DCMP 3071/2012
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
MISCELLANEOUS PROCEEDINGS NO 3071 OF 2012
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BETWEEN
HAN MEI FANG (韓美芳) otherwise spelt as HON MAY FONG (韓美芳), the administratrix
of the estate of TZE PING (是萍) otherwise spelt as TSE PING (是萍), deceased
Plaintiff
and
ALL OCCUPIERS OF FLAT F, 6TH FLOOR, KAPOK MANSION, NO 123 CASTLE PEAK ROAD, TSUEN WAN, NEW TERRITORIES, HONG KONG
1st Defendants
WONG CHEUNG SIN
2nd Defendant
WONG CHEUNG TAK
3rd Defendant
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Before: Deputy District Judge Samson Hung in Court
Dates of Hearing: 2 to 6 March and 13 April 2015
Date of Judgment: 29 November 2017
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JUDGMENT
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The plaintiff’s claim
1. The plaintiff is and was at all material times the administratrix of the estate of Tze Ping (是萍) otherwise spelt as Tse Ping (“the Deceased”) who died intestate on 26 November 2008. As such, she claimed to be the legal and beneficial owner of Flat F, 6/F, Kapok Mansion, No. 123 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“the Premises”) which formed part of the estate of the Deceased. By this action, the plaintiff claimed against the 1st defendants and the 3rd defendant for wrongful occupation of the Premises.
2. The action was commenced by the plaintiff on 13 December 2012 originally by way of originating summon against the 1st defendants pursuant to Order 113 of the Rules of the District Court (“RDC”). Subsequently, it was ordered by Registrar Lui on 17 January 2013 that the 2nd and the 3rd defendant be joined as defendants in the proceedings upon their application dated 12 January 2013 and that the action be continued as if it had begun by writ.
3. It was the plaintiff’s case that the 1st defendants and the 3rd defendant who were the family members of a Wang Yik Jung (王翼强) alias Henry Yik Jung Wong (“Henry Wong”) have been in occupation of the Premises under a licence at will granted by the deceased. On 4 October 2012, the plaintiff through her solicitors, Messrs Tsangs, wrote to all occupants of the Premises demanding them to deliver up vacant possession of the Premises to the plaintiff on or before 10 November 2012. Notwithstanding the demand, the 1st defendants and the 3rd defendant have failed and/or refused to deliver up vacant possession of the Premises and continued to remain in it without the plaintiff’s consent. Such acts of the 1st defendants and the 3rd defendant amounted to a trespass on the Premises which trespass was continuing. Accordingly, the plaintiff claimed against the 1st defendants and the 3rd defendant for, inter alia,
(a) an order for delivery up of vacant possession of the Premises;
(b) damages for loss of rental income at a fair market value from 10 November 2012 until vacant possession of the Premises was delivered up to the plaintiff.
The case of the 2nd and the 3rd defendant
4. By the Amended Defence and Counterclaim of the 2nd and the 3rd defendant (“the Amended Defence and Counterclaim”), they contended that the plaintiff only held the Premises on trust for the interest and benefit of the 2nd defendant. In this regard, it was originally their pleaded case that the plaintiff held the Premises on trust for the interest and the benefit of the 2nd and the 3rd defendant. However, on the second day of the trial and before the start of evidence, I granted leave for the 2nd and the 3rd defendant to amend their pleading and I should come back to their application for amendment in the later part of this judgment.
5. In essence, it was the case of the 2nd and the 3rd defendant under the Amended Defence and Counterclaim that the Premises was bought by Henry Wong, the natural father of the 2nd and the 3rd defendant, on 1 May 1968. By his last will (“the Will”) dated 17 December 1999, Henry Wong appointed the Deceased as the sole executrix of the Will and devised all his estate to her absolutely. On 15 April 2003, Henry Wong passed away and his estate consisted of, inter alia, the Premises. Subsequently, by an assent (“the Assent”) dated 10 October 2005, the Deceased vested the legal title of the Premises to herself beneficially. Notwithstanding the Assent, the 2nd and the 3rd defendant alleged that no legal or beneficial interest in the Premises should have been vested or transferred to the Deceased.
6. To better understand the case of the 2nd and the 3rd defendant, paragraph 3 of the Amended Defence and Counterclaim which provided the basis of their claim against the Deceased/the plaintiff is set out verbatim as follows:-
“3. ……The 2nd and the 3rd Defendants aver that the Plaintiff only hold the property of Flat F, 6th Floor, Kapok Mansion, No.123 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“the said premises”) as a trustee on trust for the interest and benefit of the 2nd and 3rd Defendant since no legal title had ever been vested or transferred into the name of Tse Ping who only held the said premises as trustee for the interest and benefit of the 2nd Defendant and the 3rd Defendant, which in turn no legal title to the said premises could be passed to the Plaintiff from Tse Ping, to which reasons are set out as follows:
Particulars
(a) The 2nd and the 3rd Defendant are the sons of the father, Wang Yik-Jung (王翼強) or otherwise known as Henry Yik Jung Wong (“Wong Yik Jung”) and the mother Tsu Tsau Ying whom all were born in China before they immigrated into Hong Kong as permanent residents.
(b) Wong Yik Jung was born on 11th September 1907 and he immigrated to Hong Kong in or about 1951. On 1st May 1968, Wong Yik Jung bought a property of Flat F, 6th Floor, Kapok Mansion, No. 123 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong (“the said premises”), which being the subject property in the captioned action.
(c) In or about 1975, Tsu Tsau Ying immigrated to Hong Kong from China and she stayed and lived with her husband Wong Yik Jung in the said premises as matrimonial home from 1985 until Tsu Tsau Ying died on 1993 and Wong Yik Jung died on 15th April 2003.
(d) In 1981, the 2nd Defendant immigrated to Hong Kong from China but lived separately from his parents, Wong Yik Jung and Tsu Tsau Ying.
(e) In 1991, the 3rd Defendant with his wife and son immigrated to Hong Kong from China and since then they stayed and lived with the 3rd Defendant’s parents in the said premises till present.
(f) Before Tsu Tsau Ying came to Hong Kong in 1975, Wong Yik Jung had been cohabiting with a woman called TZE PING otherwise spelt as TSE PING who had no relatives in Hong Kong. After Tsu Tsau Ying came to Hong Kong, Wong Yik Jung treated Tse Ping as a friend only.
(g) After Tsu Tsau Ying died in 1993, Wong Yik Jung in 1995 by seeing that the property of the 2nd Defendant at Flat F, 15th Floor, Tonnochy Towers, Nos. 254 and 272 Jaffe Road, Hong Kong (“the Flat”) being vacant and Tse Ping having no place to live; asked the 2nd Defendant to let Tse Ping to stay in the Flat as Wong Yik Jung promised to the 2nd Defendant that the said premises would finally be given by Wong Yik Jung to the 2nd Defendant in order to look after other siblings when he died if Tse Ping could live in the Flat whenever she like without rental payment, to which the 2nd Defendant accepted his father’s offer.
(h) In late 1999 when Wong Yik Jung told the 3rd Defendant that in case Wong Yik Jung died before Tse Ping and fearing that if Tse Ping had no place to live and in order to comfort Tse Ping, Wong Yik Jung would make a Will naming Tse Ping to administrate his estate. Wong Yik Jung also comforted the 3rd Defendant that the 3rd Defendant could continue to live in the premises as he wished since the premises would be their Wong’s family property at the end.
(i) After the death of Wong Yik Jung on 15th April 2003, Tse Ping took out the Will of Wong Yik Jung and said to the 2nd Defendant and his younger sister, Wong Yan Chi that after the Grant of Probate being made to the estate of Wong Yik Jung, Tse Ping would transfer the properties of Wong Yik Jung, namely, (a) Flat F, 6th Floor, Kapok Mansion, No. 123 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong; and (b) Shop No. 17, Ground Floor, Yin Hing Building, Nos. 58-82 Choi Hung Road, Nos. 34-58 Yin Hing Street, Kowloon, Hong Kong to the name of the 2nd Defendant as those two properties were belonged to Wong’s family as Tse Ping promised Wong Yik Jung to do so and that the 2nd Defendant could look after the assets for the interest and benefit of Wong’s family.
(j) Tse Ping then on 13th May 2003 requested the Wong Yan Chi to write a Chinese paper (委托書) and asked Wong Yan Chi to act as a witness, wherein Tse Ping signed to appoint the 2nd Defendant to administer the estate of Wong Yik Jung and to transfer all the stocks into her name and also that Tse Ping decided to transfer the properties (a) Flat F, 6th Floor, Kapok Mansion, No. 123 Castle Peak Road, Tsuen Wan, New Territories, Hong Kong; and (b) Shop No. 17, Ground Floor, Yin Hing Building, Nos. 58-82 Choi Hung Road, Nos. 34-58 Yin Hing Street, Kowloon, Hong Kong into the name of the 2nd Defendant.
(k) On 14th May 2003, Tse Ping fearing that the 2nd Defendant would not let her to live in the Flat after the transfer of the said premises into the name of the 2nd Defendant, Tse Ping requested Wong Yan Chi to write a Chinese paper (承諾書) wherein the 2nd Defendant signed to promise to let Tse Ping to continue to live in the Flat without consideration until she moved out and to return the Flat to the 2nd Defendant, to which the 2nd Defendant agreed and signed the Chinese paper (承諾書).
(l) Thereafter in or about June 2003, Tse Ping and the 2nd Defendant went to appoint a law firm, namely, Messrs. Chan and Cheng, Solicitors for applying Probate to the Grant of the estate of Wong Yik Jung but they were told that the 2nd Defendant could not act as the personal representative to Wong Yik Jung’s estate on applying the Probate since Tse Ping was named the sole executor to the Will of Wong Yik Jung. Tse Ping therefore applied the Grant of Probate to the estate of Wong Yik Jung.
(m) When the Grant of Probate under Grant No. HCAG006599 of 2005 was given by High Court on 22nd August 2005, Tse Ping then carried out her promise to instructed Messrs. Chan and Cheng, Solicitors to transfer the legal title (being holding 1/3 share in the name of Wong Yik Jung therein) by ASSENT of the property of Wong Yik Jung at Shop No. 17, Ground Floor, Yin Hing Building, Nos. 58-82 Choi Hung Road, Nos. 34-58 Yin Hing Street, Kowloon, Hong Kong into the name of the 2nd Defendant on 10th October 2005. The 2nd Defendant after this Shop No. 17 being sold out had distributed the proceeds of sale to all among his eight siblings evenly.
(n) Tse Ping asked the 2nd Defendant to let her to continue staying the Flat F, 15th Floor, Tonnochy Towers, Nos. 254 and 272 Jaffe Road, Hong Kong and to secure her stay, Tse Ping requested the 2nd Defendant to keep her name in the said premises to be the registered owner at the moment so that the 2nd Defendant would not ask Tse Ping to move out of the Flat to which the 2nd Defendant agreed thinking that the said premises would be the Wong’s family asset at the end in any event. Tse Ping and the 2nd Defendant therefore on 10th October 2005 instructed Messrs. Chan and Cheng to arrange the said premises by ASSENT to be transferred into her own name which was executed and registered in the Land Registry by Memorial No.05110900280027 (“the Assent”). Since 1991, the 3rd Defendant had been living in the premises till now and no consent or licence was ever required or given by Tse Ping.
(o) Since the death of Wong Yik Jung in April 2003, Wong Yan Chi had been looking after the elderly Tse Ping regularly. Until about July 2007, Wong Yan Chi got to know the Plaintiff who came from Taiwan and visited Tse Ping in the elderly home where the Plaintiff claimed to be Tse Ping’s daughter. Wong Yan Chi kept taking care of Tse Ping until Tse Ping died in November 2008. Wong Yan Chi arranged to collect the dead body of Tse Ping from hospital and applied for her death certificate with funeral matters done.
(p) When Wong Yan Chi met the Plaintiff on some occasions in the elderly home when the Plaintiff came to visit Tse Ping, Wong Yan Chi had mentioned to the Plaintiff that the 3rd Defendant all along had been living in the said premises but the Plaintiff said nothing about it.”
7. By reason of the matters pleaded in paragraph 3 of the Amended Defence and Counterclaim, the 2nd and the 3rd defendant claimed that the plaintiff who inherited the Premises from the Deceased had no legal or beneficial interest in the Premises. At all material times, the plaintiff is and was holding the Premises as trustee/constructive trustee for the interest and benefit of the 2nd defendant. As such, she had no right to demand any family members of Henry Wong to deliver up to her vacant possession of the Premises. It was therefore denied that the 1st defendants and the 3rd defendant were in occupation of the Premises under a licence at will granted by the Deceased/the plaintiff.
8. In the circumstances, the 2nd defendant counterclaimed against the plaintiff for, inter alia,
(a) a declaration that the Premises is held on constructive trust by the plaintiff for the interest and benefit of the 2nd defendant;
(b) a declaration that the 2nd defendant is entitled to be registered as the owner of the Premises;
(c) An order that the plaintiff do forthwith execute an assignment to convey the legal title of the Premises into the name of the 2nd defendant.
The interlocutory applications by the 2nd and the 3rd defendant
9. At the beginning of the trial, I was required to deal with four interlocutory applications by the 2nd and the 3rd defendant.
10. Of those four interlocutory applications, there was the application by the 2nd and the 3rd defendant who by summons dated 18 February 2015 applied for leave to file the supplemental witness statements of the 2nd defendant, the 3rd defendant and Wong Yan Chi all dated 16 February 2015. In the absence of any supporting affirmation, the reason for the delay in making the application as put forward by Ms Lam, counsel for the 2nd and the 3rd defendant, was that due to her late instructions she only had a conference with the two defendants shortly before the trial whereupon she advised about the need to file further witness statements.
11. After perusing the supplemental witness statements in question, I accepted Ms Lam’s submission that they largely contained matters in reply to the allegations raised in the plaintiff’s witness statement. However, I noted that by paragraph 13 of the 2nd defendant’s supplemental witness statement he seemed to suggest the plaintiff to have lied about her age by reference to a legal document in some Taiwanese court proceedings. As a matter of fact, the said legal document has never been disclosed to the plaintiff. Nor could the reference to the said legal document be an answer for any allegations raised in the plaintiff’s witness statement. As I found it, the plaintiff’s age was not relevant to any issues amongst the parties. In the circumstances, I exercised my discretion by granting leave for the 2nd and the 3rd defendant to file the said three supplemental witness statements except that paragraph 13 of the 2nd defendant’s supplemental statement witness together with the attachments thereto be deleted. I also ordered that the costs of and occasioned by the summons dated 18 February 2015, including the costs of the hearing thereof, be paid forthwith by the 2nd and the 3rd defendant to the plaintiff with certificate for counsel, such costs to be taxed if not agreed.
12. There were two other summonses taken out by the 2nd and the 3rd defendant on 26 February and 3 March 2015 whereby they respectively asked for leave to file the supplemental and the 2nd supplemental list of documents. After much argument amongst the parties, they have eventually come to terms that both summonses were to be withdrawn by consent and I made the orders for their withdrawal accordingly. I further ordered that the costs of and occasioned by both summonses, including the costs of the hearing thereof, be paid forthwith by the 2nd and the 3rd defendant to the plaintiff with certificate for counsel, such costs to be taxed if not agreed.
13. As for the last application, it was an application for leave to amend the Defence and Counterclaim of the 2nd and the 3rd defendant. On the first day of the trial, I sought to clarify with Ms Lam the basis of the trust claim and the scope of the trust alleged by the 2nd and the 3rd defendant. On the next day, I was provided with a draft Amended Defence and Counterclaim and was informed by Ms Lam about the application for amendment. Essentially, with the proposed amendment, the Premises was claimed to have been held by the plaintiff on constructive trust for the interest and benefit of the 2nd defendant only. The other aspects of the amendment were to abandon the reliefs claiming for a declaration that the 3rd defendant should be entitled to occupation and possession of the Premises and those relating to the validity and the registration of the Assent. There being no objection from the plaintiff, I accordingly granted leave for the amendment and ordered that the costs of and occasioned by this application of amendment, including the costs of the hearing thereof, be paid forthwith by the 2nd and the 3rd defendant to the plaintiff without certificate for counsel, such costs to be taxed if not agreed.
The common intention constructive trust
14. During her submission for the said application of amendment, Ms. Lam confirmed to me that the case of the 2nd and the 3rd defendant as amended was based on a constructive trust arising from,
(a) the common intention between the 2nd defendant and the Deceased that the Premises was held on trust for the benefit and interest of the 2nd defendant; and
(b) detrimental reliance by the 2nd defendant.
15. According to Ms Lam, the common intention between the 2nd defendant and the Deceased was set out in paragraphs 3(i) & (j) of the Amended Defence and Counterclaim and the detrimental reliance by the 2nd defendant was set out in paragraph 3(k) thereof. Ms Lam also confirmed that the 2nd defendant did not rely on any other detriments such as those allegedly suffered by Wong Yan Chi, the younger sister of the 2nd and the 3rd defendant.
16. As for the proper approach to a common intention constructive trust, it is succinctly summarised in the following passages of the decision of Godfrey Lam J in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9:-
“46. The focus of the inquiry is therefore on the elements that the plaintiff has to prove in order to establish a constructive trust in his favour. In the context of this case, this means that the plaintiff must prove: (a) there was a common intention between him and the defendant that the plaintiff was to be the beneficial owner of the Property despite that it was acquired in the defendant's name; (b) the plaintiff altered his position in detrimental reliance upon such common intention ; and (c) it is unconscionable for the defendant to assert ownership in reliance on her legal title to the Property.
47. In ascertaining whether there was a common intention , it is the objective intention of each party ‘which was reasonably understood by the other party to be manifested by that party’s words and conduct’ that one must examine: Gissing v Gissing [1971] AC 886, 906; Jones v Kernott [2012] 1 AC 776, 794 [51].
48. In the present case it is the parties’ common intention at the time of the acquisition of the Property that is relevant, there being no suggestion from anyone that the intention had changed.
49. Such intention is to be found, first and foremost, from any agreement, arrangement or understanding reached between the parties with respect to the beneficial ownership of the Property concerned based on evidence of express discussions. It is only where there is no evidence to support a finding of such an agreement or arrangement that the court seeks to infer from the conduct of the parties the relevant common intention : Lloyd’s Bank Plc v Rosset [1991] 1 AC 107, 132-133.
50. Even where, as in this case, reliance is placed on an express agreement, arrangement or understanding between the parties, their other conduct remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested.”
17. In the context of the present case, the burden is thus on the 2nd and/or the 3rd defendant to establish that the plaintiff held the Premises upon constructive trust for the 2nd defendant by proving the elements as stated in Liu Wai Keung v Liu Wai Man , supra at paragraph 46.
The witnesses and the evidence in claims against an estate
18. At trial, the plaintiff, the 2nd and the 3rd defendant have testified for their respective case. In addition, Wong Yan Chi was called to give evidence for the 2nd and the 3rd defendant.
19. In this judgment, I do not seek to deal with each and every allegation of facts made by the parties, but shall only deal with such aspects of the facts and evidence as set out below which I find to be of greater significance.
20. Further, in light of the pleaded case of the 2nd and the 3rd defendant, there were clearly allegations against the estate of the Deceased. In evaluating such allegations, I bear in mind the following observations made by Deputy High Court Judge Saunders, as he then was, in Hong Kong Hua Qiao Company Limited v Cham Ka Tai , HCA 2619 of 2005, 30 July 2013, where the learned judge stated at paragraph 33,
“Mr Chan properly reminded me that a court should be cautious against the danger of relying upon the uncorroborated evidence of a claimant in a claim against the estate of a deceased person. As stated in Cross & Tapper on Evidence, 12th Edn. p 262: “A claim against the estate of a deceased person will not generally be allowed on the uncorroborated evidence of the claimant, but there is no rule of law against allowing it in England. The absence through death of one of the parties to the transaction calls for caution in such a case, but claims have been allowed when there was no corroboration.”
A similar statement is made in Phipson on Evidence, 17th edn. §14-11. I note also the comment of Walton J in Re Gronin, deceased [1979] Ch 16 at 32F:-
“Now, it is common sense that all claims against the estate of a deceased person, which had not been put forward while they were still living, fall to be scrutinised with considerable care, for the obvious reason that the other party to the agreement is in the nature of things unable to give his or her version of events.”
The relevant factual background
21. In the present case, the following facts were largely not disputed by the parties: -
(a) Henry Wong and his wife, Tsu Tsau Ting (“Tsu”) are the parents of the 2nd defendant, the 3rd defendant and Wong Yan Chi.
(b) In about 1975, Tsu immigrated from the mainland to Hong Kong and reunited with Henry Wong. Prior to this, Henry Wong had cohabited with the Deceased for some time;
(c) On 17 December 1999, Henry Wong made and executed the Will whereby he appointed the Deceased as the sole executrix of the Will and devised all his estate to the Deceased absolutely;
(d) At all material times, the 2nd defendant is and was the registered owner of the property known as Flat F, 15 Floor, Block A, Tonnochy Towers, Nos. 254 and 272 Jaffe Road, Wanchai, Hong Kong (‘the Tonnochy Towers”);
(e) After the death of Tsu in 1993, the Deceased had subsequently lived in the Tonnochy Towers until 2007 when she moved to live in an elderly home;
(f) On 15 April 2003, Henry Wong who was born on 11 September 1907 passed away and his estate consisted of, inter alia, a shop at Shop No. 17, Ground Floor, Yin Hing Building, Nos. 58-82 Choi Hung Road, Nos. 34-58 Ying Hing Street, Kowloon, Hong Kong (“the Shop”) and the Premises. The Shop was bought by Henry Wong on 7 December 1966 together with two others as tenants in common whereas the Premises was bought on 1 May 1968 in his sole name;
(g) On 13 May 2003, the Deceased signed a Chinese document (“the Letter of Appointment”) entitled “委托書” wherein it was stated that the Deceased thereby appointed the 2nd defendant to transfer to her all the stocks in the estate of Henry Wong and that she also resolved to transfer the Shop and the Premises to the 2nd defendant. Wong Yan Chi also signed on the document as witness;
(h) On 14 May 2003, the 2nd defendant signed a Chinese document (“the Letter of Promise”) entitled “承諾書” whereby the 2nd defendant promised to allow the Deceased to live in the Tonnochy Towers for free until she moved to live elsewhere;
(i) On 22 August 2005, probate was granted by the High Court to the Deceased as the sole executrix of the estate of Henry Wong;
(j) On 10 October 2005, the Deceased transferred the Shop to the 2nd defendant who subsequently sold it on 10 January 2008 and divided the proceeds equally amongst his eight siblings (including the 2nd defendant himself). Further, on the same day, by the execution of the Assent on 10 October 2005, the Deceased vested the legal title of the Premises to herself beneficially;
(k) The Deceased died intestate on 26 November 2008 and her estate consisted of, inter alia, the Premises. On 31 August 2011, letter of administration was granted to the plaintiff as the sole administratrix of the estate of the Deceased;
(l) Since about 1991, the 3rd defendant and his family members have been in occupation of the Premises;
(m) On 4 October 2012, the plaintiff through her solicitors, Messrs. Tsangs, wrote to the occupants of the Premises demanding them to deliver up vacant possession of the Premises to the plaintiff on or before 10 November 2012; and
(n) Notwithstanding the aforesaid demand by the plaintiff’s solicitors, the 3rd defendant and his family members have remained to live in the Premises.
The relationship between Henry Wong and the Deceased
22. The relationship between Henry Wong and the Deceased is crucial in understanding the background leading to the subject disputes amongst the parties.
23. At trial, the plaintiff gave evidence that she was born out of the wedlock between the Deceased and her father but her parents have separated shortly after her birth in Hong Kong. When the plaintiff was only 17 months old, the Deceased sent her to Taiwan to be taken care by someone from the home village of the Deceased. Since then, the plaintiff has lived apart with the Deceased. It was not until the plaintiff reached the age of 13 in 1965 that the Deceased visited her in Taiwan and reunited with her. Thereafter, the plaintiff has continued to live in Taiwan and live apart with the Deceased though they visited each other occasionally and maintained constant contacts by making telephone calls frequently.
24. From the Deceased, the plaintiff learned that the Deceased had got acquainted with Henry Wong and they had become lovers since 1965. In her early years, the Deceased worked in a textile factory and a restaurant whereby she managed to keep some savings. With her savings, the Deceased had once operated a farm with her friend and also invested in Henry Wong’s furniture business. As for the furniture business, the plaintiff testified that when she had first come to Hong Kong in about 1985, the deceased had taken her to see the furniture shop. However, due to the long lapse of time, the plaintiff could not remember at trial the name and the address of the shop save that it was in Taikoo district. After the Deceased was not working any more, she had invested in the stock market and the proceeds of such investments were sufficient to support her livings. At trial, the plaintiff further added that according to the Deceased some of the stocks held by Henry Wong were only bought in his name but were in fact the investments of the Deceased funded by her monies.
25. The Deceased told the plaintiff that in the 1970’s Henry Wong had suffered great loss in the stock market and agreed to sell the Premises to his friend at HK$30,000 as he was in need of cash. After learning about this, the Deceased had given Henry Wong HK$30,000 and asked him to return to his friend the deposit of HK$10,000 he had received for the sale of the Premises. Not surprisingly, Henry Wong was grateful to the Deceased for her assistance. Therefore, he indicated to the Deceased that the Premises were then belonged to her, and the Deceased agreed to accept it. Subsequently, in about 2000 Henry Wong told the Deceased that he had arranged with his lawyers and made some legal documents to pass the title of the Premises to the Deceased although the plaintiff admitted that she had no knowledge about what kind of legal documents they were.
26. As for the Tonnochy Towers, according to what the plaintiff was told by the Deceased, it was the original plan of Henry Wong that he should buy the Tonnochy Towers in his own name. However, due to his old age Henry Wong was unable to obtain a mortgage. Therefore, Henry Wong arranged it to be bought under the 2nd defendant’s name.
27. The Deceased further told the plaintiff that between about the 70’s and the 80’s the wife of the Decease and their children had immigrated from China to Hong Kong and that they had lived in the Premises together with Henry Wong. Since 1994 (which was one year after the death of Tsu), the Deceased and Henry Wong had moved to live in the Tonnochy Towers although Henry Wong would occasionally return to the Premises. It was however the common understanding between the Deceased and Henry Wong that the latter should allow the Deceased to live in the Tonnochy Towers whereas the Deceased should allow the family members of the Deceased to live in the Premises.
28. In this connection, the plaintiff testified that she and her family had come to Hong Kong to visit the Deceased in 1994. During her stay in Hong Kong, the Deceased took the plaintiff to the Tonnochy Towers where the Deceased told her that the Deceased would move to live there together with Henry Wong soon. The plaintiff also produced in court a photograph she took during that trip in Hong Kong although she admitted that she could not remember if the photograph was taken in the Tonnochy Towers. Further, on 29 November 2008, after the death of the Deceased, Wong Yan Chi brought the plaintiff to the Tonnochy Towers to take away the personal belongings of the Deceased. Inside the Tonnochy Towers, Wong Yan Chi pointed to one of its bedroom and said to the plaintiff that Henry Wong had used to live in it.
29. On the other hand, according to the 2nd defendant, the cohabitation between the Deceased and Henry Wong started when the Deceased was working as a cleaning lady and was helping Henry Wong to clean his clothes. However, their relationship had ended after Tsu’s immigration to Hong Kong in 1975. Thereafter, according to what he was told by his father in 1981, Henry Wong had only treated the Deceased as a friend.
30. However, when being asked under cross-examination why Henry Wong would give away all his estate to the Deceased under the Will if she was only treated by him as a friend, the 2nd defendant once gave the answer that he also found it unreasonable for Henry Wong to give all his properties to a former lover. Further, the 2nd defendant sought to explain in his evidence that his father being a devoted Catholic had been caring for the Deceased because he was remorseful of what he did with her and wanted to compensate her.
31. Under cross-examination, the 2nd defendant was shown his own witness statement which stated that Henry Wong went to visit the Deceased almost everyday when she was living in Tonnochy Towers. In reply, the 2nd defendant vaguely suggested that he did not mean what he had stated. He then sought to change his evidence by saying that his father would only visit the Deceased when she was ill. It was however noted that the same thing about Henry Wong visitng the Deceased almost everyday was repeated in his affirmation.
32. In this connection, I note that according to the 3rd defendant, Henry Wong enjoyed very good health until 96 years old when he passed away due to injuries sustained in a slip and fall at the Premises. He said that Henry Wong would go out everyday to work at the 2nd defendant’s company and to meet with his friends. This is in my judgment should be consistent with the saying that Henry Wong had visited the Deceased almost every day.
33. On balance, I consider that the 2nd defendant has not been frank in his account of the relationship between Henry Wong. It would be against common sense that a person would devise all his estate to a friend, albeit a former cohabitant and even the 2nd defendant himself admitted to have difficulties in accepting it. In this respect, I agree with Ms Tjia that the 2nd defendant was just trying to brush down the relationship between Henry Wong and the Deceased and that his evidence on this issue was unreasonable.
34. In contrast, I find the plaintiff to be an honest and credible witness. She was frank and forthcoming in her evidence in that she readily admitted what she did not know without any exaggeration of her case. Accordingly, subject to what I am going to say in paragraphs 35 and 36 below, I accept her evidence in full.
35. It is however noted that the plaintiff’s testimony as to what happened between the Deceased and Henry Wong was essentially hearsay or second-hand hearsay evidence based on something said by the Deceased. Under cross-examination, the plaintiff further added that she had been told about the same thing by some friend of the Deceased’s. This in my judgment did not change the hearsay nature of this part of the plaintiff’s evidence. In this regard, I accept Ms Lam’s submission that there was nothing from the plaintiff to verify the things she was told. Accordingly, while I accept that the plaintiff has been so informed by the Deceased or the latter’s friend, I attached no weight to such hearsay evidence. The same applies to the plaintiff’s testimony about the alleged arrangement between Henry Wong and the 2nd defendant regarding the purchase of the Tonnochy Towers.
36. As for the plaintiff’s allegation that the Deceased and Henry Wong had since 1994 moved to live in the Tonnochy Towers, this was disputed by the 2nd defendant, the 3rd defendant and Wong Yan Chi who gave evidence in court to suggest otherwise. In particular, Wong Yan Chi testified in court that Henry Wong had never lived in the Tonnochy Towers together with the Deceased. Further, Wong Yan Chi denied having told the plaintiff on 29 November 2008 that Henry Wong had lived in one of the bedroom in the Tonnochy Towers. This part of Wong Yan Chi’s evidence was not challenged by the plaintiff under cross-examination. Accordingly, I accept Wong Yang Chi’s evidence in this regard and reject the plaintiff’s allegation that the Deceased and Henry Wong had since 1994 lived together in the Tonnochy Towers.
37. Further, there were some minor allegations raised in paragraphs 3 to 6 of Wong Yan Chi’s supplemental witness statement which suggested that the plaintiff showed great concerns about the possessions of the Deceased. Such allegations were largely not disputed by the plaintiff. In my judgement, those allegations do not adversely affect the plaintiff’s credibility as a witness. In short, a good daughter does not necessarily make a credible witness, and vice versa. Besides, I do not find it wrong for a daughter to be concerned about the whereabouts or safe keeping of her mother’s possession particularly when her mother was old-aged and had lived alone in an elderly home.
38. On the question about the relationship between Henry Wong and the Deceased, I find it more likely that what the 2nd defendant stated in his witness statement should conform to the truth.
39. As such, I find that prior to the reunion of Tsu and Henry Wong in 1975, Henry Wong and the Deceased had cohabited together for some time. Thereafter, Henry Wong had continued to show care and affection for the Deceased by, inter alia, making provisions for the Deceased in the Will and visiting the Deceased almost everyday when she was living in the Tonnochy Towers .
The alleged verbal agreement between Henry Wong and the 2nd defendant
40. It was the 2nd defendant’s evidence that Henry Wong was born in China on 11 September 1907. He and Tsu had altogether eight children and they were all born in the mainland. Amongst his siblings, the 3rd defendant was the eldest and Wong Yan Chi was the younger sister of the 2nd and the 3rd defendant. Further, by the time of the trial, two of the 2nd defendant’s siblings have passed away.
41. In about 1951, Henry Wong, immigrated from the mainland to Hong Kong, thus leaving his wife and eight children in China. When he was in Hong Kong, Henry Wong had become a successful business man and had operated a trading company jointly with two other partners. He also invested in the property market in that he bought the Shop and the Premises respectively on 7 December 1966 and 1 May 1968. After he ceased working, he had invested in the stock market. The 2nd defendant claimed that Henry Wong had never operated any furniture business and had never suffered any loss in the stock market in the 70’s as alleged by the plaintiff. Neither has he heard that Henry Wong had ever been in financial trouble and needed to sell the Premises to others for HK$30,000.
42. When Tsu, Wong Yan Chi and the 2nd defendant came to live in Hong Kong respectively in 1975, 1978 and 1981, they did not live in the Premises since it has been rented out over that period. It was only in 1985 when the tenancy in the Premises was terminated by the tenant. Since then, Henry Wong and Tsu had moved to live there until they respectively passed away in 1993 and 2003. In about 1991, the 3rd defendant and his family members started to immigrate to Hong Kong and joined the couple to live in the Premises.
43. As for the 2nd defendant, he has previously worked as an engineer in the mainland. In his first year in Hong Kong, i.e. 1981, he has worked in some factories. Later, in 1982, with the financial assistance by Tsu and his uncle, the 2nd Defendant has started to operate his own business. Since 1984, he has invested in the property market and by 1986 he has owned three to four properties. Further, in 1986, with the consent of Henry Wong, the Premises was pledged to the bank as security to obtain some banking facilities in support of his business and such banking facilities were terminated in 2006 due to the death of Henry Wong.
44. On 1 May 1993, at the suggestion of Henry Wong, the 2nd defendant bought the Tonnochy Towers for investment purposes. As to this, the 2nd defendant disputed that the property was bought by Henry Wong but was only registered in the 2nd defendant’s name. According to the 2nd defendant, Henry Wong had ample means to buy the Tonnochy Towers without a mortgage.
45. In 1995, two years after the death of Tsu, upon seeing that the Tonnochy Towers was vacant and that the Deceased had no place to live Henry Wong requested the 2nd defendant to allow her to live there for free and for so long as she pleased. In return, Henry Wong promised to give the Premises to the 2nd defendant to look after other siblings after his death. This was accepted by the 2nd defendant.
46. Further, according to what the 3rd defendant told the 2nd defendant, in late 1999 Henry Wong told the 3rd defendant that he was going to make a will which would name the Deceased to administer his estate. As said by Henry Wong, this was only to comfort the Deceased who feared that she might have no place to live in case Henry Wong should die before her. At the same time, Henry Wong also comforted the 3rd defendant that the latter could continue to live in the Premises as he wished since the Property would be the Wong’s family property.
47. As far as the alleged conversation between Henry Wong and the 3rd defendant is concerned, this was largely supported by the 3rd defendant’s affirmation. According to the 3rd defendant’s affirmation, in 1999 Henry Wong told the 3rd defendant that despite his will to the Deceased he would give his properties including the Premises to the 2nd defendant to look after the Wong’s family after his death. Henry Wong further told the 3rd defendant that the aforesaid arrangement was in accordance with his wish since the 2nd defendant had promised to let the Deceased live in the Tonnochy Towers for free. In his witness statement, the 3rd defendant added that according to what he was told by Henry Wong the Premises should be given to the 2nd defendant for him to manage it on behalf of the Wong’s family, but the 3rd defendant should be allowed to be continued to live in the Premises. If however the 2nd Defendant should refuse to let the Deceased live in the Tonnochy Towers, the 3rd Defendant was asked by Henry Wong to help her to move to the Premises and take care of her.
48. Besides, according to the 3rd defendant’s oral testimony, Henry Wong had told him that “the Premises was to be given to the Deceased” (“紅棉大厦俾是萍”). Under cross-examination, the 3rd defendant went on to explain that by so saying Henry Wong just wanted to comfort the Deceased as she feared that she might have no place to live if Henry Wong should die before her. Nevertheless, according to the 3rd defendant, Henry Wong did not take it seriously in speaking those words since by that time he did not think that he should die before the Deceased taking into account her poor health condition.
49. Regarding his accommodation in the Premises, the 3rd defendant confirmed that he had come to Hong Kong in 1991. Since then, he has lived with Henry Wong in the Premises while Tsu was away from Hong Kong to seek medical treatment in Shanghai. In 1994, his youngest son came to Hong Kong and lived in the Premises but he moved out many years ago. In about 1995, the eldest son of the 3rd defendant also came to Hong Kong but he did not live in the Premises. Later, in 1996 he was joined by his wife who immigrated to Hong Kong from China and lived in the Premises. After the death of Henry Wong, it was only the 3rd defendant and his wife who have remained to live in the Premise up to present. Moreover, the 3rd defendant confirmed that he was not required to pay any rent or utilities charges for his and his family members’ stay in the Premises.
50. On balance, I accept the aforesaid evidence of the 2nd and the 3rd defendant which was either not disputed or was in my judgment unshaken under cross-examination.
51. Finally, while it is my finding that there was the verbal agreement between Henry Wong and the 2nd defendant in 1995 as aforesaid, there was no claim by the 2nd defendant in this action to enforce the same against the estate of the Deceased. In any event, any such attempt to enforce this verbal agreement would be futile by reason of the formality requirements under sections 3, 4, 5 and 6 of the Conveyancing and Property Ordinance, Cap.219. Nonetheless, the verbal agreement itself is important in understanding the background which eventually led to the execution of the Letter of Appointment, the Letter of Promise and the Assent, the significance of which shall be dealt with below.
The Letter of Appointment and the Letter of Promise
52. At trial, the plaintiff did not challenge the authenticity of the Letter of Appointment and the Letter of Promise. Nor did she put forward any positive case in relation to the making of the two documents. This is understandable as the plaintiff was not present at the time when those two documents were made and hence could have no personal knowledge about how they were brought into existence. However, it was the plaintiff’s stance that the Letter of Appointment was signed by the Deceased not as something in exchange for the rent-free accommodation provided in the Letter of Promise. In essence, they represented two independent transactions which were made on separate occasions and unrelated to each other.
53. In this regard, it was the 2nd defendant’s testimony that shortly after the death of Henry Wong the Deceased had without prior appointment or notice turned up in his office and shown him the Will. The 2nd defendant was shocked to find out that his father had given away all his estate to the Deceased. He then asked the Deceased how she understood about the Will (“我問是萍怎樣理解”). In response, the Deceased told the 2nd defendant that she was not to scramble for the properties of Henry Wong, but merely wanted to have a roof over her head and some security for her livings (“我不是要爭產，只要有地方住，生活有依靠”) (“the alleged Words”). Allegedly, the 2nd defendant did not say anything to the Deceased and just went back to his room. Later, the Deceased left the 2nd defendant’s office after she had waited there for a while without seeing the 2nd defendant coming out from his room.
54. On the following day, that is 13 May 2003, the Deceased accompanied by Wong Yan Chi came to the 2nd defendant’s office and handed the Letter of Appointment to the 2nd defendant. The Letter of Appointment was drafted by Wong Yan Chi at the request of the Deceased. By the Letter of Appointment, the Deceased appointed the 2nd defendant to transfer all the stocks in the estate of Henry Wong to the Deceased whereas the Deceased resolved to transfer the Premises and the Shop to the name of the 2nd defendant. In this regard, it was confirmed by the 2nd defendant that the Letter of Appointment had already been signed when the Deceased showed it to him. Nor was it drafted in his presence. Nevertheless, the 2nd defendant testified that he was contented with the arrangements provided in the Letter of Appointment.
55. On 14 May 2003, the Deceased together with Wong Yan Chi came to see the 2nd defendant again. According to the 2nd defendant, the Deceased wanted assurance from him that she could continue to stay in the Tonnochy Towers after she transferred the Shop and the Premises to him. Therefore, the Deceased requested Wong Yan Chi to draft the Letter of Promise whereby the 2nd defendant promised to allow the Deceased to live in the Tonnochy Towers rent free until she moved out to live elsewhere. This was accepted by the 2nd defendant who signed on the Letter of Promise accordingly.
56. In the circumstances, it was Ms Lam’s submission that the two documents were part and parcel of the same transaction whereby the Deceased undertook to transfer the Shop and the Premises to the 2nd defendant and in return the 2nd defendant promised to allow the Deceased to continue to live in the Tonnochy Towers rent free.
57. However, insofar as the circumstances leading to the signing of the Letter of Appointment were concerned, the 2nd defendant’s version in court was in sharp contrast with what he stated in his affirmation dated 11 January 2013.
58. According to paragraphs 10 and 11 of the 2nd defendant’s affirmation, the showing of the Will and the signing of the Letter of Appointment by the Deceased took place on the same day, i.e. 13 May 2003, and not on two consecutive days as suggested in his oral testimony. More importantly, it was stated in the 2nd defendant’s affirmation that when the Deceased had shown him the Will on 13 May 2003 the Deceased had said to him and Wong Yan Chi that after the probate was granted to her she would transfer the Premises and the Shop to him “as those two properties were belonged to the Wong’s family as she promised my father [Henry Wong] to do so and that Wong Cheung Sin [the 2nd defendant] could look after the asset for the Wong’s family ”. Then, the Deceased requested Wong Yan Chi to draft the Letter of Appointment. There was however no mentioning about the alleged Words uttered by the Deceased. Besides, it was obvious from the 2nd defendant’s affirmation that the transfer of the Premises and the Shop by the Deceased as provided in the Letter of Appointment had nothing to do with the Deceased’s accommodation in the Tonnochy Towers, but rather because of the promise that was made between the Deceased and Henry Wong.
59. This version in the 2nd defendant’s affirmation was largely consistent with what was said by Wong Yan Chi in her affirmation and witness statement. According to the affirmation and witness statement of Wong Yan Chi, the Deceased showed the Will to the 2nd defendant on 13 May 2003. On this occasion, the Deceased said to the 2nd defendant and Wong Yan Chi that after the probate was granted to the Deceased the latter would transfer the Premises and the Shop to the 2nd defendant “as Wong’s family property ” to look after the 2nd defendant’s sibling as this was Henry Wong’s wish. Therefore, the Deceased requested Wong Yan Chi to draft the Letter of Appointment and sign on it as witness. There was again no mentioning about the alleged Words uttered by the Deceased.
60. Further, while the 2nd defendant did mention in paragraph 9 of his witness statement dated 28 July 2014 that the Deceased said the alleged Words to the 2nd defendant, this was only said to happen on the same day when the Deceased showed the Will to the 2nd defendant and signed on the Letter of Appointment. This was again contrary to the 2nd defendant’s oral testimony that those words were said one day before the signing of the Letter of Appointment.
61. On balance, regarding the circumstances as to the making of the Letter of Appointment, I find the 2nd defendant’s version in his affirmation which was consistent with Wong Yan Chi’s witness statement and affirmation to be credible. Accordingly, I reject the 2nd defendant’s oral evidence in this respect insofar as it was inconsistent with his version in his affirmation. In particular, I find the Deceased to have shown the Will to the 2nd defendant on same day when she signed the Letter of Appointment on 13 May 2003. I also find that when the Deceased showed the Will to the 2nd defendant she did say to the 2nd Defendant the things as stated in his affirmation, but not the alleged Words as suggested in his oral testimony.
62. Also, there being no effective challenge from the plaintiff I accept the 2nd defendant’s evidence regarding the circumstances as to the making of the Letter of Promise. His version in this respect was again supported by Wong Yan Chi’s witness statement and affirmation.
63. It was however pointed out by Ms Tjia that the Letter of Appointment and the Letter of Promise which were made on two separate days did not mention the relevance or the relationship of one to another. Therefore, there was nothing to support the allegation that the rent-free accommodation in the Tonnochy Towers was provided in exchange for the condition of the Deceased signing on the Letter of Appointment. This was particularly so where the Deceased had signed the Letter of Appointment before she requested the 2nd defendant to sign on the Letter of Promise to provide a written assurance that she would be allowed to live in the Tonnochy Towers rent free. It was thus obvious that when the Letter of Appointment was signed, it was not related to the rent-free accommodation in the Tonnochy Towers that the Deceased had already enjoyed for years. Accordingly, Ms Tjia submitted that the signing of the Letter of the Promise by the 2nd defendant was a mere repetition or reminder of what he has already promised to Henry Wong.
64. Based on the evidence before me, I accept that the Letter of Appointment has already been signed before the Deceased requested for the written assurance from the 2nd defendant to allow her to continue to live in the Tonnochy Towers. As such, the making of the documents were two separate transactions in that the Letter of Appointment was not signed by the Deceased as something in exchange for the rent-free accommodation provided in the Letter of Promise.
65. However, I do not accept Ms Tjia’s submission that the signing of the Letter of the Promise by the 2nd defendant was just a repetition or reminder of what he has already promised to Henry Wong. Such a submission in my judgment flied in the face that the Letter of Promise by its own wordings was clearly made by the 2nd defendant as a promise to the Deceased. Further, taking into account the close proximity in time between the making of the two documents, I find it more likely that while the Letter of Promise was not provided as consideration for the signing of the Letter of Appointment by the Deceased, it must have been to a certain extent made by the 2nd defendant in reliance of the arrangements provided in the Letter of Appointment.
The Assent
66. According to the 2nd defendant, in about June 2003, he went together with the Deceased to a law firm, Messrs Chan & Cheng, with a view to applying for the grant of probate of the Will. However, they were told that since the Deceased was appointed as the sole executrix of the Will the 2nd defendant could not act as the personal representative of the estate of Henry Wong. Therefore, despite the Letter of Appointment, it was the Deceased, and not the 2nd defendant, who subsequently applied for the grant of probate of the Will and was granted it on 22 August 2005 under Grant No. HCAG006599.
67. Subsequently, on 10 October 2005 the Deceased instructed the said Messrs. Chan & Cheng to transfer the Shop to the 2nd defendant. However, the Deceased requested the 2nd defendant to allow her to keep her name in the Premises as the registered owner for the time being so as to make sure that she would be allowed to continue to live in the Tonnochy Towers. This was accepted by the 2nd defendant who considered that the Premises would be “the Wong’s family asset at the end in any event”[1] since the Deceased had previously indicated to 2nd defendant and his siblings on many occasions that the Deceased did not want the Premises, that she could not take it away when she passed away and would not gave it to others as the premises would finally be belonged to the Wong’s family[2] . Therefore, on the same day, with the 2nd defendant’s agreement, the Deceased by Assent vested the legal title of the Premises to herself beneficially.
68. Accordingly, notwithstanding the execution of the Assent, there was an agreement or understanding between the 2nd defendant and the Deceased that the latter should “return” the Premises to the Wong’s family upon her death. In effect, due to this change of mind by the Deceased, what was originally intended to be transferred by the Deceased to the 2nd defendant or the Wong’s family inter vivos was agreed to be transferred only upon her death. There was however no document to support that there was such an agreement or understanding between the parties. Indeed, there was no evidence to suggest that the Deceased had prepared any arrangements for the transfer of the Premises after her death in order to carry out the alleged agreement or understanding.
69. As to this, the 2nd defendant explained in court that the Deceased was a weak lady with low educational background and therefore he did not consider it unusual for an old-aged person like her to doubt him on such an important issue as her accommodation needs. Besides, with the signing of the Letter of Appointment and the Letter of Promise he has got along peacefully with the Deceased in recent years and on that particular day the Deceased duly carried out her promise to transfer the Shop to him. As such, he trusted the Deceased and did not find it necessary to set down in black and white the agreement or understanding reached between them.
70. It was however noted that when being asked under cross-examination why Henry Wong would give away all his properties to the Deceased under the Will, the 2nd defendant answered that he was not sure whether his father had done so under coercion by the Deceased. In the circumstances, it would be difficult to understand how the 2nd defendant could have trusted the Deceased if he suspected the Deceased to have coerced his father to make the Will to devise all the latter’s estate to her. This was particular the case where the Deceased was seeking to depart from the provisions under the Letter of Appointment by vesting the Premises to herself beneficially. Besides, if the Premises was indeed agreed to be transferred to the 2nd defendant or the Wong’s family upon the death of the Deceased, this was certainly not just a matter whether the 2nd defendant trusted the Deceased but rather how he could secure the transfer of the Premises after her death in the absence of a will or other supporting documents. In this regard, I accept Ms Tjia’s submission that there were many ways of securing the transfer of the Premises even it was to be contingent upon the death of the Deceased but strangely enough the 2nd defendant did not ask the solicitors to help him to find a way to achieve it, but just let the Deceased vest the Premises to herself beneficially.
71. Further, according to the 2nd defendant’s supplemental witness statement[3] , prior to the Deceased executing the Assent she had said to the 2nd defendant that she would not take the Premises away and at the end would return it to the Wong’s family after her death. This seemed to be the only specified occasion when the Deceased was alleged to have said those things to the 2nd defendant and was contrary to what the 2nd defendant stated in his witness statement that there were many occasions on which the Deceased had said the same things to him and his siblings. Other than that, the 2nd defendant did not provide any particulars as to any other occasions when such words were said by the Deceased.
72. In his witness statement[4] , the 3rd defendant did mention that until after the Deceased was granted the probate of the Will she had indicated for many times that she would finally return the Premises to the Wong’s family. Again, there was a lack of particulars in this allegation of the 3rd defendant’s. It was entirely unknown as to on which occasions and to whom the Deceased was alleged to have said those words. However, even according to his testimony, the 3rd defendant has met the Deceased three to four times and had only brief conversations with her on those occasions. There was nothing in his oral evidence to suggest that on those three to four occasions he had spoken to the Deceased she had made the indication as alleged, let alone to suggest that she had done so many times. In the circumstances, I find this part of the 3rd defendant’s evidence unreliable and refuse to attach any weight to it accordingly.
73. Apart from this unparticularised allegation from the 3rd defendant, there was nothing from Wong Yan Chan or other siblings of the 2nd defendant to suggest the Deceased to have said those words in question.
74. That said, I note that the Deceased had after the execution of the Assent continued to live in the Tonnochy Towers until she moved to live in the elderly home in about April 2007. On the other hand, the 3rd defendant and his family members were also allowed to remain in the Premises despite the Assent. In the circumstances, I find it more likely that there was some other compromise or arrangement between the 2nd defendant and the Deceased whereby the Deceased was allowed to continue to stay in the Tonnochy Towers despite the Assent. Accordingly, I reject the 2nd defendant’s evidence that there was the alleged agreement or understanding between the parties that the Deceased should return the Premises to the 2nd defendant or the Wong’s family upon her death. For the reasons canvassed above, I do not find this part of the 2nd defendant’s evidence to be credible.
75. Subject to the aforesaid and in the absence of any effective challenge, I accept the 2nd defendant’s version of events regarding the circumstances leading to the grant of the probate to the Deceased on 22 August 2005. I also accept the 2nd defendant’s evidence that he subsequently sold the Shop and divided the proceeds of its sale equally amongst his eight siblings (including the 2nd defendant himself).
The common intention as alleged
76. As mentioned above, it is my finding that at the time when the Deceased executed the Assent to vest the Premises to herself beneficially there was no agreement or understanding between the Deceased and the 2nd Defendant that the Deceased should return the Premises to the 2nd defendant or the Wong’s family upon her death. Nevertheless, it remains the question whether prior to the execution of the Assent on 10 October 2005 there has existed any common intention between the Deceased and the 2nd defendant that the 2nd defendant should be beneficially interested in the Premises. A recap of the case of the 2nd and the 3rd defendant in this respect should help to put the question under consideration in proper context.
77. Regarding the alleged trust claim, it was originally pleaded in paragraph 11 (“the said Paragraph 11”) of the Defence and Counterclaim of the 2nd and the 3rd Defendant that the Premises was held by the plaintiff on constructive trust “for the benefit and interest of the 2nd Defendant and the 3rd Defendant ”.
78. Subsequently, with the Amended Defence and Counterclaim, the reference to the 3rd defendant was deleted from the said Paragraph 11 so that by the amended counterclaim the Premises was claimed to have been held by the plaintiff on constructive trust for the interest and benefit of the 2nd defendant only. In this connection, it was also clarified by Ms Lam during her submission for the said application of amendment that the case of the 2nd and the 3rd defendant as amended was based on a constructive trust arising from (a) the common intention between the 2nd defendant and the Deceased that the Premises was held on trust for the interest and benefit of 2nd defendant; plus (b) detrimental reliance by the 2nd defendant.
79. However, under paragraph 3 of the Amended Defence and Counterclaim, it was averred that the plaintiff held the Premises “as a trustee on trust for the interest and benefit of the 2nd and 3rd Defendant since no legal title had ever been vested or transferred in to the name of Tse Ping [the Deceased] who only held the said premises [the Premises] as trustee for the interest and benefit of the of the 2nd Defendant and the 3rd Defendant, which in turn no legal title to the said premises [the Premises] could be passed to the Plaintiff from Tse Ping [the Deceased] …… ”. Such an averment was clearly in conflict with the amended counterclaim under the said Paragraph 11 for the Premises to be held on trust for the interest and benefit of the 2nd defendant.
80. Nevertheless, in light of Ms Lam’s said clarification, I consider it abundantly clear that the case of the 2nd and 3rd defendant as amended should be based on a common intention between the Deceased and the 2nd Defendant whereby the Premises was to be held on constructive trust for the interest and benefit of the 2nd defendant. In my judgment, it was only by omission that paragraph 3 of the Amended Defence and Counterclaim was not amended to reflect the correct position. Indeed, in Ms Lam’s closing submission, when she mentioned the common intention between the Deceased and the 2nd defendant, she referred to a common intention that the 2nd defendant should be the beneficial owner of the Premises[5] .
Whether there existed the common intention as alleged
81. The next relevant question that I should deal with is whether prior to the acquisition of the Premises by the Deceased on 10 October 2005 there has existed the alleged common intention between her and the 2nd defendant that the 2nd defendant was to be the beneficial owner of the Premises. According to Ms. Lam, such a common intention could be established by reference to a series of incidents which included the signing of the Letter of Appointment and the Letter of Promise respectively by the Deceased and the 2nd defendant, the 2nd defendant’s continuation to allow the Deceased to live in the Tonnochy Towers rent free, the transfer of the Shop by the Deceased to the 2nd defendant who subsequently sold it and divided the proceeds equally amongst his siblings.
82. Based on the evidence before me, I have no difficulties in accepting that prior to the execution of the Assent there has been some arrangement between the Deceased and the 2nd Defendant whereby the Premises was to be transferred to the 2nd defendant. The existence of such an arrangement was self-evident from the Letter of Appointment. However, even taking into account the matters referred to in Ms. Lam’s submission, I do not find the evidence to justify there existed the alleged common intention between the Deceased and the 2nd Defendant. In this regard, while it was provided in the Letter of Appointment that the Premises was to be transferred by the Deceased to the 2nd defendant, it was clearly intended by the parties that the 2nd defendant was not to take the Premises as its sole beneficiary. A close examination of the affirmation, witness statement and supplemental witness statement of the 2nd defendant and the affirmation of Wong Yan Chi as set out below should neatly illustrate this point:
(a) According to paragraph 3 of Wong Yan Chi’s affirmation dated 11 January 2013, the Deceased said to the 2nd defendant and Wong Yan Chi on 13 May 2003 that after the probate was granted to her she would transfer the Shop and the Premises to the name of the 2nd defendant as “Wong’s family property to look after my father’s children [Henry Wong’s children] as this was my father’s wish ”. The same thing was reiterated by Wong Yan Chi in paragraph 2 of her witness statement dated 28 July 2014;
(b) In paragraph 10 of the 2nd defendant’s affirmation dated 11 January 2013, it was stated that on 13 May 2003 the Deceased had said to him and Wong Yan Chi that after the probate was granted to her she would transfer the Premises and the Shop to the 2nd defendant “as those two properties were belonged to Wong’s family as she promised my father [Henry Wong] to do so and that Wong Cheung Sin [the 2nd defendant] could look after the assets for the Wong’s family ” (see also paragraph 15 thereof where the 2nd defendant stated that “the Property [the Premises] would be the Wong’s family asset at the end in any event ”);
(c) In paragraph 9 of his witness statement dated 28 July 2014, the 2nd defendant stated that the Deceased did not want the Premises and the Shop since she knew that those two properties were belonged to the Wong’s family and understood the 2nd Defendant to be responsible for managing the same for the Wong’s family（“是萍知道該過兩個物業皆屬於父親家族，也明瞭王長善是家族產業的管理人，為父親家族處理上述2個物業”）. In paragraph 14 thereof, the 2nd Defendant stated that the Deceased had previously indicated to 2nd defendant and his siblings on many occasions that the Deceased did not want the Premises, that she could not take it away when she passed away and would not gave it to others as the premises would finally be belonged to the Wong’s family （“是萍多次向本人和本人兄弟姐妹表明，她不會要這物業。她“走”之時也帶不走的，也不會給別人的，這物業終歸是你們王家的”）;
(d) According to paragraph 10 of the 2nd defendant’s supplemental witness statement dated 16 February 2015, after the death of Henry Wong, the Deceased and the 2nd defendant had reached a consensus that the Shop and the Premises should be belonged to the Wong’s family （“王翼強過世后，是萍與我達成共識: 衍慶大廈及紅棉大廈歸王家”）. Subsequently, since the Deceased feared that the 2nd defendant might not carry out his promise to allow her to live in the Tonnochy Towers she suggested herself to be registered as the owner of the Premises though she promised to return it to the Wong’s family after her death（“唯其後是萍提出，怕我不履行杜智台給她住的承諾，要求最好紅棉大廈業權寫她的名字，她則承諾在她過身后歸還王家。”）. In paragraph 12 thereof, the 2nd defendant went on to state that prior to the execution of the Assent, the Deceased said to the 2nd defendant that she would not take away the Premises and at the end she would return it to the Wong’s family （“是萍在簽署允許書前，親口對我講，紅棉大廈她不會帶走，她過身後終會歸還王家”）; and
(e) Last but not the least, in paragraph 18 of his affirmation dated 11 January 2013, the 2nd defendant deposed to a belief that “Tse Ping [the Deceased] was holding the Property [the Premises] as Trustee for Wong’s family since it was the real intention of my father [Henry Wong] to give the Premises to Wong’s family when he died. Tse Ping [the Deceased] had in fact followed my father’s wish and promise[d] to have transferred the property of Shop [the Shop]……to my name but leaving the Property [the Premises] to be held on trust by her for Wong’s family ”.
83. Therefore, even according to the own words of the 2nd defendant and that of Wong Yan Chi, it was clearly intended by the 2nd defendant and the Deceased that the Premises was to be transferred to the 2nd defendant as “the property of the Wong’s family” for him to hold it on behalf of the Wong’s family. This was so notwithstanding that under the Letter of Appointment the Premises was to be transferred to the 2nd defendant. Such an intention for the 2nd defendant to hold the Premises for the Wong’s family was further reinforced by the fact that the 2nd defendant sold the Shop transferred to him by the Deceased and he subsequently divided the proceeds equally amongst his siblings. This also accorded with the verbal agreement between Henry Wong and the 2nd defendant (to which the Deceased was said to have knowledge) whereby the Premises was to be transferred to the 2nd defendant for him to look after his siblings in exchange for the Deceased’s rent free accommodation in the Tonnochy Towers.
84. In effect, a trust was intended by the Deceased and the 2nd defendant so that the Premises should be held on trust by the 2nd defendant for the Wong’s family. At any rate, it was never intended by them that the 2nd Defendant (and/or the 3rd defendant) should take the Premises as its sole beneficiary. This was clearly contrary to the pleaded case of the 2nd and the 3rd defendant that the Premises was to be held on trust for the interest and benefit of the 2nd defendant.
85. In the circumstances, I am not satisfied that the 2nd and/or the 3rd defendant have discharged the burden of proving the existence of the common intention as pleaded. All along, it has been the pleaded case of the 2nd and the 3rd defendant that the 2nd defendant should take the property only as its sole beneficiary. It was never pleaded in the Amended Defence and Counterclaim that he should take the Premises as a trustee, let alone to plead that he was to hold it on trust for the Wong’s family (see also Order 6, r. 3 of the RDC). For this reason, the case of the 2nd and the 3rd Defendant must fail accordingly.
86. It is however pertinent to note that during her closing submission I have invited Ms Lam to comment on some of the passages set out in paragraph 82 above. After she has gone through those passages, Ms Lam applied for amendment of the Amended Defence and Counterclaim on the spot. By this application, the 2nd and the 3rd defendant sought to amend their case to allege that there was a common intention between the Deceased and the 2nd defendant for the latter to hold the premises on trust for his siblings and himself. This was so notwithstanding that two of the 2nd defendant’s siblings have passed away by the time of the trial. Worse still, Ms Lam provided no particulars as to by whom and on what authority the estates of the two deceased siblings were to be represented.
87. This application for amendment was strenuously opposed to by the plaintiff on ground of lateness, prejudice caused to the plaintiff and its adverse effect on the trial. On the question of lateness, there could be no denying that the application was made unduly late. It was only made when counsel for the 2nd and the 3rd defendant was in the middle of making her closing submission after the close of evidence. Yet, there was no satisfactory explanation from Ms Lam as to why the application was made at such a late stage. In particular, Ms Lam did not provide any satisfactory reason as to why the necessary amendment could not have been made earlier, particularly when the 2nd and 3rd defendant made their first application for amendment of their pleading upon the invitation by the court to clarify the basis of their trust claim.
88. On the other hand, the prejudice caused to the plaintiff was severe and obvious if the 2nd and the 3rd defendant were to be allowed to change their case at such a late stage. In such an event, in all fairness to the plaintiff, she should be allowed to reopen the trial and be granted an adjournment to take instructions to consider whether to call such further witnesses or adduce such further evidence as to meet the re-amended case of the 2nd and the 3rd defendant. Indeed, Ms Tjia indicated an adjournment of the trial would be necessary in the event that leave was granted for the proposed amendment.
89. Taking into account the aforesaid factors including the complications caused by the death of the 2nd defendant’s siblings and generally all the circumstances of the case, I exercise my discretion to refuse the application for amendment of the Amended Defence and Counterclaim.
90. In light of my aforesaid finding, it should not be necessary for me to find out what constituted “the Wong’s family” as the beneficiaries under the intended trust since it was never the pleaded case of the 2nd and the 3rd defendant that the 2nd defendant should take the Premises as a trustee. I should however note that according to the 2nd defendant’s own evidence there was no discussion between the Deceased and himself as to the question of what amounted to “the Wong’s family”. In this respect, in accordance with the 2nd defendant’s understanding of “the Wong’s family”, this should include all his siblings (including the two siblings who have passed away), his sibling’s spouses, and their children. Nonetheless, even the 2nd defendant himself did not follow his understanding of “the Wong’s family” in distributing the sale proceeds of the Shop since he only distributed the same amongst its siblings, but not their spouses or children. Therefore, there was no basis to infer from the conduct of the 2nd defendant and/or the Deceased that there was a meeting of mind between them on this question. As such, the class of beneficiaries was not clearly defined under the intended trust which should be void by reason of uncertainty as to its objects (see Lee Tak Yee v, Lee Tak Yan & Others, unreported, HCA 766 of 2008, 10 March 2010 and Wong Kwai Oi v. Lee Tak Kwong, unreported, HCA 107 of 1994, 10 May 1999) .
91. Further, I do not consider it open to the 2nd and the 3rd defendant to argue that it was up to the 2nd defendant to decide which persons should fall within “the Wong’s family”. In order to maintain such a case, I consider it imperative that the power of the intended trustee be clearly defined in the pleading. In the present case, no reliance of such a case should be allowed where the material facts of the relevant allegations have not been pleaded. In any event, even such a case is to be relied upon the class of “the Wong’s family” is still needed to be defined with precision or the intended trust should be void as aforesaid.
92. Given it is my finding that at the time of the execution of the Assent there was some other compromise or arrangement between the 2nd defendant and the Deceased whereby the Deceased was allowed to stay in the Tonnochy Towers despite the Assent, it follows that by allowing the Deceased to stay in the Tonnochy Towers could not be detrimental act in reliance of the common intention as alleged. In the circumstances,it should not be unconscionable for the plaintiff to assert her ownership in reliance on her legal title to the Premise.
93. Finally, for the sake of completeness, I should point out that even I had found at the time of the Assent there existed an agreement or understanding between the 2nd defendant and the Deceased that the latter should return the Premises to the 2nd defendant or the Wong’s Family upon her death, such an agreement or understanding must have given rise to a trust for the 2nd defendant to hold the Premises for the Wong’s family and for the same reasons as discussed above the trust claim arising therefrom must have failed accordingly.
The plaintiff’s claim on trespass
94. It follows from my aforesaid findings that the plaintiff being the administratrix of the estate of the Deceased is and was at all material times the legal and beneficial owner of the Premises. As such, she should be entitled to the sole use and occupation of the Premises. In this connection, it was undisputed fact that the 1st defendants and/or the 3rd defendant have been living in the Premises since about 1991. There was however nothing to suggest that they have provided any consideration for their occupation of the Premises. Accordingly, on the evidence before me, I have no hesitation to find that the 1st defendants and the 3rd defendant have been occupying the Premises merely as a licensee at will. I also find that their licence to stay in the Premises was revoked by the said letter dated 4 October 2012 whereby they were asked to deliver up vacant possession of the Premises on or before 10 November 2012. Thereafter, the 1st defendants and the 3rd defendant have become trespassers to the Premises by wrongfully remaining in it.
95. In the circumstances, the plaintiff should be entitled to an order of possession against the 1st defendants and the 3rd defendant. Further, by reason of their wrongful occupation of the Premises, the plaintiff should be entitled to damages for the loss of rental from 10 November 2012 until the date of actual delivery up of vacant possession of the Premises. In this regard, the market rental value (exclusive of rates and management fees) of the Premises throughout the material period was agreed by the parties to be HK$8,000 per month and the plaintiff’s damages should be assessed accordingly.
Conclusion
96. For the reasons given above, I find for the plaintiff on her claim against the 1st defendants and the 3rd defendant, and dismiss the 2nd defendant’s counterclaim. Accordingly, I make the following orders that,
(a) the 1st defendants and the 3rd defendant do immediately deliver up
(b) the 1st defendants and the 3rd defendant do jointly and severally pay to the plaintiff damages for loss of rental income at HK$8,000 per month from 10 November 2012 to the date of actual delivery up of vacant possession of the Premises.
Costs
97. Given that it was the 2nd and the 3rd defendant who have taken up an active role in resisting the plaintiff’s claim and that they have lost their case against the plaintiff, I accordingly make an order nisi that costs of this action be paid by the 2nd and the 3rd defendant to the plaintiff, with certificate for counsel, such costs to be taxed if not agreed. This order nisi will become absolute after 14 days in the absence of any application to vary the same.
(Samson Hung)
Deputy District Judge
Miss Josephine Tjia, instructed by Tsangs, for the plaintiff
The 1st defendants were not represented and did not appear
Miss Yanky S Y Lam, instructed by K K Lai & Co, for the 2nd and the 3rd defendant
[1] See paragraph 15 of the affirmation of the 2nd defendant dated 11 January 2013
[2] See paragraph 14 of the witness statement of the 2nd defendant dated 28 July 2014
[3] See paragraph 12 of the 2nd defendant’s supplemental witness statement dated 16 February 2015.
[4] See paragraph 4 of the 3rd defendant’s witness statement dated 28 July 2014
[5] See paragraph 19(1) of the Closing Submission of D2 & D3 dated 20 March 2015.