LAU CHI HANG, the Administrator of the Estate of YUNG YIM HING, Deceased v. LEE CHING WO

DCCJ 5434/2020

[2023] HKDC 1203

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 5434 OF 2020

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BETWEEN

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JUDGMENT

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A. INTRODUCTION

1.  These proceedings were commenced by the Plaintiff as administrator to the estate of the late Madam Yung Yim Hing (容艷卿) (“the Deceased”). The main issue in this case is whether the Deceased had made an inter vivo gift of her various assets in the sum of HK$3,205,200 (“the Disputed Sum”) to the Defendant on 4 October 2019 shortly prior to her death. This case essentially turns on this single factual issue.

B. BACKGROUND

2.  The Deceased married the Plaintiff’s father (劉國賢) in 1980. The Plaintiff’s sister (劉芷筠) and the Plaintiff were born in 1981 and 1983 respectively. In about 1995, the Deceased met the Defendant and by early 1997, they developed an intimate relationship. The Deceased and the Plaintiff’s father eventually divorced in 2003. The intimate relationship between the Deceased and the Defendant however lasted for more than 20 years until the Deceased’s passing on 24 October 2019.

3.  Since about 2000, the Deceased and the Defendant had been cohabiting at the Defendant’s property in Tuen Mun. From about 2011, when the Deceased’s father had fallen ill, the Deceased would from time to time stay at her father’s residence at Yee Kok Court in Cheung Sha Wan (“CSW Property”). After her father passed away on 8 August 2019, the Deceased continued to stay in the CSW Property and the Defendant moved in with the Deceased. They elected to stay in the CSW Property since it was near the Caritas Medical Center (“CMC”) where, as will be apparent below, the Deceased had attended for treatment of her illness.

4.  On the other hand, the Plaintiff’s sister had mostly alienated herself from the Deceased since the Deceased’s divorce. Although the Plaintiff had remained in occasional contact with the Deceased, seeing her a few times a year, even by the Plaintiff’s evidence, his relationship with her mother was quite distanced since the divorce.

5.  There is also no dispute that throughout the years prior to her death, the Deceased made various investments into securities through her various securities accounts. She had also amassed savings in her bank accounts. The Deceased had in her lifetime shared her passwords to these securities accounts and other bank accounts with the Defendant to allow the Defendant to access these accounts.

6.  Since mid-2019, the Deceased had fallen ill with symptoms including anemia, gastritis, and loss of appetite. On 5 September 2019, the Deceased was diagnosed with colon and rectum cancer with multiple liver metastases.

7.  Between 30 September and 9 October 2019, the Deceased was hospitalized at the CMC. During her stay at the CMC, the Deceased was informed that her cancer was beyond cure and the attending doctors suggested palliative treatments. As no further curative treatment was contemplated, the Deceased opted to be discharged and was so discharged from CMC on 9 October 2019. The Deceased’s condition continued to deteriorate, and she passed away on 24 October 2019.

8.  Before the Deceased’s death, she had maintained securities accounts with Bright Smart Security International (Hong Kong) Limited (“the Bright Smart Securities Account”) and CMB Wing Lung Limited (“the Wing Lung Securities Account”).

9.  Between 8 and 15 October 2019, the Defendant sold all of the securities in the Bright Smart Securities Account in the sum of HK$1,205,112 and transferred the balance to the Deceased’s bank account with OCBC Wing Hang Bank Limited (account number 816-305998-100) (“the Wing Hang Account”).

10.  Between 17 and 22 October 2019, the Defendant sold all of the securities in the Wing Lung Securities Account in the sum of HK$383,273.26 and transferred the balance to the Deceased’s savings account with CMB Wing Lung Limited (account number 610-202-1963-4) (“the Wing Lung Savings Account”).

11.  Between 4 to 23 October 2019, the Defendant, through various means (including ATM cash withdrawals, ATM transfers, PPS transfers, and FPS transfers) withdrew and transferred to himself various sums from the Deceased’s bank accounts as follows:-

(1) HK$1,431,100 from the Wing Hang Account;

(2) HK$1,619,900 from the Wing Lung Savings Account; and

(3) HK$150,000 from the Deceased’s account with the Hongkong Shanghai Banking Corporation (account number 031-4-010844) (“the HSBC Account”)

12.  The Plaintiff alleged and the Defendant accepted that the Defendant has transferred to himself a total sum of HK$3,205,200 (i.e. the Disputed Sum) from the Wing Hang Account, Wing Lung Savings Account, and the HSBC Account prior to the Deceased’s death. The Disputed Sum, up to the jurisdictional limit of this court, is now the subject of the Plaintiff’s claim in these proceedings.

C. THE PARTIES’ DISPUTE

13.  The parties’ present dispute falls in a narrow compass. As Mr Conan Shek, counsel for the Defendant, put it in his opening submissions, “this case boils down to a simple factual dispute, i.e. whether the [Disputed Sum was] a gift from the Deceased.”

14.  The Plaintiff claims that the Disputed Sum was never a gift from the Deceased to the Defendant. The Defendant had transferred the Disputed Sum to himself for the purposes of paying the Deceased’s medical and living expenses until she passed away. Hence, on the Deceased’s passing, the Defendant held the Disputed Sum on trust for the Deceased’s estate. On the other hand, the Defendant claims that the Deceased had made a gift of the Disputed Sum to him on 4 October 2019 whilst the Deceased was hospitalized after she discovered that her cancer is incurable. The Defendant alleged that the gift was made in the presence of the Deceased’s 2 sisters, namely Yung Yim King Paula (“Paula”) and Yung Yim Ling Christina (“Christina”). However, both Paula and Christina denied hearing the Deceased making a gift to the Defendant on 4 October 2019. The diametrically opposed factual accounts is a matter that this court will need to resolve.

15.  At the hearing, Mr Shek confirmed that the Defendant is not relying on any other occasion on which a gift was made of the Disputed Sum. Nor is the Defendant advancing a defence that he was authorized to make the transfers of the Disputed Sum other than the alleged gift that was made on 4 October 2019. As such, Mr Shek further confirmed that if this court finds that no gift was made by the Deceased on 4 October 2019, the Defendant’s defence would fail. Conversely, Mr Vincent Kwong, counsel for the Plaintiff, accepted that if a gift was made on 4 October 2019, the defence would succeed.

D. APPROACH TO FINDING OF FACTS

16.  The approach to findings of facts and assessing the credibility of witnesses are essentially matters of common sense. Helpful guidance was proffered by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd (unrep, HCA 1734/2009, 8 April 2014) at §§76-83:-

“77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce) …

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the Defendants.

83. In approaching the evidence in this case, I have also borne in mind that the allegations made by the Son are very serious, and that the more serious the allegation sought to be proved is, the more cogent the evidence relied upon to support it must be: see Re H (Minors) [1996] AC 563at 586D-587F (Lord Nicholls) and ADS v Brothers (2000) 3 HKCFAR 70 at 77J-78G (Lord Hoffmann NPJ).”

17.  Furthermore, in Kwai Tak Ming v K S Capital One Limited (unrep, HCA 679/2012, 5 May 2016) at §16, Chung J stated that “where it is shown that a witness has been discredited over one or more matters to which he has testified …, this fact is relevant to the assessment of his overall credibility…”

18.  Although documentary evidence is a useful guidance in the fact-finding exercise, absence of documentary evidence to a particular event should not be a deterrence to the court from accepting or rejecting a witness’ account of events to which that witness was present. Thus, in In re B (Children) [2009] 1 AC 11, at §31, Lady Baroness Hale remarked that:-

“… In this country, we do not require documentary proof. We rely heavily on oral evidence, especially from those who were present when the alleged events took place. Day after day, up and down the country, on issues large and small, judges are making up their minds whom to believe. They are guided by many things, including the inherent probabilities, any contemporaneous documentation or record, any circumstantial evidence tending to support one account rather than the other, and their overall impression of the characters and motivations of the witnesses. The task is a difficult one. It must be performed without prejudice and preconceived ideas. But it is the task which we are paid to perform to the best of our ability.”

19.  With the above principles in mind, I now turn to analyze the evidence and the parties’ case.

E. ANALYSIS OF THE EVIDENCE

20.  The ultimate question that this court needs to decide is whether the Deceased made a gift of the Disputed Sum to the Defendant on 4 October 2019. The Defendant’s evidence is that the Deceased had, in the presence of Paula and Christina, asked the Defendant (i) to sell all her securities in the Bright Smart Securities Account and the Wing Lung Securities Account, and (ii) to transfer all the money in her bank accounts to the Defendant. This was because the Deceased then took the view that she would not be able to recover from her illness and wished to leave all her assets to the Defendant.

21.  Paula and Christina both denied having heard the Deceased making a gift of the Disputed Sum to the Defendant on 4 October 2019. Christina further gave evidence that there was a telephone conversation in the morning of 4 November 2019 between the Defendant and herself in which the Defendant told her that:-

(1) The Deceased had asked the Defendant to transfer all her money to the Defendant as the Deceased was worried about medical and living expenses (“他聲稱之前艷卿叫他「轉走晒啲錢」，因她擔心醫療及生活費”);

(2) The Defendant thought he did not handle the transfer well, which would give the impression to others that he was greedy (“但Roger [the Defendant’s English name] 都覺得過程做得不好，會令人覺得他貪心”);

(3) The Defendant was afraid that this would cause trouble to himself with legal consequences (“會麻煩到自己，驚有法律問題”); and

(4) The Defendant thought he could speak further with Paula and herself as to how to return the money to the Deceased’s estate (“他覺得他與我和Paula可以傾如何將艷卿的錢交出來遺產承辦處理”).

22.  The Defendant accepted that there had been a telephone conversation in the morning of 4 November 2019, but said that the content was about the funeral arrangements of the Deceased, which eventually took place on 8 November 2019. During cross examination, the Defendant first referred to a telephone call in the morning of 4 November 2019 where he asked Christina about the sending of flowers to the funeral hall. Christina replied that this should not be done as the funeral hall was very small. The Defendant then said that he was subsequently asked by the Deceased’s primary school classmates as to the funeral arrangements and he called Christina again in the afternoon. In this second call, Christina told him that the funeral hall could only house 18 participants, but the venue thereafter at Cape Collison Crematorium (歌連臣角火葬埸) is bigger and that they have booked a shuttle bus service to Cape Collison Crematorium that could carry 60 passengers. Essentially, the Defendant’s evidence is that both of the telephone calls on 4 November 2019 were only directed at the Deceased’s funeral arrangements.

23.  The dispute as to what was discussed between the Defendant and Christina on 4 November 2019 is, in my view, relevant to the overall consideration regarding whether a gift was made on 4 October 2019. This issue will be considered in more detail below. Apart from what was discussed between the Defendant and Christina on 4 November 2019, I have also considered various relevant matters to which I will, in turns, address below.

E.1 The Deceased relationships with the Defendant

24.  I have little hesitation in finding that the Defendant was the closest person to the Deceased. They have resided together as de facto husband and wife for close to 20 years prior to the Deceased’s death. In the Defendant’s witness statement, he described his relationship with the Deceased as follows:-

“自1995年開始直到2019年容女士離世，我們從認識、互相了解、交心、發展感情、並同居。在這24年間，互相扶持，經歷人生的起跌，雖然法律上沒有那一紙婚書的確認，但我們彼此都認定對方是和自己走到最後的伴侶和最好的夥伴。生活上，我們彼此互相照顧關懷，亦會分擔家務，分工合作。我們彼此都認為，大家的關係得來不易，而對我來說，我的出現無論如何都是容女士和她家人的關係破裂的其中一個原因，因此我絕對會更珍惜對方。”

25.  This part of the Defendant’s evidence is not seriously challenged at trial and I accept the Defendant’s evidence in this regard.

26.  Mr Kwong submitted that the Deceased also expressed love and care to the Plaintiff and his sister. This I also accept. The Defendant himself had frankly admitted that the Deceased loved her children. This however does not in my view detract from the fact that the Defendant was the closest person to the Deceased for a considerable period of time prior to her death. This is particularly so when viewed against the background that the Plaintiff and his sister were very distanced from the Deceased since 2003.

E.2 Financial affairs between the Deceased and the Defendant

27.  The Defendant in his evidence stated that he and the Deceased did not distinguish the ownership of their assets. They had in essence pooled their resources. He said that he had from time to time given money to the Deceased for investment into securities. However, he never asked the Deceased about the details of her securities investments, nor did he ever asked to be repaid. In this respect, the Defendant was unshaken in cross examination and I accept his evidence that he had from time to time given money to the Deceased for her to invest into securities.

28.  There is also no dispute that the Deceased had given the Defendant the banking details and passwords of her various bank and securities accounts. However, the Defendant had not been given access to all of the Deceased’s accounts. The Defendant was not given access to bank accounts maintained by the Deceased with:-

(1) Chiyu Banking Corporation Limited;

(2) Dah Sing Bank; and

(3) Public Bank (Hong Kong) Limited.

29.  The Defendant explained that these accounts to which he was not given access were not the main banking accounts of the Deceased. As the evidence showed:-

(1) The accounts with Chiyu Banking Corporation Limited only had balances of HK$28,297.13 and RMB 3,585.47;

(2) The account with Dah Sing Bank only had a balance of HK$1.65; and

(3) The accounts with Public Bank (Hong Kong) Limited had balances of HK$154,466.28, AUD 591.61, NZD 12,122.67, and HK$0.18. The bank passbooks disclosed in these proceedings further showed that no transaction took place in these accounts in 2018 and 2019.

30.  I therefore accept the Defendant’s evidence that the accounts which he had no access were not the main banking accounts of the Deceased and that he was given access to the main banking accounts and securities accounts of the Deceased for which most of the Deceased’s assets were held.

31.  According to the Defendant, he too had given the Deceased the passwords to his various accounts. This was not challenged by the Plaintiff.

32.  Instead, the Plaintiff challenged the reason why they were given each other’s access to their accounts. Mr Kwong submitted that this was simply because of convenience. He refer to the Defendant’s witness statement where the Defendant said:-

“在我和容女士一起這二十幾年間，我們對對方銀行戶口的資料都很清楚，包括提款卡密碼，網上銀行的密碼等，方便有時幫助對方處理銀行上及金錢上的事務。”

33.  It is perhaps understandable that knowing the other’s passwords entails convenience in the sense described by the Defendant. This is clearly not inconsistent with them notionally (and perhaps loosely) making no distinction between each other financially. Although I cannot conclude by the single fact that they have access to each other’s accounts, the Defendant and the Deceased must notionally intend their assets to be jointly owned. This fact, however, demonstrates the level of trust they possessed in each other regarding their financial affairs and the openness they were willing to share between them. In addition, given that the Deceased and the Defendant had been living as de facto husband and wife for such a long time, and that the Defendant had given money to the Deceased for investment for time to time without ever asking it to be repaid, I accept on the balance of probabilities that the Defendant and the Deceased did not strictly distinguish the ownership of their assets.

34.  Mr Kwong also referred to the fact that the Deceased and the Defendant had no joint name bank account. I do not think the existence or otherwise of a joint name bank account is indicative one way or another. There could be many reasons why the Defendant and the Deceased decided not to maintain a joint name account. This was never explored by Mr Kwong in cross examination. This in itself does not show that they strictly treated their assets as separately owned.

E.3 When did the Deceased learn of her terminal illness?

35.  The Defendant averred that the gift was made to him on 4 October 2019, on which date the Deceased discovered that her illness was beyond cure. By a medical report dated 24 August 2020 compiled by the Department of Medicine and Geriatrics of CMC (“the Medical Report”), it recorded a consultation by the surgical team on 4 October 2019 as follows:-

“… [The Deceased] was admitted for fever and abdominal pain. Surgical team was consulted on 4 Oct 2019, and commented that Ms Yung had terminal stage of carcinoma of colon and suggested palliative care…”

36.  Despite what is stated in the Medical Report, Mr Kwong nevertheless submitted that there is no evidence that the surgical team’s comments were made known to the Deceased on 4 October 2019. On the face of the Medical Report, Mr Kwong might be correct in saying that there is no direct evidence of when the Deceased was informed of her terminal illness. However, it accords with common experience that upon consultation from the surgical team, the Deceased would likely have asked the surgeons or her attending doctor about her condition and that there is nothing to suppose that the surgeons or the attending doctor would not have given a true and honest opinion. Further, both the Defendant and Paula gave evidence that they had attended a meeting with the attending doctor on 5 October 2019 where the attending doctor told them of the Deceased incurable conditions. There is nothing to suggest that the attending doctor had withheld that information from the Deceased, who was of course a patient of age, before divulging that information to the Deceased’s family members.

37.  Importantly, the Plaintiff himself knew that the Deceased discovered that her illness was terminal on 4 October 2019. By his own witness statement, the Plaintiff had spoken to this when he said “大約於2019年10月4日，母親獲明愛醫院的醫生告知她的癌症已到了末期…”.

38.  I therefore find that the Deceased was informed of her terminal illness on 4 October 2019. This is also reinforced by the abrupt cessation of the Deceased’s trading activities in securities on 4 October 2019, to which I will turn next.

E.4 The cessation of trading activities by the Deceased on 4 October 2019

39.  It is not seriously disputed that despite being hospitalized since 30 September 2019, the Deceased had continued her trading activities in securities. On the evidence before the court, the following transactions were carried out by the Deceased in her Bright Smart Securities Account between 2 October 2019 to 4 October 2019:-

Date	Buy/ Sell	Securities	Quantity	Amount (HKD)
02/10/2019	Buy	CLP Holdings	500	40,599.12
02/10/2019	Buy	Shenzhou International	1,100	111,080.25
02/10/2019	Sell	Shenzhou International	1,100	111,876.78
03/10/2019	Buy	Hengan International	1,500	74,610.73
03/10/2019	Sell	WH Group	8,000	56,443.64
03/10/2019	Sell	Shenzhou International	600	61,018.29
04/10/2019	Buy	CLP Holdings	500	40,699.13
04/10/2019	Buy	WH Group	22,000	157,784.79
04/10/2019	Buy	Shenzhou International	1,000	104,488.97
04/10/2019	Sell	Shenzhou International	700	74,414.26

40.  The Wing Lung Securities Account statement dated 15 October 2019 showed the Deceased’s trading activities from 13 September to 3 October 2019 as follows:-

Date	Buy/ Sell	Securities	Quantity	Amount (HKD)
13/09/2019	Sell	信義玻璃	2,000	17,053.03
13/09/2019	Sell	中國信達	16,000	27,606.35
13/09/2019	Sell	北京控股	500	19,197.64
19/09/2019	Buy	北京控股	500	19,050.96
20/09/2019	Buy	申洲國際	300	30,981.73
20/09/2019	Buy	招商銀行	500	18,450.02
20/09/2019	Sell	申洲國際	300	31,176.71
23/09/2019	Buy	長飛光纖光纜	2,000	27,353.02
24/09/2019	Buy	申洲國際	300	30,741.35
24/09/2019	Sell	申洲國際	300	30,878.17
25/09/2019	Buy	中國信達	20,000	37,884.15
25/09/2019	Buy	申洲國際	3,000	307,396.64
26/09/2019	Sell	申洲國際	300	30,908.12
27/09/2019	Buy	申洲國際	300	30,741.35
27/09/2019	Sell	申洲國際	300	31,026.93
30/09/2019	Buy	申洲國際	300	30,350.74
30/09/2019	Sell	申洲國際	300	30,578.65
02/10/2019	Buy	申洲國際	600	60,548.24
03/10/2019	Sell	申洲國際	1,600	163,972.45

41.  The Deceased’s trading activities abruptly stopped on 4 October 2019. Thereafter the Defendant sold all of the securities in the Bright Smart Securities Account and the Wing Lung Securities Account from 8 to 18 October 2019.

42.  Given the habitual and frequent trading of the Deceased prior to 4 October 2019, the abrupt cessation of her trading activities is likely the result of her learning of her terminal illness. It is not difficult to understand that the making of profit from her securities would no longer be of importance to the Deceased in face of certain death. This would also mean that it is not improbable that she would have made arrangements to deal with her assets in light of her eventual passing.

43.  It is also worth mentioning that if the Defendant was not authorized to sell the securities in the Deceased’s securities accounts and the Deceased had not accepted her illness as terminal, the Defendant would inexplicably risk his unauthorized acts being discovered by the Deceased given the Deceased’s frequent trading.

E.5 The Oncology consultation on 9 October 2019

44.  There is no dispute that the Defendant, Christina, and Paula had accompanied the Deceased to a consultation with oncologists at Princess Margaret Hospital on 9 October 2019. Despite learning from her attending doctor at the CMC that her cancer was beyond cure, Mr Kwong nevertheless submitted that the Deceased was looking forward to hearing curative plans of treatment by the oncologists. Hence, it is submitted, the Deceased would unlikely have made a gift to the Defendant on 4 October 2019.

45.  Mr Kwong relied on the evidence of Paula where she said that on 5 October 2019, the Deceased reminded Paula to bring along the appointment letter for the oncologists’ consultation on 9 October 2019. Mr Kwong submitted that this was an indication that the Deceased was looking forward and even eager to consult the oncologists. No doubt, Mr Kwong is asking this court to draw an inference based on this fact. With respect, I am not persuaded that on this fact alone it is appropriate to draw an inference that the Deceased had high hopes of a cure from the oncologists.

46.  First, this is inconsistent with what the Deceased had been told by the attending doctor and the surgical team at CMC, namely that her illness was incurable. I accept the Defendant’s evidence that the appointment with the oncologists was not referred by CMC and was previously booked prior to the Deceased’s admission to CMC on 30 September 2019. This is likely the reason why the appointment letter had to be brought by Paula rather than being issued by CMC. This is also consistent with the Medical Report where there is no mention of any referral to the oncologists by CMC.

47.  Second, even if I accept Paula’s evidence that the Deceased had reminded her to bring along the appointment letter, this only shows that the Deceased was willing to consult oncologists and shed no light on whether she had high hopes that the oncologists would provide a cure.

48.  As such, I do not accept that the Deceased’s consultation with the oncologists on 9 October 2019 would in any way render the making of a gift to the Defendant on 4 October 2019 improbable.

E.6 The 4 November telephone conversation

49.  The 4 November 2019 telephone conversation was a hotly contested subject at trial. For the reasons below, I am unable to accept the Plaintiff, Paula, and Christina’s evidence in this respect.

50.  First, Christina said that the Defendant told her that the Disputed Sum was transferred for the purpose of medical and living expenses. Mr Shek pointed out that all of the Deceased’s treatment was carried out in public hospital where the expenses would be modest and it makes little sense for the Deceased to ask the Defendant to transfer the Disputed Sum for that purpose. Further, it is common ground that after the consultation with the oncologists on 9 October 2019, it was known that there would be no further treatment to the Deceased’s terminal illness. The bulk of the Disputed Sum was however only transferred to the Defendant after 9 October 2019. It is therefore doubtful that the transfer of the Disputed Sum was for the purpose of the Deceased’s medical and living expenses. Hence, it is unlikely that the Defendant would have told Christina that such is the purpose.

51.  Second, Christina said that the Defendant was concerned with legal consequences that may arise from his transfer of the Disputed Sum. The Defendant gave evidence that he believed that any transfer he made whilst the Deceased was still alive would be valid and legitimate, whereas he could not legally make any transfers after the Deceased’s passing. The Defendant’s transfer of the Disputed Sum was carried out in a series of transfers from 4 to 23 October 2019. If there had been any concerns about the legal consequences of the transfers, the Defendant had ample time to consider his concerns before making the transfers. It is improbable that he would suddenly be concerned with the legal consequences immediately after the Deceased’s passing.

52.  Third, Christina said that she did not ask the Defendant any questions during the telephone conversation and that she was simply listening to what the Defendant was saying. Mr Shek submitted that it is illogical that Christina did not pose any questions. The obvious questions being how much the Defendant had transferred to himself, and how much was spent by the Defendant. I agree that if the alleged telephone conversation had taken place, it is highly improbable that Christina would have refrained from asking the obvious questions that any reasonable person in her position would clearly have asked. Quite obvious is that the amount involved would certainly dictate how the parties would propose to deal with it.

53.  Fourth, Christina referred in her evidence to the following WhatsApp communications she had with the Defendant on 4 November 2019:-

“Defendant: (18:15)	轉寄訊息 Hi，你好 很多謝你相告艷馨患病的過程，聽到傳來不幸的訊息，我深感難過 希望你不要太傷心喇，雖然係唔捨得，但總要面對架。 我想告知你，我們一班同學大約8至10人會到醫院的小禮堂跟艷馨道別之後我們都不上山了。因同她的家人不太熟識。請轉告一聲。唔該晒
Defendant:	她的小學同學回覆 (18:15)
Defendant:	會怎樣處理 (18:43)
Christina:	暫且放下 (22:02)”

54.  Chistina stated that when the Defendant asked her “會怎樣處理” at 18:43, she understood it to be a reference to the money the Defendant had taken from the Defendant as discussed in the telephone call in the morning. Hence, her response (“暫且放下” at 22:02) was to mean that the matter should be deferred, since they were busy arranging the Deceased’s funeral at that time. Mr Kwong submitted that this conversation is consistent with and supported Christina’s version of the content of the telephone conversation in the morning.

55.  The Defendant on the other hand said that his question “會怎樣處理” (at 18:43) was in relation to his forwarded message (at 18:15) from the Deceased’s primary school classmates. The Defendant knew that the funeral hall was only able to house 18 participants and he said he was worried that together with the Deceased’s other family members, the attendance of 8-10 classmates may be problematic.

56.  I accept the Defendant’s evidence and reject Christina’s in this regard. The message “會怎樣處理” was sent at 18:43, 28 minutes after the Defendant forwarded the message from the Deceased’s primary school classmates to which there was no response. Given the proximity in time of these messages, it is quite difficult to accept that the Defendant’s question “會怎樣處理” was directed at other matters. There being no suggestion on the face of the communications in the evening that the Defendant was referring to their telephone conversation in the morning, it is improbable that Christina had understood the Defendant’s question as referring to the money he took, and it is equally improbable that the reply of “暫且放下” was meant to defer that issue. It is more likely that Christina was deferring the response to the message from the Deceased’s primary school classmates.

57.  As a matter of fact, Christina did, on her next message to the Defendant on 6 November 2019, respond to the attendance of the Deceased’s classmates at the funeral to be held on 8 November 2019:-

“Christina: 礼拜五的出殯礼3時開始，10至15分鐘會結束的。請代提提艳卿的同事、同學準時出席，謝!

58.  Fifth, the Plaintiff, Paula, and Christina’s evidence as to how Christina informed the Plaintiff and Paula of the telephone conversation is utterly inconsistent and unsatisfactory. The Plaintiff’s evidence at trial was that he was informed by Christina immediately on 4 November 2019. Christina’s evidence has firmly rejected this contention and she said that it was only after the Deceased funeral (ie on or after 8 November 2019) that she had informed the Plaintiff and Paula of the telephone conversation on 4 November 2019.

59.  Paula’s evidence under cross examination was that Christina had informed her and the Plaintiff of the telephone conversation on 4 November 2019, again inconsistent with Christina’s evidence. Paula further said that Christina had informed them through WhatsApp where Christina had recorded a voice message speaking to the content of the telephone conversation Christina had with the Defendant. The existence of a voice message from Christina is a matter that was raised for the first time during her cross examination. Clearly, if there is indeed such a voice message, it is baffling why such had not been disclosed as evidence. Crucially, Christina said that she had not disclosed the matter to the Plaintiff and Paula prior to 8 November 2019, and that she had never recorded any voice message relating to the telephone conversation.

60.  Sixth, on 10 December 2019, Messrs CL & Co. Solicitors, solicitors for the Plaintiff, wrote to the Defendant asking whether the Defendant had in possession of any assets belonging to the Deceased. Among other things, the solicitors wrote:-

“死者有否在離世前曾交託任何財物給予閣下代為持有/保管？尤其是任何有價值的財物或有關財物的紀錄，例如現金、銀行簿/結單、股票及證券（或戶口）、有價值的物品（金器、珠寶、名錶、收藏品等等）、汽車及船隻、土地及樓宇、保險單、強積金或任何未收回的款項等等。如有的話，請提供詳情。”

61.  There was no mention of the telephone conversation on 4 November 2019 at all in the letter. There was no hint in the letter that the Plaintiff was asking specifically for the return of any money, which, despite the amount may perhaps be uncertain, the Plaintiff had known the Defendant had taken from the Deceased. The Plaintiff explained that because he was of the understanding that the Defendant was willing to repay the same to the Deceased’s estate, he took the view that the parties were still on good terms such that there was no need to make such a demand in the letter. I do not accept the Plaintiff’s explanation. To the contrary, if he was of the view that the Defendant would be willing to repay the money to the Deceased’s estate such that the matter is not a contested matter, there is all the more reason to specifically raise the matter in the letter. Clearly, this would not have jeopardized the relationship between the parties when the Defendant was simply asked to do what he had agreed to do.

62.  Seventh, it is Paula and Christina’s evidence that they had tried to contact the Defendant after 8 November 2019 because they wished to follow up with the Defendant the return of the money that was mentioned in the telephone conversation on 4 November 2019. There were no WhatsApp communications between Christina and the Defendant. The WhatsApp communications between Paula and the Defendant showed that Paula had sent numerous messages to the Defendant between 3 February and 4 March 2020 (which by then was 3 months after 4 November 2019). These messages were mainly to ask about the wellbeing of the Defendant. It was never once mentioned in Paula’s many messages that she wished to speak to the Defendant about the matter discussed in the 4 November 2019 conversation. There was no mention, let alone demand, of any money that the Defendant would have to return to the Deceased’s estate, despite the fact that this was the reason for reaching out to the Defendant. Paula explained during cross examination that because the Defendant did not respond to her greetings, she did not raise the matter further. She said that had the Defendant responded, she would then raise the matter with him. Instead, she had raised with the Defendant matters concerning the Deceased’s father’s estate (to which she was the administrator), because she thought, for some reason, it was a matter that might interest the Defendant. Frankly, I do not accept Paula’s explanation as to why she did not mention the 4 November telephone conversation and/or the return of money. On the contrary, had the purpose of contacting the Defendant was for the return of money which the Defendant had agreed to, there is no reason why the matter could not be raised directly. This would obviously be more likely to elicit a respond from the Defendant than matters concerning the Deceased’s father’s estate under which the Defendant had no entitlement.

63.  Eighth, I am not satisfied that the note allegedly taken by Christina during the telephone conversation on 4 November 2019 (“the Note”) is a contemporaneous note of what was discussed. The content of the Note is in my view ambiguous. I am unable to discern from the Note itself the meaning of what was being recorded. The Note does not have a date. In light of the unsatisfactory nature of the evidence given by Christina in relation to the 4 November 2019 conversation, which I reject, there is no evidence showing that the note was contemporaneously recorded.

64.  Surprisingly, this Note was disclosed only as an exhibit to Christina’s witness statement filed on 3 December 2021. It was never disclosed by way of list of documents prior to 3 December 2021. The Plaintiff had filed his list of documents on 18 November 2021 without disclosing the Note. Assuming the Plaintiff’s solicitors had acted properly (and there is no reason to assume otherwise), had the Note been given to the Plaintiff’s solicitors prior to 18 November 2021, it would have been disclosed in the Plaintiff’s list of documents. The Note was never given to the Plaintiff, but directly from Christina to the Plaintiff’s solicitors at some time during these proceedings prior to the filing of Christina’s witness statement. During cross examination, Christina was asked about the timing and circumstances in respect of how the Note was given to the Plaintiff’s solicitors, and her answer was simply that she did not remember.

65.  On balance, I do not accept the Plaintiff, Paula, and Christina’s evidence regarding the telephone conversation on 4 November 2019. Instead, I accept the Defendant’s evidence that the telephone conversations on that day were in relation to funeral arrangements of the Deceased.

E.7 Credibility of Witnesses

66.  Mr Kwong submitted that Paula and Christina are independent witnesses with no interest in the outcome of these proceedings. While I accept that they have no financial interest, I do not accept that they are truly independent as they are relatives of the Plaintiff and the Plaintiff’s sister.

67.  I remind myself that the demeanor of witnesses is by itself not a reliable indicator of credibility. Instead, I have considered all of the evidence in this case, considered the inherent probabilities, and tested the witnesses’ evidence against so much of the undisputed or indisputable background. In relation to the events on 4 October 2019 and the telephone conversation on 4 November 2019, I find the Defendant to be a credible witness and I accept the Defendant’s evidence. I reject the evidence of the Plaintiff, Paula, and Christina insofar as they are inconsistent with the Defendant’s evidence.

F. FINDINGS AND DISPOSITION

68.  Having considered all of the evidence, I find, as a matter of fact, that:-

(1) The Defendant was the closest person to the Deceased. They have lived as de facto husband and wife for a period of close to 20 years prior to the Deceased’s death. The Plaintiff and the Plaintiff’s sister were however very distanced to the Deceased;

(2) The Defendant and the Deceased did not strictly distinguish the ownership of their assets;

(3) The Deceased discovered that her illness was incurable on 4 October 2019, and as a result the Deceased had ceased her trading activities in her 2 securities accounts;

(4) I also find, on the balance of probabilities, that the Deceased had on 4 October 2019, upon learning that her illness was terminal, made a gift of the Disputed Sum to the Defendant by instructing the Defendant to sell all her securities and transfer all the money in her bank accounts to him as alleged by the Defendant; and

(5) The telephone conversations between the Defendant and Christina on 4 November 2019 were in relation to the Deceased’s funeral arrangements.

69.  Having found that the Disputed Sum was a gift made to the Defendant on 4 October 2019, I accordingly dismiss the Plaintiff’s claim herein.

70.  The parties agree that costs should follow the event and I make a costs order nisi that the Plaintiff do pay the Defendant’s costs of this action, including all costs reserved, with certificate for counsel to be taxed if not agreed.

71.  At the conclusion of the trial, Mr Kwong has asked the court to make an order that the Plaintiff’s costs be indemnified by the Deceased’s estate in the event that the Plaintiff’s claim is dismissed. Mr Kwong did not specify whether the Plaintiff is now seeking to be indemnified by the Deceased’s estate for costs to be paid to the Defendant or the Plaintiff’s own costs or both.

72.  Regardless of the issue of indemnity, costs order should in any event be made against the Plaintiff personally. This was made abundantly clear by the Court of Appeal in To Pui Kui v Ng Kwok Piu [2015] 2 HKC 115, at §6, where Lam VP (as he then was) said:-

“6. Re Lee Shuk Yee [2005] 4 HKC 318 (affirmed on appeal in [2006] 3 HKC 396) stands as authority for the proposition that irrespective of the question of indemnity, the costs order should be made against the Plaintiff personally. In other words, even if there were to be an indemnity, the Plaintiff bears the risk of the estate not having enough assets to pay for such costs liability.”

73.  I am not aware that the Plaintiff has applied for a Beddoe order, although this in itself is not fatal to the Plaintiff’s seeking to be indemnified after trial. Notwithstanding Order 62, rule 6 of the Rules of the District Court, whether or not the Plaintiff is now entitled to an order that his costs be indemnified by the Deceased’s estate would require the court to consider various matters, including whether the costs were properly incurred and whether leave would have been granted if a notional Beddoe application had been made: see To Pui Kui v Ng Kwok Piu [2015] 2 HKC 115, at §7; and Chan Gordon v Lee Wai Hing (No 2) [2011] 2 HKLRD 1029. This determination requires the court to consider a host of relevant factors, including all of the matters that would have been relevant to a notional Beddoe application had one been made.

74.  In the absence of a proper application, I am clearly not in a position to make that determination. I leave the matter to the Plaintiff, if so advised, to take out a proper application in this regard to vary the costs order nisi at paragraph 70 above.

75.  Finally, it remains for me to thank counsel for their assistance rendered to the court.