KWAN KWAI LIN AND ANOTHER v. YEUNG TING KWAN previously known as YEUNG ON KI

HCA 3013/2015

[2026] HKCFI 3354

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3013 OF 2015

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JUDGMENT

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A.      INTRODUCTION

1.  This action was brought by Kwan Kwai Lin (“Husband”) in both his personal capacity and his capacity as the administrator of the estate of his wife (“the Deceased”) against Yeung On Ki, the Deceased’s younger sister (“Younger Sister”).

2.  The subject matter of this action is a residential flat located in Yuen Long (“the Property”)[1], which was purchased in August 2003 and registered under the sole name of Younger Sister.

3.  In gist, it was the plaintiffs’ case that Husband and the Deceased were and are the 100% beneficial owner of the Property on the following 3 (not mutually exclusive) alternatives:

(1)     an express common intention constructive trust based on an express oral agreement;

(2)     an inferred common intention constructive trust; and/or

(3)     a resulting trust arising from monetary contribution to the purchase price of the Property.

4.  Younger Sister denied the plaintiffs’ claims and counterclaimed against them for, inter alia, vacant possession of the Property.

5.  The first trial of the action took place in October 2021 (“the First Trial”).  By a Judgment handed down on 14 January 2022 (“the First Trial Judgment”), the learned Judge, inter alia, dismissed the plaintiffs’ claims, and ordered the plaintiffs to deliver vacant possession of the Property to Younger Sister.

6.  The plaintiffs then appealed to the Court of Appeal.  By a Judgment dated 10 March 2025[2] (“the CA Judgment”), the Court of Appeal:

(1)     dismissed the 1^st plaintiff’s (i.e. Husband suing in his personal capacity) appeal;

(2)     allowed the 2^nd plaintiff’s (i.e. Husband suing in his capacity as the administrator of the Deceased’s estate) appeal,

and ordered that:

“The 2^nd plaintiff’s claims against the defendant (limited to the issues of inferred common intention constructive trust and/or resulting trust and the issue of breach of trust for causing and/or procuring [a mortgage in 2015]), and the defendant’s counterclaim against the plaintiffs shall be remitted to the Court of First Instance for a retrial (before another judge).”[3]

7.  The re-trial has since then been fixed to be heard by this Court.  This is the Judgment of the re-trial.

B.      BACKGROUND

8.  The following background is largely adopted from the CA Judgment.

9.  On 8 August 2003, Younger Sister entered into a written agreement (“the SPA”) for the purchase of the Property at the price of HK$600,000, of which HK$10,000 was paid as deposit and in part payment of the purchase price and the balance of HK$590,000 was to be paid on completion.

10.  On 10 October 2003:

(1)     completion of the SPA took place, and the Property was assigned to Younger Sister in her sole name; and

(2)     a mortgage (“the 2003 Mortgage”) of the Property was executed by Younger Sister in favour of Bank of China (Hong Kong) Limited (“BOC”) acting in its own right and as agent for and on behalf of The Hong Kong Housing Authority (“HKHA”) to secure loans in the sums of HK$265,000 from HKHA and HK$305,000 from BOC (“the HKHA Loan” and “the BOC Loan” respectively, and “the Loans” collectively).  It is not in dispute that the Loans, in the total sum of HK$570,000, were utilized to pay part of the balance of the purchase price of the Property.

11.  The BOC Loan was also secured by a joint and several guarantee dated 8 October 2003 executed by Husband and the Deceased to the extent of HK$305,000 together with interest thereon and other costs and charges (“the Guarantee”).

12.  It was the plaintiffs’ case that prior to the making of the SPA, there was an express oral agreement (“the plaintiffs’ Alleged Agreement”) between Husband and the Deceased on the one part and Younger Sister on the other part that:

“(a) The Property would be purchased under the sole name of the Defendant. Despite that, the 1^st Plaintiff and the Deceased would be jointly entitled to the 100% beneficial interest in the Property.

(b) The Defendant would obtain loans (‘the Loans’) to finance the purchase of the Property, including a mortgage loan from a bank, and a loan from The Hong Kong Housing Authority (‘HA’) as the Defendant was eligible for obtaining a loan under the Home Assistance Loan Scheme implemented by HA.

(c) To secure the Loans, the 1^st Plaintiff and the Deceased would be the guarantors for the repayment of Loans.

(d) The 1^st Plaintiff and the Deceased would be solely responsible for making monetary contribution to the purchase of the Property including making the upfront payment and repayment of the Loans (and the Government rents, management fees and utilities bills, etc.), and the Defendant was not required to make any monetary contribution.”[4]

13.  According to the plaintiffs:

(1)     the SPA, the Loans, the 2003 Mortgage, the Guarantee and the related assignment were entered into, obtained and executed pursuant to the plaintiffs’ Alleged Agreement;

(2)     acting in reliance on and pursuant to the plaintiffs’ Alleged Agreement, Husband and the Deceased duly made the upfront payment of HK$30,000 for the purchase of the Property, and made repayment of the Loans under an arrangement whereby the Deceased would in each and every calendar month transfer to Younger Sister’s account a sum required for making the monthly mortgage repayment and Younger Sister would use such sum to make repayment accordingly; and

(3)     Husband and the Deceased were at all material times responsible for paying the Government rents, management fees and utilities bills in respect of the Property.

14.  The plaintiffs’ Alleged Agreement was denied by Younger Sister, who claims that prior to the execution of the SPA, it was the common agreement and/or understanding and/or intention between her and the Deceased (“the Alleged Common Understanding and/or Intention”) that:

“(a) The Property would be purchased in the sole name of the Defendant and the Defendant would be the sole legal and beneficial owner of the Property;

(b) The Defendant would be solely responsible for obtaining mortgage loan(s) to finance the purchase of the Property;

(c) The Deceased would be the guarantor for the repayment of the mortgage loan to be taken out by the Defendant;

(d) The Defendant would pay the down payment of HK$80,000 upfront and from her own resources for the purchase of the Property;

(e) The monthly mortgage repayments would be made by the Deceased;

(f) In consideration of the monthly mortgage repayments to be made by the Deceased as pleaded at subparagraph (e) above, the Defendant agreed to take care of the mother and father of the Defendant and the Deceased (‘Parents’), and the Defendant agreed to allow the Deceased’s family (which included the Deceased, the 1^st Plaintiff and the Deceased’s daughter (‘Daughter’)) (‘the Deceased’s Family’) to reside with the Defendant in the Property under a bare licence revocable upon reasonable notice (‘Oral Licence’);

(g) Pursuant to paragraph [(f)] above, since in or around July 2003, the Defendant had duly taken care of the Parents. However, the father of the Defendant and the Deceased passed away in or around March 2015 and the Defendant had still duly taken care of the Defendant’s and the Deceased’s mother up till the present”[5].

(Emphasis added)

15.  In other words, each side put forward a version of an express oral agreement, understanding or arrangement in support of a claim for the sole beneficial ownership of, or a beneficial interest in, the Property.

16.  After completion of the purchase of the Property, the Deceased’s family and Younger Sister all resided in the Property until around October 2007 when Younger Sister moved out of the Property to co-habit with her then boy-friend.

17.  The Deceased passed away on 4 June 2013.  According to the plaintiffs, Younger Sister voluntarily agreed to and did repay the Loans after the death of the Deceased.  Disputes later arose between Husband and Younger Sister concerning the ownership of the Property.

18.  According to Husband, in about the end of 2014, he asked Younger Sister to transfer the Property to him.  She originally said she would do so, but subsequently failed to follow up with the matter. 

19.  On 26 March 2015, Husband obtained letters of administration of the estate of the Deceased.  He later found out that Younger Sister had, without his knowledge, mortgaged the Property as security for a loan of HK$2,310,000 from BOC in 2015 (“the 2015 Mortgage”).

20.  On the other hand, Younger Sister says that in about early December 2015, she revoked her permission (the Oral Licence) and asked Husband and his daughter (“Daughter”) to move out of the Property, but they failed or refused to do so despite repeated demands.

21.  On 18 December 2015, the plaintiffs commenced the present action against Younger Sister, claiming to be beneficially entitled to the Property.  As aforesaid, originally, the plaintiffs’ claim was advanced on 3 alternative, but non-mutually exclusive, bases as referred to in [3] above.

22.  There was also a claim by the plaintiffs against Younger Sister for breach of trust for causing and/or procuring the creation of the 2015 Mortgage.

23.  Younger Sister denied the plaintiffs’ claim for the Property, and counterclaimed for vacant possession of the Property and mesne profits on the ground of the plaintiffs’ alleged wrongful occupation of the Property despite the revocation of the Oral Licence.

24.  As aforesaid, while Younger Sister succeeded at the trial, the appeal lodged by Husband in his capacity as the administrator of the Deceased’s estate was allowed.

25.  A re-trial has therefore taken place on:

(1)     The 2^nd plaintiff’s claims against Younger Sister on:

(a)     inferred common intention constructive trust and/or resulting trust; and

(b)     breach of trust for causing and/or procuring the 2015 Mortgage, and

(2)     Younger Sister’s counterclaim against the plaintiffs.

C.      CREDIBILITY OF WITNESSESS

C1.    Legal Principles

26.  The approaches for assessing the credibility of witnesses are well established, and are summarised as follows[6]:

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

(2)     Importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)     In addition, the court will attach importance to the shift of a party’s case, consistency of the witnesses’ evidence with undisputed or indisputable evidence, and the internal consistency of the witnesses’ evidence. The latter type of consistency may be tested by a comparison between the witnesses’ oral testimony and their respective witness statements, and also their answers given to different questions during examination at the trial;

(4)     The court should consider a witness’ motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(5)     It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his/her evidence. Likewise, a witness may lie.  However, lies themselves do not necessarily mean that the entirety of that witness’ evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his/her case, but the actual case nevertheless remains good irrespective of the lie;

(6)     Having said that, where it is shown that a witness has been discredited over one or more matters to which he/she has testified, this fact is relevant to the assessment of his/her overall credibility; 

(7)     The court should also consider whether a witness is evasive, argumentative and/or tends to give tangential speeches so as to avoid questions while being cross-examined;

(8)     While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.

27.  As this action involves disputes within a family, what G Lam JA said in Cheung Yuk Ying Engracia v Macgregor Isabella [2023] 3 HKLRD 164, [2023] HKCA 749 is relevant:

“[…] The resolution of factual disputes between family members not infrequently presents challenges to the court, for there is often not much documentation to go by; commercial standards of behaviour may not be appropriate for gauging the parties’ conduct; and the rights and wrongs of parties to intimate human relationships can elude the closest scrutiny in a court of law […]”

28.  I would add that there is normally a fundamental difference between a family dispute and a business dispute – not only that it would be less likely for family members to put every agreement in writing, it would also be unrealistic to expect that family members would always conduct themselves according to strict logic and without being affected by family dynamics as well as their close relationships. 

29.  When assessing credibility of witnesses in the present case, it should also be borne in mind that the key events mostly happened more than 20 years ago.  As a result, what Coleman J said in Yu Man Fung Alice v Chiau Sing Chi Stephen (HCA 1584/2012, unreported, 23 December 2020, [2020] HKCFI 2923) is relevant:

“53.      […] evidence based on recollection of what was said in an undocumented conversation which occurred so long ago is inherently problematic.  It is, however, perhaps only in the last decade or so that courts have consistently properly recognised the fallibility and potential unreliability of human memory.

54.     In Gestmin SGPA SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at §§16-20, Leggatt J made certain observations on the point, to which he also returned in the Blue v Ashley case.  Those observations have commended themselves to a number of other judges, including judges in Hong Kong: see, for example, Sarah Sally Chan-Kent v Chim Sau Ching [2019] HKCFI 3066 at §45.

55.     In the Blue v Ashley case at §68, Leggatt J also referred to a paper published by two academic psychologists, Howe and Knott ‘The fallibility of memory in judicial processes: Lessons from the past and their modern consequences’ (2015) Memory, 23, 633 at 651-3.  He also footnoted, but did not make any extensive reference to, the book by the psychologist Schacter ‘How the Mind Forgets and Remembers: The Seven Sins of Memory’ (2001).

56.     The various judicial and academic observations would bear repetition at some length, but I shall attempt to restate them in more compressed form:

(1)     While everyone knows that memory is fallible, we are often unaware of the full extent to which our own and other people’s memories are unreliable.

(2)     Common and related errors include supposing that (a) the stronger or more vivid a recollection, the more likely it is to be accurate, and (b) the more confident a person is of their recollection, the more likely it is to be accurate.

(3)     But memory is not a mental record fixed at the time of the experience, then fading gradually over time.  So it is a misconception that memory operates like a camera or video device making a fixed and chronological record of an experience.

(4)     Rather, memories are fluid and malleable, being constantly rewritten whenever they are retrieved.

(5)     What gets encoded into memory in the first place is determined by what a person attends to, what they have already stored in memory, and their expectations, needs and emotional state.

(6)     This information is subsequently integrated or consolidated with other information already stored in a person’s long-term, autobiographical memory.

(7)     What is subsequently retrieved from that memory is determined by the same multitude of factors, and additionally by what drives the recollection of the event.

(8)     What is retold about an experience depends on the person to whom one is talking, and what the purpose is of remembering that particular event.

(9)     What gets remembered is reconstructed from the remnants of what was originally stored, taking account of whatever has already been forgotten or any interference from any new experiences across the interval between storing and retrieving a particular experience or event.

(10)     So the content of memory for experiences involves active manipulation, integration with pre-existing information, and reconstruction of that information.

(11)     Memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

(12)     Therefore, and in addition, the process of civil litigation itself subjects the memories of witnesses to powerful biases.

(13)     First, such witnesses often have a stake in a particular version of events.  This is obvious where the witness is a party or has some type of loyalty to a party to the proceedings.

(14)     Secondly, other subtler influences come into play, perhaps from the process of preparing a witness statement and coming to court to give evidence for one side in the dispute.  The natural desire to assist, or not prejudice, the party calling the witness, and the desire to give a good impression in a public forum, can be significant (even if unconscious) motivating forces.

(15)     Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial.  A witness is asked to make a statement, often (as in this case) when a long time has already elapsed since the relevant events.  The statement is usually drafted for a witness by a lawyer who is inevitably conscious of the significance for the issues of the case of what the witness does or does not say.

(16)     The witness statement is made after the witness’s memory has been ‘refreshed’ by reading documents.  Yet those documents themselves often include statements of case and other argumentative material, as well as documents not previously seen by the witness, or documents which came into existence after the events which the witness is being asked to recall.

(17)     The witness statement may go through several iterations before it is finalised.

(18)     Months or even years later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court.

(19)     The effect of the process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be in fact true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it, rather than on the original experience of the events.

(20)     There is also a powerful tendency for people to remember past events concerning themselves in a self-enhancing light.

(21)     It is also not uncommon for witnesses to deceive themselves in what are essentially honest but nonetheless false recollections.

57.     These matters do not mean that human memory is simply unreliable.  Often, memory is reliable.  However, it is also fallible, and so when assessing reliability, it is important to have in mind what causes that fallibility.

58.     Therefore, in a case such as the present case, it seems to me that a sensible approach may be to limit (or at least be cautious about) the reliance placed on the witnesses’ individual recollections of what was said in conversations, and to give more weight and make factual findings on inferences drawn from any documentary evidence as well as known or probable facts, in particular objective facts.

59.     Documents which are likely to be helpful are those contemporaneous documents which may describe not only what was going on, but also the motivation and state of mind of those concerned.  Documents passing between the parties themselves can be important, but in some cases ‘internal’ documentation may also greatly assist.

60.     In most cases, the credit of a witness on matters not germane to the litigation is unlikely to be helpful, and the demeanour of witnesses is not a reliable pointer to honesty or accuracy.  Witness evidence, written and oral, is obviously not without purpose; but, its principal uses are to allow scrutiny of any documentary record and to evaluate the witness’s motivations, personality and working practices.

61.     Evaluation of a witness’s evidence may, depending on the particular circumstances, also include having regard to factors such as: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleadings, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure: see Painter v Hutchison [2007] EWHC 758 (Ch) at §3.  There may be other factors in any particular case, but this list gives important and helpful guidance.  As will be seen, some of them are rather pertinent to this case.

62.     An examination of the consistency of conduct and documents and motives will, therefore, likely be helpful.  As long as it is recognised that there is also a risk of potential (perhaps unconscious) bias in the identification of them, it is the inherent probabilities and likelihoods which will be of greater assistance in deciding what, on the balance of probabilities, actually happened.”

30.  I will now consider the credibility of the witnesses in turn below.

C2.     Husband

31.  I regret to say that Husband is not a reliable witness to say the least.  This can be demonstrated by the following examples:

(1)     When he was asked whether Younger Sister had ever brought Daughter to attend consultation with doctor and pay for the consultation fees incurred, he initially denied the same firmly.  However, this answer was apparently contradictory to what he said in the First Trial.  He explained this answer by saying that “佢嘅所作所為令我好嬲，我覺得佢做咗等於冇做”.  This answer was shocking. It has cast doubt on his evidence, and particularly, it has raised the question as to whether he would cover up matters which are favourable to Younger Sister simply because he was angry about what Younger Sister did.  Indeed, at the end of the day, he admitted that in fact Younger Sister had brought Daughter to see the doctor at least once and paid the consultation fees.

(2)     Husband’s evidence given in the re-trial was also different from what he said during the First Trial in various aspects, for example:

(a)     the target price of the property which he and the Deceased were planning to buy in 2003;

(b)     whether the Deceased wholly paid mortgage instalments herself (as opposed to his evidence that he had contributed);

(c)     the timing when Younger Sister joined the Deceased to view the Property;

(d)     whether it was the Deceased or Younger Sister who issued a cheque to pay for the deposit of the Property;

(e)     the timing when he knew he would be one of the guarantors for the Loans;

(f)     whether he knew that there was a cap in the Loans;

(g)     whether he knew that the Deceased was minded to sell the Property in 2006.

(3)     Part of Husband’s evidence given at the re-trial was internally inconsistent.  For example:

(a)     While he initially stated that the deposit of HK$30,000 came entirely from the Deceased, he changed his evidence later on and stated that HK$5,000 thereof came from him;

(b)     He at first stated that the Deceased had put the Property up for sale in 2006. However, he changed his evidence later and said he had never heard about this matter, and confirmed that his first answer was incorrect.  He could not explain why he had given the “incorrect answer”;

(c)     He originally admitted that the Deceased had used the compensation which she received from her insurer (upon being diagnosed for suffering from cancer) to pay off his debts.  However, he changed his answer subsequently and said that he was not sure whether she had done so.

(4)     Husband also gave this court an impression that he would give evidence casually without any basis.  For example:

(a)     While he insisted that HK$20,000 out of the payment of HK$30,000 was “further deposit for the purchase of the Property” (“大訂”), he admitted that he had not been told by the Deceased about this fact, and he described the payment of HK$20,000 as 大訂only because he had heard about such a term in other conveyancing transactions;

(b)     While he stated that a cash deposit in the sum of HK$3,100 as shown in Younger Sister’s passbook was deposited by the Deceased, he actually did not have any basis to say so.

32.  I would therefore not accept Husband’s evidence lightly unless his evidence is corroborated by other more reliable evidence or there is any other good reason which justify the acceptance of his evidence.

C3.    Cheung Ying Ming Yvonne (“Cheung”)

33.  Cheung was the Deceased’s friend.  She has been called by the plaintiffs to give evidence on a conversation between herself and the Deceased in around 2006 – 2007.

34.  At the beginning of the trial, this Court has given a direction that all witnesses who are yet to give evidence should not stay inside the court while the other witnesses are giving evidence.  However, for some reasons, Cheung was not informed about this requirement, and the plaintiffs’ legal team could not recognise Cheung at all when she was sitting at the public gallery while Husband was giving evidence.

35.  As a result, the court direction mentioned above was breached.

36.  Because of this, Ms Law for Younger Sister submitted that this Court should treat Cheung’s evidence with extreme caution.

37.  Having exercised such caution, it is still my finding that Cheung’s evidence on her conversation with the Deceased (see Section E9 below) is reliable and must be accepted as the truth.  This is despite the fact that Cheung has already forgotten the exact words used in the subject conversation.  Neither do I think Cheung’s ignorance on the precise financial arrangement matters at all.  The most crucial point is that she recalled that the Deceased had told her generally that:

(1)     The Property actually belongs to the Deceased and Husband;

(2)     Younger Sister is only a legal but not beneficial owner thereof;

(3)     Such an arrangement had been made because only Younger Sister (but not the Deceased/Husband) was eligible to apply for the HKHA Loan.

38.  I have come to the above conclusion because Cheung is apparently an independent witness who has no personal interest in the subject dispute in this action.  There is simply no motive on her part to exaggerate or fabricate evidence for the plaintiffs.

39.  Although she could not recall the exact words used by the Deceased, I am of the view that there should not be any difficulty on her part to recall the general meaning of the Deceased’s statements, for those are not complicated concepts.

40.  Further, her presence in court while Husband was giving evidence would not affect my assessment of her credibility.  After all, Husband’s evidence did not touch on her conversation with the Deceased.

41.  On the matter of exaggeration, Cheung at one stage added in her oral evidence that she knew that it was the Deceased and Husband who paid the mortgage instalments. However, she sought to retract what she said subsequently.  Be that as it may, the conclusion reached above would not be affected, because:

(1)     I hold the view that she asked to retract her evidence only because she was not 100% sure about the truth of the matter, but not because she had had a change of mind about fabricating evidence;

(2)     I tend to think that the Deceased had indeed told her about mortgage repayment, because it was what in fact happened – it was the Deceased who paid off the monthly mortgage instalments.

C4.    Ho Ching Man (“Ho”)

42.  Ho was a friend of the Deceased.

43.  She has also been called to give evidence on her conversation with the Deceased in the period between 2003 and 2006 (see Section E9 below).

44.  I find that Ho is a meticulous and reliable witness.  She was always trying to make sure that her evidence was 100% accurate.  Further, she is an independent witness who has no financial stake in the outcome of this action. 

45.  I therefore accept her evidence.

C5.    Daughter

46.  In gist, Daughter gave evidence on the following matters:

(1)     The Deceased’s explanation to her as to the reason why the Property was bought;

(2)     The Deceased had made monthly contributions to her parents (“the Parents”) at least up to 2009;

(3)     What exactly happened when the Deceased was brought back to the Property in around March 2013 from the hospital;

(4)     Younger Sister’s admissions to her in 2013 and 2015 that the Property belonged to the Deceased;

(5)     The effect of the WhatsApp messages between her and Younger Sister dated 10 December 2015.

47.  For the reason to be explained under Section E13 below, I do not accept Daughter’s evidence that Younger Sister had ever made any admission to her in 2013 or 2015.  It is more likely than not that those alleged admissions were made up by Daughter so as to boost Husband’s case.

48.  In relation to what exactly happened when the Deceased was brought back to the Property in around March 2013 from the hospital, Daughter’s evidence contradicts the evidence of Fong Po Ling (“Fong”) (See Section C7 below).  As Fong is an independent witness who has no financial stake in the present action, I prefer her evidence on the matter.

49.  As to Daughter’s evidence on the Deceased’s explanation as to why the Property was bought, I have reservation as to whether she could really recall that the Deceased had used the word “buy”, given the alleged conversation took place when she was 10 or 11 years old (Primary 4 – 5).  I therefore decide to put no weight on such evidence.

50.  For the Deceased’s monthly contributions to the Parents, since Daughter could not tell how much the Deceased had paid the Parents, I do not think such evidence is helpful.

51.  For the effect of the WhatsApp messages, as this Court pointed out during the trial, I wonder whether there is any probative value if the witness is simply telling the Court what she thinks should be the meaning of the instant messages if all that she is doing is, without more, to read and interpret those messages.  This is something which the Court is able to do without assistance.  The situation would be different if the witness adds colour to the messages by giving evidence on the background of the messages or explaining the special meaning of certain terms used by her and the other side. However, that is not the situation here.  Therefore, Daughter’s interpretation of the messages would not be given any weight.

52.  To conclude, I would generally speaking not accept Daughter’s evidence.

C6.    Younger Sister

53.  Younger Sister held an extremely hostile attitude against the plaintiffs’ counsel from the very beginning of her cross-examination.  Her attitude was so bad that I have very serious doubt as to whether she would be willing to tell the truth, or rather, she was only there to argue with the plaintiffs’ counsel.  Indeed, she was always argumentative and evasive while she was cross-examined. 

54.  Having considered her evidence as a whole, I find that she is an unreliable and incredible witness.

55.  This finding is amply supported by many of the evidence which she gave.  I only need to refer to the followings as examples:

(1)     Like Husband, she has given evidence which are different from what she told the Court during the First Trial.  For example:

(a)     In the First Trial, she accepted that she had left the BOC Mortgage Passbook (see definition in Section E10 below) for the Deceased’s retention, and that it was the Deceased who was responsible for keeping the passbook up-to-date and getting a replacement if necessary.  However, at the re-trial, she denied the said passbook was kept by the Deceased, despite the fact that she did not take it away from the Property when she moved away;

(b)     While she admitted in the First Trial that Husband had asked her repeatedly in 2014 how to dispose of the Property, she denied in the re-trial initially that he had ever asked such a question verbally.  She only confessed subsequently that what she said in the First Trial on this matter was correct.

(2)     She has given evidence which is clearly contradicted by contemporaneous documents.  For example, while it is indisputable that her WhatsApp messages between her and Husband show that they were on good terms (at least until sometime in 2015), she categorically denied the same.  She was so firm on this matter that she even scolded the plaintiffs’ counsel for making a false accusation against her.  However, such a strong attitude only reinforces my view that she is a witness who has no difficulty in and would not feel ashamed for giving false evidence.

(3)     She also tends to exaggerate her evidence.  For example, during cross-examination, she claimed that she was unable to sell the Property since 2013 because Husband and Daughter were residing thereat.  Her evidence was clearly to the effect that she had tried to sell but in vain (“賣唔出”).  However, upon enquiry of this Court, she admitted that she in fact had never put the Property up for sale.

56.  There are many other parts in Younger Sister’s evidence that do not make sense and/or are incredible.  I will refer to those parts of her evidence with more details under Section E below.

C7.    Fong

57.  Fong was the Deceased’s part-time domestic helper. 

58.  She has been called to give evidence on the following matters:

(1)     The Deceased had told her that Husband did not manage his financial matters properly and that he had to rely on the Deceased financially. The Deceased even said that valuable assets should not be left with Husband;

(2)     The relationship between the Deceased and Daughter was not good at all;

(3)     What happened on the day when the Deceased was brought back to the Property to see Daughter one last time in March 2013;

(4)     The close relationship between the Deceased and Younger Sister.

59.  I find that Fong is an honest witness.  After all, she has no personal interest in the matter. 

60.  As far as the incident which happened in March 2013 is concerned, Fong said that Daughter did not even agree to see her mother when the Deceased was brought back to the Property.  This is contrary to the evidence of Daughter, who said that she did accompany the Deceased all the way to the latter’s bedroom.  On this matter, I tend to think that Fong’s evidence is more credible.  If Daughter did what she alleged, it would be difficult to imagine that she, as she admitted, would refuse to go to the Deceased’s bedroom to see the Deceased again within those few hours while the Deceased was still there.  I therefore think that logically Fong’s version of event is more likely to be the truth: Daughter went back to her own room once she saw that the Deceased was brought back and she refused to come out again while the Deceased was still at home.  This in fact is more consistent with what Daughter described to be her mind-set all along:  She simply could not face the reality that the Deceased was going to die soon. 

D.      LEGAL PRINCIPLES ON COMMON INTENTION CONSTRUCTIVE TRUST

61.  It is trite that, as a starting point, equity follows the law.  The onus is on the person seeking to show that beneficial ownership differs from legal ownership.  Hence, in sole ownership cases, it is the non-legal owner who has to show that he/she has interest in the property: Mo Ying v Brillex Development Ltd & Anor [2015] 2 HKLRD 985 at [5.5].

62.  Pausing here, Mr Ma submitted that:

“[…] in light of (a). the substantial contribution(s) / the repayment(s) made by the Deceased for the purchase of the Property over the years, and (b) the fact that the Deceased / Kwan had acted as the guarantor to secure the BOC Loan, and (c). the payment(s) of the Government rates and rents, management fees, and utilities bills over the years by the Deceased (which cannot be disputed or indisputable):-

(1) Applying the above principles on inferred common intention constructive trust and/or resulting trust, the Deceased (P2) has raised prima face case (and/or discharged the burden of showing case) that there existed the inferred “common intention trust” and/or “resulting trust” for the purchase of the Property in her favour;

(2) Then, it is for D and D should have the evidential burden to displace and/or to rebut the aforesaid;

(3) Hence, in this trial, the focus should be for D to prove her pleaded issue of the “Oral Licence” (“特許”), which forms an essential part of D’s case;

(4) D should have the evidential burden and/or persuasive burden of proving her case on the alleged Oral Licence in order to “displace” and/or to rebut P2’s prima facie case on the inferred “common intention trust” and/or the presumption of resulting trust (in favour of the Deceased (P2) ).”[7]

63.  With respect, insofar as it is submitted that Younger Sister has the burden of proving anything, I reject Mr Ma’s submissions.  The well-established principle that the onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership would not be changed by the fact that the legal ownership holder has put forward a positive case.  While the Court should of course take into consideration such a positive case advanced by Younger Sister, the ultimate burden of proof still lies on the person who does not have legal interest in the property (i.e. Husband in the present case).  In other words, even if this Court rejects Younger Sister’s evidence, it does not necessarily mean that Husband has successfully discharged his burden in proving his case on common intention constructive trust.

64.  In Chin Nai Man v Chin Yat Keung Alex [2020] HKCFI 403,  Madam Recorder Winnie Tam SC had also summarised the legal principles applicable to common intention constructive trust as follows:

“10. The following legal principles are not in dispute. Legal ownership of a property is normally consistent with the beneficial entitlement. The onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership: see Chan Hin v Chen Bai Dyi (unreported, HCA 680/2014, 25.7.2017, Anthony Chan J) at §21; Stack v Dowden [2007] 2 AC 432 at §§56, 68. In the present case, the burden rests on the plaintiff.

11. In a domestic context, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust: see the recent Court of Appeal decision of Primecredit Ltd v Yeung Chun Pang Barry (unreported, CACV 246/2016, 21.7.2017) at §1.3 (per Lam VP).

12.      In ascertaining the (alleged) common intention;

(1)     The plaintiff must prove (i) there was a common intention between him and the defendant that the plaintiff was to be the beneficial owner of the property despite that it was acquired in the defendant’s name; (ii) the plaintiff altered his position in detrimental reliance upon such common intention; and (iii) it is unconscionable for the defendant to assert ownership in reliance on his legal title to the property;

(2)     In ascertaining whether there was a common intention, it is the objective intention of each party which was reasonably understood by the other party to be manifested by that party’s words and conduct that one must examine;

(3)     Such intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the property concerned based on evidence of express discussions.  It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention;

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

See Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at §§46‑50, Godfrey Lam J, approved in WML v LCK (unreported, CACV 82/2014, 27.2.2015 at §41).

13.     The modern approach in conducting the assessment is to adopt a holistic approach having regard to the context.  Context was even described as a “fundamental consideration” : Chan Hin v Chen Bai Dyi (unreported, HCA 680/2014, 25.7.2017).

14.      In the context of a traditional Chinese family involving older generations, where explicit discussions on property rights within the family was not that common, the Court has to pay more regard to circumstantial matters : Primecredit Ltd v Yeung Chun Pang Barry (unreported, CACV 246/2016, 21.7.2017).”

65.  Where intention cannot be ascertained from documentation, the court is not limited to inferring intention from the parties’ words and conduct, but should take a holistic approach that considers the context and the particular facts: Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819 at [8(5)]; and Ng Nim Chung, deceased & Another v Ng Wing Man Terry [2021] HKCFI 2534 at [25].

66.  Conduct subsequent to the transfer in question is admissible when determining the intention at the time of the transfer, and the issue is one of weight: Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 at [55].

E.      DISCUSSION

E1.    An Overview

67.  In the present case, I think the most reliable indicators of the truth are the conduct of the parties at the material time, including the sending of various instant messages by the Deceased, Husband and Daughter. The court should also rely heavily on the inherent probabilities and logic of the alleged versions of event. 

68.  Moreover, weight should be placed on matters which cannot be otherwise explained.  It is futile to rely on matters which can be explained by both Husband’s case and Younger Sister’s case.  An obvious example is the payment of the monthly mortgage instalments – I do not think the Court can derive any assistance from looking at the fact of repayments made by the Deceased because those repayments fit the stories of both sides.  Another example is the Deceased’s payment of utilities expenses.  Since the Deceased’s family was living in the Property at the material time, it is not surprising at all that she had paid those expenses.  She would have done so even if the Property was indeed owned beneficially by Younger Sister.

69.  Bearing the above in mind, and having considered the overall circumstances, I take the view that it is more likely than not that the Deceased is the beneficial owner of the Property, and that Younger Sister is only a legal owner who holds the Property for and on behalf of the Deceased.  It is my finding that this situation was brought about by an arrangement that Younger Sister gave the Deceased the former’s quota and eligibility to apply for the HKHA Loan for the purpose of purchasing the Property, which in turn was led to by the fact that while the Deceased wanted to buy a property at the Yuen Long city centre, she could not afford to do so without the HKHA Loan, for which she was ineligible to apply.   Although it is true that by entering into this arrangement, Younger Sister would have used up her only chance of obtaining a loan under the special scheme offered by HKHA, I find that she was still willing to do so for the sake of the Deceased because of their very close relationship.

70.  When coming to the above conclusion, I have also borne in mind that this is a domestic arrangement entered into by 2 very close sisters.  As a result, I do not think the Court should look too closely as to the adequacy of the terms of the arrangement (for example, whether there is any agreement as to when the Property should be transferred back to the Deceased or her family) when considering whether it is more likely than not that Husband’s case is true, particularly when it is evident that the 2 sisters have great trust on each other.

71.  As to why Younger Sister would fight for the Property despite the fact that she has never been the real beneficial owner thereof, I am of the view that it must at least be partly because of the Deceased’s instructions to her that the Property must not fall into the hands of Husband (see Section E13 below).

72.  I will now discuss the individual matters which support the above findings under separate sub-sections below.  I will also explain why I consider that Younger Sister’s case does not hold water at all.  Further, I will demonstrate below that Younger Sister’s evidence on various material matters are internally inconsistent and incredible.  For the avoidance of doubt, it is the holistic assessment of all these matters which lead to the conclusion as explained above.

E2.    Motive and ability for buying the Property in 2003

73.  It is Younger Sister’s case that the Property was bought by her in 2003 on her own initiative.

74.  When assessing the inherent likelihood of Younger Sister’s case in this respect, the following facts have to be borne in mind:

(1)     She was born in April 1978.  By the time of mid-2003, she had only turned 25, and had graduated from university for just around a year;

(2)     Upon graduation, she could not secure a full-time teaching job, and, at the material time, she only managed to work as a substitute teacher with unstable income (she alleged that she could have monthly income of as high as HK$12,000 in some months);

(3)     She only started her first full-time job as a teacher in September 2003.

75.  She said that teachers generally like buying landed properties as investment, and that was the reason why she bought the Property in 2003.

76.  With greatest respect, Younger Sister’s evidence in this regard is incredible and inherently improbable.  Therefore, I reject such evidence. 

77.  In my view, given the fact that she was just a fresh graduate, it is more likely than not that she would not jump into the land market even before she started her first full time job (the SPA was dated 8 August 2003).  There was simply no urgency in the matter (and Younger Sister did not say that it was urgent for her to buy landed property at the material time).  Her explanation that “老師鍾意買磚頭” is totally unpersuasive.

78.  Younger Sister also said that by the time of 2003, she thought that she had reached a stage in life at which she should move away from her parents and lived independently by herself[8].  I do not think this evidence assists her:

(1)     She did not “live independently by herself” by moving away from her parents as she did not live alone but with the Deceased’s family in the Property;

(2)     Younger Sister’s desire of “living independently” does not necessarily mean that she had to buy a landed property herself;

(3)     In any event, this is consistent with the 2^nd plaintiff’s case too – Younger Sister did move away from her parents to live in the Property.

79.  She also alleged that, by 2003, there had been HK$30,000 remaining from the Government Grant which she obtained previously, although the sum was not contributed towards the purchase of the Property. This is a bare assertion which I am not prepared to accept, given my assessment of her credibility, particularly when her income was not stable for a whole year after her graduation in 2002.

80.  On the other hand, the Deceased had every motive to buy the Property.  Even Younger Sister’s counsel submitted (with reference to Younger Sister’s own evidence) that:

“Prior to the purchase of the Property, the Deceased’s family resided at the Fu Yee Property, which was located at Hung Shui Kiu (洪水橋). The Deceased would complain that the Fu Yee Property was far away from the city centre of Yuen Long, and as such was inconveniently located (‘嗰度叫洪水橋，好遠; 佢成日呻嗰度吾方便’). In particular, the Deceased found it inconvenient in her commute to her workplace, and as such she would like to relocate closer to the city centre of Yuen Long.”[9]

81.  As far as financial ability is concerned, since the Deceased had started to work by 1991 the latest, it is more likely than not that she rather than Younger Sister had the means to buy the Property.

82.  Younger Sister’s counsel pointed out that, at the material time, the Deceased and Husband did not even have enough money to pay for the down payment of a property worth HK$1 million.  This argument is not understood, because the undisputed fact is that the purchase price of the Property was only HK$600,000.  Further, with the assistance of the Loans, the upfront payment required to be made towards the purchase price of the Property was only HK$30,000. 

83.  While arguing on the relative financial strength of the parties, Younger Sister’s counsel had also referred to various matters which happened subsequent to the purchase of the Property.  With greatest respect, such submissions are not helpful at all, because what matters is the financial ability of the parties back in 2003 when the Property was purchased, not subsequently.

E3.    Younger Sister’s case on the rationale of the arrangement

84.  It may be recalled that, according to Younger Sister’s pleaded case, pursuant to the Alleged Common Understanding and/or Intention, one of the elements of the arrangement between the parties is that Younger Sister would take care of the Parents[10]. For the sake of clarity, I set out Younger Sister’s pleaded case which I will focus on in this Sub-Section as follows:

“In consideration of the monthly mortgage repayments to be made by the Deceased as pleaded at subparagraph (e) above, the Defendant agreed to take care of the mother and father of the Defendant and the Deceased (‘Parents’), and the Defendant agreed to allow the Deceased’s family (which included the Deceased, the 1^st Plaintiff and the Deceased’s daughter (‘Daughter’)) (‘the Deceased’s Family’) to reside with the Defendant in the Property under a bare licence revocable upon reasonable notice (‘Oral Licence’).”

(emphasis added)

85.  It can be seen that Younger Sister’s promise in return for the Deceased’s payment of monthly mortgage instalments (apart from allowing the Deceased’s family to live in the Property) is that Younger Sister would take care of the Parents.

86.  However, it is undisputed that both the Deceased and Younger Sister had taken care of the Parents both before and after the purchase of the Property. 

87.  Viewed in that light, Younger Sister’s pleaded case seems strange to say the least.

88.  What is even more extraordinary is the actual evidence given by Younger Sister in this regard.  In paragraph 10 of her witness statement, Younger Sister stated that:

“在簽訂買賣合約之前，本人與姐姐楊可慧達成以下的協議作為購入該物業及其貸款安排:-

(a) 本人將會購入該物業並成為該物業法律上的唯一擁有人及唯一實益擁有人;

(b) 本人負責向銀行申請並取得按揭 (下稱 “該按揭”) 作為購入該物業的資本;

(c) 姐姐楊可慧會作為該按揭的擔保人;

(d) 除了向銀行申請按揭外，本人亦需要動用自己的資金約港幣$80,000元作為購入該物業的預付資金;

(e) 姐姐楊可慧會負責支付該按揭的每月還款，而本人則需要獨力承擔支付我們的父母的生活費; 及

(f)     基於上述的協議，本人與姐姐楊可慧均同意，本人將特許姐姐楊可慧、第一原告人及其女兒關旨呈與本人一同居住該物業。本人有權在合理通知的情況下，取消此安排，即本人有權要求姐姐楊可慧、第一原告人及其女兒關旨呈搬離該物業。”

(emphasis added)

89.  In paragraph 8(1) of Younger Sister’s supplemental witness statement, she added:

“本人、姐姐楊可慧及我們的父母一直感情要好。在本人與姐姐楊可慧達成該協議後，本人一直獨力承擔支付我們的父母的生活費，每月大約HK$8,000至HK$10,000元。”

90.  During cross-examination, Younger Sister went further and stated that she had made an express agreement with the Deceased before the execution of the SPA (i.e. before 8 August 2003) that Younger Sister would give the Parents HK$8,000 to HK$10,000 every month.

91.  The above shows that Younger Sister’s case is incredible:

(1)     There is apparently a difference between “taking care of the Parents” and “financially supporting the Parents”.  In other words, Younger Sister’s evidence has departed from her pleaded case;

(2)     Even if “taking care of the Parents” means “financially supporting the Parents” (which I do not agree), there is no explanation as to why the alleged exact agreement of “financially supporting the Parents for HK$8,000 to HK$10,000 every month” was not pleaded.  In my view, it is because this is something made up by Younger Sister while she was in the witness box.

92.  As to the rationale of entering into such an agreement with the Deceased, Younger Sister explained that she wanted to ensure that the Parents would be able to receive at least HK$8,000 every month, and that she had concerns that, without this arrangement, the Deceased might have a tendency to default irresponsibly on her part to support the Parents financially, despite residing in the Property[11].

93.  This explanation is totally incredible, as Younger Sister also confirmed in court that the Deceased had never had any previous record of not giving the Parents monthly contribution unless “she was too poor”[12]. Moreover, given the very close relationship among the Parents and the 2 sisters, I do not accept that Younger Sister really had the concern which she said she had in relation to the Deceased’s contributions to the Parents at the material time.

94.  Moreover, I do not understand how this arrangement could achieve the alleged purpose of Younger Sister.  On one hand, she said she wanted to make sure that the Deceased would make her monthly contributions, however, on the other hand, she accepted that the Deceased was a responsible person and had had a good relationship with the Parents, and that, as aforesaid, the Deceased had not defaulted on her contribution to the Parents unless “she was too poor”.  That being the case, if the Deceased became “too poor” again and as a result was not financially capable to make any payment in any particular month, Younger Sister could not do anything about it.  The arrangement would not help.

95.  Younger Sister further explained that the arrangement was arrived at after having considered the factor of “convenience”.  In the words of her counsel:

“Regarding the cash contributions to the Parents, D gave evidence in re-examination that the convenience of the arrangement was manifested in the fact that she would be able to hand over cash contributions to the Parents on Sundays. On the contrary, the Deceased was busy with family and church commitments, as she would dedicate her weekends to church affairs.”[13]

96.  Insofar as it is said that it would be inconvenient for the Deceased to hand over cash to the Parents as monthly contributions (because she was busy during weekends), this evidence is rejected.  The truth of the matter is that it cannot be disputed that, in 2003, Daughter was studying in a kindergarten which was located near the Parents’ home, and as a result, Daughter was taken care of by the Parents every school day until the evening when the Deceased went to pick Daughter up at the Parents’ home.  It was therefore convenient for the Deceased to hand over cash to the Parents as her monthly contributions if she wanted to. 

97.  During Closing Submissions, this Court was reminded by Ms Law that when it was put to Younger Sister that the Deceased would go up to the Parents’ home every school day, she had denied the same. However, such a denial was plainly unfounded and I reject her evidence.  The fact that Daughter was taken care of by the Parents on every school day is actually consistent with Younger Sister’s case, otherwise she would not say that as a result thereof she wanted to make sure that the Deceased would pay the Parents.

98.  All in all, Younger Sister’s case on the rationale of the arrangement simply does not make sense, and must be rejected.

E4.    Younger Sister’s case on her entitlement of evicting the Deceased

99.  As quoted in [14] above, it is Younger Sister’s pleaded case that the Deceased’s family had been allowed to reside at the Property on the strength of a bare licence which was revokable upon reasonable notice.

100.  As to when Younger Sister could theoretically exercise her right to revoke such a bare licence, she stated in her supplemental witness statement that the Deceased only asked to reside at the Property for a short period of time.  She further explained in court that the Deceased was expected to move out once the latter had the financial ability to do so, for example, upon the Deceased’s sale of another landed property of hers or when the Deceased had a pay rise.

101.  However, this is quite different from what she told the court during the First Trial, when she gave evidence that the Deceased would be allowed to live in the Property so long as she would pay the monthly mortgage instalments.

102.  In my view, such a discrepancy shows that Younger Sister’s case is incredible.  It is something that was made up by her.  The fact of the matter is that theoretically Younger Sister could not evict the Deceased’s family, because Younger Sister has never been the beneficial owner of the Property at all.  In law, it was she who was a bare licencee.

103.  I am aware that there is no evidence as to when Younger Sister had to move out of the Property.  That is natural and totally understandable, because of the very close relationship between the 2 sisters. Further, it is more likely than not that Husband did not have any say on this matter because it was always the Deceased who was making the call in the family. 

E5.    The “down payment”

104.  Younger Sister’s evidence on “down payment” is also quite hopeless and has exposed her incredibility.

105.  In her pleading, she pleaded that pursuant to the Alleged Common Understanding and/or Intention, she would pay “down payment” of HK$80,000 upfront and from her own resources for the purchase of the Property.

106.  In her witness statement, Younger Sister alleged that she had reached an agreement with the Deceased before the execution of the SPA on 8 August 2003 that:

“除了向銀行申請按揭外，本人亦需要動用自己的資金約港幣$80,000元作為購入該物業的預付資金”

(emphasis added)

107.  However, the problem is that according to the SPA, the “down payment” was only HK$10,000 rather than HK$80,000.  Even if we take into account the part of the purchase price which was not covered by the Loans (i.e. the balance of the purchase price which she had to pay out of her own pocket upon completion), the total amount was only HK$30,000 (HK$600,000 – HK$570,000). 

108.  When Younger Sister was confronted with this matter, she explained that the problem arose from her unfortunate choice of words.  What she actually meant was that she had spent HK$80,000 as initial costs for the purpose of the Property, which included not only “down payment” but also renovation fees, stamp duty, legal fees, agency fees and other miscellaneous fees.  She also alleged that “預付資金” should mean “預算” (“budget”).

109.  I reject Younger Sister’s evidence in this regard as her explanation is totally incredible.  No matter whether it is “down payment” or “預付資金”, these are simple terms which should not be difficult to understand, especially if we take into account her academic qualification.  I find that she knew what these terms meant when she filed her pleading and when she signed her witness statement. In this regard, references should also be made to 2 matters:

(1)     When Younger Sister referred to “down payment”, she used the word “upfront” to describe this payment.  This reinforces my view that she knew what this term meant.  Apparently, this is not an amount of money to be “reserved” for future expenses for the purchase of the Property.  This is also contradictory to the term “預算”;

(2)     Paragraph 4(d) of the Re-Re-Amended Statement of Claim reads: “[Husband] and the Deceased duly made the upfront payment of HK$30,000 for the purchase of the Property”.  By paragraph 4(5) of the Re-Re-Amended Defence, Younger Sister pleaded that “Paragraph 4(d) is denied.  […] the down payment of HK$80,000 (and not HK$30,000 whether as alleged or at all) was paid solely by [Younger Sister] […]”. 

In my view, the above shows that Younger Sister was not harboured under any misunderstanding.

110.  The fact that the actual down payment was not HK$80,000 as Younger Sister alleged means that she was making her evidence up.

111.  Even if we take it that the sum of HK$80,000 actually means not only “down payment” but also renovation expenses etc (which I do not accept), this cannot salvage Younger Sister’s case.  This is because, according to her case, the agreement with the Deceased to pay HK$80,000 was reached before the execution of the SPA.  At such an early stage, it was extremely unlikely that Younger Sister had already known how much would have to be spent on renovation expenses.

112.  It should be made clear that my rejection of Younger Sister’s evidence above does not necessarily mean I am bound to find that the Deceased had paid for the aforesaid expenses.  This is because Husband’s evidence is also unhelpful in this regard.  Further, neither party could produce any satisfactory documentary proof in support of the payments.  I therefore cannot rely on this “down payment” factor when I decide the ultimate issue of this re-trial.

E6.    The Guarantee

113.  It is undisputed that both the Deceased and Husband acted as guarantors for the BOC Loan.

114.  However, according to Younger Sister’s evidence:

(1)     She actually did not require to have any guarantor for the purpose of obtaining the BOC Loan;

(2)     Be that as it may, she asked the Deceased to be her guarantor, so as to make sure that the Deceased would pay for the mortgage repayments;

(3)     She did not ask Husband to be a guarantor at all, and she did not have notice about him acting as such without her consent at the material time.  It was the Deceased who asked Husband to be a guarantor as well.

115.  Younger Sister’s evidence are clearly incredible.

116.  Firstly, her evidence that she could have obtained the BOC Loan without the Guarantee is contradictory to documentary evidence.  In the Mortgage Loan Facility Letter dated 3 October 2003, it was expressly provided that the provision of the Guarantee was a condition precedent for the grant of the BOC Loan:

“4. Conditions Precedent / Collateral Securities:

[…]

· Joint and several Deed of Guarantee duly executed by Yeung Ho Wai & Kwan Kwai Lin […] for HKD305,000.00.

[…]”

117.  Secondly, Younger Sister’s alleged reason for asking the Deceased to be a guarantor does not make sense at all because:

(1)     As discussed, there was no reason for Younger Sister to be concerned about the Deceased not repaying the mortgage instalments unreasonably and irresponsibly, particularly when they were so close;

(2)     Realistically, if the Deceased really did not pay the monthly instalments, Younger Sister could have done it;

(3)     Making the Deceased a guarantor cannot achieve Younger Sister’s alleged purpose because, as Younger Sister admitted, the Deceased did not default in making monthly contributions to the Parents in the past unless she was really in financial difficulty.  Therefore, if the Deceased defaulted in paying monthly mortgage instalments, it would most probably be due to the same reason, and in such a case whether the Deceased was made a guarantor or not would make no difference.

118.  Thirdly, Younger Sister’s evidence is contradictory – on one hand, she said that she did not consider asking the Deceased to be a guarantor a significant matter at all, but on the other hand, she alleged that she needed the Guarantee so as to ensure that the Deceased would honour her obligation for monthly mortgage repayments.  She also incredibly alleged that she was eager to make sure that the Deceased would carry on to make monthly contributions to the Parents by such a means.

119.  Fourthly, if there was no requirement from anyone (the bank or Younger Sister) that there should be a co-guarantor, there is no reason why the Deceased would ask Husband to be a guarantor at all.

120.  In relation to Younger Sister’s evidence that she did not know at the material time that Husband acted as a guarantor, I find that at least one of the followings must be true:

(1)     It is a lie – it is unimaginable that BOC did not inform Younger Sister that 2 guarantors were required, and it is equally beyond imagination that Younger Sister did not know at the material time that Husband had executed the Guarantee;

(2)     Younger Sister could not care less on the Mortgage transaction and the related requirements at all because she was only a nominal owner in the sense that she did not have beneficial interest in the Property at all.  She simply left everything to be dealt with by the real owner – the Deceased.

121.  In my view, the matter concerning the Guarantee is straight forward:

(1)     This was a prerequisite and condition imposed by BOC, probably because of Younger Sister’s weak financial ability given her unstable income at the time;

(2)     The Deceased and Husband had agreed to act as guarantors because at least the Deceased was the real beneficial owner of the Property.

E7.     Utilities

122.  There is no dispute that it was the Deceased who paid all the utilities bills in relation to the Property at all material times.

123.  As aforesaid, I am not prepared to attach weight on this fact, because in my view, this can also be consistent with the situation where Younger Sister is the beneficial owner of the Property.  After all, the Deceased’s family had been living in the Property.

124.  However, what is also undisputed is that all the utilities accounts were registered under the Deceased’s name. In this regard, Younger Sister’s evidence is that the Deceased proceeded with the registrations without seeking prior approval from her (Younger Sister).

125.  In my view, this undisputed factual matter clearly supports Husband’s case that the Deceased (but not Younger Sister) has always been the beneficial owner of the Property, particularly when, according to Younger Sister, the living arrangement as agreed between the parties was originally intended to be a short term one.  If the Deceased considered that Younger Sister was the real owner of the Property, I do not believe that the Deceased would have done the registrations without discussing with (or at least informing) Younger Sister.

126.  The fact that the parties had never discussed about the registration matter even after they had moved in and lived together for so long further reinforces the aforesaid finding.

127.  As for Younger Sister’s evidence that she has taken up the payment of the utilities expenses from July 2022 onwards, I do not think any weight should be attached thereto because this happened after the handing down of the First Trial Judgment by which Younger Sister was found to be the beneficial owner of the Property.

E8.    Building renovation expenses

128.  There is no dispute between the parties that the Deceased had also paid for the Property’s share for the renovation expenses for the entire building.  Their difference is only in respect of the amount paid.  Husband alleged that such contributions amounted to HK$100,000, whereas Younger Sister said the Property’s share was only a few thousand dollars.

129.  No matter whether the sum was HK$100,000 or a few thousand dollars only, this undisputed fact on contribution would still be a material matter which shows that it was the Deceased rather than Younger Sister who has beneficial interest in the Property.  It goes without saying that making such contributions must be the obligation of the real owner of the Property.  If the Alleged Common Understanding and/or Intention (as alleged by Younger Sister) ever existed, there is no reason why the Deceased would have assumed the responsibility of making such contributions herself without even informing Younger Sister.  On this matter, it should be noted that Younger Sister did not even know about the exact amount of such contributions at the material time – she only found that out in around August 2025 by asking the management office.

E9.    The Deceased’s representations to Cheung and Ho

130.  Husband’s case is also supported by the evidence of Cheung and Ho.

131.  Cheung told this Court that, in around 2006 and 2007, the Deceased had told her at least once that:

(1)     The Property actually belongs to the Deceased and Husband;

(2)     Younger Sister is only a legal but not beneficial owner thereof;

(3)     Such an arrangement had been made because only Younger Sister (but not the Deceased/Husband) was eligible to apply for the HKHA Loan.

132.  Ho also told this Court that the Deceased had told her that the Deceased would like to transfer the Property to Daughter after the latter had grown up and that since the Deceased and Husband were not eligible to obtain Government subsidy for the purpose of purchasing the Property, they had purchased the same under the name of Younger Sister.

133.  As aforesaid, both Cheung and Ho are independent witnesses.  There is no evidence that they knew each other at any time even though both of them were good friends of the Deceased.  I have found them to be honest witnesses whose evidence should be accepted.  I have no doubt that the Deceased had indeed told them about the purchase of the Property as they explained.

134.  As Younger Sister confirmed, the Deceased was not the sort of person who would talk irresponsibly (信口開河).  I therefore hold the view that the Deceased would not falsely claim to be the owner of the Property in front of her friends.  Further, it seems to me there was no need for her to do so.

135.  Younger Sister stated in her evidence that she guessed that the Deceased claimed to be the owner of the Property because she wanted to save the face of Husband.  This is pure speculation and I do not accept this allegation.

136.  My view is that the Deceased was simply telling the truth to her good friends.  In fact, borrowing the name of Younger Sister to purchase the Property is improper to say the least in the circumstances of the present case and it is more likely than not that the Deceased knew well about this.  I do not think the Deceased would create a story like that.

E10.  Keeping of passbook to the BOC bank account

137.  It is undisputed that BOC received the monthly mortgage instalments from a BOC bank account opened under the name of Younger Sister (“the BOC Mortgage Account”), and that a passbook had been issued by BOC for this account (“the BOC Mortgage Passbook”)

138.  It is also undisputed that the BOC Mortgage Passbook had always remained inside the Property, and that Younger Sister did not take it away when she moved out in 2007.

139.  In the First Trial, Younger Sister gave evidence that:

(1)     The BOC Mortgage Passbook was always kept by the Deceased;

(2)     The reason why the BOC Mortgage Passbook was kept by the Deceased was that if the amount deposited by the Deceased into the BOC Mortgage Account was insufficient, the Deceased would have to deposit more money into the said account. 

140.  However, Younger Sister changed her evidence at the re-trial:

(1)     She denied that the BOC Mortgage Passbook was kept by the Deceased;

(2)     She said the said passbook was only placed in a drawer in the Property;

(3)     She explained that she had given the answer to the question relating to the retention of the said passbook in the First Trial too quickly;

(4)     Having said that, she agreed that the reason which she gave in the First Trial (as referred to in the preceding paragraph) is still correct.

141.  In my view, when denying the fact that the BOC Mortgage Passbook was kept by the Deceased, Younger Sister was trying to avoid giving an answer which she thought might be favourable to Husband’s case.

142.  This change of evidence further reinforces my view that Younger Sister is an incredible witness. 

143.  Further, in my view, the Deceased’s retention of the BOC Mortgage Passbook supports Husband’s case that the Deceased but not Younger Sister was the beneficial owner of the Property.

144.  Younger Sister also explained in her evidence at the re-trial that while she appreciates the importance of the BOC Mortgage Passbook, the significance thereof was not as important as title deeds because the passbook could be easily replaced.  With respect, this is quite a desperate explanation.  There was no need to think about replacement if Younger Sister took the passbook with her when she moved away from the Property.  However, she chose not to do so, despite the fact that she had taken nearly all her other personal belongings away.

E11.  Questions on the disposal of the Property after the Deceased’s demise

145.  According to Husband’s evidence, he had verbally requested Younger Sister to transfer the Property back to him after the demise of the Deceased.

146.  Younger Sister disagreed with Husband’s allegation.

147.  Even when it was put to her during cross-examination that Husband had asked her in 2014 how she would like to deal with the Property, she denied the same, and alleged that Husband would never talk to her about such a matter verbally. 

148.  However, this is plainly contrary to her evidence given in the First Trial, in which there was the following question and answer:

“官: 而家向妳指出，就係因為你哋係傾點樣將層樓轉畀原告人關先生，然後所以先至有323 ，其實324 頁開始嗰段嘅WhatsApp 對話，妳同意定唔同意？

答：    13 年冇講過， 14 年先至有講過，口頭佢就成日問我層樓點樣處理，點樣處理。”

(emphasis added)

149.  It was only after Younger Sister was shown the relevant part of the transcripts of the First Trial that she admitted that what she said in the First Trial was correct.

150.  Younger Sister explained her aforesaid denial at the re-trial by blaming Mr Ma for asking her a different question – she said Mr Ma was asking about Husband’s requests to transfer the Property to him rather than disposal of the Property generally.  I reject this explanation.  Although Mr Ma did ask her about Husband’s requests of transferring the Property, that was asked sometime ago, and Mr Ma had asked about some other matters (including the making of wills and addition of Daughter’s name as a co-owner of the Property) before asking her about “disposal of the Property”.  There is simply no room for Younger Sister to say that she had misunderstood Mr Ma’s questions.  Indeed, I find that Younger Sister was very alert during the entirety of the cross-examination and even argued back during the process. There was no way that she would miss what was asked of her.  In my view, it was just yet another desperate attempt on her part to explain away her evidence which was made up along the way.

151.  When this Court enquired further why she denied that Husband had asked her how she would deal with the Property, Younger Sister said she had forgotten about the matter.  Again, this is incredible.  Although the conversation took place back in 2014, it is evident that Younger Sister could still remember this when she gave evidence in the First Trial (in October 2021).  I do not believe that she would then forget about such conversations (which happened repeatedly according to her) at the re-trial.

152.  On the basis of Younger Sister’s own admission that Husband had asked her repeatedly how she would dispose of the Property, I also find that this must be a matter which shows that the Deceased rather than Younger Sister was the beneficial owner of the Property.  If Younger Sister was the real owner of the Property and the Deceased’s family was only residing at the Property with the approval of Younger Sister, there was no way (and no need) that Husband would ask her how she would deal with the Property.  It should be borne in mind that there is no evidence that Younger Sister had ever told the Deceased or Husband while the Deceased was still alive that Younger Sister was minded to give Daughter the Property as a gift.

E12.  WhatsApp messages between Husband and Younger Sister

153.  After the demise of the Deceased, there had been direct WhatsApp communications between Husband and Younger Sister on 11 November 2014, 15 June 2015, 4 August 2015 and 24 November 2015 respectively. 

154.  In my view, the messages exchanged on 11 November 2014 and 15 June 2015 are particularly useful for finding the truth because it can be seen from those messages that Husband and Younger Sister were still on good terms at the time (even though Younger Sister denied it at the re-trial, which I have found to be incredible – see Section C6 above). 

155.  In relation to the messages sent on 24 November 2015, the Court should be more careful in terms of accepting what were said to be the truth because by then the parties were not of a relationship which was as good as before.

156.  I will analyse those messages in turn below.

E12.1     Messages on 11 November 2014

157.  On 11 November 2014, Husband and Younger Sister had had the following WhatsApp communications:

Younger Sister		Husband
你月供最多可以幾多錢? 例如四千五千
		差唔多 我有呢個想法 因為直接自己供樓 点都唔會用左去 第二處
但我怕你之後，又亂用錢欠債，大耳隆迫你賣樓！咁你又無地方住，剩餘D 錢租2年都無曬啦！ 所以風險好高
		黐線啦
你知你同BB，洗慣吃慣，所以大家姐才堅持上班賺錢
		d錢去晒層樓ite 度 仲邊會再亂洗呀 慳d 套d錢
你之後可以賣出300幾萬架
		係你睇住 黐左 唔使住咩 我40幾啦 冇嘜銀行肯借錢比我 我當係儲錢
當年2006，家姐聽地產游說，要賣金寶，取錢，等樓價跌，再買
		我唔會賣金寶架 我要住 再賣，我已經冇能力啦
當時我反對，向她說，妳得一層樓住，不可冒險
		同埋，宜家最緊要係亞呈入大學 咁宜家咁做，亞呈一定有筆錢留比佢讀書啦
好彩金寶個名係我，家姐才聽我講，無賣咋
[…]		[…]
你還citi bank幾多? 咁可能月供只做到四千了
		2千幾 明年中還完
咁可以明年中，整金寶才底

158.  Before I analyse the contents of the above conversations, I should resolve a factual dispute which concerns the background of the above WhatsApp messages first. 

159.  According to Husband, the above conversation took place because he had verbally requested Younger Sister to transfer the Property back to him, and he would repay the mortgage instalments himself.

160.  Husband further explained that the parties had also considered to have the Property re-mortgaged to the bank, so that more cashflow could be obtained.

161.  However, Younger Sister disagreed.  She alleged that the real background was that the parties were discussing to enter into a real sale and purchase transaction, so that the Property could be sold to Husband.  She also said that she was minded at the time to sell the Property to Husband at a price which was much lower than the market price (“賤賣”).

162.  In my view, Husband’s explanation clearly makes much more sense, whereas Younger Sister’s evidence in this regard is incredible.  As Younger Sister emphasized, Husband was very bad in terms of financial management, and as a result it was the Deceased who had to shoulder the burden of financially supporting the family.  Objectively speaking, the evidence shows that Husband would not have the financial ability to purchase the Property from Younger Sister at the material time.

163.  Husband’s explanation is also supported by the messages above, for example, “直接自己供樓”, “套d錢”, etc.  

164.  Moreover, if the parties were talking about selling the Property to Husband, he would not be referring to having reserved a sum of money for the purpose of paying off university tuition fees for Daughter.  Again, this is more consistent with Husband’s version of events.

165.  Husband’s explanation of the background of the above messages is also supported by their further messages exchanged on 15 June 2015 (see Section E12.2 below).

166.  On the other hand, Younger Sister confirmed in Court that she had never told Husband about her alleged plan to sell the Property to him at a very cheap price.  That being the case, the messages would not make any sense.  For example, Younger Sister would not need to worry about Husband selling the Property immediately because he would not do so if he simply did not know that he would reap a profit out of the sale (by reason of the cheap price offered by Younger Sister).  If Husband purchased the Property at market price from Younger Sister and then immediately sold it at market price, he would not make any profit.

167.  Having resolved the above factual dispute on the background, I now proceed to analyse the content of the WhatsApp messages.  In my view, the above conversations clearly support Husband’s case that it is the Deceased rather than Younger Sister who is the beneficial owner of the Property.

168.  The most obvious indication came from Younger Sister’s assertion therein that the Deceased was persuaded by estate agents to sell the Property in 2006 (“當年2006，家姐聽地產游說，要賣金寶，取錢，等樓價跌，再買”).  If the Deceased was not the real owner of the Property, how would she ever consider selling the flat?

169.  If the abovementioned line is not enough, Younger Sister’s further explanation must put the matter beyond doubt when she said “好彩金寶個名係我，家姐才聽我講，無賣咋”.  This apparently shows that the Deceased had the ultimate power to decide whether to sell the Property.  This is only consistent with Husband’s case but not Younger Sister’s.  It is also clear that Younger Sister was emphasising that she only held the Property “in name”.

170.  Younger Sister had tried to explain these messages of hers at the re-trial.  However, with respect, the more she tried to explain, the more she demonstrated that she is an incredible witness who would be willing to say anything in court so long as that might (in her view) assist her case, even if such explanations are totally incomprehensible and unreasonable.  For example, she stated that it was the Deceased who attempted to persuade her in selling the Property, just that she had refused.  This is simply not the meaning which the messages conveyed.

E12.2     Messages on 15 June 2015

171.  On 15 June 2015, Husband and Younger Sister had had further WhatsApp communications as follows:

Younger Sister		Husband
		係呀金寶轉名何時處理??
等BB申請到公屋後，才轉BB名
		轉名後d錢由你處理 金寶我當新買家自己供 上次同你傾左 你仲問我d錢要入你名麻!! 忘記了 金寶用我名義由我自己供番 所以當我係新買家 買金寶比我[14]
都係將來直接轉比BB,較為好
		吓 上次傾左 你仲話我最多供4000 ??
你份salary買不起
		供4000禾 我月薪14000
現在層樓值$380萬，首期38萬, 月供$13000 問了銀行 將來都係留比BB算了
		即係你買比我都係要380萬??[15] 我自己住唔會買比人[16] 我自己都會加呈呈名 咁你話過你結婚前、會立平安紙 立咗未 我怕你突然有事、世事講唔埋 算了、你唔想就算啦
若是你再結婚,再生小孩,金寶 就不是BB全部擁有。 所以, 都係將來直接轉畀BB
		姐夫唔會迫你 你諗得太多了 算了、你唔想就算啦

172.  There was also an audio message by Husband at the end of the aforesaid conversation.  There is no dispute that he said in the message that:

“不過講返轉頭，如果間屋嘅話，咁你自己有好多諗啦，你諗我好多嘢啦，咁但係你，啲實在啲㗎啦，就係，呀，你之前結婚，之前你已經提話即係如果同Benson結婚之前一定會立平安紙嘅。咁其實係咪已經做咗呢？係喇，咁即係如果唔係嘅話，咁有咩事嘅話，即係你有咩事情發生，咁到期時Benson，嗱我唔知吖，即係變成咗到時佢去處理嘅時候，咁其實到期時就唔係你所諗嗰樣嘢囉。係呀，咁你又好似實牙實齒講到我未發生嘅嘢就跟住就會唔留啲嘢俾呈呈，咁呈呈係我個女嘅時候，我點會唔諗呢啲嘢吖？咁你做阿姨嘅都諗我唔覺得呀，我唔會留俾，留啲嘢俾呈呈囉….咁你結婚之前你講過呀立平安紙，咁我唔知你做咗未囉，咁可能你真係太忙...只係我擔心到期時你嘅，即係你同我講，又或者你自己一心一意想做呢樣嘢嘅時候，咁到期時真係有啲意外...到期時間屋其實阿Benson可以任由處理都得，咁到期時就唔係你所諗嗰樣嘢囉。咁又或者唔一定係Benson自己本身，即係佢咁諗囉，咁而係呀Benson屋企人咁當講多一句半句，咁都已經有唔同囉。咁，我，嗱，我唔係刻意想講Benson佢唔想，唔係咁嘅意思，我只係會希望確保間屋其實係去返呈呈嗰度。其實我係諗住轉左名之後呢，跟住我就會即刻落一張附件，附件就係呈呈夠18歲嘅時候，落個附件呢係唔會打釐印唔會剩架，我會即刻落個附件，就話呀呈呈18歲嘅時候呢，佢就會呀自動承繼埋即係呀呢間屋㗎啦咁樣。係呀，咁我就會覺得一了百了啦，因為我都唔知自己個身體可以支撐到幾耐...如果真係越嚟越差嘅話，咁因為已經打算寫平安紙俾佢，咁就隨時間屋就係佢㗎囉，咁18歲就係佢，咁佢就唔使驚囉，係呀，咁但係你嗰邊如果無立平安紙嘅時候，咁我就唔知喇…”

173.  I hold that most of the above messages support Husband’s case that Younger Sister is not the beneficial owner of the Property, but instead, the Deceased is.

174.  Firstly, it can be seen that Husband asked Younger Sister again, on his own initiative, when she would deal with the “transfer matter” (“轉名”) as if it were a matter of course.  In my view, that shows that he truly believed at the time that it was his entitlement.

175.  Most importantly, Younger Sister did not question Husband’s entitlement in raising that question.  She only said that she would do the transfer later to “BB” (the nickname of Daughter).  In a way, she had acceded to Husband’s request.

176.  Secondly, Husband then said that the money would be dealt with by Younger Sister and that he would “treat” (“當”) himself as a new buyer and pay off the mortgage instalments himself.  These support Husband’s case that he was not a real buyer, and that the transfer were not going to be a real sale and purchase transaction.  Indeed, if it were a genuine transaction, it would be strange to the extreme for Husband to say to the real vendor the most obvious that she would handle the money herself.

177.  Moreover, these lines further support Husband’s case that he would get a mortgage from the bank so as to borrow money for the purpose of saving for Daughter’s university studies in future, and that the “money” referred to in the message was the loan to be obtained from the mortgagee.

178.  Again, upon reading Husband’s message, Younger Sister did not query what he said, but just insisted to transfer the Property to Daughter in due course.

179.  Moreover, it should also be pointed out that the above conversation shows that Younger Sister was telling a blatant lie in court when she gave evidence that she had not decided which one of her landed properties would be gifted to Daughter. 

180.  Thirdly, the audio recording made by Husband further strongly supports his case.  In gist, he was urging Younger Sister to make a will before she got married because he was worried that the Property would fall into the hands of her newly wed husband (Benson) if she passed away unexpectedly.  It is clear that unless the Property was indeed beneficially owned by the Deceased, Husband had no reason to have the abovementioned worry.

181.  While Younger Sister admitted that she did agree with Husband that she would make a will before she got married to Benson, she explained in court that that was only because, in her view, the Property was her pre-marriage asset, and therefore she would like to keep it for her and the Parents’ own use when she and they got old to the exclusion of Benson[17].

182.  With respect, this must be something that Younger Sister made up in the witness box which does not make any sense.  How could she preserve the Property for her own use by making a will which, at the risk of stating the obvious, would only take effect upon her own demise?

183.  Furthermore, if the Property indeed belongs to Younger Sister beneficially, there was simply no need for her to tell Husband what she was going to do with it.

184.  I have not lost sight of Younger Sister’s message which referred to the market price of the Property at the material time (HK$3.8 million), and stated that Husband could not afford to purchase the Property with his monthly salary of HK$14,000.  Reading that message in isolation, it may suggest that Younger Sister was the real owner of the Property because otherwise it would not make any sense for her to mention about Husband’s financial capability to purchase the Property.  However, it is noted that when Husband sought clarification as to what Younger Sister’s message meant, she did not answer directly, but only kept saying that she would transfer the Property to Daughter directly.  In my view, her message is at best vague.

185.  Another possible interpretation of Younger Sister’s aforesaid message is that she was saying that Husband’s plan to have the Property transferred to him and then for him to obtain a mortgage loan does not work, because he would not be able to repay the monthly instalments if a large amount of loan was obtained. This seems more consistent with what the parties had been discussing in the messages.

186.  It is noteworthy that Husband admitted during cross-examination that he, by virtue of the aforesaid WhatsApp messages, was negotiating with Younger Sister on the purchase price of the Property.  If they were really doing that, then of course it would be a factor which may show that the Property could not belong to the Deceased in the first place.  However, I do not think Husband’s interpretation of those messages is correct (even though he was a party to those messages), and I would place no weight on such an interpretation.  This is because, from the messages, it can be seen that Husband was only querying why the Property would be sold to him at HK$3.8 million.  He did not ask for a cheaper price, nor did he make any counter-offer.  It is therefore puzzling as to why he would admit that they were negotiating.  In my view, this Court is entitled to interpret the messages itself by reference to the wordings used, and disregard Husband’s interpretation, because Husband was not referring to any other evidence but only the messages themselves when he gave the aforesaid interpretation. 

187.  All in all, I find that the messages exchanged between the parties are generally speaking much more consistent with Husband’s case.

E12.3     Messages on 4 August 2015

188.  On 4 August 2015, there were the following messages exchanged between Younger Sister and Husband:

Younger Sister		Husband
		安琪、我想知戶口10幾萬提了出來、未有通知我、有事要急用嗎?? 請你有空回覆我
係呀! 你取埋$1000幾港紙，close account吧 IVE 1年學費$51000，讀2年要10萬，我 keep，到呈入不到大學，就讀IVE
		👌 到時佢入大學、你負責10萬啦 讀大專都係啦
都係家姐D錢，入到大學就4年，唔夠到時要呈自己借2年loan
		佢自己負責仲好 等佢唔洗倚賴其他人 亞媽腸胃唔好 叫佢食多d溫既食野
呈要有自己責任，既然家姐剩下只供到2年，她也自己也要背架啦
		最緊要佢搵到食
舅父話完媽，她才肯去照胃鏡
		佢最近想讀日文 我覺得好 學多一種語言
你有時間就清潔間屋，比多些陽光入
		👌
開抽濕機
		呈呈同學謝穎珊話我屋企養狗、覺得好清潔
我攪掂呈條頸先、衫underwear，日文理不到了
		有呀……不過淨係响廁所 講聲你知 呢d都要佢自己好想學、到時先講 你同benson……ok嗎?
呈話狗尿漏入地專，有味
		係鬼……狗狗有味……係要清佢地耳朵 耳朵唔清潔會好大味
要用漂白水拖, 隔幾日再拖, 慢慢拖走狗尿
[…]		[…]

189.  Younger Sister submits that the above messages demonstrate her keen interest in the hygiene of the Property, and that they are consistent with her claim to the beneficial interest in the Property, for otherwise, it is said, she would not be interested in the hygiene of the Property.

190.  I do not accept this submission. 

191.  It can be seen from the messages that the parties were still on good terms at the material time.  In my view, the messages only show that Younger Sister was keen to offer her advice to Husband on the upkeeping of the Property.  This is totally understandable, given there no longer was any grown-up lady in Husband’s family.  Since Younger Sister was very close to the Deceased, it was completely natural for her to be keen to give her advice on hygienic matters as a way to take care of Husband’s family.

192.  Apart from the above, I take the view that there is something else one can gather from the above messages.  It is this: At the material time, there must have been a clear understanding between Younger Sister and Husband that the former would assist the latter to manage his finances, so as to make sure that Daughter would have some funds for her tertiary education.  This is in fact consistent with the overall evidence which this Court has heard, namely, that Husband is not a person who is good at finance management, and that he would tend to overspend.  On the other hand, it is also evident that Husband knew about his own problem, and as a result, given his trust on Younger Sister, he readily accepted what Younger Sister did to the joint account (i.e. to withdraw the entire fund (apart from HK$1,000) from the joint account).  This in fact also explains why Husband was content with not taking any court action against Younger Sister for the recovery of the Property for such a long time even though she refused to transfer it back to him after the Deceased’s passing.  In addition, it explains why Younger Sister refused to transfer the Property back to Husband upon the demise of the Deceased – this is because, as shown by various messages quoted under Sections 12.1 and 12.2, Younger Sister worried that if the Property fell into the hands of Husband, it would be sold or would somehow be disposed of without reserving any money for the tertiary education of Daughter.

E12.4     Messages on 24 November 2015

193.  Younger Sister and Husband further conversed via WhatsApp as follows on 24 November 2015:

Younger Sister		Husband
你以後不要騒擾方小姐
		純粹關心你
方小姐已好憎你，用盡家姐D錢
		並冇其他意思 我講完就算
方小姐質問，仲有20萬，你找完家姐債務，仲剩幾多?
		佢是否憎我﹑佢既事 你唔洗理了
剩下比番我，將來交BB大專學費
		你唔洗理了
你咪又吞，去玩車 仲夠膽向方小姐伸用4萬整車和比架車比BB 簡直多餘 咁以後BB睇醫生，你比番錢我，昨日開始計，$350
		[voice message] account no 遺產承辦人係我﹑我就有權去處理 你之前攞個11萬 都冇問我啦……… 法律上係你錯 所以你話吞 你可以去法院拉我
我以前唔計，係因為我仲信你。 但你又識女人﹑去旅行﹑玩車﹑玩狗﹑買到全屋都係東西! 忍無可忍 怪不得Kim姐一開始已話你縮骨，只是洗女人錢 點都唔夠你2次負債，用盡家姐D錢 + 保險金
		[voice message]
你現在仲用9萬，你有沒面，D錢一定留比BB 識了個女人，仲扣BB零用，只是顧著自己開心，犠生個女
		[voice message]
個女係你，你就縮骨唔理唔比錢 係我地全部頂你唔順
		[voice message] 縮骨??
BB都好憎你，call BB 朋友，你自己把金寶攪到污穢，BB當然不想回家 你仲要騷擾BB朋友
		自己煮比呈呈食 縮骨 載呈呈返學 ??
我上一次金寶，就病一次 你間屋超多菌
		呈呈中一$30飯 飯錢 宜家每日$50飯錢 我扣去錢 ??
你現在咪又想卸比我囉! 我不會像家姐咁好人
		你話我扣呈呈錢嘛 卸咩呀 呈呈手足口………腸胃炎 你又乃d狗 我 縮骨就唔洗自己做啦………
你用了9萬，BB日常開支，你唔用你D錢，你就扣家姐強積金 你仲有沒有面做人父親 你連一個女也唔想養!
		叫人做仲好啦…… 覺得我咁唔掂………總有一日會攪出大禍架 自己食番架 你不停講 麻睇下有冇啦………
我左慳右慳，比錢BB拆骨買衫供樓養媽 你，一個嘆樣，你害死家姐，我一個要付多1萬 你總有面去享受，玩女人玩狗
		天會收我嘛 享受咩
全部拜你所作所為
		凌晨1-2点响街度 處理呈呈情緒 好好玩呀 咁叫享受呀
家姐覆發時，話過你，從來無養過她們2母女 係你唔同家姐一致教法，攪到BB咁
[…]		[…]
總之以後，你過番全部BB睇醫生錢比我 你賣車都要攪掂 賣狗賣車
		關你咩事 你唔係淨係理亞呈咩……… 我既野 任何人都唔關架 將來亞呈覺得我壞 麻壞啦………
以前，家姐話你自己搵自己洗 現在家姐死了，你仲係自己搵自己洗 你有沒有腦袋，現在仲要揸車!
		都唔關你事禾 你咁同我傾
以後，我叫謝太開收據，你立刻過數比我
		你都唔會信我架 之前﹑你話你負責架 拆骨既事………係你主意 要付……… 你自己比啦………
$1300一次 你養車玩女人玩狗，玩得咁享受! 你一定要付
		你唔想負責呀
你個女醫藥費
		我可以keep 住上一句說話 我保法律追究權利 什麼玩女……… 拆骨………係你主意
係你不負養個女既責任
		謝生有冇行醫執照呀 冇………我可以追究 佢………謝生有冇行醫執照先 同埋………拆骨………係你主意 我冇同意過
你唔付，就立即搬出金寶，但個女既生活費，你一樣照付 搬走埋你D狗
		[voice message]
你連BB手骨痛，都推三推四， 可見你完全無良心 當2母女唔係人 我唔收你租，你仲要我付醫藥費! 你大不了咪搬走，你上次都係咁想，帶埋狗 又話以後唔搵我 + 我媽 昨日又係唔想理BB，卸個責任比我 我現在又病，藥費你都唔洗比 你claim BB $120000 單親免稅額 你差不多不用交稅 我又要供樓﹑買衫比BB 現在係我要討回公道   你簡直唔係人   我仲要獨力撫養我媽   你有本事立即搬走 醫藥費用你都唔比 你正確係賤人
		我淨係為自己﹑唔理呈呈既話﹑我就唔洗將choco 比人啦……… 今早已經傾好左 你仲我係賤人 d野都要一步步黎架
一早就不應該接3狗回來
		有一隻係信義妹姐架 4yrs已經好難有人要啦……… 一直搵緊人養佢呀
信義會，害死我家姐 我會call 愛協帶狗走
		不能禾 你咁做………我會報警
隻狗叫宏信自己接番
		不是宏信 係信義妹姐 你唔比時間我
好呀！你咪報 我係業主，差人只會聽我講 好，我姑且信多你一個月
		我住緊………
12月完前，送走所有狗
		你唔洗信呀 不能
你唔送，我自己解決

194.  Younger Sister relies on her messages “我唔收你租”, “你唔付，就立即搬出金寶” and “我係業主” and the fact that Husband did not dispute her aforesaid assertions and threats, to submit that they show that she must be the beneficial owner of the Property.

195.  Despite the fact that only 3 messages are relied on, I have quoted extensively the messages exchanged on that particular day between the parties, so as to demonstrate that, at the material time, parties were having heated disputes.  In such circumstances, the weight which should be attached to the said self-serving messages must be much limited. 

196.  Moreover, during cross-examination, this Court has witnessed first-hand how unreasonable Younger Sister could be when she was angry.  She would just say anything or even argue even though what she said was totally absurd and different from the truth.  In my view, it is more likely than not that the aforesaid messages were composed under similar circumstances.

197.  Furthermore, although I have found that Husband is generally speaking an unreliable witness, I do accept his evidence that he did not see fit to rebut each and every allegation made by Younger Sister at the time.  

198.  Hence, I do not consider that the said messages would assist Younger Sister.

E13.  WhatsApp messages between Younger Sisterand Daughter

199.  There were also messages exchanged between Younger Sister and Daughter on 10 December 2015.  As a matter of background, these messages were sent after Husband had delivered the first demand letter dated 8 December 2015 through solicitors to Younger Sister and asked for  a transfer of the Property back to him.

200.  In my view, these messages also shed light on the truth of the matter.  Their messages are quoted below:

Younger Sister		Daughter
賤人 妳害死妳母親仲唔夠，仲要害我 妳父親只想要層金寶，去玩女人玩車玩狗 你仲唔明
		[3 voice messages]
現在你父親，要告我，要攞番金寶 到佢得手，再結婚，妳就一毫子都無 大家一齊玩下去
		哦，你鬧我仲咩姐，寄律師信個個係我咩 同你爭金寶個個係我咩 我都未夠18，想同你爭，都吾夠班啦 你同我講冇用嫁 你話我冇用嫁 你鬧我一兩句，封律師信會收翻嫁咩
我爭得贏，你還有金寶 你父親爭到，你就什麼也無 我只係講事實比你知 不會用賤人大話,例如等你18歲送車比你
		佢送又好，吾送又好都吾係重點 你講事實比我聽?! 隱瞞我你就有份
賤人封律師信句句用，話要養你 拆骨錢，賤人話謝生謝太不是醫生，不付 我隱瞞你些什麼?
		拆骨個邊係我自己聽你講，你同佢講話你會付責曬我拆骨個邊d野嫁 我睇醫生，你有幫我比，佢都有比 你比買衫錢我，佢日日比零用錢我 都算打和啦 咁你爭翻金寶，你會比我，但我未夠18點攞? 你爭翻金寶，你會趕佢走，咁邊個照顧我? 你養埋我日常生活吖?
我答應時，無狗無女人無新車 你地現在，浪費錢養狗 + 用新車，攪到金寶污穢，手足口病+腸胃炎 我點解仲要節衣縮食，比金寶你地住? 18歲，妳立即工作，就立即用金寶剩下錢，買細樓。 若你不信，我也無辦法
		你e家都講明左點解要比金寶我地，你講嘅已經再吾係淨係只佢，係包括埋我
賤人一直用家姐留下强積金，養你咋! 佢自己洗佢自己份糧
		你要佢冇地方住，我吾係第一日聽，你e家係米要我未出社會，先離開社會?
係要賤人，背番自己+你, 住屋費用
		間屋係你名，但係你供曬咩? 媽咪都供左大半段 媽咪供緊個陣你有一齊供?
你唔信我，只信賤人。 咁我無辦法
		你近幾年可能有一齊供，但你係供全數咩 要係我身邊，會係我身邊照顧我個個係邊個? 我吾明點解你要搞到今時今日咁嘅地步 你都識叫我專心讀書，為我未來作打算 咁點解你e家係我f.3嘅考試期間泥煩我? 冇錯，寄律師信個個係佢，但你有必要係我考試期間同我講呢d野咩 你等我考完試先再鬧吾得嘅 你要e家咬嘅 你搵佢or自己揾我地呢邊嘅律師 我比你係到咬贏我又如何
你唔知 家姐臨走前，交托金寶一定不可以交比賤人。因為賤人巳2次大洗，用盡家姐積蓄。 另外，金寶買入既關鍵，又點解要比你地住原因，只有我 + 家姐知。
		我係個官咩 你同我講咩都冇用嫁 都係個句，我18未夠，你同我講吾好爭又好，叫我放棄都好，我肯又如何? 都吾輪到我講 哦
我只要求你，跟著賤人一起住到工作為止，你肯or唔肯?
		咁你同我講一d我吾知嘅野都傾吾到d咩嫁啦
我只向妳交代些重要野 賤人我是不再向佢講，只有律師
		咁你米同律師傾囉 咁你又搵我?? 你地要金寶就自己用法律搞
你叫你個賤人，用玩車玩狗玩女人既錢，比你去拆骨 + 買衫 + 睇醫生。
		我吾會咁早決定我未來，萬一我e家揀左，到時後悔咁邊個救我
唔係我想要金寶，係賤人想要(同女人相縮相凄)
[…]		[…]
賤人連出去用幾千元租樓也不想，唔玩車狗女人，係夠錢去租一層細些少既樓 現在賤人露出狐狸尾巴，你自己也小心D 我會爭到底，為了不被賤人得益 賤人爭到，識女人。 你隨時(尤其18歲)被佢扔出金寶
[…]		[…]
你父親個賤人，一識女人，就叫我賣金寶比佢，賤人夠奸險 我和方小姐懷疑，賤人一早有女人，現在也是在我地面前扮無 賤人哥 + 妹咁掂，點解佢地又唔出錢出地方比你住呀? 賤人又要搶金寶 點解要女家姓楊，貼比姓關既住呀?
[…]		[…]

201.  In my view, there are quite a number of messages which are indicative of the beneficial ownership of the Property.  It should be made clear that, when coming to this conclusion, I have already exercised extra caution, because by the time of these messages, it seems that Daughter and Younger Sister were not of very good relationship, and they were arguing in the messages.  Yet, I hold the view that I can safely come to the aforesaid conclusion because the messages to be referred to below are clear.

202.  Firstly, Younger Sister stated in the messages that the reason why she wanted to fight for the Property was that “唔係我想要金寶, 係賤人想要 […]”.  In my view, if she were the real beneficial owner, it would be extremely strange for her to state the above.  When this message is looked at together with other parts of the dialogue, it can be seen that Younger Sister was trying her best to defend Husband’s claim because she did not want the landed property to fall into Husband’s hands, rather than due to the simple (alleged) fact that she is the real owner thereof.  I find that Younger Sister was simply following the Deceased’s instructions (see the following paragraph).

203.  Secondly, Younger Sister told Daughter that “家姐臨走前，交托金寶一定不可以交比賤人”.  This message is totally incompatible with Younger Sister’s case.  If the arrangement in relation to the Property was as per the Alleged Common Understanding and/or Intention, such that the Deceased’s family was all along only living in the Property on the strength of Younger Sister’s permission, then why did the Deceased have to worry about the Property falling into the hands of Husband?

204.  On the assumption that the Alleged Common Understanding and/or Intention was the truth, this instruction given by the Deceased would make more sense if Younger Sister had told the Deceased the former’s plan to give Daughter the Property as a gift.  However, there is no such evidence.

205.  If the Alleged Common Understanding and/or Intention was not the truth, then the aforementioned instruction given by the Deceased would only make sense if the Deceased herself was the beneficial owner of the Property, such that upon her demise, the Property (or at least part of it) would be passed to Husband.

206.  While I am on this matter, I should also make it clear that I reject Younger Sister’s submissions that there had been a “lack of arrangements by the Deceased in relation to the Property”, as the aforesaid message was squarely such an arrangement.  It is true that the Deceased did not execute any will, Letter of Wishes, and/or written directions.  However, the very close relationship between the 2 sisters means that the Deceased was very confident that an oral instruction like what Younger Sister described in the above message would be adequate, and the Deceased must have taken the view that there was no need to worry that Younger Sister would take the Property away for her own benefit.

207.  Thirdly, Younger Sister also said that “金寶買入既關鍵，又點解要比你地住原因，只有我 + 家姐知”.  In my view, this statement is also more consistent with Husband’s case that the ownership issue relating to the Property is not a straight forward one.  If the real situation was simply that Younger Sister was the legal and beneficial owner of the Property, I do not think Younger Sister would present the matter in such a way.

208.  In relation to this matter, Daughter has given the evidence that:

(1)     Soon after the Deceased had passed away, Younger Sister had orally said to Daughter that the Property belonged to the Deceased, who had left that for Daughter;

(2)     In about early 2015, Younger Sister told Daughter during a dinner that if Husband got married again, his new wife would be able to get half of the Property;

(3)     Also in 2015, Younger Sister told Daughter on another occasion that the Property belonged to the Deceased and should not benefit any outsider.

209.  In my view, it is more likely than not that Younger Sister did not make any of the aforesaid statements to Daughter as alleged.  This is because if Younger Sister had indeed told Daughter about those matters, Daughter would not have asked the following questions in the WhatsApp exchanges: “間屋係你名，但係你供曬咩? 媽咪都供左大半段” and “媽咪供緊個陣你有一齊供?”.  Rather, Daughter would have pointed out to Younger Sister that the latter had admitted that the Property actually belonged to the Deceased. Yet, Daughter had not referred to the alleged conversation between them. Furthermore, when Younger Sister stated “金寶買入既關鍵，又點解要比你地住原因，只有我 + 家姐知”, Daughter would have referred to the aforesaid previous admissions of Younger Sister again. However, she did not.

210.  Having said that, it should be emphasised that while Husband’s case cannot be boosted by Daughter’s evidence on the conversation, that would not affect the strength of the above analysis on the WhatsApp messages.

E14.   Younger Sister’s payment of mortgage instalments

211.  There is no dispute that Younger Sister had at some stage taken up the responsibility to repay the mortgage instalments.

212.  However, there is a “dispute” as to when Younger Sister started to do so.

213.  I have put the word “dispute” in quotation because such a dispute only appeared in the defendant’s Closing Submissions, but not in the pleadings nor in the evidence. 

214.  In the pleadings, the position is actually quite clear – it is common ground that Younger Sister started to repay the mortgage only upon the demise of the Deceased, i.e. June 2013.  This is because she pleaded in paragraph 3(2B) of the Re-Re-Amended Defence that:

“The Defendant further avers that the sum transferred by the Deceased to the Defendant’s bank account every month for the purpose of paying the monthly mortgage repayment pleaded at paragraph 3(1)(e) above did not exactly amount to the monthly mortgage repayments:

(1) From on or about 5 October 2009 to 5 March 2010, the Deceased transferred HK$3,700 to the Defendant every month while the monthly loan repayment amounted to about HK$3,800. The balance was paid by the Deceased’s own means;

(2) From on or about 19 March 2012 to 4 June 2013, the Deceased transferred HK$4,000 to the Defendant every month while the monthly loan repayment amounted to about HK$3,800;”

215.  In paragraph 18 of Younger Sister’s witness statement, she also stated that:

“在姐姐楊可慧去世後，本人一直動用自己的資金支付該按揭每月還款。[…]”

216.  There is therefore no room for Younger Sister’s counsel to submit otherwise.

217.  While there is no dispute that she did pay mortgage instalments since the death of the Deceased, parties do not agree on the circumstances under which she started to do so.

218.  Husband stated that she did so voluntarily so as to help out, knowing that his financial ability was not good, but on the other hand Younger Sister said that she did so simply because the Property belonged solely to her.

219.  While this Court has found that generally speaking Husband is an unreliable witness, I am of the view that it is inherently probable that Younger Sister did in fact tell Husband that she would voluntarily help out by making the monthly mortgage repayments.  At the material time, they were on good terms, and most importantly, Younger Sister was very close to the Deceased, and she was most caring for Daughter.  There was every reason for Younger Sister to keep repaying the mortgage so as to make sure that Daughter would be able to reside at the Property.

220.  I have not lost sight of the fact that Husband’s evidence that the alleged telephone conversation between him and Younger Sister after the passing of the Deceased in which the “voluntary payments by Younger Sister” was raised was never mentioned in his witness statement.  However, I am of the view that the inherent probability of the matter should be given more weight.  Further, it would be strange if the parties did not discuss about the financial arrangement after the Deceased’s death, given it was the Deceased who had always been responsible for making the repayments.

221.  It is this Court’s finding that Younger Sister knew full well that she was not the sole beneficial owner of the Property but just a legal owner thereof, holding the same on trust for the Deceased. Therefore, Younger Sister’s case that she made the mortgage instalment since mid-2013 by reason of her beneficial interest in the Property must be rejected.

F.      BREACH OF TRUST

222.  It is undisputed that, if it is found by this Court that the Deceased was the sole beneficial owner of the Property, then Younger Sister’s taking out of the 2015 Mortgage constitutes a breach of trust.

223.  Hence, Younger Sister is a constructive trustee of the loan obtained pursuant to the 2015 Mortgage.

G.      THE RELIEFS SOUGHT

G1.    The original reliefs sought

224.  In Mr Ma’s Closing Submissions, he asked this Court to make the following orders:

Claim against the Property

(1)     A Declaration that the 2^nd plaintiff, in his capacity as the administrator of the Deceased, at all material times was and is the sole beneficial owner of the Property (or alternatively, was and is the 73.63 % (or 69.44%) beneficial owner of the Property) (“Relief (1)”);

(2)     A Declaration that the Property at all material times was and is held by the defendant on constructive trust for the 2^nd plaintiff absolutely; (or alternatively, a Declaration that the Property at all material times was and is held by the defendant on resulting trust in the proportion of 73.63 % (or 69.44%) for the 2^nd plaintiff) (or any other proportion the Court may determine) (“Relief (2)”);

(3)     The defendant do pay the sum HK$5,750,000.00 to the 2^nd plaintiff (or alternatively 73.63 % (or 69.44%) of the sum HK$5,750,000.00 to the 2^nd plaintiff) (or any other amount the Court may determine) (“Relief (3)”);

(4)     There be interest on the above sum at 1% above HSBC best lending rate from the date of the writ, up to the date of judgment, and thereafter, at judgment rate until full payment (“Relief (4)”);

Breach of Trust

(5)     An Order for all accounts and inquiries as to what has happened to the sum of HK$2,310,000.00 (as a result of the defendant’s breach of trust by taking the 2015 Mortgage), and/or as to what profit(s) (if any) has been made from the use of such sum of HK$2,310,000.00, and/or as to what is due to the 2^nd plaintiff be conducted by a Master (“Relief (5)”);

(6)     An Order that the defendant shall pay the amount found due to the 2^nd plaintiff, if any, upon taking the said accounts and inquiries (“Relief (6)”);

(7)     A Declaration that the defendant was and is holding such sum of HK$2,310,000.00 (including its traceable proceeds and/or any other income and/or profits as derived therefrom) as constructive trustee for the 2^nd plaintiff (“Relief (7)”);

(8)     An injunction to restrain the defendant, whether by herself, her servants, agents or otherwise howsoever from disposing of or otherwise dealing with the said judgment sum as stated in sub-paragraph (3) above (or the said sum of HK$2,310,000.00) (or any other amount the Court may determine), including the traceable proceeds of the said sum (“Relief (8)”);

The defendant’s Wrongful Occupation of the Property

(9)     The defendant do pay mesne profits at the agreed rate of HK$9,000 per month since 15February 2023 until the date of the order to be made herein (or until the full payment of the sum HK$5,750,000.00 to the 2^nd plaintiff) (“Relief (9)”);

(10)     The defendant do pay all the following rental costs and expenses of alternative accommodation(s) for the period from 15 February 2023 until the date of the order to be made herein (or until the full payment of the sum HK$5,750,000.00 to the 2^nd plaintiff):

(a)     The monthly rental(s) of HK$11,500 for the period from 15February 2023 to 31 July 2023, totalling HK$63,250.00;

(b)     The monthly rental(s) of HK$8,800 from 16 July 2023 onwards until the date of the order to be made herein (or until the full payment of the sum HK$5,750,000.00 to the 2^nd plaintiff);

(c)     Estate agency commission of HK$8,800.00; and

(d)     Expenses for moving home in the sum of HK$5,336.00.

(“Relief (10)”)

(11)     There be judgement rate on the above sum(s) in sub-paragraphs (9) and (10) above until full payment (“Relief (11)”);

(12)     Liberty to apply.

G2.     The 2^nd plaintiffs’ application to amend

225.  In the defendant’s Closing Submissions, Ms Law had already drawn this Court’s attention to the authority of Lam Hong Ching Andy v Wong Kam Tong (HCA 1144/2006 & HCA 2320/2007, unreported, 12 October 2009) (in particular, [93] and [94] thereof), and submitted that, in the event the 2^nd plaintiff succeeds in his claim of common intention constructive trust, the usual remedy for the defendant’s breach of trust (for taking out the 2015 Mortgage) would be requiring the defendant to discharge all outstanding indebtedness secured by the mortgage and procure the release of the mortgage.  It can also be seen in the Lam Hong Ching Andy case that the Court would order a transfer of the trust property free from encumbrances back to the beneficial owner.

226.  However, the problem in the 2^nd plaintiff’s case is that no order of transfer has been sought in his Re-Re-Amended Statement of Claim. 

227.  Despite the defendant’s submissions in the Closing Submissions, Mr Ma in his 121-page long Reply Closing Submissions did not really deal with the point raised.

228.  On the last day of the trial which was reserved for oral closing submissions, after Ms Law had completed her oral closing submissions, Mr Ma handed up a set of “Ps’ Proposed Draft Order”, in which he has revised the orders which he was minded to ask this Court to make in the event the 2^nd plaintiff succeeds (“the Additional Reliefs”). In the Additional Reliefs, he sought to add:

(1)     an order that the defendant shall discharge all outstanding indebtedness secured by the 2015 Mortgage and procure the release thereof;

(2)     an order of transfer of the Property free from encumbrances;

(3)     an order that in default of compliance of the above order of transfer, the defendant shall pay the plaintiff a sum of HK$5,750,000 to the 2^nd plaintiff;

(4)     an order that the 2^nd plaintiff be at liberty to apply for directions for further and/or additional damages to be assessed;

(5)     a clarification that the account and inquiries shall take into account the money paid by the defendant to discharge the 2003 Mortgage in obtaining the 2015 Mortgage;

(6)     further terms in relation to the injunction under Relief (8).

229.  In effect, Mr Ma was making an application to amend the Re-Re-Amended Statement of Claim.

230.  Understandably, this application (which was not even made by a summons) was met with strong objections from Ms Law, mainly on the ground that it was a very late application.  As set out in Section A above, this is a re-trial of an action which was commenced in 2015.  The pleadings had been filed long time ago.  Although the point on “usual remedy” was raised when the defendant lodged her Closing Submissions on 17 April 2026, the 2^nd plaintiff did not see fit to take out a summons for the purpose of adding more reliefs.  Worse still, although Mr Ma had decided on 8 May 2026 to ask this Court for the Additional Reliefs, he chose to withhold the “Ps’ Proposed Draft Order” and did not alert the defendant’s counsel right away about his intended application.   Even though Mr Ma stated that it was already after office hour when he finally made up his mind, he did not send the said document, for example, by email or facsimile to Ms Law.  Neither did he hand over the said document to Ms Law before the hearing on 8 May 2026, when he apparently had already made enough copies for everyone.

231.  With greatest respect, I must say that Mr Ma’s way of handling this amendment application is totally unacceptable.  He should not have ambushed the defendant by withholding his intended application.

232.  Be that as it may, I do not think the 2^nd plaintiff’s application for amendment should be dismissed for such a reason.  After all, it should be borne in mind that one of the underlying objectives of the rules are to ensure fairness between the parties[18], and that in giving effect to the underlying objectives, the Court shall always recognize that the primary aim in exercising the powers of the Court is to secure the just resolution of disputes in accordance with the substantive rights of the parties[19].

233.  With the above in mind, I will now consider whether the Additional Reliefs below should be allowed to be added.

G2.1    The order for transfer and discharge of the 2015 Mortgage

234.  With greatest respect, it is difficult to understand why these reliefs were not included in the plaintiffs’ Statement of Claim in the first place.  If the Court finds against the defendant, the most natural remedy must be for the defendant to transfer the legal title of the Property (which is free from encumbrances) back to the beneficial owner.  As the Re-Re-Amended Statement of Claim now stands, although there are declarations sought in respect of the Property, full justice cannot be done. Although Relief (3) seems to suggest that the 2^nd plaintiff was minded to obtain the monetary value of the Property from the defendant rather than the Property itself, the problem with this claim is that it has not even been pleaded in the Re-Re-Amended Statement of Claim.  Even if Relief (3) were added, there is no evidence on the current value of the Property.  In this regard, Mr Ma drew this Court’s attention to the fact that the sum of HK$5.75 million was in fact the agreed valuation of the Property between the parties. However, that valuation was agreed before the commencement of the First Trial in October 2021.  For the purpose of the re-trial, the 2^nd plaintiff did not seek to agree with the defendant on an updated valuation at all.  Given the notorious fact that the Hong Kong property market is always fluctuating, it is unrealistic to expect that the current market price has remained more or less the same more than 4 years later.

235.  As aforesaid, the defendant strenuously opposed the 2^nd plaintiff’s application to add the reliefs of order for transfer and for the discharge of the 2015 Mortgage.  However, when Ms Law was asked what prejudice the defendant would suffer if this Court were to allow the amendment, she could not really point to any apart from emphasising that this is a very late application.

236.  Late as it is, I hold the view that justice cannot be done if these orders are not granted.  There is really no reason why the defendant should be allowed to hold onto the Property if it is this Court’s finding that she has always been holding the Property on trust for the Deceased.

237.  I would therefore allow the addition of these reliefs as follows:

“(a) Further or alternatively, the defendant do transfer the legal title of the Property to the 2^nd plaintiff free from encumbrance within such time as the Court sees fit;

(b) The defendant do, at or prior to the transfer of legal title pursuant to the order in (a) above, discharge all outstanding indebtedness secured by the 2015 Mortgage (under Memorial No.15061800310172) and procure the release of the 2015 Mortgage.”

(“the Transfer Reliefs”)

G2.2    Payment of damages in default of transfer

238.  The 2^nd plaintiff seeks to add the following relief:

“In default of compliance with the [Transfer Reliefs] above:

The defendant do pay the sum HK$5,750,000.00 to the 2^nd plaintiff (or alternatively 73.63% (or 69.44%) of the sum HK$5,750,000.00 to the 2^nd plaintiff) (or any other amount the Court may determine) for loss of value of the Property.”

239.  As pointed out above, this relief is not supported by evidence, as the valuation of HK$5,750,000 is obviously outdated.

240.  I therefore do not allow this amendment.

G2.3    Damages to be assessed

241.  The 2^nd plaintiff also seeks to add the following relief:

“The 2^nd plaintiff be at liberty to apply for directions for further and/or additional damages to be assessed before a Master for the defendant’s breach of trust.”

242.  There has never been any order for a split trial. I do not think it is right for the 2^nd plaintiff to have a second bite of the cherry as such.

243.  I will therefore refuse leave to add this relief.

G2.4    Setting off

244.  Under Relief (5), the 2^nd plaintiff seeks an order for accounts and inquiries as to what has happened to the mortgage loan in the sum of HK$2,310,000 which the defendant obtained.  He now seeks to add the followings to this relief:

“(and for the avoidance of doubt, this accounts and inquiries shall take into account the money paid by the defendant to discharge the existing mortgage in obtaining the 2015 Mortgage.)”

(“the Setting Off Provision”)

245.  In my view, this is a fair amendment which is favourable to the defendant.  I would allow this amendment.

G2.5    Further terms on the injunction

246.  The original draft of “Ps’ Proposed Draft Order” also contains further terms to the injunction sought under Relief (8). However, during Mr Ma’s oral closing submissions, he informed this Court that he would abandon the claim of injunction altogether.

247.  As a result, this addition is no longer necessary and I do not have to deal with this matter further.

G2.6    Leave to amend

248.  To conclude, I would give leave to the 2^nd plaintiff to further amend the Re-Re-Amended Statement of Claim by:

(1)     adding the Transfer Reliefs and the Setting Off Provision to the Prayer therein;

(2)     correcting the words “Yeung Long” to “Yuen Long” under paragraph 2 thereof.

249.  The 2^nd plaintiff shall file and serve the Re-Re-Re-Amended Statement of Claim within 14 days hereof.

250.  Before I leave this Section, it should be emphasised that this Court has decided to exercise its discretion and give leave for the amendment only because of the very special circumstances of the present case.  It should not be taken as if it is the norm that a party would be granted leave to amend even at last minute and even if no summons has been filed. 

251.  I will now deal with the substantive merits of the reliefs sought.

G3.     Claim against the Property

252.  Younger Sister’s counsel accepts that Husband would be entitled to Relief (1) and Relief (2) in the event his case on common intention constructive trust is accepted.  I will therefore grant these reliefs accordingly. 

253.  For the avoidance of doubt, since I accept that there is sufficient evidence to infer the common intention that the Deceased would be the sole beneficial owner of the Property, there is no need to resort to the concept of resulting trust.  Therefore, the exact amounts of contributions made by the parties (and the respective percentages they represent) are irrelevant.

254.  Under Relief (3), Husband asks for equitable compensation in the sum of HK$5,750,000.  However, Mr Ma accepts that if the Court grants the Transfer Reliefs (see Section G4 below), he would not pursue Relief (3) further. 

255.  As a result, Relief (4) would also become academic.

G4.     The Transfer Reliefs

256.  As mentioned above, it is accepted by the defendant’s counsel that these are the usual reliefs which the Court should grant in the circumstances of the present case. I will therefore grant these reliefs accordingly.

257.  As for the timing of transfer, parties agreed that a reasonable period should be 3 months.  I will adopt the same in the order.

G5.     Breach of Trust

258.  Husband asks for an order for account and payment of the sum found due.

259.  In Libertarian Investments Ltd v Hall (2013) 16 HKCFAR 681, Lord Millett had the following to say:

“167. It is often said that the primary remedy for breach of trust or fiduciary duty is an order for an account, but this is an abbreviated and potentially misleading statement of the true position. In the first place an account is not a remedy for wrong. Trustees and most fiduciaries are accounting parties, and their beneficiaries or principals do not have to prove that there has been a breach of trust or fiduciary duty in order to obtain an order for account. Once the trust or fiduciary relationship is established or conceded the beneficiary or principal is entitled to an account as of right. Although like all equitable remedies an order for an account is discretionary, in making the order the court is not granting a remedy for wrong but enforcing performance of an obligation.

[…]

169. But the plaintiff is not bound to ask for the disbursement to be disallowed.  He is entitled to ask for an inquiry to discover what the defendant did with the trust money which he misappropriated and whether he dissipated it or invested it, and if he invested it whether he did so at a profit or a loss.  If he dissipated it or invested it at a loss, the plaintiff will naturally have the disbursement disallowed and disclaim any interest in the property in which it was invested by treating it as bought with the defendant’s own money. If, however, the defendant invested the money at a profit, the plaintiff is not bound to ask for the disbursement to be disallowed.  He can treat it as an authorised disbursement, treat the property in which it has been invested as acquired with trust money, and follow or trace the property and demand that it or its traceable proceeds be restored to the trust in specie.”

260.  In Hui Chun Ping v Hui Kau Mo [2024] 2 HKLRD178, [2024] HKCA 194, it was held by the Court of Appeal that:

“55. As to its rationale, the imposition of constructive trusts over unauthorised profits rests on two techniques of equity: (1) since the fiduciary receiving unauthorised profits must pay and account to the person to whom his duty is owed, equity considers as done that which ought to be done; and (2) equity does not permit an agent to rely on his own wrong to justify retaining the benefit, but insists on treating him ‘as having acted in accordance with his duty’ and ‘as having obtained it for his principal’, with the result that the unauthorised profits are regarded as ‘legitimate payment intended for the benefit of the principal’ (Hon Kam Wing at §§23 to 27 and 62; Attorney General of Hong Kong v Reid at 331B to E, 337F to H; FHR European Ventures LLP v Cedar Capital Partners LLC [2015] AC 250 at §§6 and 30; Snell’s Equity at §7-051) […]”

261.  Younger Sister submits that Husband is not entitled to an account because he has “failed to plead any profits that are to be the subject of the accounting remedies”. 

262.  This submission is not understood, and she has failed to cite any authority in support of such a submission.

263.  In my view, since Younger Sister accepts rightly that she is a constructive trustee of the loan obtained pursuant to the 2015 Mortgage in the event it is held to be a breach of trust, there is no question that Husband would be entitled to an account, and an order for payment of any profit made out of the 2015 Mortgage.  Ms Law also fairly agrees with this proposition.

264.  I will therefore make an order in term of Relief (5) (subject to the addition of the Setting Off Provision), Relief (6) and Relief (7).

265.  As aforesaid, Husband has abandoned his claim for post-judgment injunction (Relief (8)) against Younger Sister.  I therefore say no more on this matter.

G6.     Younger Sister’s wrongful occupation of the Property

266.  Under Relief (9), Husband asks for an order that Younger Sister do pay mesne profits at the agreed rate of HK$9,000 per month since 15 February 2023 until the date of the order to be made herein (or until the full payment of the sum HK$5,750,000.00 to him).

267.  Since this Court does not make any order on equitable compensation, an order will be made in terms of Husband’s proposed order and the calculation of mesne profits will be up to the date of this Judgment.

268.  As far as interest (Relief (11)) is concerned, Husband only asks for interest to be calculated from the date of this Judgment.

269.  On top of mesne profits, Husband also asks for damages for rental and expenses of alternative accommodation from 15 February 2023, estate agency commission as well as expenses for moving home (Relief (10)).

270.  Husband’s difficulty in this regard is that he cannot show that he has incurred the aforesaid expenses in his capacity as administrator of the estate of the Deceased, who is the only succeeding party at this re-trial.  Therefore, the expenses which he has incurred in his personal capacity cannot be recovered.

H.      ORDER

271.  I therefore make the following orders:

(1)     A Declaration that the 2^nd plaintiff, in his capacity as the administrator of the Deceased, at all material times was and is the sole beneficial owner of the Property;

(2)     A Declaration that the Property at all material times was and is held by the defendant on constructive trust for the 2^nd plaintiff absolutely;

(3)     The defendant do transfer the legal title of the Property to the 2^nd plaintiff free from encumbrance within 3 months from the date of this Judgment;

(4)     The defendant do, at or prior to the transfer of legal title pursuant to paragraph (3) above, discharge all outstanding indebtedness secured by the 2015 Mortgage (under Memorial No.15061800310172) and procure the release of the 2015 Mortgage.

(5)     An Order for accounts and inquiries as to what has happened to the sum of HK$2,310,000.00 (as a result of the defendant’s breach of trust by taking out the 2015 Mortgage), as to what profit(s) (if any) has been made from the use of such sum of HK$2,310,000.00, and/or as to what is due to the 2^nd plaintiff be conducted by a Master (and for the avoidance of doubt, these accounts and inquiries shall take into account the money paid by the defendant to discharge the existing mortgage in obtaining the 2015 Mortgage);

(6)     An Order that the defendant shall pay the profits from the use of such sum of HK$2,310,000.00 to the 2^nd plaintiff, if any, upon taking the said accounts and inquiries;

(7)     A Declaration that the defendant was and is holding such sum of HK$2,310,000.00 (including its traceable proceeds and/or any other income and/or profits as derived therefrom) as constructive trustee for the 2^nd plaintiff;

(8)     The defendant do pay mesne profits at the agreed rate of HK$9,000 per month since 15 February 2023 up to the date of this Judgment, with interest thereon at judgment rate from the date of this Judgment until full payment.

I.      COSTS

272.  As far as the 2^nd plaintiff’s application for leave to amend, I will make no order as to the costs thereof.

273.  In relation to the costs of the action, while the plaintiffs are the succeeding parties, I think the Court should take into account the fact that the Transfer Reliefs, which must be part of the most crucial reliefs, were only added at the very last stage of the trial, upon the defendant’s reminder in her Closing Submissions.

274.  With the above in mind, I make a costs order nisi that the defendant shall bear 85% of the plaintiffs’ costs (including all costs reserved and the costs of the First Trial), to be taxed if not agreed. 

275.  The plaintiffs’ own costs shall be taxed in accordance with Legal Aid Regulations.

276.  The above order nisi shall become absolute in the absence of application to vary (which, if any, will be disposed of on paper) within 14 days hereof.