HO SHICK SHOU AND ANOTHER v. NG KIN PONG, THE EXECUTOR OF THE ESTATE OF NG HO GIM also known as CHAN KWOJK SHUN, DECEASED

HCMP 416/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 416 OF 2015

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J U D G M E N T

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1.  This is an application for a vesting order over the property at 6th Floor, 286 Lai Chi Kwok Road, Kowloon (“the property”). The defendant has been served but has not appeared in these proceedings.

2.  The plaintiffs are husband and wife.  Mr Ng Ho-gim, also known as Chan Kwok-chun (“Ng”), was the father of the second‑named plaintiff and father-in-law of the first‑named plaintiff.

3.  The property was purchased in 1964 and registered in the names of Ng and his wife Madam Mak Chee-noun, also known Mak Che‑noon (“Mak”), as joint tenants.

4.  The plaintiffs married in 1962 although they only registered their marriage in 1984.

5.  There were a series of family meetings in or around August 1963.  Ng and Mak were then desirous of emigrating to the US, but Ng’s mother, Madam Li Choi-shing (“Madam Li”), was to remain in Hong Kong.  Ng had to consider how to take care of Madam Li.  The family then decided that Ng and the first-named plaintiff would jointly provide money to purchase a new property which would be registered in the names of Ng and Mak as joint tenants.  The plaintiffs would continue to take care of Madam Li and would reside with her after Ng and Mak had emigrated to the US.  The plaintiffs would be responsible to take care of Madam Li for the rest of her life.  The property would be registered in the names of Ng and Mak in order to show Ng’s commitment to his mother, Madam Li.

6.  The first-named plaintiff would pay the bulk of the purchase price.  The plaintiffs would also be responsible for all matters relating to the management of the property and the payment of rates and taxes for the property.

7.  The family also agreed that Ng and Mak would transfer the legal title of the property to the plaintiffs after the passing away of Madam Li. 

8.  The property was then purchased pursuant to this family agreement made in 1964.

9.  As for the purchase price of $37,665, the first‑named plaintiff contributed HK$20,000, and Ng and Mak jointly paid the balance of HK$17,665. The contribution of Ng and Mak was treated as their contribution for the support of Madam Li and also as a gift for the plaintiffs.

10.  Ng and Mak migrated to US in 1965.  Madam Li continued to live with the plaintiffs and was taken care of by them until her death in 1990.

11.  The property was let out and the rental income was used for the daily expenses of Madam Li and the maintenance of the property.

12.  Both Mak and Ng have passed away in 1970 and 1987 respectively in the US.  Since Madam Li survived them, there was no transfer of the legal title of the property to the plaintiffs.

13.  Ng Kin-pong, the natural brother of the second-named plaintiff, has also migrated to the US.  He is the executor of the estate of Ng.

14.  Though there was no written trust agreement, there was an express oral agreement in the family prior to the purchase of the property. The property was then purchased with the common intention that the first‑named plaintiff would pay the bulk of the purchase price and the plaintiffs would maintain the property as well as to take care of Madam Li for the rest of her life.  In return, the plaintiffs would be made the registered owners of the property after Madam Li’s passing away.

15.  In reliance upon this family agreement, the plaintiffs acted to their detriment by paying for the bulk of the purchase price of the property, attending to the maintenance of the property and taking care of Madam Li. 

16.  By virtue of the said arrangement and the plaintiffs abiding by the same over the years, I am satisfied that the plaintiffs are the beneficial owners of the property by way of a common intention constructive trust: The modern approach to a common intention constructive trust has been set out by Godfrey Lam J in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9.

17.  In the premises, I make a vesting order of the property pursuant to section 45(g) of the Trustee Ordinance and in terms of the originating summons.

18.  I make no orders as to costs.