IP MUK LAN v. The Personal Representative of the estate of IP SAU LAN (as the Executrix of the Estate of YIP CHOI KOON, Deceased)

HCA 1047/2018

[2025] HKCFI 1331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1047 OF 2018

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JUDGMENT

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A. Introduction

1.  This is the trial of the disputes between the parties in relation to the beneficial ownership of the property at Flat 4, 29^th Floor, On Yeung House (Block 2), (Including the planter/planter box appertaining thereto, if any) Cheung On Estate, No. 1 Tam Kon Shan Road, Tsing Yi, New Territories, Hong Kong (“Property”, or the “2904單位”) registered in the name of Yip Choi Koon (“Father”).

2.  Mr Ronald Pang with Ms Aria Cheung appeared for the plaintiff (“P”). The defendant did not appear.

B.  Procedural history

3.  Madam Ip Sau Lan (“Madam Ip”) was originally sued in her capacity as the executrix of Father.

4.  The trial was originally fixed and scheduled to commence before this Court on 15 January 2024.  It did not proceed smoothly, in circumstances described below.

5.  Between December 2023 and January 2024, Madam Ip on a number of occasions wrote to this Court and P.  She said that due to her poor health, she had been admitted into hospital a number of times, and had to carry out kidney dialysis at home.

6.  Given Madam Ip’s health condition, this Court on a number of occasions handed down pre-trial written directions on the conduct of the trial.  Amongst other matters, the hearing hours of the scheduled trial were adjusted to accommodate her treatment.

7.  Pursuant to those directions, the trial commenced on 15 January 2024 at 11:00 am.  Madam Ip did not show up.  Her son Cheung Hiu Wa (“Son”) did.  He informed the Court that Madam Ip had been admitted into hospital that morning.  He asked the case to be adjourned.  Mr Pang objected.  He referred to the case of Elijah Saatori v Raffles Medical Group (Hong Kong) Limited (HCPI 1114/2006, 5 September 2016).  He requested Madam Ip to be medically examined to confirm her competence or otherwise to attend court.

8.  Having considered the situation, noting that the case had been set down for 7 days, and not wanting to waste the scheduled time without good reasons, I directed Madam Ip to be examined by noon of 17 January 2024.

9.  On 17 January 2024, Madam Ip was examined by Dr. Celine Fan. In her report of the same date (“Dr. Fan’s Report”), Dr. Fan expressed the views and findings that Madam Ip was an end-stage renal failure patient who required continuous ambulatory peritoneal dialysis 3 times per day at in interval of 6-8 hours, that she was not fit to attend trial, and that her long term condition would be deteriorating and was irreversible.

10.  The matter resumed before this Court on 18 January 2024.  Mr Pang submitted that given Madam Ip’s health condition, the case ought not be adjourned indefinitely.  He invited this Court to allow the Son to act as Madam Ip’s McKenzie friend and commenced the trial.

11.  However, the Son refused to so act.  He placed before this Court a set of written submissions entitled “被告人就放棄遺囑執行人權利及放棄2904室的繼承權利之陳詞”(「放棄陳詞」).  It was said therein, inter alia:

3.  被告人陳詞，被告人現以因身體健康狀況日漸衰弱為理由，已沒有足夠行為能力出任遺囑執行人，以處理父親遺囑事宜。被告人現根據《香港法例第10章》《遺囑認證及遺產管理條例》第28條(c)及第29條向法庭申請放棄遺囑認證（遺囑執行人）權利…

…

5.  同時，就父親遺囑內的遺產，[2904單位]，本人放棄[2904單位] 的繼承權利，本人會明示以放棄聲明書的方式，或以家族安排契據 (deed of family arrangement) 放棄[2904單位]的繼承權利 …

12.  At that stage, this Court expressed the concern that Madam Ip might not have the mental capacity to make any informed decision on the matters expressed in the 放棄陳詞, or even to further participate in the trial.  The following parts of Dr. Fan’s Report were relevant and gave rise to the concern (emphasis added):

… she suffered from multiple late treatment complications [of her state III nasopharyngeal carcinoma], which included impaired hearing. …  Her hearing has been gradually deteriorating and is severely impaired …

…

Medical examination findings at my clinic on 17^th January 2024:

…

She was conscious with spontaneous eye opening, confused and obeyed commands. …

…

About half an hour later, she appeared more tired and was unable to sit upright.  Her son had to support her to keep her sitting on the chair, and her conscious level declined.  She closed her eyes but her eyes opened to speech.  She made incomprehensible sounds. … Blood pressure was taken for her and was unrecordable.  She was then carried to lie on a bench.  Ambulance was called for emergency care. …

13.  When the case resumed on 19 January 2024, having heard parties, and with agreement from the Son, I directed that Madam Ip be examined by a psychiatrist.  Having given further directions on the conduct of the trial, I adjourned the trial to a date to be fixed.

14.  On 23 January 2024, Madam Ip was examined by Dr. Gabriel Hung, a specialist in psychiatry.  In his report dated 24 January 2024, he expressed the view that “[Madam Ip] is not a mentally incapacitated person within the meaning of Order 80 rule 1 of the Rules of the High Court (Cap 4A). It is my opinion that she has a sufficient knowledge of the matters arising from HCA 1047/2018 and has the mental capacity to make decisions regarding this case.”

15.  There was a then a document entitled “被告人的意見書陳詞” lodge with this Court.  It was dated 28 January 2024.  It states, inter alia:

2.  被告人陳詞，被告人不同意恢復本案件審訊…

3.  同時，本人堅持放棄遺囑內的遺產之港物業的所有繼承權, 即 [2904單位] …

4.  [2904單位] 的分配問題，交由在生的5位直系家屬成員（母親、原告人、三妹葉芬蘭、四弟葉明、五妹葉香蘭），透過家庭會議方式，以討論解決分配問題，本人因已明示放棄 [2904單位] 的繼承權利，所以本人不會出席參與任何相關的討論，或表達任何意見。

5.  被告人在此明示拒絕承擔，相關 [2904單位] 轉讓的法律費用，及其他轉讓的費用（包括但不限於：補地價、印花稅及政府部門一切費用）。

16.  On 29 January 2024, Madam Ip passed away.

17.  Madam Ip had before her death made a will.  Her husband was named the executor.  No grant has however been sought.  He and his 2 sons with Madam Ip also informed P by letters of 6 February 2024 that they did not agree to be a defendant in the present action, did not consent to this trial continuing, would not apply to be the executor of Father’s will, disclaimed any interest in the Property forming any part of D’s estate, and in any event disclaimed all interest in the Property.  They also refused to bear any or any further costs in respect of the present case.

18.  By summons of 11 April 2024, P sought leave to proceed against Madam Ip notwithstanding her estate is unrepresented.  Alternatively, P seeks an order that an appropriate person be permitted to represent D for the purpose of this action. 

19.  The summons was heard on 16 May 2024.  Having considered Order 15 rules 7 and 15 and Lau Cho Kwan, Leo v Lau Siu Fan, Elaine [2021] HKCFI 3067 cited to me, and on the facts of the present case as summarised above, I was of the view this is an appropriate case for leave to be granted to P to proceed against Madam Ip notwithstanding that her estate is unrepresented.  I so ordered.  I also granted P leave to re-amend the name of the defendant into “The Personal Representative of the estate of IP SAU LAN (葉秀蘭) (as the Executrix of the Estate of YIP CHOI KOON (葉財官), Deceased)”, and that all other pleadings and documents already filed be deemed to be so amended.

C.  Resumption of the trial

20.  The trial resumed on 26 March 2025.  The defendant was not represented.

21.  I record that the Son and certain family members of Madam Ip were in court.  I in open court recapitulated to them in some details the procedural background leading to the resumption of the trial.  None of them said anything.

22.  I record that P’s legal advisers had omitted to effect the re-amendments I allowed them to make by the Order of 16 May 2024.  P belatedly on 20 March 2025 filed a summons for leave to make the re-amendment late.  I see no prejudice to the defendant.  I allowed the summons in terms, with no order as to costs.

23.  I record also that upon the absence of any representation of Madam Ip’s estate, Mr Pang asked that pleadings and witness statements previously filed by the defendant be expunged.  In relation to witness statements, I will make no reference to them, consistent with Order 38 rule 2A.  In respect of the pleadings, I see no reason why they should be expunged.  I may need to heed the nature of Madam Ip’s pleaded case when considering whether P is successful in proving her case, bearing in mind she is seeking declaratory relief.  I at the same time will however bear in mind that Madam Ip’s estate has called no evidence in any attempt to substantiate her pleaded case.     

24.  What was left was for P to prove her case.

D.  The family members

25.  Father passed away in January 2018.

26.  Father’s wife was Madam Liu Yuk Kam (廖玉金) (the “Mother”).

27.  Father and Mother had 5 children.  They are, in descending order of seniority Madam Ip, P, Ip Fan Lan (葉芬蘭, “芬蘭”), Yip Ming (葉明) and Yip Heung Lan (葉香蘭).

E.  The Property

28.  I set out certain particulars about the Property.  They are gleaned from the land search records[1] and certain related documents[2]:

(a)  The first owner of the Property was the Hong Kong Housing Authority (“HKHA”);

(b)  In December 1998, 2 persons unrelated to the present proceedings became the registered owners;

(c)  On 18 April 2006, HKHA issued a “Certificate of Availability for Sale” for Sale of Flats under Home Ownership Schemes Secondary Market Scheme.  It certified that the Property “be available for sale under paragraph 4(c) of the Schedule to the Housing Ordinance (Cap.283) as from 17/12/2000, subject to the Premium Liability to be assessed…”[3];

(d)  On 3 May 2006, the HKHA issued a “Certificate of Eligibility to Purchase”.  It certified that Father was eligible for the purchase of a flat under inter alia the Tenants Purchase Scheme (“TPS”);

(e)  Subsequently, Father in his name purchased the Property under the TPS. The Sale and Purchase Agreement was dated 12 June 2006.  The Assignment was dated 12 July 2006.  The consideration was HK$580,000;

(f)  Father has since then been the registered owner;

(g)  There had once been a Legal Charge registered against the Property (the “Legal Charge”).  It was dated 12 July 2006.  The Borrower was Father. The Lender was Hang Seng Bank Limited.  The loan secured by the charge of the Property was HK$522,000. 

29.  It is relevant to note that Father owned another property in Fujian (the “Mainland Property”).

F.  Father’s wills

30.  Father had made 2 wills:

(a)  The first one[4] (the “1^st Will”) was dated 27 July 2006.  It was drafted in English.  Ip Fan Lan was the named executor.  Only the Property was dealt with there.  It was devised and bequeathed to P;

(b)  The second one[5] (the “2^nd Will”) was dated 17 November 2017.  It was drafted in Chinese.  It revoked all his previous wills.  Madam Ip was the named executor.  Only the Mainland Property was expressly and specifically dealt with.  It was devised and bequeathed to Madam Ip.  The Property was not expressly or specifically dealt with, though clause 4 thereof said that “… 本人將所有本人沒有經此遺囑或任何遺囑更改附件處置的遣產（不論該遺產屬什麼性質或什麼類型，亦不論該遺產處於何地，總而言之包括一切本人有權處理或有權以遺囑或任何形式處置的財物）的權益及份額，在清付或償付了本人殮葬費用、遺產承辦和管理費用、債務及稅款後（下稱「該剩餘遺產」），將該剩餘遺產遺贈予[Madam Ip]獨自繼承及享用”.

G.  Parties’ pleaded case

31.  P’s case is that she had borne the purchase price of the Property, all related expenses, and all utilities charges.  She says that from day one, Father was not the beneficial owner.  She says that based on their agreement and common intention, Father and Mother could live there for life, but that Father (and now his estate) only held the Property as her trustee.

32.  Madam Ip did not deny that it was P who borne the purchase price, all related expenses, and all utilities charges.  She simply put P to strict proof.  Her main defence is that as Father’s right to participate in TPS was an one-off one, and that upon purchase of the Property, Father had lost that one-off right, such that Father “had obtained as [sic] least a substantial share (to be determined by the Court) in the beneficial ownership of the Property.”[6] (the “TPS Right Defence”).  Madam Ip further pleaded (the “Inaction Defence”), with reference to Father’s request made in about September 2017 to examine the 1^st Will, as follows:

21  (b)   The Defendant avers that [Father’s] request to examine the 1^st Will reflects more on the fact that [Father] had in mind to revoke the 1^st Will and to prepare a new Will (which he did on 17 November 2017), the obvious reason being the Fight and the generally bad relationship between the [Father] and [P’s husband] and [P’s son].

(c)  The Defendant avers that [P] knew / ought to know the reason why [Father] requested to examine the 1^st Will.  The fact that [P] did nothing to prevent [Father] to revoke the 1^st Will and/or prepare the 2^nd Will shows that [Father] was the beneficial owner of the Property …

It was then pleaded that P’s inaction “have / would have led [Father] to believe that he is the beneficial owner”, such that “it is unconscionable for [P] to suggest that she has beneficial interest” (§§25(b) and (c) of the Defence).

H.  The witnesses called

33.  P has called herself (who has given 1 witness statement, (“P/WS”)), her friend Madam Wong Siu Lin (“Madam Wong”, who has given 1 witness statement (“Wong/WS”)), and P’s daughter Ms Lim Lai Yee (“Ms Lim”, who has given 2 witness statements (“Lim/WS1” and “Lim/WS2”)). They have all adopted their respective statements as their evidence in chief. I have considered their evidence holistically.  Their evidence is consistent with contemporaneously documents and conduct, inherently probable, and does not suffer from any inconsistency, internal or external.  I find all 3 of them to be honest and reliable witnesses.  I accept their evidence.

I.  Consideration of parties’ cases in the light of the evidence

34.  In relation to the law on common intention constructive trusts, I have consider Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 which Mr Pang has cited to me.  I remind myself specifically of the observations of Godfrey Lam J (as His Lordship then was) at §§46 to 50, that:

46.  The focus of the inquiry is therefore on the elements that the plaintiff has to prove in order to establish a constructive trust in his favour.  In the context of this case, this means that the plaintiff must prove: (a) there was a common intention between him and the defendant that the plaintiff was to be the beneficial owner of the Property despite that it was acquired in the defendant’s name; (b) the plaintiff altered his position in detrimental reliance upon such common intention; and (c) it is unconscionable for the defendant to assert ownership in reliance on her legal title to the Property.

47.  In ascertaining whether there was a common intention, it is the objective intention of each party “which was reasonably understood by the other party to be manifested by that party’s words and conduct” that one must examine: Gissing v Gissing [1971] AC 886, 906; Jones v Kernott [2012] 1 AC 776, 794 [51].

48.  In the present case it is the parties’ common intention at the time of the acquisition of the Property that is relevant, there being no suggestion from anyone that the intention had changed.

49.  Such intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the property concerned based on evidence of express discussions.  It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention: Lloyds Bank Plc v Rosset [1991] 1 AC 107, 132–133.

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

35.  I have considered the totally of the facts and evidence.  I highlight the following, which I (save otherwise stated) specifically find and accept.

36.  P originally lived with his parents in a unit with a public housing estate at Tuen Mum.  Upon her marriage, she moved out and lived with her husband in a unit at On Yeung House, which she and her husband purchased under the TPS.  She from time to time came back to Tuen Mum to visit her parents.  It was a long travel.  As things happened, the Property became available for purchase.  But P was no longer eligible to purchase it under TPS.  P states at §§11 to 14 of P/WS as follows:

11.  因此，在2006年時我和芬蘭傾談後在屯門公屋單位內跟父母商量，提議他們一起搬到我所居住的屋苑裏，好使我可以更好的照顧他們。我覺得交租和供樓其實差不多，所以我又提議與其花錢租一個單位，倒不如直接買一個單位以租金作為供款更划算，所以我便向父母提議我用父親的名義以租者置其屋計劃購買2904單位給他們居住，父母初步亦同意我的建議。

12.  之後我們四姊妹(葉明不在場)及被告的丈夫和父母在屯門公屋單位內開家庭會議討論買樓一事，父母都同意我購買2904單位，給他們在該單位內居住直到他們百年歸老。我亦有建議相關的買樓安排：當時2904單位可透過租者置其屋計劃去購買，因為我和我丈夫已經在1998年時透過第一階段的租者置其屋計劃買了安洋樓910室(即我當時所住的單位)，未能符合資格，而父親則符合租者置其屋計劃的資格，所以我建議交出屯門公屋單位去申請購買2904 單位，相關買樓費用包括樓價則由我負責，我是2904 單位實際擁有人，而父母則可居住到他們百年歸老 (“該共識”)。當時芬蘭及香蘭都贊成該共識，最後父親決定贊成該共識。

13.  由於當時父親已經退休，較為空閒去處理相關事宜，而母親仍需工作較為繁忙，加上父親只是名義上擁有該單位，因此我決定只用父親名義去購買該單位。我於大約2006年7月12日用父親的名義以港幣580,000元購入安洋樓2904單位。樓價中的58,000元首期由我支付，其餘的522,000元則透過恒生銀行的樓宇按揭支付，由我負責支付該按揭供款。

37.  She says that she paid the deposit of HK$58,000 in 2 sums.  The first sum of HK$27,500 was paid on 9 May 2006, and the balance of HK$30,500 on 7 June 2006.  In respect of the that first sum, as the estate agent requested payment by cheque, but as P did not have a current account at that time, she requested Madam Wong to issue a cheque in that sum for her, which sum she paid back Madam Wong immediately that day.  Madam Wong confirms in evidence that arrangement, and identified when giving oral evidence the cheque concerned.  P says that she paid the balance by bank transfer from her Bank of China account.  She clarified that she had however lost the passbook of that account.  I have no reason to doubt her evidence in this regard.  Madam Wong also identified 3 other cheques which she issued on P’s behalf during that period, in the total sum of HK$15,200 for solicitors and estate agent fees. Madam Wong confirms that P had paid her back all the monies involved.

38.  P also, supported by contemporaneous documents, says that she had also paid in November 2006 cash HK$196,500 for renovation of the Property[7], and all the utilities charges[8] since.

39.  In respect the mortgage repayments, P says at §15 of P/WS that:

餘下的522,000元按揭我以月供大約6,000-7,000元供款至2015年完成。初期的按揭供款是由我提取現金到恒生銀行存入用父親名下登記的按揭戶口[number provided, but not reproduced here]去徽交，直至大約2011年2月，從那時開始按揭供款由我女兒林麗儀的匯豐銀行戶口[number provided, but not reproduced here]轉賬或現金存款至父親的恒生銀行戶口[number provided, but not reproduced here]，這是因為當時女兒加人工，而家用亦有所提升，並且提升至跟供款差不多，所以我要求女兒代我去供款。

40.  P’s evidence in relation to the mortgage repayments is supported by Ms Lim.  Ms Lim has also produced and identified her accounts statements in support (see §3 of Lim/WS1, and [C/37-79]).

41.  In respect of the 1^st Will, P says in §17 of P/WS as follows:

其後[Madam Wong]向我建議為確保父親離世後可將2904單位的登記名字轉回給我，父親應立一張平安紙在他百年歸老後將2904單位交回給我。我接納了黃小蓮的建議，並要求父親採納該建議，而父親亦同意這安排並在2006年7月27日立了一份遺囑，在百年歸老後交回2904單位給我 … 並將第一份遺囑交由本人保管，而訂立第一份遺矚[sic]的律師費600元亦由我在2006年7月27日以現金繳付。

42.  The timing of the 1^st Will is consistent with P’s version of events, which version I accept.

43.  In respect of the 2^nd Will, P says in §§25-27 of P/WS as follows:

25.  約2017年9月，父親要求我交出第一份平安紙給他看看。我問他看第一份平安紙的目的，他沒有說明，我亦沒有交出第一份平安紙，之後父親亦沒有再要求我交出第一份平安紙給他。不過他有跟我說要緊記該共識要容許給母親居住到百年歸老。

26.  於2018年1月11日父親在家中(即2904單位)半夜跌倒，我送父親入瑪嘉烈醫院，一直住院至2018年1月24日離世。

27.  父親離世當天，被告要求我交出父親證件，並透露父親已訂立另一張平安紙，而她是該平安紙的遺產執行人，及勸喻眾人不要花費太多錢於父親身後事，但被告沒有提供該平安紙給我查看或向我透露其他內容，這是我第一次得悉父親立下第二張平安紙，當天被告亦到2904單位點算父親的遺物。

44.  I also accept P’s evidence in relation to the 2^nd Will.

45.  If Father had been holding the Property on trust for P, the Property would not have formed part of his estate, and the Property would not be any of the assets for him to be disposed of by the 2^nd Will. 

46.  On the evidence, I accept P’s evidence on the existence of 該共識.  I accept in particular her evidence in summary[9], that:

在購買安洋樓單位之前我們討論過決定以父親的名義去買下安洋樓單位，這個買樓安排是父母同意的，而且我亦按這同意的安排去支付一切相關費用，因此父親是安洋樓單位的法定或名義擁有人，而我則是安洋樓單位的權益擁有人。

47.  I have considered the TPS Right Defence.  It is vague and unparticularised, and is not supported by any evidence.  Nor has any legal authorities been put forward in support.  I reject the same.

48.  I have also considered the Inaction Defence.  It is vague, unparticularised as to P’s alleged knowledge of the 2^nd Will, contrived, and not supported by any evidence or legal principles.  I accept in any event P’s evidence that she only became aware of the 2^nd Will after Father’s death.  I reject the Inaction Defence.

49.  Whilst I have specifically mentioned the TPS Right Defence and the Inaction Defence above, I record that I have considered Madam Ip’s pleaded case in its entirety to see whether P has proved her case.  Having considered all matters holistically, and applying the applicable legal principles, I find that P has proved her case on the basis of common intention constructive trust.

J.  Relief

50.  The main relief is sought in §(1) of the prayer that Yip Choi Koon holds the Property on trust for and on behalf of P.

51.  For the reason set out above, this Court makes a Declaration that Yip Choi Koon had during his life time been holding the Property on trust for and on behalf of Ip Muk Lan, and that upon his death, the estate of Yip Choi Koon holds the Property on trust for and on behalf of Ip Muk Lan.

52.  §(2) is further or alternative to §(1), which I do not see any need to address given the Declaration made above.

53.  §(3) seeks “All the necessary orders and/or directions for the transfer and/or conveyance of the Property to [P]”.  Mr Pang has not in his submissions specified any further order or direction which he invites this Court to make.  I at this stage make none.  I will however grant P liberty to apply.

54.  §(4) of the prayer is in the alternative, which I again do not see any need to address given the Declaration made above.

K.  Costs

55.  On costs, I order that the costs of the action, including any costs reserved, shall be borne Father’s Estate, to be taxed if not agreed, with, which Mr Pang accepted, certificate for one counsel only.