YAN YUEN CHING AND ANOTHER v. YAN TSZ KIN AND OTHERS

HCMP 1815/2021

[2023] HKCFI 1986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1815 OF 2021

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J U D G M E N T

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INTRODUCTION

1.  The 1^st defendant (“the Bankrupt”)  was declared bankrupt on 24 November 2020. 

2.  The 3^rd defendant (“Wong”)  together with the 2^nd defendant have been appointed as the joint and several trustees-in-bankruptcy of the Bankrupt’s estate (the 2^nd and 3^rd defendants, collectively, “the Trustees”).

3.  The 1^st plaintiff is the Bankrupt’s sister (“Sister”), whereas the 2^nd plaintiff (“Chan”)  has been Sister’s boyfriend since around 2013.

4.  Sister and the Bankrupt have rented a safe deposit box (“the Deposit Box”)  at the Tung Chung Branch of The Bank of East Asia Limited (“the Bank”)  in joint names since 2008.  Upon the Trustees’ opening of the same in August 2021, it was found that there were 62 items (“the Items”)  kept therein (see Annex).

5.  By commencing the present action, the plaintiffs sought the following declarations:

(1)  Items 2 – 62 deposited in the Deposit Box belong to Sister absolutely and are held upon trust for Sister and do not form part of the Bankrupt’s estate;

(2)  Item 1 deposited in the Deposit Box belongs to Chan and is held upon trust for Chan and does not form part of the Bankrupt’s estate.

6.  By virtue of his Acknowledgment of Service, the Bankrupt has indicated that he does not intend to contest these proceedings. However, he has given evidence at the trial in support of the plaintiffs’ case.

THE LEGAL PRINCIPLES

7.  Both parties have referred this Court to the legal principles set out by Sakhrani J in Angel Lee Oi Sheung v Queenie Leung Wai Ling & Others (HCMP 2668/2006, unreported, 4 May 2007).  Those principles may be summarised as follows:

(1)  The starting point is that there is a presumption that the contents in the Deposit Box are owned by the co-owners in the proportion of 50% each;

(2)  However, the said presumption is rebuttable;

(3)  The applicant who seeks to rebut the said presumption bears the burden of proof.

THE PLAINTIFFS’ CASE

8.  The late husband of Sister passed away in 2005.

9.  Sister moved into a village house in Tung Chung in 2008.

10.  As there were no security facilities at the said village house, Sister intended to rent a safe deposit box for the purpose of keeping her valuables, jewelleries and important documents therein.

11.  At that time, both her children were still young (aged 11 and 13 respectively).  To cater for any unexpected event whereby she would pass away suddenly or lose her mental capacity, she asked the Bankrupt to become one of the holders of the Deposit Box, so that he would be in a position to retrieve the items stored therein if necessary and return them to her children.

12.  It was only under the said circumstances that the Bankrupt was named as a joint holder of the Deposit Box.  As a matter of fact, nothing in the Deposit Box belonged to the Bankrupt.  Apart from item 1 of the Annex which belonged to Chan, everything else therein belonged to Sister (“the Trust Arrangement”).

THE TRUSTEES’ CASE

13.  The Trustees stated that they have a statutory duty to manage the Bankrupt’s estate.  As they took the view that the plaintiffs have failed to provide sufficient proof to show that the contents of the Deposit Box belong to them absolutely, they have to participate in these proceedings and to present an objective analysis of the plaintiffs’ case so that the Court would be able to make a considered decision of the matter.

14.  To avoid duplication, I propose not to refer to the Trustees’ observations in relation to the Items individually at this point.  They will be dealt with further below.

CREDIBILITY OF WITNESSES

15.  The consideration of the issues in the present case would involve the Court’s assessment of the credibility of various witnesses who have given evidence at the trial.  In this regard, this Court had held in Hu Lan v David Golden [2023] HKCFI 873 that:

“36. When I consider the credibility of various witnesses who had given evidence in court, I shall take the following matters into account:

(1)  Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility;

(2)  Importance should be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events;

(3)  The court will also attach importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement;

(4)  The court should consider a witness’ motive for deliberately not giving truthful testimony.  For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest;

(5)  It is essential to have regard to the entirety of a witness’ evidence. A witness can make mistakes, but the mistakes do not necessarily affect other parts of his evidence. Likewise, a witness may lie. However, lies themselves do not mean necessarily that the entirety of that witness’ evidence is to be rejected.  A witness may lie in a stupid attempt to bolster his case, but the actual case nevertheless remains good irrespective of the lie;

(6)  On the other hand, where it is shown that a witness has been discredited over one or more matters to which he has testified, this fact is relevant to the assessment of his overall credibility; 

(7)  While the court is entitled to take demeanour into account when assessing testimony, it should be borne in mind that demeanour can be deceptive and is therefore to be approached with care.”

16.  I will bear the above matters in mind when I consider the evidence of the plaintiffs’ witnesses.

DISCUSSION

The alleged Trust Arrangement

17.  It is the evidence of Sister that:

(1)  It was only pursuant to the Trust Arrangement that the Bankrupt was named as a holder and signatory of the Deposit Box;

(2)  The keys to the Deposit Box have all along been kept by her;

(3)  The Bankrupt has never had access to the Deposit Box since they started to rent the same in 2008;

(4)  She has been solely responsible to pay for the annual rent of the Deposit Box;

(5)  When her son, Chan Ka Wing (“Son”), reached the age of 22 in 2019, he was added as an additional signatory to the Deposit Box.

18.  Before I consider the aforesaid evidence, it should be pointed out right away that the matters set out in sub-paragraphs (3)[1], (4)  and (5)  above are supported by a letter issued by the Bank of East Asia dated 20 January 2021 (“the Bank’s Letter”), in which it was stated that:

“At the request of our customer, YAN YUEN CHING, we hereby confirm that YAN YUEN CHING open a SAFE DEPOSIT BOX No.[xxxx] in name of YAN YUEN CHING & YAN TSZ KIN with us on 09 September 2008. The annual rental of this safe deposit box is auto debit from the Account No. [xxxx] in name of YAN YUEN CHING.

An authorized signer, CHAN KA WING was added to this safe deposit box on 14 May 2019.

In according to the access history from 14 February 2018 to 19 December 2020 was accessed by Ms. YAN YUEN CHING solely. […]”

Credibility of the Trust Arrangement

19.  The Trustees have questioned the credibility of the Trust Arrangement.

20.  Firstly, the Trustees submitted that it is unclear as to why Sister, in 2008, suddenly worried about passing her valuables to her children, especially when she should have known by experience (her late husband passed away just a few years before the opening of the Deposit Box in 2008)  that a deceased’s estate could be passed on without much difficulty.  It was further said that, in any event, the Trust Arrangement was unnecessary, as Sister could have:

(1)  made a will for the purpose of passing the Items (except Item 1)  to her children;

(2)  put her valuables in the safe which she kept at home, and she could have affixed such a safe to the wall so that it could not be removed.

21.  In my view, these submissions were made without regard to the followings:

(1)  It was the evidence of Sister that the Trust Arrangement also catered for the situation where she lost her mental capacity. Hence, the suggestion of making a will cannot solve her concern totally;

(2)  It is not disputed that there is no security service at the village house to which Sister and her children moved in 2008. Keeping valuables in a deposit box inside a bank must be more secured.

22.  In any event, it should be borne in mind that while the Court would consider the reasonableness of Sister’s conduct, this assessment is done purely for the purpose of deciding whether what she did and what her thinking was at the material time were so unreasonable that the Court should not accept the same as credible.  The fact that there were other better ways which she could have adopted for achieving the same purpose does not necessarily mean that her case must be rejected.  In the process, it should also be noted that it is the unchallenged evidence of Sister that she had made her decision as she did in 2008 without legal advice.

23.  With the above in mind, as far as the rationale of the Trust Arrangement is concerned, I find that Sister’s evidence is credible.

24.  Secondly, according to the evidence of Sister and the Bankrupt, Sister had only told the Bankrupt that the keys to the Deposit Box could be found in a drawer in Sister’s home, without specifying where exactly they were put.  The Trustees said that this is inherently improbable.  I do not agree.  While I accept that the plan devised by Sister was not perfect, it only means that it would take longer for the Bankrupt to look for the keys in Sister’s home.  The evidence that she did not tell the Bankrupt the exact whereabouts of the keys does not make Sister’s case incredible.

25.  Thirdly, the Trustees also drew the Court’s attention to the fact that while the two children of Sister had reached the age of majority in 2013 and 2015 respectively, Sister did not seek to remove the Bankrupt as a signatory until 2019.

26.  I do not think the above objective facts would render Sister’s case incredible.  It should be borne in mind that it was Sister’s evidence (which I accept)  that the Bankrupt (i.e. her brother)  was a person she trusted.  Hence, there was simply no urgency for her to remove him as a signatory of the Deposit Box.

27.  Further, I accept that the Bankrupt did not hold the keys to the Deposit Box at all (see further below).  This reinforces the point that there was no urgency in removing him, as he could not have opened the Deposit Box without getting the keys to the Deposit Box from Sister’s home first anyway.

28.  Moreover, it is evident that at the end of the day, Sister did add Son’s name as a signatory of the Deposit Box (see further below).

Access to the Deposit Box

29.  It was Sister’s evidence that she was the only person who had accessed the Deposit Box and that the Bankrupt had never had such access.

30.  As aforesaid, Sister’s evidence is supported, at least partly, by the Bank’s Letter.

31.  Unfortunately, only the access record as from 14 February 2018 was confirmed in the Bank’s Letter.

32.  Sister explained that upon her written request, the Bank only replied by the Bank’s Letter, and on top of that she had been confirmed by the Bank verbally that it did not have any entry records for the period prior to 14 February 2018.

33.  The Trustees submitted that such evidence was bizarre.  In a gist, it was stated that:

(1)  It is possible that Sister only asked for entry record from 14 February 2018 onwards, and that is the reason why she did not produce her written request to the Bank in the present proceedings;

(2)  If Sister had indeed asked for all access records concerning the Deposit Box, as a matter of common sense, one would expect the Bank to give a reply accordingly, rather than just disclosing the record as from 14 February 2018;

(3)  If the Bank did not keep the access records for the period prior to February 2018, the Bank would have informed Sister the same in the Bank’s Letter instead of simply ignoring Sister’s request for the records prior to February 2018;

(4)  It is incredible that, knowing the significance of this piece of evidence, Sister would accept a verbal reply rather than insisting to have a written confirmation from the Bank as far as the earlier entry records are concerned.  This may be explained by the fact that Sister only asked for the access records for the period since February 2018.

34.  I do not accept the Trustees’ speculations:

(1)  As Sister was not represented by solicitors at the time when she made the request to the Bank for entry records, there is nothing suspicious that she did not keep a copy of her request letter;

(2)  The non-production of Sister’s request in writing in these proceedings cannot be criticised.  Indeed, even the Trustees themselves did not produce their own letters of requests to the Bank in this action;

(3)  If the Trustees really considered that Sister’s request letter to the Bank was so important, they could have applied for non-party discovery of the same (or indeed, for the entry records as well), but they did not do so;

(4)  It was the Trustees’ evidence that they had issued three letters to the Bank and requested for the entry records in relation to the period prior to 14 February 2018, but the Bank had never replied to them.  In my view, it is more probable than not that the Bank did not keep such records.

35.  I therefore accept the evidence of Sister and the Bankrupt that no one else apart from Sister herself had ever had access to the Deposit Box at all material times.

Payment of rental of the Deposit Box

36.  It is undisputed that Sister has been paying the rental of the Deposit Box by autopay from her bank account, which is confirmed by the Bank’s Letter.

37.  It is not suggested that the Bankrupt has ever reimbursed Sister for such rental.

Additional signatory

38.  As stated in the Bank’s Letter, Son was added as a signatory to the Deposit Box in May 2019.

39.  Sister explained that she initially wanted her son to replace the Bankrupt as a signatory of the Deposit Box in 2019 when his son reached the age of 22.  However, she had been told by the Bank that a signatory could not be removed as such, and she would need to return the use of the Deposit Box to the Bank (and open a new deposit box)  to achieve her purpose.  Since she was also told that once she had returned the Deposit Box to the Bank, she would have to wait for an uncertain period of time before another safe deposit box would be assigned to her use (all deposit boxes had been rented out at the time and there was a waiting list of customers who had applied for rental of deposit box), she decided not to surrender the Deposit Box, but added her son as an additional signatory thereof instead.

40.  Sister’s evidence on the Bank’s policy mentioned above was not challenged by the Trustees at all. 

41.  The Trustees queried why Sister did not make enquiries with another bank so that she could rent another deposit box right away.  It was suggested to her in Court that she did not do so because the Bankrupt was also using the Deposit Box at the material time.  However, this inference cannot be drawn if the Bankrupt did not even have the keys to the Deposit Box, nor had he ever gained access to the Deposit Box (I accept these aspects of Sister’s evidence).  On the other hand, the addition of Son as a signatory is consistent with the plaintiffs’ case.

42.  Further, there is nothing suspicious for Sister not to make enquiries with and open a deposit box in another bank upon being told by the Bank that she could not remove the Bankrupt as a signatory to the Deposit Box, because there was simply no urgency for her to do so.  It must be remembered that Sister wanted to add Son as a signatory not because she did not trust the Bankrupt anymore, but simply because she thought Son should be able to handle the Deposit Box himself if necessary.

43.  Sister’s case is supported by the fact that she had also replaced the Bankrupt as a nominal director of her company by Son in 2015. 

44.  In this regard, the Trustees questioned why, if Sister bothered to change her company’s directorship in 2015 for the reason that her son had reached the age of majority and that she did not need the Bankrupt to act as a nominal director of her company any further, why didn’t she take a similar step as far as the Deposit Box is concerned at the same time.  Sister explained that she had replaced the Bankrupt as a nominal director by her son only because this matter was raised for her consideration by her company accountant.  However, the matter concerning the Deposit Box did not come up to her mind at that time at all.  I find this explanation credible.  This is consistent with Sister’s evidence that she all along trusted the Bankrupt.  There was no urgency in replacing him.

Proof of ownership of the Items

Lack of documentary proof

45.  Out of the Items (a total of 60 of them if we exclude the cash), the plaintiffs have only been able to produce documentary proof of ownership in respect of 10 of them. 

46.  The Trustees referred this Court to a letter issued by Sister’s solicitors dated 22 April 2021, in which Sister was only able to compile a list of 22 items.  It was therefore stated that it is doubtful whether all the 62 items found in the Deposit Box belong to the plaintiffs as alleged.

47.  With respect, this is not a fair criticism, because it has been made clear in the said letter that those 22 items were the only items which Sister could recall.  This was what her solicitors stated:

“[…] To the best of our client’s recollection there are the items including but not limited to those listed in ‘保險箱文件明細表’annexed hereto […]”

48.  Indeed, it was her solicitors’ request which was made in the same letter that:

“To enable the parties to consider further steps in this matter, we are instructed to request you to attend the bank and take a full inventory of the items deposited in the captioned safe deposit box at (sic)  earliest as possible.”

49.  I accept Sister’s explanation that she had never imagined that she would have to prove her ownership of the Items at all.  It is therefore not unreasonable for her not being able to give a full list of items kept in the Deposit Box nor to produce documentary proof in support of her ownership.

50.  After these proceedings were commenced, Sister had in her supporting affirmation given further details of the Items, for example, the approximate time when those items were acquired and where they were bought.  The Trustees then queried how come Sister could have such a good memory of those details and whether those details were invented for the purposes of these proceedings.

51.  Despite the Trustees’ submissions, I do not find Sister suspicious at all.  It can be seen from her evidence that much of the information given was not precise at all, for example, for many of the items, she could only give a rough estimate of the time of purchase such as “over 10 years ago” or “over 20 years ago”.  As far as the name of the shop from which she had bought those items, she had explained in Court that she was able to put down the name of the shop because, for those items which were more expensive, it was more likely that she had bought them from Chow Tai Fook or Chow Sang Sang; and for earrings, it was likely that she had bought from Ma Belle.  In my view, her explanations were credible.  Indeed, she had given me an impression that she had tried her best to assist the Court.  I do not accept the allegation that she had made up her evidence.

52.  Before I leave this topic, I should also mention that the Trustees were not satisfied with Sister’s evidence also because she had failed to produce credit card statements in support of her purchase of Item 3 which took place less than 7 years ago.  It was said that while this matter has been brought to her attention in Wong’s affirmation filed in opposition, she still did not bother to ask the relevant bank for the statements. 

53.  While I agree that Sister could have done more to prove her case on Item 3, I do not think I should reject her claim in respect thereof merely for this reason, because Sister was able to produce a receipt and a certificate of original and international warranty for the item. Further, as accepted by Ms Wong for the Trustees, apart from the documentary proof in relation to each of the items, the Court is also entitled to take into account the overall circumstantial evidence. 

Sister’s credibility

54.  As far as Sister’s credibility is concerned, the Trustees relied heavily on her confession that she had signed on the invoice of Item 4 issued by a shop known as “Unique Timepieces” very recently (shortly before the commencement of these proceedings).  It was submitted that this casts serious doubt on the reliability of her documentary evidence and her credibility.

55.  Sister explained that she just signed the invoice randomly without thinking much when she prepared the documents for the commencement of this case.  She also said that she did not know that it was inappropriate to do so, and once she had been advised on the matter, she apologised to the Court immediately.

56.  On my part, I do not accept her allegation that she did not think much when she signed the invoice in relation to Item 4.  In my view, it is more probable than not that, out of stupidity, she signed the invoice so as to bolster her case.

57.  Be that as it may, I do not think that means that the Court is bound to reject the entirety of her case.   But of course, the Court has to bear this conduct of hers in mind when her overall evidence is assessed.

58.  As far as Item 4 is concerned, it is supported by Madam Wu Wing Mei (“Wu”)’s evidence.  She told the Court that:

(1)  In mid-2020, due to economic downturn, Unique Timepieces offered significant discount on its watches which would normally not be available;

(2)  Knowing that Sister was a keen collector of jewelleries and valuable watches, she took the initiative to take her to Unique Timepieces;

(3)  With the benefit of Wu’s VIP membership, Sister was offered even further discounts for her purchase on 4 June 2020;

(4)  Sister had bought 4 watches[2] on that day, and Wu had signed on the sale invoice as requested by the staff of the shop.

59.  I accept Wu’s evidence.

60.  Although Wu had no knowledge as to the owner of those watches, the purchase price thereof or the source of purchase fund, I am of the view that, in the circumstances of the case, there is nothing to suggest that the ultimate buyer of those watches was anyone other than Sister.  In any event, it simply cannot be suggested that Sister was purchasing the valuables for the Bankrupt.

61.  The significance of Wu’s evidence, apart from proving Sister’s purchase of Item 4, is to support Sister’s case that she has always been a keen collector of jewelleries and valuable watches.  This is important because this explains why there are so many items of such nature in the Deposit Box.

62.  This aspect of Sister’s case is also supported by an invoice issued by Chow Tai Fook dated 29 March 2008 which shows that Sister was already a VIP of that shop back then.

Inconsistency between invoices and actual credit card transactions

63.  In respect of Item 2 and Item 4, the price stated in the invoice (or cash memo)  was different from the corresponding credit card transaction slip.  The Trustees therefore questioned whether those items were really bought by Sister.

64.  Sister explained that while she had been given discounts when she bought those items, the shop still put down the original price on the invoice (or cash memo).

65.  This explanation was not accepted by the Trustees who described it as “implausible”, especially in the case of Item 4, in respect of which the alleged discount given was 80%.

66.  I am not in a position to find that the alleged discount given was unreasonable in the trade of jewelleries and valuable watches, particularly when it is a known fact that the retail market in mid-2020 was seriously hit by COVID-19.

67.  As the purchases as shown by the relevant invoice (or cash memo, as the case may be)  were supported by transaction slips of Sister’s credit card account, I accept that she had indeed purchased those items.

US Dollars and HK Dollars Bank Notes

68.  There were ninety-four US$100 notes and ninety-seven HK$1,000 notes (Items 58 and 59 respectively)  found in the Deposit Box.

69.  The Trustees submitted that it was weird for Sister to keep those bank notes in the Deposit Box, and that the keeping of money in the Deposit Box seems to be more consistent with an act of the Bankrupt hiding his assets from the Trustees.

70.  However, as accepted by Wong in Court, if the Bankrupt was minded to hide cash from the Trustees, it would be much better for him to hide such cash at home rather than keeping it in the Deposit Box.

71.  Furthermore, it can be seen below that the Bankrupt has been withdrawing a lot of cash from his bank account and from his credit card for repayment of debts and financing his gambling habit.  In my view, if the cash found in the Deposit Box really belonged to the Bankrupt, he would have taken such cash away therefrom long time ago.

72.  I therefore find that it is more likely than not that the banknotes found in the Deposit Box belong to Sister rather than the Bankrupt.

Chan’s credibility

73.  In respect of Item 1 (which was purchased in January 2015), even though the relevant sales invoice does not state that Chan was the purchaser, he was adamant that he purchased it (together with the other watch as stated on the sales invoice, which he gave Sister).

74.  The Trustees raised doubt on Chan’s evidence because, while the item was purchased less than 7 years before the commencement of these proceedings, he did not produce the relevant credit card statement in support.

75.  When he was cross-examined on the same, Chan explained that:

(1)  he considered that the sales invoice which he produced was already sufficient as proof;

(2)  he did not have the habit of keeping credit card statements; and

(3)  it did not come up to his mind that he should request the bank for a copy of the relevant credit card statement.

76.  While Chan’s explanation was not entirely satisfactory particularly when he was legally represented, I accept Mr Chan’s submissions that if it was the plaintiffs’ intention to conceal assets belonging to the Bankrupt, there is no reason why Chan should be joined as a party which would expose him to possible costs consequence.  It would have been much more straightforward for Sister to simply assert that the entirety of the Items belong to her. 

77.  Having considered all the circumstances of the case, I accept Chan’s evidence.

The Bankrupt’s spending patterns

Bankrupt’s spending in jewellery shops

78.  The Bankrupt’s credit card statements show that he used to have frequent spending in different jewelleries shops, including “Leader Jewellery Company Hong Kong HK” and “Kowloon Jewellery Hong Kong HK”.

79.  The Trustees submitted that these transactions suggest that the Bankrupt had purchased jewelleries and valuable watches which might well be those found in the Deposit Box.

80.  However, it was the Bankrupt’s evidence that the credit card transactions at Leader Jewellery Company and Kowloon Jewellery were in fact not actual purchases, but “cash withdrawal” arrangements done through the staff of mahjong parlours.  He stated that whenever he needed cash while playing mahjong in the mahjong parlours, he would inform the staff there, who could then take his credit card to a related jewellery shop nearby and get cash by entering into transactions.  He said that he had lost all those withdrawals subsequently.

81.  The Trustees stated that it is doubtful whether the Bankrupt really had a gambling habit as such because he did not inform the Official Receiver of the same when he was asked the reason of his bankruptcy and whether he had any gambling habit within 2 years before he filed his bankruptcy petition.

82.  The Trustees further submitted that such explanations may well be recent fabrications because he only gave them for the first time in Court.

83.  Despite the Trustees’ challenge, I accept the Bankrupt’s evidence:

(1)  It can be seen that all the subject credit card transactions were of amounts which are multiples of $5,000 such as “$10,000”, “$15,000”, “$20,000”, “$25,000” and “$30,000”.  These figures are more consistent with the Bankrupt’s evidence of “cash withdrawals” than the Trustees’ suggestion of “purchase prices of jewelleries”.

(2)  There were numerous occasions when he had such spending at the jewellery shops at an interval of 2 – 3 days.  There were even records that he had two transactions at such shops on a single day.  This is more consistent with the Bankrupt’s evidence of “cash withdrawal” rather than “purchases”.

(3)  His evidence is also supported by his spending on Star Cruise, on which, according to the Bankrupt, he had also gambled.  It can also be seen that he had numerous spending on Star Cruise which were also of multiples of $5,000.

(4)  The Trustees suggested during cross-examination that the Bankrupt denied (when he was interviewed by the Official Receiver’s Office after he was declared bankrupt)  that he had gambled within 2 years before he filed his Bankruptcy Petition in July 2020.  The Bankrupt did not accept that he had given such an answer.  But if he did, that in fact adds credibility to his evidence in Court because he had admitted that he had indulged in gambling before his bankruptcy order despite warning given by this Court to him on self-incrimination.

(5)  While it is true that the Bankrupt only gave evidence on his gambling habit in Court but did not mention it in his affirmation, I am prepared to accept his evidence in this regard because it is inherently probable and consistent with his spending pattern as shown by his credit card statements. 

84.  The Trustees further criticised the Bankrupt for failing to call any witness from the mahjong parlours.  With greatest respect, it is unrealistic to expect that the staff from mahjong parlours would be willing to give evidence in Court in the circumstances of the present case:

(1)  There is no evidence that any of such staff members was personal friend of the Bankrupt;

(2)  Giving evidence on the practice of “cash withdrawal” in jewellery shops may bring trouble to those staff members, not to mention that it may lead to criminal prosecution to those who were involved.

85.  I have not lost sight of the Bankrupt’s admission that he did buy jewelleries and watches in the past.  However, according to him, because of his own financial difficulties, he started to sell his collection around 2 to 3 years before his petition for self-bankruptcy.

86.  It should also be borne in mind that, according to the Bankrupt’s unchallenged evidence, he had to borrow from finance companies in 2017/2018.  He had also re-mortgaged one of his properties in 2017.  These matters support his evidence that he had to sell his collection of jewelleries and watches from around 2017/2018 (2 – 3 years before he petitioned for his own bankruptcy).  Although the Bankrupt did receive a sum close to $1 million from his insurer in February 2017, in my view, it is clear that his financial problems were not solved as a result, because he had to further mortgage his property in 2019, and eventually petitioned for bankruptcy in 2020.

87.  In such circumstances, it is more likely than not that he did not keep his collection of jewelleries and watches, and that those jewelleries and watches found in the Deposit Box do not belong to him.

Cash withdrawals

88.  It is evident that Bankrupt had withdrawn a lot of money from his bank account.

89.  He stated that he had withdrawn cash for repayment of his debts and to finance his gambling habit.

90.  As far as this case is concerned, the relevance of such cash withdrawal is that it may be suspected that the Bankrupt had made use of the cash withdrawn to buy jewelleries and watches and that some (if not all)  of the Items were purchased by the Bankrupt.

91.  However, in my view, if any valuables in the Deposit Box belonged to the Bankrupt, he would have taken them out for sale long time ago.  Even if he did not sell them, and if he was minded to hide them from the Trustees, he would have kept them at home rather than in the Deposit Box.  As accepted by the Trustees, it is less likely for a trustee to discover them if the valuables are kept at home rather than in the deposit box. 

Conclusion

92.  Having taken into consideration all the matters mentioned above, I hold that the plaintiffs have discharged their burden to rebut the presumption that 50% of the contents in the Deposit Box are owned by the Bankrupt.

DISPOSITION

93.  For reasons of the aforesaid, I grant the declarations sought by the plaintiffs.

COSTS

94.  Both the plaintiffs and the Trustees asked for costs of these proceedings, although they have both suggested “no order as to costs” as an alternative.

95.  I do not agree that the plaintiffs should be liable for costs, as they have done nothing wrong in the Trust Arrangement.  Indeed, I find that it was rather unfortunate that they had to incur legal costs for the purpose of claiming back the Items. 

96.  The Trustees seem to be suggesting that these proceedings were of the plaintiffs’ own making, because of their inability to produce documentary proof of ownership in respect of most of the Items. 

97.  However, to be fair, there was simply no reason why the plaintiffs (Sister in particular)  should anticipate that they would be involved in court proceedings like this dealing with the ownership of the contents of the Deposit Box.

98.  The Trustees also drew this Court’s attention to the fact that the plaintiffs only provided further explanation and documents for the first time upon the commencement of this action.  With respect, this is neither here nor there.  This is because those additional matters did not sway the Trustees’ stance anyway.  In other words, it cannot be said that costs could have been saved if such additional evidence had been provided to the Trustees earlier.

99.  The Trustees asked this Court to consider Sister’s conduct in signing on the invoice of Item 4, which I did.  However, I do not think the plaintiffs (or Sister)  should be punished by way of a costs order for that reason.

100.  Lastly, Trustees relied on the evidence of the Bankrupt, and submitted that he had only provided certain information for the first time when he was in the witness box. 

101.  First of all, while the Bankrupt is Sister’s brother and has adopted the same stance as Sister, I do not think I should take his conduct into account.  In any event, even if I should, no costs have been wasted anyway, because I do not think (and I have not been told that)  the Trustees’ stance adopted in this action would have been different in the event the Bankrupt’s explanation was given, say, before the commencement of this action. 

102.  On the other hand, I do not think the Trustees should be liable for costs.  It is their duty to administer the Bankrupt’s estate, and in discharge of such a duty, they are obliged to consider the plaintiffs’ case carefully.  In a case where there is not much documentary proof like the present one, it cannot be said that they have acted unreasonably in refusing to consent to the declarations sought by the plaintiffs.  Having taken into account the way that the present case was conducted, I do not agree that the Trustees have gone beyond the neutral position which they said they had taken.

103.  I therefore take the view that this Court should make no order as to the costs of the action.

Annex