PANG KAM CHUEN, the sole executor of the estate of PANG YEUK CHI, deceased v. PANG KAM BOR

DCCJ 348/2021

[2024] HKDC 110

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 348 OF 2021

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BETWEEN

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DECISION

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Introduction

1.  By my reasoned judgment dated 6 October 2023 with neutral citation number [2023] HKDC 1346 (“the Judgment”), I dismissed this action with costs. On 3 November 2023, the plaintiff (“P”), not satisfied with the outcome, took out a summons (“the Summons”) for (1) leave to appeal; (2) stay of execution pending appeal; and (3) costs.

2.  Having considered, and applying, Tsang Wing Kwai v Tsang Wing Fai [2018] 5 HKLRD 350 [2018] HKCA 759, procedural directions (“the Directions”) were given for the Summons to be dealt with by paper-disposal, without any oral hearing.

3.  Pursuant to and in compliance with the Directions, the parties lodged written submissions, which I have read.

4.  Having read all submissions, I am fully satisfied the Summons (which is devoid of merits) should indeed be disposed of on paper.

5.  This is my decision vis-à-vis the Summons (“Decision”).

6.  In this Decision, I shall continue to use the abbreviations used in the Judgment.

Basic Principles

7.  There is no dispute as to how I should go about deciding the Summons. The Summons being “within time”, the main consideration is whether the intended appeal has any reasonable prospect of success.

8.  In this context, “reasonable prospect of success” means more than fanciful without having to be probable: SMSE v KL [2009] 4 HKLRD 125 (at §17, per Le Pichon JA). Since P’s intended grounds of appeal are, in gist, an allegation that my finding of facts was somehow wrong, I should consider and apply Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310, where the Court of Appeal (at §21, per Au JA) most helpfully summarized the basic principles as follows: -

“(1) Findings of fact may be categorised as:

(a) findings of primary fact;

(b) findings based on evaluation of facts; and

(c) findings based on inferences.

(2) For (a), the Court of Appeal will not disturb a finding of primary facts unless it is “plainly wrong”. The Court of Appeal must be satisfied that the judge had fallen into “palpable error” in his finding of primary fact, such as where the conclusion was one (i) which there was no evidence to support; (ii) which was based on a misunderstanding of the evidence, (iii) which no reasonable judge could have reached. The greater the advantage is enjoyed by the judge over the appellate court in terms of fact-finding (eg, seeing and hearing the witnesses), the more reluctant the appellate court would be to interfere.

(3) For (b), it involves an assessment of a number of factors which have to be weighed against each other. As in appeals against judges’ exercise of discretion, the Court of Appeal will not interfere so long as it is within the degree upon which different judges can legitimately differ.

(4) For (c), depending on whether the inference is made from primary facts or after a process of evaluation, the Court of Appeal adopts the same above approach.”

Intended Ground One

9.  So far as material, P’s intended ground one reads: -

“In deciding on there being no CICT, the Learned Judge erred in allowing his judgment to be misdirected to or overwhelmed by considering the credibility of [D] and his witnesses when he ought to have focused on the inherent likelihood, plausibility, probability, and reasonableness of [D’s] story… By deciding the case on credibility of [D] and his witnesses and not the inherent likelihood, plausibility, probability and reasonableness of [D’s] story, the Learned Judge was palpably wrong.”

10.  In my view, P’s intended ground one is obviously unarguable, and has no reasonable prospect of success.

11.  Firstly, it is clear from the Judgment (§§29 to 33) that I started my analysis by examining the inherent implausibility of P’s case (because that was more important), after which I moved on to state (§34) “even if I were to ignore the inherent implausibility of P’s case, and just focus on the sworn evidence, I would still have rejected P’s case as false because of D’s denial on oath”. When I moved on to analyse D’s case, I likewise started my analysis, at §42, by examining its inherent likelihood (as that was more important). What I did in the Judgment was thus the exact opposite of what P now says I did. P’s intended ground one is simply false[1].

12.  Secondly, it is clear from the Judgment (§§29 to 34) that I was dismissing P’s case on both (1) inherent implausibility; and (2) factors over and above inherent implausibility, and that I would have dismissed P’s case on either ground. That being what my view was, it actually did not matter in this particular case whether I (a) considered one more important than the other; (b) considered both of equal importance; or (c) considered a holistic approach more appropriate because the outcome would have been identical in each of these scenarios.

13.  I refuse to grant leave on P’s intended ground one.

Intended Ground Two

14.  So far as material, P’s intended ground two reads: -

“The Learned Judge erred in rejecting [P’s] story as improbable and accepting [D’s] story as probable… given the following facts not disputed by [D]…”

15.  P then, within this intended ground two, lists out 15 assertions alleged to be “facts not disputed by [D]”.

16.  However, that list is partially false, and partially irrelevant, or at least immaterial.

17.  P’s first assertion reads: -

“At the time of the purchase of the Property, the Father had been repaying two other mortgages and it was reasonable for the bank to prefer a mortgagor much younger and debt free.”

18.  P’s assertion that D did not dispute “it was reasonable for the bank to prefer a mortgagor much younger and debt free” is entirely false. The truth is, D repeatedly and strenuously disputed that. At trial, D’s trial counsel had put to P the Bank would not, in 1986, require a younger person to be the mortgagor[2]. D’s witness statements[3] explicitly said P’s assertion was fabricated (虛構的), unreasonable (不合理), and nonsensical (不合情理的). The fact that D disputed that assertion is also obvious from reading D’s written closing[4], where D also made the very obvious point that P never adduced any evidence from the Bank as to its internal policy back in 1986[5], and so on and so forth. It is, with the greatest respect, highly unsatisfactory for P to insert an entirely false assertion as part of his intended ground two in this manner.

19.  For completeness, I should also mention I was fully aware this was discussed orally in the course of P’s oral opening, when I said this:-

“First of all, … I can see the differences in approach. Mr Cheung would like me to believe that this arrangement is pointless and, therefore, highly unlikely to be true. I do not know whether this is the correct analysis yet, because I haven’t heard the evidence, but I would accept it’s possible for the Bank to think that’s a favourable arrangement… I know that some banks, not all banks, some banks, would like to deal with people with a perfect credit score, someone who has no record of borrowing, and a young person may be preferable in that sense… I know it’s a possibility. Whether, in terms of probability, that’s more probable or less probable, I will have to wait till I have heard the evidence…”[6]

20.  In response to that, Mr Alan Leong SC, leading counsel for P, simply said “of course”, without suggesting I did not need to fully consider the evidence on this since it was somehow agreed or unchallenged. As it turned out, it was challenged, but P chose to adduce no evidence from the Bank, or from any person who worked at or for the Bank in 1986, as to the Bank’s mortgage loan approval policy back in 1986 or the reasons why the Bank approved the mortgage loan for the Property back in 1986. Since P was all along legally represented, that choice must be an informed choice.

21.  Furthermore, even if the Bank preferred a younger mortgagor back in 1986, that does not tell us anything significant. The Property could still be an absolute gift from the Father to D, for all of the reasons stated in the Judgment. That first assertion, even if true, would not make the finding in the Judgment wrong. It would still be open to me, or any judicial officer, to find that the Property was an absolute gift from the Father to D.

22.  P’s second assertion reads: -

“The Father had not only paid the purchase price and pertaining disbursements but all outgoings and expenses in the upkeep of the Property including compliance with building orders for removal of unauthorized building structures, Incorporated Owners contribution notices, and repaid works for persistent concrete spalling.”

23.  That was true but wholly irrelevant, or at least immaterial. As I had recorded in the Judgment (§14), the parties agreed the Father paid for everything. That was perfectly consistent with my finding that the Property was an absolute gift. It would not make the finding wrong.

24.  P’s third assertion reads: -

“[D] and his wife never lived together exclusively by themselves for a single day in what was alleged to be a marital gift from the Father.”

25.  That was also true but wholly immaterial. It would not make the finding in the Judgment wrong.

26.  Indeed, back in 1986, it was quite common for apartments to be shared by close family members, temporarily or otherwise. At trial, D’s Wife gave sworn evidence that things like the exact size of this marital gift were never mentioned by the Father, and so long as it was “an apartment” for her marriage she would be happy[7]. In my view, since the Property cost D absolutely nothing to start with, it was not something highly unusual that it became shared by some close family members, temporarily or otherwise, or that D and D’s Wife became content with this. Putting it differently, the fact that close family members other than D and D’s Wife were allowed to reside in the Property, temporarily or otherwise, did not make the Property any less likely to be a marital gift from the Father to D. As the wise proverb goes, “don’t look a gift horse in the mouth”. If the Property was indeed an absolute gift (and in the Judgment I had found that it was), it actually made sense for D to be generous with it.

27.  In any case, at trial, D gave sworn evidence as follows[8]:-

“咁當時裝修完之後，我老婆係仲未申請落嚟吖嘛… 咁然之後先至叫做臨時喺度大家住住先，都係一家人，有… 有多咗個房出嚟，嗰啲係絕對冇… 冇問題，唔會話，喂，老竇買咗俾你，其他嘢你唔好過嚟呀，唔… 當時係唔會咁… 咁做… 即係喺我個心目中，我已經係好滿足㗎喇，你買咗層樓俾我… 兩個人二人世界，我哋有間房已經可以叫做二人世界㗎喇嘛，即係唔一定我哋一定要自己獨立一個單位，乜嘢人都冇，先叫二人世界㗎，我… 我… 我感覺就係… 係咁嘞… 我老竇買咗俾我，我已經覺得係好滿… 滿足。”

[English translation: “Well, at that time, after completion of the renovation work, my wife had not yet applied to come here… it was only then that we were all temporarily staying there, we were all family members… there was… there was an additional room, that was absolutely no… no problem. Would never say, hey, dad bought this for you, all other things don’t come over… hmm… at that time would never do that… that is to say, in my mind and heart, I was already very satisfied, you have bought an apartment for me already… two people couple space… we had a room… it could be called couple space, that is to say we did not necessarily need to have a separate unit, no other person at all, to qualify as having couple space… I… I… my feeling was, was just that… my father had already bought it for me, I was already feeling very sat… satisfied.”]

28.  Clearly, it was completely open to me, or any judicial officer, to accept D’s evidence on this as true, and/or to find that the Property was an absolute gift from the Father to D, and that D was perfectly content with it being used by other close family members as a shared residence as well, as a temporary arrangement or otherwise.

29.  P’s fourth assertion reads: -

“[D] had only lived for less than 2 years and [D’s Wife] for just 5 months in the Property before they moved out to a wooden hut in 1988.”

30.  That was also true but wholly immaterial. It would not make the finding in the Judgment wrong.

31.  Firstly, there was no law saying if you were gifted a property you must live in it. Many people owned an apartment but voluntarily chose to live in a different one, for a variety of reasons. This was, and still is, an extremely common phenomenon in Hong Kong. The objective fact that D and D’s Wife eventually moved out did not tell us anything valuable about beneficial ownership – it merely told us they preferred living in a different place. Ownership and residence can be, and often are, completely separate issues. Indeed, a person can own an apartment in one jurisdiction but live in a different apartment in a different jurisdiction. P’s fourth assertion does not in any way make the finding in the Judgment wrong.

32.  Secondly, D gave full explanations, on oath, as to why he and his wife moved out of the Property, and his explanations were logical. D’s witness statement[9], which D adopted as his evidence-in-chief, read:-

“大家一起住在葵富大廈時，我已知道後母與太太不和。導火線為太太於1988年不幸流產，自此雙方關係達至冰點。同時，我與父親亦因不同事情有爭拗。當時考慮到我於傢俬舖工作多年毫無收入（除小費外），我決定與太太搬離葵富大廈，亦會離開傢俬舖自行去做裝修賺錢。”

[English translation: “When we were all residing within Kwai Fu Building, I already knew stepmother and wife did not get along. The cause was that wife unfortunately miscarried in 1988, from which point the two parties’ relationship became ice-cold. At the same time, I also had arguments with father because of a variety of different things. At that time, I considered I had absolutely no income (save tips) working at the furniture shop for many years, I decided to move out of Kwai Fu Building with wife and I would also leave the furniture shop to do renovation work by myself to make money.”]

33.  As I had discussed with Mr Alan Leong SC, leading counsel for P, when Mr Leong was on his feet for his oral closing at the trial[10], D’s case was essentially a classic case of “happy wife, happy life” – D was just taking steps to make his wife happy so that he could himself be happy. It was a very common mentality. There was nothing implausible about this. In fact, at all times, it was exceedingly common for a young couple to move out of a residence because of arguments between the wife and the mother-in-law. The fact that D chose to be practical did not mean the Property was never a gift from the Father to D. P’s fourth assertion does not in any way make the finding in the Judgment wrong.

34.  Thirdly, D’s Wife also gave full explanations on oath as to (1) why she wanted to move out of the Property; and (2) why she was happier living in a wooden hut away from her mother-in-law, in these words[11]:-

“我唔想同佢哋嗌交… 我唔想聽埋啲我唔想聽嘅說話… 即係譬如話妳唔好諗住嚟呢度享受勝利果實呀… 落仔唔使做呀… 我呢兩句記到依家呀… 所以好唔開心，真係好唔開心… 我真係唔想聽到呢啲說話囉。”

[English translation: “I did not want to quarrel with them… I did not want to hear things I did not want to hear… in other words, things such as ‘you should not think about coming here to enjoy the fruits of victory’… ‘you should not think about not having to work just because you had an abortion’… I remember these two sentences up to this very day… so very upset, really very upset… I really did not want to hear this kind of words… ”]

35.  At the start of the trial, I explicitly told counsel for the parties this[12]:-

“Every judicial officer deals with cases in a slightly different way and I, for my part, tend to be quite strict about Browne v Dunn, ie., if there is a material allegation in the evidence which you say is untrue, I would expect you to put that to the witness specifically so that the witness would have a chance to give an explanation. But, of course, one has to bear in mind materiality. If it’s something immaterial, and I leave that judgment call to counsel, then it may not be necessary to put the allegations specifically.”

36.  I have no doubt whatsoever counsel for the parties understood what was said, given how experienced and competent they all were. They would in any case be fully aware §10.43 of the Code of Conduct for Hong Kong Barristers independently provided that:-

“A practising barrister must not make submissions impugning a witness whom he has had an opportunity to cross-examine unless in cross-examination he has given the witness an opportunity to answer the allegation.”

37.  In the course of his cross-examination of D’s Wife, Mr Alan Leong SC, leading counsel for P, never suggested to D’s Wife that she lied about her sentiments back in the 1980s. I therefore assume P had accepted those parts of the evidence of D’s Wife quoted above as either entirely true, or immaterial vis-à-vis P’s case. If that is so, it is not open to P to now say D’s Wife had lied about her sentiments, or that D’s Wife had moved out of the Property for reasons other than those as articulated by her. If D’s Wife had moved out of the Property purely so as to (1) avoid arguments with her mother-in-law; and (2) avoid hearing unkind remarks of the kind as quoted above, one cannot see how this could tell us anything significant about the Property’s beneficial ownership.

38.  P’s fifth assertion reads: -

“[D] had been physically absent from the Property for 36 years since he moved out in 1988.”

39.  That was also true but wholly immaterial. It would not make the finding in the Judgment wrong.

40.  Firstly, as I had mentioned, there was never any law saying if you were gifted a property you must live in it. The recipient of an absolute gift could deal with the gift in whatever way he wanted, including allowing his father to live in it as a licensee. The fact that D did not seek to evict the Father from the Property, or seek possession, does not make the finding in the Judgment wrong. I adopt and repeat §§26 to 33 above.

41.  Secondly, D gave full explanations, on oath, as to why he did not seek to evict the Father from the Property, or to get physical possession of the Property, and his explanations were logical. D’s witness statement[13], which D adopted as his evidence-in-chief, read:-

“雖然葵富大廈單位是父親送給我，但出於中國人的道德及孝義，我從沒有想過要把父親及後母邱玉梅一家趕走。即使當時大家鬧翻了，但始終他們都是我的家人，亦照顧我多年，而且三位弟妹年紀尚小。我自己有手有腳，可以離開傢俬舖去做裝修拼搏。所以最後決定我和太太自己離開，容許父親、弟弟彭錦珠（當時同住）及後母邱玉梅一家繼續居於葵富大廈的單位。”

[English translation: “Although the Kwai Fu Building unit was a gift from father to me, out of the moral and filial obligations of a Chinese person, I had never thought about evicting the family of father and stepmother Yau Yuk Mui. Even though we had fallen out with each other, at the end of the day they were all my family members and had also taken care of me for many years and my 3 younger brothers and sisters were still young. I myself had my arms and legs and could leave the furniture shop to do renovation work and fight for a future. So I eventually decided to leave with my wife, permitting father, younger brother Pang Kam Chu (then living with them) and stepmother Yau Yuk Mui’s whole family to continue to reside within the Kwai Fu Building unit.”]

“我同太太努力賺錢，很快就於1991年以按揭買入青衣翠怡花園單位與女兒自住。此後，我們的經濟狀況亦一直不錯，所以我們沒有需要亦沒有打算要把葵富大廈收回。即使三個弟妹已經長大了，但父親亦年邁，我更加沒有理由要收回葵富大廈，出於孝義，我覺得讓父親與邱玉梅一家繼續居住至父親百年歸老也合情合理，沒有任何問題，我亦沒有想過要收任何租金，因為始終是一家人，我自己亦賺到錢，不必貪圖那少少租金。而由於父親一家不用交租住在葵富大廈，管理費、差餉或水電等雜費當然是應該由他們自己負責。”

[English translation: “My wife and I worked hard to earn money, and very soon bought the Tsing Yi Greenfield Garden unit, with a mortgage loan, in 1991, for self-occupation with our daughter. From that point onwards, our financial situation had always been pretty good, so we did not need to, and also did not plan to, regain physical possession of the Kwai Fu Building unit. Although my 3 brothers and sisters had grown up, father was getting very old, so it was even more true that I had no reason whatsoever to regain physical possession of Kwai Fu Building. Out of filial duties, I thought letting the family of father and Yau Yuk Mui to continue to reside there until the eventual death of father was reasonable and fair. There was no problem whatsoever. I had never thought about demanding rent either, since we were a family after all, and I had myself managed to earn money. I did not need to be greedy about trivial rentals. And as father’s family did not need to pay any rental to live in Kwai Fu Building, they should of course be responsible for their own miscellaneous sums like management fees, government rates, or water and electricity charges, etc.”]

42.  It was plainly open to me, or any judicial officer, to accept D’s explanations, given on oath and as set out above, as true instead of false.

43.  Further, in the course of his cross-examination of D, Mr Alan Leong SC, leading counsel for P, had put a number of propositions to D[14], but those propositions did not include any allegation that D had lied about his sentiments, or about the reasons why D did not seek to evict the Father from the Property, or about why D did not seek to gain physical possession of the Property. P should therefore be taken as having accepted those parts of D’s evidence as either entirely true, or immaterial vis-à-vis P’s case. It should not be open to P to now say D lied about these things, and that these are material to P’s case.

44.  For the record, I am aware of the UK Supreme Court’s recent observations in Griffiths v TUI (UK) [2023] 3 WLR 1204 [2023] UKSC 48 (§§42 to 70, per Lord Hodge DPSC) on the importance of complying with the longstanding rule in Browne v Dunn (1893) 6 R 67, what was stated by the Judicial Committee of the Privy Council in Chen v Ng [2018] 1 P&CR DG2 [2017] UKPC 27, and what was said by Stock NPJ in Leung Wing Yi Asther v Kwok Yu Wah (2015) 18 HKCFAR 605 (§43). In my view, in the specific situation of this particular case, it would certainly be wholly unfair to D if a judicial officer were to reject D’s explanations on oath, when P’s leading counsel had never put to D, in the course of his cross-examination of D, that D’s explanations were for whatever reason untrue. In my view, it is certainly fanciful for P to suggest the Court of Appeal would somehow be minded to disbelieve D’s explanations, when no contrary proposition on these issues had ever been specifically put to D in cross-examination.

45.  P’s fifth assertion does not in any way make the finding in the Judgment wrong.

46.  P’s sixth assertion reads: -

“The Property was the Father’s first and only residential property in Hong Kong and it was not probable for him, after so many years of hard work and living in suboptimal conditions, to have wanted to gift the Property to [D] out of his many children.”

47.  P’s strange assertion that D did not dispute “the Property was the Father’s” is obviously false. The truth is, D repeatedly and strenuously disputed that.

48.  Firstly, at trial, D’s counsel had in fact, as one would expect, specifically put to P the central proposition that the Property was never the Father’s but was an absolute gift to D (and thus D’s property instead of the Father’s property)[15]. That was, of course, the reason why we were having a trial in the first place. If D had somehow agreed the Property was actually the Father’s (D never did), this legal action would not exist and there would be no trial at all.

49.  Secondly, as I had mentioned above, D’s witness statement[16], which D adopted as his evidence-in-chief, also read:-

“葵富大廈單位是父親送給我”

[English translation: “The Kwai Fu Building unit was a gift from father to me”]

50.  It was plainly open to me, or any judicial officer, to accept D’s sworn evidence on this as true.

51.  Similarly, P’s strange assertion that D did not dispute “it was not probable for [the Father]… to have wanted to gift the Property to [D]” is also obviously false.

52.  Firstly, at trial, when D was being cross-examined by Mr Alan Leong SC, leading counsel for P, D said this on oath[17]:-

“其實以當年我老竇個財政，根本就可以 full pay 呢層樓添嘅… 我話俾你聽，我哋舖頭當年每年嗰個純利呀，起碼超過50萬，你喺 - 喺86年買咗呢層葵富俾我之後，喺87年好快就買埋工廈，你話佢有冇錢吖？買埋呢個工廈，亦都係俾埋我個後母，邱玉梅。即係你講起… 作到係咪先？火都嚟埋喇。”

[English translation: “Actually with my dad’s financial resources back then, he could have simply bought this unit with payment-in-full… Let me tell you. The net profit, per year, for our shop, back then, at least exceeded 500,000. You in… in 86 bought this unit at Kwai Fu for me, in 87 soon bought that industrial building too. You tell me – did he have money? Buying this industrial building, it was also gifted to my stepmother, Yau Yuk Mui. Just that you are now mentioning this… outrageous fabrication right? I am fuming.”]

53.  D was therefore saying the Father’s financial situation in 1986 was actually very good, and the Father had in 1987 bought another property for the Widow. The point of D’s evidence on this was, at least partially, to demonstrate the extremely high probability of the Father having gifted the Property to D, exactly as D said the Father had. By D’s evidence as set out above, D also made it crystal clear to P that D considered the Father’s story (since adopted by P as P’s story) an “outrageous fabrication” which made D “fume”. Since D made it clear he was disputing the Father’s story as an “outrageous fabrication” which made D “fume”, I am a bit surprised P is now making this strange assertion that D somehow did not dispute “it was not probable for [the Father]… to have wanted to gift the Property to [D]”. P’s assertion is not just strange – it is very obviously false.

54.  Secondly, at trial, D called Hau as a factual witness, and Hau’s witness statement, which Hau adopted as his evidence-in-chief, read[18]:-

“據我當時所知，雖然彭錦波沒有收取工資，但我知外父於葵涌買了一個單位給他。當年我亦有為家中打理生意，我的父親每月給我三萬多的工資。而且當年外父及彭錦波的關係亦十分好，外父亦稱讚彭錦波在傢俬舖很幫到手，所以當時知道外父在彭錦波結婚之後於葵涌買了一個單位送給他，我認為亦很合理，一點都不意外。”

[English translation: “According to what I knew at that time, although Pang Kam Bor did not take a salary, my father-in-law bought a unit in Kwai Chung for him. Back then, I also helped my family manage businesses, and my father gave me a salary of 30,000 odd each month. And back then my father-in-law and Pang Kam Bor had a very good relationship, and father-in-law also praised Pang Kam Bor for being very helpful at the furniture shop, so when I knew father-in-law had, after Pang Kam Bor’s marriage, bought a unit in Kwai Chung for him, I considered that it was very reasonable, and was not surprised at all.”]

55.  The point of adducing Hau’s evidence was clearly to provide additional evidential basis for D to submit it was probable for the Father to have gifted the Property to D, exactly as D said was the case. If the Father was grateful for the valuable work which D had been putting into Kar Wah without taking a salary, it made sense for the Father to make a substantial gift to D, especially for marriage purpose. I mentioned these at §§42 & 43 of the Judgment.

56.  Further, as I had also recorded in the Judgment (§24), Mr Alan Leong SC, leading counsel for P, had never put to Hau that Hau lied or was otherwise an unreliable witness. P must have accepted Hau’s evidence as true, or at least immaterial vis-à-vis P’s case. It is not open to P to now say otherwise.

57.  P’s sixth assertion is simply not “a fact not disputed by D” as alleged. On the evidence adduced at the trial, it was plainly open to me, or any judicial officer, to reject P’s case, and to accept D’s case, for all of the reasons comprehensively set out in the Judgment. P’s current submissions to the contrary are, with respect, simply absurd.

58.  P’s seventh assertion reads: -

“The agreement between the Father and [D] for [D] to act as mortgagor never crossed their minds as being even potentially a criminal conspiracy.”

59.  P’s peculiar assertion that D did not dispute “the agreement” is obviously false. We were having a trial precisely because P alleged there was an agreement, and D said it never happened. Since on D’s case it never happened, that means on D’s case there was nothing there to cross his mind at all. Indeed, D’s case was simple. D’s case was that the Property was an absolute gift from the Father. It was, of course, perfectly lawful for a parent to gift a residential apartment to his child. My finding in the Judgment was exactly that – the Father intended to and did gift the Property to D, lawfully and absolutely (§29). I never ruled that there was any criminal conspiracy, or that the Father and D had at any point in time thought about any criminal conspiracy. There was no such finding in the Judgment. My finding in the Judgment was that there was simply no agreement between the Father and D at all, and that the Father’s allegation of CICT was untrue (§29).

60.  As I had also accurately recorded in the Judgment (§35), when D was being cross-examined by Mr Alan Leong SC, leading counsel for P, on that alleged agreement, D actually said it was an even more outrageous fabrication, in these words[19]:-

「一定唔同意喇。呢個係作得仲離譜喇，係咪先？你買樓，無��������捉我去簽名喎，你傻嘅咩？你當我-當我白痴嘅咩？」

[English translation: “I definitely disagree. This fabrication was even more outrageous, right? You buy a flat, and grab me to sign my name for no reason, are you insane? Are you treating me – treating me like an idiot?”]

61.  It was plainly open to me, or any judicial officer, to accept D’s evidence, given on oath and as set out above, as true instead of false.

62.  On P’s case[20], there were only two parties (namely, the Father and D) to the alleged agreement. It was said to be oral. The Father never gave evidence (because he sadly passed away on 9 November 2022, before the commencement of the trial on 18 May 2023). D gave sworn evidence that it never happened, and that the Father’s allegation was an outrageous fabrication. It was plainly open to me, or any judicial officer, to accept D’s evidence.

63.  P’s seventh assertion is plainly not “a fact not disputed by D” as alleged. Furthermore, since the Father never gave evidence (see above), it is not open to P to now boldly assert, without any or any proper evidential foundation, what did or did not cross the Father’s mind back in 1986, as if the Father gave evidence and explicitly told us that on oath.

64.  P’s eighth assertion reads: -

“[D] was demonstrably a money conscious man in that he started speculating in the property market as soon as he had started his own furniture business within a year after moving out to a wooden hut.”

65.  P’s eighth assertion, be it true or false, is wholly immaterial. Any person’s attitude towards money may change over time depending on things like his (1) age; (2) maturity level; (3) health; (4) bucket list items; (5) asset level; (6) liability level; (7) cashflow; and (8) other thoughts. In this case, what mattered was what happened in 1986. P’s eighth assertion, be it true or false, does not really assist. Whether D was or was not a money conscious man in 1988, the Father could still have gifted the Property to D in 1986. As I had stated in §42 of the Judgment, it was normal for parents to want to help their children with their children’s purchases of residential properties, especially for marriage purposes. I was aware many parents did so. P’s eighth assertion, be it true or false, would not make the finding of absolute gift in the Judgment wrong. Putting it differently, irrespective of the truth or falsity of P’s eighth assertion, it was still plainly open to me, or any judicial officer, to accept D’s sworn evidence on the Property being an absolute gift from the Father to D as true instead of false.

66.  P’s nineth assertion reads: -

“The Father was unwilling to even purchase a tuxedo for [D] for the latter’s wedding rendering it necessary for [D] to borrow one from his brother-in-law.”

67.  Similarly, P’s ninth assertion, be it true or false, is immaterial. It would at most be a neutral point which could go either way. I discussed this with Mr Alan Leong SC, leading counsel for P, when Mr Leong was on his feet for his oral closing at the trial, and the exchange[21] between the Bar and the Bench went as follows:-

“Mr Leong: … And Your Honour may also recall that when Mr Yuen was giving evidence…

Court: The colourful witness?

Mr Leong: Yes… that’s really the apt description. This colourful witness gave evidence to say, ‘Oh, Pang Kam Bor came to me to borrow my tux’ and that is very, very intriguing. When a father did not see fit to buy a tux for the son to wear for wedding photo, how could one believe that the father would spend $215,000 to pay for marital gift?

Court: Or, he made the gift already, or decided to gift the flat to him already, so the quota for being nice has been used up completely because it’s so expensive, so, no more quota, not even a suit, also possible?

Mr Leong: Well, as a matter of time, of course, the completion was on 8 November 1986, I think, and the wedding photo was taken in 1987, so Your Honour’s theory, as a matter of time, chronologically, should be addressed…”

68.  As one can see from the above, during the trial, both Mr Alan Leong SC, leading counsel for P, and myself, were fully aware of at least two possibilities. The first possibility was the one favoured by P, namely, that the tuxedo incident demonstrated how unlikely it was for the Father to have gifted the Property to D. The second possibility was the one which P did not like, namely, that it was precisely because the Father had gifted the Property to D already, and the Property was quite expensive, that the Father had decided not to gift anything more to D from that point in time onwards, not even a tuxedo. Since the Father never gave evidence, a difficulty which I acknowledged at the start of the Judgment (§§1 to 5), it was not possible to ask the Father what really happened. In the absence of live oral evidence from the Father explaining the decision, P’s ninth assertion would at most be a neutral point which could go either way and would not make it wrong for me to have found that the Property was an absolute gift from the Father to D, for the reasons set out in the Judgment. It would still be open to me, or any judicial officer, to make that finding in the manner as I did.

69.  In fact, as is well-known, in Chinese custom, when two people would like to get married, it is the intended groom (or his parents) who had to pay gift money (禮金) to the intended bride (or her parents) in advance and, according to D’s unchallenged sworn oral evidence[22] at the trial, when D was trying to marry D’s Wife in 1985, with both of them being Chinese, the Father (instead of D himself) generously paid the necessary gift money (禮金), for no reason other than the fact that, in D’s own words[23]:-

「因為當時我老竇真係好錫我嘅… 我做啲乜嘢，佢都會幫我搞掂嘅… 如果我當時有咩嘢需要… 我老竇係會付出俾我嘅。」

[English translation: “Because back then my father really treated me very well… no matter what I do, he would fix it for me… if back then I had any needs, my father would pay for me…”]

70.  The above being unchallenged, P’s current submissions on the tuxedo incident are with respect somewhat far-fetched. If truly necessary, I would have held that the more probable reason for the Father to have not bought a tuxedo for D was the second possibility mentioned above, ie, that by the time a tuxedo was needed by D for photo-taking, which according to Hau[24] was in the year 1987 – after the Property had already been bought and assigned to D on 8 December 1986 – the Father had already gifted the Property to D, and the Father decided not to gift anything more to D from that point in time onwards, not even a tuxedo. There is no necessity for me to make a factual finding on this.

71.  P’s tenth assertion reads: -

“[D]’s brother, Pang Kam Chu, harboured some obvious and conspicuous negative emotions against the Father for deserting the family in Mainland at his siblings’ young age and there was no reason for [D] not to feel the same.”

72.  P’s bold and novel assertion that siblings must share the exact same feelings, or that D did not dispute that, is obviously false.

73.  Firstly, why must siblings have the exact same feelings? I am aware, just from ordinary life experience, that each sibling within the same family is a separate human being with his own feelings, and that therefore it is entirely possible for siblings within the same family to have completely different feelings towards the same event, or the same person. P’s assertion to the contrary is, with respect, absurd, or at least without foundation.

74.  Secondly, Chu and D were cross-examined by Mr Alan Leong SC, leading counsel for P, on their feelings, separately. As distinct human beings, their evidence on their feelings, as one should expect, was certainly not identical. At no point did Mr Leong put to either of them that they lied about their feelings. That being the case, P must be taken to have accepted such evidence as true, or immaterial vis-à-vis P’s case. It is not open to P to now say otherwise.

75.  When Chu was being cross-examined by Mr Alan Leong SC, leading counsel for P, the exchange[25] actually went like this:-

「問：呢幾行，我讀咗出嚟嗰幾行，其實可唔可以都咁樣講，就係其實你對於老竇，喺佢即係自己68年喇吓，嚟香港，拋低你哋即係三個細路，同埋阿媽，你係有啲即係不快嘅，即係有啲覺得你老竇對你唔住嘅，係咪啊？

答：冇咁嘅意思。因為呢個係環境逼成嘅。」

[English translation: “Question: These few lines, these few lines I just read out-loud, can it be said, that you, as towards your dad, who came to Hong Kong in 68 by himself, abandoning you three children, plus mum, you were a bit unhappy, in other words you felt that dad had wronged you, yes or no?

Answer: No such meaning at all. Because this was forced by the circumstances.”]

76.  P appears to have focused on the question and forgotten about Chu’s answer. The question was not the evidence – Chu’s answer was. It was Chu’s sworn oral evidence that he did not feel unhappy or wronged by the Father because what the Father did in 1968 (namely, leaving Mainland China without bringing his first wife Madam Cheung Wai Chun, D, Yue or Chu) the Father was forced to do so by circumstances beyond his control. At no point did Mr Alan Leong SC, leading counsel for P, put to Chu that Chu’s evidence on this was untrue, or otherwise not accepted by P.

77.  In any case, it was clearly open to me, or any judicial officer, to accept Chu’s evidence, as I did in the Judgment, on the basis that Chu’s evidence “accorded with common sense” (§22(3)).

78.  As to D, as I had recorded in the Judgment (§49), his evidence on his feelings towards the Father was in these words[26]:-

「老竇叫我落嚟香港打拼… 當時個感覺，一定係感受到父愛嗰種親情… 即係有 - 有老竇照顧喇已經。即係唔會話再喺度自己無父無母嗰種生活… 親生老竇嚟㗎嘛… 我信我老竇… 老竇生意即係自己生意…大家嗰個心係我知佢，佢知我… 老竇覺得我 - 我幫佢，我就覺得佢幫我，即係咁咋嘛… 一定唔會同老竇喺度講數或者點樣㗎嘛。」

[English translation: “Dad had asked me to come to Hong Kong to fight for the future together… the feeling I had at the time was one of having received fatherly love… finally getting taken care of by dad, and no longer living as if I had no dad and no mum… he was my biological dad after all… I believed in dad… Dad’s business was my business… we felt that I knew his heart and he knew my heart… Dad considered that I…I was helping him, and I considered that he was helping me… as simple as that really… I would never discuss monetary payments with dad.”]

79.  In other words, D’s evidence was that at all times up to at least 1986, the Father had loved and understood D. D had loved and understood the Father. D treated the Father’s business as his own business too. At no point did Mr Alan Leong SC, leading counsel for P, put to D that D’s sworn evidence on these matters, exactly as quoted above, was somehow untrue, or otherwise not accepted by P.

80.  It was clearly open to me, or any judicial officer, to accept D’s evidence as true, as I did in the Judgment (§49).

81.  P’s tenth assertion is therefore simply false.

82.  Further, P’s tenth assertion, be it true or false, would not make the finding of absolute gift in the Judgment wrong. Even if D had negative emotions against the Father back in 1986, the Father could still have loved D unilaterally and unconditionally and gifted the Property to D unilaterally and unconditionally. Parental love, just like other species of love, could be unilateral and unconditional. It would be absurd for P to suggest otherwise, especially since the Father did not give evidence (see above).

83.  P’s eleventh assertion reads: -

“[D]’s having worked for the Father, who had deserted him at the age of 4, for 8 years, without gain, and readily moved out of the promised marital gift with his newly wedded wife to a wooden hut.”

84.  The short answer to this can be found in the Judgment (§§40 to 43). The fact that D had for a very long period of time worked diligently for the Father without taking any salary actually made it substantially more likely that the Property was an absolute gift from the Father to D. This was explicitly pleaded by D[27]. D’s trial counsel also relied on this in his written opening (§4(a)) and written closing (§§73 & 74). In my view, P’s eleventh assertion makes the finding in the Judgment correct (as opposed to wrong). At the very least, it was clearly open to me, or any judicial officer, to say, as I did in the Judgment (§42), that D’s long period of diligent unpaid work at Kar Wah, coupled with the agreed fact that D was getting married at the time, adequately explained why the gift of the Property was made to D and D only.

85.  As to why it was logical, or at least understandable, for D and D’s Wife to move out of the Property in 1988 despite the fact that D owned the Property absolutely, I adopt and repeat §§31 to 42 above, which should be self-explanatory, and equally applicable here.

86.  P’s twelfth assertion reads: -

“[D]’s [previous] solicitors did not mention the Property being a gift from the Father when replying on 10^th November 2014 and 11^th January 2021 to two pre-action letters issued by the Father’s solicitors”

87.  At trial, I was fully aware of the point. In fact, I was the one who raised it[28]. I dealt with it in the Judgment (§§51 to 57). In gist, D had been cross-examined on this and I accepted his sworn evidence as true. D’s sworn evidence on this was as follows[29]:-

「當時點解冇提呢個問題呢？係當時我老竇話啲錢佢出㗎嘛，咁我個自然反應就係，我喺舖頭做咗咁多年，你冇俾人工我，我冇收你人工，即係我就撇開 - 即係當時撇開你送俾我嗰件事嚟講，就係淨係我呢度都已經可以話叫做唔止呢個樓，呢層樓喇… 我喺舖頭，辛辛苦苦咗成十年，你都唔 - 唔講，吓，即係依家呢個時候，買咗層樓俾我，都話叫做信託，係嬲呢樣嘢嘅啫。」

[English translation: “At that time, why did I not mention this problem? It was because at that time, my dad was saying the money was all paid by him, and my natural response was, I had worked at the shop for so many years, you did not pay salary to me, I did not take salary from you, in other words I just put aside – at the time I put aside this incident of you gifting it to me, and even just this it should be worth more than the flat, this specific flat… At the shop, I worked industriously for 10 years, you still didn’t – didn’t say, well, meaning at that time, bought me a flat, still called it a trust, I was only angry about this.”]

88.  In other words, according to D, when D received the demand letter from the Father’s solicitors at the time, D was very angry. However, D was not angry about the Father reneging. D was angry about the Father categorizing the money paid for the purchase of the Property as entirely the Father’s, when D had contributed many years of his time and effort towards the success of Kar Wah as a furniture business. D was offended the Father considered the money entirely the Father’s, given how it was earned partly with D’s selfless contribution. It was for this specific reason that when D was giving instructions to his solicitor at the time, D’s focus was on saying the money belonged to him.

89.  It was plainly open to me, or any judicial officer, to accept D’s explanation above as sufficient, as I did in the Judgment (§§51 to 57).

90.  Pausing here, I should add that it was me[30] who first raised the possibility of D waiving his legal professional privilege and calling his own former solicitor (the author of the solicitors’ letter in question) as a factual witness to explain the absence of the word “gift” in that letter on oath. D’s sworn oral evidence was that this whole idea never crossed his mind, so he never attempted to do so. I specifically asked Mr Alan Leong SC, leading counsel for P, whether he would have any follow-up question arising from that answer, and Mr Leong said no[31]. There was no attempt to put to D that D’s answer on this was somehow untrue. This being the case, P should be taken as having accepted D’s answer on this as entirely true, or immaterial vis-à-vis P’s case. It should not be open to P to now say D had lied on this issue, or that some sort of adverse inference should be drawn against D.

91.  In fairness to D, I should add that there was no property in any witness, so that technically, this was a case of no party calling that solicitor, instead of just D not calling that solicitor. In such a scenario, I should not speculate why P did not himself attempt to call the solicitor in question as a witness, and the fact that the solicitor in question was never called to give evidence at the trial was neither here nor there. For that reason, I shall say no more on the issue.

92.  P’s thirteenth assertion reads: -

“[D] did not dispute that he would have to wait for at least 4-5 years before he could be assigned public housing, by when he would already have been disqualified by failing the means test given his ownership of his own furniture business and private residential flats.”

93.  P’s thirteenth assertion is also false. No witness had ever, at trial, given any evidence suggesting D could somehow, in 1986, predict his future means. D obviously could not predict the future, because no person could. At trial, no witness suggested otherwise.

94.  Mr Alan Leong SC, leading counsel for P, cross-examined D on this, and the exchange actually went like this[32]: -

「問：好。我哋喺即係證供裏面聽過，就話即係你曾經有一個階段係諗住申請公屋㗎嘛。係邊個時候喥呀？

答：係即係由88年搬去木屋嗰個時間… 係想去申請公屋嘅… 但係無奈，因為我嗰陣時係葵富係我… 我係業主吖嘛… 係物業嘅業主… 所以我係冇資格去申請公屋… 其實我好想… 當時嗰個環境你知喇，窮… 窮起上嚟… 你有… 有間公屋，又靚又平，邊個唔想吖，係咪先… 但係我就係冇資格去申請… 因為你一申請即係… 即係犯法啦，係咪先… 我哋唔敢去申請… 其實我嗰陣時喺石梨貝啲房屋署去問咗之後，我… 我好坦白咁話俾佢聽嘅，咁嘅情況，佢話你唔使申請，一定係唔得嘅… 冇入過紙…」

[English translation: “Question: Right. We heard evidence that at one stage you considered applying for public housing. When approximately?

Answer: It was year 88 when I was moving to the wooden hut… I did want to go and apply for public housing… but frustratingly back then Kwai Fu was my… I was the owner… I was the owner of the property… so I had no eligibility to apply for public housing… in fact I really wanted… back then the circumstances, you know, poor… poor to such an extent… you have… have a public housing unit, and it is nice and it is cheap, who doesn’t want one, right? But I just had no eligibility to apply… because once you apply that means… that means criminal act, right? We dared not go and apply… actually back then after asking about this at Shek Lei Pui’s Housing Authority, I… I very frankly told them… the situation… they said you do not need to apply, as it would definitely be a no… never put in the paperwork…”]

95.  Mr Leong’s next question was then deliberately phrased to be answered by D with the benefit of hindsight, ie, asking D to answer it with the benefit of the knowledge gained by D between 1986 and 2023[33]:-

「問：咁即係你… 你可唔可以咁講呢就係，其實依家睇返轉頭其實當你… 當你入咗紙申請喇，你等緊公屋嘅時候，其實你已經喪失咗資格囉喎…？

答：唔係。其實就當我問咗房署話冇資格之後我就冇再考慮呢個問題嘅。

問：唔係。我知。我知。我明… 」

[English translation: “Question: So you… can you say, actually, at present, looking back, actually, when you, when you had put in the paperwork, when you were waiting for public housing, you had already lost eligibility?

Answer: No. Actually, once I had asked the Housing Authority and they said I was not eligible, I did not give this question any further consideration.

Question: No. I know. I know. I understand…”]

96.  D had never put in the paperwork, so the question was odd.

97.  Quite apart from the fact that D had expressly disagreed with (instead of uttered agreement towards) Mr Leong’s odd proposition, with respect, this whole line of cross-examination was immaterial. It was never any party’s case that back in 1986, D could somehow predict, with a crystal ball or otherwise, that his wife would definitely fall out with his stepmother in 1988, or that D would definitely become so wealthy he would be denied public housing irrespective of whether he was the legal or beneficial owner of the Property. Back in 1986, D did not know whether these events would happen. It would be absurd for P or any person to suggest otherwise.

98.  What happened after 1986 was of limited value in determining what the Father was, or must have been, thinking in 1986 when he paid for the down payment for the Property.

99.  It was clearly open to me, or any judicial officer, to place more weight on what happened before and up to 1986, on the basis that the Father could have simply changed his mind about the Property at some point after 1986 so that events after 1986 should be given less weight or be otherwise considered less helpful in the judicial finding of fact.

100.  I had discussed this with Mr Alan Leong SC, leading counsel for P, in a slightly different context, when Mr Leong was on his feet for his oral opening at the trial, and the exchange[34] between the Bar and the Bench went as follows:-

“Court: I have one observation in relation to this. Putting aside the law for the time being, in terms of weight, what weight can I put on a statement made in 2017 as to what he thought in 1986? Because people can change their minds, and my concern is whether this is such a case. I don’t know, I haven’t heard the evidence, but it’s a possibility. Sometimes, people – I’m not saying this particular person but – sometimes, people made a gift, at that time, it was meant to be a gift, and then they regretted making the gift, and then tried to persuade himself and everyone else that it was never a gift.

Mr Leong: Yes.

Court: That is a possibility which I am alive to.

Mr Leong: Yes.

Court: I have no idea whether this case is such a case; I have not decided. I will have to hear the evidence first, but just bear in mind that this is possible and…

Mr Leong: That is a fair point.

Court: Yes, and we…

Mr Leong: That is a fair point.”

101.  Mr Leong did say, twice within the same breath, that that was a fair point, because it was.

102.  P’s thirteenth assertion is plainly false.

103.  P’s fourteenth assertion reads: -

“[D] never attempted to evict the Father from the Property, nor interfered with the Father’s use and enjoyment of the Property, during the Father’s lifetime.”

104.  That was true but wholly irrelevant, or at least immaterial. I adopt and repeat §§26 to 45 above.

105.  In fact, there was nothing unusual about a son being generous towards his own father or reluctant in evicting his own father. In my view, that was just what one would expect from a normal son with a normal moral compass. P’s current submission to the contrary is, with respect, a classic case of “以小人之心度君子之腹”, a very well-known idiom which should perhaps be translated as “using a mean person’s heart to measure a true gentleman’s mind”, or “a rogue always suspects deceit”. In so far as P is saying “if the Property belonged to D, D would definitely have evicted the Father during his lifetime”, I reject P’s proposition completely. As I had recorded in §43 above, this proposition, quite apart from being absurd, was not even put to D in the course of Mr Leong’s cross-examination of D, and in my view P should not be allowed to raise it at this stage.

106.  P’s fifteenth assertion reads: -

“Kar Wah’s business ceased in 2000 and [D] never asked for written records of the CICT agreement or accounting records of salaries payments.”

107.  That was true but wholly irrelevant. In fact, P’s submissions based on this assertion are, with respect, nonsensical.

108.  Firstly, D’s case was simple – there was no CICT agreement of any kind between the Father and D. That means on D’s case, there could not possibly be any contemporaneous document evidencing this fabricated and untrue afterthought. If so, why would D ask for an item which D knew would not exist? The fact that D never sought disclosure of a non-existent item was perfectly consistent with D’s belief that none existed.

109.  Secondly, on the salary point, D’s case was that he never took a salary, so there would be no contemporaneous document evidencing a lie which alleged otherwise. So, asking rhetorically, why would D ask for an item which D knew would not exist? D never sought disclosure of a non-existent item, and that was consistent with D’s belief that none existed.

110.  Thirdly, both parties were represented. As such, they must be aware (because they would have been advised by their respective solicitors and counsel – all of them experienced and competent) that under Order 24 of the Rules of the District Court (Cap 336H), and §5 of Practice Direction 5.2, the discovery exercise was automatic. It was meant to happen without a court order. No litigant needed to “ask” for a list of documents (“LoD”) – a litigant’s duty to swiftly file and serve a properly-prepared LoD which complied with the law in this area arose automatically. If a litigant received from an opposing party an LoD which was potentially inadequate he would not necessarily have to take out an application under Order 24, as he would have many other legitimate alternative choices at his disposal (see below).

111.  Depending on the circumstances of a particular case, a litigant may properly make a choice never to apply for specific discovery. By way of example, a litigant may choose to hold his opposing party to the truth of the standard declaration in an LoD, just like the choice made in the case of Sophisticated Materials Limited v Sidepac International Limited [2019] 2 HKLRD D2 [2018] HKCFI 2836, where the remarkable brevity of the LoD in question was successfully used against the party serving it, resulting in the entire legal action being summarily struck out as frivolous and an abuse of process. A litigant may also choose to use an LoD in cross-examination, just like the choice made in Yiu Shing Yin v Kwok Yik Ho [2018] 3 HKLRD H2 [2018] HKDC 514, where the very skillful cross-examination based on an LoD resulted in the party serving it being found dishonest, and with all uncertainties being determined against his favour, on the basis of what was said in L v C [2007] 3 HKLRD 819 (§191, per Yuen JA). Similarly, in Far East Sourcing Limited v Man Bond International Limited & Khan Jawed Arif (unrep,, HCA 1463/2012, 22 March 2016), the standard declaration in an LoD served by a corporation was successfully used to contradict the oral evidence of a witness, resulting in that witness being disbelieved (§§79 & 80, per DHCJ Sakhrani). These are just examples. Each case is different. Circumstances differ.

112.  In this case, the approach chosen by Mr Tommy Cheung, trial counsel for D, was to hold P to the standard declarations within P’s LoDs, and to contrast the presence of some documents with the absence of other documents, both in his cross-examination of P[35], and in his submissions[36]. In my view, the choice was proper and helpful. As I have explained above, P’s legal duty to disclose all relevant documents caught by an application of the Peruvian Guano test – see the Court of Appeal’s judgment in Deak & Co (Far East) Ltd v NM Rothschild & Son Ltd [1981] HKC 78 – arose automatically by operation of law and did not depend on any request being made by any person, or on any court order. D and his legal team were fully entitled to hold P to the fact that no contemporaneous document supporting P’s allegation of CICT had ever been disclosed or produced by P and make such submissions on that as they considered appropriate. Indeed, they did exactly that[37]. It was plainly open to me, or any judicial officer, to accept such submissions as correct, and to say what was said in §§36 to 38 of the Judgment, regarding the conspicuous absence of contemporaneous records vis-à-vis the alleged agreement of CICT as an indication that P’s claim was more likely to be an untrue afterthought[38].

113.  Having considered what the Court of Appeal had said in Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310 (§21, per Au JA), it is in my view fanciful for P to brashly suggest the Court of Appeal would somehow choose to reverse the Judgment’s finding of facts, without having seen or heard the witnesses in person, by reason of P’s various false or immaterial assertions. As the detailed analysis above (§§14 to 112) had shown, the Judgment’s finding of facts was logical, supported by evidence, and clearly reasonably open to me.

114.  In my view, all things considered, P’s intended ground two is obviously unarguable, and has no reasonable prospect of success.

115.  I refuse to grant leave on P’s intended ground two.

Intended Ground Three

116.  P’s intended ground three reads: -

“The Learned Judge erred in finding [P]’s story to be improbable for reasons he gave particularly at §§31-39 in that such reasons are not sustainable given the following circumstances…”

117.  P then, within this intended ground three, lists out 8 assertions, as sub-paragraphs (a) to (h). To distinguish these assertions from those in P’s intended ground two (already examined above), I shall in this Decision call them “P’s assertion 3(a)”, “P’s assertion 3(b)”, etc.

118.  P’s assertion 3(a) reads: -

“He allowed his judgment to be flawed in manners specified under Ground 1 above”

119.  For the reasons set out above (§§9 to 12), P’s intended ground one is simply false, so P’s assertion 3(a) is also simply false.

120.  P’s assertion 3(b) reads: -

“Such reasons are inconsistent and do not sit well with those facts which [D] does not dispute set forth in Ground 2 above.”

121.  I adopt §§14 to 114 above. P’s intended ground two is for the reasons set out there unarguable. Contrary to P’s current submissions those alleged “facts” were either disputed, or immaterial. They would not make the finding of facts in the Judgment wrong. P’s assertion 3(b) is also simply false.

122.  P’s assertion 3(c) reads: -

“It is not a legal requirement that a trustee in a CICT must benefit from the trust [31]”

123.  P’s assertion 3(c) is true but irrelevant. It was no party’s case that there was any such legal requirement and there was no such finding in the Judgment. What was actually said in the Judgment (§§31 & 32) was:-

“… P’s alleged oral agreement, that of D holding the Property on trust for the Father, was one with no benefit to D whatsoever, but detrimental to D in the sense that the arrangement would mean D would then lose his entitlement to apply for public housing benefits. It seemed to me that D would never have agreed to any such arrangement if it was ever mentioned to him as alleged… It seems to me it was indeed inherently implausible for any person in D’s position to be willing to lose his entitlement to public housing benefits just because the Father, or any parent, had asked.”

124.  It was plainly open to me, or any judicial officer, to say what was said in §§31 & 32 of the Judgment, as quoted above.

125.  P’s assertion 3(d) reads: -

“Having accepted that everyone in the family would just do whatever the Father said should be done, it was illogical for the Learned Judge to find that [D]’s deference for the Father must stop at loss of right to apply for public housing [32].”

126.  P’s assertion 3(d) is false.

127.  Firstly, what was actually said in the Judgment (§32) was:-

“… no matter how deferential the sons of the Father really were there must still be some limits as to what the sons would be prepared to do on instructions. To think of an extreme example, had the Father ordered D to get Chu killed, then judging from the character of D as I could observe when he was giving sworn evidence in the box, D would most probably have said no. Common sense would tell us deference to parents was unlikely to be literally absolute so that much would depend on the nature of the instructions and their likely consequences. It seems to me it was indeed inherently implausible for any person in D’s position to be willing to lose his entitlement to public housing benefits just because the Father, or any parent, had asked.”

128.  The finding in the Judgment was that D’s deference vis-a-vis the Father was not absolute. The point being made was simple – there must be things (for example an act of murder) which D would refuse to do even if explicitly instructed by the Father and an instruction which if carried out would result in D losing his entitlement to public housing benefits would in most likelihood be one of them. There was nothing illogical about what was said. The reasoning was logical, or otherwise open to me.

129.  Secondly, when I said “common sense would tell us deference to parents was unlikely to be literally absolute so that much would depend on the nature of the instructions and their likely consequences” and found P’s case to be less likely to be true, I was doing no more than what judicial officers frequently and properly do in non-jury trials and appeals on a daily basis – drawing on common sense and/or ordinary life experience to assess and/or determine the relative probability of an event having either occurred or not occurred.

130.  Because of what is being said on behalf of P in support of the Summons, I should refer to a number of authorities.

131.  The starting point should be what Lord Nicholls had famously declared in the case of Re H and Others (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563 at 586-C to F, which is as follows:-

“…the standard of proof required in non-criminal proceedings is the… balance of probability… a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not…

When assessing the probabilities the court will have in mind as a factor… that the more serious the allegation the less likely it is that the event occurred…

Fraud is usually less likely than negligence. Deliberate physical injury is usually less likely than accidental physical injury. A step-father is usually less likely to have repeatedly raped and had non-consensual oral sex with his underage stepdaughter than on some occasion to have lost his temper and slapped her…”

132.  The last three propositions set out by Lord Nicholls in the text quoted above did not come from any evidence placed before the House of Lords. There was no expert report from any anthropologist, sociologist or mathematician telling Lord Nicholls how likely or unlikely would a father repeatedly rape his daughter. Lord Nicholls created those propositions out of common sense and his own life experience, as he was perfectly entitled to. For my part, I have never heard anyone doubting the correctness of his three propositions, and I have never heard anyone doubting his entitlement, as a judicial officer, to draw on common sense, and his own life experience, in the manner as he did.

133.  Then we have Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117 where our own HKCFA applied Lord Nicholls’ speech in Re H with approval (§§64, 65, 113 & 116). At no point did any of His Lordships question any part of Lord Nicholls’ speech in Re H. That was because, I would suggest, Lord Nicholls’ speech in Re H was entirely correct.

134.  Some 3 months later, the UK House of Lords handed down its judgment in In re B (Children) [2009] 1 AC 11, where Lord Hoffmann (at §15) said this:-

“… If a child alleges sexual abuse by a parent it is common sense to start with the assumption that most parents do not abuse their children...”

135.  Similarly, Lord Hoffman’s proposition did not come from any evidence placed before him. There was no evidence from anthropologists, sociologists or mathematicians telling His Lordship how likely or unlikely would parents abuse their children. Lord Hoffman created that proposition out of common sense and his own life experience, as he was also perfectly entitled to. For my part I have never heard anyone doubting the correctness of his proposition, and I have never heard anyone doubting his entitlement, as a judicial officer, to draw on common sense, and his own life experience, in the manner as he did.

136.  In the context of local land transaction, we have Polyset Ltd v Panhandat Ltd (2002) 5 HKCFAR 234, where Bokhary PJ said this (§§11 & 12):-

“The starting point is this. In Hong Kong as in many other parts of the world, a deposit representing 10 per cent of the purchase price of the land is conventional. If I were asked to account for the strict logic behind this percentage, I would have to answer that there is none that I know of and that there may be none that exists. I would augment or mitigate that answer by citing Mr Justice Holmes’s famous aphorism (in The Common Law (1881) at p.1) that: ‘The life of the law has not been logic: it has been experience’. Perhaps all that can really be said is that, for a long time and in many different places, 10 per cent has in practice enjoyed both legal and commercial acceptance as generally appropriate. Contracts for the sale of land routinely provide that the purchaser shall pay a deposit of 10 per cent and that such deposit shall be forfeited to the vendor if the purchaser wrongfully fails to complete. Deposits of 10 per cent are routinely forfeited to vendors when purchasers wrongfully fail to complete. It is routinely accepted without question that a deposit of 10 per cent is a true deposit.”

137.  His Lordship’s point was insightful. Not every proposition in every case that is so obviously correct no legally admissible evidence needs to be adduced or considered can be adequately explained by logic. If one is asked why the conventional sum of deposit required in a land transaction was 10 per cent, one cannot come up with a satisfactory answer. Why not 9 per cent, 11 per cent, or even 20 per cent? Yet, His Lordship was entirely correct in his observation that the conventional figure was 10 per cent and that it was “routinely accepted without question”. A factual proposition which cannot be adequately explained by logic may nonetheless be entirely correct and accepted by many to be so.

138.  In negligence litigation, we can refer to the current edition of Clerk & Lindsell on Torts (24^th Edition, 2023) where the learned editors (at §7-209) confidently said:-

“Common experience suggests that in the absence of negligence, bales of sugar do not usually fall from hoists, barrels do not fall from warehouse windows, cranes do not collapse, trains do not collide, aircraft do not usually crash, and stones are not found in buns.”

139.  Judicial officers do not need to have factual or expert evidence placed before them in order to determine and say how unusual it would be for stones to be found in buns, when they know from their life experience that buns tend to be free from stones. Clearly, not every judicial assessment of inherent likelihood, plausibility or probability calls for factual or expert evidence.

140.  If things were otherwise, the costs of the vast majority of cases in our courts would be unacceptably disproportionate.

141.  Similar observations are routinely made in criminal cases. By way of example, in 香港特別行政區 訴 李健聰 [2020] HKCA 282, the Hon Maggie Poon J, as the Hon Poon JA then was, said this (at §22):-

「原審法官作為事實的裁斷者，自可運用他的常識和生活經驗來斷案。」

[English translation: “The first instance trial judge, being the fact finder, could of course use his common sense and life experience in adjudication.”]

142.  Another example is what DHCJ Barnes (as the Hon Barnes J then was) had said in HKSAR v Tsui Chung Hang (徐頌恆) (unrep., HCMA 148/2006, 28 September 2006), which is as follows (§29):-

“… As a fact-finder, a magistrate is constantly required to assess and evaluate evidence from witnesses. When considering what evidence to accept and what to reject, the magistrate would have to look at the evidence adduced, to use his/her common sense and life experience to see if the evidence was inherently improbable… ”

143.  The dicta cited in §§141 & 142 above must be correct. Indeed, our courts had been saying that for decades, if not centuries. In The Queen v Nguyen Van-Son (unrep., CACC 328/1990, 21 June 1991, per Penlington JA), our Court of Appeal confirmed DDJ Z E Li was fully entitled to use his own human experience to say that a person’s adrenalin would begin to flow when that person was confronted with an alarming situation (eg being threatened with a knife), and that its effect would be to “re-liven the senses and put the person on special alert”, without receiving or considering any expert medical evidence on the phenomenon.

144.  Of course, there are limits as to how far a judicial officer can go in drawing on his own common sense and life experience. Authorities on this exist in abundance[39]. The best example is arguably HKSAR v Wong Tai Shing (unrep., CACC 234/2005, 1 June 2006), where the Hon Stuart-Moore V-P said this (§§21 & 22):-

“… Whilst it was legitimate for the judge to take judicial notice of an addict’s average daily consumption of heroin we are not able to say the same about the judge’s other observations…There was, in particular, no evidence before the judge to suggest what purity is generally regarded as being desirable or acceptable to heroin addicts who inhale by ‘chasing the dragon’ compared to those who inject their heroin…”

145.  There are plenty of other authorities dealing with very similar points. Whilst judicial officers do not need to have evidence placed before them in order to determine how unusual it would be for stones to be found in buns (since buns are common food items), the same cannot be said about issues vis-à-vis inhaling heroin (since these matters should in the ordinary course of events be outside of a judicial officer’s ordinary life experience). It all depends on the proposition in question.

146.  With these authorities in mind, we can come back to this case, where the proposition in question in the Judgment was, as I had mentioned at §127 above[40]:-

“… no matter how deferential the sons of the Father really were there must still be some limits as to what the sons would be prepared to do on instructions. To think of an extreme example, had the Father ordered D to get Chu killed, then judging from the character of D as I could observe when he was giving sworn evidence in the box, D would most probably have said no. Common sense would tell us deference to parents was unlikely to be literally absolute so that much would depend on the nature of the instructions and their likely consequences. It seems to me it was indeed inherently implausible for any person in D’s position to be willing to lose his entitlement to public housing benefits just because the Father, or any parent, had asked.”

147.  It appears obvious to me that this proposition was well within the boundaries. The ordinary and general behaviour of parents or children was something within the ordinary life experience of most judicial officers (see, eg, §§131 to 135 above) and, unlike the heroin propositions in HKSAR v Wong Tai Shing (above), rather uncontroversial.

148.  I am fully satisfied this proposition was, and would be viewed as, reasonably open to me so that it would be fanciful for P to say the Court of Appeal would somehow reverse it as allegedly illogical.

149.  P’s assertion 3(e) reads: -

“There was no evidence to suggest that the possibility of the agreement for CICT might be a criminal conspiracy ever crossed the minds of the Father and [D] [33]”

150.  P’s assertion 3(e) is true but wholly irrelevant.

151.  Firstly, the finding in the Judgment was that D’s evidence was the truth, and the Father had never asked D to be a trustee (§34). Since the alleged discussion never happened, there was nothing to cross their minds. Putting it differently, the absence of evidence on criminality was consistent with and supported the finding in the Judgment that the alleged discussion never happened at all. I further adopt §§58 to 63 above, which are equally applicable here.

152.  Secondly, P’s case and D’s case being diametrically opposed, my duty was to assess the relative probability of each case being true. As I had said in §28 of the Judgment, I adopted the approach stated by the Hon Godfrey Lam J (as he then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§46 to §50) to the effect that in all CICT litigation, one should start with “evidence of express discussions” whilst recognizing the parties’ other conduct “remains relevant as a matter by reference to which their assertions… must be gauged and tested”. Since P’s case was in substance an allegation that the Father and D had conspired with each other (with or without the participation of the Bank’s frontline staff) to deceive the Bank, misrepresenting to the Bank that D was the Property’s beneficial owner[41], I did have to consider whether a conspiracy of that nature, alleged by P to have existed, was likely or not. In so doing, it was necessary for me to take the nature of the alleged conspiracy into account.

153.  Just as it was legitimate for Lord Nicholls (see §§131 and 132 above) to say fraud is usually less likely than negligence, it was open to me to say, as I did in §33 of the Judgment, that this specific conspiracy alleged by P was, looking at all factual circumstances surrounding the Father and D as they existed in 1986, “highly improbable”.

154.  Putting it differently, it was plainly open to me to find it more probable that the Father had done something honest and lawful (eg, gifting the Property to D), and less probable that he had done something deceitful and potentially criminal (eg deceiving the Bank on the beneficial ownership of the Property[42]).

155.  P’s assertion 3(f) reads: -

“[D]’s denial of CICT discussed in [34-35] was expected and could not be used to justify the Learned Judge’s finding, save such approach clearly demonstrated how he had fallen into palpable errors by deciding whether there was CICT on credibility of witnesses rather than on inherent likelihood, plausibility, probability and reasonableness of the parties’ stories.”

156.  P’s assertion 3(f) is, with respect, simply absurd.

157.  D’s denial on oath, expected or unexpected, was evidence. It did not cease to be evidence just because P expected it. As it was evidence I could of course “use” it, though the more accurate way of putting it would be that I was obliged to consider it, as I did. With respect, it is absurd for P to suggest whether a piece of evidence could or could not be “used” was somehow dependent on whether P expected it. No authority had been cited to me for this rather novel proposition. In any case, P had never previously submitted D’s denial on oath should for whatever reason be excluded from the evidence. No ground for exclusion existed.

158.  Further, the fact that I considered one piece of evidence does not mean I ignored all other pieces of evidence, or inherent likelihood. The three preceding paragraphs in the Judgment (§§31 to 33) were on inherent likelihood.

159.  As I had said at §11 above, it is clear from the Judgment (§§29 to 33) that I started my analysis by examining inherent likelihood (as that was more important). Contrary to P’s current submissions, my focus was on inherent likelihood. I merely provided additional reasons afterwards.

160.  P’s assertion 3(g) reads: -

“The Learned Judge in [36-38] exaggerated on the absence of written evidence of CICT but did not explain how such absence could prove the Property to be an absolute gift.”

161.  P’s assertion 3(g) is wrong in multiple ways.

162.  Firstly, the agreed absence of contemporaneous documentary evidence which could support P’s claim of CICT was an objective fact – it was incapable of being exaggerated and was never exaggerated. Absence meant absence. Zero meant zero.

163.  Secondly, like the situation in Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2023] HKCA 1310 (§§38 to 40, per Au JA), the Assignment and the Mortgage Deed had already fully recorded D’s legal and beneficial interests in the Property in writing in a contemporaneous manner. The law assumed D owned the Property absolutely. It was for a person who sought to suggest otherwise to prove a different case. D did not have to prove the Property was an absolute gift. It is thus fundamentally misconceived for P to ask how anything “proved” the Property to be an absolute gift.

164.  Thirdly, D’s case was plainly a plausible, or at least possible, explanation for the absence of document. If P’s case is false while D’s case is true, the absence of document made sense. It was therefore plainly open to me to say what I had said in §§36 to 38 of the Judgment. The reasoning was simple and had been sufficiently explained in those paragraphs which, so far as material, read:-

“… the Father was reasonably good at keeping documents. He actually kept, and produced in this legal action, documents created in 1986 for the purchase of the Property, including some receipts issued by the estate agent in 1986, and some receipts issued by the solicitors’ firm which handled the conveyancing work in 1986. That being the case, it must be observed the Father (or P after the Father sadly passed away on 9 November 2022) never produced any document created in 1986 which demonstrated, by way of unchallengeable contemporaneous record, that the alleged agreement between the Father and D existed. There was no declaration of trust and no handwritten letter. In my view, that was because the Property was an absolute gift from the Father to D, and this whole claim of CICT was just an untrue afterthought.

When I specifically asked Mr Leong about this at oral closing, Mr Leong’s answer was:-

“Your Honour, again, my submission is that this point need not exercise your mind anymore because the Father was the one calling the shots. Nobody dared to offend him… with his authority in this kind of family, it would not be reasonable to expect that he would ask the son to sign a piece of paper declaring that he was holding the Property only for the convenience of getting mortgage because, both from the Father’s end and from the son’s end, this is totally unnecessary.”

I am positive Mr Leong had said all that could responsibly be said about this on behalf of P. In my view, the point is not so much whether creating a document was “necessary”. The point is what I should make of the conspicuous absence of contemporaneous records vis-à-vis the alleged agreement. I would have thought if P’s case was true, there would be some contemporaneous records in support of it. Even if D never signed anything because the Father never asked, there should still be some correspondence, or even personal diary entries or notes which mentioned, at least in passing, the alleged agreement. There was none. Whilst this may not be important vis-à-vis any person who had been really bad at keeping records all his life, it is rather important vis-à-vis the Father because the Father was reasonably good at keeping documents. In such circumstances, it seems to me I should regard this conspicuous absence of contemporaneous records vis-à-vis the alleged agreement as an indication that P’s claim of CICT is untrue.”

165.  P’s assertion 3(h) reads: -

“[39] is a tautology and does not add to the Learned Judge’s reasoning.”

166.  P’s assertion 3(h) is also false.

167.  Without having to quibble over semantics, the short answer to P’s assertion 3(h) is that §39 of the Judgment actually added §§40 to 45 of the Judgment to the reasoning.

168.  All in all, P’s assertions above plainly do not make the reasons for dismissing P’s claim “not sustainable”, whether as alleged or all.

169.  In my view, P’s intended ground three is unarguable, and has no reasonable prospect of success.

170.  I refuse to grant leave on P’s intended ground three.

Intended Ground Four

171.  P’s intended ground four reads: -

“The Learned Judge erred in finding [D]’s story to be more likely to be true for reasons he gave particularly at §§42-45 in that such reasons are not sustainable given the following circumstances...”

172.  P then, within this intended ground four, lists out 6 assertions, as sub-paragraphs (a) to (f). To distinguish these assertions from those in P’s first three intended grounds (examined above), I shall in this Decision call them “P’s assertion 4(a)”, “P’s assertion 4(b)”, etc.

173.  P’s assertion 4(a) reads: -

“He allowed his judgment to be flawed in manners specified under Ground 1 above”

174.  For the reasons set out above (§§9 to 12), P’s intended ground one is simply false, so P’s assertion 4(a) is also simply false.

175.  P’s assertion 4(b) reads: -

“Such reasons are inconsistent and do not sit well with those facts which [D] does not dispute set forth in Ground 2 above.”

176.  I adopt §§14 to 114 above. P’s intended ground two is for the reasons set out there unarguable. Contrary to P’s current submissions those alleged “facts” were either disputed, or immaterial. They would not make the finding of facts in the Judgment wrong. P’s assertion 4(b) is also simply false.

177.  P’s assertion 4(c) reads: -

“There was no evidence on which he could base his finding that it was normal for parents to want to help their children with their purchases of residential properties for marriage purposes [42].”

178.  P’s assertion 4(c) is wholly misconceived. The above was not a “finding”. What I actually said in §42 of the Judgment was:-

“Firstly, D’s case is inherently likely. It was normal for parents to want to help their children with their children’s purchases of residential properties, especially for marriage purposes. Many parents did so. Whilst in most scenarios it would be quite unlikely for this to happen to one child but not his siblings, in our present scenario, once it is accepted that known to the Father at the time (1) D had been working for the Father unpaid for a long period of time; and (2) D was getting married, the unique gift of the Property from the Father to D (and D only) made perfect sense.”

179.  I adopt and repeat §§131 to 148 above. When I mentioned it was “normal for parents to want to help their children with their children’s purchases of residential properties, especially for marriage purposes”, I was not making a finding of fact from the evidence adduced at the trial. I was stating my reason for saying I considered D’s case inherently more likely to be true. What I did was no different from Lord Nicholls saying it was improbable for a father to have repeatedly raped his daughter, or from Lord Hoffmann saying most parents did not abuse their children, or from Bokhary PJ saying a 10 per cent deposit for the purchase of an interest in land was conventional and routinely accepted by most without question, or from Clerk & Lindsell on Torts saying stones were not normally found in buns. All judicial officers were entitled, and some would say required, to routinely draw on their common sense and life experience in assessing the relative probability of an event having occurred or not occurred. Since the proposition above was about the ordinary and general behaviour of parents and children, it was within my own ordinary life experience, and within the ordinary life experience of most judicial officers[43]. It was plainly open to me, or any judicial officer, to draw on that, without further enquiry, and say what was said in §42 of the Judgment.

180.  In any case, this specific proposition was uncontroversial and obviously correct. At no point within P’s draft grounds of appeal, or within P’s submissions for the Summons, did P attempt to suggest otherwise. The 2^nd Affirmation of Pang Kam Chuen filed on 3 November 2023 in support of the Summons was silent on the issue as well.

181.  It is trite that in both civil and criminal matters, a court of law is entitled to proceed on the basis of propositions which are undisputed, or indisputable, even if it would otherwise require evidence. See, eg, HKSAR v Wong Kam-Luen (unrep., HCMA 470/2006, 30 June 2006, §§6 & 8, per DHCJ Line). A remarkably long but still non-exhaustive list of this having taken place properly in a court of law can be found in Phipson on Evidence (20^th Edition, §3-17). Similar lists can be found elsewhere. Whilst P’s case at trial was, quite obviously, that the Father never gifted the Property to D, it was never part of P’s case that no parent would ever do anything similar, or that it would be wholly abnormal for any parent to want to help his child. Indeed, as I said in §69 above, at trial, P did not even challenge D’s sworn oral evidence that when D was trying to marry D’s Wife in 1985, the Father was the one who helped D by paying the necessary gift money (禮金), for no reason other than the fact that, in D’s own words[44]:-

「因為當時我老竇真係好錫我嘅… 我做啲乜嘢，佢都會幫我搞掂嘅… 如果我當時有咩嘢需要… 我老竇係會付出俾我嘅。」

[English translation: “Because back then my father really treated me very well… no matter what I do, he would fix it for me… if back then I had any needs, my father would pay for me…”]

182.  Finally, it should be said that just like how I rejected P’s case on both inherent improbability and other factors, and how I certainly would have rejected P’s case even if I were to only consider one but not the other, in the Judgment I was also accepting D’s case on both inherent probability and other factors, and I also certainly would have accepted D’s case even if I were to only consider one but not the other. Accordingly, unless I were deemed palpably wrong on literally all fronts, the result would be identical, and P’s challenge of the eventual outcome as stated in the Judgment would still fail. It is, with respect, fanciful for P to suggest the outcome would be reversed by the Court of Appeal.

183.  P’s assertion 4(c) does not provide P with a ground of appeal, certainly not one with any reasonable prospect of success.

184.  P’s assertion 4(d) reads: -

“By declaring he accepted [D]’s sworn evidence [43-44] and used those as bases for his judgment, the Learned Judge was again demonstrated to have fallen into palpable errors by deciding whether there was CICT on credibility of witnesses rather than on inherent likelihood, plausibility, probability and reasonableness of the parties’ stories.”

185.  P’s assertion 4(d) is, with respect, simply absurd.

186.  Ordinarily speaking, a litigant cannot use the performance of one action as proof that another action had never been performed. By way of example, if a person declared he brushed his teeth, that declaration could not be taken as a demonstration that he never took a shower or washed his clothes. These events are not necessarily connected. Similarly, a judicial officer’s acceptance of sworn evidence is not a demonstration that inherent probability has thus been ignored by that judicial officer. These events are not related at all. I adopt and repeat §§9 to 13, §§127 to 159, and §§178 to 182 of this Decision here.

187.  In opposing the Summons, Mr Tommy Cheung, counsel for D, helpfully drew my attention to what was stated by Lam V-P (as Lam PJ then was) in §§11 to 22 of China Gold Finance Limited v CIL Holdings Limited (unrep., CACV 11/2015, 27 November 2015). Whilst those parts of the Court of Appeal’s seminal judgment are all correct and applicable in our present case, the even more insightful part of the same judgment should be its §§31 to 35. In gist, as emphasized by Lam V-P, a dissatisfied litigant who lost in a trial cannot just take out a small passage in the first instance judgment and then read it out-of-context.

188.  In China Gold, there was a small passage in the first instance judgment of DHCJ B Chu (as Chu J then was) in which Her Ladyship said she had preferred the evidence of one Mr Li Jie as she had found him “more spontaneous and firm when giving evidence”. On appeal, that one passage was blown out of all proportion. In dismissing the losing party’s challenge vis-à-vis that passage as having no merit (§35), Lam V-P (as Lam PJ then was) said this (§34):-

“With respect, if one reads paragraph 67 in light of the whole judgment, one can readily see that the Judge did not commit the error as the other judge did in Tradepower. The Judge did weigh the relevant evidence on each issue separately and carefully and she did not come to her conclusion simply based on demeanour of the witnesses. The Judge specifically stated at paragraph 67 that she would consider the evidence of the witnesses in detail later. By the time she wrote the judgment, the Judge must have assessed the evidence thoroughly and she must have formed the views set out in the whole judgment. At that paragraph, she only gave an introductory overview and the actual weighing process was set out by her in the later parts of the judgment. It is wrong to read paragraph 67 as the Judge closing her mind to other matters which were addressed later in the judgment.”

189.  Whilst each case is different as circumstances differ, P would do well to reflect on what was said by Lam V-P above vis-à-vis what P is saying now. If P reads the Judgment carefully, P should be able to see that in §42 of the Judgment, the inherent likelihood of D’s case being true had been explicitly dealt with – the stated reasoning was that it was normal for parents to want to help their children. P should also be able to see that in §§46 to 66 of the Judgment, a variety of other arguments raised by Mr Alan Leong SC, leading counsel for P, had also been dealt with. P should further be able to see that in §67 of the Judgment, it was recorded that other points, factual and legal, put forward on behalf of P, had also been considered. P does appear to be making a rather similar mistake as the losing party made in China Gold – taking out a small passage and read it as if that was all that was ever said. In my view, P’s approach is wholly inappropriate (see China Gold, §98), and would be viewed as wholly inappropriate.

190.  P’s assertion 4(e) reads: -

“Had he not fallen into such errors, the Learned Judge ought at least to have made the findings on why [D] had worked for the Father without gain for 8 years, as opposed to just accepting that he did because he was credible, which undoubtedly is relevant to assessing the inherent likelihood and plausibility of [D]’s story.”

191.  P’s assertion 4(e) is simply false.

192.  Firstly, there was no error, and therefore no “such errors”. I repeat §§171 to 189 above.

193.  Secondly, it is true that D’s evidence on why he had for many years been content to assist the Father run Kar Wah without taking salaries was accepted, but it was never accepted “just” because D was “credible”, wherever P got that strange and false idea. P’s assertion was false. As one can see from §19(1) of the Judgment, what I actually said was:-

“Most if not all of D’s evidence, including, specifically, D’s explanation as to why he had for many years been content to assist the Father run Kar Wah without taking salaries was logical, accorded with common sense, and was fully supported by the evidence of other witnesses called by him. In particular, as I shall elaborate below, D’s key evidence was supported by the evidence of D’s Wife who on my assessment was an even more reliable witness.”

194.  So just within §19(1) of the Judgment, P should be able to see multiple reasons being given, namely (1) D’s explanation was logical; (2) D’s explanation accorded with common sense; and (3) D’s explanation was fully supported by the evidence of other witnesses called by him. I counted 3 reasons. Most importantly for our present purposes, there was in fact no reference to D being “credible” within that sub-paragraph.

195.  Thirdly, as one can see at §§49 & 50 of the Judgment, I made a positive factual finding that D was as filial as he said he was, and I did so explicitly.

196.  Fourthly, as one can see at §50 of the Judgment, I drew on my ordinary life experience in my assessment of the relative probability of D’s story being true, and explicitly said “many people in the world are just as filial as D was” so that in my view D’s story was “normal”, and that there was nothing extraordinary about D’s story at all. I explicitly said:-

“If my own father had a business, I would myself have worked for him for free as well. I consider this normal, and in no way “extraordinary”.”

197.  That was based on relative probability, and not “credibility” as alleged.

198.  Fifthly, at §49 of the Judgment, I explicitly quoted the reason given by D on oath verbatim and made a factual finding that that was true and accepted by me as true. That quotation at §49 of the Judgment included these words, which must be self-explanatory and understood by P:-

「親生老竇嚟㗎嘛… 我信我老��… 老竇生意即係自己生意…大家嗰個心係我知佢，佢知我… 老竇覺得我 - 我幫佢，我就覺得佢幫我，即係咁咋嘛… 一定唔會同老竇喺度講數或者點樣㗎嘛。」

[English translation: “He was my biological Dad after all… I believed in Dad… Dad’s business was my business… we felt that I knew his heart and he knew my heart… Dad considered that I…I was helping him, and I considered that he was helping me… as simple as that really… I would never discuss monetary payments with Dad.”]

199.  In my view, P’s renewed refusal to accept that D had for many years been content to assist the Father run Kar Wah without taking salaries for the reasons set out in §49 of the Judgment is possibly also a classic case of “以小人之心度君子之腹”, which can perhaps be translated as “using a mean person’s heart to measure a true gentleman’s mind”, or “a rogue always suspects deceit”.

200.  P’s assertion 4(f) reads: -

“[45] is hollow and does not indicate much about the Learned Judge’s reasoning.”

201.  P’s assertion 4(f) is wholly misconceived.

202.  Without having to quibble over semantics, the short answer to P’s assertion 4(f) is that any part of any judgment of any judicial officer, if read in isolation and out of context, can be arguably hollow, but that is just because judgments are never meant to be read in that manner at all.

203.  Take one of Lord Denning MR’s most famous judgments, that of Miller v Jackson [1977] QB 966, as an example. As is well-known, His Lordship’s famous first sentence (at 976-A) in that judgment went:-

“In summertime village cricket is the delight of everyone.”

204.  If one reads that one sentence in isolation and without context, it is arguably hollow, as that one sentence by itself does not tell us anything useful. But if one reads the whole of Lord Denning MR’s judgment in that matter (from 976-A to 982-E), one can immediately see why he wrote about “the delight of everyone”. It was His Lordship’s view that public interest prevailed over private interest so that an injunction should be refused. The public interest in that matter was the delight the playing of village cricket brought to people in County Durham, England. Read in context, that first sentence would not be hollow at all. Just picking one sentence from a full judgment and calling it hollow is with respect an unacceptable practice.

205.  In fact, that was the “first and foremost” point taken by Mr Tommy Cheung, counsel for D, in his written submissions in opposition of the Summons. According to Mr Cheung[45], it was fundamentally wrong for P to single out, separate and dismantle the closely connected or interlinked analysis and reasoning in the Judgment in the manner as P did. I entirely agree. P’s approach is simply completely wrong. If an authority is needed, we can just go back to China Gold. I do adopt §§187 to 189 above, which is also applicable here.

206.  In any case, §45 of the Judgment is actually not “hollow”. It reads:-

“Thirdly, adopting the approach as explained by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung (above), I considered the totality of all evidence, including “evidence of express discussions” and evidence of the parties’ other conduct, and came to the view that the evidence plainly showed that the common intention between the Father and D back in 1986 was that the Property was meant to be a gift from the Father to D, and they conducted themselves accordingly until their relationship turned sour in or around 1988, when the Father chose to side with the Widow in a dispute or a number of disputes between the Widow and D’s Wife.”

207.  That passage had therefore set out the legal approach adopted, what had been considered, what was the finding, and the timeframe. This seems to me to be quite important for the reader of the Judgment, including P, and its inclusion in the Judgment completed the picture. Its utility should be obvious to everyone.

208.  All in all, P’s assertions above plainly do not make the reasons for finding D’s story more likely to be true “not sustainable”, whether as alleged or all.

209.  In my view, for all of the reasons above, and with the greatest respect, P’s intended ground four is also unarguable and has no reasonable prospect of success.

210.  I refuse to grant leave on P’s intended ground four.

Intended Ground Five

211.  P’s intended ground five reads: -

“The Learned Judge erred in placing no real weight at all on the witness statements of the Widow and [P] (at [17(1)] and [18(3)]) on the ground that there was further elaboration in important aspects of evidence in their supplemental witness statements after the Father had passed away in that:-

(a) The Learned Judge should take into account that the Father was still alive when [P] and the Widow made their first witness statements in which circumstances ought not to have found it unreasonable for [P] and the Widow to take a more passive role in the expectation that the Father would testify as the main witness at trial.

(b) The Learned Judge placed undue weight on whether [P] had read the Father’s statement before being cross-examined in Court when such was permissible practice and is normally done.”

212.  In my view, P’s intended ground five is also unarguable, and has no reasonable prospect of success. In fact, I do say it is deplorable that P’s intended ground five found its way into a formal court document.

213.  Firstly, the sworn evidence of the Widow at trial was the exact opposite of what P now tries to submit.

214.  When the Widow was giving sworn oral evidence at trial, Mr Alan Leong SC, leading counsel for P, re-examined the Widow, as he was entitled to, and the following exchange[46] took place between Mr Leong and the Widow:-

「問：丘女士，我想問吓妳，即係會唔會係因為妳老公講咗，使乜妳講呢？係咪？

答：唔會。」

[English translation: “Question: Madam Yau, I want to ask you, would it be because your husband had already said it, so you did not have to? Yes?

Answer: No.”]

215.  That exchange was telling because the question was in fact an inappropriate leading question which suggested the answer, yet the Widow firmly disagreed with the answer embedded in the question. It was an own goal for P.

216.  That exchange clearly showed that what P now tries to submit is untrue, and had been denied by his own mother, the Widow, on oath. In light of that exchange, it is shocking how P still tries to pursue his intended ground five.

217.  Secondly, for the “sudden expansion” of evidence on the part of P, what P now tries to submit is also untrue or nonsensical. When P was giving sworn oral evidence at trial, with the consent of everyone, I asked P clarification questions, and the following exchange[47] took place between P and myself:-

「官：我又有個小小嘅跟進問題就係，你頭先個答案就話，主力係爸爸咁樣喇…

答：我當日係諗住係主力爸爸結…

官：咁…

答：嗰陣時10年爸爸都…

官：係，等等，等等，等等，等我問咗條問題先。咁但係撞到 — 即係根據你嘅講法，你喺九龍城撞到被告人，就唔係爸爸撞到，係你本人撞到….

答：唔係爸爸，係 — 我本人。

官：…吖嘛。

答：係喇，唔係爸爸。

官：咁所以呢個就我會喺度諗，會唔會唔係一個關你爸爸事，由爸爸把口講嘅嘢，而係因為係你撞到，所以應該係喺你個證人陳述書嗰度寫嘅嘢呢？咁如果係咁，你頭先個解釋係咪不成立呢？我想俾多個機會你解釋。」

[English translation: “Judge: I have yet another smallish follow-up question and it is this. Your answer just now said, the main force was Dad…

Answer: Back then I did think the main force was Dad…

Judge: So…

Answer: Back in year one-o Dad also…

Judge: Yes, wait, wait, wait, wait for me to ask the question first. But bumping into… according to your story, you bumped into the defendant in Kowloon City. It was not your father who did. It was you personally bumping into…

Answer: Not Dad. It was me personally.

Judge: Right…

Answer: Yes, not Dad.

Judge: So, on this, I would think, would this be a matter which did not concern your father, shouldn’t be something told through your father’s mouth, because it was you at the encounter… so it should be something written into your witness statement? If so, your explanation just now, was it invalid? I wish to give you an additional chance to explain.”]

218.  P never came up with any acceptable reason why it should be the Father giving evidence on something beyond his knowledge, instead of P giving evidence on his firsthand experience. This suggestion from P was and remains wholly nonsensical, and obviously so. P never addressed this in the Summons, or in P’s submissions in support of the Summons.

219.  That was the genesis of what I eventually said in §18(3) of the Judgment, which was as follows:-

“P’s evidence under cross-examination also showed that he was making things up as he went along. The classic example is P’s evidence on what can perhaps be called “the Kowloon City incident”. According to P, in 2010, he bumped into D on a street in Kowloon City whilst D was parking his car, whereupon P orally demanded, on behalf of the Father, that the Property be assigned to the Father. If this incident did happen, there was no reason why P could have forgotten to put this into either of his witness statements, given its obvious relevance. But it is common ground P never mentioned this, in any way or form, at any point prior to his being cross-examined. P’s explanation under oath on why he never mentioned this incident was that P expected “the main witness” to be the Father. That made no sense whatsoever because according to P, only P (but not the Father) bumped into D so that the evidence would have to come from P, and not the Father. In my view, the more probable reason is that “the Kowloon City incident” never happened at all and P was just making things up as he went along.”

220.  In light of the above, it is shocking how P still tries to pursue his intended ground five and seeks to re-run that “it was reasonable for P to take a more passive role” argument. Just by way of example, it must be thoroughly nonsensical for P to say he was the one who allegedly bumped into D in Kowloon City in the absence of the Father but he somehow made a conscious decision never to put that firsthand experience, personal to him, into his own witness statements, expecting the Father to somehow manage to give evidence on an incident the Father never himself experienced. The absurdity of P’s argument is obvious.

221.  Thirdly, contrary to P’s current submissions, I very obviously did not just cite a single ground to say I found the evidence of the Widow and P unreliable. I cited multiple grounds.

222.  In §17 of the Judgment, I listed out 3 separate grounds why I found the Widow’s evidence unreliable, as follows:-

“(1) Most, if not all, of the things the Widow had ever said about the purchase of the Property she said she had only heard from the Father, and it was her own evidence that she did not ask questions (“我對他的決定沒有過問”). The Father was never cross-examined, since he passed away before the start of the trial. I am not satisfied the Father must have told the Widow the truth, or the whole truth. I say this since it is common ground D was a son of the Father’s first wife, as opposed to a biological son of the Widow herself, and I could see with my own two eyes, from the way the Widow and D spoke about each other whilst giving sworn evidence before me, that they obviously did not like each other at all. With this as the background, I have reservations whether the Father had been honest with the Widow vis-à-vis the true financial arrangements between the Father and D. In my view, it is entirely possible the Father lied to the Widow and P about these things with the best of intentions, such as to keep the Widow and P happy. I am fully aware I should never speculate, but in assessing the Widow’s evidence I certainly need to remind myself that her evidence was mostly hearsay, and relying on hearsay evidence can be dangerous. Just as there was no direct evidence that the Husband had lied to the Widow or P, there was also no direct evidence the Husband had told the Widow or P the whole truth. All things considered I am of the view that I should not put any real weight on any part of the Widow’s evidence.

(2) In fact, I am not even sure whether the Widow had been truthful. For example, her first witness statement, made on 13 August 2021, only had one sentence on the issue of the mortgage loan arrangements for the Property. On 3 April 2023, she made a second witness statement and it had a substantially expanded section on the very same issue. That brand-new section alleged, for the first time, that she was present at the Bank when the Father made inquiries and she heard all discussions. She was cross-examined about this “expansion” of evidence, and she was wholly unable to provide this court with a logical or otherwise acceptable reason why, if this brand-new allegation that she was present at the Bank was true, she did not mention it at the first available opportunity, ie, in her first witness statement made on 13 August 2021.

(3) In §16 of the Widow’s first witness statement made on 13 August 2021, there was a bizarre allegation that “丈夫透過親戚向彭錦波提出把葵富大廈的業權轉讓給他”. The “親戚” (ie, relative) was nameless. Since most people had names, I specifically asked the Widow why this relative had no name, or whether she had ever asked for the name of this relative. The Widow said she did ask the Father for the name whilst he was still alive, but she could not recall his answer. Given the fact that the Father and the Widow had obviously been in a close relationship since before 1973 (when Tin was born) and got married since 1979, I find the Widow’s inability to name the relative highly suspicious, to say the least. In my view, this allegation is probably false, although as I shall explain at appropriate places below, nothing turns on this.”

223.  In §18 of the Judgment, I listed out 5 separate grounds why I found P’s evidence unreliable, as follows:-

“(1) Just like the Widow, most, if not all, of the things P said about the purchase of the Property he said he only heard about them from the Father. Since P was only about 12 back in 1986 when the Property was bought, most if not all of those alleged conversations with the Father were not even contemporaneous. The Father could have just lied to P or he could have just changed his mind by the time he spoke to P about the Property. P’s evidence is therefore even less useful. I would not put any weight on any part of P’s evidence whatsoever.

(2) P’s evidence under cross-examination demonstrated, at the very least, P’s indifference vis-à-vis being accurate, or telling this court the truth, even when he was under oath. The classic example is P’s answer under oath that P had never read the Father’s witness statements until the day P was cross-examined. That answer under oath was contradicted by what P had himself said in his own witness statements, which P had confirmed on oath just earlier on the same day. I find P’s indifference vis-à-vis accuracy, or the truth, shocking. In such circumstances, I am unable to rely on anything P had ever said.

(3) P’s evidence under cross-examination also showed that he was making things up as he went along. The classic example is P’s evidence on what can perhaps be called “the Kowloon City incident”. According to P, in 2010, he bumped into D on a street in Kowloon City whilst D was parking his car, whereupon P orally demanded, on behalf of the Father, that the Property be assigned to the Father. If this incident did happen, there was no reason why P could have forgotten to put this into either of his witness statements, given its obvious relevance. But it is common ground P never mentioned this, in any way or form, at any point prior to his being cross-examined. P’s explanation under oath on why he never mentioned this incident was that P expected “the main witness” to be the Father. That made no sense whatsoever because according to P, only P (but not the Father) bumped into D so that the evidence would have to come from P, and not the Father. In my view, the more probable reason is that “the Kowloon City incident” never happened at all and P was just making things up as he went along.

(4) Further, P had also attempted to “expand” his evidence in many other ways over time. For example, in §13 of P’s witness statement dated 13 August 2021, P referred to an oral conversation in 1986 (when P was about 12) where the Father was said to have told P “我們一家將搬進葵富大廈”. There was no reference to ownership, or beneficial interest. In P’s second witness statement dated 3 April 2023, that conversation was suddenly said to have included the declaration “層樓係我地嘅”. I do find that “expansion” suspicious, to say the least. P was asked to explain this “expansion” of evidence to me. P was wholly unable to explain it.

(5) P’s evidence was also full of internal contradictions and inconsistencies which P was wholly unable to explain. In §5 of P’s second witness statement, for example, P said “據我所知所信，我確認父親的證人陳述書及父親的補充證人陳述書的所有段落均為真實”. If that were true, then the Father’s assertion that “我的確沒有他的聯絡方式” vis-à-vis D should also be true. In P’s oral evidence, however, P repeatedly insisted the Father had D’s mobile number because P had given that to the Father himself. P’s oral evidence flatly contradicted his own witness statement. In fact, P either lied under oath when he confirmed §5 of his second witness statement as true, or he lied under oath when he orally insisted the Father had D’s mobile number. Either way, P lied under oath. In such circumstances, I am unable to rely on any part of P’s evidence.”

224.  In the Summons, and in P’s submissions lodged in support of the Summons, P never addressed those other grounds.

225.  So again, P appears to have adopted the approach disapproved by Lam V-P (as Lam PJ then was) in China Gold as wholly inappropriate – taking out one passage in the first instance judgment and then read it out-of-context as if that passage was all that was ever said on the subject.

226.  It is regrettable that P chose to do so repeatedly.

227.  Fourthly, contrary to P’s current submissions, I had never, in any way or form, at any time within the trial or in any part of the Judgment, said it was impermissible for P to have read the Father’s Statements. There was no such ruling or comment anywhere. What I actually said, in §18(2) of the Judgment, was this:-

“P’s evidence under cross-examination demonstrated, at the very least, P’s indifference vis-à-vis being accurate, or telling this court the truth, even when he was under oath. The classic example is P’s answer under oath that P had never read the Father’s witness statements until the day P was cross-examined. That answer under oath was contradicted by what P had himself said in his own witness statements, which P had confirmed on oath just earlier on the same day. I find P’s indifference vis-à-vis accuracy, or the truth, shocking. In such circumstances, I am unable to rely on anything P had ever said.”

228.  The point was not whether P had read the Father’s Statements. In fact, upon DDJ Frances Lok having, on 15 March 2023, made an order directing P to take over the prosecution of this action as the executor of the Father’s estate pursuant to Order 15 rule 7 of the Rules of the District Court (Cap 336H), P became “duty bound” to read all of the papers in this action, including but not limited to the Father’s Statements, otherwise P would not be in a position to give meaningful instructions to his solicitors on matters such as whether a hearsay notice should be filed and served for the Father’s Statements, etc. P was thus wrong to say the reading was “permissible” – P was in truth both “empowered and duty bound” to read them. The point being made in the Judgment was about something else completely – it was about the internal inconsistency of P’s evidence – P contradicted his own evidence on oath within the same day. In fact, P’s denial that he had read the Father’s Statements, when he said earlier the same day that he did read the Father’s Statements, was shocking. It would be very surprising for any judicial officer to find himself being able to rely on any part of P’s evidence after P contradicted himself in that manner. Of course, as I stated above, that was just one of the five reasons I found P’s evidence unreliable – when each of those five reasons would have been more than sufficient for me to conclude P’s evidence could not be relied on by me. At the very least, that conclusion was plainly open to me and to any judicial officer.

229.  I cannot see how P could argue otherwise.

230.  Fifthly, contrary to P’s current submissions, as a matter of law it was impermissible for any factual witness, whether it was the Widow or P, to “take a more passive role”, whatever that was supposed to mean. The oath of a witness requires that witness to tell the truth, the whole truth, and nothing but the truth. It is never permissible for any witness to simply tell half-truths. When it comes to giving evidence, there is no such thing as “a more passive role”. P’s submissions in relation to this are thoroughly bad. The fact that one witness may show up to say something does not mean all other witnesses in the same matter may then on their parts deliberately bury that evidence. In any civil trial, each witness is supposed to give his own evidence independently. And since a written witness statement is meant to be the entirety of that witness’s oral evidence, a written witness statement must also contain the truth, the whole truth and nothing but the truth. There is no place for “a half-way house”. See, eg, Hong Kong Civil Procedure 2024, §38/2A/6, which says this (on which I agree and endorse as entirely correct):-

“Like the oral evidence of the trial witness, the written statement served must be full and complete; it must be “the truth, the whole truth and nothing but the truth”.”

231.  Sixthly, contrary to P’s current submissions, it is trite law that matters going to the weight of the evidence do not amount to valid grounds of appeal with reasonable prospect of success, because the Court of Appeal takes the view that it is never appropriate for the Court of Appeal to “take over the role of the trial judge as the primary assessor of the evidence”, or to “embark on the role of re-assessment of the evidence” – Yeung Cheung Chun v Wing Shing Caisson & Foundation Limited and Another (unrep., CACV 39/2015, 25 April 2016, §35, per Kwan JA, as Kwan V-P then was) – and P’s current attempt to say I should perhaps have placed more weight on this or less weight on that is wholly inappropriate within an application for leave to appeal.

232.  For all of the reasons set out above, P’s intended ground five is in my view unarguable and has no reasonable prospect of success.

233.  I refuse to grant leave on P’s intended ground five.

Intended Ground Six

234.  P’s intended ground six reads: -

“The Learned Judge erred at [27] in giving no weight at all to the Statements of the Father who was recently deceased. None of the reasons set out, whether separately or cumulatively, justify the complete disregard of the Father’s Statements, in that:-

(a) The Father was the patriarch of the family and the only person who had first-hand personal knowledge of the circumstances surrounding the purchase of the Property, whose evidence was of high probative value.

(b) Undue weight was attached [27(3)] to the inaccuracy contained in the Father’s Statements that [D] came to Hong Kong at the age of 18, while [D]’s HKID card ‘proved’ that he came to Hong Kong at the age of 15.

(c) The Learned Judge used this as a reason rendering the Father’s Statements completely unreliable so as to justify giving no weight at all to the Father’s Statements, conveniently forgetting about his having opined at [8] that “nothing important turned on” whether D arrived in Hong Kong at the age of 15 or 18.”

235.  In my view, P’s intended ground six is plainly unarguable, and has no reasonable prospect of success.

236.  Firstly, P’s new assertion that the Father was “the only person who had first-hand personal knowledge of the circumstances surrounding the purchase of the Property” is inconsistent with P’s oral opening, where Mr Alan Leong SC, leading counsel for P, made it clear P’s case was based on an allegation of express agreement between the Father and D[48]. If there was an agreement (in the Judgment I ruled that there was none), then there would be at least two persons (namely, the Father and D) who had the first-hand knowledge of what was agreed. Having opened his case on that basis, it is no longer open to P to retract that and suggest the opposite, just because he lost.

237.  Secondly, P’s new assertion (above) is also inconsistent with P’s cross-examination of D, where Mr Alan Leong SC, leading counsel for P, specifically put to D that there was, allegedly, an oral agreement between the Father and D on the express terms of the trust back in 1986[49]. If there was an agreement (in the Judgment I ruled that there was none), then there would be at least two persons (namely, the Father and D) who had the first-hand knowledge of what was agreed. P, having put his case in this manner, is no longer entitled to suggest the opposite, just because he lost.

238.  Thirdly, P’s new assertion (above) is also inconsistent with the actual contents of the Father’s Statements, where the Father sought to allege there was an oral agreement between the Father and D on the express terms of the trust[50]. If there was an agreement (in the Judgment I ruled that there was none), as I mentioned above, there would be at least two persons (namely, the Father and D) who had the first-hand knowledge of what was agreed. P cannot blow hot and cold in this manner, alleging an agreement between two persons, whilst at the same time suggesting only one of them had first-hand knowledge of the agreement.

239.  Fourthly, as I had correctly stated in §26 of the Judgment, my duty was to apply Section 49 of the EO, and I was fully entitled to consider the issue of weight by reference to a variety of factors, including those set out in Section 49(2) of the EO. It should be crystal clear from the reasoning set out in §27 of the Judgment that I did exactly that. As I had mentioned above, it is trite law that matters going to the relative weight of the evidence do not constitute valid grounds of appeal because it is never appropriate for the Court of Appeal to “take over the role of the trial judge as the primary assessor of the evidence”, or to “embark on the role of re-assessment of the evidence” – Yeung Cheung Chun (above) – and P’s current assertions that I should have placed more weight on this or less weight on that are not appropriate within an application for leave to appeal.

240.  Fifthly, §8 of the Judgment was obviously correct. D properly disclosed a true copy of his current HKID Card[51]. There was no challenge to its authenticity. I had in any case examined the original. Its date of issue was “11-79”. That means, by November 1979 at the latest, D had already arrived Hong Kong and went to the Immigration Department to get the first version of his HKID Card issued by the Hong Kong Government. Nothing important turned on that at all because quite irrespective of whether D came to Hong Kong in 1979 or 1982, the Property could still be either an absolute gift or the subject of a trust. D’s exact year of entry was wholly immaterial vis-à-vis that ultimate question. There was, however, no conflict between that view and my consideration under Section 49 of the EO, which required me to have regard to “any circumstances” relating to the reliability of the hearsay evidence in question, irrespective of whether those circumstances would go to the ultimate question or not. So, whilst D’s exact year of entry was wholly immaterial to the ultimate question, the irrefutable fact that the Father’s Statements contain an obvious error was something I was obliged to consider. It was open to me, and to any judicial officer, to take that into account as one of the seven reasons (most of which unchallenged) why the Father’s Statements should be given no weight[52]. I cannot see how P could argue otherwise.

241.  Sixthly, it was actually P who (via §31 of his written opening) urged me to assess the weight to be given to his hearsay evidence by cross-checking all such hearsay evidence against other evidence at the trial, citing the dictum of HHJ Jonathan Wong in Law Kim by next friend The Official Solicitor v Luk Yik Biu [2022] HKDC 878 (§5.5) in support. It is not open to P to now say I should never have done so, just because the outcome was unfavourable to P.

242.  Seventhly, I gave seven reasons why the Father’s Statements should be given no weight. The full §27 of the Judgment said:-

“I give no weight to the Father’s Statements, having considered that their contents are in my view completely unreliable because:

(1) The Father’s Statements were made in 2021, ie, around 35 years after the key events in 1986. They were by no means made contemporaneously with the occurrence of the key events in 1986.

(2) The Father had a financial interest in the outcome of the action, and thus a potential motive to lie.

(3) The Father sought to say D came to Hong Kong in 1982 but that was flatly contradicted by D’s HKID Card, the original of which I inspected, and a true copy of which had been duly disclosed by D in November 2021.

(4) The Father sought to say “彭錦波從沒有向其他人宣稱自己是葵富大廈的業主” (ie, D never ever claimed to any person whosoever that he was the owner of the Property) when, plainly, what D had or had not said to 3^rd parties unknown to the Father would be beyond the Father’s personal knowledge.

(5) The Father sought to assert he did not have D’s mobile number, but P, in his oral evidence, given under oath, repeatedly insisted the Father had D’s mobile number because P had himself given that to the Father.

(6) The Father made a bizarre allegation that “我向親戚透露我想把彭錦波在葵富大廈的業權轉讓給我，透過親戚向彭錦波提出辦理轉名手續”. The “親戚” (ie, relative) was nameless. I found this highly suspicious, to say the least.

(7) The Father sought to say “近年出席彭錦波的大女兒結婚設宴擺酒時，他也沒有叫孫女向我斟茶。我沒有感受到被他尊重” (ie, the Father felt that he did not get the respect he deserved from D, when D never asked D’s daughter to perform a traditional tea pouring ritual for him during D’s daughter’s wedding banquet). In my view, if the Father’s assertion was true, then this feeling of anger or disappointment which the Father seemed to have attempted to convey using those words may mean the Father had yet another potential motive to lie in this litigation in order to “get back at” D.”

243.  Apart from a wholly unparticularized bare assertion that I had erred, P never challenged reasons (1), (2), (4), (5), (6) or (7) set out in §27 of the Judgment, as quoted above. Each of those reasons would in any case be sufficient for any judicial officer to reach the same conclusion, whether considered independently or in conjunction with each other. P did not say anything by way of submissions which could demonstrate otherwise. Even if any one of the seven reasons was taken out, it would still be open to me, or any judicial officer, to reach the same conclusion. P’s current challenge therefore does not have the necessary materiality and would fail. See §35 of Yeung Cheung Chun (above), per Kwan JA as Kwan V-P then was.

244.  Eighthly, looking at the way P drafted his intended ground six, P appears to have yet again adopted the approach disapproved by Lam V-P (as Lam PJ then was) in China Gold as wholly inappropriate – taking out a single passage in the Judgment and then read that out-of-context as if that was all that was ever said on the subject, when that was untrue.

245.  It is regrettable that P chose to do so repeatedly.

246.  For all of the reasons above, P’s intended ground six is in my view unarguable and has no reasonable prospect of success.

247.  I refuse to grant leave on P’s intended ground six.

Intended Ground Seven

248.  P’s intended ground seven reads: -

“The Learned Judge fell into further palpable error at [62-66] wherein he observed that in case he was wrong to reject [P]’s factual case, he ‘could have applied Monat Investment Ltd v All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [2023] 2 HKLRD 1311 [2023] HKCA 479 and indirectly Patel v Mirza [2017] AC 467 and considered proportionality’ in that:

(a) Considering the pleadings and given the evidence at trial, [P]’s case was not ex facie illegal. The mortgage bank was aware of the arrangement of the Father, the borrower, using [D]’s name as mortgagor for convenience and suffered no prejudice should it ever need to enforce the mortgage deed which was a tripartite agreement.

(b) There was no evidence that the Father or [D] was aware of the possible illegality when agreeing on CICT in which premise any such illegality is irrelevant to an assessment of the plausibility or otherwise of the parties’ stories.

(c) With the bank knowing about the CICT and given the absence of evidence of any prejudice it suffered, it was not open to the Learned Judge to refuse giving effect to the CICT agreement based on infringement of policy of public justice.

(d) [P] can resort to resulting trust as a fallback, and the law is clear that Monat would not have applied to the operation of the presumption of resulting trust (see Leung Ching Wai v Li Yun Lim [2023] HKDC 459, para 74).

(e) Illegality is a red herring which is irrelevant to plausibility of [P]’s story about the CICT nor enforceability of the CICT agreement.”

249.  In my view, P’s intended ground seven is also unarguable, and has no reasonable prospect of success. Indeed, P’s intended ground seven is fundamentally misconceived, and wholly absurd.

250.  Firstly, since my finding in the Judgment was that the alleged discussion said by P to have taken place between the Father and D in 1986 never happened, and the Property was a perfectly lawful absolute gift from the Father to D, there could be no crime, and the discussion at §§62 to 66 of the Judgment was obiter, and expressly said to be purely academic. It is trite that a litigant can only appeal against the outcome of a trial, but not against purely academic discussions based on a hypothetical scenario. As Lord Loreburn LC had stated in Glasgow Navigation Company v Iron Ore Company [1910] AC 293 at 294, it is never the function of any court of law to advise parties as to what would be their rights under a hypothetical state of facts. P’s current attempt to appeal against purely academic discussions is with respect completely misconceived. See Hong Kong Civil Procedure 2024, §59/0/30.

251.  Authorities on this also exist in abundance. In my view, there is no necessity for me to identify or examine all of them, nor would that be possible. Just citing two examples should be sufficient.

252.  The first example here can be the Court of Appeal’s judgment in Allidem Mae G v Kwong Si Lin (unrep., HCMP 33/2006, 17 March 2006, Yuen JA), where a litigant sought leave to appeal from the Court of Appeal on the basis that Chak Chong-chi v Maxim’s Caterers Ltd (unrep., HCLA 25/1992, 21 September 1992, DHCJ Jerome Chan) should be discussed. In rejecting that argument, Yuen JA said this (at §§6 to 11):-

“Chak was a decision…to the effect that if an employer considers that he has grounds for terminating an employee’s employment under s.9 Employment Ordinance (‘EO’) Cap. 57 but he nevertheless makes payment to the employee when terminating, the employer must expressly inform the employee at the time of termination that the payment was not payment in lieu under s.7 EO but was an ex gratia payment, if he is to avoid liability to pay long-service payment under s.31S(1) EO. I think it is fair to say that this decision has been regarded by some as controversial... However in the present case, those questions (even assuming that they are questions of law of general public importance) are not supported by the necessary findings of fact on which an appeal may be raised. If there had been a finding of fact by the Tribunal that the employee’s conduct did actually warrant termination under s.9 EO, but the employer had made payment at the time of termination without the express statement recommended in Chak, this court may have given leave to appeal so that it could consider whether the decision in Chak is correct. But that is not this case. First, the Labour Tribunal found as a fact that the employer had failed to discharge her burden of proving that there were sufficient grounds for termination under s.9 (para. 26, transcript of Presiding Officer Poon’s judgment). Secondly, Deputy Judge Carlson (after reading the evidence before the Presiding Officer) also concluded that the Presiding Officer’s assessment of the evidence had not been shown to be perverse on the primary facts, nor had the Presiding Officer drawn inferences from those facts which were not reasonably open to him (para. 31, Deputy Judge Carlson’s judgment)… Given those findings of fact, whether the approach in Chak is right as a question of law is purely academic. Where there is no foundation in fact for the intended appeal, the court cannot give leave as it cannot decide academic cases. This application for leave to appeal must accordingly be dismissed.”

253.  Whilst Yuen JA’s dictum as quoted above was in relation to a labour dispute, it was of general applicability. In cases concerning private disputes only, the Court of Appeal cannot in normal circumstances, or does not in practice, seek to decide academic scenarios which did not arise from the actual findings of fact at the court or tribunal below, irrespective of how academically interesting the issue could be. The rationale is simple. Only the ratio decidendi of an authority is binding (the obiter dictum of the same authority has no force of law). It is thus considered generally inappropriate for the Court of Appeal to entertain arguments that are purely academic. It would in any case be a waste of precious judicial resources for our appellate courts to routinely (ie in the conspicuous absence of special circumstances) entertain arguments which do not in fact arise from findings of fact at the court below.

254.  Another example here can be the Court of Appeal’s judgment in Beelab Semiconductor Limited v The Ombudsman (unrep., CACV 227 / 2010, 21 June 2011) where Kwan JA (as Kwan V-P then was) made it very clear that the Court of Appeal would not rule on hypothetical questions that were “not germane to” (§17) the actual decisions at the courts below. In the circumstances of Beelab, that was fatal to the application in question.

255.  In our present scenario, my actual finding of fact was that the Property was a perfectly lawful absolute gift from the Father to D, so that we need not consider Monat Investment Ltd v All Person(s) in Occupation of Part of No 16 Ma Po Tsuen [2023] 2 HKLRD 1311 [2023] HKCA 479, or Patel v Mirza [2017] AC 467. No issue of criminality arose. This being the case, P’s intended ground seven is fundamentally misconceived.

256.  Secondly, the factual assertions in P’s intended ground seven are either false or without foundation. By way of example, P boldly asserts the Bank “was aware of the arrangement” between the Father and D when P adduced no such evidence from any person who worked for the Bank in 1986. I do adopt §§58 to 63 above, and §§149 to 154 above, in relation to this. Even if a frontline staff member was aware of it, that person could of course have been a co-conspirator who assisted customers in deceiving the Bank. Since P chose to adduce no evidence from the Bank, that was simply unknown. It was unnecessary to investigate this matter any further, given my rejection of P’s factual case for the reasons set out in the Judgment.

257.  Thirdly, I obviously did not “refuse giving effect to the CICT agreement” as alleged – my finding was that there was no CICT agreement to start with.

258.  Fourthly, given my finding that the Property was an absolute gift from the Father to D, there was no resulting trust for P to rely on.

259.  Fifthly, whilst I have read with interest the recent judgment of DDJ Frances Lok in Leung Ching Wai v Li Yun Lim [2023] HKDC 459 (18 July 2023) cited by P in the Summons but curiously never lodged by P, for the four reasons cited above (see §§250 to 258), this is not the occasion for me to say anything substantial about that judgment. Whilst illegality arose on the facts of Leung Ching Wai (see its §§53 to 73), it did not arise on the facts of our present case. As I mentioned above, it was lawful for the Father to gift the Property to D absolutely in the manner as he did. P’s reference to Leung Ching Wai is simply misconceived.

260.  In my view, P’s intended ground seven is also unarguable, and has no reasonable prospect of success.

261.  I refuse to grant leave on P’s intended ground seven.

The Stay Application

262.  As to the stay application, it was made by P on the assumption that I would agree there were some arguable grounds of appeal.

263.  For all of the reasons set out above, my view was and remains that the intended appeal has no reasonable prospect of success so that leave should be refused altogether. In such a scenario, there is simply no reason why the Judgment should be stayed. I dismiss the stay application.

264.  Having said that, I should record that according to Mr Tommy Cheung, counsel for D[53], out of respect for the Father (instead of by reason of any concession on the merits of the stay application itself), D generously offered an undertaking “not to take steps to seek actual possession of the Property from P, or otherwise dispose of the Property in reliance on the Judgment, up to the determination of P’s renewed application to the CA for leave to appeal (if there is any), or 6 months from [6 December 2023], whichever is later” (“D’s Undertaking”).

265.  I accept D’s Undertaking. I do so for the sole reason that this would make it unnecessary for P to attempt an interlocutory application in the Court of Appeal itself, saving precious judicial resources. It would be beneficial to all. But for this consideration, I would not consider accepting D’s Undertaking at all, given my view on how unmeritorious P’s intended appeal really is.

Disposition

266.  By reason of the above, the Summons is dismissed. There is no reason why costs should not follow the event. There is an order nisi that P shall pay to D the costs of the Summons, summarily assessed by me with certificate for counsel at HK$121,555, forthwith.

267.  Unless a party takes out a summons to vary the order nisi on costs within 14 days from today, the order nisi shall automatically become absolute, without further order.

Final Remarks

268.  Last but not least, I should say this. In most civil trials, one side wins, the other side loses. This happens daily in our courts. There is nothing unusual about this. The losing party is always entitled to exercise all of his legal rights prescribed by our rules of court, including the right to apply for leave to appeal to a higher court. These legal rights exist, and are prescribed by our rules of court, for good and important reasons. However, in exercising a legal right to apply for leave to appeal the losing party needs to act honestly and responsibly and refrain from making false or misleading allegations. All legal rights must be exercised in an honest and responsible manner. Whilst all leave to appeal applications would necessarily involve making an allegation that the first instance judicial officer had erred, and that may by itself be entirely proper, if the draft grounds of appeal seek to argue some propositions were “not disputed” by the opposing party at trial, the applicant has a duty to check whether such an allegation is actually true before making it. Even if the official transcript is not available at the point of drafting the grounds of appeal, it would be good practice for the litigant to consider applying for a copy of the official audio recording for the trial and cross-checking his intended allegations with this record. Had this been done in our case, P’s draft grounds of appeal would have been much shorter and more focused. A more responsible approach in the drafting of the draft grounds of appeal for this case would have been beneficial for the efficient administration of civil justice.

269.  I do thank all counsel for their most able assistance.