POON LOI TAK the Administrator of the late POON NUEN Deceased v. POON LOI CHEUNG DESMOND

CACV 32/2023, [2024] HKCA 796

On Appeal From [2023] HKCFI 101

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 32 OF 2023

(ON APPEAL FROM HCA NO 3348 OF 2016)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  This case concerns the beneficial ownership of the monies in two bank accounts at HSBC held in the joint names of (i) Poon Nuen (潘暖), deceased (“Father”) and (ii) his son, Poon Loi Cheung Desmond (“the Defendant”). The monies in the two bank accounts originated from funds and the proceeds of sale of a property belonging to Father. The Defendant contends, nevertheless, that the monies in two bank accounts belong to him beneficially, either on the basis that they were gifted to him by Father or by the operation of the doctrine of survivorship. In his judgment dated 9 January 2023 (“the Judgment”), Mr Recorder Richard Khaw, SC (“the Judge”) found in favour of the Plaintiff (the administrator of the estate of Father) that Father was the beneficial owner of the monies in the two bank accounts. This is the Defendant’s appeal against the Judgment.

BRIEF BACKGROUND FACTS

2.  The detailed facts of this case have been set out in the Judgment and will not be repeated here. For the purpose of the present appeal, the following brief summary should suffice.

3.  Father and his wife (“Mother”) were a traditional Chinese couple who worked hard to earn a living and support their family. In 1955, Father, with the assistance of Mother, started a business of manufacturing and selling noodles in the name of Wing Woo Noodle Factory (“Wing Woo”) (永和粉麵廠). In 1964, Father together with Mother’s uncle jointly purchased a property known as Ground Floor, 91 Belcher’s Street, Hong Kong (“the Shop”), which was used for the business of Wing Woo. In about 1967, Father became the sole legal and beneficial owner of the Shop. In around late 1995, Father ceased the business of Wing Woo. The Shop was then leased out until its sale in 2014.

4.  Father and Mother had 6 children (one daughter and five sons), including the Defendant (the second son), born in 1958, and the Plaintiff (the third son), born in 1960.

5.  Prior to the death of Father and Mother, they purchased various properties, the details of which are set out at §6 of the Judgment. Father and Mother permitted their children to live in their properties without any payment of rent. At one time or another, the Plaintiff and the Defendant (and his family) lived in those properties.

6.  Mother passed away on 6 February 2012. Shortly after the death of Mother, on 23 February 2012, Father added the Plaintiff as an authorized signatory to an account held by Father at Hang Seng Bank (“the Hang Seng Account”). This was done because, according to the Plaintiff, Father realised the need to have the assistance of a family member for the purpose of taking care of his finance when necessary or required, and also because of his deteriorating health condition after the death of Mother.

7.  Father also used to hold a savings account, no 008-8-068085 (“the Savings Account”), at HSBC in his sole name. On 20 March 2012, around one month after the Plaintiff had been added as an authorised signatory to the Hang Seng Account, Father added the Defendant’s name to the Savings Account as a joint account holder. For that purpose, they signed a form “Personal Account Opening Form – Passbook Savings”, clause 6 of which provided that the bank, in the event of death of one of the joint account holders, would hold any credit balance of the Savings Account to the order of the survivor.

8.  On 25 November 2013, Father and the Defendant attended HSBC (Westwood Branch) to open another account, no 650-062631-888 (“the Premier Account”), in their joint names. For that purpose, they signed an “Integrated Account-Investment Services Application Form”, which included a declaration that they agreed to be governed by the Integrated Account Terms and Conditions. Those terms and conditions specifically authorised the bank, in the event of death of one of the joint account holders, to hold any credit balance of the Premier Account to the order of the survivor. On the same date (ie 25 November 2013), a sum of HK$1.6 million was transferred from the Savings Account to the Premier Account. That sum of money was used to invest in an Australian dollar unit trust fund.

9.  On 20 December 2012, Father executed a Power of Attorney authorising the Defendant to sell the Shop on his behalf. The Shop was later sold for HK$33 million. Completion of the sale took place on 14 May 2014, and the proceeds of sale of the Shop (“the Sale Proceeds”) were disbursed as follows:

(1)  A sum of HK$3,297,000 (approximately 10% of the purchase consideration) received from the purchaser as deposit was paid into the Savings Account on 4 March 2014.

(2)  As far as the completion monies were concerned, a sum of HK$155,000 was paid into the Savings Account, while the balance of HK$29,521,265 was paid into the Premier Account.

10.  Father passed away on 20 April 2016.

11.  Between 12 May 2015 and 21 April 2016, the Defendant transferred the total sum of HK$14,248,000 out of the Premier Account to his own bank account at HSBC:

(1)  Between 12 May 2015 and 8 April 2016, the Defendant made a series of 15 transfers in round sums, totalling HK$4,048,000, out of the Premier Account to his own account.

(2)  On 20 and 21 April 2016, the Defendant transferred the sums of HK$10,000,000 and HK$200,000 respectively out of the Premier Account to his own account.

12.  On 26 April 2016 (ie six days after Father’s death), the Defendant attended Chong Hing Bank in an attempt to open Father’s safe deposit box. He did so without the presence of any other siblings. The Defendant was not successful in opening the safe deposit box, apparently because he did not have the “correct key”[1]. Although the Defendant claimed that he had informed the Plaintiff before and after his visit to Chong Hing Bank, this was (1) denied by the Plaintiff, and (2) was not mentioned in the Defendant’s statutory declaration to the Home Affairs Department explaining why he had attempted to open the safe deposit box.

13.  In July 2016, when the Plaintiff was preparing an application for letters of administration of Father’s estate, he found out about the Defendant’s said withdrawals of HK$14,248,000 from the Premier Account, and also his attempt to open Father’s safe deposit box.

14.  On 8 December 2016, the Plaintiff instructed his former solicitors to issue a letter of demand to the Defendant in relation to the monies withdrawn from the Premier Account. On 20 December 2016, the Plaintiff commenced the action below against the Defendant. In the Re-Amended Statement of Claim, the Plaintiff claimed, amongst other things, a declaration that all the monies in the Savings Account and the Premier Account were legally and beneficially owned by Father solely and absolutely and were vested in Father’s estate upon his death, and an order that the monies withdrawn by the Defendant in the total sum of HK$14,248,000 from the Premier Account be returned to the Plaintiff (as the administrator of Father’s estate).

15.  The Defendant denied the Plaintiff’s claims. In respect of the Saving and Premier Accounts (collectively, “the Joint Accounts”) the Defendant contended that:

(1)  he was at all material times the sole beneficial owner of the Joint Accounts;

(2)  alternatively, Father and he were joint beneficial owners of the credit balances from time to time in the Joint Accounts;

(3)  further and/or in the further alternative, upon Father’s death, he became the absolute sole beneficial owner of the credit balances in the Joint Accounts by the operation of the doctrine of survivorship.

THE JUDGMENT

16.  At the trial of this action, the Plaintiff called three witnesses to give oral evidence, namely, the Plaintiff himself and two of his siblings (Poon Loi Tat and Poon Loi Chuen), with the Plaintiff being the key witness in his case. The Defendant gave evidence on his own behalf, but did not call any other witness to give oral evidence.

17.  In the Judgment, the Judge found the evidence of the Plaintiff and his witnesses to be reliable and credible[2], but considered the Defendant’s evidence, particularly in respect of his case on Father’s express intention to make a gift to him, to be obscure, self-contradictory and unreliable. He considered that there were inherent inconsistencies in the Defendant’s case, and he had the tendency of trying to “tailor the facts in order to suit his needs”[3]. The Judge rejected the Defendant’s evidence in respect of various statements allegedly made by Father to him which he relied upon in support of his case that Father intended to make a gift of the monies in the Joint Accounts to him, and found that Father never intended to make any inter vivos gift of his beneficial interest in the Joint Accounts to the Defendant[4]. The Judge also found on the balance of probabilities that the Defendant held the funds in the Joint Accounts on trust for Father[5].

18.  Accordingly, the Judge entered judgment in favour of the Plaintiff and made, inter alia, the following orders:

(1)  a declaration that the balance standing in the Savings Account and the Premier Account as well as the Sale Proceeds therein were vested in the estate of Father upon his death on 20 April 2016;

(2)  an order that the Defendant shall repay the sum of HK$14,248,000 withdrawn by him from the Premier Account;

(3)  consequential account and inquiry; and

(4)  an order that the Defendant shall pay the Plaintiff’s costs of the action.

THE AMENDED NOTICE OF APPEAL

19.  Dissatisfied with the Judgment, the Defendant lodged a Notice of Appeal dated 6 February 2023. The Notice of Appeal is a prolix document, containing some 12 grounds of appeal and running to 20 pages. In those grounds, the Defendant complains about various findings of fact made by the Judge, effectively seeking to re-argue the case afresh in the Court of Appeal.

20.  By an Amended Notice of Appeal dated 29 August 2023, the Defendant added two additional grounds of appeal, namely, Grounds 12A and 12B.

(1)  In respect of Ground 12A, the Defendant contends that the Judge failed to assess whether the Plaintiff’ case that Father intended a trust was established on the facts, and erroneously regarded his rejection of the Defendant’s evidence on Father’s donative intent as automatically leading to the conclusion that the Plaintiff’s case on trust was established. Had he properly considered the evidence on what Father’s intention was, he would have found that the presumption of advancement (which was engaged) had not been rebutted on the facts, hence resulting in a finding of a gift irrespective of his rejection of the Defendant’s oral evidence[6].

(2)  In respect of Ground 12B, the Defendant contends, further and/or alternatively, that the Judge failed to take into account (or erred in discounting) the undisputed circumstantial evidence that supported the existence of a gift, including findings made by the Judge himself[7].

21.  In his skeleton submissions for the Defendant dated 30 April 2023 (“D’s Skeleton Submissions”), Mr Paul Shieh, SC (together with him, Ms Esther Mak) confirms that the Defendant’s main ground of appeal is Ground 12A[8]. He also develops Ground 12B in some detail. As for the rest of the Amended Notice of Appeal, although it is mentioned at footnote 2 to D’s Skeleton Submissions that the Defendant relies on all grounds of appeal, only a limited number of points raised at Grounds 1 to 12 are dealt with in D’s Skeleton Submissions or Mr Shieh’s oral submissions. In what follows, we shall focus on Grounds 12A and 12B, and deal with the other grounds of appeal more briefly, concentrating on the points specifically raised by Mr Shieh in his written and/or oral submissions.

GROUND 12A – APPROACH TO EVIDENCE AND PRESUMPTIONS

22.  Mr Shieh makes two broad points under this ground: (i) the Judge erred in his approach to the evidence and the applicable presumptions, and (ii) had the Judge adopted the correct approach, he would have found that there was no evidence to rebut the presumption of advancement and no evidence that Father intended the funds in the Joint Accounts to be held on trust for him.

23.  In respect of the Judge’s approach, Mr Shieh accepts that the central issue in this appeal is Father’s intention, there being no dispute that the source of funds in the Joint Accounts came only from Father. He further accepts that the presumption of resulting trust is prima facie engaged, but says that this case also engages the counter-presumption of advancement, which may serve to rebut the presumption of resulting trust. Unless rebutted, the presumption of advancement means that Father is presumed to gift the Joint Accounts to the Defendant when he added the Defendant as a joint account holder.

24.  Mr Shieh says that the Judge’s approach to the presumptions can be summarised as follows:

(1)  He first directed himself that where (as here) funds in a joint account came from only one of its holders, a presumption of resulting trust arises. This presumption, however, can be rebutted either by (i) evidence of the actual intention of the parties; or (ii) the counter-presumption of advancement (if applicable).

(2)  The Judge rejected the Defendant’s case that Father intended to make a gift of the funds in the Joint Accounts to him. He did so by rejecting, at various points, the Defendant’s testimony and other circumstantial factors which, on the Defendant’s case, supported such an intention.

(3)  The Judge then held that, having made “rulings on Father’s intention”, it was not necessary to resort to legal presumptions. For the same reason, he further found that there was no particular importance in whether Father decided to jointly hold the Joint Accounts with the Defendant for administrative convenience.

(4)  The Judge concluded that Father did not have any intention to gift the credit balances of the Joint Accounts to the Defendant. He then said that, “[a]ccordingly”, the evidence “supports the finding on the balance of probabilities that the Defendant held the funds in the Joint Accounts on trust for Father”[9].

25.  Mr Shieh submits that the Judge erred in the following respects:

(1)  The Judge failed to address (a) the effect of the presumption of advancement by simply rejecting the Defendant’s oral evidence that Father intended a gift to him, or (b) the question what evidence there was to rebut such presumption.

(2)  The Judge failed to appreciate the fundamental difference between (i) a mere lack of positive evidence that Father intended a gift; and (ii) a finding that Father did not intend a gift but instead intended a trust (relying upon the Overseas Trust Bank v Lee See Ching John [1999] 3 HKC 197). If the burden of proof is on a party, such burden is not discharged simply by rejection of the opposite party’s evidence. Specifically (as in this case) where the presumption of advancement is engaged, if there is merely a lack of (or rejection of) oral evidence that the transferor intended a gift, the presumption of advancement still applies and such presumption is not rebutted by a mere lack of evidence of donative intent.

(3)  The Judge failed to look for evidence that the funds in the Joint Accounts were intended by Father to be held on trust by the Defendant (which would rebut the presumption of advancement), or of positive evidence of Father’s intention more generally.

26.  In our view, the Defendant’s complaint about the Judge’s approach to the evidence and presumptions is based on too narrow a reading of the Judgment. The Judgment ought to be read fairly and as a whole in order to obtain a proper understanding of how the Judge came to his decision on Father’s true intention as regards the beneficial ownership of the monies in the Joint Accounts.

27.  In the present case, the Judge, after referring to the background facts of the case, set out the relevant legal principles concerning how the beneficial ownership of a joint account ought to be ascertained, and how the presumptions of resulting trust and advancement may be utilized to assist in resolving the issue of beneficial ownership (§§31-36 of the Judgment). In particular, the Judge stated or adopted[10] the following propositions:

(1)  The beneficial ownership of the credit balance in a joint account is a question of intention of the joint account holders. In this case, the focus centres upon Father’s intention.

(2)  If a gift is claimed, the onus is on the donee to prove it. Whilst corroboration is not required as a matter of law, where there is a claim that a gift was made by a person who is now deceased, the court must approach the claim with some caution and a true sense of enquiry.

(3)  The fact of being a signatory to a bank account does not, without more, prove beneficial ownership. The matter is to be decided on the facts and intention of the deceased, and on the evidence which establishes what he or she did or said in life.

(4)  A presumption of resulting trust arises when the source of monies in a joint account came from only one holder of the joint account. But such presumption is readily displaceable by sufficient evidence of the actual intention of the parties at the time of the transaction.

(5)  The presumption of resulting trust could be displaced by the counter-presumption of advancement where a transfer is made from a father to his son.

(6)  Nevertheless, the presumptions are not of much value if the intention of the relevant parties can be ascertained from the evidence adduced. In such a case, the utility of the presumptions available at law will be substantially restricted.

28.  There is no complaint by Mr Shieh about these principles stated by the Judge, and we are satisfied that they are correct in law.

29.  In relation to the critical issue of Father’s intention, the Judge analysed that matter in the following manner:

(1)  He first set out the approach to ascertaining the intention of Father, holding that both prior and subsequent acts and declarations of a donor would be admissible as evidence of his/her intention, but contemporaneous conduct is inherently more likely to be a reliable indicator of intention, to be given greater weight than words and conduct after the event, especially in the case of self-serving statements or conduct (Section E1 of the Judgment)[11].

(2)  The Judge then considered Father’s personality and relationship with his children, concluding that Father “has treated all his children (including the Defendant) fairly and maintained a good and harmonious relationship with all of them” (Section E2 of the Judgment)[12].

(3)  The Judge next examined the central theme of the Defendant’s case that on different occasions, Father had said various things to him which constituted direct evidence of his intention to make a gift of the monies in the Joint Accounts, including what Father allegedly said to him (i) in or about March 2012 prior to making him a joint account holder of the Savings Account[13], (ii) on or about 20 March 2012 when they went to HSBC to add him as a joint account holder of the Savings Account[14] and also after his name had been added to the Savings Account[15], and (iii) in or around November 2012 prior to the opening of the Premier Account[16]. The Judge examined each instance of alleged expressed statement made by Father with care, and rejected the Defendant’s evidence, finding that “Father never expressed any wish or intention to gift the credit balance of the Savings Account to the Defendant”[17], and “Father did not express any intention or wish to gift the credit balance of the Premier Account to the Defendant” (Section E3 of the Judgment)[18].

(4)  After ruling that Father did not “express” any intention or wish to gift the credit balances in the Joint Accounts to the Defendant, the Judge went on to examine other circumstantial evidence relied upon by the Defendant in support of his case of gift, including allegations that (i) he was the child “who had a particularly close relationship with the Father before he passed away”[19], and (ii) other siblings (including the Plaintiff, Loi Chuen and Loy Koon) had been staying rent-free in properties owned by Father and Mother, but he did not have such benefit since he moved out from the property referred to as “New Fortune House” in 1993[20]. The Judge did not accept the Defendant’s evidence or contentions, holding that (i) “none of the matters raised by the Defendant, whether individually or cumulatively, showed that Father had a particularly close and trusting relationship with the Defendant”[21], (ii) “Father did not have the habit of making one-off individual monetary gifts”[22], (iii) the Defendant’s argument that Father intended to make a gift of the credit balance in the Premier Account to him because he had not enjoyed rent-free accommodation since he moved out of New Fortune House in 1993 was “invalid”[23], and (iv) there were “no good reasons why Father would have suddenly decided to gift the two Joint Accounts to the Defendant”[24]. The Judge concluded that the circumstantial evidence failed to demonstrate that “Father would have intended to make such gifts only in favour of the Defendant to the exclusion of his other children” (Section E4 of the Judgment)[25].

(5)  The Judge next considered the Defendant’s alternative case based on joint beneficial ownership. He considered that the survivorship clause in relation to the Joint Accounts was not determinative of the parties’ ownership of the monies in those accounts, which could be overridden by their intention[26]. He also rejected the Defendant’s argument that Father was aware of the difference between an additional signatory to a bank account and an additional joint account holder, or his knowledge of such difference lent weight to the contention that Father intended to pass the beneficial interests in the bank accounts to the Defendant[27], finding it “inconceivable” that Father would have been aware of the difference between having an additional signatory to his own account and having a bank account with another person as a joint account holder (Section E5 of the Judgment)[28].

(6)  The Judge then considered various “subsequent events”, and came to the view that they “reinforced” his view that Father did not intend to make any gift of the monies in the Joint Accounts to the Defendant. The matters which the Judge took into account included[29]: (i) Father was entitled to withdraw monies from the Joint Accounts without the Defendant’s prior approval, and in fact made regular withdrawals of HK$5,000 from the Savings Account through automated teller machines[30]; (ii) Father kept the ATM cards, passbooks and ATM passwords of the Joint Accounts securely with him at all times, which the Judge regarded as an “outward manifestation of ownership” of the Joint Accounts, (iii) Father continued to rely upon the Savings Accounts to settle some of his ongoing expenses, (iv) the fact that the bank statements of the Premier Account were sent to Father’s address from June 2014 onwards (whether on Father’s own request or the Defendant’s initiative), which the Judge considered showed Father’s care and concern about the value of the monies in the account and his intention to retain more control over the credit balance and monitor the Defendant’s performance[31], and (v) the Defendant’s withdrawal of HK$10,000,000 from the Premier Account on 20 April 2016 (ie on the very day of Father’s death) and his attempt to open Father’s safe deposit box without the presence of any other siblings on 26 April 2016 (ie 6 days after Father’s death)[32], which the Judge considered demonstrated that the Defendant “was very eager to make his own attempt to take control of Father’s assets shortly after his passing” (Section E6 of the Judgment)[33].

(7)  Lastly, the Judge considered the credibility of the Plaintiff, his witnesses and the Defendant. As earlier noted, the Judge found the Plaintiff and his witnesses to be reliable and credible[34], but found the Defendant’s evidence to be “obscure, self-contradictory and unreliable” as well as being inherently inconsistent in various aspects (Section F of the Judgment)[35].

30.  Based on the totality of above considerations, the Judge came to the conclusion that “Father never intended to make an inter vivos gift of his beneficial interest in the Savings Account and/or the Premier Account (including the Sale Proceeds) to the Defendant”, and the evidence supported the finding “on the balance of probabilities that the Defendant held the funds in the Joint Accounts on trust for Father”[36].

31.  We do not accept Mr Shieh’s submission that the Judge failed to address the effect of the presumption of advancement by simply rejecting the Defendant’s oral evidence that Father intended a gift to him. The issue of beneficial ownership of the Joint Accounts ultimately depends on Father’s true intention, which is a question of fact. Where there is evidence on which the court can properly arrive at a conclusion on Father’s intention, there is no need to resort to the presumptions of resulting trust or advancement. The Judge was correct to focus on ascertaining Father’s intention on the basis of the evidence before him. The Judge reached his conclusion that Father never intended to make an inter vivos gift of the beneficial interest in the Joint Accounts (including the Sale Proceeds) to the Defendant and the Defendant held the funds in the Joint Accounts on trust for Father, not simply by rejecting the Defendant’s oral evidence that Father intended to make a gift (or gifts) to him. In reaching that conclusion, the Judge also took into account other matters relevant to the inquiry, including (i) Father treated all his children (including the Defendant) fairly and maintained a good and harmonious relationship with all of them, (ii) Father did not have the habit of making one-off individual monetary gifts to any of his children, (iii) there was no good reason why Father would have suddenly decided to gift the two Joint Accounts to the Defendant to the exclusion of his other children, (iv) Father regularly made use of the funds in the Savings Account for his own purposes and to settle his ongoing expenses, (v) Father kept the ATM cards, passbooks and ATM passwords of the Joint Accounts securely with him at all times, and (vi) the bank statements of the Premier Account were sent to his address. In our view, the Judge was entitled, on the evidence before him, to come to his conclusion concerning Father’s true intention as regards the beneficial ownership of the Joint Accounts (or the funds in the Joint Accounts). In view of this finding on Father’s intention, the presumption of resulting trust and the presumption of advancement had little significance. There was no need for the Judge to address the question what evidence there might be to rebut the presumption of advancement.

32.  As observed by Rogers VP in Cheung Cho Kam Sindy v Cheung Yuet Ying Rose, CACV 178/2008 (unreported, 8 December 2009), at §7:

“On this appeal Mr Yip has manfully tried to argue that the judge should have applied the presumption of advancement. He says that the judge should have started with that. But the fact of the matter is that the presumption of advancement is only a presumption which is applied when there are no facts upon which the court can operate which would determine one way or the other where the particular property was intended to be owned. Once the judge has made findings of fact, as has the judge in this case, there is no scope, in my view, for the presumption of advancement.”

33.  Mr Shieh relies on Overseas Trust Bank v Lee See Ching John, in particular the observation of Rogers JA (as he then was) at 204G-H: “To rely upon a negative matter or the absence of evidence in relation to an opposite contention when it is sought to prove, even on a low standard of proof, a positive fact is, in my view, tenuous …”, to argue that, transposed to the present case, even if the Defendant’s oral evidence was rejected, this only means there was no oral evidence concerning Father’s expression of intent to make a gift. It does not mean Father did not intend any gift (and intended a trust instead). In our view, this observation of Rogers JA has no application to the present case, because the Judge did not merely reject the Defendant’s evidence concerning Father’s alleged expression of intent to make a gift. The Judge also made a positive finding based on the evidence before him that Father did not intend any gift, but intended a trust instead.

34.  There are two other points raised by Mr Shieh that we should deal with. First, he complains that the Judge did not address the Plaintiff’s case on trust, taking the view that it is not necessary to deal with the Plaintiff’s evidence on “administrative convenience”. Mr Shieh argues that whether the joint names arrangement was intended to be the means of a gift, or merely for administrative convenience, is central to whether the presumption of advancement is rebutted. The Judge’s view that the matter was unimportant reinforces how his approach to the evidence and presumptions was incorrect.

35.  In our view, the critical issue that the Judge had to determine was whether Father intended that he should remain the beneficial owner of the monies in the Joint Accounts notwithstanding the fact that he had added the Defendant as a joint account holder of those accounts, or he intended to make a gift of the monies in the Joint Accounts to the Defendant. The Judge came to the view that there were sufficient materials before him to make a definitive finding on Father’s intention. He also considered that whether Father decided to create the Joint Accounts for administrative convenience was not of particular importance as there could be more than one reason for Father’s behaviour[37]. It was a matter for the Judge to decide whether there was sufficient evidence for him to reach a conclusion on the issue of “administrative convenience”. The Judge did not consider that there was, and decided not to make any positive finding on this matter. He was entitled to adopt this approach. There is no proper basis for the Defendant’s complaint that the Judge did not rule on the issue of administrative convenience one way or another.

36.  Second, Mr Shieh complains that the Judge erred in treating a rejection of the Defendant’s case on Father’s express intention to make a gift as automatically (or “accordingly”) meaning that the Defendant held the funds on trust for Father. He contends that such approach in assessing whether the Plaintiff’s case was proved, without weighing the probabilities of conflicting evidence, is erroneous as a matter of law. To make good this submission, he focuses specifically on the word “[a]ccordingly” used by the Judge at §122 of the Judgment:

“[121] By reason of the above analysis, I am of the view that Father never intended to make an inter vivos gift of his beneficial interest in the Savings Account and/or the Premier Account (including the Sale Proceeds) to the Defendant.

[122] Accordingly, I consider that the evidence supports the finding on the balance of probabilities that the Defendant held the funds in the Joint Accounts on trust for Father …” [underlining added]

37.  In our view, this argument, based on a particular word used by the Judge, fails to read the Judgment fairly and as a whole (which is how a judgment ought properly to be read). It is clear that the Judge did not find that the Defendant held the monies in the Joint Accounts on trust for Father merely because he rejected the Defendant’s case on Father’s express intention to make a gift to him. As analysed above, the Judge devoted substantial parts of the Judgment to other matters which were relevant to ascertaining Father’s true intention, including Father’s personality and relationship with his children (Section E2 of the Judgment), other circumstantial evidence on Father’s intention (Section E4 of the Judgment), and subsequent events (Section E6 of the Judgment). The Judge would not have dealt with those matters in the Judgment had he thought that his rejection of the Defendant’s case on Father’s express intention to make a gift automatically meant that the Defendant held the monies in the Joint Accounts on trust for Father.

38.  The above discussion also disposes of Mr Shieh’s further submission that had the Judge adopted a correct approach, he would have looked for evidence to support Father’s actual intention and/or rebut the presumption of advancement. We shall deal with various specific points made by Mr Shieh in Part D of D’s Skeleton Submissions under Ground 12A (in support of the submission that “[p]resumption of advancement is not rebutted on the facts”) when we consider Grounds 1 to 12 later in this judgment.

GROUND 12B – JUDGE OUGHT TO HAVE FOUND THAT FATHER INTENDED A GIFT OF THE CREDIT BALANCE

39.  Under this ground, Mr Shieh argues that even without regard to presumptions, and even on the basis that the Defendant’s oral evidence was rightly disregarded, the Judge should have found, on the totality of the undisputed circumstantial evidence, that Father intended a gift to the Defendant.

40.  Mr Shieh makes four specific points in support of this ground. As will be seen below, they all concern findings of fact made by the Judge. The Defendant has to overcome a high hurdle before the Court of Appeal will consider intervening in the Judge’s findings of fact. The applicable principles are well-established, and will not be repeated here. See Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Limited v CIL Holdings Limited, CACV 11/2015 (unreported, 27 November 2015); and Sarah Sally Chan-Kent v Chim Sau Ching [2021] HKCA 648.

41.  First, Mr Shieh refers to the Judge’s finding that Father was careful with his money, treated financial matters seriously and cautiously, managed his financial affairs independently, and was not easily influenced by others. From these, he argues that Father’s decision to hold the accounts in joint names could only have been made after careful consideration, and with the intention of conferring a gift. He further argues that the following matters support Father’s donative intent:

(1)  The Savings Account contained Father’s main sources of income, from which a substantial portion (HK$1.6 million) was transferred to the Premier Account.

(2)  As found by the Judge, Father specifically instructed the Defendant to deposit the Sale Proceeds into his joint accounts with the Defendant. He never took any steps to transfer the Sale Proceeds out of the Premier Account to his other accounts (such as accounts in his sole name), despite the fact that he had the power to do so.

(3)  Investments in the Premier Account were made in unit trust funds, which could only have been the Defendant’s own investments. This indicates that Father left it entirely to the Defendant to decide on the use of the monies in the Premier Account.

42.  In our view, all these matters are equivocal, and are consistent with either a gift or a trust of the monies in the Joint Accounts. They do not prove or show that Father intended to gift them to the Defendant. If Father’s intention was that the monies in the Joint Accounts should remain his and the Defendant was merely a trustee, the facts that he transferred the sum of HK$1.6 million from the Savings Account to the Premier Account, or instructed the Defendant to deposit the Sale Proceeds into the Premier Account, or did not take any steps to transfer the Sale Proceeds out of the Premier Account to his other (sole name) accounts are neutral. Similarly, the fact that Father permitted his son (the Defendant) to invest some monies in the Premier Account in unit trust funds cannot prove or show that he intended to gift the monies or investments in that account to the Defendant, bearing in mind that the investments would remain in the Premier Account (unless transferred out of the account without the knowledge or consent of Father).

43.  Second, Mr Shieh argues that viewed against the context of Father’s cautious attitude to money, the very fact that the Defendant was made a joint account holder of the two accounts is indicative of Father’s intention to make a gift to him. We do not accept this proposition. Whether a trust or a gift is indicated when a parent puts money in a joint account with his/her child, or makes the child a joint holder of an existing account of the parent, depends on the facts and circumstances of the case. In Nanyang Commercial Bank Ltd v Personal Representative of Vannee Nativivat [2013] 2 HKLRD 749, at §40, To J said that “[w]here funds are placed into the joint account of an aging parent and an adult child, an inference may be drawn that the arrangement is one of administrative convenience for the child to manage the financial affairs of the parent rather than a gift by the parent to the adult child”. Whether such an inference should be drawn depends on the circumstances of any given case. In this case, as earlier mentioned, the Judge did not consider that there was sufficient evidence for him to reach a conclusion on the issue of “administrative convenience”, and did not make any positive finding on this matter. Nevertheless, we see no basis for the suggestion that, in view of Father’s cautious attitude to money, the fact that the Defendant was made a holder of the two Joint Accounts should be regarded as indicative of Father’s intention to make a gift to the Defendant. Leaving aside the presumption of resulting trust and the presumption advancement (which we have already dealt with above), whether a trust or gift was intended is a question of fact to be determined by the Judge based on the totality of the evidence before him. The Judge did not err in principle or approach, and the assessment of the evidence was a matter for him.

44.  Third, Mr Shieh submits that the Judge erred in:

(1)  thinking that it was irrelevant who asked for the bank statements of the Premier Account to be sent to Father’s address starting from June 2014[38] for if, as contended by the Defendant, it was he who initiated the change, the sending of the statements to Father’s address would not show any positive care and concern of the monies in the account by Father (as the Judge found); and

(2)  disregarding the fact of (i) the Defendant’s withdrawals in the total sum of HK$4,048,000 during the period between May 2015 and April 2016 from the Premier Account, and (ii) Father’s lack of objection to such withdrawals.

45.  Our views on these submissions are as follows. In respect of §44(1) above, even if it was the Defendant who took the initiative to cause the bank statements of the Premier Account to be sent to Father’s address, there was still ample evidence before the Judge that supported his view regarding Father’s care and concern about the monies in the Joint Accounts, namely, the fact that Father kept the ATM cards, passbooks and ATM passwords of both Joint Accounts securely with him at all times. The Judge’s omission to make a finding on whether the change of the mailing address of the Premier Account was initiated by Father or the Defendant is not sufficiently “material” to justify a re-trial on this ground (as sought by Mr Shieh on the Defendant’s behalf).

46.  In respect of §44(2) above, the Judge considered that Father’s lack of objection to the withdrawals of funds from the Premier Account by the Defendant could not salvage his case on Father’s intent because, even if one assumed that Father had read the bank statements during the period between July and October 2015[39]:

“… the absence of Father’s objection to various withdrawals for a particular period could mean that Father specifically allowed the Defendant to withdraw monies from the account for certain purposes. For example, on the Defendant’s own case, he chose to inform Father in late 2014 that his business was not doing well. If Father, given what he had heard from the Defendant, allowed him to take monies from the account to solve his financial difficulties at that time, this could not be taken as a factor in support of a gift.”

47.  Mr Shieh criticizes this reasoning of the Judge, arguing that the fact that the Defendant continued to withdraw money after June 2014 was indicative of the Defendant’s perception of entitlement. If the Defendant did not genuinely think that he was legally entitled to make withdrawals, he would not have withdrawn funds at a time when statements had already been sent to Father’s address and unauthorised withdrawals could have easily been spotted by Father. The fact that Father made no complaint as regards any withdrawal from May 2015 to June 2016 is telling, particularly in view of the fact that the withdrawals were fairly frequent and were not insignificant. Mr Shieh also argues that the Judge’s reasoning that all the 15 withdrawals could have been items “specifically allowed” by Father was speculative. In any event, this was not the Plaintiff’s case at trial, and had not been put to the Defendant.

48.  We do not accept the proposition that the mere fact that the Defendant continued to withdraw money after June 2014 in circumstances where there was a risk that Father could discover the same (by reading the bank statements sent to his address) was indicative of the Defendant’s perception of entitlement to make those withdrawals, or showed that he must genuinely have thought he was legally entitled to make withdrawals. Such proposition is untenable.

49.  Insofar as the Father’s lack of objection to the Defendant’s withdrawals is concerned, the Judge took into account the fact that the Defendant had told Father in late 2014 that his business was not doing well, and Father might have allowed him to take monies from the Premier Account to solve his financial difficulties. This was, in our view, a plausible explanation. In any event, even if the withdrawals were not “specifically allowed” by Father, it does not follow that Father would necessarily have raised any specific “objection” to the withdrawals (bearing in mind his age and health conditions and their relationship). The weight that should be given to the absence of objection by Father to the Defendant’s withdrawals of funds from the Premier Account was a matter for the Judge to assess. The Judge was not impressed by this matter, and decided not to give weight to it. He was entitled to adopt such view and approach.

50.  Fourth, Mr Shieh complains about the Judge’s failure to place weight on the survivorship clause of the Joint Accounts, arguing that the Judge erred in saying that “the survivorship clause … did not actually address the question of beneficial ownership”[40] [emphasis added], when in fact it provides for survivorship (the balance would be held to the order of the survivor). In this regard, Mr Shieh argues that it is one thing that the clause did not declare the parties’ respective interests. It is quite another that it “did not actually address the question of beneficial ownership” at all. He further argues that the actual contractual terms on which the accounts were opened and held is one relevant item of contemporaneous evidence of intent. In this case, the survivorship clause provides for survivorship, and the Judge ought to have found that it is a (very) relevant piece of circumstantial evidence of Father’s intent pointing in favour of a gift.

51.  In relation to this complaint, Mr Shieh accepts that “survivorship clauses do not declare the respective beneficial interests of the joint account holders, and are not thus determinative of the parties’ ownership”[41]. He also accepts that the survivorship clauses in the present case, which state that the balance would be held “to the order of” the survivor, are not as strong as the clause in Lim Chen Yeow Kelvin v Goh Chin Peng [2008] SGHC 119 (referred to at §75 of the Judgment), which contained the additional phrase “for the benefit of” the survivor.

52.  We consider the Judge was correct to take the view that the parties’ (or relevant party’s) intention overrides the survivorship clause[42]. For the purpose of ascertaining the intention of the parties (or relevant party), the weight that might be given to a survivorship clause depends on the facts and circumstances of the case. For example, very different considerations are involved where the accounts are held in the joint names of spouses or parent/child, as compared to business partners. The Judge was also correct in his view that a survivorship clause of a joint bank account, often found as part of a bank’s standard terms and conditions in small print, is primarily a contractual arrangement between the bank and the joint account holders on how to deal with the money in the joint account in the event of death of one of the holders.

53.  In this case, it seems clear that the Judge gave the survivorship clause little weight, partly because of the wording of the clause and partly because he was not satisfied that Father was aware of the difference between having an additional signatory to his own account and having a bank account with another person as a joint account holder (a matter which we shall further deal with below). The Judge also considered that in view of his ruling, upon consideration of the Defendant’s evidence and other circumstantial evidence, that Father did not have any intention to gift the credit balances in the Joint Accounts to the Defendant, the Defendant’s case based on the survivorship clause could not stand. The weight that should be given to the survivorship clauses in the present case was essentially a matter for the Judge to decide. We do not see that the Judge erred in principle or approach, or his decision to give little weight to the survivorship clause on the facts and circumstances of this case to be plainly wrong.

54.  As for the argument that the Judge erred in saying that “the survivorship clause … did not actually address the question of beneficial ownership”, whereas it did so by providing that the balance would be held to the order of the survivor upon the death of one of the account holders, this argument fails to read the Judge’s statement at §76(1) of the Judgment in its proper context. The Judge was plainly aware of the fact that the survivorship clauses in both the Savings Account and the Premier Account provided that the balance would be held to the order of the survivor[43]. At §75 of the Judgment, the Judge distinguished the decision of the High Court of Singapore in Lim Chen Yeow Kelvin (relied on by the Defendant), where the relevant survivorship clause expressly provided that in the event of the death of a joint account holder, the amount standing to the credit of the joint account would be held “for the benefit and to the order of the survivor(s)”, and noted that it was held that “these words constituted very strong evidence of what [the deceased]’s true intentions were, namely that … the defendant was to have the money beneficially if he survived her”. In our view, when the Judge said at §76(1) of the Judgment that “as discussed above, the survivorship clause for the Savings Account and the Premier Account did not actually address the question of beneficial ownership” [emphasis added], he was referring to the absence of the words “for the benefit … of the survivor(s)” in the survivorship clauses in the present case. What the Judge said at §76(1) of the Judgment cannot, on any view of the matter, be read as meaning that the Judge took the view that the survivorship clause was an irrelevant item of contemporaneous evidence of intent (as seemingly suggested by Mr Shieh).

55.  In all, Ground 12B is rejected.

THE REMAINING GROUNDS – GROUNDS 1 TO 12

56.  Under Ground 1, the Defendant argues that the Judge erred in rejecting his evidence as being irrelevant to Father’s donative intent and/or drew erroneous inferences from the Defendant’s evidence, which led to his error in holding that Father never expressed any wish or intention to gift the credit balance in the Savings Account to him.

(1)  The contention that the Judge rejected the Defendant’s evidence, in particular an alleged conversation that took place at a dinner in March 2012 prior to the opening of the Savings Account, as “irrelevant” is plainly unsustainable. The Judge did not reject the Defendant’s evidence on the ground of its irrelevance, but for the reasons given at §52 of the Judgment.

(2)  The Defendant contends that the Judge erred in rejecting his evidence concerning an alleged statement, namely, “the sums [in the Savings Account] were intended to belong to the [Defendant]”, made by Father during a conversation which took place on the same day after his name had been added to the Savings Account. That statement was allegedly made by Father in answer to a question from the Defendant, namely, what would happen to him if he had taken monies from the Account (“the Question”). Mr Shieh argues that the Judge misinterpreted the Question – the Defendant was not asking what would happen to him (ie the Defendant) if he withdrew monies, nor was he expressing any doubt on his strict legal entitlement; rather he was asking about what would happen to Father’s cash flow or financial position when he said “你話畀錢我，咁我攞咗啲錢點呀”. This understanding, says Mr Shieh, is fortified by Father’s response that “我恒生都仲有嚿錢，阿媽走咗之後，我收啲租都用唔晒嘅一個人”. We do not consider this complaint has any merit. As noted by the Judge, the alleged statement by Father, which plainly was material to the Defendant case, was not mentioned in his three witness statements, but was revealed for the first time at the trial. The Defendant had no proper explanation for the omission. The Defendant’s credibility on this issue was not helped by the vagueness of his evidence (“The Defendant said that he thus had the feeling (感覺) or there was a subtle understanding (默契) between the Defendant and Father that Father had gifted him the credit balance”[44]). In any event, regardless of how the Question ought to be understood and regardless of whether the Judge correctly understood the Defendant’s evidence, it was open to the Judge to come to the view that this part of the Defendant’s evidence was “most artificial and self-serving” for the reason given at §54(1) and (3) of the Judgment, and reject such evidence.

(3)  The Defendant argues that the Judge erred in finding that the Defendant’s “allowing” Father to keep the passbook and use the monies in the Savings Account was inconsistent with his case that he did so “out of respect” (because Father would not in any event have required authorization). The Defendant submits that as a matter of law, a donor’s ability to make withdrawals does not undermine his donative intent nor preclude the transaction from being regarded as one in which the donee takes an immediate beneficial interest in the money. Mr Shieh also argues that while a donor’s ability to withdraw the monies does not positively support an intention to gift, it also does not undermine it. These arguments have no merit. As a matter of law, it is possible to have “an immediate gift of a fluctuating and defeasible asset consisting of the chose in action for the time being constituting the balance in the bank”, a concept mentioned by Megarry J in Re Figgis [1969] 1 Ch 123 at 149, and adopted by Mortimer VP and Godfrey JA in Overseas Trust Bank Ltd, at 209E-F and 203G-I respectively. However, although such gift is something which is recognized by law, whether a gift of this nature has indeed been made is a question of fact. The Judge was entitled to consider the fact that Father kept the passbooks, ATM cards and ATM passwords of the Joint Accounts and regularly used the monies in the Savings Account for his own purposes as consistent with, and supportive of, the view that Father did not intend to gift the monies in the Joint Accounts to the Defendant. The Judge was also entitled to take the view that the Defendant’s allegation that he “allowed” Father to continue to operate the account as being “quite inconsistent” with his alleged “respect” for Father, there being no dispute that Father was entitled to use the monies in the Joint Accounts without the Defendant’s permission or approval[45].

(4)  The Defendant argues that the Judge erred in rejecting his evidence regarding two alleged conversations that he had with Father (namely, a conversation at a dinner with no specific date mentioned, and another conversation after the Defendant’s name had been added to the Savings Account when they were stepping out of the bank) on, inter alia, the ground that they were not mentioned in his witness statement, when (i) the Defendant was specifically asked to provide details and context of his conversations during cross-examination, and (ii) no substantive reasons (save for various alleged erroneously reasons referred to in Ground 1(1) to (3)) were given by the Judge to reject such evidence. In our view, the alleged conversations were plainly material to the Defendant’s case and the Judge was entitled to take into account the fact that they were not mentioned in the Defendant’s witness statements but came out for the first time in his oral evidence as a reason for deciding to reject the Defendant’s evidence.

57.  Under Ground 2:

(1)  The Defendant argues that the Judge, in concluding that Father did not express any intention or wish to gift the credit balance in the Premier Account to him, failed to take into account various material facts and evidence which supported such intention, including the express statements allegedly made by Father to him, Father’s conduct, and the actual operation of the Premier Account (Ground 2(1) – (3)). This argument has no validity. Insofar as alleged express statements by Father are concerned, the Judge dealt with all the major conversations relied on by the Defendant in Section E3 of the Judgment, and also dealt with the alleged “December 2014 Conversation” and “2015 Conversations” at §§87-91 of the Judgment. It was not necessary for the Judge to deal with each and every alleged conversation mentioned by the Defendant in his witness statements (eg an alleged casual chat in July/August 2014 referred to at Ground 2(1)(a)). In view of the Judge’s finding that the Defendant’s evidence, particularly in respect of his case on Father’s express intention to make a gift to him, was “obscure, self-contradictory and unreliable”, it is clear that the Judge did not accept the Defendant’s evidence regarding the alleged express statements by Father that he relied upon to show Father’s intention to make a gift to him. None of the matters raised in Ground 2(3) has merits, including the issue of investments in the Premier Account, which we have dealt with at §42 above.

(2)  The Defendant also complains that the Judge erred in his analysis of the undisputed fact that Father received the bank statements of the Premier Account since June 2014 and made no objections or complaints about the withdrawals made by him from that account (Ground 2(4)). We have already dealt with this complaint at §§47-49 above.

58.  Under Ground 3, the Defendant argues that, at §59 of the Judgment, the Judge took into account legally irrelevant considerations or drew improper inferences that were unsupported by evidence in rejecting his evidence concerning an alleged conversation between him and Father which led to the opening of the Premier Account. The Defendant argues, inter alia, that:

(1)  The Judge erred in taking the view that there was a lack of nexus between (i) the Defendant’s evidence on Father’s statements expressing his intention to gift “some monies” to him in a conversation which took place in or around 2013, and (ii) the Defendant’s case that Father intended to gift to him the entire credit balance in the Premier Account, and conflated the Defendant’s factual case on what Father told him on that occasion with the legal conclusion that the Defendant invited the court to draw from the evidence taken as a whole. Further, by reason of his failure to deal with the evidence referred to under Ground 2, the Judge erred in concluding that there was no evidence to show the gift was intended to cover all further deposits into the Premier Account (Ground 3(1) and (2)).

(2)  The Judge wrongly analysed the evidence from the perspective of whether it was Father or the Defendant who put forward the suggestion of opening a joint account (§59(5) of the Judgment). He ought instead to have held that, irrespective of who made such suggestion, Father’s donative intent was clear given that he agreed to the opening of the joint account with full knowledge of the difference between an additional signatory and a joint account holder (Ground 3(3)).

59.  Neither of these points has merit:

(1)  In respect of §58(1) above, the Defendant’s evidence was that Father said to him in or around November 2013 that he wished to gift “some monies” to him to assist him in buying a property but he rejected Father’s offer, and eventually a sum of HK$1.6 million was withdrawn from the Saving Accounts and invested in a unit trust fund held in the Premier Account. The Judge’s observation that there was no “nexus” between Father’s alleged wish to gift some monies to the Defendant and the entire credit balance in the Premier Account was justified. As for the argument that, by reason of the Judge’s omission to deal with the evidence referred to under Ground 2, he erred in concluding that there was no evidence to show the gift was intended to cover all further deposits into the Premier Account, we have already rejected the Defendant’s arguments under Ground 2.

(2)  In respect of §58(2) above, the Judge noted, at §59(5) of the Judgment, (i) the Defendant’s admission that it was his own suggestion (as opposed to Father’s suggestion) to name both him and Father as joint holders of the Premier Account, and (ii) the absence of any reference in the Defendant’s evidence as to the way in which Father had ever proposed this additional account to be opened and operated. These matters form part of the relevant background and are relevant to the question of whether the Father intended to make a gift to the Defendant of the entire credit balance in the Premier Account from time to time (as alleged by him). We do not see how it can be said that the Judge was wrong to consider the question of whether it was Father or the Defendant who put forward the suggestion of opening a joint account. In respect of the issue of whether Father was aware of the difference between an additional signatory and a joint account holder, the Judge gave his reasons at §76 of the Judgment for rejecting the Defendant’s evidence that the bank staff had explained the terms and conditions of the Joint Accounts to Father (including the effect of the survivorship clause and that the bank accounts would beneficially belong to the Defendant), and finding that Father was not aware of the difference between having an additional signatory to his own account and having a bank account with another person as a joint account holder. It was open to the Judge to come to such findings on the evidence before him.

60.  Under Ground 4, the Defendant complains that the Judge failed to give proper consideration of the undisputed evidence on Father’s distinct courses of conduct in holding bank accounts with authorized signatories on the one hand and joint account holders on the other, which supports his intention to make a gift of the credit balances in the Joint Accounts from time to time to the Defendant. In support of this ground:

(1)  The Defendant relies on, inter alia, the fact that the Plaintiff was only added as an authorized signatory to the Hang Seng Account in February 2012, whereas the Defendant was added as a joint account holder one month later in March 2012 (Ground 4(1)).

(2)  The Defendant contends that the Judge wrongly approached the issue from the irrelevant consideration of whether his alleged uncertainty about his entitlement to the Savings Accounts and Premier Account undermined Father’s knowledge about the difference between having an additional signatory and an additional joint account holder (Ground 4(2) and (3)).

(3)  The Defendant also argues that Father’s donative intent is further supported by (i) the undisputed fact that the Savings Account contained Father’s main sources of income, and (ii) the Judge’s finding that Father treated financial matters seriously and cautiously (Ground 4(4)).

61.  These points have no merits. In respect of Ground 4(1)-(3), the Judge was plainly aware of the fact that the Plaintiff was only added as an additional signatory to the Hang Seng Account, while the Defendant was added as a joint account holder of the Savings Account and Premier Account. However, the Judge did not accept the Defendant’s evidence that the bank staff had explained the terms and conditions of the Joint Accounts to Father, and came to the conclusion that Father was not aware of the difference between the two. As mentioned above, we consider that the Judge was entitled to make these findings on the evidence before him. The matters raised in Ground 4(4) have been dealt with at §42 above.

62.  Under Ground 5, the Defendant complains that in the Judge’s analysis of the events subsequent to the gifts being made, he erred in conflating (i) the issue of Father’s intention as a matter of legal conclusion, which should be determined by all the circumstances including his express statements, conduct and operation of the Joint Accounts, with (ii) the Defendant’s subjective understanding of Father’s intention. In particular, the Defendant argues that:

(1)  The Judge erred in rejecting the Defendant’s case on Father’s donative intent on the grounds that (i) the Defendant did not receive express confirmation of his entitlement of the gift until after he became a joint account holder of both the Savings Account and Premier Account, and (ii) the Defendant did not receive any express explanation from Father as to the management of the Joint Accounts.

(2)  On proper analysis, the aforesaid matters are not “contrary” or “self-contradictory” to, nor “inconsistent” with[46], the Defendant’s case of a gift and Father’s donative intent.

63.  This ground can be disposed of shortly. It was the Defendant’s case that Father’s donative intent was expressed to him in a number of conversations that he had with Father both before and after he was added as or made a joint account holder of the Savings Account or Premier Account. The Judge was entitled to assess the credibility of the Defendant’s case by reference to, amongst other matters, his alleged understanding of what Father said to him in those conversations. The Judge’s decision to reject the Defendant’s case on Father’s donative intent was not based simply on the matters referred to at §62(1) above. We have already analysed the Judge’s reasoning for his conclusion that Father did not intend to gift the (monies in the) Joint Accounts to the Defendant at §§29-30 above and shall not repeat that analysis here. The Judge’s comments that various aspects of the Defendant’s evidence were “contrary” or “self-contradictory” to, or “inconsistent” with, his pleaded case that it was, at all material times since the opening of the Savings Account/Premier Account[47], the common understanding, intention and/or agreement between Father and the Defendant that Father intended to gift the credit balance standing from time to time in each account to him, were justified.

64.  Under Ground 6, the Defendant contends that the Judge wholly failed to consider the Defendant’s case and evidence on the Sale Proceeds, which is highly relevant and strongly supportive of Father’s donative intent regarding the credit balance of the Premier Account. In particular, the Defendant argues that:

(1)  The Judge failed to consider the fact that Father (i) specifically instructed the Defendant to deposit the Sale Proceeds into his joint accounts with the Defendant (as opposed to his sole name accounts), and (ii) never took any steps to transfer the Sale Proceeds out from the Premier Account to his other accounts, despite the fact that he had the power to do so.

(2)  The Judge also failed to consider the fact that Father allowed the Defendant to make withdrawals from the Premier Account (including the Sale Proceeds) without objection and expressly reassured the Defendant that he was free to do so.

(3)  Had the Judge taken into account the above matters, he ought to have found that Father did not intend to retain the Sale Proceeds under his ownership, but wanted to make a gift of the same to the Defendant.

65.  This ground can also be disposed of shortly:

(1)  The point raised at §64(1) above begs the question of whether it was Father’s intent to remain the sole beneficial owner of the Joint Accounts, or to make a gift of the monies in the Joint Accounts to the Defendant.

(2)  The point raised at §64(2) above that Father allowed the Defendant to make withdrawals from the Premier Account (including the Sale Proceeds) without objection has been dealt with at §49 above. As for the Defendant’s allegation that Father reassured him that he was free to withdraw monies from the Premier Account, the Defendant’s evidence was rejected by the Judge[48]. The Defendant’s complaint that the Judge erred in his assessment of the evidence in this respect has been dealt with under Ground 2 above.

66.  Under Ground 7, the Defendant argues that the Judge adopted a wrong approach in assessing the reasons for the Defendant being made a holder of the Joint Accounts, and the relevance of the same to Father’s donative intent with respect to such accounts. In particular, the Defendant contends that:

(1)  While the Judge discredited the matters put forward by the Defendant to support his case that Father intended to make a gift to him, he did not proceed to find any plausible reason for Father’s conduct in making the Defendant as a joint account holder, on the basis that “there could be more than one reason for Father’s behaviour”.

(2)  In so doing, the Judge erred in dismissing the Defendant’s case without weighing the probabilities of the conflicting evidence, and in particular the reason put forward by the Plaintiff for Father’s behaviour.

(3)  The only motive attributed to Father on the Plaintiff’s pleaded case is that the Defendant was made a joint account holder solely for administrative convenience and for providing assistance to Father in the operation of the accounts during his lifetime. Had the Judge properly analysed such contention, he ought to have found that it is contradicted by the undisputable facts and documentary evidence, which clearly shows that Father did not require any assistance in the operation of the Savings Accounts and was fully capable of operating such account even up to one month before his death.

(4)  Had the Judge conducted a proper and complete analysis of both parties’ cases, he ought to have found that the Defendant’s version should be preferred, and that Father had intended a gift, that being the only plausible conclusion for Father’s actions.

67.  We have already dealt with the above arguments at §35 above. Since the Judge did not make a positive finding in the Plaintiff’s favour that Father made the Defendant a joint account holder for the reason of administrative convenience, the argument that, had the Judge properly analysed such contention, he ought to have found that it is contradicted by the undisputable facts and documentary evidence is immaterial. In any event, we are far from being satisfied that merely because Father did not require assistance to operate the Savings Account or was fully capable of operating the Savings Account up to one month before his death is necessarily inconsistent with the Plaintiff’s case that Father made the Defendant a holder of the Joint Accounts for the reason of administrative convenience.

68.  Under Ground 8, the Defendant argues that the Judge erred in finding that “there are no good reasons why Father would suddenly have decided to gift the two Joint Accounts to the Defendant”, contending that:

(1)  The Judge wrongly approached the issue of whether Father had a good reason to make a gift to the Defendant by considering whether there were examples when Father made “a significant monetary gift” to the Defendant to the exclusion of other children, or whether he “particularly and strongly favoured the Defendant over his other children”. The Judge failed to take into account the clear evidence of the Defendant’s contribution to Father’s affairs. Had the Judge properly considered such evidence, which was further supported by Father’s express statement on the reasons for his gift, he ought to have concluded that there was good reason for Father to have made the gift.

(2)  In any event, the Judge erred in concluding that nothing showed Father had a particularly close and trusting relationship with the Defendant. Had the Judge properly considered the Defendant’s evidence on the matters which Father entrusted to him to deal with during Father’s lifetime (including those matters mentioned at §62 of the Judgement) with the Plaintiff’s evidence of his alleged assistance in Father’s affairs, he ought to have found that the Plaintiff’s contributions pale in comparison with the Defendant’s.

69.  Ground 8 has no validity. The Judge was well aware of the Defendant’s evidence about his alleged contribution to Father’s affairs (including contribution to Father’s shop and business) and that he allegedly had a particularly close and trusting relationship with Father[49], but came to the conclusion, after careful consideration of all the evidence before him (including the Plaintiff’s evidence), that “none of the matters raised by the Defendant, whether individually or cumulatively, showed that Father had a particularly close and trusting relationship with the Defendant”, and there were “no good reasons why Father would have suddenly decided to gift the two Joint Accounts to the Defendant. The circumstantial evidence fails to demonstrate that Father would have intended to make such gifts only in favour of the Defendant to the exclusion of his other children”[50]. The Judge was well entitled to make those findings. In our view, this ground of appeal is simply a repetition of the submissions made on behalf of the Defendant to, but rejected by, the Judge, in the hope that the Court of Appeal would come to a different conclusion. This is not a proper or valid ground of appeal.

70.  Under Ground 9, the Defendant complains that the Judge erred in failing to place any weight on the terms on which the Joint Accounts were opened. The Defendant also contends that the Judge ought to have accepted the Defendant’s evidence that the bank staff had explained those terms to Father (including the survivorship clause, and the term that either account holder can solely operate the Savings Account and Premier Account), and Father expressly indicated that he understood them. We have already dealt with (i) the issue of the survivorship clauses of the Joint Accounts at §§52-54 above, and (ii) the question of whether the bank staff had explained the terms of the Joint Accounts to Father and whether he was aware of the difference between an additional signatory and a joint account holder at §59(2) above.

71.  Under Ground 10, the Defendant argues that had the Judge found that Father intended to gift the standing credit balances in the Joint Accounts to the Defendant, he ought to have found that Father’s ability to withdraw money from the Accounts is consistent with such conclusion.

72.  This ground does not arise in view of the Judge’s finding that Father did not intend to gift the monies in the Joint Accounts to the Defendant, which finding we consider the Judge was entitled to make. In respect of the sub-points raised under Ground 10:

(1)  In our view, the Judge was correct to take the view that (i) the case of Overseas Trust Bank Ltd relied upon by the Defendant did not establish the proposition that an (alleged) donor’s entitlement to withdraw monies from the Joint Accounts was irrelevant to the question of donative intent, and (ii) depending on the circumstances, weight might be attached to the fact that the donor was able to make withdrawals from the account as and when he saw fit.

(2)  The points raised at §§10(2) and (3) of the Amended Notice of Appeal are both premised on an acceptance of the Defendant’s evidence which, however, the Judge found to be “obscure, self-contradictory and unreliable”. The Defendant’s complaint about the Plaintiff’s failure to call Poon Kit Bing (the eldest daughter) to give evidence is a non-point, since the Judge did not consider it necessary to, and in fact did not, make any finding as to who initiated the change of the mailing address of the Premier Account (see §45 above). Even though Kit Bing did not give evidence, the fact remains that the Judge made no finding that the Defendant’s evidence it was he who initiated the sending of the bank statements of the Premier Account to Father’s address was accepted. As pointed out by G Lam JA in Mohammad Rafig v Kin Hong Transportation Company Limited [2023] HKCA 185, at §21, there is no presumption for an adverse inference to be drawn from the mere absence of a witness or documents, and whether an adverse inference should be drawn in a particular case is a matter of discretion for the trial judge based on all the relevant circumstances of the case including the quality of the other evidence. Furthermore, it is well established that there must be a case to answer in order for the court to draw an adverse inference that the evidence of the absent witness would not have assisted in displacing that prima facie case. In that case, the applicant’s own evidence was said to be “full of contradictions” and “incapable of being believed”, and thus “there was in [those] circumstances little in the applicant’s own evidence that an adverse inference could be drawn from [the absence of an opposing witness] to bolster” (§24). The same can be said of the present case.

73.  Under Ground 11, the Defendant complains about the Judge’s finding that he was very eager to attempt to take control of Father’s assets after his passing, which he contends is in any event irrelevant to Father’s donative intent with respect to the Joint Accounts, contending that:

(1)  The Judge’s reference to the Defendant’s explanation for withdrawing the sum of HK$10 million from the Premier Account on the date of Father’s death at §93 of the Judgement was incomplete, and he failed to take into account his evidence that his concern as to the “freezing” of the account was not to do with his entitlement to the credit balance, but the administrative concern of the timing and the duration for which the account would not be in operation after Father’s death.

(2)  The Judge erred in finding that there was no explanation as to why he needed to “check out” the contents of Father’s safe deposit box, in that he failed to consider the Defendant’s evidence that Father previously told the Defendant that he had placed some vintage items in the box, and the Defendant wished to check if the key he found in Father’s room after his death was the key to the said box.

(3)  Mr Shieh also argues that the safe deposit box is not in issue in this action, and any intent behind the Defendant’s action does not impact on his perception of entitlement, nor is it relevant to Father’s donative intent.

74.  We do not accept these complaints or arguments:

(1)  In respect of §73(1) above, the Judge was well aware of the Defendant’s allegation that he decided to withdraw HK$10 million from the Premier Account because he was concerned that the account might be “frozen”[51] following Father’s death. Inherent in such concern (if genuinely had by the Defendant) was that it could take time for him to “unfreeze” the account and it might be administratively inconvenient to him during the period for which the account was “frozen”. The Judge considered, and rejected, the Defendant’s explanation for his conduct. That was a view open to the Judge to take on the evidence.

(2)  In respect of §73(2) above, the Defendant’s explanation is plainly incredible. He was not the administrator of Father’s estate, and had no right to take possession of whatever might be found in the safe deposit box, nor any right to “check out” the contents of Father’s safe deposit box. In any event, if all he wished to do was to confirm what Father previously told him (ie that Father had placed some vintage items in the box), or check whether the key which he found in Father’s room was the key to the safe deposit box, he could and should have informed his siblings about the matter and asked them to go with him to the bank together. While he claimed that he had informed the Plaintiff before and after his visit to the bank, that was denied by the Plaintiff, and it is plain that the Judge disbelieved the Defendant’s evidence.

(3)  In respect of §73(3) above, while the question of ownership or entitlement to the contents of the safe deposit box was not an issue in the action, as mentioned above, the Defendant had no right to take possession of whatever might be found in the safe deposit box or “check out” the contents of the safe deposit box. The Judge was entitled to take the view that the Defendant’s conduct, namely, his attempt to open Father’s safe deposit box without informing his siblings barely 6 days after Father’s death, coupled with his withdrawal of HK$10 million from the Premier Account on the very day of Father’s death, showed that he was “very eager to make his own attempt to take control of Father’s assets shortly after his passing”, and drew the inference that he did not genuinely believe he was entitled to the monies in the Joint Accounts. This went to the credibility of his allegations regarding Father’s express statements to gift the monies in the Joint Accounts to him.

75.  Under Ground 12, the Defendant complains that the Judge erred in relying on the incidents described at §§113-120 of the Judgment to conclude that there were “further problems in the [Defendant’s] credibility” (namely, an alleged “theft” by the Defendant of a patented gold refining formula belonging to his former employer, and his breach of undertaking given in return for avoidance of a criminal prosecution for such theft), when those matters and events (i) were not raised in the pleadings, (ii) have no direct relevance to the parties’ dispute in the action, and (iii) cannot affect the credibility and reliability of the Defendant’s evidence on the pleaded issues. In support of this ground, Mr Shieh submits that this was an impermissible venture by the Judge into a wholly collateral matter which, as recognised by the Judge himself, was “not directly relevant” to the issue in this case; yet he allowed roaming cross examination to take place and devoted §§113-120 of the Judgment to it and took the Defendant’s answers as casting “further doubt” on his credibility. Mr Shieh says that the Defendant’s testimony on this wholly collateral point does not and cannot affect the Defendant’s credibility on his evidence on the pleaded issues. We see no merit in this ground of appeal. The Judge was well aware of the fact that the incidents in question were not “directly relevant” to the dispute before him[52]. They were, nevertheless, relevant to the Defendant’s credibility, which, having regard to the Defendant’s case that Father had made various oral statements to him showing a donative intent in his favour, was an important issue for determination by the Judge. The Judge was entitled to take the said incidents into account in assessing the Defendant’s overall credibility. We also do not see that they were matters required to be pleaded by the Plaintiff. We would add that, even if the Judge erred in placing weight on the incidents when assessing the Defendant’s credibility, there were still ample evidence and materials before the Judge to support his adverse finding of the Defendant’s credibility and his conclusion that Father did not intend to make a gift of the monies in the Joint Accounts to the Defendant. The alleged error (if any) is clearly not sufficiently “material” to justify the Court’s intervening in the Judge’s finding and conclusion.

76.  The above discussion covers all the significant points raised by the Defendant in Grounds 1 to 12, many of which are repetitive. For the avoidance of doubt, we have considered all other minor points raised in Grounds 1 to 12 of the Amended Notice of Appeal, but do not consider that they have any merits.

77.  In all, Grounds 1 to 12 are rejected.

DISPOSITION

78.  The Defendant’s appeal is dismissed with costs to the Plaintiff, to be taxed if not agreed.