LIANG XIAOZI v. TONG KWOK CHUNG (唐國忠), The Sole Executor to the Estate of Tse Yee Sun (謝致燊) otherwise known as Tse Chee Sun (謝致燊), deceased

HCA 119/2020

[2026] HKCFI 363

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 119 OF 2020

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BETWEEN

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J U D G M E N T

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Introduction

1.  Madam Liang (“P”) brought this action to claim beneficial ownership of 3 properties located in the Mainland (“the 3 PRC Properties”) previously registered in the name of the late Madam Tse Yee San (“the Deceased”) in reliance on an alleged oral agreement between the Deceased and her.

2.  Mr Tong is the sole executor of the estate of the Deceased (“the Estate”). The Estate is the first defendant herein. Mr Tong maintains a neutral stance for the Estate in this dispute.

3.  Tung Wah Group of Hospitals (“TW”) is a well-known century-old charity in Hong Kong and needs no introduction. TW was bequeathed with the 3 PRC Properties in the last will of the Deceased dated 26 January 2007 (“the 2007 Will”).

4.  At the trial, Ms Lau appears for P, Mr Lau, together with Ms Kwok, appears for Mr Tong and Mr Wong appears for TW.

Undisputed/indisputable background facts

5.  All the parties have helpfully provided an Agreed Statement of Facts and an Agreed Chronology. The following matters are largely gleaned from these two documents.

6.  The late Leung Yuen Sheung (“YS Leung”) was the husband of the Deceased. They did not have children.

7.  The late Madam Cheng Baozhen (“Madam Cheng”) was the lawful and natural mother of the Deceased. She passed away in 1990.

8.  P is the daughter of the late Mr Liang Yancheng (“YC Liang”) and Madam Liu (“the Mother”). P is their eldest child born in 1953. Madam Leung (“the Sister”) is their second child and Mr Leung Siu Ching (“the Brother”) is their youngest son.

9.  Madam Cheng was the godmother of YC Liang. YC Liang was the cousin of YS Leung.

10.  The Deceased became the registered owner of the following 3 properties in the PRC (collectively “the Demolished Properties”) known as:

(1) 中山六路瑪瑙巷適安里一號 (“Shi On Lane Property”);

(2) 中山7路185號(前舖) (“Shop 185”);

(3) 中山7路185號或志和里5號(後居) (“Residence 185”)

11.  Shop 185 and Residence 185 formed part of one aggregate property comprising a front shop and a dwelling place in the rear, and share one title certificate.

12.  Shop 185 and Residence 185 were gifted to the Deceased by Madam Cheng before her passing. Shi On Lane Property had been registered in the joint names of YS Leung and the Deceased until the demise of YS Leung in 1993.

13.  Because of re-development of certain districts in Guangzhou (“the Re-Development”) in the late 1990s, the Demolished Properties were torn down and the Deceased was assigned the 3 PRC Properties located in Guangzhou as the replacement for the Demolished Properties.

14.  On 25^th September 2006, the Deceased executed a power of attorney (“the 2006 Power of Attorney”) to appoint Madam Cheng Foon who was the mother of Madam So to deal with the Shi On Lane Property, including the application for and/or obtaining the title certificates, management of the Shi On Lane Property (including handling matters regarding its demolition and/or re-development) and collection of the rent.

15.  In or about 2008, the Re-Development was completed. The Demolished Properties were converted to the 3 PRC Properties in the following manner:

Before Re-Development (the Demolished Properties)	After Re-Development (the 3 PRC Properties)
Shi On Lane Property	廣州市中山六路瑪腦巷福地軒大廈612室 (“Room 612”)
Shop 185	中山七路191號首層38號舖 (“Shop 38”)
Residence 185	中山七路189號美茘心築 C1棟1803室 (“Room 1803”)

16.  The Deceased passed away on 29 July 2014 with the 2007 Will. The 2007 Will revoked the Deceased’s previous wills dated 29 April 1986 (“the 1986 Will”), 28 February 1994 (“the 1994 Will”) and 5 July 2002 (“the 2002 Will”).

17.  By the 1986 Will, the Deceased bequeathed all her estate both real and personal whatsoever and wheresoever to her husband, i.e. YS Leung.

18.  By the 1994 Will, the Deceased revoked all her previous wills including the 1986 Will and bequeathed all her properties in the Mainland both real and personal to P, the Sister and the Brother absolutely and in equal shares. Each of them was also bequeathed a share in the residual estate.

19.  By the 2002 Will, the Deceased did not change her disposition relating to her estate in the Mainland and P, the Sister and the Brother remained to be the equal beneficiaries. The Deceased appointed the Sister to be the executrix of the Estate and to hold the Estate not yet devised or bequeathed for TW.

20.  By the 2007 Will, Madam So was appointed as sole executrix of the Estate. TW is the sole named beneficiary of the Estate. TW became the owner of the Demolished Properties and the 3 PRC Properties after the death of the Deceased.

21.  On 19 January 2015, Madam So obtained probate of the Estate (“the Grant of Probate”) and Madam So had been administering the Estate until 3 June 2021.

22.  On 20 April 2016, the Mother commenced FCMP 83/2016 proceedings (“the FCMP Proceedings”) for maintenance under the Inheritance (Provision for Family and Dependents) Ordinance, Cap. 481 (“the IPFDO”). Madam So as the sole executrix of the Estate is the first respondent and TW is the second respondent. The Mother, among other things, claims for the possession, use and benefit of the 3 PRC Properties and the full control and benefit of rent and/or profits obtained from the 3 PRC Properties during her lifetime on the ground that, among other matters, she had been maintained by the rental collections from the Demolished Properties and/or the 3 PRC Properties (collectively “the Properties”) before the death of the Deceased.

23.  On 8 June 2017, a tri-parte settlement was reached for the FCMP proceedings. DDJ Rita So made an order (“the Settlement Order”) that the FCMP Proceedings be stayed on terms.

24.  On 22 January 2020, P commenced the present proceedings and alleges that she is the beneficial owner of the 3 PRC Properties by reason of the alleged oral agreement reached in early 1994 (“the 1994 Agreement”).

25.  Mr Tong was appointed the sole executor of the Estate in Madam So’s stead because of her health condition pursuant to an order made by Madam Justice Bebe Chu dated 3 June 2021. Mr Tong is the Head of Fund-raising Division of TW.

26.  On 10 July 2021, Madam So passed away.

27.  By an order dated 30 July 2021, Mr Tong substituted Madam So in the two sets of legal proceedings concerning the Estate, viz, (1) as the 1^st defendant in the present proceedings and (2) as the 1^st respondent in the FCMP Proceedings.

P’s pleaded case and evidence

28.  A large part of P’s pleaded case relates to the background facts outline above. I would add the following matters and it should be noted that some of these matters took place before the birth of P.

29.  YC Liang served the army and after his retirement from the army in or about 1947, he worked in Telecom Bureau of Guangzhou and resided with Madam Cheng at Residence 185. YC Liang married the Mother in 1952 and gave birth to P in the following year. Residence 185 was the residence of YC Liang and his family whilst Madam Cheng, the Deceased together with YS Leung left the Mainland and settled in Macau in or about early 1950.

30.  Before she left the Mainland, Madam Cheng asked YC Liang and the Mother to stay in Guangzhou to take care of and maintain the status quo pending their complete settlement in Macau.

31.  Later, Madam Cheng, the Deceased and YS Leung moved to Hong Kong and P’s family remained in Guangzhou.

32.  Madam Cheng, the Deceased and YS Leung intended to adopt P in or about 1955 and P came to Hong Kong and resided with them between 1955 and 1960. P returned to Guangzhou in 1960 due to her long term sickness in Hong Kong.

33.  YC Liang could not survive the persecution during the Cultural Revolution. After the Cultural Revolution in mid 1970s, P and her family continued to dwell in Residence 185.

34.  The PRC Government allowed rental business in the private market after the Cultural Revolution. Madam Cheng and the Deceased allowed the Mother to lease Shi On Lane Property and Shop 185 out to make rental profits so that the Mother could support her family financially.

35.  On the other hand, the Deceased rekindled her interest in adoption. She asked the Sister to go to Hong Kong to join her family as their adopted daughter. The Sister did so in or about 1985 and stayed at their residence taking care of them until their respective deaths.

36.  In or about 1994, Shi On Lane Property was in a bad condition with water seepage and maintenance problems. The tenant staying there refused to pay rent for a long time.

37.  Around the same time, Shop 185 and Residence 185 were also in poor conditions. This led to the creation of the 1994 Agreement.

38.  The pleaded case of the 1994 Agreement is that the Deceased represented to P that if she managed at her own costs the Demolished Properties for the Deceased, including any litigation, removal, demolishment, improvement, maintenance and rental matters of the respective properties for the Deceased, the Deceased will let P (or any nominated person from P’s family such as the Mother) have ownership of the Demolished Properties (and any new property or properties upon each property’s demolishment and reconstruction) upon the death of the Deceased and P agreed with the Deceased.

39.  Pursuant to the 1994 Agreement, the Deceased executed two Power of Attorney duly notarised in favour of P so that P could be authorised to deal with the management of the Demolished Properties.

40.  There is ample documentary evidence of the management of the Demolished Properties by all of the Mother, the Sister and P. For example, there are some rental agreements signed by P and the Sister on behalf of the Deceased in respect of Shi On Lane Properties, Shop 185, Room 612 and Shop 38. There are a lot of payment records for various services such as utilities and building management rendered to the Demolished Properties and Room 612 and Shop 38. There are also agreements for compensation for the demolition of the Demolished Properties between different Guangzhou companies and P as the agent of the Deceased.

41.  In March 1995, P as the agent of the Deceased issued a writ to start a civil action in Guangzhou to make a claim in breach of tenancy agreement against one Mr Wan Zhen Bang (萬鎮邦). Mr Wan signed a tenancy agreement for his occupation of Shi On Lane Property from August 1991 to July 1993 but he defaulted his rental payments from May 1993 onwards.

42.  It was recorded in a civil dispute mediation document issued by Guangzhou Province YueXiu District People’s Court dated 23 May 1995 that P on behalf of the Deceased entered into an agreement with Mr Wan to settle the civil action.

43.  P says that in 2002, she told the Deceased that she wished that the 3 PRC Properties would be transferred to her, the Sister and the Brother instead of her solely. She says that pursuant to her instruction, the Deceased executed the 2002 Will.

44.  To her astonishment, after the passing of the Deceased, she found out that the Deceased had executed the 2007 Will, which disposed of the interest in the 3 PRC Properties in breach of the 1994 Agreement and their mutual understanding shown in the 2002 Will.

45.  On or about 29 August 2014, Madam So as the sole executrix of the Estate, told P that the Mother would be asked to leave Room 1803 and surrender all the 3 PRC Properties to her.

46.  P contends that since the death of the Deceased, there has been no legal action to recover any of the 3 PRC Properties from her. P has all along been managing the 3 PRC Properties and paying for the expenses incurred.

47.  P produced a written statement jointly signed by the Sister and the Brother dated 4 August 2022 (“the Joint Statement”). In the Joint Statement, it is stated that the Sister and the Brother knew the intention of P that she wanted to share the ownership of the 3 PRC Properties which the Deceased had promised her to be gifted to her after her death. However, they decided to abandon any interest in the 3 PRC Properties and leave it entirely with P.

48.  The Sister and the Brother said that they were aware of these proceedings and for a clear confirmation of their decision, they made the Joint Statement.

49.  P then pleads that against this background, it would be unfair and unconscionable for the Deceased to deny the existence of the 1994 Agreement and the Deceased should be estopped from denying P’s interest in the 3 PRC Properties.

50.  P makes an alternative plea that the Deceased has held the 3 PRC Properties as constructive trustee for P since 1994.

51.  In the prayer for relief, P claims:

(1) A declaration that the 1994 Agreement is valid and enforceable against the Estate (“Prayer (1)”);

(2) A declaration that the 3 PRC Properties are beneficially owned by P by the operation of constructive trust and/or the 1994 Agreement and/or an estoppel that the Deceased be estopped from denying her interest in the PRC Properties (“Prayer (2)”);

(3) An order that the title of the 3 PRC Properties should be transferred to P and D1 and D2 should execute any documents, declaration and assignment for such purpose (“Prayer (3)”); and

(4) Costs.

The Estate and TW’s respective pleaded cases and evidence

52.  Mr Tong very properly adopts a neutral stance towards P’s claim. In the Defence filed on behalf of the Estate, some additional information is provided. I should only mention those matters germane to the disputes between the parties.

53.  The most significant matter is the FCMP Proceedings. Details relating to the FCMP Proceedings are pleaded. There, the Mother said that after the Cultural Revolution, she used the rent collected from the Demolished Properties to pay her family expenses and medical expenses and to support her own living. She further alleged that there were water leakage problems in Shi On Lane Property and hence it had long fallen into disrepair and disuse.

54.  The Mother then affirmed on oath the following matters to support her claim under section 3(1)(ix) of the IPFDO. First, the Deceased had allowed her to occupy and use Room 1803 (formerly Residence 185) free of rent and secondly, the Deceased had allowed her to use and benefit from the rental income received from Shop 185. The Mother merely claimed for possession, use and benefit of the 3 PRC Properties during her lifetime, and for the full control and benefit of rent and/or profits obtained from the 3 PRC Properties during her lifetime.

55.  Indeed, as shown by the compensation agreements issued by the authorities in Guangzhou, monthly payments (including the amount of RMB803.71 for Shi On Lane Property) were made to P as compensation.

56.  By the Settlement Order, the FCMP Proceedings have been stayed on the following terms:

(1) TW as the sole beneficiary of the 3 PRC Properties should make a monthly provision to the Mother at HK$5,500 and allow her to continue living in and using the 3 PRC Properties.

(2) The Mother should be responsible for the expenses of upkeep the 3 PRC Properties.

(3) If the Mother moved to an elderly home, she should give vacant possession of the 3 PRC Properties to TW and TW should make monthly provisions in the sum of HK$8,800 to the Mother.

(4) The monthly provision should be paid into the designated bank account of the Sister.

(5) The Mother was to assist TW in obtaining the legal titles of the 3 PRC Properties, upon which TW could authorize the Sister to continue to collect rent during the lifetime of the Mother.

(6) The Sister undertook that she should use the money for the maintenance of the Mother, and should assist TW in obtaining the legal titles of the 3 PRC Properties. She would also prepare a yearly tenancy report for TW and to inform TW of the death of the Mother.

57.  It is noteworthy that though the Sister is never a party to the FCMP Proceedings, she made an affirmation to support the claim of the Mother.

58.  It is averred in the Defence that the claims and the evidence of the Mother in the FCMP Proceedings expressly or impliedly recognized and accepted that at all material times, the Properties were beneficially owned by the Deceased and they formed part of the Estate. It is further averred that P’s claim in the present proceedings are inconsistent with that of the Mother in the FCMP Proceedings.

59.  In her Reply, in relation to the FCMP Proceedings and the Settlement Order, P merely pleads that she is not privy to the FCMP Proceedings.

60.  TW in its Defence fairly accepts that it has no personal knowledge of the dealings between P and the Deceased.

61.  However, as a party to the FCMP Proceedings, TW was in a position to point out that the Sister throughout assisted the Mother including the negotiations between the Mother and TW leading to the making of the Settlement Order. The Sister must know the terms of the Settlement Order.

62.  TW contends that P should have been aware of the FCMP Proceedings and the 3 PRC Properties were the subject matters of the same. TW points out that P never raised any objection in any manner throughout the FCMP Proceedings.

63.  In her Reply to the Defence of TW, P merely observes that TW does not plead any particulars of the alleged knowledge of the FCMP Proceedings on her part. P further points out that the terms of the Settlement Order regarding the Mother’s right to use and occupy the 3 PRC Properties and the financial provisions given to her have nothing to do with the ownership, title and/or proprietary rights of the 3 PRC Properties.

Agreed issues to be determined

64.  The parties have agreed that the following 7 issues to be determined by this court:

(1) Whether the 1994 Agreement was reached by the Deceased and P and, if so, on what terms?

(2) If the 1994 Agreement existed, whether it is valid and enforceable against the Estate?

(3) If the 1994 Agreement is valid and enforceable, whether P has performed her obligations thereunder including the maintenance and payment for the upkeep of the Demolished Properties?

(4) Whether P is/was the beneficial owner of the Demolished Properties and the 3 PRC Properties as a result of the Re-Development?

(5) Whether the Deceased and Mr Tong and/or TW hold the 3 PRC Properties as the constructive trustee(s) for P and/or estopped from denying her beneficial interests in the 3 PRC Properties?

(6) Whether P is entitled to the remedies sought?

(7) Whether this court has and/or should exercise jurisdiction to grant relief in relation to the 3 PRC Properties situated outside this jurisdiction?

Discussion

Jurisdiction issue

65.  Logically, I should first start to deal with the jurisdiction issue. If this court has no jurisdiction over P’s claim, her case must be rejected sub limine.

66.  The jurisdiction issue is actually raised by Mr Wong. He submits that the well-established Mocambique rule casts doubt on whether P’s claim falls within the jurisdiction of this court.

67.  The Mocambique rule was founded in British South Africa Company v Companhia de Mocambique [1893] AC 602 and, in simple terms, the Mocambique rule is that a court has no jurisdiction to determine dispute issue and concerning title to or interests in immovable property outside its jurisdiction.

68.  As explained by the learned editors in Dicey, Morris and Collins on the Conflict of Laws (16^th ed.) Vol.2 at §24R-025, the Mocambique rule is subject to two exceptions. First, where the claim is based on a contract or equity between the parties and second, the question has to be decided for the purpose of the administration of an estate or trust and the property consists of movables or immovable in England as well as immovable outside England, the Mocambique rule has no application.

69.  The learned editors in Dicey, Morris and Collins on the Conflict of Laws further explains the scope of the exceptions in the following terms:

(1) The jurisdiction cannot be exercised if the lex situs would prohibit the enforcement of the decree;

(2) The jurisdiction cannot be exercised against strangers to the equity unless they have become personally affected thereby;

(3) the jurisdiction cannot be exercised if the court cannot effectively supervise the execution of its decree; and

(4) the jurisdiction cannot be exercised unless there is some personal equity running from the claimant to the defendant.

70.  In Chan Wing Ka John v Chang Wing Dee & Anor. [2023] HKCA 876, the Court of Appeal referred to §4.041 of The Conflict of Laws in Hong Kong (3^rd ed.) and applied the Mocambique rule with its exceptions to this jurisdiction (at §71).

71.  I agree that the Mocambique rule should be applicable in Hong Kong.

72.  There is no dispute that the Properties are situate outside this jurisdiction. The Mocambique rule, prima facie, applies to the present case in which the interests in these Properties are at issue.

73.  Mr Wong fairly points out that Prayer (1) concerns the validity and enforceability of the 1994 Agreement and Prayer (2) is based on the alleged constructive trust or proprietary estoppel. Mr Wong submits that the latter is a claim to enforce equitable rights as between the parties and do not depend for their existence on the lex situs, i.e. the laws in Mainland China. Both Prayers (1) and (2) should fall with the first exception.

74.  I agree with Mr Wong’s submission and I am convinced that I should have jurisdiction to determine P’s claim in respect of Prayers (1) and (2).

75.  The problem lies with Prayer (3). There is no dispute that TW is not a legal person in Mainland China. Ms Lau is unable to explain how TW could execute any documents, declaration and assignment to transfer the titles to the 3 PRC Properties to P even if her claim is established.

76.  In the circumstances, this is one of the cases where the lex situs would prohibit the enforcement of the decree of specific performance sought by P and the court cannot effectively supervise the execution of the same. I conclude that the court should not exercise the jurisdiction to entertain P’s claim for Prayer (3) in any event.

The existence of the 1994 Agreement

77.  It appears to me that the fundamental question is whether or not the 1994 Agreement existed. P’s claim for Prayers (1) and (2) is premised upon the existence of the 1994 Agreement. This is essentially a factual issue and it can be determinative and dispositive of the entire claim of P.

78.  Only P herself testified for her case. Mr Tong testified for D1 and Mr Su who is the Chief Executive of TW testified for TW.

79.  On this issue of the existence of the 1994 Agreement, among the 3 live witnesses, only P is able to testify out of personal knowledge. Her credibility is of paramount importance.

80.  Before I proceed to resolve this factual issue, Mr Lau pertinently draws my attention to Ng Po Yu and Anor. v Lam Kai On, the executor of the estate of Wong Mui, deceased [2018] HKCFI 1618. What Au-Yeung J at §49 said is apposite:

“Where a plaintiff is making a claim against the estate of a deceased person who cannot give evidence against her claim, the court has to approach such a claim with suspicion, especially where the only witness in support of the claim was the donee. The court would look for clear and reliable evidence of where, when and what the deceased said. See Yung Shu Wu v Vivienne Sung Wu [2011] 14 HKCFAR 39, §§73-76; Szeto Chak Mei v Chan Lam Shan, §§43 and 99.”

81.  In the witness box, P first confirms the truth and accuracy of the contents of her witness statement and adopt the same as her evidence in chief with one clarification only. She refers to §51 which reads,

「本人的妹妹梁貞子向蘇藴珩女士解釋，有一《1994年的協議》，是謝致燊女士與本人達成的。而廣州市的中國物業租金，是程老太和謝致燊女士之前安排，要拿來用作支付我母親每月的生活費。」

82.  P asks for leave to make an amendment by replacing the words “協議” with “遺囑” (“the Replacement”). As will be explained later, this apparently innocuous amendment is of some significance.

83.  On the other hand, in her Answers to Request for Further & Better Particulars of the Statement of Claim, P says that there were two occasions on which the Deceased told her the offer in the 1994 Agreement. On or around 31 March 1994, P met the Deceased at her residence in Guangzhou and the Deceased told her the offer and then the Deceased did it again when both of them were at the notary office at LiWan District, Guangzhou where two Powers of Attorney were notarised.

84.  In cross-examination, P clarified that they went to the notary office the day after the Deceased visited her residence. Thus, 1994 Agreement should be made on 30 March 1994.

85.  It should be noted that the Deceased executed the 1994 Will in the office of Messrs. Gallant Y.T. Ho & Co. to bequeath all her PRC properties including the Demolished Properties to P, the Sister and the Brother in equal shares on 28 February 1994.

86.  When the Deceased visited P at her residence in Guangzhou just a month after the 1994 Will was made, it is improbable that the Deceased, of her own volition, promised P alone that the ownership of the Demolished Properties would be passed to P or any nominated person from P’s family such as her mother. The alleged promise is contrary to her disposition solemnly made in the 1994 Will.

87.  P’s pleaded case of the 2002 Will is also problematic. It is inexplicable why P had to take advice from her family about the beneficial interests in the 3 PRC Properties in 2002. Her subsequent instruction given to the Deceased that she would wish to have the ownership of the Properties to be vested in P and her siblings in equal shares is unreasonable. If under the 1994 Agreement, the Deceased already promised P or any of her family members designated by P to have the ownership of the Properties upon her death, it is really up to her to decide how she would further dispose of her interests in the Properties after the death of the Deceased. It would be unnecessary for her to give any instructions to the Deceased.

88.  More importantly, the 2002 Will could not have been made pursuant to P’s instruction. The disposition of the Properties in the 1994 Will is already consistent with the alleged instructions. P probably was not aware of the existence of the 1994 Will when she filed her pleadings. Indeed she made no mention about the 1994 Will there at all.

89.  In addition, the FCMP Proceedings are a fatal blow to P’s case. If the 1994 Agreement had ever been in existence, the Mother could not have commenced the same and P would not have allowed its continuance let alone the making of the Settlement Order.

90.  By the order of HH Judge Ivan Wong dated 12 May 2022 (“the Release Order”), Mr Tong and TW are released from the implied undertaking not to use the documents and information only for the purpose of these proceedings. I am alive to the fact that P is not a party to the FCMP Proceedings and there is no issue of res judicata estoppel.

91.  The Mother commenced the FCMP Proceedings clearly on the basis that the Properties remained part of the Estate. The Mother only asked for enjoyment of the 3 PRC Properties along with the income they generate in her lifetime and did not claim any beneficial interest in them. Nor did the Sister do so though she was very much involved in the FCMP Proceedings.

92.  Despite P’s denial, it is plain that the Mother’s claim is in direct conflict of the existence of the 1994 Agreement. By the 1994 Agreement, P, the Sister and the Brother would have become the beneficial owner(s) of the 3 PRC Properties. There is no reason why Madam Liu had to seek those relief against the Estate and TW in the FCMP Proceedings.

93.  Further, as rightly submitted by Mr Wong, if the 1994 Agreement had existed, the beneficial interest in the 3 PRC Properties would not have been vested in TW and there is no reason why TW was made a party to the FCMP Proceedings.

94.  P could only now assert that both the Mother and the Sister did not know the 1994 Agreement and she herself did not know the FCMP Proceedings. Her assertion is utterly incredible.

95.  In her Answers to Request for Further & Better Particulars of the Statement of Claim, P says that when the Deceased and she made the 1994 Agreement, the Mother and the Sister were present during the meeting at their residence.

96.  In cross-examination, P explained that despite their presence, she did not know whether they had actually heard the conversation between the Deceased and her. She noticed that the Mother was in the kitchen whereas the Sister was busy with pouring tea and cutting fruits for them.

97.  This is absurd. The 1994 Agreement concerned both the Mother and the Sister since they could become the owners of the Properties pursuant thereto. It would be a big gift to them. I cannot believe that the Deceased and P concluded the 1994 Agreement without their notice despite their presence. The 1994 Agreement was not meant to be confidential and it should be of interest to both the Mother and the Sister. Even if the Deceased and P did not involve them in their conversation during the visit, I see no reason why P would keep the 1994 Agreement strictly to herself without disclosing it to either of them at any stage.

98.  Moreover, according to her pleaded case, P allegedly took advice from her family concerning the beneficial ownership of the Properties after the death of the Deceased in 2002. I fail to see how P could avoid any reference to the 1994 Agreement in their discussion. In cross-examination, P simply could not offer any explanation.

99.  In addition, in §50 of her witness statement, P states unequivocally that at a meeting on 29 August 2014, Madam So told the Sister that she would demand the Mother to vacate Room 1803 and to hand over the 3 PRC Properties to her.

100.  In this context, P states in §51 that the Sister told Madam So about the 1994 Agreement in reply.

101.  Without the Replacement, P’s allegations in these two paragraphs are logical. The Sister should have replied to Madam So that the 1994 Agreement did not allow her to make the demand to evict the Mother from Room 1803.

102.  However, for obvious reasons, P does not want to say that the Sister already knew the 1994 Agreement in August 2014 before the commencement of the FCMP Proceedings in April 2016. If the Sister had had such knowledge, she would not have assisted the Mother in the FCMP Proceedings and agreed to the Settlement Order under which she took up personal obligations. Therefore, P found it necessary to make the Replacement to change the reference to the 1994 Agreement to the 1994 Will.

103.  As rightly pointed out by Mr Wong, this change made to her witness statement at the eleventh hour does not assist P without a corresponding amendment to her pleaded case where she makes the same allegation.

104.  In any event, I believe the context in §51 obviously does not really allow such a change. The 1994 Will could never have been reached between the Deceased and P. The verb “reach” 「達成」 could only refer to the 1994 Agreement. P was speechless when she was asked to give an explanation as to how the Replacement could make sense and why she applied for the Replacement.

105.  P’s purported ignorance of the details of the FCMP Proceedings is even more incapable of belief. Her allegation that she merely heard of the same is unbelievable. The litigation in Hong Kong must be a serious matter to the Mother and her family. The Mother had to take the trouble to come to Hong Kong and applied for legal aid to assist her to commence legal proceedings. It was her first litigation. P was close to the Mother and the Sister. P must be very concerned. I do not believe P would allow herself to be completely in the dark about the details of the FCMP Proceedings.

106.  On the other hand, the Mother and the Sister could not have kept tight-lipped about the FCMP Proceedings and they must have shared the details with P regardless of how busy P now claims she then was with her daughter and her newborn grandchild. This is particularly so in light of P’s allegation that she took advice from them regarding the beneficial ownership of the Properties in 2002. I am unable to accept the explanation of P that she was mostly in Chongqing and not in Guangzhou from 2014 to 2018. Her physical location is not relevant. Communication knows no distance in the 2010s.

107.  In any event, P must know that the FCMP Proceedings have been stayed because of the Settlement Order. There is no reason why the Mother and the Sister did not tell P the terms of the Settlement Order. Under the Settlement Order, the Mother and the Sister had to assist TW to obtain the titles to the 3 PRC Properties to TW.

108.  Indeed, in cross-examination, P accepted that the Sister had called her and urged her to come back and transfer the titles to the 3 PRC Properties to TW in 2017. In response, P merely told the Sister that she would have something to deal with when she returned. P said she was hinting at something to the Sister. P still insisted not to tell the Sister about the 1994 Agreement and assert her beneficial ownership of the 3 PRC Properties.

109.  This is most unreasonable and unreal. To begin with, there is no reason why P needed to be coy about the 1994 Agreement. She should be forthcoming and advise the Sister that the Settlement Order could not be allowed to stand. She, and possibly the Sister and the Brother, should be the beneficial owner of the 3 PRC Properties and TW is a sheer stranger.

110.  On the other hand, P must know the FCMP Proceedings concerned the 3 PRC Properties by then in any event. P must also be very much alarmed when the Sister asked her to transfer the title deeds to TW. If the 1994 Agreement ever existed, P must believe that the Properties belonged to her. In the phone call, P must have explained this to the Sister and refused to allow any transfers of the titles to TW.

111.  Both Mr Lau and Mr Wong have made thorough submissions on the credibility of P and why the 1994 Agreement could not have existed. I agree with them entirely but I do not need to set out their entire submissions here. Suffice it to say that I agree that P was not an honest witness and had no conviction in her own evidence at all.

112.  I believe that the reasons I have given are sufficient to show that the FCMP Proceedings and the 1994 Agreement are incompatible. If the 1994 Agreement had been made, the Mother could not have started the FCMP Proceedings and agreed to the Settlement Order with the full knowledge of the same on the part of the Sister and P.

113.  I have no doubt that the 1994 Agreement is a fabrication and it was only made up by P some time after the Settlement Order was made.

114.  Mr Wong validly submits that adverse inference could be drawn against P on account of her failure to call the Sister to be her witness to testify in support of her claim. He relies on the established principles explained by Le Pichon JA in Li Sau Keung v Maxcredit Engineering Ltd & Anor [2004] 1 HKC 434 (§28). Mr Wong accepts that the Mother has a plausible explanation for her non-attendance because of her advanced age (over 90) and poor health though no medical evidence is produced.

115.  I agree with Mr Wong that the Sister should have been called given her involvement in the FCMP Proceedings and her alleged interest in the 3 PRC Properties under the 1994 Agreement. Her purported explanation in the Joint Statement is a lame excuse. I fail to understand how the Sister could still maintain such a position in the Joint Statement in spite of the FCMP Proceedings and the Settlement Order. The Sister would have a lot to answer at the trial. I agree that adverse inference is justified to be drawn against P by reason of her failure to call the Sister to be her witness.

116.  As submitted by Mr Lau, the existence of the 1994 Agreement lies at the heart of P’s claim and provides the essential factual basis of the other claims of P in constructive trust and proprietary estoppel. Given my factual finding on the non-existence of the 1994 Agreement, the whole claim of P collapses. It is not necessary for me to give any other reasons why her other claims must fail.

117.  For completeness, on all other agreed issues, I decide against P.

Conclusion and orders

118.  For the reasons given, on the evidence, I am positive that the Deceased and P did not make the 1994 Agreement or any agreement concerning the beneficial ownership of the Properties at all.

119.  The Deceased was generous to P and her family and they were allowed to reside in the Properties free of charge and enjoy the rental income for more than half a century. Their contribution to the maintenance and management of the Properties is only secondary to their enjoyment of the same and it cannot be considered a detriment from any perspective.

120.  The Deceased changed her mind regarding the disposition of the 3 PRC Properties and made them a testamentary gift to TW in the 2007 Will. She was perfectly entitled to do so and her philanthropy is commendable. However disappointed and disillusioned P may be, she should not make dubious claims against the Estate.

121.  There is an idiom in the Cantonese dialect that when someone is allowed to get on a bed, they may ask for a blanket. The Mother somehow managed to get the blanket in the FCMP Proceedings. P wants the entire bedroom. Out of sheer greed, P pursues this action, which is regrettably funded by public resources.

122.  The claim of P must be dismissed.

123.  There is no reason why costs should not follow the event. I make an order nisi that costs of the action including all costs reserved be paid by P to the Estate and TW, to be taxed if not agreed.

124.  P’s own costs should be taxed in accordance with the Legal Aid Regulations.

125.  Last but not least, I thank all counsel for their helpful assistance.