KWOK LAI KWAN ROSENA v. KWOK BIU AND ANOTHER

HCA 1797/2016

[2022] HKCFI 2540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1797 OF 2016

______________

______________

_______________________

REASONS FOR JUDGMENT

_______________________

1.  On 11 August 2022, I granted Judgment ex tempore in favour of the plaintiff after trial and I now give my reasons.

Background

2.  This action was commenced by the plaintiff (“P”) to recover the ownership of the Property[1] which has been registered in the joint names of the 1^st defendant (“D1”) and the 2^nd defendant (“D2”). D1 is the father of P. D2 is the elder brother of P. P’s case is that:

(i)  At all material times, there was an agreement and/or understanding and/or common intention between P and Ds that Ds would be holding the Property on trust for P;

(ii)  alternatively, there is a resulting trust in favour of P who had solely provided all the monies involved in the acquisition of the Property;

(iii)  further or alternatively, Ds were estopped from denying P’s title and interest in the Property.

3.  The trial was originally fixed to be heard in April 2020. It was refixed due to issues regarding D1’s alleged mental incapacitation. After much delay, eventually the Court ordered the Official Solicitor act as guardian ad litem for D1. The trial was then refixed to be heard on 27 to 29 April 2022.

4.  On 12 April 2022, solicitors for the Official Solicitor (“Wat & Co”) informed P that D1 passed away on 6 April 2022.

5.  On 13 April 2022, Wat & Co informed P that the Official Solicitor has confirmed that they no longer act as D1’s guardian ad litem following D1’s demise. The Official Solicitor also indicated that it would not act for D1’s estate.

6.  Then, another daughter of D1, Madam Kwok Lai Ling (“KLL”), applied for Legal Aid with a view to seeking an order that she be appointed to act for the estate of D1. This triggered the statutory Legal Aid stay.

7.  The refixed trial date was again forced to be aborted and was adjourned to 11 and 12 August 2022. By the Order of DHCJ Winnie Tsui dated 29 April 2022, KLL was required to make her application for joinder to represent the estate of D1 or in any other capacity under Order 15 by 30 June 2022.

8.  KLL’s application for Legal Aid was refused on 4 May 2022. KLL has since made no joinder application.

9.  P issued a Summons dated 5 July 2022 returnable before me today, which is the re-fixed trial date. P applied for, inter alia, an order that these proceedings be continued as between P and D1 and in the absence of a person representing D1’s estate pursuant to Order 15 rules 7 and 15. I was satisfied that this Summons had been properly served, especially on D2 and KLL. Both of them chose to be absent today. There was no opposition to P’s application. Furthermore, I have considered the submissions and authorities relied on by Mr Yung (Counsel for P). I accepted the 5^th Affidavit of P who explained that there was no other suitable person that could represent the estate of D1. The trial dates, which are important milestone dates, had been twice adjourned. There is no reason why P should be allowed to be continually prejudiced. Accordingly, I granted orders in terms of the Summons.

10.  In the circumstances, the trial continued on 11 August 2022 in the absence of any person representing the estate of D1.

11.  As for D2, he has since 2017 failed and/or refused to participate in these proceedings. On 3 March 2017, D1 and D2 filed a Defence. By an order of Master Lai dated 7 September 2017, D2’s then solicitors, Chak & Associates, ceased to act for D2 in this action. D2 did not file a notice to act in person. Since then, D2 has not participated in the present proceedings and failed to file any documents in this action. Neither did D2 respond to P’s amendments and re-amendments to the Statement of Claim. By an order of Master A. Ho dated 14 September 2017, it was ordered that the Defence filed on 3 March 2017 do stand as the Defence of D2. An unless order was made by Master Ho dated 14 September 2017 requiring D2 to file his list of documents within the stipulated time. D2 did not file any list of documents nor adduced any documentary evidence. Accordingly, D2 is now debarred from so doing. Another unless order was made by Master S. Lo on 10 November 2017 requiring D2 to exchange his witness statement within the stipulated time. D2 did not file or exchanged any witness statement and is now debarred from so doing. Accordingly, D2 has wholly failed to adduce any evidence to substantiate his pleaded case.

12.  At the Pre-trial Review hearing on 8 March 2022, DHCJ Winnie Tsui made the following orders:-

(i)  The issue of whether the witness statements made by D1 be admitted into evidence without cross-examination be argued at trial; and

(ii)  Subject to the above and subject to the directions of the trial judge, all witness statements filed by the parties do stand as evidence-in-chief, provided that the witnesses are tendered for cross-examination.

13.  In support of D1’s case, D1 had previously filed witness statements. KLL had also filed witness statements in support of the case of D1. Since KLL failed to attend court today, her witness statements could not stand as evidence and should be removed from the trial bundle.

14.  As for the witness statements filed by D1, Mr Yung submitted that P’s primary stance was that they were inadmissible in the absence of a hearsay notice. However, Mr Yung fairly accepted that in the peculiar circumstances of this case, it was impossible to expect a hearsay notice to be filed since the estate of D1 has not been represented by anyone upon D1’s demise. Mr. Yung thus submitted that even if D1’s witness statements were to be treated as admissible, no weight should be attached to them since it was not subject to test through cross-examination. Mr Yung referred me to Chea Shiu Chow v Cheung Wai Keung, the Personal Representative of Cheung Chit Chiu, Deceased and Others [2019] HKCFI 2478 in which a witness made a witness statement but passed away prior to the commencement of the trial. Mr Yung asked me to adopt the same approach as DHCJ MK Liu who said:

“83. Mrs Chan submits that the witness statement made by Cheung SY should not be admissible evidence. In my view, the grounds of objection put forward by Mrs Chan relate to the reliability of the matters set out in that witness statement. The witness statement was filed in 2016. Cheung SY has passed away before the commencement of the trial. The witness statement has preserved Cheung SY’s evidence given by her during her lifetime. I would not say that the witness statement is inadmissible. However, since P has no opportunity to cross-examine Cheung SY and test the veracity of the matters set out in that witness statement, I would not attach weight to the matters mentioned in that witness statement.”

15.  In the circumstances, P was the only witness who gave evidence at the trial. Essentially, it was for P to strict prove her case.

Plaintiff’s case

16.  D1 (Father) and Mother (collectively “the Parents”) have 4 children, who, in the order of seniority are: D2; KLL; P; and Kwok Lai Chu. Prior to 1990, the Parents and 4 children lived in a public housing flat in Chaiwan Estate save that KLL had got married in 1984 and moved out from the public housing flat in 1984.

17.  In 1989/1990, the Government wanted to demolish Chaiwan Estate and offered the family two options, either (1) to relocate to another public housing flat; or (2) to purchase a property under the Home Ownership Scheme. According to P, the express agreement and/or understanding and/or common intention between her and Ds (“the Common Intention”) was created when D1 and D2 respectively indicated to Rosena that neither of them had any money or intention of acquiring a flat under the Home Ownership Scheme and if she wanted to purchase such a flat, she should come up with the money and do it herself.

18.  As D1 was the tenant of the Chaiwan Estate public housing flat, it made sense that he would continue to be named as an owner under the Home Ownership Scheme. D2 was made a joint tenant because he was then working at Union Bank and could obtain a favourable staff mortgage loan (“the Mortgage Loan”) in the sum of HK$453,300 for the purpose of acquiring the Property. It was the agreement and/or common understanding that P would solely be responsible for paying all necessary deposits and expenses in the acquisition. It would also be the sole responsibility of P to pay for all monthly mortgage instalments.

19.  Pursuant to the Common Intention and acting in detrimental reliance thereupon, P made financial contributions to all matters related to both the acquisition and maintenance of the Property, all of which are well documented and have been disclosed and adduced by P in these proceedings:

(1)  The 5% down payment in the sum of HK$23,900;

(2)  Monthly repayments of the Mortgage Loan;

(3)  Early repayment of the Mortgage Loan in full on 18 August 2000;

(4)  Incidental fees of acquiring the Property (administrative fees, stamp duty, Land Registry fees);

(5)  Obtainment of a loan from P’s employer, viz. Barclays Bank (“the Furniture Loan”) in the sum of HK$117,000 for the fitting out of the Property; and

(6)  Payment of all expenditures on electrical installations and appliances; and;

(7)  Payment of all management fees and utilities.

20.  P has also provided contemporaneous documentary proof of her then financial ability to make the above payments.

The case of the 1^st Defendant

21.  In the Re-Amended Defence and in his witness statements, D1 denied the above agreement or common intention. It was D1’s case that the purchase money of the Property was sourced from Mother, who regularly received contributions from all family members. D1 alleged that the common intention was that the Property would be purchased as a family home for all family members with D1 as the head of the Family who had the absolute right to deal with the whole Property.

22.  D1’s assertions were no more than bare assertions unsupported by contemporaneous documents. First of all, no particulars have been provided as to when this common intention was made and which family member had said what. Secondly, no particulars have been provided on how each family member was supposed to financially contribute to the acquisition of the Property and how each one actually did so. Thirdly, D1 failed to demonstrate the financial ability of each family member in making any contributions to the acquisition of the Property. On the contrary, P was able to adduce contemporaneous evidence of the loans she made to D2 at the material times showing D2’s dire financial situation. At the material times, D2 was already married and was financially burdened by his own family. KLL was likewise married and lived apart from the family. Furthermore, P was also able to provide details on the weak financial status of D1, D2, Mother, KLL and Kwok Lai Chu at the material times. The evidence of P remains uncontradicted.

23.  D1’s pleaded case and his witness statements were wholly unable to rebut the contemporaneous documents adduced by P demonstrating clearly that all payments relating to the acquisition of the Property were in fact originated from bank accounts of P or loans subsequently repaid by P.

24.  More importantly, D1’s case was contradicted by an acknowledgment in Chinese dated 16 February 2012 written and signed by D1 in his own handwriting. This written acknowledgment was given by D1 to P clearly acknowledging P’s sole financial contribution towards the down payment, Mortgage Loan repayments, renovation and repair fees and utilities in relation to the Property[2].

25.  In the circumstances, I have no difficulties concluding that I shall attach no weight on the Re-Amended Defence and the witness statements filed by D1 in line with the approach of DHCJ M K Liu in the Chea Shiu Chow case.

Conclusion

26.  I accordingly concluded that P had proven her case on balance of probabilities and granted Judgment on 11 August 2022 in her favour as per a revised draft Judgment provided to this Court by Mr Yung.