CHEUNG PING SUM v. WONG CHI HANG, as administrator of the estate of WONG SUN, deceased

HCMP 1490/2016

[2019] HKCFI 2244

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1490 OF 2016

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JUDGMENT

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INTRODUCTION

Introduction

1.  This action is about a family dispute between the step-mother (the “Plaintiff”) and the step-son (the “Son” or “Defendant”) about the beneficial ownership of a property (the “Property”) registered under the name of his father (the “Father”) who died intestate on 6 April 2012.  The Son obtained a grant of letters of administration on 31 July 2013 upon the Plaintiff renouncing her right to administration of the estate. 

2.  The Property is the major asset of the Father’s estate.  It was purchased in 1981 and held in the joint names of the Father and his former wife (the “Mother”).  It was the matrimonial home of the Father with the Mother before her demise; and then his matrimonial home with the Plaintiff before his own demise.  It was registered in the name of the Father prior to his death.

The issues

3.  As the surviving spouse of the deceased, the Plaintiff is entitled to the personal chattels of the Father, a net sum of $500,000 and one half of the remaining part of the estate under section 4(3) of the Intestates’ Estates Ordinance (Cap 73) (the “Ordinance”).  Her main complaint is the Son’s refusal to sell the Property and distribute the sales proceeds to her in accordance with the Ordinance and to account for the personal chattels of the Father.  In this action, the Plaintiff seeks an order for the removal of the Son and the appointment of herself or an independent solicitor as substitute administrator of the estate of the Father; or alternatively an order that the Son be directed to sell the Property and to distribute the proceeds of sale according to the Ordinance; and other consequential probate directions.  At the heart of the parties’ dispute is the ownership of the Property.

4.  The Plaintiff has an indisputable prima facie case claim over the Property under the Ordinance.  The burden, therefore, rests fairly and squarely on the Son to prove that despite he was not the registered owner of the Property during the Father’s lifetime, he has nonetheless acquired a beneficial interest over the Property.  The Son’s defence is that he is the beneficial owner of the Property and he counterclaims a declaration to that effect.  He denied appropriating the personal chattels of the Father.  His case relating to the Property is rested on three grounds:

(1)  that he had paid or contributed to the purchase price of the Property;

(2)  that the Property was purchased with the common intention as ancestral home for the use of the family which will eventually be passed to him as the sole male descendant of the family (the “ancestral home intention”); and

(3)  that under a family arrangement made in 2010 (the “2010 Family Arrangement) to which the Plaintiff was a party, it was agreed that a property in Baiyun District of Guangzhou (the “Guangzhou Property”) held by his two younger sisters was to be transferred to the Father for nil consideration which would then be held in the joint name of the Father and the Plaintiff and to be used by the Plaintiff upon the Father’s demise, while the Property would be transferred to the Son after the Father’s death.

5.  His first two grounds are based on constructive trust, resulting trust and proprietary estoppel.  His third ground is founded on principle of contract and provides further evidence in support of the ancestral home intention.  These legal principles are well settled and not in dispute between counsel.  The single and most important fact which underpins the Son’s defence and counterclaim based on constructive trust, resulting trust and proprietary estoppel is whether he had paid or contributed to the purchase price of the Property, which is determinative of the Son’s defence and counterclaim.  The factual issues to be resolved are:

(1)  whether the Son had paid or contributed to the purchase price of the Property;

(2)  whether the Property was purchased with the common intention to be used as ancestral home and to be passed to the Son after the Father’s death;

(3)  whether the parties had entered into the 2010 Family Arrangement, and, if yes, the terms of that arrangement; and

(4)  whether the Son has taken away any personal chattels of the Father without accounting for the same.

Once these factual issues are resolved, the question of ownership of the Property and the extent of the Plaintiff’s entitlement to the Father’s estate will also be resolved.

6.  Counsel have no dispute that the Son bears the burden of proof and that the standard of proof is the usual civil standard of balance of probability.  However, a special feature of this case is that the facts giving rise to the trust and estoppel is peculiarly known, apart from himself, only to his Father and Mother who are both dead and his maternal uncle who was also dead or was not called to testify.  There is clear authority from the Court of Final Appeal that in a claim against the estate of a deceased who cannot give evidence, the court shall always approach such claims with some suspicion, especially in the case of an alleged gift, where the only or principal witness in support of the claim is the claimant: Yung Shu Wu v Vivienne Sung Wu [1].  This principle applies equally to the present case where it is alleged that the property held in the name of a deceased does not belong to the deceased but to the claimant.

The background

7.  The Father was previously married to the Mother in China. The Son and three daughters (“Fan”, “Bing” and “Ling”) were born out of that wedlock.  The Father came to Hong Kong in 1957 and worked in a restaurant. He started his own restaurant in partnership with others in Mongkok in 1970s. In 1974, he bought a small property in the lower floor of the same building as the Property (the “first property”).  In the same year, the Son joined the Father in Hong Kong and lived in the first property.  He took up odd jobs in the kitchen of a restaurant and was later promoted as a chef and then principal chef in 1980. 

8.  In 1981, the Father purchased the Property fully paid in joint name with the Mother.  In the same year, he sold the first property.  The parties are in dispute as to whether the Property was purchased as an ancestral home (the “ancestral home intention”) with the Son paying or contributing to the purchase price.

9.  Around that time, the Mother and one of her daughters (“Fan”) also moved to Hong Kong, while the two other daughters remained in Guangzhou.  There are three bedrooms in the Property.  The Father and Mother occupied one, the Son and Fan occupied the other two.  The Son was married and had a child.  He was working in China and only came back two or three days a week.  The Property was used as the Father’s and Mother’s matrimonial home until June 1988 when the Mother died. 

10.  On 13 March 1991, the Plaintiff married the Father in China.  At that time, the Father was operating another restaurant in Tai Kok Tsui.  The Plaintiff came to Hong Kong in 2000 and moved into the Property, using it as their matrimonial home.  The Son continued to live in the Property. Fan had moved out upon her marriage in 1990, though she had personal effects left in the room previously occupied by her.

11.  The Father’s health turned poor in 2010.  According to the Son, in an evening of that year the 2010 Family Arrangement was reached among the Father, the Plaintiff, himself and his three sisters.  Under that arrangement, the two younger sisters, Ling and Bing, were to transfer the Guangzhou Property purchased by the Mother for them in 1988 to the Father by way of gift and the Father would transfer it to the joint names of himself and the Plaintiff so that the Plaintiff would move into the Guangzhou Property after the Father’s demise and that the Son shall inherit the Property as ancestral home.  The existence of the 2010 Family Arrangement is disputed by the Plaintiff.

12.  In late 2010 or early 2011, the two younger sisters transferred the Guangzhou Property to the Father at nil consideration.  Later the Father added the Plaintiff’s name as his lawful wife and co-owner of the Guangzhou Property.

13.  A year later, the Father died intestate on 6 April 2012.  The Son alleged that prior to his death, the Father complained of ill-treatment by the Plaintiff, including malnutrition and neglect.  The Plaintiff denied.

14.  On 31 July 2013, the Son obtained grant of the letters of administration and became the administrator of the estate of the Father.  On 8 April 2016, he registered the grant in the Land Registry against the Property.  Since then he became the registered owner of the Property in his capacity as the administrator of the Father’s estate. 

15.  Towards the end of 2015, the entire building in which the Property was situated fell into dilapidated condition and required renovation.  The Son agreed to pay the renovation expenses.  According to the Son, that was because under the ancestral home intention and the 2010 Family Arrangement, the Property was to be transferred to him.  To qualify for the government renovation subsidy of $80,000, the Property had to be first transferred to the Son’s name.  According to the Son, it was then agreed among himself, the three sisters and the Plaintiff that the Property shall be transferred to him so that he may take advantage of the government subsidy and he would pay the renovation costs (the “Renovation Arrangement”).  The Renovation Arrangement is disputed by the Plaintiff.

16.  According to the Son, a year later, on 22 May 2016, pursuant to the Renovation Arrangement, he, his three sisters and the Plaintiff agreed to attend the office of their solicitors, Messrs Mandy Wan & Co, to execute a deed of family arrangement on 29 May 2016 to transfer the Property to the Son (the “2016 Family Arrangement”).  But that morning the Plaintiff told one of the sisters that she would not sign the deed.  The Son and the sisters signed the deed and an assent to transfer the Property to the Son in escrow (the “draft deed” and “draft assent” respectively).  

17.  Between 30 May and 1 June 2016, the Plaintiff and the Son disputed about her moving out of the Property to enable renovation work to be carried out.  The Plaintiff refused to leave the Property unless the Son paid her $2 million.  There were allegations of assault and police was called.  On 14 June 2016, the Plaintiff commenced the present action.

THE FACTS

The contemporaneous documents

18.  The Plaintiff relied on three contemporaneous documents as evidence of the true nature of the Father’s or the Son’s interest in the Property.  These documents are not contemporaneous to the time of purchase of the Property but were made at a time when the interests in the Property were in issues.  They have probative value and may be treated as the Son’s previous inconsistent statements for the purpose of assessing his credibility and consistency of his evidence.

19.  First, in the affirmation dated 17 July 2013 made by the Son for the purpose of applying for grant of letters of administration of the Father’s estate, he confirmed in paragraphs 8 and 11 of Form N4.1 that the Property was owned by the Father at the time of his death and that the Father did not hold any property as trustee for any person.  Under cross-examination, the Son confirmed the accuracy of the affirmation. 

20.  Under cross-examination, the Son gave the following explanation for the affirmation.  He was a layman and sought assistance from the staff of the Probate Office of the High Court when filling in the affirmation.  He told the officer that the Property was bought by him but held in the Father’s name.  Then he just filled in the affirmation as he was directed by the court staff.  Mr Chong, counsel for the Defendant, referred me to the fact that the affirmation was made on Forms N2.1 and N4.1 and that paragraph 3 of Form N4.1 reads:

“ The Schedule [ie Form N4.1] sets out the assets and liabilities of the Deceased as at the date of his death (including any assets and liabilities of the Deceased in the capacity of a trustee or the manager of a Tso or Tong)” (highlighted by the Defendant)

He also referred to the following words in parenthesis in paragraphs 8 and 11 of Form N4.1:

“(Please copy the exact description of the property as per the Land Registry records)”

Hence, Mr Chong submits that the Son listed the Property in paragraph 8 of Form N4.1 as directed by stating the exact description of the Property as per the Land Registry records.  As the description of the Property as per the Land Registry record does not describe the Father in the capacity of a trustee or the manager of a Tso or Tong, the Son ticked “No” in paragraph 11 of the form.  Mr Chong submits that a fair reading of the affirmation is that the Son confirmed that the Father held the Property as its registered owner without mentioning whether the Father held it as trustee or not.

21.  I find that argument extremely artificial.  It is trite law that construction of document is an attempt to discover what a reasonable person with knowledge of the factual matrix reading the document would have understood the parties to mean.  This involves having regard, not merely to the individual words they have used, but to the agreement as a whole, the factual and legal background against which it was concluded and the practical objects which it was intended to achieve: Jumbo King Ltd v Faithful Properties Ltd & Others [2].  In my view, the meaning conveyed by a plain reading of Form N4.1, particularly paragraph 3, is that the person making the affirmation was required to set out all the assets and liabilities of the deceased including (as highlighted by Mr Chong) those held in the capacity of a trustee or the manager of a Tso or Tong.  The words in parenthesis in paragraphs 8 and 11 of the form only remind the person making the affirmation to be precise with the address or description of the property.  Thus, if the Father held the Property in the capacity of a trustee for the Son, the Son should set out the Property in paragraph 8 of the Schedule by giving its description as per the Land Registry records and then mark a tick in the second box in paragraph 11 to indicate that it was held on trust and not to withhold information about the nature of the interest in the Property.  Mr Chong accepted that the Son rightly set out the Property in paragraph 8.  However, he then made an impossible twist to argue that as the trust property was not described as being held on trust in the Land Registry records, the Son therefore marked a tick in the first box of paragraph 11 of Form N4.1 indicating that the Property was not held on trust.  The construction as submitted by Mr Chong is extremely artificial, absurd and self-serving.  Such a reading renders the form nugatory.

22.  Even without any legal knowledge of the concept of trust, if he was the person who had paid the purchase price of the Property and considered himself as its absolute owner, the Son would not have in a serious document made under oath confirmed that the Property was owned by the Father absolutely and that his Father did not own that Property as trustee for him.  It would have made no difference whatever had he mentioned about any trust over the Property, whether in terms of time, costs and inconvenience.  I note that the affirmation was made with the principal purpose in mind of processing the application for grant of the letter of administration and a layman might not have considered it important to be specific and might have thought it better and more convenient to make things simple than to be precise.  Despite that, I think it appropriate to give that affirmation full weight.  I reject the Son’s evidence and Mr Chong’s argument.  The affirmation also serves as a previous inconsistent statement which discredits the Son’s evidence about his beneficial interest in the Property. 

23.  Second, in the draft deed prepared by the Son’s solicitors, Mandy Wan & Co, and signed by the Son and his three sisters, it stated that “at the date of [the Father’s death], the [Father] was the beneficial owner of the [P]roperty.”  The Plaintiff relies on this document as a clear acknowledgement by the Son that the Property was both legally and beneficially owned by the Father. 

24.  In reply, Mr Chong says that the draft deed is a draft document, was not fully executed and is clearly of no legal effect.  He argues that its contents are subject to correction, alteration, amendment and, more importantly, for the purpose of implementing the 2016 Family Arrangement, it cannot be relied on as evidence showing any acceptance or confirmation of the Father’s beneficial interest in the Property by any person who signed on it or is privy to it. 

25.  The document was a serious legal document prepared on the instruction of the Son and his sisters and on the advice of their solicitors.  Even though it was for the purpose of implementing the 2016 Family Arrangement, it must be assumed that it reflects the instructions given by the Son and his sisters and their rights and obligations as regards the Property and the legal status of the Property confirmed on the advice of their solicitors.  Had the Son told his solicitors that he had paid the full purchase price, his solicitors must have properly advised him of his beneficial interest in the Property and the draft deed would have been drafted differently.  It would have made little difference to the solicitor, had the Son told the truth.  What has to be done was for the solicitor to state the full facts in the preamble and repeat the same agreement in the body of the document.  It lies ill in the Son’s mouth to say that he, his sister and their solicitors conjured something false for the purpose of implementing the 2016 Family Arrangement.  Indeed, Mr Chong’s argument does not go that far. 

26.  Though the draft deed has no legal effect and is still subject to alteration and amendment, that it was signed in escrow by the Son and his sisters indicates that as far as they were concerned it was final only subject to its unconditional acceptance by the Plaintiff.  They have no alterations or amendments to make.  That it has no legal effect does not mean it does not reflect the intention of the signatories and the legal status of the Property.  The document also serves as a previous inconsistent statement which discredits the contrary assertion of the Son in his testimony.

27.  Though this document was prepared for the purpose of transferring the Property to the Son to enable him to obtain the renovation subsidy, it was prepared on the basis of his and his sisters’ instructions to their solicitors and signed by them after it has been duly explained to them and understood by them.  It must be taken as a true reflection of the status of the Property.  By way of contrast, the Plaintiff, who was also a lay person and was not acting under legal advice, knew it was appropriate not to sign the document, not because the Father was not the beneficial owner of the Property, but because she had not agreed to the 2016 Family arrangement.  Her evidence is inherently credible.  I give full weight to the evidence of the Plaintiff and the document.

28.  Third, in the draft assent drafted by Mandy Wan & Co, it is stated that “immediately prior to her [sic] death … [the Property] was vested in [the Father]”.  In the rather confusing language used by the draftsman, I think this sentence meant that at the time of the Mother’s death, the Property which was held in joint names of the Mother and the Father became vested solely in the Father.  The draft assent was intended to give effect to the draft deed and to implement the 2016 Family Arrangement, if executed by the Plaintiff.  Mr Chong adopts his arguments in relation to the draft deed to the draft assent.  For the same reasons as given above, I reject those arguments, give full weight to the fact stated in the draft assent and treat it as a previous inconsistent statement of the Son and his sisters which discredits their testimony in court.

The Son’s contribution to the purchase price of the Property

29.  The Plaintiff’s case is that the Father operated a very successful restaurant in Mongkok in the 1970s and the Property was purchased by the Father out of his profits from the restaurant.  But of course, what the Plaintiff said was just hearsay from the Father during their family conversation.  She has no personal knowledge of those matters.  I give no weight to her evidence.

30.  According to the Son, he came to Hong Kong in 1974 and started off as an odd-jobber in the kitchen of a restaurant.  He was promoted to be a principal chef earning up to $8,000 in 1980.  He had saved up $25,000.  His Mother told her to buy the Property.  The purchase price was $465,000.  Together with his Mother’s savings of $40,000, he paid the initial deposit.  He could not raise any mortgage due to inadequate proof of income and that the Father was of advanced age.  His Mother obtained a loan of $400,000 from her brother Chen Jiajian (“Uncle Chen”) in China to pay the balance.  Later, when he obtained sufficient income proof from his employer, a mortgage loan of $100,000 was raised which was immediately applied to pay off part of the loan from Uncle Chen.  Uncle Chen agreed that the balance may be amortised to him a few years later. Thereafter, he gave $2,000 to $4,000 a month to the Father for repaying the monthly instalments, rates, government rent and management fee.  He paid maintenance to his Mother and after her death to the Father.  He also settled the Father’s business debts on about ten occasions in sums of a few thousand to fifty thousand dollars.  His income was increased to $12,000 in 1983 and he raised a further mortgage loan of $120,000 which was applied to pay off part of the outstanding loan to Uncle Chen.  He increased his monthly payment to the Father to $4,000.  Between 1985 and 1990, he also paid off the debt owing to Uncle Chen by his bonus payments from his employers in sums of around $30,000 to $40,000 each time.  In this way, he paid all the mortgage loans and the loan from Uncle Chen.  In short, he contributed fully to the purchase price of the Property, except for a gift of $40,000 from his Mother. 

31.  The Son’s evidence is about events which occurred some thirty years ago before the Plaintiff even know the Father.  The Plaintiff could have no evidence to contradict the Son’s assertions.  The Son’s evidence are allegations against the dead or someone who is not being called to testify.  Neither the Plaintiff nor the Father could contradict his testimony.  The approach taken by the Court of Final Appeal in Yung Shu Wu v Vivienne Sung Wu is a timely reminder of the caution to be exercised when considering his evidence.  I shall carefully assess his evidence with common sense and realism.

32.  The Son emphasised the fact that according to the record in the Land Registry, the Property was purchased and fully paid before the first property was sold and was then subjected to two mortgages of $100,000 and then $120,000.  The record is consistent with his account that he paid the purchase price with a loan from Uncle Chen and then raised two mortgages to repay Uncle Chen in part. He said that the Father did not use the proceeds of sale of the first property to finance the purchase of the Property, but invested them in his restaurant which had been suffering loss.  He said that the Father’s financial condition was unstable and he had to help to repay the Father’s debt owed to the restaurant in sums of a few thousand to fifty thousand dollars on about ten occasions.

33.  On the other hand, the indisputable facts are that the Father had a partnership interest in a restaurant in Mongkok which generated sufficient profit for the whole family and to pay off the first property.  The Father was a home builder.  That he had stable income from his restaurant at the material time could not be doubted.  He did not indulge in gambling or other vice habits and was not a spendthrift.  The first property was sold for $400,000 which was only $46,000 short of the purchase price for the Property.  Given the Father’s financial position, that price was by no means unaffordable.  Though the first property was only sold a few months after the purchase of the Property, that is not conclusive evidence that the Father could not have financed the purchase of the Property by sale of his partnership shares in the restaurant in Mongkok, or by a short term bridging loan from a bank or from Uncle Chen which he paid back with the proceeds of sale of the first property a few months later.  In the circumstances of this case, if Uncle Chen did provide a loan for the purchase of the Property, that it was a short term bridging loan to the Father is a more plausible proposition than a loan of an indefinite term to the Son.  The Son alleged that the Father had invested the proceeds of sale of the first property in his new restaurant Pak Si Tak and lost them all.  This is a bare assertion.  If the Father had to finance his new restaurant, it is more likely than not that he did so by raising the two mortgages of $100,000 and $120,000 after he had paid for the Property.  Though there is no evidence how the Father financed the purchase of the Property, the indisputable evidence is that the Father was a home builder, had a property and a stable income from his restaurant or two restaurants.  Against that background, the fact that the Property was held in his joint names with the Mother speaks louder than the bare assertion from the Son.  It requires cogent evidence to upset the prima facie evidence in favour of the Father, especially as the Son’s assertions are against the dead who could not testify to contradict his assertions.  The possibility that the Father had paid the purchase price of the Property is not to be lightly dismissed on the basis of the bare assertions of the Son. 

34.  The Son’s monthly income was $12,000.  He had to pay mortgage instalment of $4,000, government rate and rent, utility charges and management fee.  In addition, he had to maintain his own family consisting of a wife and a child, pay pocket money or maintenance for his parents and later, solely for the Father.  He had to travel frequently to work in China.  He also had to help to pay the Father’s debts to his restaurant.  It is difficult, if not impossible, for him to make ends meet.  However, he explained he was a filial son and considered it his obligation to pay for the Property and to maintain his parents without acquiring any beneficial interest or return.  He said he treated it as a gift.  If so, it was a perfected gift.  That would be inconsistent with his case of ancestral home intention and common intention.

35.  When cross-examined on why the Property was put in the joint names of his Father and Mother, the Son replied that it was because they considered him too young and impetuous or impulsive.  He was then 25 years of age.  He had worked in Hong Kong for at least 7 years and was promoted to the rank of principal chef.  By any standard, he is a man of full age and understanding.  When it was his intention to purchase a property with his own funds, it really begs belief that he would agree to have it put under the joint names of his parents simply because they considered him too young and impetuous.

36.  This reason does not survive the test of time.  When the mortgage loan was fully repaid, it would be a convenient time to have the Property transferred to the Son’s own name.  There was no reason consider the Son too young and impetuous by that time.  Again, after the Mother died, it would be convenient and appropriate to have the Mother’s interest in the Property transferred to the Son.  At the latest, when the Father remarried, the Father ought to know that upon his own demise a substantial part of the value of the Property would be passed to the Plaintiff as surviving spouse by operation of law in just the same way as he inherited the Mother’s interest in the Property.  If it was the Son who had paid the purchase price of the Property, the Father would feel it his obligation to transfer the Property back to the Son.  Likewise, the Son would also consider it necessary to protect his interest by asking for a transfer. 

37.  The Father and Mother did not do so during their lifetime to return the legal title of the Property to the Son.  The Son explained that the Father did not do so for superstitious reasons because the Father knew of friends who died shortly after making a will disposing of their title to property.  That was in the context of making a will.  I shall turn to that when I consider the Son’s case of ancestral home intention.   In the present context, if indeed the Property was purchased by the Son and his parents considered him too young and impetuous to hold property then, I would have thought any reasonable parent would have caused the Property to be transferred back to his son at the latest by the time of the Father’s remarriage, not to mention when the Son had fully repaid the mortgage loan.  The fact that the Property was not transferred to the Son after more than thirty years suggests that the purchase price of the Property was not paid by the Son.  As the Son’s allegation is against his Father who is now unable to contradict him, I have reasons to be cautious.  The Son could not explain why he did not ask for a transfer.  He had another explanation, which is the ancestral home intention.  I shall turn to that later.  At this stage, my focus is on payment of the purchase price or contribution to part of the purchase price.

38.  The Plaintiff also attacked the Son’s credibility by referring to the three contemporaneous documents referred to in the preceding subsection.  In addition, she also referred to the Son’s and elder sister’s conduct during the heated confrontation on 15 June and 27 December 2016.  On those occasions, they never alleged that the Son was the true purchaser of the Property or had partly financed its purchase.  The Son explained that he did not refer to those matters because he did not wish to irritate the Plaintiff. By that time, the Plaintiff had applied for injunction against the Son.  Their relationship had turned very sour.  The alleged concern for the feeling of the Plaintiff is a little artificial.

39.  The only reliable documentary evidence of his payment of the mortgage loan and other payment to the Father consists only of a copy of one cheque used to pay the instalment loan and another copy of a cheque to pay the Father’s debt owed to the restaurant.  Remarkably, the Son asserted that he had collected copies of cheques as evidence of his payment of the mortgage loans and he paid a fee of $20 for each copy, which he accepted was quite a sum in the 1980s; but he has lost them throughout the years and could only produce these two copies.  If his account is true, there could be one to two hundred such copies for the two mortgages.  The fact that he paid and kept these two copies for twenty to thirty years suggests that he knew the importance or need to preserve the evidence.  Yet, with that intention to preserve evidence, his foresight and his readiness to pay for the copies, he could only produce two copies of the cheques.  This suggests that these two copies are all that he had.  If he had made other payments he would have preserved such evidence.  His assertion that he had paid all the mortgage instalments but lost the other copies of cheques is exaggeration and incredible.  Furthermore, he could have simply kept the facility letters, mortgage documents and receipts without even having to make copies, not to mention paying $20 for each page of the document.  There must be a reason for his paying and keeping the copies of cheques.  Possibly, they were kept as evidence of settling liabilities of the Father to his restaurant, but probably not as evidence of his contribution to the purchase price of the Property.  Probably, he is trying to capitalise on the two copies which he has kept for some other reason to blow up his case.  None of the payments to Uncle Chen was evidenced.  None of the mortgage documents or payment was evidenced.  Except for those two copies of cheques and the undisputed evidence that he contributed to the household expenses of the Property in which he and his family also lived, his allegation of paying the full purchase price or contributed to part of it is just a bare allegation.  These two copies of cheques are not sufficient to support his case of having paid or contributed to the purchase price of the Property.

40.  On the totality of the evidence, including the contemporaneous documents and the surrounding circumstances, I do not accept the Son’s evidence that he had paid the full purchase price of the Property.  I accept, however, that he had contributed to the household expenses, settled some occasional debts for the Father and gave him some maintenance payments.  But the Son has failed to establish the extent of his contribution.

The ancestral home intention

41.  The Son’s second ground is the ancestral home intention.  The ancestral home intention is actually founded on the first ground, ie that it is the common intention which arose from the Son paying the purchase price of the Property and putting it under the name of his parents.

42.  The Son’s pleading of the ancestral home intention was extremely obscure.  In paragraph 11 of his Defence and Counterclaim, he pleaded:

“ In 1981 when the Property was purchased, the [Son] was about 25 years of age. Since the [Father] and [the Mother] worried that the [Son] was young and impetuous, the Property was purchased and registered in their joint names instead. But their true intention and purpose was to purchase the Property as an ‘ancestral home’ for the whole family accommodation; and the [Son] being the only male descendant of the family, was the ultimate sole beneficial owner of the Property. All along, all family members were well aware of the fact that the Property was an ‘ancestral home’ and understood that, although the beneficial interest of the Property vested in the [Son] he was not allowed to sell the Property when his parents were still alive. Sharing this common intention and purpose, the [Son], the [Father], [the Mother], Fan and the [Son] all together inspected properties and finally made the collective choice and decision in the purpose of the Property.”

His evidence is similarly obscure and equivocal.  He said his Mother asked him to buy the Property and gave him $40,000.  Apart from a bare assertion, there was no particulars as to what was said to evidence the ancestral home intention and the circumstances in which it was said.  There is not a shred of evidence as to the content of that intention.  All that he pleaded and said in evidence was “ancestral home” and an understanding that it shall be used as the residence of the family, that it may not be sold during the lifetime of the Father and that it will be passed to him as the sole male descendant of the family after the Father’s death.  It seems that the intention was not an express intention but a presumed intention or unspoken understanding.  Apart from the unspoken intention of his parents and himself or the unspoken understanding of his sisters, there is absolutely no evidence as to the contents of the intention and no evidence on which such an intention could be inferred. 

43.  The Son has not adduced expert evidence about the legal incidence of an ‘ancestral home’.  I can only approach that issue on a common sense basis.  An ancestral home is, by common understanding and as the term suggests, a home provided by the head of the family or the ancestor for his younger generation and from generation to generation, like land held on trust by a Tong or Tso.  The Son said that as he is the sole male descendant, the ancestral home shall belong to him but he can dispose of it by sale only after the Father’s death.  The characteristics of the ancestral home described by the Son are alien to this concept.   

44.  The Son relies on the altar set up in the Property as evidence that it was used as an ancestral home and as evidence of the ancestral home intention.  To my knowledge, the altar is not anything to be peculiarly found in ancestral homes.  Traditional Chinese families, particularly those practising Buddhism and Taoism, set up altars in their homes for paying respect to ancestors, and miniature shrines for worshiping gods guarding the doors to heaven (Tin Sun; 天神) or protecting the kitchen (Cho Kwan; 炊君), or for worshiping spirits guarding the door to the property (Mun Koon; 門觀) or the property (Di Chu;地主).  Family altars are set up in privately owned properties or rented accommodations and even in rented cubicles.  The practice has been fading out with westernisation and the phasing out of the older generation on the one hand and reduction in the size of the family home due to escalating property price on the other.  I do not think an altar by itself has much bearing on the family home intention.

45.  The term “ancestral home” as I have suggested implies it is a property provided by the ancestor for his younger generation.  Here, the Son’s case is that it is to be provided by him, a man of 25 years of age whom the Father and Mother considered too young to hold property and on whom the Father imposed a burden to pay for the benefit of the older and the future younger generation.  If the Father was the one to pay for the purchase of the Property, it would have made more sense or been easier to accept it as the Father’s intention to purchase the Property as an ancestral home.  But his evidence is that the purchase price of the Property would, at the time of purchase, be and actually was wholly paid by him (except for the small gift of $40,000 from the Mother).  If the Son was the one to pay, why should the Property be treated as the ancestral home and be subjected to the use by his sisters, at least during their lifetime, and be subjected to the restriction that he may not sell it for his own purposes so long as the Father is alive? 

46.  The ancestral home intention utterly fails when tested against the Father’s conduct.  The Father did nothing to give effect to the alleged ancestral home intention or the 2010 Family Arrangement.  He did not leave a will to bequeath the Property to the Son; or to transfer the Property to him by an inter vivos assignment; or even make the Son a co-tenant of the Property.  Even without legal advice, he must have known from his inheritance of the Mother’s share in the Property that if he did not do so, the Property will fall into his estate and be distributed to all beneficiaries to the detriment of the Son who had paid the purchase price.  It should be noted that it is Fan’s evidence that she had actually suggested the Father to make a will.  Thus, the Father had been appraised of the legal consequence.  Fan said that the Father refused because of superstitious reasons and then died making it impossible to give effect to those intentions.

47.  I do not find the ‘superstitious reasons’ easy to accept.  The Father could have added the Son as a co-tenant without divesting himself of the Property entirely and without provoking any issue of superstition.  He had added the Plaintiff’s name as a co-owner of the Guangzhou Property.  He did not find any superstitious reasons not to do so.  More importantly, on the Son’s own evidence, the Father had been ill-treated and neglected by the Plaintiff and was “world-weary”.  The Son said he was told by the doctor that the Father suffered malnutrition, refused medication and threw away the medicine prescribed to him.  To a “world-weary” person, superstition could no longer be a concern. 

48.  The Son visited the Father in hospital two days before his demise.  He said that the Father was weak but was of very sound mind.  He said he had urged the Father to make a will to avoid any dispute.  The Father must have realised the consequence of intestacy.  On the Son’s case, he paid the purchase price of the Property, he and the Father had a common intention to make the Property an ancestral home to be passed onto him and for that reason had made the 2010 Family Arrangement.  The Father was of sound mind.  On such a scenario as painted by the Son, any reasonable father in the position of the Father would not have wanted the Property purchased by the Son to fall into the hands of such an undeserving and neglecting wife who would also inherit the Guangzhou Property upon his demise.  He must also have appreciated the urgent need to make a will when he was being hospitalized in March/April 2012.  But that was not what the Father did.  In my view, the Father’s refusal to make a will or to dispose of the Property against the Son’s and Fan’s request or advice is strong evidence of the Father’s conscious intention to allow the Property to fall to be distributed along with his estate in accordance with the law of intestacy.  It is evidence that there was no such common intention of making the Property an ancestral home.  It is also evidence which suggests that the Son had not actually paid or contributed to the purchase price of the Property. 

49.  In conclusion, I find that the Son’s case of ancestral home intention was inadequately pleaded and unsupported by evidence of its content.  It has no realism but raises scepticism.  I do not accept his evidence about the ancestral home intention or that he had paid or contributed to the purchase price of the Property.  He has fallen far short of discharging his burden of proof.

The 2010 Family Arrangement

50.  The Son relies on the 2010 Family Arrangement as evidence of the ancestral home intention and as an independent contractual right to the beneficial interest in the Property.  According to the Son, one evening when the Father, the Plaintiff, the Son and his three sisters were having dinner in a family gathering, the Father expressed his wish of wanting to leave a home for the Plaintiff after his death.  The Father requested Ling and Bing to transfer the Guangzhou Property to him as a gift which he would put it in joint names with the Plaintiff so that she would become its owner and to live there after his death.  The Father also made it clear that the Property in Hong Kong was an ancestral home and since the Son was the only male descendant and had contributed to the purchase of the Property, the beneficial interest of the Property all along was vested in the Son.  The Son also agreed to let his sisters use the Property whenever necessary in future.  Then, pursuant to the 2010 Family Arrangement, Bing and Ling transferred the Guangzhou Property to the Father at nil consideration and later the Father added the Plaintiff as his lawful wife and owner of the property. 

51.  The Son and his sisters testified in support of the 2010 Family Arrangement, but the Plaintiff denied there was any such arrangement.  It is all a matter of credibility.  The Son and the Plaintiff are interested parties while the sisters are technically independent witnesses and not interested in the outcome of this action.

52.  It is argued by the Plaintiff that the Guangzhou Property was purchased by the Father, but she could produce nothing but hearsay evidence.  Be that as it may, the younger sisters were registered owners of the Guangzhou Property for more than twenty years.  Even back in 2010, it must be of substantial value to them.  They transferred it to the Father for nil consideration. Things do not happen for no reason.  What was the reason?  There are two possibilities.  First, the Guangzhou Property was in fact purchased by the Father, not the Mother, and the Father wanted it back for the Plaintiff.  Bing and Ling had to comply.  Second, it was an exchange for something.  But what was that ‘something’?  Impliedly, on the Son’s and his sisters’ evidence, it was the Plaintiff moving out of the Property to reside in Guangzhou so that the Son will inherit the Property as the sole male descendant of an ancestral home and a contributor to the purchase price of the Property.  But their evidence does not go that far as to assert that the Guangzhou Property was transferred in return for the Son being given the beneficial interest in the Property.  The evidence was that it was just a one-way gift of the Guangzhou Property to the Plaintiff and an independent assertion of ancestral home intention as regards the Property.  But that ancestral home intention has been dismissed as not being supported by sufficient evidence of the Son’s payment of or contribution to the purchase price of the Property.  I am therefore not satisfied that that it was part of the reason for the transfer of the Guangzhou Property.  The implied intention above was not a necessary term to be implied into the agreement. 

53.  The objective surrounding circumstances were that the Father was in his failing years.  He died two years later.  Probably he was not enjoying good health then.  The Plaintiff had a long standing relationship with him, having been married for 21 years by then.  On the undisputed evidence, she had a harmonious relationship with the step-children at the time and paid respect to the Mother during Ching Ming.  It is reasonable to expect the Father as a dutiful husband to make financial provision for the Plaintiff in his failing years.  It may not be sufficient to provide just a home for the Plaintiff without providing a source of funds for her maintenance.  How much to provide was a matter for the Father.  The gift of the Guangzhou Property may be just part of those provisions to be supplemented by part of the proceeds of sale of the Property. 

54.  Towards the end of 2016, the Son and the Plaintiff had serious disputes about the Plaintiff moving out of the Property to enable renovation works to be executed.  Their dispute resulted in injunction having been ordered against the Son.  The Son and his elder sister confronted the Plaintiff on 15 June and 27 December 2016 to persuade her to leave the Property to enable renovation work to be carried out.  The Son caused their conversation to be recorded.  In that conversation, neither the Son nor Fan referred to the 2010 Family Arrangement or ancestral home intention or that the Son had contributed to the purchase price of the Property.  The Son only emphasized that he had been paying the utility charges in respect of the Property. 

55.  Under cross-examination, the Son explained that he had forgotten to mention those matters.  That is incredible as those matters are at the heart of the dispute in which the Son claimed to be the beneficial owner of the Property and that the Plaintiff was only a licensee whose continued stay in the Property was at his mercy.  Then, the Son changed his evidence and asserted that he did not raise those matters as he did not have the supporting evidence on 15 June 2016.  This is flatly contradicted by his written statement.  Then, he changed and asserted that Fan had referred to those matters.  Again, that turned out to be wrong.  Then, he explained the omission by saying that he had no legal knowledge and would only raise these points before the court.  Lastly, he explained that he did not mention those matters to avoid irritating the Plaintiff.  I find no conviction in that explanation as the parties’ relationship had turned very sour by then.  Why should the Son be concerned about the feeling of the Plaintiff?  As those matters go to the heart of his case, he should have hit the nail on the head.  But those matters were not even raised in the earlier correspondence from his solicitors and notices issued by the Son.  The Son’s failure to refer to those matters suggests that they were recent concoctions.

56.  What is more telling is the fact that the Father did nothing to give effect to the alleged ancestral home intention or the 2010 Family Arrangement.  According to Fan, in 2010 she had asked the Father to make a will to that effect to avoid dispute, but the Father refused. That was contemporaneous to the making of the alleged 2010 Family Arrangement.  The Father did not leave a will to bequeath the Property to the Son; or to transfer it to him by an inter vivos assignment; or even make the Son a co-tenant of the Property.  For reasons as stated in the preceding subsection, I do not accept the Son’s explanation premised on ‘superstitious reasons’.  As I have held, the Father’s refusal to make a will or to transfer the Property to the Son against the Son’s and Fan’s requests or advice is evidence of the Father’s intention to allow the Property to fall to be distributed along with his estate in accordance with the law of intestacy.  This intention is inconsistent with the common intention to make the Property an ancestral home and to pass it to the Son after the Father’s death or with the existence of any agreed arrangement that the Property shall belong to the Son after the Father’s death.  It is also inconsistent with the Son’s case that the purchase price of the Property was paid by him, which is the basis on which the Son’s case of ancestral intention, common intention and 2010 Family Arrangement is built. 

57.  Obviously, some family arrangement had been reached in 2010, but the evidence is not sufficient to prove what its terms were or that the ancestral home intention did exist.  It could well have been the Father’s intention to gift the Guangzhou Property to the Plaintiff in addition to a share in the rest of his estate in accordance with the law of intestacy as her maintenance.  The Plaintiff married the Father when they were respectively 46 years and 60 years of age.  The Father might have intended a good life for the Plaintiff who had spent her “still gainful” years with a man 14 years his senior and looking after him for the past 21 years.  This was not an unreasonable manner of distribution in view of the Father’s long relationship with the Plaintiff.  How to distribute his estate was a matter for the Father.  But the Father persistently and consistently show an intention not to allow the Property to be passed to the Son.  Probably, the Son had not paid or contributed to the purchase price, and there was no such ancestral home intention or 2010 Family Arrangement as alleged.  The Son bears the burden of proving those matters, but has failed to discharge that burden.

The 2016 Family Arrangement

58.  There is little to be said about the 2016 Family Arrangement.  According to the Son, he and his sisters had agreed with the Plaintiff in mid- 2015 that the Property belonged to the Son and the Son will bear the cost of renovating the Property.  To enable him to take advantage of the government subsidy, it was agreed to transfer the Property to the Son.  Hence, arrangement was made on 22 May 2016 to sign documentations in the office of Mandy Wan & Co on 29 May 2016.  But the Plaintiff did not turn up.

59.  The Plaintiff denied having reached agreement to sign documentation to transfer the Property to the Son.  She said the Son and Fan had been exerting pressure on her to sign the documentation.  Fan even stayed in the Property the night before with a view to take her to the solicitors’ office to complete the formalities.  So she left the Property quietly very early in the morning and declined going to the solicitors’ office.  She sought advice from a district counsellor and was advised not to sign unless she had legal advice.

60.  I am inclined to believe the Plaintiff’s evidence.  If there was an agreement to transfer the Property to the Son in mid-2015, it begs belief why it was not until a year later that the Plaintiff was asked to sign the documents.  It is more likely than not that the Son, somehow, was advised that a deed of family arrangement and an assent were required to enable the Property to be transferred to him.  But there is no need to resolve the factual dispute. 

61.  The Son’s evidence, put at the highest, is that an oral agreement was reached along the terms of the draft deed of family arrangement and it was agreed to execute the deed and assent in the office of Mandy Wan & Co on 29 May 2016, but then the Plaintiff changed her mind because someone advised her about her rights under the Intestates’ Estates Ordinance.  She indicated her intention not to execute the documents that morning. Whether the Plaintiff had agreed but changed her mind is neither here nor there.  The effect of the deed and assent was to dispose of the Plaintiff’s interest in land.  Section 3(1) of the Conveyancing and Property Ordinance (Cap 219) provides:

“ Subject to section 6(2), no action shall be brought upon any contract for the sale or other disposition of land unless the agreement upon which such action is brought, or some memorandum or note thereof, is in writing and signed by the party to be charged or by some other person lawfully authorized by him for that purpose.”

The 2016 Family Arrangement even it existed as an oral agreement is unenforceable.  It was not in writing and there was no part performance of any kind.  The oral agreement could not assist the Son.  On the contrary, the draft deed and draft assent served as previous inconsistent statements which contradict the Son’s case that he paid the purchase price of the Property and was its beneficial owner.

The Son’s other financial contributions

62.  I have dismissed the Son’s evidence that he had paid or contributed to the purchase price of the Property but accepted his evidence that he had contributed to the household expenses, such as rates, government rent, management fee and utility charges in respect of the Property, that he had paid the Father’s maintenance, and that he had settled some of the Father’s business debt, which I conveniently refer to as “other financial contributions”.  But the Son has not established the extent of such other financial contributions. 

63.  So far as the law is concerned, such monetary contribution is insufficient to raise the inference of a common intention that by making such contribution the maker shall have a share in the interest of the property owned by the recipient of such contribution.  In Mo Ying v Brillex Development Ltd [3], the Court of Appeal held that financial contribution is always a relevant factor for considering common intention, but it is only one of the factors to be taken into account.  The underlying reason was explained in the later Court of First Instance decision in Fung Oi Ha v Fung Pui On and Anor [4] as follows:

“ 95.  Even if I erred in rejecting Oi Ha’s factual case on contributions, the law has moved on and away from focusing just on financial contributions.

96.  In Stack v Dowden [2007] 2 AC 432 at 459 [69], Baroness Hale advocated a holistic approach and gave a long list of examples of factors relevant for establishing the parties’ intention for the purpose of a constructive trust (though in the context of joint legal ownership of a home):

‘69.  In law, ‘context is everything’ and the domestic context is very different from the commercial world.  Each case will turn on its own facts.  Many more factors than financial contributions may be relevant to divining the parties’ true intentions.  These include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the home was acquired in their joint names; the reasons why (if it be the case) the survivor was authorised to give a receipt for the capital moneys; the purpose for which the home was acquired; the nature of the parties’ relationship; whether they had children for whom they both had responsibility to provide a home; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses. ….’  (emphasis added)

97.  Her Ladyship made it clear in [70] that this is not an exhaustive list.

98.   This same holistic approach was applied by the Privy Council in a context where only the husband was registered as the sole owner of the property in Abbott v Abbott [2008] 1 FLR 1451.

99.  In Hong Kong, see Chan Chui Mee v Mak Chi Choi [2009]1 HKLRD 343 per Johnson Lam J at 350 – 351 [16] – [21].

100.  Given the multifactorial nature of the question of intention,just as there are cases where the proof of financial contributions by one who is not the legal owner or in excess of one’s share of legal ownership may readily justify the inference of an intention to share beneficial ownership, there would conceivably be instances where the establishment of financial contributions do not support the inference of a common intention to share beneficial ownership. I am inclined to think that this present case is just such an instance.”

The court has to take a holistic approach and consider the context in which the property was acquired and financial contribution was made; and then decide whether the circumstances justify the inference of a common intention on the part of the owner and the contributor to share in the beneficial interest in the property. 

64.  On the fact, the Son’s other financial contribution is limited only to about ten payments to settle the Father’s business debt; contribution to the household expenses, government rates and rents, utility charges and maintenance for the Father.  These contributions were made subsequent to the purchase of the Property.  They have no connection between the contribution and the purchase.  They cannot give rise to any common intention or the ancestral home intention.

65.  As Baroness Hale said in Stack v Dowden [5], in inferring common intention, the court must adopt a holistic approach and that context is everything.  Here, the relationship between the owner of the Property and contributor is a domestic one between the parents and the son.  In Fung Oi Ha [6], the court approached such a relationship as follows:

“ 102. The relationship with which I am concerned is that between parents and children in what appears to be a conventional Chinese family practising traditional family values. In such a setting, the parents raise and provide for the children until adulthood. It is then commonplace for the children, after they attain financial independence or some measure thereof, to share with the parents a portion of their income. This may be done for a variety of reasons. Sometimes, the children are acting out of natural love and affection for the parents. Sometimes, they are required to do so by the parents. Sometimes, they volunteer to perform their filial duties to the parents. Sometimes, they are motivated by a moral obligation to help with the care of younger siblings who are still at school. Sometimes, the burden of the family expenses may require sharing. The children’s contributions may or may not happen to be used to discharge mortgage loan payments and outgoings and expenses of the family home. I daresay, in a lot of these cases, the parents (and probably the children too) would be taken aback if they be told that, even in the absence of an express agreement or arrangement or understanding, the children’s contributions could be used to support the inference of an intention to share the beneficial interest of the parents’ property (which may be the parents’ only shelter in old age) if such contributions should happen to be applied toward the mortgage payments of the property.”

66.  I whole-heartedly agree with the sentiment expressed by the learned judge and adopt the same approach.  As the Son lived in the Property rent free, the primary inference to be drawn from his other financial contributions is that he was discharging his obligation for the liability arising out of his use of the Property rather than for the purpose of acquiring a share in the beneficial interest in the Property.  Those contributions were reasonable obligations of a tenant, if not a son.  I am unable to infer any common intention among the Father, the Mother and the Son that the Son was to receive a share in the beneficial interest in the Father’s Property. 

67.  More importantly, under re-examination, the Son stated that he had not thought about the issue of ownership when he contributed to the purchase price of the Property.  He expressly confirmed that he had no expectation of reward but rather considered it his duty to support his parents.  This is all the more so with his other financial contributions.  His younger sister also confirmed that the Son was a dutiful and filial son. 

68.  Given the multifactorial nature of the question of intention and the nature of the Son’s other financial contributions and the Son’s own evidence of his actual intention when making the contributions, I am unable to infer any common intention among him, the Father and the Mother that he shall receive a share in the interest of the Property, let alone that share is unquantifiable.

BENEFICIAL OWNERSHIP OF THE PROPERTY

Introduction

69.  As I have said, the single most important factual issue is whether the Son can discharge the burden of proving that he had paid or contributed in part to the purchase price of the Property.  For reasons as given above, I find unreservedly against the Son.  He has failed to discharge the burden of proving all of his grounds: ie that he paid or contributed to the purchase price of the Property; that the Property was purchased with the common intention of using it as ancestral home and to be passed onto to him after the Father’s death; and that the Plaintiff was a party to the 2010 Family Arrangement containing a term to that effect.  He has also failed to prove his other financial contributions could raise any such common intention.  These findings are sufficient to dispose of the major claim in this action.

70.  Counsel have made very lengthy submissions on the law. In view of the above finding of fact, those submissions are quite unnecessary.  I shall deal with them very briefly. 

Constructive trust

71.  A constructive trust arises in connection with the legal title to property wherever one party, in reliance upon his common intention held with another party, has so conducted himself to his detriment or significantly altered his position that it would be inequitable to allow that other party to deny him of a beneficial interest in the property acquired: Mo Ying v Brillex Development Ltd (CA) [7].

72.  The common intention relied on by the Son is the ancestral home intention which arose by reason of his payment or contribution to the purchase price of the Property.  The detriment he relied on is also the fact that he had paid the purchase price or contributed to the purchase price or other financial contributions.

73.  On the fact, he has failed to discharge the burden of proving that he had paid or contributed to the purchase price of the Property. That is the basic fact on which his case of ancestral home intention and on which his case of detriment is built.  He has failed to prove both.  What is left is his other financial contributions.  In paragraphs 41 – 49, I have found those contributions insufficient as a matter of law and fact to raise the ancestral home intention or any common intention that by reason of those contribution he shall have a share in the beneficial interest in the Property. 

74.  Detrimental reliance is an element common to both proprietary estoppel and common intention constructive trust.  There must be sufficient connection between the promises relied on and the conduct which constitutes the detriment: Fung Oi Ha [8] and Mo Ying v Brillex Development Ltd (CFI) [9].  The party asserting a claim to a beneficial interest must show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement, arrangement or understanding in order to give rise to a constructive trust.  There must be some connection between the plaintiff’s conduct and his/her belief that he/she has an interest in the property.  To constitute conduct amounting to an acting upon the common intention, it must be conduct on which the plaintiff could not reasonably have been expected to embark unless he/she was to have an interest in the property.  As for detriment, it is not a narrow or technical concept.  The detriment need not consist of the expenditure of money or other quantifiable financial detriment, so long as it is something substantial.  The requirement must be approached as part of a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.  There must also be a link between the assurance and the detriment which is to be judged at the moment when the estopped party seeks to go back on the assurance, although the promise relied upon may not have to be the sole inducement for the claimant’s conduct: Chan Qun Yuk v Kwan Siu Mui [10].  The assurance need not be the sole or primary motivating factor behind the person acting to his detriment.  It is sufficient that the representation induced or influenced his decision to perform the relevant acts: Chum Mei Diu v Sum Fan Hung [11].

75.  The Son relies on his payment or contribution to the purchase price of the Property and his other financial contributions as detriments.  As he has failed to prove those payments or contributions and other contributions, I am unable to find there was any detriment suffered by the Son.  In any event, it has been held in many cases that monetary contributions to household and renovation expenses may not qualify as “detriment”, as “the mere payment of household expenses is not an expenditure that is referable to the acquisition of the property”: Mo Ying [12]and Jong Lan Kiauw v Jong Yang Hwa and Anor [13].

76.  Accordingly, the Son’s claim based on constructive trust fails.

Resulting trust

77.  Where a person purchases property with his own money and directs that the property be transferred to the name of another, in the absence of evidence to the contrary, there is a presumption that the property is held by the person to whom it was transferred under a resulting trust in favour of the person who provided the money for its purchase.  The law imputes a common intention in the parties to hold the property under a resulting trust even in the absence of such intention.  This presumption may be rebutted by proof of the actual common intention of the parties.  The classic authority for this proposition is Dyer v Dyer [14].  As there is no evidence that the Son actually paid or contributed to the purchase price of the Property and put it under his parents’ name, his case of resulting trust cannot even get off the grounds.

Proprietary estoppel

78.  The necessary elements of proprietary estoppel are:

(1)  a representation or assurance made to the claimant;

(2)  reliance on it by the claimant; and

(3)  detriment to the claimant in consequence of his/her reasonable reliance.

79.  The representation and detriment relied on by the Son are the ancestral home intention and his paying or contributing to the purchase price of the Property and other financial contributions.  As I have already found, he has failed to prove both elements.  His claim based on proprietary estoppel must necessarily fail.

Conclusion — beneficial ownership of the Property

80.  In conclusion, I find that the Father was the beneficial owner of the Property.  Accordingly, the Property falls to be distributed in accordance with the law of intestacy under the Ordinance.  The Plaintiff will receive the major share of the Father’s estate.  That has a major bearing on the remedies sought by the Plaintiff.

THE FATHER’S PERSONAL CHATTELS

81.  There were serious disputes of fact as to what happened after the Father’s death.  The theme of the Plaintiff’s case is that during the lifetime of the Father, she had a good relationship with the step-children, but their relations turned sour after the Son obtained the grant of letters of administration and turned very sour since 2015 when the Son attempted to force her out of the Property under the excuse of renovating the Property.  The Son’s case is that their relationship had always been good until the Plaintiff demanded $2 million for her leaving the Property.

82.  According to the Plaintiff, before the Father’s death, the step-children acknowledged her as their step-mother.  She and the Father visited the daughters in Guangzhou and had dinners with them together.  The Plaintiff also paid respect to the Mother during Ching Ming Festival.  After the Father’s death, the Son went to the Property and took away things of value, including the Father’s Rolex watch, a gold plated peach ornament, laisees and her watch.  He returned her watch when the Plaintiff claimed that it was hers.  Then, one day in April shortly after the Father’s death, the Son asked her to take out everything from the deposit box in the bank held by the Father in joint names with the Plaintiff.  The Plaintiff did as she was told and handed over all items kept in the deposit box, which included a bundle of documents believed to be the title deeds of the Property.

83.  Then, the Son persuaded her to entrust the probate matters to him, saying that she was unable to handle the procedure.  The Plaintiff agreed as she had a harmonious relationship with her step-children and the Son appeared to be sincere.  As arranged by the Son, she executed a Declaration of Renunciation of Administration of the Deceased’s Estate in the High Court on 17 July 2013 (the “Declaration”) renouncing her right to be appointed as administrator of the Father’s estate.  After the Son was appointed, their relationship started to turn sour.  On two occasions in July 2015, she invited her younger sister to stay with her in the Property for a few days.  When the Son discovered that, he drove her sister away and created a scene.  The Son attempted to drive the Plaintiff out of the Property under the excuse of renovation.  The Son and Fan also attempted to coerce her to sign the draft deed and draft assent in the office of Mandy Wan & Co on 29 May 2016.  The Plaintiff had to avoid being forced to do so by leaving the Property early that morning.

84.  The Son’s case is diametrically opposed.  He denied the allegations of the Plaintiff.  He said his relationship with the Plaintiff has always been good and he treated her as his step-mother and gave her pocket money.  He denied taking away the Father’s personal chattels or anything from the safe deposit box.  He said when he first opened the box upon having obtained the grant of letters of administration he found the box empty.  He alleged there were packets of jewelleries left by his Mother to his sisters kept in the safe deposit box.  He denied attempting to force the Plaintiff out of the Property.  He only wanted her to stay out of the Property for her own safety while the renovation was progressing.  It was always his intention that the Plaintiff has a life interest in the Property as it is an ancestral home.  Their relationship really turned bad when the Plaintiff demanded $2 million for leaving the Property.

85.  I do not find it necessary to embark on a forensic analysis of the parties’ evidence on these issues.  A global view of the parties’ credibility is sufficient.  I note that the Plaintiff denied having been explained by the court staff the meaning of the Declaration she signed in the Probate Office.  That is highly incredible given the interpretation clause on the Declaration.  There is an element of dishonesty in her denial.  A witness in despair may resort to such meaningless excuses believing it would help to explain what he or she did.  In the present case, her explanation adds nothing to her case that she was induced by the Son to sign the documents.  I also note that she has not been truthful in denying that she made a demand of $2 million.  That is inconsistent with her statement to the police.  There was nothing wrong to make such a demand in view of her entitlement under the Ordinance.  What was wrong was her dishonesty in hiding the fact that she had made such a demand which she felt too shy to admit as a step-mother. She was shown to be dishonest in petty matters.  But by way of contrast, on my finding, the Son was shown to be dishonest in more serious matters as to assert that he had paid or contributed to the purchase price of the Property and the ancestral intention.  He even did so at the expense of smearing the Father’s financial ability.  As between the Plaintiff and the Son, I accept the Plaintiff’s evidence.

86.  There is no dispute that the Plaintiff had a harmonious relationship with the step-children with whom she had spent 21 years.  She has no children of her own.  She considered the Son and his sisters as part of her family and her children.  She was widowed and helpless after the Father’s death.  It was reasonable for her to place reliance on the Son.  She found it difficult to resist the Son’s removing the Father’s personal chattels from the Property, including the gold plated peach ornament which was a gift for the Father on his grand birthday and the Rolex watch.  It should be noted that it is never the Son’s evidence that the Father did not have a Rolex watch.  It is a usual piece of jewellery for restaurant proprietors.

87.  The Plaintiff was a simple housewife.  Similarly, she would not be wary when told to handover the contents of the safe deposit box to the Son whom she trusted for probate purposes and did as she was told.  On the contrary, the Son’s and Fan’s assertions that there were packets of jewellery in the safety box left by their Mother is incredible.  Their Mother died almost thirty years ago.  If she had left any jewellery for her daughters, they must have been distributed long time ago if not shortly after her death.  I find that assertion a dishonest attempt to smear the Plaintiff.  It is not credible and it damaged the Son’s and Fan’s credibility.  I accept the Plaintiff’s evidence that there was nothing substantial in the safety deposit box other than the title deeds of the Property.

88.  In conclusion, I am satisfied that the Son has not truly accounted for the personal chattels of the Father and should be ordered to render an account.

89.  Further, without going into the details of the parties’ allegation as to their rights and wrongs about their hostility with each other, there is no dispute that there was hostility.

THE RELIEF TO BE AWARDED

90.  The above findings are sufficient for me to decide on the relief to be awarded.  In view of my finding that the Plaintiff is entitled to the major share in the Property and that the parties are hostile, the remedies to be awarded will lean in favour of the Plaintiff.  

91.  On the above finding, the Plaintiff is entitled to the lion’s share of the Father’s estate, which includes cash of $500,000, his personal chattels and half of the proceeds of sale of the Property.  The Property is now held in the Son’s name as the administrator of the estate.  The Son has put up a false case with a view to keep the Property solely to himself and with the collaboration of his sisters.  He has demonstrated his unwillingness to perform his duty as administrator in distributing the estate.  He has a serious and real conflict of interest in continuing his position as the administrator.  It is envisaged that there will be great resistance on the part of the Son in giving effect to the distribution under the Ordinance.  He needs to be removed from his position as administrator.

92.  The relationship between the parties is hostile.  There will be mistrust between the Son and the Plaintiff, whoever shall have the conduct of probate matters.  However, as the Plaintiff is the major beneficiary, it would be appropriate to remove the Son and appoint the Plaintiff as the administrator of the estate.  What is now left is the sale of the Property and distribution of the proceeds.  It would be a simple operation, which could be conveniently and safely entrusted to the Plaintiff and her solicitors handling the sale.  To appoint an independent third party solicitor as administrator would be too costly and incommensurate with the size of the estate.  For avoidance of doubt, I give a further direction that credit should be given to the renovation costs incurred by the Son on the Property.  Such costs should be reimbursed to the Son from the proceeds of sale of the Property.

93.  Accordingly, I grant the Plaintiff the following relief:

(1)  leave under section 31 of the Probate and Administration Ordinance (Cap 10) to retract the Declaration of Renunciation of Administration of the Deceased’s Estate dated 17 July 2013;

(2)  an order pursuant to section 33(1) of the Probate and Administration Ordinance to revoke the Grant of Letters of Administration of the Estate dated 31 July 2013 issued to the Defendant; and

(3)  a fresh grant to the Plaintiff upon her retraction of the said Declaration.

94.  Further, I make an order, pursuant to section 56 of the Probate and Administration Ordinance that the Defendant do:

(a)  exhibit upon oath/affirmation in the High Court a true and perfect inventory and account of the whole of the estate as from the date of death and up to date;

(b)  give a full and proper account by way of oath/affirmation of all the administrator’s dealings, payments and/or distributions; and

(c)  pay the estate all sums found due to the estate.

95.  I make an order nisi that the costs of this action including all costs reserved be paid by the Defendant to the Plaintiff, to be taxed if not agreed; and the Defendant’s own costs be taxed in accordance with Legal Aid Regulations.

96.  I unreservedly apologise to the parties for the late delivery of this judgment.  For some reasons, the file has been misplaced due to an oversight.