OSMAN MOHAMMED ARAB AND ANOTHER v. NG SHUI CHING, IRENE AND ANOTHER

HCA 311/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 311 OF 2014

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J U D G M E N T

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A. INTRODUCTION

1.  Mr Ng Shiu Kwan (“Mr Ng”) was declared bankrupt.  His trustees-in-bankruptcy (“the Trustees”) apply for an order to set aside the transfer of 2 assets from Mr Ng to the 1^st Defendant (“Mrs Ng”):

(1) 55% shares (“the Shares”) of the 2^nd Defendant (“Gain Whole”) transferred just 7 months before the petition for bankruptcy; and

(2) A vehicle (the Vehicle”) transferred just 3 ½ months before the petition for bankruptcy.

2.  The Trustees say that the transfer of the Shares was at an undervalue, constituted an unfair preference of creditors and was with intent to defraud creditors; and the transfer of the Vehicle was at an undervalue.

B. UNDISPUTED FACTS

3.  Gain Whole was incorporated on 23 April 1985.  It has been the sole registered owner of the property known in these proceedings as the Begonia Mansion since 27 May 1985. 

4.  The shareholding of Gain Whole had since changed over time.  By 6 September 2002, its total share capital had increased to 100,000 shares of HK$1.00 each, of which the additional 90,000 shares were allotted to Precision Investment Management Limited (“Precision”).  The shares held by Precision were transferred to Mr and Mrs Ng in equal shares on 7 May 2008.

5.  Immediately prior to 8 October 2012, Mr Ng held 54,999 shares in Gain Whole and Mrs Ng 45,001 shares.

6.  Mr Ng executed an Instrument of Transfer and Bought and Sold Notes, all dated 8 October 2012, transferring the Shares at the face value of HK$1.00 each to Mrs Ng (“the Transfer Documents”). 

7.  Separately, on 9 March 2011, the Vehicle was purchased under Mr Ng’s name at a consideration of HK$600,000.  Mrs Ng issued 3 cheques to the car dealer to settle the purchase price.  The Vehicle was transferred to Mrs Ng on 23 January 2013 at nil consideration.

8.  A bankruptcy petition was presented against Mr Ng on 9 May 2013, and a bankruptcy order was made on 10 July 2013.

9.  The Trustees seek to set aside the transfer of the Shares and the Vehicle, both of which took place within 2 years of the petition.

C. PARTIES’ RESPECTIVE CASE

10.  Mr and Mrs Ng’s case is that:

(1) During the period from June 2004 to October 2007, Mrs Ng advanced personal loans to Mr Ng for his general investment and business ventures, including investment in Precision and his cigar and wine business in Cigaros Inn Limited (“Cigaros”).

(2) Back in 2004, it was agreed that if Mr Ng was unable to repay Mrs Ng, he would transfer the Shares to her to set-off his debts (“the 2004 Agreement to Repay”).

(3) As of October 2007, Mr Ng’s debts owed to Mrs Ng totalled $4,404,644.70 (“the Loans”).

(4) In around 30 October 2009, Mr Ng and Mrs Ng agreed to set off the Loans by Mr Ng’s transfer of the Shares.

(5) A Declaration of Trust was executed on 1 November 2009 witnessed by Madam Yeung Yin Ling (“Madam Yeung”) and the Transfer Documents implemented the agreement to set off.

(6) The transfer of the Shares was thus supported by valuable consideration.

(7) Mrs Ng put the Vehicle under Mr Ng’s name to take advantage of a no claim bonus on insurance.  Mr Ng agreed to transfer the Vehicle back to her upon her request.  Accordingly, Mrs Ng has been the beneficial owner by way of constructive and/or resulting trust.

11.  The Trustees:

(1) Deny the need for loans;

(2) Deny the making of the Loans and put Mr and Mrs Ng to strict proof that the alleged cheques for the Loans had been honoured;

(3) Aver that the main source of funds for the alleged loans was Mr Ng and not Mrs Ng;

(4) Deny the existence of the 2004 Agreement to Repay;

(5) Deny the existence of the 2009 Agreement to set off the debts;

(6) Deny the validity of the Declaration of Trust;

(7) Aver that it was the Transfer Documents that transferred beneficial interest in the Shares to Mrs Ng;

(8) Aver that all transactions between Mr and Mrs Ng relating to finance, investment, properties, companies and assets fell within a Domestic Arrangement without intention to create legal obligations or consequences.

(9) Aver that the transfer of the Vehicle to Mrs Ng was part of the Domestic Arrangement.

12.  These assertions of the Trustees form issues of this case.

D. LEGISLATIVE PROVISIONS UNDER BANKRUPTCY LAW

13.  Section 49 of the Bankruptcy Ordinance (Cap 6) (“BO”) provides as follows:

(1) Subject to this section and sections 51 and 51A, where a debtor is adjudged bankrupt and he has at a relevant time (defined in section 51) entered into a transaction with any person at an undervalue, the trustee may apply to the court for an order under this section.

(2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that debtor had not entered into that transaction.

(3) For the purposes of this section and sections 51 and 51A, a debtor enters into a transaction with a person at an undervalue if-

(a) he makes a gift to that person or he otherwise enters into a transaction with that person on terms that provide for him to receive no consideration;

(b) he enters into a transaction with that person in consideration of marriage;

(c) he enters into a transaction with that person for a consideration the value of which, in money or money’s worth, is significantly less than the value, in money or money’s worth, of the consideration provided by the debtor.

14.  Section 50 of BO provides as follows:

(1) Subject to this section and sections 51 and 51A, where a debtor is adjudged bankrupt and he has at a relevant time (defined in section 51) given an unfair preference to any person, the trustee may apply to the court for an order under this section.

(2) The court shall, on such an application, make such order as it thinks fit for restoring the position to what it would have been if that debtor had not given that unfair preference.

(3) For the purposes of this section and sections 51 and 51A, a debtor gives an unfair preference to a person if-

(a) that person is one of the debtor's creditors or a surety or guarantor for any of his debts or other liabilities; and

(b) the debtor does anything or suffers anything to be done which (in either case) has the effect of putting that person into a position which, in the event of the debtor's bankruptcy, will be better than the position he would have been in if that thing had not been done.

(4) The court shall not make an order under this section in respect of an unfair preference given to any person unless the debtor who gave the unfair preference was influenced in deciding to give it by a desire to produce in relation to that person the effect mentioned in subsection (3)(b).

(5) A debtor who has given an unfair preference to a person who, at the time the unfair preference was given, was an associate of his (otherwise than by reason only of being his employee) is presumed, unless the contrary is shown, to have been influenced in deciding to give it by such a desire as is mentioned in subsection (4).

(6) The fact that something has been done in pursuance of the order of a court does not, without more, prevent the doing or suffering of that thing from constituting the giving of an unfair preference.

15.  Section 51 of BO provides as follows:

(1) Subject to subsections (2) and (3), the time at which a debtor enters into a transaction at an undervalue or gives an unfair preference is a relevant time if the transaction is entered into or the unfair preference given-

(a) in the case of a transaction at an undervalue, at a time in the period of 5 years ending with the day of the presentation of the bankruptcy petition on which the debtor is adjudged bankrupt;

(b) in the case of an unfair preference which is not a transaction at an undervalue and is given to a person who is an associate of the debtor (otherwise than by reason only of being his employee), at a time in the period of 2 years ending with that day; and

(c) in any other case of an unfair preference which is not a transaction at an undervalue, at a time in the period of 6 months ending with that day.

(2) Where a debtor enters into a transaction at an undervalue or gives an unfair preference at a time mentioned in subsection (1)(a), (b) or (c) (not being, in the case of a transaction at an undervalue, a time less than 2 years before the end of the period mentioned in subsection (1)(a)), that time is not a relevant time for the purposes of sections 49 and 50 unless the debtor-

(a) is insolvent at that time; or

(b) becomes insolvent in consequence of the transaction or preference,

but the requirements of this subsection are presumed to be satisfied, unless the contrary is shown, in relation to any transaction at an undervalue which is entered into by a debtor with a person who is an associate of his (otherwise than by reason only of being his employee).

(3) For the purposes of subsection (2), a debtor is insolvent if-

(a) he is unable to pay his debts as they fall due; or

(b) the value of his assets is less than the amount of his liabilities, taking into account his contingent and prospective liabilities.

16.  Section 60 of the Conveyancing and Property Ordinance (Cap 219) (“CPO”) provides as follows:

(1) Subject to subsections (2) and (3), every disposition of property made, whether before or after the commencement of this section, with intent to defraud creditors, shall be voidable, at the instance of any person thereby prejudiced.

(2) This section does not affect the law of bankruptcy for the time being in force.

(3) This section does not extend to any estate or interest in property disposed of for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the disposition, notice of the intent to defraud creditors.

17.  Under section 60 of the CPO, in cases with valuable consideration (as opposed to “unsupported by consideration”), an actual intent to defraud creditors must be shown and inference must be properly drawn from the available evidence: Tradepower (Holdings) Ltd v Tradepower (HK) Ltd (2009) 12 HKCFAR 417 at §88:

“…Where it is objectively shown that a disposition of property unsupported by consideration is made by a disponor when insolvent (or who thereby renders himself insolvent) with the result that his creditors (including his future creditors) are clearly subjected at least to a significant risk of being unable to recover their debts in full, such facts ought in virtually every case to be sufficient to justify the inference of an intent to defraud creditors on the disponor’s part. In cases falling outside the rule, that is, in cases where the disposition is made for valuable consideration, or where the disponor is not insolvent or where the disposition does not deplete the fund potentially available to the creditors, an actual intent to defraud creditors must be shown as an inference properly to be drawn on the available evidence before s.60 is engaged.”

18.  There is no dispute that Mrs Ng (being the spouse) and Gain Whole (of which Mr Ng had control) were “associates” within the meaning of sub-sections 51B(2) and (6) of BO.

E. CREDIBILITY

19.  This case depends much on the explanations of Mr and Mrs Ng to the 2 transfers.  The proper approach in making findings of fact and assessing credibility is as follows:

“(1) Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance.

(2) In deciding whether to accept the evidence of a witness, importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of such event.

(3) In determining the credibility of a witness, importance should be attached to the consistency of such evidence with other undisputed or indisputable evidence and the internal consistency of such evidence. The latter type of consistency is often tested by a comparison between the oral testimony of the witness and his or her witness statement.

(4) The truthfulness or reliability of witness cannot be determined solely or mainly from the appearance or demeanour of such witness.

(5) In any case where the credibility of a witness features prominently in the court’s determination, it is essential always to test his veracity by reference to the objective facts proved independently of his testimony, in particular, by reference to the documents in the case, and also to pay particular regard to his motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence, reference to the objective facts and documents, to the motives of the witness concerned and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth.”

Hui Cheung Fai v Daiwa Development Ltd, HCA 1734/2009, 8 April 2014, §§76-81, Deputy Judge Eugene Fung SC.

20.  The evidence of Mr Arab (one of the Trustees) was based largely on documents.  There is no issue as to his credibility.

21.  As for Mr and Mrs Ng, they have interest in keeping Begonia Mansion as their matrimonial home.  They may have motive not to tell the whole truth to help out each other.

22.  Mr Ng was an evasive witness.  He liked to make long or repetitive answers to avoid directly answering questions.  Some documents were only first produced at the trial, eg the certificate showing that he and Mrs Ng were shareholders of Precision (Exhibit PC).  His evidence of a Statement of Debts shattered his credibility.  I treat his evidence with extreme caution and look for corroboration.

23.  On the other hand, I find Mrs Ng to be truthful and direct although there were areas where she was not able to give a consistent or logical answer, eg as to the 2004 Agreement to Repay.

24.  I find Madam Yeung to be a truthful witness and I will explain further under Section L2 on the Declaration of Trust.

F. THE BIGGER PICTURE

25.  When assessing the credibility of the defence, I have borne “the bigger picture” in mind.  This was based on the facts established during the oral testimony, which I accept to be true.

26.  Since July 1997, Mr Ng had ceased being an accountant.  He did not have a business until he set up Cigaros in 2006.  He had properties leased out for rent and had to repay mortgages.  He invested in securities. 

27.  The Loans were the only loans from Mrs Ng supported by loan records. There were other monies or cheques given by Mrs Ng to Mr Ng after 2007 until 2013 without loan records.

28.  The couple used to have 6 properties prior to 2004.  Mr Ng was the one who repaid the mortgages except the ones in Primrose and Kornhill in which Mrs Ng housed her mother and aunt.

29.  By October 2009, 5 properties had been sold except Begonia Mansion.  (i) The bulk of the proceeds of sale of Jubilant Place amounting to $1,523,517.30 were given to Mrs Ng. (ii) Mr and Mrs Ng each had equal shareholding in Glory Rich and yet the proceeds of sale of 3A Primrose Mansion were all given to Mrs Ng, allegedly on an undisclosed trust by Mr Ng.  (iii) Mr Ng himself got 50% of the sale proceeds of Kensington Court and repayment of $1 million alleged director’s loan from the related corporate vehicles.  (iv) Two other properties were jointly owned and did not form the subject of cross-examination.

30.  By October 2009 (just before the Declaration of Trust was executed), Mr Ng had as much as $12 million cash.  He chose not to repay the Loans.  Mrs Ng asked for bought and sold notes but the Declaration of Trust was executed instead.

31.  There appeared to be no difficulty in preparing the Transfer Documents right away in 2009, if that was the intention.  Audited accounts of Gain Whole relevant to stamping were ready by 16 August 2010.  Any accounts asked for by the Stamp Office could have been easily prepared by Mr Ng as Gain Whole was a one-property company.

32.  The Declaration of Trust (2009) was not stamped but the Transfer Documents were (2012), based on par value of $1.00 per share.

33.  Mr Ng had to borrow even household expenses between 2004-2007.  Yet, having recovered from financial difficulties in 2009 and having $12 million cash, he injected $2.7 million into Cigaros, only to withdraw $2.6 million and allegedly spent it on entertainment and gambling.  The $12 million disappeared in 3½ years and he still owed Mrs Ng $4.4 million but for the transfer of Shares.

34.  I now analyse the issues one by one.

G. WHETHER THERE WAS A NEED FOR LOANS

35.  The Trustees denied that Mr Ng faced financial difficulty so as to require the Loans.  Precision was formed as a holding company to hold Mr and Mrs Ng’s property holding companies and to get a consolidated loan; it had no business of its own.  There was no evidence that Mr Ng was suffering from loss of profits in 2004.  

36.  I find, however, on Mr Ng’s evidence that with the outbreak of SARS in 2003, property and securities prices dropped significantly and so did rental income.  As agreed by the parties, a refinancing mortgage was taken out in July 2004 against Begonia Mansion.  Mr Ng ran into cash flow problem.  I find that he needed to borrow money for Cigaros, mortgage repayments, investment and general use.

H. WHETHER THE LOANS WERE MADE AND CHEQUES HONOURED

H1. Alleged mechanism for making the Loans

37.  Mr Ng made loan applications setting out the expected expenses for a particular month (“the loan applications”).  Mrs Ng would decide what items and amounts to “approve”. She would then write out the Cheques, pay cash or transfer money to Mr Ng.  A Cheque would be copied with the relevant loan application.  Mrs Ng would write on the copies “Loan to SK Ng” for Mr Ng to sign in acknowledgement.  Shortly after the Cheques issued in Mr Ng’s name were made, they would be cashed into Exhibit PB[1], ie Mr Ng’s savings account at the Bank of China (“the Passbook Account”). 

H2. Loan Records

38.  Mr and Mrs Ng’s case is purportedly supported by Exhibit PA.  This is not a perfect set of records.  As accepted by the Trustees, 28 Cheques had been deposited into the Passbook Account. However, 14 Cheques (“the Missing Cheques”) and 2 loans in cash could not be traced into the Passbook Account. 

39.  Out of the 14 Missing Cheques, 3 pre-dated the available Passbook entries and there was no proof of their being cashed.  Three Cheques were purportedly made out to Precision (“the Precision Cheques”).  Those 6 Cheques already made up more than 50% of the Loans. The Trustees disputed that the Missing Cheques and Precision Cheques had all been cashed. 

40.  The first indication by the Official Receiver or Trustees to set aside the transfer of the Shares was in about August 2013, close to the 7-year limit in which banks would keep records. The bulk of the Missing Cheques and all the Precision Cheques were beyond 7 years.  Understandably, Mr and Mrs Ng could not produce the full set of bank records as they should.

H3. The Precision Cheques

41.  Two of the Precision Cheques left out the word “Management” from the name of the payee.  One Cheque was amended by adding in the word “Management”.  There was no bank statement to prove that the Precision Cheques had been cashed.

42.  Precision had a long name.  Even Mr Ng himself had made a similar mistake in the annual return of Gain Whole.

43.  In the normal course of events, banks would hardly honour a cheque without the full name of the payee.  However, the couple explained that with their good relationship with the bank, the manager had called up to confirm the agreement of Mrs Ng to clear the Precision Cheques.  Mrs Ng was not able to remember if she had gone to the bank to add back “Management” and countersigned. 

44.  Mrs Ng explained that she only had very little money in her current account from which the Cheques were drawn. Whenever she made a loan she would transfer the corresponding amount to her current account.  If any Cheque was not honoured, Mr Ng would chase her for payment, especially given his pressing need for money.

45.  I do not see why Mr and Mrs Ng had to make up the Precision Cheques to meet this litigation. Mrs Ng did not even seem to know that Precision was half owned by her.

46.  It was discovered in the course of the trial that the original of page 423A had an HSBC account number of Precision that was covered up.  Because of the late discovery, the Trustees had not been able to verify if the Precision Cheques had been cashed in this account.

47.  Looking at the way the original 423A was placed amongst Exhibit PA, and the size of the original 423, the “covering up” was more a problem with careless copying than deliberate concealment by Mr and Mrs Ng.  In any event the most important information, ie the amount lent and the original pay-in slip was present.

48.  All the available Cheques were copied in the photocopying machine at home.  If Mrs Ng had made amendments to the Precision Cheques at the bank, she might not have copies. 

49.  On balance, I find that the Precision Cheques were genuinely issued and honoured. 

50.  Mr Hingorani further pointed out that the loan application for one Precision Cheque was headed “cigar business”.  He submitted that it was contrivance because there was no evidence of connection between Precision and Cigaros. 

51.  I do not accept the contention.  Mrs Ng never ran the 2 companies. I find that the Loans were made to Mr Ng personally, whatever business he was going to apply the money to.  I find support for this view in the Cheque dated 24 November 2006 for $300,000 [page 424] to Mr Ng, said to be a loan to Cigaros but with full guarantee from Mr Ng.

H4. The non-Precision Cheques

52.  Mr and Mrs Ng have produced the bulk of the Cheques even for 2005, more than 7 years before the Petition.  It was clear that they had kept copies of the Cheques at the time they were issued.

53.  All the available records of Cheque deposits were in sequence and made amongst other entries of the Passbook Account.  It was not possible for them to be made up.  This was helpfully set out in Ms Gwilt’s schedule to her closing submission.

54.  There were no loan applications for some copy Cheques, eg those dated 20 June 2004, 19 November 2004 and 22 April 2005.  I accept that Mrs Ng was not sure at the early stages for how long or how much more Mr Ng would borrow and it would not be surprising if there had been no loan applications.  There was no explanation for the Cheque in 2005.

55.  The initial 6 Loans were not made monthly, even for regular items like mortgage payments for the property of Mr Ng’s mother, maid salary and insurance.  The subsequent Loans were monthly, sometimes more than once a month.  Rental received by Mr Ng was deducted by Mrs Ng.  These supported the case that the Loans were on needs bases. Monthly payments could be paid off with surplus from previous Loans.

56.  Mrs Ng did not keep the original loan applications but copied them with the Cheques.  I see nothing sinister in it.

57.  It was rare for a husband to apply for payments from a wife, but the scribbles and superscripts support the evidence that Mr Ng was the author whilst Mrs Ng was the approving authority.

58.  The format of each loan application and copying was different.  On some of them, the month had been amended.  Mr Hingorani said it was inconceivable for Mr Ng to have gone “wrong” on so many loan applications if he really was the author.  I do not agree.  It was clear that the amendments were not mistakes but to align with the month of the relevant Cheque.

59.  I have alluded to the Cheque at page 424 in paragraph 51 above.  The loan application stated that it was a loan to Cigaros from Mrs Ng to be repaid by 6 instalments of $50,000 each, with interest at 4% per annum.  Mr Ng had signed to provide a personal guarantee.  This Cheque placed amongst Exhibit PA was clear proof that it was a loan with a common intention for it to be repaid.

60.  Having considered the imperfect record, I am satisfied on balance of probabilities Exhibit PA was a contemporaneous record.  The money was advanced and all the Cheques were honoured.  Regardless of the payee of the Cheques or borrower, Mr and Mrs Ng commonly intended Mr Ng to be the borrower.

I. WHETHER THE MAIN SOURCE OF FUNDS FOR THE LOANS WAS MR NG AND NOT MRS NG

61.  Mr Arab queried whether Mrs Ng had an independent source of funds to enable her to lend the Loans.  He believed that there was a purely Domestic Arrangement whereby Mrs Ng had control of the entire matrimonial pool of assets including proceeds of sale of properties. 

62.  On the other hand, Mr and Mrs Ng’s evidence was that their finance was separate from each other’s.  They had separate bank accounts although they also had a joint account.  In fact, Mr Arab also accepted that Mrs Ng might have funds of hers apart from “the common pool”.

63.  The evidence showed that Mrs Ng had worked her way up to being a General Manager at present.  She had her own investment in securities and IPO subscriptions.  She had deposits of about HK$7.3 million in 2005 and HK$6 million in 2007.  She did not know the income of Mr Ng, or that he had a Fullbright Securities account.

64.  A clear example of their separate finance was that upon sale of the properties in 2009, $1,500,000 from Jubilant Place and proceeds of Primrose were given to Mrs Ng, whereas Mr Ng had about HK$12 million which she did not “seize”, made up of (i) about $8 million upon sale of Kensington Court; and (ii) 2 payments from Sun Hung Kai Investment Services totalling about $4 million.

65.  There was absolutely nothing from the Trustees to support their wild assertion that Mrs Ng held all the “family funds”, releasing them to the Husband if necessary.

66.  In addition, Mr and Mrs Ng had different financial responsibilities. Mrs Ng maintained and housed her mother whilst Mr Ng did the same as regards his mother.  Mr Ng also bore the household expenses and mortgage repayments.

67.  I find that Mr and Mrs Ng did maintain separate finance.  Mrs Ng had the financial capability to make the Loans and the Loans were from her personally.

J. WHETHER THE 2004 AGREEMENT TO REPAY EXISTED

68.  The 2004 Agreement to Repay was not pleaded and so the evidence in that regard should be excluded.  However, for completeness sake, I just make a few observations.

69.  There were inconsistencies in Mr and Mrs Ng’s evidence.  In their witness statements, both of them stated that the 2004 Agreement to Repay was made before any Loan was advanced and Mr Ng agreed to transfer the Shares to Mrs Ng if he could not repay.  Under cross-examination, Mrs Ng shifted in her evidence, at one time saying that the Agreement was made after the first 2 Loans. 

70.  In answer to the court’s questions, she said that Mr Ng did not say what percentage share in Gain Whole he would transfer to her, just “all the shares”.

71.  Her witness statements showed that she had pressed for repayment in between 2007 and 2009 despite her own view that the repayment with the Shares was a “done deal”.  She refused to answer the question as to whether she would have accepted if Mr Ng had offered to repay with money, stating that it was “propositional”.

72.  It was inherently unlikely that they had agreed upon a transfer before the Loans were made when on Mrs Ng’s own evidence, she did not know for how long Mr Ng would borrow and how much more.

K. WHETHER THE 2009 AGREEMENT TO SET OFF THE LOANS EXISTED

K1. The defence case

73.  The existence of the 2009 Agreement was supported by 2 Emails; and 2 Statements of Debts dated 5 October 2009 (“the 1^st Statement of Debts”) and 30 October 2009 (“the 2^nd Statement of Debts”) respectively.  They culminated in the Declaration of Trust and the Transfer Documents.  Mrs Ng had since the 1^st Loan been repaying the mortgage of Begonia Mansion till now.

74.  According to Mr Ng, his financial position improved in 2009 after selling 2 properties.  To Mrs Ng’s knowledge, he had received proceeds of about HK$8 million.  He decided to keep the cash for his business but transfer the Shares to Mrs Ng to set off his debts.  The matrimonial home would be secure and need not be sold in case Mr Ng’s business failed.  In fact, Mrs Ng admitted that the security would be better by this arrangement. 

K2. The 2 Emails

75.  About 2 years after the last Loan was made, Mrs Ng sent 2 emails to Mr Ng.  There was no suggestion that the email accounts had been tampered with.  I accept the Emails to be genuine documents.

76.  The email to Mr Ng dated 1 June 2009 stated as follows:

“Have consulted auditor and cfmed (sic) that there is no need to pay any tax in case the transfer of shareholdership (sic) is between the existing shareholders. Only stamp duty is required. You are requested to prepare the bought and sold note for the three properties, ie Begonia Mansion, Primrose and [Kensington] Court. Also, I need to arrange the change of signature with the banks to be signed by me singly imm. Pls prepare the relevant documents. Irene”

77.  The email dated 5 October 2009 stated as follows:

“Lo Kun [presumably meaning husband],

As promised, you will arrange the transfer of 3A [Primrose] and 20B [Begonia Mansion] after the 11B [Kensington Court] is sold.  Pls arrange the necessary documents imm, Secondly, I am updating your loan statement and will be sent to you in the afternoon.  In addition, please have the 11B sold proceed to be ready for me.  Irene.”

Mr Ng even wrote and signed this note on the copy email:

“OK, I acknowledge receipt of this and promise to process the transfer of shares etc … ASAP.”

78.  In the 2 Emails, Mrs Ng had not demanded for repayment of any Loans, nor mentioned set-off.  She asked for transfer of more than one property, but 3A and 11B were eventually sold.

79.  Mr and Mrs Ng’s evidence was that shortly after the 2^nd Email, they went through Exhibit PA and compiled the Loans/Advances Summary.  The figures in the Summary tallied with the exact amount of the Loans.

80.  In about October 2009, they had also printed out information of comparable property prices from the internet.

81.  I find that plainly they had intended to transfer properties at that point in time and to set off the Loans.

K3. The 1^st Statement of Debts

82.  The 1^st Statement of Debts was amongst the papers that Mr Ng gave to the Official Receiver.  Mr Ng testified that it was for his own reference so that he could have a fuller picture of his properties and liabilities.

83.  Though prepared by Mr Ng, there were “mistakes” in 7 major items. It purported to set out monies owed to Mrs Ng in respect of Cigaros, mortgage repayments for various properties, rates and miscellaneous expenses from 2001 to May 2009 when Mrs Ng had not paid such monies except for the Loans.  There was also a reference to withdrawals from a BOCI account net of investment loss but Mr Ng testified that that account was Mrs Ng’s.

84.  Those could not just be mistakes of a “diligent and meticulous” person as Mr Ng described himself to be.  Some figures were exact, apparently copied from primary documents.  Mr Ng testified that he had turned to a passbook to ascertain the monthly mortgage amount and multiplied it by the number of instalments.  He had intended to show it to Mrs Ng and he was prepared to sign it. 

85.  The timing of the 1^st Statement of Debts was critical.  Mr Hingorani submits that the only reasonable conclusion was that that document was to hike up the alleged total debt as much as possible, demonstrate that all the assets Mr Ng had at the time (Begonia Mansion and proceeds of sale of Primrose) were to be disposed of in settlement of debts to Mrs Ng and place them out of reach of his creditors.  I agree that it may be a possible inference on the face of the 1^st Statement of Debts as Mr Ng’s explanations for it were completely unreliable.^..  

86.  However, Mr Ng testified that the 1^st Statement of Debts was not shown to Mrs Ng and she was not challenged in cross-examination.

87.  In my view, whether it was shown to Mrs Ng was irrelevant. Mrs Ng’s earlier Emails never requested for such a document as she had her own loan records. There was no evidence of her adopting the information in the 1^st Statement of Debts or was otherwise influenced by it in seeking transfer of the Shares to set off the Loans.

K4. The 2^nd Statement of Debts (Exhibits P275 and P275A)

88.  Mr Hingorani submits that the 2^nd Statement of Debts was another sham, as the Loans did not exist.

89.  I am unable to agree although it was vastly different to the 1^st Statement of Debts.  The 2^nd Statement of Debts evidenced an agreement to set off the Loans by transfer of the Shares.  As rightly observed by Mr Arab, whilst the 1^st Statement of Debts referred to alleged loans from 2001 up to 2009, the 2^nd Statement of Debts only carved out alleged loans for 2004-2007.

90.  To my mind, 2 things were clear in October: (i) since Mr Ng had cash but did not repay, Mrs Ng wanted something in return; and (ii) regardless of Mr Ng’s contribution to mortgage repayments in the past, or even in the absence of “loans”, Mr and Mrs Ng did intend to define their beneficial interests in Begonia Mansion.

91.  Further, the 2^nd Statement of Debts was witnessed by Madam Yeung, which I will analyze in the next Section.

L. VALIDITY OF THE DECLARATION OF TRUST (EXHIBIT P276)

L1. Admissibility of the Declaration of Trust in evidence

92.  The Declaration of Trust, which was chargeable with stamp duty, is inadmissible as it was not duly stamped: section 15(1) of the Stamp Duty Ordinance (Cap. 117).  However, the court may allow it in evidence upon the personal undertaking of a solicitor to cause the instrument to be stamped and to pay the penalty thereunder: section 15(1A)(a) of the Stamp Duty Ordinance.

93.  Mr and Mrs Ng’s solicitors were willing to give such a personal undertaking.  Mr Hingorani, however, invites the court not to accept the undertaking.  He submits that Mr Ng’s act of having the Transfer Documents stamped prevented the Declaration of Trust from being a valid document that passed beneficial interest in law; and it was not possible to pay stamp duty on the alleged Declaration of Trust as it would revoke the Transfer Documents. 

94.  With respect to Mr Hingorani, his propositions are not supported by authority.  Sub-sections 15(1) and (1A) only lay down a principle of evidence, not of deciding the beneficial interest.  I accept the solicitors’ undertaking and admit the Declaration of Trust in evidence. 

L2. Madam Yeung’s evidence

95.  Madam Yeung, the aunt of Mrs Ng, witnessed the execution of the 2^nd Statement of Debts and Declaration of Trust.  Madam Yeung was aged 67 at the time of the trial.  She was forthcoming and spontaneous in answering questions.  Despite her relationship with Mrs Ng, I have no doubt that she had no other motive but to tell the truth.  She had no reason to conspire with the Ngs to utter a false document.

96.  Madam Yeung’s evidence was inconsistent with Mr Ng’s in one aspect – the sequence of persons signing the 2^nd Statement of Debts. However, that inconsistency was immaterial.

97.  Her evidence as to when and how the Declaration of Trust came to be executed was detailed.  She gave a convincing reason as to why she could remember the execution by reference to the erroneous month on the document.

98.  Mr Hingorani completely avoided addressing her evidence for obvious reasons – she was highly credible and her evidence was weighty. I accept her evidence in entirety and find that 2^nd Statement of Debts and Declaration of Trust have come into existence on the dates stated on their face.  The effect was that the beneficial interest in the Shares passed to Mrs Ng on 1 November 2009.

M. THE TRANSFER DOCUMENTS

99.  Mr Hingorani queried why there had to be a trust arrangement when all that Mrs Ng asked for in the 1^st Email were bought and sold notes.  The 1^st Email anticipated the need to pay stamp duty.  The relevant audited accounts were ready but Mr Ng never submitted them.  He rather let the Stamp Office use 2012 accounts to assess stamp duty.  Mr Hingorani invites the court to draw the inference that no Declaration of Trust existed at the time Mr Ng made its first visit to the Stamp Office in mid-2011.

100.  Mr Ng testified that there was no immediate urgency to execute the Transfer Documents and he was distracted by other commitments.  In 2011, after numerous reminders from Mrs Ng for the transfer of shares, he made enquiries of the Stamp Office and came to know that the most recent audited financial statements for assessment were required and it took time for him to tidy up documents for audit purpose.

101.  Mr Ng’s testimony contradicted what he told the Official Receiver by a letter dated 1 August 2013, wherein he claimed that he had forgotten about the transaction for some time.  It was in early 2012 that he discovered from the minute book this outstanding transfer.

102.  This version to the Official Receiver was incredible.  Mrs Ng had issued 2 handwritten notes to Mr Ng in 2010 pressing him to effect transfer of the Shares. Read objectively, her tone was that of a creditor.  Mr Ng could not have forgotten.

103.  There might have been many reasons for the delay in stamping – no hurry to sell the matrimonial home, Mr Ng’s reservation of a right to redeem his interest in Begonia Mansion when it suited him, or even avoidance of stamp duty.

104.  Given my finding that the Declaration of Trust and the 2^nd Statement of Debts were genuine documents, the Transfer Documents were merely to effect the transfer formally.  Mr Ng’s unsatisfactory explanation for delay would not invalidate the trust.

N. GENUINE LOANS OR DOMESTIC ARRANGEMENT?

N1. Legal principles on domestic arrangement

105.  Family arrangements made without an intention to create a legal relationship nor consideration are not binding: Balfour v Balfour [1919] 2 KB 571 at 578; Chitty on Contracts, 32^nd ed, Volume 1, §2-178.

106.  However, Balfour does not prevent a husband and a wife from making a binding contract.  Whether a contract was made can be determined either by proving that it was made in express terms, or that there is a necessary implication from the circumstances of the parties, and the transaction generally, that such a contract was made (at p574, per Warrington LJ).

107.  Other factors may include the language that the parties used and the circumstances in which they used it: Parker v Clark [1960] 1 WLR 286, at 293.

108.  The lack of formality and precision in the arrangement is not necessarily an indication that no contract was intended. The subsequent conduct between the parties is also reflective of their intention when making the agreement: Jones v Padavatton [1969] 1 WLR 328 at 336.

N2. Analyses of the facts

109.  Mr Hingorani went into great details of the corporate and investment history dating back to the 1980s.  Put simply, Mr Ng “ran the show” in terms of property investment before 2004.  He handled the documentation and moved the shares of the corporate vehicles among him, Mrs Ng and Precision.  Mrs Ng did not even know that she was a shareholder of Precision at the time she made the witness statements. 

110.  Before the 1^st Loan was made, Mr Ng funded at least 4 properties (Begonia Mansion; Primrose Mansion; Jubilant Place and Kensington Court) but benefitted Mrs Ng in terms of shareholding and sale proceeds.

111.  The Loans were largely for recurring monthly expenses of a domestic and personal nature. 

112.  After 2009, Mrs Ng made payments from her personal account with BOCI (without documentary proof) into the joint account with Mr Ng at Fubon Bank, giving him liberty to make withdrawals purportedly for medical expenses for his mother and Cigaros without agreement as to repayment.  Mrs Ng’s testimony, which I accept, was that she had out of kindness given Mr Ng $1.8 million for her mother-in-law’s medical and related expenses.  She seemed surprised in the witness box that Mr Ng had used part of it on Cigaros without her consent.

113.  In 2009, 2012-2013, there were further monies handed over by Mrs Ng to Mr Ng amounting to about $715,500[2] in respect of which there was no loan agreement between them.  Mrs Ng also gave “rescue funds” to Mr Ng to relieve Cigaros from distraint.  There were no loans records for these funds. 

114.  These factors may point to the couple sharing assets and liabilities within a Domestic Arrangement.

115.  On the other hand, if there was only a Domestic Arrangement, there was no need to keep Exhibit PA at all.  Mrs Ng could have just given unlimited financial support to Mr Ng instead of asking him to do the humiliating exercise of justifying his monthly expenses.

116.  The Loans were not petty sums compared to Mrs Ng’s then income of about $30,000 per month.  The more substantial Loans of some hundred thousand or a million dollars were for a business which Mrs Ng did not take part in and did not anticipate to be profitable.  She even charged Mr Ng interest on one loan to Cigaros (paragraph 59 above). 

117.  The loans after 2009 fell into a different category.  By 2012/13, Mr Ng started having difficulty in repaying debts.  There were no other properties to which Mr Ng could have used to “set off” any loans.  The lack of loan documentation would not undermine Mr and Mrs Ng’s case on the Loans.

118.  Further, there was evidence that Mrs Ng was not informed by Mr Ng of the full picture on several aspects.  She left him to handle documentation.  For example, she did not know that he had spent $2 million odd on entertainment.  She was not told that he used part of the money for her mother-in-law on Cigaros.  She was not told of the writs issued by banks in 2013 until he became bankrupt.

119.  The evidence of Mrs Ng was not perfect but her evidence on the centerpiece about the Loans was credible.  Considering all the circumstances, and bearing in mind the bigger picture, I find that the Loans were real loans which Mr Ng had to repay.  Regardless of conduct before 2004, Mr and Mrs Ng intended non-repayment of the Loans to affect their rights in Begonia Mansion.  The 2009 agreement to settle was an independent agreement even without the 2004 Agreement to Repay.  Requiring someone to witness the execution of the 2^nd Statement of Debts and the Declaration of Trust was conduct of a debtor and creditor. The intention to create legal relations was plainly evidenced by the 2^nd Statement of Debts and Declaration of Trust if not already by Exhibit PA.  I reject the Trustees’ case of Domestic Arrangement or contrivance to build up an alleged total debt of over $4.4 million.

O. APPLICATION OF THE LEGISLATIVE PROVISIONS TO THE TRANSFER OF THE SHARES

O1. Section 49 BO – transfer at undervalue

120.  I find that Mrs Ng had provided consideration for the transfer of the Shares in the form of the Loans and her takeover of responsibility of the mortgage repayments for Begonia Mansion till now. 

121.  The Trustees and Mr and Mrs Ng’s valuations of Begonia Mansion (if sold with vacant possession) were similar, ie about $10.7 or $10.8 million respectively.  Taking into account the outstanding mortgage of $2.84 million, the net equity of 55% shareholding was just over $4 million.  Mr and Mrs Ng had fairly ascertained and used the October 2009 market price from the internet in creating the trust.  There was no transfer at an undervalue.

122.  In his closing submission, Mr Hingorani submits that $1,523,517.30 which Mrs Ng received in respect of Jubilant Place should be treated as partial discharge of the Loan.  I reject that contention. It was not the Trustees’ pleaded case.  Nor was it shown to be Mr and Mrs Ng’s common intention at the time of receipt of the money.

O2. Section 50 BO – unfair preference

123.  There was no unfair preference as Mrs Ng had provided full consideration for the Shares.  She was the only creditor of Mr Ng at the time the Declaration of Trust was executed until he borrowed from the Nanyang Commercial Bank in 2011, and other banks in 2012.   

O3. Section 51 BO – solvency or insolvency of debtor

124.  The trust was created more than 2 but less than 5 years before the date of the petition.  Mr Ng could have repaid Mrs Ng with his $12 million.  He was solvent at the time of the Declaration of Trust. 

125.  The true picture that emerged from the oral evidence, which I accept, was that Mr Ng had survived the hard times of SARS and financially restored himself by 2009.  He chose not to repay Mrs Ng but kept the substantial cash for his risky business in Cigaros and trading in margin account.  It was not the transfer of the Shares but the expansion of Cigaros which turned out to be unsuccessful that made him insolvent. 

126.  Section 51 BO was not established.

O4. Section 60 CPO – intent to defraud creditors

127.  There were plainly no creditors except Mrs Ng when the Declaration of Trust was entered into.  Even if she had received the Shares as a gift, I find no intent (whether objectively or subjectively) in Mr or Mrs Ng to defraud creditors: Tradepower. Section 60 CPO was not established.

128.  For the sake of completeness, the market price of Begonia Mansion had increased to $16.8 million in 2012, so the Shares would have been worth $7 million. Mr Ng had admitted in the questionnaire to the Official Receiver that he started being unable to repay debts since 2012.  If the Declaration of Trust did not exist or was otherwise invalid, he could hardly rebut the presumptions under any of the legislative provisions relied on by the Trustees.

P. THE CLAIM OVER THE VEHICLE

129.  It was not disputed that Mrs Ng had paid for the purchase price in full.  The sole issue was whether the Vehicle was held on constructive or resulting trust for Mrs Ng or was part of the Domestic Arrangement as alleged by the Trustees.

130.  What was relevant was the objective intention of each party, at the time of the acquisition, which was reasonably understood by the other party to be manifested by that party’s words and conduct.  A recent statement of the law can be found in Chan Hin v Chen Bai Dyi & anor, HCA 680/2014, 25 July 2017, Anthony Chan J.

131.  Given both parties had a common intention as to where the beneficial interest in the Vehicle should lie, there was little scope for the operation of resulting trust: Chan Hin, at §22.

132.  I have already found that Mr and Mrs Ng kept separate finance and rejected the suggestion of a Domestic Arrangement.  The Vehicle was clearly registered under Mr Ng’s name to take advantage of the no-claim bonus for insurance, as conceded by Mr Arab in cross-examination and as evidenced in the car sales contract. 

133.  Mr and Mrs Ng had signed a memo dated 18 February 2011 showing that Mr Ng was to hold the Vehicle on trust for Mrs Ng. There was no challenge to this document during cross-examination.

134.  It was only in closing submission that Mr Hingorani queried why Mrs Ng did not rely on her own claim bonus, a query never put to Mrs Ng in cross-examination.  I find no merits in the submission.

135.  I find that the common intention of Mr and Mrs Ng at the time of purchase was that Mrs Ng shall retain full beneficial interest in the Vehicle. Accordingly, the Vehicle did not fall into Mr Ng’s estate and the Trustees’ claim fails.

Q. CONCLUSION

136.  The transfer of the Shares was supported by consideration and did not violate any of sections 49, 50, 51 BO or section 60 CPO.  There was a common intention constructive trust for Mr Ng to hold the Vehicle on trust for Mrs Ng.  I therefore dismiss the Trustees’ entire claim.

137.  On a nisi basis, costs with certificates for 2 counsel should follow the event and be to the Defendants, payable out of the estate of Mr Ng.

138.  I thank counsel for their assistance.