NG MUK FUN v. SILVER HOPE LTD AND ANOTHER

HCMP 1949/2015

[2020] HKCFI 2117

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1949 OF 2015

________________________

________________

________________

J U D G M E N T

________________

A. Introduction

1.  This action and trial concerns the true beneficial ownership of the three-floor small village house situated at Lot No. 469 in DD 248, Sai Kung, New Territories (“Property”).  The Property was built on the land following the 1992 grant of the land to the plaintiff (“Mr Ng”), as an indigenous resident of the New Territories.  Mr Ng was born in 1930 and is now 89 years old.

2.  There is no dispute Mr Ng has at all times been, and he remains, the sole registered owner of the Property.  However, the case concerns the circumstances under which the beneficial ownership of the Property is said to have been transferred or surrendered to the 1^st defendant (“Silver Hope”).

3.  Silver Hope is a money lender acting within the definition of “money lender” under the Money Lenders Ordinance Cap 163.  It has been operated throughout by Mr Hui Pui Cheung (“Mr Hui”), its director.  All dealings between Mr Ng and Silver Hope were conducted between Mr Ng and Mr Hui.

4.  Mr Ng was a debtor of Silver Hope, as a result of borrowing money under certain loan agreements in 2002 and 2003.  Mr Ng defaulted in repayment and Silver Hope took various legal action to recover the outstanding loans.  Silver Hope says that it entered into a settlement agreement with Mr Ng in 2007 (“Settlement”), which disposed of all their disputes and under which Mr Ng waived all his beneficial interest in the Property.  Vacant possession of the Property had already been provided to Silver Hope in March 2006, under a Deed of Surrender dated 16 March 2006 (“Deed”).

5.  The action was commenced by Mr Ng in 2015, after he says he discovered for the first time the previous court actions, judgments and court orders.  Mr Ng claims various relief to set aside and discharge the court orders, as well as seeking an order for vacant possession of the Property to be delivered back to him.  He further seeks an account of rents and/or mesne profits, alternatively damages.

6.  Silver Hope – which has never been sued before (except in one claim which was immediately abandoned when the claimant absconded) – denies the claim, and counterclaims for a declaration that it is the beneficial owner of the Property.

7.  The unnamed 2^nd Defendants have taken no part in the action, and the issues arising for resolution in the action at trial concern only those issues between Mr Ng and Silver Hope.

8.  Mr Ng was represented by solicitors, later by solicitors and Counsel, with the benefit of legal aid.  That representation continued up to and including the pre-trial review hearing in May this year.  However, since that time the solicitors and Counsel have ceased to act, because the legal aid certificate was terminated.  The precise circumstances in which Mr Ng ceased to have legal representation were not explained to me.

9.  Against the cessation of legal representation, the failure by Mr Ng to file any notice to act in person (or to appoint new solicitors), and in light of some of the matters which I will canvass below, it may not be a surprise that Mr Ng failed to appear at trial so as to pursue his claim, or to give any live evidence in support of that claim.  The trial proceeded in his absence.

10.  Silver Hope was represented at trial by Mr Paul Wong of Counsel.  Silver Hope called two witnesses, each of whom gave oral evidence to adopt their factual witness statements, and to be subject to any questions.  Those two witnesses were Mr Hui and a Mr Lee Kwok Ying, a villager living in the village where the Property is located.

B.  The Battleground

11.  Including by reference to the factual chronology and the various documents to which I shall make reference below, the parties’ respective cases can further be identified.

12.  Though Mr Ng did not appear at, and was not represented at, the trial, I take into account that he filed affirmation evidence in support of the originating summons by which the proceedings were commenced.  That evidence is largely consistent with and/or repeated in the witness statement of fact which he filed in these proceedings.  But I also take into account that Mr Ng did not present himself to be cross-examined on his statements.

13.  Broadly, Mr Ng’s pleaded case (as spoken to in his affirmation evidence) is that he seeks to overturn all of the charging orders against the Property, on two main grounds. First, he suggests that the judgment sums in each of the proceedings exceeded the real debts owed to Silver Hope.  Secondly, he says that the judgment sums had not accrued or were not outstanding when the relevant legal actions were commenced.

14.  As to the Deed of Acknowledgement and Undertaking, there is no dispute that Mr Ng signed it.  But his pleaded case is that it was wrongfully caused and/or procured by Silver Hope.  He relies on the fact that he was then 75 years old, did not understand English, was given no explanation as to the content or significance of the Deed, had no independent legal adviser, and did not know the legal effect of the Deed when he signed it.  The precise legal basis of the challenge is not clear, but there is also an alternative plea of undue influence (albeit that it is not further particularised).  On that stated basis, it is suggested that the judgment in HCA 661/2006 and the 3^rd COA should be discharged.

15.  Mr Ng also pleads certain limitation arguments, based upon sections 4 and 19 of the Limitation Ordinance Cap 347 and section 17 of the Land Registration Ordinance Cap 128.

16.  It is noteworthy that though the claim seeks to address the various court judgments and orders as well as the Deed of Acknowledgement and Undertaking, it does not seek to address the Deed of Surrender and the three Chinese language agreements.  This is notwithstanding the fact those documents had been brought to the attention of Mr Ng (and his solicitors) through Mr Hui’s affirmation evidence, well in advance of the filing of the statement of claim. Those matters are only addressed in the Reply and Defence to Counterclaim, where the main point put forward is that the three Chinese documents do not support the allegation of a concluded agreement for Mr Ng to have surrendered his beneficial interests and rights of and in the Property absolutely.

17.  Silver Hope’s response to the claim is straightforward.  It says that even were there to be any prior disputes, the Settlement resolved all matters between the parties.  Silver Hope says it is not now open for Mr Ng to seek to go behind the various judgments, charging orders or the Settlement after so many years. Indeed, as spoken to in Mr Hui’s evidence, Mr Ng never raised any objection or challenge to the various court judgments and orders, except very belatedly in the current proceedings after their institution in 2015.

C.  Background and Chronology

18.  I make the following findings of fact about the background circumstances and the chronology of events.

19.  On 25 May 1992, Mr Ng received the Government New Grant No. 8011 for the land on which the Property was subsequently built.  The Grant was made to Mr Ng as an indigenous resident of the New Territories for the development of a small house.  The Grant contains restrictions on alienation.

20.  In anticipation of the Grant, it seems that Mr Ng entered into a joint development contract with Wong Oi Kwan (“WOK”) and Mo Chow Mei (“MCM”) for the development of the small house on the land to be subject to the Grant.  In effect, under the arrangement, Mr Ng provided the land and WOK and MCM provided funds for the construction of the small house.  When constructed, the Property was divided into three flats, one per floor, with each of Mr Ng, WOK and MCM having one flat.

21.  From around 2002, Mr Ng commenced borrowing money from Silver Hope.  He did so when he was apparently in financial difficulties.  I accept Mr Hui’s evidence that he warned Mr Ng to think twice before borrowing money, but Mr Ng had no other financial resources and referred to the Property as being possible security for loans.  Silver Hope lent or advanced Mr Ng a total of $500,000, under two separate loan arrangements in the sum of $300,000 and $200,000 respectively (though the latter sum might have been split into two sub-agreements).

22.  On the documentation available after this length of time, mainly provided by Mr Ng’s discovery, there is some possible confusion as to the total amounts lent, and as to the dates of the loan agreements.  In the evidence produced by Mr Ng in his affirmation filed in support of the originating summons, the first loan agreement is dated 10 September 2002.  Also produced were copies of various cheques dated 9 September 2002, said to be relevant to that loan, only one of which is made out directly to Mr Ng in the sum of $172,450 (though the other cheques bring the total amount to $200,000).  The second and third loan agreements are dated 25 March 2003 ($50,000) and 6 May 2003 ($150,000) respectively. Only one further copy cheque was provided dated 25 March 2003 in the sum of $38,882.  As will be seen from the chronology below, there is a mismatch between the date of those loan agreements and the proceedings brought by Silver Hope against Mr Ng for failure to repay loans made.

23.  However, I accept that Silver Hope has not been in a position to provide underlying documents, simply because of the passage of time since the loans were originally made.  It is clearly prejudiced by the extremely late timing of the challenge.  But, the making of the – or at least some relevant – loans is also evidenced by the pursuit of proceedings, being claims brought by Silver Hope against Mr Ng from his failure to repay the moneys lent.

24.  On 14 August 2002, a default judgment was entered against Mr Ng in DCCJ 4785/2002 (“1^st Judgment”).  On 27 September 2002, a Charging Order Absolute (“1^st COA”) was made in those proceedings, by which it was ordered that the beneficial interest of Mr Ng in the Property should stand charged with the payment of $300,000 together with interest and fixed costs.

25.  On 25 March 2003, Silver Hope commenced proceedings in the DCCJ 1673/2003 to claim the outstanding sum of the second loan in the amount of $200,000. Default judgment for that sum of $200,000 was entered on 3 April 2003 (“2^nd Judgment”), and a Charging Order Absolute was made against the Property on 16 May 2003 (“2^nd COA”).

26.  On 8 March 2004, Silver Hope commenced proceedings in DCMP 993/2004 to enforce the 2^nd COA against the Property.  Though Mr Ng, acting in person, originally filed the Chinese language version of an acknowledgement of service ticking the box that indicated an intention to contest proceedings, he later amended that to an indication that he would not contest the proceedings.  He must have known the effect of that amendment.  On 17 June 2004, an Order for Sale was granted (“Order for Sale”).  The Order for Sale, amongst other things, required Mr Ng to deliver up vacant possession of the Property to Silver Hope, and for the sale proceeds to be derived from the sale to be distributed in accordance with priorities set out.  First payment was to be the amount of premium due to the Government for removal of the non-alienation restriction.

27.  However, on 20 and 29 September 2004, WOK (occupying the second floor of the Property) and MCM (occupying the first floor of the property) filed affirmations to oppose the sale in DCMP 993/2004.  Each of WOK and MCM claimed beneficial ownership of the floors respectively occupied by each of them.  It seems this gave rise to the appeal proceedings in CACV 130/2005.

28.  I accept Mr Hui’s evidence that he discussed the situation with Mr Ng, and that with Mr Ng’s consent the possibility was to be explored for maximising the value of the Property by unifying the beneficial interests by buying out WOK’s and MCM’s interests.  Ultimately, the contrary claims were dealt with by a settlement entered into between WOK, MCM and Silver Hope on 21 December 2005.  Under the terms of that settlement, Silver Hope agreed to pay, and did pay, $750,000 to WOK and MCM together in full and final settlement of their claims against the Property, and for them to deliver vacant possession of the Property relating to their respective occupied floors.

29.  A few days later, on 30 December 2005, Mr Ng and Silver Hope entered into a Deed of Acknowledgement and Undertaking.  The recitals referred to: (a) the 1^st COA obtained by reference to the 1^st Judgment debt; (b) the 2^nd COA obtained by reference to the 2^nd Judgment debt; (c) the fact that the 1^st and 2^nd Judgment debts remained due and unpaid by Mr Ng; (d) the existence and terms of the Order for Sale; (e) the claims to interests in the Property raised by WOK and MCM; and (f) the settlement of those claims on 21 December 2005 by payment of the sum of $750,000.

30.  Under the terms of that Deed, Mr Ng acknowledged that WOK and MCM contributed to the building costs of the Property and paid their respective sums under the joint development agreement, and had thereby acquired beneficial interests in the Property.  Mr Ng further acknowledged that he had acquired benefit and advantage by virtue of the settlement reached between Silver Hope and WOK and MCM.  In consideration of those matters, Mr Ng undertook to satisfy the 1^st and 2^nd Judgment debts, to pay the $750,000 settlement, to pay a further $300,000 for settlement of the costs and disbursements in the various actions (together, sums totalling $1,550,000), and to pay them all on or before 16 January 2006.

31.  The Deed further provided that in default of payment of any of those sums, Silver Hope would be at liberty forthwith to dispose of the Property by way of sale, letting or otherwise as it should deem just.  Time was made of the essence.

32.  The Deed is written in the English language, but contains a clause that Mr Ng declared he had been informed by solicitors acting for Silver Hope in the transaction that though solicitors acted only for Silver Hope and that Mr Ng could engage separate legal representation if he so wished.  In any event, in so far as the pleaded case challenges that Deed, I reject the idea that Mr Ng’s agreement to its terms was obtained through any undue influence.  The agreement makes sense, and there is no obvious disadvantage to Mr Ng in its terms calling for some explanation.  Nor, if it was intended, can any case on non est factum be made out in circumstances where Mr Ng does not say that he believed the document he signed was of one character or effect whereas its character and effect were quite different, and where (on his own case) he does not appear to have taken the trouble to find out at least the general effect of the document.  Nor is the Deed to be otherwise somehow rendered invalid as a result of the circumstances in which it was signed.

33.  I accept that Mr Ng did not make any of the required payments by the 16 January 2006 deadline, or at all.

34.  On 16 March 2006, Mr Ng signed a Deed of Surrender of the Property in favour of Silver Hope, again written in the English language.  The recitals to that Deed also referred to the 1^st and 2^nd Judgment debts, the 1^st and 2^nd COAs and the Order for Sale.  Under the Terms of that Deed, Mr Ng voluntarily surrendered and delivered up to Silver Hope vacant possession of the Property, and handed over a set of keys in respect of the Property representing physical delivery of vacant possession of it.  The terms also provided that Silver Hope would be at liberty to sell or dispose of the Property at the price by any means at its sole and absolute discretion in settlement of all or any part of the outstanding indebtedness due and payable by Mr Ng, to which Mr Ng would not raise any objection.

35.  I find that, not least from the fact that he handed over the keys, Mr Ng understood the provenance and nature of the Deed of Surrender, and that he did agree to its terms.

36.  On 27 March 2006, Silver Hope commenced proceedings in HCA 661/2006 against Mr Ng to claim the outstanding sum of $1,050,000 (being the WOK/MCM settlement sum of $750,000 and related legal costs of $300,000).  On 28 April 2006, Mr Ng filed an acknowledgement of service indicating that he would not contest the proceedings.  The acknowledgement of service form filed was in English, but I find he must have known the effect of that document.  As well as signing the document, Mr Ng wrote his own address at the Property as the address for service.  In context, it is not any surprise that he agreed not to contest the proceedings.  On 12 May 2006, default judgment was entered against Mr Ng, followed by a Charging Order Absolute made on 18 August 2006 (“3^rd COA”).

37.  On 11 May 2007, Silver Hope’s solicitors wrote a letter addressed to Mr Ng – not at any address but shown as being “present” – stating that at Mr Ng’s request they confirmed that according to the land search register the encumbrances listed in the letter had been registered against the Property.  Mr Ng must have received this letter, I accept by being present when it was handed to him, as he produced it as an exhibit to the affirmation filed in support of the originating summons in these proceedings.  The encumbrances listed in the letter were the 1^st COA, the 2^nd COA, the Order for Sale, and the 3^rd COA, as well as a charging order in DCCJ 6346/2004 in favour of one Ng Yau Tong.  The letter also recorded that Mr Ng had already surrendered vacant possession of the Property to Silver Hope in about March 2006 (apparently referring back to the Deed of Surrender).  I find that Mr Ng knew from the content of this letter of the previous court orders, and from the fact that no objection was made to any of the matters stated in the letter, that he understood the connection between the failure to have resolved the debts giving rise to the encumbrances to the surrendering of vacant possession.  Plainly, the letter also gives the lie to any suggestion that Mr Ng did not know of the various judgments and orders until much later in 2015.

38.  Also during 2007, Mr Ng and Silver Hope signed three agreements handwritten in Chinese relating to the Property.  Those agreements are said to comprise or evidence the Settlement.  It is, therefore, appropriate to set out their terms in full.

39.  The first agreement is dated 18 January 2007.  It has the signature of Mr Ng and the authorised signatory chop of and a signature for Silver Hope.  It reads as follows (in the original and in translation):

本人NG MUK FUN吳木芬I.D. No. [number] 現將位於G/F, 252 Tseung Kwan O Village, N.T.交吉予銀合有限公司、此後、在上址之一切法律問題實與本人無關、並付上上述大門及房門各一條鎖匙。

I, Ng Muk Fun, ID Card no. [number], and handing over the Property located at G/F, 252 Tseung Kwan O Village, N.T. to Silver Hope Limited with vacant possession thereafter I shall have no connection with any legal issues in relation to the Property aforementioned. Enclosed with an entrance key and a room key.

40.  The second agreement, though undated is said to have been made sometime in 2007 between the first agreement and third agreement in that year.  It is signed by Mr Ng and by Mr Hui for Silver Hope, and is in the following terms (in the original and in translation):

協議同意書

甲方：銀合有限公司

乙方：吳木芬，I.D. No. [number]

有關物業：Lot No. 469 IND.D. 248, SAI KUNG, NEW TERRITORIES

本人吳木芬，因已無力償還甲方之借貸款項及一切應付之利息、現本人放棄上述物業之一切權益，交由甲方全權處理、此後有關上述物業之一切債項、雙方各不追究。

本人清楚及明白上述一切內容。

Agreement

Party A: Silver Hope Limited

Party B: Ng Muk Fun, ID Card no. [number]

Subject Property: Lot No. 469 INDD 248, Sai Kung, New Territories

I, Ng Muk Fun, due to my incapability of repaying the loans and interests payable to Party A, am surrendering all rights and interests in the captioned Property and handing it over to Party A for its absolute discretion. Thereafter neither party shall pursue any loan in relation to the captioned Property.

I hereby declare my clear understanding of the above.

41.  The third agreement is dated 7 December 2007.  Again, it is signed by Mr Ng and by someone for Silver Hope against its authorised signatory chop.  It is in the following terms (in the original and in translation):

協議同意書

甲方：銀合有限公司

乙方：吳木芬，I.D. No. [number]

有關物業：G/F, 1/F, 2/F & Roof, 252 TSEUNG KWAN O VILLAGE, N.T.

本人吳木芬，固無力償還甲方之債項及利息、現本人同意無條件放棄上述物業的權益、此後各不追究。

但同時並要求甲方代乙方保留上述單位待本人有能力償還債項時一併清還。

在此期間、本人乙方願意支付甲方管理費用每月港幣25,000.00作為報酬、直至乙方令行通知。

本人乙方清楚明白一切內容。

Agreement

Party A: Silver Hope Limited

Party B: Mr Ng Muk Fun, ID Card No. [number]

Subject Property: G/F, 1/F, 2/F and roof, 252 Tseung Kwan O Village, N.T.

I, Ng Muk Fun, due to my incapability of repaying the loans and interests payable to Party A, hereby agreed to unconditionally surrender my rights and interests in the captioned Property. Neither party shall pursue the issue thereafter.

Meanwhile, I hereby request Party A to retain the captioned Property for Party B until I become capable of repaying all loans, during which I shall pay Party A a monthly management fee of HK$25,000.00 as remuneration until further notice from Party B.

I, Party B, hereby declare my clear understanding of the above.

42.  Notwithstanding the second paragraph of the above agreement (whatever it means, as to which see below), I accept that Mr Ng never made any payment of the suggested $25,000 to Silver Hope. Nor, indeed, did Mr Ng ever make any payment of any sort to Silver Hope at any time after the making of the agreement said to comprise the Settlement.

43.  On the contrary, I accept on the evidence (see below) that occasionally Mr Hui provided funds to Mr Ng after 2007, though such payments were treated as gifts rather than any form of lending.  It is also clear that Mr Ng never made any claim to the Property, or any interest in it or the income derived from it, in the period after 2007 – until the commencement of these proceedings in 2015.

44.  It can also conveniently be noted that when Mr Ng commenced these proceedings, he made no reference to and failed to produce copies of the Deed of Surrender, the Deed of Acknowledgement and Undertaking, or the three handwritten Chinese agreements.

45.  I accept that the three Chinese agreements are perhaps not as clear as they might been had they been drawn up by lawyers.  But it seems to me, not least against the factual background which I have identified, including the long delay in repayment and Mr Ng’s recognition that he was incapable of effecting repayment, the intention of the parties to those agreements is clear.  In short, the agreement between Mr Ng and Mr Hui for Silver Hope was that matters of dispute between them would be finally resolved by the agreement that Silver Hope would not enforce the various orders in its favour, in return for which Mr Ng would waive and relinquish all interests and rights in the Property.  Thereafter, full and final settlement having been achieved, neither party would pursue any action against the other.

46.  It seems logical to me that the agreement was first made orally, and then reduced into or evidenced by the hand written agreements.  I note that there is at least an overlap or duplication amongst some aspects of the three different Chinese agreements, but the reason for that is probably the fact that throughout the contact between Mr Ng and Mr Hui the arrangements were the subject of repeated discussion.

47.  As to the second paragraph of the third agreement, dated 7 December 2007, I do not think that means that Mr Ng was not in fact unconditionally surrendering his rights and interests in the Property.  The first paragraph of the letter makes that plain.  Rather, it seems to me that the second paragraph reflects Mr Ng’s hope, or perhaps preference, that he might somehow one day be able to get back the Property – almost akin to an option to re-purchase.  But, that hope was for practical purposes entirely forlorn, and immediately became nought.

48.  Obviously, where the agreements were written in Chinese, Mr Ng cannot say – and he does not say – that he did not understand what he was signing.  There is no suggestion of any undue influence.  In the context, the Settlement makes commercial sense.  How the parties acted over the following eight or so years is also telling as to their subjective understanding, matching the objective interpretation of the agreements.

49.  These proceedings were commenced by originating summons issued on 12 August 2015.  But the affirmation of Mr Ng filed in support of the originating summons was not made until 12 January 2016.  The Statement of Claim was not filed until 20 September 2017.  This followed various delays and, ultimately, an order dated 10 July 2017 requiring the proceedings to continue as though commenced by writ, and giving directions for a timetable for the pleadings.

50.  However, shortly after the proceedings commenced, there were some discussions between Mr Ng and Mr Hui in September 2015.  I accept Mr Hui’s oral evidence (in answer to my questions) that that was the last occasion on which he saw and spoke to Mr Ng. The meeting and discussions gave rise to correspondence between solicitors. 

51.  On 2 October 2015, Messrs NK Tsang and Co (“NKT”) wrote to Messrs WT Law Office (“WTLO”), the solicitors acting for Mr Ng in the commencement of these proceedings.  NKT informed WTLO that it had instructions to act for Mr Ng in place of WTLO in relation to these proceedings, and enclosed the copy of an authorisation letter signed by Mr Ng and dated 25 September 2015.  NKT asked for the transfer of relevant documents and for the withdrawal of the registration of the originating summons against the Property. 

52.  By letter in response on the same day, 2 October 2015, WTLO suggested that the allegations in NKT’s letter were groundless and the requests ridiculous.  Before providing a substantive response, WTLO posed a number of questions about the contact between Mr Ng and NKT. 

53.  NKT responded by letter on 8 October 2015, describing WTLO’s letter as “odd”.  As NKT pointed out, all it had done was just (a) informed that it had instructions to act in place of WTLO, (b) requested the documents for their handling, and (c) requested withdrawal of the registration of the originating summons against the Property.  NKT asked for compliance with the requests.  Instead, by its later dated 13 October 2015, WTLO stated that Mr Ng continued to instruct that firm in relation to these proceedings, and attached a copy of a confirmation signed by Mr Ng dated 7 October 2015.

54.  In his affirmation made in support of the originating summons, Mr Ng suggested that he had somehow been misled into signing the confirmation of instructions for NKT, on the basis that he had been told it would simply facilitate mediation.  However, that version of events is contradicted both by Mr Hui’s evidence, which I accept, and by the transcript of a recording taken of the meeting at NKT’s offices on 25 September 2015, attended by Mr Chow of that firm, Mr Hui and Mr Ng.  I accept the transcript as an accurate record or reflection of what was discussed on that date.

55.  It seems to me that a fair reading of the transcript identifies at least the following points, and I so find:

 (1) Mr Hui for Silver Hope expressed surprise, and some degree of indignance, at being sued by Mr Ng.

 (2) But the meeting was cordial and friendly throughout, and it is clear that Mr Hui and Mr Ng had a good relationship.  Mr Ng himself confirmed that they had been in a good relationship all along.

 (3) Mr Ng confirmed that he had no dispute with Mr Hui, and that Mr Hui/Silver Hope did not owe him even one cent.

 (4) Mr Ng confirmed that they had settled matters some time ago, and that he was absolutely not wanting to take Mr Hui to court, and had never thought of taking him to court all along.

 (5) Mr Hui had continued providing money to Mr Ng over the years, for example to pay for medical expenses.  He did so out of respect for someone his elder.  Mr Ng acknowledged receiving financial support from Mr Hui over the past years, and that he had not been treated badly.

 (6) Before commencing these proceedings, Mr Ng had not even met the handling solicitor at WTLO.  The proceedings were apparently commenced at the instigation of Mr Ng’s son, who obtained Mr Ng’s signature.

 (7) Mr Ng said he had wished to withdraw the claim and found it strange that WTLO would not let him.

 (8) Mr Chow asked Mr Ng if he wished to appoint NKT to represent him instead of WTLO (“lawyer Tsui”), for NKT to write to tell WTLO that and to obtain the documents, and to go to court to discontinue and withdraw these proceedings.  Mr Ng confirmed that is what he wished to appoint NKT to do.

 (9) Mr Chow read out loud to Mr Ng the content of the letter which he asked him to sign as authorisation (which was the authorisation letter later provided to WTLO).  Mr Ng agreed to and did sign it.

56.  I have taken into account the lack of reliability in Mr Ng’s evidence on what took place at that meeting, when considering the overall reliability of his case. Further, in addition to the various contemporaneous documents referred to, I have also taken into account Mr Hui’s evidence and that of Mr Lee.  In particular, I accept that Mr Ng told Mr Lee that he was leaving the village because he owed money to a moneylender which had seized the Property as a means of repaying the outstanding debts, and that from exchanges in 2006 and 2007 Mr Lee understood that Mr Ng no longer owned or possessed the Property, having completely lost it for failure to repay outstanding debts.

D.  Consequence of Findings

57.  There is no proper basis on which to challenge now the various court judgements and charging orders absolute, and the order for sale, relating to the Property.  In any event, Mr Ng clearly knew of those various orders, and the circumstances in which and the reasons for which they were obtained.  There is no proper suggestion on the evidence that there was any concealment or falsification.  At bottom, other than the suggestion that different sums were borrowed on different dates than those said to underpin the court proceedings, there is no dispute that Mr Ng borrowed substantial sums of money from Silver Hope which he has not repaid.  It is no surprise – and it would have been no surprise to Mr Ng at the time – that legal proceedings followed.  In at least two of the actions, Mr Ng signed acknowledgements of service forms indicating that he did not intend to contest the proceedings.

58.  In any event, against my findings relating to the Deed of Surrender and the Deed of Acknowledgement and Undertaking, and the three Chinese agreements comprising or evidencing the Settlement, the challenges to the underlying debts are irrelevant.  Those debts were acknowledged and confirmed on several occasions, and despite significant opportunities for repayment provided over time, the debts were not discharged.

59.  Therefore, I do not think any of the limitation points arise.  In any event, the limitation challenge to the charging orders is bad.  It is settled law that the relevant limitation section does not bar the execution of a judgment after six years, but only the bringing of a fresh action on the judgment.  Further, though the registration of a charging order lapses after five years in the absence of re-registration upon its expiry, the charging order itself remains a valid expression of the equitable charge over the property.

60.  Anyway, as a consequence of the previous judgments and orders and their recognition, ultimately the Settlement was reached.  It is final and conclusive and binding.  Its effect was that Mr Ng’s interests, rights and title in the Property were validly surrendered to Silver Hope, in consideration for which Silver Hope dropped any further pursuit of the sums owed or the charging orders and order for sale..

61.  Further, the actions (and material inaction) of the parties between 2007 and 2015 are entirely consistent with there having been a full and final settlement achieved between them in 2007.  I so find.

62.  Further, the original development of the Property gave rise to beneficial interests in persons other than just Mr Ng, and he was fully aware of the circumstances in which those interests were removed.  It would be wholly unfair to Silver Hope for it somehow now to be ignored that it bought out those interests.  Yet that is precisely what Mr Ng’s claim seeks to achieve.  Along with many of the assertions made in the claim, it was always a significant overreach, and it appears to have been motivated as a result of external, perhaps family, pressure brought to bear on Mr Ng. I accept that Mr Ng himself in reality recognises that he long ago gave up all beneficial interest in the Property, and it is unfortunate that a man of his age should have been pushed into this litigation.

E.  Relief

63.  The claim is dismissed.

64.  As to the counterclaim, I accept that Silver Hope is entitled to a declaration that since 7 December 2007 Mr Ng has been the bare legal owner of the Property, and Silver Hope has been the sole beneficial owner of the Property.

65.  I also accept that subject to dealing with the restriction on alienation, Silver Hope is entitled to call for the transfer to it of the legal title.  Therefore, I order that, subject to the prior payment by Silver Hope of any premium required by the Government as a condition of removing the restriction against alienation imposed by the New Grant No. 8011, Mr Ng shall assign all his legal title in the Property at no consideration to Silver Hope.  He shall do so within 28 days of a demand to do so, and will execute all necessary conveyance, contract or other documents and shall be required to effect the transfer of legal title.

66.  Failing Mr Ng’s compliance with that requirement, all necessary documents to effect transfer of title shall be executed by a person nominated by this Court for that purpose pursuant to section 25A of the High Court Ordinance Cap 4.

67.  For the avoidance of doubt, any registration of this action against the Property must also be vacated.

68.  In the circumstances, it seems to me that costs should follow the event.  Therefore, I order the plaintiff to pay the costs of these proceedings to the 1^st defendant, to be taxed if not agreed.  Insofar as it remains relevant following the discharge of the legal aid certificate in favour of the plaintiff, the plaintiff’s own costs shall be taxed in accordance with the legal aid regulations.