LUI, KA LING LOUISA, the co-administratrix of the estate of LUI, WING FAI, deceased AND OTHERS v. LUI, YUNG HING JACKSON, the co-administrator of the estate of LUI, WING FAI, deceased

HCMP 2344/2024

[2026] HKCFI 518

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2344 OF 2024

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BETWEEN

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JUDGMENT

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1.   Introduction

1.1  The 1^st, 2^nd and 3^rd Plaintiffs (respectively “Louisa”, “Mother” and “Jimmy”) commenced these proceedings by an originating summons (“OS”) against the Defendant (“Jackson”). These proceedings are concerned with the Plaintiffs’ complaints against Jackson in respect of the administration of the estate (“Estate”) of Mr Lui Wing Fai, deceased (“Deceased”).

1.2  The Deceased married Mother on 21 December 1965 in Hong Kong. They have 3 children, namely (in the order of birth) Jackson, Jimmy and Louisa. The Deceased died intestate on 4 September 2019. On 13 August 2020, Letters of Administration were granted to Jackson and Louisa as co-administrators of the Estate of the Deceased.

1.3  By the OS, the Plaintiffs seek a number of reliefs against Jackson, including (1) an account and (2) an order for distribution. As regards the latter, OS §3 seeks an order “directing the Defendant to distribute the Estate by a date that the Honourable Court deems fit.”

1.4  The OS was first heard by DHCJ MK Liu on 28 January 2025, at which the learned Judge made, inter alia, the following orders (“28/1/25 Order”):

(1) Jackson do provide an account within 28 days in the manner prescribed by 28/1/25 Order §1;

(2) An evidential timetable was directed for the parties to file and serve evidence in respect of OS §3 and on the issue of costs (28/1/25 Order §§4-6);

(3) OS §3 and the issue of costs of the OS be adjourned for substantive argument on a date to be fixed with 3 hours reserved (28/1/25 Order §7).

1.5  The substantive hearing directed by 28/1/25 Order §7 came before me on 24 April 2025 (“24/4/25 Hearing”), at which:

(1) I made an order that Jackson was to make an interim distribution to Mother in the sum of HK$5,000,000 on or before 29 May 2025 (“Interim Distribution”) and gave written reasons on 14 July 2025 (“Reasons for Decision”)[1];

(2) Having considered the evidence and the submissions, I further adjourned the hearing of OS §3 and the issue of costs, on the basis that the contested issue of whether, as contended by Jackson, Jimmy had disclaimed his entitlement to the Estate (“Disclaimer Issue”) could not be resolved on affirmation evidence and gave directions for cross-examination of Jimmy and Jackson to take place at the adjourned hearing.

1.6  The adjourned hearing took place before me on 26 June (for the taking of evidence) and 28 July 2025 (for closing). As in the case at the 24/4/25 Hearing, the Plaintiffs were represented by Mr Tommy Cheung and Jackson by Mr Billy Poon.

1.7  This is my judgment on the Disclaimer Issue and costs of the OS. As will be seen below, were the Disclaimer Issue determined in favour of the Plaintiffs, the parties have been able to agree (substantially) on the terms of the orders to be made.

2.   Background

2.1  In this section, I will set out the background matters largely chronologically. Unless otherwise stated, the matters set out in this section are largely not disputed.

2.2  In 1987, the Deceased and his two brothers (Lui Wing Tung (“Uncle Tung”) and Lui Wing Shuen) incorporated a company called Manty International Limited (“Manty”). The 3 brothers were directors and equal shareholders of Manty.

2.3  On 10 November 1989:

(1) Manty became the owner of a property known as Apartment E on 34/F of Tower II, Park Towers, No 1 King’s Road, Hong Kong (“Unit 34E”);

(2) The Deceased became the owner of an adjacent unit (“Unit 34F”).

2.4  After Unit 34F was acquired, it was occupied by the Deceased and his family. Louisa moved out in 1993, Jimmy emigrated to Canada in 1995 and the Defendant moved out in 2016. After the siblings moved out, Mother has continued to reside at Unit 34F together with Jackson’s children, Lui Shum Yeung Jackie (“Jackie”) and Lui Ka Yan Jacqueline (“Jacqueline”).

2.5  After Jimmy emigrated to Canada, he seldom returned to Hong Kong.

2.6  Unit 34E on the other hand was occupied by the Deceased’s father until he passed away. In 2008 or 2009, at the invitation of the Deceased, Louisa and her family moved into Unit 34E.

2.7  In 1998, Jackson was appointed a director of Manty. It is Jackson’s evidence that, apart from holding Unit 34F, Manty has since 2003 become a dormant company.

2.8  As noted above, the Deceased passed away on 4 September 2019. Jimmy returned to Hong Kong but unfortunately was unable to arrive in time before the Deceased’s demise.

2.9  It is not disputed that the Plaintiffs, Jackson and Jacqueline met at the Starbucks in Pamela Youde Nethersole Eastern Hospital on 5 September 2019 (“Starbucks Meeting”). Whilst the existence of the Starbucks Meeting is common ground, what was said or discussed at the meeting is hotly disputed. It is Jackson’s case that, at the Starbucks Meeting, Jimmy disclaimed his entitlements to the Deceased’s estate (“Alleged Disclaimer”). At §22 of Jackson’s 1^st Affirmation (“Jackson 1^st”)[2], he said as follows:

“[Jimmy] flied back from Canada to Hong Kong due to our father’s poor health condition. [At the Starbucks Meeting, Jimmy] expressly told everyone that as he had never taken care of our parents, he disclaimed all his entitlements in our father’s estate and acknowledge that the estate should be used for the livelihood of [Mother]. [Jimmy] flied back to Canada shortly and had not enquired about the grant or estate thereafter. There is now produced and shown to me an exhibit marked “LYHJ-6” a copy of the photograph taken on that occasion. There is now produced and shown to me an exhibit marked “LYHJ-7” a copy of WhatsApp messages.” (emphasis added)

2.10  “LYHJ-7” exhibits the Whatsapp messages exchanged between Jackson, Mother, Jackie, and Jackson’s wife (“Suki”) between 19 to 25 August 2021. Since June 2021, disputes had already arisen between Jackson and Louisa. This is borne out by:

(1) LYHJ-7 where Jackson requested Jackie to obtain various information from Louisa (timestamp 8/19/21 23:24);

(2) LYHJ-8 which exhibits the Whatsapp messages exchanged between Louisa, Mother, Jackson and Suki from 11 August 2020 to 16 June 2021 during which they discussed the sale of both Unit 34E and Unit 34F. No consensus was reached and Louisa left the chat group on 16 June 2021.

2.11  Returning to the chronology, Jimmy left Hong Kong and returned to Canada in early October 2019.

2.12  On 20 June 2021, Manty entered into a provisional sale and purchase agreement for sale of Unit 34E at the price of HK$23,500,000. The sale and purchase of Unit 34E was eventually completed on 20 August 2021.

2.13  Following the completion of the sale of Unit 34E, Jackson provided a breakdown of what he considered to be the beneficiaries’ entitlements to (1) net proceeds from the sale of Unit 34E and (2) debts due from Manty to the Deceased. Jackson did not include Jimmy in his calculation on the basis of the Alleged Disclaimer. According to Jackson’s calculation sent by Whatsapp on 24 August 2021, the entitlements were (1) Mother: HK$5,774,625, (2) Jackson: HK$2,887,312.50 and (3) Louisa: HK$2,882,312.50[3] (“1^st Calculation”).

2.14  Following the provision of the 1^st Calculation, on 26 August 2021, Jackson caused:

(1) HK$774,625 to be paid to Mother, leaving a round sum of HK$5,000,000;

(2) HK$3,082,312.50 to be paid to Louisa.

2.15  In a Whatsapp message sent on 1 September 2021, the 1^st Calculation was revised to as follows (“2^nd Calculation”): (1) Mother: HK$7,023,794.57, (2) Jackson: HK$4,827,002.075[4], (3) Louisa: HK$3,711,897.285[5].

2.16  Following the provision of the 2^nd Calculation, on 2 September 2021, Jackson caused a further sum of HK$624,584.79 to be paid to Louisa (together with the payment made on 26 August 2021, totaling HK$3,706,897.29). As with the 1^st Calculation, HK$5,000 has been withheld for various expenses, such as utilities, rates and management fees[6].

2.17  No further distribution was made to Mother and no distribution was ever made to Jimmy.

2.18  Shortly after the 2^nd Calculation, on 6 September 2021, Jackson was added to a Whatsapp group by Jimmy which originally included Jimmy, Louisa and Mother (LYHJ-12). Jackson left the chat group 2 days later on 8 September 2021, but within that short period, it is plain that disputes had arisen on how Jackson had distributed the proceeds according to the 2^nd Calculation.

2.19  Apart from an episode in May 2022, where Louisa, according to Jackson, had allegedly through solicitors requested Jackson to step down as administrator (which Louisa disputes), it appears that the disputes were left in abeyance for a period of time, during which Jackson made regular monthly payments to Mother. Jimmy returned to Hong Kong in June 2023.

2.20  On the evidence before me, on 21 March 2024, solicitors for Louisa (“LLL”) sent a letter to Jackson complaining that Jackson had since October 2023 stopped making monthly payments to Mother and that Jackson had defaulted in discharging his duty as a co-administrator of the Deceased’s estate. Correspondence was exchanged between LLL and solicitors for Jackson (“RCKYC”) until 28 August 2024. These proceedings were commenced on 11 November 2024.

2.21  As recorded at Reasons for Decision §2.9, Mr Poon at the 24/4/25 Hearing confirmed that Mother was at least entitled to HK$5,000,000 and that that sum could be paid by Jackson within 35 days of 24 April 2025 subject to Jackson’s argument on liability. For the reasons set out in the Reasons for Decision, I determined the issue of liability against Jackson. As at the hearing before me, I was told that Jackson had not complied with the order for Interim Distribution but instead had appealed against the order for Interim Distribution. As I understand the position, Jackson had not applied for a stay of the order for Interim Distribution.

3.   The issues for determination

3.1  On the evidence, the Plaintiffs challenge the sufficiency of the accounts provided by Jackson pursuant to the 28/1/25 Order. However, the Plaintiffs have confirmed that they only seek a more curtailed scope of relief. In essence, given and taking into account the order for Interim Distribution made in favour of Mother, were the Disclaimer Issue determined against Jackson, the Plaintiffs are content with seeking only an order for further interim distribution in the sum of HK$1,500,000 to Mother and HK$2,000,000 to Jimmy whilst Louisa and Jackson should be ordered to each repay a sum from the 2^nd Calculation back to the Estate on the basis that their entitlements under the 2^nd Calculation did not take into account Jimmy’s entitlement (“Overpayments”).

3.2  Mr Poon in closing confirmed that were the Disclaimer Issue determined against Jackson, there is no further quarrel with the calculations proposed by the Plaintiffs. However, there was some disagreement on how the Overpayments should be effected and kept. Subsequent to the hearing on 28 July 2025, by LLL’s letter dated 26 August 2025, I was informed that the parties have agreed that the Overpayments, if required to be repaid, can be repaid into the joint bank accounts of the Estate.

3.3  Save as aforesaid, the Plaintiffs seek leave to withdraw the remaining parts of the OS with no order as to costs but seek an order that the costs of and occasioned by the OS be to the Plaintiffs and be borne by the Defendant personally.

3.4  The administration of the Estate is yet to be completed, not least because Mother is in the meantime continuing to reside in Unit 34F. As Mr Cheung has emphasized, the position adopted by the Plaintiffs is only in respect of interim distribution and costs and without prejudice to their rights to dispute the Defendant’s administration of the estate of the Deceased. The Plaintiffs hope that the parties can eventually resolve their disputes out of court.

3.5  I am therefore only required to determine the Disclaimer Issue and the issue of costs in this judgment.

3.6  The rival contentions between the parties on the Disclaimer Issue are as follows.

3.7  On Jackson’s part, I have already set out his case at §2.9 above. It bears emphasis that the Alleged Disclaimer is said to have been made (1) only at the Starbucks Meeting and not at any other time, (2) unconditionally and (3) in respect of Jimmy’s entire entitlement to the Estate of the Deceased.

3.8  The case mounted by Mr Cheung for the Plaintiffs in closing involves a number of different layers.

3.9  First, on the facts, the Plaintiffs all confirm that Jimmy did not make the Alleged Disclaimer at the Starbucks Meeting and it is the Plaintiffs’ primary case that Jackson is unable to prove the Alleged Disclaimer. Instead, the counter-factual advanced by Jimmy is that (Jimmy 1^st §§8-9), on 6 September 2019, he made the following proposals (“Jimmy’s Proposals”) to Louisa and Jackson in Unit 34E:

“At that time, we reached a consensus on selling [Unit 34E and Unit 34F], and I understood that [Mother] would need to live elsewhere. Consequently, I anticipated receiving my shares in the net sale proceeds from both the 34E and 34F Properties. It was in this context that I proposed setting aside my share in the net sale proceeds from the 34E Property (“Net Sale Proceeds”) for the benefit of [Mother]. In other words, there was no waiver or disclaimer; rather, I would be entitled to receive the entirety of the Net Sale Proceeds, but out of my entitlement, I would set aside a part for the benefit of [Mother]. I considered letting my share in the Net Sale Proceeds be safe kept by one of my siblings… who would live and take care of [Mother], as this caregiver would be in the best position to use my share to contribute to the future living expenses of [Mother].” (emphasis added)

3.10  As it is common ground that (1) neither Louisa nor Jackson has resided with Mother after the sale of Unit 34E and (2) Unit 34F has remained unsold, Mr Cheung points out that the conditions for Jimmy’s entitlements to his share of the sale proceeds from the sale of Unit 34E to be “set aside” and “safe kept” by Louisa or Jackson have not been satisfied.

3.11  Secondly, even if the Alleged Disclaimer was made, Jimmy was entitled to retract it.

3.12  It may be seen from the above that the determination of the Disclaimer Issue involves primarily a fact-finding exercise and an assessment of credibility. In this regard, the credibility of a witness should be assessed by reference to contemporaneous documentation where it exists, as well as inherent probabilities having regard to all the facts that are known. In the present case, the Alleged Disclaimer is said to have been made in May 2019 and there is no contemporaneous evidence to support the existence of the Alleged Disclaimer. The relevant Whatsapp messages placed in evidence were exchanged from August 2021, more than 2 years after the making of the Alleged Disclaimer. In such circumstances, it seems to me that the following principles are especially relevant.

3.13  As observed by G Lam J (as he then was) in Au Yeung Pui Chun v Cheng Wing Sang [2021] HKCFI 463, human memory of what was said in a conversation is fallible for a variety of reasons, especially when disputes and litigation have intervened. The learned Judge then set out at §25 what he considered to be the proper approach, which I respectfully adopt:

“[23] The contentious allegations and the seminal events go back a very long time indeed. The initial purchase of the Property took place over 45 years ago; the assignment to the defendant, Lydia and Queennie 21 years ago; and the October 2008 Agreement 12 years ago. In the light of the long lapse of time, I have had regard to the oft‑cited observations of Leggett J in Gestmin SGPS SA v Credit Suisse (UK) Ltd & another [2013] EWHC 3560 (Comm) at §§15-22, which I shall not set out here, though I bear in mind that they do not laying down any general principle for the assessment of evidence: see Kogan v Martin & others [2019] EWCA Civ 1645, §88. In a similar vein, in Watson v Foxman & others (1995) 49 NSWLR 315 at 319, McClelland CJ in Eq said:

‘Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self‑interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.’

Although his Honour was addressing evidence of the content of conversations, his observations seem to me to be of general application.

[24] I have also borne in mind the guidance given by Stock JA in Esquire (Electronics) Ltd v Hong Kong and Shanghai Banking Corporation Ltd [2007] 3 HKLRD 439 at §135:

‘ … I do not say that an assessment of the character of a witness plays no part in the fact finding process, but it is a task that may sometimes be elusive even to the best trained eye and ear, and I would venture to suggest that the truth, in so far as one is able to reach it or, as is sometimes the case, to reach a version of it that is more likely to be correct than not, can best be tested by reference to contemporaneous documentation where it exists, or to its absence where one would expect it to have been created, as well as to inherent probabilities (though bearing in mind that there may be occasions where the truth may run against that particular grain) having regard to all the facts that are known. … This is not to say that the documentation should have been treated as if it stood on its own, not to be explained, contradicted or supported by oral testimony. It is however to say that in this case the approach adopted to assessment of the facts placed far too much emphasis on character impression and too little upon what was suggested by the documentation and by the inherent probabilities in their historical context. That documentation, as well as conflicts within the evidence, inherent probabilities, and a study of how matters were originally pleaded and asserted in witness statements — these are the factors which in a trial such as this, so long removed from the time of the events in question, were likely to be of particular use in assessing the facts …’

[25] The only safe course in a case such as the present, it seems to me, is to steer oneself with primary reference to the objective surrounding facts, such documentation as there is, and the inherent probabilities as they appear to the court taking into account all the circumstances including the motivations and characters of the people involved and the relationship between them.” (emphasis added)

4.   The Disclaimer Issue

4.1  In this section, I set out findings on the factual disputes in relation of the Disclaimer Issue.

(i) The documentary evidence

4.2  There is no dispute that neither the Alleged Disclaimer nor Jimmy’s Proposals has not been contemporaneusly recorded in writing. As such, both parties have referred to the Whatsapp messages adduced in evidence. In addition to LYHJ-7, LYHJ-8 and LYHJ-12 (§§2.10 and 2.18 above):

(1) LYHJ-10 are the Whatsapp messages exchanged between Jackson, Suki and Mother from 30 August to 1 September 2021 in which Jackson and Suki explained the reason for revising the 1^st Calculation and provided the 2^nd Calculation;

(2) LYHJ-11 are the Whatsapp messages exchanged between Jackson, Mother and Suki from 25 to 28 August 2021 in which the 1^st Calculation was provided.

4.3  I first set out the relevant parts of the Whatsapp messages from 19 August to 1 September 2021 (ie LYHJ-7, LYHJ-11 and LYHJ-10).

(ii) LYHJ-7, LYHJ-11 and LYHJ-10: 19 August to 1 September 2021

4.4  Although exhibited as 3 separate exhibits, it appears that that the Whastapp messages exhibited in LYHJ-11 and LYGH-10 are continuation of those exhibited in LYHJ-7. In any event, what it plain is that neither Louisa nor Jimmy had any involvement in these Whatsapp exchanges.

4.5  On 24 August 2021, after Jackson provided the 1^st Calculation which excluded Jimmy, Mother’s immediate reaction was to raise a query as to why Jimmy was excluded（你沒有留給志明 [Jimmy] 嗎?）. Jackson then replied by (1) first reminding Mother of the Alleged Disclaimer（你忘記了嗎？志明上次在香港的時候，他自己跟我們大家說清楚了，他說他沒有照顧過爸爸媽媽，爸爸的遺產，他不要，給媽媽做養老金）and (2) pointing out that Mother had already made a will by which her estate would be divided equally between the siblings （你已經立了平安紙，你的遺產平分三份，我，志明，嘉玲 [Louisa] ）.

4.6  On 26 August 2021, Mother again questioned Jackson on how Jimmy would feel when he found out that Unit 34E had been sold and was excluded from receiving any proceeds. Mother then suggested to Jackson that he and Louisa should each give HK$500,000 to Jimmy（如果志明知道已賣了E座會怎麼樣感受，他沒得到一分錢，你和嘉玲一人分50萬給他好讓他輕鬆一點，都是爸爸的兒子麻）.

4.7  Jackson then gave a lengthy reply inter alia as follows:

“志明的感受就需理會，有誰人理會過 Jackson 夫妻的感受？… 黑暴後，我公司沒有生意，裁員，減人工，我和太太經濟壓力好大，但從沒有人關心，幫忙或理會我們感受？… 志明在加拿大有經濟困難，我匯了錢過去幫忙他，我自己有經濟困難，有誰人幫助我？…

嘉玲白住E室10多年，有目的陪伴父母，志明移民遠走加拿大多年 …

我自身難保，我管好F室運作，管好媽咪晚年養老，管好自己身體，管好兒女做個有用的人，管好自己養老，別人的事我管不了，我無能為力

志明遠走加拿大移民，原來他都是爸爸的兒子… 但他從沒有照顧父母一分錢

你自己立了平安紙寫得清清楚楚，你走後平分三份，我，志明，嘉玲。志明有一份分，他不是沒有份

我沒能力，請放過我，事情告一段落，不要沒完沒了下去…”

4.8  In gist, Jackson was complaining that he himself was under financial pressure and he lamented the fact that Louisa had the luxury of living in Flat 34E rent free and Jimmy had emigrated to Canada. He further pointed out to Mother that, by reason of her will, it was not the case that Jimmy was left with nothing.

4.9  On 1 September 2021, by reference to the 2^nd Calculation, Suki suggested to Mother that HK$1,000,000 could be sent to Jimmy from Mother’s entitlement, but that sum should be deducted from Jimmy’s entitlement under Mother’s will（重新計算分配，你大約分到7百多萬，今日我哋先有能力幫助志明解困難 用你養老金先發放1百萬給志明解困 但大家要先說明白和清楚，養老錢是媽咪在生養老用的，現在媽咪先發放給志明解困難 日後三兄妹繼承了媽咪的遺產後，志明是要扣回1,000,000的，大家有沒有問題或意見？）.

(iii) LYHJ-12

4.10  As stated at §2.18 above, on 6 September 2021, Jackson was added to a chat group which originally consisted of only Jimmy, Louisa, and Mother. According to Jimmy’s evidence in the witness box, before Jackson was added to the chat group, he had discussed many issues with Louisa and Mother, including why Unit 34E was sold and why he was excluded.

4.11    Immediately after Jackson was added, Mother asked Jackson whether he had remitted HK$1,000,000 to Jimmy (Jackson later confirmed that he did not). Jimmy also asked Mother on what basis the 2^nd Calculation was calculated. Pertinently, Jimmy also asked whether Unit 34F had been sold. Jimmy then said:

“So my sharing from the Unit E should be given to the person who is taking care of mother and used on her. Now it seems that my share is just automatic taken from Jackson and Louisa!! Why ???

Sorry this not original of what I said regarding my intention of giving up my share for!

…我所講的是放棄我的那份，只給屬於同住在一起，真正照顧媽媽的人。這筆錢將只可用於她和她的開支。這是我最初的想法和我所說的。現在你給我的breakdown自動分給大哥和妹妹，這不是我說的。”

4.12  Jackson’s response was that (1) Mother would continue to live with Jackie and Jacqueline in Unit 34F, (2) a maid would eventually be hired to accompany and take care of Mother and (3) he would take care of Mother:

“志明 媽咪在F室養老，Jacky，[Jacqueline] 同住不變，日後會有工人陪伴和照顧，是我take care媽咪的下半生的生活”

4.13  Jimmy then said his entitlements which were distributed to Louisa could only be used for Mother’s benefit, and if that be the case, he would not ask for the return of his entitlements:

“Okay那 Louisa拿了我那份也只可用在母親身上! 如果是這樣我就不會問回我的份。這是我原本的心意，請你們不要[亡] (sic) 記及原諒我的願望! ”

4.14  Mother then provided the 2^nd Calculation on the chat group.

4.15  Jimmy then said he understood the situation and the portion that he gave up had been sorted, as long as the money was only used for Mother’s benefit. He further apologized to Jackson for forcing Jackson to make his position clear in the chat group as it was his wish to avoid misunderstanding:

“已經全部了解了！我放棄的份額已經解決，只要你們不要忘記只能花在母親身上就好了！

Oh Jackson, 請原諒我強迫你在群聊中說話是因為我不想有任何誤會並有協議，希望你理解！”

4.16  Jimmy then changed the topic. He said that HK$1,000,000 was not sufficient for making a down payment for a landed property in Vancouver, and asked if it was possible that HK$2 million could be remitted to him and such sum was to be deducted in the future:

“我需要和大家一起討論。我現在的問題是我沒有任何工作或收入，所以我沒有資格申請抵押貸款…所以港元100萬作為定金不足以讓我們用它作為首付…我想如果可能的話，滙預付200萬港元，然後在將來扣除？”

4.17  Somewhat abruptly, Jackson then said that he would sever ties with Jimmy and Louisa. In particular, he complained that Louisa and her husband were taking advantage of the situation, ungrateful and greedy:

“志明 爸爸去世後，家中發生很多大小事情，我長話短說，今日兄妹情斷. 嘉玲夫婦白住E室拾多年，不懂感恩還要浪子野心 夫妻相陪父母多年有目的，嘉玲用哄騙，paul [Louisa’s husband]用兇，不容許媽咪在F室養老，迫媽咪出售埋F室，日後要媽咪同他夫妻一起住，目的要分爸爸一間柏景台走，有圖有真相。有證人，事情暫告段落，媽咪在F室養老…”

4.18  Thereafter, there were heated exchanges between Louisa, Mother and Jackson on a number of topics. Due to the time difference, Jimmy was not involved in the heated exchanges. When he read the heated exchanges, he expressed his view that he thought it was unfair for Jackson to accuse Louisa by querying whether Jackson and his children were living in Unit 34F without having to pay rent. Jimmy further stated that the Deceased would not be concerned whether his children were paying rent or not.

4.19  Mother then pointed out that the initial intention was for Unit 34E and Unit 34F to be sold together as it would fetch a higher price:

“…只是開始時大家認為一齊賣價錢會高一點…”

4.20  In so far as relevant, Jimmy later stated his position in clear terms, ie Jimmy’s Proposal:

“我是說自己不分E室一份給媽媽做養老，而當初我們大家都在想F室也一起賣，因為兩個單元都太久了，事情會不斷崩潰，最終會沒有錢大修理。搬到更新和負擔得起的住房，這樣每個人都可以安定下來，更容易照顧母親。但我不知道在那時 Jackie. 媽咪和Jackson 改變了主意而不賣F室所以變成我要拿200萬先用和變了我沒有錢給媽咪做養老金生活費了！…”

4.21  Mother also stated that the original intention was for the two units to be sold together:

“其實一開始大家是一致的兩單位一齊賣，時間越來越接近，就覺得可惜才會這麼亂…”

4.22  Jimmy then reiterated his position and further stated that he did not even know that a decision was made to sell Unit 34E:

“雖然我說不要我E室的份，但連E室賣了我都不知道真係不知所謂當我死X了！”

4.23  Mr Poon relies heavily on what was said by Mother subsequently, namely that Jimmy had said that he would not take a single cent as he did not take care of the Deceased and Mother:

“Jackson 我想勸你還是公平一點，爸爸如果再處理遺產的事他一定是公平公正的雖然志明說她沒有照顧父母為由就不取分豪 [sic] 但爸爸跟我講的不是這樣子的，爸爸一直是說平均分給三個兒女…”

4.24  Jimmy thanked Mother’s observation. He reiterated that the original plan had changed with consulting him and further stated that the HK$2 million would be deducted from his further entitlements. He also formally notified Jackson and Louisa to transfer his entitlements to Mother:

“謝謝媽媽的觀點！我不是在這裏試圖將我的份額歸還給我自己而因為計劃在沒有諮詢我的情況下已經改變了，因此我希望我的錢放在正確的地方。我需要提前提取的200萬也將會從我未來的遺產份額中扣除…

我越想越生氣！

… 我當初說過我放棄E室份額是給予和媽媽住在一起的人作為我給媽媽照顧他的錢，但Jackson或Louisa 最終都沒有資格獲得我的錢，因為都沒有人正式每日和他注在一起！我應分的錢只可以給予媽媽自己保管了！就是這樣哥妹在不合格及沒有我的同意下就吞下我的錢！

我們大家當初的口頭協議是E&F室一起賣的，但當改變了注意的時候也沒有一人正式通知過我 Jimmy。任何跟 [sic] 改或發生的事情都我完全失去了我應有的合法涉及和權利！

我在這裏正式通知Jackson和Louisa趕快每人轉回 $1,170,632.43 直接給母親銀行帳戶。母親節應該收回合共$2,341,264.86的Jimmy E室分份。”

4.25  Jackson later left the chat group without responding.

(iv) Factual findings

4.26  In closing, Mr Poon invited the court to find that Jimmy made the Disputed Disclaimer at the Starbucks Meeting by reference to the following matters:

(1) Louisa and Mother never disputed the 1^st and 2^nd Calculations which excluded Jimmy and the only inference to be drawn is that Louisa and Mother were all aware of that Jimmy made the Disputed Disclaimer at the Starbucks Meeting;

(2) Jimmy never made inquiries about the Estate until after the Unit 34E had been sold;

(3) That the Alleged Disclaimer was made is supported by the Whatsapp messages in which (a) Jimmy used the phrase “give up”（放棄）on many occasions, (b) Louisa and Mother never stated that Jimmy was entitled to distribution, (c) it was plain that Jimmy’s “ultimate goal” was to obtain HK$2 million;

(4) In so far as Jimmy made reference to the fact that the HK$2 million was to be deducted from his future entitlements under Mother’s will.

4.27  I am unable to accept Mr Poon’s submissions. For the following reasons, I find that Jimmy did not make the Alleged Disclaimer at the Starbucks Meeting.

4.28  First, as pointed out by Mr Cheung, Jackson’s case is based on bare assertions. As noted at §2.9 above, his affirmation relies only on the photograph exhibited as LYHJ-6 and the Whastapp exchanges exhibited as LYHJ-7. The photograph only proves the existence of the Starbucks Meeting and has no probative value in relation to what was said at the Starbucks Meeting. The Whatsapp exchanges exhibited as LYHJ-7 were exchanged between Jackson and Mother without Jimmy’s involvement and at most show Jackson’s subjective view of the relevant events. In any event, even within LYHJ-7, Mother’s immediate reaction (§§4.5 and 4.6 above) was to query why Jimmy was excluded and question how Jimmy would feel when he found out that Unit 34E had been sold which reaction was entirely inconsistent with the Alleged Disclaimer having been made.

4.29  Secondly, Jackson’s evidence on the Alleged Disclaimer is not only scant but also inherently improbable. On Jackson’s evidence, Jimmy disclaimed his entire entitlements to the Estate of the Deceased on the basis that Jimmy acknowledged that the Estate of the Deceased should be used for the livelihood of Mother. Bearing in mind that the Starbucks Meeting took place on the day following the Deceased’s demise, Jackson’s evidence does not show that Jimmy was aware of the size of his entitlements or that there was any discussion on how much was required for the livelihood of Mother. The evidence before me does not paint a picture that Jimmy is affluent and it is inherently improbable that he would without obtaining any details of his entitlements or on Mother’s needs hastily made the Alleged Disclaimer on the very day following the Deceased’s demise (see further §4.33 belwow).

4.30  Thirdly, it is plain that the Whatsapp messages cited above flatly contradict the existence of the Alleged Disclaimer. I agree with Mr Cheung that Mr Poon’s reliance on the phrase “give up”（放棄）used by Jimmy is unfair, as it is plain that any “giving up” was conditional and only in respect of the sale proceeds of Unit 34E.

4.31  Importantly, as accepted by Jackson in cross-examination, he never once confronted Jimmy in the Whatsapp exchanges exhibited as LYHJ-12 that Jimmy made the Alleged Disclaimer.

4.32  Fourthly, it is clear from Jackson’s own messages (§§4.7 above) that he was facing financial pressure at the material time and he formed the view that Jimmy did not contribute sufficiently because of his emigration to Canada.

4.33  Fifthly, the evidence shows that the initial intention was to sell Units 34E and 34F together (§§4.19 and 4.21 above). It lends credence to the existence of Jimmy’s Proposals. As a matter of inherent probabilities, it is more likely than not that Jimmy would have wished to retain some distribution for himself whilst at the same time motivated by his filial duties to offer to set aside some of his entitlements for Mother’s benefit. I have not lost sight of Mr Poon’s submission that the evidence on the timing of the making of Jimmy’s Proposals was not entirely consistent, but I do not regard the inconsistency (2 weeks apart) to be a weighty factor.

4.34  Sixthly, as regards Mr Poon’s reliance on the matter stated at §4.23, it seems to me that the Whatsapp messages should be read wholistically and it would be a blinkered view to make conclusions based on snippets of exchanges exchanged between family members.

4.35  Seventhly, in a similar vein, I do not accept Mr Poon’s submission set out at §4.26(4) above. Mr Poon is driven to make the submission that the HK$ 2 million requested by Jimmy was to be deducted from Jimmy’s entitlement under Mother’s will because the Alleged Disclaimer involves a disclaimer of Jimmy’s entire entitlement of the Estate. It seems to me clear that Jimmy’s references to the deduction HK$ 2 million in the future (§§4.16 and 4.24 above), read in their proper context, are clearly references to a deduction from his entitlements to the Estate (and specifically in respect of the entitlements from the unsold Unit 34F), not from his entitlement under the Mother’s will.

4.36  For the above reasons, I prefer Jimmy’s evidence over Jackson’s. I especially place weight on the fact that Jackson throughout did not confront Jimmy on the Alleged Disclaimer, when Jimmy had on multiple occasions in LYHJ-12 asserted a contrary position. I find as a fact that Jimmy did not make the Alleged Disclaimer. Conversely, I find that Jimmy’s Proposals were made and additionally that the conditions stipulated therein have not been met.

4.37  As I am able to reach the above findings on the existing evidence, I do not need to resort to Mr Cheung’s invitation to draw adverse inference against Jackson for his failure to call Jacqueline.

4.38  Given the above factual findings, it is also not necessary for me to deal with Mr Cheung’s alternative position, namely Jimmy is entitled to retract the Alleged Disclaimer even if it had been made.

5.   Analysis

5.1  There is no real dispute on the legal principles on disclaimer set out in Wong Suet Foon Shirly v Collector of Stamp Revenue [2021] 3 HKLRD 862 §§36 and 40, namely (1) a man cannot be forced to take an estate against his will and (2) if a person refuses to accept a slice of the estate of the deceased, then it still remains part of the estate of the deceased.

5.2  Had the Alleged Disclaimer been made, Jackson would have been justified to the manner of distribution in accordance with the 2^nd Calculation. However, I have found against the existence of the Alleged Disclaimer.

5.3  As noted above, in the event that the Disclaimer Issue is determined against Jackson (which it is), Mr Poon in closing agreed that the following orders proposed by the Plaintiffs should be made. Their effect is for the Overpayments to be repaid back to the Estate, and upon such repayments, for further interim distribution to Mother and Jimmy:

(1) Within 56 days hereof, the Defendant do make interim distribution of the Estate to the 2^nd and 3^rd Plaintiffs based on paragraphs 28 and 29 of the Affirmation of Lui Yung Hing Jackson dated 24 February 2025 in the following amounts, taking into account interim distributions previously made and ordered on 24 April 2025 to be made:

(a) The 2^nd Plaintiff: HK$1,500,000;

(b) The 3^rd Plaintiff: HK$2,000,000;

(2) For the purpose of carrying out into effect paragraph 1 above, within 28 days from the date hereof:

(a) The 1^st Plaintiff do return to the Estate a sum of HK$1,506,897.29 by depositing the same into the Joint Accounts of the Estate (as defined at paragraph 15 of the Affirmation of Lui Yung Hing Jackson dated 24 February 2025) for the purpose of compliance with this order;

(b) The Defendant do return to the Estate a sum of HK$1,506,897.29 by depositing the same into the Joint Accounts of the Estate (as defined at paragraph 15 of the Affirmation of Lui Yung Hing Jackson dated 24 February 2025) for the purpose of compliance with this order;

(3) The Plaintiffs do have leave to withdraw the remaining parts of the Originating Summons dated 11 November 2024;

(4) There be liberty to apply in relation to paragraphs 1 and 2 of this order.

6.   Costs

6.1  Mr Poon relies on the principles summarized at Tan Cheng Gay & Ors v Tan Choo Suan & Anor, HCMP 246 of 2013, 16 December 2013 §3:

(1) Where the action is reasonably brought by the representative for the guidance of the court, the costs of all parties will usually be treated as necessarily incurred for the benefit of the estate and an order made for payment out of it;

(2) Where such an action is reasonably commenced by a person other than the representative, a similar costs order will usually be made;

(3) Where the action seeks similar relief but is hostile, the usual approach to costs in hostile litigation apply.

6.2  At Tan Cheng Gay §9, the following observations are made:

“A case which falls clearly within the third category is where the whole of the trust fund has been distributed to the supposed beneficiary in reliance on some construction of the trust instrument, or view of the law, and another person claiming to be the true beneficiary brings proceedings against the recipient or the trustee in reliance on a rival construction, or rival view of the law. Here the general principles as to costs of hostile litigation apply between the claimant and the party against whom the claim is directed, and so the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, subject to the general qualifications which apply in ordinance hostile litigation.”

6.3  In respect of the relief for accounts, Mr Cheung relies on Mai Cuiting v Mak Chui Fong, HCMP 2619/2016, 4 August 2017 §§53-54 which stand for the proposition that if an administrator had defaulted in discharging his duties, the court may in appropriate circumstances hold that the administrator should be personally liable for the costs of the beneficiaries’ claim against him.

(i) Relief for accounts

6.4  The starting point is that by the 28/1/25 Order, DHCJ MK Liu ordered Jackson to provide by affidavit and supporting exhibits a true and perfect inventory and account of all his dealings, payments and/or distributions incidental to the administration of the Estate from the date of the Deceased’s death up to the date of the order (“Inventories”), and the Inventories shall:

(1) Show the opening balance (including capital assets) as at the date of death of the Deceased and closing balance as at the date of this Order;

(2) Give details of each of the movement of assets, incomes and expenditure of the Estate up to the date of this Order;

(3) Give details of the whereabouts of all properties (including cash) of the Estate; and

(4) Be supported by documentary evidence, including but without limitation to invoices, receipts, vouchers, bank statements, bank deposit slips, bank withdrawal slips, etc.

6.5  As submitted by Mr Cheung, the accounts provided by Jackson in purported compliance with the 28/1/25 Order are clearly deficient. At the very least, the 28/1/25 Order stipulates that the accounts should cover the period from the date of the Deceased’s death up to the date of the order. The accounts provided by Jackson in purported compliance of the order only covers the period from 8 September 2019 to 29 December 2021 (LYHJ-4). As accepted by Mr Poon, LYHJ-4 is the same set of accounts provided by Jackson prior to the commencement of the proceedings by RCKYC’s letter dated 9 April 2024 (“9/4/24 Letter”).

6.6  It bears emphasis that the 9/4/24 Letter was already referred to at Louisa 1^st filed in support of the OS. In making the 28/1/25 Order, DHCJ MK Liu must have been satisfied that LYHJ-4 was icient, and yet, the same set of accounts was put forward in purported compliance with the 28/1/25 Order.

6.7  I further observe that the accounts which Jackson has provided (prior to the commencement of these proceedings and in purported compliance with the 28/1/25 Order) only cover a period until 29 December 2021. On Jackson’s own evidence, he was facing financial pressure in 2021 (§4.7 above) and this can only exacerbate the Plaintiffs’ concern of lack of transparency. I accept Mr Cheung’s submission that Jackson has defaulted in discharging in discharging his duties.

(ii) Interim Distribution to Mother

6.8  For the reasons set out in the Reasons for Decision, I am of the view that the arguments which had to be dealt with at the 24/4/25 Hearing was clearly hostile in nature and I had determined the liability issue against Jackson.

(iii) The Disclaimer Issue

6.9  In my view, the Disclaimer Issue is also plainly hostile in nature and I have determined the issue against Jackson.

6.10  I am unable to accept Mr Poon’s submission that the parties’ costs should be paid out of the Estate and taxed on the common fund basis. Conversely, I accept Mr Cheung’s submissions that it is fair and just to order Jackson to personally bear the Plaintiff’s costs in respect of the above issues and that Jackson be disallowed from recovering such costs and his own costs from the assets of the Estate.

7.   Conclusion

7.1  For all the above reasons, I make the orders set out at §5.3 above.

7.2  As to costs, the costs orders proposed by the Plaintiff are as follows:

(1) Costs of and occasioned by the Originating Summons dated 11 November 2024 be to the Plaintiffs and be borne by the Defendant personally. The Defendant be disallowed from recovering such costs and his own costs from the assets of the Estate;

(2) The Plaintiffs do have leave to withdraw the remaining parts of the Originating Summons dated 11 November 2024 with no order as to costs.

7.3  In my view, given the decision set out above, the proposed cost orders may be put in more precise terms. I direct the parties to submit an agreed draft order (or their own version failing agreement) to reflect my decision set out at §§6.4 to 6.10 above within 7 days hereof for my approval.