LEUNG YUET WAH v. TANG MAI LOK by TANG PING FAI his guardian ad litem

DCCJ 6587/2020

[2026] HKDC 751

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 6587 OF 2020

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JUDGMENT

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1.  This is a trial of an action to recover an alleged debt of $800,000, said to arise from an oral agreement between the Plaintiff and the Defendant.

UNDISPUTED BACKGROUND

2.  The Plaintiff and Mr Tang Ping Fai (“Tang PF”) are former husband and wife. Tang PF petitioned for divorce in November 2011. A decree absolute was made by the Family Court in May 2012.

3.  Their daughter, Tang Wai Kiu Vicky (“Vicky”), was born in 2003.

4.  The Defendant is the father of Tang PF. During the currency of these proceedings, the Defendant was certified to be mentally incapacitated and now defends this action through Tang PF as his guardian ad litem.

5.  In the course of the matrimonial proceedings, the Plaintiff and Tang PF attended mediation. On 30 January 2011, they executed a Settlement Agreement in the presence of the mediator (“Settlement Agreement”). At that time, Vicky was a primary 3 student.

6.  The Settlement Agreement provided, inter alia, for the sale of the then matrimonial home (“Matrimonial Home”) held by the Plaintiff and Tang PF as joint tenants, and for the equal division of the net sale proceeds. Relevantly, the Settlement Agreement also included the following provisions, adopting the translation presented to the Family Court in the matrimonial proceedings:

“5.7.1.6 [Tang PF] agrees that within 90 days after granting the Decree Absolute, pay to [the Defendant] a sum of HK$800,000, who had lent a sum of HK$1,000,000 to [Tang PF] and [the Plaintiff] for purchasing the [Matrimonial Home].

5.7.1.7 [The Plaintiff] agrees that within 90 days after granting the Decree Absolute, pay to [the Defendant] a sum of HK$800,000, who had lent a sum of HK$1,000,000 to [Tang PF] and [the Plaintiff] for purchasing the [Matrimonial Home].”

7.  On 26 May 2012, the Plaintiff gave a cheque for $800,000 to the Defendant. The cheque was cleared on 28 May 2012.

THE PLAINTIFF’S CASE

8.  The Plaintiff’s case is set out in her Amended Statement of Claim, with clarifications made in her opening submissions.

9.  She alleges that prior to the execution of the Settlement Agreement, she entered into an oral agreement with the Defendant in a telephone conversation on a date which she cannot recall. According to the Plaintiff, she agreed to make the payment of $800,000 to the Defendant; and in consideration the Defendant agreed to return the same to Vicky for her study.

10.  The Plaintiff says that she executed the Settlement Agreement in reliance on this oral agreement.

11.  She further alleges that although she paid $800,000 to the Defendant, he failed to pass the money to Vicky. She therefore claims that the Defendant breached the oral agreement. She also pleads that the Defendant holds the sum on trust for Vicky. The relief sought is repayment of $800,000 together with interest and costs.

THE DEFENDANT’S CASE

12.  The Defendant denies the existence of any such oral agreement. He pleads that he was not involved in the mediation, had no knowledge of the terms of the Settlement Agreement, and made no promises to the Plaintiff concerning any payment to Vicky.

13.  The Defendant pleads that the payment to him in the sum of $800,000 by both the Plaintiff and Tang PF was likely because in 2000 he lent $1,000,000 for the Plaintiff and Tang PF to purchase the Matrimonial Home.

ISSUE IN DISPUTE

14.  The parties raised numerous factual disputes relating to family relationships, the upbringing and care of Vicky, and the conduct of various family members before and after the divorce. Extensive witness statements were filed on many of these collateral matters.

15.  In my view, however, there is only one material factual issue for determination: did the alleged oral agreement between the Plaintiff and the Defendant, whereby the Defendant agreed to pay $800,000 to Vicky, exist?

16.  Although in this judgment I will not expressly refer to every piece of evidence or submissions, I must stress that all evidence and submissions have been considered.

WITNESSES

17.  The Plaintiff called two witnesses: herself and Vicky. Tang PF testified for the Defendant.

18.  It is not disputed that the alleged oral agreement was not recorded in writing. In the Plaintiff’s case, the oral agreement was entered into between the Plaintiff and the Defendant only, without the presence of any third party. The Defendant, due to mental incapacity, was unable to testify. Accordingly, the Plaintiff’s credibility is of crucial importance.

19.  I respectfully adopt the principles governing the assessment of credibility set out by DHCJ Eugene Fung (as he then was) in Hui Cheung Fai v Daiwa Development Ltd (HCA 1734/2009, 8 April 2014).

20.  I now assess the credibility and reliability of the witnesses in the order they were called.

Vicky

21.  Generally speaking, I find Vicky to be an unreliable witness. In giving her evidence, she exhibited long and repeated pauses before answering a number of questions, including questions that were simple in nature, particularly during the early part of her testimony. These pauses were not isolated or occasional, but occurred with sufficient frequency to be concerning. In my assessment, this manner of giving evidence suggested either difficulty in recalling events accurately, or that her answers were not the product of spontaneous recollection, but instead involved hesitation, reconstruction, or an attempt to formulate responses. While I bear firmly in mind that demeanour alone is never determinative, this aspect of her evidence formed part of my overall assessment of her reliability.

22.  Further, Vicky’s oral evidence was materially inconsistent with her own witness statement. One clear example concerns her assertion in her witness statement that Tang PF disallowed her from even greeting the Plaintiff. When she was cross‑examined on this allegation, she hesitated for a prolonged period and then stated that she wished to “delete” the sentence. When pressed for an explanation, she initially said that the sentence was irrelevant to the present case. Upon further questioning by the Court, she did not immediately accept that the statement was inaccurate, but suggested instead that the language used “may not be clear”. It was only after sustained questioning that she eventually admitted that the statement was wrong, and that Tang PF did not, in fact, prohibit her from greeting the Plaintiff. Even then, she was unable to provide any satisfactory explanation as to why such a specific allegation had been included in her witness statement. Her explanation that it was the result of a mistaken recollection is difficult to accept, given the clarity and certainty of her answers once she finally acknowledged the inaccuracy. I find her not forthcoming.

23.  Another material inconsistency concerns her allegation that the Defendant had given the sum of $800,000 to Tang PF. In her witness statement, she stated that she chased Tang PF for the sum of $800,000 because she “believe[d] grandfather might have given his $800,000 to father”. However, under cross‑examination, she said the Defendant had expressly told her that he had given Tang PF the sum of $800,000. This is inconsistent with her earlier statement, which conveyed no more than a belief or suspicion, rather than a statement of fact communicated to her by the Defendant. Her witness statement made no mention of the Defendant having told her that he had given the money to Tang PF. This inconsistency further weakens the reliability of her evidence.

24.  A further example of inconsistency concerns Vicky’s evidence regarding her mobile phone. In her witness statement, she stated that although she had a 2G mobile phone, it was kept by Tang PF and was solely for his use in contacting her, and that the Plaintiff never called her on that phone. However, under cross‑examination, she admitted that she in fact took the phone with her to school. When asked to explain this discrepancy, she said that she did not take the phone to school every day, and that sometimes it was kept at school and sometimes kept by Tang PF. These explanations were given only after questioning and appeared to be attempts to reconcile her oral evidence with her earlier written statement. This episode further undermines the reliability of her evidence and reinforces my concern that parts of her witness statement were not carefully grounded in accurate memory.

25.  When viewed cumulatively, these matters lead me to place little weight on Vicky’s evidence on disputed issues. Her manner of giving evidence, the inconsistencies between her oral testimony and her witness statement, and her inability to provide satisfactory explanations for those inconsistencies together suggest that her evidence was not the product of reliable and independent recollection. Given that many of the events she described occurred when she was still a primary school student, and many years before she gave evidence, I have serious doubts as to the accuracy of her memory. I also formed the impression that she may have been inclined to give evidence favourable to the Plaintiff, even where such evidence was not entirely correct. The strong and emotive language used in her witness statement to describe Tang PF’s conduct, contrasted with her apparent retreat from some of her statements, reinforces this concern. For these reasons, I do not find her evidence reliable in determining the central issue in this case.

26.  In any event, Vicky’s evidence does not materially advance the Plaintiff’s case. Vicky has no personal knowledge of the alleged oral agreement between the Plaintiff and the Defendant. What she said she knew about the Defendant’s alleged promise to return $800,000 to herself, and about the Plaintiff’s request to the Defendant for repayment, all came from the Plaintiff, and not contemporaneously.

27.  The most relevant aspect of Vicky’s testimony concerns two occasions on which the Defendant allegedly spoke to her about giving her $800,000 for her future study, including one occasion on which he purportedly showed her an unsigned cheque bearing her Chinese name and the amount of $800,000. On both occasions, according to Vicky, the Defendant did not say to her that he had made any promise to the Plaintiff. However, such evidence, even if accepted, is equally consistent with an intention on the part of the Defendant to make a voluntary gift to his granddaughter. It does not establish the existence of a binding agreement between the Plaintiff and the Defendant, nor does it support the Plaintiff’s case that the Defendant was obliged, as a matter of contract or trust, to pay $800,000 to Vicky. Accordingly, I do not consider Vicky’s evidence to be significant in determining the central issue before the Court.

28.  In any event, I find it highly unlikely that the Defendant would have shown Vicky the cheque in the manner she described. According to her evidence, the Defendant asked her to enter his room, opened the drawer, and took out a cheque on which her Chinese name and the figure of $800,000 were written, but which bore no signature and did not contain the amount written in words. After showing the cheque, he returned it to the drawer. Vicky was unable to recall when this incident occurred.

29.  I find this account implausible. There is no apparent reason why the Defendant would have prepared and retained such a cheque—unsigned and incomplete—without either delivering it to Vicky or depositing it on her behalf. If the Defendant had intended to give Vicky the money and prepared a cheque as a result, he could have deposited the funds directly into her bank account or completed and delivered the cheque at the relevant time. If he did not intend to give Vicky the money at that time (for whatever reasons), he would not have started writing the cheque in the first place. If the cheque had already been prepared, it is difficult to understand that it would lack both a signature and the amount written in words. I find it unlikely that the Defendant would show her a cheque. For these reasons, I reject Vicky’s evidence in this regard.

The Plaintiff

30.  I now turn to the evidence of the Plaintiff. The alleged oral agreement was said to have been made solely between the Plaintiff and the Defendant, without any independent witnesses and without any contemporaneous documentation. As already noted, her testimony is therefore of central importance to this case.

31.  I regret to say that I have serious reservations about the Plaintiff’s credibility. Her evidence on the crucial issues did not remain consistent.

32.  One example concerns her account of the Defendant’s alleged request that she should not inform Tang PF about the oral agreement. According to the Plaintiff, the Defendant telephoned her and said that he would return $800,000 for Vicky’s future study, but instructed her not to let Tang PF know of this call, or else he would be “in great trouble”. She therefore did not inform anyone of this call.

33.  When the Court queried whether she was concerned that Tang PF would object to the Defendant giving $800,000 to Vicky, the Plaintiff answered immediately that “certainly he would object (緊係會反對啦)”. However, when asked to explain why this would be so, her evidence became shaken and evasive, and she repeatedly failed to answer the Court’s questions. When the Court pointed out that if the money was to be paid to the Defendant, and that the Defendant would therefore be free to deal with it as his own money, including gifting it to his granddaughter, why she considered Tang PF would object. The Plaintiff then retracted her earlier position and said that Tang PF would not object to the Defendant paying Vicky. When the Court further asked why, on her understanding, the Defendant nevertheless requested her not to inform Tang PF, she reverted to her original answer that this was because Tang PF would object. When pressed again on what basis she thought Tang PF would object, she changed her evidence yet again and said that she did not know whether he would object. When the Court then asked whether she found it strange that the Defendant did not want Tang PF to know he intended to give Vicky money for her studies, she replied that she did not find it strange and considered it normal, but was unable to articulate any reason why she regarded it as normal. This sequence of answers reveals a pattern of shifting positions, depending on the line of questioning, and significantly undermines the reliability of her evidence.

34.  Another material change in her evidence concerns her allegation that she had chased the Defendant to pay $800,000 to Vicky, but that the Defendant refused on the ground that Vicky did not have a bank account in her sole name. Under cross‑examination, the Plaintiff was asked why, in response, she did not simply open a new bank account for Vicky. She initially replied that she did not have the opportunity to do so, explaining that after picking up Vicky from school, the bank had already closed. However, she subsequently accepted that it was between 3pm and 4pm when she picked up Vicky and there would still have been sufficient time before bank closing hours to open a bank account. She then conceded that the lack of time was, in fact, not a real reason.

35.  The Plaintiff gave another reason, stating that she did not have Vicky’s Hong Kong Identity Card to open an account. This explanation was undermined when it was put to her that in August 2016 she had asked Vicky to bring her Identity Card so that they could travel to Macau. This evidence shows that she was able to ask Vicky to bring her Identity Card when she considered the matter to be important. Receiving $800,000 would plainly have been a matter of importance to her.

36.  At a later stage of her evidence, the Plaintiff advanced yet another explanation, namely that she did not dare to open a bank account for Vicky because she was worried that Tang PF would find out. This explanation had not been mentioned previously. If this explanation were true, it would necessarily follow that her earlier explanations based on lack of time and the lack of access to the Identity Card were not genuine.

37.  These repeated and inconsistent explanations give rise to a clear impression that the Plaintiff was making up evidence on the spot to address difficulties arising from questioning, rather than recounting a truthful and consistent account.

38.  A further matter concerns her quotation of conversations between herself and the Defendant in her Amended Statement of Claim and witness statement. In both, she quoted and relied upon several conversations in support of her case. However, some of the sentences and words attributed to the Defendant do not in fact appear in the recordings. After the transcripts were examined in court, the Plaintiff admitted this. She sought to explain the discrepancy by saying that she did not have the transcripts when preparing her documents and had merely set out the “main idea” of the conversations. I do not accept this explanation. The passages in question were placed in quotation marks, clearly indicating direct quotation. The pleading and the witness statement were written in English, while those quotations in Chinese. Moreover, other quoted words, including some with little substantive meaning, were accurately reproduced, suggesting that she had listened to the recordings when preparing her documents. I find that she deliberately added words to make the conversations appear more favourable to her case.

39.  I also take into account the Plaintiff’s demeanour in Court. When being questioned on matters directly relevant to the alleged oral agreement and her alleged attempts to secure repayment, she frequently sought to portray herself as someone who did not dare to do many things, who trusted the Defendant, and who did not think matters through. She repeatedly attempted to divert to other topics, and the Court had to remind her to answer the questions posed. She is an educated person, holding the position of Senior Vice President in a wealth management company, and having worked as a financial consultant. I do not accept that she was unable to understand the questions. Rather, I find that she was evasive when questions were unfavourable to her case.

40.  I remind myself that the fact that a witness has been discredited on one or more matters is relevant to the assessment of that witness’s overall credibility and reliability. In the present case, there is a dearth of objective evidence against which to test the Plaintiff’s bare assertions regarding the alleged oral agreement. Accordingly, I allow myself to be guided by the overall impression I have formed of her evidence.

Tang PF

41.  As to Tang PF, he had no direct knowledge of the alleged oral agreement. I do not place any weight on what he heard from the Defendant or the Plaintiff about its existence or the lack of it.

42.  I however accept his evidence as to the background of the term regarding payment of $800,000 in the Settlement Agreement. He explained that the $1,000,000 payment from the Defendant towards the purchase of the Matrimonial Home was documented, that the property was purchased at $3.83 million, and that at the time of settlement the anticipated sale price was no lower than $7 million. On that basis, the parties worked on a mechanism to decide how much should be repaid to the Defendant, and he considered that a repayment of $1.6 million was rationally explicable.

43.  There is clear evidence on the payment of $1,000,000 from the Defendant in purchasing the Matrimonial Home. There is a dispute whether that $1,000,000 was a loan or a gift. In my view, this is unimportant. The Plaintiff and Tang PF could have agreed that each of them would pay the Defendant $800,000 irrespective of the nature of the $1,000,000 advance. Also, the Defendant could have agreed to pay to Vicky the sum of $800,000 irrespective of whether his $1,000,000 was a gift or loan.

44.  If I am wrong and a finding is deemed necessary, I would have found that the $1,000,000 payment was a loan from the Defendant to both the Plaintiff and Tang PF and they knew about it. I give full weight to the Settlement Agreement which records clearly the acknowledgment by both the Plaintiff and Tang PF that the Defendant had advanced a loan in the sum of $1,000,000.

ANALYSIS AND FINDINGS

45.  The burden rests on the Plaintiff to prove the alleged oral agreement on a balance of probabilities. Having considered all the evidence and submissions, I find that the Plaintiff has failed to discharge that burden.

46.  First, for the reasons already explained, I do not find the Plaintiff to be a credible or reliable witness on the matters central to her case.

47.  Secondly, there is a complete absence of contemporaneous documentary support. I accept that not all agreements are reduced to writing. However, this case concerns a sum of not insubstantial value, arising in the context of contentious matrimonial litigation. It is inherently unlikely that the Plaintiff would have relied on an informal oral promise made by her ex‑husband’s father involving $800,000, without any written confirmation, contemporaneous note, or documentary record at all, particularly when she was legally represented at the time.

48.  Thirdly, the eight recordings of telephone conversations relied upon by the Plaintiff undermine, rather than assist, her case. In those recordings, the Plaintiff repeatedly challenged the Defendant as to why she had to repay him at all. She never once accused him of breaching a promise to pay $800,000 to Vicky. Such an omission is telling.

49.  In the conversation recorded on 16 January 2020, there is only a fleeting reference by the Plaintiff that she had asked the Defendant to return the money to Vicky (“我真金白銀比左你丫嘛，我係叫你比返Vicky丫嘛”). The Defendant’s response was simply that he did not understand what she was referring to (“我唔知你講乜吖”). In any event, the Plaintiff was merely asserting her own request for the money to be given to Vicky, rather than referring to any promise made by the Defendant to do so.

50.  Fourthly, I consider the alleged oral agreement to be inherently improbable when viewed in its proper context. At the material time, the matrimonial negotiations between the Plaintiff and Tang PF were contentious. They involved major issues including custody and access arrangements for Vicky, her maintenance, and the division of matrimonial assets including a few landed properties. The Settlement Agreement itself reflects careful and comprehensive negotiation of these matters. Against that background, it is implausible that the Defendant would have chosen to intervene selectively by making a separate and informal promise to the Plaintiff in respect of only one discrete financial term, while having no involvement in, or regard to, the resolution of the negotiations as a whole. If the Defendant were minded to influence the Plaintiff’s agreement, it is far more likely that he would have sought to do so in a manner connected to the overall outcome of the matrimonial settlement, rather than by an isolated and informal assurance concerning a single payment, detached from the broader and uncertain state of the negotiations.

51.  Further, if the Defendant had been minded not to retain the payment of $800,000, it is more likely than not that he would have informed Tang PF that he did not wish to receive the payment from the Plaintiff. I find it improbable that the Defendant would have agreed to receive the sum from the Plaintiff first, while at the same time agreeing to return the same sum to Vicky through such an indirect route, and to do so while concealing the arrangement from his own son.

52.  Fifth, the Plaintiff’s own evidence contradicts her pleaded case. It was her evidence that when she delivered the cheque for $800,000 to the Defendant, she thought that he would not clear it at all. This is inconsistent with her case that the Defendant was to receive the $800,000 and thereafter pay the same sum to Vicky. If the alleged oral agreement existed, there would have been no basis for her to expect that the cheque would not be cleared.

53.  Sixth, there is no convincing evidence of any pursuit of repayment until January 2019, when the Plaintiff’s solicitors sent a demand letter to the Defendant. The Plaintiff was cross‑examined extensively on this issue, but none of her explanations was convincing. In her evidence, she stressed that she did not owe the Defendant any money, and therefore had no reason to pay him at all, and that it was only because of the Defendant’s alleged promise to pay the sum back to Vicky that she agreed to the relevant term in the Settlement Agreement. If her case were true, the alleged repayment to Vicky must have been a matter of genuine concern to her. Yet she took no concrete steps to secure payment, to document any demand, or to create any written record for a period of more than 6 years. Given her background as a sophisticated professional, and bearing in mind that the Defendant is the father of her ex‑husband, who was her opponent in the contentious matrimonial proceedings, it is improbable that she would have trusted him, as alleged, for so many years without taking any action. Her further explanation that the Defendant delayed payment because Vicky did not have a personal bank account is unconvincing, particularly since opening such an account would have resolved the issue, yet she failed to do so for reasons that were inconsistent and not credible, as explained earlier.

54.  For all these reasons, I find that the Plaintiff has failed to prove the existence of any promise or agreement by the Defendant to pay $800,000 to Vicky.

DISPOSITION

55.  I therefore find that no oral agreement as alleged was made between the Plaintiff and the Defendant.

56.  In light of this finding, it is unnecessary to determine the legal arguments advanced by the Defendant.

57.  The Plaintiff’s claim is dismissed in its entirety. I now hear parties on the issue of costs.

[Parties made submissions on costs]

58.  After hearing submissions from the parties, I order the Plaintiff to pay the Defendant’s costs of the action, including all costs reserved, to be taxed if not agreed.