POON KOON v. HU HUANQUAN AND ANOTHER

DCCJ 2525 OF 2007

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION No. 2525 of 2007

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J U D G M E N T

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Issues and Reliefs

1.    The Plaintiff is claiming an interest in the flat registered in the name of the Deceased.  The plaintiff bases his claim for his interest in a combination of facts, namely, those relating to his cohabitation with the deceased and their mutual understanding, and most importantly his contribution towards purchase money.

2.  It is common ground that should the Plaintiff have any beneficial interest, it would be one of the following three, the entire interest, a life interest a share represented by the ratio his contribution bears to the purchase price.

Credibility of Witnesses

3.  The Plaintiff gave evidence and called one witness, Mr. Leung, a relative of the deceased’s husband.  The two defendants are husband and wife.  The husband, Mr. Hu, gave evidence and they call two other witnesses.

4.  The evidence in support of the Plaintiff’s claim came naturally from himself alone. The other witnesses could only give evidence about the knowledge and understanding as to the relationship of the Plaintiff and the deceased, based on what they had seen, observed or heard these years. There evidence served no more than to support or discredit the direct evidence of the Plaintiff.

5.  The Plaintiff was a simple man.  I find him an honest and reliable witness.  He tried his best to state what transpired between him and the Deceased without any exaggeration.  His description of his relationship impressed me as a straightforward account of his grievance and his grounds that he had the right to continue to live in the flat. He accepted with grace the fact that the Deceased had left everything else to Mr. Hu, her nephew and adopted son. He said nothing and put forward nothing hinting in anyway that the Deceased should not for any reason leave all her other properties and assets to Mr. Hu. He acknowledges as a matter of course that Mr. Hu should inherit all these assets apart from the interest he is now claiming.  If he is not honest he would have at the very least attempted to tailor his evidence to his advantage.

6.   I also find Mr. Leung a reliable and honest witness. Contrary to what the Defendants would have me believed, he had no pecuniary interest in these proceedings. Whatever  imputed to him suggesting he was biased or had an ulterior motive in coming forward to misrepresent his evidence, I reject. Further I reject the allegation he had acted improperly in arranging for the funeral expenses to be paid out of the bank account of the Deceased.  When Counsel for the  defence wanted to make something out of it. I expressly told him, there was nothing wrong and improper in Mr. Leung conduct, namely approaching and arranging with the bank for the release of money to the funeral undertaker, unless there is a challenge to reasonableness of such amount of funeral expenses.  At the same time I queried whether such sum could be said to be unreasonable, and on what grounds if it was going to be so argued.    Subsequently this line of attack on Mr. Leung was not pursued vigorously. Time was saved. The fact that the defence initially wanted to take this point showed two things. First the defendants were at their wits’ end in gathering materials to discredit the evidence of Mr. Leung.  Secondly they might have felt genuinely unhappy, without frankly admitting it, about spending that sum which sum would have otherwise been added to Mr. Hu’s inheritance. Either way, it would not enhance generally the credibility of Mr. Hu.

7.  Mr. Hu did not strike me as an honest witness. Clearly he was not telling the truth when denying reading the content of a declaration to the Deceased before right she affirmed it. Not only that he did not blink his eyes when confronted with it and told lies, he did not seem to have any compunction about the untruths he told the authorities in China when arranging and applying for his one-way permit to Hong Kong.  I do not find Hu an honest and reliable witness.  His unsuccessful attempt to discredit the Plaintiff’s claim that he had been cohabiting with the Deceased dented his credibility even deeper and further. 

8.  The defence called Ms Lee to give evidence to discredit the claim by the Plaintiff of close relationship with the Deceased. I find she was not a frank and reliable witness. She was biased out of misguided loyalty to Mr. Hu, her friend. 

9.  The other defence witness, Mr. Yeung, gave evidence that the Deceased entrusted him to bring money to China to the family of Mr. Hu.  By this, the defence wants to show that the Deceased were rich enough that it was not necessary for the Plaintiff to purchase money.  There might be some truth in Mr. Yeung’s claim that the Deceased entrusted him to bring money back to Mr. Hu’s family from time to time. In fact there is no dispute that the Deceased were always generous towards the family of Mr. Hu. This witness clearly wanted to mislead me when he said in paragraph 5 of his witness statement that “胡----的---養父----1984年逝世後, 留下胡丹鳳一人。----自此便由胡浣權照顧他，從來沒有任何人以「丈夫」身份照顧她，她每次回鄉時，都只是她一人，從沒有見任何人陪同她回來。”   He must have known that the Deceased and the Plaintiff were cohabiting and that it was the Plaintiff and not Mr. Hu who had been looking after the Deceased. Yet by the quoted remarks he wanted to mislead me into believing it was otherwise.  His evidence in other matters could not assist the defence, and even it could, I reject it because I find this witness not reliable at all. 

Cohabitation with the Deceased

10.  The husband of the deceased died many years ago. He and the Plaintiff were cousins. Shortly after his death, the Plaintiff said he started to cohabit with the widow, the Deceased. The Plaintiff’s case is they were cohabiting ever since up to the death of the Deceased.  Mr. Hu claimed that he was only a tenant or licensee.  I have no doubt that this is one of deliberate lie Mr. Hu made out of greed. This is a very bold attempt to mislead the court. There is no dispute that when the Deceased was gravely ill, the Plaintiff was called up to bring her back to Hong Kong. Mr. Hu did not explain and I do not believe he could reasonably do so why such arrangement was made if the Plaintiff was not a cohabite. Mr. Leung gave evidence is support of the cohabitation. I accept the evidence of the Plaintiff and Mr. Leung. I find that the Deceased and the Plaintiff had been living as man and wife shortly after the Plaintiff moved in.

11.  The evidence adduced by the defence suffered two defects. Firstly most of the evidence was word of mouth of the deceased. It carries little weight as it might well be the case the Deceased was misrepresenting the matter bearing in mind that she did not want to openly admitting the cohabitation. Secondly  the defence witnesses themselves are not credible.  I reject the evidence of the defence and preferred that called by the Plaintiff.

Conclusion

12.  As to the purchase of flat and the subsequently dealing between the Deceased and the Plaintiff, I believe what the Plaintiff had said.  I accept his version of events regarding to the purchase of the property. At the time of purchase, the parties might have shown fondness towards one another, they have not made their intention clear to each other. At the time of purchase, a resulting trust came into being, the respective interest should be proportional to the contribution each had made.

13.  The subsequent financial and outgoing arrangement during cohabitation did not alter the position.  The contribution to incorporated owners or other expenses could not be relied on to increase the share of the Plaintiff.  Put it simply what transpired after cohabitation were something of domestic nature and were not intended to affect the legal entitlement of the parties. The share of interest of the Plaintiff is the ratio of his contribution to the purchase price bears to the total cost of purchase.

14.  In the premises the Plaintiff is entitled to the declaratory relief reflecting his share of interest. Further he was entitled to remain in occupation of the premises and  I hereby dismiss the counter-claim. As to the form and details of the declarations, it is better to let the parties have an opportunity to work them out, and it would even be better to include certain directions as to sale so as to dispose the dispute once and for all. For this purpose I give the parties the liberty to apply. In the meantime  there be an order nisi for costs in favour of the Plaintiff.