SIAO MIU HUA (蕭妙華) SUED BY MA SIU YEE JOANNA (馬紹儀) HER NEXT FRIEND v. WU CHING KUEN (胡靜娟) THE ADMINISTRATRIX OF THE ESTATE OF MA CHIU HOI SANFORD (馬照海), DECEASED

HCA 1396/2016

[2024] HKCFI 232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1396 OF 2016

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J U D G M E N T

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A. Introduction

1.  This is the trial of the disputes amongst several members of a family. The disputes relate to the beneficial ownership of one landed property, the funds in a number of bank accounts, and the sale proceeds of certain stocks (collectively the “Subject Assets”). 

2.  Mr Johnny Ma SC leading Mr Joshua Yeung appeared for Siao Miu Hua (蕭妙華, “Madam Siao”)  suing by Ma Siu Yee Joanna (馬紹儀, “Joanna” or “P”)  as her next friend.  Mr Roger Phang appeared for the defendant (胡靜娟, “D”)  defending and counterclaiming in her capacity as the administratrix of the Estate of her late husband Ma Chiu Hoi Sanford (馬照海, “Sanford”, and “Sanford’s Estate”).

B.  The appointment of next friend

3.  Madam Siao was originally the plaintiff.  She is an elderly woman.  She is currently 93 years of age.  She has also filed 2 witness statements (dated 25 April 2018 (“Siao/WS1”)  and 14 February 2020 (“Siao/WS2”)  in anticipation of giving evidence in support of her claim. 

4.  On 22 May 2023, Joanna took out a summons for her appointment as Madam Siao’s next friend (the “Next Friend Summons”).  The application was supported by medical evidence to the effect that Madam Siao had, because of Major Neurocognitive Disorder, become mentally incapable of giving instructions and giving evidence.  D complained about the lateness of the application.  I will talk more about those complaints later when I consider Joanna’s Summons of 30 May 2023 for leave to adduce Madam Siao’s witness statements as hearsay (the “Hearsay Notice Summons”).  But despite those complaints, D did not object to Joanna’s appointment.  Quite apart from D’s stance, I was also satisfied on the evidence that Joanna’s appointment as next friend was in order.  I therefore on 25 May 2023 formally ordered that she be appointed as such.

C.  The agreed or undisputed facts

5.  The following facts are not in dispute.  They are principally adopted from the Statement of Facts and Chronology agreed between the parties, or upon counsel’s confirmation in the course of the trial.  They provide the backdrop for the further consideration of the case.

C.1  The parties

6.  Madam Siao was married to Ma Hau Tong (馬浩鏜, “Ma Senior”).  Ma Senior passed away on 24 February 2008.

7.  Madam Siao and Ma Senior had 4 children (collectively as the “Children”, and Thomas, Joanna and Elspeth collectively as the “Surviving Children”). They are, in descending order of seniority:

(a)  Ma Chiu Tung, Thomas (馬照東, “Thomas”);

(b)  Sanford, who passed away on 30 December 2013;

(c)  Joanna; and

(d)  Ma Wai Yi Elspeth (馬蕙儀, “Elspeth”).

8.  Ma Senior had had a prior marriage before his marriage with Madam Siao.  It was after the death of his first wife (the “First Wife”)  when he married Madam Siao.  With his First Wife, Ma Senior had 2 sons, namely Ma Chiu Nam and Ma Chiu Cheung.

9.  Shortly after marrying Madam Siao, Ma Senior married a concubine into the family (the “Concubine”).  With her Ma Senior had 4 children. 

10.  D is Sanford’s widow.  She is the administratrix of Sanford’s Estate[1]. After holding a wedding banquet in Hong Kong in 1989, D emigrated to Canada in August 1990.  She formally married Sanford on 23 September 1990.  Their son, Ma Ming Hin Myron (“Myron”), was born in 1991. 

11.  Sanford resided with Madam Siao and Ma Senior at Flat B, 20/F, Park Towers II, 1 King’s Road (“Park Towers Premises”)  after D emigrated to Canada in 1990 and since the mid-1990s.  In 1996, upon returning to Hong Kong from Canada, D and Myron also resided in the Park Towers Premises.  They did so until 2016.

C.2.   The “Funds”, and the Subject Assets

12.  In or around 1987, at least HK$20 million[2] (the “Funds”)  was transferred from a joint-name account held by Ma Senior and Joanna in Standard Chartered Bank to Madam Siao.

13.  The nature of that transfer is in dispute.  Madam Siao says that it was a gift to her upon Ma Senior having sold the Tsuen Wan Land (as defined below). D says that Joanna had confessed to Myron in 2014 that she (Joanna)  “took the Funds from Ma Senior”[3]. Myron says further that “[d]espite not being given the details, it was clear to me that the gravamen of Joanna’s confession was that Ma Senior did not voluntarily or willingly consent to the transfer”[4]. I will come back to this.

14.  Though the exact fund flow (given the extended span of time involved and the possibility of mixing of funds in the meantime)  could not be agreed upon, there is no dispute that the Funds were the origin of the funds subsequently used for the acquisition of inter alia the Subject Assets. I will come back to the fund flow later.

15.  In summary, with details to follow, the Subject Assets comprise:

(a)  Flat G, 19^th Floor, Tower 23A, South Horizons (the “Property” or the “19G Property”);

(b)  Deposits and/or balances in or used to be in the following bank accounts in Hong Kong, namely:

(i)  Hang Seng Bank savings account no. 281-3-153901 (“HSB Savings A/C”);

(ii)  Hang Seng Bank current account no. 383-033198-001 (“HSB Current A/C”, and together with the HSB Savings A/C, the “HSB A/Cs”);

(iii)  Dah Sing Bank savings account no. 01-701-1819-3 (“DSB Savings A/C”)  which was closed on 8 January 2015;

(iv)  Dah Sing Bank integrated account no. 040-301-3885557-1 (“DSB Integrated A/C”)  which was closed on 6 November 2015;

(c)  Stocks once kept in the DSB Integrated A/C (which had already been sold)  (collectively the “Stocks”), namely:

(i)  360,000 shares of The People’s Insurance Co. (Group)  of China Ltd (stock code: 2328)  (the “PICC Shares”);

(ii)  50,000 shares of China Life Insurance Co Ltd (stock code: 2628)  (the “China Life Shares”);

(d)  Deposits and/or balances in UBS private bank account no. 131299 (in Singapore)  (the “UBS Private Bank A/C”, and collectively with those accounts set out above, the “Subject Accounts”).

C.3.   The 19G Property

16.  In early 1993, Phase III of South Horizons was placed in the market for presale under the Consent Scheme (the “Pre-Sale”).

17.  The Pre-Sale was conducted by way of balloting.  Each prospective purchaser chosen by balloting was only entitled to purchase one residential unit.  Madam Siao, Sanford and Thomas each made one application in their own names.

18.  The applications under the names of Thomas and Sanford were successful.  The one under Madam Siao’s was not.

19.  On 25 May 1994:

(a)  Sanford became the registered owner of the 19G Property; and

(b)  Thomas became the registered owner of Flat H, 19^th Floor, Tower 23A, South Horizons (“19H Property”).

20.  There is no dispute that[5] the considerations and all the conveyancing costs for the 19G and 19H Properties were paid for by Madam Siao, that all the utilities of the 19G Property were registered in the name of Thomas, and that Thomas has assisted with some leasing and liaising with tenants on repairs matters.

21.  D does not have the title deeds to the 19H Property, which are with Madam Siao or P’s side[6].

22.  The 19G Property was at all material times leased out to third party tenants for rental income.

C.4.   The HSB Savings A/C & HSB Current A/C

23.  The HSB A/Cs were opened in the joint names of Madam Siao and Sanford.  It is not disputed that those accounts were opened in about December 1996 (though D is not prepared to formally agree to that as she does not have the information to verify that).

24.  Only 3 passbooks of the HSB Savings A/C have been produced, covering the period between 1 June 2009 and 3 December 2009[7], 3 December 2009 and 16 November 2010[8], and 29 November 2010 and 14 December 2015[9]. 

25.  After the HSB Savings A/C had been opened, the rental income from the 19G Property was deposited in it[10], which were used to settle the expenses in connection with the 19G Property (such as management fees and rates).

26.  In addition to the rental income, there had been other sums deposited into the HSB Savings A/C.  Four notable deposits were made in the amount of HK$674,324, HK$599,985, HK$599,985 and HK$679,985 respectively on 19 January 2010, 13 July 2011, 18 June 2012 and 12 July 2013[11]. There is no dispute that they were deposited by Madam Siao.

27.  On 30 December 2013 (the date of Sanford’s death), Madam Siao withdrew at least HK$570,000 from the HSB Savings A/C, leaving a balance of HK$2,448.96[12].

C.5.   The DSB Savings A/C

28.  The DSB Savings A/C was in November 2010 opened in the joint names of Madam Siao and the Children.  The passbook produced covers the full period when the account was in operation[13].

29.  Star Rich Investment Limited (財星投資有限公司, “Star Rich”)  was a company incorporated on 25 October 1988[14]. Each of Madam Siao and the Children were its directors[15] and shareholders.  The percentage shareholding at all material times had been 40% by Madam Siao, and 15% by each of the Children[16].

30.  On 18 November 1993, Star Rich acquired Unit D, 11/F, CNT Tower, No. 338 Hennessy Road, Hong Kong (“CNT Tower Property”)  for a consideration of HK$4,032,000.

31.  On 31 March 2010, the CNT Tower Property was sold for a consideration of HK$5,452,000.

32.  Between November 2010 and February 2011, Star Rich made payments in total sum of HK$5,200,000 to Madam Siao and each of the Children (2 sums of HK$4,000,000 and HK$480,000 to Madam Siao, and HK$180,000 to each of the Children).  According to the records kept by the company, the HK$4,000,000 was repayment to Madam Siao of director loan, and the other 5 sums were payments of dividends to her and the Children[17]. They were all deposited into the DSB Savings A/C (the HK$4,000,000 on 26 November 2010, and the 5 other sums on 25 February 2011)[18].

33.  Star Rich was dissolved on 6 January 2012.

34.  On 30 December 2013 (the date of Sanford’s death), Madam Siao withdrew at least HK$2,550,000 from the DSB Savings A/C, leaving a balance of HK$5,176.19.

35.  On 8 January 2015, the DSB Savings A/C was closed with the remaining balance of HK$5,176.68 transferred to a bank account with Dah Sing Bank jointly held by Madam Siao and the Surviving Children.

C.6.   DSB Integrated A/C and Stocks

36.  The DSB Integrated A/C was opened in about November 2010 in the joint names of the Children.

37.  According to the passbook of the DSB Savings A/C[19] and the related account deposit and withdrawal slips[20], two sums of HK$1,500,000 and HK$1,100,000 were on the respectively dates of 10 February and 25 February 2011 transferred from the DSB Savings A/C to the DSB Integrated A/C.

38.  Sums deposited in the DSB Integrated A/C were used to purchase listed securities, and in particular the Stocks.

39.  On 28 April 2014, the Stocks were sold.  The proceeds of sale were transferred out of the DSB Integrated A/C on 30 April 2014.

40.  The DSB Integrated A/C was closed on 6 November 2015 with the remaining balance of HK$5,031.71 transferred to a Dah Sing Bank account jointly held by Madam Siao and the Surviving Children.

C.7  UBS Private Bank A/C

41.  On or around 25 October 2002, the UBS Private Bank A/C was opened in the joint names of Madam Siao and the Children.

42.  In July 2016, Madam Siao instructed UBS to close the UBS Private Bank A/C and to transfer all of the funds therein to a newly-opened UBS account no. 861228 held in the joint names of the Surviving Children (the “New UBS A/C”).

C.8.   Other properties and shareholding

43.  The following properties are not part of the Subject Assets.  At least not directly.  They however are relevant as background of the present claim:

(a)  The following properties, which Ma Senior at different stages during his lifetime owned or had interest in:

(i)  A piece of land in Tsuen Wan, the New Territories (the “Tsuen Wan Land”);

(ii)  10^th Floor, No.17A Haven Street, Causeway Bay, Hong Kong (the “Haven Street Property”);

(iii)  Flat A, 3^rd Floor, Monticello, 48 Kennedy Road, Hong Kong (“3A Monticello”); and  

(iv)  Flat B, 3^rd Floor, Monticello, 48 Kennedy Road, Hong Kong (“3B Monticello”);

(b)  Risepark Limited:

(i)  Risepark Limited (昇栢有限公司, “Risepark”)  was caused to be incorporated in October 1988 by Madam Siao for the Children to carry out cosmetic business;

(ii)  Whilst there had been changes at various stages, the directorship and shares of Risepark have been held amongst the Children. Immediately before Sanford’s death, the Children were equal shareholders each holding 500 shares;

(iii)  In August 1991, Risepark purchased a property at 5D Prosperous Commercial Building, 54-58 Jardine’s Bazaar, Causeway Bay (the “PCB Property”).

D.  The Handwritten Note[21] and the Letters of Administration of Sanford’s Estate(“LA of Sanford’s Estate”)[22]

44.  It is convenient at this state to introduce 2 documents.  The context in which they came into being is in dispute.  They will have to be considered in conjunction with a meeting that took place in the office Messrs Annie Leung & Co (“AL & Co”).  AL & Co is a firm of solicitors.  Madam Siao and the Surviving Children engaged it to prepare Madam Siao’s will.  D also engaged it to deal with Sanford’s probate. There is no dispute that a meeting took place there in late February or early March 2014 (the “AL & Co Meeting”).  What happened during that meeting is in dispute.  I will come back to these matters in the latter part of this Judgment.

45.  The first document is the Handwritten Note:

(a)  D relies heavily on a document which have been referred to as the Handwritten Note, which term I adopt;

(b)  The Handwritten Note comprises 3 pages[23] (“HN/Page 1” [24], “HN/Page 2” [25] and “HN/Page 3” [26]).  Thomas was its main author, though some words were written by others, as follows:

(i)  On HN/Page 1:

(1)  Thomas has written:

(a)  the full address of the 19G Property, and particulars of its then current tenancy agreement (monthly rental, rental period, and the amount of rates); and

(b)  500 shares in Risepark, and the address of the PCB Property[27];

(2)  towards the bottom on the left, there is the address of the Haven Street Property, which was written there by Elspeth; and

(3)  towards the bottom on the right, there is the address of 3B Monticello, which was written there by D;

(ii)  On HN/Page 2, Thomas has written:

(1)  the account number of the DSB Savings A/C, and immediately underneath it the 5 Chinese characters of “蕭”, “東”, “海”, “紹” and “蕙” (which respectively denotes Madam Siao, Thomas, Sanford, Joanna and Elspeth);

(2)  the account number of the DSB Integrated A/C, and immediately underneath it the 4 Chinese characters of “東”, “海”, “紹” and “蕙” (which respectively denote Thomas, Sanford, Joanna and Elspeth), and the Stocks (names and quantities);

(iii)  In respect of the HN/Page 3:

(1)  It is a copy of the statement of the HSB Current A/C dated 11 January 2014.  It shows the transactions between 11 December 2013 and 11 January 2014.  From it, one can see that the balance as of 30 December 2013 was that of 24 December 2013, namely HK$6,440.79;

(2)  On it Thomas has written:

(a)  the account numbers and balances of the DSB Savings A/C ($5,070.82)  and DSB Integrated A/C ($28,314.20); and

(b)  the account number and balance of a foreign currency account under the DSB Savings A/C (HK$130)[28].

46.  The other document is the LA of Sanford’s Estate:

(a)  The significance of the LA of Sanford’s Estate, in so far as this case is concerned, lies with the Schedule of Assets and Liabilities of Sanford (the “Schedule of Assets and Liabilities”);

(b)  The Schedule of Assets and Liabilities is dated 26 March 2014;

(c)  The Schedule of Assets and Liabilities states inter alia that the Sanford’s assets as at the date of death included:

(i)  Under Item A.2 “Cash at Bank”:

(1)  In the HSB Savings A/C, balance of “HK$1,224.48 (Deceased’s share HK$2,448.96 x 1/2)”;

(2)  In the HSB Current A/C, balance of “HK$3,220.40 (Deceased’s share HK$6,440.79 x 1/2)”;

(3)  In the DSB Savings A/C, balance of “HK$1,014.16 (Deceased’s share HK$5,070.82 x 1/5)”;

(4)  In the DSB Integrated A/C, balance of “HK$7,078.55 (Deceased’s share HK$28,314.20 x 1/4)”;

(5)  In the foreign currency savings account under the DSB Savings A/C balance of “HK$26 (Deceased’s share HK$130.00 x 1/5)”;

(ii)  Under Item A.4 “Stocks, Shares, Warrants and Unit Trusts”, 500 shares in Risepark, and the Stocks;

(iii)  Under Item A.8 “Land and Buildings, the 19G Property; and

(iv)  Under Item A.10 “Chose in Action”, interest in the unadministered estate of Ma Senior of the Haven Street Property and 3B Monticello.  

E.  Parties’ respective cases in summary

47.  The current pleadings comprise:

(a)  The Statement of Claim (“SOC”)  and the further and better particulars provided by Madam Siao (the “SOC/F&B”);

(b)  The Re-Amended Defence and Counterclaim (“RA-D&C”); and

(c)  The Re-Amended Reply and Defence to Counterclaim (“RA-R&DCC”).

48.  Madam Siao has also provided answers to two sets of interrogatories (“Siao/AI#1” [29])  and (“Siao/AI#2” [30]).

E.1.   Madam Siao’s case

49.  Madam Siao’s case, as summarised by Mr Ma in his written opening[31] is that:

“4. It is undisputed that Madam Siao was the recipient of a significant amount of funds from her late husband Ma Hau Tong in or around 1987 ... Thereafter, the Subject Assets were acquired.

5. It is P’s case that Madam Siao had paid for or contributed to the purchase price and/or funds for such assets, and as such they are held on resulting trust for Madam Siao. Alternatively, Sanford (and hence D)  does not have any beneficial ownership, interest, or title in the Subject Assets by reason of a common intention constructive trust.

…

32. P will submit that, in the circumstances of the present case (including inter alia the fact that Madam Siao paid for the whole of the purchase price at the time of acquisition and had kept all the title documents in her possession), the presumption of resulting trust applies …, and the burden is on D to displace the presumption and prove that Madam Siao had intended to “gift” the Property to Sanford. These legal principles apply mutatis mutandis to the deposits and/or bank balances in the various bank accounts.” (original emphasis)

50.  I record that in the course of his oral opening, Mr Ma, upon invitation from this Court for clarifications, modified his stance in the following ways. He accepted that the starting point ought to be the consideration of the evidence with the view of deciding whether there was or was not any common intention in the context of considering whether any common intention constructive trust existed.  He would no longer invite this court to start with the presumption of resulting trust.  He accepted further that in that regard, in the context of common intention constructive trust, and on the authority of Stack v Dowden [2007] 2 AC 432 at §56, the onus of proof of showing that the beneficial ownership is different from the legal ownership is on the person who seeks to show that.  I will deal with the applicable legal principles in further details below.  

51.  The UBS Private Bank A/C does not form part of Madam Siao’s claim.  It was first raised by D in her RA-D&C.

E.2.   D’s case

52.  D’s case in essence is that Madam Siao gifted to Sanford the 19G Property and portions of the funds in the various accounts proportional to the number of joint account holders.  It is not D’s case that Sanford had made any financial contributions towards their acquisition.  As summarised by Mr Phang[32]:

“… Madam Siao intended the Property as a gift to Sanford, and that where one or more of her children held the family’s assets or funds in their own/joint name(s), the common intention was that they have a beneficial interest therein. Surely, not everything was held on trust by the children for Madam Siao as she alleged.” (original emphasis)

It is further D’s case that Madam Siao had since 2016 refused to reimburse her for Myron’s living expenses in the UK.  As a result, she (D)  started to stop paying the rental income of the 19G Property to Madam Siao.  Their relationship started to deteriorate.  Madam Siao then started the present action, which is D says an attempt on Madam Siao and the Surviving Children’s part to reinterpret and rewrite the past.

53.  More particularly, D’s case in respect of the each of the Subject Assets is as follows:

(a)  In respect of the 19G Property, D says that Sanford was its sole legal and beneficial owner as it was a gift;

(b)  In respect of the funds in the HSB A/Cs:

(i)  In §§39 and 40 of D’s RA-D&C, D pleads that:

“39. Insofar as the funds in the HSB [A/Cs] represent the rental income from the 19G Property, they belong to Sanford solely.

40. Accordingly, [D] is entitled to a declaration that all the funds in the HSB [A/Cs] belonged to Sanford during his lifetime, and after his death, became vested in his estate.” (emphasis added)

(ii)  There is an inconsistency amongst those 2 paragraphs, as to (1)  whether the part of D’s case in relation to the funds in the HSB A/Cs covers only those “insofar” as they represent the rental income from the 19G Property, or (2)  whether it covers all the funds in them;

(iii)  In the course of the oral openings, Mr Phang accepted that the mere fact that Sanford was a joint account holder of the HSB A/Cs did not per se give him any interest in the funds. Mr Phang confirmed that (1)  above represents this part of D’s case. He further informed this Court, with reference to §23 of D/WS2[33], that he “disavowed”[34] the part of that paragraph as underlined below:

“In the premises, my case is that insofar as funds in the HSB [A/Cs] represented the rental income from the 19G Property or its traceable fruits, they belonged to Sanford solely.  As for other funds in the HSB [A/Cs] not derived from rental income from the 19G Property, Sanford has at least a 50% interest in those funds.”

(c)  in respect of the funds in the DSB Savings A/C, DSB Integrated A/C and the Stocks:

(i)  Sanford had, by virtue of his interest in Star Rich, a 1/5^th interest (or such other percentage of interest as the court may find)  in the DSB Savings A/C[35];

(ii)  Even if Madam Siao was the sole beneficial owner of the funds in the DSB Savings A/C, she made a gift of part of the funds to the Children when she transferred the same into the DSB Integrated A/C[36];

(iii)  Sanford had a 1/4^th interest (or such other percentage of interest as the court may find)  in the DSB Integrated A/C, and hence the Stocks and their sale proceeds[37];

(d)  In respect of the UBS Private Bank A/C, D’s case is that Sanford had a 1/5^th interest[38] in the same.  Madam Siao’s position is that she was the sole beneficial owner of the funds therein.  She also relies on the survivorship clause contained in the Account Terms and Conditions governing the UBS Private Bank A/C.

54.  On those same bases as outlined above, D counterclaims for inter alia a number of Declarations in relation to Sanford’s interest in the 19G Property and the Subject Accounts, repayment of HK$3,000 (withdrawn by P from the HSB Current A/C on 31 December 2013 after Sanford’s death), and as an alternative claim (should P be found to be the sole beneficial owner of the 19G Property)  restitution of HK$76,857 (being monies spent on renovation of the 19G Property)  plus the total of all management fees, rates and other outgoings and expenses paid or to be paid in respect of the 19G Property.

55.  In terms of the relief that D is seeking, parties have agreed that for the purposes of this action, D will only seek declarations, but not any order for payment in relation to funds withdrawn from the DSB Savings A/C, the DSB Integrated A/C and the UBS Private Bank A/C.  If there is subsequently any need for such orders, they will be dealt with separately in the context of the administration of Sanford’s Estate[39].

F.  The fund-flow

56.  It is useful at this stage to summarise and group the following events together in their chronological order.  They demonstrate the use of the Funds over the years in the context of the acquisitions and dispositions of the Subject Assets:

(a)  In about 1987, the Funds were transferred to Madam Siao;

(b)  In 1988, Star Rich was incorporated;

(c)  In November 1993, the CNT Tower Property was acquired in the name of Star Rich;

(d)  Over 1993 and 1994, the 19G Property and 19H Property were purchased;

(e)  In about December 1996, the HSB Savings A/C (and HSB Current A/C)  was opened, in the joint names of P and Sanford, into which the rental income from the 19G Property was deposited;

(f)  In October 2002, the UBS Private Bank A/C was opened;

(g)  In March 2010, Star Rich sold the CNT Tower Property at HK$5,452,000;

(h)  In November 2010, the DSB Savings (in the joint names of Madam Siao and the Children)  and Integrated A/Cs (in the joint names of the Children)  were opened;

(i)  Between November 2010 and February 2011, Star Rich made payments in total sum of HK$5,200,000 to Madam Siao and the Children (HK$4,000,000 plus HK$480,000 to Madam Siao, and HK$180,000 to each of the Children), which were all deposited into the DSB Savings A/C;

(j)  On the respective dates of 10 and 25 February 2011, HK$1,500,000 and HK$1,110,000 were transferred from the DSB Savings A/C to the DSB Integrated A/C, with which funds the Stocks (inter alia)  were purchased;

(k)  On 30 December 2013, at least HK$570,000 was withdrawn by the HSB Savings A/C, and at least HK$2,550,000 from the DSB Savings A/C;

(l)  From 28 to 20 April 2014, the Stocks were sold, and the proceeds transferred out on 30 April 2014.

G.  The agreed issues

57.  The list of issues agreed by the parties is, with the abbreviations inserted and some grammatical modifications, as follows:

1.  Regarding the [Property]:

1.1.  Whether Sanford (and upon his death, his estate/D qua administratrix)  held and continues to hold the Property upon trust for [Madam Siao];

1.2.  If so, is D entitled to restitution of the sum of HK$76,857 against [Madam Siao] (being the renovation costs of the Property paid by D)  plus the sum total of all management fees, rates and other outgoings and expenses paid or to be paid by D in respect of the Property?

1.3.  If the Property was beneficially owned by Sanford, whether D is entitled to (1)  a declaration that all the title, rights and interests in the Property belonged to Sanford during his lifetime, and after his death, vested in his estate; and (2)  an order that [Madam Siao] do forthwith remove the registration of (i)  the sealed copy of the Writ of Summons in this action dated 27 May 2016 (Memorial No.: 16052702130010)  and (ii) the sealed copy of the Amended Writ of Summons in this action dated 13 December 2016 (Memorial No.: 17112901590038);

2.  Regarding (1)  the [HSB Savings A/C] and the deposits and balances therein; and (2)  the [HSB Current A/C] and the deposits and balances therein:-

2.1.  Who was/is the beneficial owner of the deposits and balances in these accounts, namely: (1) [Madam Siao]; and/or (2)  Sanford (during his lifetime)  and upon his death, his estate/D (qua administratrix)?

2.2.  If the accounts were beneficially owned by [Madam Siao], what relief should be granted, and more particularly, whether [Madam Siao] is entitled to a declaration that Sanford during his lifetime did not, and D does not, have any share or interest in the deposits in all and any of these accounts whether as at the date of Sanford’s death or at any other time?

2.3.  If Sanford had a beneficial interest in the accounts, what relief should be granted, and more particularly, whether D is entitled to a declaration that all the funds in these accounts belonged to Sanford during his lifetime, and after his death, vested in his estate?

3.  Regarding (1)  the [DSB Savings A/C] and the deposits and balances therein; and (2)  [DSB Integrated A/C] and the deposits, balances, and listed securities held therein, in particular, [the Stocks]:-

3.1.  Whether [Madam Siao] was and is the sole beneficial owner of the deposits and balances in these two accounts and the Stocks, and Sanford during his lifetime (and hence his estate/D (qua administratrix)  upon his death)  had no beneficial interest therein;

3.2.  If so, what relief should be granted, and more particularly, whether [Madam Siao] is entitled to a declaration that Sanford during his lifetime did not, and D does not, have any share or interest in (1)  the deposits in all and any of these accounts; and (2)  the Stocks whether as at the date of Sanford’s death or at any other time?

3.3.  If not:-

(1)  How much interest did Sanford (during his lifetime)  have in these accounts and the Stocks?

(2)  What reliefs should be granted to D, and more particularly, whether D is entitled to a declaration that Sanford had a beneficial interest in (1)  1/5^th (or any other proportion as the Court may find)  of the [DSB Savings A/C] and the deposits and balances therein; and (2)  1/4^th (or any other proportion as the Court may find)  of the [DSB Integrated A/C] and the deposits, balances, and the Stocks which, after his death, vested in his estate?

4.  Regarding the [UBS Private Bank A/C] and the deposits and balances therein:-

4.1.  Whether [Madam Siao] was and is the sole beneficial owner of this account, and Sanford during his lifetime (and hence, his estate/D (qua administratrix)  upon his death)  had no beneficial interest therein;

4.2.  If not, what relief should be granted to D, and more particularly, whether D is entitled to a declaration that Sanford had a beneficial interest in 1/4^th (or alternatively 1/5^th)  of the balance in this account which, after his death, vested in his estate?”

H.  The applicable law

58.  The main legal issues surround those in relation to common intention constructive trust and resulting trust, and their relationship in actual operation. In those regards, both Mr Ma and Mr Phang have cited to me Leung Hang Lin and Li Kwai Fuk v Lam Mei Yung [2019] HKCFI 2819.  Therein, Deputy High Court Judge Alexander Stock SC in §§7-8 summarised the legal principles on common intention trust as follows:

“7. The principles applicable to common intention constructive trusts are set out in various Hong Kong authorities, notably: Luo Xing Juan v Estate of Hui Shui See (2009)  12 HKCFAR 1 per Ribeiro PJ at §§35 – 38; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

8. In summary:

(1)  The starting point is that equity follows the law. There is a presumption that the beneficial interest follows the legal interest. Where the property is registered in a defendant’s name, the plaintiff bears the burden of showing, on the balance of probabilities, that the defendant held the property on trust for him or her such that the beneficial ownership differs to the legal ownership. See: Liu Wai Keung §44; Mo Ying §5.16; Primecredit §17.

(2)  The burden may be discharged by showing that: (i)  there was a common intention held by the plaintiff and the property owner at the time of the purchase (or exceptionally, thereafter)  that the beneficial ownership was to be different to the legal ownership; (ii)  the plaintiff altered his or her position in detrimental reliance upon the common intention; and (iii)  it is unconscionable for the property owner to assert ownership in reliance on the legal title. The constructive trust is constituted by the plaintiff’s detrimental reliance on the common intention and the unconscionability of the legal owner departing therefrom. See: Luo Xing Juan §38; Liu Wai Keung §46.

(3)  The approach to ascertaining common intention is objective. One looks to the intention of each party which was reasonably understood by the other party to be manifested by the first party’s words and conduct. See: Liu Wai Keung §47; Mo Ying §5.16.

(4)  The doctrine is sometimes described as having two limbs. First, where at any time prior to the acquisition (or exceptionally, at a later date), there is an agreement, arrangement or understanding reached between the parties as to how the property is to be held beneficially, based on evidence of express discussions. Second, where there is no evidence to support such a finding but the court relies on the parties’ conduct as a basis from which to infer a common intention. There is some authority that under the second limb, direct contributions to the purchase price by a party who is not a legal owner will readily justify the inference. See: Mo Ying §5.8; Primecredit §§2.3 and 2.4.

(5)    However, the modern approach is to assess the parties’ common intention by a holistic approach having regard to the context and the particular facts.  The court is not constrained to consider only pure direct monetary contributions to the purchase price.  In a Chinese setting, especially for the older generations, where explicit discussions on property rights within the family are not that common, the court has to pay more regard to circumstantial matters.  See: Mo Ying §§5.14 and 5.15; Primecredit §1.6.”

59.  On the element of common intention, whilst the distinction between the two limbs may theoretically be clear, their proof may involve consideration of all facts holistically and in the round.  As explained by G Lam J (as he then was)  in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 at §§48 to 50:

“48. In the present case it is the parties’ common intention at the time of the acquisition of the Property that is relevant, there being no suggestion from anyone that the intention had changed.

49. Such intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the property concerned based on evidence of express discussions. It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention: Lloyds Bank Plc v Rosset [1991] 1 AC 107, 132–133.

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

60.  On the element of detriment, as explained in Lewin on Trusts (20^th Ed.)  at §10-69:

“The claimant must prove that he has acted to his detriment in the reasonable belief that by so acting he was acquiring a beneficial interest. This means that the claimant must have done something which he could not reasonably be expected to have done unless he was to have an interest in the property. There must be some link between the common intention and the acts relied upon as detriment. There is no difficulty in establishing such a link where the detriment consists of contributions to the deposit, expenses of purchase or mortgage instalments.”

61.  As to the application and effects of presumptions, Ribeiro PJ explained in Leung Wing Yi Aster v Kwok Yu Wah (2015)  18 HKCFAR 605 at §53 as follows:

“53. … The presumptions of resulting trust and advancement arise as a matter of default; in other words, where there is otherwise insufficient evidence of subjective intention. That is the point made in the passage cited by the Judge from Lavelle v Lavelle that:

‘Normally there will be evidence of the intention with which the transfer is made. Where there is not, the law applies presumptions.’

and summarised thus, that:

‘Even where this [an express declaration of trust] is absent, the court aims to arrive at the parties’ real intentions by considering direct evidence of the entire transaction.  This requires an objective inference drawn from the parties’ words and conduct.  As a result, the presumptions of resulting trust or of advancement are only relied upon as default rules where there is no sufficient evidence to displace them.’ ”

62.  The subsequent Court of Appeal decision of Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 is enlightening on the approach that should be adopted:

(a)  In that case, a married couple (“Husband” and “Wife”)  had 5 children.  The 1^st defendant (“Son”)  was the youngest and only son.  The couple’s first property was in the Wife’s sole name.  The Wife’s evidence was that as that property was in her name, she was not eligible for Home Ownership Scheme, that an application for the purchase of the subject property (“Property”)  via the Scheme was therefore in the name of the Husband and the Son, and that there was a common intention amongst the family that the Property would only pass to the Son when she and her Husband died.  The first property was sold to fund the purchase with a bridging loan.  The Husband and Son held the Property as joint tenants.  The couple contributed towards the mortgage repayment.  The Husband later died.  The Son became the sole legal owner by operation of law.  Subsequently, the plaintiff applied to the Court to enforce against the Son a charging order.  The Wife joined as the 2^nd defendant and claimed to be a beneficial owner of the Property.  She relied on common intention construction trust and resulting trust to establish her interest.  The trial judge found after trial that she was not a beneficial owner.  She appealed;

(b)  In §§1.3 to 1.5 of the Judgment, Lam V-P (as the PJ then was)  observed that:

“1.3 As I see it, it is ultimately a question of the intention of the 2^nd Defendant (be it presumed or presumption rebutted)  at the time when the Property was acquired (under the resulting trust analysis)  or the common intention of the parents and the 1^st Defendant (under the constructive trust analysis). Between the two, at least in a domestic context, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust …

1.4. Further, in either case, the court should have regard to inherent probabilities in light of the surrounding circumstances at the time the Property was acquired. In the present case, the competing suggestions were: (1)  the 2^nd Defendant together with the deceased father had beneficial interest in the Property and the 1^st Defendant was added as a joint tenant so that the Property would be passed to the son after the death of both parents; or (2)  the 2^nd Defendant did not have any beneficial interest in the Property whilst the deceased father and 1^st Defendant held the beneficial interest in joint tenancy. Whilst there is a presumption of beneficial interest following legal interest, thus the starting point is in favour of (2), one must have regard to the circumstances when the Property was acquired to see if (1)  can be made out.

1.5.   In that connection, as Kwan JA highlighted at [46] below, the circumstantial factors (to which, with respect, the learned Judge below failed to pay proper regard)  strongly pointed in favour of the 2^nd Defendant retaining some beneficial interest in the Property.  It has to be borne in mind that the Property was the only property which the parents had.  It was not a case where the parents purchased an additional property in the name of their only son as his matrimonial home shortly before he got married or where they paid the down payment for the son’s home after he had established himself in life.”

(c)  At §2.15 of the Judgment, Cheung JA explained that:

“… as resulting trust operates in the absence of evidence of intention of the parties, it is not helpful to use adjectives like ‘weak’ to describe it. In ascertaining the beneficial ownership of a party who provided the purchase price of a property acquired in another person’s name, the issue of financial contribution is clearly a most weighty consideration. Resulting trust is still being relied upon to establish beneficial interest in authorities such as the minority judgment of Lord Neuberger in Stack v Dowden [2007] 2 AC 432 and adopted by the Singapore Court of Appeal in Chan Yuen Lan.”

(d)  At §§46 to 48 of the Judgment, Kwan JA observed as follows:

“46. The Judge did not mention the inherent probabilities in his evaluation of the facts when he considered whether there was sufficient evidence to rebut the presumption of resulting trust in Madam Wong’s favour. We are here concerned with a couple in their fifties with limited financial resources, who had spent a substantial part of their resources on the purchase of a property as their matrimonial home. At the age of 51, Madam Wong could reasonably look forward to a number of years ahead. Their son was then aged only 21, had not completed his studies and had not got married. Even allowing for the Chinese traditional thinking of leaving real property to the male descendant, this would likely happen on the demise of the parents, it would not be so likely for an immediate gift to be made to the son in these circumstances. Similar doubts were raised by Nourse LJ in McGrath v Wallis [1995] 2 FLR 114, 121H – there was no real reason for the parent’s wishing to divest himself of his interest in the property and no special reason for the parent’s wishing to benefit the child at that time.

47. When Madam Wong’s evidence of her intention is considered against the context of inherent probabilities, there is really nothing so inherently incredible about her assertion.

48.  The Judge has misdirected himself on the evidence and did not appear to have considered the inherent probabilities in his evaluation of the facts.  Even though this Court does not enjoy the advantages of the Judge who received the evidence at first-hand, I am nevertheless satisfied he is plainly wrong in his conclusion on the facts that there was sufficient evidence to rebut the presumption of a resulting trust in favour of Madam Wong.”

(e)  Principally for those reasons, the appeal was allowed.

63.  Insofar as I see it, factual presumptions may not be anything more than accumulation of earlier wisdom and experience.  In the absence of evidence showing otherwise, certain facts may generally be indicative of certain conclusions.  Another illustration, perhaps showing the converse, is Chung Chun Fai v Chan Man Lung [2021] HKCFI 697, wherein Deputy High Court Judge A To observed at §70 that the “burden of proving gift is very high.  The more valuable the alleged gift, the heavier is the burden.”  That is nothing but an acknowledgement of the common sense and experience that people do not normally gift away their properties, and even less so when the properties are valuable.  The burden of overcoming the inherent improbability of people doing that is hence high.  So viewed, whether one talks about the application of such presumptions or their rebuttals, one cannot overlook those facts that may otherwise trigger such presumptions, which facts should be considered together with all others in and against the context of inherent probabilities. As explained by Ribeiro PJ in Leung Wing Yi which I repeat, it is only when there is otherwise insufficient evidence of subjective intention when the relevant presumptions come to be applied.

64.  In respect of funds in a joint account, I have been cited HSBC Private Trustee (Hong Kong)  Ltd v Ho Yuen Ping Dorothy (HCA 2717/2008, 20 June 2011)  per Coleman J at §§37 to 48, and Nanyang Commercial Bank Ltd v Personal Representative of Vannee Nativivat [2013] 2 HKLRD 749 per A To J at §29.  The general principle is that beneficial entitlement of funds in a joint account is to be determined by the common intention of the account holders.  The fact of being a signatory to a bank account does not, without more, prove beneficial ownership.

65.  I apply the above.

I.  Witnesses

66.  The following witnesses have been called:

(a)  For P:

(i)  Thomas, who has given 3 witness statements (of 30 April 2018 (“Thomas/WS1”), 14 February 2020 (“Thomas/WS2”), and 2 May 2023 (“Thomas/WS3”));

(ii)  Joanna, who has given 2 witness statements (of 14 February 2020 (“Joanna/WS1”), and 23 October 2020 (“Joanna/WS2”)); and

(iii)  Elspeth, who has given 5 witness statements (of 30 April 2018 (“Elspeth/WS1”), 14 February 2020 (“Elspeth/WS2”), 23 October 2020 (“Elspeth/WS3”), 4 May 2023 (“Elspeth/WS4”), and 18 May 2023 (“Elspeth/WS5”));

(b)  For D:

(i)  D herself, who has given 4 witness statements (of 2 May 2018 (“D/WS1”), 6 March 2020 (“D/WS2”), 5 May 2023 (“D/WS3”)), and D/WS4 mentioned below; and

(ii)  Myron, who has given 1 witness statement (of 28 August 2020 (“Myron/WS”)).

J.  P’s application to adduce Madam Siao’s witness statements as hearsay

67.  As I have mentioned above, Madam Siao has filed Siao/WS1 and Siao/WS2 in anticipation of she giving evidence in support of her case.

68.  She has been found to be mentally incapable of giving evidence.

69.  As I have also mentioned above, Joanna was on 25 May 2023 appointed as her next friend.

70.  By the Hearsay Notice Summons, P seeks leave to serve a hearsay notice pursuant to ss 47 and 47A of the Evidence Ordinance (Cap 8)  to adduce Siao/WS1 and Siao/WS2 as hearsay at this trial.

71.  The Hearsay Notice Summons was heard on the first day of the trial.

72.  In his submissions filed in response to the Next Friend Summons, Mr Phang, whilst not resisting the appointment, complained about the “delay and extreme lateness of this application”, that “D has reason to believe that there was concealment by Joanna and her siblings of P’s mental health”, that D intended to seek discovery of P’s mental health history to controvert Joanna’s case as to when she became aware of Madam Siao’s problems, and that D intended to adduce evidence of “what appears to be foul play” by Madam Siao’s children.  He further sought clarification as to whether the trial would proceed, whether Joanna intends to rely on Madam Siao’s witness statements, and whether leave would be granted for further interlocutory applications.

73.  At the same time when I granted Joanna application for appointment, I directed inter alia that subject to any application for adjournment which if made would be ruled upon, the trial should proceed as scheduled.

74.  Mr Phang filed his written opening on 7 June 2023.  He also made submissions therein in opposition of the Hearsay Notice Summons[40]. He complained about the lateness of the application, which he submits is unexplained and “smacks of ambush”[41]. He also criticized Joanna for not having make any application for leave to receive Madam Siao’s evidence pre-trial by deposition.  He submitted that the Hearsay Notice Summons should be dismissed, and that “it is appropriate to refuse to admit Madam Siao’s hearsay statements”[42].

75.  On the first morning of the trial, D sought leave to file and rely on her 3^rd Supplemental Witness Statement of 12 June 2023 (“D/WS4”). She sought also to put in a further list of documents disclosing some additional correspondence between parties’ legal advisers.  Those applications were not resisted.  Mr Phang confirmed to this court that apart from those matters, D had no other interlocutory applications to make.  He further, upon request from this Court for confirmation of D’s intention, confirmed that D would not seek any adjournment in the eventuality of this Court allowing the Hearsay Notice Application.

76.  Section 47(1)  of the Evidence Ordinance provides that:

“(1)  In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless—

(a)  a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b)  the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.”

77.  When considering the issue posed by s 47(1)(b)  of the Evidence Ordinance, the considerations set out in s 49(2)  relevant to weighing hearsay evidence is also relevant – Lau Kwai Ping Joyce v Fulland International Limited [2020] HKCFI 1501 at §59 per Marlene Ng J, and Cheung Wei Man Vivien & anor v Centaline Property Agency Ltd & ors (HCA 286/2000, 25 September 2003)  at §12 per Lam J (as the PJ then was).

78.  As s 47(2)(b)  of the Evidence Ordinance provides, the court may determine whether or not to exclude evidence on the ground that it is hearsay at the conclusion of the proceedings.

79.  That makes obvious sense, as by then, the court will be in a much better position to weigh the hearsay evidence, and then to ultimately answer the issue posed by s 47(1)(b).

80.  Having heard parties, I ordered on the first day of the trial that Madam Siao’s 2 witness statements be admitted and considered on a de bene esse basis, and that their admissibility would be ruled upon at the end of the trial after this Court has heard all other evidence, with reasons to be set out in the Judgment.

81.  I record that before making that Order, I had considered Mr Tang Hong Sang’s affirmation filed in support of the Hearsay Notice Summons.  Mr Tang is the solicitor acting for Madam Siao.  He produced 2 medical reports of 15 July 2016 and 25 April 2018.  The former confirmed that Madam Siao had testamentary capacity, and the latter confirmed that she was mentally fit to give statement in the present action.  At the time when Siao/WS2 was taken, Mr Tang saw no sign that Madam Siao lacked the requisite capacity or understanding to make the same, and having regard to the fact that Madam Siao had been examined twice in 2016 and 2018, he did not consider it necessary for Madam Siao to be examined again.  On the evidence before me, I was of the view that s 50(1)  of the Evidence Ordinance was not triggered.  I also heeded the fact that D did not intend to seek any adjournment or to make any further interlocutory applications in the eventuality of Madam Siao’s witness statements being admitted as hearsay.  If it had been indicated that there would have been any, I might have ruled on the matter there and then.

82.  I now come back to the admissibility and weight of Siao/WS1 and Siao/WS2.

83.  For the following reasons, I have decided to admit Siao/WS1 and Siao/WS2, but have formed the view that I cannot without more attach full weight to their contents:

(a)  Until the appointment of Joanna, Madam Siao was suing in her own name, and was the one who is claiming beneficial interest in the Subject Assets;

(b)  The Funds were transferred to her, which were then used to acquire inter alia the Subject Assets;

(c)  Her direct evidence as to the nature of the Funds, whether they were as claimed by her a gift to her by Ma Senior, the facts leading to the acquisitions of the 19G Property and 19H Property, the opening of the various accounts and the use of the funds therein, to name only the core facts, are obviously relevant and important;

(d)  Interests of justice require that her direct evidence be received and considered.  This remains so despite the objective nature of the approach as discussed above;

(e)  Madam Siao’s absence as a witness is due to her mental incapacity.  That was through no fault of hers.  It is neither reasonable nor practical for her to be called;

(f)  No multiple hearsay is involved in respect of those issues;

(g)  Siao/WS1 and Siao/WS2 are however witness statements prepared for the purpose of these proceedings, and hence necessarily not contemporaneous. In that sense, they are also edited accounts, and were prepared in collaboration with others (though I add that no allegation of impropriety of any sort is being made against her legal advisers who must have assisted her to prepare the same);

(h)  Siao/WS1 and Siao/WS2 are also self-serving;

(i)  She has not been cross-examined;

(j)  Madam Siao is the claimant.  She obviously has motive to conceal or misrepresent matters, though there is no basis for this Court to find that she necessarily and actually did[43];

(k)  D has complained bitterly about the lateness of the application. Joanna was cross-examined about that.  She said that in mid-February 2023, Madam Siao contracted COVID-19.  It was not sure at that earlier stage as to whether Madam Siao’s deterioration was the results of the aftermath of COVID-19 or for other reasons.  It was only in May 2023 after discussing with their legal advisers that Madam Siao was tested, and her mental incapacity confirmed.  In the absence of evidence contradicting the same, I accept Joanna’s evidence in this regard;

(l)  Even if Madam Siao’s mental condition had been confirmed and disclosed earlier, there is no evidence as to what D could have done to investigate the matters further.  I have set out what applications Mr Phang in his earlier submissions said D had intended to make.  In the end, D/WS4 was filed, and further documents produced, both without objection from P.  No further interlocutory application was intended, and no adjournment was intended to be sought;

(m)  In the end, I see no evidence of any attempt to prevent proper evaluation of the evidence concerned;

(n)  On their face, the contents of Siao/WS1 and Siao/WS2 are consistent with those of the other witnesses called on her behalf.  However, as I will explain, I have concerns about the reliability of Thomas, Joanna and Elspeth;

(o)  Having considered and balanced all the matters discussed above and Section K below, I admit Siao/WS1 and Siao/WS2.  I cannot on all the facts and circumstances before me conclude that any exclusion of the same is not prejudicial to the interests of justice;

(p)  But having considered and balanced all the matters discussed above and below, I am unable to without more attach full weight to their contents.  The observations I make in Section K.7 below apply equally to them.

K.  Credibility of witnesses

K.1.   The cases cited

84.  On credibility counsel has cited to me a number of authorities.  They include High Fashion New Media Corporation Ltd v Leong Ma Li [2022] HKCFI 2234 at §14 per Deputy Judge H. Au-Yeung, Hui Cheung Fai v Daiwa Developments Ltd (HCA 1734/2009, 8 April 2014)  at §§77 to 83 per Deputy Judge Eugene Fung SC, Northampton Borough Council v Cardoza and others [2020] 2 BCLC 249 at §§36-39, and Joint and Several Trustees of the Property of Yeung Wing Sing v Yeung Wing Sing [2021] HKCFI 2018 at §26 per Yvonne Cheng J.  They are not controversial.  I will not repeat them, save specifically reminding myself of H. Au-Yeung DJ’s observations at §14(5)  of High Fashion, that:

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

85.  When assessing the credibility and reliability of the witnesses before this Court, I note and remind myself that all of them have obvious actual (or at least potential)  interest of their own to serve.  This is an overarching observation.

86.  There are further specific reasons why I have concern about the reliability of Thomas, Joanna, Elspeth and D.  I set out the material ones out below.  They are however not exhaustive.

K.2.   Thomas

87.  Specifically in respect of Thomas:

(a)  I am not impressed by his evidence in respect of the Handwritten Note:

(i)  He says in Thomas/WS1[44] that:

“被告人於2014年1、2月期間要求我給她海怡l9G單位租約資料及所有關於馬照海名下的財物資料，當時我感覺奇怪，被告人心知這些財物不是馬照海的．為何需要這些資料。我沒有即時回應。我隨後從恒生銀行職員得知，如馬照海是聯名帳戶持有人之一，該聯名帳戶便必須在馬照海遺產承辦書內申報。之後我向被告人提供包括海怡l9G單位租約、昇栢、恒生聯名儲蓄帳戶、恒生聯名來往帳戶、大新存摺戶口、大新綜合帳戶5557-1、大新綜合帳戶5555-9及大新證券戶口等的資料。但我絕對沒有給予被告人任何關於馬照海遺產事的指示。”

(ii)  He stressed in Thomas/WS2[45], and confirmed during cross-examination, that he did not know why D sought from him the information.  He says there that:

“關於我的證人陳述書第33段所述我向被告人提供她在2014年1、2月期間所要求的資料，她沒有說明需要資料的目的。我依照被告人所需將海怡19G單位最後租約資料、昇栢資料和大新銀行聯合帳戶資料分別寫在兩張白紙（即[HN/Page 1]及[HN/Page 2]）及恒生銀行聯名來往帳戶影印本（即[HN/Page 3]）上。第—頁沒有寫上希雲街單位地址及滿峰台3B單位地址資料。當我將這三頁紙交給被告人時，沒有第三者在場。[K/2328]不是我書寫的亦不是我給被告人的。”

(iii)  During cross-examination, he disagreed to the suggestion that he knew that the information was required for use in relation to Sanford’s Estate;

(iv)  But as to why he in the circumstances did not ask D, and did not confront and point out to her that the Subject Assets did not below to Sanford, he gave the following answers:

“我冇諗到要問佢吖嘛，因為又係自己屋企人，咁樣問呢啲嘢，我就冇同意--冇諗到佢要做乜嘢。”

“我喺當時我冇諗到要問乜嘢，所以就冇問佢，因為嗰陣時我阿媽喺度，所以我就冇問佢。”

“我冇諗到咁複雜喎，一家人，我點會諗到咁複雜嘅嘢？冇諗到要講呢啲嘢。”

“我當時係冇諗咁多嘢，要問--要同阿媽講要問過我啲妹，所以我咪冇咁做。”

(v)  But whilst he did not ask D, he somehow saw the need to make enquiry with a staff member of the Hang Seng Bank.  No particular has however been provided as to what that person was, why Thomas chose to ask him/her, and why he decided to accept and rely on his/her advice.  The answers he gave during cross-examination are as follows:

“問：你就冇諗咁多，但係根據你喺33段之後繼續落去睇--即係睇落去嘅講法，你就走咗去問一個恒生銀行嘅職員喎，跟住就話佢就畀咗啲我唔知係意見吖定係咩嘢你，定係一個建議或者一啲資訊，佢就話如果馬照海係一個聯名賬戶嘅持有人，咁一定要喺佢嘅遺產承辦書裡面申報告嘅咁樣樣，係咪呀？

答：冇嗰--唔。

問：我向你指出，你呢個講法其實係你作出嚟嘅，事實上係冇發生過呢段咁樣嘅對話嘅，你同唔同意？

答：唔同意。

問：點解你覺得一個銀行嘅職員係可以解答到呢一方面關於遺產承辦嘅問題？

答：可能佢有--我唔知佢有冇呢方面嘅知識吖嘛，佢咪講咁嗰啲咁樣應該申報嘅咁樣，咁我咪照--我有咁嘅講法囉，我唔知佢啱唔啱㗎嘛，佢話「應該--都應該申報嘅」咁樣。

問：你唔知佢啱唔啱，但係你就跟住佢畀你嘅所謂嘅...

答：之...

問：...資訊去做喇咁呀？

答：係。

問：即使係真係有件咁樣嘅事，即係真係有你所講--你所聲稱嘅同恒生銀行職員嘅呢一番嘅對話，但係其實佢講嘅最多都係關於銀行戶口啫，係咪？

答：係。”

(vi)  Thomas’s evidence in this regard has to be considered also in the context of Sanford’s death shortly before, and the fact that balances of various accounts as at Sanford’s death were written down;

(vii)  I find Thomas’s evidence in relation to the events leading to his preparation of the Handwritten Note inherently improbable, and is unreliable;

(b)  As to what Sanford had allegedly said during family functions in D’s presence in relation to the ownership of the 19G Property, Thomas’s evidence has also been inconsistent:

(i)  In Thomas/WS2 at §7, Thomas says:

“我和馬照海清楚知道母親借我們的名義購買海怡19G單位和海治19H單位作收租投資用途，母親從來沒有説過將這兩個單位送給我們，馬照海多次於家庭聚會中提及海怡19G單位時向被告人說明而被告人亦清楚知道海怡19G單位是屬於母親的財產。”

(ii)  However, during cross-examination, what Thomas claimed Sanford to have said were different:

“答：佢成日同我哋講，包括我阿爸、我阿媽、我啲細佬、我哋啲太太，佢話「如果層樓係唔係你出錢買嘅，就算嗰個物業係你嘅名嘅，都係唔屬於你嘅」，佢私下咁樣，即係嗰層樓唔係你出錢買嘅，你冇出過錢買嘅，就算嗰個物業係寫你個名嘅，都係唔屬於佢--都係唔係屬於呢個樓嘅業主--嗰個登記人。

…

問：係唔係即係話你嘅證人口供第7段嗰度講話多次喺家庭聚會提及嘅嗰樣嘢就係呢一句？

答：係喇。

問：其實係一個觀點嚟㗎喇，係咪？即係話係--或者一個法律嘅陳述，就係話出咗錢--如果你冇出錢，就算寫你個名，都唔係你嘅？

答：係喇。

問：你講話佢講嘅嗰句說話好多次就係呢一句說話？

答：係喇，因為佢嗰陣時係讀law㗎嘛，成日同我哋講，我哋個個都知。

問：即係呢度第7段嘅呢個講法就又唔係話佢真係咁樣講，即係佢唔係話19G單位就係阿媽嘅咁樣樣？

答：呢度？

問：係喇，即係唔係好似你咁講吖嘛，係咪呀？你呢度講嘅嘢係佢直頭係咁講吖嘛，你話「喺多次聚會提及海怡，就同被告人說明19G單位係屬於母親的財產」。

答：佢意思係咁喇。

問：係喇，即係佢唔係--佢--呢個你覺得係佢嘅意思，但係就唔係真係佢用嘅嗰啲字眼，同唔同意？

答：係，係咁嘅意思。

問：我向你指出，呢啲所謂--即係你聲稱嘅多次講過--Sanford多次講過嘅呢啲說話其實佢係冇喺呢啲你聲稱嘅家庭聚會中講過嘅，呢啲只係你而家作出嚟嘅啫，同唔同意？

答：我唔同意。”

(c)  As Mr Phang has pointed out, in respect of the use of the rental income derived from the 19H Property, there are inconsistencies between Thomas’ evidence and the answers provided by Madam Siao answers to interrogatories. Those inconsistencies go to (1)  whether Thomas reported the income and expenses to Madam Siao orally[46], or by showing her the 「收支帳冊」together with the account and credit card statements[47], and (2)  the percentage split of those rental between Thomas’ own household expenses and expenses on the one hand and outgoings in connection with properties managed by Thomas[48] on the other;

(d)  The above bear adversely upon Thomas’ reliability as a witness.

K.3.   Joanna

88.  Specifically in respect of Joanna, her evidence on Ma Senior’s mental state is contradicted by contemporaneous letters which he wrote to Sanford:

(a)  At §6 of Joanna/WS1[49], she is talking about one evening in 1997.  She says that:

“… 當時父親記憶力和認知力絶對正常，他的記憶力於90年代中才開始慢慢變差，醫生證實父親患有「老人痴呆」(現稱腦退化症)已經是於90年代後期。”

(b)  However, in a letter dated 8 June 1987 she wrote to Sanford, she said:

“… Pa的記憶，時好時壞，你決定返嚟至話比你知。佢有時連Mum都不知是誰，小妹都唔知，Thomas一家人佢以為佢地係外人租房住。奇怪，佢又知我係邊個，叫做Joanna，中文名也知。有時，他做些多餘事情，Mum時常鬧佢，Mum一鬧佢時，Pa就立刻發脾氣，而我話Pa時，佢就好聽我話，Els都話，一物至[sic.]一物，係我至搞得掂Pa，事實佢都幾聽我話的，或者佢由細到大都幾錫我啦！佢叫我唔好返工，陪佢，時時叫我找生意做，佢又唔懵得晒，有時嬲起上嚟，叫我替佢向Mum拿回所有東西，我真比佢氣壞，佢有時問Mum是誰。”[50]

“我們去看brain specialist，他說亞爸無事，只是年紀衰老，退化而已。只要keep他心情好，便不會退化得太勵害，你大可以放心了。”[51]

(c)  In another letter of 20 June 1987, she wrote:

“至於Pa之事，他很好，無事，佢對我講咗好多嘢！代[sic.]你回來再商討，佢都傻唔[晒]，好清醒，只是放在心裏不出聲，佢亦樣樣看得透，幾醒㗎，只不過佢地個個當佢白痴。”[52]

(d)  When the contents of those letters were put to her, Joanna claimed that Ma Senior only pretended not being able to recognise Madam Siao and others to annoy them, that:

“問：嗰句就係話「有時mom」，即係「爸爸係有時連mom都唔知係邊個，小妹都唔知，Thomas一家人以為係外人喺度租樓住」嘅呢個--呢部分，妳同唔同意係屬實嘅？

答： 但係呢部分我就即係咁樣寫，我就真係有啲唔咩嘢，anyway，事後我亦都問過佢，佢--我話「點解你凈係認得我，話認唔到佢哋呀？」佢就講晦氣說話，佢話「我專登激佢」，激我阿媽啫，專登，因為嗰陣時有拗撬，我阿爸就好有少爺脾氣嘅，好大男人嘅。

問：我向妳指出妳剛剛提出嘅嗰個解釋話係妳爸爸故意激妳媽媽，就話唔認得佢，呢個我向妳指出就唔係真實嘅。

答：你話唔係咪唔係囉。

問：係妳作出嚟嘅，同唔同意？

答：唔同意。”

“問：我就想問，就住妳話爸爸唔認得細妹Elspeth嗰度，係咪同樣嘅解釋呢？

答：應該係。

問：即係話佢想激Elspeth？

答：唔係佢想激班人啫。

問：班人係邊個？

答：就係頭先你講嗰幾個囉，即係其實佢係晦氣說話咁樣講，當時就鬧情緒，即係咁樣講，你如果逐個逐個，係咪逐個逐個激，我覺得我唔知點樣解釋呢樣嘢囉。

問：而妳話佢話Thomas一家以為係外人租房住，亦都係同樣解釋？

答：呢樣嘢我就真係唔記得係咩嘢情況，真係唔係--唔知道係點樣樣。”

(e)  I find Joanna’s explanations inconsistent with the contents of the letters, and are inherently most unlikely.  She was also evasive when answering those questions;

(f)  The above bear poorly upon Joanna’s reliability as a witness.

K.4.   Elspeth

89.  Specifically in respect of Elspeth, though she has given 5 witness statements in total, on the facts pertaining to the main issues, she simply adopts Thomas’ evidence[53]. My concerns in relation to Thomas’ reliability equally bear upon the reliability of her evidence.

K.5.   D

90.  Specifically in respect of D:

(a)  I am concerned about 2 important aspects of her oral evidence;

(b)  The first aspect concerns what she claimed Sanford had told her in 1994 (“D/Sanford Conversation#1”):

(i)  She said during cross-examination that she and Sanford were in Canada in May 1994.  Thomas called Sanford and asked him to sign a power of attorney so that Thomas could sign the assignment of the 19G Property on his (Sanford’s)  behalf.  It was then when Sanford told her face to face that Madam Siao had bought one property for him, and one property for Thomas;

(ii)  D admittedly had no direct knowledge of the events that led, or any agreement between Madam Siao and the Children in relation, to the purchase of the 19G Property.  She said during cross-examination that she relies on 4 matters in support of her case that Madam Siao intended to make an immediate gift of the 19G Property to Sanford at the time of purchase: (1)  Lack of financial ability on Sanford’s part at that time to purchase his own property, (2)  Sanford being financially dependent upon Madam Siao, (3)  what Sanford had told her, and (4)  Madam Siao’s love and affection for Sanford and Thomas;

(iii)  What Sanford had told her is hence important to her case.  She appreciates that;

(iv)  In her witness statement, she has mentioned only one such conversation between her and Sanford (“D/Sanford Conversation#2”), that:

“… prior to Sanford’s death, he specifically told me not to get into any argument with [Madam Siao] or his siblings over property. He told me that the 19G Property was his, and he also had some cash (including in the UBS Private Bank Account), shares in Risepark and stock which would be left for me and Myron. He told me to get someone to prepare a will for him, but he passed away before I was able to do so.”[54]

(v)  The D/Sanford Conversation#1 has not been mentioned in any of D’s witness statements.  That is not something expected from a reliable witness if that conversation had in fact taken place;

(c)  The second aspect concerns what happened during the AL & Co Meeting:

(i)  In D/WS1 at §32, D says:

“… [AL & Co] is a firm of solicitors which was introduced to me by Elspeth, who suggested that I instruct [AL & Co] in the administration of Sanford's estate. In fact, when I signed the Schedule of Assets and Liabilities on 26 March 2014 … at the office of [AL & Co], the [P’s] entire family was also there to prepare [P’s] will.”

(ii)  D otherwise says nothing in D/WS1 as to what were discussed and what else happened during that alleged meeting;

(iii)  D has admitted that she had originally got both the date of and what happened during that meeting wrong.  In D/WS3, she corrects what she has previously stated.  After reviewing contemporaneous emails[55] (the “Email Chain”), she states that she was in fact referring to the occasion when she attended AL & Co for the first time on 28 February 2014, which was not the occasion when she signed the Schedule of Assets and Liabilities.  She says that she met up with Madam Siao’s entire family at the office of AL & Co on that date (28 February 2014).  She states in particular in §§5(3)  and 5(4)[56] of D/WS3 that:

“(3)  I then met [P’s] entire family at the office of [AL & Co] in the afternoon. They were there to prepare the [P’s] will, whilst I was there to handle the administration of Sanford’s estate.

(4)    As I did not have all the relevant documents and information to prepare the Schedule [of Assets and Liabilities], I had to rely on [P’s] family to provide some of the documents and information to Ms. Annie Leung.  We were all in the same meeting room when some documents and information were provided and the details about Sanford’s assets was being discussed.”

(iv)  No particulars have been provided in D/WS3 as to what “documents and information were provided”, and what “details about Sanford’s assets was being discussed.”  This by itself is disturbing.  If Madam Siao had in fact acknowledged to a lawyer during the meeting that the 19G Property was in fact beneficially owned by Sanford, one would have expected D to provide details on the same in the statements;

(v)  During cross-examination, she volunteered the following further information:

“問： 妳係去到嗰日，妳嘅講法就話妳上到去，入到去會議室，Annie Leung就首先喺所有人都在場嘅情況底下就率先處理Sanford個遺產事務？

答： 係。

問： 妳同唔同意其實喺處理呢一部分嘅事務上面其實同其他嗰啲屋企人係冇關係？

答： 有關係，奶奶喺個手袋拎咗本銀行簿仔，Thomas叫佢吖嘛，佢話「媽咪，恒生嗰本簿仔」，嗰個saving嗰本簿仔，奶奶咪拎咗出嚟，交咗畀Thomas，Thomas就交畀Annie Leung去影印，就冇經我手嘅。

問： 妳記唔記得--而家講緊2014年2月28號喎。

答：係，係。”

(vi)  D’s evidence in this regard has now been put forward as “a complete, coherent and inherently probable account of what happened at the 28/2/2014 Meeting and how the Schedule [of Assets and Liabilities] was prepared”[57];

(vii)  D in D/WS1 has however said this:

“57. Indeed, when Thomas gave me the [Handwritten Note], it included the HSB Accounts as Sanford’s property, but only showed a balance of HK$6,440.79 in the HSB Current Account. He specifically did not provide me with a copy of the bank statement of passbook of the HSB Savings Account, which would have revealed the withdrawal of HK$570,000 on 30 December 2013.

58.  With the benefit of hindsight, I verily believe that deliberate steps were taken to mislead me so that Myron and I would not obtain our full entitlement to Sanford’s estate.  More importantly, I believe the circumstances aforesaid strongly indicate that the Plaintiff, Thomas, Joanna and Elspeth all knew and understood that the funds in the HSB Accounts belonged to Sanford, or that he at least had an interest in the same.”

(viii)  If Madam Siao and Thomas had in fact, as D now claims, provided a copy of the passbook of the HSB Savings A/C to Annie Leung, D would have had no basis to attribute any intention to mislead on Thomas’ part;

(ix)  When cross-examined on the inconsistency, D become evasive;

(x)  I sought assistance from Mr Phang on the above during closing.  Mr Phang submitted that the passbook was only provided to Annie Leung but not D.  He also referred to an email of 18 March 2014 amongst the Email Chain, wherein D said “Please double check the account numbers and also the balance due on 30 December 2013 on Page 1 as I don’t have copies to proof-read.”  But AL & Co was engaged by D to deal with Sanford’s Estate.  She could or could have requested Annie Leung to show her a copy of the passbook.  Whether she actually did is another matter.  Any provision of a copy of the HSB Savings A/C passbook to D’s solicitor is materially inconsistent with any attribution of intention on Thomas’ part to mislead.  I accept Mr Ma’s submissions in this regard;

(d)  Both aspects discussed above are important to D’s case.  It is in my view inherently not likely that she would simply have forgotten about or neglected to deal with them in her various witness statements.  It is particularly so when one main purpose of preparing D/WS3 is to deal with the AL & Co Meeting;

(e)  The above matters in my view adversely affect D’s overall reliability as a witness.

K.6.   Myron

91.  Specifically in respect of Myron, I in general find him to be an honest witness. But the way he gave his evidence shows clearly to me that he has been sentimentally affected by all the disputes that have developed between him and her mother on the one hand and Madam Siao and the Surviving Children on the other.  Further, a lot of the facts he deals with in Myron/WS verge on being peripheral.  The more relevant matter he deals is set out at §§13 and 15 of Myron/WS, that:

“13. I now turn to the details of the discussion in December 2014, which happened out of the blue …

…

15.  During the discussion, Joanna suddenly confessed that she had used some tricks or tactics to cause the Funds of Ma Senior to be transferred to the Plaintiff.  As far as I can recall, the words she used were ‘用計仔’ or ‘用方法’ to ‘轉去阿嫲到’.  Out of curiosity, I asked Joanna how it was possible that the Funds could have gone to my grandmother, but Joanna simply repeated that she had used some tricks or tactics without going into details.  As I felt that she did not want to tell me the details, I did not persist in my question.  She was only concerned about her future and any possible criminal liability for using the tricks or tactics to transfer the Funds to the Plaintiff, and hoping for an answer from me that would ease her mind.  Despite not being given the details, it was clear to me that the gravamen of Joanna’s confession was that Ma Senior did not voluntarily or willingly consent to the transfer, and Joanna had some role to play in causing the transfer to be made nevertheless.”

I accept Myron’s evidence that Joanna did say those things to him.  But due to the vagueness of what were said, they do not in my view materially affect the merits of either side’s case.  I do not accept Myron’s opinion in respect of what he describes as “the gravamen of Joanna’s confession”.  That is in my view speculative.   

K.7.   Conclusion

92.  In the end, I do not find myself able to rely in general on the evidence of any particular witness.  I do not find myself able to prefer any particular witness’ evidence in case of differences.  On any fact on which I need to make findings, I will consider the evidence in the round to decide which witness’ evidence (or which part of a particular witness’ evidence), according to the criteria discussed in the cases highlighted above, should be accepted.  I specifically remind myself of the observations by H. Au-Yeung DJ in High Fashion at §14(5).

L.  Issue 1 and Issue 2

L.1.   The approach

93.  Mr Ma deals with Issue 1 and Issue 2 together.  That makes sense, as the funds in dispute within the HSB Savings A/C came from the rental income of the 19G Property.  The 2 issues stand or fall together.

94.  I hence adopt the same course and consider the 2 issues together.  I make also finding of facts in the process.

95.  Mr Ma invites this court to make 4 “Baseline Findings of Facts”, namely, (1)  Madam Siao did not intend to make an immediate outright gift of the 19G Property to Sanford, (2)  there was an express common intention between Madam Siao and Sanford that Madam Siao beneficially owned the 19G Property, (3)  alternatively that common intention is inferred from the evidence and parties’ conduct; and (4)  if this Court is not able to come to a finding on common intention, Madam Siao has nonetheless beneficial interest in the 19G Property by the presumption of resulting trust[58].

96.  I prefer to assess the parties’ common intention by adopting the holistic approach as summarised by Deputy Judge Alexander Stock SC in Leung Hang Lin, a case cited by both parties to me.  I bear in mind also the observations of G Lam J in Liu Wai Keung in respect of the relevance of the overall conduct of the parties even though express common intention is relied upon.

L.2.   Consideration of the evidence

97.  Madam Siao and the Surviving Children all claim that there was express common intention that Madam Siao beneficially owned the 19G Property.  I have considered their evidence both in their respective witness statements and, in the case of the Surviving Children, given in court.  In gist, they all say that despite being registered in the name of Sanford, the 19G Property remains beneficially owned by Madam Siao.

98.  I note that that common intention is alleged to have been expressed orally.  Any relevant alleged agreement, arrangement or understanding between the parties were not, and were not recorded, in writing.

99.  Madam Siao and the Surviving Children’s evidence on the existence of that alleged express common intention is self-serving. 

100.  I repeat also my observations in Section K on the reliability (or unreliability)  of the witnesses’ evidence.

101.  I am not prepared to accept Madam Siao’s and the Surviving Children’s evidence and assertion on the existence of the alleged express common intention merely upon their say-so. 

102.  I am also not prepared to accept D’s evidence and assertion on the existence of an intention on Madam Siao’s part to effect an immediate gift of the 19G Property upon Sanford.  The evidence is equally self-serving.  She also lacks direct personal knowledge on the underlying discussions, arrangements or understanding.

103.  I next proceed to consider the underlying facts to ascertain the parties’ common intention.  I remind myself that the approach is objective.  After doing so, I will come back to gauge parties’ assertions of existence of express common intention and agreement.

104.  The 19G Property is registered in the name of Sanford.  This is an objective fact.

105.  I remind myself that the onus of proof of showing that the beneficial ownership is different from the legal ownership is on the person who seeks to show that. 

106.  Madam Siao and the Surviving Children say that there are reasons for that.  The starting point is the Funds.

107.  Madam Siao and the Surviving Children’s evidence is that the Funds were in around 1987 transferred from a joint name account held by Ma Senior and Joanna to Madam Siao, and were a gift from Ma Senior after the sale of the Tsuen Wan Land.  They also say that Ma Senior had not interfered with the use of the Funds since.

108.  D has no direct evidence against Madam Siao’s and the Surviving Children’s case on the transfer of the Funds and the intention behind.  D relies on what Myron says Joanna confessed to him in December 2014:

(a)  I have recited above Myron’s relevant evidence.  As I have said, I accept Myron’s evidence that Joanna did say those things to him.  But what said were vague;

(b)  Whilst what Joanna has written suggests that Ma Senior had had some cognitive issues back in 1987, the evidence does not show that he in fact lacked any capacity to effect any gift;  

(c)  Mr Phang relied on what Joanna has written in her letter of 8 June 1987 to Sanford about Ma Senior having said that only several million would be given to Madam Siao.  Joanna clarified during cross-examination and re-examination that that was written before Ma Senior received the Funds, and before the settlement of various financial matters, including those with the Concubine.  She said that after settlement of those matters, Ma Senior changed his attitude;

(d)  I have no basis to reject that evidence.

109.  It is not inherently improbable that Ma Senior would gift the Funds to Madam Siao, his then wife.

110.  Mr Phang submits[59] that the Funds were not a gift from Ma Senior to Madam Siao, but were taken by Joanna and kept in Madam Siao’s account for the benefit of the family.  I do not find that submission supported by the evidence.  That in any event does not support D’s case that the 19G Property was intended to be an outright gift to Sanford alone.

111.  I have summarised the use and fund-flow of the Funds since transfer to Madam Siao.  Madam Siao was the majority shareholder of Star Rich.  I repeat also what I have set out above in relation to the purchase and subsequent sale of the CNT Tower Property, and how the majority of the sale proceeds were repaid to Madam Siao as director loan.  What happened were consistent with Madam Siao retaining interest in the Funds and their proceeds.

112.  I find that the Funds were a gift by Ma Senior to Madam Siao.

113.  Then the 19G Property and 19H Property were purchased.

114.  I have talked about how the Pre-Sale was conducted by way of balloting. Three applications were put in, one in each of Madam Siao, Thomas’s and Sanford’s name.  The one under Madam Siao’s name was not successful, whilst the other 2 were.

115.  Mr Phang put to Thomas during cross-examination that the 19G Property and 19H Property were immediate gifts for Sanford and Thomas as neither of them had any property.  Thomas’ reply was that had Madam Siao’s application been the only successful one, neither of him or Sanford would have any property.  There is sense in that answer.

116.  There is no dispute that the purchase prices and all related expenses came from the Funds that had been transferred to Madam Siao.  Sanford had made no financial contributions towards the same. 

117.  Sanford had never had the title documents to the 19G Property.  This is inherent unlikely if the 19G Property were meant and intended to be an immediate gift to Sanford.

118.  According to Thomas, the title documents to both of the 19G and 19H Properties had all along been kept by Madam Siao[60]. I accept this evidence.  There is no evidence to the contrary, and is consistent with the fact that Sanford never had those of the 19G Property.  D in fact does not know where they are.

119.  In 1994, Madam Siao was only about 63-year old.  Thomas was about 43, and Sanford about 40.  There was no indication of any need for any immediate gift to either of them.  Even if there had been any intention on Madam Siao’s part to gift them to Thomas and Sanford, it is not inherent improbable that the gift was only intended to take effect upon her death.

120.  At the time when the 19G Property was purchased, Sanford had bank accounts in his own name.  If the 19G Property were intended to be an outright gift to him, it would be inherently more probable for the rental income to have been deposited into one of those sole accounts of his.  But what actually happened was that the HSB Savings A/C was specifically opened in the joint name of Madam Siao and Sanford.  The rental income from the 19G Property was deposited into the same.  Madam Siao had also made deposits of other funds into that account.  All withdrawals and outgoing cheques were signed by Madam Siao.  Funds therein were used for payment of Sanford’s medical expenses, which Madam Siao had promised that she would bear personally.  Sanford on the other hand had not himself utilized the funds therein.  All those arrangements are more consistent with Madam Siao having sole interest in the rental income.  The contrary is inherently must less probable.

121.  Before forming the above view, I have considered the other possibilities which D has put forward, namely the arrangement being out of respect to Madam Siao, the promise on Madam Siao’s part to be responsible for Myron’s tuition fees, and the fact that Sanford, D and Myron had been residing at the Park Towers Premises rent-free.  I do not find those possibilities convincing.  They are not causally related to the arrangement of opening the HSB Savings A/C as a joint account.

122.  I have considered the manner in which Thomas handled the rents derived from the 19H Property.  They were paid into an account in his sole name.  There are some inconsistencies in relation to how he reported the income to Madam Siao, and the percentage split of the different uses which those rents were put to.  I have mentioned those inconsistencies.  But despite those inconsistencies, the evidence does suggest, and I so find, that Thomas did keep written records of the rental income from the 19H Property, and did report the same to Madam Siao.  Such conducts is not consistent with him treating the rental income from the 19H Property as being his own solely, but more consistent with Madam Siao being its beneficial owner.

123.  I have stated that D has no direct knowledge of the events that led, or any agreement between Madam Siao and the Children in relation, to the purchase of the 19G Property.  I have also sets out above the reasons which D relies on in support of her case.

124.  It should be noted that the 19G and 19H Properties were not purchased as Thomas or Sanford’s residences.  They have always been rented out. Accommodation for Sanford and D were otherwise provided for.  Whilst Thomas and Sanford indeed had no landed properties under their own name, were financial dependent upon Madam Siao, and were loved by Madam Siao, those facts do not support any intention on Madam Siao’s part to make an outright gift to them for investment purposes.  If anything, with their accommodation otherwise provided for, the facts are more consistent with any gift being a future one, when Madam Siao becomes no longer available to take financially care of them.

125.  I have considered what D says Sanford had told her about the 19G Property:

(a)  I do not accept D’s evidence that the D/Sanford Conversation#1 had taken place.  In my view, if it had, D would not have failed to mention it in her various witness statements;

(b)  I accept her evidence that the D/Sanford Conversation#2 had taken place.  But what D states about that conversation is brief.  I have set out above the relevant part of D/WS1.  Materially, she says that Sanford only told her “that the 19G Property was his”.  It is not clear what he meant by that, the basis of what he said, or whether he might in fact just mean that he was the registered owner of the same.  I state also the obvious that due to his unfortunate death, he is no longer available for cross-examination, and the truth and basis of his statement can no longer been tested;

(c)  I note that apart from the 2 conversations, D has not mentioned any other conversations between her and Sanford in respect of the ownership of the 19G Property.  But if Sanford’s ownership in the 19G Property had in fact been so clear such that there was no need for them to talk further in the meantime, and Sanford being the registered owner, why Sanford before his death suddenly saw the need to inform D of his ownership in the same?

(d)  For the above reasons, I am not able to place much weight on D/Sanford Conversation#2.  It certainly does not carry the weight sufficient enough to upset the effects of the other evidence pointing towards the existence of common intention constructive trust.

126.  Mr Phang in his written closing relies heavily on the Handwritten Note and the AL & Co Meeting as manifestation of the parties’ intention:

(a)  In respect of the Handwritten Note, I find on the evidence that Thomas knew that D asked for the information for administration of Sanford’s Estate.  Elspeth herself accepted that she had that understanding;

(b)  There are however features of the Handwritten Note which trouble me.  Why does it contain the particulars of the current tenancy agreement of the 19G Property?  D herself knew the address of the 19G Property.  She did not need anyone to provide that to her.  For the administration of Sanford’s Estate, she did not need the particulars of the tenancy agreement;

(c)  I have set out Thomas’s evidence in Thomas/WS1 in relation to his preparation of the Handwritten Note.  He says, I repeat, that “被告人於2014年1、2月期間要求我給她海怡19G單位租約資料及所有關於馬照海名下的財物資料”;

(d)  The contents of the Handwritten Note support this part of his evidence, which I accept;

(e)  The 19G Property (and the joint accounts and the Stocks)  was indeed under the name of Sanford.  If all Thomas had done was to provide to D “所有關於馬照海名下的財物資料”, what he had written would not constitute any manifestation of intention on his part as submitted by Mr Phang.  I so find;

(f)  In relation to the AL & Co Meeting, I have set out above my concerns on D’s relevant evidence;

(g)  In his written closing, Mr Phang relies heavily on the presence of the HSB Savings A/C balance as at Sanford’s death in the Schedule of Assets and Liabilities, and Thomas’s oral evidence in the course of cross-examination that the only information he provided to D was contained in the Handwritten Note.  Mr Phang submits[61] that that is “fatal to P’s version of events”;

(h)  I note that in his witness statements, Thomas has twice said that he did provide that said balance to D[62];

(i)  There is force in Mr Ma’s submissions[63], relying on Macau First Universal International Ltd v Ding Xiao Hong and Ors (HCA 992/2010, 20 August 2014)  at §§80-82, that the apparent inconsistency has not been squarely put to Thomas;

(j)  But more importantly, the effect of D’s own evidence is that further information might have been provided by Thomas after the provision of the Handwritten Note, that:

“問： 頭先我一路問緊，話Thomas手寫嗰啲資料，妳收咗未？

答： 收咗㗎其實，其實Thomas係畀咗2325同埋2326我先嘅，呢兩張紙先嘅，所以嗰日上到去係呢兩張紙已經交咗畀Annie Leung㗎喇。

問： 即係妳嘅講法係2014年2月28日...

答： 號，係喇。

問： ...妳就帶埋K 135頭嗰兩頁紙...

答： 兩頁，呢兩頁。

問： ...上去見Annie Leung？

答： 就畀咗Annie Leung先。

問： 就交畀Annie Leung嘅？

答：  係，Thomas就話--同Annie Leung講「仲有啲銀行戶口，我未有個balance呀，我遲啲後補畀妳喇」咁。”

(k)  I have made observations on the brevity of D’s evidence in respect of the AL & Co Meeting.  I repeat §90(c)(iv)  above.  That is surprising if the AL & Co Meeting indeed took place as she claimed in the course of cross-examination;  

(l)  Quite apart from the question of credibility and reliability, D’s own evidence lacks particulars and details as to how Madam Siao and the Surviving Children allegedly manifested their intention during the AL & Co Meeting;

(m)  Elspeth denies having introduced Annie Leung to D.  She says[64] that they only bumped into D inside the office of AL & Co, and that they were not present when D discussed the administration of Sanford’s Estate with Annie Leung;

(n)  Annie Leung was not called.  Nor any one from AL & Co who was present during the AL & Co Meeting.  I do not feel able to draw any adverse inference against any party.  There is no property in witnesses.  The reasons for neither party doing so has also not been canvassed;

(o)  The fact remains that this Court does not have any record from any independent witness on the identity of the persons who attended that meetings, the matters that were discussed, and the information that was passed;

(p)  Having viewed and considered the evidence before this court objectively, I do not accept D’s evidence that she saw during the AL & Co Meeting Madam Siao through Thomas provide to Annie Leung the HSB Savings A/C passbook for copying.  Had she actually seen it, she would have mentioned it in her statements, and would not have made the inconsistent accusations against Thomas in §§57 and 58 of D/WS1.  I do not accept her evidence that she during the AL & Co Meeting discussed with Annie Leung and other attendants of the firm the administration of Sanford’s Estate in the presence of Madam Siao and the Surviving Children.  I accept Mr Ma’s submissions[65] that it is not inherently improbable for there to be two separate meetings on 28 February 2014 when there were no overlapping attendees at each.  The administration of Sanford’s Estate and the preparation of Madam Siao’s will were two unrelated legal matters, each involving different clients and different privileges.  Indeed, in that light, the inherent probability is that the 2 matters would have been handled and dealt with by AL & Co separately;

(q)  There is no evidence that Madam Siao or the Surviving Children were otherwise involved in the preparation of the Schedule of Assets and Liabilities;

(r)  I therefore do not accept that there was any manifestation of common intention by Madam Siao or the Surviving during the AL & Co Meeting as submitted by Mr Phang.

127.  Mr Phang also relies on a recorded conversation between Madam Siao, D, and the Surviving Children.  He submitted that various matters were not asserted by Thomas (existence of an express agreement, arrangement or understanding, that the 19G and 19H Properties were purchased by Madam Siao for investment purposes, and what Sanford was alleged to have said during family functions), and in respect of what he said (that whether D would obtain the 19G Property would be dependent upon he behaved), he was only “toeing the party line”.  I do not find that recorded conversation useful.  The contents are at best equivocal.

L.3.   Conclusions on the existence of express common intention

128.  For the above reasons, I form the view that the evidence supports a clear inference of the existence of a common intention constructive trust, upon which Sanford had been holding the 19G Property with Madam Siao as the beneficial owner.  This is not a case that just involves direct contribution of purchase price by Madam Siao.  That by itself is a significant factor.  The contemporaneous conduct of the parties also supports and points towards the inference, as does the inherent probabilities as discussed above.  The totality of the evidence also points against the making by Madam Siao of any immediate outright gift of the 19G Property to Sanford.

129.  The consideration of the evidence in the round also assists in gauging the evidence of Madam Siao and the Surviving Children that there was express common intention between Madam Siao and Sanford for Madam Siao to own the 19G Property beneficially.  I have stated my initial stance that I was not prepared to accept their case in this regard on their mere say-so.  But having considered and weighed all the evidence before this court, and adopting an objective approach, I find that the existence of the express common intention as they have been claiming is supported by and is consistent with the totality of the evidence.  It is also inherently probable. 

130.  Hence, having considered the evidence in the round, I accept Madam Siao’s case based on the existence of express common intention and agreement – limb 1 as discussed by Deputy Judge Alexander Stock SC in Leung Hang Lin. In any event, based on parties’ conduct, I infer the existence of such a common intention – limb 2 as discussed by Deputy Judge Alexander Stock SC in Leung Hang Lin.

L.4.   The answers to each of sub-issues 1.1 to 2.3

131.  Given my conclusion that the Funds were a gift to Madam Siao, and her use of part of the same to purchase the 19G Property, I conclude that there is detrimental reliance on her part – see Lewin on Trusts §10-69 which I have cited above.  It would in the circumstances be unconscionable on Sanford’s part (or Sanford’s Estate)  to assert ownership in reliance on the legal title.

132.  For the above reasons, I answer Issue 1.1 in the affirmative, that Sanford (and upon his death, Sanford’s Estate/D qua administratrix)  held and continues to hold the 19G Property upon trust for Madam Siao.

133.  In relation to Issue 1.2, Mr Ma in the course of closing submissions confirmed that if the Court is with Madam Siao on Issue 1.1, P does not dispute liability for restitution of any renovation costs, management fees, rates and other outgoing and expenses that D has paid in respect of the 19G Property.  The question of quantum will be subsumed into the accounts requested by P.

134.  Issue 1.3 is not engaged.

135.  Issue 2.1 relates to the beneficial ownership of the deposits and balances in the HSB Savings and Current A/Cs.

136.  In asserting beneficial ownership in those funds, Mr Phang relies on Madam Siao’s and the Surviving Children’s manifestation of common intention in the Handwritten Note and at the AL & Co Meeting[66]. For those same reasons which I have explained above, I do not accept those submissions. 

137.  I have observed that Issue 2.1 stands or falls together with Issue 1.1. I have found that Madam Siao is the beneficial owner of the 19G Property. I find that Madam Siao is also the beneficial owner of the funds in the HSB Savings and Current A/Cs.

138.  In relation to Issue 2.2, P is entitled to the appropriate declaration, which I will deal with at the end.

139.  Issue 2.3 is not engaged.

M.  Issue 3

M.1. Discussion

140.  I have set out the facts in relation to the purchase and sale of the CNT Tower Property.  I have also set out the facts and fund-flow relevant to the DSB Savings A/C, the DSB Integrated A/C and the Stocks.  I will highlight and elaborate on some of the most relevant facts.

141.  In March 2010, Star Rich sold the CNT Tower Property at HK$5,452,000.

142.  According to the accounts and records kept by Star Rich, HK$4,000,000 was booked on 12 November 2010 as repayment to Madam Siao of an “Amount Due to Director” (stood at that time at HK$4,006,253.40)[67]. The other 5 sums (HK$480,000 to Madam Siao, and HK$180,000 each to the Children)  were booked on 25 February 2011 as payment of dividends to her and the Children[68].

143.  According to the passbook of the DSB Savings A/C[69]:

(a)  HK$4,000,000 was on 26 November 2010 deposited into the DSB Savings A/C;

(b)  Prior to that deposit, the balance of the account stood at HK$0;

(c)  Between 26 November 2010 and 9 February 2011, there had only been interest deposits in the total sum of HK$361.64;

(d)  On 10 February 2011, HK$1,500,000 was transferred to the DSB Integrated A/C[70];

(e)  Between 11 February 2011 and 24 February 2011, there was no more transactions;

(f)  On 25 February 2011, HK$1,100,000 was transferred to the DSB Integrated A/C[71];

(g)  Those 2 transfers to the DSB Integrated A/C, in the total sum of HK$2,600,000, are demonstrably funded by the HK$4,000,000 deposited into the DSB Savings A/C on 26 November 2010;

(h)  On 25 February 2011, HK$480,000 and 4 sums of HK$180,000 were then deposited into the DSB Savings A/C.

144.  With the above objective facts in mind, I consider Thomas’ evidence in relation to the funds in the DSB Savings and Integrated A/Cs.  He states in Thomas/WS1[72] as follows:

“25. 在母親收到上述財星歸還給她的港幣4百萬元支票後，母親不欲將這筆款項存入上述UBS聯名帳戶，因為UBS沒有設立分行現金提取服務，祇有電話指示轉帳服務，提存頗為不便，母親遂決定在大新銀行與我們四兄弟姊妺開設五人聨名戶口存入這張支票。

26. 2010 年11月26日，母親與我們四兄弟姊妺在大新銀行開設[DSB Integrated A/C] … 內含[DSB Savings A/C] …，並存入前述的港幣4百萬元 …

…

28.  如前所述，財星於2011年2月派發剩餘港幣1.2百萬元股息。我們四兄弟姊妺各人收到財星派發股息支票港幣180,000元後，一致認為財星的資本出自母親的金錢，股息應該歸還母親所有，一致同意將所有這些支票於2011年2月25日存入大新存摺戶口，因此，上述港幣1.2百萬元款項也全數存入大新存摺戶口。”

145.  I accept Thomas’ aforesaid evidence.  They are supported by the documentary evidence and the contemporaneous conduct of the parties.  In particular, if the dividends had been intended to be individually owned by the Children, there would have been no reasons for them to be deposited into an account specifically and jointly opened with Madam Siao. 

146.  I also accept Joanna’s evidence on the ability on Madam Siao’s part to make investment decisions, that:

“我阿媽就好精明嘅，對呢啲投資嘢，變咗佢自己鍾意點樣去投資，冇冇問題㗎，我阿媽係好跟進嗰啲時事、政治、投資嗰啲股票闃礫����嘞，佢乜都好清晰㗎，我阿媽係讀書讀到中學嘅，唔係小學未畢業嗰隻，唔係一個無知婦人，佢做嘢好精明，好能幹嘅，計數好清楚。”

There is no evidence which suggests the contrary.

147.  It is agreed that the Stocks were purchased with funds in the DSB Integrated A/C[73].

148.  Mr Phang relies similarly on the Handwritten Note and the AL & Co Meeting as manifestation of common intention.  For the same reasons set out above, I reject those submissions.

149.  Mr Phang further relies on D’s evidence that Joanna was infuriated by Thomas having sold the CNT Tower Property unilaterally as being evidence consistent with each of the Children having interest in the CNT Tower Property, and that as the funds in the DSB Savings and Integrated A/Cs were derived from the sale of the CNT Tower Property, each of them had interest in the same.  I do not accept those submissions.  They are in my view flimsy at best, if not far-fetched.

150.  On the evidence, I infer and find that there was a common intention amongst all parties that the funds in the DSB Savings A/C and DSB Integrated A/C, the Stocks and their proceeds were beneficially owned by Madam Siao solely.

151.  As the sources of and for all those funds and Stocks all traced back to Madam Siao, and on the evidence before me, I also find that there had been detrimental reliance on her part, and that it would be unconscionable for Sanford (or the Estate)  to assert ownership in reliance on any legal title that might arise from he being one of the joint account holders. 

M.2.  Conclusions on Issue 3

152.  For the above reasons:

(a)  In respect of Issue 3.1, I hold that Madam Siao was and is the sole beneficial owner of the deposits and balances in the DSB Savings and Integrated A/Cs, and of the Stocks, and that Sanford during his lifetime (and hence his Estate/D upon his death)  had and has no beneficial interest therein;

(b)  In respect of Issue 3.2, I will deal with the all the Declarations at the same time at the end;

(c)  In respect of Issue 3.3, it is not engaged.

N.  Issue 4

153.  Issue 4 concerns the UBS Private Bank A/C.

154.  As stated above, the ownership of the funds in the UBS Private Bank A/C is first raised by D in her RA-D&C.

155.  D’s counterclaim concerns only the UBS Private Bank A/C, but not the New UBS A/C.

156.  I have set out above the agreed facts in respect of the UBS Private Bank A/C, which I will not repeat.

157.  D’s case is based on Sanford being one of the joint account holders of the UBS Private Bank A/C.

158.  P’s case is that the funds belonged solely to the Madam Siao:

(a)  According to Thomas[74]:

“2002年，母親考慮到她年紀漸大，為了方便計．與我們四兄弟姊妺在UBS Private Bank … 開設聯名帳戶並將在她個人帳戶的資金轉移到聯名帳戶，該聯名帳戶內的款項是完全屬於母親的。開設該聯名帳戶時母親訂明她可以單獨簽名提取款項，但我們四兄弟姊妹必須四人聯署才可以提取款項。事實上我們四兄弟姊妹從未曾聯署提款。”

(b)  According to Elspeth[75]:

“… UBS 聯名帳戶內存款全屬於母親，我們四兄弟姊妹（包括馬照海）皆沒有任何實益…”

159.  I note the fact that Madam Siao could alone operate the account. 

160.  I also repeat the discussion above based principally on parties’ contemporaneous conduct, undisputed facts, and inherent probabilities.

161.  In my view, the signatory grouping of the UBS Private Bank A/C together with the totality of the evidence support the inherent probability that the funds concerned belonged beneficially to Madam Siao.  

162.  I accept the evidence of Thomas and Elspeth in the above regard.

163.  Mr Phang relies on the declarations of beneficial ownership made by Madam Siao and the Surviving Children in the account opening forms of 10 April 2014[76] and that of the New UBS A/C of 6 July 2016[77].  But they were all signed after Sanford’s death.  I do not accept Mr Phang’s submissions that they support an inference that Sanford also had beneficial interest in the funds[78].  In my view, Whitlock v Moree [2017] UKPC 44 §29 has no application.

164.  For the reasons set out above, I answer Issue 4.1 in the affirmative, that Madam Siao was and is the sole beneficial owner of the UBS Private Bank A/C, and Sanford during his lifetime, and hence Sanford’s Estate/D upon his death, had and has no beneficial interest therein.

165.  There is in the light of my view above no need for me to deal with the question of survivorship.  I say just this.  If necessary, I would agree with Mr Phang and hold that P has failed to prove the existence of any binding contractual survivorship clause which governed the UBS Private Bank A/C, as P has failed to prove the provenance of the version of Account Terms and Conditions which she seeks to rely on[79].

166.  Issue 4.2 is in the circumstances not engaged.

O.  Overall disposition

167.  For the reasons set out above, I grant judgment in P’s favour.  I make the following Declarations and Orders:

(a)  A Declaration that the 19G Property was held by Sanford during his lifetime upon trust for Madam Siao, and has been held by D on trust for Madam Siao after the death of Sanford;

(b)  An Order that all the title and all the interests of and in the 19G Property be transferred by D to Madam Siao through her Next Friend[80];

(c)  An Account and/or an Inquiry as to all the income and/or profits which D has received or derived from the use of the 19G Property (including but not limited to rental income)  since 1 March 2016 until the transfer of the Property to Madam Siao as per (b)  above, setting off any renovation costs, management fees, rates and other outgoing and expenses that D has paid in respect of the 19G Property;

(d)  An Order that D shall forthwith pay Madam Siao through her Next Friend the sums found due upon the taking of the Account and/or Inquiry as per (c)  above;

(e)  A Declaration that Sanford during his lifetime did not, and D does not, have any share or interest in the Subject Assets whether as at the date of Sanford’s death or at any other time;

(f)  An Order that D do rectify and amend the Schedule of Assets and Liabilities to remove the inclusion of the Subject Assets therein as assets of Sanford’s Estate; and

(g)  An order nisi that D do pay Madam Siao’s and P’s costs of the action (including for the avoidance of doubt the costs incurred on the defence of D’s counterclaim)  on a party-to-party basis to be taxed if not agreed with certificate for two counsel.

168.  I dismiss D’s counterclaim.

169.  I heed the fact of Joanna having been appointed as Madam Siao’s Next Friend, and the possibility of any unforeseen difficulty arising in relation to the enforcement of the Declarations and Orders made above.  I hence grant parties liberty to apply.