TSE CHU HUNG v. MA KING YING

DCCJ3105/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 3105 OF 2008

BETWEEN

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J U D G M E N T

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1.  The plaintiff applies to this court for the following declarations:

(1)	a declaration that the defendant’s interest in the property is held on trust for the plaintiff;
(2)	a declaration that the plaintiff is the sole beneficial owner of the property;
(3)	an order that the defendant do execute and deliver to the plaintiff an assignment of the property in the sole name of the plaintiff, and that the Registrar of the District Court do execute the said assignment and sign on behalf of the defendant should the defendant fail to comply with the court’s order within 2 months hereof.

2.  The property in question is known as Flat 2, 3rd Floor of Block H, Sui Wo Court, No. 8 Sui Wo Road, Shatin, New Territories, Hong Kong (“the property”).

3.  As the defendant’s address is unknown to the plaintiff, service in these proceedings had been effected by substitute service after application for substitute service was made and allowed by the Master of the District Court. The defendant has never appeared or acknowledged service. She is absent today.

4.  The plaintiff began cohabiting with the defendant in 1964. They separated in 1987 when the defendant left him in December 87. During their cohabitation, the defendant gave birth to four children. The eldest was born on 29 August 1965; the second, 1 August 1966; the third child, 1 February 1971; and the youngest, 31 May 1972.

5.  It is the plaintiff’s case that the defendant and he did not go through a proper marriage ceremony in 1964. Neither did they register their marriage. Throughout the cohabitation period, the plaintiff was the sole breadwinner and the defendant had not worked since their cohabitation. Presumably, she was looking after the four children and the household while they were living together.

6.  The plaintiff, Mr Tse, said in his evidence that he was very sick in 1987 and had to undergo a heart operation. He was advised by the doctor that his condition was critical and he had to prepare for the worst. He therefore left all his assets of more than HK$1 million and transferred them to the defendant, Madam Ma, before the operation. He claimed that after the operation, Madam Ma refused to return his assets to him, and in December 87, she left him and moved to live in other premises unknown to him.

7.  During the cohabitation, it is Mr Tse’s case that he would put properties that he invested in in Madam Ma’s name. He gave the example of the three tenancies at an housing estate for industrial and commercial purposes which were taken over by him. These were legal transfers, for which he paid transfer fee in the 1970s and registered the tenancies in the defendant’s name.

8.  For Unit No. 15 on the ground floor of Block 44, Tsz Wan Shan Estate in Kowloon, he paid over $22,000 to the original tenant for the transfer, and operated a grocery store at the No. 15 shop between early 1970s to early 1980s. Eventually, the grocery shop was closed, and Shop No. 15 was transferred for a transfer fee of $50,000, this was kept by Madam Ma. As to the second shop, No. 35, Ground Floor of Block 44, Tsz Wan Shan Estate, Mr Tse claimed he paid $13,500 transfer fee for the tenancy, he used it as a godown until 1987.

9.  The third shop, No. 41 on the ground floor of Block 44, Tsz Wan Shan Estate, he had paid $5,000 in the mid‑1970s to the original tenant for the tenancy to be transferred to him. This was used as a workshop for his garment factory. In 1988, he moved out of the Shop 41 to a shop in Wong Tai Sin. Like Shop No. 15, the tenancies of No. 35 and No. 41 were all put under Madam Ma’s name. He claimed the reason was to allow Madam Ma to deal with the Housing Department on his behalf because he was busy with his businesses.

10.  After Madam Ma left him in December 1987, Mr Tse claimed they had not lived together or seen each other again. At the time, the two younger children were still minors and they were living with him until 1988 when the third child, 志傑, was sent to study in Australia, and the youngest daughter, 潔玲, left to live with Madam Ma.

Findings

11.  It is the plaintiff’s case that he was contacting the defendant through the two younger children and had asked the defendant to transfer the property back to him, however, this request was ignored by Madam Ma. Today, Mr Tse expressed that he suspected Madam Ma had wanted him to die early so that she could inherit the property. He claimed she had been doing strange things like getting curses from the temple or voodoo masters to curse him so that he would suffer from ill health. This remained a suspicion on his part since he had no contact with Madam Ma for the last 23 years, there is no way for him to find out whether this suspicion is in reality true or not. After 23 years, if the curses were successful, we would not have Mr Tse making the application today. His present ill health was probably because of his devotion to hard work in the past years when he was younger. In any event, there is no evidence to support his suspicion.

12.  According to Mr Tsang, the plaintiff’s legal representative, this is a case of resulting trust. He claimed a resulting trust was formed when the plaintiff, Mr Tse, put Madam Ma’s name as a joint tenant of the property because he alone paid for the purchase price for the property. Like the three tenancies in the Housing Department’s factory buildings, they were all put under Madam Ma’s name so that she could look after the tenancies and handle the tenancy matters with the Housing Department on Mr Tse’s behalf in the 1970s and the 80s. When Mr Tse purchased the property in 1980, he included Madam Ma’s name as a joint tenant so that he could concentrate on his garment factory business. The evidence is clear. He did pay the down payment and all the mortgage instalments.

13.  Mr Tse claimed that Madam Ma was holding a resulting trust for him because he alone paid for the purchase of the property. Mr Tse denied there was any advancement intended. His rebuttal evidence of the presumption is the fact that he had put all three shop unit tenancies in her name as he intended her to handle the Housing Department on his behalf, with the same intention that she would handle the technical side of the property in the 1980 purchase.

14.  He expressed in court that he intended Madam Ma should give him the compensations received from the government when the 3 shops were repossessed by the government. However, Madam Ma never did so. In fact, he was still using Units 41 and 35 as his garment factory and his warehouse in 1987 and did not move to Wong Tai Sin until 1988, when he vacated the two units, it was after the defendant, Madam Ma, had left him and the property in December 1987. He claimed he was hoping she would transfer or execute the transfer of the property in his sole name after he vacated the two factory units which were under her name.

15.  When the two shop units were repossessed by the government in the 1990s, he believed that Madam Ma had been compensated about $100,000 for each unit. She never gave him any part of the compensation money. As he could not locate her or contact her, he obviously was not able to demand the payment of any part of that compensation.

16.  Madam Ma is absent today and has not lodged a defence or indicated an intention to adduce evidence, the court has to rely solely on evidence of the plaintiff, Mr Tse. On that basis, I am satisfied that Mr Tse has shown he alone had paid for the property, including the down payment and the subsequent mortgage instalments, that it was his practice to include Madam Ma’s name in the properties he invested in, such as the three Housing Department commercial and industrial units, so that she could look after the business and technical matters and deal with the Housing Department on his behalf. Putting her name in the property as a joint tenant with him was not an advancement to her.

17.  As the defendant had failed to contact Mr Tse throughout the years to claim any part of her interest in the property and she had failed to lodge an opposition in these proceedings to oppose the application, there is no evidence against the evidence adduced by Mr Tse.

18.  On the aforesaid basis, I grant the declarations sought by the plaintiff, Mr Tse, with costs to the plaintiff to be taxed if not agreed and the plaintiff’s own costs to be taxed in accordance with Legal Aid Regulations. The declarations shall be as follows:

The Order

20.  I further grant to the plaintiff liberty to apply on the enforcement of the court’s order.