WONG MAN SHING v. YEUNG KONG PAN AND OTHERS

DCCJ 6392/2019 & DCCJ 6393/2019
(Consolidated)

[2024] HKDC 790

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NOS 6392 OF 2019 AND 6393 OF 2019

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(Actions consolidated by the Order of Registrar Lui dated 14^th January 2021)

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JUDGMENT

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A.  INTRODUCTION

1.  The Plaintiff was born in 1941. He married Madam Yip Har Yin (“Madam Yip”) in 1965. From 1966 to 1978, they gave birth to six children：

(1)  The 1^st Defendant (“D1”) – eldest son;

(2)  The 3^rd Defendant (“D3”) – second son;

(3)  Yeung Kong Ngai (“YKN”) – third son;

(4)  The 2^nd Defendant (“D2”) – fourth son;

(5)  Yeung Ngai Ling (“Ngai Ling”) – only daughter; and

(6)  Yeung Kwai Pun – fifth and youngest son.

2.  The subject consolidated actions concern a dispute between the Plaintiff and his first, second and fourth sons over the beneficial ownership of two properties in Shung Wah Court, Nos. 17-19 Maidstone Lane, To Kwa Wan, Kowloon of Hong Kong (the “Building”):

(1)  Flat A, 5/F of the Building (“Flat 5A”); and

(2)  Flat A, 6/F of the Building (“Flat 6A”).

3.  The Plaintiff and Madam Yip are undergoing divorce proceedings in FCMC No. 9887 of 2018 (“Divorce Proceedings”). The outcome of the trial of the subject actions will affect the scope of ancillary relief under the Divorce Proceedings.

4.  The Building was developed by Kong Ning Toi Lands Investment Co Ltd (“Developer”). Flat 5A, Flat 6A and Flat 7A (collectively the “Flats”) were purchased at the same time from the Developer in the early 1990s. The registered owner of Flat 5A had been D1 until May 1995, when D1 assigned Flat 5A to D2 (the current registered owner). The registered owner of Flat 6A has been D3. Flat 7A was purchased in the name of YKN (the third son); it was sold by YKN to an unrelated third party in 2014.

5.  In DCCJ 1174 of 2020, the Plaintiff claimed against YKN in respect of Flat 7A (the detail of that claim is not made known to this court), and obtained judgment in default on 4 December 2020. YKN has not participated in these proceedings.

6.  The Plaintiff commenced DCCJ 6392/2019 (against D1 and D2) and DCCJ 6393/2019 (against D3) by two Writs of Summons dated 26 November 2019. Both Writs were amended in May 2020. A Consolidated Statement of Claim was filed on 24 June 2021. In gist, the Plaintiff claims that he is the sole beneficial owner of Flat 5A and Flat 6A on the ground of common intention constructive trusts, alternatively resulting trust and/or proprietary estoppel.

7.  The Plaintiff further claims against D2 for knowing receipt of trust property (being Flat 5A) and dishonest assistance of breach of trust by D1; the Plaintiff claims that the transfer of Flat 5A from D1 to D2 was a sham. The Plaintiff also claims the rental income from Flat 5A and Flat 6A. These claims are all premised on the Plaintiff having beneficial interests in those Flats.

8.  As will be seen in the analysis of the evidence below, this case largely turns on the actual intention of the parties and the express agreement, arrangement or understanding reached between them at the material times as to how the Flats were to be held beneficially, leaving little room for presumptions. At trial, counsel for the Plaintiff confirmed that the Plaintiff no longer pursued the claim in proprietary estoppel and resulting trust. In my view, this is a sensible concession.

B.  PRINCIPLES ON COMMON INTENTION CONSTRUCTIVE TRUST

9.  The applicable summary of principles regarding common intention constructive trust is set out by Deputy High Court Judge Alexander Stock SC in Leung Hang Lin & Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819, §8, recently applied in Re Estate of Chen Yen Fei [2024] 2 HKLRD 858, §18:

(1)  The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9, §44; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985, §5.16; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, §17;

(2)  The burden may be discharged by showing that: (i) there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter) that the beneficial ownership was to be different to the legal ownership; (ii) the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii) it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1, §38; Liu Wai Keung, §46;

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

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

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

10.  I bear these principles carefully in mind and apply them in this case.

C.  RELEVANT UNDISPUTED FACTS

11.  The Plaintiff is of Fujian origin (both the Plaintiff and D1 testified in Minnan dialect). The Plaintiff got married with Madam Yip in China and all six children were born there. The respective year of birth of the family members and the approximate time when they emigrated to Hong Kong are set out in the parties’ List of Agreed Facts, as follows:

	Birth year	Arrival in Hong Kong
The Plaintiff	1941	1979
Madam Yip	1945	1982 or 1983
D1	1966	1986
D3	1968	1987 or 1988
YKN	1970	Same time as Madam Yip
D2	1973	Same time as Madam Yip
Ngai Ling	1976	Same time as Madam Yip
Yeung Kwai Pun	1978	1987 or 1988

12.  There was extensive argument by the parties about whether and to what extent the family members were farming in China, which is quite irrelevant. It suffices to point out that by the late 1980s, the first four sons were already working in Hong Kong (including YKN and D2 when they were underage). Madam Yip also started working in a factory since she came to Hong Kong, until about 1992 when she was asked by the Plaintiff to stay home and become a housewife.

13.  The parties disputed a great deal as to whether and to what extent the Plaintiff worked and earned. The Plaintiff claimed that he was providing for the family by taking on various jobs (he pointed to a few entries in his bankbook at the time, though the bankbook does not shed light on the nature of the deposits). The Defendants claimed that the Plaintiff did not work since around 1987 but lived off his children’s salaries and mainly engaged in gambling. For present purpose, it is sufficient to point out from the indisputable evidence that the four older sons all contributed substantially to the family’s income.

14.  In Hong Kong, the family lived in a property at 3/F, No. 7 Maidstone Lane, To Kwa Wan, Kowloon, Hong Kong (the parties referred to this as the “Matrimonial Home”). The Plaintiff and Madam Yip entered into a sale and purchase agreement in respect of the Matrimonial Home on 9 January 1988. On 11 April 1988, the Matrimonial Home was assigned to the Plaintiff and Madam Yip as joint tenants; they (as borrowers) executed a mortgage for the sum of HK$300,000.

15.  It is common ground that the Plaintiff habitually gambled in horse racing (the parties’ dispute is as to whether the Plaintiff engaged in addictive gambling). Indeed, it is the Plaintiff’s own case that part of the monies used to acquire the Matrimonial Home in 1988 was winnings from his bets. In May 1990, the Plaintiff won a substantial Six Up prize. This is evidenced by a deposit dated 8 May 1990 of HK$1,487,344 (the “Winnings”) into the Plaintiff’s bank account in Sin Hua Bank.

16.  On 3 August 1990, the Plaintiff transferred HK$269,560 from his Sin Hua Bank account (being part of the Winnings) to discharge the mortgage over the Matrimonial Home. The discharge was completed on 9 October 1990.

17.  At about that time, the Building (in the neighbourhood of the Matrimonial Home) was being developed and the uncompleted units were offered to be sold to the public.

18.  On 28 February 1991, D1, D3 and YKN each as purchaser signed a sale and purchase agreement with the Developer in respect of Flat 5A, Flat 6A and Flat 7A respectively. The purchase prices of the Flats were HK$645,428, HK$647,388 and HK$649,348 respectively.

19.  On 8 March 1991, D1 executed an equitable mortgage in respect of Flat 5A, D3 executed an equitable mortgage in respect of Flat 6A, and YKN executed an equitable mortgage in respect of Flat 7A, each for the grant of facility to the extent of HK$200,000 in favour of Kwangtung Provincial Bank. It is not disputed that the mortgages were, together with parts of the Winnings, used to finance the purchase of the respective Flats.

20.  On 28 April 1992, D1, D3 and YKN each executed the assignment of Flat 5A, Flat 6A and Flat 7A respectively as purchaser. On that day, D1 executed a further mortgage in respect of Flat 5A so that the general banking facilities were increased from HK$200,000 to HK$300,000. That additional HK$100,000 raised by the further mortgage was used to fund the legal costs, stamp duties, decoration and miscellaneous expenses for the three Flats.

21.  The parties agreed that the costs of the Flats are as follows:

	Flat 5A	Flat 6A	Flat 7A
Price	$645,428	$647,388	$649,348
Legal fees	$5,880	$5,880	$5,880
Legal fees for assignment (including stamp duty)	$23,077.5	$23,106	$23,136
Total acquisition costs	$674,385.5	$676,374	$678,364
Total	$2,029,123.5

22.  The Flats were rented out at times. The Plaintiff collected some of the rental income:

(1)  in respect of Flat 5A, from about July 1992 until at least 2016; D1 signed some of the rental receipts disclosed in these proceedings. D2 moved into Flat 5A in about 2019.

(2)  in respect of Flat 6A, from about July 1992 until Ngai Ling moved into Flat 6A in 2004. Ngai Ling still occupies Flat 6A (on D3’s case, with D3’s permission).

(3)  in respect of Flat 7A, from about July 1992 until YKN moved into Flat 7A in 2002. Flat 7A was sold by YKN to a third party in 2014.

23.  In July 1994, D3 went to further his study in the USA. He subsequently stayed in the USA and established his family there.

24.  On 13 February 1995, the mortgages over Flat 5A were discharged. Since then, the title deeds of Flat 5A were kept by the Plaintiff in a locked box (referred to in evidence as “鎖箱”) at the Matrimonial Home (“Locked Box”). Only the Plaintiff had the key to that Locked Box, where other important documents of the family members were kept together.

25.  In May 1995, D1 (as vendor) transferred to D2 (as purchaser) Flat 5A (“1995 Transfer”). The sale and purchase agreement and assignment for the 1995 Transfer were prepared by a law firm, Macksion Chan & Co (“MCC”). I will need to go into more details about the 1995 Transfer and the reason therefor later. It is not disputed that the stated consideration of HK$800,000 for the 1995 Transfer was never paid by D2 to D1.

26.  On 2 May 1996, the mortgages over Flat 7A were discharged. Since then, the title deeds of Flat 7A were kept by the Plaintiff in the Locked Box. YKN unfortunately became a drug addict and was heavily indebted to certain moneylenders. On 11 October 2006, YKN made a Statutory Declaration for loss of title deeds and created mortgages over Flat 7A. On 12 May 2014, YKN (as vendor) sold Flat 7A to an unrelated third party. For some time since 2014 (after Flat 7A was sold), YKN lived at the roof of the building where the Matrimonial Home is located (“Rooftop”).

27.  On 28 December 1998, all mortgages in respect of Flat 6A was discharged. Since then, the Plaintiff has been keeping the title deeds of Flat 6A in the Locked Box.

D.  APPROACH TO EVIDENCE

28.  The correct approach to the evidence is well established: Hui Cheung Fai v Daiwa Development Ltd HCA 1734/2009, unreported, 8 April 2014, §77; Lee Fu Wing v Yan Po Ting Paul [2009] 5 HKLRD 513, §53; Re Estate of Chen Yen Fei [2024] 2 HKLRD 858, §§23-26.

29.  First, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility.

30.  Second, in assessing the credibility of a party’s case on a particular issue, the court should take into consideration:

(1)  whether the party’s case is inherently plausible or implausible;

(2)  whether the party’s case is, in a material way, contradicted by other evidence (documentary or otherwise) which is undisputed or indisputable;

(3)  where it is shown that a witness has been discredited over one or more matters to which he has given evidence using the above tests. This is relevant to the assessment of his overall credibility; and

(4)  the demeanor of the witnesses.

31.  At trial, the Plaintiff and the three Defendants gave evidence.

32.  D1 gave his answers in a guarded manner, but I find him to be overall a truthful witness. D3 impressed me as straightforward and honest. He gave clear answers in a calm manner, including answers which at first glance may be detrimental to his case. D2 appeared more jovial and talkative than his elder brothers; overall, he gave consistent and clear answers.

33.  The Plaintiff was often evasive, self-contradictory and failed to answer the questions put to him, frequently digressing to repeat self-serving assertions. He showed an overall cavalier attitude in his recollection of events. I give a few examples:

(1)  It was the Plaintiff’s evidence that he was not aware of the 1995 Transfer until after the Divorce Proceedings in 2018 (§20 of the Plaintiff’s witness statement). When the Plaintiff was cross-examined as to how the 1995 Transfer could be completed by D1, D2 and MCC without the Plaintiff’s agreement and help, given that the title deeds of Flat 5A (required for the 1995 Transfer) were kept by the Plaintiff in the safe. The Plaintiff instantly answered that there was another safe deposit box at the Bank of China (where the Flat 5A title deeds were kept) to which D1 could have access to. That other safe deposit box was never alluded to in his previous evidence, nor supported by any document. Upon further questioning, the Plaintiff eventually admitted that there was no such other safe deposit box.

(2)  In the Financial Statement (“Form E”) dated 18 March 2019 filed in the Divorce Proceedings, the Plaintiff asserted that he was the 100% beneficial owner of the Matrimonial Home, despite that Madam Yip has been a joint tenant thereof since its purchase. This was to be contrasted from the position he took in the witness box.

(3)  In the same Form E, the Plaintiff asserted that he was a 71% beneficial owner of Flat 5A. This is inconsistent with his position in these actions that he is the sole beneficial owner of all three Flats. The Plaintiff stated in his supplemental witness statement that the clerk who helped him prepared the Form E wrote down 71% because it was not easy to locate all documentary support due to lapse of time, and that the Form E could be amended (“當時律師事務所的律政書記稱因年代久遠，不易找到所有供款皆由我付的證明，故此他便幫我寫下71% 的業權，並稱將來獲取進一步意見後可申請更改。”). I reject without hesitation this bare allegation by the Plaintiff (that essentially, the unidentified clerk just plucked a figure out of thin air for him). In fact, the Plaintiff made an admission in Part 5, Box 5.2 of the Form E that D1 repaid HK$200,000 of the mortgage loan for Flat 5A, which appeared to be the basis of the 29% reduction.

(4)  The Plaintiff’s said admission is inconsistent with his case in these actions, that he paid off the mortgages of the three Flats, that even if the mortgage repayments were made by the Defendants to the mortgagee, the Plaintiff would reimburse the Defendants in cash (this alleged reimbursement is another bare allegation).

34.  I have given the Plaintiff all due allowance, having considered his lack of formal education and age. However, in my assessment he is not a reliable witness. Insofar as his evidence is based on bare allegation and not supported by document or otherwise corroborated, I will be slow to accept it.

E.  THE COMMON INTENTION CONSTRUCTIVE TRUST (“CICT”)

35.  This is the Plaintiff’s pleaded case as to how the CICT came into being in his favour (§9 of the Consolidated Statement of Claim):

“(1) To better utilize and invest his available finance upon winning the 6Up prize, the Plaintiff planned to acquire Flat 5A, Flat 6A and Flat 7A at one go at a total price of HK$1,942,164… with a mortgage loan of HK$200,000 on each flat, which could be fully repaid from the rental income thereof in a few years;

(2) The Plaintiff was however informed by the Developer that each HKID holder was eligible to buy only one flat. As the Plaintiff was already holding the Matrimonial home jointly with Madam Yip, the Plaintiff considered that for his estate planning and management he may use the name of [D1, D3 and YKN] for the acquisition, who were then the only children having attained majority, while the beneficial interest remained with the Plaintiff;

(3) In about February 1991, the Plaintiff had a discussion with [D1, D3 and YKN] and [D2] (who had almost attained majority at the time) at the Matrimonial Home about his plan aforesaid. [D1, D3 and YKN] agreed and came to a common understanding with the Plaintiff that:

(a) the Plaintiff would use their respective name to acquire Flat 5A, Flat 6A and Flat 7A;

(b) the Plaintiff would pay the price and costs of the acquisition, with the assistance of a mortgage loan over each of the said flats, which was to be repaid from the rental income thereof; and

(c) the sole beneficial interest of the said flats shall belong to and remain with the Plaintiff.”

36.  It is quite clear that the Plaintiff claims a “first limb” CICT, that is, at a time shortly prior to the acquisition of the three Flats, the Plaintiff and his first three sons formed an express agreement, arrangement or understanding that the beneficial interests of the three Flats were entirety held in favour of the Plaintiff. Notwithstanding that, I will consider the whole course of conduct of the parties and adopt a holistic approach in my review of the evidence and assessment of the parties’ respective cases.

The trust over the Winnings as alleged by the Defendants

37.  The Defendants pleaded that the Yeung family’s practice was that the Plaintiff as the family head would be in charge of all family finance and would pull all financial resources together for the use and benefit of the whole family, forming a “Pool of Funds”. The Defendants claimed that the Plaintiff “assured them that [the Plaintiff] would make investment with the Pool of Funds and would use some of the money from the Pool of Funds to place bets in horse raising to make the Pool of Funds grow for them. In the premises, [D1, D3, YKN, D2 and Madam Yip] do not intend the Pool of Funds to be a gift of monies to [the Plaintiff] save and except the modest allowances to support [the Plaintiff]”.

38.  D2 and D3 pleaded as follows, “although the Plaintiff has not expressly recognized the contribution made by all family members in accordance with the Pooling Mandate, none of the family members had the intention to gift to the Plaintiff the funds contributed by them (save and except the modest allowances to support him as the father), and they at all material times retain beneficial ownership in the same funds contributed (the “Family Funds”), and hence (by the principle of tracing) the Family Winnings.”

39.  In gist, the Defendants argue that the Winnings (used to acquire the Flats) are not beneficially owned by the Plaintiff but amounted to trust assets held by the Plaintiff as trustee. The phrase “家庭基金” was repeatedly used in the Defendants’ witness statements.

40.  In evidence, D3 fairly accepted that the phrase “家庭基金” was used only during litigation, but not by the family members at the time. Whilst D3 and his siblings (and his mother, when she was still working) would give monies to the Plaintiff when the Plaintiff demanded so, there would be no fixed amount of contribution, and the Plaintiff would not explain how he used the monies given to him. D3’s evidence was that the Plaintiff would not account for the way he spent the family savings – he disliked the Plaintiff’s spending on gambling, but could do nothing about it, as the Plaintiff would lose temper upon being told not to gamble so much.

41.  Having reviewed the evidence, I accept the Defendants’ evidence that back in the 1990s and at the time of the purchase of the Flats: (1) the four older sons were working hard and substantially contributed to the family’s financial needs, and (2) as a practice, they would give monies to the Plaintiff when asked, and the Plaintiff would control the use of those monies. However, in my view, the suggestion that the Plaintiff held all monies given to him by his family members on trust and hence the Winnings generated therefrom became trust property in favour of the family members is far-fetched and not established on the evidence. This remains the case even though the four older sons might reasonably believe that they had a moral entitlement over the Winnings, given the contributions they gave to the family.

42.  In my view, this side question of the alleged trust over the Winnings does not determine the real issue. The legal or beneficial ownership of the Winnings did not determine the express common intention or arrangement as agreed by the family members relating to the entitlement over the three Flats.

The 1991 Declaration

43.  On the Plaintiff’s case, the express agreement he reached with his first three sons was entirely oral. However, the problem with the Plaintiff’s case is not only the lack of contemporaneous documentary support, but the fact that his case is contradicted by the available contemporaneous document.

44.  A key document close to the time of the purchase of the Flats is a hand-written declaration drafted in Chinese by D3 dated 22 February 1991 (“1991 Declaration”). It was signed by D1, D2, D3 and YKN, that is, all four older sons who were already working at the time. An agreed type-up version of the 1991 Declaration was produced to the court at trial, it reads:

“聲明書

由於楊江彬 楊江南，楊江艺之父楊（黃）文成用私人財產先行付以樓款。因此今後他們將有必要和有責任付还家父之所要求的款項。而这些樓宇法律簽字上是由江彬，江南，江艺各自私人拥有。但實质上是由江彬，江南，江艺，楊群宾合而拥有直至他們另购一层同样价值的樓宇給楊群宾私人拥有為止。

特此声明。”

45.  The gist of the Defendants’ evidence in this regard is that it was the express agreement among the four older sons and their father that the three Flats were beneficially owned by D1, D3, YKN and D2, although D2 was too young to be a registered owner of any of the three Flats. The brothers wanted to be fair to D2 (who were, although underage, already working and contributing to the family finance). The 1995 Transfer was made in circumstances where D1 was facing potential divorce and when he owed D2 about HK$108,000 (used to finance the purchase of certain property by D1’s wife). D1 therefore decided to fulfil the promise (as recorded in the 1991 Declaration) to give D2 a property (being Flat 5A) by transferring the same to him. D1 would lose out in this arrangement but he considered that he would accept it, given that he was the eldest brother and he received help from his brothers in other regards. D2’s evidence was that he readily agreed to this arrangement given that it would be his dream come true to own a property.

46.  The Plaintiff’s evidence in his witness statement was perplexing. He stated at §10 of his statement that after the alleged oral agreement (that all beneficial interests in the Flats remained with him), his four older sons wrote a declaration to him to prove that all the monies used to purchase the Flats were provided by him (“其後，他們亦私下寫了一張聲明書給予本人，證明購買該三個物業的款項全是本人私人財產付款。”). This entirely missed the point, because it ignored the crux of the 1991 Declaration which made clear the common intention that the beneficial interests of the 3 Flats rested with the four older sons, not the Plaintiff.

47.  At §13 of his supplemental witness statement, the Plaintiff stated “被告人聲稱他們有1個“4兄弟的協議”，這個我從不知情。其實直到今天我也不完全明白實際上那是怎樣操作。經律師解釋，我認為那與我當時所想，去作我的遺產的安排而在我去世前實質業權仍屬於我，兩者並無衝突。我當時只着眼於他們確認樓價是由我支付，至於他們之間所謂的協議，我根本不知，亦不明白。”. This bare denial by the Plaintiff does not sit well with the express wordings of the 1991 Declaration.

48.  During cross-examination, the Plaintiff admitted that he was in fact present when D3 drafted the 1991 Declaration at the Matrimonial Home, which contents were read aloud by D3 in the presence of the family members. It was a joyful occasion when the Plaintiff even drank some alcohol. He kept the signed 1991 Declaration in the safe, which he kept ever since. Indeed, the 1991 Declaration was item 19 of the Plaintiff’s List of Documents. Before these actions, the Plaintiff already referred to the 1991 Declaration in the Form E filed in the Divorce Proceedings.

49.  Comparing the explanation of the Plaintiff and the Defendants, I prefer and accept the evidence of the Defendants. The 1991 Declaration directly contradicts the Plaintiff’s version of CICT. The express common intention as evidenced by the contemporaneous record is that the beneficial interest of the three Flats did not rest with the Plaintiff, but his four older sons.

50.  For completeness, I note a dispute regarding the first sentence of the 1991 Declaration (“由於楊江彬 楊江南，楊江艺之父楊（黃）文成用私人財產先行付以樓款。因此今後他們將有必要和有責任付还家父之所要求的款項。”) The Defendants explained that D3 was worried that after the marriage of the three older brothers, their wives might take issue with their husbands’ buying a property for D2, hence it was mentioned in the 1991 Declaration that the Plaintiff was the source of the initial purchase monies for the Flats. The intended consequence was that the wives would not challenge the arrangement (as such objection would lead to a need to repay the purchase monies to their father-in-law). The Plaintiff disagreed; his case was that this first sentence was true, as the Winnings used to purchase the Flats belonged to him.

51.  On balance, I accept the Defendants’ explanation, noting that although their interest in the Winnings did not amount to a formal trust, they would justifiably consider that they had interests therein and drafted the 1991 Declaration in such a way to tackle the concern raised by D3. I note further that the ownership of the Winnings in any event did not dictate the common intention of the parties in relation to the entitlement over the Flats.

Why trust

52.  There is no document to support the Plaintiff’s allegation that the Developer imposed a rule that each Hong Kong Identity Card holder was eligible to buy only one flat. Even the details about what the Plaintiff was told was meagre. I reject the Plaintiff’s evidence in this regard.

53.  Even assuming that the rule alleged by the Plaintiff existed, both the Plaintiff and Madam Yip (being two Hong Kong Identity Card holders) could well be the registered holder of at least two of the Flats.

54.  The Plaintiff added a gloss in his supplemental witness statement, where he stated at §12 that even if the Developer did not impose the rule, he was already planning to use D1, D3 and YKN’s name to hold the three Flats, to avoid the costs and expenses to transfer the properties to them after he passed away (“其實就算發展商沒這樣說，我當時亦有打算用3個兒子的名字去持有5A、6A及7A以作我的資產及遺產的安排，而期間實質業權仍歸於我自己，將來若我去世，可免卻轉名、費用、花時間等麻煩。”) I found it improbable that the Plaintiff would (without legal advice) be able to consider such intricate matters on his own.

The Plaintiff’s first assertion of beneficial ownership in the Flats

55.  Since the Flats were purchased in the early 1990s, the Plaintiff first made the assertion that he has beneficial ownership of the Flats in the Form E dated 18 March 2019 filed in his Divorce Proceedings.

56.  In the decades before the Plaintiff’s first assertion of beneficial ownership, there were instances of dealings with the Flats which contradicted the Plaintiff’s assertion.

57.  First, Flat 5A was transferred from D1 to D2 in 1995. I find that the 1995 Transfer could not have been effected by D1, D2 and MCC without the Plaintiff’s knowledge and approval, as the title deeds of Flat 5A was kept by the Plaintiff in the Locked Box to which only he had access. The Plaintiff did not object to the transfer because he was aware of the agreement as evidenced in the 1991 Declaration.

58.  Secondly, I accept the Defendants’ evidence that they repaid the mortgages taken on for the purchase of the Flats, and let the Plaintiff collected rents (when available) which monies the Plaintiff pocketed. The Defendants’ evidence is supported by their bankbooks (which showed regular repayments of the mortgage loans), whilst the Plaintiff’s assertion that he reimbursed the Defendants in cash is unsupported by any evidence.

59.  Thirdly, Flat 7A were sold by YKN in 2014 (since when YKN moved from Flat 7A to the Rooftop). For some 5 years until 2019 the Plaintiff did not make any claim on the beneficial ownership over the Flats. I reject the Plaintiff’s evidence that he was not aware of the sale of Flat 7A. I accept D3’s clear recollection that Flat 7A had to be sold due to YKN’s indebtedness following his drug addiction; the Plaintiff was aware of this and suggested the other siblings to buy Flat 7A from YKN. That was not done because the other siblings did not have enough money at the time.

60.  Fourthly, contemporaneous letters between the Plaintiff and D3 showed that when the family was in need of money, there was a suggestion to sell Flat 6A and the Plaintiff asked for D3’s view as to this. D3 disagreed, and Flat 6A was not sold. Had the Plaintiff been the beneficial owner of Flat 6A, it would have been unnecessary to make enquires with D3. The Plaintiff was cross-examined on this specific point, but he did not give any legible answer.

61.  Lastly, the daughter had been occupying Flat 6A with the approval of D3 since 2004. Some photographs taken in 2017 or 2018 are produced in evidence, showing that the Plaintiff put up a lot of handwritten complaints on the door of Flat 6A, and wrote words of protests on the wall in the lobby area. The Plaintiff’s evidence in cross-examination was that he mainly complained that no money was paid to him by the daughter, rather than asserting that Flat 6A belonged to him.

62.  There was a suggestion in submissions that the Plaintiff in fact made such assertion in the handwritten complaints, but those words are not legible. However, even if one is to give the Plaintiff the benefit of the doubt, there is no record that he took issue with the daughter’s occupation of Flat 6A for over a decade. His complaints coincided with the Divorce Proceedings.

Inherent probabilities in the context of this case

63.  I find it inherently probable for the Plaintiff to decide to use the Winnings to purchase the Flats for his older sons, rather than keeping the Winnings for his own benefits.

(1)  Given the substantial contribution by the older sons to the family’s financial need, although there was not a formal trust on the Winnings, the sons would well have the expectation that the Winnings would be used for their benefit. This would be the case especially in circumstances where the sons already attained or was about to attain majority and would need their own home sooner or later.

(2)  I accept D3’s evidence that, had the Plaintiff decided to keep the Winnings for himself, there would likely to be a fall out between father and sons (“反面”). This would work against the Plaintiff, who had up to that stage all along been accorded great authority in respect of the family’s financial affairs.

(3)  Under the arrangement as claimed by the Defendants, the Plaintiff would not need to worry about buying a property for D2, which burden would fall on the lap of the three oldest sons. The burden of mortgage repayments for the three Flats would likewise fall on the lap of the three oldest sons.

Retention of title deeds

64.  The Plaintiff relies heavily on the fact that the title deeds of the Flats were retained by him, which he says is a strong indication of his beneficial entitlement in the Flats.

65.  Whilst the retention of title deeds is one of the factors to be considered, the weight and relevance is fact specific. In this case, there are other equally plausible reasons why the title deeds were retained by the Plaintiff. (1) The Locked Box was the only place at the Matrimonial Home to keep key documents. (2) It can be seen to be a habit of the family members to let the Plaintiff retain key documents such as bank passbooks. (3) I accept D3’s evidence that since the Plaintiff changed the lock of the Matrimonial Home in about July 2017, Madam Yip and the children were denied access to the Matrimonial Home and the Locked Box (hence the title deeds, alongside with other records).

The Plaintiff’s revised tables

66.  At closing, the Plaintiff submitted that “P does not advance an “all or nothing” case, for it asks this Court to declare that he has such interest in Flats 5A and 6A “in such shares as the Court shall determine” (CSOC prayer §(1) A/3/53-55). Even if this Court finds against P that he does not own 100% of the 3 Flats by reason of the mortgage repayment, there is ample and undisputed evidence to support a finding of common intention that P shall have some 66% interest …”

67.  The Plaintiff’s calculation was set out in a table at §12 of his written closing submissions, which was further amended by an Amended Table handed up during oral closing (the amendments are marked in underline below):

		Flat 5A	Flat 6A	Flat 7A
1.	First deposit sourced from the 6Up prize winning	$64,530	$64,800	$64,950
	Subtotal of item 1	$194,280
2.	Further downpayment sourced from the 6Up prize winning	$380,898	$382,588	$384,398
	Sub-total of item 2	$1,147,884
3.	Total downpayment by P  (% of total acquisition costs)	$445,428 (66.0%)	$447,388 (66.1%)	$449,348 (66.2%)
4.	Total bills for 3 Flats ($5,880)	5880	5880	5880
5	Sub-total of items 3 and 4	$451,308 (67%)	$453,268 (67%)	$455,228 (67.1%)
	Sub-total of item 3		$1,354,202
	Mortgage loan	$200,000 (31%)	$200,000 (30.9%)	$200,000 (30.8%)

68.  For the reasons set out in this Judgment, the Plaintiff failed to prove the CICT he claimed. The revised calculations do not change that conclusion. I note further that the Plaintiff’s reliance on prayer (1) of the Consolidated Statement of Claim does not assist, given that the common intention alleged by the Plaintiff (whether in pleading or his witness statements) had been that he was the sole beneficial owner of all Flats.

Other matters

69.  In light of my findings above, the Plaintiff’s claims on knowing receipt, dishonest assistance, the sham argument and his claims regarding the rental income do not arise.

70.  There are many peripheral disputes in this case, some of which I have mentioned in the course of this Judgment, for example, the family’s activities in China before they migrated to Hong Kong, and whether the Defendant was an addictive gambler. Other disputes included whether the Plaintiff was abusive towards his wife and children; the marital affairs of D1; who was the real owner of a company called Top Flight Industrial (HK) Co., and the re-mortgaging of Flat 6A for the benefit of this company. I do not find it necessary to make findings in those regards. For the avoidance of doubt, I have considered the arguments advanced by the parties and they do not affect the conclusions I have reached.

F.  Disposition

71.  The Plaintiff’s claims are dismissed.

72.  I allow the Counterclaim of D2 and D3, as follows.

(1)  There be a declaration that the 2^nd Defendant is the sole beneficial owner of Flat 5A.

(2)  There be a declaration that 3^rd Defendant is the sole beneficial owner of Flat 6A.

(3)  The Plaintiff do deliver the title documents of Flat 5A and Flat 6A to the 2^nd Defendant and the 3^rd Defendant respectively within 21 days of the order.

73.  I make a costs order nisi that the Plaintiff pays the costs of the 1^st, 2^nd and 3^rd Defendants, including all costs reserved, with certificate for counsel, to be taxed if not agreed. The Plaintiff’s own costs and the 1^st Defendant’s own costs be taxed in accordance with the Legal Aid Regulations.