TANG SZE KIN v. TANG OI LING

DCCJ 1504/2018

[2020] HKDC 660

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1504 OF 2018

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JUDGMENT

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1.  This trial concerns a Home Ownership Scheme (“HOS”) flat known as Flat 4, 21^st Floor, Block J, Yu Chui Court, No. 6 Ngau Pei Sha Street, Shatin (“the Property”).

2.  The dispute in a nutshell is this.  The plaintiff, being the youngest of 5 siblings, alone financed the purchase of the Property in 2001 for his parents to live in until their demise.  The defendant, an older sister of the plaintiff who has been living with the parents in the Public Housing Units (defined below) and later continued to live with them in the Property, claims now after the parents have passed away, by proprietary estoppel allegedly based on certain representations made, that she is entitled to a life interest in the Property, as she allegedly has lost a chance to “retain” the Public Housing Units or to apply for one.

3.  There is no issue that the plaintiff is the sole beneficial owner of the Property by way of resulting trust as such is admitted in the Defence and Counterclaim[1].

4.  This is thus essentially the trial of the counterclaim for the life interest.

5.  The other 3 siblings – Kang Fong, Kai Hang and King Sheung (“the 3 Siblings”) - support the plaintiff’s case and give evidence for it.  The defendant gives evidence for her case. 

Background

6.  Many of the background matters are admitted by the defendant in her pleadings[2]. Some others turn out at trial to be uncontested or not seriously disputed. They are as follows.

7.  The parties’ parents were the late Mr Tang Ping (“Father”) and their late mother Madam Tse Yim Hor (“Mother”)(together “Parents”).  They had 5 natural children:-

(a) The eldest daughter Tang Kang Fong (“Kang Fong”);

(b) The eldest son Tang Kai Hang who was born in 1960 (“Kai Hang”);

(c) Daughter Tang Oi Ling, the defendant, who was born in 1964;

(d) Daughter Tang King Sheung (“King Sheung”); and

(e) The youngest son Tang Sze Kin, the plaintiff, born in 1968.

8.  Since early 1980s, the Parents and their five children had been living in Units 538 and 540, Tsui Yeung House, Tsui Ping North Estate, Kwun Tong (“the Public Housing Units”).  The Mother was the registered tenant of the Public Housing Units while the other family members were registered members.  The Public Housing Units together were 560 square feet in area.

9.  Since very early on, Father had been suffering from mental problems such that he had not been working.  I am told that Mother who worked a manual job provided financially for the family, which of course had been no simple feat. Her health was not too good either.

10.  In 1999 or 2000, Mother had an operation in which one of her kidneys had to be removed.

11.  By the time of the relevant events in 2001, all the siblings, except the defendant, were respectively married and moved out of the Public Housing Units.  The last to marry was the plaintiff who married and moved out in 1997. Then after, only the defendant continued to live with Parents in the Public Housing Units.  I should also mention that the plaintiff’s daughter was born in 1998.

12.  Though all except the defendant had moved out, the siblings and the Parents remained closely connected as they met every Saturday for dinner in the Public Housing Units.

13.  The following immediate background matters are spoken to by the plaintiff and the 3 Siblings in their witness statements, but they were not mentioned in the defendant’s.  The defendant at trial however does not dispute them. They are:-

(a) Tsui Yeung House (where the Public Housing Units were in) was situated up on the hillside;

(b) The Parents, who were aged at the time (in 2000, Father was 76 years old and Mother 66) and physically not that well, found it difficult or challenging to have to walk up and down the slope day by day; and

(c) The staff of the Housing Authority had warned that as only 3 persons now lived in the Public Housing Units, the Housing Authority might seek to recover one of the 2 units.

14.  It is the plaintiff’s evidence, supported by the 3 Siblings’ and not disputed by the defendant, that

(a) At the material times, Kang Fong, who has been a housewife, lived in Yue Tin Court in Shatin;

(b) In April 1999, the plaintiff purchased under the Sandwich Class Housing Scheme a flat in Sunshine Grove in Shatin and moved to live there.  Sunshine Grove was right next to Yue Tin Court where Kang Fong lived;

(c) On one occasion when Mother visited Kang Fong, she realized the nearby Yu Chui Court, a HOS estate, was in construction.  Yu Chui Court was situated just across the road from where Yue Tin Court and Sunshine Grove were; and

(d) Mother became interested in applying for a flat in Yu Chui Court as she wished to live close by Kang Fong and the plaintiff. 

15.  In late 2000 and 2001, there were a number of family gatherings in which the Parents, the plaintiff and his wife, the defendant and the 3 Siblings and their spouses were present, and in which the purchase of a HOS flat in Yu Chui Court, how to finance it, and the naming of the defendant as one of the co-owners to hold the Property were discussed (“Family Meetings”). At trial, the defendant does not dispute that the Family Meetings took place, nor seriously disputes the accounts of these Family Meetings as given by the plaintiff and the 3 Siblings, save several specific aspects.  As the Family Meetings are significant events, I will deal with them in detail in a later section.

16.  The upshot was that on 14 May 2001, Mother signed as the applicant and the defendant signed as a family member the application form applying for a HOS flat and there selecting Yu Chui Court as the 1^st choice (“the Green Form”)[3].

17.  It was understood by everyone that if the application were successful and the purchase of the HOS flat were made, the Public Housing Units had to be surrendered to the Housing Authority.

18.  The application was successful, and the Property was selected.  There were a number of declarations and forms signed by the Mother and the defendant on 20 June 2001[4].

19.  By an assignment dated 26 July 2001, the Property was conveyed into the names of the Mother and the defendant as joint tenants.

20.  It is the plaintiff’s case[5] that Mother and the defendant would be, and had been, holding the Property on trust for him, while, which is common ground, that he had agreed that the Parents, and the defendant, would be permitted to live in the Property until the Parents’ demise.

21.  In contrast, it is the defendant’s case[6] that representations had been made by Mother and the plaintiff before the purchase that she would be granted a life interest in the Property.  This is of course hotly disputed.

22.  Sometime in 2001, the Parents and the defendant moved in and began living in the Property. The Property is about 660 square feet in area.

23.  It is the plaintiff evidence[7], which is not serious disputed, that he has kept all the keys of the Property including the room keys and that he has given a set of door keys to the 3 Siblings to facilitate their visiting the Parents.

24.  It is common ground that it was the plaintiff who paid the deposit and all the mortgage repayments to purchase the Property.

25.  The defendant has been paying the government rents and rates and the management fees of the Property.  The plaintiff’s case, which is admitted in the Defence[8], is that they were paid upon the request of Mother for the reason that the defendant did not pay anything for her occupation of the Property.  The defendant says that she also additionally paid for all the utilities personally.  The plaintiff disputes such payment.  The defendant further says in her witness statement[9], which is disputed by the plaintiff, that it was upon the promise and assurance that she had an interest in the Property that she paid all these expenses of about HK$1,500 a month and another HK$2,000 to Parents as their living expenses.

26.  Unfortunately and on 1 May 2003, Father passed away after having suffered from a stroke.

27.  It is not disputed that shortly after Father had passed away, the plaintiff arranged at his expense for a foreign domestic helper to live in the Property to take care of Mother.  It is not serious disputed that such arrangement continued for over 10 years until Mother passed away due to renal failure on 23 February 2014.

28.  On an occasion in late 2006 or early 2007, the plaintiff, Mother and the defendant visited the office of a solicitors’ firm to collect the title deeds to the Property after the mortgage was paid off.  It is the evidence of the plaintiff which is not disputed that after signing the relevant papers and upon having received from the solicitors’ firm the title deeds which were contained in a large envelop, Mother there and then handed them over to the plaintiff. The title deeds have been kept by the plaintiff ever since.

29.  Upon the passing of Mother, the defendant became the sole registered owner of the Property by right of survivorship.

30.  Both the plaintiff and Kai Hang said in their witness statements[10], which the defendant has not disputed, that on an occasion in March 2014 shortly after Mother had passed, they met with the defendant in the Property.  On that occasion, Kai Hang mentioned to the defendant that she should have a plan about her future accommodation and suggested her to apply for public housing.  The defendant then made no response.  Later the defendant told them that she had made enquiries with the Housing Authority, but apparently no action was taken by her. 

31.  It is also undisputed that after Mother passed away, the plaintiff has financially assisted the defendant on 12 occasions between early March 2014 to December 2017 by giving to her either cheques or cash in amounts ranging from HK$8,000 to HK$50,000 to support her.  It is not the plaintiff’s allegation that he has demanded for their return, which is also the defendant’s response. The defendant however says that she had returned some of them to the plaintiff.

32.  It is the plaintiff’s case that in September 2017, because of marital problems involving domestic violence, Kang Fong moved out from her matrimonial home, and that after having sought the plaintiff’s permission, she moved into the Property.  These are not seriously disputed by the defendant.  Then after, there were a number of quarrels between Kang Fong and the defendant and at some stage even the police were involved.  It is the defendant’s case[11] that Kang Fong was purposefully sent by the plaintiff to harass her with a view to evict her.

33.  On 8 April 2018, after paying respects to their deceased Parents, all the siblings tried to resolve amicably the issue relating to the title of the Property, but failed.  It is the plaintiff’s case that on that occasion he had terminated the licence for the defendant to occupy the Property.

34.  On 16 April 2018, the Writ herein was issued.  On 29 June 2018, the Statement of Claim herein was filed.

35.  On 7 July 2018, the defendant by her former solicitors’ letter claimed that the defendant “is 100% legal and beneficial owner” of the Property and demanded, among others, Kang Fong to quit the Property.

36.  On 24 October 2018, the Defence and Counterclaim was filed.  In November 2018, the defendant changed the locks of the door to the Property to exclude the plaintiff and the other siblings.

Legal principles

37.  The following general legal principles are not disputed.

38.  To establish proprietary estoppel, three elements must be satisfied:-

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

(b) Reliance on it by the claimant; and

(c) Detriment to the claimant in consequence of his/her reasonable reliance.

(Thorner v Major [2009] 1 WLR 776, at §29, applied recently in Cheung Lai Mui v Cheung Wai Shing [2020]2 HKLRD 15 at §§1.14 and 5.4)

39.  Moreover, “… to establish a proprietary estoppel the relevant assurance must be clear enough. What amounts to sufficient clarity… is hugely dependent on context” (per Lord Walker in Thorner v Major at §56).

40.  Counsel for both parties also cite Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1.  There, Ribeiro PJ set out the principles thus:-

“56.  While it is necessary for the purposes of exposition to identify the separate elements of the doctrine, it should be borne in mind that when applying them to the facts, each element does not exist in its own watertight compartment to be kept separate from the others.  Each element acquires its meaning and content in the context of the other elements.  This was emphasized by Robert Walker LJ in Gillett v Holt in relation to proprietary estoppel in the following terms:

“... the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. ... [The] quality of the relevant assurances may influence the issue of reliance, ... reliance and detriment are often intertwined, and ... whether there is a distinct need for a ‘mutual understanding’ may depend on how the other elements are formulated and understood. Moreover, the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round.”

…

59.  While the promise need not be express, the meaning of the promise conveyed by the promisor’s words or conduct must be clear and unequivocal.  He must make it clear that he is promising not to enforce the relevant rights or powers.  This message must be conveyed with a clarity similar to that needed to vary a contract.  Whether there is sufficient clarity is to be assessed objectively by the court.

60.  The court will seek to ascertain the meaning in substance of the promise.  It is the substance of its meaning that must be clear and unequivocal.  A promisor may make his intentions perfectly plain but, not being a lawyer, may express himself in terms which are legally imprecise or inaccurate.  A promisee may likewise clearly understand the substance of what is being promised without any knowledge of the legal rights or powers within which the promise is framed.”

41.  In the event that proprietary estoppel is established, the court has a very wide discretion in satisfying an equity arising under the doctrine of proprietary estoppel.  It is to be satisfied by the minimum award necessary to do justice (Crabb v Arun District Council [1976] Ch 179 at p 198 and Luo Xing Juan v Estate of Hui Shui See supra).

42.  As the defendant now seeks to rely on various alleged representations/promises made by Mother to her, Mr Li SC (with Mr Li) submits, which is not contested by Mr Ma, counsel for the defendant, that

(a) In law, unless there is evidence proving that such representations/promises were made by Mother with the authority of the plaintiff, they cannot be binding on the plaintiff: Jong Lan Kiauw v Jong Yang Hwa and Another (DCMP 2540/2008, unrep, 17 November 2008, HHJ Mimmie Chan (as she then was); and

(b) The court is to approach such evidence with suspicion having regard to the fact that the person allegedly making the representations/promises, namely Mother, is now deceased and cannot therefore give her own version of the event: Thomas v Times Book Co Ltd [1966]1 WLR 911 at 916 and Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39 §73.

The Family Meetings

43.  As mentioned, it is now undisputed that the purchase of the Property was discussed in these Family Meetings that took place in late 2000 and early 2001.  In these meetings, all 11 adult family members, consisting of the Parents and all the siblings and their spouses (except the defendant who was unmarried).  The contextual background to the Family Meetings have been set out in paragraphs 13 and 14 above.

44.  As mentioned, these Family Meetings were spoken to in the witness statements of the plaintiff and the 3 Siblings, and spoken to in some detail, but surprisingly, they were not even mentioned in the defendant’s witness statement.  As we will see, regarding how the purchase of the Property came about, all that the defendant said in her witness statement was that it was suggested by the plaintiff.

45.  I note that in their witness statements, the plaintiff and the 3 Siblings recounted the discussions in the Family Meetings in slightly different ways.  However, the gist of all their accounts is consistent, and to the effect that

(a) The purchase of the Property was discussed in a number of Family Meetings, not one;

(b) Mother initiated the discussion by telling all the siblings that rather than having to surrender one of the Public Housing Units, she would like to try to apply for a HOS flat for herself and Father to live in.  She liked Yu Chui Court as she wanted to live close to Kang Fong and the plaintiff as it would be easier to take care of each other and Kang Fong, as a housewife, could keep her company.

(c) All the siblings were happy about the idea and were supportive.

(d) Later in another Family Meeting, Mother suggested that if the application were successful, then the siblings could jointly pay for the mortgage repayments.

(e) In another Family Meeting, Mother reiterated the suggestion of the siblings paying the mortgage repayment jointly.  Kai Hang told Mother that he could not make that commitment as he was repaying the mortgage of his own house, his wife was not working and his two children were still young.  Kang Fong said that she was not in a position to chip in as she was a housewife and not gainfully employed.  King Sheung also said that she was also repaying the mortgage of her own flat and her daughter was young as well.  The defendant did not give any response and remained silent, but everyone understood as her income was not high.  Mother was disappointed though she understood the siblings’ difficulties.

(f) In a later Family Meeting, the plaintiff, having assessed his own financial position and desirous of providing to the Parents and not wanting to disappoint Mother, told Mother in front of everyone that he could and would alone shoulder all the financial burden if Mother’s application were successful.

(g) The plaintiff and the 3 Siblings all say in very clear terms that Mother then said that since it was the plaintiff who alone would be paying for the Property, the Property would belong to him after the Parents passed away.  Everyone present, including the defendant, then showed agreement.

(h) Mother then proceeded to make the application by submitting the Green Form.

46.  The defendant disputes that Mother had said what is set out in (g) in the preceding paragraph.  I find that Mother had said the above, as testified by the plaintiff and the 3 Siblings, for the following reasons:-

(a) I have observed and listened attentively to all the witnesses when they give evidence.  I am favourably impressed by the plaintiff and the 3 Siblings. I find them honest and reliable witnesses and I accept their evidence.

(b) From all the evidence I hear from all the siblings, I form the clear impression that Mother was a fair, understanding and quite capable lady.  I bear in mind the context that in 2001, the plaintiff was only 33 years old, just married in 1997 with a very young daughter and just purchased in 1999 his own flat in Sunshine Grove financed by a mortgage.  Though he was a university graduate working as a land surveyor, it was still a very bold commitment for the plaintiff.  It was also unusual, in the sense that in a traditional Chinese family it is usually the older siblings rather than the youngest who are expected to take up such responsibility to take care of the parents.  In the circumstance, I am of the view that it was natural and probable for Mother to utter those words to state the position clearly to keep the harmony among the siblings and their spouses so that no one would form any ideas about its future inheritance and to keep the plaintiff and his wife encouraged to follow through with the commitment. 

(c) The conducts of the parties after the said Family Meetings borne out the fact that all understood the Property ultimately belong to the plaintiff after the Parents’ demise.  Such conducts include:-

(i) The plaintiff has been keeping a set of all the keys to the Property and it was him who gave everyone a set of the door keys to the Property to facilitate their visiting the Parents.  No one, including the defendant, has ever spoken any word of disagreement to this arrangement.

(ii) Mother immediately handed over the title deeds of the Property to the plaintiff upon the discharge of the mortgage.  The title deeds have since been kept by the plaintiff.  Again, no one, including the defendant, ever indicated any disagreement or objection.

(iii) In September 2017, Kang Fong asked the plaintiff’s permission, and not the defendant’s, when she wanted to move into the Property to live because of her marital problems.  After the plaintiff has given permission, the defendant complied without complaint.

47.  I now return to the Family Meetings.

48.  Not long after Mother had submitted the Green Form, she was notified that her application was successful and a date was given for her to select the flat.  Matters relating to the purchase were further discussed in another Family Meeting.  In the witness statements of the plaintiff, Kai Hang and King Sheung (and not Kang Fong’s), it was said that in that meeting:

(a) The family discussed the strategy for selecting flat and concluded that the first choice should be flats in the middle floors of Block J in Yu Chui Court;

(b) Kai Hang suggested the defendant to be added as a co-owner with Mother as there would be quite some procedures and sundry matters now and later to be attended to and Mother might not be well enough physically in the years to come to attend to them;

(c) The plaintiff then agreed to the suggestion and assured the defendant that he would be shouldering all the financial burden such that, as registered co-owner, the defendant need not be concerned.  At the same time, the plaintiff reminded the defendant that she would be a co-owner in name only; and

(d) The defendant then raised no query, nor expressed any dissatisfaction.

49.  Indeed, in cross-examination, both the plaintiff and Kai Hang reiterated with emphasis that the discussion was very easy and straight forward, and the defendant just agreed without any objection or disagreement.  The defendant’s case, however, is that she all along objected to the application of a HOS flat by Green Form (thereby surrendering the Public Housing Units if the application was successful and such a flat purchased) and/or to becoming a registered co-owner of the Property.  I will deal this when I discuss the defendant’s case regarding the alleged representations made to her.

50.  Save this matter relating to whether the defendant had objected and the alleged representations, I find for the plaintiff’s and the 3 Siblings’ accounts of the Family Meetings as set out above.

The defendant’s application for leave to file her supplemental witness statement after the plaintiff’s case has closed

51.  In this matter, I should begin by mentioning this.  In the afternoon of the 1^st day of trial, Mr Ma in cross-examination put a number of questions to the plaintiff on certain conversations and on their contents allegedly having taken place in 2001 or thereabouts but which were not mentioned in the defendant’s witness statement or any witnesses’ (or indeed, anywhere else).  Upon objection by Mr Li, this court disallowed them as the plaintiff, who has affirmed and was sitting in the witness box, was being ambushed with those new allegations of fact.  At the time, Mr Ma has not indicated that he would try to introduce those conversations into evidence.

52.  Then, at about 12:50pm on the second day of trial (a Friday) and after the plaintiff has closed his case and it was during a discussion on time management of the trial, Mr Ma indicated that he would like to ask to finish the day early after he has completed the defendant’s opening so as to prepare the defendant to give evidence before she was affirmed in.  Upon further enquiry by the court, he then divulged that he intended to introduce substantial top-up evidence during the defendant’s examination in chief and would seek leave on Monday.  Such lateness and yet playing it so close to the chest and only divulged them when pressed was clearly most unsatisfactory. Unsurprisingly, Mr Li SC objected.  This court then indicated that such leave should have been applied for at the earliest opportunity and with a signed supplemental witness statement placed before the court.  Mr Ma said he was prepared to do so at 3:30pm in the afternoon.

53.  In the afternoon, Mr Ma produced the signed supplemental witness statement of the defendant and made an oral application for leave to file and rely on it.

54.  This court read the supplemental witness statement de bene esse. It consisted of 7 pages and 23 paragraphs (her witness statement has 4 pages and 16 paragraphs), and:-

(a) In the 1^st to 7^th paragraphs, the defendant spoke to 7 conversations, covering the period from mid 2001 to January 2014, consisting of one conversation allegedly occurred during one of the Family Meetings between Mother and the plaintiff, 2 conversations allegedly between the plaintiff and the defendant, 3 other conversations between Mother and the plaintiff and one other between Mother, the plaintiff and the young daughter of the plaintiff (at the time, which is alleged to be September 2001, the daughter was about 3 years old).

(b) In relation to all these alleged conversations, the defendant quoted one or 2 sentences only rather than whole of the alleged conversation.

(c) None of these conversations contained a direct and/or express representation by the plaintiff that he would give the defendant a life interest in the Property.

(d) In the 7^th and 8^th paragraphs, the defendant spoke to a conversation between her and Kai Hang around the time the Green Form was signed.

(e) In the 18^th to 20^th paragraph, the defendant alleged that Mother only talked to the plaintiff and the defendant, and not to the other siblings, about “this matter concerning whether the defendant can live in the Property” (就這件能否住在居屋的事情)and explained why that was so. Notably, there was no time frame given as to when Mother so talked to the plaintiff.

(f) The other parts of the supplemental witness statements covered how the defendant took care of Father and Mother and the allegation that she had paid the utility bills of the Property and such.

55.  The only reason given by Mr Ma to explain the lateness of the application was that he was instructed late, in that the Legal Aid certificate covering the instruction to him to advise on merits and evidence was issued on 5 June 2020 and the Legal Aid Certificate covering the trial was issued on 18 June 2020.

56.  However, there was no explanation proffered as to why the defendant applied for Legal Aid so late – on 5 June 2020 as shown by the Memorandum of Notification that a Party Has Applied for Legal Aid; nor was any explanation given as to why this application has not been made at earliest opportunity after 18 June 2020, or why it has not been made before the trial has formally started.

57.  Mr Li SC opposed and submitted:-

(a) The defendant has since the beginning of this action and all along been legally represented, namely by Messrs Chin & Associates;

(b) Mr Ma in fact was the counsel drafting/settling the Defence and Counterclaim;

(c) Change of legal representation or lateness in instructing counsel, even if so, is not a good reason;

(d) Such indulgence should not be given unless there is good reason, and there is none here;

(e) The supplemental witness statement basically sought to “rewrite” the defence case, evidentially speaking; and if leave were given, the trial need to be adjourned, the plaintiff need to undertake further trial preparation work and to take such steps as might be advised, the plaintiff’s case need to be re-opened and the plaintiff’s witnesses recalled and such – all to the great prejudice of the plaintiff; and

(f) The application was far too late in the day.

58.  I entirely agreed with the above submissions of Mr Li SC and dismissed the application.

The defendant’s case on representations, the evidence and discussion

59.  Before I continue to deal with the defendant’s case on representations, I need to set out briefly her case on detriment.  Her allegation is two-fold:-

(a) Firstly, that in reliance of the representations, she signed the Green Form, as a register member living in the Public Housing Units, thereby “relinquishing her Public Rental Housing tenancy”[12] which she claimed she would have been entitled to be granted by the Housing Authority after Mother, as the registered tenant, passed away in 2014 (“the Alleged Entitlement”);

(b) Secondly, by agreeing to become a registered co-owner of the Property, “she is now debarred from applying for any Public Rental Housing tenancy at all”[13].

60.  Both limbs of this allegation are hotly disputed by Mr Li.

61.  The defendant’s evidence on the alleged representations are set out in her witness statement.  I will quote the relevant part of her witness statement in its entirety:-

“4. 在大約2000年尾，本人的弟弟鄧仕堅，即本案的原告人(以下稱”原告人”，提意（sic)我們以公共屋邨租戶的身份購置居者有其屋。但購置居者有其屋必須放棄當時的公共屋邨單位。本人的教育水平不高，賺取收入的能力亦不高，對於要放棄當時的公共屋邨單位感到這對自己並沒有保障，所以一直表示反對。

5. 本人的母親於是向本人表示由於本人孝順，一直以來也盡心照顧她與父親，加上一直單身並無依靠，如果本人同意放棄當時的公共屋邨單位並一同申請購置居者有其屋，將來她與父親都離世後，所購置的居者有其屋單位將歸本人所有。本人依然記得當時母親大約是這樣說的：「你沒結婚自己一個，呢層樓係你架啦。」對於這個承諾，除了兄弟姐妹外本人的表姐羅陳歡亦知情的。

6. 而當本人表示對將來可能沒有地方容身時，原告人亦向本人承諾他會看顧本人。他當時大既(sic)是這樣說的：「得啦，我會睇住你架啦。」聽到他這樣說我意會到他的意思是我擔心的住屋問題他會為我解決，即是如母親所說一樣本人將會擁有那將購置的物業的權益或至少能居住到終老。

7. 有了母親及原告人的承諾，本人最終答應放棄當時的公共屋邨單位並於2001年6月，以本人自己及母親的名義向房屋署提出居者有其屋計劃的申請。期(sic)後於2001年7月購置了沙田牛皮沙街6號愉翠苑J座21樓4室這物業（”該物業”)。”

62.  I note first that in view of my earlier findings in respect of the Family Meetings, I do not accept the defendant’s evidence that it was the plaintiff who suggested purchasing a HOS flat.  Rather and as I have found, the proposal came from Mother who raised it on a number of occasions in the Family Meetings.

63.  The defendant said in paragraph 4 of her witness statement that she had all along expressed objection.  Despite that being her allegation and the plaintiff’s and the 3 Siblings’ having given detail accounts in their witness statements of the Family Meetings stating clearly that the defendant had not raised any query or objection, it is very surprising that all the plaintiff’s witnesses have not been confronted in cross-examination with details as to when and how such objection were all along expressed by the defendant.

64.  Rather, the defendant adds[14] during cross-examination that around the time of the Family Meetings, she had personally attended the office of the Housing Authority and was told by a staff there of the Alleged Entitlement and the fact that she would be losing eligibility to apply for a public housing if she became an owner of a HOS flat.  Her explanation as to why this enquiry is not recorded in her witness statement was that she did not know it was important.  However, later on in the cross-examination and when pressed, the defendant admits very clearly that she had not mentioned these 2 pieces of information she allegedly learned from the Housing Authority in any of the Family Meetings.  If, as she claims, she had been expressing objection all along, then there is no reason why, having already learned these 2 pieces of information, she did not share them with the other members of the family so that they could at least understand her concern.  I find that highly improbable and surprising.  As I will explain later, I find the defendant not an honest or reliable witness, I do not accept that she had made the alleged enquiry with Housing Authority at the time.  The defendant might have made such enquiry after Kai Hang’s conversation with her in March 2014 (see paragraph 30 above), but I do not believe she had in 2001.  I also do not accept that she had all along expressed objection, as she claims.  I much prefer the evidence of the plaintiff and the 3 Siblings and find that the defendant had raised no query or objection in the Family Meetings.

65.  In relation to the alleged representation by Mother, the defendant’s evidence is that Mother promised the Property to her because she was 「孝順」and has been taking care of the Parents.  The plaintiff and the 3 Siblings, without being very confrontational, yet clearly take exception to such as factually true and quite some evidence has been elicited on the subject.  I do not find it necessary to and make no finding thereon.

66.  However, the defendant’s case is that the promise was made by Mother because the defendant has all along been single with no one to lean on (一直單身並無依靠) and that it was actually said by Mother to the effect that “you have not married and are all alone” (你沒結婚自己一個).

67.  I consider the defendant’s such allegation against the factual backgrounds, which were these:-

(a) The defendant was only 37 years old in 2001 (she was born in 1964); and

(b) In a line of cross-examination pursued by Mr Li SC, she admits that

(i) prior to 2001 there were a number of men pursuing her and she had been dating;

(ii) she has been dating from 2001 to 2014;

(iii) there was an occasion in 2012 or 2013 when she asked Mother whether her boy-friend could move in to live with them in the Property and Mother refused;

(iv) prior to 2001 she has never told Mother or the siblings that she intended not to marry; and

(v) from 2001 to 2014 she has never told Mother that she would want to remain unmarried.

68.  With these being the factual backgrounds, it would be most awkward and highly improbable that Mother would say to the 37 year-old and actively-dating defendant something like “you have not married and are all alone” and then promised that after Mother and Father had passed away, the Property would belong to the defendant.  Moreover, in the circumstance, there simply was no reason in 2001 for Mother to think or assume that the defendant would not be getting married in the coming years, not to mention in the Mother’s lifetime.

69.  When asked in cross-examination whether Mother indeed said those words in paragraph 5 of her witness statement that: “you have not married and are all alone” when the defendant was only 37 years old, the defendant then changes her stance and explains that the conversation with Mother set out in paragraph 5 of her witness statement in fact took place after Father’s death.  Not only is that an abrupt change in her evidence over such an important allegation of her case, such new timing cannot be reconciled with her account of that conversation, which is that “如果本人同意放棄當時的公共屋邨單位並一同申請購置居者有其屋，將來她與父親都離世後…” (my emphasis).

70.  Next, I consider the defendant’s allegation in the last sentence of paragraph 5 of her witness statement that all the siblings knew about such promise by Mother, an allegation which is evidently disputed by the plaintiff and the 3 Siblings.  Yet in cross-examination of the plaintiff and the 3 Siblings, instead of confronting them as to the facts showing that they knew (which Mr Ma has not), Mr Ma pursues a line of question with each of them that it is possible that they do not know about the conversation(s) that took place between the defendant and Mother, which is contrary to the said claim of knowledge on the part of the siblings.

71.  It will be recalled that I find above that Mother said in front of everyone in one of the Family Meetings that since it was the plaintiff who alone would be paying for the Property, the Property would belong to him after the Parents passed away.  That being the case, I do not believe that Mother acted duplicitously by, at the same time, promising the defendant (openly or privately) that the Property would be the defendant’s after the Parents passed away.  My such view is reinforced by the evidence of King Sheung, which I accept without hesitation, given spontaneously in answer to the question put to her in cross-examination that King Sheung may not know fully what Mother and the defendant talked about in relation to the Property: that such important things would be talked about openly in Saturday family gatherings.

72.  In all, I do not accept the defendant’s evidence that Mother made the promise as she alleged in paragraph 5 of her witness statement.

73.  In relation to what the defendant said in paragraph 6 of her witness statement about what the plaintiff has said, the plaintiff in cross-examination frankly accepts that he has spoken those words to the defendant.  His evidence, however, is that when Kai Hang made the suggestion in one of the Family Meetings that the defendant be named as a co-owner with Mother, the defendant’s facial expression showed difficulty.  The plaintiff understood that as an expression of the defendant’s worry that as a co-owner, she would be the one legally shouldering the financial burden and risks.  The plaintiff thereupon assured the defendant that he would shoulder them personally, and that amidst giving the assurance, those words or words to similar effect were spoken to the defendant.  Similar evidence was also given by Kai Hang in cross-examination. Both their evidence, it would be recalled, is that the defendant then raised no query or objection.

74.  The defendant’s case and evidence, given in paragraph 6 of her witness statement, is that those words were spoken in the context thus: “而當本人表示對將來可能沒有地方容身時，原告人亦向本人承諾他會看顧本人。”, saying「得啦，我會睇住你架啦」.  The first factual dispute therefore concerns the context those words were spoken.  The second would be if I hold in favour of the defendant’s version, whether such words amounted to the representation that a life interest of the Property would be granted to the defendant, as she now claims.

75.  In relation to this factual dispute, I bear firmly in mind that the Property was about to be purchased and it is common ground and common understanding that the plaintiff would be permitting the defendant to live in the Property until the Parents passed away, which from the perspective in 2001, would very likely be many years later, and also the defendant’s dating position, alluded to above and such as it was in 2001, that there was every hopeful prospect that she might be getting married and afterwards be living apart from the Parents.  Against such contextual background and state of affairs, how such a conversation came about regarding such distant contingency in such further future, and what were the actual words said to be spoken were evidently very material.

76.  In that regard, save this bare assertion in the witness statement, no further evidence is given by the defendant as to any details, such as the occasion, the words she has spoken and such.  Again, the plaintiff is not cross-examined thereon.  Rather and quite to the contrary, as I have noted, the defendant admits in cross-examination that she had not mentioned in any of the Family Meetings about the results of the enquiry she allegedly made with the Housing Authority concerning her possible loss of the Alleged Entitlement and eligibility to apply for public housing.

77.  In the premises, I do not accept the defendant’s evidence that at the time she had expressed to the plaintiff that she might not have a place to live in the future as she said.  I hold that the plaintiff’s words were not spoken in that context and I accept instead the plaintiff’s version that those words were spoken to convey the assurance he was giving to the defendant that he would shoulder the financial burden and risks regarding the purchase of the Property.  I therefore hold that the plaintiff’s such words did not amount to a representation to the defendant that she would be given a life interest in the Property.

78.  In arriving at the above findings of fact, I take the view that the following matters are also very weighty:-

(a) The defendant answers in cross-examination that she has never mentioned her alleged entitlement to a life interest in the Property to the siblings, even in family gatherings that took place after Father had passed away, which was a period she felt the family relationship had become closer.

(b) On the occasion in March 2014 set out in paragraph 30 above, the defendant has not mentioned, not to say asserted, to Kai Hang and the plaintiff that she was represented/promised to have a life interest in the Property.

(c) I find it very highly improbable that, had the defendant been represented/promised to have a life interest in the Property and in reliance of which she suffered the alleged detriment as she claims, that she did not mention it in any of the occasions mentioned in (a) and (b) above.

(d) Inconsistent with her claim for a life interest, in the letter by her former solicitors dated 7 July 2018 (when the Statement of Claim herein was already filed on 29 June 2018) to Kang Fong demanding her to quit the Property, it was stated therein, without giving any details, that “As you well know, our client at all material times was and is the 100% legal and beneficial owner of the [Property]”[15] (emphasis added).  Yet, shortly afterwards in her Defence and Counterclaim filed on 24 October 2018, the defendant totally changed her claim to that of an entitlement to a life interest in the Property based on proprietary estoppel.  The evidence now before this court is that the defendant only first claimed to be entitled to a life interest in the Property in the Defence and Counterclaim.  There is no explanation given at trial concerning this complete and abrupt change in her claim.

(e) In my view, her claim for a life interest is clearly an after-thought conjured up in the Defence and Counterclaim.

(f) I simply find it most highly improbable that in 2001, the plaintiff, as the youngest of the siblings and the only one paying for the purchase of the Property by stretching his own finance, when he was just 33 years old, just married and had a very young daughter and had just purchased by mortgage his own Sandwich Class Housing Scheme flat, would, apart from letting the Parents live in the Property for life rent-free, in addition also promise to take care of his 37 year-old sister for life by promising her a life interest in the Property.   I find it equally highly improbable that Mother would in 2001 ask this of the Plaintiff or promise this to the defendant behind the plaintiff’s (and the 3 Sibling’s) back.

79.  I would also mention that even if I found in favour of the defendant’s allegation that Mother had made the alleged promise or representation, I would have accepted Mr Li SC’s submission that there is no evidence showing that Mother made those with the authority of the plaintiff, with the result that her such alleged promise or representation would not have bound the plaintiff in any event (applying Jong Lan Kiauw v Jong Yang Hwa and Another (DCMP 2540/2008, unrep, HHJ Mimmie Chan (as she then was) 17 November 2008).

The defendant not an honest, credible or reliable witness

80.  Along my discussions above I have already mentioned a number of matters leading me to conclude that the defendant is not an honest, credible or reliable witness.  I would also add that her demeanour in giving evidence, in my view, is also very indicative.  In giving evidence, she is very often than not hesitant, and often pauses for a long time before answering, and her answers are often evasive.  She seems to me very thoughtful - in trying to figure out what implication that question and answer might have to her case before she answers, rather than attempting to tell the truth as she remembers it.  She says she has hearing problem, but my observation is that she can hear just as well when asked about matters less material.  In all, I am very unfavourably impressed by her as a witness.

Other issues

81.  Having so found and concluded, strictly speaking it is no longer necessary for me to deal with the other matters.  However, for completeness, I will briefly give my views or finding.

“Promises” made in 2012 to 2014 by the plaintiff to Mother “to take care of” the defendant

82.   The defendant mentions a number of conversations between the plaintiff and Mother, which the defendant overheard, to the effect that the plaintiff promised Mother to “look after her” (睇住佢 ).  They are not mentioned in her witness statements.  I understand that the existence of those conversations is not seriously disputed by the plaintiff, but the timing is.

83.  In cross-examination, the defendant says that those conversations took place around the time Mother was hospitalized and she also specially agrees with Mr Li SC that these conversations took place between 2012 to 2014, and I so find.  It seems to me quite clear that Mother, in her last years and out of great motherly care for the defendant who then was still unmarried, urged and even pleaded with the plaintiff to look after the defendant, which the plaintiff so responded to Mother.

84.  Mr Ma contends that these promises should be taken together with other representations made in 2001 such that this case is akin to the factual scenario in Gillett v Holt [2001] Ch 210 where repeated promises and assurances were made over many years.  I do not accept such contention as I do not find any such representations/promises made in 2001 or along the years.  In my view, the 2012-2014 promises were distinct matters made many years after and not connected with the purchase of the Property. 

Reliance

85.  Having heard all the evidence, I would have been prepared to find that the defendant signed the Green Form and then on 20 June 2001 signed all the forms and declarations relating to the purchase of the Property and agreed to become a registered co-owner

(a) out of her filial love for the Parents so that they (and especially Mother) could have a better living environment and could live near the plaintiff and Kang Fong, as Mother would very much wish to; and

(b) because the defendant did not have the financial means to live independently apart from the Parents and would have to live with them.

Detriment

86.  I have briefly introduced the defendant’s case on the detriment in paragraph 59 above.  As mentioned, the defendant’s case on detriment is hotly disputed by the plaintiff.

87.  The defendant produced a letter by the Housing Authority dated 20 May 2020 in reply to a letter from the Director of Legal Aid dated 19 December 2019 in which enquiries were made as to a number of matters[16] relating to the defendant’s case on detriment.  In the said reply letter, Housing Authority stated in gist

(a) That in the Green Form, the applicant and all family member who were aged 18 or above and aged under 18 but earning an income/owning assets were required to sign and declare that after successfully purchasing a flat under Phase 23A of the HOS, they should upon taking over the new purchased flat, submit a Notice to Quit to the Housing Department to terminate the tenancy agreement of the public rental housing unit within 60 days and return the unit in vacant possession;

(b) A tenant of public rental housing did not have an absolute right to delete any family member from the tenancy agreement even though in principle he/she was the head of the household; and

(c) At the time, if the defendant did not agree to giving up the Public Housing Units upon Mother’s purchase of the Property, the defendant might apply separately for a public rental housing and upon acceptance of a public rental housing offer, she should delete her name from the existing public housing tenancy.

88.  Thus, had the defendant really objected to the purchase of the Property and had really enquired with the Housing Authority in 2001 as alleged (and I have found against both allegations), she should and would have realized that she had the option of having her name as a member of the Public Housing Units deleted and applying separately for a public rental housing.

89.  In view of my findings above, I do not find it necessary to make any findings on the defendant’s case on detriment. 

The defendant also paid for all the utilities since 2001?

90.  In the defendant’s witness statement, the defendant claimed that she also paid for all the utilities since 2001.  In her Defence and Counterclaim, however, she pleaded that she paid for the management fees and government rent and rates, without any mention of the utilities[17]. The defendant produces no documentary proof to substantiate her allegation.

91.  In this regard, I accept both Kai Hang’s evidence and the plaintiff’s that they have respectively been paying monthly household expenses and pocket money to Parents up to 2003 and then to Mother until 2014 in the amounts of HK$5,000 to HK$8,000 a month each, and they had been told by Mother that she paid cash to the defendant for her to pay the utilities.  Moreover, I do not believe Mother, having received those supports from Kai Hang and the plaintiff, would put the entire financial burden of paying for all the household expenses – management fees, government rent and rates and utilities - alone on the defendant who, as is common ground, has not been earning much.  In the result I find against the defendant’s such allegation.

Minimum equity

92.  Even if I found that proprietary estoppel as claimed were established (which I do not), but in view of the fact that the defendant has enjoyed rent-free accommodation in the Property, which has been a better residential unit than a public rental housing unit, for almost 20 years since 2001, I would have

(a) accepted Mr Li SC’s submission that the minimum equity to be justly awarded has already been spent;

(b) no hesitation in rejecting the defendant’s claim for a life interest in the Property as being far exceeding the minimum equity to be justly awarded; and

(c) awarded the defendant a small sum, say HK$50,000, to enable her to pay the rental deposit for renting a small unit which is comparable to a public rental housing unit and to pay for the moving expenses.

Mesne profits

93.  The plaintiff claims mesne profits for the occupation of the Property by the defendant since 8 April 2018, when the licence to occupy the Property was terminated, at the rateable value of the Property at HK$176,280 a year, and therefore HK$14,690 a month.  The said date mesne profits should start to be awarded and the said rate are not disputed at trial by the defendant.

Disposal

94.  In the premises, I give judgment for the plaintiff’s claim and dismiss the counterclaim.

95.  I will make an order:-

(1) For a declaration that the defendant has been holding the entire legal and beneficial interest in the Property, in terms of Prayer 1 in the Statement of Claim;

(2) That the defendant shall execute all necessary documents to assign and vest all title and interest in the Property to the plaintiff, in terms of Prayer 2 in the Statement of Claim, save that should the defendant defaults, a senior partner in Rene Hout & Co (which the plaintiff will name in the engrossed Judgment), the solicitors acting for the plaintiff, shall be appointed to execute the said documents instead of the Registrar of the District Court;

(3) For the delivery of the vacant possession of the Property, in terms of Prayer 4 in the Statement of Claim;

(4) Granting the injunction restraining the defendant from further occupying the Property in terms of Prayer 5 in the Statement of Claim; and

(5) The defendant do pay the plaintiff mesne profits at HK$14,690 a month from 9 April 2018 until vacant possession of the Property is delivered; with interest on the total sum of such mesne profits accrued from 9 April 2018 until the date of this Judgment at half of the best lending rate of 5%, and interest from the date of this Judgment on mesne profits accrued but unpaid at judgment rate until full payment.

96.  Mr Li SC in his final submissions asks this court to make a costs order nisi that the defendant do pay the plaintiff’s costs on indemnity basis.  His main contention, among others, is that the defendant’s counterclaim was made on a wholly false basis, as so to fall within Grant David Vincent Williams v Jefferies Hong Kong Limited (HCA 320/2011, unrep, 12 July 2013, DHCJ Seagroatt (as he then was)), where it was held:

“In the Bank of Baroda v Panessar [1987] Ch 335 – an authority cited by the Deputy High Court Judge in Cooper v P & O Stena Line Ltd [1999] The Times 8 February 1999 – was established an approach that if a person conducted himself on a wholly false basis, the true state of affairs being within that person’s knowledge, or at least capable of ascertainment if properly investigated, and the proceedings were thereby significantly prolonged and the costs commensurately increased the court was entitled to order that the person so adversely affected by that conduct should receive its costs on an indemnity basis.”

97.  Presently, I am of the provisional view that the defendant’s counterclaim and conducts fall within the approach set out in the above quoted passage and I consider it appropriate even at this nisi stage to order the costs in relation to the counterclaim to be paid by the defendant on an indemnity basis.  Thus, I will make the costs order nisi:-

(a) that the plaintiff’s costs of his claim, up to the filing of the Defence and Counterclaim on 24 October 2018, be paid by the defendant on party and party basis;

(b) that all the plaintiff’s costs in this action incurred after 24 October 2018, including all costs reserved, shall be treated as the costs of defending the defendant’s counterclaim and be paid by the defendant on indemnity basis; and

(c) there be certificate for one counsel; and

(d) the defendant’s own costs be taxed according to the Legal Aid Regulations.

98.  As the Director of Legal Aid might need time to consider, the above costs order nisi shall become absolute unless within the next 28 days any party issues a summons to vary.

99.  Lastly, I thank all counsel for their assistance.