CHAN SIU LIN v. CHAN SIU CHUN

DCCJ 1577/2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1577 OF 2007

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JUDGMENT

Background

1.  This action is commenced by the Plaintiff ("Siu Lin"), against her eldest sister ("Siu Chun") as Defendant, for recovery of a sum of $200,000. Siu Lin claims that the sum was advanced by her to Siu Chun in August 2003, on the basis that it was to be repaid upon demand. Siu Chun claims by way of defence that the sum of $200,000 was not a loan from Siu Lin, but was in fact a gift made to her by another sister ("Siu Fung"). There is no dispute that the sum of $200,000 ("Advance") was paid from a bank account which was opened in the joint names of Siu Lin and Siu Fung ("Joint Account") in 1993. Further, there is no dispute that a sum of $900,000 had been transferred into the Joint Account from Siu Fung's own bank account approximately 2 weeks before the date of the Advance. The essential issue in dispute is whether the Advance made from the Joint Account was made from funds which belonged to Siu Lin, or to Siu Fung, who died less than 5 months after the date of the Advance.

2.  To put matters simply, Siu Chun claims that her younger sister, Siu Fung, knew that Siu Chun was in financial difficulty in August 2003, and offered to make a gift of $200,000 to Siu Chun to help her out. She claims that Siu Lin had only assisted Siu Fung to transfer the Advance to Siu Chun from the Joint Account, in accordance with Siu Fung's wishes to make the gift.

3.  On the other hand, Siu Lin claims that Siu Fung had made a gift to Siu Lin of the sum of $900,000 transferred into the Joint Account, and that the entire balance of the Joint Account belonged to Siu Lin, under her agreement with Siu Fung. When the Advance was made to Siu Chun in August 2003, the Advance was made from monies which belonged to Siu Lin solely, and Siu Lin had made it clear to Siu Fung at the relevant time that the Advance was a loan, and Siu Fung had agreed to repay the Advance.

Issues

4.  The issues on liability for determination at trial are:

(1)   Was the Advance paid from money in the Joint Account which belonged to Siu Lin, or Siu Fung ?

(2)   Was the Advance a loan from Siu Lin, or a gift from Siu Fung, to Siu Chun ?

Was the Advance paid from money in the Joint Account which belonged to Siu Lin, or Siu Fung ?

5.  At the center of the dispute is Siu Fung's $900,000 which formed the substantial part of the funds in the Joint Account from which the Advance was made. There is no dispute that the sum of $900,000 represents the pension received by Siu Fung when she retired from the civil service in 2003. Counsel accept that but for the $900,000 transferred into the Joint Account, there would not have been sufficient funds in the Joint Account for the Advance to be made on 15 August 2003.

6.  From all the evidence in this case, it would appear that Siu Fung was a dutiful daughter and a caring sister. She was the fifth daughter in her family, Siu Lin being the youngest and Siu Chun the eldest. Siu Fung's health was not good, and this caused her to take early retirement in 2003. She was waiting for a lung transplant at the time of her death, but she must have led a hard-working and modest life, as she received a pension of $900,000 upon her early retirement in 2003 and at the time of her death, apart from the money in the disputed Joint Account, she left cash savings of over $320,000 and real property worth $1,442,000.

7.  The decision of Deputy High Court Judge Muttrie in the case of Cheung Cho Kam Sindy and Cheung Chor Chun Stella v. Cheung Yuet Ying Rose HCA 885/2005, 13 July 2007, unreported, helpfully sets out the approach to the adopted by the Court in a case such as this. The onus is on a donee to prove a gift. Where there is a claim that a gift was made by a person who is now dead, the court must approach the claim with suspicion (In re Garnett (1885) Ch. D. 1 C.A., followed in Thomas v. Times Book Co. Ltd. [1966] 1 WLR 911). Corroboration is not required as a matter of law, but there should be some indication that the story is likely to be true. As the learned judge stated:

"The acts or declarations of the parties before or at the time of the transaction, or so immediately after it as to constitute a part of the transaction are admissible either for or against the party who did the act or made the declaration; but subsequent acts and declarations are only admissible in evidence against the party who made them, and not in his favor; see Watson v. Smith [1998] 3 HKC 481, per Godfrey JA 465F – G/H-I."

8.  Further, the learned judge in Cheung Cho Kam Sindy, supra, highlighted that the case is to be decided on the facts, and that the intentions of a dead woman ought to be established from the evidence of what she said and did in life.  I would respectfully agree and adopt the same approach.

9.  From the accounts of her sisters, it would appear that Siu Fung had been generous in offering financial help to her siblings, including her eldest sister Siu Chun and her younger brother Wai Kin, during her life. She had also taken a large role in looking after their aged father.

10.  According to Siu Lin's evidence, the Joint Account was opened by Siu Fung and herself in 1993, after their mother died. Siu Lin and Siu Fung had spent a lot of time together when they were looking after their mother who was in a coma in the hospital. They were both unmarried at the time, and when their mother died, Siu Lin claims that she and Siu Fung felt that they only had each other to depend on, and they became particularly close. Their father was old and retired. Their other sisters had married. According to Siu Lin, Siu Fung suggested to her that a Joint Account should be opened in their joint names, such that they could provide for each other on the basis that whoever of them who should pre-decease the other would be entitled to the balance in the Joint Account, to use for her own benefit as well as to provide for their father.

11.  Siu Lin claims that Siu Fung had known or suspected that she had some illness and that she would not live long. Siu Lin claims therefore that Siu Fung had the intention to provide for Siu Lin when the Joint Account was opened, although Siu Fung also knew that if she should deposit money into a bank account opened in Siu Lin's sole name, Siu Lin would not accept or use the money in the account as hers. Siu Lin claims therefore that the Joint Account was opened in their joint names, and she recognized that in law, the money in the Joint Account belonged to Siu Fung and herself jointly, although by their understanding, she as the survivor of the 2 sisters would be entitled to the entire balance, and Siu Fung had trusted that Siu Lin would use the money in the Joint Account to look after their father. Siu Lin accepts that by virtue of her agreement with Siu Fung, if she should happen to die before Siu Fung, any contribution she had been to the Joint Account would have belonged to Siu Fung.

12.  The Joint Account was duly opened and maintained with the Hang Seng Bank. Each of Siu Lin and Siu Fung could operate the Joint Account singly. Both sisters deposited monies into, and withdrew amounts from, the Joint Account from time to time. There was no agreement between them as to how much they should pay into and how much they might  withdraw from the Joint Account. It is not disputed that even before Siu Fung's retirement in 2002, the deposits made into the Joint Account were made substantially by Siu Fung.

13.  At the time when the Joint Account was opened in 1993, both Siu Lin and Siu Fung were single.  According to Siu Lin's evidence, Siu Fung had told her that she would not marry. Siu Lin married in 1996, but Siu Fung remained single until her death. After her marriage, Siu Lin continued to make payments into the Joint Account. She claims that these represented her own savings. Siu Lin also claims that after her marriage, she had informed Siu Fung that should she require to withdraw money from the Joint Account, she would notify Siu Fung. She maintained however that the agreement was that it was not necessary for Siu Lin to obtain Siu Fung's consent before withdrawing money from the Joint Account, even after her marriage.   It was only out of her respect for Siu Fung, and her recognition then that she and Siu Fung were in law both entitled to the money in the Joint Account at that time, that she would notify Siu Fung if she wished to withdraw money from the Joint Account.

14.  Siu Fung first encountered health problems in her lung some time in 1996. In the year 2000, when the health problem recurred, Siu Fung and Siu Lin learnt from the doctors that Siu Fung required a lung transplant. Siu Fung would have to be put on a waiting list for the necessary transplant procedure, but she was informed that her condition in 2000 was not serious enough for her to be put immediately on the waiting list. According to Siu Lin's evidence, Siu Fung was told she would have to wait until her condition deteriorated before she could be put on the list to await the procedure. Siu Fung and Siu Lin were also told in 2000 that Siu Fung would have to pay $200,000 to $300,000 when the time came for the lung transplant procedure to take place. 

15.  Siu Fung was still working in 2000, when she was informed that she would require a lung transplant in the future. As her health deteriorated, she applied for early retirement in 2001, and on 1 July 2002, she commenced taking leave before her official retirement. According to Siu Lin's evidence, she asked Siu Fung to move in with her, so that she could take care of Siu Fung and accompany her on medical checkups. It is Siu Lin's case that Siu Fung moved into Siu Lin's flat on 2 July 2002, and that Siu Fung's official retirement commenced later, on 31 January 2003.

16.  According to Siu Lin, when Siu Fung moved in with her in July 2002, Siu Lin paid for Siu Fung's daily living expenses without seeking any payment from her. Siu Lin claims that she undertook to Siu Fung then that, although she knew there would be a lot of medical expenses required to treat Siu Fung's lung condition, she would take care of and provide for Siu Fung for the rest of her life. Siu Fung informed her that she should be receiving her retirement fund in about February 2003, and Siu Lin asked her to use her retirement fund for all her medical expenses, and that she (Siu Lin) would be responsible for all of Siu Fung's living expenses.  It is Siu Lin's evidence that Siu Fung had in turn told her that she would give to Siu Lin the entire retirement fund that she was due to receive, and that this could be used by Siu Lin as she wished and for whatever purpose, as it was all hers.

17.  Siu Lin accepts that there had been no discussion between Siu Fung and herself as to whether Siu Fung would be able to get any part of the $900,000 back after the transplant procedure. Notwithstanding the seriousness of Siu Fung's condition, Siu Lin claims, and her other sisters seem to agree, that Siu Fung had been optimistic about her recovery after undergoing the lung transplant.  Nevertheless, Siu Lin's evidence is that the doctor had informed them that even after the procedure, Siu Fung would still require a lot of medical attention and treatment, and that further expenses would have to be incurred in the aftermath of the lung transplant. Siu Lin claims that it must have occurred to Siu Fung that there may not be sufficient money in the Joint Account or from Siu Fung's retirement fund to provide for all the medical expenses that might be required for her, or to provide for her living expenses for the rest of her life.  On her own part, Siu Lin claims that she was prepared to use her own funds and her income from her employment in the civil service to support and to care for Siu Fung, should Siu Fung's retirement fund and the funds in the Joint Account be inadequate to care for Siu Fung after the lung transplant procedure.

18.  According to Siu Lin, Siu Fung had said to her that she (Siu Fung) had sufficient funds in her own personal accounts to pay for her credit card expenses, but that a sum of $200,000 to $300,000 would have to be retained from the retirement fund to provide for the expenses required at the time of the lung transplant procedure.

19.  In about February 2003, Siu Fung received her retirement fund of $900,000. The amount was first paid into Siu Fung's own bank account. It is not disputed that the entire sum was transferred from Siu Fung's bank account into the Joint Account in July 2003. Prior to this transfer, there was a sum of $112,074.75 in the Joint Account.

20.  By 2003, Siu Fung was in and out of hospitals. Some time after February 2003, she had difficulty in breathing and in walking, and Siu Fung's name was finally put on the waiting list for the lung transplant procedure. According to Siu Lin, Siu Fung knew then that she might have to undergo the transplant procedure any time, and she asked Siu Lin in May 2003 to assist her to transfer the $900,000 from her own account to the Joint Account. Siu Fung's condition deteriorated in July and August 2003, when she had to stay in the hospital for much of the time. According to Siu Lin, it was during one of her visits to Siu Fung at the hospital in July 2003, that Siu Fung asked her again to effect the transfer of the $900,000 into the Joint Account, as she was worried about her own condition, and concerned that she would not be able to carry out her wish to make the gift of the $900,000 to Siu Lin. Siu Lin's evidence is that she obtained bank slips for Siu Fung to sign in the hospital to effect the transfer of the $900,000 into the Joint Account.

21.  As Siu Lin had to work full-time, she was not able to go to the hospital during the day to take care of Siu Fung. Some time in January 2003, Siu Chun agreed to leave her job as a part-time domestic helper and to look after Siu Fung when she was living at Siu Lin's home, since Siu Fung preferred to have a member of her family take care of her. Siu Chun was paid $3,000 a month from the Joint Account from about February 2003. Siu Lin and Siu Kam (the fourth sister in the family) claim that this was paid at Siu Chun’s request. When Siu Fung was hospitalized in July and August 2003, Siu Chun was paid $4,200 a month from the Joint Account to make trips to the hospital to visit Siu Fung there.

22.  During one of her visits to Siu Fung in the hospital in August 2003, Siu Chun mentioned to Siu Fung that she was in some financial difficulty and required a sum of $200,000. According to Siu Chun, Siu Fung offered to make a gift of $200,000 to her. Siu Chun claims that one day later, she was informed by Siu Fung that she had asked Siu Lin to transfer $200,000 to Siu Chun.

23.  Siu Chun’s version of events is disputed by Siu Lin. According to Siu Lin, Siu Fung telephoned her from the hospital to inform her that Siu Chun had asked for a loan as she was in financial difficulty. Siu Lin claims that Siu Fung said that she had asked Siu Chun to discuss her situation with Siu Fung and to seek a loan from Siu Fung or their other siblings, because Siu Fung herself would need the $200,000 to $300,000 for the lung transplant procedure and did not have any spare money to lend to Siu Chun. Siu Fung told Siu Lin that Siu Chun might contact Siu Lin for the loan.

24.  According to Siu Lin's evidence, Siu Chun did call her on about 12 August 2003, to say that her husband's business had problems and that her financial situation was bad. Siu Lin claims that Siu Chun asked for a loan of $680,000, but she told Siu Chun that she could only lend her $200,000 at most. On Siu Lin's evidence, she stressed to Siu Chun that the money had to be repaid although they were sisters, to which Siu Chun agreed.

25.  There is no dispute that a sum of $200,000 was transferred from the Joint Account to Siu Chun's bank account on 15 August 2003. Siu Lin claims that as Siu Fung had already made it clear to her that the money in the Joint Account and the $900,000 in particular was hers to deal with as she wished, the $200,000 transferred from the Joint Account on 15 August 2003 was a loan made by her to Siu Chun.

26.  It is Siu Chun's defence that when she told Siu Fung of her financial difficulty in August 2003, Siu Fung had offered to give her $200,000. She claims that this was a gift from Siu Fung to her, and not a loan. Siu Chun also claims that Siu Lin was only managing Siu Fung's finances and her bank accounts whilst she was ill and in hospital. The transfer of $200,000 made in August 2003 was accordingly, on Siu Chun's case, a transfer of funds belonging to Siu Fung in the Joint Account and was made by Siu Lin for and on behalf of Siu Fung in making the alleged gift.

27.  In support of her case, Siu Chun claims that earlier on in January 2003, when she started looking after Siu Fung at Siu Lin's flat, Siu Fung had likewise made a gift of $50,000 to Siu Chun. At that time, it was Siu Lin who informed her that she had transferred $50,000 to Siu Chun for Siu Fung. There is no dispute that the transfer in January 2003 was made from Siu Fung's own bank account, so the issue does not arise as to whether the gift alleged in January 2003 was made from Siu Fung's own funds.

28.  Siu Chun also relies on a piece of paper which she claims was handed to her by Siu Fung one day during her visit to the hospital, “some time between summer and autumn of 2003”. According to Siu Chun, Siu Fung was wearing some oxygen mask and had difficulty breathing and talking that day, and only handed her a piece of cleaning paper ("Paper") on which Siu Fung had written the words:

“大家姐，叫亞美將我的(所有)退休金transferred to (Loretta + May) Account 盡快”

Translated, they read:

"Eldest sister, ask Ah Mei to have (all) my retirement fund transferred to (Loretta + May) Account as soon as possible"

29.  Siu Chun claims that she showed the Paper to Siu Lin later, and that by chance, Siu Chun had kept the Paper in her handbag which she was able 4 years later to retrieve from the handbag which she had cast aside.

30.  Siu Lin denies that the Paper incident ever took place.

31.  Even if Siu Chun had received the Paper from Siu Fung in the manner she alleged, I fail to see how it can materially affect the outcome of this case. The words on the Paper, even if accepted to have been written by Siu Fung, do not shed light on whether the $900,000 representing Siu Fung's retirement fund had been given to Siu Lin, as she alleges, or whether the retirement fund remained Siu Fung's property. There has been no dispute that the $900,000 was transferred into the Joint Account from Siu Fung's own bank account. The instructions contained in the Paper may suggest that Siu Fung was relying on Siu Lin to operate or effect the transfer of funds into the Joint Account (as Siu Chun seems to suggest). However, the instructions also support Siu Lin's case that Siu Fung had asked and reminded her to make the transfer of the $900,000 into the Joint Account, at a time when Siu Fung thought that the lung transplant procedure was imminent. It is also Siu Lin's case that Siu Fung was anxious at that time to let Siu Lin have the $900,000. The Paper is, by itself, a neutral piece of evidence, save to the extent that I consider either Siu Lin or Siu Chun to be lying about the Paper incident.

32.  Against all the evidence, and regarding such evidence with an appropriate degree of suspicion as cautioned in the authorities, is it credible that Siu Fung would make a gift to Siu Lin of the $900,000 and her deposits in the Joint Account? My answer to that question is "yes".

33.  I have considered Siu Lin's evidence on the history of Siu Fung’s illness, her discussions with Siu Fung and their relationship, and I accept her evidence as credible. In the context of Siu Fung's illness from the time when she first suspected herself to be suffering from ill health, to her  applying for early retirement, then taking leave before retirement and moving in to live with Siu Lin to be taken care of by Siu Lin in 2002, to her deterioration in health and her hospitalization in mid-2003, it is inherently very probable that Siu Fung would be conscientious about the expenses which would be required for her medical treatment, and concerned at the same time over the fact that after her retirement, she would have no further source of income to pay for her medical and living expenses. Although the evidence suggests that Siu Fung had medical insurance coverage to pay for her hospitalization and medical expenses up to the time of her death in December 2003 before the lung transplant procedure (which never took place), Siu Fung had been advised by her doctor that at least $200,000 to $300,000 would have to be paid by her for the procedure when it was scheduled.

34.  Counsel for Siu Chun highlights the fact that just prior to Siu Fung's death in December 2003, she not only had the $900,000 in the Joint Account, but a further sum of $230,000 at least in the other bank accounts in her sole name. It was argued that considering the pattern of Siu Fung's modest expenses, there would be enough money to maintain Siu Fung for over 30 years, even after paying the $300,000 said to be required for the lung transplant procedure. It was suggested therefore that Siu Fung could afford to make the gift of $200,000 to Siu Chun, and that Siu Lin's assertion to the contrary should not be believed.

35.  As all the sisters agree, Siu Fung was optimistic about her being able eventually to receive the lung transplant and her recovery thereafter. I also accept Siu Lin's evidence that after the lung transplant procedure, it was likely that there would be more medical expenses to be incurred in the aftermath. It is therefore conceivable that provision would have to be made on Siu Fung's behalf in respect of these continuous and further medical and living expenses, and that caution was likely to prevail in the sisters' minds when the loan or gift of $200,000 to Siu Chun was considered in August 2003. It would be impractical to dismiss as spurious Siu Lin's claim that Siu Fung did not have the resources or spare funds to make either a loan or a gift of $200,000 to Siu Chun, at a time when Siu Fung was in a bad state of health and had been hospitalized, as those acting for Siu Chun suggest the court should do.

36.  On the other hand, I agree that there was reason for Siu Fung to give the $900,000 to Siu Lin. Siu Fung had moved in with Siu Lin as from July 2002. She had effectively retired, having commenced her leave just before official retirement. She expected to receive regular medical treatment and to be put on the waiting list for the lung transplant procedure, which would require her to pay $200,000 to $300,000 and which was not covered by her medical insurance. It was likely that after the transplant, she would have to continue receiving further medical treatment, particularly if the lung transplant was to be rejected by her body, and it was hence likely that medical expenses would still have to be incurred for some time. Siu Fung had no further income from her employment, except for the small pension of about $3,800 per month she received after retirement. As a conscientious and responsible daughter, Siu Fung had also been supporting her aged and retired father and paying the management expenses for the flat where the father lived. After her retirement and during her illness, she would have to be dependent on Siu Lin and to look to Siu Lin to take care of her and their father, and possibly to pay for her medical and living expenses should Siu Fung's own funds be inadequate to provide for these. I believe Siu Lin's evidence that she was close to Siu Fung, and that Siu Fung trusted Siu Lin as a conscientious and apparently shrewd sister capable of managing their finances. It is conceivable and probable that Siu Fung intended and expected Siu Lin to use the $900,000 on Siu Fung's medical expenses for the lung transplant procedure, any other further procedure as may be required for her condition, and her living expenses for as long as the retirement fund and her own deposits in the Joint Account were sufficient for these purposes, such that Siu Lin would not have to resort to her own income to support and maintain Siu Fung and their father. Siu Lin had already undertaken to Siu Fung that she would maintain and care for her, but at a time when it could not be known for sure whether the lung transplant procedure would be successful, whether Siu Fung would have a full recovery or would require extensive and prolonged medical treatment, it is understandable that Siu Fung would be anxious to let Siu Fung have the entire sum of $900,000 as soon as possible, possibly to give herself as well as Siu Fung assurance that there would be funds available for the medical treatment required.

37.  Siu Chun suggests that Siu Lin was at the material time only managing Siu Fung's accounts during the time when Siu Fung was ill. It is suggested that Siu Fung never made the gift of the $900,000, as Siu Lin alleges. I agree with Counsel for Siu Lin that if Siu Fung had wanted Siu Lin simply to manage her money or her bank accounts, she could have just signed a bank mandate to let Siu Lin operate her bank accounts for her. Yet, she did not do so for any of her bank accounts with the Hong Kong Bank, including the one which had a balance of over $200,000 at the time of her death ("HK Bank Account").

38.  Before Siu Fung's death, she had kept the Joint Account separate from her other bank accounts. The $50,000 which was paid to Siu Chun in January 2003 was paid from Siu Fung's HK Bank Account. It is telling that if, as Siu Chun claims, Siu Fung had offered to make a gift of $200,000 to her, Siu Fung did not elect to transfer the $200,000 from the HK Bank Account, which appeared to have sufficient funds for this in August 2003. On Siu Chun's own case, it was Siu Lin who informed her in January 2003 of the transfer of the alleged gift of $50,000, even though it was paid from Siu Chun's HK Bank Account, suggesting that it was Siu Lin who had handled the transfer from Siu Fung's HK Bank Account.

39.  From the evidence, Siu Fung had paid the monthly premium on her insurance policy in which her brother was named as a beneficiary, and as these were not reflected in the payments from the Joint Account, Siu Fung must have paid these and other expenses for herself and for her father from her own bank accounts.

40.  Siu Fung made 3 deposits of $50,000 into the Joint Account, presumably from funds in her own bank accounts, in October 2002 and January 2003. This was after she had moved in to live with Siu Lin, and I would not find these deposits to be surprising when Siu Lin was paying for Siu Fung's living expenses. The expenditure made from the Joint Account included payment for the management fees for the flat where the father resided, and payments to Siu Chun for looking after Siu Fung. These all support Siu Lin's case that the Joint Account was used by Siu Fung and Siu Lin to support the father, and to support Siu Fung after she had moved in with Siu Lin.

41.  The sum of $900,000 was transferred from Siu Fung's own account into the Joint Account in July 2003, when Siu Fung's condition was serious and she was in hospital. This reflects Siu Fung's intention to let Siu Lin have access to the money and, coupled with her declaration to Siu Lin that she wanted Siu Lin to have the money and to be free to use it for whatever purpose she wished, constitutes a valid gift to Siu Lin. There is no suggestion whatsoever that Siu Fung lacked the mental capacity to make the gift at the time of the transfer.

42.  The evidence of Siu Kam supports that of Siu Lin. According to Siu Kam, she visited Siu Fung one day in July or August 2003, when Siu Fung was living at Siu Lin's flat. Siu Chun was also there, looking after Siu Fung. Siu Kam's evidence is that Siu Fung told her that she had given her retirement fund to Siu Lin entirely, and that Siu Lin could deal with it as she wished, because Siu Lin would take care of her for the rest of her days.

43.  Siu Kam also claims that Siu Lin had informed her in August 2003 that Siu Chun had asked Siu Fung and Siu Lin for a loan. According to Siu Kam, they had discussed the matter and it was agreed between them that assistance should be given to Siu Chun, and Siu Lin said that she would lend $200,000 to Siu Chun.

44.  As Siu Fung died in December 2003 before the lung transplant procedure could take place, the $900,000 was never spent. Siu Lin became the administratrix of Siu Fung's estate. Siu Chun further relies on the fact that after Siu Fung's death, Siu Lin had in December 2003 and January 2004 made distributions to different members of the family from the $900,000 which remained in the Joint Account, to suggest that the amount was indeed part of Siu Fung's assets, and not a gift which had been made by Siu Fung to Siu Lin.

45.  Siu Lin's explanation is that the payments made from the $900,000 to her siblings were not "distributions" of Siu Fung's estate, but were gifts that Siu Lin made to her siblings. After Siu Fung's death in December 2003, Siu Lin informed her father that Siu Fung had given $900,000 to her from her retirement fund. Since Siu Fung had died, and Siu Lin herself did not have any immediate need for the money, she agreed with her father that the money would be given to those of her siblings who were in financial need, in order to help them out. After keeping a sum of $125,000 for herself, she gave $185,000 to Siu Kam, $125,000 to her brother Simon, $125,000 to another sister Siu Lan, and $60,000 to Siu Chun, according to her own assessment of their respective needs and their individual circumstances. On Siu Lin's reckoning, her younger brother had already received over $400,000 under Siu Fung's insurance policy, and her second sister was well off, so neither received anything. In respect of Siu Chun, Siu Lin explained that she only received $60,000 because she had already received the loan of $200,000, and Siu Chun had also used their father's flat in the past to obtain the benefit of a second mortgage. A balance of around $240,000 was left to provide for any additional needs of the father. Siu Lin was free to give heed to any and different factors when deciding on her gifts and the amount of her gifts to her siblings, including the fact of the loan she had made to Siu Chun.

46.  In the light of all the evidence, I am satisfied on a balance of probabilities that Siu Fung had effectively made a gift to Siu Lin of the sum of $900,000 which was paid by Siu Fung into the Joint Account in July 2003. The Advance was accordingly made from funds which belonged to Siu Lin.

Was the Advance a loan from Siu Lin, or a gift from Siu Fung, to Siu Chun?

47.  Since Siu Fung had made a gift of the $900,000 to Siu Lin in July 2003, it was for Siu Lin to decide on 15 August 2003 whether to make a loan or a gift of $200,000 from the balance of $997,840.75 in the Joint Account to Siu Chun. According to Siu Lin's evidence, she called Siu Chun on about 15 August 2003, and told her that she had deposited $200,000 into Siu Chun's bank account. Where there is conflict between the evidence of Siu Lin and Siu Chun, I prefer Siu Lin's in relation to the loan, which is further supported by Siu Kam's evidence. I accept Siu Lin's account that she had made it clear to Siu Chun that the $200,000 was a loan, to be repaid, and I so find.

48.  Counsel for Siu Chun claims that Siu Lin has admitted that $40,000 had been received from Siu Chun as repayment of the loan. This is not accurate. According to Siu Lin’s evidence, it was agreed between Siu Lin and Siu Chun, after some argument, that the $40,000 received was to be reflected in and deducted from the sale proceeds of their father’s property, instead of being accepted as part repayment of the loan of $200,000.

Award

49.  Siu Lin's claim is allowed. Siu Chun is to pay to Siu Lin the sum of $200,000, with interest at judgment rate from the date of service of the Writ until payment. I will further make an order nisi that the costs of the action are to be paid by Siu Chun to Siu Lin, with certificate for counsel, to be taxed if not agreed.