MAK NGUN TAI, the Administrator Pendente Lite of the Estate of LO SIU FUNG, Deceased v. KOON JAMIS AND OTHERS

HCA 1359/2019

[2026] HKCFI 2146

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1359 OF 2019

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DECISION

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1.  This application concerns the estate of the Deceased, Madam Lo Siu Fung, who passed away on 18 September 2014, aged 85 at the time. The Plaintiff (whom I shall refer to as ‘P’ for ease of reference) is the Deceased’s eldest daughter, and 1^st Defendant (whom I shall hereafter refer to as ‘D1’ for ease of reference) was her eldest grandson.

2.  There is before this court a Summons filed on 4 September 2025 by the predecessor of the present Administratix pendente lite (“the APL”) for an order of preservation and asset-freezing injunction up to the sum of HK$37,538,371.2 (“the Sums”) and ancillary disclosure order against D1. As set out in P’s skeleton, the allegation against D1 is that D1 took HK$37 million of monies from her during the last three years of her life.

3.  The present action was commenced by the then APL, Mr Ma Wah Yan, against D1, in respect of the transfers of HK$38,048,371.20 from the Deceased’s joint account (“the Joint Account”) held with D1 into D1’s accounts (in particular, the ‘888’ and ‘001’ accounts), save two transfers, and some withdrawals in cash (“the Transfers”). 

Probate Action

4.  Before turning to this application, it is material to note here that there is also a related probate action (HCAP 37 of 2015) (“the Probate Action”) in which P and her sisters challenged the validity of the Deceased’s last will, which led to a judgment dated 28 January 2025 (“the Judgment”).

5.  The Probate Action comprised three of the four surviving daughters of the Deceased seeking to impugn the will made by their mother in which she named Mr Fung Ming Ip, a close companion of the remaining daughter, as the sole beneficiary.  D1 is the son of that remaining daughter.  D1 was not a party to the Probate Action, and did not give evidence explaining how he came into possession of the Deceased’s assets including most of her deposits amounting to the Sums.  It appears that the then APL in 2017 approached D1 for his opinion, who preferred not to stand between the dispute amongst his aunts and mother and thus did not give evidence.

6.  In the Judgment, Mr Justice Wilson Chan pronounced the will invalid for being procured by undue influence.  It was held in the Judgment that the executor had not discharged the burden of proving testamentary capacity.  It is important to reproduce paragraphs 72 to 75 of the Judgment, as was done in P’s skeleton:

“72. I now turn to Issues II and III. During the relevant period, practically all deposits, mortgage loan and proceeds of sale of landed properties (which could be disposed of by sale without alerting the 1^st or 3^rd plaintiffs) went to benefit the family members of the 2^nd defendant exclusively. No presumption of advancement applied in favour of Jamis and Ella. To the contrary, the presumption of resulting trust applied in favour of the Deceased against Jamis and Ella for all the voluntary transfers, see: Snell’s Equity, 34^th ed, §§25-10 and 25-19. In this connection, the court is entitled to draw adverse inference from the absence of Jamis and Ella giving evidence as to why the Deceased’s assets went to them or were applied for their benefit: see Li Sau Keung v Maxcredit Engineering Ltd & Anor [2004] 1 HKC 434 at §§28 & 29. The court is entitled to infer that there is a lack of innocent explanation which the defendants can provide for the transfer or use of the Deceased’s assets. In the circumstances, the 2^nd defendant clearlyhad the motive to prevent the plaintiffs from pursuing against her family members for the recovery of the Deceased’s assets, by procuring the Deceased to make the Will naming the 1^st defendant as the sole beneficiary.

73. On the evidence, the Deceased was heavily dependent upon the care provided by the 1^st defendant in view of her OCD, cognitive impairment and being prone to outburst of anxiety. She was vulnerable to any demand made by those caring for her.

74. In the end, the Will did not have any real utility of benefiting the beneficiary therein and yet the 1^st defendant was willing to arrange it to be made, and his subsequent conduct which further deprived him of any remaining benefit under the Will (save and except the Phoenix Court Property, which was heavily mortgaged when the Deceased died), served to point to one direction and one direction only – to prevent the plaintiffs from pursuing against those benefiting from the inter vivos transactions for recovery of the Deceased’s assets and compensation.

75.  The 2^nd defendant was in as much the position of exercising control over the Deceased as the 1^st defendant. She had the strongest motive to do whatever it took to cause the Deceased to submit to her demands and she also had the assistance of her loyal companion, the 1^st defendant.”

7.  It is also relevant to note at this juncture that the Deceased was described in the Judgment to be extremely frugal, despite her wealth (see paragraph 11).

8.  Following the Judgment, an application was made for an order in the Probate Action appointing P as the succeeding APL of the estate in substitution of Mr Ma pending the conclusion of the Probate Action, and such APL appointment in favour of P was made on 14 October 2025.

Background facts to this application and the parties’ respective cases

9.  Returning to this application, the background facts and pleaded cases are set out in the parties’ respective skeletons and the affirmations in support or opposition of the Summons, and were explained in their respective oral submissions. I thank the parties for all of these, from which I have either extracted or, where more appropriate, summarized the relevant underlying facts, and I hope I am forgiven for reproducing rather than attempting to rephrase such facts and submissions.

10.  As summarized in D1’s skeleton, P’s case as pleaded in its Statement of Claim (“the SoC”) is as follows:

 (i)     that the Transfers were procured by D1’s undue influence over the Deceased and ought to be set aside;

 (ii)     alternatively, that the Deceased had no mental capacity to make the Transfers which thus ought to be set aside;

 (iii)     further or alternatively, that D1 acted fraudulently with knowledge that the Deceased lacked mental capacity or was prone to undue influence, and P is thus entitled to trace and recover the funds that were the subject of the Transfers from D1, who held such funds and its traceable proceeds on constructive trust for the Deceased’s estate and is liable to account for the same; and

 (iv)     further or alternatively, that D1 was a fiduciary of all monies held in the Joint Account and owes a duty to account for all withdrawals, and thus the Transfers, authorized by D1 from the Joint Account.

11.  P states that D1 essentially admits that he received the Sums in the way described by P in the SoC, in that D1 says in defence that he was the favourite grandson of the Deceased, and that the Joint Account was opened with the knowledge and understanding of the Deceased and D1 that both of them would be entitled to use the money as they liked during the Deceased’s lifetime, and upon the Deceased’s death, D1 would have sole entitlement to the funds by survivorship.  D1 also says that the Deceased envisaged living with D1 for the rest of her life, and that such arrangement in respect of funds was done in accordance with that understanding.

12.  P’s position is that, consistent with the observation in the Judgment that the Deceased was extremely frugal, it was out of her character to give away so much of her monies during her lifetime and to the exclusion of all others including the daughters and her grandchildren, and that it was also out of the ordinary to arrange her monies to be held in such fashion as described by D1.

13.  P further states that D1’s explanation in the affirmation of Mr Koon Jamis opposing the present Summons then changed from the above, in that D1 said instead that the Deceased gifted her money to him, and that before the Deceased’s passing, he did not use any monies from the Joint Account, that the Deceased was herself in possession of an ATM bank card to the Joint Account, and that none of the transfers in or out of the Joint Account were under D1’s directions, and that whilst he was instructed by her to make withdrawals, those were not initiated by D1 but rather were at the instructions of the Deceased.  D1 also stated that during the material times of the transfers, he was frequently out of Hong Kong as he had business dealings in Shenzhen, and thus could not have been in Hong Kong in person to effect many of the transfers in question relating to the Sums.

14.  D1 further stated in his affirmation that the Deceased told him after the opening of the Joint Account that she wished to open another bank account, and that she might need to withdraw money by ATM and over the phone above the daily limit in the Joint Account when she visited mahjong parlours.  The Deceased purportedly further told D1 that she wanted to have an account that could issue cheques if necessary, and asked D1 to open an integrated account in his name for her use, as it was still her wish to leave him the monies upon her passing, and it is this request that led to D1 setting up the ‘888’ and ‘001’ accounts at the request of the Deceased.  D1 stated that the ATM bank card for the ‘888’ and ‘001’ accounts were with the Deceased during her lifetime, and that like the Joint Account, D1 did not use any of the money from these other accounts during the Deceased’s lifetime.  He explained later on in the affirmation that at the time of the Deceased’s death, there was about HK$8 million left in the ‘888’ and ‘001’ accounts and since then, he has made use of that money for various purposes which he lists in the affirmation, although with rough recollection and without any details due to a lack of records.

15.  P states that this affirmation evidence sits uncomfortably with the contents of D1’s Defence, in the latter of which there was no suggestion that the Deceased somehow regained use of the monies that were transferred to D1.  P further states that D1’s evidence lacks common sense apart from lacking consistency, for example because the Deceased was almost illiterate and did not know how to operate an ATM machine, and that this evidence was designed to protect D1 and obstruct the efforts of the APL in tracing the Deceased’s missing assets. 

16.  It is also stated in D1’s affirmation that following a quarrel between the Deceased and (some of) her daughters, the Deceased further instructed D1 to convert the status of a jointly owned property between him and the Deceased (known as ‘Belair Villa’) from a tenancy in common to a joint tenancy, and stated to D1 that he did not have to pay her back for his half share in Belair Villa.  D1 arranged for solicitors to prepare the documentation to effect such change in of around August 2012.  P denies that there was any souring of the relationship of the Deceased with these daughters.

17.  D1 states that in all of this, he never tried to force or unduly influence the Deceased, that he loved her and was happy to live with her and take care of her in her final days, and accepted her decision to open the relevant accounts with D1 and gift the monies to him out of affection and love.

18.  It is against these circumstances that P invites, as discussed below, this Court to draw adverse inferences against D1 in that the Deceased did not part with the Sums as alleged by D1 and that the Sums did not leave the possession and control of D1 as he portrayed.

Prior Discovery Order

19.  Along with this Summons, P filed another summons against Hang Seng Bank Limited, which D1 did not oppose, for non-party disclosure of the statements of the abovementioned ‘888’ and ‘001’ accounts and particulars of transfers of money to and from these accounts.  P obtained a discovery order (“the Discovery Order”) on 12 September 2025, requiring Hang Seng Bank Limited to provide the requested particulars within 21 days.

Applicable Legal Principles

20.  The starting point is that P seeks a ‘composite Mareva injunction and asset preservation order’, and this was explained in oral argument before me by reference to the authority cited in the next paragraph.  Notwithstanding this, I have addressed the principles for each type of relief separately (including addressing the differences), albeit starting with P’s analysis of the difference between the two types of relief.

21.  P relies upon the authority of Falcon Private Bank Ltd v Borry Bernard Edouard Charles Limited and Another(unreported, HCA 1934/2011, 9.7.2012) to identify the difference between a proprietary injunction and a Mareva injunction and assert that despite the difference in their applicable tests, these two injunctions can be applied for at the same time:

“78. … is also wrong to argue that a Mareva injunction was not appropriate where the primary case against the 1^st defendant is solely proprietary in nature.  There are no constraints on the nature of a claimant’s cause of action or on the types of monetary relief which he may seek.  A Mareva injunction is designed to protect the claimant against the dissipation of assets against which he might otherwise execute judgment whether immediately or in the future: see Gee’s Commercial Injunctions, 5^th edition at paragraphs 3.029 and 5.009.  So long as the claimant has a claim against the defendant and that the defendant has assets which may be used to satisfy judgment, a claimant may apply for a Mareva injunction to restrain the defendant from dissipating his assets. A claimant’s right to a proprietary injunction is different.  It is issued to preserve assets which a claimant has a proprietary claim so that they can be turned over to the claimant if he is successful in the action   A proprietary injunction is easier to obtain and not subject to the usual liberties inserted into Mareva relief and there is no need to prove risk of dissipation.  It is a better relief than Mareva injunction, provided that the property has not been dissipated.  Where there is risk that the property has been dissipated, then it is prudent to apply for a Mareva injunction in aid or as a “top-up” protection in support of the proprietary injunction.”

22.  P submits that in interlocutory applications, the Court often has to perform an assessment of the credibility of an account or defence appropriate to the nature of the application.  Importantly, P submits that the Court is not obliged to accept or give weight to an account or defence which is merely based on bald assertions and is inherently unbelievable, and says this is what D1’s story essentially amounts to.  P also says that the Court is not obliged to take D1’s words at face value, and that this is particularly so given the curious reply by D1 declining to give his view back in 2017 when he was questioned by the APL.  If the Court finds that D1’s story is not acceptable, then P says that the next logical step is that the Sums or their traceable form of assets are still there, stashed somewhere.

23.  P’s skeleton further sets out two principles it says are relevant to its application: first, that as there is presumption of advancement between grandparent and grandchild (Lee Tso Fong v Kwok Wai Sun [2008] 4 HKLRD 270, at 281) – which is a point also made in the Judgment at paragraph 72, extracted above – such that the burden is on the D1 to satisfy that the assets and monies were gifts to him by the Deceased.

24.  Second, that in a situation like this where there is a joint account in which the monies are sourced from just one party, the other account holder prima facie holds the funds on resulting trust for the first party (Poon Loi Tak the Administrator of the late Poon Nuen Deceased v Poon Loi Cheung Desmond [2024] 4 HKLRD 611, at 620-621).  I have addressed D1’s answer to this below, but essentially D1 considers this presumption of little relevance.Asset Preservation Order

25.  Focusing now on the asset preservation order, it is not disputed that the legal basis for it is O.29, r.2 of the Rules of the High Court (Cap. 4A), and the principles underlying the grant of such an order are essentially settled (Inna Bazhenova v OOO Securities (HK) Group Limited [2025] HKCFI 2745, at §7; Gentle Soar Ltd v CMBC Capital Finance Ltd [2021] HKCFI 3450, at §§36-37; and also Hong Kong Civil Procedure 2026 (“HKCP 2026”), Vol. 1, §29/8/7):

(i) That it has to be shown that (a) there is property which bona fide is the subject matter of the cause or matter, or as to which any question may arise; and (b) something ought to be done for the security of that property.  Part of this inquiry will involve showing that damages may not be an adequate remedy, and the Court will refuse to grant such order if damages will be adequate (Essilor Manufacturing (Thailand) Co., Ltd v G. Doulatram and Sons (HK) Ltd [2021] HKCFI 30).

(ii) An enquiry into the relative merits of rival claims is not necessary.  In respect of merits of the claim, the party seeking the asset preservation order only needs to show that there is a serious issue to be tried on the normal American Cyanamid principles.

(iii) Unlike an application for Mareva injunction, the application does not need to show a risk of dissipation of assets and even if there is delay, a preservation order may be granted.

26.  D1 submits that the Court has laid emphasis on the preciseness of the terms of injunctions to be sought (HKCP 2026, §29/1/33), and held that the “actual property sought to be preserved must still be in existence” (Sum Mun Kid Frederick v Auto Italia Ltd (unrep., HCA 60/2017, 16 May 2018)).  P distinguishes this authority advanced by D1 with the principle that equity allows tracing into mixed funds: see Connaught West Limited v Global Fiduciary Solutions Limited and Others at §30 (unreported, HCA 525 of 2017, 7^th January 2019).

27.  The asset preservation order being sought requires D1 to preserve the Sums he received or “assets acquired using the Sums, which are still in the possession of and/or under the control of the 1^st Defendant until the trial or further order of the court”.

28.  P states that this is an overwhelming case for a composite Mareva injunction and asset preservation order, despite D1’s denial that he is in possession of the Deceased’s monies.

29.  By contrast, D1 says that given the lapse of time, and despite securing the Discovery Order and its output, P has failed to show (by way of documentary or other evidence) that the Sums, and any assets acquired from them, still exist and are identifiable as in D1’s possession and control.  D1 says that P’s application therefore fails at the first hurdle, namely to identify continued existence of assets subject to its proprietary claim.

30.  D1 further confirms that the Sums are no longer in his possession or control, and that there are no assets acquired using the Sums that remain in his possession or control.  (He only says he used about HK$8 million of these monies comprising the Sums after the death of the Deceased but without any documentary proof but offers little, if any, explanation of the remainder of the Sums.)

31.  D1 further rejects P’s attempts to argue that (i) D1 obstructed P’s attempts to trace the Deceased’s missing assets to protect the recipients.  D1 says that, given he did not oppose the Discovery Summons, there was clearly no obstruction by him; and (ii) the deposits did not leave D1’s possession and control as portrayed by him, and an adverse inference to that effect should be drawn.  Again, D1 rejects this, stating that there is no basis for this court to draw such adverse inference.

32.  As to adequacy of damages, P states that the available material reveals worrying features as to D1’s personal wealth, and that D1 is ‘extremely coy’ about his assets and personal worth (despite the representation made by his counsel at the call-over hearing, as I address some paragraphs below).  There appears to be some evidence of a credit card with a credit limit of $700,000, and despite insight into the other available accounts, P states that D1 has not provided any or sufficient material to demonstrate he is good to meet a $37.5 million judgment.

33.  D1 says P’s claim is ultimately for a sum of money, and that there is no difference between the ‘Sums’ in the 888/001 accounts (if they existed) and any other money that can satisfy a money judgment, and that damages are therefore adequate.

34.  D1 further states that P has not given any evidence, again despite the Discovery Order and its output, on the impecuniosity of D1 and any grounds to suggest that D1 is not in a position to pay an amount equivalent to the Sums in the event of P succeeding at trial.

Mareva injunction

35.  As to a Mareva injunction, P must demonstrate that (i) she has a good arguable case on the merits; (ii) D1 has assets in the jurisdiction; (iii) there is a real risk of dissipation of assets from the jurisdiction, which would render P’s judgment of no effect; and (iv) the balance of convenience is in favour of its grant:  HKCP 2026, §29/1/65.

36.  It has been held that as this is a remedy with draconian effect, figuratively described as one of the “nuclear bombs in a litigant’s arsenal”, a court must scrutinize the matter carefully before granting such relief (China Merchants Bank v I-China Holdings Ltd [2003] 1 HKLRD 271, at §9).

37.  The first evidence P offers of a real risk of dissipation is that the Judgment held in the Probate Action that the will was made to prevent the three other daughters who would benefit from entitlement to the Deceased’s estate on intestacy from pursuing recovery action against those who misappropriated the Deceased’s assets.  The deposits followed by swift withdrawals show a degree of haste on the part of the transferor, creating an alarming picture that amounts to dissipation of assets belonging to an individual of the nature and characteristics of the Deceased.

38.  P further informed this Court that at the call-over hearing, counsel for D1 argued that an injunction was not necessary or appropriate because damages were adequate and that D1 had sufficient assets to meet judgment entered against him.  P states that if this was true, there was even more reason to impose a Mareva injunction to freeze his assets for the purpose of protecting the Deceased’s estate.

39.  D1 states that P fails to demonstrate a good arguable case, and particularly so where in the case of a Mareva, the threshold is much higher and the claimant needs to show “a good arguable case” “in the sense of a case which is more than barely capable of serious argument, and yet not necessarily one that the judge believes to have a better than 50% chance of success” (HKCP 2026, §29/1/66).

40.  P must, in an application for a Mareva injunction, also show a good arguable case as to quantum, see Universal Entertainment Corporation v Kazuo Okada [2020] HKCA 995, at §§22-25, 34.  D1 says P has failed to show this, and that it is for the first time that P runs this case of “resulting trust”, which does not appear in this context in its SoC, and one cannot show a good arguable case on a case that one is not entitled to run at trial.  D1 further argues that the presumption of resulting trust has little significance, as ultimately what matters is true intention.

41.  Likewise, D1 says that P’s case of a massive, if not sophisticated, scheme of assets stripping, does not form part of P’s pleaded case at all, and that furthermore, the more serious the allegation, the less likely it is to occur, and that the court should take a disciplined approach to draw inferences of serious misconduct only where it is compelling and supported by primary facts (Nina Kung v Wong Din Shin (2005) 8 HKCFAR 387, at §§182, 187).

42.  Thirdly, D1 says that P’s case on the state of the Deceased’s mental capacity suffers from multiple serious pitfalls, and lacks evidence or submission to demonstrate that it satisfies the standard of a good arguable case.  D1 states that P admits that the Judgment only determined the testamentary capacity of the Deceased in making her last will on 7 October 2013, and that mental capacity for making an inter vivos disposition of one’s property is different from testamentary capacity.  P herself is not an expert to assess the Deceased’s mental capacity as at 2011, and the bulk of the transfers comprising 60% of the total of the Sums took place in 2011 and 2012, i.e., prior to 2013.

43.  Fourthly, D1 states that there are various discrepancies and inexplicabilities over the sums pleaded to be transferred to D1, which poses a challenge on P in proving its case over the exact amount of sums purported to be received by D1, which is a weakness in P demonstrating a good arguable case as to quantum.

44.  Fifth and finally on good arguable case, D1 states that the allegation of undue influence is not capable of a good arguable case, including because it is a serious allegation which requires cogent evidence and a disciplined approach.  Here, D1 says that it is an undisputed fact that P was not present and did not communicate with the Deceased in the last three years of her life, since March 2012, which means that P’s case on undue influence must be premised upon circumstantial evidence, and that in any event there are multiple circumstances that strongly militate against the presence of undue influence.

45.  As to dissipation, D1 argues that it is for P to show objectively that there is a solid basis for concluding that there is a real risk of unjustified dissipation of assets by the defendant, and that delay after a defendant gained knowledge of a plaintiff’s claim can militate against the risk of dissipation: Convoy Collateral Ltd v Cho Kwai Chee [2020] 6 HKC 81 at [§35], [37], [53].  Although D1 contends on the basis of this authority that the lapse of time means that there is now no longer any risk of dissipation of assets, P clarifies that this argument did not succeed on the analysis of the Court of Appeal, which reversed the lower court’s decision refusing to grant the Mareva injunction.

46.  D1 says that P has not seriously attempted to demonstrate by evidence any risk of dissipation, and that P has only advanced hollow submissions not backed by evidence.

47.  D1 further states that the position P takes that the original APL chose to remain idle against the wish of P, and that P was recently appointed to be the APL (and hence obtains locus standi to take out the present application) has no bearing on the issue of delay and is not a satisfactory scapegoat.  D1 states that P admits that Mr Ma was urged to apply for the injunction and did seek directions from the Court in 2020 on whether to apply for such injunction, but that P was unsuccessful in having Mr Ma follow such path and apply for the injunctions.  D1 thus says that in short the injunction was considered by the then APL (and the Court in a separate decision) and the decision was taken not to proceed with it at the time. 

48.  Also on delay, D1 further states that D1 became aware of the claim over the Sums since at least 2017, and that if D1 had wished to dissipate the assets, he would have long done so, and thus any purported risk of dissipation is now fanciful.

49.  D1 states that its evidence is uncontradicted that the Sums had been spent in the ordinary course of D1’s living gradually before the present action had been commenced and for familial purposes, which runs contrary to any suggestion of dissipation or frustration of recovery of the sums claimed by P.

50.  D1 further rejects P’s assertion that the movement of sums from the Joint Account to elsewhere is strong evidence of dissipation, on the basis that such transfers inject funds into D1’s hands, rather than dissipate funds from D1’s possession.

51.  Finally, as to the allegation of dishonesty, D1 states that the “court should not too readily infer a real risk of dissipation from the assertions that the defendant has displayed low commercial morality in its past dealings” (HKCP 2026, §29/1/70).  D1 describes it as astonishing that such a serious allegation of a massive scheme is not pleaded in the SoC, despite P specifying claims against each of the defendants therein, and that as such, this allegation is artificial and opportunistic and provides no solid basis to infer a real risk of dissipation.

52.  D1 argues as to balance of convenience that it does not lie in favour of granting the injunction.  D1’s bottom line is that there is a high risk of the court making a wrong order, freezing around HK$40 million of D1’s assets over a case that P has not yet run, and might not even run depending on the amendment of her own pleading, which is wholly disproportionate.

53.  The use of funds, which D1 describes as a ‘meagre’ HK$5,000 per week pending trial, will cause great disruption, and although P asserts she is willing to give an undertaking as to damages, she has not provided any documentary proof of her financial abilities to compensate for D1’s loss, given the stakes of HK$37 million at hand to be frozen.

54.  Furthermore, D1 says that there is unjustified delay in such application, given the transfers of the Sums occurred between 2011 and 2014, and the present action was commenced in 2019.  D1 argues that this is outrageously beyond the benchmark of promptness of “six weeks or so of unexplained delay and three months with an explanation for the delay” (King Fung Vacuum Ltd v Toto Toys Ltd [2006] 2 HKLRD 785, at [§20]).

Ancillary Disclosure Order

55.  P says that D1’s position that an injunction was not necessary or appropriate as he has sufficient assets to meet a judgment against him discloses a compelling case for ancillary disclosure.

56.  D1 says that if the Court is not minded to grant the Mareva injunction and preservation order, such ancillary disclosure order falls together. 

D1 also says that such disclosure order has little practical purpose, either because D1 has already provided the relevant information, and/or because there is material overlap with what P has already obtained from the Discovery Order.  Thus such an order has no practical utility, particularly where the subject matter of such order has been spent and is no longer traceable, such that a disclosure order would be an abuse of process as a fishing expedition (see 任俊國 v Chin Choi Ming (unreported) HCA 2017/2017 , 6 November 2017)

Analysis

57.  In the light of the manner in which P advances its case for a composite application, I set out my analysis on both a composite and an individual basis in this section.

Asset Preservation Order

58.  Starting with the asset preservation order, although I accept that the starting point is to determine whether the Sums are traceable as being in the possession and control of D1, I do not accept that the enquiry stops there. 

59.  Rather, I agree with the submissions made by counsel for P, in reliance upon the authority of Connaught West Limited (see above), that equity allows tracing into mixed funds, and that there is no bar against tracing into those mixed funds if the circumstances so require.  I accept P’s submissions that given the facts and circumstances in question and the oddities they give rise to including as observed in the Judgment, and some of which I further address below, and the fact that D1 did not come forward to assist when sought out by the then APL, the Court should draw an adverse inference such that this remedy should be made available to P.  This inference is not drawn lightly, but rather following a disciplined review of the facts and evidence shown to me which form a compelling conclusion in favour of drawing such inference.  I also note D1’s submission that the Court should be careful to draw an adverse inference on the basis of a case not pleaded by P; however, I do not find this to be a credible suggestion.  The substance of the case as set out by P in this application has been pleaded in the SoC, even if the precise legal formulations may not be identical.  That is insufficient a factor for me to alter my conclusion that an adverse inference is to be drawn.

60.  As to the principle of tracing into mixed funds, I also note D1 himself accepts – albeit in the context of the adequacy of damages limb – that given P’s claim is ultimately for a sum of money, there is no difference between the monies comprising in the Sums and sitting in the 888/001 accounts and any other money. 

61.  In my view, all these factors suggest that the circumstances here are distinguishable from the Sum Mun Kid Frederick authority (see above) and more akin to that in Connaught West Limited, such that a tracing of funds is warranted. 

62.  In that regard, I note that although on the one hand D1 says he is no longer in possession or control of the monies comprising the Sums, D1’s counsel confirms on the other hand that D1 would be good for any judgment against him. Thus, even if mixed such that the original Sums are not in existence, monies comprising the Sums would be traceable and sit somewhere with D1, and steps ought to be taken to so trace such Sums if the other criteria are met.  I now address the remaining criteria.

63.  It is clear that there is a serious issue to be tried on the normal American Cyanamid principles.  Here, the Judgment and its contents, and in particular the conclusion that the will was held to be invalid for being procured by undue influence, are relevant to the satisfaction of this limb.  Ultimately, it is for the Court to decide how the parties’ versions of events add up and the extent to which they are backed by evidence rather than words at face value, and I find that D1’s story triggers obviously serious issues to be tried. In particular, I find that D1’s version of events comprises bald assertions, where the series of withdrawals from the Joint Account and deposits into D1’s accounts do demonstrate a degree of haste and create an alarming picture, that the Deceased was heavily dependent on the care of D1 and vulnerable to his demands, and that this sat in conflict with the characteristics of the Deceased as described by P, and as observed in the Judgment.  I also note on the point of mental capacity that D1 seeks to draw a distinction between mental capacity for making an inter vivos disposition of one’s property and that of testamentary capacity, to argue that the Judgment only engaged with the latter, but this distinction does not alter my views and conclusion that there is a serious issue to be tried here.

64.  On the adequacy of damages, I accept P’s submissions that the available material raises concerns as to D1’s personal wealth, and sits uncomfortably with the position articulated by D1’s counsel at the call-over hearing.  In any event, I agree with P’s position that D1 has not provided any, let alone sufficient, material to demonstrate that he is good to meet a HK$37.5 million judgment.

65.  Taking these factors into account against the facts available to me holistically, I conclude that the elements for an asset preservation order have been satisfied.

Mareva Injunction

66.  The curious facts around this case, and in particular the facts surrounding the setting up of bank accounts for the purposes D1 explains and with the multiple transactions exceeding daily withdrawal limits that took place for purposes like mahjong parlour visits, against the observation by Mr Justice Wilson Chan that the Deceased was extremely frugal, simply do not add up and in my view, lack credibility.  These factors, and those I made above in the context of the asset preservation order, lead me to conclude that P has a good arguable case on the merits. 

67.  I also conclude that there is a good arguable case as to quantum, on the basis of the presumption that D1 held the monies in the Joint Account on resulting trust, and on the basis that there is no presumption of advancement in favour of D1 in respect of the gifts and assets given to him by the Deceased.

68.  As to the risk of dissipation of assets within the jurisdiction, I note that the Judgment held that the will was made to prevent the three daughter plaintiffs who would otherwise be entitled to the estate on intestacy from pursuing recovery action against those who misappropriated assets of the Deceased.  The fact that the will was held invalid does not negate the underlying factual conclusion that goes to show the likelihood of dissipation. I further agree with P’s submission that the statement by D1’s counsel that D1 had sufficient assets to meet judgment entered against him was more reason to freeze those assets to protect the estate of the Deceased. 

69.  Furthermore and as I have observed above, the fact that D1 was given the opportunity to assist by way of giving evidence to the then APL, and took the position not do so, is a relevant factor that goes towards and heightens the risk of dissipation.  I do not accept the position that D1 takes that injecting Joint Account funds into his own possession goes against the prospect of dissipation, as the question here relates to dissipation from the assets of the Deceased, and not D1.  Likewise, the rationale that these funds were used for familial purposes, and that D1 has been in the know as to these funds for a long period of time (and with the lapse of time fades the risk of dissipation) does not assist D1’s position on dissipation, in the absence of further and more concrete evidence that would militate against the Court drawing an adverse inference based upon the facts and circumstances that are available to it. Taking all those facts and circumstances together, there clearly remains the risk that D1 has taken funds that belonged to the Deceased, and absent any cogent evidence as opposed to mere assertions by D1, I find that there is a real risk of dissipation in the circumstances.

70.  Although D1 makes much of the point of delay in the bringing of this Summons the context of dissipation, I am not persuaded that the delay was caused by P (intentionally) and thus should be limited to being measured against the ‘benchmark’ advanced by D1, or that this factor is significant enough to override the other criteria, all of which are in my view, met.

71.  Given that P’s case demonstrates a real risk of dissipation of assets, including with the support of the Judgment as I explain above, in my view the balance of convenience should lie in favour of granting the injunction.

72.  Taking into account the various factors as a whole, I conclude that the elements for a Mareva injunction have been satisfied.

Composite Application

73.  I also accept P’s submission that these two orders should be viewed as a composite application, and in line with the authority of Falcon Private Bank, I agree that despite their different tests, these two injunctions can be applied for at the same time, with the Mareva injunction serving as a top-up protection in support of the proprietary injunction.

Ancillary Disclosure Order

74.  Finally, I also agree with P that the grant of the above injunctions and the satisfaction of the underlying factors in the test for these injunctions demonstrate a compelling case for ancillary disclosure, particularly where D1 states he does have sufficient assets to satisfy any judgment against him, where there is no evidence on the record to so demonstrate, and where none was offered despite attempts by the then APL.

75.  I do not consider that the Discovery Order precludes my granting an ancillary disclosure order, and any overlap between the two can be easily addressed in D1’s satisfaction of the Discovery Order.

Costs

76.  On 13 April 2026, I invited the parties to address me on the costs of this application.  The parties filed their respective submissions accompanied by statements of costs on 14 April 2026.

77.  The issues that arise as to costs of this application are: (i) whether costs should be in the cause or follow the event (where in the case of the latter, they would be payable to P forthwith); (ii) what a reasonable and proportionate amount of costs is, against the respective statements of costs submitted by the parties and the submissions advanced by them; and (iii) whether this application justifies certifying two counsel.

78.  The starting point is that costs of interlocutory applications such as this one are to be dealt with under O.62 r.3(2A) RHC.  In this context, I agree with D1’s submission that there is greater willingness to depart from what was past practice for costs to be in the cause.  In these circumstances, I exercise my discretion to order that costs follow the event.

79.  As to the quantum of costs, I have considered the submissions of both parties, including D1’s submission on whether it was reasonable that D1 does oppose the present application (albeit I consider this should be balanced against D1’s unwillingness to assist the previous APL as I have addressed above), as well as the statement of costs filed by the parties under Order 62 rule 9A.  Taking a broad brush approach, I summarily assess that of the costs claimed by P, costs in an amount of HK$480,000 are reasonable and proportionate, and thus payable to P forthwith.

80.  Finally, given the volume of material, the length of the relevant time period in question and fact and legal submissions that needed to be prepared even for this stage and application, I consider it justified to certify two counsel.

Conclusion

81.  For the reasons given above, I grant the asset preservation order, the Mareva injunction and the ancillary disclosure order sought by P.

82.  Upon the undertaking set out in Schedule 2 of the draft order, I make an order in terms of paragraphs 1 to 8 and 10 of the draft order contained in the Schedule to the Inter Partes Summons.

83.  As to costs, in lieu of paragraph 9 of the draft order contained in the Schedule to the Inter Partes Summons, I make an order for costs in the amount of HK$480,000 to be payable to the Plaintiff forthwith.

84.  It remains for this court to express its gratitude to the counsel who have ably assisted the court by way of their written skeletons, extensive oral arguments and subsequent submissions.