YEUNG TING WANG v. YEUNG WAI KAM also known as YEUNG WAI KAM CAROL

DCCJ 5397/2017

[2020] HKDC 975

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5397 OF 2017

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JUDGMENT

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1.  In this case, family members pooled their funds together to invest in stocks for a decade and a half since 2001. Regrettably, the cordiality ended and disputes arose.

2.  The plaintiff is the older brother and the defendant his younger sister.  He now claims against her a sum of HK$928,795, held in her bank accounts, said to be proceeds of investments belonging to the plaintiff and the others.

3.  In this trial, the plaintiff, the eldest sister Ms Yeung Yuen Yu (“the Eldest Sister”), the youngest sister Ms Yeung Wai Fong Joyce (“Joyce”) and Ms Ada Kwok How Lan (“Ada”) gave evidence for the plaintiff’s case, while the defendant was the only witness for her own case.

Background

4.  It began in 2001 when initially only the plaintiff and the defendant invested in stocks together.  In relation to this early period, the defendant disputes that the plaintiff was experienced in investing stocks (as he says) or that she had agreed not to intermix her own personal funds in the Investment Accounts (defined below).  Nothing really turns on these matters.  It is however not disputed that at the time the defendant was completely inexperienced in investing in stocks and it was the plaintiff who made all the investment decisions and carried them out.

5.  It is common ground that the defendant opened an integrated account with the Bank of China (“the Integrated Account”) in 2001, which consisted of, among others, a Hong Kong dollars savings account no 012-558-1-001699-8 (“the Savings Account”) and a securities account no 012-558-63-01827-3 (“the Securities Account”) (together “the Investment Accounts”), and that at all material times throughout, the parties’ joint investments in stocks, and the further investments by others since 2005, were all conducted exclusively through the Securities Account and the Savings Account. In other words, all the stocks were purchased and sold through the Securities Account, while the Savings Account had been designated as the settlement account such that the proceeds of sale of, and the dividends earned by, the stocks held in the Securities Account were all credited to the Savings Account; and conversely, the price for the purchase of the stocks held in the Securities Account were all paid by debiting the Savings Account.

6.  Since the time the Integrated Account was opened in 2001 until mid-2016, the plaintiff had been given the log-in password by the defendant to continuously operate the Investment Accounts online.  It is common ground that at all material times until mid-2016, all transactions in the Investment Accounts in relation to the purchase and sale of stocks were made online by the plaintiff.  The plaintiff however was not given the ATM card for the Integrated Account, he therefore could not operate the Investment Accounts through ATM machines.  He also could not operate the Investment Accounts through the counter.

7.  As the account holder, the defendant all along could operate the Investment Accounts online, through the counter, and through ATM machines.

8.  According to the Eldest Sister, whose evidence is not disputed and I accept, the plaintiff and the defendant in family gatherings often talked about their gains from their joint investment in stocks; and that it was the Eldest Sister who suggested to other family members to pool their money together to be invested by the plaintiff.

9.  It is the plaintiff’s case and admitted by the defendant[1] that in about 2005, the parties’ mother Madam Chan (“Mother”) contributed HK$100,000, their 2^nd sister Ms Yeung Yuen Mui (“the 2^nd Sister”) contributed HK$50,000 and Joyce contributed HK$50,000 into the then joint investment of the plaintiff and the defendant sitting in the Investment Accounts, to be operated by the plaintiff as a single fund investing in stocks (“the Family Investment”).

10.  It is the plaintiff’s case that it was agreed between the participants of the Family Investment, and that it was the actual arrangement in all these years, that the participants would be entitled to such share in the principal, dividends and profits in the Family Investment in proportion to their respective contribution in capital therein (“the Entitlement Calculation”).  The defendant “strenuously denied” this in her Defence but pleaded no averment as to what she says the agreement or arrangement otherwise was[2].

11.  It is the plaintiff’s case that save Mother and 2^nd Sister, the other participants (namely, himself, the defendant and Joyce) have on occasions further paid in or withdrawn some of their respective capital contributions.  Again, the defendant disputes these without putting forth any factual averment.  These will be discussed below when I deal with the defendant’s disputes over specific transactions.

12.  It is the plaintiff’s case, and contested by the defendant, that by June 2006, Ada had also paid a total of HK$117,500 into the Savings Account for the plaintiff to invest on her behalf (“the Ada Investment”).  It is the plaintiff’s case that while the stocks belonging to Ada were also held in the Securities Account and her cash in the Savings Account, the Ada Investment was in a separate pool and has never formed part of the Family Investment. 

13.  It is the plaintiff’s case that he has been keeping a contemporaneous record of all the transactions and the calculation of each party’s position in the form of an excel sheet (“the Excel Sheet”), the accuracy of which the defendant challenges.  As the Excel Sheet is the center piece of the plaintiff’s evidence, I will describe and deal with it in a separate section below.

14.  It is undisputed that under the plaintiff’s operation, the Family Investment and the Ada Investment generally yielded good returns in all these years, and unsurprisingly, more so in some years than others.  While the defendant accepts that cash dividends were paid to the participants of the Family Investment on a number of occasions and that she had received her share, she disputes the plaintiff’s case as to the details of these dividend payments, again without stating what her case over these matters is.

15.  It is also undisputed that the defendant has intermixed her own money with those of the Family Investment and the Ada Investment sitting in the Savings Account by making various deposits of her personal funds into, and withdrawals of the same from, the Savings Account.

16.  Since 2015 and unfortunately, the parties’ relationship has been deteriorating.  The upshot was that in mid-2016 and without informing the plaintiff, the defendant changed the password for online access to the Integrated Account, and thereby and since then denied the plaintiff online access to the Investment Accounts, and therefore access to the Family Investment and the Ada Investment.

17.  The plaintiff’s requests for the password to operate the Investment Accounts then after were all refused by the defendant.

18.  In March 2017, a WhatsApp group was set up, initially with the plaintiff, the defendant, the 2^nd Sister and Joyce as members, and later joined by the Elder Sister as a mediator, to discuss the liquidation and distribution of the Family Investment and the return of the Ada Investment.  The matter however could not be settled amicably.

19.  It is not disputed that sometime in early 2017, the defendant, without discussing with other participants or their agreement, withdrew from the Savings Account HK$50,000 to repay to the 2^nd Sister her share of the capital in the Family Investment.  According to the defendant, she did so as she was in good terms with the 2^nd Sister.  This incident will become significant in relation to the new allegation advanced by the defendant only at trial that all the jointly invested stocks/money had been returned in early 2008.

20.  Amidst all these and on 15 and 16 June 2017, the defendant acceded to the requests by the participants and sold all the stocks which were said by the plaintiff to be stocks belonging to the Family Investment and the Ada Investment.  The proceeds of sale were deposited into the Savings Account.  It is convenient for me to list here the stocks then sold:-

Date	Stock Code	Price	Quantity	Total Price	Total Price       Netting       Expenses
15 June 2017	347	$5.18	14,000	$72,520	$72,274.61
15 June 2017	939	$6.41	29,000	$185,890	$185,262.19
15 June 2017	3988	$3.80	32,000	$121,600	$121,188.94
15 June 2017	6886	$14.68	3,200	$46,976	$46,817.38
16 June 2017	1398	$5.18	71,000	$367,780	$367,308.04
16 June 2017	6886	$14.54	3,800	$55,252	$55,064.65
Total:				$850,018	$847,915.81

21.  After the sale, the defendant however refused to pay over what the plaintiff said were his and the others’ shares of the sale proceeds and of such balance in the Savings Account belonging to the Family Investment and the Ada Investment.

22.  By his personal letter dated 10 July 2017 followed by his solicitors’ 5-page letter dated 22 September 2017 setting out his claim in some detail, the plaintiff demanded such repayment in the sum now claimed herein.  His demand was refused without a response from the defendant.

23.  On 1 December 2017, Mother and Joyce assigned their respective shares in the Family Investment, and Ada assigned her Ada Investment, to the plaintiff.

24.  In late December 2017, the plaintiff commenced this action.

Issues regarding liability

25.  Evidently, the plaintiff’s claim is for the return of the Family Investment, net the defendant’s own share, and the return of the Ada Investment.  However, his main pleaded case in the Statement of Claim is that the defendant was and still is a trustee under an express trust, and that the fiduciary duties thereby owed were breached for which equitable damages were claimed.  This provoked strong reaction on the part of the defendant and much was said in the Defence in refutation of the existence of such express trust.

26.  At trial, Ms Cheung counsel for the plaintiff (who did not settle the Statement of Claim), very sensibly in my view, confirmed that the plaintiff was content to ground his claim on the alternative basis of resulting trust rather than on express trust and that the plaintiff was not seeking equitable damages.

27.  The principles of resulting trust are trite and well known.  They have been stated thus:-

(a)     “Where A makes a voluntary payment to B … there is a presumption that A did not intend to make a gift to B: the money or property is held on trust for A (if he is the sole provider of the money) or in case of a joint purchase by A and B in shares proportionate to their contributions.  It is important to stress that this is only a presumption, which presumption is easily rebutted either by the counter-presumption of advancement or by direct evidence of A’s intention to make an outright transfer…” per Lord Browne-Wilkinson 708A-C, Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1996] AC 669

(b)     “… where A pays money to B for no consideration, B is immediately presumed to hold the money on resulting trust for A.” Snell’s Equity (33^rd ed.) §25-015

28.  These principles were not disputed by Mr Li and Mr Chan, counsel for the defendant.

29.  The defendant also accepted at trial that if it is proved that the Family Investment or the Ada Investment are held by the defendant, she is liable as a trustee under resulting trust to return the same net her own share.  This seems to me to be an inescapable position as the defendant has not alleged any gift or other outright transfer.

30.  Save requiring the plaintiff to strict proof, the only defence on liability now raised at trial (though not in pleadings) is that all the money and stocks not belonging to the defendant had been returned to the plaintiff and other participants by about February 2008.

31.  For completeness, I should mention that the following defence were pleaded but were expressly abandoned at trial, namely:-

(a)     That the alleged agreement between the plaintiff, the defendant and other participants of the investment was illegal and unenforceable as it contravenes The Securities and Futures Ordinance Cap 571 (pleaded in paragraphs 11 and 19 of the Defence);

(b)     The plaintiff, the defendant and other family members, by virtue of their close relationship, had never intended to form any legally enforceable agreement (pleaded in paragraph 18 of the Defence); and

(c)     The assignment by Mother to the plaintiff of her share was invalid (pleaded in paragraph 28 of the Defence).

The Excel Sheet

32.  A printout of the Excel Sheet consisting of 4 pages in B4 size has been annexed to the plaintiff’s witness statement dated 20 December 2018[3].  The Excel Sheet consists of 18 columns and 362 rows recording 351 entries, covering the period from 19 February 2005 to 3 July 2017.

33.  For ease of referring to specific transactions/entries, I directed the plaintiff to prepare for trial a copy of the Excel Sheet adding references and consecutive numbering to each row[4].  Herein below, a specific transaction will be identified by the row number in which that transaction is recorded in the Excel Sheet.

34.  I will first describe the Excel Sheet in some detail before I refer to the plaintiff’s evidence regarding it.  The explanations provided below are given by the plaintiff in evidence.

35.  The 1^st to 9^th columns of the Excel Sheet recorded the details of the transactions in chronological order with the date of each of the transaction given.

(a)     The 1^st column of the Excel Sheet recorded information that are colour-coded with orange, light blue and white[5].

(i)     The colour orange denoted “交易 for 共同” - meaning transactions for the Family Investment and the Ada Investment, and the information consists of the stock code of the stock of that transaction, or “Bank” where there were bank interests received or bank charges paid, or “Fund Dividend” where cash dividends were paid to participants of the Family Investment.

(ii)    The colour light blue denoted “交易 for Carol” (the defendant is also known as Carol) - consisting references like “Carol In”, “Carol Out” to mark transactions made by/for the defendant, or “[Stock Code] (Carol)” denoting the transactions of certain stocks that were the defendant’s personal stocks rather than those of the Family Investment or the Ada Investment, or in several instances “Carol + Tom” denoting those transactions as personal to the plaintiff and the defendant together rather than being part of the Family Investment or the Ada Investment.

(iii)   The colour white denoted “Tom In (ada)” – marking the 4 instances when payments of money into the Savings Account were made by Tom on behalf of Ada (see paragraph 70 below).

(b)     The 1^st column also set out the stock code where that transaction concerned a stock.

(c)     The 2^nd to 8^th columns recorded details of transactions in the Savings Account under one main heading “查詢賬戶交易紀錄”“賬戶號碼: 港元儲蓄賬戶 012-558-1-001699-8” contained in 2 cells.  The headings of the 2^nd to 8^th columns are:-

(i)     The 2^nd column “交易日期”

(ii)    The 3^rd column “交易種類” - “現金”, “無存摺轉賬”, “轉賬”, “利息” and such

(iii)    The 4^th column “貨幣” - all in “HKD”

(iv)    The 5^th column “支出”

(v)     The 6^th column “存入”

(vi)    The 7^th column “結餘／結欠” – it set out the remaining balance in the Savings Account after the transaction.

(vii)   The 8^th column “摘要” – it contained information regarding the nature of the transaction such as whether the sum was dividends earned from the stocks : “DIV.[stock code]”, whether it was for “EIPO”, “IPO Refund”, “SEC REBATE”, “SELL [stock code]”, “SECURITIES TRANSACTION”, “SEC CUSTODY FEE”, “INT. POSTING” (interest from bank) and such.

(d)     The 9^th column is headed “Profit & Loss”.  This column is by and large empty save recording the amounts gained or lost in respect of but a few transactions.

36.  Notably, all the figures given in 5^th to 7^th columns - “支出”, “存入” and “結餘／結欠” – were recorded up to the exact cent.

37.  According to the plaintiff, the 10^th to 16^th columns recorded the participants’ personal positions as calculated and recorded by him after the transaction:-

(a)     The 10^th and 11^th columns together were under the main heading “Carol” with the 10^th column headed “Carol” and the 11^th column “Taxi fee”.

(b)     The 12^th and 13^th columns together were under the main heading “Tom” (the plaintiff is also known as Tom) with the 12^th column headed “Tom” and the 13^th column “Ada”.

(c)     The 14^th, 15^th and 16^th columns were respectively headed “Mother”, “S.sister” (the 2^nd Sister) and “Joyce”.

(d)     In oral evidence, the plaintiff explained that the 10^th, 12^th, 14^th to 16^th columns respectively headed “Carol”, “Tom”, “Mother”, “S.sister” and “Joyce” – the participants of the Family Investment - recorded the cumulative balances of their respective capital contributions for the purpose of the Entitlement Calculation.

(e)     The 11^th column recorded the amount of taxi rentals belonging to the defendant that had been paid into the Savings Account.

(f)     When any of the participants of the Family Investment put money in, his/her amount of total capital contribution increased accordingly, and vice versa (as calculated and recorded respectively in 10^th, 12^th, 14^th to 16^th columns). The amounts of their capital contribution as recorded in these columns would not take into account, and therefore would not be changed, even though money in the Savings Account belonging to the Family Investment was used to purchase certain stocks or when proceeds from the sale of stocks or share dividends received were deposited into the Savings Account.

(g)     On the other hand, the 13^th column headed “Ada”, however, recorded the cash position of the Ada Investment – it increased by the amount of money put in, share dividends received from stocks in the Ada Investment or proceeds of sale of the stocks in the Ada Investment, and decreased by the amount spent to purchase stocks in the Ada Investment.

38.  Thus, the Excel Sheet is a complete record of all the transactions and the positions of the participants of Family Investment and the position of the Ada Investment from 19 February 2005 up to 3 July 2017.

39.  It is the plaintiff’s evidence regarding the Excel Sheet, which I accept for the reasons given later on, that:-

(a)     Prior to 19 February 2005, he used a similar but simpler excel sheet to record the transactions in the Savings Account.  He no longer retained a copy of that excel sheet as he had changed computers several times and that excel sheet was lost in the process.

(b)     After 19 February 2005, he used the Excel Sheet in its present form to record contemporaneously all the transactions and to work out and record parties’ respective positions, namely the respective amount of capital contributions of the participants of the Family Investment and the amount of cash in the Ada Investment kept in the Savings Account.

(c)     Around the time Mother, the 2^nd Sister and Joyce contributed their money together with the plaintiff’s and the defendant’s to form the Family Investment, it was agreed between the plaintiff and the defendant that the total worth of their respective shares in the stocks in the Securities Account and in the balance in the Savings Account were respectively HK$100,000 and HK$360,000.  Thus, these amounts were recorded in the Excel Sheet as the opening balances of their respective capital contributions while that of Mother, the 2^nd Sister and Joyce were HK$100,000, HK$50,000 and HK$50,000 respectively, as on 25 April 2005[6].

(d)     Whenever there were new transactions, it was his practice to copy the transaction information from the Savings Account records displayed online and paste them onto the Excel Sheet at the same time the transaction was made.

(e)     As there were deposits either by cash, by cheques or by transfer and also withdrawals made by the defendant which were her personal transactions and not part of the Family Investment, he would nevertheless record details of those transactions in the Excel Sheet but would also note those down in the 1^st column by the use of the references “Carol In” “Carol Out”[7].  Generally, he would treat deposits made by the defendant as increase in her capital contribution for the purpose of the Entitlement Calculation (thereby enlarging her share in the Family Investment relative to those of the others), and vice versa.  Later since February 2007, there were regular deposits of money earned by the defendant from renting a taxi, the plaintiff recorded those deposits in a separate column (the 11^th column, under the heading “Taxi Fee”) as he was not sure whether they were meant to be capital contributions to the Family Investment or not.

(f)     The Excel Sheet was used for his personal record and reference, and prior to the present dispute, there was no need, or request from the participants, to show them the Excel Sheet.  The Excel Sheet therefore has not been shown to them prior to the present dispute.

40.  It is common ground that screen captures of the entire Excel Sheet had on 18 June 2017 been forwarded to the defendant and other siblings by WhatsApp by the Elder Sister, who received them from the plaintiff.  That was over 6 months prior to the commencement of this action.  Furthermore, and as mentioned, the Excel Sheet was attached to the plaintiff’s witness statement dated 20 December 2018.  Moreover, a soft copy of the Excel Sheet was also provided to the defendant during the pre-trial review upon her request.  In all these times since June 2017, particularly with the provision of the soft copy later on, the defendant has been in a position to do all kinds of computation, tallying and analysis of all the figures and information contained therein, for the purpose of preparing her case.

41.  Despite having been given the Excel Sheet as aforesaid and despite her position all along of not accepting the veracity and accuracy of the contents of the Excel Sheet, the defendant has not filed any evidence, whether in the form of a corresponding table/sheet or otherwise setting out her version in relation to any specific transaction, save raised the following issues in various general manners.

Issues raised by the defendant

42.  The issues raised by the defendant, and to be adjudicated, are:-

(a)     That by around February 2008, the Family Investment net of the defendant’s share, and the Ada Investment, had been completely withdrawn by the plaintiff.

(b)     The defendant disputes that Ada had made the Ada Investment at all, as the plaintiff alleges.  She also particularly disputes that the cash of the Ada Investment held in the Savings Account increased on 5 January 2007 by HK$51,865, as recorded in row 95 of the Excel Sheet.  The defendant also disputes that the Ada Investment now amounts to HK$339,285, as the plaintiff claims, which is much more than the defendant’s share in the Family Investment, as alleged by the plaintiff, in the sum of HK$92,988.

(c)     The defendant disputes that the following deposits had been made by the plaintiff into the Family Investment[8]:-

Row(s) in the        Excel Sheet	Date	HK$
42-44	13 December 2005	$20,000
48-50	10 January 2006	$56,000
58	3 April 2006	$14,000
126	18 June 2007	$10,000

(d)     The defendant alleges that she had deposited HK$100,000 in about late 2005 for the purpose of purchasing 30,000 shares in Bank of China (Hong Kong) (share code 3988)[9], which sum was not recorded in the Excel Sheet and therefore has not been counted as her capital contribution.

(e)     The defendant disputes that HK$54,315, being allegedly family expenses paid by the plaintiff between 2004 to 2007[10], should be counted as the plaintiff’s contribution to the Family Investment.

Certain bank records not available

43.  The resolution of the above disputes would have been made easier had all the bank statements of the Investment Accounts been available, including those of the Securities Account which would have set out the details of the stocks held therein on certain particular dates.  However, the parties were only able to produce:-

(a)     A bank book of the Savings Account containing records of transactions made between 9 November 2007 to 10 August 2017 (“the Bank Book”);

(b)     The defendant’s Consolidated Monthly Bank Statements of her said integrated account in BOC covering January 2011 to September 2017; and

(c)     The Securities Account transaction emails covering the period between 8 August 2011 to 22 June 2018.

44.  I will call the period covered by the Bank Book “the Bank Book Period” and the period from 2001 to 9 November 2007 “the Pre-Bank Book Period”.  As can be seen, most of the events pertaining to the above disputes occurred during the Pre-Bank Book Period.

The credibility and reliability of the parties as witnesses; the veracity and accuracy of the contents of the Excel Sheet; the Entitlement Calculation

45.  At trial, the plaintiff gave evidence for two full days.  His evidence predominantly consisted of giving the details pertaining to various facets of the information recorded in the Excel Sheet, explaining numerous transactions recorded and their circumstances, verifying many figures and calculations, and being persistently cross-examined thereon. In the whole process he did not have or need a single sheet of notes to assist him, but a ruler (to help reading the Excel Sheet) and a calculator.  Nevertheless, he was able to give all the answers and explanations, and tallying and verifying all the figures, spontaneously, directly, accurately and with appropriate details (where asked for), whether the questions were from counsel or the bench.  He was not at all shaken in cross-examination over any matter. In my view, it is most highly improbable that, if any of the transactions or figures were made up (as the defendant often suggests), a witness would be able to give evidence, as the plaintiff did, in such detail and satisfactory manner for such a sustained period.  The plaintiff was also very forthright in giving answers that are not favourable to his claim (in relation to the HK$54,315 mentioned in paragraph 42(e) above).  This court finds he has been trying his best to give evidence according to the truth and as best he could remember.

46.  In all, this court is very favourably impressed by the plaintiff as a witness and with his testimony.  I also take note of the Elder Sister’s unequivocal testimony that Mother and the siblings in all these years trusted the plaintiff over money matters.  Having heard from and observed the Elder Sister, I find her fair and unbiased in this dispute between the plaintiff and the defendant and I accept her said testimony.

47.  The following matter also illustrates that the plaintiff has not tried to take advantage of the defendant even though there were no bank records in the Pre-Bank Book Period.  The defendant’s evidence was that taxi rentals deposited into the Savings Account totaled to HK$92,000[11]. While according to the Excel Sheet, there were recorded 14 deposits of the taxi rentals, and the total sum was HK$99,213[12], which was HK$7,213 more than what the defendant said.  Notably, 10 out of the 14 recorded deposits occurred in the Pre-bank Book Period.

48.  By reason of all these, I have no hesitation in finding all the plaintiff’s evidence credible and reliable.  I will prefer his evidence over that of the defendant’s whenever they conflict.

49.  On the contrary, I am not at all impressed by the defendant as a witness and with her evidence.

50.  She has demonstrated clearly that her memory and recollections of the events and the transactions are at best blurry and hazy. In evidence when asked about specific transactions, her answers were for most of the time “does not remember” or “unable to remember” (唔記得); this was particularly so when she was asked about transactions that were unfavourable to her interest, such as instances when she had withdrawn money from the Savings Account or when she was paid quite handsome cash dividends from the Family Investment.  I find it incredible that she appeared totally unable to give even a ball-park figure as to how much total cash dividends were paid or as to the dividends she herself had received over the years, bearing in mind that (as will be seen below) the majority of the cash used for paying these dividends were indisputably withdrawn by the defendant herself. Generally, she was always hesitant, and many times paused for a long while before answering.  Her answers were often argumentative without providing, whether she was unable to or refusing to, the specific factual matters or bases.  I do not find the defendant’s evidence at all credible or reliable.

51.  I deal next with the veracity and accuracy of the Excel Sheet.

52.  To begin with, it is accepted by the defendant (as it is indisputable) that insofar as the information and figures recorded in 3^rd, 5^th, 6^th and 7^th column - - “交易種類” ,“支出”, “存入” and “結餘／結欠” – of the Excel Sheet in the Bank Book Period, namely Rows 152 to 355, they are completely accurate and matched those as recorded in the Bank Book.  This is significant for the figures recorded in the Excel Sheet for the Pre-Bank Book Period.  That is so as the cumulative balance in the 7^th column in the last row in the Pre-Bank Book Period, namely Row 151 – balance of $40,638.75 on 29 October 2007 – had to be carried forward to exactly matched the transaction and the balance in Row 152, the first entry in the Bank Book Period, namely, transfer deposit of taxi rental on 9 November 2007 in the sum of HK$6,396, to arrive at the cumulative balance of HK$47,034.75 on that day.  Moreover, the balance of HK$40,638.75 on 29 October 2007 was a cumulative balance, such that it has to match and be correct having taken into account the earlier 147 transactions hitherto recorded exact to the number of cents up to 19 February 2005.

53.  Having had the ample opportunity to study and analyze the Excel Sheet and after the persistent cross-examination, the defendant was only able to make 2 specific complaints about the Excel Sheet, in gist, that:-

(a)     “it is wholly inappropriate to characterise the Excel Table as “contemporaneous record” ”[13] and that “the Capital Columns [the 9^th to 18^th columns], … , is not strictly speaking a “record” at all”[14] ; and

(b)     “It was discovered that some balances were not typed text records but were figures reversely calculated (as opposed to summing up chronologically) by a formula from the more recent figures (rows 67-68 of the Excel Table) … it is cogent evidence to show that P actually made ex post facto attempts to alter the figures in the Transaction Column”[15].

54.  With respect, the first complaint is clearly a matter of pure semantics and is of no substance or significance.

55.  So far as can be understood by this court, the second complaint relates to how the balance in Row 68 – HK$277,595.24 – was calculated out.  It is said by Mr Li that the soft copy of the Excel Sheet shows that the said balance was not calculated out by an embedded formula of summing or subtracting the last balance in Row 67 (HK$247,595.24) with the transaction figure (HK$30,000) in Row 68, but was calculated out by a different way.

56.  Mr Li confirmed with the court in closing submissions that the above was the only instance of such in the entire Excel Sheet the defendant can find.  It was not otherwise suggested that the figure was wrong.  With respect, it is such a tenuous matter and it hardly supports the very sweeping and assertive complaint now made by the defendant.  In my view, such a tenuous matter does not at all affect the reliability or accuracy of the Excel Sheet.  I would simply reject the complaint as totally without substance.

57.  In the result I find the information contained in the Excel Sheet generally veracious, accurate and credible, subject only to my findings in relation to one of the entry discussed below.

58.  For completeness, I should mention that during trial, there was a criticism made by the defendant that there were “versions” of the Excel Sheet.  Such criticism turned out to be completely without substance and does not affect at all the veracity and accuracy of the Excel Sheet.  It was clarified by plaintiff in evidence as follows, which I accept:-

(a)     The so-called “first version” by the defendant was in fact an extract of the part of the Excel Sheet containing transactions related to the defendant, sent to her in late May 2017 per her request.

(b)     The so-called “second version” was sent in June 2017 after the defendant has sold the shares as mentioned in paragraph 20 above, and to record the same.  It also reflected the re-calculation of the respective final entitlements of the participants of the Family Investment to reflect a dispute raised by the defendant.  The defendant then alleged that the total number of 20,000 shares of 3988 sold on 8 November 2010 (Row 225) and 5 February 2013 (Row 279), which were sold at very favourable and high prices, were sold from her personal portfolio of shares and not from that of the Family Investment.  The plaintiff finally decided to compromise the dispute in favour of the defendant regardless of merits of her such allegation[16].

(c)     As requested by the 2^nd Sister, the so-called “third version” set out the amount of each participant’s share of the cash dividends.  It is not disputed that such amounts set out by the plaintiff were consistent with those remembered by the 2^nd Sister who did not take further issue with them.

(d)     The so-called “fourth version” made alterations to reflect (i) the fact that the defendant had withdrawn in early 2017 HK$50,000 from the Savings Account to repay the 2^nd Sister her contribution, even though it was paid without the plaintiff’s and other participants’ knowledge or agreement, and (ii) the defendant’s request that the total taxi rental income should not be counted as part of her contribution to the capital (so that it would not sustain the loss due to more recent decline of the prices of the stocks still remaining in the Family Investment; and even though cash dividends had hitherto been paid to the defendant at proportions calculated with those taxi rental incomes included as part of the defendant’s capital contribution, giving her a larger share in the dividends).

59.  On the plaintiff’s case regarding the Entitlement Calculation, while maintaining her refusal to accept it, the defendant does not at all proffer any evidence against it.  I accept the plaintiff’s evidence thereon and find that the Entitlement Calculation was agreed to by the participants in the Family Investment and it has been the arrangement throughout regarding the calculation of the cash dividends paid.

Had the Family Investment, net of the defendant’s share, and the Ada Investment been completely withdrawn by the plaintiff from the Investment Accounts by February 2008?

60.  This issue was only raised in the middle of trial.  It was not raised in the Defence.  That notwithstanding, the plaintiff, through Ms Cheung, indicated that he was not taking a pleading point.

61.  I would also note that this issue was not raised in the WhatsApp discussions between the siblings.  Rather, there the siblings discussed with the defendant about returning the investment to Mother first regardless of the dispute between the siblings.  Moreover, it is the defendant’s own evidence that in early 2017 she had returned HK$50,000 to the 2^nd Sister as repayment of her contribution to the Family Investment. 

62.  If it were true as she alleged that all the Family Investment had been returned in 2008, one would expect the defendant would not only raise it in the WhatsApp discussions, but would voice it out loudly and specifically, even with some outrage; further, there would have been no reason for the defendant to return the HK$50,000 to the 2^nd Sister.

63.  In any event, the matters now put forth by the defendant in support of her allegation are:-

(a)     As shown in the Excel Sheet Row 166, the balance in the Savings Account on 29 January 2008 was only HK$2,706.57.

(b)     Her allegation that the plaintiff was “borrowing” the Investment Accounts for purchases of stocks, which he would quickly sell and withdraw the proceeds therefrom.

(c)     Her allegation that the plaintiff had been making withdrawals from the Savings Account.

(d)     Her allegation that there were few transactions after February 2008.

64.  The allegations set out in sub-paragraphs (b) to (d) above only need to be stated to be dismissed, thus:- 

(a)     Sub-paragraph (b) - The defendant’s such allegation is against the totality of the evidence.  Clearly and otherwise not seriously disputed is that the Investment Accounts were used for the Family Investment in the manner set out in this judgment and not this “borrowing” in the manner she alleges.

(b)     Sub-paragraph (c) -  It is but a vague assertion without substance.  The defendant never alluded to any specific withdrawals to show that all the Family Investment (save her share) or the Ada Investment was completely withdrawn.

(c)     As can be seen from the Excel Sheet and the number of different stocks that were sold on 15 and 16 June 2017 (see paragraph 20 above), there were further buying and selling of stocks after February 2008, albeit less frequent.  In this regard, I accept the plaintiff’s explanation for it that the stock market was in recession in 2007 and 2008 due partly to the subprime mortgage crisis.

65.  The defendant only relies on the lack of funds in the Savings Account, but completely refuses to acknowledge that the Family Investment and the Ada Investment could have been held in the form of stocks in the Securities Account.  I find her such stance completely unreasonable.

66.  The following rough tallies show that substantial value of stocks were still held in the Securities Account by February 2008 which was much more than the total amount of money the defendant had herself contributed:-

(a)     In Table B attached to the plaintiff’s final submissions, in which all the references were given, Ms Cheung helpfully calculated out the number of shares in each of the following stocks held in the Securities Account as on 29 January 2008.  She did so by taking the number of shares in the stocks still retained in the Securities Account as reported in the monthly statement dated 30 June 2017[17], then added back the number of shares of that stock sold, and subtracted the number of that stock bought, from 29 June 2017 to 30 January 2008.  I accept her such calculations and the results set out in Table B. There, it is shown that in the Securities Account as on 29 January 2008, there should be held the number of shares of the stocks as set out in columns 1 and 2 of the table below.  Just making it more illustrative, I would add in the price per share of these stocks as on 29 January 2008, which are a matter of public record.  The total value of these stocks as on that day can be calculated out thereby. 

Stock code	Number of Shares	Price per share in HKD as on 29 Jan 2008	Total value in HKD
1398	73,151	$4.94	$361,731
3988	76,002	$3.279	$249,210
902	10,000	$6.50	$65,000
939	More than 34,241 (if 42,541)	$5.82	More than $199,282         ($247,588)
998	1,000	$4.58	$4,580
410	500	$5.78	$2,890
3808	500	$8.00	$4,000
Total:			$886,693         ($934,999)

(b)     Ms Cheung could not give in Table B a more definite number in relation to stock code 939 as it was only recorded in Row 226 of the Excel Sheet a sale of the stock on 8 November 2010 earning proceeds of HK$65,158.07, and the number of shares were not there recorded.  However, applying the average per share price of HK$7.848 on that date as obtained from public records online, it can be surmised that about 8,300 shares of 939 was sold that day.  Adding this figure back into the calculation, the result is that as on 29 January 2008, about 42,541 shares of 939 was held in the Securities Account.  That would increase the total value of all these stocks to HK$934,999.

(c)     According to the Table submitted by the defendant entitled “Cash-in into and Cash-out from the System by D as per P1”[18], the defendant calculated, assuming the defendant won all the issues in relation to all the disputed transactions and therefore taking the defendant’s position at the highest point possible, her “Net cash-in (as on 29/01/2008)” was HK$452,850.  (In view of the conclusions reached below in relation to the disputed transactions, the defendant’s “net cash-in” should be reduced from her best case scenario of HK$452,850 by at least HK$200,000.)

67.  Therefore, even assuming the defendant’s very best case scenario, and compared that with the value of the stocks retained in the Securities Account as calculated out above, it can be shown that there were at the very least $482,000 worth of shares held in the Securities Account as on 29 January 2008 that could not be accounted for by the defendant’s own resources.  They must have been part of the Family Investment and the Ada Investment.

68.  In the premises, the defendant’s such allegation is totally devoid of merits and must be dismissed.

The Ada Investment

69.  Ada gave the following evidence regarding her investment.  She knew the plaintiff for a very long time since primary school as they were classmates.  They knew each other well and have been in very friendly terms.  In 2005, she agreed to entrust money to the plaintiff to invest on stocks on her behalf.  She initially gave him several tens of thousand and then later on several occasions either gave him cash or transferred further sums to him to invest.  She frankly said that she had forgotten the exact amount she had altogether given the plaintiff.  I accept her evidence.

70.  The plaintiff gave evidence, and as recorded in the Excel Sheet, that on 4 occasions, Ada had given her the following sums to invest, which he then deposited into the Savings Account.  These total to HK$117,500, as follows:-

(a)     HK$57,000 deposited on 19 February 2005 (Row 5 in the Excel Sheet);

(b)     HK$17,500 deposited on 6 April 2005 (Row 8 in the Excel Sheet);

(c)     HK$13,000 deposited on 2 July 2005 (Row 24 in the Excel Sheet); and

(d)     HK$30,000 deposited on 1 June 2006 (Row 68 in the Excel Sheet).

71.  The defendant does not accept the Ada Investment.  Her case is that she never knew or was told that there was such an arrangement with Ada.  In this regard, I accept Ms Cheung’s submission that it can be seen from the following WhatsApp conversations by the defendant that she knew Ada had put money in the Savings Account and that Ada still had money there:-

“…仲有仲要得到細妹同埋各人同意，仲有呀而家細妹提緊分dividend 嗰度點計呀，我哋真係冇分咁多㗎，如果你淨係卑番個本佢，佢朋友嗰度呀你自己睇下佢朋友擺咗八萬蚊落嚟可以攞330000幾走，你自己睇下佢賺嘅 percentage 比我哋多咗咁多，咁都唔 reasonable 啦，你自己諗下，你問下佢何來可以賺咁多，我哋反而一倍都冇，你問下佢，我真係唔明呀，究竟人哋啲錢點樣可以賺咁多，我哋就賺咁少呀”[19]

“…仲有呀你講呀，佢嗰個朋友，你自己諗下啦，得嗰8萬幾蚊本，攞返330000幾，差唔多三十四萬，你覺得公度咩？…”[20]

“仲有呀家姐佢個朋友嗰單嘢你永遠都唔講嘅，佢朋友攞咗8萬幾落嚟，點解可以攞33萬9千幾走，佢啲利潤點解咁高嘅，反而我哋個本咁大，利潤都冇佢咁高，究竟內裏面邊個貪心呢？叫佢列出嚟啦，話俾我哋聽點解佢攞嘅利潤咁高呢？呢筆你哋又完全唔出聲嘅。”[21]

72.  It is abundantly clear from the above conversations that the gravamen of the defendant’s complaint was that it was “unreasonable” and “unfair” that Ada would be entitled to that much as compared to the defendant’s entitlement bearing in mind the relatively less money that was put in by Ada.  The dispute raised was not that Ada had not put in the money. Moreover, Joyce gave evidence that the plaintiff had very early on informed them about Ada entrusting her money to him to invest together.  I find Joyce a reliable and honest witness and I accept her such evidence.  I find the defendant knew that Ada had put in money in the Savings Account for the plaintiff to invest on her behalf.

73.  As have mentioned, the Excel Sheet recorded the balance in the Savings Account after each transaction.  Clearly, if these deposits made on behalf of Ada had not taken place, the balance after each transaction would not have tallied and matched and the balance would not ultimately match the opening balance as shown in the Bank Book.  Also and as set out above, I accept the plaintiff’s evidence in its entirety.  I find and conclude that Ada had given the plaintiff the said sums of money and the same was deposited by the plaintiff into the Savings Account as set out above for the plaintiff to invest on Ada’s behalf.

74.  As to the defendant’s said complaint that it was “unreasonable” and “unfair” that Ada is entitled to that much compared to her, the answers were clearly set out in the transactions regarding Ada Investment as recorded in the Excel Sheet:-

(a)     Of the HK$87,500 in the Ada Investment (HK$57,000 + HK$17,500 + HK$13,000), HK$69,993 was used on 2 November 2005 to purchase 30,000 shares in 939 at about HK$2.33 a share, thereby reducing her cash to HK$17,507 (Row 36 in Excel Sheet);

(b)     On 1 June 2006, another HK$30,000 was deposited into the Savings Account as part of the Ada Investment;

(c)     Then, part of the 939 shares (probably 11,000 shares at about HK$4.7 a share) was sold at good profit at the total price of HK$51,865; and her cash increased from HK$47,936 (Row 71) to HK$99,801 (Row 95);

(d)     Then on 5 March 2007, she expended another HK$85,059 to purchase 20,000 shares of 1398 at about HK$4.25 per shares, reducing her cash to HK$14,742 (Row 106);

(e)     Then after, she continued to hold onto those 939 and 1398 shares and continually received good dividends therefrom for over 10 years up to June 2017 when they were sold.  The amounts of dividends were set out and recorded in Rows 71, 128, 129, 146, 178, 180, 195, 196, 214, 216, 250, 251, 271, 272, 284, 285, 296, 298, 320, 322, 338 and 340; and

(f)     Unlike the defendant and other participants of the Family Investment, Ada has not since sold any of these high earning stocks or in all these years withdrawn any money or dividends from the Ada Investment.

75.  Thus, the position and the entitlement of the Ada Investment have already been clearly set out and well explained for in the Excel Sheet for the defendant to look at and study had she been minded to do so.  I find the defendant’s complaint totally devoid of merits.  I find for the plaintiff’s claim in relation to the Ada Investment in the sum of HK$339,285.

Had the following deposits been made by the plaintiff into the Family Investment as his capital contribution ?

76.  For ease of reference, I set out again these disputed deposits, as follows.  I will refer to them respectively as “DD1”, “DD2”, “DD3” and “DD4”.

Row(s) in the       Excel Sheet	Date	HK$	Abbreviated as
42	13 December 2005	$20,000	DD1
48	10 January 2006	$56,000	DD2
58	3 April 2006	$14,000	DD3
126	18 June 2007	$10,000	DD4

77.  The defendant’s case is that she disputes these deposits and the plaintiff’s case in relation to them (set out below) but she does not proffer any positive case or factual averment as to them.  The plaintiff is therefore just left to prove his case.

78.  According to the plaintiff’s evidence and as recorded in the Excel Sheet, these disputed deposits were connected with 4 out of the 7 payments of cash dividends to the participants of the Family Investment.

79.  I will first set out the pertinent details of all the cash dividends payments in the following tables.

Row(s) in the Excel Sheet	Date of Related banking transaction(s)	Withdrawal(s) from/deposit to the Savings Account	Total Dividends paid out	Difference between dividends paid and the amount withdrawn from the Savings Account	Abbreviated as
42-44	13 December 2005	Deposit of $37,000	$33,000	$70,000	Dividend 1
48-50	10 January 2006	$0	$56,000	$56,000	Dividend 2
58	3 April 2006	Withdrawal of $46,800	$53,000	$6,200	Dividend 3
94	28 December 2006	Withdrawal of $52,300	$52,300	$0	Dividend 4
125-127	18 June 2007	3 withdrawals of $20,000 + $18,000 + $52,000	$100,000	$10,000	Dividend 5
149-151	18 & 29 October 2007	2 withdrawals of $7,200 + $21,600	$28,800	$0	Dividend 6
162-166	24 December 2007, 14 & 29 January 2008	3 withdrawals of $440 + $3,600 + $50,000	$54,040	$0	Dividend 7

80.  As I mentioned, the defendant accepts that payments of cash dividends had been made and received, but denies barely that they were paid in the amounts as the plaintiff alleged.  She however has not stated what she says were the amounts paid and received, nor proffered any evidence at all in relation to them.  As I said, I find the plaintiff’s evidence, including the Excel Sheet, credible and reliable and I find for the plaintiff’s case regarding the payments of these cash dividends – that they were paid in cash to each participant of the Family Investment according to the proportion of capital contribution each had made, but they were invariably paid in round up, rather than exact, amounts.

81.  The plaintiff’s case is that all the above withdrawals of cash from the Savings Account were made by the defendant either by the use of ATM machines or over the counter.  This must be the case, and I so find, as only the defendant would have the means to make all these withdrawals.

82.  It can be seen from the above table that on 4 highlighted occasions – payments of Dividend 1, 2, 3 and 5, the money withdrawn were less than the amount of cash dividends paid.  In fact, regarding Dividend 1, there was actually a deposit of HK$37,000 instead of any withdrawal.

83.  The plaintiff’s evidence is that:-

(a)     Regarding DD1 - On the occasion for the payment of Dividend 1, he and Joyce decided to put respectively HK$20,000 and HK$50,000 more – totalling HK$70,000 - into the Family Investment.  Therefore, instead of asking the defendant to withdraw HK$33,000 from the Savings Account, he used HK$33,000 from that HK$70,000 to pay the participants their shares of the dividend and deposited the balance of HK$37,000 into the Savings Account.  Hence, it was recorded in Row 42 that his capital contribution was increased by HK$20,000 from HK$100,000 to HK$120,000, which explains DD1.  At the same time, the capital contribution of Joyce as recorded also in Row 42 was also increased by HK$50,000 from HK$50,000 to HK$100,000. (This deposit by Joyce however was not disputed at trial by the defendant.)

(b)     Regarding DD2 – The money to pay the total cash dividends of HK$56,000 was provided by him and not withdrawn from the Savings Account.  Therefore, he recorded in Row 48 of the Excel Sheet that his capital contribution increased by HK$56,000 from HK$120,000 to HK$176,000.

(c)     Regarding DD3 – He recalled that on that occasion the defendant for some reason needed more cash, while he was minded to put in HK$14,000 more to invest.  He therefore paid the defendant HK$7,800 more than her share in the dividends and he used the balance of HK$6,200 (HK$14,000 - HK$7,800) to pay part of the cash dividends to participants and therefore only HK$46,800 (HK$6,200 + HK$46,800 = HK$53,000) was withdrawn from the Savings Account for the payment of the cash dividend.  Therefore, in Row 58, his capital contribution was adjusted upward by HK$14,000 and the capital contribution of the defendant was adjusted downwards by HK$7,800 from HK$237,817 to HK$230,017.  (The defendant at trial however did not dispute the said downward adjustment of her own capital contribution.)

(d)     Regarding DD4 – Again, on that occasion he decided to put in HK$10,000 more to invest and so he used that sum to pay cash dividends and therefore only a total of HK$90,000 was withdrawn from the Savings Account; and again he adjusted his capital contribution upward by HK$10,000 in Row 126.

84.  I accept the plaintiff’s evidence as set out above and find that he had indeed put in the additional amounts of money into the Family Investment as capital contribution as mentioned above.

Had the defendant deposited HK$100,000 in about late 2005 which was not recorded in the Excel Sheet?

85.  Her evidence in support of her such claim was given in her witness statement, thus:-

“… 我大約在2005年年尾亦再存入100,000元進相關戶以購買30,000股中國銀行(香港)(股票編號:3988)的股票，每股作價為港幣3.25元。”[22]

86.  In the Whatsapp conversations, the defendant also said:-

“我係阿公戶口有大概20萬，我入咗10萬來買三萬股中國銀行，我之前叫咗你放咗2萬股中國銀行，分別係5元和5.5元放的，”[23]

“第一我無係05年攞過十萬現金出來，我有入過十萬現金去買三萬股中國銀行，你叫佢解釋一下”[24]

87.  Therefore, it is consistently her case that the alleged HK$100,000 deposit was tied to her intended purchase of 30,000 shares in 3988 at HK$3.25 per share; and that the deposit was made in late 2005.

88.  In oral evidence, she added that she vividly remembered this deposit as this sum of HK$100,000 was accumulated by her bit by bit from unused household expenses given to her by her husband.

89.  At trial, it was also suggested that the entry in the Excel Sheet in Row 16 recording that there was a cash withdrawal of HK$100,000 from the Savings Account on 5 May 2005 and labelled as “Carol out” was a mistake, and that it should have been a deposit of HK$100,000 into the Savings Account by the defendant.  In this scenario, the capital contribution of the defendant at the time, as recorded in the Excel Sheet, would have been wrongly reduced by HK$200,000 (“the Reduced-by-$200,000 Scenario”).

90.  For the reasons set out below, I reject the defendant’s allegation that she had made the said deposit of HK$100,000 into the Savings Account in 2005 or that Row 16 has wrongly recorded the transaction.

91.  Firstly, I do not accept her evidence about vividly remembering the sum and its deposit as the sum was bit by bit accumulated from unused household expenses given to her by her husband.  This piece of information was not mentioned by her at all anywhere in the long WhatsApp discussions in 2017, it was not spoken to at all in both her witness statements. I find it incredible that she suddenly remembers it in the witness box as something that makes her “vividly” remember the sum and its alleged deposit into the Savings Account.  It is clearly something she made up as she went along.

92.  Secondly, it is a matter of public records that 3988 was listed on 1 June 2006 and its IPO took place in May 2006 with the Prospectus dated 18 May 2006, and its IPO price was HK$2.95 per share.  It can also be seen from Row 63 that HK$90,959 was withdrawn from the Savings Account for “EIPO” of 3988 and HK$84,849.40 was refunded into the Savings Account on 1 June 2006 as “IPO REFUND”.  That being the timing of the public offering, I find it improbable that the defendant would deposit such a substantial sum of HK$100,000 into the Savings Account more than half a year before the IPO.  I also think it very improbable that the pricing of the share would have been announced in late 2005, half a year before IPO, such that the defendant would know how much to deposit for the purchase of 30,000 shares, as she now alleges.  Moreover, and as said, the IPO price was HK$2.95 per share and not HK$3.25 as she said. HK$3.25 was the price of that stock about a week or so after its listing, which was in mid-June 2006.

93.  Thirdly, the failure by the plaintiff to record and take into account in the Excel Sheet the alleged HK$100,000 deposit by the defendant or the Reduced-by-$200,000 Scenario, had they been true, would have a significant impact on the proportion of cash dividends paid to the participants of the Family Investment.  I will illustrate by using, say, Dividend 2, as set out in the table below :

Dividend 2	The defendant	The plaintiff	Mother	2nd Sister	Joyce	Total
Capital contribution then as recorded in Excel Sheet	$237,817 (39.12%)	$120,000 (19.74%)	$100,000 (16.45%)	$50,000 (8.22%)	$100,000 (16.45%)	$607,817
Cash dividends proportionate to capital contribution	$21,911	$11,056	$9,213	$4,607	$9,213	$56,000
Adding back HK$100,000 to the defendant’s capital contribution	$337,817 (47.72%)	$120,000 (16.95%)	$100,000 (14.12%)	$50,000 (7.06%)	$100,000 (14.12%)	$707,817
Cash dividends proportionate to capital contribution	$26,727	$9,494	$7,912	$3,955	$7,912	$56,000
Adding back HK$200,000 to the defendant’s capital contribution	$437,817 (54.19%)	$120,000	$100,000 (12.37%)	$50,000 (6.18%)	$100,000 (12.37%)	$807,817
Cash dividends proportionate to capital contribution	$30,351	$8,319	$6,932	$3,466	$6,932	$56,000

94.  From the above table, it would be readily perceived in money terms that the non-inclusion of the HK$100,000, and particularly the Reduced-by-$200,000 Scenario, would have a significant and very appreciable impact on the participants’ respective proportions of the cash dividends.  Had the defendant’s allegation been true, she would have been entitled to a lion’s share in the dividends as compared to the other participants’.  The disparity should have been very noticeable.  It would have been even more noticeable for, say, Dividend 5 when the total cash dividends paid were HK$100,000.  It would have been glaringly noticeable under the Reduced-by-$200,000 Scenario.

95.  The defendant’s explanation was that she had not noticed the disparity in all these 7 cash dividends payments because the cash dividends were paid to the participants individually, alone and not in front of each other, and that they did not at all talk about it among themselves.  I have no hesitation in rejecting her explanation.  As said, I accept the evidence of the Elder Sister that Mother, the 2^nd Sister and Joyce joined in 2005 because the plaintiff and the defendant talked during family gatherings about their gains from investing in stocks.  I also accept the evidence of the Elder Sister, the plaintiff and Joyce to the effect that the cash dividends were often paid to participants during family gatherings and they often mentioned them in conversations.  In the result I find it highly improbable that, had the defendant made the HK$100,000 deposit as alleged which the plaintiff has not or has wrongly recorded in the Excel Sheet, that she would not have noticed it in all these years and queried and complained about it.

96.  Fourthly, I take a very dim view generally of the reliability and credibility of the defendant’s evidence.

97.  Fifthly, had the defendant’s allegation been true, the cumulative balance of the Savings Account as recorded in the Excel Sheet would not be able to tally and match with the opening balance as recorded in the Bank Book.

Should the HK$54,315 be counted as the plaintiff’s capital contribution for the purpose of the Entitlement Calculation?

98.  In the Excel Sheet, the plaintiff only entered that sum as his capital contribution on 21 February 2017 when parties’ dispute has already begun.

99.  It was said to be the total of 23 items of expenses paid by the plaintiff on behalf of the family consisting mostly of expenses for meals, several “sample sales” and an item of hospital charge for father[25].  In evidence, the plaintiff said they were spent from 2004 to 2007 and there was an understanding that these were family expenses that he had paid upfront to be reimbursed by other family members.

100.  The defendant said that she had on occasions also paid for some family expenses which were not counted in the Excel Sheet as her capital contribution, and that the plaintiff’s present arrangement would mean that the participants of the Family Investment were paying these expenses for other siblings who had not participated in the Family Investment, a matter that she had not agreed to.

101.  In the round, while accepting the plaintiff’s evidence that these items were in fact paid for by him and that there was an understanding that he would be reimbursed the same, I do not find on balance of probabilities that there was an agreement between the participants of the Family Investment that such expenses would be counted as his capital contribution to the Family Investment for the purpose of Entitlement Calculation, for the following reasons:-

(a)     Neither of the plaintiff’s witnesses has spoken to such an agreement or arrangement;

(b)     In view of the manner and practice in the way the plaintiff recorded the transactions in the Excel Sheet, one would expect him to enter these items at least from time to time into the Excel Sheet and not shelfing them for more than a decade and then only entering them when parties began to have disputes; and

(c)     There is no evidence that the plaintiff was the only one among the participants in the Family Investment that paid family expenses upfront for them, while there was not even one other entry in the Excel Sheet recording any instance of such expenses paid upfront by any of the other participants of the Family Investment.

102.  I therefore hold that this sum of HK$54,315 should not be counted as the plaintiff’s capital contribution for the purpose of the Entitlement Calculation.  The plaintiff may have to recoup them from the siblings individually.

Disposal

103.  In the premises, I give judgment to the plaintiff and order the defendant to pay to the plaintiff such sums representing the Ada Investment and the plaintiff’s, Mother’s and Joyce’s shares in the Family Investment essentially in the manner and amounts as claimed by the plaintiff save that an adjustment need to be made in the amounts of the participants’ respective shares re-calculated by the Entitlement Calculation taking into account the disallowance of the said sum of HK$54,315 as the plaintiff’s capital contribution.  I direct the plaintiff to so re-calculate and to seek agreement from the defendant who should respond within 5 days of receiving the same.  In the unlikely event that the parties cannot agree to the final amounts, they may apply by joint letter to this court.

104.  The plaintiff is entitled to interest.  I order that the defendant do pay the plaintiff interest for the total sum so re-calculated at the best lending rate plus 1% per annum from the date the plaintiff demanded for the sum by his letter dated 10 July 2017 until the date of this judgment, and then after at judgment rate until full payment.

105.  I also order nisi that the defendant do pay the plaintiff the costs of this action, including all costs reserved, with certificate for counsel.  This costs order nisi will become absolute unless any party applies by summons for variation within the next 14 days.

106.  Lastly, I thank counsel for their assistance.