WONG MAN CHING, CHRISTINE, as executrix of the Estate of WONG TAI KIN, Deceased v. WONG YUNG MO AND ANOTHER

HCA 305/2021

[2025] HKCFI 6443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 305 OF 2021

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  This action concerns the estate of Wong Tai Kin (“Deceased” or “Father”) who died on 8 December 2017 aged 89 years. His wife Chan Kwei Chung (“Mother”) pre-deceased him, having died on 26 August 1997.

2.  The Father and the Mother had 5 children:-

Wong Man Ching Christine (“Christine”) born in 1960;

Wong Man Sau Alexandra (“Alexandra”) born in 1962;

Wong Yung Mo (“Yung Mo” also known as Adrian) born in 1964;

Wong Man Yim (“Man Yim” also known as Maggie) born in 1967; and

Wong Yung Man Louis (“Louis”) born in 1971.

3.  The plaintiff in this action is Christine, who was appointed the sole executrix of the Deceased’s estate (“Estate”) under his will dated 15 November 2013 (“the Will”). The Will was not challenged and probate was granted on 16 January 2018. On 14 November 2020, Wilson Chan J gave a Beddoe order giving the plaintiff leave to commence this action. The writ was issued on 25 February 2021.

4.  The 1^st defendant is Yung Mo and the 2^nd defendant is his wife Lo Yuet Bo (“Madam Lo”).

5.  In this action, the plaintiff seeks, in brief:-

(1) a declaration that the Estate is entitled to at least 50% of the equitable interest of a residential unit with car parking space in Taipo (“Paragon property”) purchased in Yung Mo’s name in December 1997 - February 1998, and mesne profits for its occupation by the defendants since the Deceased’s death in December 2017;

(2) (a) recovery from Yung Mo and Madam Lo of sums transferred from two joint accounts in the names of the Deceased and Yung Mo at the Hang Seng Bank and CITIC Bank, which the plaintiff says were held in trust for the Deceased; and

(b) recovery from Yung Mo of a sum from the Deceased’s Old Age Allowance (“OAA”) transferred from an account in the Deceased’s sole name at the Bank Of East Asia (“BEA”) to an account at the same bank in Yung Mo’s sole name, and the Deceased’s Higher Disability Allowance (“HDA”) which was directly credited to an account in Yung Mo’s sole name.

The details of the claims in §§2(a) and (b) above are set out in Schedules in the Amended Statement of Claim.

6.  Briefly, the defendants’ case is that:-

(1) the Paragon property is owned by Yung Mo solely, as the monetary contribution which the plaintiff alleges came from the Deceased actually came from the Mother who gifted the money to Yung Mo. Pausing here, it is noted that:-

(a) in a letter from the defendants’ solicitors dated 3 January 2019, it was alleged that “the down payment contributed by the Deceased was an express gift to our client” (emphasis added). There was no mention of a gift from the Mother to Yung Mo. At trial, Yung Mo said the allegation contained in his solicitors’ letter was deliberately false because at that time he did not wish to disclose to his siblings what the Mother had given him. The allegation of a gift from the Deceased was however repeated in Yung Mo’s affirmation in opposition to the Beddoe application filed on 16 April 2020. At trial, he said it was in error as he had signed the affirmation quickly;

(b) at §15(2)(b) of the Defence, it was pleaded that it was a gift from both parents. At trial, Yung Mo said he thought there was no difference between the Deceased and the Mother; and

(2) the funds were (a) gifted by the Deceased to Yung Mo; (b) authorized by the Deceased for use by the family including the Deceased, or by Yung Mo personally at his sole discretion; (c) applied towards the Deceased’s living expenses; (d) applied to reimburse Madam Lo for expenses she had incurred on behalf of the Deceased or the family. Yung Mo also says that some of the funds (at trial, said to be $124,000) belonged to him personally.

7.  Before dealing with these issues, it is necessary to set out some facts which are undisputed, or which if disputed, have been found by me for the reasons set out below.

8.  In considering the evidence holistically, I have taken into account the oral evidence of the parties, being aware that recollections may be imperfect with the passage of time, and that witnesses may have different understandings due to lack of knowledge of the law of beneficial ownership, or their perspectives of events may be affected by feelings of gratitude or antipathy. Contemporaneous documentary evidence, or oral evidence which is so corroborated, would be given greater weight.

9.  I take into account the fact that a non-response to an accusation may not necessarily be an acceptance of its truth, as the non-response may be due to frustration or an unwillingness to further prolong an argument. Thus, I do not place much weight on the conversation between the siblings (in the absence of Yung Mo) on 10 December 2017 shortly after the Deceased’s death.

10.  I have also taken into account, among other things, many whatsapp messages passing between the siblings in the “Wong’s family” group app (“the group app”). This was created in January 2017 but it is clear from the messages that the relationships between the siblings became strained as time went on.

Factual background

11.  The Deceased was born in 1928. In 1959, he married the Mother. From 1960 to 1971, they had 5 children. Alexandra, Christine and Louis said that the Deceased treated all 5 children equally well, but Yung Mo said that they treated him better because he was the eldest son in the family. Although the Deceased was not wealthy, he provided for all 5 children to be given the opportunity to study overseas. That is an indication that he treated all 5 equally well.

12.  The family of 7 lived in a public housing unit until 1984 when they moved to a 4-bedroom flat in Shatin (“Phoenix Heights property”).

13.  The Deceased was not professionally qualified but was employed as an accountant at Marvels Clothing Co Ltd (“Marvels”). It is common ground that he was frugal and careful with money. This habit continued after his retirement. This was corroborated at trial by documents including bank statements showing marks he made after checking the figures (even if relatively small sums). It is common ground that he was conservative financially and mainly placed money on time deposits (“TD”). He was careful with the use of money and used to “shop around” to see which banks offered higher rates.

14.  Back in July 1969, the Deceased became a shareholder of Marvels and he was a director and assistant factory manager until 1996 when Marvels dissolved, at which time he retired (being then 68 years old). He received a pension sum of $800,000.

Hop Lee

15.  In the 1970's (in 1974 according to Yung Mo), a business called Hop Lee Piece Goods Company (“Hop Lee”) was set up. Hop Lee traded in piece goods.

16.  The Mother’s name was registered as sole proprietor of Hop Lee. There is a dispute as to whether this business was beneficially owned by the Deceased or by the Mother. This is relevant to Yung Mo’s case that the Mother had financial resources to gift him the down payment for the Paragon property, which will be discussed later in this Judgment.

17.  In considering the beneficial ownership of Hop Lee, it is well established that in the absence of evidence to the contrary, beneficial ownership follows the legal title. However, the evidence in this case is as follows.

18.  First, there is no evidence that the Mother had any capital with which to set up Hop Lee.

19.  Second, there is no evidence that she had any work experience in the piece goods trading industry, or indeed in any type of work. According to the Certificate of Marriage, she had no occupation.

20.  Third, in 1974 the youngest child was only 3 years old and the other 4 children were all below the age of 14. The Mother had a 7- person household to look after with no domestic help. Even without spending time gambling (as to which see below), her domestic duties would have left her no or very little time to also run a business.

21.  Fourth, there was evidence that she occasionally asked some of the children to write out invoices or receipts for Hop Lee. However, there is no evidence that she herself conducted any business operations as sole proprietor of Hop Lee, and Christine and Alexandra said it was the Deceased who did calculations with an abacus and wrote out the particulars for her to copy onto the invoices and receipts (Christine’s witness statement, 28 December 2022, §6). At trial, none of the siblings offered evidence of the Mother’s income.

22.1.  Fifth, and most significantly, in the defendants’ Answer filed on 9 July 2021 (to the Request for Further and Better Particulars of paragraphs 13(a), (b), and (d) of the Defence), the defendants pleaded that before Yung Mo graduated and entered the workforce (in 1990), “the Deceased was the sole breadwinner and paid all family expenses” (emphasis added). The defendants did not mention that the Mother had any income even though Hop Lee had, by 1990, been in existence for 16 years on the defendants’ own case.

22.2.  When Yung Mo was cross-examined on the Answer, he said he had made a mistake when giving this Answer as he thought the request referred to the period after the Mother’s death. However that could not have been the case, for Marvels was dissolved and the Deceased had retired in 1996, before the Mother’s death. I find this was an unsuccessful attempt to withdraw the Answer which directly contradicted the defence case that the Mother owned Hop Lee and had financial resources from which she allegedly gifted Yung Mo money for the Paragon property.

22.3.  The Answer that the Deceased was the sole breadwinner of the family is also consistent with the evidence of Christine and Alexandra. Although Man Yim and Louis said the Mother owned Hop Lee, they did not provide any evidence in support.

23.  Having considered the above, and in particular given the weight of the self-defeating Answer, I find that Hop Lee was owned, not by the Mother, but by the Deceased. I find that she was proprietor in name only. It is not necessary to determine why the Deceased did not register the business under his own name. Christine said in her witness statement that as the Deceased was a shareholder and director of Marvels which was a customer of Hop Lee, he may have wished to avoid any suspicion of conflict of interests.

24.  In any event, evidence from the few documents available at trial showed that Hop Lee’s profits were very modest (profits assessed at $20,000 for 1989/1990 and at $10,000 for 1990/1991).

25.  According to Christine, Hop Lee ceased business in the 1990's. Yung Mo said it ceased business in 1994. There is no documentary evidence of the date of cessation.

Appearances in commercials

26.  I should add here that Yung Mo also alleged that his parents had received some income from appearing in commercials. However, other than Alexandra’s evidence that she recalled the Mother receiving $3,000 to $10,000, there was no evidence as to how often they appeared, or how much they received, or who between them received such income. Accordingly, this is not of assistance in Yung Mo’s attempt to establish the Mother’s financial resources.

Purchase of 105C

27.  In 1976, a unit in Mei Foo Sun Chuen (“105C”) was bought in the Mother’s name. The Land Office register shows that a mortgage was obtained, and it is common ground that it was rented out.

Purchase of 34B

28.  Five years later, in 1981, another unit in Mei Foo Sun Chuen (“34B”) was bought in the Mother’s name. The Land Office register also shows that a mortgage was obtained, and it is common ground that it was also rented out.

29.  As the family continued to live in public housing at the time of the purchase of these properties, it is clear that they were acquired as investments, which turned out to be very successful.

30.  Eventually,

(1) 105C, which was bought for $140,000 in 1976 was sold for $980,000 in 1990; and

(2) 34B, which was bought for $595,000 in 1981 was sold for $4.5 million on 22 May 1997.

I shall refer later to the proceeds of 34B.

Beneficial ownership of 105C and 34B

31.  It is the plaintiff’s case that these properties were owned by the Deceased beneficially, whereas it is the defendants’ case that they were owned by the Mother beneficially.

32.  As mentioned above, in the absence of evidence to the contrary, beneficial ownership follows the legal title. However, there is no evidence that the Mother had the financial resources to pay the down payments for these properties. On the contrary, there is the following contemporaneous written evidence showing that it was the Deceased who paid for them.

33.1.  In March 1985, the Assessor of Profits Tax of the Inland Revenue Department sent a letter to the Deceased. This letter is not available. What is however available is the reply in May 1985 from Frederick Yu & Company, Certified Public Accountants (“Yu & Co”) given expressly on the Deceased’s instructions. It listed the source of funds for the purchase of 105C, 34B and the Phoenix Heights property.

33.2.  It is clear from Yu & Co’s reply that first, the Deceased did not assert that 105C or 34B had been purchased by the Mother with her own funds. She is not mentioned at all in the reply. Instead, it stated that the purchases were financed by mortgages (although the mortgage for 105C had been missed out) and the Deceased’s “own savings”, which comprised rental income from 105C and 34B, his salary and dividends from Marvels, a gift of money from Christine who was by then working in the USA, gifts of money from his sister and brother, and a loan from his brother who was resident overseas.

33.3.  Notably, not only was the Mother not mentioned as provider of funds or owner of 105C or 34B, the inclusion of the rental income from these properties as part of the Deceased’s “own savings” rebuts any presumption of advancement that the Deceased had gifted these properties to the Mother (which was not the defendants’ case anyway).

33.4.  Although Yung Mo has criticized the accuracy of Yu & Co’s reply as it missed out the mortgage as a source of payment for 105C, I find that a reply would not be lightly given by professional accountants to an enquiry from the Inland Revenue Department. In fact, the reply was supported by figures for rental income for 8 years, figures for the Deceased’s salary for 6 years, and photocopies of 5 cheques from his brother. I give the greatest weight to such contemporaneous written evidence from professional accountants instructed by the Deceased himself, who was an accountant and who had direct knowledge of the matters set out.

Mother’s gambling

34.1.  Further, in considering whether the Mother owned the Mei Foo properties beneficially, I have taken into account the evidence concerning the Mother’s gambling habit. Christine and Alexandra, as well as Christine’s husband Hui Wai Chow Jerzy (“Mr Hui”), testified that the Mother had a long-standing gambling habit, including gambling at casinos in Macau and incurring debts to loan sharks. The Mother had to look to the Deceased and Christine to repay her debts as she had no savings.

34.2.  Apart from these witnesses’ oral evidence on this aspect which I accept, there is also a letter dated 26 September 1991 from the Hong Kong Police Force advising that in connection with the Mother’s application for a certificate of no criminal conviction, their records showed that she had been fined in 1984 for the offence of gambling in a gambling establishment.

34.3.  Further in 2017, Mr Hui made a residency obligation appeal to the Immigration and Refugee Board of Canada. On 6 November 2017, Alexandra signed a letter with reference to the appeal in which she spoke of the Mother’s decline into a gambling addiction which caused disharmony and resentment within the family. Christine also signed a document entitled “spouse supporting testimonial” dated 13 November 2017 in which she said that the Mother was a long-term gambler who spent much of her time at mahjong, and later at casinos in Macau, requiring the Deceased and herself to repay debts to loan sharks and redeem items from pawn shops. This caused turmoil and frustration and a deterioration in the parents’ relationship which did not allow her to leave them then.

34.4.  These documents, provided to an official body, support the evidence that the Mother incurred gambling debts and would not have had any real savings.

34.5.  Yung Mo agreed that the Mother played mahjong but said he did not personally see the Mother gambling. This evidence is of little weight compared with that of Christine, Alexandra and Mr Hui and the official documentary evidence above many years before this action.

34.6.  As for Yung Mo’s argument that if the Mother were addicted to gambling, the Deceased would not have taken the risk of putting the Mei Foo properties under the Mother’s name as she might dispose of them, I accept the evidence of Christine and Alexandra that the Mother would not have dared to dispose of the properties. Besides, a legal title owner cannot dispose of real property as easily as say, pawning an item at a pawn shop, as there are legal requirements for conveyancing such as redemption of mortgages and production of title deeds.

Sale of 105C

35.  As mentioned above, 105C was sold in 1990. According to Christine, she believes the Deceased directed the Mother to transfer the proceeds of sale to his bank account immediately after completion (Christine’s witness statement, 24 January 2022, §33.1). In reply to this part of Christine’s witness statement, Yung Mo did not deny that the proceeds of sale of 105C were transferred to the Deceased’s bank account, although he disagreed that the Mother had no entitlement to the proceeds (Yung Mo’s witness statement, 29 August 2022, §23).

36.  No bank accounts of either the Deceased or the Mother for this period were available at trial. However, it can be seen from the Land Office registry that in 1990, the mortgage on 34B was redeemed 5 months after the sale of 105C. In the absence of evidence of other sources of funds for the redemption, or other uses to which the proceeds of 105C were applied, it is a reasonable assumption that the proceeds were used to redeem the mortgage on 34B which was not sold until May 1997. It would appear that at one time, the Deceased paid a preliminary deposit for a property in Mongkok. Yung Mo said it was for him, but Christine said it was for investment. There is insufficient evidence for a determination of this dispute.

37.  In any event, the eventual sale of both the Mei Foo Sun Chuen units did not bear out the suggestion that the Mother had wished to give one flat in Mei Foo Sun Chuen to each of the sons.

The Phoenix Heights property

38.  This property was bought in 1984 and registered under the names of the Deceased and the Mother as joint tenants. The family moved out of the public housing unit and moved there. The daughters moved out of the Phoenix Heights property by 1994-1995 at or before the time of their respective marriages. That left the parents, Yung Mo (and Madam Lo after she married Yung Mo in March 1997) and Louis residing at the Phoenix Heights property at this stage.

39.  The Mother was diagnosed with lung cancer in 1995-1996.

Sale of 34B

40.  As mentioned above, 34B was sold in May 1997, 3 months before the Mother’s death on 26 August 1997. It was sold for $4.5 million.

Disbursement of proceeds of 34B

41.  It is common ground that the Deceased received the deposit of 10% of the purchase price for 34B.

42.  As for the balance of the net proceeds of $4,032,000 (“34B balance”), it is common ground that this was used to purchase the Paragon property.

43.1.  The 34B balance was deposited on 24 May 1997 into Yung Mo’s account with a number ending 8949 with BEA where he worked. There is a dispute as to why this sum was deposited into his account. The plaintiff’s case is that the Deceased did so to take the benefit of more favourable interest rates for staff. The defendants’ case is that this was because 34B belonged to the Mother and she had gifted the proceeds to him.

43.2.  Yung Mo agreed at trial that BEA offered higher interest rates for deposits by staff (compared with ordinary customers) and that the Deceased knew this. However, Yung Mo said he did not know if the BEA staff interest rates were higher than rates offered by other banks.

43.3.  However, if there were better rates offered by other banks at the time, Yung Mo could have deposited the 34B balance in those other banks. There was no obligation for him to deposit the balance at BEA simply because he worked there. I find that it is likely that the 34B balance was deposited by the Deceased in Yung Mo’s account at BEA to take advantage of the higher staff rates.

44.  As shown in the evidence discussed above and below, 34B did not belong to the Mother but to the Deceased. As it was not Yung Mo’s case that the Deceased had gifted him the 34B balance, it would follow that it was held by Yung Mo for the Deceased on resulting trust.

The Deceased’s affirmation as the Mother’s administrator

45.1.  One significant piece of evidence is written contemporaneous evidence from the Deceased himself refuting the defendants’ case that the Mother had gifted the 34B balance to Yung Mo.

45.2.  On 3 November 1997, the Deceased, who was the administrator of the Mother’s estate, made an affirmation disclosing property passing on her death. Her joint tenancy of the Phoenix Heights property was disclosed, as well as a small sum of cash at banks. In relation to the question whether she had made any gifts inter vivos within 3 years of her death, the Deceased answered “Nil”. That affirmation would have been false if the Mother had been the beneficial owner of 34B and had gifted the deposit to the Deceased and the balance to Yung Mo.

45.3.  Yung Mo has not testified that the Deceased had made a false affirmation. Although he said the affirmation had been translated to the Deceased by Alexandra’s husband, he did not challenge the accuracy of the translation. The affirmation is clear evidence from the Deceased himself (consistent with Yu & Co’s letter) that 34B and its proceeds of sale belonged to him and not the Mother.

46.  Pausing here, it is noted that in Yung Mo’s spreadsheets (10 December 2017 to 4 January 2018) sent to the siblings after the Deceased’s death, he had included “Mei Foo Sun Chun $4,500,000” as part of the Deceased’s assets. The figure matches the proceeds of sale of 34B.

Purchase of the Paragon property

47.  As mentioned above, the daughters had all moved out of the 4- bedroom Phoenix Heights property by 1994-1995. After the Mother died in 1997, the Deceased decided to downsize from the Phoenix Heights property (which would be rented out) and the family moved to a 3-bedroom flat in a new development called Paragon in Tai Po completed in early 1998.

48.  In December 1997, a provisional sale and purchase agreement was made to acquire the Paragon property. The total purchase price (together with a car parking space) was $5,966,000 (not including expenses such as legal fees, stamp duty etc). A mortgage advance was obtained from BEA for $3,500,000 (subsequently replaced by a Bank of China mortgage when Yung Mo resigned from BEA, discussed later in this Judgment).

49.  It is common ground that Yung Mo has been contributing the mortgage instalments (the land registry particulars at trial did not indicate discharge of the Bank of China mortgage).

50.  The issue at trial was who had paid the rest of the purchase price (for convenience, the “down payment”). The plaintiff has taken the down payment to be 50% of the purchase price, and the defendants have not disputed this assessment.

51.  The Paragon property was bought in Yung Mo’s name. As mentioned earlier,

(i.) it is the plaintiff’s case that the Deceased had contributed the down payment of the purchase price from the proceeds of 34B which belonged to him, but the Paragon property was registered in Yung Mo’s sole name so that he could get a staff mortgage from BEA at better rates; and

(ii.) it is the defendants’ case (by the time of trial) that 34B belonged to the Mother, that she had gifted the 34B balance to Yung Mo, and that he had used that sum for the down payment. It is their case that the Deceased did not own 34B, and that he did not contribute anything to the purchase of the Paragon property.

52.  Christine’s evidence was that Yung Mo had told her that the Paragon property had to be registered in his name as he was obtaining a staff mortgage at better rates. Yung Mo agreed at trial that staff mortgage rates were better, but each staff member could only use this benefit once, and he had already used it for a property in City One. However, the bank had a discretion, and that was why he needed four guarantors for his loan (his wife, Christine, Alexandra and Louis). Having said that, he then retracted what he had just said about the bank having a discretion. He also failed to adduce any documents evidencing his mortgage transactions (whether of the City One property or the Paragon property) with BEA. I find this part of his evidence unconvincing. Whether he had used the staff mortgage for the City One property or not, there were obviously benefits in his taking out the mortgage as a staff member of BEA as he did not explain why he did not take out a mortgage at another bank but obtained it at BEA even at the inconvenience of having to find 4 guarantors.

Handwritten Note

53.  I have discussed above evidence showing that it was the Deceased and not the Mother who had paid for the purchase of 105C and 34B.

54.1.  That the 34B proceeds belonged to the Deceased and were used towards the down payment of the Paragon property is further corroborated by near contemporaneous written evidence, i.e. the front page of a handwritten note ("Note”).

54.2.  Yung Mo accepted that the front page (p.498 in the Hearing Bundle) is in his handwriting. Some figures can be seen on the back page (p.499). Christine said this was in the Deceased’s handwriting, but Yung Mo said he did not recognize it. As the parties have not focused on the back page, I need say no more about it, and shall refer simply to the front page as the Note.

54.3.  Although the Note is undated and Christine said the Deceased only gave it to her in 2014, Yung Mo said it was probably written in January 1998. This is borne out by specific figures such as $1,043,725.70 (which appears in his bank statement for account 8949 for 20 January 1998) and $2,108,812.30 (which appears in a time deposit renewal confirmation for account ending 2594 with this figure as the original deposit made on 19 January 1998).

55.1.  The figures on the Note are set out in 3 horizontal sections (which I shall describe as top, centre and bottom).

55.2.  In the top section are:-

(1) on the left, the Deceased’s pension sum of $800,000 which had been deposited as to $500,000 in BEA and $300,000 in International Bank of Asia then transferred on 13 February 1997 to Hang Seng Bank; importantly, Yung Mo agreed at trial that this was the Deceased’s own money and he has not alleged that the Deceased had gifted any part of it to him; and

(2) on the right, after the words “Mei Foo” the figure $4,032,000 (i.e. the 34B balance), followed by five disbursements:-

1.	$550,000	shares
2.	$100,000	shares (with the name of a specified stock)
3.	$2,000,000	BEA TD
4.	$100,000	BEA TD
5.	$350,000	Christine

After these disbursements, an amount of $32,000 was left.

55.3.  In the bottom section are figures representing the expenses for the purchase of the Paragon property (including car parking space). They came up to $6,144,200. After this amount there was a written sign showing, importantly, division by 2, resulting in “ = $3,072,110”.

55.4.  In the centre section, there is:-

(1) addition of:-

(a) three BEA TD’s ($500,000, $1,000,000 and $2,000,000) plus interest,

(b) the amount of $32,000 from the top section, and

(c) a cheque of $109,000 used for the drawing of lots to buy the Paragon property.

The three items above added up to $3,832,005. The disbursements for shares and Christine were not included;

(2) subtraction of $3,072,110,

(3) the resulting figure of “$759,895" ($3,832,005 minus $3,072,110) against which “BEA TD” was written.

56.  Yung Mo’s evidence was that he wrote the Note in three stages from September 1997 to January 1998 when he was calculating the minimum sum he needed to borrow from BEA on mortgage. However, if the Note was concerned only with Yung Mo’s own financial situation, there was no reason to include the Deceased’s pension sum (and where it was deposited). Yung Mo said that was because the Deceased suggested that he could use the pension sum just in case he needed more funds to purchase a new flat. I find it to be unlikely that the Deceased would have offered the entirety of his pension sum just in case Yung Mo wished to acquire a more expensive unit for himself, and I reject this allegation. Yung Mo admitted that the Deceased did not at any stage gift him the pension sum. Accordingly, the pension sum and where it had been deposited would have been completely irrelevant to Yung Mo’s calculation of his own financial situation.

57.  Yung Mo said the figures of $500,000, $1,000,000 and $2,000,000 in the centre section were different from those in the top section. He said those figures represented “my financial status after investment in time deposits and before the purchase of Paragon Property”. He claimed that the $3.8 million stated in the centre section was his money. However, he did not provide any evidence that in January 1998, he had from his own resources managed to save as much as that. It is noted that he only started working in 1990, at a salary of $6,000 pm in 1990 - 1991, $8,000 pm from 1991-1992, $10,000 - 20,000 from 1992 to 1996/7 and then $25,000 pm in 1998. Clearly, he could not have saved as much as that only 8 years after starting work.

58.  Further, if Yung Mo was calculating how much he needed to borrow on mortgage, there is no reason for dividing expenses (such as lawyers fees and stamp duty) by two. These are exclusively purchasers’ expenses, not expenses to be shared with the mortgagee bank.

59.  It is clear from the Note that the net result in the centre section was reached after taking into account incoming and outgoing funds from one wallet. The inclusion of the Deceased’s pension sum shows that the wallet was his, not Yung Mo’s. The top section showed the Deceased’s cash assets (his pension sum, and the 34B balance and its use), the bottom section showed how much he expended for half share of the Paragon purchase price, and the centre section showed his net cash position.

60.  The significance of the Note is that it is written evidence from Yung Mo’s own hand which revealed the Deceased’s financial situation, i.e. the 34B proceeds belonged to him (the Deceased), and that he paid half of the Paragon purchase price.

61.1.  It would be seen from the Note that there was a sum of $350,000 against the name of Christine in the list of disbursements in the right-hand part of the top section. On 27 September 1997, a cheque for $350,000 had been deposited into her account at Hang Seng Bank. This accords with a cheque from Yung Mo’s account 8949 in the same amount on the same day.

61.2.  Christine’s case was that about 4 months earlier, in May 1997, she and the Deceased had jointly invested in a “target time deposit” at BEA (where Yung Mo worked) which resulted in $350,000 at maturity. She said she invested a total of $147,499.85 in May 1997 by way of two cheques as her portion of the principal, and the Deceased invested an undisclosed portion of the principal. She said when she received the sum of $350,000 from Yung Mo on 29 September 1997 upon maturity, she returned the Deceased’s share of $200,000 by a cheque the same day. That meant Christine’s share on maturity was $150,000. Arithmetically, she would have earned about $2,500 interest ($150,000 minus $147,500) in 4 months, or about 5% p.a.

61.3.  As for the documentary evidence:-

(i.) Christine’s Hang Seng Bank statement for May 1997 disclosed she drew two cheques in the total sum of $147,499.85, and the statement for September 1997 disclosed she drew a cheque for $200,000. There is no documentary evidence who was/were the payee(s). Her request for images of the cheques was unsuccessful as the Hang Seng Bank replied that it did not keep images for more than 7 years;

(ii.) there is no evidence showing a withdrawal from the Deceased’s or Yung Mo’s accounts of about $190,000 in May 1997 (which, at 5% p.a. interest, would have been needed to result in $200,000 at maturity in September 1997); and

(iii.) there is no evidence showing a deposit of $200,000 in the Deceased’s or Yung Mo’s bank statements in September 1997.

61.4.  Yung Mo denied that there was any such “target time deposit”. He said the sum of $350,000 was a gift to Christine to buy a Mercedes Benz vehicle. He said that in September 1997, the Deceased told him that Christine had asked him (the Deceased) for $350,000 to purchase the vehicle. Yung Mo said in his 1^st witness statement (§37) that:-

“Father further told me that most of his money had been put in a time deposit account, he could not help her. Father was always generous towards his family. I knew Father really wanted to help his daughter. I therefore decided to issue a cheque of HKD350,000 to the Plaintiff on 27 September 1997 to purchase her new car.”

61.5.  Yung Mo did not say that the Deceased reimbursed him the $350,000, implying that he (Yung Mo) gifted that sum to Christine for a non-essential item, simply to please the Deceased, from moneys which he said were given to him, not by the Deceased, but by the Mother, who he said did not get on well with Christine. I find his allegation that he himself gifted that substantial sum to Christine to be incredulous.

61.6.  Christine has denied that the sum of $350,000 was for the purchase of the vehicle. There is documentary evidence showing that in October 1997, her husband Mr Hui purchased a Mercedes Benz vehicle for about $1m, partly in cash and partly by instalments. However, a gift from the Deceased to her of $350,000 is not inconsistent with her husband buying the Mercedes Benz in the manner shown in the documents. Further, as discussed above, there is no documentary evidence supporting Christine’s allegation of a joint investment with the Deceased in a “target time deposit”, which I find not proven.

62.  However, Yung Mo’s reference to the Deceased’s generosity and wish to help his daughter shows that the gift of $350,000 was not because Yung Mo himself wished to gift the sum to her, but because the Deceased did. That supports the finding that the $350,000 sum to Christine was a disbursement from the Deceased’s funds.

63.  After the Paragon property was purchased in 1998, the Deceased moved in with Yung Mo and his wife, and Louis. The daughters had all moved out when the family was still residing at the Phoenix Heights property. Alexandra relocated to the UK in 2008. From July 2012 to November 2016, Christine lived with her husband in Beijing (although she stayed at the Paragon property during 9 visits between 2012 and 2014), and moved with her family to Canada in December 2016. Man Yim lived in Tin Shui Wai, her husband was ill for some time and died in 2009, leaving her as a single parent to look after a young child.

64.  After the Paragon property was purchased, as Yung Mo admitted (witness statement, 29 August 2022, §44) the Deceased always paid half of the management fees, rates and utilities bills (calculated to the last dollar). This was done by way of cheques paid to Yung Mo. Yung Mo said this was because the Deceased considered it his responsibility as he lived there. However, the Deceased paid half whether there were 4 people living there (with Yung Mo, Madam Lo and Louis), or 3 (Yung Mo and Madam Lo after Louis moved out in 2001), or back to 4 (including the helper who commenced work in September 2008).

65.  I accept that by itself, the payment by the Deceased of half of the management fees, rates and utilities bills would not have been of much weight in the determination whether he had an equal share in the property, but in light of the evidence discussed above, payment of exactly half the management fees, rates and utilities bills corroborates the plaintiff’s case.

66.  Although the Paragon property was purchased in late 1997 to early 1998, the analysis of the evidence on the issue of ownership would not be complete without discussion of:-

(i.) a conversation in 2008; and

(ii.) an alleged conversation in November 2013 when the Will was made.

67.  Before turning to the evidence however, it should be noted that it is not the defendants’ case that the Deceased had, between the time of purchase and the time of the Will, made a gift of his share of the property to Yung Mo.

68.  Any findings regarding the conversations must be made against the background of the facts including the Deceased’s health condition.

69.  By way of background, on 14 December 2007, at the age of 79, the Deceased made his 1^st Will, appointing Christine as executrix and dividing his estate into 5 equal parts, one to each of his children.

Deceased’s health condition

70.  On 29 April 2008, tests confirmed that the Deceased had colon cancer. The next day, he made a 2^nd will at the same firm of solicitors. Again, Christine was made executrix, but his estate was to be distributed equally among Christine, Alexandra, Yung Mo and Louis, with Man Yim excluded from the list of beneficiaries. There was evidence, which was not challenged, that it was feared that a distribution to her might affect her entitlement to comprehensive social security assistance which she was applying for at the time. At the same time, the Deceased signed a general power of attorney with Yung Mo as donee. Yung Mo said at trial that he was under the impression that this was just for managing the Phoenix Heights property.

71.  The Deceased’s cancer surgery at a private hospital was successful and he was discharged from hospital in mid-May 2008, when he was looked after by Man Yim at her home.

72.  There were discussions as to the Deceased’s future care at a large meeting of all the siblings and their spouses (except for Man Yim’s spouse who was ill). The Deceased was not present, as obviously the children would be able to talk more freely in his absence. Christine and Alexandra proposed that a domestic helper be employed to look after the Deceased at the Paragon property. It is common ground that Yung Mo and Madam Lo objected to this proposal. Yung Mo was considering his employer’s suggestion of transferring to Shanghai, and Madam Lo did not want to stay with the Deceased and a helper.

73.  I accept that Alexandra then proposed that the Paragon property be sold, and half of the proceeds be used by the Deceased to buy a smaller unit for himself and a helper. Christine proposed as an alternative that the Paragon property be rented out, and half of the rent be used to rent a smaller unit for the Deceased and the helper. Alexandra referred to this in her message on the group app on 9 April 2018 (17:11) expressing her regret that at the large meeting, she had not insisted on “dissolving the partnership, selling Paragon so that Father could acquire a new place with the helper”.

74.  Either proposal would mean that Yung Mo and Madam Lo would not be able to stay at the Paragon property. Christine’s evidence was that they had no answer to the proposals. Eventually, an arrangement was reached whereby a domestic helper would be employed at the Paragon property but that the Deceased would pay the entirety of her wages and other expenses. This was so even though the employment contract was in Yung Mo’s name. The Deceased continued to pay half of the management fees, rates and utilities bills.

75.  Pausing here, that rather unusual arrangement for the helper is a pointer towards:-

(i.) the Deceased’s right to occupy the Paragon property as an owner, notwithstanding the objection of Yung Mo and his wife to have a helper for him living there; and

(ii.) the strict division of financial responsibilities between the Deceased (who was by then 80 years old and who had been retired for 12 years) and Yung Mo (who was 44 years old and in full time employment).

76.1.  Although the Deceased’s cancer surgery was successful, it was found incidentally that he also had aneurysms at his aorta and iliac artery. For this condition, he had consultations with specialists at Queen Mary Hospital (“QMH”) where he underwent surgery in October 2008.

76.2.  Thereafter, although the Deceased’s condition was asymptomatic, he had regular follow-ups at QMH which showed that the aneurysms continued to enlarge mildly, requiring consideration of management options about every 6 - 7 months.

76.3.  From the QMH reports, it can be seen that the Deceased was seen regularly by Dr Wong Chiu Cheuk, Alfred. It is significant that:-

(i.) In a detailed memorandum written on 19 July 2013 (apparently provided as the Deceased wished to have a second opinion from a private doctor), Dr Wong recorded that on 9 July 2013, he saw the Deceased and his son in his clinic and discussed options for management of the condition. After listing the options including different forms of surgical intervention and conservative management, Dr Wong said: “In view of his advanced age of 85, renal impairment ... and severe allergic reaction to contrast, conservative management is a reasonable option for Mr Wong. Patient and his son are well aware of current situation and a follow scanning is arranged in January 2014" (emphasis added); and

(ii.) However, when the Deceased returned for a follow up in February 2014, Dr Wong recorded that “patient cannot make a sound decision” (emphasis added).

77.  It is clear therefore that until 9 July 2013, the Deceased was sufficiently well mentally for Dr Wong to remark that he was well aware of his current situation, but that during the intervening period of 7 months until February 2014, the Deceased’s mental condition had deteriorated substantially, which Dr Wong clearly noticed.

78.  In regard to the Deceased’s mental condition, he had a consultation in November 2012 at the Department of Psychiatry of the Alice Ho Miu Ling Nethersole Hospital (“Nethersole”), referred by an outreach organization, for “suspected dementia” including memory issues. However, he scored 26/30 on a repeat MMSE (mini mental state examination) and was found to be orientated to TPP (Time Place and Person). No psychiatric medicines were prescribed.

79.  At the follow-up consultation on 27 March 2013, no psychiatric medicines were prescribed either.

80.  As mentioned earlier, the Deceased saw Dr Wong on 9 July 2013 when the doctor recorded that the Deceased was “well aware” of the medical matters discussed.

81.  However it is recorded on a Consultation Summary of the WSC Family Medicine Centre written on 7 November 2013 that between 23 October and 2 November 2013, the Deceased was admitted to a New Territories East Cluster hospital for a stroke. It was not recorded that the stroke had caused any impairments in mental functions. “Other Hx” (history) included dementia but that was as far as that summary went.

82.  Significantly, three of the Deceased’s children (Yung Mo, Man Yim and Louis) accompanied him to make the Will on 15 November 2013 (discussed below) without any one expressing concern that such dementia as he suffered from was to an extent that rendered him mentally incapable of making a will.

83.  In December 2013, it was recorded at Nethersole that the Deceased scored 14/30 on MMSE. Unfortunately, other observations are difficult to make out.

84.  The above medical evidence is not comprehensive enough to enable a finding to be made as to exactly when the Deceased commenced to suffer from dementia and if so, the extent thereof, except to say that from the observations of Dr Wong (as a doctor who had seen him regularly), the Deceased’s mental functions obviously deteriorated between July 2013 and February 2014, possibly by December 2013 when he performed 14/30 on MMSE.

85.  Yung Mo says the Deceased did not have any symptoms of dementia in 2013, and pointed to the fact that Christine (who was overseas at the time) arranged for the Deceased to make the Will on 15 November 2013. Christine said she was not aware that the Deceased had had a stroke until after she obtained his medical records during the executorship. As noted earlier, the Will was not challenged.

86.1.  The connection to the issue regarding the ownership of the Paragon property is that there is a dispute as to what (if anything) was said by the Deceased to the solicitor who prepared the Will, Lam Shuen of Yip, Tse and Tang (“YTT”). This was not the same solicitor or firm who had prepared his first two wills. There is no evidence whether Ms Lam had ever met the Deceased before.

86.2.  The Deceased was accompanied to YTT by Yung Mo, Man Yim and Louis. Christine and Alexandra were overseas. Yung Mo alleged in his witness statement that “before executing his 3^rd Will, Father confirmed to all of us that the Paragon property was a gift to me and it would never be considered a part of his estate” (§19) (emphasis added).

86.3.  Louis said in his witness statement that “at the time of making the Will, apart from the solicitors’ staff and the Deceased, the 1^st Defendant, Man Yim and I were also present. The Deceased stated unequivocally in our presence that the Paragon property does not form part of his estate” (§4).

86.4.  In Man Yim’s witness statement, she agreed with Louis’ witness statement (however at trial, she admitted she said so as she herself did not remember). Be that as it may, she said “the Will was made mainly because the Deceased wished to include me as one of the beneficiaries of the Estate. Again, it was made very clear by him that the Paragon property does not form part of the Estate” (§4).

87.  First, it would be noted above that there is an inconsistency between Yung Mo’s version and that of Louis and Man Yim, which makes no reference to a gift.

88.  At trial,

(1) Louis said that at the time, Yung Mo asked the Deceased if the Paragon property was part of his estate, to which the Deceased said the flat is in your name, that’s yours, so it is not in the estate. Man Yim said Yung Mo asked the Deceased if the Paragon property was part of the will, and the Deceased said not. These versions are different from Yung Mo’s. There is no reference to a gift, but a reference to the name in which the property was held; and

(2) Man Yim said she thought the Paragon property was Yung Mo’s, simply because it was in his name.

89.  As discussed above, it is not the defendants’ case that there was a gift from the Deceased to Yung Mo of the down payment back in 1997-1998, nor is it their case that thereafter, the Deceased had made a gift of his share of the property to Yung Mo. The defendants’ case is that the down payment came from the Mother, and the purchase of the Paragon property had nothing to do with the Deceased. Thus, on the defendants’ case the Deceased never had a share in the property. As such, one wonders why the Deceased would volunteer a statement that the property would not fall into the Estate.

90.  Importantly, if Yung Mo had asked the Deceased to confirm that the latter had no share in the Paragon property (eg to avoid the absent siblings inquiring about it), one would have expected him (Yung Mo) to ask the solicitor to prepare a written confirmation (eg by way of a statutory declaration by the Deceased) to that effect. No such document was sought or prepared.

91.  Yung Mo would also have seen from the Will that it did not include the Deceased’s confirmation. He took no follow up action.

92.1.  As far as the solicitor was concerned, YTT proved to be uncooperative. There is no evidence from Ms Lam as to when and how she took instructions from the Deceased, and what was said by whom at the time of preparation and execution of the Will.

92.2.  On 23 December 2020, the plaintiff’s solicitors wrote to YTT asking for their file. Although the 7-year obligation for solicitors to keep files lapsed on 13 November 2020, YTT did not reply at that time saying that the file had been destroyed already. Instead, on 30 December 2020, they replied that the file (including attendance notes) belonged to them and that they were not obliged to provide it to the executrix’s solicitors, for the issue between the Estate and Yung Mo did not involve the making of the Will for which probate had been granted. Indeed, the correspondence from YTT did not make it clear on which date the file was destroyed.

92.3.  Despite indications from the plaintiff’s solicitors that a subpoena may be issued for Ms Lam to give evidence at the trial, Ms Lam was not called by either the plaintiff or the defendants. There is therefore a lack of supporting evidence from the solicitor for what the defendants allege was said by the Deceased.

92.4.  Having considered the above matters, in particular §88-92 above, I reject the allegation that there was the alleged statement from the Deceased.

93.  Finally, in relation to the Paragon property, it would be noted that in Yung Mo’s message in the group app of 10 December 2017, he said he himself had contributed $3.5 million to the Paragon property and the Deceased had contributed $2.5 million.

94.1.  As for the attached spreadsheets, it is clear from an objective reading that they set out the Deceased’s assets and expenses.

94.2.  The spreadsheets included “Paragon $2,500,000" in deductions from the Deceased’s assets. Yung Mo said in his witness statement that it did not represent the truth and that he “said this in the moment of rage because the plaintiff and Alexandra had started making unfounded allegations against me about mishandling the Deceased’s assets”.

95.  Whilst I can understand that Yung Mo may say things against the plaintiff and Alexandra in a moment of rage, it does not make sense for him to make an admission against his own interests. I note also that the figure is smaller than the actual down payment, although Yung Mo did add in the spreadsheets “All the above big item to my best memory in these 20 years”.

96.  Yung Mo said in his witness statement that he did not wish to disclose that the down payment came from the Mother’s gift to him as not all siblings knew about this fact and he did not wish to create hard feelings among them. This is however inconsistent with his “rage” at what he alleged were “unfounded allegations”. If the funds did come from the Mother, and his entitlement to the whole of the Paragon property was unjustifiably challenged, one would have thought he would have immediately disclosed that if it were true.

Finding on ownership of the Paragon property

97.  By reason of the above, I find that 34B belonged to the Deceased and that he used the 34B balance for the down payment of the Paragon property, the common intention of the Deceased and Yung Mo being that each would own half of the property. I reject the defendants’ case that the Mother had gifted Yung Mo the down payment and that he owned it solely. As it is not the defendants’ case that there was any change to the beneficial interest in the Paragon property after its acquisition, I find that the Estate owns 50% of the beneficial interest therein.

Funds claims

98.  I shall now discuss the claims for funds transferred to the 1^st and 2^nd defendants’ accounts.

99.  The funds which the plaintiff claims are:-

(a) sums transferred from two joint bank accounts, being:-

(1) a joint account ending with No.3273-888 opened by the Deceased and Yung Mo at the Hang Seng Bank on 24 March 2010 (“Jt a/c #1”);

(2) a joint account ending with No.0600 opened by the Deceased and Yung Mo at China CITIC Bank on 5 September 2012 (“Jt a/c # 2"); and

(b) sums from the Deceased’s OAA transferred from an account at BEA in his sole name to an account in Yung Mo’s sole name, and the Deceased’s HDA which was directly credited to Yung Mo’s bank account.

Flow of funds

100.  The flow of funds set out in the schedules to the Amended Statement of Claim is not disputed.

Jt a/c #1

101.1.  According to Yung Mo’s 1^st witness statement, the Deceased deposited around $1.5 million as initial capital when Jt a/c #1 was opened. This was nearly all the money from the bank accounts he held in his sole name.

101.2.  This account was also the depository for rents from the Phoenix Heights property which were initially paid into the account in the Deceased’s sole name with Hang Seng Bank (until October 2013 when the rents were paid straight into Jt a/c #1).

101.3.  Transfers were made from Jt a/c #1 to Yung Mo and Madam Lo as shown in Schedules 1.2 to 1.6, in the total sum of $2,777,323.14 (adopting an exchange rate of 7.8 to 1 for the USD transfer). This sum does not include the transfer from Jt a/c #2 below.

Jt a/c #2

102.1.  This was opened in September 2012 and received a sum of $1,014,088.10 from the Deceased’s account at Wing Lung Bank held in his sole name.

102.2.  This originated from a sum of $1 million from Jt a/c #1, passing through an account held at China Construction Bank in the Deceased’s sole name and the above Wing Lung Bank account.

102.3.  On 20 March 2013, the sum of $1,022,189 was transferred from Jt a/c #2 to an account in Yung Mo’s sole name at the same bank. This is shown at Schedule 1.1.

OAA and HDA

103.  Moreover, there were:-

(1) transfers from the Deceased’s account at BEA in his sole name into which the OAA was deposited. A total of $54,750 was transferred to an account at BEA in Yung Mo’s sole name, as shown in Schedule 1.7; and

(2) the direct payment to Yung Mo of the Deceased’s HDA, in the total sum of $61,272.59 as shown in Schedule 1.8.

104.  It would be noted that apart from:-

(1) $1,022,189 from Jt a/c #2 in March 2013 (Schedule1.1),

(2) $124,000 from Jt a/c #1 in April 2011, $15,000 pm from July 2013 to October 2013, and a sum of $30,000 on 4 November 2013 (Schedule 1.2); and

(3) $750,000 from Jt a/c #1 in August 2013 (Schedule 1.4),

all the funds claimed were transferred after December 2013.

105.  As mentioned above, the Deceased scored 14/30 at Nethersole in December 2013 and Dr Wong at QMH had noticed in February 2014 that the Deceased was not able to make a sound decision. On 8 August 2016, a medical officer at Nethersole certified that the Deceased was “mentally unfit for making a statement”, and that he needed “continual supervision in order to avoid endangering himself or others eg severely demented, mentally retarded”.

106.  I shall deal with the ownership of and transfers from the joint accounts first, and leave the claims for the OAA and HDA for later.

Guiding principles

107.  In deciding the beneficial ownership of the joint accounts, I am guided by the principles adopted by the Court of Appeal in Poon Loi Tak v Poon Loi Cheung Desmond [2024] HKCA796.

108.  First, the Court of Appeal adopted the following principles at §27:-

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

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

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

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

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

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

Further, at §43, the Court of Appeal said (among other things):-

“Whether a trust or a gift is indicated when a parent puts money in a joint account with his/her child, or makes the child a joint holder of an existing account of the parent, depends on the facts and circumstances of each case. In Nanyang Commercial Bank Ltd v Personal Representative of Vannee Nativivat [2013] 2 HKLRD 749, [40], To, J said that ‘[w]here funds are place into the joint account of an aging parent and an adult child, an inference may be drawn that the arrangement is one of administrative convenience for the child to manage the financial affairs of the parent rather than a gift by the parent to the adult child’. Whether such an inference should be drawn depends on the circumstances of any given case.”

Further, the Court of Appeal held at §52, regarding survivorship clauses in account opening documents:-

“The Judge was also correct in his view that a survivorship clause of a joint bank account, often found as part of a bank’s standard terms and conditions in small print, is primarily a contractual arrangement between the bank and the joint account holders on how to deal with the money in the joint account in the event of death of one of the holders.”

Discussion of funds claims

109.  Essentially, the defences were:-

(1) Jt a/c #1 was a “pooling” of assets of the Deceased and Yung Mo;

(2) there was a gift from the Deceased to Yung Mo of Jt a/c #1 when it was opened;

(3) there were individual gifts from the Deceased to Yung Mo of $1,022,189 from Jt a/c #2 in March 2013 and $750,000 from Jt a/c #1 on 29 August 2013;

(4) the Deceased had authorized Yung Mo to use funds from Jt a/c #1 for expenses of the family, comprising the Deceased, Yung Mo and Madam Lo; and

(5) funds were used for the Deceased’s own expenses.

110.  I shall deal with each in turn, noting some are factually alternative.

Was Jt a/c #1 a pooling of assets of the Deceased and Yung Mo?

111.  Significantly, the defence of “pooling” of assets was never pleaded. In my view, that is a matter of considerable importance. If it had been pleaded, one would expect particulars of exactly what sums Yung Mo says had been deposited by him, and the plaintiff would have to undergo an exercise of verifying those sums and their sources.

112.  It seems that at trial, Yung Mo’s case was restricted to the sum of $124,000 transferred to him on 18 April 2011. He said this originated from the proceeds of sales of his own stocks which he had deposited into Jt a/c #1 earlier. Although there was evidence from Christine that the Deceased had told her that Yung Mo traded in stocks, there was no evidence of any stock transactions matching that figure.

113.  More importantly, Yung Mo had many accounts in his sole name. He did not explain why he used Jt a/c #1 to deposit proceeds of his personal stock transactions.

114.  Accordingly, I find that there was no pooling of assets in Jt a/c #1. As mentioned earlier, according to Yung Mo’s 1^st witness statement, the incoming funds were the Deceased’s $1.5 million as initial capital when Jt a/c #1 was opened (being nearly all the money from his sole name bank accounts) and the rents from the Phoenix Heights property.

Was Jt a/c #1 a gift from the Deceased to Yung Mo?

115.  In the letter from Yung Mo’s solicitors dated 3 January 2019, there was no reference to a gift. The reply was that the withdrawals in Schedule 1 were “within the knowledge and permission of the Deceased”. Part of it was used for the Phoenix Heights property maintenance and “part of it was given to support our client financially and for the family expenses” (emphasis added). He said at trial that he did not go into matters in detail in his solicitors’ letter as he did not think he needed to make a full explanation then. I find that surprising as the first letter from the plaintiff’s solicitors was 2 months ago, and in their second letter dated 20 December 2018, legal proceedings had been threatened.

116.  Yung Mo’s case as pleaded was that after resigning from his job, he had expressed to the Deceased “his great worry about the finance. As the 1^st defendant did not have any income, it would be difficult for him to keep paying for monthly expenses for the family. ... In order to show support to the 1^st Defendant after quitting the job, the Deceased decided to ease the 1^st Defendant’s burden financially. ... The Deceased authorised the 1^st Defendant to use all the money in the Joint Account 1 for the family and the 1^st Defendant’s own use at the 1^st defendant’s sole discretion” (emphasis added). Yung Mo said at trial that this meant he could use Jt a/c #1 “for anything, with no cap”.

117.  In ascertaining whether it was the Deceased’s intention to be the beneficial owner of Jt a/c #1, or if it was his intention to make a gift of it as Yung Mo alleges, one must consider the surrounding facts.

118.  Joint a/c #1 was opened in March 2010. The initial capital of about $1.5 million was from the Deceased’s other bank accounts. He also regularly transferred the Phoenix Heights rents from the account in his sole name to this account.

119.  The month before, Yung Mo resigned from BEA. He was 46 years old. He has not looked for work since, although there is evidence that he traded in stocks. His wife has worked throughout their married life, but their evidence is that they have always been financially independent. They have no children.

120.1.  Yung Mo said he resigned to look after the Deceased. I do not find that has been established, although I accept that in the Deceased’s last years, Yung Mo did help the domestic helper to look after him.

120.2.  Although the Deceased had surgery for cancer and aneurysms, these occurred nearly 2 years before the resignation, in 2008. He had a domestic helper since September 2008, and after 2008 the condition of his aneurysms was asymptomatic.

120.3.  The medical reports show follow-ups scheduled at similar intervals as before, and there do not appear to have been any medical events causing special concern in the months before February 2010. Further, at a medical consultation at Nethersole on 13 May 2010, the Deceased was described by the doctor as “ADL [activities of daily living] independent”.

120.4.  At trial, Yung Mo admitted that he did not attend a check up with the Deceased in January 2010 (which the Deceased attended with the helper) and did not inquire about the result.

120.5.  Yung Mo did not accompany the Deceased to some of the follow-ups after his resignation either. The medical records show that in March 2011, the Deceased was accompanied by a daughter, in August 2012 by the helper, and in May 2013 by a daughter and the helper. Louis said at trial that even as at 2013, the Deceased could take care of himself, and Man Yim (who visited the Deceased regularly on Sundays and stayed with him when Yung Mo was traveling) said the Deceased only began to decline physically and mentally in 2014. According to Alexandra, he started needing a wheelchair only in 2016.

121.  Yung Mo also admitted at trial that he did not tell the Deceased or his siblings that he had resigned in order to look after the Deceased. He said at trial that at a family gathering he just lightly mentioned that he had resigned to take a break.

122.  I find he resigned because he did not wish to work at the bank any longer. He would not have resigned if he had financial concerns. He was a senior manager, making $42,000 pm. His evidence at trial that he had no financial plan when he resigned is inconsistent with his witness statement that “I believed my saving could maintain our standard of living for a period of time” (19 August 2022, §51).

123.  As for his case that he had expressed to the Deceased “his great worry about finance” after his resignation and before Jt a/c #1 was opened:-

(1) first, his evidence at trial that before his resignation he did not think about his financial situation, but then had “great worry” when he thought about it before the opening of Jt a/c #1 just the following month is untenable for a person 46 years of age who had worked at a bank for 20 years;

(2) secondly, this is inconsistent with his evidence at trial that at a family gathering including the Deceased after his resignation, he just lightly mentioned that he had resigned to take a break; and

(3) thirdly, this is inconsistent with his evidence at trial that at first, the Deceased had wanted to gift him his entire HSBC account of $1.5 million, but it was he (Yung Mo) who said he still had money, and suggested putting it into a joint account.

124.  Moreover, Yung Mo admitted at trial that he did not tell the Deceased of his plan to resign because if he had done so, the Deceased would have objected. Given the Deceased’s frugal nature and care he took over money, I find he would not have rewarded Yung Mo’s conduct by making him a gift of his assets to be used at Yung Mo’s sole discretion.

125.  Further, I reject Yung Mo’s evidence that the Deceased knew that he had given up a better job opportunity overseas for him (the Deceased) and the whole family (Yung Mo’s witness statement, 29 August 2022, §48). The overseas opportunity was in 2008. He did not resign until 2010.

126.  Finally, his case that the Deceased had gifted him Jt a/c #1 to be used at his sole discretion is inconsistent with his evidence at trial that in August 2012, the Deceased told him that they could each use half of the rents.

127.  I find that the fact that Yung Mo was not working (because, as he told his family, he wanted a break) would have been a good reason for the Deceased to open a joint account with him so that he could help with banking transactions. It is common sense that an elderly person would find it tiring to make trips to a bank to do banking transactions, whether or not he had to wait in line when he got there, and it is common ground that the Deceased did not know how to do online banking. Although the Deceased had given a general power of attorney to Yung Mo back in April 2008 which was not revoked, Yung Mo said he thought it was only for managing the Phoenix Heights property. In any event, it would be much more cumbersome to rely on it at every banking transaction.

128.  It is notable that Yung Mo said that hard copy monthly bank statements for Jt a/c #1 were kept by the Deceased (witness statement, 29 August 2022, §61). However, I note those statements produced by Yung Mo at trial did not contain any markings by the Deceased. Whether those were the originals kept contemporaneously, or whether the lack of markings was because the Deceased could not follow the online transactions shown on the statements, does not matter. In any event, it is not the defendants case that after Jt a/c #1 was opened, the Deceased had no interest whatsoever in that account or in the funds in it, leaving it entirely in Yung Mo’s hands. On the contrary, Yung Mo’s evidence was that the Deceased would sometimes stand behind him when he was conducting online transactions and would ask him about the state of the account.

129.  I find the Deceased did not leave Jt a/c #1 to be used at Yung Mo’s “sole discretion”. This account was opened in March 2010. It is clear from the statements from April 2010 to June 2012 for the account in the Deceased’s sole name, that he was checking and making notes on much smaller figures, showing he remained careful with the use of money, and would not have intended the account containing the bulk of his liquid assets to be expended without restraint.

130.  In my view, the above evidence shows that there was no intention to make a gift of Jt a/c #1 to Yung Mo, and the beneficial interest therein throughout belonged to the Deceased.

Individual gifts?

131.1.  Two individual gifts should be specially considered. The first is the sum of $1,022,189 transferred on 20 March 2013 from Jt a/c #2 at CITIC to an account in Yung Mo’s sole name at the same bank.

131.2.  The withdrawal document was signed by Yung Mo only, but he said the Deceased went with him as the latter wished to make a gift of the sum to him. Pausing here, it is noted that according to §7(1)(b) of the Defence, the gift was of that sum of money, not that the sum of money was the accrual of a gift that had been made previously.

131.3.  Yung Mo said the Deceased made the gift to him “as [Yung Mo] did not have any income since February 2010, in order to support [Yung Mo’s] daily living and show appreciation to [Yung Mo’s] care and affection to the Deceased over the years”.

131.4.  I note that this transfer was made 3 years after Yung Mo had resigned. It is not suggested that there was any particular event or conduct that precipitated the alleged gift. In so far as it was suggested that the Deceased was concerned about his health, the follow-up with Dr Wong (leading to the detailed written report) occurred only on 9 July 2013, after the transfer of this sum.

131.5.  On the same day as the transfer from Jt a/c #2, Yung Mo withdrew the sum from his account at CITIC and opened an account at Citibank, Tai Po branch where he deposited the sum in a 3-month time deposit in his sole name. Notably, a Letter of Authority was signed by Yung Mo and the Deceased at Citibank whereby the Deceased was made an authorized signatory of Yung Mo’s said account. This is significant.

132.  Yung Mo said in his 1^st witness statement that was done “so he [the Deceased] could withdraw the money therein for emergency in case I predeceased him”.

133.  First, this explanation is difficult to follow. If Yung Mo died, the authorization would lapse.

134.  Secondly, if Yung Mo was concerned about not being able to access the account if say, he fell seriously ill, he did not explain why he did not arrange for his wife (or his brother Louis who lives in Hong Kong) to be his authorised signatory, rather than an 85 year old man who was himself not in perfect medical condition.

135.  In my view, the Deceased’s appointment as authorized signatory showed that the transfer to Yung Mo’s account at Citibank was for convenience, and his intention was to retain a measure of control over the sum, which would not be consistent with an out-and-out gift of it to Yung Mo.

136.1.  Further, it is noted that there was no mention in Yung Mo’s spreadsheets of this alleged gift from the Deceased of more than $1 million, even though smaller sums given to Louis and Man Yim were included. Yung Mo said at trial he “did not think of including it”. This is disingenuous as he had revised the spreadsheets twice after the first version.

136.2.  As for the sums referred to above, Louis said that the Deceased had made him a gift of $1 million for his unit in Sai Kung (supplemental witness statement, 29 August 2022, §8) and Man Yim said that the Deceased had made her a gift of $400,000 for her unit in Tin Shui Wai (supplemental witness statement, 29 August 2022, §6). Although the plaintiff said in her supplemental witness statement that the right of the Estate to recover these sums was reserved (28 December 2022, §21), Louis and Man Yim were not challenged on these matters in cross-examination.

137.  For all the above reasons, I find that the sum of $1,022,189 was not a gift from the Deceased to Yung Mo.

138.  The second individual gift is the sum of $750,000 transferred on 29 August 2013 from Jt a/c #1 to an account in Yung Mo’s sole name. This sum was transferred by way of a cheque No.343430. The source of funds for this cheque was two online transfers, one of $3,000 from an account in the Deceased’s sole name, and one of $747,000 from Jt a/c #1. It is common ground that the Deceased did not know how to make online transfers, and there is no evidence as to who signed the cheque.

139.1.  The plaintiff has queried whether the Deceased was aware of this transfer at all. I find that he was for the following reasons.

139.2.  First, the hard copy bank statement dated 23 September 2013 showed total assets of $933,319.91 on 23 August 2023 but only $189,657.19 on 23 September 2013, a substantial drop which the Deceased would not have failed to notice. The withdrawal of $750,000 by way of a cheque on 29 August 2013 is shown in the transaction history on page 2 of the statement. If he had any questions about the cheque, he could have asked the bank for a copy. There is no evidence that he did.

139.3.  As for the Deceased’s mental condition, Dr Wong observed only 2 months ago in July 2013 that he was “well aware” of his current situation.

139.4.  Although the Deceased subsequently suffered a stroke on 23 October 2013 and was hospitalised, he would still have had a month to read the 23 September 2013 bank statement. However he did not complain to Christine or his other children that this transfer had been unauthorised by him.

140.  Further, as discussed above, three of the Deceased’s children accompanied him to make the Will on 15 November 2013 without any one expressing concern that such dementia as he suffered from (if any) was to an extent that rendered him mentally incapable of making a will.

141.  Accordingly, I find that the Deceased was aware of the transfer of $750,000.

142.  The next question is what was the Deceased’s intention for making this transfer. As the Deceased was aware that any one signatory could operate Jt a/c #1 (as he himself had signed cheques on his own), it would not have been necessary for him to transfer funds to Yung Mo in case he became incapacitated and needed to use funds.

143.  There is no evidence that the Deceased had made a loan to Yung Mo, or that it was for some investment of the Deceased taken out in Yung Mo’s name.

144.  According to Yung Mo, the sum of $750,000 was a gift made by the Deceased as he (the Deceased) had been informed at the follow-up with Dr Wong on 9 July 2013 of the gradual enlargement of his aneurysms and the management options open to him. Eventually, the decision was to adopt a conservative approach. Yung Mo said, and I accept, that this caused the Deceased to be concerned about the possible imminence of death or serious incapacity, and he wished to make a gift to him.

145.  I am aware that Yung Mo did not include this sum of $750,000 in his spreadsheets. I find that was because he was trying to avoid Christine’s inquiries into the Deceased’s finances. But the point remains that the Deceased must have been aware of this transfer and there is no evidence that this was for a loan or an investment.

146.  I find that the sum of $750,000 was transferred as a gift to Yung Mo. It would appear that the Deceased had made monetary gifts to Christine, Louis and Man Yim at different times and of different amounts according to the circumstances. It would not have been an extraordinary decision for him to make a gift to Yung Mo. After all, the Deceased was living with Yung Mo. The Deceased knew he would have to turn to him for care in case of serious incapacity. Christine and Alexandra both lived overseas, Man Yim lived some distance away and had her child to look after, and Louis had to work and had his own family. The helper was employed by Yung Mo.

147.  In light of the evidence above, I find the Deceased did intend to make a gift to Yung Mo, being aware that he would need further care from him should he suffer serious incapacity in the future, and I dismiss the claim for $750,000.

Did the Deceased authorize use of funds in Jt a/c #1 for family and/or Yung Mo’s own expenses?

148.  Yung Mo resigned in 2010, but it is clear from the statements of Jt a/c #1 from the opening in March 2010 to July 2013 that the Deceased did not pay regular family expenses, let alone Yung Mo’s own expenses, from this account. On the contrary, there are cheque stubs from the Deceased’s sole name account showing that after Jt a/c #1 was opened and until August 2013, the Deceased reimbursed Yung Mo for what he said at trial were “Father’s own expenses”.

149.1.  As for Louis and Man Yim who said the Deceased authorized use of funds, this did not appear in their witness statements at all. It was clear from Louis’ evidence at trial that he supported Yung Mo’s case because of the sacrifice he considered Yung Mo had made to look after the Deceased in the last few years of his life. He had little knowledge of the Deceased’s financial affairs.

149.2.  Louis said at trial that when Yung Mo resigned in 2010, he (Yung Mo) did not tell him that he had financial concerns. Louis was aware that Yung Mo traded in stocks, although he was not aware of any details of his trading.

149.3.  Louis also said that he assumed that the Deceased had supported Yung Mo with the Phoenix Heights rents because Yung Mo had not been working for some 7-8 years. However, he was not aware of the sum, eg of more than $1 million, withdrawn by Yung Mo from the joint accounts. It is therefore not entirely correct to say that Louis was testifying against his own interest.

150.  Man Yim also said at trial that it was a “reasonable inference” that family expenses (rather than Yung Mo’s personal expenses) were paid by the Deceased as Yung Mo was not working. She was not aware until questioned at trial that Yung Mo alleged that the Deceased had made him gifts of $1 million and $750,000. Obviously, he did not share that even with Louis and Man Yim, leading them to infer that the Deceased must have agreed to being the source of funds for family expenses. As with Louis therefore, it is not entirely correct to say that she was testifying against her own interest.

151.  In any event, Louis said what he heard the Deceased say was that what needed to be spent should be spent. That was consistent with the Deceased’s frugal character, and is inconsistent with Yung Mo’s case that the Deceased had authorised him to use the funds for the expenses of the family, and even for his own expenses at his sole discretion “for anything, with no cap”.

152.  I therefore reject the defendants’ case that the Deceased had authorized use of funds in Jt a/c #1 for family and/or Yung Mo’s own expenses at the time when it was opened in 2010.

153.  It was only from July 2013 that $15,000 pm was transferred online from an account in the Deceased’s sole name to Jt a/c #1, and from there to an account in Yung Mo’s sole name. The first sum of $15,000 was transferred on 10 July 2013, the day after the follow-up with Dr Wong at QMH. Soon thereafter, the tenant of the Phoenix Heights property was asked to pay the rent directly to Jt a/c #1. That would enable Yung Mo to pay the Deceased’s expenses (such as the helper, and his food and other expenses) in case the Deceased became incapacitated, but that is a far cry from an intention that Yung Mo would be authorized to access the account for expenses for himself and his wife as well, at his sole discretion.

154.  From February 2014, as per Dr Wong’s medical report, the Deceased was no longer able to “make a sound decision”. I find the Deceased did not authorize the use of funds for other uses. Indeed, it is accepted in Yung Mo’s final submissions that since October 2015, the funds in Jt a/c #1 were “dangerously low” and that the Deceased was “completely unaware” of it. Had the Deceased been mentally capable, given the care he took with money, he would have spoken to his other children about it.

155.  As for Madam Lo, it is notable that there were no transfers from the Deceased to her account in all the 17 years from her marriage in 1997 until July 2014 after the Deceased was no longer able to “make a sound decision” (as per Dr Wong’s medical report in February 2014). As Madam Lo lived in the same flat as the Deceased, she must have been aware of the Deceased’s mental condition, with the consequence that she must have known that the Deceased was not in a condition to authorise the transfers.

156.  From the above, I find that the Deceased did not authorize use of funds in Jt a/c #1 to Yung Mo or Madam Lo for family and/or Yung Mo’s own expenses, except for the registration fees for the vehicle and the Deceased’s own expenses, discussed below.

Registration fees for vehicle?

157.1.  As for the sum of $8,133 in Schedule 1.6, these were three payments of $2,711 each to HKSAR in 2015- 2016 for registration fees for a vehicle registered to Yung Mo. The defence was that the Deceased had agreed that these expenses related to the vehicle would be regarded as family expenses.

157.2.  As the Deceased had contributed to half the purchase price of the car parking space, and did use this vehicle, thereby indicating his intention that he would share in its enjoyment, I decline to find that Yung Mo had misappropriated this sum, and dismiss this claim.

What funds were used for the Deceased’s own expenses?

158.  I shall first deal with the largest sum being the expenses for the Phoenix Heights property. Although Yung Mo has included expenses used for this property as family expenses, it should more correctly be regarded as the Deceased’s own expenses, as that property belonged to him solely.

159.1.  It is common ground that in 2010-2011, there was a major renovation of the Phoenix Heights development (“development renovation”), to which the Deceased had to contribute as an owner. For this purpose, there were two cheques drawn on Jt a/c #1 in May 2010 and March 2011 in the total sum of $241,146.00.

159.2.  Further, the Phoenix Heights unit itself required substantial renovation and refurbishment expenses over the years. Yung Mo and Louis were involved in handling these matters for the Deceased, although Louis took a smaller role as he had his own work. Accordingly, I accept there would be minor or follow-up works which Louis was not aware of, and he would not be involved in tenants’ requests for new fittings etc.

159.3.  Louis attempted a rough and ready calculation in his message in the group app on 6 May 2018, arriving at a total of $628,000 (which included external wall repairs of $260,000, ie the Deceased’s contribution of $241,146 to the development renovation). However, this did not include some of the items listed in Yung Mo’s spreadsheets, including new fittings such as kitchen hood, ovens, washing machines, refrigerator, and renovation costs when new tenants moved in. The plaintiff has attempted to verify the costs by reference to suppliers and the tenants. She has also included some items which had not been included in the spreadsheets.

160.  Taking all the above into consideration, I find the Phoenix Heights expenses (including the contribution to the development renovation) to be $823,654, which should be deducted from the funds in so far as they are claimed. However, only some were incurred after the start date of the Schedules in the Amended Statement of Claim.

161.  As for the Deceased’s personal expenses, these would comprise taxes, food, the helper’s wages and expenses, his share of the management fees, rates and utilities bills, and transport (capital and recurring items are discussed in the section on OAA and HDA below). As the Deceased went to public hospitals, very low fees were charged.

162.  I find that a sum of $15,000 pm was intended by the Deceased to be used for his own expenses. This was the sum withdrawn from Jt a/c #1 from July 2013 to November 2013 (for which he received statements without making complaints to his children). Thereafter, any sums exceeding this sum were not authorised.

OAA and HAD

163.1.  Finally, as for the transfers of the OAA and HDA in Schedules 1.7 and 1.8, the sums are very modest. The total sum claimed may appear large, but it covers a period of nearly 21 years (January 1997 to December 2017).

163.2.  The OAA was only $705 pm in 2007-2008 (evidence for earlier periods is not available), and averaging $1,100 pm from 2009-2016. The HDA was $1,231.94 pm from July 2016 to $3,390 pm in December 2017 when the Deceased died.

164.  There is no suggestion that the Deceased was not well taken care of physically. I accept the evidence of Louis and Man Yim that due to the Deceased’s physique, Yung Mo had to help out the helper, eg when bathing the Deceased, in his later years.

165.  Of course, carrying out the task of looking after an elderly parent does not translate into a freedom to withdraw from his assets, but it is common sense that elderly infirm persons need capital items such as wheelchairs, walkers, and equipment for home use such as air filters and humidifiers, and recurring items such as diapers and supplements. Transport expenses to medical appointments, whether by taxi or private car, are inevitably incurred.

166.  Although Yung Mo did not keep a detailed account of the sums expended for the Deceased’s benefit, the list of items purchased for the Deceased’s benefit included an electric bed, wheelchair, walker, bath chair, heater, air filter, humidity balance, blood pressure sensor, foot massager etc. In light of the above, I do not find the claim of misappropriation proved and I would dismiss this claim.

Mesne Profits

167.  I have found that the 1^st defendant holds half of the beneficial interest in the Paragon property on trust for the Estate. Apart from a declaration to that effect, the plaintiff has sought mesne profits on the basis that Yung Mo had denied the Estate’s title, thereby constituting an ouster.

168.  First, it is well-established in law that “an express denial of the title and right to possession of fellow tenants, brought home to the latter openly and unequivocally” clearly amounts to an ouster: Biviano v Natoli (1998) 9 BPR 16,469 at 16,473. That is not affected by the judgment of the Court of Final Appeal in Cheung Lai Mui v Cheung Wai Ching & Ors (No.2) [2021] HKCFA 19, where the lower courts had found no ouster in fact, and the CFA proceeded on that basis, holding that absent ouster, a co-owner out of occupation had very limited remedies against his co-owner in occupation in relation to the land by virtue of unity of possession: §104.

169.  I find there was clearly an express denial of title in this case. On 5 April 2018, Yung Mo said in the group app at “5 b & c” that he was the 100% owner of the Paragon property and the car parking space. That was an open and unequivocal assertion made to the siblings (including the plaintiff executrix) denying the title of the Deceased.

170.1.  I find that ouster has been sufficiently pleaded at §19 of the Amended Statement of Claim where it is pleaded that “after the passing away of the Deceased, the Defendants have occupied the Paragon property. The 1^st Defendant expressly denied that the Estate is entitled to any interest in the Paragon Property, and failed/refused to rent it out or to pay any rent” (emphasis added). Although the word “ouster” does not explicitly appear, and although the second word “rent” would have been better expressed as “mesne profits”, it clearly pleads an express denial of title which, read in light of the entire pleading, amounts to a pleading of ouster. It would be noted that the relief claimed mesne profits, not rent.

170.2.  That the defendants understood the claim is shown in § 17 of the Amended Defence, where the denial of title in §19 of the Amended Statement of Claim is answered by the allegation “In respect of paragraphs 19 and 20, it is averred that the 1^st Defendant is the sole legal and beneficial owner of the Paragon Property and hence there is no need to pay any rent or mesne profits to the Estate” (emphasis added).

171.1.  As for the calculation of mesne profits claimed by a co-owner, this was discussed by the NSW Supreme Court in Biviano. It is of course correct that a co-owner is entitled to exercise possession over the whole of the property due to the concept of unity of possession. It is also obvious that in real life, it would be difficult to find a tenant who would be willing to share possession of a flat in such circumstances.

171.2.  The court cannot be so powerless as to deny the claimant any mesne profits in these circumstances. A co-owner would be entitled to apply for partition of a flat and on sale, to his share of the proceeds on the taking of an account: Biviano, 16,470 and it was held to be a correct principle that “as far as equity is concerned, an occupation fee will be exacted in at least two circumstances: first, in a partition suit (or related litigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee (see eg Pascoe v Swan (1859) 27 Beav 508; 54 ER 201; this was an example of equity following the law; ...”:16,473).

171.3.  In Biviano, the ousted co-owner proved the rental value based on there being no other person already in occupation. The court held it would be inequitable to order the whole sum “because an actual letting of the property where there is already a co-tenant in occupation would not attract a market rental based on full occupation. It may not even attract 50% of the market rental”. However, as the defendant did not seek to assert any lesser figure than 50%, the court considered it appropriate to apply that percentage. That was also the percentage applied in Pang Ka Leong v Cheung Mei Po [2019] HKDC 651. I consider it appropriate in the present case as well.

172.  The mesne profits sought by the plaintiff were set out in the Appendix to the plaintiff’s opening submissions dated 3 September 2025 (with minor amendments at closing, altering the figure of $110,996.02 to $104,156.35 and the figure of $140,668.09 to $141,301.73, resulting in a reduction in the total amount claimed). The figures came from comparable rental transactions from 2021 to 2025 in a large estate agent website (included in the trial bundles), and by extrapolating the median monthly rent in 2021 backwards, based on the Yearly Rental Indices of Private Domestic Property published by the Hong Kong Government (also included in the trial bundles).

173.  In the defendants’ opening submissions, the only response was that the claim “only arises if the plaintiff discharges the burden of demonstrating that the Purported Paragon Property Interest beneficially belonged to the Deceased, Ds will further address this relief in Ds’ Closing Submissions after the viva voce evidence has been given”.

174.  In the defendants’ closing, it was submitted as an alternative position that the plaintiff had not discharged the burden of calculating the quantum of mesne profits, and the plaintiff’s approach based on market rental value was inapplicable. It was submitted that in the absence of expert evidence on the market rental value of the Purported Paragon Property Share, the claim for mesne profits was unsupported by evidence and should be dismissed.

175.  However, market rental value need not be proved by expert evidence if the source of data is reliable: Patrick Cowley and Wong Wing Sze Tiffany (Joint and Several Trustees in Bankruptcy of the property of Lau Yu also known as Jaffe Lau) v Lau Sze and another [2024] HKCFI 1662. That proposition was referred to in the plaintiff’s opening submissions, and the defendants have not put forward any authorities to the contrary.

176.  Finally, in the defendants’ closing submissions, it was said that it was “unclear” how the monthly median rent for 2017-2019 was extrapolated and they reserved the right to make further submissions once the underlying calculations were clarified. However, that approach is not acceptable. The Appendix had been available from the time of the opening. The source data was provided in the trial bundles. The methodology was stated. There was no challenge to the above in the defendants’ opening. If any clarification was required, it should have been sought then, not at the closing. There was no order for a separate trial of liability and quantum of mesne profits.

177.  As for the claim for interest, there were no particular submissions and I would order the usual prime + 1% (Polyset Ltd v Panhandat Ltd FACV29/2000 §13).

178.  I would also make an order nisi that costs follow the event.

Order

179.  I would make the following orders:-

(1) A declaration that the 1^st defendant holds half of the beneficial interest in the Paragon property on trust for the plaintiff;

(2) Mesne profits assessed as per the Appendix to the plaintiff’s submissions dated 3 September 2025 as amended;

(3) An order that the 1^st defendant do pay to the plaintiff the sum of $1,022,189 set out in Schedule 1.1, and the transferred sums set out in Schedules 1.2, 1.4 and 1.5 of the Amended Statement of Claim except for:-

(a) the sum of $750,000 withdrawn on 29 August 2013 referred to in Schedule 1.4;

(b) the sum of $15,000 a month from November 2013 to the date of the Deceased’s death;

(c) sums incurred for the Phoenix Heights property being:-

$13,270 (item 8);

$15,000 (item 10);

$2,600 (item 14);

$5,000 (item 16) being items listed in Christine’s witness statement, 24 January 2022, §141; and that the 2^nd defendant pay to the plaintiff the transferred sums set out in Schedule 1.3 of the Amended Statement of Claim;

(4) Interest at prime +1%; and

(5) There be an order nisi that the defendants pay the plaintiff’s costs, to be taxed if not agreed.

180.  It only remains for me to thank all counsel for their assistance.