LK Property and the THF in this regard. Finally, she disagreed that the family moved to LK Property because it would give the children a better living environment.

129.  She confirmed that, on the day the Subject Property was selected, she left after the Defendant arrived at the HKHS office. She did not know whether Y.K. also attended the HKHS office after her departure.

THE RELEVANT LEGAL PRINCIPLES

130.  Having set out the parties’ cases and witnesses’ evidence in the above, I find it appropriate, at this juncture, to first set out the relevant legal principles. They will provide the necessary guidance as to what standards the parties are required to meet in pursuit of their claims and defence, and what factors that the Court should consider in coming to its conclusions on the issues at hand.

Common intention constructive trust

131.  On the question of common intention constructive trust (i.e., the Plaintiff’s claims based on the 1988 Oral Agreement), the principles were succinctly summarised by Deputy High Court Judge Alexander Stock SC in the case of Leung Hang Lin & Anor v Lam Mei Yung [5]: -

“B. PRINCIPLES

7. The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 per Ribeiro PJ at §§35 – 38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

8. In summary:

(1) The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2) The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan §38; Liu Wai Keung §46.

(3) The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct. See: Liu Wai Keung §47; Mo Ying §5.16.

(4) The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5) However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts. The court is not constrained to consider only pure direct monetary contributions to the purchase price. In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters. See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.” (emphasis added)

132.  Regarding the two-limb test to be adopted for ascertaining the common intention of the parties, it is said that even if there is evidence of express discussion, the parties’ conduct is still probative to gauge and test the parties’ respective assertions. As per Godfrey Lam J (as Lam JA then was) in the case of Liu Wai Keung v Liu Wai Man [6]: -

“50. Even where, as in this case, reliance is placed on an express agreement, arrangement or understanding between the parties, their other conduct remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested.”

133.  The conducts to be considered could include subsequent conducts, where the existence of an equitable interest depends on a rebuttable presumption or an inference of the parties’ intention, but subject to the evidential weight to be attached to it. In Leung Wing Yi Asther v Kwok Yu Wah [7], Stock NPJ held that non-proximate conduct was admissible, but should be treated with caution:

“55. A question canvassed in the course of argument before this Court was whether those earlier and later events were admissible as evidence of intention at the time of transfers. It seems to me that they were and that the issue was one of weight. In the context of a question whether evidence of conduct subsequent to the registration of shares in the names of children was admissible to rebut the presumption of advancement, it was held in Shephard v Cartwright that whereas acts and declarations of the parties before or at the time of the transaction or so immediately after it as to render it a part of that transaction are admissible “either for or against the party who did the act or made the declaration… subsequent declarations are admissible as evidence only against the party who made them, not in his favour.” The modern approach is less rigid in relation to evidence of subsequent conduct:

“… it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor’s intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn.” (citing Tribe v Tribe [1996] Ch 107, 129 per Millett LJ)

56. As a matter of common experience, contemporaneous conduct is inherently more likely to be a reliable indicator of intention, to be given greater weight, than are words and conduct after the event, especially in the case of “self-serving statements or conduct of the transferor, who may long after the transaction be regretting earlier generosity.” That rationale is not restricted to evidence in rebuttal of presumptions but embraces any evidence from which an inference of the transferor’s intention may properly be drawn.” (underline added)

Resulting trust

134.  This is a matter that would require consideration should I reject the Plaintiff’s claims based on the 1988 Oral Agreement[8].

135.  Resulting trust arises by operation of a presumption that the non-owner claimant who provided money to finance the purchase of a property in the name of the legal owner, intended to acquire beneficial interest in the property for himself. The presumption is rebuttable by proof that the non-owner claimant did in fact intend the legal owner to take the property as beneficial owner. This intent may be established by direct evidence, or to a degree by reliance on the presumption of advancement[9].

136.  If the default presumption of resulting trust is raised, the non-owner claimant bears the burden of proving that the money used to acquire the property was provided by him[10]. The evidential burden, not legal burden, then shifts onto the legal owner to rebut the presumption by showing the actual intention of the parties. As per Deputy High Court Judge To (as he then was) in the case of Lee Tso Fong v Kwok Wai Sun & Anor[11]:

“23. Prima facie, beneficial ownership goes hand in hand with legal ownership. If a plaintiff seeks to divorce the beneficial ownership from legal ownership and to claim the beneficial ownership in the property which he purchased and transferred to the name of another, he must bear the burden of proving his equitable right which is inconsistent with the undisputed legal title. He may discharge that burden by proving an express trust. Or, he may be assisted by the presumption of resulting trust by proving that he paid the purchase price of the property. But, like all presumptions, the presumption of resulting trust operates only in the absence of evidence to the contrary. Once this presumption is raised, the party seeking to challenge it bears the evidential, but not legal burden, of adducing evidence to displace the presumption of resulting trust. That party may adduce evidence of a contrary common intention of making a gift. If that evidence is insufficient to displace the presumption of resulting trust, the presumption prevails. But if that evidence is sufficient to displace the presumption of resulting trust, the party who has the legal burden will fail unless he can prove the resulting trust.” (emphasis added)

137.  The presumption of resulting trust will be displaced if the evidence of the parties’ actual intention is inconsistent with a trust in favour of the money provider[12]. In the absence of express statement of the actual intention, the parties’ actual intention could be inferred from their words and conduct. The words and conduct of the parties before or at the time of acquisition, or so immediately after it as to constitute a part of the transaction are admissible[13].

138.  Apart from the general principles above, Ms Wong, in her opening submissions, specifically referred to the case of Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd [14], highlighting that the presumption of resulting trust would not arise, if the money provided by the non-owner claimant was intended to be a loan. Obviously, this relates to the Defendant’s case on the Promises and the Understanding.

Proprietary estoppel

139.  Ms Wong also addressed on the issue of Detriment, by quoting a passage from the case of Thorner v Major [15] on the principle of proprietary estoppel based on representation or assurance: -

“… the doctrine is based on three main elements, although they express them in slightly different terms: a representation or assurance made to the claimant; reliance on it by the claimant; and detriment to the claimant in consequence of his (reasonable) reliance…”

140.  Citing the same Thorner case, Mr Chan elected to quote the passage from Lord Scott at §15, commenting on the three elements identified by Lord Walker as reproduced in the preceding paragraph:

“15. … These elements would, I think, always be necessary but might, in a particular case, not be sufficient. Thus, for example, the representation or assurance would need to have been sufficiently clear and unequivocal; the reliance by the claimant would need to have been reasonable in all the circumstances; and the detriment would need to have been sufficiently substantial to justify the intervention of equity.” (emphasis added)

141.  Mr Chan further submitted that there must be sufficient causal link between the promises relied upon and the conduct which constitutes the detriment[16].

Illegality

142.  Both Mr Chan and Ms Wong cited the Hong Kong Court of Appeal case of Monat Investment Ltd v All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [17], which adopted the “range of factors approach” based on “trio of necessary considerations”, declared by the UKSC in the case of Patel v Mirza [18] as the correct test to be applied to the defence of illegality. As encapsulated by Lord Toulon: -

“120. The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate” (emphasis added)

Assessment of witnesses’ evidence

143.  As one could see in the above, the parties’ cases on the disputed issues relied heavily on their own and their witnesses’ evidence. Court’s assessment on their credibility and reliability, to a very large extent, dictates the outcome of the case. This warranted Ms Wong and Mr Chan, in their closing submissions, to refer to a number of cases in setting out the guidelines that I should observe when conducting such exercise in our case.

144.  On the court’s approach to the assessment of credibility of a witness, Ms Wong cited the case of Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd [19], where Chung J said: -

“12. The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:

“There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:

(a) Whether that part of his testimony is inherently plausible or implausible;

(b) Whether that part of his testimony is in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest”.” (emphasis added)

145.  Apart from the above, the inherent probabilities of the parties’ respective cases, and the internal consistency of the witnesses’ evidence and their demeanour when testifying at trial should also be considered by the Court[20].

146.  For witness whom was found to have told lies, Peter Smith J in the case of EPI Inc v Symphony plc [21] sounded a note of caution in evaluating their credibility: -

“74. I add a few of my own precautions. (i) First, it is essential to evaluate a witness’s performance in the light of the entirety of his evidence. Witnesses can make mistakes, but those mistakes do not necessarily affect other parts of their evidence. (ii) Second, witnesses can regularly lie. However, lies themselves do not mean necessarily that the entirety of that witness’s evidence is rejected. A witness may lie in a stupid attempt to bolster a case, but the actual case nevertheless remains good irrespective of the lie. A witness may lie because the case is a lie. (iii) Third, I regard it as essential that witnesses are challenged with the other side’s case. This involves putting the case positively. This is important for a judge to enable him to assess that witness’s response to the other case orally, by reference to his or her demeanour and in the overall context of the litigation. A failure to put a point should usually disentitle the point to be taken against a witness in a closing speech. This is especially so in an era of prepared witness statements. A judge does not see live in-chief evidence, thereby depriving the witness of presenting himself positively in his case.” (underline added)

147.  Mr Recorder Shieh SC shared similar view in the case of Yu Siu Cheuk v Realray Investments Limited [22]. At §80: -

“(2) Giving evidence is not a memory game. Very often, ordinary people would not pay particular attention to the minute or detailed matters which may be of interest to lawyers in a forensic setting. That said, there are matters which are so important to one’s case and so special that one could not lightly forget or be mistaken. It is all a matter of degree.

……

(4) The kind of formal concepts and technical language used by lawyers is not always easily grasped by ordinary laymen. The sort of cold, logical reasoning familiar to lawyers and judges (and often deployed in cross-examination to try to test a proposition to its logical end) may not be the sort of thought-process which ordinary laymen adopt in their day to day thinking and conversation. As Litton NPJ said (albeit in another context) recently in Cheong Shing Ltd v Yu Kwan (FACV 8/2008, 29 October 2008) at §7, “In the cold clinical light of a courtroom, rights and obligations tend to be clearly defined. But in real life, people’s motivation for their actions can be muddle-headed, ill-thought-out, obscure.” That said, this factor is counterbalanced by the fact that the questions to, and answered by, all the factual witnesses in this case where taken in Punti/‌Cantonese and sometimes attempts were made (by Bar and Bench) to make the questioning (and the reasoning behind) sound as “layman friendly” as possible.

(5) Sometimes witnesses get unnecessarily testy or hostile against the other side’s lawyer. They get confrontational; sometimes they are overly-cautious and unwilling to provide a straight answer; sometimes they get argumentative. One does not always hold such attitudes against a witness. They could be giving truthful evidence and still behave/​react in this way because that is their innate character or personality; or they could react in this way because they may think that this is the “clever” way of outwitting or scoring a point against the other side; they could react in this way because they had associated/​identified the other side’s lawyers with a party whom they believed to have engaged in dishonorable or oppressive conduct against them. But on the other hand, they could simply be not truthful with their evidence and unable to give a straight answer and hence they would feign ignorance and dodge straight questions. One needs a dose of common sense and a humane approach to witnesses, always remembering that not all persons think and behave like lawyers or judges.

(6) There is also the phenomenon which, for want of a better phrase, I would call the “misguided embellishment of evidence”. This phenomenon is described by Peter Smith J in EPI Inc v Symphony plc … I read the last two sentences (“A witness may lie in a stupid attempt …” and “A witness may lie because …”) as two graphic descriptions of the possible motives – at two extremes – for giving untruthful evidence. That is, in my view, no more than the application of one’s appreciation of ordinary human nature.

(7) But I should state that by listing the above matters I am not suggesting that in his judgment a judge should always try to articulate or speculate “innocuous” reasons which could excuse a witness’s unsatisfactory evidence (or lies) and eliminate them in a mechanical or scientific way before one can reject his or her evidence. The point is simply that the possibility of such reasons should be borne in mind in the overall assessment of credibility.”

148.  The Court should also be cautious in cases where emotional familial relationships are involved. In Kwong Yuen Seung Ivy & Ors v Kwong Kam Hung, DDJ K C Chan (as His Honour then was) accepted that, in gist[23]: -

“(a) In family disputes, strong feelings are aroused which often lead the parties, honestly but mistakenly, to re-interpret the past in self-exculpatory or vengeful terms; and

(b) Human memory is unreliable in that his or her own thoughts and beliefs can cause dramatic changes in recollection, which is also subject to biases as witnesses often have a stake in a particular version of events; and that recollections though honestly held may be unreliable.”

149.  Finally, I shall add that the 1988 Oral Agreement, the Promises, and the acquisition of the Subject Property, happened over 34 years ago. There is no contemporaneous documentary evidence in support of the existence of either the 1988 Oral Agreement or the Promises. Facing situations similar to ours, Peter Ng J had these to say in the case of Cheung Kwai Chi v King Charter Enterprises Ltd & Anor [24]: -

“51. The nature and purpose of the payment of the Sum to the Plaintiff is a purely factual issue which dates back almost 15 years ago. Both the Plaintiff and the Defendants have given competing versions of it without the support of any direct contemporaneous documentary evidence.

52. As expected, the Plaintiff heavily criticises the Defendants’ case on the Buy Out Agreement as convoluted, shifting, and is no more than a self-serving metamorphosis. The Plaintiff also launches a lengthy attack on Mr Lam’s credibility, and to a lesser extent Ms Lam’s. Similarly, the Defendants also extensively criticize the Shun Fuk Buy Out Agreement and the Plaintiff’s credibility in their Closing.

53. In these circumstances, the resolution of the core issue depends to a very large extent on this court’s finding on the credibility of the two main witnesses. This court has carefully considered the manner in which they testified including their demeanour and assessed it against the known and undisputed circumstances of this case. This court has in particular considered the inherent probabilities or otherwise of their testimony and such of the documentary evidence as there is, or rather the absence of it, and assessed their credibility accordingly.

54. This court has also taken heed of the following observations of the recent English Court of Appeal in Natwest Markets Plc v Bilta (UK) Ltd (In Liquidation) [2021] EWCA Civ 680 at [49] - [51]:

“49. In a case such as the present, where the events in question took place over 9 years before the trial and occurred in a narrow period of around 3 weeks, the salutary warnings about the recollections of witnesses in Gestmin SGPS SA v Credit Suisse UK Ltd [2015] EWHC 3560 at [22] and Blue v Ashley [2017] EWHC 1928 at [68] are pertinent. It was therefore of paramount importance for the Judge to test that evidence against the contemporaneous documents and known or probable facts if and to the extent that it was possible to do so.

50. We say, “if and to the extent that it was possible to do so”, because it is important to bear in mind that there may be situations in which the approach advocated in Gestmin will not be open to a judge, or, even if it is, will be of limited assistance. There may simply be no, or no relevant, contemporaneous documents, and, even if there are, the documents themselves may be ambivalent or otherwise insufficiently helpful. The case could be one about an oral promise which turns entirely on the word of one person against another’s, and the uncontested facts may well not point towards A’s version of events being any more plausible than B’s. …

51. Faced with documentary lacunae of this nature, the judge has little choice but to fall back on considerations such as the overall plausibility of the evidence; the consistency or inconsistency of the behaviour of the witness and other individuals with the witness’s version of events; supporting or adverse inferences to be drawn from other documents; and the judge’s assessment of the witness’s credibility, including his or her impression of how they performed in the witness box, especially when their version of events was challenged in cross-examination. Provided that the judge is alive to the dangers of honest but mistaken reconstruction of events, and factors in the passage of time when making his or her assessment of a witness by reference to those matters, in a case of that nature it will rarely be appropriate for an appellate court to second-guess that assessment.” (emphasis added)

55. Echoing the observations above, Mr Khaw SC submits orally in Closing, which this court largely agrees, that the key material events in the present case happened about 15 years ago and it is very difficult to reconstruct a complete picture of what happened and what went through each party’s mind, given the long lapse of time and the lack of relevant contemporaneous documentation. When analysing the evidence, this court should avoid getting bogged down with the minute details. Rather, this court should and will look at the bigger picture and take a holistic approach in assessing the parties’ competing cases.” (underlines added)

150.  With these in mind, I shall now provide my discussions on the issues below.

DISCUSSIONS

1988 Oral Agreement and the common intention constructive trust

151.  As aforestated, there is a presumption that the beneficial interest follows the legal interest. In our case, although indisputable that the Deceased had paid for the Mortgage, Government rents and rates, management fees, and other household expenses incurred for the Subject Property, it is also indisputable that the Defendant holds the legal title. Hence, the burden is on the Plaintiff to show, on the balance of probabilities, that the Defendant holds it on trust for the Deceased.

152.  To achieve such purpose, the Plaintiff relies on the 1988 Oral Agreement. Nevertheless, he is handicapped by the fact that he had yet entered into the life of the Deceased at the time the 1988 Oral Agreement was allegedly made. The questions of when, where, and how it was made, and the Terms, could not be directly answered by the Plaintiff. For his part, he had to rely on what he heard from the Deceased. However, on his own evidence, the Deceased mentioned nothing about the 1988 Oral Agreement to him until 1995, i.e., about 7 years later. In the absence of any contemporaneous documentary evidence, the Deceased’s recollections of the details could fade and become inaccurate. Hence, to assist his claim, the Plaintiff enlisted the help of S.K., Y.H. and Y.K., whom were supposedly present at the time when the 1988 Oral Agreement was made.

153.  The first part of the discussions is thus devoted to the question of whether the 1988 Oral Agreement existed. As a preview of what is to come, sometimes, one finds chaos rather than strength in numbers. As we can see from the witnesses’ testimonies from the Plaintiff’s side, they are bursting with self-contradictions, internal inconsistencies, and inherent implausibility.

When and where the 1988 Oral Agreement was made, and who were there when that happened

154.  First, the Court can completely ignore what S.K. said in her evidence-in-chief on this topic. She volunteered at trial that she was not present at all when they discussed about the 1988 Oral Agreement, and when the same was entered into. S.K. only heard about them from her siblings, but she has not specified when.

155.  Mr Chan had tried salvaging the case during re-examination, getting S.K. to assure what she said in the witness statement is still correct. I do not accept it. She has given no reason why she had, under cross-examination, departed from, if not destroyed completely the core foundation of, her witness statement. In fact, S.K. voluntarily told the Court that she was not involved in the discussions of the 1988 Oral Agreement. She even offered a reason for not being part of the discussions, i.e., she was busy with her work at that time. S.K. went even further, admitting that she had heard about the 1988 Oral Agreement and its terms from Y.K. and Y.H.. I find S.K. did not witness the discussions leading to, and the making of, the 1988 Oral Agreement.

156.  S.K.’s revelation could perhaps also answer a query in my mind as to why, notwithstanding the Plaintiff’s pleaded case that S.K., Y.H. and Y.K. were all present at the material times, none of them has expressly stated so in their respective witness statement. Moreover, neither Y.H. nor Y.K. could recall at trial the persons (other than the Deceased, the Defendant, and the Mother) who attended the 3 gatherings. I find it amazing that Y.K. and Y.H. could allegedly recall: (1) the Terms; (2) the reasons for the Defendant to enter into the same; (3) the reaction of the Mother when she heard that no one save the Deceased would take care of her from then on; but not whether the other sibling was there when all these happened.

157.  Second, it is questionable as to whether Y.H. and the Defendant did attend the gatherings as alleged. Y.H. said the Debt was outstanding from the Defendant to him at the material times. Y.H. had been chasing the Defendant for the Debt (for over 30 years counting up to the time of trial), and had been doing so also via the Mother. Supposedly, the Defendant had all along been avoiding Y.H., which led to Y.H. not knowing the Defendant’s telephone number then and now, and they would never dine together. On these bases, it is most curious that Y.H. and the Defendant would appear together at the 3 family gatherings. If Y.H.’s appearance at the first gathering was a coincidence, I accept that the Defendant would not be able to avoid Y.H.. However, it is unlikely that he would attend the second and third gatherings, knowing that Y.H. would be there as a witness for the Deceased.

158.  On the other hand, if Y.H. had been there on all 3 gatherings, it is unbelievable that he had not seized the opportunities to demand repayment of the Debt from the Defendant. But according to Y.H.’s own evidence, he did not do so, because he wanted to make the Deceased happy. I do not understand the rationale behind this answer.

159.  In addition, Y.H.’s alleged presence at the 3 gatherings is further weakened by his explanations as to how and why he was there. He first stated that his presence at the discussions was a mere coincident. However, that changed to the Deceased wanting him to be there as a witness, since she did not trust the Defendant. It begs the question as to why, if the Deceased needed a witness, Y.H.’s attendance at the same was not by prior request, but by coincidence. Anyways, if the Deceased was so concerned about the Defendant’s integrity in performing the 1988 Oral Agreement, it is a mystery that nothing was reduced into writing. There is not a shred of documentary evidence to support the existence of the 1988 Oral Agreement and the Terms. Such omission is astounding especially when one takes into accounts Y.H.’s testimonies that he had told the Deceased his dispute with the Defendant over the joint investment and the outstanding Debt. Y.H. also gave no reason why he did not advise the Deceased to take some precautionary measures to prevent any trickery from the Defendant. He was watching a tragedy waiting to happen, but had done nothing to prevent it. Instead, Y.H. blamed it on the Deceased’s young age and innocence, which is likewise hard to believe. The Deceased was about 31 years old in 1988 (born in 1957), and had been working as a teacher for some time. And she does not appear to be so innocent, knowing that she needed Y.H. as the witness to the 1988 Oral Agreement, if that was true.

160.  Contrary to what Y.H. said, Y.K. emphasised that the Deceased trusted the Defendant to honour his obligations. The Plaintiff added that he found the Defendant to be a trust-worthy person.

161.  Third, assuming that Y.H. and Y.K. were both present at the 3 gatherings, their evidence as to the time and how the 1988 Oral Agreement was made are wide apart. Y.K. said that the Deceased and the Defendant entered into the 1988 Oral Agreement on the first gathering. In the subsequent 2 to 3 gatherings, there were simply repetitions of the Terms amid the Defendant boasting about his generosity.

162.  However, Y.H. departed from what he said in the witness statement, and testified at trial that, on the first gathering, only the Terms were set out. The second gathering was for the Deceased and the Defendant to discuss whether the Terms were agreeable. It was on the third gathering that they finally entered into the 1988 Oral Agreement.

163.  Albeit Y.H.’s narratives sound systematic and logical, Y.K.’s evidence is consistent with the Plaintiff’s pleaded case. Come what may, it is inexplicable that their narratives are so different if they had both attended the gatherings.

164.  Fourth, Y.H. and Y.K. gave different answers on the venue where the gatherings took place. Whilst Y.K. said they spoke of the 1988 Oral Agreements at the Front Room and restaurants, Y.H. confidently said he had never been to a restaurant with the Defendant. On this point, I have the same query as in the preceding paragraph.

Reasons for entering into the 1988 Oral Agreement

165.  Clearly, testimonies from the siblings completely obliterated the Plaintiff’s pleaded case on this.

166.  First, Y.K. accepted that the Mother and the Deceased’s names had long been removed from THF’s tenant list before 1988. The Defendant and his immediately family had continued to reside at the THF for about 5 years thereafter. There was no pressure from HKHS to move the Defendant and his family to a smaller flat. Ultimately, Y.K. admitted that this was not a reason why the Defendant had decided to give up the THF. As to Y.H., his evidence was simply that he had no knowledge about this.

167.  Second, Y.K. agreed the Housing Allowance Reason was not actually a reason for the Defendant to relinquish his hold on the THF. Y.K. and Y.H. conceded that the Defendant was not applying for housing allowance from his employer in 1988[25]. Y.H.’s understanding of the Housing Allowance Reason related to the Subject Property, as I have set out in §94 of this Judgment. Clearly, his understanding has no bearing on the 1988 Oral Agreement.

168.  Third, the siblings’ evidence showed that the Deceased was eager to purchase a flat, due to the imminent demolition of the Catchick Flat. Y.K. went further that it was the Deceased whom initiated the discussions with the Defendant on giving up the THF, in return for a chance to purchase a flat at Tower 2 of the Dragon Centre.

169.  Pausing here, I see the above testimonies from the siblings are actually consistent with the Defendant’s case.

170.  From their evidence, the key reason was incorporated as Term 3 of the 1988 Oral Agreement, i.e., the Defendant did not want to provide for and live with the Mother.

171.  The Plaintiff, in his evidence, stressed that by entering into the 1988 Oral Agreement, the Defendant could avoid living with the Mother in the future. He explained that, should the Mother reside alone, there was a chance that she would visit and stay with her children in turns, and eventually, she would end up staying with the Defendant’s family. Peculiarly, such explanation came from the Plaintiff, but uncorroborated by any of the siblings who gave evidence at trial.

172.  I find it possible that the Mother would want to stay at her children’s places occasionally, to spend time with her grandchildren. However, I do not understand why the Defendant had to go to such extent to prevent that from happening. Without entering into the 1988 Oral Agreement, he could have remained living in the THF and leased out the LK Property. In such case, the Mother had long elected not to live there.

173.  In addition, the siblings have stressed on how the Mother could not get along with Ms Ching, so much so that it became a reason for the Mother choosing not to move to the THF. Thus, so long as the grudge between the Mother and Ms Ching remained, if that was true, the Defendant should have no fear that the Mother would stay with his immediate family from time to time. I cannot see how the Mother’s (or Ms Ching’s) attitude would change if she were to live alone and apart from the Deceased, as the Plaintiff alleged.

174.  Furthermore, it was unnecessary for the Defendant to rely on the 1988 Oral Agreement to ensure that the Deceased would reside with, and take care of, the Mother. From the siblings’ evidence, it was the Deceased who required the care of the Mother. Her inability to care for the Mother is further evident by the fact that the Mother had to move to the Mother’s Flat in about 1994 or 1995, when she was diagnosed with cancer.

175.  Interestingly, notwithstanding the alleged obligations imposed on the Deceased under Term 3, the primary responsibilities in caring and providing for the Mother at the dire times was shouldered by Y.K.. And, curiously, with the Deceased’s earnings[26] and that of the Plaintiff[27], against the modest expenditures for the Subject Property[28], and again, in the spirit of Term 3, the Deceased only contributed HK$1,000.00 towards the Mother’s Flat, with HK$2,500.00 being paid by Y.K.. As per Y.K., they rented the Mother’s Flat for 3 years. I am not told why the Defendant, and the other siblings, did not hold the Deceased accountable for her obligations under the 1988 Oral Agreement. At the very least, the Deceased should bear a larger part of the rent for the Mother’s Flat.

176.  On this point, it is amusing to hear from Y.K. that, when she asked the Defendant for the contribution, she pretended that she was unaware of the 1988 Oral Agreement. I do not see how she could pretend to be ignorant of it, when she allegedly attended all 3 gatherings where the 1988 Oral Agreement was reached and re-confirmed, and was present at the office of the HKHS when they chose the Subject Property.

177.  It is equally unnecessary for the Defendant to rely on the 1988 Oral Agreement to evade from financially providing for the Mother. According to the siblings, he had not been doing so since at least 1970 when he had moved out of the Catchick Flat, and was under no pressure to ensure the longevity of it, contrary to what Y.K. said. Come what may, veracity of such assertion is controverted by the testimonies from the Plaintiff’s camp. The Plaintiff and S.K. shared that the Defendant cared about the Mother, in spite of what Y.K. and Y.H. said. Insofar as the Defendant’s intention to evade forever the need to provide for the Mother, it is contradicted by his willingness to contribute towards the rent of the Mother’s Flat and funeral expenses. Nothing shows that he made these contributions after he had his arm twisted by the siblings.

178.  The Plaintiff supplemented at trial the key concern for the Defendant was that the Deceased should continue living with the Mother after her marriage. I do not accept this. Not only has this not been pleaded as a reason and a term of the 1988 Oral Agreement in the SOC, the siblings have also said nothing to this effect in their witness statements and testimonies.

179.  To conclude on this topic, I shall add that, on the Plaintiff’s own admission at §51 above, the responsibilities under the Mortgage were far greater than to provide for the Mother monetarily. It is highly doubtful that the Defendant would opt for such course just to prevent the worst-case scenario, i.e., the Mother living with him intermittently.

180.  From the above, the pleaded and alleged reasons for the Defendant to create or to accept the 1988 Oral Agreement just were not there.

Terms of the 1988 Oral Agreement

181.  In view of the discussions in §§171-180 above, I have serious doubt that Terms 2 and 3 existed. There was simply no reason for them to be included in the 1988 Oral Agreement.

182.  As to Term 1, one could see that there was no timeframe set out therein as to when legal ownership of the Subject Property would be conferred to the Deceased. Terms 1 and 2 simply set out the Deceased’s obligations, but were silent as to when the Defendant should confer on her the legal title of the Subject Property. Naturally, one would query when would that happen? Is it simply upon full repayment of the Mortgage under Term 1? Or with the additional condition that the Mother should continue to live with the Deceased at the time when the Mortgage was fully repaid under Term 2? Or would Term 2 require the Deceased to continue living with the Mother at the Subject Property until passing of the latter? Surely, such an imperative term of the 1988 Oral Agreement must exist. Peculiarly, this is omitted from the SOC and the witness statements.

183.  The explanations came from the Plaintiff’s camp only at trial, and one can foresees that things would get chaotic.

184.  The Plaintiff recalled hearing from the Deceased about the condition that the Subject Property would not belong to her until the passing of the Mother. This does not appear in Y.K. and S.H.’s evidence.

185.  Y.H.’s evidence on this matter is all over the place. He started by saying that upon compliance of Terms 1 and 2, the Subject Property would belong to the Deceased. There was no requirement that the Mother must have died in order to satisfy Term 2. Nevertheless, Y.H. then suggested it was neither a prerequisite under Term 1 that the Mortgage had to be fully repaid, nor the passing of the Mother under Term 2, to have the Subject Property transferred to the Deceased. Finally, he went back to his initial answer, but then oddly added that the Deceased was not aware of the need to fully repay the Mortgage in order to satisfy Term 1.

186.  Y.K., unlike Y.H. and the Plaintiff, placed all the emphasis on the passing of the Mother. She said, regardless of whether the Mortgage was fully repaid, the Deceased would be entitled to have the legal ownership transferred to her name once the Mother died. This contradicted what she had initially said under cross-examination[29].

187.  Even if one ignores the inconsistencies in their evidence, these are, at the end of the day, nothing more than their own interpretations of Terms 1 and 2. Supposedly, Y.K. and Y.H. were present at the time when the 1988 Oral Agreement was entered into, and they had heard the Terms for more than once. Notably, they had not spoken of these as the terms agreed between the Deceased and the Defendant. If these were indeed part of Terms 1 and 2, it is inexplicable that they are omitted from the SOC and their witness statements. Neither is there any explanation as to why they could suddenly recall these additional terms or consensuses more than 35 years after the 1988 Oral Agreement was made, and more than 2 years after they have given their witness statements.

188.  Even if I were to accept any of the version provided in the above, Term 2 was clearly not fulfilled when the Mother moved to the Mother’s Flat in or about 1994. The Plaintiff had accepted that this could constitute a breach of the 1988 Oral Agreement. Conversely, Y.K. and Y.H. argued that there was no violation if the Defendant had agreed to the arrangement. That could indeed be the case, but I hear no evidence that the Defendant had, voluntarily or upon the Deceased’s request, excluded her obligation under Term 2, or waived any violation of it.

189.  Another question arising from Term 1 is that there was no certainty, as accepted by the Plaintiff, that the Deceased would honour her obligation to repay the Mortgage, in part or in full. Should she back out of the 1988 Oral Agreement, the Defendant would be on the hook for repaying both the Mortgage and the loan he had taken out for the LK Property. It is therefore inconceivable that the Defendant would agree to Term 1, or the 1988 Oral Agreement as a whole, without there being some form of protection for him, for example a personal guarantee from the Deceased to HSBC to repay the Mortgage. In the absence of such protection, I doubt the Defendant could say to Y.H. that he would not shoulder any responsibility if the Deceased failed to pay the Mortgage[30].

190.  Aside from the above, there are doubts as to whether Term 2 is adequate and workable for the Deceased and the Defendant to have agreed on it. For instance, at the time when it was allegedly made, the Deceased was not married. There were the possibilities that: (1) she would later on get married; (2) her future husband would not agree to live with the Mother; (3) the Mother would not agree to live with the Deceased’s future husband; (4) her future husband would not agree to reside at the Subject Property; and (5) either or both became unwilling to continue living there until the Term 1 was fulfilled. The 1988 Oral Agreement did not cater for these possibilities. In my view, it was imperative for the parties to also discuss and agree on the arrangements when these situations arose, at the time when they entered into the 1988 Oral Agreement, but there was none. On this point, I repeat what I have said in §189 about the financial risks that the Defendant could face, if the Deceased decided to withdraw from the 1988 Oral Agreement because of these possibilities. Such concern almost materialised in 1995, when, according to the Plaintiff, he complained that the Subject Property being too small to house the 3 of them and wanted to purchase a new flat. Come what may, I do not see why the Deceased’s future husband should have his freedom compromised by the 1988 Oral Agreement via Term 2, a position that the Plaintiff was put in as illustrated in §§48 and 49 above.

191.  I appreciate that the Deceased and the Defendant are laymen; however, it does not take a lawyer to see these as possible scenarios, came up with the solutions, and incorporated the same into the 1988 Oral Agreement. Or they would agree to negotiate further for variation when any of these scenarios arose. Again, I hear no such evidence from any of the siblings who should be present during the discussions of the 1988 Oral Agreement.

192.  In addition, strict adherence with the terms of the 1988 Oral Agreement would bar the Plaintiff from living at the Subject Property. It was meant only for the residence of the Deceased and the Mother. There is no evidence that the Deceased and the Defendant had agreed to relax such restriction.

193.  Finally, I see no sense that, not only the Defendant, but other siblings (save for the Deceased) would be relieved from their financial duties on a fixed basis to the Mother under Term 3. At trial, Y.H., Y.K. and the Plaintiff all accepted that Term 3 included such effect. It is unbelievable that the Defendant, portrayed as a calculative person and aloof from his siblings, would sacrifice himself for their common good. It is questionable that the Deceased would be willing to take on such duty solely and indefinitely. Likewise, it is unreasonable for the other siblings to accept such favour, especially considering how much they despised the Defendant. It is unimaginable that the Mother had neither expressed her sorrow over the children’s eagerness to dispose of such burden, nor voiced out against such arrangement.

Conducts after the 1988 Oral Agreement

194.  The parties’ conducts could shed further lights on whether the 1988 Oral Agreement containing the Terms did exist. I shall look at them in chronological order.

195.  As spoken, the Plaintiff living at the Subject Property could strictly speaking be a violation of Term 2. The Defendant took no action upon such breach; there was also evidence showing that the parties had agreed to waive the non-compliance.

196.  In addition, the Mother moving out of the Subject Property and placed in the care of Y.K. since 1994 were clearly a breach of Term 2. Again, there is no evidence that the Defendant took issue about it; nor is there any evidence to show that the parties had agreed to waive it. On the contrary, the Defendant, against the alleged key reason for entering into the 1988 Oral Agreement and his most desired result under Term 3, contributed towards the rent of the Mother’s Flat for 3 years. Equally, Y.K., Y.H. and S.K. had apparently no problem resuming their fixed obligations to provide for the Mother, and, in the case of Y.K., when her obligation exceeded that of the Deceased.

197.  Regarding the 12.1997 Incident, I must say I have doubts as to whether it did happen as alleged.

198.  First, it is inexplicable why the Defendant would appear. According to the siblings’ evidence, no one told him there would be a family meeting, where and when that would take place. Perhaps sensing the absurdity in it, Y.K. later changed her evidence under cross-examination, but the reasons she gave for what she initially said are unconvincing[31].

199.  Second, Y.K. narrated that the Deceased initiated the discussion by asking for the transfer of the Subject Property to her name. This was justified as the Mother had passed away. Such narrative is not supported by Y.H. and S.K.. They said the Defendant simply requested HK$500,000.00 from the Deceased for transferring the Subject Property to her. Nothing was said as to how that conversation started, and what was said leading to the demands from each side.

200.  Third, the siblings only spoke of their rejections of the Defendant’s demand. Curiously, no one cited the 1988 Oral Agreement as the foundation for the rejections. Likewise, the Defendant seemingly had not given any reason for his monetary demand.

201.  Fourth, with the passing of the Mother, and the allegation that the Defendant had taken away the Mother’s Savings, nothing was said by the siblings that they had, during the 12.1997 Incident, demanded from the Defendant return of the Mother’s Savings to pay for the funeral expenses. Of course, this would be another opportunity for Y.H. to demand repayment of the Debt from the Defendant; it did not happen.

202.  Assuming the 12.1997 Incident happened as alleged, it must have been a rude awakening for the Deceased that the Defendant could not be trusted to honour the 1988 Oral Agreement. She should have taken measures to protect her interests in the Subject Property. According to the Plaintiff, the Deceased had not done so, save simply obtaining legal advice. She still did not find the need to reduce the 1988 Oral Agreement and the Terms into writing. Neither the Plaintiff nor the siblings (especially Y.H., the alleged victim under the joint investment) had suggested her to do so.

203.  What is more, by a letter from HSBC dated 19 August 2002, the Deceased was informed that the Mortgage had been fully repaid. Assuming that the Defendant had waived any breach of Term 2 due to the Mother having moved to the Mother’s Flat since about 1994, the Deceased had by then fulfilled the 1988 Oral Agreement. She was entitled to seek transfer of the Subject Property to her name. Without reason, she failed to do so. Instead, she passed the said letter to the Defendant, and allowed him to follow up on the matter. Ultimately, the title deeds over the Subject Property were returned to the Defendant, giving him not only the legal title, but the necessary documents to sell the Subject Property or to mortgage it in return for a loan. Amazingly, the Deceased had done nothing to prevent these possible scenarios from happening.

204.  The Deceased had another opportunity to assert in writing her beneficial interests in the Subject Property when the Will was created. She did not expressly do so.

205.  As to the 08.2020 Incident, I am not persuaded that the Defendant received the keys to the Subject Property from the Plaintiff by deceit. I can appreciate that the Plaintiff would still be busy handling matters for the Deceased at the time, but I query why it was necessary to dispose of all her belongings inside the Subject Property for the alleged repair of the gas pipes. I also doubt it was so urgent that it had to be done by the Defendant. It is absurd for the Plaintiff to say he had no time to just open the door of the Subject Property for the Defendant to perform the cleaning task, but he had the time to attend the Dragon Centre with the Defendant, and to show the Defendant where to dispose of the garbage.

206.  In addition, it is also hard to believe that the Plaintiff, who knew the Defendant was trying to take possession of the Subject Property, would leave the keys with him. I do not see how the Plaintiff could feel safe to do so, when his alleged protection, i.e., the Writ, was not issued, and was not registered with the Land Registry until November 2020, approximately 3 months later.

207.  I think it is also telling that, according to the Defendant, the Plaintiff had passed to him the key to the letterbox[32]. The Plaintiff has not denied about it. One would query why this was so if the Defendant was just to clear the sundries from the Subject Property, rather than the Plaintiff returning the Subject Property to the Defendant.

Summary on the 1988 Oral Agreement and common intention constructive trust

208.  For the above reasons, taking a holistic view, I am not convinced that the 1988 Oral Agreement existed as alleged. It is not evidenced by any contemporaneous documents. It is not supported by any subsequently created document, when there were numerous events that warranted the making of it. The testimonies of the witnesses to the discussions and making of the 1988 Oral Agreement are self-contradictory, inconsistent, implausible, incredible, and unreliable. The alleged reasons for the Deceased and the Defendant to enter into the 1988 Oral Agreement are annihilated by the siblings’ own testimonies. The Terms are so uncertain, incomplete, and unworkable that it is hard to conceive that the Deceased and the Defendant would agree to them. The post-1988 Oral Agreement conducts of the Deceased, the Defendant, the Plaintiff, and the siblings, are all inconsistent with the existence of the 1988 Oral Agreement. I therefore find that there was no 1988 Oral Agreement.

209.  It follows that the Plaintiff’s claim based on common intention constructive trust should fail, and I so find.

The Promises and the resulting trust

210.  I will group these two issues together for discussions. It is agreed that the Deceased had, at least, paid the Mortgage and other expenses of the Subject Property (save the HK$40,000.00 which is in dispute), which, prima facie, establish a case of resulting trust in her favour. This, however, could be defeated if the Promises were established, i.e., the parties’ actual intention is inconsistent with a trust in favour of the money provider. I will therefore first render my findings on the Promises in the sections below.

211.  I should mention in passing that the Defendant is neither relying on the presumption of advancement, nor the common intention of gift. In essence, his case is that the contributions from the Deceased was a loan to him.

Making of the Promises

212.  For the Promises, they were witnessed by 4 persons: the Deceased, the Defendant, the Mother, and Ms Ching. Unfortunately, only two of them are still alive at the trial, and their evidence are unsurprisingly consistent as to when, where, how, and the contents of the Promises. None of the witnesses from the Plaintiff’s side could present any challenge to these matters. Conversely, parts of their evidence fortified the Defendant’s case: -

(1)  The Deceased was eager to purchase a flat.

(2)  Her eagerness stem from the imminent demolition of the Catchick Flat.

(3)  There was no pressure from the HKHS that the Defendant and his family had to move to a smaller flat.

(4)  The Defendant cared for welfare of the Mother, supported by his willingness to contribute towards the rent for the Mother’s Flat.

(5)  Despite the clear animosity showed toward the Defendant by Y.K., Y.H., and S.K., there is no suggestion that his relationship with the Deceased was inharmonious. Instead, the Plaintiff and Y.K. pointed to the mutual trust between the Deceased and the Defendant. Come what may, if their relationship was bad, it is unfathomable that the Deceased would turn to him for assistance (be it under the 1988 Oral Agreement, or the Promises and Understanding), and the Defendant would agree to provide it.

213.  The Defendant did not need to acquire the Subject Property. He had purchased the LK Property in February 1988. In view of his earning ability at the time (HK$8,000.00 to HK$9,000.00 per month), and then upcoming obligation to pay the mortgage for the LK Property (about HK$6,000.00 per month), his alleged intention to continue residing at the THF notwithstanding acquisition of the LK Property, is believable. For these reasons, his initial rejection of the Deceased’s proposal is also understandable and probable. Moreover, acquiring the Subject Property in his name would entail him becoming the debtor under the Mortgage. He would be liable for it if the Deceased, for whatever reason, ceased to make the repayment. Hence, a good offer, like the Promises, would be required to change his mind.

214.  Pausing here, Y.K. and Y.H. suggested that the Defendant would have to return the THF to HKHS, as he had purchased the LK Property. As such, the Promises were not required to lure him into giving up the THF. I am unable to accept their suggestion. Neither party has adduced any statute, regulation, policy, and case law, to show that the Defendant was bound to do so once he had purchased a private residential unit. On the other hand, there is also nothing to show that he could not purchase the Subject Property for the same reason. I have heard no evidence and have seen no document that could point to the Defendant hiding his ownership of the LK Property from the HKHS in his application to purchase the Subject Property. In any event, the Defendant was not bound to purchase the Subject Property, even if he were to return the THF to HKHS.

215.  According to the Promises and the Understanding, the Defendant had no extra financial burden, at least initially. The Deceased would pay the Mortgage and expenses for the upkeep of the Subject Property, until either she got married or the passing of the Mother, when she would move away. To sweeten the offer, the Deceased would not seek any interest in the Subject Property in return, as she was a mere licensee. And when she moved out of the Subject Property, the Defendant was liable only to repay her contributions towards the principal portion of the loan secured by the Mortgage. I do not see this as an offer that the Defendant could resist. In addition, if the siblings’ portrayal of the Defendant as a calculative and greedy person was accurate, he should embrace the offer unreservedly.

216.  I think the evidence of Ms Ching in this regard added realism to the Defendant’s case. She did not hide her discontent having to move away from the THF. That being so, it is authentic that the Defendant would ignore or not giving much weight to her view, as he was the sole breadwinner of the family.

Contents of the Promises

217.  As aforesaid, the Defendant had no quarrel with Mr Chan’s suggestion that there were the 1^st to 3^rd Consensuses under the Promises, and the 1^st Consensus contained the 1^st to 5^th Steps, which did not cater for the 1^st to 4^th Scenarios. I find his replies and concessions to the questions raised by Mr Chan as reasonable and fair[33]. I just wish to add a few points that also make his answers believable.

218.  One should accept that, unlike the Deceased under the 1988 Oral Agreement, the Defendant had and has no desperate need to enforce and/or to protect his right under the Promises. As the legal owner, his interests over the Subject Property have been protected all along. There is no evidence that he had or has any urgent need to gain possession of the Subject Property from the Deceased. When the occasions arise, like those under the 1^st to 4^th Scenarios, there is nothing wrong in his answer that, from his perspective, the parties could further negotiate on the matter.

219.  Thinking from the Deceased’s perspective, I do not see that she had much to lose under the Promises. She would have the whole flat to herself and the Mother (unlike renting only the Front Room inside the Catchick Flat), and continued to reside with the Mother whom could take care of her. The monthly instalment of HK$3,720.00 was affordable, if not modest, in view of her earnings at the relevant times. It may sound unfair that she had to pay the Mortgage in return for no interests in the Subject Property. However, if one considered the alternative that she would have to use the same amount (or more) to rent another flat between 1988 and 2002, these expenses were inevitable. Of course, one might also argue that she could invest the money into buying her own property. I agree. However, the Promises also catered for the possibility that she would subsequently purchase her own property and move out of the Subject Property; the Defendant was bound to repay the loan’s principal to the Deceased in such circumstance. In a way, the Deceased was saving up some money for her future use via such course.

220.  Moreover, compared with the 1988 Oral Agreement, the Promises provided the Deceased with the chance to opt out (say if she got married, and her future husband was not agreeable to live with the Mother), and she was guaranteed something in return (i.e., the loan’s principal that she had contributed to up to that point). Under the 1988 Oral Agreement, ceasing payment of the Mortgage would be a violation of Term 1; not living with the Mother would be a breach of Term 2. The 1988 Oral Agreement does not provide the Deceased with any compensation in these situations. In my view, the Promises and the Understand made more sense to the parties than the 1988 Oral Agreement.

221.  Overall, I find the contents of the Promises plausible, workable, and acceptable to the Deceased and the Defendant.

Conducts after the Promises

222.  As suggested by Mr Chan, and accepted by the Defendant, the 1^st to 5^th Steps under the 1^st Consensus had to happen before the Defendant could assume possession of the Subject Property, upon payment of the loan’s principal to the Deceased pursuant to the 3^rd Consensus. The key event, in my view, is when the Deceased purchased the VD Property in 1999. The 1^st, 2^nd and 4^th Steps were completed by then. However, the 5^th Step was obstructed when the Deceased refused to take the 3^rd Step, i.e., to vacate the Subject Property. Instead, she had used the Subject Property as a storage for her belongings after she moved to the VD Property.

223.  Leaving aside whether the Defendant had indeed made demands prematurely before or maturely after 1999 for possession of the Subject Property, I shall repeat that there was no pressure for the Defendant to do so. Under the Promises and Understanding, the maximum liability for him to get back the Subject Property would be HK$340,000.00[34]. He could allow the Deceased to continue paying both the remaining principal and the interests under the Mortgage until its full repayment, reaping the benefit that he never had to shoulder any of the interests payable. Consistent with the siblings’ description of his personality, it is plausible that he would seize such advantage. Of course, insistence on taking the 5^th Step would entail the Defendant having to reimburse the principal to the Deceased. I see no urgency for him to do so. Hence, any inaction on the Defendant’s part in seeking possession of the Subject Property would shed no or not much negative light on the existence of the Promises.

Summary on the Promises and resulting trust

224.  For the above reasons, I find that the Deceased did make the Promises to the Defendant and they had reached the Understanding. It follows that the Defendant has succeeded in rebutting the presumption of resulting trust relied upon by the Plaintiff, and I so find.

HK$40,000.00 and the down payment

225.  I deliberately left this issue to be dealt with independent from and after discussions on the 1988 Oral Agreement and the Promises.

226.  There is no documentary evidence from both sides as to whom had paid the down payment (HK$37,000.00) for the Subject Property, and the costs for its acquisition.

227.  On the Plaintiff’s side, none of the siblings witnessed the Deceased doing so. Equally, none of the siblings stated they had heard from the Deceased that she had done so. They simply accepted that the Deceased had done so pursuant to Term 1, existence of which and the 1988 Oral Agreement I have rejected. Of course, the Deceased should be financially capable to pay the down payment, but whether she would is a mere speculation without direct evidence from any of the witness, especially from the Deceased herself. Come what may, the fact that a person could does not mean a person would.

228.  On the Defendant’s side, albeit it is not pleaded as part of the Promises or Understanding, he had pleaded such payment in the Defence nonetheless. I note his alleged payment of HK$40,000.00 via the Mother is uncorroborated by any witness, but at least we have the payer giving direct evidence of his deed. I think it is indisputable that his savings must have been reduced after he had paid HK$124,800.00 in 1988 as the down payment for the LK Property[35], making it questionable that he was still able to afford paying the HK$40,000.00.

229.  Interestingly, it was Mr Chan who came to his aid, suggesting out of the blue under cross-examination that the Defendant had received compensation out of the demolition of the Catchick Flat, and the Defendant had used it for the down payment. The Defendant replied that he did receive some money (about HK$10,000.00 odd) out of it, but it represented the rental deposit that he had paid for the Front Room. Again, albeit uncorroborated, there is nothing to challenge or undermine his answer. The money received by the Defendant could, together with any savings remaining in his bank account, become the down payment he made.

230.  I have not lost sight that the compensation could be paid to the Deceased and the Mother due to the demolition of the Catchick Flat. However, I have heard no evidence on this from the Plaintiff’s side. And, if that was true, how much was the compensation? Moreover, should the Mother have a share in the compensation? If so, she should also have a share in the down payment if the compensation was so applied? None of these questions was covered in the Plaintiff’s case.

231.  Even though the Defendant’s case on this topic is far from compelling, but based on the evidence before me, it is probable. I find that the down payment was made by him.

The Detriment and proprietary estoppel

232.  For the reasons given in §§213 to 215 above, I find that the Defendant had suffered the Detriment, and the defence of proprietary estoppel has been established.

Illegality

233.  In light of my findings above, with no disrespect to Mr Chan and Ms Wong, it is academic for me to discuss this issue. If necessary, either party could provide this Judgment to the HKHS for their consideration as to whether certain action should be taken.

CONCLUSION

234.  For the reasons above, I dismiss the Plaintiff’s claims. Costs of this action, together with all costs previously reserved, should follow the event. Hence, I order on nisi basis that the Plaintiff do pay the costs of the Defendant, to be taxed if not agreed, together with certificate for counsel. Such order nisi shall become absolute unless any party applies to vary it within 14 days of this Judgment.

235.  Last but not the least, I thank Mr Chan and Ms Wong for their assistance.

POST SCRIPT

236.  Since I have held that the Promises existed, and the Defendant has regained possession of the Subject Property, he is obliged to repay HK$340,000.00 as the loan’s principal to the Deceased. At the trial, the Defendant had expressed that he is ready and willing to honour it. I will suggest that he should do so without delay, and preferably, via the parties’ legal representatives, to avoid the need for another legal action.