CHANG KING HIM CLARENCE, The Executor of the Estate of the late WONG SHUEN YUK v. CHANG KING TO

CACV 365/2024, [2025] HKCA 958

On Appeal From [2024] HKCFI 2191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 365 OF 2024

(ON CIVIL APPEAL FROM HCA NO. 1535 OF 2023)

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JUDGMENT

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Hon Cheung JA (giving the judgment of the Court) :

I.  The appeal

1.  This is the defendant’s appeal against the decision of Deputy High Court Judge Kent Yee (‘Judge Yee’) who granted summary judgment against the defendant for the following relief :

1)  A declaration that Madam Wong Shuen Yuk (‘Madam Wong’) was the sole beneficial owner of the property known as Unit 1 on 16^th Floor of Block 17, Heng Fa Chuen, No. 100 Shing Tai Road, Hong Kong (‘the Property’) and the defendant is a bare trustee holding the Property on trust for the plaintiff;

2)  A declaration that the defendant is estopped from enforcing any proprietary interests and/or title in respect of the Property against Madam Wong;

3)  The defendant is to execute an assignment to assign/transfer all his legal title in the Property to the plaintiff at nil consideration within 21 days, failing which the senior partner of solicitors for the plaintiff, may execute all necessary conveyance, contracts or other documents for and on behalf of the defendant to effect the transfer of his legal title in the Property to the plaintiff; and

4)  the defendant is enjoined from selling, assigning, transferring, mortgaging or otherwise dealing with the Property or any interests therein.

II.  Background

2.  The plaintiff (the executor of the estate of Madam Wong) and the defendant are the sons of Madam Wong, deceased. Prior to 2011, Madam Wong and the defendant were the registered owners of the Property as joint tenants. Madam Wong instructed her solicitors Cheung & Choy to issue two notices of severance in 2011 and 2012 to sever the joint tenancy.

3.  The defendant commenced HCA 2518/2015 against Madam Wong seeking a declaratory judgment to the effect that the two notices of severance were void, and he himself and Madam Wong remained as joint tenants of the Property.

4.  The defendant also commenced HCA 1574/2017 against the plaintiff claiming that the plaintiff was in wrongful occupation of the Property. He sought an order that the plaintiff was to deliver vacant possession of the Property to him and to pay mesne profits or damages for his trespass of the Property.

5.  Deputy High Court Judge MK Liu (‘Judge Liu’) heard the two actions together and dismissed the defendant’s claims. Judge Liu held that he is a bare trustee of the Property for Madam Wong. He held :

‘ 51. Based upon the evidence accepted by the court, it is clear that [the defendant] is a joint owner in name only and he does not have any beneficial interest in the Property. At the beginning, Madam Wong nominated [the defendant] to be a joint owner of the Property for the purpose of satisfying the mortgagee’s requirement only, and Madam Wong had made this known to [the defendant]. Further, there is no evidence showing that [the defendant] has made any contribution in relation to the Property at any time.

52. In my judgment, Madam Wong is the sole beneficial owner of the Property. [The defendant] is a bare trustee holding the Property for Madam Wong.’

6.  Judge Liu further held that the joint tenancy had been properly severed by the 2^nd Notice of Severance issued before the death of Madam Wong in 2019. Madam Wong’s intention in serving the Notices of Severance was to sever the joint tenancy as the first step in clarifying the ownership of the Property so that the defendant would be prevented from becoming the sole legal owner upon her death by operation of law. In reality, Madam Wong was the sole beneficial owner. Judge Liu held that the plaintiff was entitled to stay in the Property during Madam Wong’s lifetime by the operation of the doctrine of proprietary estoppel. Since Madam Wong was estopped from requiring the plaintiff to leave the Property, the defendant himself could not do so.

7.  On appeal by the defendant ([2022] HKCA 481), this Court agreed with the findings of Judge Liu and the defendant’s appeal was dismissed. The defendant’s application for leave to appeal to the Court of Final Appeal was likewise dismissed.

III.  Judge Yee’s Decision

8.  The plaintiff commenced the present action relying on the doctrine of res judicata and issue estoppel in respect of Judge Liu’s finding on Madam Wong being the sole beneficial owner of the Property. Judge Yee agreed. He held :

‘ 14. I see no reason why the doctrine of res judicata and issue estoppel should not be applied to the present case. The beneficial ownership of the Property has been finally determined in the Actions and by reason of the CFI Judgment, against which KT [i.e. the defendant] failed to appeal successfully, KT is now estopped from asserting any beneficial interest in the Property or refusing to accept that Madam Wong was the sole beneficial owner of the Property and he is a mere bare trustee of Madam Wong in respect of the Property.’

9.  Judge Yee referred to the Defence of the defendant :

‘ 15. [The defendant] has filed a defence, an affirmation to oppose the Summons and two sets of written submissions. I have perused all these documents and many of their contents are incomprehensible or illogical. On the one hand, [the defendant] indicates that he is not trying to challenge the judgments in the Actions and previous proceedings. On the other hand, he mounts challenges to the findings in such judgments including the validity of the severance of the joint tenancy. In particular, [the defendant] contends that executor cannot be entitled to rely on such judgments. [The defendant] alleges that the executor did not execute the will of Madam Wong faithfully.

16. [The defendant] argues that the Trial Judge was not aware of the existence of the will of Madam Wong and the fact that Mr Simon Cheung [i.e. the solicitor] acted for Madam Wong in her execution of the will. He asserts that Mr Simon Cheung is not a credible person.

17. [The defendant] even argues that the official position of the Trial Judge was District Judge and so he had no jurisdiction to deal with the Actions. This argument is risible and must be rejected.

18. I do not see any validity and/or relevance of all the allegations made by [the defendant]. I am unable to discern any arguable defence or triable issues from his documents and/or oral submissions.’

IV.  Grounds of appeal

10.  In summary, the defendant has advanced the following grounds of appeal :

1)  The Decision was unjust, as the plaintiff’s claim on behalf of Madam Wong’s estate is unsupported by evidence. ([1] to [2], [5] of the grounds of appeal) (Ground 1).

2)  There is no res judicata, because, inter alia, the Court of First Instance Judgment was decided without the knowledge of the content of Madam Wong’s will. ([3] to [4]) (Ground 2).

3)  The ruling on the issue of severance in the Court of First Instance Judgment was wrong, in light of the contents of Madam Wong’s will. ([6] to [11]). Alternatively, if the notices of severance are valid, the defendant holds the Property in equal shares as a tenant in common. (Ground 3).

V.  Our view

11.  We agree with Judge Yee’s holding on issue estoppel. It is clear that this doctrine applies in respect of issues which are necessarily common to both proceedings and decided in the previous proceedings, even if the cause of the actions of the two proceedings is not the same. This Court in Chung Pui Tong v. Qian Zhen [2024] 5 HKC 441 held :

‘ 74. ..... Issue estoppel may arise where a particular issue forming a “necessary ingredient” in a cause of action has been litigated and decided. In subsequent proceedings between the same parties, it precludes a party “from contending the contrary of any precise point which, having once been distinctly put in issue, has been solemnly and with certainty determined against him”. Issue estoppel applies to matters “fundamental or cardinal” to the prior decision, “legally indispensable” to the conclusion, or “necessarily involved in it as its legal justification or foundation”, as opposed to “steps in the process of reasoning tending to establish or support the proposition upon which the rights depend”.’

12.  The beneficial ownership of the Property is clearly a necessary ingredient in the previous actions decided by Judge Liu and in the present action decided by Judge Yee. Hence, the decision by Judge Liu on this issue is binding in the present case.

13.  Madam Wong’s will bequeathed her estate to the plaintiff and her other son Chang King Hei Terry. This does not detract in any way the finding that she was the sole beneficial owner of the Property.

VI.  Conclusion

14.  We are of the view that the plaintiff’s application for summary judgment was properly obtained. Accordingly, the appeal is dismissed with costs to the plaintiff.