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HCA 380/2014
[2020] HKCFI 2663
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 380 OF 2014
________________________
| BETWEEN |
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|
| |
KWOK SIU MUI, DIANA, the administrator of the estate of LEUNG SHUI LIN (梁瑞蓮), deceased |
Plaintiff |
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and |
|
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KWOK SIU YEE |
1st Defendant |
| |
KWOK CHUN SING |
2nd Defendant |
(by Original Action)
AND BETWEEN
| |
KWOK SIU YEE |
Plaintiff |
| |
and |
|
| |
KWOK SIU MUI, DIANA |
Defendant |
(by Counterclaim)
HCA 2492/2017
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 2492 OF 2017
_______________________
| BETWEEN |
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KWOK CHUN SING |
Plaintiff |
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and |
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KWOK SIU MAN VIOLA |
Defendant |
(Heard Together)
_______________________
Before: Hon B Chu J in Court
Dates of Hearing: 12 to 15, 18 to 22, 25 to 28 May, and 9 July 2020
Date of Judgment: 19 October 2020
_________________
J U D G M E N T
_________________
_____________________
Table of Contents
_____________________
A. Introduction
1. The parties herein are siblings. Their father Mr Kwok Heung Chuen (“Father”) and their mother Madam Leung Shui Lin (“Mother”), are now both deceased. There are presently two actions, which I shall refer to respectively as “1st Action” and “2nd Action”. The 2nd Action has been ordered to be heard and tried together with the 1st Action[1]. The references to the trial bundles in the 2nd Action will be prefaced with “2nd”.
2. The 1st Action was brought by the plaintiff (“Diana”) as administrator of Mother’s estate (“Estate”), initially against one of her younger sisters, namely Kwok Siu Yee (“Yee”), and later joining one of her younger brothers, Kwok Chun Sing (“Sing”) as a defendant. Diana claimed that they had misappropriated a sum of HKD 1m and interest thereon $8,560.43 from Mother/Estate. Yee and Sing both denied the claim.
3. Yee counterclaimed against Diana in the 1st Action for defamation.
4. Sing counterclaimed against Diana in the 1st Action for a declaration that he was the sole beneficial owner of the allegedly misappropriated sum of HKD 1m (“Disputed Sum”) and further sought a declaration that he was the sole beneficial owner of ½ share in a property held in Mother’s name known as Flat M, 21/F, Kam Shek Building on Shek Yam Road in Kwai Chung (“Kam Shek Property”).
5. In the 2nd Action, Sing claimed against his younger sister Kwok Siu Man Viola (“Viola”) for a declaration that upon Mother’s death, Viola was holding another property (which Viola held with Mother as joint tenants), namely Unit G, 9/F, Block 7, Tsui Chuk Garden, on Chui Chuk Street in Kowloon (“Tsui Chuk Property”), on a resulting trust in favour of Sing.
6. Thus, there are the following 4 disputed claims which this Court has to determine :
(a) The Money Claim – namely the beneficial ownership of the Disputed Sum Mother had transferred from her sole name savings account to her joint account with Yee;
(b) The Kam Shek Property Claim –namely the beneficial ownership of ½ share of the Kam Shek Property held in Mother’s name;
(c) The Tsui Chuk Property Claim – namely the beneficial ownership of the Tsui Chuk Property held in Viola’s name;
(d) The Defamation Claim – namely Yee’s claim against Diana for defamation.
7. Counsel Mr Timothy Lam appeared at the trial for Diana and Viola (collectively “D&V”) and Counsel Ms Winnie Chan appeared for Yee and Sing (collectively “Y&S”).
B. Brief Background
8. Mother was born in Hong Kong in February 1925[2] and received only traditional private tuition when she was about 5-6 years old. She did not receive any formal education and was illiterate. Mother married Father before she was 20 years old. Father was a police constable with the Hong Kong Police. From all accounts, Mother was a traditional Chinese woman and she was a housewife throughout her life, and as seen later, she was in charge of the family’s finances. Father and Mother had a total of 12 children out of their marriage, 4 sons and 8 daughters, but as set out below, one son died in 1996.
9. The children are set out below in order of descending seniority:
(1) Diana, or Kwok Siu Mui, born in about 1946, started to work as a primary school teacher in 1965, married in 1968, and now retired;
(2) Sing, or Kwok Chun Sing, born in March 1948, worked as a seaman from 1968 for 3 years and in 1972 he joined the Hong Kong Police as a police constable, and retired in 1995;
(3) Kwok Siu Yin (“Yin”), born in December 1949, started working in 1962 when she was 13 years old as a factory worker and later married in 1973;
(4) Kwok Siu Ching, (“Melissa”), born in June 1951, started working at age of 15 in 1966, married in 1976 and later moved overseas in 1997;
(5) Kwok Chun Kwong (“Kwong”), born in December 1952 who had worked as plumber in around 1971 but was addicted to drugs and later died of a drug overdose in 1996;
(6) Kwok Shiu Mei, Bianca (“Mei”), born in October 1954, started to work as a saleslady in 1970 and later married in 1977;
(7) Yee, or Kwok Siu Yee, Lilian, born in August 1956, started to work as a government primary school teacher in 1976, married in 1981, and became the school principal in 1998 until her retirement in 2011;
(8) Kwok Chung Hung (“Hung”), born in November 1958, started to work as an apprentice in 1973 and later joined the Hong Kong Police as a police constable, married in 1986, and now retired;
(9) Kwok Chun Hang (“Hang”), born in October 1960, started to work as a baker in 1977;
(10) Kwok Siu Ling, Regina (“Ling”), born in November 1962, worked as a clerk in 1979 and married in 1987, and later moved overseas in 1998;
(11) Kwok Siu Man, Viola (“Viola”), born in December 1965, started to work as a bank teller in 1983 and later as a flight attendant, married in 1996, and now retired;
(12) Kwok Siu Yung Cavila (“Cavila”), born in July 1968, started to work as a clerk in 1985 and married in 1993.
(the 11 surviving siblings will be collectively referred to as “Siblings”)
10. As seen above, the oldest of the Siblings, Diana, and the youngest, Cavila, are some 22 years apart in age.
11. The family was living in the Cheung Sha Wan Police Married Quarters before Father’s retirement.
12. Although there were some disputes as to the monthly income of Father and/or the amount of Sing’s contributions to the Mother when he was working as a seaman, it was not really disputed that the family finances were tight in the early days, and that the children when each of them started working would help the family voluntarily by contributing part of their monthly income to Mother (who was the one who managed the family finances) for the maintenance of the household.
13. Some of the older children started to work when they were very young. In particular, Yin started working at the age of 13 in 1962, and Melissa at the age of 15 in 1966. Except 3 of the sons namely Sing, Kwong (deceased) and Hang who never got married, the other children got married one by one and had their own respective families. It would appear that for those who got married and moved out of the family home, their contributions to Mother were reduced thereafter.
14. Hung is the only son who got married and he has two children, a son (“Tsz Chung”) and a daughter (“Wing Shan”).
15. Father retired probably in about 1971 (although according to Diana, it was in 1968) and the family then moved to live in a public housing unit in Lei Muk Shue Housing Estate. At the time of Father’s retirement in 1971, Cavila was only 3 years old.
16. In 1968, Sing started working as a seaman earning a stable basic salary and in addition, he received bonuses/allowances. According to Sing, he would give the whole of his basic salary to Mother, and any additional income/bonuses/allowances he would keep for himself. Later, in June 1972, he joined the Hong Kong Police earning a steady income and according to him, he had continued to give Mother the bulk of his salary. The extent of Sing’s contributions was disputed will be considered later in this judgment.
17. After Father retired, the income of the family came from Father’s monthly pension and the contributions of those children who were working. According to Diana, at the time Father retired, his monthly income was below HKD1,000.
18. Diana got married in 1968 and moved out of the family home. On 23 July 1980, Diana bought Kam Shek Property as her residence at a consideration of HKD 240,000[3].
19. Father died intestate in 1986, and at the time of his death, he left behind about HKD 40,000 to Mother. He did not leave any landed properties.
20. On 30 August 1986, Mother purchased the Kam Shek Property from Diana in the joint names of Mei and her husband Chan Cheuk Hon at a consideration of HKD240,000[4].
21. In 1988, Hang moved to reside in the Kam Shek Property and thereafter, Sing moved in and since then, both Hang and Sing have been residing there. Further, in 2003, Sing’s girlfriend Chew Nam Peng (“Chew”) moved in to cohabit with Sing at the Kam Shek Property, and has been residing therein since.
22. On 18 November 1989, the Tsui Chuk Property was purchased at HKD 476,600 in the joint names of Mother and Viola under the Home Ownership Scheme in exchange for Mother’s public housing tenancy. Since purchase, the Tsui Chuk Property had been the family home for Mother and the then unmarried Siblings.
23. On 11 June 1990, the Kam Shek Property was transferred to the joint names of Mother and Sing, as tenants in common, at a consideration of HKD 480,000[5].
24. Mother died intestate on 23 February 2013 at the age of 88.
25. The Siblings used to enjoy a harmonious relationship before Mother’s death. The present disputes arose soon after the death of the Mother.
26. In fact, on the day of Mother’s death, at around noon, Diana, Yee, Sing, Chew, Hung, Mei went to the Universal Funeral Parlour to arrange for Mother’s funeral and thereafter, according to Diana, she proposed to have a meeting at the Tsui Chuk Property to discuss Mother’s funeral matters. However, Yee said that she had another appointment and Sing said he had to go to buy incense and candles, and they then all appeared to have gone their separate ways. Later Diana found out in fact Yin and her husband, Yee and her husband, Yee’s daughter, Irene (the helper), Sing and Chew, Hang and Cavila had all gathered at the Tsui Chuk Property to open Mother’s locked drawer/s where Mother kept all her valuables (“Locked Drawer”) without notifying Diana (“Locked Drawer Incident”). The Locked Drawer Incident sowed the seeds of suspicion in Diana’s mind and she believed that Yee had a leading role in the Locked Drawer Incident. After Diana learnt of the incident, she suggested that a family meeting should be held.
27. The family meeting was held the day after Mother’s death, 24 March 2013, at the Tsui Chuk Property. This was attended by Diana, Sing, Yin, Yee, Hung, Hang, Viola, and Cavila and the respective spouses of Diana, Sing, Yin and Hung (“Family Meeting”). Yee was the one who was responsible for “主持及記錄” of the Family Meeting, namely the one who took charge and recorded the minutes of the Family Meeting, which she later typed up and circulated among the Siblings for them to sign (“Minutes”)[6].
28. It was disclosed by Yee during the Family Meeting that a sum of HKD 1m held in a joint account of Mother and Sing at the Hong Kong Shanghai Bank (“HSBC”) was withdrawn by Mother the year before (ie in 2012) and handed to Yee to place on time deposit at the Standard Chartered Bank (“SCB”) and that there would be about HKD 20,000 interest on maturity[7]. Further, Yee had told the others during the Family Meeting that as Mother seemed to be worried over her hospital expenses, it was suggested by Yee to Mother that as the fund held by Yee was all from the earnings of her children, her hospital expenses could be paid from that fund and that Mother had agreed. It was further disclosed by Yee that Mother had handed to her the key to the Locked Drawer at the hospital and that Mother had asked her and Sing to go and take stock of the contents of the Locked Drawer[8].
29. After Yee had prepared the Minutes and circulated the same, there had been comments and amendments, and although some of the Siblings who were present during the Family Meeting eventually did sign the final version[9], there were others who did not sign. It turned out later that Hung had secretly made a recording of the Family Meeting without the knowledge of those who attended and a copy of the transcript was later produced by D&V (“1st Transcript”). However, during the trial, Hung disclosed that his recording in fact had two parts, the 1st part was in relation to the Family Meeting, and the 2nd part was recorded when Hung went to the Tsui Chuk Property the following day, namely 25 March 2013, and met Sing there and there was a conversation between them. A copy of the transcript was then prepared and produced as exhibit P1 (“2nd Transcript”).
30. It was Diana’s evidence that allegations made by Yee about Mother’s money during the Family Meeting (after the Locked Drawer Incident) made Diana increasingly suspicious.
31. According to Diana, it was never her intention to take up the role as administratrix of Mother’s estate in the first place. It was not really disputed that, in early March 2013, some of the Siblings had attended the office of a firm of solicitors Messrs Lau & Ngan (“L&N”), to ask L&N to assist with the obtaining of the letters of administration of the Estate. It was Diana’s case that Yee’s original plan was that Sing should be the administrator, but Hung found this inappropriate and he objected. Yee and Hung then made a compromise and Diana was asked to be the administratrix. As there was no objection, Diana found herself being the one who then applied for the letters of administration.
32. Diana obtained the grant of the letters of administration of the Estate on 26 June 2013 (“Letters of Administration”)[10]. There was a schedule of assets and liabilities dated 23 April 2013 attached to the Letters of Administration (“1st Schedule”). The information of the balances in Mother’s bank accounts stated in the 1st Schedule was provided by Yee to L& N. In the 1st Schedule, only cash at bank as at date of Mother’s death was set out, and no landed properties were included.
33. Diana later filed an additional schedule of assets and liabilities dated 29 October 2014 (“2nd Schedule”). In the 2nd Schedule, the Kam Shek Property was set out under “Land and Buildings”. It was further set out under “Chose in Action” in the 2nd Schedule (i) the claim against Yee for a sum of HKD 1,008,560.43 and any profits derived therefrom held by Yee on trust for Mother under the 1st Action, and (ii) debts due to Mother by Cavila in the sum of HKD 1,300,000.
34. After Diana obtained the grant, she started to make investigations into Mother’s finances and affairs, and it was her case that she found that Yee’s disclosures during the Family Meeting were untrue.
35. This eventually led to the 1st Action being issued on 7 March 2014 by Diana as the administratrix of the Estate (“Administratrix”) to claim, amongst other things, a declaration that Yee was holding the Disputed Sum and any profits derived therefrom on trust of the Estate and also an order for all due account and inquiry of the Disputed Sum and any profits derived therefrom. Yee was the only defendant at the time. On 27 May 2014, Yee filed her defence and counterclaim, counterclaiming against Diana for defamation.
36. According to Diana, it was only after Yee filed her defence and counterclaim that Diana found out that on maturity of the time deposit, the Disputed Sum and interests thereon were later deposited into Yee’s sole account at SCB to mix with Yee’s own funds and later in September 2013, Yee transferred the Disputed Sum together with interests into the joint account held by Mother and Sing at HSBC which had by then changed into the joint names of Sing and Yee. The Disputed Sum was then subsequently withdrawn by Sing[11].
37. Thus, the Disputed Sum ended up in the bank account of Sing. Upon finding that out, on 5 January 2015, after obtaining leave, Diana amended her writ in the 1st Action to include Sing as 2nd defendant. Sing denied Diana’s claim and his case was that he was the sole beneficial owner of the Disputed Sum and interests thereon. Sing further counterclaimed for a declaration that he was/is the sole beneficial owner of ½ share in the Kam Shek Property.
38. In the meantime, on 11 April 2014, Viola issued an action under DCCJ 1375/2013 against Yin, Sing, and Cavila for defamation. Sing then counterclaimed against Viola over the Tsui Chuk Property.
39. On 1 September 2017, Sing’s counterclaim against Viola over the Tsui Chuk Property was transferred to the Court of First Instance, and on 1 November 2017, it was given the action number HCA 2492/2017, ie the 2nd Action herein with Sing being the plaintiff and Viola being the defendant.
C. Witnesses
40. On D&V’s side, apart from Diana and Viola, there was Hung who gave a witness statement and attended the trial to give oral evidence on behalf of D&V.
41. On S&Y’s side, Yee and Sing had each filed a witness statement and a supplemental statement. Yin, Melissa, Hang, Cavila had each given a witness statement but ultimately only Yin and Hang attended trial to be cross-examined. The witness statements of Melissa and Cavila were not admitted and were removed from the trial bundles.
42. Yee’s husband Mr Wong Chi Yin (“Wong”) also gave a witness statement and attended the trial to give evidence on behalf of S&Y.
43. There are two preliminary observations at this stage on the evidence for S&Y. First, on S&Y’s side, the respective witness statements of their witnesses, namely of Yee’s, Sing’s, Yin’s, Hang’s and Wong’s were all prepared in English, and bore no interpretation clauses. However, it transpired during the trial that some of those witnesses, including Sing, Yin and Hang are not well conversant with the English language and they all claimed that there had been Chinses interpretation at the time of their signing. Second, during the trial, Yee disclosed that there had been “備課會”, ie class preparation meetings, since 2014/2015 held between her, Sing and their witnesses including Yin, Hang, Cavila, and also Melissa when she returned in Hong Kong in 2017 for the preparation of their evidence and witness statements (“Preparation Meetings”).
D. The Money Claim
44. Before I set out the parties’ respective case in relation to the Money Claim, I will first of all set out Mother’s bank accounts at the time of her death.
D.1 Mother’s bank accounts
45. It was not disputed that at the date of her death, Mother held 3 savings accounts in her sole name at HSBC, each with a designated purpose (collectively “3 HSBC Savings Accounts”) and also a joint account with Sing at HSBC, as follows :
(1) a savings account with an account number ending in 7393 (“7393 Account”) which Mother used to receive her old age allowance and which had a balance of HKD 3,449.45 at date of Mother’s death[12];
(2) a savings account with an account number ending in 3879 (“3879 Account”) which Mother used to pay for the outgoings of the Tsui Chuk Property, and which had a balance of HKD 22,444.29 at date of her death[13];
(3) a savings account with account number ending in 2747 (“2747 Account”), which Mother had used for her savings and which had a balance of HKD 447,870.63 at date of Mother’s death[14];
(4) an integrated bank account held in the joint names of Mother and Sing with an account number ending in 833 (“833 Joint Account”), which was first opened as a Power Vantage account (with same account number) on 18 April 2005 in Mother’s sole name[15] (“833 Sole Account”), and on 6 October 2008, changed to become the 833 Joint Account which remained in the joint names of Mother and Sing at the date of Mother’s death until when it was changed to be an account (again with same account number) held in the joint names of Sing and Yee[16] (“833 S&Y Joint Account”).
46. In relation to the 2747 Account, as seen in Mother’s passbook and the HSBC History Record of Transactions from 1 January 2008 to December 2010[17] (“2747 Transaction Record”), the deposits therein were mostly by phone or by ATM, whereas withdrawals were mostly by transfers (to time deposits), probably by phone and sometimes in cash. Mother’s savings passbook however only showed transactions as from 18 April 2005 onwards. The opening balance on 18 April 2005 was HKD 57,149.17.
47. As for the 833 Sole Account, it can be seen on the Account Opening Form[18] that Mother was provided with a cheque book, an “Account Card” and “Account Card PIN” and further under “ATM Services”, the number of the 2747 Account was added to the Account Card of the 833 Sole Account. Mother was also stated under the “Introducer” section of the Account Opening Form to be “self-introduced” and the 2747 Account was stated[19].
48. It can be seen in the bank statement dated 17 May 2005 of the 833 Sole Account[20], which was one month after the date of opening that, as at that date, the total balance in the 833 Sole Account was HKD 458,185.68, comprising :
(1) a time deposit (“Time Deposit”) of HKD 200,000 placed for one month commencing from 18 April 2005, the date of opening;
(2) miscellaneous cash of (i) HKD 675.13, (ii) USD 3,986.01, and CAD 906.30 deposited on 25 April 2005;
(3) a “SID Deposit” of HKD 100,000 fixed for 3 years commencing from 14 September 2004 (ie prior to the opening of the 833 Sole Account) to 14 September 2007 (“HKD SID Deposit”);
(4) unit trusts of USD 15,494 (“Unit Trusts”).
49. On 17 June 2005, the Time Deposit of HKD 200,000 in the 833 Sole Account was increased to HKD 250,000 and in the 2747 Account, one can see there was a transfer of HKD 50,000 to a time deposit on 18 May 2005. By 17 September 2005, the Time Deposit in the 833 Sole Account was increased to HKD 350,000. Again in the 2747 Account, one can see there was a transfer of HKD 100,000 to a time deposit on 19 August 2005.
50. On 4 November 2005, a sum of HKD 550,000 was transferred from the 2747 Account to the 833 Sole Account and placed by Mother. It can be seen in the 2747 Account that out of the HKD 550,000, a sum of HKD 500,000 was in fact deposited into that account only 4 days earlier, by way of a cheque.
51. The sum of HKD 550,000 was placed on a time deposit under the 833 Sole Account from 4 November 2005 until 21 November 2005 and thereafter as seen in the bank statement of 17 December 2005 of the 833 Sole Account, it was then combined with the previous sum of HKD 350,000 and the Time Deposit became a total of HKD 900,000. The HKD SID Deposit remained at HKD 100,000 and the Unit Trusts remained more or less the same. The 833 Sole Account was then upgraded into a HSBC Premier account and the total balance of each month (including the balances of the 3 HDBC Savings Accounts) was reflected in the monthly statements thereafter.
52. As seen in the 17 March 2006 statement of the 833 Sole Account, the Time Deposit became HKD 950,000. It was possible that the additional HKD 50,000 came from the 2747 Account as there was a sum of HKD 42,967.67 which was transferred therefrom to a time deposit on 21 February 2006. By 13 April 2006, the Time Deposit became HKD 1m, and again it was possible that the additional HKD 50,000 could have come from 2747 Account as there was a sum of HKD 47,995.89 transferred out of the 2747 Account to a time deposit on 21 March 2006.
53. By 16 February 2007, the Time Deposit became HKD 1.1m, and again the additional amount could have come from the 2747 Account, as there was a sum of HKD 72,682.60 transferred to a time deposit on 30 January 2007.
54. Thereafter, the Time Deposit remained at about HKD 1.1m for awhile. On 14 September 2007, the HKD SID Deposit (HKD 100,000) in the 833 Sole Account matured and the Mother transferred the principal and interest totalling HKD 100,675 back to her 2747 Account on 17 September 2007 (“17.09.07 Withdrawal”). By November 2007, Mother had realised the Unit Trusts of about USD 16,000 and by 17 January 2008, she seemed to have bought some more USD, as there was a new SID deposit of USD 22,578 (“USD SID Deposit”), while the Time Deposit remained at about HKD 1.1m[21].
55. In the meantime, Mother continued to accumulate savings in the 2747 Account. By 17 May 2008, she had about HKD 178,000 in the 2747 Account, and in May 2008, she transferred HKD 90,505.15 from the 2747 Account to a time deposit and it would appear that this was added to the Time Deposit in the 833 Sole Account, which then became HKD 1.2m by 17 June 2008.
56. With a further transfer of HKD 98,190.16 on 27 August 2008 to a time deposit from the 2747 Account, the Time Deposit in the 833 Sole account became HKD 1.3m by 17 September 2008[22]. As mentioned earlier, on 6 October 2008, the 833 Sole Account was changed by Mother to the 833 Joint Account held by her and Sing.
57. It can be seen on the Account Opening Forms for the 833 Joint Account[23] Mother signed as “Principal/sole account holder” and Sing signed as “joint account holder”, with either one of them to sign.
58. After the 833 Sole Account was changed to the 833 Joint Account, the total monthly balance in the bank statements no longer included the balances in the Mother’s 3 HSBC Savings Accounts, which were held in Mother’s sole name. Prior to the 833 Joint Account being opened, as at 17 September 2008, the total balance on the statement as at that date was HKD 1,572,244.01 (including the balances in the 3 HSBC Savings Accounts)[24]. After the opening of the 833 Joint Account, as at 17 October 2008, there was a balance of HKD 1,490,978.08 (without including the balances in the 3 HSBC Savings Accounts) in the 833 Joint Account, with the Time Deposit of HKD 1.3m and the USD SID Deposit of USD23,013.74[25].
59. However, by 17 March 2009 the USD SID Deposit which expired on 4 February 2009 was not renewed and the amount was kept in the USD foreign currency account of the 833 Joint Account. Further, by 17 March 2009, the Time Deposit was reduced to HKD 1.1m, with HKD 203,927.61 from the Time Deposit having been withdrawn by Mother on 27 February 2009 and redeposited into the 2747 Account (“27.02.09 Withdrawal”).
60. As seen above, the source of the funds of HKD 458,184.68 at the time of Mother’s opening of the 833 Sole Account was unknown as it was not reflected in the passbook of the 2747 Account which only dated from 18 April 2005 onwards. After the opening of the 833 Sole Account, the funds came from mostly the 2747 Account, save an amount of HKD 500,000 from a cheque of which the source and/or issuer was unknown. Then, at the time of the opening of the 833 Joint Account, the balance in the 833 Sole Account (save those monies in the 3 HSBC Savings Accounts) would appear to be transferred to the 833 Joint Account.
61. It was not disputed that all the funds in the 833 Joint Account were deposited by Mother and Sing had not deposited any money into the account[26]. After it became a joint account, it was Mother who continued to manage and operate the account solely by herself. As at 17 September 2011 there was a total balance of HKD 1,313,667.20 in the 833 Joint Account and the Time Deposit of about HKD 1,120,000[27].
62. It was further not disputed that on 11 October 2011, the following 4 bank accounts (collectively “4 SCB Accounts”) were opened by Mother solely or jointly with Yee at Standard Chartered Bank (“SCB”):
(1) a HKD savings account of account number ending with 6069-6 in Mother’s sole name (“SCB Sole Account”), with a balance of HKD 200.41 at date of Mother’s death;
(2) a HKD savings account of account number ending with number 7460-6 in the joint names of Mother and Yee (“SCB Joint Savings Account”), with a balance of HKD 2,655.50 at date of Mother’s death;
(3) a HKD current account of account number ending with number 8589-0 in the joint names of Mother and Yee (“SCB Joint Current Account”), with a balance of HKD 100 at date of Mother’s death;
(4) a HKD time deposit account of account number ending with number 2901-3 in the joint names of Mother and Yee (“SCB Joint Time Deposit Account”), with nil balance at date of Mother’s death.
63. The 3 HSBC Savings Accounts, the 833 Joint Account and the 4 SCB Accounts were the only known bank accounts of Mother’s at the date of her death.
D.2 The movement of the Disputed Sum
64. The movement of the Disputed Sum together with interests thereon of HKD 8,560.43 which can be seen in Mother’s accounts is set out chronologically in the table below (“Table”) :
| Date |
Amount |
Transferred From |
Transferred To |
| 11.10.11 |
HKD 1,120,042.87 (on maturity of the Time Deposit) |
By Mother from 833 Joint Account |
2747 Account |
| 11.10.11 |
HKD 1,000,000 (Disputed Sum) |
Withdrawn by Mother from 2747 Account by cashier order |
Transferred by Mother to the SCB Joint Time Deposit Account, and the Disputed Sum together with another HKD 1,000,000 (said by Yee to be from Melissa), making a total of HKD 2,000,000 was placed on a time deposit for 6 months (ie maturity date on 11 April 2012) |
| 11.04.12 (maturity date) |
HKD 2,017,120.86 (on maturity of the time deposit in the SCB Joint Time Deposit Account) of which 50% was said to be the Disputed Sum and interests thereon, totalling HKD 1,008,560.43 |
SCB Joint Time Deposit Account |
SCB Joint Savings Account |
| 21.05.12 |
HKD650,000 |
Withdrawn by Yee from SCB Joint Savings Account |
Yee’s sole name account at SCB (“Yee’s SCB Sole Account”) |
| 01.06.12 |
HKD 350,000 |
Withdrawn by Yee from SCB Joint Savings Account |
Yee’s SCB Sole Account |
| 23.02.13 Mother died at age of 88 |
|
833 Joint Account (Balance of about HKD 192,603.63 (HKD 6,325.51, USD 15,065.88 and CAD 956.12)) |
Sing became sole surviving holder of 833 Joint Account |
| 11.07.13 Mother’s HSBC Joint Account was changed to 833 S&Y Joint Account |
About HKD 192,603.63 |
833 Joint Account
|
833 S&Y Joint Account |
| 05.09.13 |
HKD 1,002,887.67 |
From Yee’s SCB Sole Account |
To 833 S&Y Joint Account, the transfer alleged by Diana to be the 1st conversion of the Disputed Sum (“1st Conversion”) |
| 10.09.13 |
HKD 1,000,000 |
833 Joint S&Y Account |
Sing’s sole name account at DBS (“Sing’s DBS Account”) , the transfer said by Diana to be the 2nd conversion of the Disputed Sum (“2nd Conversion”) |
65. It was not disputed that after being withdrawn from Mother’s 2747 Account on 11 October 2011, the Disputed Sum was never returned to any of the bank accounts held in Mother’s sole name or the 833 Joint Account prior to Mother’s death, nor was it returned to the Estate after Mother’s death. In fact, the movement of the Disputed Sum and interests of HKD 8,560.43 after the maturity date of the SCB Joint Time Deposit was the main dispute.
D.3 Diana’s claim (in the capacity of the Administratrix)
66. Diana’s claim against Yee and/or Sing was essentially based on a breach of trust money being the Disputed Sum and conversion. Diana claimed against Yee and/or Sing, amongst other things, for (1) all due account and inquiry of the Disputed Sum, and any profits derived from the trust money as held by Yee or from the 2nd Conversion as held by Sing and an order for Yee and/or Sing to forthwith pay any sums found on the taking of all due account and inquiry; and further and/or alternatively (2) for damages and/or equitable compensation in the sum of at least HKD 1m from Yee for breach of trust and/or from Sing for knowing receipt of the 2nd Conversion, or money had and received; and alternatively (3) for an order Sing to repay to the Estate the Disputed Sum and interests[28].
67. During the trial, Diana clarified that her case was that Mother had retained beneficial ownership of the money in the 833 Joint Account in her lifetime and that Sing was only to have beneficial ownership of the balance in the 833 Joint Account as at the date of the Mother’s death (as seen earlier, about HKD 192,603.63), and that it was also Mother’s intention for Sing to use the balance given to Sing to look after all the other Siblings[29].
D.4 S&Y’s pleaded case
68. It was S&Y’s pleaded case in their re-re-amended defence and counterclaim (“RRADC”) that well before 8 October 2008, it had been the wish of Mother to have a joint account with Sing for the purpose of transferring to Sing the money she had saved or would save from time to time on behalf of Sing, and that Mother’s intention to have a joint account for this purpose was always known to Sing, Yin, Mei, Yee, and Cavila[30].
69. It was pleaded by S&Y that since the opening of the 833 Joint Account, Mother alone transferred funds into the 833 Joint Account from time to time and with the consent of Sing, managed the account and Sing neither put in any funds nor drew on the account[31].
70. It was averred by S&Y that it was the actual intention of Mother at all material times that Sing was the sole beneficial owner of the funds standing in the credit balance from time to time in the 833 Joint Account both during Mother’s lifetime and after her death[32]. Sing would rely on the presumption of advancement in his favour regarding the balance of the 833 Joint Account standing in credit from time to time[33].
71. It was further averred by S&Y that as part of the terms of Sing’s employment as a seaman, all his monthly salary of about HKD 660 was to be received by Mother in Hong Kong on his behalf, and that Mother used part of the salary Sing gave her when he worked as a seaman for the upkeep of the family and Mother saved up the free balance for Sing (“Savings”)[34] and that since 1972, after Sing joined the Hong Kong Police Force, he continued to give substantial part of his salary to Mother for housekeeping and the Savings[35]. It was then averred that at all material times, it was Mother’s intention to keep, manage, invest and hold the Savings as trustee for the benefit of Sing[36] (“Trustee”). S&Y also averred that between 1972 and 1974, Mother had with Sing’s consent invested the Savings by various means including gold trading and made substantial profits therefrom[37] (“Profits”). The Profits were held in trust by Mother as the Trustee for Sing. To act on the above intention as the Trustee of the Savings and Profits, on or about 18 April 2005, Mother in her own name opened the 833 Joint Account and deposited into it the Savings of which Sing was the sole beneficiary, and that the joining of the Sing as co-holder of the 833 Joint Account was for his formal entitlement to the Savings, and since then, all dealings of the account had been with the consent of Sing[38].
72. Thus, according to S&Y, Sing was the sole beneficial owner of the funds as from 18 April 2005, ie the date of opening of the 833 Sole Account which later became the 833 Joint Account, and that this was because of Mother’s intention to return Sing’s Savings and the Profits to Sing. This was S&Y’s primary case (“Primary Case”).
73. It was then S&Y’s alternative pleaded case that Mother made a gift of Sing’s Savings and the Profits or the balance of it in the 833 Joint Account to Sing by making him a joint tenant of the joint account, and that the said gift was made in return and as a sign of gratitude for the contributions Sing had made towards Mother and the family throughout the years[39] (“Alternative Case”).
D.5 The legal principles on joint accounts
74. Ms Chan had referred the Court to a recent Privy Council Gany Holdings (PTC) SA v Khan (BVI) [2018] UKPC 21, which set out the proper approach in determining ownership of joint accounts[40]:
“17. It is convenient to begin with a re-statement of the basic principles by which equity (which in this respect is shared by England and Wales and the British Virgin Islands) provides for identification of beneficial interests arising from a gratuitous transfer of property. First, if either the transferor or the transferee makes a written (or oral) declaration as to those beneficial interests, or they do so together in an agreed form, thatwill generally be decisive, regardless of the subjective intentions of either of them: see for example Whitlock v Moree [2017] UKPC 44. Secondly, in default of any such declaration, the court looks for evidence from which a common intention as to beneficial ownership may be inferred. This may include evidence of statements made by either party before, at the timeof or even after the relevant transfer, the parties’ conduct, and the factual context in which the transfer takes place. Sometimes, a choice between possible conclusions as to beneficial interest may properly be arrived at by a process of elimination, whereby the most unlikely conclusions are first removed, leaving the least unlikely as the correct one. Finally, recourse may be had to time-honoured presumptions, such as the presumption ofadvancement or the presumed resulting trust, where there reallyis no evidence from which an inference as to common intention may properly be drawn. But these are, in modern times, a last resort, now that historic restrictions on the admissibility of evidence have been removed, and the forensic tools for the ascertainment and weighing of evidence are more readily available to the court.”
75. The above paragraph was cited by Deputy High Court Judge Paul Lam SC in his judgment in Sam Sien San Albert v Sam Mo Yee [2019] HKCFI 764, HCMP 1203/2016 (22 March 2019)[41].
76. DHCJ Lam had referred to paragraph 29 of an earlier Privy Council’s judgment, namely Whitlock v Moree [2017] UKPC 44, which stated as follows:
“The application of this simple analysis based upon established principles about the ascertainment of beneficial interests in co-owned property leads the Board to this conclusion: that where two or more holders of a joint account all sign an account opening document (or separately sign identical documents) which, on their true construction, declare or set out their respective beneficial interests in the property constituted by the account (loosely, the money in the account), then those are the beneficial interests of the account holders, pending any subsequent variation of them by agreement or otherwise, and an examination of the subjective intention of the account holders, or of those of them who place money in the joint account, is neither relevant nor permissible. Still less is recourse to the doctrine of presumed resulting trusts permissible, because the potential beneficial owners have declared what are their beneficial interests by signed writing. …” (emphasis added)
77. DHCJ Lam however had pointed out that the Privy Council’s judgment in the Whitlock case (by a 3 to 2 majority) may not be easily reconciled with the following judgment of A To J in Nanyang Commercial Bank Ltd v Personal Representative of Vannee Nativivat [2013] 2 HKLRD 749 paragraph 29, page 763:
“ Thus, the general principle is that beneficial entitlement of fundsin a joint account is to be determined by the common intentionof the account holders. A survivorship clause, without more, is just a contractual arrangement between the bank and the joint account holders as to how to deal with the money in the joint account. It is not conclusive evidence of the parties’ intentionas to ownership of the money in the joint account. The parties’intention overrides the survivorship clause. In drawing inferenceof common intention, greater weight is to be given to the sourceof the funds in the joint account and the presumption of resultingtrust in favour of the joint account holder who provided the funds than to the survivorship clause. At the highest, survivorship clauses indicate a prima face intention only, which is by no means conclusive and can be easily displaced by the circumstances.” (emphasis added)
78. With all the above in mind, I turn to the present case.
D.6 The Account Opening Forms
79. It was S&Y’s pleaded case that in relation to the 833 Joint Account, both Mother and Sing had signed mandate to HSBC agreeing to be subject to the “General Terms and Conditions” as from time to time varied by HSBC and the relevant terms and conditions set out included[42]:
(1) upon the death of any one of the joint account holder, HSBC would transfer any credit balance of the joint account to and any other applicable account to the order of the survivor;
(2) the joint account holders were jointly and severally liable with each other for the obligations and liabilities in connection with the joint account
80. In paragraph 169 of her Closing Submissions, Ms Chan submitted that Mother’s declaration made in the Account Opening Form was sufficient to establish Sing’s sole ownership of the money left in the 833 Account at death of Mother[43].
81. When Mother decided to add Sing’s name and to open the 833 Joint Account on 6 October 2008, she and Sing had signed 3 forms as follows:
(1) an “Integrated Account Opening Form”[44];
(2) a “Change of Personal Account Ownership And/Or Signing Instruction Request Form”[45];
(3) an “Integrated Account Opening/Conversion Form- Investment Services”[46].
82. First of all, although the account number ending with “833” remained unchanged, whether 833 Sole Account or 833 Joint Account (and probably also 833 S&Y Joint Account), on the change of holders, a new account opening form was required by HSBC to be signed, which seemed to indicate that the 833 Joint Account was regarded as a new account by the bank.
83. Paragraph 2 of the declaration in Form (1) above included a confirmation that the account holders had read and understood the Integrated Account Terms and Conditions (“Account Conditions”) and agreed to be governed by them[47]. S&Y had produced during the trial a copy of the Account Conditions in English[48]. Section 1.7 set out the Account Conditions in relation to “joint accounts”, and in particular, it stated under (e) thereunder:
“Upon the death of any of you [the joint account holders], we [HSBC] will transfer any credit balance on an applicable Account to the order of the survivor[49]…”
84. There was in fact no evidence as to whether the Account Conditions were the same as those in force at the time when the 833 Joint Account was opened.
85. Assuming the Account Conditions were the same as those in 2008, I do not find that that Form (1) (including section 1.7(e) of the Account Conditions) can be described as a document which on its true construction can be said to have declared or set out the respective beneficial interests in the monies held in the 833 Joint Account as that described in the Whitlock case. In any event, it only applied to the credit balance as at the date of death of one of the joint holders.
86. Further, although it was not in fact pleaded or relied upon by S&Y, I also note that Form (2) contained in English “Request to Change the account ownership from sole to a joint account with either signature to operate”, but in Chinese, the “account ownership” was translated merely as “戶口持有人”, which would not appear to refer to any ownership and would appear to only refer to the “account holder”. Notwithstanding the English wording, I do not find that the request stated in this form could be described as having declared or set out the respective beneficial interests of the joint account holders in the monies held in the 833 Joint Account as described in the Whitlock case.
87. Having considered all the bank documents, I find that Mother’s declarations in the Account Opening Forms of the 833 Joint Account and the Account Conditions in relation to joint accounts would not be sufficient to determine the beneficial ownership of the monies in the 833 Joint Account, save that the balance at the date of death of one holder would be to the order of the surviving joint holder. This was not disputed by Diana, and as said earlier, Diana was further not disputing that the balance as at the date of Mother’s death was to go to Sing, save that it was her case that Mother’s intention was that Sing was to use the sum to help those of the Siblings who would be in need. In any event, Diana has not made a any claim against Sing for the return of the balance of about HKD 192,603.63 in the 833 Joint Account at the date of Mother’s death.
88. As accepted by Ms Chan, Mother’s declaration made in the Account Opening Form would not be enough to determine the beneficial ownership of the Disputed Sum which left the 833 Joint Account before Mother’s death and Ms Chan submitted that to resolve the ownership of the Disputed Sum, the Court would need to “look for evidence from which to infer the intention of the mother that the [Disputed Sum] belonged to 833 Account”[50].
D.7 Whether the Disputed Sum came from the 833 Joint Account or the 2747 Account
89. Ms Chan had argued that that the Disputed Sum was in effect transferred from the 833 Joint Account as it was only in the 2747 Account for a very short time, namely about an hour, before it was withdrawn by Mother by a cashier order and deposited into the SBC Joint Time Deposit, and therefore the Disputed Sum should be regarded as having come from the 833 Joint Account. The transfers were recorded in the bank documents and set out in the Table earlier. By the time of the trial, there was really no dispute as to the sequence of the transfers and that the Disputed Sum was transferred from the Time Deposit in the 833 Joint Account into the 2747 Account before being withdrawn and deposited in the SCB Joint Time Deposit Account.
90. Having said this, as to the original source of the Disputed Sum, as seen earlier, the monies at the time of the opening of 833 Joint Account were transferred from the 833 Sole Account, and that the bank passbook of the 2747 Account/2747 Transaction Record did not reflect where the cash/Time Deposit/SID Deposit/Unit Trusts at the time of the opening of the 833 Sole Account originated from. However, I accept that after the opening the 833 Sole Account, apart from the cheque of HKD 500,000, most of the monies deposited into the 833 Sole Account had probably come from monies accumulated by Mother in the 2747 Account as from November 2005 onwards.
D.8 Mother’s use of the 2747 Account
91. It was Ms Chan’s submission that Mother“made brief transfer of money through the 2747 Account for registration of the money in her 2747 Account passbook for her easy management”[51].
92. Ms Chan further submitted that on a close examination of the 2747 Transaction Record that the 2747 Account was for deposits of small amounts, very likely contributions of pocket money from the Siblings, and repayment to Mother of loans made by her. Ms Chan submitted that after savings in the 2747 Account were accumulated to a certain level, Mother would then transfer a sum of money to the 833 Sole/Joint Account. Ms Chan had cited the transfer of the HKD 550,000 as an example. However, as said earlier, out of the sum of HKD 550,000, a sum of HKD 500,000 came from a cheque deposit, the source of which was unclear and the issuer of which was unknown, and it did not appear to be an accumulation of small amounts of savings in the 2747 Account, as described by Ms Chan.
93. Ms Chan submitted that the savings in the 2747 Account were generally on the low side apart from the incidents when Mother was about to lend out money (to Yung’s husband and to Mei’s niece) or “register of time deposits”. Ms Chan referred to the following withdrawals from the 2747 Account which were said to be loans made by Mother :
(1) the withdrawal of HKD 300,000 on 27 February 2009 said to be a loan to Cavila’s husband;
(2) the withdrawal of HKD 130,000 on 8 June 2011 said to be a loan to Mei’s niece;
(3) the withdrawal of HKD 400,000 on 8 July 2011 said to be a loan to Cavila’s husband.
(collectively “3 Loans”)
94. Pausing here, there was actually no direct evidence of the 3 Loans or of any repayments, since neither Cavila nor her husband, or Mei nor her niece gave evidence. Yee’s evidence in her 1st statement was vague and only mentioned that she believed that the HKD 300,000 was a loan to one of the Siblings and since there were 10 deposits of HKD 30,000 thereafter, Yee said she believed the sum was fully repaid to Mother and returned to the 2747 Account. Sing in his 1st statement made no mention of the 3 Loans although he had mentioned his own loans to Mei and Cavila and that Mother had lent monies to Diana, Kwong, Hang, Hung, Mei and Cavila and that Mother had always told him about various loans although he had never asked Mother whether the borrowers repaid with and/or without interest[52]. Then, during the trial, when asked about the 3 Loans, Sing claimed that he was aware of a loan of HKD 400,000 to Cavila’s husband Andy who wanted to buy a property at the time.
95. Having said the above, there was no real challenge by Diana to the 3 Loans. It was also Diana’s own evidence Mother had made loans to those of the Siblings who needed financial assistance and that one of the reasons was so that they did not need to borrow from banks and instead paid Mother the interests which they otherwise had to pay to banks.
96. Ms Chan had pointed out that on 8 July 2011, when the time deposit of HKD 1,114,539.36 matured in the 833 Joint Account, Mother had it deposited into the 2747 Account for a short time before transferring it back to the 833 Joint Account on the same day (“08.07.11 Transaction”)[53].
97. It was based on the transactions of the 3 Loans and the 08.07.11 Transactions that Ms Chan made her submission that Mother had made brief transfers of money through the 2747 Account for “registration of the money in her 2747 Account passbook for her easy management” and that other than for the preparation of lending out, the savings were kept at relatively low level in the 2747 Account[54].
98. As seen earlier, in fact prior to the 3 Loans and the 08.07.11 Transactions, there were two withdrawals, namely 14.09.07 Withdrawal and the 27.02.09 Withdrawal from the 833 Sole/Joint Account. Even if the 27.02.09 Withdrawal was said to be for the purpose of Mother making the loan of HKD 300,000 on that day to Cavila’s husband, there was no explanation for the 14.09.07 Withdrawal which simply remained in the 2747 Account.
99. There was in fact another earlier transaction prior to the 3 Loans, namely that a sum of HKD 400,000 was transferred out of the 2747 Account on 30 June 2010 to be placed on a separate time deposit in the 833 Joint Account (not part of the Time Deposit ) but on maturity a month later, namely on 30 July 2010, it was re-transferred back into the 2747 Account (“30.07.10 Transaction”) and this sum had remained in the 2747 Account for almost a year before Mother’s loan of HKD 400,000 to Cavila’s husband. This was so even when in the 08.07.11 Transaction, the Time Deposit of HKD 1,114,539.36 matured and was transferred to the 2747 Account. Although Mother rounded up the sum to HKD 1,120,000 and on the same day, placed it on the Time Deposit again in the 833 Joint Account, she chose not to include the HKD 400,000 to form a larger time deposit. There was no sufficient evidence that Mother had kept the HKD 400,000 in the 2747 Account in preparation for a loan to Cavila’s husband a year later, or in anticipation of a loan to one of the Siblings, as submitted by Ms Chan.
100. One can see from Mother’s passbook of the 2747 Account and also the 2747 Transaction Record, that there had been frequent deposits into that account by phone transfers or by ATM transfers. According to Yee, these deposits were contributions/payments from the Siblings or repayment of loans.
101. What is clear from the passbook of the 2747 Account and the 2747 Transaction Record and the bank statements of the 833 Sole/Joint Account was that Mother had transferred sums freely between the 2747 Account and the 833 Sole/Joint Account. I accept that often, Mother would transfer accumulated sums from the 2747 Account to the 833 Sole/Joint Account, mostly to combine with the existing Time Deposit therein. I accept that Mother was using the 833 Sole/Joint Account to earn higher interest for time deposits of larger amounts and/or for other investment purposes, but, as seen earlier, this did not mean funds once transferred to the 833 Sole/Joint Account would remain there.
102. At the time of the opening of the 833 Sole Account in 2005, Mother was about 80 years old. What was also clear was that for Mother’s other banking transactions, such as receiving various deposits of monies (whether contributions from the Siblings or loan repayments from various borrowers) and/or various withdrawals, the evidence showed that Mother had preferred to continue to use the 2747 Account. This was probably because Mother had had the 3 HSBC Savings Accounts for some time prior to the opening of the 833 Sole/Joint Accounts and that she simply had continued to operate transactions in her bank accounts in the way she was accustomed to. As seen in the Account Opening Form for the 833 Sole Account, Mother had added the 2747 Account to the “Account Card” and in the Account Opening Forms for the 833 Joint Account, there was no request by her (nor by Sing) for any ATM, Phonebanking, or Internet Banking services.
103. I do not find that there was sufficient evidence to support Ms Chan’s submission that Mother had transferred the Disputed Sum to the 2747 Account before transferring it out to the SCB Time Deposit for any “registration” purpose, as submitted by Ms Chan. I find Mother was simply carrying out her banking transactions in relation to her savings, as she had always done, through the 2747 Account.
104. It was not disputed that Mother had managed her own funds and her bank accounts at HSBC throughout until at least the opening of the 4 SCB Accounts on 11 October 2011, by which time she was 86 years old.
105. Mother had kept a good control of her money at her bank accounts at HSBC. This could also be seen by her having designated specific purposes for her 2 other of the 3 HSBC Savings Accounts, namely the 7393 Account for bill payments in relation to the Tsui Chuk Property and the 3879 Account for receiving her monthly old age allowance. It was not disputed that the 2747 Account was designated by Mother for her savings, including various transactions in relation to her savings. As said earlier, the 833 Sole/Joint Accounts were designated for time deposits and other investments.
106. It was Ms Chan’s submission that as the Disputed Sum was transferred out of the 833 Joint Account (via the 2747 Account) to the SCB Joint Time Deposit Account for the sole purpose of earning high bank interest, the proper inference from the circumstances must be that Mother would return the money to where it came from ie the 833 Joint Account after it had earned high bank interest unless particular purpose was shown making it probable that Mother intended the Disputed Sum to leave the 833 Joint Account forever, and that no such particular purpose was shown[55].
107. However, I find what was submitted by Ms Chan was not supported by the evidence of Yee.
108. It was Yee’s own evidence that SCB offered a higher interest rate on new funds, and this led to Mother agreeing to move the Disputed Sum from the 833 Joint Account to SCB, as Mother was keen to earn a higher interest rate on the Disputed Sum. As a result, Mother agreed to open the 4 SCB Accounts on one day, ie 11 October 2011, all at the suggestion and arrangement by Yee.
109. It was not really disputed by Diana that Mother had decided to transfer the Disputed Sum to the SCB Joint Time Deposit Account on 11 October 2011 to earn higher interest.
110. After the withdrawal of the Disputed Sum, the 833 Joint Account was downgraded to an Advance account, and later further downgraded in January 2012 to a SmartVantage account. In fact, there were little activities/transactions in the 833 Joint Account after the withdrawal of the Disputed Sum, and the balance in the 833 Joint Account was kept quite constant totalling around HKD 190,000 (including the USD and CAD), throughout from 11 October 2011 until Mother’s death[56]. Insofar as one can see, there had been no further time deposits in the 833 Joint Account.
111. As for the 2747 Account, after the transfer out of the Disputed Sum, the balance was about HKD 180,000 in the account on 11 October 2011. Mother did continue to use the 2747 Account for various deposits and when Mother’s savings reached some HKD 287,000 on 23 July 2012, a sum of HKD 280,000 was then transferred out to whereabouts/account unknown, as it did not appear in the 833 Joint Account, and on 1 September 2012, a sum of HKD 350,000 was transferred into the 2747 Account from source/account unknown[57]. Thereafter, there were various amounts deposited/transferred into the 2747 Account ending with a balance of HKD 412,870.63 on 31 December 2012[58]. There was no sufficient evidence that Mother had placed any large amounts on time deposits with HSBC after the Disputed Sum had been transferred out.
112. As seen from the Table set out earlier, there was a gap of some 1 year and 4 months between 11 October 2011 until Mother’s death on 23 February 2013 during which the Disputed Sum was never returned to the 833 Joint Account, or any bank accounts with HSBC. In fact, in May and June 2012, a total of HKD 900,000 was transferred from the SCB Joint Savings Account Mother had with Yee into Yee’s SCB Sole Account.
113. Yee’s explanation was that Mother had since the withdrawal of the Disputed Sum from HSBC, agreed firstly for the sum to be combined with Melissa’s HKD 1m to be placed by Yee in the SCB Joint Time Deposit Account for 12 months to earn higher interest at SCB and secondly, prior to the maturity of the SCB Joint Time Deposit, Mother had agreed to Yee’s suggestion that the Disputed Sum on maturity was to be retained by Yee, and another HKD 1m out of Yee’s own HKD 6m time deposit would be regarded as Mother’s and that this swap was for Mother to earn a portion of the high interest (presumably 1/6) on Yee’s own HKD 6m time deposit (“Swapping Arrangement”).
114. First, the Swapping Arrangement was not pleaded in the original defence filed on 27 May 2014[59] and was only subsequently pleaded in the 11 November 2016 version. Second, it was not mentioned by Yee during the Family Meeting. Yee’s evidence in relation to the Swapping Arrangement was confusing and unconvincing, and in any event, it would appear that the Disputed Sum, or the majority of which went into Yee’s SCB Sole Account, and it was only later when Yee had to explain the whereabouts of the Disputed Sum, she then claimed there was the Swapping Arrangement. I do not find there was any sufficient evidence that Mother had agreed to the Swapping Arrangement.
115. Having said this, whether or not Mother had agreed to the Swapping Arrangement or not, in light of Yee’s own evidence that Mother had agreed to entrust the Disputed Sum with Yee to be placed on time deposit/s to earn higher interest, and to allow Yee to handle the Disputed Sum, Mother must have been accepted Yee’s advice and trusted Yee that under her arrangement, the Disputed Sum would earn higher interest than at HSBC. Thus, based on S&Y’s case, there was no reason why Mother would want the Disputed Sum to be re-transferred to the 833 Joint Account or the 2747 Account at HSBC. What was clear was that neither the Disputed Sum, nor the swapped HKD 1m was ever returned to the 833 Joint Account or the 2747 Account or any of Mother’s accounts at HSBC during her lifetime. In fact, Yee only decided to deposit a sum of HKD 1,002,887.67 into the 833 Joint Account after it had been changed by her and Sing to become the 833 S&Y Joint Account.
116. In any event, having considered the evidence, I find there was no sufficient evidence that it was Mother’s intention to re-transfer the Disputed Sum back into the 833 Joint Account, or the 2747 Account or any bank account at HSBC thereafter, nor could such intention be inferred in the circumstances.
D.9 Whether Mother was the Trustee of the monies in the 833 Sole/Joint Account for Sing
117. As set out earlier, it was S&Y’s Primary Case that Mother was the Trustee of the Savings and Profits which she deposited into the 833 Sole/Joint Account as from 18 April 2005 onwards for Sing.
118. However, notwithstanding the above, and that Mother was the Trustee of the Savings and Profits, there was no counterclaim from Sing against the Estate seeking an account of the monies deposited and/or withdrawn from the 833 Sole/Joint Account as from 18 April 2005 onwards; nor did Sing seek the return of any part of the monies withdrawn by Mother, apart from the Disputed Sum, save that the balance in the 833 Joint Account at time of Mother’s death had been retained by Sing.
119. Further, in S&Y’s pleaded case, the Savings were said to be monies saved by Mother from the free balance of contributions/payments made by Sing to her from his income when he was working as a seaman and as a policeman. There was no specific pleading in S&Y’s RRAD&C that, in addition to his monthly regular contributions/payments, Sing had given Mother another sum of HKD 17,000 out of his own savings in 1972 or at any time. The reference to HKD 17,000 was only in Sing’s witness statements.
120. I will first consider what were said to be Sing’s contributions/payments to Mother.
D.9.1 Sing’s income and his payments/contributions to Mother
121. Sing had made one witness statement on 27 January 2017 and a supplemental witness statement on 27 June 2017, which I shall simply refer to as his 1st statement or 2nd statement.
122. In his 1st statement, Sing stated that he started working as a seaman in 1968 and then he joined the Hong Kong Police Force in 1972 as a police constable. He had said he spent about 2 years serving in England and 3 months serving in Singapore and that his average monthly salary during the 3 years he worked as a seaman was about HKD 923 per month, and that he also received some allowances eg food allowances. That Sing had worked as a seaman was not disputed.
123. During the trial, Sing disclosed that he in fact worked for the Royal Navy as a steward on a contract for 3 years and he only served one contract.
124. Further, during the trial, Sing disclosed that his total monthly income when he was a seaman consisted of the following components:
(1) a fixed salary of HKD 660 a month;
(2) additional allowance :-
(i) HKD 400 odd a month if he was working on board a ship within Far East waters; or
(ii) HKD 700 odd a month if he was on board a ship within European waters;
(3) Food allowance :-
(i) if within Far East waters, SGD 120 a month or HKD 240 a month (@ SGD 1 = HKD 2); or
(ii) if within European waters, food allowance of £15 or HKD 247.50 (@ £1= HKD 16.5) ;
(4) Tips – for cleaning 8 rooms for senior crew members,
(i) if in Singapore, SGD 30 a month x 8 rooms;
(ii) if in Europe, £4 a month x 8 rooms
125. It was Sing’s oral evidence that his fixed salary in item (1) of HKD 660 a month was collected/received by Mother on his behalf in Hong Kong when he was at sea, which he described as a “割糧”, ie salary severance arrangement, but when he was on land in Hong Kong, he had collected the fixed salary himself. As for items (2) to (4), he would receive in cash on board the ship.
126. Sing further explained that there would not be any additional allowance if he was working on a battle ship docked in Hong Kong (at Tamar) unless he had to work as a substitute crew member for a minesweeper in Hong Kong for which he would receive the same amount of allowance as if working on a ship within Far East waters.
127. To summarise, his evidence was apart from the fixed salary of HKD 660 a month, on average, he had earned an extra HKD 700 a month during the 3 years he worked for the Royal Navy. This would mean his average monthly income was in the region of some HKD 1,360. What Sing disclosed during the trial about his income did not seem to be consistent with his written evidence.
128. According to Sing’s 1st statement, the amounts of what Sing said he had paid Mother were as follows[60]:
(1) Between 1968 and 1971 – HKD 31,680 (being HKD 660 x 12 months x 4 years)
(2) Between 1972 and 1977 – HKD 57,600 (being HKD 800 x 12 months x 6 years)
(3) Between 1978 and 1983 – HKD 72,000 (being HKD 1,000 x 12 months x 6 years)
(4) Between 1984 and 1989 – HKD 108,000 (being HKD 1,500 x 12 months x 6 years)
(5) Between 1990 and February 2013 (when Mother passed away) – HKD 556,000, being HKD 2,000 x 12 months x 23 years
129. There were a number of discrepancies between Sing’s oral evidence and his written evidence in relation to his income and savings including the following:
(1) In his 1st statement, Sing had said Mother received or collected his fixed salary of HKD 660 per month every month, and it was also Yee’s evidence that this was a term of Sing’s employment contract as a seaman, but in his oral evidence, Sing had said that Mother only collected his fixed salary of HKD 660 per month when he was at sea and when he was on land, he himself collected the HKD 660 per month.
(2) In his 1st statement, he said his average monthly income for the 3 years he was working as a seaman was HKD 923, but as said earlier, according to his oral evidence, it was around an average of some HKD 1,360 a month;
(3) Even though both his oral and written evidence was that he worked for 3 years as a seaman, in his 1st statement, for some reasons, he had calculated his payments to Mother between 1968 and 1971 on the basis of 4 years, as seen above;
(4) In his 1st statement, although not pleaded, his evidence was that between 1972 and 1980, he gave Mother HKD 17,000[61], but his oral evidence was that this was given to Mother by him out of his own savings at that time of about HKD 20,000 and that it was given to Mother in one lump sum in 1972;
(5) It was also Sing’s written evidence that he had bought food home in most evenings when he was free and ate dinner with her and that in addition to the monthly contribution, he had paid for a large part of Mother’s food expenses and he also did house repairs for her; however, his oral evidence was that he would only buy items for Mother, such as oil, rice etc but did not pay for any expenses on her behalf.
130. The discrepancy between HKD 923 per month and HKD 1,360 per month was not an insubstantial amount, in particular as this would be relevant to the amount he said he was able to save for himself, apart from the monthly HKD 660 he said was collected by/given to Mother. Based on a monthly income of HKD 923, after giving Mother HKD 660 a month, he would be left with only about HKD 263 a month, and in 3 years’ time, the total would only be HKD 9,468, and it did not seem probable that he could have saved HKD 20,000 by 1972 or he could have given Mother HKD 17,000 thereof.
131. Sing joined the Hong Kong Police Force in June 1972. According to Sing, he was able to continue to pay Mother HKD 660 per month, or a substantial part of his monthly salary as he was still single, and that also Mother needed his substantial contribution as other bread winners of the family, namely Diana, Yin, Melissa and Mei were getting married year by year and there were still siblings who were very young and were still at school.
132. There was no documentary evidence to support Sing’s evidence as to the amount of his payments to Mother in those early years.
133. Yee and Sing are some 8 years difference in age. When Sing started to work in 1968, Yee was only 12 years old. Anyway, Yee had said it was Sing who told her during the Preparation Meetings as to his income and what he said he paid Mother. Yee clearly had no direct or personal knowledge of Sing’s contributions, nor did Yin or Hang.
134. As mentioned earlier, Sing’s two statements were in English and there were no interpretation clauses, and during the trial, Sing had said he was educated to Form 4 level, and that he was only able to read some English. He had said the solicitor had interpreted the contents of his statements to him in Chinese. When the discrepancies were pointed out to Sing, he then said the solicitors did not hear clearly what he was saying or that the solicitors could have misunderstood what he was saying. He then further said the solicitor did not explain each and every word or sentence, and that he signed the statements because he trusted his solicitor.
135. Sing’s evidence was based on his recollection of events from 1968, which was over half a century ago. In light of the various discrepancies in Sing’s oral and written evidence, the long passage of time, and the lack of contemporaneous documents, I do not find that Sing’s evidence in relation to the amounts of his contributions/payments to Mother to be reliable.
136. Further, based on his own oral evidence that his average income was about HKD 1,360 per month when he was working for the Royal Navy, even if he did give or allow Mother to collect/receive HKD 660 per month for the full 3 year period of his employment, this would be just under 50% of his total income.
137. Sing had produced his passbook of his savings account at the Hang Seng Bank (“HSB Savings Account”) covering the period from 4 July 1987 until 16 November 1995[62]. One can see that every month, at the end of the month from July to December 1987, there was a sum of around HKD 7,383.50 credited by “AUTOPAY” into his HSBC Savings Account which seemed to be his then salary as a sergeant. There were other various credits into his account. In any event, the “AUTOPAY” increased to about HKD 8,000 per month at end of September 1988, and later about HKD 9,000 per month at end of June 1989 and by 1990, his salary appeared to be about HKD 10,000 per month. Further, before his retirement in August 1995, his salary seemed to have increased to some HKD 20,000 per month, and thereafter in addition to his lump sum pension, he was also receiving some HKD 7,720 for his monthly pension payments. At the time of the trial, his pension was around HKD 15,000 per month.
138. Anyway, between July 1987 and 1989, his allegedly monthly contribution to Mother of HKD 1,500 would only be about 20% or less of his salary and between 1990 and his retirement in 1995, his allegedly monthly contribution to Mother of HKD 2,000 would again be just about 20%, and although he said after he retired in 1995 until Mother’s death, he had continued to pay Mother HKD 2,000 per month, this would be about 26% of his initial monthly pension but as his monthly pension increased over the years, the HKD 2,000 per month would be gradually less than 26%. Considering that Sing did not have to pay rent to Mother after he moved into the Kam Shek Property in 1988, it did not appear that his contribution to Mother was as substantial as he had claimed.
139. It was not disputed that starting with Yin in 1962, Diana in 1965, Melissa in 1966, and Sing in 1968, they were the 4 earliest of the Siblings who started to work and to make payments to Mother for the household. Diana got married in 1968, the year Sing started to work. Yee had said as Diana got married in 1968 and moved out of home, she had no knowledge of Diana’s contributions to Mother. Yee had agreed that by about 1972, her other Siblings were still living at home, save Diana, and that all 6 of her older of the Siblings should be making payments to Mother but the exact amount paid by each was unknown to her. Further, she only learnt of Sing’s income as a seaman or policeman during the Preparation Meetings. Yee had also agreed under cross examination that up until Father’s death in January 1986, Father and Mother should still be in tight financial situation, with not that much savings.
140. As for Yin, she started to work in 1962 and married in 1973. After marriage, she moved out of the family home. Although she said in her witness statement that Sing’s salary of a seaman was received by Mother, she did not mention any amount. Further, although she said Sing had given Mother money each month and further bought food and cook dinners, she was not able to give details, only that Sing like to cook. Again, Yin did not appear to know the exact amounts Sing was earning or the exact amounts he was giving Mother at the time.
141. Having considered all the evidence, I am prepared to accept in 1968, with Diana getting married and Sing, being the second oldest of the Siblings and the eldest son with a stable job and income, he did start to make regular monthly contributions to Mother and the family and that he had continued to make regular monthly contributions to Mother throughout. Although the exact amounts of his payments to Mother were unknown, I am prepared to accept that Sing did make payments of not more than 50% of his average total income during the 3 years when he was working for the Royal Navy. Then there appeared to be a gap of at least one year in between jobs before he joined the Hong Kong Police on 5 June 1972[63]. He probably continued to pay Mother a large part of his salary, but by 1987, and thereafter until Mother’s death, his monthly payments/contributions would probably be only around 20% to about 26% of his monthly income/pension.
142. Yee had accepted that the family finances were tight up until Father’s death in 1986, although Diana had said they were not as bad as some of the Siblings had made out. In those early years in the 1970s, Mother probably would not have been able to save that much, but having said this, as seen later, Mother and Father did manage to pay Diana HKD 240,000 in 1985 to acquire the Kam Shek Property, and later in 1989 Mother also paid HKD 476,600 for the acquisition of the Tsui Chuk Property.
143. As mentioned earlier, it was Sing’s evidence in his 1st statement that out of his own savings, he gave Mother HKD 17,000 between 1972 and 1980, namely over a period of 8 years, but during the trial, he said it was given to Mother all in one go in 1972. It was never pleaded by Sing in the RRAD&C that he had given Mother a sum of HKD 17,000. In fact, during the Family Meeting, as seen in the 1st Transcript, Sing never mentioned any exact figure of HKD 17,000, and he only mentioned vaguely that he gave Mother HKD 10,000 odd in 1970s. In light of what Sing had said, even if he did give Mother HKD 10,000 odd in the 1970s to keep, there was no sufficient evidence that it was actually a sum of HKD 17,000.
144. Yin had during the trial described an occasion when Sing was seen by her to be helping Mother to apply Chinese medicine, and Yin claimed she saw a small bundle or package being passed to Mother and Yin overhead Mother saying that she already had the part of the salary Sing gave her and there was no need for this, and then Yin then claimed that the bundle or package must have contained money which Sing was trying to give Mother. However, upon re-examination, Yin then retreated and admitted that in fact she had no idea of what was in the bundle or package.
145. Yin’s above evidence was never mentioned in her witness statement, and she seemed to be trying to help and support Sing’s claim that he had given HKD 17,000 to Mother. There was no evidence that she had mentioned this incident either during the Family Meeting or during any of the Preparation Meetings. There was no evidence from Sing that he gave Mother the HKD 17,000 and any money in a bundle/a package. I do not this part of Yin’s evidence reliable.
146. It was Sing’s evidence in his 1st statement that he had “taught” Mother to invest the sum of HKD 17,000 in gold bullion that by 1980, Mother should have made a profit of at least HKD 500,000 from the sum of HKD 17,000 which he gave Mother[64]. It was not clear whether what he said formed part of the Profits from the Saving as pleaded by him.
147. In any event, there were several versions of what Sing had said as to when Mother was supposed to have made her substantial profits from buying and selling gold, whether from the Savings or from the sum of HKD 17,000, namely (i) in 1974, 1975 and 1976, ie by 1976 (as seen in his conversation with Hung in the 2nd Transcript); (ii) between 1972 and 1974, ie by 1974 (as seen in the pleadings); (iii) between 1972 and 1980, ie by 1980 (as seen in his 1st statement).
148. When asked during cross-examination about how he “taught” Mother to buy and sell gold, Sing merely said that he only “told” Mother to buy gold.
149. Sing had said that gold bullion was on the rise in those days and that the value of gold bullion had increased from USD 45 per troy ounce in 1972 to USD 195 per troy ounce in 1975, and that between 1975 and 1980, there was a further increase of 600% to USD 850 per troy ounce. S&Y had further produced an extract on the graphs/analysis of gold bullion investment statistics from 1970 onwards until 1996, which indicated that in January 1980, the price peaked to USD 850 per troy ounce.
150. In fact, during the Family Meeting, what Sing had said was that he gave Mother HKD10,000 odd in the 1970s and when Mother asked him what to do with the money, he had told Mother to just deposit it in the bank account first and later, Sing said it was not clear whether Mother bought gold or what she did, but she should have bought gold and then made profits and then rolled over the money[65].
151. It would thus appear that Sing had no actual knowledge or details of whether or when Mother bought or sold gold or what investments Mother was carrying out, even though he did also say Mother should have bought and sold gold. During the trial, Sing had also mentioned Mother having some gold bars in her safe deposit box. Anyway, I find there was no actual evidence from Sing, Yee or others of how Mother invested her money and their evidence seemed to be mainly based on their own surmise of how Mother managed to amass those amounts which she had.
152. In particular, in the case of Yee, she had in her 1st statement referred to a cash deposit of HKD 54,552.50 in the 833 Sole Account on 17 February 2006 and that on the same day there was a withdrawal from the same account of HKD 54,372.50 being stated to be “Gold/Exchange Debit TT SPC157102”, followed by HKD 180 being “remittances”. Yee claimed that this was evidence of Mother investing in gold which she sold the next month and that the proceeds were put on time deposit[66]. However, the cash deposit of HKD 54,552.50 seemed more likely to correspond with the purchase of USD 7,000 (approximately USD 1= HKD 7.79) which was then withdrawn by Mother on the same day, ie 17 February 2006, by TT. That transaction was in 2006, and there was simply no evidence that after Mother had opened the 833 Sole Account, she had invested in gold.
153. What was not disputed was that from all accounts, although illiterate with little education, Mother turned out to be a successful investor, whether from investments in gold or not.
154. As seen from the bank statements of the 833 Sole/Joint Account, Mother had held investment in Unit Trusts and there were also the HKD and USD SID Deposits, albeit relatively of small amounts. There was no sufficient evidence that she had ever consulted Sing prior to her investments, whether over the SID Deposits or the Unit Trusts. In fact, during the Family Meeting, Sing had said that after giving Mother the money in the 1970s, he did not mind what Mother did with the money or how to invest it, as it was given to Mother, and that he did not ask Mother to account for the money[67]. During the trial, Sing had again said that it was for Mother to make her own decision as to what to do with the money. Sing had also agreed during the trial with Mr Lam that for all those investments carried out by Mother, there was no need for her to seek his consent.
155. Having considered the evidence, Mother was clearly the one making sole decisions and there was no sufficient evidence that she had ever needed any consent of Sing to manage or to operate the 833 Sole Account or the 833 Joint Account. In particular, she had agreed to Yee’s suggestion to transfer the Disputed Sum to the SCB Joint Time Deposit Account, and there was no sufficient evidence that she had consulted Sing prior to doing so or sought Sing’s prior consent.
156. It was Sing’s case that the following sums paid by Mother all came from the Savings and the Profits, and/or the HKD17,000 and profits thereon :
(1) HKD 240,000 for the acquisition of Kam Shek Property in 1986[68] (it would appear later in this judgment that payments could have been paid to Diana in 1985);
(2) HKD 476,600 for the acquisition of Tsui Chuk Property in 1989[69];
(3) HKD 300,000 loan to Hung in 1997[70];
(4) the Disputed Sum of HKD 1m in 2005[71].
157. First, having considered all the evidence, I do not find sufficient evidence that Sing had given Mother sum of HKD 17,000 in addition to the Savings. Second, even if Sing did give Mother HKD 17,000 in 1972 and even if Mother did save up the free balance of Sing’s monthly contributions for him and that Mother did make HKD 500,000 by 1980 out of Sing’s monies, on Sing’s own case, Mother would have used all of it in the acquisition of the two properties by 1989.
158. As seen in the 1st Transcript, Yee herself had in fact said more than once during the Family Meeting that the Disputed Sum was not all Mother’s and that Sing had a share[72]. What she said would mean that both Mother and Sing had a share or that the monies in the 833 Sole/Joint Account consisted of also Mother’s own savings. There was no mention by Sing during the Family Meeting that the Disputed Sum or the monies in the 833 Sole/Joint Account were all his money of which Mother was only the Trustee. In fact what Sing had said was that he did not mind what Mother had done with the money [ie the HKD 10,000 odd] he gave her, as it was given to her, and it was only in the recent years [prior to her death] that Mother mentioned about giving his money back to him, and to have a joint account with him as otherwise, if anything happened to her, it was not sure what would happen[73]. First, it seemed clear that Sing regarded whatever money he gave Mother had already been given to her. Second, Sing did not say Mother had mentioned any amount, and in fact he had also said he did not know whether Mother had spent all the money he gave her[74].
159. In his conversation with Hung the day after the Family Meeting, as seen in the 2nd Transcript, Sing had also admitted to Hung that he did not really know how much of Mother’s monies had come from him even though at that time Hung was suggesting to Sing to take back all the money (including the Disputed Sum) as it was his[75].
160. Having regard to all the above evidence, what was clear was that Sing himself did not seem to regard the monies that Mother had in the 833 Sole/Joint Account were all his monies, nor did Yee.
D.9.2 Income and contributions of the other Siblings
161. Diana’s evidence was that Mother had always been frugal as family finances were always tight, but not as bad as the others had made out.
162. Diana had said her salary as a primary school teacher in 1965 was HKD 500 per month and that she gave this whole sum to Mother and that she had to earn her own “pocket money” by working as a part time private tutor. Between 1971 to 1974, she gave Mother HKD 1,000 a month and from 1981 until Mother’s death, she gave Mother HKD 500 per month and would give her extra money at festivals and for her birthdays.
163. According to Diana, all the Siblings had paid contributions to Mother of varying amounts. For Kwong, he had also made contributions although not of fixed monthly sums. For Mei, her contribution should at first be below HKD 1,000 per month and from around 1980, the amount should be over HKD 2,000 per month. For Hang and Ling, their monthly contributions were around HKD 1,000 or a few hundred. As Diana got married in 1968, she had moved away and was not living with her parents any more, and thus she admitted that had no knowledge of what Sing was paying Mother. As for the contributions from the other Siblings which were set out by her in her witness statement, Diana said she obtained the information from those Siblings themselves and sometimes also from what Mother had told her.
164. Anyway, apart from Sing and Yee, Yin, Hung and Viola had also given evidence as to their contributions to Mother.
165. Viola had said in her witness statement that she gave monthly contributions to Mother of around HKD 200 when she was working as a bank teller, around HKD 2,000 in around 1987 when she was working as a flight attendant. From 2002 onwards, she gave Mother HKD 1,000 per month and from 2007 onwards, she gave Mother HKD 500 per month until Mother passed away. She would also give extra money to Mother at big festivals or on Mother’s birthdays. During the trial, she had also said that when she was working as a flight attendant, she would give Mother some of her unused foreign currencies when she returned to Hong Kong, and according to Viola, that was why the bank statements of the 833 Sole Account showed some foreign currencies deposited by Mother, and which Mother had saved up in her 833 Sole/Joint Account. That was also why Viola had said during the trial that she should also be entitled to a share of the Disputed Sum, as it was Mother’s own savings from the contributions made from all the Siblings, of which she was one.
166. Hung had said in his witness statement that his monthly contributions were HKD 200 (when he was working as an apprentice), HKD 600 (when he was working as a police constable) about HKD 1,500 in 1980s and about HKD 500 to HKD 1,000 from 1989 until Mother passed away, and that he would give extra money to Mother at big festivals and on her birthdays, usually around HKD 2,000 to HKD 4,000. When it was suggested to Hung during cross examination that he did not make any contributions/payments to Mother due to his own heavy family financial burden, Hung maintained that he did make contributions/payments to Mother. He admitted that Mother would often pay him back but he said he did insist and Mother would accept some nominal payments.
167. Hung was said to have a volatile temper and did not get on with most of his Siblings. There were also allegations of his gambling habits and his marital and financial problems, and that he had borrowed money from Mother. Hung denied that he was a gambler but admitted that he did borrow money from Mother on two occasions, once in 1997 when Mother loaned him the money to pay off the mortgage on his residence, and the 2nd occasion was a sum of HKD 50,000 which Hung said he repaid in cash and that this was the cash kept in the Locked Drawer in the Tsui Chuk Property.
168. It was also Hung’s evidence that Mother loved his daughter Wing Shan and in particular Mother loved his son Tsz Chung dearly as they were Mother’s only paternal grandchildren, since neither Sing nor Kwong has/had any children, nor did they ever get married, and that Mother had intended to leave some of her assets to in particular, her only paternal grandson, Tsz Chung.
169. I find there was no sufficient evidence that Hung was any habitual gambler, but it would appear that he had had financial difficulties and thus his contributions/payments to Mother could not have been that regular or substantial.
170. As for Yee, it was her evidence that she had made regular contributions and payments to Mother. There was no real challenge to what Yee said was her contributions.
171. Hang seemed to have some health issues as he said he had asthma since he was a child. In 1977, he started working as a baker but thereafter, he changed a few jobs and he had said that whenever he could, he would give Mother some money, but he seemed to have financial problems and/or he was not able to manage his finances. Hang disclosed in his witness statement that in 2007, he was declared a bankrupt for overspending with his credit cards. Since 1988, Mother had asked him to move to live in the Kam Shek Property, and that soon thereafter, Sing also moved in. It was Hang’s evidence that thereafter, Sing had paid for all household and utilities expenses at the Kam Shek Property.
172. Both Hung and Hang had said they also gave contributions to Mother. There was no sufficient evidence to contradict what they had said and I accept that they had within their ability also paid contributions to Mother, although such contributions were not on a regular basis. Both Yin and Mei started to work when they were very young and it was common ground that they had helped and contributed financially towards the family expenses. I also accept Diana’s evidence that she had made contributions to Mother and that when the Siblings started working, the arrangement was “一級養一級”, namely one level of Siblings providing for another level of Siblings[76], or the older ones were helping to support the younger ones.
D.9.3 This Court’s findings on the source of funds in the 833 Sole/Joint Account
173. Having considered all the evidence, it is my finding that all the Siblings were dutiful children and they all had a good relationship with Mother. They had all tried to help Mother and Father and other younger of the Siblings and had contributed financially towards the family to the best of their ability, albeit some had contributed more substantially and regularly than the others. I accept that out of the 4 sons, Sing was probably the most financially responsible one in having made regular monthly contributions/payments to Mother and that his contributions/payments were more substantially and regularly than the others of his brothers. I also accept that his contributions were probably more regular than his sisters. Although the daughters had also made contributions/payments to Mother, after their marriage, it was probable that their contributions were not as regular as before their marriage.
174. Although it was S&Y’s pleaded case that the sums paid into the 833 Sole and/or Joint Account were Sing’s money as mentioned earlier, this was contradicted by Yee’s and Sing’s own evidence. In any event, there was no sufficient evidence to indicate that Mother had ever kept a record of the amount of monthly contributions made by each of the Siblings, nor was there any sufficient evidence that she had set aside or made a record of any free balance of Sing’s monthly contributions from his monthly income, or the Savings or the sum of HKD 17,000 allegedly given to her by Sing.
175. It is thus my finding that more probable than not that Mother’s savings in the 2747 Account had come from a combination of what Father left her (ie HKD 40,000), plus contributions and payments from all the Siblings (including Sing), and there was no sufficient evidence as to the amount from each.
176. Further, as seen in the passbook of the 2747 Account (which commenced from 18 April 2005) and the 2747 Transaction Record, various sums of monies continued to be deposited into Mother’s 2747 Account by cash or by transfer almost every month after 18 April 2005, and often they were sums of more than the HKD 2,000 per month, which Sing said he was paying Mother. It was accepted by S&Y that after 18 April 2005, accumulated sums in the 2747 Account continued to be transferred by Mother to the 833 Sole/Joint Account to be placed on time deposits. For those sums which had come from the 2747 Account and which were accumulated by Mother after 18 April 2005, there was simply no sufficient evidence that the monies had come from the Savings or Profits or the alleged HKD 17,000 or profits thereon as alleged by Sing, or from contributions/payments paid by Sing alone.
177. In any event, there was no sufficient evidence that Mother monies or savings in the 2747 Account or the 833 Sole Account at the date of opening or monies deposited into the 833 Sole/Joint Account after 18 April 2005 were from the Savings pleaded by S&Y and/or Profits, or from the alleged sum of HKD 17,000 and profits thereon, and/or any monies of which Sing was the sole beneficial owner.
178. Ms Chan argued in her Closing Submissions, that even if the principal and interest of what Sing had given Mother would have been very much depleted by the purchase of the Kam Shek Property and the Tsui Chuk Property and the remaining of the monies Mother had might have mixed up with contributions from the other Siblings (including Sing’s continuous contributions), the money did not stop being Sing’s if it was the intention of the Mother to gift to Sing all the money in the 833 Sole/Joint Account[77].
179. It was S&Y’s case that Mother decided to have a joint account with Sing as Mother had intended to return Sing’s money to Sing and/or it was Mother’s intention to make gifts to Sing to provide for his future.
D.10 Mother’s intention
D.10.1 Mother’s oral statements to Sing, Yin and Yee
180. Sing’s evidence in his 1st statement was that for a long time before October of 2008 , Mother had been talking about opening a joint account with him and giving him back all the money she had saved for him with the profits thereon[78].
181. He then went on to describe that on 6 October 2008, Mother, him and Mei were having dim sum meal in a Chinese restaurant in Wong Tai Sing and the reason was because Ling’s husband had suggested that a bank account of Ling with HSBC which had all along been operated by Mei alone should in future be operated by Mei and Sing as joint signatories. As he would be going to HSBC with Mei to sort out Ling’s account, Mother then took the opportunity to join him as an account holder to the 833 Sole Account and that Mei was fully aware that the purpose was to enable Mother to give back to him the money he had given her together with the profits[79].
182. During the trial, when asked how long before October 2008 that Mother had talked about opening a joint account and giving him back the money she had saved for him, Sing then said that it was after Mother had opened the 833 Sole Account that she had been talking about adding his name to the account. Sing admitted that Mother did not ask him to open a joint account at the time when she went to open the 833 Sole Account. When asked why Mother did not ask him then (April 2005) to open the joint account, Sing had said he did not need the money, and that it was when Mei was having dim sum with Mother on 6 October 2008, Mei called him and asked him to go to as Mother wanted to add his name to a joint account. Sing further said that in 2008, Mother was getting old and therefore Mother decided to add his name as she wanted to avoid the trouble (probably referring to the trouble from any probate procedure after her death). Sing also admitted that the money in the account could have been from contributions to Mother from others of the Siblings.
183. Sing’s oral evidence seemed to be inconsistent with his written evidence. In fact, it was also not quite consistent with what he had said during the Family Meeting when he told those present, that it was only a few years before Mother died, that Mother had often asked him, that she would give him back his money and to add his name to her account and that he did not know how much money she had remaining[80]. However, what Sing said during the Family Meeting seemed to indicate that Mother was only asking him/or making a suggestion to him, about adding his name or opening a joint account with him.
184. Yee’s evidence in her witness statement was that Mother had repeatedly told Sing, Yin, Mei, her and Cavila that she would save up the money Sing gave her and returned the same to Sing and that for a long time Mother had been talking about having a joint account with Sing[81]. Yee gave evidence during the trial before Sing. When Yee was asked during the trial as to when Mother had first told her that she would save up the money Sing gave her and returned the same to Sing, Yee had at first said since 1976. Then when she was asked again when she learnt of Mother’s intention to have a joint account and to give the money therein to Sing, she said it was in 2008 and then she changed to 2005, and that she had heard in 2005 that it was Mother’s intention to give Sing all the monies in the 833 Sole Account and that it was formalised in 2008.
185. As pointed out by Mr Lam, Yee’s evidence was often contrived and confusing and that what she said was not in her witness statement. In any event, what she said during the trial or in her witness statement was also inconsistent with what she had said during the Family Meeting. Her evidence during the Family Meeting was that it was only on 23 February 2013, namely the evening of Mother’s death that she heard from Sing that he had a share in the Disputed Sum, which sum came from the joint account of Mother and Sing[82].
186. Yin’s evidence was somewhat identical to that of Sing, namely that Mother had been talking about saving up money to return to Sing for a long time and that it was Mei who dragged Sing to the bank to have it done and that Mother told her subsequently about opening a joint account with Sing[83].
187. The evidence of both Yee and Yin seemed to be that Sing was somewhat reluctant to have his name added to the joint account with Mother. Mei was not called in the end and her witness statement was not admitted. There was no evidence as to what happened on 6 October 2008 save the evidence of Sing. As it was Sing’s evidence that Mei called him on 6 October 2008 and he went, and there was no sufficient evidence that Sing had needed any “dragging” and in any event, he had to go to deal with Ling’s account. As said earlier, Sing’s own evidence was that Mother did not ask him to open any joint account in April 2005 when she opened the 833 Sole Account.
188. From the evidence, it would appear that Mother probably did raise with Sing the matter of opening a joint account with him some time between April 2005 and October 2008 but there was no sufficient evidence that Mother’s intention was to return or gift to Sing all the monies in the 833 Joint Account during her lifetime.
D.10.2 Reasons for Mother to have a joint account with Sing
189. The reasons for Mother to have a joint account with Sing were said by Yee to be[84]:
(i) money could pass to Sing upon her death without hassle;
(ii) to make provision for Sing when he grew old as he had no family or children of his own and he did not make sufficient financial planning for himself; and
(iii) to compensate the contributions in time and money that Sing had made to the Mother and the family, in particular for looking after Hang and paying all outgoings of Kam Shek Property. (“Reasons”)
190. So far as 1st of the Reasons, there was no dispute by Diana that whatever balance there was in the 833 Joint Account at the time of Mother’s death was to pass to Sing, nor was there really any challenge that this was Mother’s intention for opening the 833 Joint Account with Sing.
191. According to Yin, Mother had told her during her lifetime that the purpose of opening the joint account with Sing was “俾番的揸拿俾 Sing”, ie Mother was going to give something to Sing to hold on to. According to Yin, Mother had also told her that she had some difficulty in withdrawing Father’s HKD 40,000 from his bank account at the time of his death, and that with a joint account with Sing, upon her death, it would be easier for Sing to withdraw the money therefrom. Yin confirmed that Mother never mentioned any figure of how much money she was referring to or giving to Sing. Thus, in fact, this part of Yin’s evidence was consistent with Diana’s case that Mother’s intention in opening the 833 Joint Account with Sing, was for Sing to have any credit balance therein as at the date of Mother’s death.
192. As for the 2nd of the Reasons, Sing’s written evidence that throughout his life he did not make sufficient financial planning for himself and that he gave Mother most of his earnings. It was Sing’s evidence in his 1st statement that had he used what he had given to Mother on himself, he could have acquired his own landed properties and had his own savings like some of the Siblings did[85].
193. It was also Yin’s written evidence that the Disputed Sum belonged to Sing as Mother had told her that the money in the 833 Joint Account was Sing’s. Yin had then said that even if the money did not legally belong to Sing, she was not surprised that Mother would like to leave Sing more of what she had: money in the 833 Joint Account, the Zhuhai Properties (as defined later), the whole of the Kam Shek Property and even the Tsui Chuk Property, and this was not only to compensate Sing for what he had lost to himself in order to provide for the family and the younger Siblings, but to ensure that her assets go to one of the Siblings, who, like Mother, would render assistance to those others of the Siblings who were financially in need[86].
194. Yin had also said that Mother had told her many times that Sing should be compensated for all he had paid for the family and for Hang’s household expenses, having given most of his money to Mother, Sing had not made enough financial planning for his own future and that he needed money for himself as he grew old with no children to support him[87].
195. Notwithstanding her above evidence, Yin admitted that Mother did not actually tell her the amount and that her evidence was in effect that at the date of Mother’s death, the balance in the 833 Joint Account was for Sing.
196. Anyway, one common theme in the written evidence of Sing, Yee and Yin was that it was for Sing’s financial security and future that Mother had intended to gift the money in the 833 Joint Account to Sing.
197. However, this was not really supported by Sing’s own evidence. According to Sing, he did save up money of his own, and he had also said whenever any of the Siblings was in need of money, he had made loans to them such as:
(1) in 1994, he lent Cavila HKD 700,000;
(2) in 2000, he lent to Mei HKD 1.5m to finance her husband’s factory and the money was returned to him in 2013;
(3) in 2012, he again lent Cavila HKD 500,000.
198. First of all, as said earlier, Sing’s own evidence was that even when he was working for the Royal Navy, he had amassed some HKD 20,000 odd savings in 1972 of which he then said HKD 17,000 was given to Mother.
199. Secondly, during the trial, Sing revealed that he did purchase a property near the “Amoy Gardens” complex with his first girlfriend 陳彩晶/Chan Choi Jing (“CCJ”) in around 1983/1984, and that he had paid for his share of the purchase price with his own money. He and CCJ later sold the property after Father’s death in around 1986/1987 and he did make a profit therefrom. Further, according to Sing, Mother knew about the purchase and the sale and in fact, Sing disclosed during the trial that CCJ borrowed money from Mother to finance her share of the purchase price. All this was never disclosed by Sing in his written evidence. Such evidence in effect meant that Mother had helped in the purchase of the property of Sing and CCJ.
200. Thirdly, during the trial, Sing was taken through the passbook record of his bank account ending with “1703” at the Hang Seng Bank (“HSB Account”) and covering the period from 4 July 1987 to November 1995[88]. The passbook showed that, amongst other things:-
(1) As mentioned earlier, each month, at about the end of the month, there was an amount of HKD 7,383.50 deposited by autopay into Sing’s HSBC Account, which would appear to be his monthly salary;
(2) By March 1993, Sing already managed to accumulate a balance of HK$301,434.49 in the HSB Account[89].
(3) On 25 August 1995, there was an amount of HKD 432,325.32 deposited into his HSB Account, which was the lump sum portion of his pension on his retirement, and that by 31 August 1995 (his last day in service), the balance in his HSBC Account increased to HK$796,613.70[90].
(4) On 1 September 1995, he transferred HKD 800,000 to a time deposit;
(5) Thereafter, respectively at end of September 1995, and end of October 1995, he received by autopay a sum of about HKD 7,720, which appeared to be his monthly pension.
201. It was also Sing’s evidence during the trial that by around 1995, he had some HKD 1.3m in his bank account with the Bank of East Asia (“BEA Account”). He had agreed that before 2000, he had about HKD 1.5m in his BEA Account and HKD 800,000 on time deposit. It was his evidence that he had withdrawn from his BEA Account HKD 1.5m to lend to Mei in 2000 of which HKD 500,000 was repaid by Mei after SARS in 2003/2004 and that 1m was repaid by Mei in 2013.
202. Thus, in about 2000 prior to his loan of HKD 1.5m to Mei, he should have savings of at least HKD 2.3m, ie HKD 1.5m in his BEA Account and HKD 800,000 in his HSB Account, and not HKD 1.8m as submitted by Ms Chan[91].
203. It would thus appear that some 10 years before Mother initially opened the HSBC 833 Sole Account and 13 years before the Mother added Sing’s name to the 833 Joint Account, Sing already had bank savings in the sum of someHK$2,300,000 in his disclosed bank accounts.
204. As set out earlier, he was able to lend to Cavila HKD 700,000 in 1994, and in 2000, he was able to lend to Mei HKD 1.5m and again in 2012, he had lent to Cavila another HKD 500,000.
205. It would appear that all along Sing had the financial resources to buy landed properties, and it was his own choice not to do so. This was in fact admitted by Sing himself during the trial that between 1995 to 2000, he could afford to buy a couple of landed properties similar to the Kam Shek Property or the Tsui Chuk Property if he had wished to buy and he had confirmed that he was not interested in buying landed properties even if he had the money.
206. It was put to Sing that in 1995 or thereafter there was no need for Mother to worry about his finances or his future living, Sing had disagreed and maintained that Mother wanted to repay him due to his substantial contributions and so that he had security, and when it was pointed out that he already had about HKD 2m odd in 1995, Sing’s answer was “錢無人話多”, or no one would complain about having too much money. Anyway, Sing had said in his conversation with Hung on 25 February 2013, as seen in the 2nd Transcript, that he had money[92]. Sing had also agreed that from 1995 onwards, his financial situation was much better than some of his Siblings in particular Mei and Cavila[93].
207. Further, in answer to the question as to whether the amount of HK$190,000, which was roughly the balance of the 833 Joint Account a few days before Mother’s death, would be sufficient to provide a form of financial security to Sing, Yin had also said Sing had “his own money” so it was difficult for her to tell[94].
208. Sing’s own evidence during the trial was clearly not consistent with the common theme of the S&Y ’s camp that Sing’s financial security or future planning had been prejudiced in a material respect by his substantial contributions to Mother and the family.
209. Having regard to all above said, I do not find that there was sufficient evidence that Mother was concerned over financial security for Sing during his old age, or that there was any sufficient evidence that Mother had intended to gift to Sing the Disputed Sum by reason of her concern over Sing’s financial security.
210. As for the 3rd of the Reasons, as said earlier, all the Siblings had made contributions to Mother, and there was no sufficient evidence that Mother had treated one of the Siblings different from another. Mother was quite willing to lend money to help any of the Siblings and/or their family members. There was no sufficient evidence that Mother had wanted in particular to compensate Sing. In any event, as Yin had admitted, no amount was ever mentioned by Mother even if she did tell Yin that Sing should be compensated. Further, the reason why Mother said Sing should be compensated was that Sing had not made enough financial planning for his future, but as seen earlier, Sing had financial means and Mother should be aware of it.
211. I do not find that there was sufficient evidence that Mother had wanted to compensate Sing for reasons set out below.
212. It was submitted by Ms Chan that the Mother had a history of making gifts to Sing, and she cited as examples: (i) if the Kam Shek Property was not purchased with Sing’s money, then it was a gift by Mother of at least ½ share to Sing; (ii) in 2005, Mother also made a gift of ½ share of 2 properties in Zhuhai (“Zhuhai Properties”) to Sing, and that it was on the same day that Mother made a Chinese will gifting the Zhuhai Property to Sing (“Chinese Will”)[95], that she opened the 833 Sole Account, and that Mother’s intention of making a gift of the money was right from the date of opening of the 833 Sole Account by Mother.
213. However, for (i), it was Sing’s own case that the Kam Shek Property was purchased out of the Savings and the Profits and/or the HKD 500,000 Mother made out of the alleged HKD 17,000, and that he was the sole beneficial owner of Kam Shek Property, and it was not his case that it was a gift from Mother.
214. As for (ii), Diana had explained that the Zhuhai Properties were originally held by Father and his brother (ie the Siblings’ uncle) and after they had passed away, Father’s ½ share was inherited by Mother and the uncle’s ½ share was inherited by his widow (ie the Siblings’ aunt). It was the intention of Mother that her ½ share was to go to Sing upon her death. The aunt had also intended that her ½ share would go to her son. Diana said the Siblings all had to go to Zhuhai to sign and to surrender their rights, as they all agreed to Sing being given Mother’s ½ share.
215. There was no evidence that there had been any other gifts by Mother to Sing. Even if Mother had intended to gift to Sing ½ share in the Kam Shek Property and also ½ share in the Zhuhai Properties, this would not necessarily mean that she had intended to gift to Sing the Disputed Sum.
216. It would appear that on 14 April 2005, Mother had made a trip to Zhuhai to specially make the Chinese Will in the presence of the Zhuhai Notarial Office. In the Chinese Will, Mother stated that her ½ share in the Zhuhai Properties were to be given to Sing upon her death. Thus Mother knew about making a will and the effect of making a will, and even though there was no evidence that Mother was in ill health in 2005, she had no qualms about making a will. Had it been Mother’s intention to bequeath to Sing the Disputed Sum or all her savings/cash, or indeed any of her assets, there was nothing to stop Mother going to a solicitor’s office in Hong Kong to make a will to this effect. The fact was she did not.
217. Having considered all the evidence, I do not find that there was sufficient evidence that Mother’s intention whether at the time of the opening of the 833 Sole Account or later at the time of opening the 833 Joint Account was to return to Sing or to gift to Sing all the monies in the 833 Sole/Joint Account during Mother’s lifetime or that Mother’s intention was to hold all the monies in the 833 Sole/Account as the Trustee for Sing or that any such intention could be inferred from the circumstances of this case. Any presumption of advancement, save for the balance at date of Mother’s death, is also rebutted by Sing’s own evidence mentioned above including in particular Mother could freely use the monies without his consent and further the evidence should that Mother had freely transferred sums in and out of the 833 Sole/Joint account without Sing’s consent and/or without consulting Sing.
D.10.3 Interests
218. It was not disputed by Yee that she was a trustee of the Disputed Sum, save that her position was that it belonged to Sing and not to the Estate.
219. As seen in the Table, the maturity date of the SCB Time Deposit was 11 April 2012, and that upon maturity, the entire sum of HKD 2m (including Melissa’s HKD1m) and interests of HKD 17,020.86 were transferred into the SCB Joint Account. According to Yee’s evidence in her witness statement, on the same day, Melissa’s HKD1m and her share of the interest, ie about HKD 8,560 were transferred into Melissa’s bank account. Then on 12 April 2012, Yee said she transferred HKD 8,560 being Mother’s share of the interests from SCB Joint Account into Yee’s SCB Sole Account[96] for safe keeping after consulting Mother. Thereafter, on 21 May 2012 and 1 June 2012, Yee further transferred out of the SCB Joint Account HKD 650,000 and HKD 350,000 respectively for her own disposal[97].
220. On 22 March 2012, there was a HKD 1,800 credited into Mother’s SCB Sole Account[98], which appeared to be an amount from the bank to Mother which Yee referred to as promotion award. Yee claimed that she had paid Mother cash HKD 2,000 to cover the promotion award[99].
221. Although Yee said in her witness statement that she gave HKD 2,000 to Mother in cash to cover the Promotion Award, she never mentioned in her witness statement what happened to Mother’s interests of about HKD 8,560 which Yee transferred to Yee’s SCB Sole Account.
222. Ms Chan had asked Yee some top-up questions during examination-in-chief, and Yee then claimed she had repaid Mother the sum of about HKD 8,560 in cash on 2 April 2012 as due to the Swapping Arrangement, Mother’s HKD1m had become part of Yee’s HKD 6m time deposit which was renewed on 2 April 2012.
223. However, on cross examination, Yee then said she paid Mother the sum of HKD 8,560 in cash on 12 April 2012 or thereafter. On the other hand, it was also her evidence that she had paid for the expenses of Tsui Chuk Property out of the interests. She had given conflicting versions as to what happened to the interests on the Disputed Sum.
224. As seen in the passbook of the 2747 Account and the 2747 Transaction record, Mother had always had small amounts deposited into the 2747 Account whether by cash or by transfer, and there was no reason as to why Yee could not have simply transferred or deposited the interests of about HKD 8,560, or the sum of HKD 1,800 into the 2757 Account, since as seen earlier, it was Yee’s case that Mother had used the 2757 Account for “registration” purpose. Alternatively, Yee could have also transferred the interests of about HKD 8,560 into Mother’s SCB Sole Account, and later also keep Mother’s HKD 1,800 promotion award there.
225. I do not find Yee’s evidence that she had paid Mother the interests of HKD 8,560 in cash, or for that matter, the HKD 1,800 in cash, credible and in my view, she has to account to the Estate for the interests and profits on the Disputed Sum.
D.11 Conclusion on the Money Claim
226. Having regard to all said above, I reject Y&S’s Primary Case as well as their Alternative Case.
227. It is my finding that the Disputed Sum of HKD 1m and its interests of 8,560,43, totalling a sum of HKD 1,008,560.43 and any interest and/or profits derived therefrom were/are held by Yee and/or Sing on trust for the Estate, and they should account to the Estate such amounts.
E. The Kam Shek Property Claim
E.1 The Land Registry record
228. It was not disputed that the Kam Shek Property was initially acquired by Diana in her personal name on 23 July 1980 at a consideration of HKD 240,000.
229. As seen from the Land Registry record, there were two assignments of the Kam Shek Property after Diana’s acquisition of the property:
(1) On 30 August 1986, Diana assigned the property to Mei and her husband (Chan Cheuk Hon), as joint tenants, at a consideration of HKD 240,000 (“1st Assignment”);
(2) On 11 June 1990, Mei and her husband assigned the property to Mother and Sing, as tenants in common, each holding ½ share, at a consideration of HKD 480,000 (“2nd Assignment”).
E.2 The parties’ respective case
E.2.1 Sing’s pleaded case
230. Sing sought a declaration that he was the sole beneficial ownership of the whole of the Kam Shek Property. His pleaded case was, amongst other things, that[100]:
(1) the Kam Shek Property was acquired by Mother from Diana in the joint names of Mei and her husband on 30 August 1986 for HKD 240,000, which was paid by Mother from the Savings and the Profits;
(2) on about 11 June 1990, upon Mother’s request, Mei and her husband assigned the Kam Shek Property to the joint names of Mother and Sing as tenants-in-common;
(3) at the time of the execution of the above assignment, Mother specifically requested Sing to look after Hang and Kwong by providing them with accommodation and that to give Mother the comfort and assurance, Sing agreed to the suggestion of Mother to transfer ½ share of the Kam Shek Property to Mother to hold the same on trust for the limited purpose or permitting Hang and Kwong to use and occupy the Kam Shek Property for as long as they remained single and without a property of their own;
(4) Mother’s declaration of trust over the Kam Shek Property at the time of the Assignment[101] was made orally without any evidence in writing as was required by section 5(1)(b) of the Conveyancing and Property Ordinance, Cap 210;
(5) By reason of (4), Mother’s declaration of trust was incompletely constituted and therefore ineffective, or alternatively void or unenforceable, with the consequence that the ½ share of the Kam Shek Property held in Mother’s name resulted back to or otherwise remained with Sing, making him the sole beneficial owner of the whole of the Kam Shek Property;
(6) Further or in the alternative, Diana in the capacity of the administratrix of the Estate, is estopped from denying Mother’s trust over the Kam Shek Property and Sing taking absolutely the ½ share of the Kam Shek Property held in Mother’s name.
231. As seen above, it would appear that Sing’s pleaded case was rather convoluted in that there was a resulting trust in favour of him by Mother, as Mother’s trust in favour of Hang and Kwong failed, and thus he was the sole beneficial owner of Kam Shek Property, which was paid from the Savings and the Profits.
E.2.2 Diana’s pleaded case
232. Diana denied that Mother saved any money for Sing from his salary or that Mother had invested or made any material profits from any investment of any sum, and that it was Diana’s case that Mother only had fixed/time deposits with her own savings and the profits were low. It was Diana’s pleaded case, amongst other things, that[102]:
(1) On or about 23 July 1980, Diana purchased the Kam Shek Property at a consideration of HKD 240,000 and thereafter resided there until about 1986;
(2) On about 30 August 1986, on Mother’s request, the Kam Shek Property was assigned by Diana to Mei and her husband for the consideration of HKD240,000, and that HKD 200,000 of the said sum was first paid by Mother to Diana with Mother’s own funds and the other HKD40,000 was paid by Father;
(3) Sometime in around 1986, Mei and her husband moved into the Kam Shek Property and resided there until in around 1990;
(4) In around 1990, Mei wanted to give the Kam Shek Property back to Mother and despite that the consideration was HKD 480,000 on paper, no actual consideration was given by Mother to Mei and her husband, and it was the intention of Mother to gift half of the Kam Shek Property to Sing and as such, the Kam Shek Property was registered in the joint names of Mother and Sing as tenants in common each hold half share;
(5) Pursuant to the completion of the assignment of the Kam Shek Property in around 1990 Sing moved into the property and he had continued to reside there up to the present.
E.3 The source of funds for the purchase of the Kam Shek Property
233. It was Diana’s evidence during the trial that she first bought another flat in the Kam Shek Building in 1973 for about HKD 30,000 odd of which HKD 8,000 was paid by her and the balance paid by way of a mortgage loan obtained by her for 3 years for which she had to repay monthly with high interest and her monthly instalment of some HKD800. When Mother learnt of this, Mother suggested that she would pay off the outstanding mortgage for Diana. According to Diana, Mother lent her HKD 30,000 and that Diana repaid her HKD 40,000, for Mother to earn the interest instead of the bank, and that she had paid Mother what she was originally going to pay the bank.
234. She later sold the her first flat in the Kam Shek Building for HKD 210,000. She recalled that Mother and Father had said at the time that she sold it at a lower price and that she should have sold it to them instead and that was why she believed Mother and Father did have some savings by then.
235. Diana said the Kam Shek Property was bought by her in July 1980 for HKD 240,000 and in 1986, she had wanted to mortgage the Kam Shek Property to obtain a loan to buy a property in City One Shatin, but Mother and Father asked her to sell the property to them instead, and that Mother wanted to have the Kam Shek Property because she did not have any landed properties at that time. It was Diana’s written evidence was that the market value of the Kam Shek Property was about HKD320,000 to HKD 340,000 at the time, but she sold it to Mother at the same price she paid for it, ie HKD 240,000, because she intended to confer a benefit on Mother by not selling at the market price and not “earning” any money from Mother. At the trial, she had said it was to “報答”, namely to repay her parents. Diana became rather emotional when giving evidence over this matter during the trial.
236. Diana’s written evidence was that although she wanted to sell the Kam Shek Property to Mother and Father, Mei and her husband wanted to live there for 3 to 5 years and they verbally promised Mother and Diana that they would sell the Kam Shek Property back to Mother later at the original price. Although she was reluctant, Mother was satisfied with Mei’s promise and therefore Mother and Father paid for the property, and let Mei and her husband to live there.
237. In fact, it seemed that Hung and his wife also lived there for a short while when waiting for allocation of police quarter, and after that, Hang moved into Kam Shek Property in 1988 at the request of Mother and Sing also later moved in.
238. Yee’s evidence that the Kam Shek Property was on paper assigned to Mei and her husband because Mother and/or Father were registered tenants of a public housing unit, Mother (and/or Father) was not able to purchase a property in her own name. This part of Yee’s evidence was not really challenged by Diana, and it was not really disputed that Mei and her husband did not pay for any of the consideration for the 1st Assignment.
239. As seen earlier, S&Y’s pleaded case was that the purchase price of $240,000 was paid by Mother out of the Savings and Profits.
240. Diana’s case was that around HKD 200,000 was paid to her by Mother and around HKD40,000 by Father. Diana had also said the amounts were paid to her by Mother and Father in about 3 unequal instalments, the 1st instalment was about HKD 50,000 to HKD 60,000, and the payments were all made in cash and that the entire sum of HKD 240,000 was paid by Mother and Father in 1985, namely prior to the formal signing of the 1st Assignment.
241. According to Diana, she only found out from the Land Registry search record in 1994 after Mother passed away that that at the time when Mei and her husband transferred the Kam Shek Property, it was to Mother and Sing, as tenants in common, and on paper the consideration on paper was stated to be HKD 480,000, but she was told by Mei that in fact no money was paid by Mother at the time. Further, it was Mei who told her that she had suggested to Mother to add Sing as one of the owners of the Kam Shek Property, and it seemed that the other Siblings also only knew from the Land Registry search record after Mother passed away that the Kam Shek Property was held by Mother and Sing as tenants in common, and some of the Siblings had thought that Mother had given the whole of the Kam Shek Property to Sing[103].
242. Diana confirmed during the trial that she had also thought that Mother had given to Sing the whole of the Kam Shek Property as old fashioned parents or traditionally a parent would give to a son or a grandson and she would not feel unhappy about this. She also she and her sisters had gone to Zhuhai to sign documents to indicate that they surrendered their rights to Father’s ½ of the Zhuhai Properties and that they agreed to Mother giving it to Sing, as he is the oldest son.
243. It was Diana’s evidence that Mother had once said to her that Sing should be content that she had given him the Kam Shek Property, and that Mother was indicating that would be sufficient and that at that time, Mother was not happy about Sing always going to Malaysia to celebrate New Year and festivals there with his girlfriend Chew who is Malaysian. It was also Hung’s evidence that Mother did not like the character or the background of Chew.
244. Anyway, Diana had said she believed that it should have been Mother herself who decided only to give ½ share to Sing and to hold the Kam Shek Property with Sing as tenants in common, each holding ½ share.
245. So far as Viola was concerned, she said in her witness statement that she did not ask about and did not know about the details in relation to the transfers of the Kam Shek Property.
246. As set out earlier, I have accepted that each of the Siblings, and also Kwong had made payments/contributions to Mother and the family, some more substantially and regularly than the others.
247. Diana was the only one who could give first hand and direct evidence in relation to the 1st Assignment in August 1986. Diana was the one who assigned the Kam Shek Property to Mei and her husband at the request of Mother and she was the one who received the consideration of HKD 240,000. There was no suggestion that the consideration was not paid to Diana in full.
248. Ms Chan had submitted that Diana’s version about the payments of the Kam Shek Property by Mother was extremely confusing, and queried that if Mother could not afford the whole of the consideration of HKD 240,000 which she needed to pay by 3 instalments and further needed Father to pay HKD 40,000, why did Mother pay Diana in advance in 1985.
249. Diana’s explanation was that she had vacated Kam Shek Property and moved to City One Shatin and that Mother and Father agreed to pay her before the formal transfer of title. It was not disputed that in the later part of 1985, Diana had purchased a flat in City One Shatin for HKD 655,000.
250. Diana was the oldest of the Siblings and at the time of the trial, she was about 74 years old and had been suffering from diabetes mellitus, and as she was giving evidence of events of over 30 years ago, her memory, was understandably not perfect. Although her answers were confusing at times, I find her generally a credible witness.
251. Further, Diana did not choose to be the administratrix of the Estate but having being asked and agreed by the Siblings, she then applied for the letters of administration. She was only trying to carry out her duties as the Administratrix of the Estate, of which in fact all the Siblings are equal beneficiaries, and she was trying to trace and recover what she believed to be rightfully belonged to the Estate. Whatever she succeeded in obtaining for the Estate, her own share would only be one out of 11 shares.
252. As for Viola, she had said in her witness statement that she did not ask about it at the time of the transactions and did not know about the details in relation to the transfers of the Kam Shek Property. It is also clear as to what Viola had said in her pleadings in the 2nd Action (formerly the counterclaim over the Tsui Chuk Property under DCCJ 1375/2013) was based on the information reflected in the various conveyancing documents registered in the Land Registry.
253. Hung said he did not seem to know much about the transactions either.
254. As I have said earlier, there was no real dispute that Mother (whether with Father or not) had paid HKD 240,000 to Diana for the acquisition of the Kam Shek Property. As I find Diana a credible witness and I am prepared to accept her evidence that the HKD 240,000 was paid to her by instalments and were paid in full in 1985 by her parents, to enable Diana to pay for her City One Shatin flat.
255. Diana’s evidence was that the consideration for the Kam Shek Property was paid by Mother with her own money accumulated from the contributions made by all the Siblings throughout the years[104]. As I have said earlier, I accept all the Siblings had made contributions/payments to Mother, and there was no evidence that Mother had segregated her savings as to which part was from Sing and which part was from the others. I find there was no sufficient evidence that the money Mother used to pay Diana in 1985 for the acquisition of the Kam Shek Property had come from the Savings and the Profits, or the alleged HKD 17,000 and profits thereon, or that the money had come from Sing solely. I accept Diana’s evidence that the consideration for the Kam Shek Property had come from the money accumulated or saved by Mother (and Father) from contributions made by all the Siblings throughout the years.
E.4 Whether there was a resulting trust
256. From the pleadings, Sing’s case appeared to be based on a resulting trust, in that Mother’s trust in favour of Hang and Kwong failed, and therefore Mother held her ½ share on resulting trust for Sing. However, in S&Y’s Opening and Closing Submissions, Sing appeared then to be primarily relying on common intention constructive trust for his Kam Shek Property Claim. This was not however pleaded.
257. Ms Chan’s submissions on resulting trust in Closing were[105]:
(1) By 1980, Mother had more than sufficient money to pay for the Kam Shek Property:
(2) Even if Mother used some of her own money and money from Sing, it was the express intention of Mother that the 3 sons were to be benefited by the Kam Shek Property, not herself;
(3) Mother’s intention was expressed at the time of the execution of the assignment in front of the staff of the solicitors’ firm and shortly before that (when discussing with Sing), and that such intention could further be inferred from various matters[106]:
(a) Mother’s subsequent conduct of not telling other Siblings that she held ½ legal title of the property leading almost all the Siblings to believe that Sing was the sole beneficial owner of the property;
(b) her non-interference with Sing’s use and occupation of the property with Hang even after the death of Kwong;
(c) Occupation of Sing and Hang in the property from 1990 up to the present, for 30 years, and Sing and his girlfriend had been cohabiting in the property since 2003;
(4) Sing’s payment of all outgoings of the property for 30 years;
(5) Sing’s possession of the title deeds;
(6) Sing not buying any other landed property of his own even though he had the money due to the belief that he had the Kam Shek Property.
258. Ms Chan’s above submissions did not appear to be based on Sing’s own pleadings as set out earlier. The “resulting trust” as pleaded by Sing was, according to my understanding, first he was the sole beneficial owner throughout upon the 1st Assignment, as the consideration of HKD 240,000 came from the Savings and Profits; second, Mother suggested that ½ share be registered in her name for her to hold in trust for Hang and Kwong, to which Sing agreed; third, as the trust for Hang and Kwong failed, Mother therefore all along held the ½ share in trust for Sing, as from the 1st Assignment.
259. As set out in 8-005 of Lewin On Trusts, 12th Ed, referring to what was explained by Lord Browne-Wilkinson in Westdeutsche Landesbank Girozentrale v Islington LBC[107], a resulting trust arises in two sets of circumstances, namely (1) where X makes a voluntary payment to Y or pays (wholly or in part ) for the purchase of the property which is vested either in Y alone or in the joint names of X and Y, there is a presumption that X did not intend to make a gift to Y; the money or property is held on trust for X ( if he is the sole provider of the money) or in the case of a joint purchase by X and Y in shares proportionate to their contributions; and (2) where X transfers property to Y on express trusts but the trusts declared do not exhaust the whole beneficial interest.
260. It was not exactly clear whether Sing was relying on (1) or (2) above.
261. As Sing’s pleaded case on the resulting trust appeared to be that the property was held in trust for him as the consideration came from the Savings and the Profits which were held in trust for him by Mother, thus, his case would seem to be Mei and her husband had held the Kam Shek Property in trust for Sing through Mother.
262. I have found earlier that Mother’s savings were accumulated from contributions from all the Siblings. I have also found earlier that there was no sufficient evidence as to the alleged payment of HKD17,000 by Sing to Mother or that Mother had made HKD 500,000 by 1980. There was also no sufficient evidence that any Siblings, including Sing, that at the time when they made their contributions/payments to Mother, they, or any one of them had the intention that for any money given to Mother and not spent by Mother, such would be held on trust for the paying Sibling. As seen later in the 2nd Action, it was Viola’s pleaded case that the contributions made by her and the Siblings including Sing to Mother were made out of love and care for the Mother and were absolute gifts. This was in fact also the effect of what Sing had said during the Family Meeting.
263. As also said earlier, there was also no evidence that Mother had ever segregated one Sibling’s contributions from another, and in fact, the evidence was that the money given to Mother was all mingled. Further, as seen in Hashem v Shayif & anor [2009] 1 FLR 115, a person who claims to be interested under a resulting trust must establish, not only that he provided the purchase money, but also he did so in the character of a purchaser[108]. There was no such evidence on the part of Sing.
264. I do not find that there was any sufficient evidence that Mother was a trustee for Sing of those monies she paid Diana in 1965 as consideration for the 1st Assignment in 1986. In fact, this was also not what Ms Chan’s submissions were based on.
265. According to Ms Chan’s Closing Submissions, Sing’s case was that there was an express trust or inferred trust at the time of the 2nd Assignment and/or prior thereto, Mother said she was to hold the Kam Shek Property for the benefit of 3 sons, namely Sing, Kwong, and Hang.
266. Mr Lam submitted that Ms Chan seemed to be relying on the (2) type of resulting trust. However, as submitted by Mr Lam, for (2) type to apply, Sing must have transferred or made a disposition to Mother when declaring the trust which “do not exhaust the whole beneficial interest”, but at the time of the 2nd Assignment, both Mother and Sing were the transferees. I agree with Mr Lam that (2) type would not appear to be applicable.
267. Although Sing’s pleaded case was that he had agreed to Mother’s suggestion that ½ share of the Kam Shek Property was transferred to Mother to hold the same on trust for permitting Hang and Kwong to use and occupy the Kam Shek Property, there was no mention of Kwong by Sing at all in his witness statement.
268. According to Sing’s written evidence, prior to going to the solicitors’ firm for the 2nd Assignment, Mother had told him that the purpose to execute an assignment by which Mei and her husband were to convey the legal title of the Kam Shek Property to Mother and Sing, and that it was Mother’s wish that Sing should continue to live in the Kam Shek Property with Hang, and that at the solicitors’ office, Mother told the staff that her other son, Hang, was to benefit from her half share of the property[109]. There was no mention of Kwong, who had never lived in the Kam Shek Property. During examination in chief, Sing was asked to clarify, and Sing then said that Mother had mentioned to the staff of the solicitors’ office 2 sons. I do not find Sing’s explanation comprehensible. Sing’s written evidence should be based on his own understanding of Mother’s intention and suggestion to him and which he said he had agreed. In any event, if Mother did tell the staff that her ½ share was held in trust for her 2 sons, Hang and Kwong, there was no reason why she was not advised to make a proper declaration of trust, or something in writing.
269. It is interesting to note that Yee repeated in her own witness statement Sing’s written evidence, and there was also no mention of Kwong.
270. The evidence from some of the Siblings including Diana was that Mother did not tell them that she held ½ legal title of the property and that they had believed Sing was the sole beneficial owner of the property. It was Diana’s evidence that according to Mei, it was Mei who suggested to Mother to add Sing as one of the owners of the Kam Shek Property. Whichever, Mei and her husband were the assignors in the 2nd Assignment, they would certainly know who the assignees were. Hang’s written evidence was that he knew in about 1990, Sing became the registered owner of the property but he did not know Mother had ½ legal title, but in 2008, he had intended to apply for public housing and when he discussed with Mother, Mother did tell him not to as he could live in the Kam Shek Property. In fact, during the trial, Hang seemed to have changed his stance somewhat and his evidence was that Mother had told him that he had a share in the legal title in the Kam Shek Property.
271. Mother had 12 children. That Mother did not inform all her children that she and Sing were holding the legal title of the Kam Shek Property equally as tenants in common was neither here nor there, and I do not find that an inferred intention could be drawn therefrom.
272. Mother clearly had allowed both Hang and Sing to use and occupy Kam Shek Property throughout whether before or after Kwong’s death, and previously had allowed Mei and her husband, and also Hung and his then newlywed wife to live there for awhile. In fact, if any intention was to be inferred, it would be that Mother had maintained the control of the property after the 1st Assignment as to who could reside in the Kam Shek Property.
273. I accept the fact was that both Sing (and later his girlfriend Chew) and Hang had lived in the property from about 1988 up to the present, for 30 years. If any inference was to be drawn, then it would point to Mother’s intention was that Sing and Hang both having beneficial interest, rather than Sing having sole beneficial interest in the Kam Shek Property.
274. Whichever, Sing’s latest evidence during the trial would seem to be that Mother’s intention was that Hang and Sing should both benefit from the property, and that each was to hold ½ share and the ½ share held by Mother was as trustee for the benefit of Hang.
275. Sing’s evidence also seemed to be that as Mother had asked him to look after Hang and to ensure Hang could live in the property for life, he should be the trustee of Hang’s ½ share held by Mother after Mother’s death. However, there was no sufficient evidence that Mother had intended Sing to be the trustee in her place in case of her death, even though according to Sing, the title deeds of Kam Shek Property were held by him. In any event, it was not clear why Hang would still need to have a trustee to hold his share, but he wished to do so, then Hang should be the one who should make a claim against the Estate for the beneficial interest of his ½ share, and/or for his ½ share to be settled on Sing to be the trustee holding his ½ share.
276. As Sing’s evidence as to what Mother said or suggested was confusing, I find it was not quite clear as to what Mother’s intention had been, save that she clearly had given instructions to the solicitors that ½ share was to be registered in her name. In any event, Hang seemed now to regard himself as having ½ beneficial interest in Kam Shek Property.
277. To summarise, Sing had said Mother’s ½ share was for the benefit of Hang, and he had also said Mother’s ½ share was for the benefit of Hang and Kwong. He then said after death of Mother, her ½ share should be given to Hang, and that Sing was only doing his duty to fight for ½ share for Hang, as Mother had given the ½ share to him to hold on trust for Hang. It was also Sing’s evidence that he made a claim for the whole of the Kam Shek Property because he was sued by Diana.
278. Sing’s evidence clearly contradicted his own pleaded case that he was the sole beneficial owner of the Kam Shek Property.
279. Further, whether Mother had specifically requested Sing to look after Hang and Kwong (who was then alive) or not, there was simply no sufficient evidence that Mother had needed Sing’s agreement to hold the Kam Shek Property on trust for Hang and Kwong, as appeared to be pleaded by S&Y[110]. The evidence in fact showed that all along that it was Mother herself who made the decision as to who was to use and occupy Kam Shek Property. It was Mother who gave instructions to the solicitors to prepare the 2nd Assignment on the basis that she and Sing were to hold the property as to tenants in common holding ½ share each. It was Mother who told Sing to go to the solicitors’ office to sign. All along, it was Mother who made the decision and I find the evidence showed she clearly knew what she was doing.
280. Having considered all the evidence, it is my finding that Sing failed to prove that there was any resulting trust of Mother’s ½ share in his favour, as pleaded by him.
E.5 Whether any common intention constructive trust
281. As said earlier, in S&Y’s Opening and Closing Submissions, Sing in fact changed course, and primarily relied on there being a common intention constructive trust[111].
282. As submitted by Mr Lam, this argument was not available to Sing as this was never his pleaded case, citing Mui So Bing v Wan Chi Shing & Ors [2019] HKCA 1341. I agree.
283. The common intention submitted by Ms Chan was set out in paragraphs 31 to 37 of S&Y’s Closing Submissions. According to her submissions, (i) the express agreement, arrangement and understanding between Mother and Sing was for Kwong and Hang to benefit from the ½ share held by Mother because Sing already held ½ share of the legal title of the property[112], and (ii) there was no inconsistency in Sing claiming for the whole beneficial interest of the Kam Shek Property and maintaining at the same time that Hang had interest in it, and that if Hang were to leave the property eg upon death, the whole of the Kam Shek Property would be Sing’s[113].
284. I have to say I do not find (i) consistent with (ii). There was no evidence that if Hang were to leave the property eg upon death, it was Mother’s intention that the whole of the Kam Shek Property would be Sing’s. This was not pleaded. The fact that the property was held by Mother and Sing as tenants-in-common would contradict any inference that the property would go to Sing, upon Hang’s death, or upon Mother’s death. As the latest version of Sing’s evidence was that upon Mother’s death, he was to be the trustee of Mother’s ½ share, which should be Hang’s, Sing seemed to accept that the ½ share should go to Hang, which Hang himself had also claimed. If this was the case, then if anything should happen to Hang, Hang’s ½ share should go to Hang’s own estate. There was no evidence that Hang had made a will bequeathing his interest to Sing.
285. Even if there was any common intention for (i), there was no “detrimental reliance and unconscionable result” as submitted by Ms Chan. First, any detrimental reliance by Hang was not relevant since Hang was not the one who counterclaimed.
286. Second, as said earlier, it was Sing’s evidence that even though he had the money, he was not interested in buying landed properties, and that that was his choice. It was not his evidence that he was not interested or he did not buy because he was the sole beneficial owner of Kam Shek Property. Although he had paid for all the outgoings of the Kam Shek Property for all those years, he was residing there rent free with his girlfriend. Although Sing paid for all the outgoings, these were mainly for his benefit. As Hang had said, when he returned, he usually would just stay in his own room and in any event, there was no evidence that Hang was unwilling to pay for his own share of outgoings.
287. In any event, I do not find there was sufficient evidence of any detrimental reliance on the part of Sing.
E.6 Conclusion on the Kam Shek Property Claim
288. From all accounts, although Mother was illiterate, she was the one who managed the family finances all along and she was the one who was doing all the investments. She was the one who arranged for Sing to attend a solicitors’ firm to execute the 2nd assignment from Mei and her husband to Mother and Sing on 11 June 1990. The 1st Assignment of the Kam Shek Property was to Mei and her husband to hold as joint tenants, and yet for the 2nd Assignment, although the assignors (ie Mei and her husband) assigned as joint tenants, the assignees (ie Mother and Sing) were to hold as tenants-in-common as to ½ each. In my view, Mother must have given such specific instructions to the solicitors firm and further the solicitors firm would have explained to Mother and Sing the differences between holding as joint tenants and holding as tenants-in-common. I find that Mother’s intention was clear, in that she and Sing were to hold as tenants-in-common and if anything happened to Mother, that other ½ share held by Mother would not automatically go to Sing.
289. In light of all above, it is my finding that Sing had not discharged the burden on him, that it was Mother’s intention or that there was any common intention that he was the sole beneficial owner of the whole of Kam Shek Property, or there was any trust, whether resulting or constructive, that the whole of Kam Shek Property was held for him. There was also no sufficient evidence that it was Mother’s intention or any common intention that he was to be the trustee of Mother’s ½ share of the property for Hang. I find Sing fails to establish the Kam Shek Property Claim.
F. The Tsui Chuk Property Claim
F.1 The Land Registry record
290. The Land Registry record of the Tsui Chuk Property[114] showed that :
(1) On 4 September 1989, there was an agreement for sale and purchase signed by Mother and Viola, as joint tenants, to purchase the property at a consideration of HKD 476,000 (“SPA”);
(2) On 18 November 1989, the property was assigned to Mother and Viola, as joint tenants, at a consideration of HKD 476,600 (“Assignment”);
(3) on 23 August 2014, a certified copy of death certificate of Mother was registered at the Land Registry.
F.2 The parties’ respective case
F.2.1 Sing’s pleaded case
291. It was Sing’s pleaded case in the 2nd Action that[115]:
(1) By reasons of matters pleaded by him, Viola did not have any beneficial interest in the Tsui Chuk Property since its acquisition by Mother in 1989;
(2) In about 1989, Mother with Sing’s consent purchased with cash in one go the Tsui Chuk Property, which was purchased with the Savings and the Profits;
(3) The Tsui Chuk Property was purchased in the joint names of Mother and Viola because at the material time, Viola was unmarried and living with Mother in a public housing unit and since Viola was assisting with the paper work of the acquisition, it was convenient for her to be joined as a co-tenant;
(4) Viola did not make any monetary contribution towards the acquisition of the property;
(5) Since acquisition, the property had been the family home for Mother and the unmarried Siblings.
(6) During the time when Viola resided in the property, Viola never regarded herself to be a co-owner nor assumed any responsibility of a co-owner;
(7) At the time of the purchase, Sing was not living with Mother but Mother gave him the key to the property because he was regarded as the sole beneficial owner of the property;
(8) Immediately before her death, Mother was in occupation of the property alone.
(9) There was the Family Meeting on the day after Mother’s death. An agreement was reached at the Family Meeting attended by Diana, Sing, Yin, Yee, Hung, Hang, Viola, Cavila, and some of their respective spouses that:
(a) the Tsui Chuk Property was not to be sold;
(b) the property would be used solely for ancestral worship of Mother and for gathering of the Siblings and their respective immediate families;
(c) maintenance of the Tsui Chuk Property was to be paid out of a family fund to be established;
(d) no Sibling on his/her own should occupy the property permanently or to the exclusion of the other Siblings;
(e) limited occupation of the property by any of the Siblings living in Hong Kong was permitted on payment of rent and other outgoings of the property;
(f) Siblings living overseas who returned to Hong Kong could occupy the property rent free on temporary basis;
(g) a domestic helper employed under the name of Yee would stay in the Tsui Chuk Property to look after it
(“Tsui Chuk Agreement”)
(10) During the Family Meeting, it was also suggested that the property be held in the joint names of Viola, Hang, and Hung’s son Tsz Chung so that Viola would not be the sole legal owner but would be holding the property with the others on trust for the Siblings;
(11) Subsequent to the Tsui Chuk Agreement, of the Siblings, Sing, Viola, Yin, Melissa, Yee, Hang, Ling, and Cavila had indicated their agreement to the Tsui Chuk Agreement, and there were minutes kept by Yee and signed by the others (“Signed Minutes”);
(12) on 27 January 2014, without prior notice and in breach of the Tsui Chuk Agreement, Viola evicted and excluded all other Siblings and their immediate families from the use or occupation of the Tsui Chuk Property.
(13) By reason of the fact that the entire purchase price was paid from the Savings, and the Profits thereon which beneficially belonged to Sing, Mother and Viola were holding the Tsui Chuk Property as trustees on a resulting trust in favour of Sing;
(14) Further or in the alternative, should it be found that the entire of the purchase price was paid from the Mother’s own money, the Tsui Chuk Property was held jointly by Mother and Viola on trust for the sole benefit of Mother which upon Mother’s death became part of the Estate;
(15) Further or in the alternative, should it be found that the entire interest in the Tsui Chuk Property went to Viola as surviving joint tenant, Sing said Viola had by the Signed Minutes disposed of her interest in writing in favour of herself and all the other Siblings;
(16) Further or in the alternative, Viola was estopped by reason of matters pleaded from denying the use and enjoyment of the property by all the Siblings pursuant to the Tsui Chuk Agreement.
292. To summarise, Sing’s case was based essentially on :
(1) a resulting trust of the entire property in his favour;
(2) there was the alleged Tsui Chuk Agreement which was binding on the Siblings;
(3) Viola had disposed of her interests pursuant to the Tsui Chuk Agreement.
293. There were 5 declarations sought by Sing in his statement of claim in the 2nd Action, as follows:
(1) that upon Mother’s death, Viola was holding the property on a resulting trust in favour of Sing as sole beneficial owner (“Declaration 1”);
(2) Alternatively:
(i) that Mother was the sole beneficial owner of the property and that upon her death, the property formed part of the assets of the Estate (“Declaration 2”);
(ii) by agreement of all the beneficiaries entitled to the Estate, the property was to be owned, used and enjoyed jointly by all the Siblings in accordance with the terms of the Tsui Chuk Agreement (“Declaration 3”);
(iii) alternatively, Viola had by the Signed Minutes disposed of her legal or equitable right or interest in the property in favour of all the Siblings for their joint use and enjoyment of the property in accordance with the terms of the Tsui Chuk Agreement (“Declaration 4”);
(iv) Viola was estopped from denying all other Siblings from using or enjoying the property jointly with her in accordance with the terms of the Tsui Chuk Agreement (“Declaration 5”).
F.2.2 Viola’s pleaded case
294. On the other hand, Viola denied Sing’s claim and her pleaded case was, in short:
(1) all contributions made by Viola and the other Siblings to Mother were made out of love and care for Mother and were absolute gifts to Mother for her use and Mother had always been in charge of managing the family’s finances;
(2) it was specifically denied that the entire purchase price of the property was paid from funds of Sing’s/the Savings, or the Profits thereon, or that Mother and Viola were holding the property as trustees on a resulting trust in favour of Sing;
(3) at least during the period of 1989 to 1996 (prior to her first marriage) as well as between mid-1997 and late 2001 (after end of her first marriage and before her second marriage), she did shoulder responsibilities as a co-owner towards the maintenance and household expenses of the property;
(4) The discussions which took place in the course of the Family Meeting were casual and informal in nature and were in no way intended by the Siblings present to be legally binding;
(5) in particular, Viola had never agreed to the Tsui Chuk Agreement;
(6) During the Family Meeting, Sing never asserted or claimed to be the sole beneficial owner of the property, and none of the other Siblings or persons present had raised or mentioned the same;
(7) Further, since not all of the Siblings were present at the Family Meeting, it was denied that the alleged Tsui Chuk Agreement would constitute a binding contract amongst all the Siblings;
(8) Further, the alleged Tsui Chuk Agreement was not supported by any valuable consideration and was thus void and/or unenforceable;
(9) Further, the alleged Tsui Chuk Agreement was void and/or unenforceable as it failed to comply with the requirements underht the Conveyancing and Property Ordinance, Cap 219;
(10) It was further denied that Viola by the Signed Minutes had disposed of her interest in the property in favour of all the Siblings for their joint use and enjoyment.
F.2.3 The factual issues
295. Essentially, there were two primary factual issues:
(1) whether the purchase of the Tsui Chuk Property was funded entirely by Sing, from the Savings and the Profits;
(2) what was discussed in the Family Meeting and the legal effect of the discussions.
F.3 Proposed joinder application
296. Mr Lam submitted in his Opening on 6 May 2020 that Sing had no locus standi to seek Declaration 2, as he was the plaintiff in the Tsui Chuk Property Claim in his personal capacity, and he did not represent the Estate, and that it was not open to Sing to seek that declaration[116].
297. To try to remedy the situation, on 11 May 2020, the day before the commencement of the trial, S&Y suddenly took out a summons for leave to join Diana in her capacity as administratrix of the Estate as the 2nd defendant to the 2nd Action (“Joinder Summons”).
298. This was a very late application, and Sing was warned that if he were to be granted leave, the trial could be postponed, since Diana was entitled to first, oppose the Joinder Summons, and second, to seek time to file a defence, and if such were to result in the trial being derailed, then Sing could face serious costs consequences. Ms Chan was allowed time to take further instructions, and subsequently, S&Y decided to withdraw the Joinder Summons, and costs were ordered against him in favour of Diana on behalf of the Estate, to be taxed, if not agreed on party and party basis.
299. Notwithstanding the above, in her Closing, Ms Chan submitted that “Viola by her solicitor, took advantage of the fact that Sing could not oppose her beneficial interest on behalf of the estate and persuaded Diana by wrong legal advice not to do the same in order she could be left with the unchallenged right to use the Tsui Chuk. The fair administration of justice should not allow this to happen”[117]. Ms Chan then went on to set out the provisions of Order 15 rule 6(1) and submitted that any order to join Diana (in the capacity of the Administratrix) to the Tsui Chuk Property Claim was to ensure that any judgment of the court relating to the property would be binding on Diana and the Estate[118], and Ms Chan appeared to be inviting the Court to order of its own motion for Diana (as the Administratrix) be added at a party.
300. However, first, the Joinder Summons was withdrawn, and second whether it was withdrawn or whether the Court were to order of its own motion any joinder or not, the main issue was the lateness the matter was brought up. Whether the Court were to order of its own motion or to grant Sing’s application, Diana would still have to be allowed an opportunity to amend her pleadings and/or file fresh pleadings.
301. Since Sing’s statement of claim was signed by Ms Chan, no doubt his pleadings were drafted/settled by her. It was not Diana’s fault if Sing had failed to join her and/or the Estate or brought up this matter in the first place. I agree with Mr Lam, with Sing having withdrawn the Joinder Summons on the 1st day of the trial, it was not open for Ms Chan to make those submissions again.
F.4 Viola’s beneficial ownership in the Tsui Chuk Property
302. Viola had said in her witness statement that in about 1989, Mother told her that she was going to make an application to purchase a flat under the Home Ownership Scheme but initially, Mother’s application was not successful, and it was placed on waiting list. Finally, Mother succeeded with her application.
303. It was the evidence of Yee, her husband Wong and Sing that they, the Mother, Viola, Ling and Sing’s girlfriend Chew all met in Yee’s home in Broadcast Drive to discuss about which unit to select (“Selection Meeting”). It was on that occasion that Sing and Wong had suggested Viola to be joined as a co-owner of the Tsui Chuk Property so that she could run errands and process paper work for the Mother. During the trial Sing had also mentioned that Mother had considered buying the Tsui Chuk Property with a mortgage and that as Mother was a housewife, Viola was suitable to be a co-owner as she was employed, but later, it was decided that Mother would buy the property with cash in one go.
304. As said earlier, Mother had paid for the purchase price of the Tsui Chuk Property of HKD 476,600 in cash and in one go.
305. Diana was not present at the Selection Meeting. Although Sing did not mention specifically the Selection Meeting in his witness statement/s, he had said in his witness statement that he could not be Mother’s co-owner as he was not a registered occupant of the public housing unit and that he had told Mother to make Viola her co-owner and that Wong had also said he thought that Viola was a good choice, and that the decision to nominate Viola as one of the co-owners was known to all the Siblings. This was repeated by Yee in her witness statement although she also did not specifically mention the Selection Meeting.
306. During the trial, Wong confirmed that he was present at the Selection Meeting which was held in his and Yee’s home. He confirmed Yee’s evidence and that that he and Sing had proposed Viola to jointly hold the property with Mother.
307. Wong was also a teacher before his retirement and he could read English. He gave straightforward answers when cross examined. Although he is Yee’s husband, and no doubt he would have supported Yee’s evidence, I find what he, Yee and Sing said about the Selection Meeting was probable. In fact, this would also be natural, that Mother would like to seek the views of her children (at least some of them) when selecting the unit as the selected unit if allocated would be her future home.
308. Anyway, by 1989, only Kwong, Viola and Cavila were still living with Mother in the public housing unit. Thus, the only registered occupants in the unit would be those 3 and Mother. Kwong had health/drug problems and although Viola was then working as a flight attendant, she was the older of the two youngest girls. Further, by then, Viola had been working for some 6 years, and if Mother had indeed wanted to apply for a mortgage and/or to pay by instalments, to add Viola as a joint owner would probably have helped in proving her ability to make instalment payments.
309. Having considered the evidence, I am prepared to accept the evidence of Sing, Yee and Wong that at the Selection Meeting, it was discussed and suggested that Viola be added as a joint owner of the property selected.
310. Diana had said in the Family Meeting that soon after Mother bought the Tsui Chuk Property, she had called Diana that she had paid the purchase price at one go but that she would like others to believe that she paid by instalments so that the Siblings would continue to pay monthly contributions to her, and that Mother had wanted Diana to make sure that a room in the Tsui Chuk Property was left to Kwong[119].
311. Although S&Y had cast doubt that Mother indeed said those words to Diana, in fact, what Diana said about Mother had told her was not inconsistent with Sing’s evidence that at one stage Mother was thinking of paying the purchase price of the Tsui Chuk Property by instalments/mortgage.
312. Viola herself had not much to say in her witness statements as to about what happened at the time of acquisition of the property and in her witness statement, she only said it was at the behest and arrangement of Mother that she be named as a joint tenant.
313. There seemed to be some confusion on Viola’s part as to the difference between being merely a legal title holder/owner, and being a beneficial owner. This led the Court to ask her why he she regarded herself as having beneficial ownership, she said this was because Mother trusted her, and when asked whether Mother had gifted it to her, she answered “no”, and that Mother knew her character, that Viola would obey Mother, her elder sisters and brothers, and that she was always passive, and that Mother knew that upon her death, Viola would deal with the property in a fair manner. She further explained that she had no financial problems and there was no need for her to “霸間屋”, and that was why she had felt there was no problem in relation to the suggestion that the property be used as an ancestral home, but then later, there were many events which had happened which she felt were unjust, and that others of the Siblings had backed out from what was agreed in the Family Meeting, and Mother’s HKD 1m then became Sing’s, and that her other elder brother and sister tried to isolate Diana and Hung.
314. Viola had gone on to say she did not think what happened was right and that was why she decided to claim back the ownership of the Tsui Chuk Property and that she intended to sell it and to use the proceeds to look after Hang and Hung’s children.
315. There was no evidence from Viola was to what Mother’s intention had been in adding her as a joint tenant at the time of acquisition of the property.
316. Although Viola claimed in her witness statement that she had shouldered responsibilities as a co-owner towards the maintenance and household expenses of the Tsui Chuk Property, no particulars were given by her. When she was asked during the trial, she said she was paying Mother HKD 2,000 per month and it was up to Mother what Mother was using it for, whether for Tsui Chuk Property household expenses or for investment of gold.
317. It was not disputed that one of Mother’s 3 HSBC Savings Accounts, namely the 3879 Account, was used to pay all outgoings of Tsui Chuk. As seen from the last page of the passbook[120], such outgoings had included management fees, telephone bills, rates, electricity between 31 December 2012 until March 2013 and there were two deposits by cheques of HKD 500 each which Yee said were paid by her and it was Yee’s evidence that the outgoings were paid by her with interests earned from the Disputed Sum. Finally, on 7 September 2013, Sing announced in the “Hello My Friend” chat group to the Siblings that he would take over the payment of all outgoings and the management fees of the Tsui Chuk Property.
318. It was also Viola’s evidence that after Mother’s death, Cavila had arranged for her domestic helper to stay in the Tsui Chuk Property, and thereafter Cavila was responsible for paying utilities at Tsui Chuk Property.
319. During the trial, Viola had said that after she reclaimed possession of the Tsui Chuk Property on 27 January 2014, she had paid outgoings including rates, water bills, and repairs to window.
320. In my view, had Viola regarded all along she was the sole beneficial owner after Mother’s death, she should have taken over all the outgoings and various payments of the Tsui Chuk Property immediately upon Mother’s death.
321. Viola had said in the Family Meeting that in relation to the Tsui Chuk Property “我唔識㗎，我淨係做跑腿，吓”/she did not know anything, and she was only running the errands, because she was living with Mother[121], and also, “I don’t have anything” and that “I did what I was told to do”[122]. During the trial, when cross-examined she claimed she was referring to carrying out Mother’s wish to make a room available for Kwong. However, Kwong died in 1996, and the Family Meeting was 2013. I do not find what Viola answer in this respect was credible.
322. Having considered what Viola had herself said in the “Hello My Friend” chat group, I have come to the view that Mother only added Viola’s name as a nominee co-owner, and that she was not intended by Mother to be the sole beneficial owner upon Mother’s death.
323. However, having said this, this would not mean that Sing had/has sole beneficial ownership in the Tsui Chuk Property.
F.5 Declaration 1
324. As seen in Sing’s pleaded case set out earlier, Sing’s case that he was the sole beneficial owner of Tsui Chuk Property was based on a presumption of resulting trust. As accepted by Ms Chan in her Closing, there was little evidence on the express intention regarding Sing’s beneficial interest in the Tsui Chuk Property, Sing would need to rely on the presumption of resulting trust to establish beneficial interest by reason of his making direct payment for the purchase[123].
325. As found earlier, there was no sufficient evidence that Mother’s monies or savings in the 2747 Account had come solely from Sing ie from the Savings and Profits, and I have found that in fact it came from contributions from all the Siblings. There was no sufficient evidence that the consideration for the Tsui Chuk Property had come from the Savings and Profits, or the alleged HKD 17,000, or any profits made thereon from investments. Nor was there any evidence on the part of Sing that he had provided those contributions to Mother in the character of a purchaser.
326. Even on Sing’s own evidence, what Mother said to him before the purchase was that she had enough money from what Sing had given her and the profits derived from it and that she did not need a mortgage loan and preferred to pay the whole of the purchase at one go[124]. Mother never said to Sing that she was purchasing the property for Sing or on trust for Sing. Nor was there any evidence from Sing to the effect that he had expressed to Mother or formed an agreement with Mother that he should obtain sole beneficial ownership in the Tsui Chuk Property by virtue of his alleged contribution to the purchase price.
327. Further, Yin had accepted during cross-examination that Mother used her own money to pay for the Kam Shek Property and the Tsui Chuk Property.
328. Whether Viola, as joint tenant with Mother at the time of acquisition, was only a nominee co-owner or not, the burden was on Sing to prove that he was the sole beneficial owner under a resulting trust.
329. Having considered the evidence, Sing had failed to discharge the burden on him. No presumption of resulting trust can arise on the evidence. Thus, I find that Sing’s primary claim for Declaration 1 fails.
F.6 Declaration 2
330. I accept Mr Lam’s submission that Sing had no locus standi to seek Declaration 2, and his claim in this respect fails.
331. Notwithstanding this, as this Court had pointed out during the trial, Diana has a duty to carry out her duties as the Administratrix, and it is her duty to bring in all assets of Mother, and if there is a dispute as to Mother’s assets, she should seek proper legal advice as to what steps she should take to recover assets for the Estate, as it was further suggested that there could be conflict of interest between her and Viola in relation to the Tsui Chuk Property. In any event, Sing and other Siblings who took the view that Viola was no more than a nominee title holder can themselves seek further legal advice, as to what actions/options are open to them, in light of this Court’s findings.
F.7 Declaration 3
332. For this declaration, what Sing was seeking that by agreement of all beneficiaries entitled to the Estate, the property was to be owned, used and enjoyed jointly by all the Siblings in accordance with the terms of the Tsui Chuk Agreement.
333. As pointed out by Mr Lam, the above was inconsistent with what was averred by Sing in paragraphs 24 and 26 of his Statement of Claim in the 2nd Action, namely (1) that only those Siblings present at the Family Meeting, namely Diana, Sing, Yin, Hung, Hang, Viola and Yung, agreed to the Tsui Chuk Agreement (at paragraph 24), and (2) after the Family Meeting, only 8 of the Siblings, namely Sing, Yin, Melissa, Yee, Hang, Ling, Viola and Cavila) further indicated their agreement (at paragraph 26). Although according to Sing’s Reply, Mei had orally agreed, no particulars were given and Mei did not attend trial to give evidence. In any event, according to paragraph 26, Diana, Hung did not subsequently agree.
334. Whichever, even on Sing’s own case, not all the Siblings had agreed, and in any case, there was also no sufficient evidence that they had all agreed.
335. In so far as I can see, it seems no further submissions were made by Ms Chan in Closing in relation to Declaration 3, nor on the validity and enforceability of the Tsui Chuk Agreement.
336. Although all the Siblings are beneficiaries of the Estate, as I have said, first, not all the Siblings were present at the Family Meeting, and second, not all the Siblings had signed the Minutes, or otherwise indicated their consent to the Tsui Chuk Agreement, and third, there was no sufficient evidence that all the Siblings had agreed to the terms of the Tsui Chuk Agreement. I further agree with Mr Lam, that the terms of the Tsui Chuk Agreement were too imprecise or general to have any contractual force, eg it was not at all clear from the Minutes[125] to whom the monthly rent of HKD 6,000 was to be paid[126].
337. Having regard to the above, I agree with Mr Lam that Sing’s claim for Declaration 3 fails.
F.8 Declaration 4
338. For Declaration 4, Sing sought a declaration that by the Signed Minutes, Viola had disposed of her legal or equitable right or interest in the Tsui Chuk Property in favour of herself and all other Siblings for their joint use and enjoyment of the property in accordance with the terms of the Tsui Chuk Agreement.
339. In light of what I have said earlier in relation to the validity and enforceability of the Tsui Chuk Agreement, it follows that Sing’s claim for Declaration 4 fails.
F.9 Declaration 5
340. For this declaration, Sing sought that Viola be estopped from denying all other Siblings from using or enjoying the Tsui Chuk Property jointly with her in accordance with the terms of the Tsui Chuk Agreement.
341. In light of the Tsui Chuk Agreement not being binding nor enforceable, there is no estoppel as pleaded by Sing, and I am of the view that his claim for Declaration 5 also fails.
F.10 Conclusion on the Tsui Chuk Property Claim
342. In light of all above said, I find Sing fails to establish the Tsui Chuk Property Claim.
G. The Defamation Claim
G.1 The parties’ respective case
343. Yee’s Defamation Claim was based on two emails sent by Diana in her capacity as the Administratrix respectively on 4 December 2013 (“1st Offending Email”)[127] and on 21 December 2013 (“2nd Offending Email”)[128].
344. The material contents of the 1st Offending Email are reproduced below:-
“2013 年 11 月 15 日弟妹們要我向郭筱儀發一律師信追討三本匯豐銀行之問題存摺，當日我已預料到行動一定不成功，因此舉等同 ‘與虎謀皮’，尤其是一隻厚顏無恥的“笑面虎” 。
在她回覆律師的電郵中 (如下)，表示自己只扮演一個引薦角色，一切置身事外，敷衍塞責；其實她正是幕後黑手！真不可笑但可悲 ! !
她在 7 月 12 日發給我的電郵中，訛稱她與振聲到中環取銷亡母之戶口，拿取本票，同日兩人在擺花街匯豐銀行開立一聯名戶口；戶口號碼為 052-261274-833 她要我馬上將遺產轉入該戶口，上述戶口號碼乃由她提供。
謊言又出現了，查擺花街的匯豐銀行分行代碼為 043，而 052-261274-833 乃黃大仙匯豐銀行分行之戶口號碼，我有理由肯定該戶口已一早開立，以方便將亡母生前的大額財產轉帳拿走，再提供戶口內僅餘少量現金以欺瞞眾人。我不用再解晝，稍為有丁點兒知識的稚子也明白真相。
2013 年 11 月 15 日及 2013 年 12 月 4 日早上顏律師一再表示我可動用遺產支付一切法律行動之費用，不過請大家放心，我不會打沒有把握的仗，行動將會升級，我會繼續代母討回公道，誓除奸佞，以慰她在天之靈，要揭出誰是主謀或合謀在亡母生前，尤其是死後所作之一切胡作非為，騙取她一生之積蓄。
以上乃禽獸之行為，尚有良知及血性者，應及早覺悟，自首吧 !”
345. The material contents of the 2nd Offending Email are also reproduced below:-
“我有錯嗎？我今日之身份不單是向我追發三封律師信之長姊，而更重要的乃是法庭頒授與我執行遺產分配令之遺產執行人。
我錯在當初給與你們太多機會，勸喻『放下屠刀』， 不要將親情斬斷。就算來世未能續緣，也應珍惜此生「同根生」 之手足情。
結果是你們對我的 “哀求” 無動於衷，不打緊，還再三向我發律師信追殺。
我向你等的指摘不涉誹謗，“笑面虎”乃一形容詞，泛指所有經常戴著一「燦斕笑容」 面具者，而其所作所為近乎「王」 者的權威人士之專稱。
至於 “禽獸”乃指涉嫌有詐騙巨款者之「非人」 統稱。所有曾經干犯此等罪行者也請對號入座。
我手上已掌握匯豐銀行及渣打之巨額款項轉移紀錄，如對我查帳之結果存疑，可要求我在電郵中公開，到時不要告我「爆私隱」。多月來，你們的律師信已嚴重威脅我此長期病患者之健康，我的醫療報告已亮紅燈。
你們明知故犯，得寸進尺，難道希望我早登極樂，提早向亡母報到，述職不成？
我仍然奉勸各位，懸崖勒馬，知錯能改，迷途知返。大家往後仍然是『一家人』。”
346. As seen in S&Y’s Closing Submissions, the highlighted words were the words complained by Yee as defamatory of her (collectively or any part thereof will be referred to herein as the “Offending Words”)[129].
347. The 1st Offending Email was sent to 8 of the Siblings, namely (i) Sing (at the email address of Chew (Cathy), (ii) Yin (at her husband’s email address), (iii)Melissa (at email address of her son Jason Hui Sai Kit), (iv) Mei, (v) Yee, (vi) Hung, (vii) Ling (Regina) and (viii) Viola.
348. The 2nd Offending Email was also sent to the above 8 of the Siblings.
349. Diana accepted that the two Offending Emails were published. In her re-amended reply and defence to counterclaim in the 1st Action (“RARD”), Diana relied on the defence of justification but to a different meaning than that contended by Yee. In addition, Diana also relied on the following arguments/defences:-
(1) the Offending Words were not defamatory;
(2) the Offending Words could not be understood as referring to Yee;
(3) the Offending Words did not satisfy the threshold of seriousness[130];
(4) the Offending Words were true in substance and in fact; and
(5) the Offending Words were published on an occasion of qualified privilege in that[131]:-
(i) Diana as the Administratrix was/is responsible to all the beneficiaries of the Estate in relation to the investigation, repatriation and distribution of assets belonging to the Estate in accordance with the Intestates’ Estates Ordinance (Cap. 73).
(ii) As such, Diana (as the Administratrix and one of the beneficiaries to the Estate) and the other of the Siblings (as the beneficiaries to the Estate) had a common or corresponding interest in the subject matter of the 1st Offending Email complained of and/or Diana wrote and published the 1st Offending Email in the reasonable protection of her legitimate interests as the Administratrix or beneficiary to the Estate, to the Siblings and their representatives as beneficiaries to the Estate who had a like interest in receiving it.
350. Yee did not file any rejoinder to address or rebut the defence raised by Diana prior to the commencement of the trial.
G.2 Yee’s late application to file a Rejoinder
351. After the conclusion of all oral evidence, and 3 days prior to the date scheduled for Closing Submissions, namely 9 July 2020, Yee suddenly took out a summons (“Rejoinder Summons”) to seek leave to provide particulars of malice (including recklessness) in reply to the defence of qualified privilege raised by Diana, in a draft attached (“Rejoinder”), which was strongly opposed by Diana.
352. The Rejoinder Summons was dismissed on 9 July 2020. The reasons are set out hereinafter.
353. Yee’s solicitor Mr Joseph Pang Ping Kwan filed a supporting affirmation in support of the Rejoinder Summons. In short, he said that the need to plead such particulars in a Rejoinder was only made known to counsel after she read Mr Lam’s Opening Submissions, and that prior to that, she was under the wrong impression that it was not necessary to plead facts relied on to establish malice by a separate pleading document as malice was already pleaded in paragraph 24 of the Re-Re-Amended Defence and Counterclaim (“RRAD&C”). He said that there should be no prejudice to Diana by the late filing of the Rejoinder as all relevant matters were explored in full at trial, and that the facts by which Yee sought to establish the necessary malice was mostly undisputed facts. Further, the matter of Diana’s recklessness had been canvassed at trial.
354. Ms Chan referred the Court to Order 82 rule 3 (3) of the High Court Rules (RHC). Order 82 rule 3 (3) and (4) states as follows:
“(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice, but if the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published on a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred.
(4) This rule shall apply in relation to a counterclaim for libel or slander as if the party making the counterclaim were the plaintiff and the party against whom it is made the defendant.”
355. No pleading subsequent to a defence to counterclaim shall be served except with leave of the Court under Order 18 rule 4 of RHC.
356. Ms Chan submitted that in paragraph 24 of S&Y’s RRAD&C, malice had been pleaded with particulars provided[132] and that the Rejoinder was merely to clarify that these paragraphs applied also to qualified privilege related malice and to expand on the items of particulars.
357. Ms Chan further referred to Order 20, rule 8(1A) of RHC, which provides that the Court shall not order a pleading to be amended unless it is of the opinion that the order is necessary either for disposing fairly of the cause of the matter or for saving costs, and submitted that and submitted that the particulars sought were necessary for a fair disposal of Yee’s claim in defamation. If the particulars were not allowed, Yee’s claim in defamation might fail on the technicality of not pleading the malice related facts even though these facts were squarely before the Court and most of them were undisputed or proven.
358. It was submitted by Ms Chan that the ultimate goal of the Defamation Claim was to clear Yee’s damaged reputation. The goal would only be achieved by a judgment of the court stating that the Words were defamatory and were not explicable by justification or qualified privilege. The award of damages would be of secondary importance to Yee and only to reflect the gravity of the impact of the defamation.
359. Ms Chan emphasized that the clearing of Yee’s name within the family would be of particular importance to her given the propensity of Diana to resort to excessive, sensational and violent language and Hung’s ready resort to violent behavior, and that it would be very difficult for Yee to face the family members with a life-long stigma that was not properly cleared.
360. Ms Chan admitted that the failure to plead particulars was due to the omission of counsel, but argued that applications under Order 20 rule 8 of RHC can be made at any stage of the proceedings and for the purpose of determining the real question in controversy between the parties and for correcting any defect or error in any proceedings[133].
361. However, as pointed out by Mr Lam, the Joinder Summons was issued under Order 18 rule 4, Order 82 rule 3(3) and Order 18 rule 12(3A) and 3(B) of RHC, and not Order 20 rule 8.
362. I agreed with Mr Lam’s submissions that since the present application was not for amendment of pleading, but for leave to file the Rejoinder, Order 20 rule 8 would not come into play.
363. As Mr Lam had pointed out, the Joinder Summons was filed after written Closing Submissions were filed and that it was made “well past the twelfth hour”.
364. The absence of a rejoinder from Yee was pointed out in Mr Lam’s Supplemental Opening dated 11 May 2020, before the commencement of the trial, but no application was made to file a rejoinder before or at the commencement of the trial. There was no explanation in Mr Pang’s supporting affirmation as to why Yee did not make or could not have made the present application earlier, or immediately upon receipt of Mr Lam’s Supplemental Opening.
365. Although in paragraph 24 of the RRAD&C[134], Yee pleaded that the Words were published maliciously in that Diana knew or not caring that the Accusations (as defined therein) were false, it was clearly not a pleading in reply to Diana’s defence of qualified privilege. In fact, there were only 3 sub-paragraphs on the particulars which were on Diana’s “knowledge” only, and there were no particulars at all on Diana’s “not caring”, not to say “recklessness”.
366. Mr Lam submitted that the trial was prepared and conducted on behalf of Diana on the basis Yee would not be alleging malice to defeat the Diana’s defence of qualified privilege. This can also be seen in his written submissions.
367. As Ma CJHC (as he then was) explained in Wing Hang Bank Ltd v Crystal Jet International Ltd 2[2005] HKLRD 795:
“(1) The purpose of pleadings is fairly and precisely to inform the other side of the stance of the pleading party so that proper preparation is made possible, and time and effort are not expended unnecessarily on other issues. The passage at p 297 para 18/12/1 of Hong Kong Civil Procedure 2004, Vol 1 sets out the rationale for proper pleadings.
(2) In a trial, particularly where evidence is given by witnesses, it becomes extremely important that each side knows exactly what are the live issues. Where issues are sought to be introduced that have not been adequately or properly pleaded, amendments must be sought unless the consent of the other party or parties has been obtained. It will simply not do for unpleaded issues to be “slipped-in” when evidence is being given in the hope that the other side is not sufficiently alert to object. Much testimony given in the course of a trial may in truth relate to a number of possible aspects or may simply be background information. Obviously, counsel must be astute to object when necessary but the primary responsibility of ensuring that any issue is properly before the Court is on the party seeking to advance that issue. He must do so clearly and not ambiguously, and the usual way of doing so is through the pleadings. Care must be taken to plead issues clearly, and not draft pleadings either vaguely or ambiguously perhaps in the hope that the other side might not readily or easily understand a party's real case. While vaguely or ambiguously drawn pleadings may enable a party to escape a strike-out application (since striking out is only for plain and obvious cases), this is not to say that where a court has to decide whether or not an issue is to be permitted to be run, it will smile kindly on such types of pleading.”
368. It was further submitted by Mr Lam that the allegation of malice was never clearly put to Diana in the course of the trial. She was never given the opportunity to respond to this serious allegation, and it would be extremely unfair to Diana if the Rejoinder Summons were allowed after the trial.
369. As said by A Cheung J, as he then was, in Omar, Zarina v Chow Yee Ping and anor, HCA 3699/2002, unrep, 24.09.04, at paragraph 59, referring to the meanings of malice in relation to the two defences, ie unfair comment and qualified privilege, in that case:
“It would be quite unfair to the Defendants to allow the Plaintiff to use what she has pleaded in relation to malice under unfair comment to establish a case of malice under qualified privilege. Whilst the lack of an honest belief might be an overlapping element in the two different meanings of malice under the two different defences, that does not necessarily mean that if the Defendants had known that malice would be alleged against them at trial in relation to their defence of qualified privilege, the conduct of their case, including their handling of the trial, must have been the same, or there was nothing they could have done to rebut the allegation of express malice.” (emphasis added)
370. Having considered the parties’ respective submissions, and weighing up the alleged prejudice to Yee, and the prejudice to Diana who had already completed her evidence and who would not have any opportunity to respond to the allegation, I came to the view that it was far too late for Yee to file the Rejoinder to plead particulars of malice in reply to Diana’s defence of qualified privilege. There were no exceptional circumstances justifying the granting of leave. I therefore dismissed the Rejoinder Summons.
G.3 The natural and ordinary meaning/innuendo meaning of the Offending Word and whether they were referring to Yee
371. The principles for determining the meaning of words complained of in a libel action have been set out by Lok J in Multi-Winner Investment Ltd v Lau Ming Yee [2017] 1 HKLRD 378[135], which will not repeated here.
372. Further, as stated in Gatley on Libel and Slander (12th edn)[136], where a judge has to determine meaning in a defamation claim, the correct approach is to ask himself or herself what overall impression the material made on him and then to check that against the detailed textual arguments put forward by the parties.
373. In S&Y’s Closing Submissions, Ms Chan set out the natural and ordinary meaning and/or innuendo meaning of the Offending Words as relied on by Yee[137].
374. Ms Chan submitted that the relevant context and circumstances for considering the meaning of the Offending Words should include the following emails:
(a) Diana’s email to Yee and copied to Mei, Melissa (at her son’s email address) , Ling, Viola, Hung, Yung and Yin (at her husband’s address) on 27 September 2013[138] (“27.09.13 Email”);
(b) Yee’s email on 17 October 2013 explaining , amongst other things, matters relating to the Estate and the movement of the Disputed Sum from 2 April 2013[139] (“Chronicle of Facts Email”);
(c) Diana’s reply email on 19 October 2013 addressed and copied to a number of persons[140] (“19.10.13 Email”) to Yee’s Chronicle of Facts Email, with Diana’s comments and remarks against various items of events set out by Yee (“Remarks”)[141];
(d) Diana’s emails sent out on 20 & 21 October 2013 with subject matter being “一艘破船”, namely “A Broken Boat”[142], (respectively “20.10.13 Email”and the“21.10.13 Email”), the 20.10.13 Email being a continuation of the 20.10.13 Email.
(Diana’s 4 emails will be referred to collectively “4 Emails”)
375. The first in time of the 4 Emails was the 27.09.13 Email in which Diana stated that :
(i) Yee had sole possession of Mother’s passbooks of her 3 HSBC Savings Accounts, and that Diana said she had reason to believe that the bank pass books contained “[Yee]與亡母之糊塗賬”, referring to the transactions between Yee and Mother and demanding Yee to hand over the passbooks.
(ii) Yee openly admitted during the Family Meeting that she and Mother had a joint time deposit account at SCB, and that Mother’s HK$ 1million fixed deposit would mature on 2 April 2013. However, according to Diana’s knowledge, 2 days after Mother’s death, namely the day after the Family Meeting on 25 February 2013, Yee secretly used Mother’s ATM card to withdraw all balances from bank accounts held in Mother’s name, and that this act was sufficient to prove that after 25 February 2013, Mother had no time deposit remaining at SCB;
(iii) At end of July, Yee falsely represented to Diana (訛稱), that she had transferred the said sum [ie the Disputed Sum] to her personal account at the Development Bank of Singapore (DBS) and that the time deposit would mature on 11 September 2013, but the problem was that there were only 5 months between 2 April 2013 to 11 September 2013, and DBS would not accept a time deposit for 5 months.
(iv) Yee “瞞大欺少” … “隻手遮天” … “勒令祖居之業權之持有者將業權交出由你操控，居心叵測!”
(v) Yee issued a 2nd solicitors’ letter (referring to 30.08.13 JPKP Letter defined below) forcing Diana to distribute the Estate, but some of the Siblings declared they had not signed their consent, and that letter was of no effect and should be withdrawn as soon as possible.
376. It was after receipt of the above email, that Yee sent the Chronicle of Facts Email, setting out what Yee called a chronicle of facts, namely (i) a chronicle of facts regarding the Estate (“Estate Chronicle”)[143] and (ii) a chronicle of facts regarding Sing’s property (“Sing’s Property Chronicle”)[144].
377. As said earlier, Diana then sent the 19.10.13 Email with the Remarks, refuting what was stated by Yee in her Chronicle of Facts Email. In the 19.10.13 Email, Diana wrote to Yee accusing Yee of “不斷說謊”, “一個謊言蓋一個謊言” “以達到奪產的目的”. These accusations were made by Diana in light of what she viewed to be untruths in the Chronicle of Facts Email.
378. Diana explained that as Yee refused to hand over Mother’s passbooks of Mother’s 3 HSBC Savings Accounts, she was unable to close those accounts and to collect the balances in those accounts for the Estate, and that was why Diana typed in the Remarks that she was forced to sign an authorization for Sing and Yee to collect a cashier order of the balances in Mother’s 3 HSBC Accounts, and because Diana herself had no bank account in her sole name, the Cashier Order (“Cashier Order”) of HKD 473,950.77, being money belonging to the Estate, was deposited at that time into a joint account held by Diana and her husband at DBS by Sing and Yee. Diana’s Remarks were made in the context of Yee refusing to hand over the passbooks of the 3 HSBC Savings Accounts.
379. In the two lengthy “A Broken Boat” 20.10.13 Email and the 22.10.13 Email, Diana related the chronology of all the events from 6 July 2013 to 31 July 2013 about her attempts to cancel Mother’s 3 HSBC Savings Accounts and to collect the funds on behalf of the Estate. Diana further pointed out that on 31 July 2013, the day after she received a letter dated 29 July 2013 from solicitors Joseph PK Pang & Co (“JPKP”) purporting to act for Sing, Yin, Melissa, Mei Yee, Hang, Ling, Viola and Cavila, totaling 9 of the Siblings (“9 Siblings”) requesting Diana to reimburse various Siblings who had paid expenses on behalf of the Estate (“1st JPKP Letter”)[145], Diana had agreed to do so within 21 days and that Diana had requested from Yee a written consent from all the Siblings requesting for a distribution of the balance of the funds of the Estate. The 9 Siblings were described by Yee as “九子連橫” (sic) in a chat group of subject matter “同根同心”/“Same Root Same Heart” Chat Group[146].
380. Thereafter Diana then received another letter from the same firm of solicitors about a month later on 30 August 2013 (“2nd JPKP Letter”)[147] demanding distribution. However, according to Diana, some of those 9 Siblings complained that they did not sign or consent to what was stated in the 2nd JPKP Letter, nor did they have any knowledge about any demand for distribution of the Estate mentioned therein. In item (12) of the 22.10.13 Email, Diana described Yee’s behaviour as 惡行 and in the last paragraph, Diana had stated “圖窮匕現” “欲蓋彌彰”. Diana then referred to 19.10.13 Email and demanded Yee to give her a reply and to “承認過失”, ie Yee to admit her mistakes.
381. Ms Chan submitted that the 2 Offending Emails followed the above sequence of emails, and that in all the 4 Emails, the accusing finger was pointed at Yee, with Sing being implicated too. Further given the 4 Emails sent out by Diana prior to the 2 Offending Emails. Ms Chan submitted that it would be difficult for Diana to deny that any of the defamatory words in the 2 Offending Emails were not referring to Yee.
382. However, looking slightly further back, it was on 26 June 2013 that Diana was granted the Letters of Administration. As seen from the Estate Chronicle, there was a telephone conversation between Diana and Yee on 9 July 2013. According to Yee, Diana asked her to handle the SCB Joint Account and “She asked me to write to her for reimbursement and transfer of funds to the HSBC S&Y Joint Account”. As seen in Diana’s Remarks, the HSBC S&Y Joint Account (which was only opened on 11 July 2013) did not even exist on 9 July 2013 and how could she ask Yee to transfer funds into that account.
383. Further, according to Diana, during that conversation, Yee had in fact requested Diana and Sing to open a new joint account and that on the maturity of Mother’s time deposit at DBS on 11 September 2013, Yee would transfer Mother’s time deposit into the new joint account of Diana and Sing, and that after the transfer, Yee would withdraw from being involved and that she would send an email listing all the expenses she incurred on behalf of Mother/the Estate.
384. Yee said in the Estate Chronicle that on 11 July 2013 Diana had authorized Sing and Yee to collect the Cashier Order “from HSBC branch in Central where Sing and [Yee] opened a joint account”. However, in the Remarks, Diana had said that it was because on 10 July 2013, Yee had refused to hand over to Diana the passbooks of Mother’s 3 HSBC Savings Accounts to enable Diana to close the accounts and to withdraw the balances that Diana had no alternative but to authorise Sing to go to HSBC to close the accounts and collect the Cashier Order.
385. Anyway, according to the Estate Chronicle, Yee had sent Diana an email on 12 July 2013, informing her that Mother’s 3 HSBC Savings Accounts had been closed and that the Cashier Order was credited into Diana’s account with her husband at DBS and requesting Diana to transfer the whole amount to the HSBC S&Y Joint Account for further reimbursement. However, according to Yee, although Diana said she would so transfer the amount, on 15 July 2013, she called Yee to say she would not be doing so as Diana said she was “threatened by someone”. Diana had denied that she had said this or that she was “threatened”.
386. What seemed to be clear was that by then the distrust between the two sisters was growing and Diana did not transfer the amount of the Cashier Order into the HSBC S&Y Joint Account.
387. On 19 July 2013, prior to the 4 Emails, in an apparent attempt to try and resolve all the issues, Diana had sent an email to Yee, copied to Yin (at her husband’s email address), Melissa (at her son’s email address), Hung, Mei, Ling, Viola, and Cavila requesting a meeting with them at Tsui Chuk Property. It seemed Diana’s email failed to produce a meeting and instead, Diana received the 1st JPKP Letter.
388. Yee said Diana was given prior notice of the 1st JPKP Letter and in the Estate Chronicle, Yee had claimed that it was to “shun [Diana] from threats and burden, an advisory letter would be sent to her advising her to reimburse medical, funeral and legal expenses”[148]. However, as pointed out by Diana in the Remarks, it was not an “advisory letter” that she received but a solicitor’s letter, namely the 1st JPKP Letter, which was sent on behalf the 9 Siblings, and demanding reimbursements from Diana and a copy of the Letters of Administration to facilitate early distribution of the Estate.
389. Then, about a month later, Diana received the 2nd JPKP Letter, purporting to be on behalf of the 9 Siblings, and as mentioned earlier, demanding a distribution of the Estate.
390. On 15 September 2013, Diana had sent another email proposing a family meeting to be held on 18 September 2013 at the Tsui Chuk Property. Due to lack of response, no meeting was held.
391. On 15 November 2013, Diana instructed solicitors Lau & Ngan (“L&N”) to send Yee a letter to ask her to hand over the passbooks respectively of Mother’s 3 HSBC Savings Accounts[149]. However, on 3 December 2013, Yee sent an email to L&N[150] stating that, amongst other things that in the matter of administration of the Estate, she only played the role of an “introducer”, “handling paper work” and “passing messages” and that after 12 July 2013, she had nothing to do with the administration matters of the Estate (“Yee’s 03.12.13 Email”). She had further said that under the witness of her elder brother, she had returned the 3 passbooks to where they were kept originally.
392. The above events preceded the 2 Offending Emails. In light of the 2 JPKP Letters sent or purportedly to be sent on behalf of the 9 Siblings, and exclusion of Diana from the “Same Root, Same Heart” Chat Group, and further in light of the failure of Yee and/or Sing to hand over to Diana Mother’s bank passbooks, coupled with the opening of the HSBC S&Y Joint Account by Sing and Yee, in my view, by the time when Diana sent the 1st Offending Email, her distrust was not necessarily directed only at Yee.
393. Both Ms Chan and Mr Lam have put forward their respective submissions on the meanings attributed to the Offending Words and made submissions as to whether they referred to Yee. Having considered their respective submissions and the evidence, I set out my findings in the following table :
1st Offending Email |
|
|
|
The Offending Words |
Meaning contended by Yee |
Meaning contended by Diana |
My Findings |
“厚顏無恥的笑面虎”
|
Accusing Yee of being a shamelessly two faced evil/sinister/ wicked/fierce character as “虎”, which is a widely understood figurative language in Chinese for wicked, evil and sinister characters. |
(i) It means generally a person being thick-skinned, shameless and very tough/aggressive underneath the smiling exterior, someone who smiles, but is on the inside a tough and/or aggressive disposition.
(ii) It meant specifically in the context that it was futile for Diana to demand Yee to release the three HSBC passbooks of Mother, who would be shameless in refusing to do so. |
(i) I do not agree that the word “虎” means “wicked, evil and sinister” and I accept Diana’s meaning, that 笑面虎 only means a person who is very tough/aggressive underneath a smiling exterior;
(ii) I accept厚顏無恥means thick skinned and shameless
(iii)I find in the context, it meant it was futile for Diana to demand Yee to release Mother’s HSBC passbooks because this was like negotiating with or asking a tiger for its skin, particularly a thick-skinned shameless smiling tiger.
(iv) I find the words referred to Yee. |
“奸佞” |
By use of this widely understood figurative language in Chinese to accuse Yee of being smooth and crafty. |
Not referring to Yee, but person(s) whom Diana was to identify who may be behind any inappropriate conduct towards the assets of the Mother and no criminal offence alleged. |
I am of the view that read in the context, the two characters were not referring specifically to Yee, and I accept Diana’s meaning of the Offending Words |
“敷衍塞責” |
irresponsible and avoiding responsibility regarding the assets of the Mother. |
敷衍塞責 and 幕後黑手 should be read together – They meant that Yee in earlier email pretended to be an introducer and was not involved when she in fact ran things behind the scenes. |
To put in context, as mentioned earlier, in response to L&N’s letter to hand over the passbooks, Yee sent an email to L&N stating that, amongst other things that in the matter of administration of the Estate, she only played the role of an “introducer”, “handling paper work” and “passing messages” and that after 12 July 2013, she had nothing to do with the administration matters of the Estate. Yee claimed she never had custody/ possession of the passbooks and that she had only had “contact” with the passbooks on 3 occasions. |
|
|
|
Having considered the context, I accept Diana’s meaning of those Offending Words and I find that these two Offending Words referred to Yee |
“幕後黑手”, “騙取”, “訛稱”,“謊言”,“欺瞞” |
Accusing Yee of being the lead figure in a scheme (“幕後黑手”) by the perpetration of which she had dishonestly defrauded (“騙取”) Mother of her life savings, misappropriated a large sum of money belonging to Mother and covered her tracks by telling lies (“訛稱”, “謊言”, “欺瞞”); thereby implying Yee of: (i) having committed a criminal offence punishable at law; and (ii) being dishonest, lacking in integrity and was untrustworthy |
(i) 訛稱 when read in the context of the whole relevant paragraph meant that Yee falsely claimed that on the day Yee and Sing closed the Mother’s bank account that they opened at HSBC Lyndhurst Terrace branch a joint account of numbers ended with 833 and she demanded Diana to transfer Mother’s money into that account when in fact the account with that number was opened many years ago in 2005.
(ii) 謊言: When read in the context of the 1st Offending Email, it meant another lie was discovered as the branch code for the HSBC S&Y’s Joint Account in fact referred to the HSBC Wong Tai Sin Branch and not HSBC Lynhurst Terrace branch where it was claimed to be opened.
(iii)欺瞞 referred to Yee’s reasonable belief that there was an arrangement to deceive the other siblings (Note that the words used by Diana was 有理由肯定)
(iv) 騙取 referred to the person(s) whom Diana was to identify after investigation who might be involved in misappropriating Mother’s assets |
(i) I accept幕後黑手 meant the lead figure in the scheme and referred to Yee, and was to be read together with敷衍塞責”;
(ii) I find 訛稱 meant that Yee had made a false statement in her email of 12 July 2013 in relation the closing of the 833 Joint Account and the opening the S&Y 333 Joint Account;
(iii)I find謊言 in the context referred to another lie by Yee
(iv) 欺瞞 meant in the context that it was Diana’s belief that the account with last numbers “833” was opened much earlier, for transferring away Mother’s assets and leaving a small amount of cash therein to deceive others.
(v) as for騙取, this penultimate paragraph was, as found earlier, referred to those whom Diana would be finding out, and the Offending Words did not specifically referring to Yee;
(vi) I do not find there was accusation that Yee having committed a criminal offence but I accept that as said above, save for the Offending Words in the penultimate paragraph, the others of the Offending Words referred to Yee, and the meaning of those Offending Words was that Yee was being dishonest and untrustworthy |
“胡作非為” “禽獸之行為” |
By reason of the fraudulent and dishonest acts described above, accusing Yee of having committed serious misdeeds (“胡作非為”) of non-humans (“禽獸之行為”) thereby implying that Yee was lacking in human quality; |
Not referring to Yee |
As found earlier, the penultimate paragraph in the 1st Offending Email was not referring specifically to Yee. I also find that the last sentence or paragraph in the 1st Offending Email was not referring specifically at Yee but at those persons referred generally by Diana in the penultimate paragraph |
2nd Offending Email |
|
|
|
“笑面虎” 乃一形容詞，泛指所有經常戴著一「燦爛笑容」面具者，而其所作所為近乎「王」者的權威人士之專稱……” |
Accusing her of being two faced in that she put up a pleasant front while at the same time acted differently in an authoritative or dictatorial manner like someone with the authority of a king. |
same as厚顏無恥的笑面虎 |
I find that Diana was only explaining the characters笑面虎,and the meaning was the same as厚顏無恥的笑面虎 and the Offending Words referred to Yee |
“禽獸” 乃指涉嫌有詐騙巨款者之「非人」統稱.....” |
Accusing Yee of doing deeds of non-humans by defrauding huge amount of money that would not be done by a person or human being thereby implying that the Yee not a person or human being. |
Not referring to Yee |
I find it was not specifically referring to Yee but generally towards anyone who was involved |
“放下屠刀” “懸崖勒馬，知錯能改，迷途知返” |
By asking Yee to avert from the past, a wicked past or a past with disastrous ending, or to repent thereby implying that Yee had done some serious moral wrong. |
Not referring to Yee
|
I find it was not specifically referring to Yee but generally towards all those who were involved |
394. To summarise from the above table, save for the Offending Words “厚顏無恥的笑面虎”, “敷衍塞責……幕後黑手”, “訛稱”, “謊言”, “欺瞞”in the 1st Offending Email,I do not find the other of the Words in the penultimate and the last paragraphs in the 1st Offending Email referred to Yee. I do not find that those of the Offending Words in the 2nd Offending Email referred to Yee, save for the group of words “笑面虎……”.
395. As to whether the Offending Words satisfied the threshold of seriousness, Mr Lam referred the Court to paragraph 2.4 in Gatley on Libel and Slander (12 Ed) and submitted that in deciding whether the threshold is met, the Court is required to consider, amongst other things:
(1) the nature and inherent gravity of the allegation;
(2) the status and number of publishers, and whether this makes it more likely than the allegation will be believed.
396. Mr Lam further referred to Dell’Olio v Associated Newspaper [2011] EWHC 3472 (QB) in which Mr Justice Tugendhat explained that “unflattering” or even “insulting” is not the same as being defamatory, and that on the facts of that case, the imputation that the claimant was serial “gold-digger” who cynically sought out relationships with older men because they were millionaires and not for any genuine reason was held not to reach the level of seriousness required to find an action of defamation[151].
397. Mr Lam argued that in the present case, the publication of the Offending Words similarly fell short of the threshold required to make them defamatory, as they were made only in the context of a family dispute and to a limited number of publishees. Further, even if the Words such as “笑面虎”, “禽獸”, “奸佞”in the 1st and/or the 2nd Offending Email were taken to be referring to Yee and had the meaning contended by Yee, they were insulting or at best abusive and without more, they were insufficient to satisfy the necessary threshold of seriousness.
398. In my view, what was clear was that Diana was upset with Yee and all those of the Siblings on her side, and that the Offending Words were uttered in the context of a family dispute and/or Diana, being the oldest sister, was “scolding” her younger sister, albeit with strong and/or abusive language. I do not find those Offending Words as found earlier to be referring to Yee, would pass the necessary threshold of seriousness.
399. Even if the Offending Words found earlier, namely “厚顏無恥的笑面虎”, “敷衍塞責……幕後黑手”, “訛稱”, “謊言”, “欺瞞” were to pass the threshold of seriousness and were defamatory, in that Diana was referring to Yee and accusing Yee of being a thick-skinned shameless smiling tiger, leader behind the scene, and telling lies and cheating and misappropriating Mother’s money, as seen below, I find Diana has established the defence of justification.
G.4 Justification
400. Section 26 of the Defamation Ordinance, Cap 21 provides:-
“In an action for libel or slander in respect of words containing 2 or more distinct charge against the plaintiff, a defence of justification shall not fail by reason only that the truth of every charge is not proved if the words not proved to be true do not materially injure the plaintiff’s having regard to the truth of the remaining charges.”
401. As submitted by Mr Lam, it is a complete defence to a claim for libel if the defendant proves that the imputation that is being sued upon is substantially true. As stated in Gatley, the defendant can rely on the defence of justification if he proves that the main charge, or gist, of the libel is true. Hence, when considering substantial truth it is important to isolate the essential core of the libel and not to be distracted by inaccuracies around the edge[152].
402. It is further stated in Gatley that where the words complained of consist of both statements of facts and opinions, the defendant must prove that the statements of fact are true and that the statements of opinion are correct[153].
403. It was Mr Lam’s submissions that even if the Offending Words in both the 1st and the 2nd Offending Email were found to be defamatory, they would share a common sting, which was essentially the same contention made by Diana under the 1st Action, namely that Yee has misappropriated the Disputed Sum from Mother, and that this construction of the two alleged defamatory emails was in fact supported by Yee’s own affirmation filed in opposition to Diana’s summons for striking out[154], in which Yee had said as follows:-
“As further pleaded in the Defence and Counterclaim, the Disputed Sum belonged to Mr Kwok Chun Sing beneficially. In respect of the Disputed Sum, Diana has wrongly alleged it to be owned by my deceased mother and fraudulently removed by me. In the 2 Offending Emails, the very subject matter of the defamation was this wrongful allegation” (emphasis added)
404. I accept the Offending Words found referring toYee did share a common sting. As I have found earlier that the Disputed Sum belonged to Mother, Yee was no more than a trustee of the Disputed Sum for Mother, and after Mother’s death, in trust for the Estate. Yee should have returned the Disputed Sum to Diana as the Administratrix of the Estate, and accounted in full to Diana the details of the movement of the Disputed Sum, which in my view she had failed to do in her Chronicle of Facts Email, or otherwise. Diana was thus justified in making those allegations in the 2 Offending Emails.
405. In any event, as set out below, even if those allegations found defamatory made by Diana were looked at separately, I would have come to the same conclusions.
406. In paragraph 17 of the RARD, Diana had set out the particulars in support of her pleas of justification.
407. Given those pleaded particulars, the following factual issues arose :
(1) Whether Yee was withholding the Mother’s passbooks from the Estate or Diana[155];
(2) Whether in saying that “在辦理及領取死者遺產事宜上，本人只扮演引薦、文書及訊息傳遞的角色” in Yee’s 03.12.13 Email, Yee had misrepresented or downplayed her actual involvement in matters concerning the administration of the Estate[156].
(3) Whether Yee misrepresented and/or lied in her Chronicle of Facts Email to the Siblings that she had “opened” a joint account with Sing at the HSBC branch in Central on 11 July 2013, when the account ending with 833 was in fact opened as early as 18 April 2015 and on 11 July 2013 Yee merely replaced Mother to become the holder of the 833 S&Y Joint Account)[157].
(4) Whether given the actions of Yee, Diana had reasons to believe that Yee had misappropriated the assets of the Mother/Estate[158].
408. Yee was the one who gave the bulk of the evidence for S&Y. Mr Lam had set out in paragraphs 41-45 of D&V’s Closing Submissions as to some of Yee’s answers to questions[159]. I agree with Mr Lam’s submissions. I find that Yee seemed not to be capable of giving straightforward answers and often resorted to prevarication, and in my view, she was evasive and inconsistent in giving most of her evidence.
409. In the evening of Mother’s death, there was the Locked Drawer Incident mentioned earlier, when a number of the Siblings and some other family members including Yee and her husband went to the Tsui Chuk Property, without notifying Diana, to open the Locked Drawer/s for what Yee called “stock-taking”. Photographs were taken of the contents of the Locked Drawer/s which clearly showed there were bank passbooks.
410. What was not disputed was that Mother’s passbooks of the 3 HSBC Savings were kept by Mother in the Locked Drawer/s at the Tsui Chuk Property prior to Mother’s death. It was Diana’s case that the key/s was given to Mei by Mother for Mei to keep in her handbag and that the evening of Mother’s death, Yee had asked Mei to hand over to Yee the key/s. However, Yee’s evidence was different and that according to her, Mother had handed to her the key/s. Suffice to say, it was clear that during the Family Meeting, ie on 24 February 2013, Yee had admitted that the key/s to the Locked Drawer/s was/were held by her[160]. As it was Yee’s evidence in her 1st statement that after the “stock taking” of the contents in the Locked Drawer/s, she had given the key/s to Sing, she was asked during the trial, why she told all the other Siblings present during the Family Meeting the next day that she had the key/s, Yee’s answer was simply she had omitted to mention this at the time. I do not find her answer credible.
411. As Yee herself had said and as seen in Yee’s 03.12. 13 Email, she had “contact” of, or “access” to the Mother’s HSBC passbooks on 3 occasions, once in March 2013 when introducing some of the Siblings to the solicitors L&N and producing copies of the last pages of the 3 HSBC passbooks for the purpose of Diana’s application for the letters of administration, and further on two occasions, namely 11 and 12 July 2013.
412. I have to say, first, the 3 HSBC passbooks clearly belonged to Mother and after her death, belonged to the Estate; Second, notwithstanding Yee’s original intention and plan for Sing to be the administrator, all the Siblings had agreed to Diana being the Administrator of the Estate, and this meant Diana should be the one who was entitled to hold the 3 HSBC passbooks; Third, by agreeing to Diana being the Administrator, Yee must have agreed to Diana to handle all affairs of the Estate; Fourth, Yee did not have any right to choose what pages of the passbooks or what information to pass to Diana, nor did Yee have any right to handle any matters concerning the 3 HSBC passbooks or Mother’s bank accounts; Fifth, the evidence showed that Diana had been requesting Yee for the 3 HSBC passbooks after she had been granted the Letters of Administration; Sixth, there was no good reason provided by Yee as to why the 3 HSBC passbooks had to be returned by her to Mother’s Locked Drawer/s in the Tsui Chuk Property after Yee admittedly had “contact” with them or “handled” them on the 3 occasions, and why Yee could not simply hand them over to Diana as she well knew that Diana was requesting for them, and instead claiming that Sing had the key/s.
413. In the above circumstances, it is my finding that whether it was Sing who had the key/s to the Locked Drawer/s or not, as said later, Yee was clearly the “Leader” of the 9 Siblings and there was no sufficient evidence that Sing was not allowing Yee to have access to the Locked Drawer/s. Further, Yee was clearly able to have access to the Locked Drawer/s any time she wished, and she knew full well that Diana had asked her many times for the passbooks. There was also no sufficient evidence that had Yee agreed, Sing would refuse to hand over the same. I am of the view that Yee could have handed over to Diana the HSBC Passbooks as early as in March 2013 when the Siblings agreed to Diana being the Administrator. She chose not to do so. I find that thereafter Yee was using all sorts of excuses not to hand over to Diana the HSBC passbooks and that in my view, Yee was clearly withholding those passbooks from Diana.
414. It was Diana’s pleaded case that in early March 2013, Yee was in fact the one who nominated and engaged the solicitors L&N to assist in the application for the letters of administration of the Estate and that it was Yee who pushed the legal process to distribute the Estate as soon as possible, and that Yee took charge and obtained copies of HKID cards from all the Siblings for L&N and that she was the one who prepared a form with the relevant information in relation to the matter of the “Application for the Estate”[161] (“Instruction Form”). The Instruction Form bore the name, the HKID card, the death certificate number and date of death, names of all the Siblings in Chinese and their respective HKID cards, the name of the proposed administrator with Sing’s name and HKID card typed in and then deleted and replaced by Diana’s name and HKID card written thereon, and then the bank account numbers of the Mother’s 3 HSBC Savings Accounts, and balances as at 14 or 15 March 2013, and the address of Mother’s property being the Tsui Chuk Property.
415. Sing’s evidence was also that it was Yee who helped out with introducing and appointing the firm of solicitors L&N to proceed with the appointment of administrator to the Estate[162].
416. Yee had said that she came to know of the firm L&N through the brother of her husband. However, when Yee was asked during the trial whether she was the one who instructed L&N, she gave various evasive and equivocal answers, trying to say she only introduced the Siblings to L&N. Eventually, she admitted that not only that she was the one who first telephoned L&N, she was the one who provided the relevant information on the Instruction Form, and that she was also the one who paid the initial legal fees to L&N. She had denied that she preferred Sing to be the administrator and explained that she had put Sing as the proposed administrator in the Instruction Form to the solicitors as she was asked by the solicitor whether she had an elder brother.
417. I do not find her explanation credible, nor probable, as it was not probable, nor was there any reason, that the solicitors would ask her to name her older brother and not her one of her older sisters to be the administrator.
418. Anyway, it was not disputed that by reason of Hung’s objection to Sing being the administrator, in the end, the Siblings who were present at L&N all agreed that Diana should be the one to apply.
419. As seen in the chats among the 9 Siblings who were the participants of the “同根同心”/“Same Root Same Heart” Chat Group[163], Yee was rallying the support of the 9 Siblings for the issue of the 1st JPKP Letter demanding reimbursement from Diana/the Estate. What was clear was that Yee was the one who contacted JPKP and gave instructions to JPKP to issue 1st JPKP Letter on behalf of the 9 Siblings although the 9 Siblings had indicated their individual consent. In my view, Yee was clearly the “leader” of the group of 9 Siblings.
420. Even though it was Sing’s evidence that he had explained to Diana the purpose of the issue of the 1st JPKP Letter, there was no evidence that whether Yee or Sing, or anyone had explained to Diana why the 2nd JPKP Letter was issued to her. Further, it was Diana’s evidence that she was told by Mei in around September 2013 that she, Ling, Viola and Cavila did not authorize Yee to the issue of the 2nd JPKP Letter[164]. This was also confirmed by Viola. Again, Yee was the clearly the one who went ahead to give instructions for the issue of the 2nd JPKP Letter pushing for distribution.
421. According to Diana, she was told by Mei in around September 2013 that it was Yee who set up the “Same Root Same Heart” Chat Group in which she and Hung were left out[165]. Whether it was or not, it was Yee who changed the subject matter to “Same Root Same Heart”[166] and there was no sufficient evidence that Yee had ever tried to include Diana or Hung in the Chat Group. As said earlier, she had referred to the 9 Siblings as “九子連橫”, and the 9 Siblings being joined together.
422. As to Diana saying that Yee was the one who was pushing matters in relation to administration, Ms Chan submitted that “this was just because she was being efficient and this is typical of successful career women in Hong Kong”[167].
423. Yee was not denying that she was the one who was pushing matters in relation to administration of the Estate. Anyway, as said earlier, the initial instructions to L&N were clearly provided by Yee. All in all, having considered all the evidence, I find that in saying that “在辦理及領取死者遺產事宜上，本人只扮演引薦、文書及訊息傳遞的角色” in Yee’s 03.12.13 Email, Yee was clearly trying to downplay her own active involvement in matters concerning the administration of the Estate, and in fact it was not true. I find she was playing the leading role.
424. I further find in light all the evidence, and in particular, Yee’s failure/refusal to hand over to Diana Mother’s HSBC passbooks having agreed to Diana being the Administratrix, and then being un-cooperative and placing obstacles in Diana’s administration process, the various excuses in Yee’s 03.12.13 Email and Yee’s deliberate downplay of her active involvement in matters concerning the administration of the Estate, Diana was justified in stating those Offending Words “厚顏無恥的笑面虎”, and “敷衍塞責……幕後黑手”.
425. As mentioned earlier, Yee endeavoured to explain in the Estate Chronicle as to what happened to the Disputed Sum. However, as pointed out in the Remarks, on 9 July 2013, the 833 S&Y Joint Account had not yet been opened, and Diana said she could not have asked Yee to write to ask to transfer the funds of the Estate to that account on 9 July 2013.
426. Since it was not disputed that the 833 S&Y Joint Account was only opened on 11 July 2013, what Diana said should be correct. There was however no evidence that there had been any follow up explanation by Yee to Diana’s 19.10.13 Email, which contained Diana’s Remarks on Yee’s Chronicle of Facts Email.
427. Further, according to Diana, although in the Family Meeting, Yee disclosed that money in the “joint account of Mother and Sing” was put on time deposit, Yee never disclosed the account number of the HSBC Joint Account and Diana was not at that time aware of the account number ending with 833.
428. It was Diana’s explanation that when she was told that Sing and Yee had opened a joint account at HSBC with number ending “833”, her understanding at the time, ie July 2013, that this account with number ending “833” was a newly opened joint account of Sing and Yee.
429. As said earlier, although Diana’s evidence was confusing at times, I find her a credible witness. Further as seen in the 1st Schedule attached to the Letters of Administration, the HSBC Joint Account was not stated therein by Diana, and this would be consistent with her evidence that she did not know the account number. Diana’s evidence that as Yee refused to hand over the HSBC passbooks, she then had to write to HSBC to seek banking documents including the 2747 Transaction Record, and also to seek copies of statements of Mother’s accounts at SCB, and that it was only upon obtaining the relevant bank documents that Diana found out about the Disputed Sum was withdrawn from the 2747 Account.
430. What was clear was that there was no clear explanation nor disclosure by Yee to Diana in her Chronicle of Facts Email, which was sent on 17 October 2013 that the 833 S&Y’s Joint Account was in fact the former HSBC Joint Account held by Mother and Sing with Mother’s name changed to Yee’s name.
431. Having considered the evidence, I am of the view that what Yee set out in the Chronicle of Facts Email was confusing and misleading. As said earlier, there was no follow up reply from Yee to explain or to respond to Diana’s Remarks.
432. Further, Yee transferred the Disputed Sum on 5 September 2013 from Yee’s SCB Account to the 833 S&Y Joint Account. By that date, the 833 S&Y Joint Account was already opened. Then 5 days later, ie on 10 September 2013, the Disputed Sum was withdrawn from the 833 S&Y’s Joint Account to Sing’s DBS Account, which in Sing’s sole name.
433. To summarise, in light of all said above, I have come to the conclusion that Diana has satisfied this Court that she was justified in uttering the Offending Words in both the 1st and the 2nd Offending Emails as set out above.
G.5 Qualified Privilege
434. It was Mr Lam’s further submission that even if the 2 Offending Emails were defamatory, Diana was entitled to rely on the defence of qualified privilege.
435. As said by Lok J in the Multi-Winner case, supra, at paragraph 68:
“At common law, privileged occasions can be classified into 2 categories: firstly, where the maker of the statement has a duty, whether social or moral, to make the statement and the recipient has a corresponding interest to receive it; or secondly, where the maker is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement, or where he is acting in a matter which he has a common interest with the recipient[168].”
436. Mr Lam pointed out that firstly, Yee agreed during the trial that[169] Diana had a duty to:-
(a) carry out an independent investigation in matters concerning the Estate and to ascertain the extent and whereabouts of the assets of the Mother; and
(b) report matters concerning the Estate to the Siblings, so long as they are grounded on facts.
437. Secondly, Sing also agreed that[170]:-
(a) Diana as the Administratrix had an interest and duty to investigate all matters concerning the assets of the Estate and Diana in the course of investigation should report to the Siblings (being the beneficiary of the Estate) any matters which appeared to be reasonably suspicious; and
(b) Sing further agreed that he and the other Siblings would be interested in what Diana discovered from her investigation.
438. Thus, it was submitted that Diana and the Siblings had a recognisable interest in imparting and receiving the information contained in the 2 alleged defamatory emails respectively, and that the defence of qualified privilege would apply.
439. On the other hand, it was submitted by Ms Chan that Diana had said what she needed to say in the 4 Emails and that by end of November 2013, Diana already had the 2747 Transaction Record. In discharge of her duty as the Administratrix, Diana should have in the 2 Offending Emails referred to the 2747 Account and explained to the Siblings why she believed there had been embezzlement of Mother’s money but she did not do so. The reference to Yee’s un-cooperation to hand over Mother’s HSBC passbooks was no longer relevant because Diana already had the 2747 Transaction Record and that Diana had also said she had the bank histories of Mother’s accounts at SCB. Further, the reference to the 833 S&Y’s Joint Account having been opened long before in Wong Tai Sin branch rather than Lynhurst Terrace Branch had little relevance in resolving whether Yee and Sing had embezzled money of Mother’s.
440. Ms Chan further submitted that in light of the above, the 1st Offending Email could not be regarded as a privileged occasion for not relating matters germane to the interest of the recipients ie evidence in support of actual embezzlement of Mother’s money by Yee and Sing, and that in the 1st Offending Email Diana was merely using the occasion to fire a barrage of defamatory words at Yee, and that Diana was not making it an occasion to discuss matters she had a duty to report and the recipients had the interest to receive.
441. Ms Chan further submitted that in the 2nd Offending Email, both the HSBC and SCB records were mentioned, and if it was intended by Diana to communicate to the recipients matters of interest to them, she should have referred to the bank records and said on which day money had been embezzled by Yee and Sing, but there was nothing of that sort mentioned. The Offending Emails did not serve any purpose of communicating matters of interest to the recipients and so should not be covered by the privilege.
442. However, the failure of Yee in providing Diana the HSBC passbooks and/or SCB bank statements, which had led to Diana having to incur time and expenses in obtaining transaction histories/statements direct from the banks and had led Diana to become more and more suspicious over Yee having misappropriated Mother’s monies and for Diana to conduct further investigation, was in my view a matter which Diana should report to the Siblings. All in all I am of the view that the 2 Offending Emails were covered by privilege.
443. As for malice, as mentioned earlier, I did not grant leave for Yee to file the Rejoinder to plead malice in reply to the defence of qualified privilege and the Rejoinder Summons had been dismissed. In light of the lack of particulars pleaded, I am of the view that Yee could not rely on malice.
G.6 Conclusion on the Defamation Claim
444. In light of all said above, I find Yee has failed to establish the Defamation Claim.
H. Orders
445. To summarise, the effect of my orders is as follows:
(1) The Disputed Sum of HKD 1m and any interests and/or profits thereon are held by Yee and/or Sing on trust for the Estate and that there be an account and inquiry to be conducted before a Master for interests and/or profits derived from the Disputed Sum of HKD 1m and that Sing and/or Yee do pay to the Estate the sums found due on taking of account and enquiry;
(2) Yee’s counterclaim in the 1st Action, namely the Defamation Claim is dismissed.
(3) Sing’s counterclaim in the 1st Action, namely the Kam Shek Property Claim is dismissed.
(4) Sing’s 2nd Action, ie the Tsui Chuk Property Claim dismissed.
446. D & V to submit agreed draft orders to reflect the effect of my above orders.
I. Costs
447. For the Money Claim in 1st Action, Yee and Sing are to pay costs incurred by Diana as the Administratrix of the Estate, jointly and/or severally on party and party basis.
448. For the Defamation Claim, Yee is to pay the costs incurred by Diana as the Administratrix of the Estate, to be taxed on party and party basis, save for the Joinder Summons. The Joinder Summons was taken out very late and wholly inconsistent with the spirit of the underlying objectives in Order 1A Rule 1 and the duties of the parties and their lawyers under Order 1A Rule 3. The practice of any last minute or late applications should be discouraged. In my view, there were no good justifications for the late application, and I am of the view that Yee should pay to Diana/Estate the costs of and incidental to the Joinder Summons on indemnity basis.
449. For the Kam Shek Property Claim, Sing is to pay the costs incurred by Diana as the Administratrix of the Estate, to be taxed on party and party basis.
450. For the Tsui Chuk Property Claim, although Sing has not succeeded with his claim, I have found that Viola was/is not the beneficial owner of the Tsui Chuk Property. I am of the view that there should be no order as to costs.
451. Any costs incurred by Diana in her capacity as Administratrix of the Estate, not recovered above, shall be paid out of the Estate on trustee basis.
452. All the costs orders are orders nisi, which shall be made final after 21 days.
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(Bebe Pui Ying Chu)
Judge of the Court of First Instance
High Court |
Mr Timothy Lam, instructed by Victor Chan & Co, for the plaintiff by the Original Action in HCA 380/2014, the defendant by the Counterclaim in HCA 380/2014 and the defendant in HCA 2492/2017
Ms Winnie Chan, instructed by Joseph P K Pang & Co Solicitors & Notaries LLP, for the 1st to 2nd defendants by the Original Action in HCA 380/2014, the plaintiff by the Counterclaim in HCA 380/2014 and the plaintiff in HCA 2492/2017
[1] See Master Au-Yeung’s order dated 19 December 2017, 2nd Action: A:45-47
[2] B2-1:1046
[3] B2-1:499
[4] B1:499
[5] B1:499
[6] B2-1:794-796, and the final version sent out for signing at B2-1:816-818
[7] At about 54:00, C:1227
[8] At about 54:00, C:1227
[9] At B2-1: 816-818
[10] B1:487-493
[11] See Yee’s original defence and counterclaim filed on 27 May 2014
[12] B2-1:838
[13] B2-1:839
[14] B2-1:837; for copy of the passbook, B2-1:915-1040, and 2747 Transaction Record, B1:567-573
[15] B2-1: 1105: 915 -1046
[16] B2-2:1047-1185
[17] B1:567-573
[18] At B2-1:1041-1046
[19] At B2-1:1041 and at 1043
[20] B2-1:915-916
[21] B2-1:1013
[22] B2-1:1038
[23] B2-2: 1087-1098
[24] B2-2:1038
[25] B2-2:1047
[26] See para 168, pg 58, S&Y’s Closing Submissions
[27] B2-2:1147
[28] See prayer, A1:30
[29] See para 117, pg 34, D&V’s Closing
[30] Para 4(a)(a), RRADC, A1:38
[31] Para 4(a)(e), RRADC, A1:40
[32] See para 4(b)(a), RRADC, A:42
[33] Para 4(b)(c), RRADC, A1: 45
[34] Para 5(d), RRADC, A1:52
[35] Para 5(e), RRADC, A1:52
[36] Para 5(g), RRADC, A1:52-53
[37] At 5(h)-(5j), RRADC, A1:53
[38] At para 5 (j), RRADC, A1:53-54
[39] See para 5(k), A1:54
[40] At para 17
[41] At para 28, pg 10
[42] Para 4(a)(d)(iv) and (v)
[43] At pg 59
[44] B2-2:1086-1093
[45] B2-2:1094
[46] B2-2:1095-1096
[47] B2-2:1091
[48] SB:1323-1333
[49] SB:1325
[50] See para 169, pg 50, S&Y’s Closing Submissions
[51] At para 173, pg 60, E&Y’s Closing Submissions
[52] See para 9, A2:463
[53] See B1:571 and B2-2 1144
[54] See para 173, pg 60, S&Y’s Closing
[55] See para 172, S&Y’s Closing Submissions, at pg 60
[56] B2-2:1149 to 1172
[57] B1:572
[58] B1:573
[59] A1:35-1-35.26
[60] See paras 5-12, A2:382-383
[61] See para 15
[62] B2-2:1190-1201
[63] See B2-2:1189
[64] See para 15, A2:383
[65] At 01:04:00, A1:222
[66] para 69, A2:417
[67] At about 01:04:00, A1:221
[68] At para 22, A2:385
[69] At para 28, A2:386, and also para 33, A2:388
[70] At para 17, A2:384;
[71] At para 39, A2:389
[72] A1:218, at about 54:00, A1:219, at last sentence about 58:17
[73] A1:221, at about 01:04:00
[74] At A1:222, at about 01:04:00
[75] Exhibit P-1, at about 06:36
[76] See para 13, A1:157
[77] See para 179, pg 63, S&Y’s Closing
[78] At para 39, A2:389
[79] At para 40, A2:390
[80] At about 01:04:00, A1:222
[81] Paras 11, A2:399 and para 67, A2:415-416
[82] At about 01:45:56, A1:234-235
[83] At paras 8, 10, A2:447
[84] See para 67, Yee’s 1st statement, A2:415-416
[85] Para 14, A2:383
[86] Para 20, A2:450
[87] Para 8, A2:447
[88] Day 11 pm, XXN of Sing, and B2-2:1190-1202
[89] B2-2:1196
[90] B2-2:1202
[91] See para 190, S&Y’s Closing (as amended during oral submissions)
[92] Exhibit P-1, at about 07:25
[93] Day 11, pm, XXN
[94] Day 13, am, Re-Examination of Yin
[95] B2-2:1186-1188
[96] B1:586
[97] See para 90, A2:422
[98] B1:586
[99] See para 91, A2:423
[100] See paras 28-37, the Re-Re-Amended Defence and Counterclaim, A1:76-77
[101] Presumably the 2nd Assignment
[102] Para 31, A1:116-118
[103] See para 29, A1:160
[104] See paras 21, 22, A1:159
[105] Para 107, pgs 36-37
[106] As set out in paragraph 108 (a) to (f) of S&Y’s Closing Submissions.
[107] [1996] AC 669, HK
[108] Per Munby J, as he then was, paras 114-115
[109] See para 20, A2:385
[110] At para 31, A1:76-77
[111] See paras 38-44, S&Y’s Closing Submissions
[112] At para 32 pg 12
[113] At para 37, pg 15
[114] SB:1626-1634
[115] 2nd A:4
[116] See paras 51, 52, pg 12, D&V’s Opening
[117] At para 155, pg 54, S&Y’s Closing
[118] At para 157, pg 55, S&Y’s Closing
[119] C:1278, 9:23
[120] B2-1:839
[121] C:1278, 10:02
[122] C:1279, 10:10
[123] At para 137, pg 49, S&Y’s Closing
[124] At para 20, Sing’s witness statement A2:384
[125] 1st A:192-194
[126] Para 18, Defence, 2nd A:19
[127] At A1: 297, E:96
[128] At A1:299, E:97
[129] See para 223 (a) and (b), pgs 80-84, S&Y’s Closing Submissions
[130] RARD at paras 17B, 22, 1st A1:104, 110
[131] RARD at paras 17A, 22, 1st A1:103-104, 110
[132] A1:74-75
[133] At para 20/8/14, Hong Kong Civil Procedure, supra
[134] A1:74-75
[135] At para 42
[136] At para 3.14, [116]
[137] In para 223, pgs 80-84
[138] A1:278
[139] B2-1:819 to 826
[140] A1:280
[141] A1-280-283
[142] A1:287-289; although Ms Chan had referred to email of 22 October 2013, in fact the 2nd email sent by Diana was sent on 21 October 2013
[143] A1:281-283 (Diana’s commentary in Chinese); B2-1:819-826 (clean copy)
[144] A1:283
[145] B1:674-675
[146] B1:627-651, at B1:635, 28/7/2013, 10:01:32; also at A1:251
[147] B1:690-691
[148] At 21:57, A1:282
[149] B1:625
[150] At B1:627
[151] At para 26
[152] At para 11.7
[153] At para 11.20
[154] B1:785
[155] RARD para 17(a), 1st A1:97-98
[156] RARD para 17(b), 1st A1:98-100
[157] RARD paras 17(c)-(d), 1st A1:100-102
[158] RARD para 17(e), 1st A1:102-103
[159] From pages 8-13
[160] At 57:49, Transcript, A1:219
[161] At para 17(b)(ii), RARC, 1st A1:97, 1st B1: 623-624
[162] See para 31, Sing’s 2nd Statement, 1st A2:467, and Sing also orally confirmed during the trial that it was Yee who introduced and engaged the solicitors.
[163] 1st B1:627-651
[164] See para 85, A1:171
[165] At para 76, A1:170
[166] A1:244
[167] At para 265, pg 99, S&Y’s Closing Submissions
[168] Lu, Lu & Lu v Chan & Hui [2015] 6 HKC 149 at §§14-17 and Gatley at §14.9
[169] Day 8 am, XXN of Yee
[170] Day 11 am, XXN of Sing
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