YEUNG LUK LIN v. CHAU SING WAI

DCCJ 1625/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 1625 OF 2010

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JUDGMENT

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Background

1.  The Plaintiff now seeks to recover possession of the premises known as Flat B, 3^rd Floor, Full Jade Mansion, Nos. 48-54, Shek Pai Wan Road, Hong Kong (“the Property”).

2.  The Property has been and still is occupied by the Defendant, the brother in law of the Plaintiff for the last 20 years.

3.  The Property was formerly registered under the name of Chow Sheung Ying (“SY”), i.e. the deceased husband of the Plaintiff and the elder brother of the Defendant.

4.  SY died on 17 February 2009 and grant of probate in respect of his estate was issued in favour of the Plaintiff who became the sole executrix (Grant no. HCAG008044/2009).

5.  By Deed of Assent dated 10 December 2009, the Plaintiff became both the registered and beneficial owner of the Property.

6.  The background of the dispute was that Chow Wah Kin (“Grandfather”) returned from Cuba to Hong Kong in year 1956 intending then to join his wife Leung Sau Ho and the family of his only son Chow Ngok Lun for good. He bought a property at no. 57, Shek Pai Wan Road, Hong Kong (“the Aberdeen Property”) in his name for the residence of the family. Later, he realized that his only son Ngok Lun, then in Cuba, failed to remit money back for family use. He therefore decided to return to Cuba for good to earn money for the family.

7.  Chow Ngok Lun (“NL”) and his wife Lui Yik Ho (“Lui”) had 6 children, 4 sons, Sheung Fung (“SF”), Sheung Wing (“SW”), SY and the Defendant, Sing Wai (“SW”) and 2 daughters, Leung Ping (“LP”) and Ping Ya (“PY”).

8.  When Grandfather was in Hong Kong, NL and SK were both in Cuba, SY and the Defendant were in Hong Kong.

9.  Before his return to Cuba, Grandfather had arranged SW to go to solicitors office to sign legal documents in connection with the Aberdeen Property which turned out to be a power of attorney in favour of SW. Since then, Grandfather never returned to Hong Kong. It was the case of the Plaintiff that Grandfather told SY and LP that he would gift the Aberdeen Property to SW.

10.  Defendant however insisted that Grandfather merely entrusted the Aberdeen Property to the care of SW and that the Aberdeen Property was a family property.

11.  It is not in dispute that in year 1992 a developer was interested in the purchase of the Aberdeen Property. He paid for the air fare for SW to return from the States and executed assignment as attorney for Grandfather selling the Aberdeen Property at $2 million. SW said he thought all along was selling as the owner of the Aberdeen Property. SW said he later tendered all the sale proceeds to SY, the husband of the Plaintiff, by way of gift.

12.  Upon receipt of the sale proceeds of $2 million, SY distributed $10,000 each to Lui, SW, LP, Defendant and himself leaving the sale proceeds balance at $1.95 million.

13.  It is also not in dispute that SY originally intended to use the sale proceeds of Aberdeen Property to purchase the property at Flat E, 11^th floor, Comfort Centre, 108 Aberdeen Old Main Street (“the Comfort Centre Property”) as residence for Lui but as completion of the same was unexpectedly delayed, they had to seek another property for immediate accommodation for Lui as they had to vacate from the Aberdeen Property and deliver vacant possession of the same to the developer on completion. An extra property had to be bought and the Property was therefore bought by SY in his name, at $975,000. The total cost (including legal costs and disbursements) for the purchase was around $1 million. There was a dispute as to where this fund came from.

14.  Plaintiff said the shortfall came from her savings and the Property belongs to them i.e. the SY couple and that Defendant and his family merely stayed there as licensee. The Defendant said the shortfall came from savings from his mother Lui, part of which was actually his income as a sailor over the years. He said the Property was only held by SY as trustee for him and Lui.

15.  It is again not in dispute that Lui and Defendant moved in the Property pending completion of the Comfort Centre Property and that when the Comfort Centre Property was available for occupation, Lui moved out and stayed at the Comfort Centre Property as originally planned.

16.  The Defendant on the other hand remained in the Property. He was later joined by his family from Mainland and they all resided in the Property until present, rent fee. The Defendant was however required to pay all current outgoings of the Property.

17.  It is not in dispute that Chow SY had throughout taken out insurance and paid the premium on the Property since its acquisition using his own funds.

18.  Prior to the issue of the present proceedings, the Plaintiff did, via her solicitors, served notice of termination of licence to the Defendant, requesting him and his family to vacate not later than 20 December 2009.

19.  Defendant failed and/or refused to vacate from the Property.

Plaintiff’s case

20.  SW as witness for the Plaintiff said that, before Grandfather left Hong Kong for Cuba in year 1957, he had told SW, SY and LP that he would give the Aberdeen Property to him as a gift. Grandfather then arranged SW to execute transfer documents at the solicitors office. SW said he was only 18 then. He attended solicitors’ office and executed legal documents as instructed. Since then, all along he thought the Aberdeen Property had already been assigned to him. He said at the time, the only son of Grandfather NL and the eldest son of NL, SF were both in Cuba and he was the eldest grandson in Hong Kong. It was only recently that he realized that Grandfather had actually executed a power of attorney in his favour.

21.  SW said that as Grandfather was a traditional Chinese man, he would never have allowed LP, a female, albeit the eldest grandchild in Hong Kong at the time, to inherit the Aberdeen Property and therefore Grandfather has chosen him to succeed the Aberdeen Property. This is not challenged by the Defendant.

22.  SW said in year 1959, he went to the States, the Aberdeen Property continued to be occupied by Lui and it was only in year 1992 when a developer intended to buy the Aberdeen Property that he returned to Hong Kong and executed the transfer documents. On completion he gifted the whole $2 million sale proceeds to his younger brother, SY, the late husband of the Plaintiff. SW said SY was happy with this unexpected gift and in return he gave Lui, SW, LP, the Defendant and himself each a sum of $10,000.

23.  SW said later, he understood that SY used the sale proceeds to purchase the Comfort Centre Property intended for residence of Lui. However, as the completion of the same was later than expected, Lui had nowhere to live after vacating from the Aberdeen Property. SY therefore had to buy another property, i.e. the Property for immediate occupation of Lui. There was shortfall of $1million and SW said he understood from SY and the Plaintiff that the $1 million extra funds came from the savings of the Plaintiff. SW said all family members knew this fact and that they also reckoned all along that both the Property and the Comfort Centre Property belonged to the SY couple i.e. SY and his wife, the Plaintiff here. SW said Lui did stay at first with the Defendant at the Property, later when the Comfort Centre Property was ready for occupation and as Lui did not want to stay with the Defendant, she moved to the Comfort Centre Property whilst SY, knowing that the Defendant was in financial difficulty with no place to stay then allowed the Defendant to continue staying in the Property. Later, SY also allowed Defendant and his family to stay there rent free on condition that he settled all current outgoings of the Property.

24.  SW said in his supplemental witness statement dated 21 June 2011 disputing evidence of the Defendant, that since year 1959, no one in Cuba could have left the country or remitted money out of the country as Cuba had turned a Communist country then already and there was laws prohibiting citizens leaving the country and such remittances. He said therefore the Defendant fabricated in paragraph 3 of his witness statement dated 26 February 2011 when he said Grandfather in year 1966 returned from Cuba and gave him $20,000. He said Grandfather never returned after his departure in 1957.

25.  SW further disputed the Defendant’s evidence and said the developer of the Aberdeen Property actually was the father of LP’s classmate and that Grandfather never played any part in the development of the Aberdeen Property as alleged by the Defendant.

26.  SW in Court also denied the evidence of Tse Wing Fai (“Tse”), wife of the Defendant, who said that SW had previously given Tse US$1,000 praising her for treating Lui well. SW said the Plaintiff had all along treated Lui well, and he had never given her any money. SW said it was the duty of a daughter-in-law to look after the mother-in-law.

27.  SW said all along, all family members knew Grandfather had gifted the Aberdeen Property to him and that he had the absolute right to deal with it. None of the family members ever objected when and after he gifted all sale proceeds to SY. He said he was right in doing so became SY did later treat Lui and the other family members really well.

28.  Big sister LP also testified. She confirmed the evidence of SW and said that Grandfather did tell them before he left for Cuba that the Aberdeen Property was his gift for SW. LP also confirmed that after the Aberdeen Property was sold, SW had given the sale proceeds to SY. She said SY was only able to purchase the Property and the Comfort Centre Property because of the extra fund from the Plaintiff. She said SY had always been a very loving son, husband and brother. He treated Lui well and knowing the Defendant then was suffering from financial hardship, he allowed the Defendant to stay at the Property rent free on a temporary basis.

29.  She said the Defendant lied when he said the extra fund used in purchasing the 2 properties came from Lui. LP said Lui did not have much savings as she was illiterate and she had even been working hard labour to earn money for the family in order to make ends meet. LP said although the Defendant had been remitting part of his earnings as a sailor to Lui, when he returned to Hong Kong, he would take money back from Lui for his own expenses, the amount of which sometimes exceeded what he paid Lui.

30.  LY said in her witness statement that on one occasion, SY had to pay money for Defendant’s release as he had unpaid gambling debt. This piece of evidence was not challenged in Court.

31.  LP also said at one time SY had to pay the Defendant via Lui $2,000 per month so that he had enough money to get married and to apply his family to Hong Kong.

32.  She said Defendant exaggerated his earnings as a sailor i.e. $9,000 per month in year 1993.

33.  LY denied Defendant’s saying that the Property actually belonged to the Grandfather. She said if it were so, why would the Defendant and his family be the only one amongst the siblings solely occupying the Property in the last 19 years.

34.  LY in Court said the Defendant lied when he said Grandfather returned to Hong Kong and together with his friend developed and built the Aberdeen Property. She said Grandfather was only back to Hong Kong for a short while and therefore it was impossible for him to be able to do so. She said the developer was actually the father of her classmates and Grandfather merely bought a unit from him.

35.  LY further said Grandfather did not have much friends in Hong Kong and that this was one of the reasons why Grandfather returned to Cuba later.

36.  Plaintiff testified and said SW gifted her late husband, SY the $2 million sale proceeds of the Aberdeen Property. Plaintiff said, agreeing with SW and LP that SY originally intended to buy the Comfort Centre Property using the sale proceeds for occupation by Lui. However, as the same was not yet available for occupation and they had to vacate from the Aberdeen Property, SY had to purchase the Property for immediate use by Lui. SY discussed with her and she agreed to SY making use of her savings of $1 million for that purpose as there was a shortfall. According to the statement of account by their solicitors Sam Leung & Co., the total cost for the purchase of the extra property, the Property was $975,000 plus the legal costs and disbursements of $20,669, totalling $995,669.

37.  Plaintiff said the whole process of property viewing, property selection, price negotiation and purchasing of the 2 properties were done by SY and herself alone. No one else were involved.

38.  Plaintiff said it was not true that the $1 million came from Lui or the Defendant.

39.  Plaintiff said SY had discussed with her before he allowed the Defendant to reside in the Property rent fee as a licensee on a temporary basis.

40.  She said in year 2007, the Defendant even failed to pay management fee for the Property and SY as the owner was sued in the Small Claim Tribunal, Case no. SCTC 036519/07. Instead of paying the outstanding management fee, Defendant tendered the claim documents to SY for the latter to handle. Plaintiff said SY was very angry that but he had no alternative but to settle the same as he was the owner.

41.  Plaintiff said before SY died, she witnessed SY requesting Defendant and his family several times to vacate from the Property and also to apply for public housing unit. She said these happened at family tea gatherings.

42.  She denied Defendant’s saying that SY had never requested the Defendant and his family to vacate from the Property. She said they did not take further legal action in the past as SY was found to be suffering from liver cancer and therefore did not have the time to proceed further to recover possession of the Property from the Defendant.

43.  She confirmed that all along, both herself and SY, her late husband had intended and only permitted the Defendant and/or their family to stay there rent free on temporary basis and the Defendant knew very well they had to vacate as and when so requested.

44.  Plaintiff said, as confirmed also by LP, that even after death of SY, she had been paying for and attending lovingly to the care and needs of Lui.

Defendant’s case

45.  Defendant in his first witness statement dated 26 February 2011 that both the Property and the Comfort Centre Property were family properties.

46.  He said Grandfather returned to Hong Kong in year 1966 bringing along with him $20,000 and that jointly with others developed the Aberdeen Property site. This was refuted by SW and LP. Both of them said the last time Grandfather was in Hong Kong was in year 1957 and that by year 1966, Cuba government had banned people from leaving the country. They further disputed Grandfather did develop the Aberdeen Property site as he only returned to Hong Kong for short time and bought the Property from father of LP’s classmate.

47.  Defendant said Grandfather had only entrusted the Aberdeen Property to SW and had not given it to SW as a gift. He said Grandfather apparently only executed a power of attorney in favour of SW, not an assignment.

48.  Defendant said in year 1992, after the Aberdeen Property was sold and they each had received $10,000, the sale proceeds balance of $1.95 million was kept by Lui. This was again disputed by the Plaintiff.

49.  Defendant agreed that after the sale of Aberdeen Property, the Comfort Centre Property was first purchased by SY but as it was not available for immediate occupation, the Property had to be purchased. SY was the registered owner for both properties.

50.  Defendant said Lui paid for the shortfall in the purchase of the 2 properties and part of those money came from his savings with Lui.

51.  Defendant said he was a sailor during the period from year 1969 to 1983 and his last monthly salary was $9,000 a month.

52.  Defendant said he had previously requested to transfer the name of the registered owner of the Property to that of Lui but SY replied that the 2 properties were family properties and that therefore there was no need for the transfer.

53.  Defendant said also that SY had said to him that his family could stay in the Property for good.

54.  As for Tse, she came to Hong Kong to join her husband, the Defendant in year 1995. The 2 daughters joined her later. In her witness statement, she said Lui told her that the shortfall in the purchase of the 2 properties came from savings that Defendant had entrusted to Lui and that SY and the Plaintiff did not have any savings as they liked travelling and enjoyed life.

55.  She also said SW had gifted her US$1,000 for looking after Lui well. This was denied by SW.

56.  Tse said at one time, the Plaintiff had promised Tse that if she gave birth to a son, the Comfort Centre Property would also belong to her.

57.  Tse said SY never requested to recover possession of the Property before he died.

58.  She said further that when the Property was purchased in year 1992, SY and Lui said the Property was for the occupation of the Defendant and his family. She said the rates and all other outgoings of the Property were paid by them and the renovation fee for the external wall was also paid by them.

Discussion

59.  Both SW and LP had no interest in the outcome of the present proceedings and they are Defendant’s siblings. The Plaintiff is their sister-in-law. They gave consistent evidence regarding background to the purchase of the Aberdeen Property, the claim by the Grandfather that the Aberdeen property be transferred to their eldest grandson in Hong Kong then i.e. SW, the sale by SW of the Aberdeen Property and the gift of the sale proceeds to SY by SW, the common knowledge of family members at the time as to the source of the extra fund of $1 million used for the purchase of the Property, the circumstances under which the Defendant and his family were allowed occupation in the Property, the ownership of the Property as well that of as the Comfort Centre Property as understood by all members of the family, the financial position of the Defendant at the time of purchase of the Property. Their answer to questions put to them in cross-examination was spontaneous and their evidence was totally unshaken during cross-examination. The only thing that was inaccurate was that SW thought initially, even up to his first witness statement, that the transfer documents of the Aberdeen Property from Grandfather to him executed in year 1956 were an assignment when in fact it was only a power of attorney.

60.  I do not find he was untruthful when he made such a mistake, the simple reason being anyone checking the Land Office would have discovered that SW did execute the assignment selling the Aberdeen Property as a donee of a power of attorney, not as a seller in his personal capacity. This could not have been a lie.

61.  It was said by Mr. Poon, counsel for the Defendant that there might be a hidden agenda for SW and LP and that they might receive benefit to testify in favour of the Plaintiff. I do not find the submission founded.

62.  After seeing them in Court, I find them both trustful and reliable witnesses and I accept their evidence. They said they have come to Court and testify because they felt, that the Defendant had no conscience and was unfair to the Plaintiff when he made outrageous claim for the Property.

63.  The Plaintiff has also impressed me as a truthful witness. She was clearly, as said by SW and LP, a loving wife and a caring daughter in law of Lui.  She is also totally unshaken in cross-examination and her evidence was all along consistent.

64.  The allegation by the Defendant that the title deeds of the Property and the Comfort Centre Property were kept by Lui again was unsubstantiated and disputed by the Plaintiff whom actually had the title deeds.

65.  The Defendant and Tse on the other hand were both unreliable witnesses. The pleadings and the witness statements of the Defendant and his witnesses were self contradictory.

66.  In paragraph 1.1 of his Defence, he pleaded that the money was provided by Grandfather and the Property was purchased for Lui and his family.

67.  In paragraph 1.5 of the Defence, he said Lui and SY had agreed that Defendant and his family can stay in the Property for life.

68.  In paragraph 1.7 of the Defence, he pleaded that prior to the purchase of the 2 properties, there was an agreement between Grandfather, Lui, SY and the Defendant that the Property be bought for the Defendant and his family.

69.  It is of significance to note that the Defendant only got married in year 1985 and the evidence before the Court was that of the last appearance of Grandfather in Hong Kong was in year 1957 when the Defendant was only around aged 10 and the Property was purchased in year 1992, i.e. 35 years later. The alleged agreement could not have existed.

70.  In paragraph 7 of his witness statement dated 26 February 2011, Defendant said the 2 properties were actually family properties.

71.  Again on 7 July 2011 when the Defendant prepared the Statement of Disputed Issues, he again said that the Property is family property.

72.  Mr. Poon, counsel for Defendant in Court abandoned the other arguments and just proceeded to establish that the Property was held by SY in trust for Lui and the Defendant.

73.  Strangely however, in his 2 witness statements, the Defendant did not say anything about the alleged trust in favour of Lui and himself.

74.  It has not been disputed that originally, SY intended to purchase the Comfort Centre Property using the sale proceeds from the Aberdeen Property. It follows therefore the sale proceeds must have been destined for the purchase of the Comfort Property.

75.  The couple might have paid for the Property first and the Comfort Centre Property later but that would not have necessarily changed their original common intention. As far as the SY couple was concerned, the sale proceeds from the Aberdeen Property was destined for the purchase the Comfort Centre Property and the shortfall was meant for the purchase of the Property.

76.  Plaintiff produced copies of the cashier’s order application by SY at the Hong Kong and Shanghai Banking Corporation using his funds from his bank account no. 062-399894-888 to purchase 2 cashier orders in sum of $159,625 and $800,669 respectively to pay Sam Leung & Co., their then solicitors in the purchase of the Property. This clearly showed that all funds for the purchase of the Property did come from SY, not Lui or the Defendant.

77.  I find as a fact that the shortfall of $1 million did come from the Plaintiff. The whole costs for the purchase of the Property including purchase price, legal costs and disbursements were around $975,000 and  as they came solely from the Plaintiff’s own savings, I have no hesitation to conclude that the Property must belong to the SY couple and therefore presently, the Plaintiff.

78.  Further, if indeed $1 million did come from Lui and the Defendant, why would the Property and/or the Comfort Centre Property not be registered in name of Lui and/or the Defendant but instead both bought in the name of SY. This Court notes that in year 1992, the Defendant was already in his forties. Why would there be a need for SY to be a trustee for him and Lui or for him and his family?

79.  Moreover, why was there the need for the deceased SY to take out insurance for the Property and why would the Defendant tender the claims documents for outstanding management fee of the Property to the deceased SY?

80.  The evidence that SY did pay monthly $2,000 to the Defendant was unchallenged. I do not find the Defendant and/or Lui at the time of purchase could have substantial savings used for the purchase of any landed property.

81.  There was apart from oral assertion, nothing from the Defendant to support his contention that the $1 million came from Lui and/or him.

82.  I also do not find it necessary as Mr. Poon suggested, to actually trace the source of the purchase price used for the purchase of the Property.

83.  The Defendant also in his Defence claimed that the money used in the purchase of the Property came from the Grandfather and the same was meant as residence for the Defendant and his family. This was inconsistent with what Mr. Poon tried to argue in Court.

84.  Firstly, when the Grandfather last left the Hong Kong in year 1957, the Defendant was only of tender age and there was no evidence, not even from the Defendant himself that there was special arrangement by Grandfather to provide specifically for him, let alone family of his own.

85.  Defendant also pleaded that Lui and SY has represented to the Defendant that Defendant and his family could reside in the Property for life.

86.  LP in Court denied at any time having promised the Defendant or his wife that they could stay in the Property for life. I believe her.

87.  This alleged act was totally inconsistent with SY’s repeated requests that the Defendant should vacate from the Property, as alleged by the Plaintiff, which I accept as the fact.

88.  Secondly, if the Property were all along known by all to be meant for Defendant and his family, why would there be the need for these promises.

89.  If indeed SY was merely the trustee of the Property, why would the Defendant not seek to transfer the Property to his and/or Lui’s name on death of SY and instead allowed the Plaintiff to obtain the grant of probate in respect of the estate of SY covering also the 2 properties.

90.  Defendant also pleaded in the alternative that if the Property were in name of SY, which Defendant denied, then SY held the Property in trust for Lui and the Defendant. In fact, at trial, Mr. Poon had abandoned all other arguments but this one.

91.  I could not detect a shred of evidence supporting the alleged trust for Lui and the Defendant in the whole hearing apart from the oral assessors the Defendant.

92.  This present stance of the Defendant was inconsistent with what the Defendant said in his witness statement, i.e. that the Property was in fact family property.

93.  I accept as submitted by Mr. Ko, counsel for the Plaintiff, that the relevant principles relating to common intention constructive trust are summarized in Snell’s Equity 32^nd edition at P. 24-049, that is :-

  (a)        “Where an express trust has not been declared, then the starting point is that the parties would have intended the beneficial ownership of property to follow the legal title to it. So the sole registered proprietor is presumed to be the sole beneficial owner...”

 (b)       “The party who alleges that this presumption does not reflect parties’ true intentions bears the burden of proving that the beneficial interests were different. The claimant alleging the common intention constructive trust therefore bears the burden of proving it.”

(c)        “The claimant alleging the constructive trust must first prove that when the property was first acquired, or exceptionally at a later time, there was an agreement, arrangement or understanding that the property was to be shared beneficially between himself and the legal proprietor. This agreement may be based on evidence of express discussions between them or it may be inferred from their conduct.”

94.  Here, I find there is a complete lack of evidence for the required common intention constructive trust in favour of Lui and the Defendant.

95.  The Defendant’s case of common intention constructive trust is contradictory to the evidence of SW, LP and the Plaintiff, which I accept, and the fact that the Plaintiff had been paying for the insurance premium for the Property.

96.  The Defendant had clearly failed to prove that the beneficial ownership of the Property does not form on its legal title.

97.  In fact, the Defendant had also pleaded in the alternative that prior to the purchase of the Property and the Comfort Centre Property, there was an agreement by the Grandfather, Lui, the Plaintiff, SY and the Defendant that the Property was purchased for the Defendant and his family. He said therefore the Defendant and his family had the beneficial interest in the Property.

98.  I could not see how anyone there could have an agreement with the Grandfather in year 1992. There was no evidence that Grandfather did return to Hong Kong after year 1957 or had communicated with any family member since his departure in year 1957. In fact, it is not in dispute that Cuba had banned its citizens from leaving the country at that time. There was simply no evidence supporting this contention.

99.  In the Defence, Defendant said Grandfather in year 1992 provided $2 million to Lui and the Defendant.  There was again no evidence supporting this contention save that the Aberdeen Property then still in the name of Grandfather was sold at $2 million.

100.  Again, if the Property was in fact Chow family asset, why should it, as pointed out by LP in Court, be used only by the Defendant and his family?

101.  If the $2 million proceeds actually were just family asset, it would appear strange that other family members did not take a role in the choice and purchase of the 2 properties and left it all to the SY couple?

102.  As SY and the Plaintiff, more precisely the Plaintiff had previously paid for the Property, I see no reason why it should not belong to SY and presently to the Plaintiff here.

103.  Mr. Poon did also submit that it was inherently improbable that one would allow his brother to stay in one’s property rent free for 19 years. This Court noted however that the evidence of all witnesses, including that of the Defendant, was that SY was a very kind man. I find this unusual scenario a fact in our case here.

104.  I accept the evidence of the Plaintiff and find that in this case, the Defendant and his family merely resided in the Property as licensees and that all along, they knew they were staying in the Property of SY, on a temporary basis and had to vacate when the licence was terminated. The licence had been terminated on 20 December 2009 by the successor of SY, the Plaintiff when she issued the notice via her solicitors. The Defendant and his family had since then and is now still in wrongful occupation of the same.

105.  In the circumstances, I find:-

a.     the Defendant had failed to prove the Property was held in trust by SY for Lui and him.

b.     that the Property did belong to SY legally and beneficially and therefore the Plaintiff herein is now the legal and beneficial owner.

c.      that the Defendant and his family resided at the Property as licensee, the licence of which was terminated on 20 December 2009.

106.  The validity of the gift of the Aberdeen Property is not really relevant to the case here. It is actually not pleaded. For sake of completeness, I will address the same.

107.  On the evidence before me, I have no hesitation to find that the intention of the Grandfather at the time was, as said by SW and LY, to assign the Aberdeen Property in favour of SW.

108.  I do not accept evidence of the Defendant that Grandfather had merely entrusted the Aberdeen Property to SW. One should remember that the Defendant was only of tender age then and it was unlikely that he would be concerned with or understand the true position.

109.  Mr. Poon submitted that SW might not have been given a power of attorney back in year 1957 because he said in year 1999, the statutory form power of attorney was said to require a declaration by a donee of a power of attorney that he was not a minor. Firstly, this had never been pleaded by the Defendant. Secondly, it remained a fact that the developer’s solicitors accepted SW as having the authorization to execute the assignment for the Aberdeen Property as shown in the relevant assignment. The power of attorney was therefore good and valid.

110.  It was argued by the Defendant that any gift of the Aberdeen Property to SW had not been perfected as no assignment had been executed by Grandfather.

111.  Mr. Poon referred this Court to the case of Milroy v. Lord [1861-1873] All ER Rep. 783 where it was held that:-

“in order to render a voluntary settlement valid and effectual, the settler must have done everything which, according to the nature of the property comprised in the settlement, was necessary to be done in order to transfer the property and render the settlement binding upon him.”

112.  He said the gift to SW by Grandfather had not been perfected and the Aberdeen Property therefore remained as property of the Grandfather.

113.  Mr. Ko for the Plaintiff argued that it was no doubt the intention of the Grandfather to gift SW the Aberdeen Property and that, as agreed between the parties, at the time, SW could not have taken up assignment of the Aberdeen Property because of his age.

114.  Mr. Ko quoting from Snell’s Equity, P. 24-006 to P. 24-007:-

“(a)...The gift of the legal interest in the property will not be complete until the donor has completed all the formalities necessary to vest the legal interest in the done. The gift may, however, be treated as complete in equity at an earlier point in the transaction when some of those remaining steps are still unfulfilled. It has been held that if the donor has taken all the steps that lie exclusively in his power, according to the nature of the property given, to vest the legal interest in the property in the done, then the gift will be complete in equity...

(b)...In Pennington v. Waine the rule was extended. It was held that, although further acts may remain to be done by the donor to vest the legal interest in the done, the gift may nonetheless be effective in equity if it would unconscionable for the donor to resile from his intention that the transaction should be complete. In that case the donor executed a share transfer form but did not deliver it to the done or the company for registration. The donee acted on the assumption that the gift was complete and had been expressly told by the donor’s agent that he need take no further action. The gift was held to be complete in equity.”

115.  Should Grandfather have appointed a trustee in Hong Kong to hold the Aberdeen Property for SW? It is not disputed that Grandfather who just returned from Cuba not long ago did not have much friends in Hong Kong. In fact, it was not challenged that this was one of the reasons why he later left Hong Kong for good. (see paragraph 1 of 2^nd witness statement of the Defendant dated 2 August 2011) He could therefore only choose Lui, an illiterate and apparently a far from sophisticated lady to be the trustee. Bearing in mind that it is not challenged that the Grandfather being a traditional Chinese man back in the 50’s would not like the Aberdeen Property to be succeeded by a female, he would not have accepted Lui, a female as a trustee because that would mean she would be the one who had authority to deal with the Aberdeen Property, at least for the period before SW attained majority. That would not be what Grandfather wanted. Should the gift fail because he did not do so? I think not.

116.  I take the view that in the circumstances of this case, Grandfather had completed all formalities necessary to vest the legal interest in the donee and the gift may be treated as complete in equity when he executed a power of attorney in favour of SW.

117.  In fact, I agree as submitted by Mr. Ko that it would be unconscionable for Grandfather (or its estate) to resile from the gift, even if not perfected, years later.

118.  SW and LP gave clear evidence that Grandfather told them that he would give the Aberdeen Property to SW, and that SW did attend a solicitors’ office to execute certain documents for the purported transfer and that upon such representation, SW later proceeded to sell the Aberdeen Property in 1992 and gifted the proceeds of $2 million to SY.

119.  There is also no evidence that any siblings or Lui or indeed anyone had in the last 50 odd years challenged the “gift” or protested when SW gifted the sale proceeds of the Aberdeen Property to SY 20 years ago. I find that, as said by SW and LP, that all of them including the Defendant knew of the gift of the sale proceeds to SY.

120.  Defendant did give evidence and said that the $2 million sale proceeds was family asset and that SW did suggest to divide it amongst the siblings. The same was disputed by SW. I do not accept it as true.

121.  SY had in turn used the sale proceeds to purchase the Comfort Centre Property and the Property. The same was all along occupied by Lui until her death and maintained, as with the Property, by SY over the years.

122.  Further, there is the unchallenged evidence that SY and Plaintiff were the only one responsible for the purchase of the Comfort Centre Property.

123.  Assuming the Comfort Centre Property was part of the estate of Grandfather, which I do not find, it clearly would be unconscionable if Grandfather or the estate now deny the validity of the gift.

124.  There is no doubt in my mind that the Comfort Centre Property did also belong to SY and therefore presently the Plaintiff.

125.  According to the parties’ joint valuer Citiland, mesne profits for the Property from 21 December 2009 to 10 October 2011 totalled $122,700 and the monthly mesne profits of the Property stood at $6,300.

Conclusion

126.  I therefore order that the Defendant shall:-

1) deliver vacant possession of the Property to the Plaintiff;

2) pay the Plaintiff :-

i. the sum of $122,700, being mesne profits for the Property from 21 December 2009 to 10 October 2011;

ii. the sum of $30,870, being mesne profits for the Property from 11 October 2011 to 7 March 2012;

iii. the monthly sum of $6,300 from date of judgment till date of delivery of vacant possession;

iv. interests on the sum of $122,700 at judgment rate from date of judgment till date of payment;

v. interests on the sum of 30,870 at judgment rate from date of judgment till date of payment.

Costs

127.  I also make an order nisi that the Defendant shall pay the Plaintiff costs of the action (including all costs reserved), the same to be taxed if not agreed, with certificate for counsel.