CHUI WAI FONG v. CHUI SUN AND ANOTHER

HCA 2658/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2658 OF 2007

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J U D G M E N T

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A. INTRODUCTION

1.  This is an unfortunate case concerning a fight between the mother (the plaintiff) and a daughter (the 2^nd defendant) over the ownership of a number of public light buses, in particular, when it is common ground that they had had a very close relationship before the dispute arose.

2.  The 1^st defendant was the father of the plaintiff and the grandfather of the 2^nd defendant.  He however passed away on 13 January 2011 after the commencement of this action.  By an order of this court, it is ordered, among others that, the plaintiff do have leave to proceed her claims against the 1^st defendant in the absence of a person representing his estate, provided certain procedures were taken by the plaintiff’s solicitors.  These were complied with later.  In the circumstances, this action proceeds in the absence of a person representing the 1^st defendant’s estate.

3.  For convenience, in this judgment, I would call the plaintiff “the mother”, the 2^nd defendant “Vicky”, and the 1^st defendant “the grandfather”.

4.  For the purpose of this judgment, five public light buses are involved, and they respectively bear the following registration marks: JV5700, LD4376, LF9605, LH5054 and LT3927.  I will refer to the specific registration mark as a reference to that particular public light bus (“PLB”).

5.  Apart from JV5700 (which is registered in the name of the mother’s sister, Chui Wai Lin), the other four PLBs are all registered in Vicky’s name.

6.  As summarized by Mr Suen (counsel for the mother) in his opening, the mother’s central case is that:

(1)  The grandfather and/or Vicky have been holding LD4376, LF9605 and LT3927 on trust for the mother, who is the true owner of these PLBs.

(2)  Vicky owes to the mother money in respect of a loan provided to her by the mother for purchasing LH5054.

7.  The mother therefore claims against the grandfather and Vicky effectively for (a) declarations of her beneficial interest in these PLBs and that they have been holding all rights, benefits and investments of these PLBs on trust for her, (b) an account and payments by the grandfather and Vicky for all benefits deriving from these PLBs and the investments coming therefrom, (c) an order requiring Vicky to (i) transfer the legal ownership of LF9605 an LT3927 to the mother, and (ii) pay the mother the respective sums of $63,243.83 (as the remaining balance of the proceeds arising from the sale of LD4376) and $85,043.87 (as the balance of the loan made to Vicky for her purchase of LH5054). 

8.  Vicky of course disagrees.  She says effectively she has been owning all the disputed PLBs beneficially, and the mother had only provided her with loans in acquiring these PLBs.  She has repaid all these loans.  She therefore counterclaims for declarations of ownership of these PLBs.

9.  It can immediately be seen that the central dispute in this case is a factual one.

10.  Both sides have called a number of witnesses in the trial.  But given that the nature of the dispute concerns and relates to the direct dealings between the mother and Vicky, the principal and most important witnesses are clearly the mother and Vicky themselves.

B.      THE UNDISPUTED FACTS

11.  Before I go to the central disputes, it is helpful and important to set out what are the undisputed facts of this case first.  They are as follows.

12.  In the family, the grandfather had been engaged in buying and selling of PLBs as well as managing them for their operations.

13.  Apparently, the registration document of a PLB only allows one person’s name to be registered as owner.  Thus, even if a particular PLB is owned by more than one person, only one person’s name would appear as the registered owner.

14.  The market value of PLBs (together with their operating licences) had at the material times been generally rising, sometimes even quite rapidly.  Thus, the buying and selling of PLBs could generate handsome profits.  At the same time, the purchases of PLBs usually involved the making of a down payment with the balance of the purchase price financed through a leasing loan.  The operating monthly income of the PLB would generally be sufficient to cover the monthly repayments and the average maintenance cost.  The trading of PLBs was usually conducted through a motor trading company, which also apparently provided the financing.  

15.  At the suggestion of the grandfather, the mother had also participated in the buying and selling of PLBs, with the assistance of the grandfather.  She had been able to make profits in doing so.

16.  It is common ground that in early 2003, she was the beneficial owner of half of JV5700, although it was registered in the name of her sister, Chui Wai Lin.

17.  At that time, Vicky (who is the eldest daughter of the mother) was working at a stall in a wet market selling vegetables.  The salary was not high and she had a saving of only about $10,000.

18.  LD4376 was purchased on 4 August 2003 at the price of $4.39m, of which $3.8m was financed through a leasing loan.  It was registered in the name of Vicky.  At the same time, the down payment for the purchase of LD4376 came from the proceeds of sale of JV5700 arising from the mother’s half interest.

19.  Vicky later also passed the PLB driving licence test and obtained a PLB driving licence.

20.  LF9605 was purchased on 30 October 2003 at the price of $5.13m, of which $4.1m was financed through leasing.  Again, LF9605 was registered in Vicky’s name.

21.  LH5054 was purchased on 4 February 2004 at the price of $5.49m of which $4.1m was financed through leasing.  Vicky borrowed $200,000 from her aunt, Chui Wai Ying for its purchase.  LH5054 was registered in Vicky’s name.  It is common ground that Vicky in fact owned beneficially LH5054.

22.  At the same time, given that the market value of these PLBs had been constantly rising at that time, these PLBs had been subjected to a number of re-financing to raise cash.  How these funds were then used are disputed.  For now, I would set out the common grounds relating to these re-financing incidents.

23.  On 27 April 2004, LD4376 was re-financed and generated a sum of $977,605.07.  A cashier order of $977,605.07 drawn by Vicky was paid to the grandfather’s account.

24.  On 3 May 2004, (a) LF9605 was re-financed and generated a sum of $639,491.69, and (b) LH5054 was also re-financed and generated a sum of $606,483.96.

25.  On 27 October 2004, (a) LD4376 was further re-financed to raise a fund of $467,147.47, and the cheque was made payable to the grandfather, (b) LF9605 was also re-financed again and generated a sum of $466,763.54, and (c) LH5054 was again re-financed to generate a fund of $466,763.54.  In other words, on 27 October 2004, a total sum of $1,400,674.55 was raised through the re-financing of these three PLBs.

26.  On 2 December 2004, a sum of $250,000 was transferred by the mother to the grandfather.

27.  In December 2004, LT3927 was purchased.  It was registered in Vicky’s name.  It is common ground that the grandfather had half interest in it when this was purchased.  It is however disputed in this action whether the other interest was owned by the mother or Vicky at the time of purchase.

28.  On 13 September 2006, (a) LD4376 was sold at the price of $5.96m, and (b) LH5054 was sold at the price of $5.59m.

29.  On 18 September 2006, Vicky transferred $1m to the mother.

30.  On 13 October 2006, a sum of $200,000 was paid to Chui Wai Ying.

31.  In around the end of September and early October 2006, the grandfather wanted to sell his half interest in LT3927.

32.  The mother and Chui Wai Ying attended the grandfather’s home giving him a Chinese Agreement (“the Chinese Agreement”), which stated that the grandfather and Vicky jointly invested in LT3927, and Vicky purchased the grandfather’s half share in LT3927.  This was eventually signed by both the grandfather and Vicky.

33.  The mother later made a transfer of $200,000 to the grandfather for Vicky.

34.  On 17 October 2006, the grandfather’s solicitors wrote to Vicky demanding payment of the balance of the purchase price for his half share in LT3927.

35.  On 6 November 2006, Yu & Associates (representing Vicky) wrote to the grandfather’s solicitors confirming that the grandfather and Vicky jointly invested in LT3927 and Vicky had purchased the grandfather’s interest.

36.  On 20 November 2006, Yu & Associates sent a cheque to the grandfather’s solicitors to settle the balance of the purchase price in buying the grandfather’s interest in LT3927.

37.  On 16 March 2007, the grandfather’s solicitors wrote to Vicky demanding reimbursement of expenses incurred in relation to LD4376, LH5054 and LF9605.

38.  On 31 March 2007, Yu & Associates (representing Vicky) replied to the grandfather’s solicitors.  In this letter, it was stated that Vicky was the owner of these PLBs.

39.  On 9 May 2007, the grandfather’s solicitors replied and stated that those PLBs were held on trust by Vicky for the benefit of the grandfather, and demanded the return of them to the grandfather.

40.  Yu & Associates by their letter dated 18 May 2007 sent to the grandfather’s solicitors again stating on instructions that Vicky was the actual owner of the PLBs.

41.  The mother commenced this action in December 2007 against the grandfather and Vicky, claiming ownership of the various PLBs.

C. THE PRINCIPAL CASE AND EVIDENCE

C1. The mother’s case and evidence

42.  The mother gave evidence in support of her case as follows.

JV5700

43.  The mother’s evidence is that JV5700 was owned by herself and her sister, Chui Wai Lin.  She decided to sell it so as to separate her interest in the PLB from that of Chui Wai Lin’s.  She had never decided to cease investing in PLBs.

44.  It is also the mother’s evidence that she sold her half interest in JV5700 so as to buy and own entirely a PLB, instead of owning only half of JV5700. 

LD4376

45.  The grandfather then helped the mother to identify and purchase LD4376 with the money raised via the selling of JV5700.  She used the money so raised as down payment to purchase LD4376, and then used the income to be generated from the operation of LD4376 to cover the finance repayment and maintenance cost.

46.  The mother’s evidence in relation to how and why she had however asked Vicky to complete the purchase of LD4376 and register as its owner is as follows. 

47.  The grandfather was a bad tempered person with little patience, and he always wanted to have things done very quickly and promptly.  After the grandfather had identified a new PLB that was worth purchasing (ie LD4376), he demanded the mother to act very quickly to buy it.  However, she had to work and could not find time to attend the motor trading company to complete the necessary paperwork and the transaction quickly as demanded.  At the same time, given that Vicky was better educated, conversant in English (as she had completed Form 5 study) and had time, and that she also trusted Vicky (as her own daughter), the mother decided to ask Vicky to go to the motor company to sign the documents for her for the purchase of LD4376.  That was why Vicky became the registered owner of LD4376.

48.  It was also the mother’s evidence in court that she had a conversation with Vicky at the mother’s home (while she was cooking dinner) when she asked Vicky to go to the motor trading company the next day to sign the papers for the mother to purchase LD4376.  The mother emphasized that it was understood by them at that time that Vicky was only to hold the PLB as the registered owner for her benefit.  That was what actually happened, and Vicky became the registered owner of LD4376 on behalf of the mother. 

49.  LD4376 was however later sold by Vicky without the mother’s consent in September 2006.  Vicky then only gave her $1 million back, and the balance of the proceeds of sale, ie $63,243.80, remains outstanding today.

LF9605

50.  Subsequently, the grandfather suggested to the mother that he could borrow a loan (the “Financing Loan”) of about $2,400,000 from his friends on her behalf at a monthly interest of $12,000, so that she could purchase two more PLBs.  The grandfather also advised her not to fund the purchase by re-financing LD4376 because its price was increasing, and she could raise more money if it was re-financed later.

51.  When asked why the incident relating to the Financing Loan was not mentioned in her witness statement, she explained that she thought that a private loan with interest payments was illegal and thus tried not to mention it in her witness statement.

52.  Part of the Financing Loan was used by the mother to purchase LF9605 in late October 2003.  In relation to Vicky’s allegation that LF9605 belonged to her, the mother explained that this was impossible as she was already helping Vicky with the purchase of LH5054 (see below) and would rather save the remaining money for herself.

53.  In relation to the purchase of LF9605, the mother added in her evidence that there was one further reason why she had asked Vicky to be its registered owner.  This was because as Vicky already had a business registration certificate, this arrangement could save money to get another certificate. 

54.  LF9605 was then purchased in October 2003.

LH5054

55.  LH5054 was bought with part of the Financing Loan in around February 2004.  Around that time, Vicky suggested to the mother to let her becoming a true owner of a PLB.  As a result, the mother agreed to on-loan part of the Financing Loan to her for the purchase of LH5054.  The mother said in her oral evidence that the grandfather would not lend money to Vicky directly because he did not trust that Vicky would be able to repay him, as Vicky had no savings and no stable employment at that time.

56.  However, since that Financing Loan was insufficient to cover the down payments for both LF9605 and LH5054[1], Vicky therefore had to borrow a further sum of $200,000 from Chui Wai Ying to purchase LH5054.

57.  After the purchase of these two PLBs (LF9605 and LH5054), the mother and Vicky had each contributed $6,000 to the monthly interest payments for the Financing Loan.  Vicky would give $6,000 to the mother, who would then pay a total sum of $12,000 to the grandfather.

Re-financing of LD4376, LF9605 and LH5054

58.  In April 2004, in light of the significant rise of the market values of the PLBs, the grandfather suggested to the mother to re-finance these PLBs to raise funds to repay the Financing Loan.

59.  The mother agreed.  But since the mother had asked Vicky to handle the re-financing on her behalf, she had no knowledge of the actual amount of funds raised and could only rely on her recollection as to what Vicky had told her.  Based on Vicky’s own evidence, the re‑financing of LD4376, LF9605 and LH5054 in April 2004 had generated $977,605.07, $639,491.69 and $606,483.96 respectively. 

60.  On 27 October 2004, LD4376, LF9605 and LH5054 were further re-financed, generating a total extra fund of $1,400,674.55.  From this, $466,763.54 came from LH5054. 

61.  However, since the money raised by Vicky’s LH5054 on these re-financing was still insufficient to repay Vicky’s part under the Financing Loan, the mother lent her some more money to assist her repayment.  As a result, she still owed the mother $555,292.59. 

62.  Later, during a family gathering among the mother’s siblings, the grandfather told her and her husband that the surplus (after setting of the debts) that belonged to the mother after the re-financing was about $900,000.  He then asked how much they wanted back first from this sum. The husband asked for $300,000, and, as a result, the grandfather wrote a cheque of $300,000 to the mother on 8 November 2004.

LT3927

63.  Shortly thereafter, the grandfather boarded LF9605, which the mother’s husband was there as the driver.  The grandfather said to his son-in-law that he wanted to borrow back the $300,000 to purchase a new PLB.  However, since the mother and the husband did not want to lend more money to grandfather, but did not know how to reject him, they decided to invest in the purchase of LT3927 with him jointly.

64.  So, the mother transferred $250,000 back to the grandfather’s account and paid $50,000 cash to him directly.  This sum of $300,000, together with the remaining $600,000 raised from the second re-financing mentioned above, which was kept by grandfather for the mother, made up the mother’s contribution to the down payment of LT3927.  Thus, the mother and the grandfather each owned half of LT3927.  When the grandfather asked the mother in whose name LT3927 should be registered, the mother again suggested Vicky.   

65.  After the purchase of LT3927, Poon Wing Suet (“Suet”) (who is the mother’s youngest daughter) asked the mother to also let her own half interest of a PLB.  The mother agreed to give Suet her half stake in LT3927, but Suet in return had to be responsible for making monthly payments to contribute to the repair cost of LT3927.  The mother said she wanted to treat these payments as contributions to the repair funds, because the operating income the PLB would be sufficient to cover the monthly financing repayments.  Suet therefore made monthly payments, initially at $2,500, and subsequently at $3,000, sometimes to the mother and sometimes to Vicky.

66.  However, during a family meeting in September 2006 where a quarrel happened, Suet decided to give back all her interest in LT3927 to the mother and waive all the monthly payments that she had already made. 

67.  In around October 2006, the grandfather wanted to sell his half interest in LT3927 for the sum of $555,292.59.  The mother decided to purchase it from him.  The original plan was for Vicky to pay $200,000 by cheque to grandfather on the mother’s behalf as Vicky was owing the mother money at that time as mentioned above.  However, since the grandfather was not willing to accept Vicky’s cheque because he did not trust her, the mother herself eventually transferred the money directly to the grandfather’s account.  The remaining payment of $355,292.59 by Vicky was treated as her repayment of the loan still owed to the mother, which was used to assist Vicky’s repayment of her part of the Financing Loan as mentioned above.

68.  Thereafter, the mother owns the entire LT3927, and Vicky owed and still owes her $85,034.87 after netting off the payment Vicky had made (ie, $440,327.46 - $355,292.59)[2].

69.  In around December 2006, the mother and the husband wanted Vicky to report to them about the accounts of the PLBs, and so the mother, accompanied by Hung (her brother), went to Vicky’s place to request for the same.  When she made the request, Vicky became agitated, and the mother and Hung returned to the mother’s place.  Vicky came up to the mother’s place later and gave her handwritten notes angrily.  They were written by Vicky in the mother’s absence, to account for what was still due to the mother under LH5054 and LT3927[3].

C2. Vicky’s case and evidence

LD4376

70.  Vicky gave evidence that in about 2003, upon the grandfather’s suggestion, she was interested in joining the PLB industry by purchasing a PLB.  She however did not have the money to make the down payment. She therefore proposed to the mother to sell the mother’s half interest in JV5700 and lend the money to her.  The mother agreed and lent her $1m, which was made through the motor trading company by direct transfer (upon the selling of JV5700 and the purchasing of LD4376).  With that loan from the mother and a further loan of $130,000 from the grandfather, she managed to pay for the down payment and acquired LD4376 at $4.93m.

71.  On 4 August 2003, Vicky signed the agreement to purchase LD4376.  That was why the PLB was registered in her name, as she was the actual owner of it.

LF9605

72.  In October 2003, the grandfather told Vicky that there was another PLB available at a good price.  The grandfather agreed to advance the down payment ($1.03m) to Vicky to purchase LF9605 at $5.13m.  The loan was paid directly by the grandfather to the motor trading company.

73.  On 30 October 2003, Vicky signed the agreement to purchase LF9605.  Again, that was why the PLB was registered in her name as she owned it beneficially.

LH5054

74.  In early 2004, the grandfather told Vicky that there was another PLB available.  Due to the lack of money, Vicky borrowed $200,000 from her aunt Chui Wai Ying, and $1.1m from the grandfather to make up the down payment.  In February 2004, she purchased LH5054 at some $5.5m. 

75.  As mentioned above, there is no dispute that Vicky in fact owned this PLB beneficially.

The 1^st re-financing of the PLBs in April / May 2004

76.  On 27 April 2004, LD4376 was re-financed and Vicky received a cheque of $977,605.07.  Vicky then deposited the cheque and prepared a casher’s order for the sum of $977,600 for the grandfather, as partial repayment of the loan owed to him.

77.  On 3 May 2004, LF9605 and LH5054 were re-financed.  As directed by the grandfather, Vicky used the respective sums of $639,491.69 and $606,483.96 from the re-financing as partial payment to purchase a PLB (LK9580) in the name of the grandfather’s wife (ie, Vicky’s grandmother).  This PLB was purchased by the grandfather for the grandmother, and those two sums were then treated as Vicky’s partial repayment of the debt then owed to the grandfather.

78.  In summary, the re‑financing of LD4376, LF9605 and LH5054 generated cash in the total sum of $2,223,575.65, which was all used to repay the loan owed to the grandfather by Vicky.

The 2^nd re‑financing in October 2004

79.  On 27 October 2004, LD4376, LF9605 and LH5054 were re‑financed again.  Vicky was entitled to receive a total sum of about $1.4m.  She then authorized the motor trading company to issue cheques to the grandfather directly, as suggested by the grandfather, so that the grandfather could handle the money for her for possible future investments.

80.  Later on one occasion, the grandfather and Vicky made a calculation of the indebtedness between themselves.  The grandfather said, and Vicky reluctantly agreed, that after setting off all the debts owed by Vicky to him and the sums he held for Vicky, the grandfather only owed Vicky $930,000.

81.  Vicky then directed the grandfather to issue a cheque in the sum of $300,000 payable to the mother, as partial repayment of the $1m loan owed to her.  The grandfather did that on 8 November 2004 and the mother deposited the cheque on the same day.

LT3927

82.  In December 2004, in order to purchase LT3927, Vicky borrowed from the mother another $250,000.  A direct transfer of $250,000 was made by the mother to the grandfather (who handled the transaction), as directed by Vicky.  Together with Vicky’s money then kept by the grandfather, Vicky successfully purchased half interest in LT3927, while the other half belonged to the grandfather.  This was why the PLB was registered in her name, to be owned jointly with the grandfather.

Selling of LD4376 and LH5054, and repayment of loans

83.  In September, Vicky sold LD4376 and LH5054.  On 18 September 2006, Vicky repaid HK$1m to the mother by direct transfer, as full repayment of all the loans owed to mother.

84.  On 13 October 2006, Vicky repaid $200,000 to Chui Wai Ying.

Buying out the grandfather’s share in LT3927

85.  In around the end September 2006, the grandfather agreed to sell his half interest in LT3927 to Vicky at $555,292.59.  Vicky prepared the Chinese Agreement[4] which recorded the initial joint ownership and sale.  In the meantime, solicitors were instructed to handle the completion of the sale.

86.  A deposit of $200,000 was made to the grandfather when the Chinese Agreement was signed.  It was made by way of transfer from the mother’s account to grandfather’s account.  Vicky explained that she was out of Hong Kong for a long trip and therefore requested the mother and Chui Wai Ying to assist to bring the Chinese Agreement and her cheque (of $200,000) to the grandfather’s home.  However, the grandfather refused to accept the cheque but requested a direct transfer of money.  Therefore, the mother made the transfer for Vicky.

87.  The balance of the purchase price was settled by Vicky through solicitors.  The mother admitted this, but alleged that it was a partial repayment of Vicky’s loan owed to her.

88.  The last $200,000 owed by Vicky to the mother was fully settled by way of set-off in a family meeting.  The set-off was made against the money Vicky had borrowed to help paying Suet’s wedding expenses (which was about $200,000 after deducting money received from relatives and friends as gifts) and supporting the younger brother going to study in Japan (also approximately $200,000)[5].

C3.  Assessment of the mother and Vicky’s evidence

C3.1  The primary case of the mother and Vicky

89.  As I understand from the evidence and the pleadings, the mother’s principal case is thus: 

(1) She is the beneficial owner of LD4376, LF9605 and LT3927, as the money used to make the down payments for the purchase of these three PLBs came from her own or loans made to her by the grandfather. 

(2) She accepts that LH5054 was owned by Vicky, purchased partly with the money lent to Vicky by her.  

(3) These PLBs however are all registered in Vicky’s name only because the mother had asked Vicky to complete the paperwork and the purchase transactions on her behalf.  The mother had asked Vicky to do these for her for the reasons that (a) the mother was not free at that time to attend the motor trading company to deal with the paperwork, (b) Vicky was better educated and knew English, (c) the mother trusted Vicky as her daughter, and (d) once Vicky had dealt with the first purchase (LD4376), it was more convenient and economical for her to similarly deal with the rest, in particular given that she had already obtained a business registration for that purpose.

90.  Vicky’s primary case as supported by her evidence and pleadings is in gist as follows:

(1) All the disputed PLBs were purchased and owned by her beneficially.  She managed to do it by obtaining some loans from the mother, the grandfather and her aunt (Chui Wai Ying), and by money raised from re-financing some of the PLBs:

(a) For LD4376, the down payment came from the mother ($1m) and the grandfather ($130,000).

(b) For LF9605, the down payment came from a loan from the grandfather ($1.03m).

(c) For LH5054, the down payment came from a loan ($200,000) from her aunt Chui Wai Ying, and the grandfather ($1.1m).

(d) For Vicky’s initial purchase of her half interest in LT3927, the corresponding contribution to the down payment came from a loan from the mother ($250,000), coupled with the money kept by the grandfather for Vicky, which was the surplus remaining from the funds generated by the earlier various re-financing of LD4376, LF9605 and LH5054.  For Vicky’s later buy out of the grandfather’s half interest in LT3927, the fund came from the mother transferring $200,000 to the grandfather’s account on behalf of Vicky, while the balance was settled by Vicky through solicitors.

(2) Vicky sold LD4376 and LH5054 in September 2006.

(3) The debts owed by Vicky to the mother was thus a total of some $1.45m (initial $1m for LD4376, $250,000 for the purchase of the first half interest in LT3927, and $200,000 for the buying out of the remaining half interest from the grandfather).  The debt was settled in the following way:

(a) Vicky directed the grandfather to issue a cheque in the sum of $300,000 to the mother after the second re‑financing of LD4376, LF9605 and LH5054 in October 2004 (which raised a total of some HK$1.4m odd).

(b) Vicky repaid $1m to the mother in September 2006 from the funds obtained after selling LD4376 and LH5054.

(c) in respect of the remaining balance (which Vicky said was about $200,000), it was settled by way of set-off in a family meeting held sometime in 2006.  The set-off was made against the money Vicky had borrowed for helping Suet’s wedding expenses (which was about HK$200,000) and supporting the brother going to study in Japan (also approximately HK$200,000).

(4) The grandfather’s debt (which in total was about $2.26m) was repaid by Vicky as follows:

(a) After the first re-financing of LD4376 in April 2004 generating a sum of $977,605.07, Vicky gave the whole sum by way of a cashier order to the grandfather as partial repayment of the loan.

(b) After the first re-financing of LF9605 and LH5054 in May 2004, which generated a total sum of $1,245,975.65 (respectively $639,491.69 and $606,483.96), these sums were used directly as partial payment for the purchase of a PLB LK9580.  LK9580 was purchased by the grandfather in the name of his wife (ie, Vicky’s grandmother) as a gift to the grandmother.  These sums were agreed to be treated as another partial repayment by Vicky of the grandfather’s loans.

(c) After the second re-financing of LD4376, LF9605 and LH5054 in October 2004, a further sum of some $1.4m odd was generated.  This was kept by the grandfather for Vicky for possible future investment.  Later, Vicky and the grandfather made a final calculation of the indebtedness between them, and the grandfather said (and reluctantly accepted by Vicky) after setting off any remaining sums Vicky still owed to him from the previous loans, there was only $930,000 left of that $1.4m odd which was held by him for Vicky. The debt then still owed to the grandfather that had been set off by this should thus be about $470,000 ($1.4m odd - $930,000).

(5) Chui Wai Ying’s $200,000 loan was repaid by using the funds generated after selling LD4376 and LH5054.

91.  As I stated above, the mother and Vicky respectively gave lengthy evidence at trial to support their primary case.  They were also subjected to extensive cross-examinations. 

92.  In my view, both of their oral evidence is largely unreliable.  The evidence given by each of them in relation to the essential or central aspects of her primary case is inconsistent, inherently incredible and continued to change materially without any good reasons. Both of them had also been evasive under cross-examination.  I will set out some of the notable examples below.

C3.2  Finding in relation to LD4376, LH5054 and LF9605

C3.2.1  The mother’s evidence on the essential aspects of her primary    case concerning LD4376, LH5054 and LF9605

The purchase of LD4376

93.  The mother’s evidence as to why she had asked Vicky to be the registered owner of LD4376 is unreliable and incredible for the following reasons. 

94.  The mother first gave the reasons for such an arrangement in her witness statement as “當時崔新多次催促本人到車行簽署文件，但由於本人當時每天都要上班，多次均不能安排時間到車行辦理買車手續……我認為她有時間可代我辦理買小巴手續，再加上她是中五畢業有一定的英語水平，可協助處理文件……故本人便要求大女兒潘詠珊相約外公崔新代本人辦理買小巴手續。” [6]

95.  At trial, the mother initially repeatedly confirmed that there were only two reasons for her to ask Vicky to sign the document for her to purchase LD4376.  They are (a) she was too busy at work; and (b) Vicky knew English[7].

96.  For the reason that she was too busy at work to go to complete the paper work, the mother elaborated her evidence as this:  She worked as a tea lady in a Japanese company.  Her work hours were from 8:15 am to 5:15 pm from Mondays to Fridays.  She said the grandfather requested her to go to the motor company immediately and in any event by noon on the next day[8].  She said the grandfather made that request once[9] in the morning[10].  When she could not think of any other ways, she decided to ask Vicky to go for her. 

97.  Testing the above reasons, the mother was asked in cross-examination on several possible alternatives of going to complete the sale herself.  When viewed as a whole, she gave in my view inherently incredible and conflicting answers as to why all these alternatives were not workable:

(1)     She said she could not go on a Saturday.  This was because the grandfather refused when she made that suggestion.  She said the grandfather told her that she had to go immediately “妳呢啲人咁麻煩嘅，叫妳即刻去簽就去簽喇，咁(多)嘢講。”[11].

(2)     She also said she could not go after work in the evening.  This was because the motor company would not wait for her and she could not leave office a bit earlier.  She however could not give a credible explanation as to why the motor company could not wait for her while they did wait for her when she sold EA9768 (a PLB she also previously owned, where she said she arrived at the motor company at almost 6 pm)[12].

(3)     She said she had applied for leave to her superior but the application was refused.  Regarding this, there was a drastic change of evidence, which itself was conflicting:

(a)     On the first day of cross-examination, she said the grandfather phoned her in the morning, and in the office she applied to take 2 hours’ leave on the next morning but was refused[13].

(b)     On the second day of cross-examination, the mother said the grandfather had called him only after she finished work after 5 pm as her phone was turned off.  She then made a phone call to her superior that a night and made an application for leave for the next day.  That was refused[14].

(c)      These are obviously two different versions.  She was reminded of her evidence on the first version by listening to the recorded evidence in court.  She was then asked whether the first version or the second version was true.  Her answer was the first version, and she said that the second version was about LF9605.  She said she had mixed up the two.

(4)     She was asked about the possibility of going to the motor trading company over lunch hour[15]. She gave conflicting and changing evidence as to why she could not do that:

(a)     At first, she said, as a rule of the company, she was not allowed to go out for lunch and had to bring lunch box to office[16].

(b)     On the next day, she confirmed again that she was not allowed to have lunch outside office[17].

(c)      When she was asked to give details of her superior, she was evasive and said her superior left the company for many years.  When counsel for Vicky pointed out to her that they might try to locate her superior to give evidence as to whether there was such a “lunch-hour” rule, she then changed her evidence.  She said she in fact could go out for lunch, but if there were clients in the office during that time, she could not go out[18]. She then said she remembered that at the relevant occasion, there were clients in the office, and thus she could not go out. 

(d)     Not only is the alleged “lunch-hour” rule (that employees were not permitted to go out for lunch) inherently incredible, her explanation as to why she changed her evidence on this is also incredible.  She said she had taken medicine the day before and had been very confused[19]. I accept counsel’s submissions that whether there was such a “lunch-time rule” was not capable of being confused of.  It was a simple fact and it was she who volunteered that information in the first place[20].

(5)     She was also asked by the court whether the grandfather could bring the sale and purchase agreement to her home for her to sign at night.  She said that was not possible because the grandfather insisted that she should sign at the motor company[21]. She however could not explain why so.

(6)     Further, what she said in court is different from what she had said in her witness statement[22].  In her witness statement, she said she for many times could not arrange time to go to the motor trading company.  In court, she clarified that this was incorrect.  What she meant was that she thought of many ways within the same day[23], but not that for several times she had failed arrange time to go.  There is no good explanation as to why she had got it wrong in the first place in her witness statement (which was made in April 2010) but she could now recall this more clearly at trial.

98.  As seen from the above, the mother’s evidence on her inability to find time to go to complete the purchase of LD4376 is inconsistent on its own, contrary to common sense and largely inherently improbable.  She was also very evasive when giving evidence under cross-examination.  I find this part of her evidence clearly unreliable and incredible.

99.  As to the reasons of Vicky’s better education and English proficiency, the mother evidence is that, since the letters from the Government relating to the licensing of a PLB were printed in English and she could not understand them[24], she therefore needed Vicky to be the registered owner of LD4376, so that Vicky could deal with these letters better. 

100.  She was then asked by the court why she could not simply ask Vicky to read and explain the letters to her, without the need to ask Vicky  to be the registered owner of the PLB. The mother could not give any or any reasonable explanations.   

101.  Further, later in cross-examination, the mother was reminded that she had previously managed EA9768 and received letters from Government.  She was then asked whether those letters from the Government were printed in English only, or in both English and Chinese[25].  She eventually accepted that all those letters were printed in both languages.

102.  As the letters from Government were printed in both languages, her reason that Vicky knew English and could read the letters could not stand.  She then gave another reason, being that the documents from the motor trading company were in English only.  However when further pressed under cross-examination, she was unable to identity what parts of the documents from the motor trading company that were in English only, except the models of the relevant PLBs[26].  The models were however provided in Chinese in the sale and purchase agreements.

103.  The mother also gave a further reason at trial for engaging Vicky to handle the purchase procedure for her.  She said Vicky had a higher education level[27].  She accepted that this reason was never mentioned in her witness statement[28]. 

104.  However, it is difficult to understand why a better education had any relationship (and the mother had not explained this) with being a registered owner of a PLB.

105.  Lastly, the mother told the court during re-examination that there was in fact a main reason for asking Vicky to become the registered owner of PLBs on her behalf.  She said as Vicky always stayed at home and had nothing to do, she therefore wanted to give Vicky something to take care of[29].  This answer prompted the court to ask a series of questions, to which the mother gave answers which were illogical[30]: It was simply not necessary to ask Vicky to become the registered owner for her to take care of the mother’s matters.  There is also no reason why the mother did not disclose this “main reason” in her witness statement and examination-in-chief. Further, the “idling at home” story does not sit well with the fact that Vicky had a full time job in the wet market at that time.

106.  Furthermore, it was only when the mother was giving oral evidence that she provided for the first time the details of the face to face discussion with Vicky the night before the purchase of LD4376 in asking her to be registered owner of the PLB on behalf of the mother.  Initially, there was only a general statement in the witness statement that she requested Vicky to handle the purchase procedure for her.  No details were given as to how and where she asked Vicky to do so.

107.  The mother gave further evidence at trial that there was a face-to-face conversation at her home when she was preparing the dinner the night before the purchase[31]. She accepted that this was not mentioned in her witness statement[32] although she remembered this incident clearly[33]. No satisfactory explanation was given as to why she did not provide all these details in the witness statement.

108.  For the reasons I have set out above, I similarly find this part of the mother’s evidence contrary to common sense and inherently incredible.  I further find it unreliable as a lot of the purportedly important evidence was for no good reasons not contained in the witness statement.

109.  In my view, as a whole, the mother’s oral evidence on why she had asked Vicky to be the registered owner of LD4376 is unreliable and incredible, and should not accepted.

The purchase of LF9605 and LH5054

110.  Similar to LD4376, the details of how the mother had asked Vicky to hold on trust for her in relation to the purchase of LF9605 were not mentioned in the mother’s witness statement.  Only a brief description was given: “一如以往，由於本人仍需上班，故我亦委託潘詠珊以信託形式代我持有小巴LF9605。”  At trial, she was asked for the details[34]. She said the grandfather told her that a few days later the papers could be signed.  She then told Vicky that “潘詠珊，你同--幫阿公去簽囉，唔爭在簽埋佢。”

111.  For the same reasons I have explained above in relation to the purchase of LD4376, I find this part of the mother’s evidence on why she had asked Vicky to be the registered owner unreliable.  

112.  Further, in relation to these purchases, certain essential aspects of the mother’s evidence as to how the purchases were financed are also inconsistent.

113.  She said in her witness statement[35]:

“11. 其後車價已升，小巴LD4376亦升值不少。大約2003年年尾，崔新教本人將車牌LD4376紅線小巴再加按上銀行套取現金再分別購買入2部紅線公共小巴。

12. 但其後，崔新說不用加按LD4376，他於是與本人協定他代我向他的朋友借錢共約$2,400,000用作購買2部紅色公共小巴。而我每需還約$12,000元的利息給他。”

114.  However, her evidence under cross-examination was different from that of the witness statement, and even then, that oral evidence itself also changed twice:[36]

(1)     She first confirmed the accuracy of paragraph 11 of her witness statement that the grandfather told her that after re‑financing LD4376 she could buy two more PLBs.  She said that happened only a few months after she had purchased LD4376, but she said she did not feel strange for the grandfather’s suggestion.  She thought it was a good thing that she did not have to pay any more money but could own 2 more PLBs[37].

(2)     It was then pointed out to her that her version of $2.4m loan from the grandfather (paragraph 12 of her witness statement) was different from a letter dated 5 November 2007 issued by her solicitors to the grandfather’s solicitors[38]. At paragraph 6 of this letter, it was stated that the two new PLBs were purchased out of re-financing of LD4376.  There was no mention of the $2.4m loan in this letter.  She was asked for the reason, and her final answer was that “I did not tell my solicitor”[39]. She explained she did not tell her solicitor because she thought it was illegal to pay interest of $12,000 to the grandfather[40].

(3)     However, under cross-examination, she further accepted that the amendment was made after she saw Vicky’s case and discovered that the documents did not support her case[41].

(4)     After being pointed out the above, she sought to embellish her evidence by combining the “re-financing” and “financing by borrowing from the grandfather” together to justify the discrepancy.  She said the grandfather had in fact told her that even after re-financing LD4376, it was insufficient to pay for the down payment and the grandfather would still need to lend her $1.6m to $1.7m[42].

115.  In light of this changing nature of the evidence, and her acceptance that she only changed her case after seeing Vicky’s case, it appears to me that the mother is prepared to change her evidence to suit and embellish her case as when it is so needed.  This part of her evidence is clearly unreliable.

116.  In relation to LH5054, the mother agreed that Vicky had borrowed $200,000 from her aunt Chui Wai Ying.  On cross-examination, it was put to her that this fact was difficult to be reconciled with her case of the $2.4m loan, because if the $2.4m was sufficient to purchase LF9605 and LH5054 as she had suggested in her evidence, Vicky would not have to borrow $200,000 from the aunt. 

117.  Her answers were self-conflicting and also inherently improbable:

(1)     She first said that Vicky could have more cash to use by borrowing $200,000 from her aunt.  The mother said “我問佢做乜借，我話嗰度都夠畀，但係佢話「橫掂都係，益下大個姨個仔(即係石俊杰)，咁等佢入股，就做埋5054一半嘅車主，咁樣就佢有二十萬嘅現金走盞，即係可以--佢即係搵嚟周轉咁樣。」”[43]

(2)     When further asked, she said Vicky borrowed $200,000 because the $2.4m loan was insufficient to pay for the down payment[44]. This is something which was inconsistent with both her evidence a minute ago, and her earlier evidence on the $2.4m loan.    

(3)     When pressed on in cross-examination of the above inconsistency, she then said it was the grandfather who had told Vicky that $2.4m was not sufficient but the grandfather did not tell her[45].

118.  I also accept Mr Wong’s submissions that, in relation to the last part of her above evidence, it was unlikely that the grandfather would have told Vicky but not the mother about this if $2.4m was insufficient.  It is also unlikely that Vicky did not inform the mother about this if she was asked by the grandfather to relay the message, and the mother had asked her directly why she had borrowed $200,000 from her aunt (see her evidence quoted at paragraph 117(1) above).  Moreover, and importantly, in the circumstances, it is unclear as to how, in that case, the mother came to know what the grandfather had told Vicky, but not her.

119.  The above shows that the mother’s oral evidence as to how the purchases of these two PLBs were financed is inexplicably inconsistent and clearly unreliable. 

C3.2.2   Vicky’s evidence vis-à-vis essential aspects of her primary case   concerning LD4376, LH5054 and LF9605

120.  Similarly, material aspects of Vicky’s oral evidence given in support of her primary case in the purchases of these three PLBs also suffer from material inconsistency and incredibility.  I will give some main examples as follows.

121.  One of the most important aspects of Vicky’s case in relation to the purchase of LD4376 is that she borrowed money from the mother (who sold her half share in JV5700 to lend Vicky the money), and she repaid that later by various payments.  However, this part of her case is clearly incredible in light of the following.

122.  First,Vicky’s oral evidence on the amount of loan kept changing at trial without good reasons, which in any event is also inconsistent with her pleaded case and what she has said in her witness statement:

(1)     Vickypleadedthat the mother agreedtoadvancealoanofabout $1,000,000toher.  Sherepeatedthisatparagraph 9 ofherstatement. 

(2)     Subsequently, Vickyconfirmedthatthesumborrowedfrom the mother was exactly$1,000,000[46].  However, when it was pointed to her under cross-examination that the amount of $1m cannot be correct in light of the other parts of the evidence, Vicky changed her evidence and said that(a)theactualamountborrowed fromthe motherwasanodd figure slightlyexceeding$1,040,000; and (b) an agreement was specifically reached at the time between the mother and Vicky that they should round off the loan to an exact amount of $1,050,000 (both of which were never pleaded nor mentioned in Vicky’s statement).

(3)     Her evidence in relation to this changed further during cross-examination.

(4)    It was all along Vicky’s case that she also borrowed $130,000 from the grandfather.  This was to add up the total amount of the down payment: since the down payment for LD4376 was $1,130,000 (which is common ground), thus after deducting the alleged loan of $1,000,000 from the mother, Vicky still needed $130,000 to make up the entire sum.  However, after saying to the court that she in fact borrowed slightly more than $1,040,000 from the mother, the borrowing $130,000 from the grandfather did not add up.  When she was asked about this inconsistency, Vicky said she generously treated the extra sum of $50,000 as borrowed from the grandfather so as to give him “tea money” (茶錢).  I agree with Mr Suen (counsel for the mother) that this is nothing but incredible given that all these are not mentioned in the witness statement and particularly Vicky’s personal saving at the time never exceeded $10,000.

(5)     Further, Vicky said at paragraph 38 of her witness statement that she only owed from the mother $950,000atthetimebutneverthelessrepaida roundedoffsumof$1,000,000to the mother.  Theonlyrelevant factgiveninsupportinVicky’sstatement[47]that $950,000 was owed isthat the grandfather(allegedly on Vicky’sbehalf)repaid$300,000tothe mother whosubsequently gave$250,000backto the grandfather.  What it means from this part of her witness statement is that the $1,000,000 loan was reduced bytheshortfallof$50,000to$950,000.

(6)     Nevertheless,sinceVickychanged her stance in her oral evidenceandallegedan agreement withthe mothertotreattheloanfigureas$1,050,000, themerereductionof$50,000 will not result in $950,000.  When this was pointed out to her, Vicky suggestedfor the first time that,shortly priortothesaleofLD4376,shehadsettled the accountwiththe mother (對數) to reducethe loan amountof$1,050,000 to $950,000,aftertakingintoaccount various allegedrenovation expenses for the mother’s homeofabout$70,000to$80,000and other miscellaneousexpensespaid byher.  In other words, her case and evidence was now that she and the mother had orally settled the accounts on one occasion and came up with an agreed amount of $950,000 to be treated as what she was owing to the mother.

(8)    Further, when it was pointed out to her that, in putting forward the alleged settlement of account, the shortfall of $50,000 resulting from the payment of $300,000 by the grandfather to the mother and the repayment of $250,000 by the mother to the grandfather in 2004 could not be accounted for, Vicky gave evidence that she had simply generously not sought to reduce the loan figure by $50,000, which is contrary to the original stance put forward in her witness statement.

123.  Vicky’s evidence on borrowing money from the mother to purchase LD4376 is thus highly unreliable.

124.  Second,Vicky’s evidenceon the various conversations with the grandfatherandher grandmother duringthe tripto EuropeinOctober 2004andthe re‑financingthereafteris alsoincredible in light of the following:

(1)    Vicky accepted during cross-examination that she only owed the grandfather a modest sum of about HK$90,000 after the first re-financing of the PLBs. 

(2)     Mr Suen then put to her that her suggestion at paragraph 27ofher witness statement that the grandfather told herto re‑finance all 3 PLB store paymoney to the grandfather cannot stand as the re-financing would be able to raise a lot more than necessary to repay him this modest sum.

(3)     In response to this line of cross-examination, Vicky then said thatthe grandfather mentioned to herduringthe Europetripthathewouldliketousethecashgeneratedby Vicky’s PLBstoacquire for himself anotherPLB. 

(4)    However, such evidence was contrary to paragraph 27 of Vicky’s witness statement, where she already stated that the grandfather intended to refinance an earlier PLB gifted to Vicky’s grandmother (ie LK9580 mentioned at paragraph 25 of Vicky’s statement) to acquire a new PLB.   

(5)     When this was pointed out to her, Vicky then alleged that the grandfather did not want Vicky’s grandmother to know that he would be re-financing her PLB (ie, LK9580) in order to acquire another new PLB.  Hence, everything had to be kept secretive from Vicky’s grandmother.  However, this again is contradicted by her own evidence at paragraphs 28 and 29 of her witness statement, which stated that, when the grandfather, herself and the grandmother eventually went to the motor trading company together to complete the paperwork for the re-financing of Vicky’s PLBs and LK9580, it was the grandmother herself who gave instructions to the staff of the company to issue the cheque regarding the sum obtained from the re-financing of her LK9580 to the grandfather.  The court therefore asked Vicky, in so doing, the grandmother must have got to know that her PLB (LK9580) was (a) being refinanced, and (b) the money was to be used by the grandfather.[48] Vicky was then forced to allege that, although her grandmother did visit the car dealer, she did not even know what she was signing.

(4)     Yet, this last version of events is also contradicted by paragraph 29 of Vicky’s statement,where Vicky suggested that:

(a)    She gave all the money (ie HK$1,400,674.55) to the grandfather for safekeeping, handling and perhaps purchase of another new PLB for her some time later (and not the immediate  purchase of a new PLB for her grandmother), and

(b)    As she saw her grandmother directing the car dealer to issue the cheque to the grandfather directly, she also agreed to direct the car dealer to issue the cheque to the grandfather - she was thus relying on what her grandmother consciously did, and then she did the same..

(5)     Most importantly Vicky could not explain why all the evidence about using thatpartofthefunds raisedfromthesecond re‑financing ofher threePLBswereusedtobuyanotherPLB without letting her grandmother know was left out from her witness statements.  

125.  This part of Vicky’s evidence on how to repay the grandfather is therefore again clearly incredible and unreliable.

126.  Third,I also agree with Mr Suen that thereisoneaspectin the use of the$1.4 million arising from the second re-financing, which shows that Vicky was not the beneficial owner of all the three PLBs at the time of the second re-financing in October 2004.  Accordingto Vicky[49],the grandfather ultimately said she could get back only $930,000.  If that was the case, Vicky would have more than sufficient fund to then repay the HK$200,000 loan to Chui Wai Ying immediately.  This is particularly so given Vicky’s allegation(at paragraph 31 of her witness statement) that the grandfather told him that the mother was not in urgent need of repayment of the money owed to her.  Vicky was unable to explain why she did not repay Chui Wai Ying until much later in October 2006.

127.  Thefact that Vicky could not repay Chui Wai Ying the $200,000 even after the re-financing of the PLBs, coupled with a lack of explanation as to why, is (as Mr Suen says, which I agree) more consistent with the mother’s case that the said money belonged to the mother but not hers.  As the mothersaid[50],afte rthe second re-financing in October 2004,the mothercouldgetbackaboutHK$900,000, whileVicky still owed her the financing loan in respect ofLH5054inthe sumof HK$440,327.46.

128.  Moreover, many other parts of Vicky’scase and evidence are alsofullofinconsistencies. Some notable examples are:

(1)     At first, she gave evidence that when she purchased LD4376, she did not know that she needed to find someone to manage it for her.  However, she subsequently told the court that she knew that JV5700 was managed by the grandfather for the mother and Chui Wai Lin, and that she knew that she could also ask the motor trading company to manage her PLB on her behalf[51];

(2)     Her evidence that[52] there was a setting off of accounts between the mother and herself and an agreement to reduce the amount owed by her to the mother from $1,050,000 to $950,000, is inconsistent with her earlier oral evidence at [53] that, in fact, only $1 million was owing in late 2004 prior to the alleged setting off of accounts.  She explained that[54], despite the said agreement, she had decided to treat herself as owing $1,050,000 to the mother later.  This is also incredible in light of the fact that, having first mentioned that the setting off of accounts between the mother and herself happened before the sale of LD4376 and LH5054, she later put forward a different version of events that the accounts were set off after the sale of the PLBs[55]; and

(3)     Vicky also gave inconsistent evidence as to whether she had considered repaying the mother with the funds raised from the re-financing of the PLBs.  When cross-examined, she first said that she had never thought of how to utilise the money.   Then, she said that she would perhaps use it to repay the mother.  However, later on, she told the court that her earlier evidence was incorrect - in fact, she had not thought of repaying the mother[56].

129.  For the above reasons, coupled with the evasive way in which Vicky gave evidence in court, in particular under cross-examination, I find Vicky’s evidence on her case regarding LD4376, LF9605 and LH5054 similarly not reliable and cannot be accepted. 

C3.2.3    Documentary evidence

130.  As explained above, I have come to the view that both the mother and Vicky have not been truthful and candid in their evidence about what had happened in relation to the purchases of these subject PLBs. 

131.  However, after looking at some of the contemporaneous documents adduced in this action, on balance, I find that the mother’s principal claim that LD4376 and LF9605 have been held on trust by Vicky for her and that Vicky owes her $440,327.46 under the purchase of LH5054 is clearly supported by these documents.  I would explain why.

132.  In the trial, there are two handwritten notes and five typewritten notes that have been relied on by the mother to prove her case.  It is the mother’s case that these notes were prepared by Vicky and given to her to give an account of the PLBs’ finances[57].  These type written notes and handwritten notes can be found at trial bundle [E1/461-467].

133.  One of the handwritten notes[58] stated, among others, that “VP” (which corresponds with the initials of Vicky (being Vicky Poon)) owed “F” or “Fong” (which corresponds with the mother’s name Chui Wai Fong) two specific and exact sums of $200,000 and $63,243.85. 

134.  Insofar as the sum of $63,243.85 is concerned, this is consistent with the mother’s case that is what Vicky should (as trustee holding LD4376) account to her after the sale of LD4376: $63,243.85 is the exact balance of the net proceeds of sale of LD4376 on 14 September 2006[59] after deducting $1m paid by Vicky to the mother on 18 September 2006[60].

135.  At the same time, the sum of $200,000 is the deposit paid by the mother to the grandfather for purchasing his half share in LT3927 on 29 September 2006.

136.  This handwritten note is therefore consistent with the mother’s case that, in relation to LD4376, Vicky was holding it on the mother’s behalf and therefore had to account to her how the proceeds of its sale were used.  This is thus Vicky’s clear own admission that she had to account to the mother the entire sale proceeds of LD4376 but not (as Vicky’s case says) only the alleged repayment of the loan of $1m (or even the $950,000 which Vicky in her oral evidence (see above) says was a sum agreed between the mother and her by way of a settlement of account made a few weeks before the sale).

137.  Similarly, the other handwritten note[61] shows that in relation to LH5054, Vicky owed a specific and exact sum of $440,327.46 to the mother. If Vicky’s case were true, she could not have owed the mother any money at all in respect of LH5054.  There was no other basis advanced by Vicky as to how and why such a figure was written on the note.

138.  In the premises, this handwritten note is also clearly consistent with the mother’s case in relation to LH5054, but inconsistent with Vicky’s case.

139.  These two handwritten notes are of significant evidential value, since they were made contemporaneously at the time before the relationship between the mother and Vicky had turned sour, and most importantly were prepared and written by Vicky herself (as she admitted under cross-examination).

140.  Vicky in cross-examination sought to play down the significance of these handwritten notes by saying that they were only drafts and the figures in them were all wrong.  Moreover, she said she had never given that to the mother and only put in on a tray at her desk at home at that time.  She did not know how and why the mother got hold of them.

141.  I do not accept Vicky’s said evidence or explanations.

142.  First, she has never sought to explain in the witness statements how these notes came about (as she now sought to say in oral evidence).  This failure to respond to these handwritten and typewritten notes earlier is very significant in light of the following:

(1)    The mother pleaded at the outset that Vicky owed her a sum of at least $440,327.46 in respect of LH5054 and the balance of proceeds of sale of LD4376 of $63,243.85[62].

(2)     Thereafter, on 14 February 2008, Vicky requested for further and better particulars of the sum of $440,327.46 so pleaded in the Re-Amended Statement of Claim.  In response, the mother’s solicitors replied on 29 February 2008 enclosing the typewritten and handwritten notes in support.  Indeed, Vicky also exhibited one of the handwritten notes herself in her affirmation filed on 21 July 2008[63].

(3)     On 3 August 2009, the mother already disclosed the five typewritten notes and the two handwritten notes.  When making the discovery, it was the mother’s position already that these are accounts summary or handwritten records prepared by Vicky for the mother[64].

(4)      The mother specifically explained at paragraph 22 of her witness statement how the liability of $517,091 owed by Vicky to the mother arose in respect of LH5054, and how this was subsequently reduced to $440,327.46, as acknowledged in the typewritten note at El/463(which was corroborated by the handwritten note at El/467, also referred to at paragraph 40 of the mother witness statement).

(5)     The mother also explained at paragraph 38 of her witness statement thatVicky failed to account to her the balance of proceeds of sale of LD4376 in the sum of $63,243.85.

(6)    Notwithstanding the above, Vicky had never provided any explanations before trial as to how these handwritten and typewritten notes came about or denied their authenticity.  It is only until when she was being cross-examined on the handwritten notes, that she came up for the first time the above purported explanations.   

(7)     It is noted that at paragraph 11 of Vicky’s supplemental witness statement, she did say that she had never given these notes (both typewritten and handwritten notes) to the mother. This denial is of suspect: the supplemental witness statement was only made on 24 April 2012, in the middle of the trial.  This was mainly to respond to the mother’s late evidence of a computer hard disk (see below).  This late denial must thus be viewed against the matters mentioned in subparagraphs (1) to (6) above, in particular the facts that she had never so denied before the trial, and also never denied the authenticity of both the typewritten and handwritten notes.  In my view, this very late denial is highly suspicious and should not be accepted.

(8)     Judged in the above context, and that there were no or no good explanations as to why she had never responded to these documents earlier, I am of the view that the denial and these explanations were only made up by her after the trial had commenced and under cross-examination, and must be rejected.

143.  Second and in any event, the explanations Vicky gave to say that the handwritten notes were only drafts and that the figures were all wrong, and she had never given them to the mother are similarly incredible and must be rejected for the following reasons:

(1)    Vicky said that the figure of $63,243.85 had nothing to do with the mother, and was wrongly entered on the handwritten note at El/466.  She later alleged that the handwritten note was prepared when she was talking over the phone to another PLB driver, and so she did a wrong calculation.  This is inherently incredible. The figure of HK$63,243.85 is an odd figure. She could not have mistaken the figure for something else (as opposed to making a wrong calculation), and recorded that she owedsuch figure to the mother, not withstanding the fact that LD4376 was already sold for more than 2 weeks.

(2)     Vicky could not explain why she had to divide the proceeds of saleof LH5054 by 2 in the calculation (as recorded in the handwritten note at E1/466),and why there was a specific reference to a“KIT”(which bears resemblance to the short form of the name of her cousin Shek Chun Kit) in it[65].  Vicky tried to explainthat (a) the calculation was a hypothetic alone because she intended to give half of the proceeds of sale of LH5054 to her brother, and (b) the reference to“KIT”was entirely a mistaken one, as (incredibly) when she was writing the handwritten note, she was also talking over the phone to another driver and a name “Kit” was mentioned.  She therefore had inadvertently and subconsciously written down that name.  These explanations are simply incredible inherently.  In particular, the suggestion that the exact calculation came from her intention to give as a gift to her brother is contrary to common sense.  If Vicky did intend to give a gift to her brother,there was simply no need to divide the proceeds into such an exact sum and have it written out.  In any event, she had never given such a “gift” to the brother.

(3)    Vicky further explained that she owed the mother the sum of HK$440,327.46 as recorded at [El/467] because she had to repay $200,000 to the mother, and had to pay the mother the remainder of $240,327.46 for the money required by Poon Chin Wan (her brother) to study in Japan.  This is again inherently incredible and contrary to common sense:

(a)    If Vicky had wished to provide for Poon Chin Wan, she could have simply made such payment to him directly.  There was no need for a convoluted arrangement for the mother to pay first, and then for such payment (if any) to become a liability to be settled by Vicky to the mother.

(c)      It is also inherently improbable that the money required by Poon Chin Wan would end up in a specific and exact figure of $240,327.46 (when he had not yet set off for Japan).

(d)     There is in any event no such breakdown of the figure of $440,327.46 into 2 components of $200,000 and $240,327.46 in the handwritten note, as now suggested by Vicky.

(e)      This explanation is also inconsistent with Vicky’s explanation of the other handwritten note at E1/466, where (as discussed above) she also alleged an intention to give half of the proceeds of sale of LH5054 to Poon Chin Wan.

144.  For these reasons, I find that the handwritten notes were prepared by Vicky and given to the mother.  I also find that the two handwritten notes clearly showed that Vicky was (a) accounting to the mother the balance of the sale proceeds of LD4376, and (b) confirming to the mother that she owed the mother $440,327.46 for the purchase of LH5054.  

145.  The handwritten notes are thus clearly and unequivocally supportive of the mother’s case that LD4376 was held on trust for her by Vicky, and in that respect, she still owes the mother $63,243.85. 

146.  As I said above, the mother further relies on the five typewritten documents[66] to support her case concerning LD4376, LH5054 and LF9605.  These documents set out various calculations concerning these PLBs in relation to the funds raised by the two re-financing of them, and how much Vicky was owing to the mother for LH5054. 

147.  Similar to the handwritten notes, the mother’s case is that these typewritten documents were prepared and provided by Vicky to the mother to account for the use of money under the LD4376 and LF9605 and how much Vicky was still owing to the mother in respect of Vicky’s purchase of LH5054.  It is therefore consistent with and supports the mother’s case under these PLBs. 

148.  For the same reasons set out in paragraph 142 above, I accept that these typewritten documents were prepared and produced by Vicky and given to the mother.

149.  Therefore, I find that the mother’s case that LD4376 and LF9605 were held on trust by Vicky for her, and that Vicky owed her money for Vicky’s purchase of LH5054 are supported by these contemporaneous documents (ie, the typewritten and handwritten notes) prepared by Vicky herself.  It must be noted that, if Vicky’s case were true, LF9605 was owned entirely by her and she did not borrow any money from the mother to purchase it, it would not be necessary for her to show to the mother the use of the fund raised by re‑financing it.

150.  Mr Wong for Vicky has however submitted that Vicky’s case that she has owned beneficially all the disputed PLBs is similarly supported by a series of solicitors’ letters exchanged between the grandfather’s solicitors and Yu & Associates (for Vicky).  See paragraphs 35 to 40 above. This is further underlined (Mr Wong further says) by the common ground that, when instructions were given to Ms Polly Chan (the handling solicitor in Yu & Associates), regarding the grandfather’s demands for payment of maintenance cost of the PLBs and for the return of the PLBs, the mother together with other relatives were also present.  Thus, Mr Wong contends that it is clear that Vicky’s case should be preferred and accepted in light of those Yu & Associates’ letters.

151.  I do not accept these submissions. 

152.  The Yu & Associates’ letters must be looked at and understood in these relevant contexts: (a) Yu & Associates were acting for Vicky (not the mother); (b) instructions were obtained from Vicky (not the mother), (c) at the same time, the dispute at that time was between the grandfather and Vicky in relation to the payment of the maintenance cost and the beneficial ownership of LD4376, LH5054 and LF9605, the mother was not a party to the dispute, (d) Vicky was the registered owner of these PLBs, and (e) the mother had by then already fallen out her relationship with the grandfather[67].

153.  Further, the fact that the mother also attended the meeting with Polly Chan is neither here nor there.  In particular, it is Mr Wong’s own submissions that the mother’s evidence that she had expressly told Polly Chan that she was the actual owner of these PLBs should be rejected.

154.  Once these letters are, and should be so read in light of all these, they cannot be treated as documents of the mother which are contrary to her own case.  Therefore, the mere fact that Yu & Associates on Vicky’s instructions confirmed (self-servingly) in writing that Vicky was the actual owner of those PLBs cannot (in my view) be regarded as a piece of unequivocal or clear documentary evidence in support of Vicky’s case as against the mother.  They are thus very different from the handwritten and typewritten notes, which are (as I have found above) Vicky’s own documents, and which are contradictory to her own case and supportive of the mother’s case.

C3.2.4  Conclusion on LD4376, LF9605 and LH5054

155.  For all the above reasons, based on the contemporaneous handwritten and typewritten notes, I conclude and hold that LD4376, LF9605 have been held on trust by Vicky for the benefit of the mother. Further, Vicky has to account to the mother the sum of $63,243.85, being the balance of the sale proceeds after selling LD4376.

156.  I also find that and $85,043.87 is owed by Vicky to the mother as the balance of the loan made to her for the purchase of LH5054. As mentioned above, $440,327.46 was acknowledged in the handwritten and typewritten notes to be owed by Vicky to the mother.  However, the mother has limited her claim to $85,043.87 in her Re-Amended Statement of Claim.  This is based on her case that Vicky had repaid $355,292.59 to the mother when she settled the balance of the purchase price of the grandfather’s half interest LT3927 for the mother (see paragraph 68 above).  As would be explained below, I reject that the mother has purchased any interest in LT3927 at all, and that would mean that the mother’s case on Vicky’s said repayment of $355,292.59 also could not stand.  However, given that the mother has not claimed alternatively for the sum of $440,327.46, I am only prepared to give judgment in the sum of $85,043.87 as claimed. This is particularly so as the mother has amended the prayers in her Re-Amended Statement of Claim to ask for the repayment of $85,043.87 instead of the originally pleaded $440,327.46 as the balance of the loan advanced to Vicky.  I would also repeat my observation at paragraph 204 below.

C3.3  Finding in relation to LT3927

C3.3.1  Mother’s evidence vis-à-vis the purchase of LT3927’s first half   stake

157.  The mother said in her witness statement[68] that after the re‑financing, the grandfather first returned $300,000 to her.  Later, the grandfather asked her to lend back to him $300,000.  Since she did not want to lend money to him but also did not know how to refuse him, she could only jointly invest PLB with him.  Therefore, she transferred $250,000 to the grandfather’s account and paid $50,000 cash to the grandfather.  This $300,000 together with $600,000 kept by the grandfather represented her half stake in LT3927.

158.  On the issue of ownership of LT3927’s first half, the mother also said at paragraph 29 of her witness statement that she had once agreed to transfer that ownership to her youngest daughter, Suet.  She said she had asked Suet to “pay instalment on time” (準時供車) by which she meant (as explained in her oral evidence) to pay for repair fees[69].

159.  According to the mother, a family dispute arose later.  Suet then volunteered to give back her interest in LT3927 to the mother, and all the payments she had made were treated as a gift to the mother. 

160.  Suet filed a witness statement in support of the mother’s case in this respect.  It is her evidence that she had made those monthly payments sometimes to the mother and sometimes to Vicky.

161.  Then, on the Saturday before the trial began, the mother disclosed a notebook of Suet, which contained a purported contemporaneous record of those monthly payments[70]. This very late evidence was adduced to support the mother’s and Suet’s case mentioned above.

162.  Suet gave evidence at trial in support of the mother’s case in this respect.  She also gave evidence as to how and why she managed to find the notebook only so close to the trial. 

163.  Insofar as the mother’s evidence in concerned, I reject it for the following reasons.

164.  First, her case on the arrangement of the re-lending of $300,000 to the grandfather (ie $250,000 direct transfer and $50,000 cash) was rather unusual.  She was therefore asked why in cross-examination.  Her evidence was as follows[71]:

(1) She said at that time when she wanted to make the transfer, she did not have sufficient fund in her bank account, so she took extra cash from the safety box in the bank as well.  She was sure about this[72].

(2) Later, she said she took cash both from home and from the safety box.[73]

(3) She said she took cash from the safety box on the day of transfer (ie 2 December 2004, which is a Thursday)[74] but later she said she went to the safety box on a Saturday[75]. She had borrowed money from her colleagues first[76].

(4) However, it was pointed out to her that her bank account shows that there was a credit balance of $316,856.54 before 2 December 2012[77]. She then said she did not ask the staff about the balance as she rushed to do the transfer and there were so many people queuing up[78].

165.  This part of her evidence is clearly incredible. It does not accord with any common sense, is inconsistent on its own, and kept changing when she gave evidence under cross-examination.

166.  Second, the mother’s evidence is contradicted by the following contemporaneous documents:

(1) The Chinese Agreement which expressly recorded the beneficial ownership of LT3927[79]. The document contains a clear statement that the grandfather and Vicky purchased LT3927 jointly in 2004 and each of them owned half interest in the PLB: “LT3927 在2004年二人合資購買全新豐田石油氣之公共小型巴士，以港幣六百九十七萬元正購入，分別由潘詠珊及崔新共同擁有各持一半股份。” The mother accepted that she had read the Chinese Agreement and taken it to the grandfather’s home for Vicky[80]. She could not give any good explanations as to why the document was drafted in that way, and why she had no objection to that if she was in fact the beneficial owner of the first half of LT3927[81].  More importantly, if it were the mother who was purchasing the grandfather’s half interest, it was simply not necessary to have the Chinese Agreement in the first place.

(2) The grandfather’s solicitors’ letter dated 17 October 2006 sent a letter to Vicky[82], which stated that “根據指示，台端與崔新先生共同擁有一公共小型巴士LT3927”.  That is no reason why the grandfather (who purchased the PLB together with the mother in the mother’s case) would have wanted to knowingly state a wrong fact, when demanding the payment of the purchase of its half interest in the PLB (whether that purchase of his half interest was made by the mother (in the mother’s case) or by Vicky (in Vicky’s case)).

167.  Insofar as Suet’s evidence is concerned, for reasons I will explain later in this judgment, I also reject entirely Suet’s evidence.

168.  For the above reasons, I come to the conclusion that the mother’s case that she owned half of LT3927 when it was first purchased is not credible.

C3.3.2   The mother’s evidence as to the purchase of LT3927 second half interest from the grandfather

169.  The mother’s pleaded case[83] is that on 4 October 2006, the grandfather’s half stake in LT3927 was bought out in consideration for the sum of $555,292.59.  That sum was provided by the mother by way of (a) a deposit of $200,000 paid by the mother; and (b) the balance of $355,292.59 paid by Vicky on behalf of the mother. 

170.  In her witness statement, the mother said that the grandfather requested her to buy his half stake in LT3927.  After discussing with Vicky, she paid the deposit of $200,000 and Vicky settled the balance of $355,292.59 on her behalf.[84]

171.  It is common ground that the mother made a transfer of $200,000 from her own account to the grandfather.  However, it is clear even from the mother’s own evidence that she was making this transfer only on behalf of Vicky:

(1) In examination-in-chief, the mother admitted that Vicky had given her a cheque of $200,000 for her to give to the grandfather to purchase his half interest in LT3927.  Since the grandfather refused to accept cheque and requested for cash, the mother said “我就要焗住就我個戶口同佢 (Vicky) 代支二十萬落去。” However, Vicky later refused to return the $200,000 to her despite repeated demands[85]. This was further confirmed in cross‑examination and she added that she requested Vicky to repay the loan for 5-6 times[86].

(2) She also said in evidence she told Vicky “if you do not repay the sum to me, I will take it to mean that it will be mine”, and Vicky replied “as you like (妳鍾意囉)”[87]. She then said, from that time onwards, she treated that the half stake as purchased by her[88].

172.  The mother’s above evidence, in my view, clearly confirms that she did not purchase from the grandfather his half interest in LT3927.  It was Vicky who was purchasing it.    

173.  The fact that it was Vicky who was purchasing this half interest from the grandfather is also supported by:

(1) The Chinese Agreement, which stated expressly to that effect.  In fact, the Chinese Agreement was signed by the grandfather and Vicky precisely for the purpose of purchasing that half interest from the grandfather (where the grandfather acknowledged the receipt of $200,000 as down payment).  As mentioned above, the mother was aware of the contents of the Chinese Agreement and raised on objection.

(2) The facts that (a) the grandfather through his solicitors chased after Vicky for payment of $355,292.59 as the balance of the purchase price, and (b) it was Vicky who settled that sum through her solicitors by way of a cheque[89].

(3) The handwritten note at [E1/466] shows that Vicky owed to the mother $200,000.  I repeat paragraphs 133 and 135 above.

174.  For the above reasons, I have no hesitation in rejecting the mother’s case, and I accept Vicky’s case and find that it was her who purchased the second half interest of LT3927 from the grandfather.

175.  Insofar as if the mother is now relying on Vicky’s alleged later agreement to give the mother the interest in LT3927 is concerned, I reject it. This is never the mother’s case whether in her pleadings or in the witness statement filed. Thus, the mother has not mounted a claim based on an agreement. In any event, the evidence on this respect is also unreliable for the same reason that this is, for no good reasons, never pleaded or mentioned in the witness statement.

C3.3.3  Conclusion under LT3927

176.  In light of my above finding, I hold that LT3927 has been beneficially owned by Vicky.

C4. The evidence of a hard disk

177.  The mother has in the trial relied on an external hard disk (exhibit P2). 

178.  It is her case that this external hard disk was previously used by Vicky before she moved out of her home after the dispute between them has arisen.  The hard disk contained, among others, soft copies of various calculations supporting the typewritten documents and the mother’s case.  The mother sought to rely on the hard disk to support her case that Vicky had been keeping the calculations to account to the mother the use of the various PLBs.

179.  The hard disk was only disclosed to Vicky’s side a few days before the trial.  The mother gave some explanations as to why she only by then found the disk.

180.  Suet and her husband (Cheung Yiu Keung) have also given evidence to explain how the disk was lately found, and how they were unable to open the files within it when first located.  It is also the husband’s evidence that he then took the disk to a friendly computer shop, which was eventually fixed.  The data was then transferred to a USB, from which the files were opened and viewed by the mother (and her lawyers).

181.  Wong Hau Yan (王巧欣), a staff of the computer shop gave evidence to confirm that Suet’s husband had taken the disk to the shop.

182.  After hearing these witnesses, I do not think it is reliable to look at the files contained in it purported to be Vicky’s calculations:

(1) The evidence from the above witnesses shows that the disk had gone past many different stages and hands before the alleged files of Vicky’s calculations were opened.  In particular, Suet and her husband (both are witnesses for the mother in the main dispute) had also handled the disk.

(2) Further, the explanations as to why and how it has taken the mother some five years (since the start of this litigation) to suddenly locate this disk are also unconvincing.

(3) In the circumstances, I am doubtful as to the reliability as evidence of the purported Vicky’s files now found to be contained in this disk.

183.  I therefore do not put any weight to this disk.

C5. The other witnesses

184.  The mother has also called the following witnesses to give evidence for her case:

(1) Poon Kam Hung (潘錦雄) (the mother’s husband);

(2) Suet (潘詠雪) (the mother’s youngest daughter);

(3) 王巧欣 (a computer shop staff);

(4) Cheung Yiu Keung (張耀強) (Suet’s husband);

(5) Chui Kwok Hung (崔國雄) (the mother’s younger brother);

(6) 馮美玲 (the mother’s friend);

(7) 潘耀坤 (the mother’s friend).

185.  Without the necessity of going through their evidence in detail (except Suet, which I would deal with later), I do not think any of their evidence adds any significant weight to the mother’s own evidence on her primary case.  None of these witnesses were materially directly involved in the disputed parts of the dealings between the mother and Vicky on the purchases of the relevant PLBs.  None of them had any direct dealings or knowledge as to how the disputed finances came about or used to purchase the PLBs.  None of them had any direct knowledge or dealings with how the funds arising from the PLBs were used.  Their evidence is thus at most peripheral to prove the mother’s claim that she owns all the disputed PLBs beneficially.  

186.  I therefore do not find any of their evidence helpful or useful to assist me in deciding the principal issues in this action between the mother and Vicky.  I thus put very little weight to their evidence. Suffice to say that for matters that I have disbelieved the mother in support of her case as set out above, these witnesses evidence would not have added anything to the effect of affecting my said view.

187.  Vicky has also called the following witnesses:

(1) Chui Wai Ying (Vicky’s aunt);

(2) Poon Chin Wan (Vicky’s brother);

(3) Poon Wing Sze (Vicky’s younger sister);

188.  Similarly, the evidence from these other witnesses is only of marginal (if any) relevance to Vicky’s case.  In my view, their evidence does not add any extra or material weight to Vicky’s own evidence. Again, none of them were materially directly involved in the disputed parts of the dealings between the mother and Vicky on the purchases of the relevant PLBs.  None of them had any direct dealings or knowledge as to how the disputed part of the finances came about or used to purchase the PLBs. None of them had any direct knowledge or dealings in how the funds arising from the PLBs were used.  In other words, again, for matters that I have disbelieved Vicky in support of her case as set out above, these witnesses evidence would not have added anything to the effect of affecting my said view.

189.  I therefore also only put very little weight to their evidence.

C6. Suet’s evidence

190.  As I mentioned above, Suet gave evidence in support of the mother’s case that (a) the mother had given her the mother’s initial half share in LT3927, and (b) for that purpose, she had been paying a monthly sum (initially at $2,500 and later increased to $3,000) sometimes to Vicky and sometimes to the mother as maintenance cost or contribution to the repayment of the monthly instalments.

191.  In support of her evidence, Suet produced at the trial a notebook[90]. She said she had at the material time recorded those monthly payments to Vicky. The notebook shows, among others, a schedule of her payments of these sums on a monthly basis between July 2005 and September 2006. 

192.  In explaining why the notebook (and copies of its relevant pages) was only produced so closed to the trial, Suet gave evidence in court that she only found the notebook just a few days before the trial, after the mother’s lawyers had urged them to look further for any supporting evidence.

193.  In her explanations under cross-examination:

(1)  She confirmed that, at the time when this action commenced in 2007, she already remembered that there was such a notebook which recorded the payments.  She appreciated that this was an important piece of evidence to support her mother’s case on LT3927.

(2)  Thus, when the action commenced in 2007, she had already looked for this notebook many times but could not find it.

(3)  However, it was only recently, after the urging from the mother’s lawyers, that she tried to look again and finally found it in a large paper recycle box in her home.  She therefore immediately informed the lawyers and disclosed this to the other side.

194.  Her above evidence was demonstrated to be clearly untruthful during cross-examination:

(1)  She confirmed under cross-examination that, if her evidence were true, then the notebook could not have recorded anything that had happened after 2007 (because since then the notebook had already gone missing). 

(2)  This was proved to be untrue, as Mr Wong (for Vicky) pointed out to her that on a number of the pages of the notebook, there were matters recorded with reference dates of 2008 and 2009[91].  She could not explain why that was the case.

(3)  Further, after answering the court’s question that the recycle box should be emptied at least once a year, she was further asked in that case how the notebook could have remained in the recycle box for so long between 2007 and April 2012 without either being thrown away or discovered, she gave an inherently incredible answer that perhaps it was her daughter (who was aged around 4 at the time of trial) who had somehow found the notebook somewhere and put it in the recycle box. 

(4)  When all the above explanations were further tested in cross-examination as improbable, she suddenly became silent for some time before asking the court whether she could say something.

(5)  She then said on her own that she had remembered it all wrongly in relation to the evidence that she had just given as to how the notebook was discovered.  She then went on to change her evidence entirely, and said she in fact found the notebook in a drawer of the computer desk at the mother’s home.  She could not however explain (a) why and how she could have remembered something completely wrongly which had only happened so recently, and (b) why both the mother and she could not find the notebook in the drawer earlier after the action had commenced[92].

195.  In light of the above, it is clear to me that she has made up her evidence as to how she discovered this notebook just before the trial.  It is clearly incredible and untruthful.

196.  Further, in light of her inability to explain why the notebook contains references to matters that had happened after 2007, and why she could only find this notebook so close to the trial, the court have serious doubt as to whether the references in the notebook written at the back of its cover page and on the first page about the lease-financing information of and her monthly payments made for LT3927 were in fact recorded on the notebook contemporaneously in 2005 and 2006 as alleged by her.  In other words, I have serious concerns that these parts of the notebook were only fabricated recently as evidence in support of the mother’s case for the trial.

197.  For these reasons, I have no hesitation in rejecting Suet’s evidence as a whole.  She is prepared to say things that are clearly not true or incorrect to support the mother’s case. 

198.  Further, given my observations above at paragraphs 193-196, the court will consider referring the matter (together with the notebook) to the Secretary for Justice for further investigation and determination as to whether Suet or anyone else should be prosecuted for fabricating evidence in support of the trial and for perverting the course of justice, and any other offences as the Secretary for Justice may consider appropriate.

D.      CONCLUSION

199.  For the above reasons, I accept the mother’s claim that she is the beneficial owner of LD4376 and LF9605, but rejected her claim in regard to LT3927.  I also accept her claim against Vicky for the payment of the sums of $63,343.83 and $85,043.87.

200.  I therefore make the declarations that Vicky has been holding LD4376 and LF9605 on trust for the benefit of the mother.  I also order that Vicky shall account to the mother for all the incomes derived from these two PLBs and transfer the legal ownership of LF9605 to the mother.  I further order that Vicky should pay the mother the sums of $63,343.83 and $85,043.87 with interest at 1% above the prime rate quoted by HSBC from time to time from the date of this writ to the date of this judgment, and thereafter at judgment rate until payment. 

201.  I however dismiss the mother’s claim in relation to LT3927.

202.  I also find there is nothing to justify granting any reliefs against the grandfather as claimed by the mother.

203.  At the same time, for the same reasons, I dismiss Vicky’s counterclaim for declarations, save that I would grant the declaration that she is the beneficial owner of LT3927.  I doubt very much she is entitled to the declaration as to LH5054 when there has never been any dispute that she owns it beneficially.  I am therefore not prepared to grant that declaration.

204.  I must however emphasise that, for the reasons I have set out in detail above, I find most of the material parts of the evidence from the mother and Vicky on how the purchases of these PLBs were financed unreliable, and have not accepted it.  In my view, it is obvious that the mother, the grandfather and Vicky had had a lot of financial dealings in relation to the purchases of the various PLBs, and neither of the mother nor Vicky has been fully candid in their evidence on how the funds had come about and how they were used.  My conclusion as to the beneficial ownership of the disputed PLBs is principally based on the documentary evidence.  My conclusion as to the sums still owed by Vicky to the mother is also based on those typewritten and handwritten notes.  These conclusions therefore may not necessarily tally with their respective evidence on the arithmetic of the various alleged flows of sums.  These however should not in my view affect my findings on the above fundamental issues of ownership.  

205.  Similarly, the fact that I have not accepted the mother’s evidence on the reasons why Vicky has become the registered owner under LD4376 and LF9605 does not affect my conclusions on the true beneficial ownership of these two PLBs basing on the documents.  There may well be other reasons why the mother had asked Vicky to be the registered owners of these PLBs, which both of them have not told the court.

206.  I will now deal with costs.

207.  The mother is successful in part of her case against Vicky, but has failed in respect of her claim in relation to LT3927. Given that substantial time has been involved in the preparation and hearing of the claim relating to LT3927, I think it is only fair in all the circumstances that the mother should only have half of her costs in her action against Vicky.  The costs should be taxed if not agreed.

208.  As the mother has not succeeded in her claim against the grandfather, the grandfather’s estate should have his costs of this action, to be taxed if not agreed.

209.  The above costs orders are made as nisi orders. Unless any of the parties applies by summons to vary them, they shall be made absolute 14 days from today.

210.  Finally, I thank counsel for their very helpful assistance in this matter.