CHEN KAM NGA v. LEE HO YIN

HCA 553/2016 and
HCA 356/2017

[2021] HKCFI 1352

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NOS 553 OF 2016 AND 356 OF 2017

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BETWEEN

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(Consolidated by the Order of Mr Registrar Ho

dated the 20^th day of December 2017)

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J U D G M E N T

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A. INTRODUCTION

1.  This is a contest between 2 ex-lovers over 2 properties (one in joint names and the other in the Defendant’s sole name), 2 funds and a counterclaim for 2 sums of money allegedly owed by the Plaintiff (Ms Chen) to the Defendant (Mr Lee).

2.  It is Ms Chen’s case that the 2 properties were subject to an express pre-acquisition constructive trust that she was to have sole beneficial interest over one and joint beneficial interest over the other.  She provided RMB200,000 to Mr Lee for the purpose of investment, which was not applied and she seeks its return (“Investment Claim”).  She also provided RMB100,000 for Mr Lee to place on deposit but Mr Lee withdrew the capital and interest without her consent; she seeks its return with damages (“Funds Claim”).

3.  It is Mr Lee’s case that the beneficial interest in the 2 properties follows the title.  The RMB200,000 which Ms Chen gave him was in repayment of a loan.  It was he who deposited the RMB100,000 into his bank account and he withdrew his own money.  Mr Lee counterclaims for (a) a sum of HK$110,000 which Ms Chen allegedly owes him as balance upon transfer of one property to her; and (b) RMB50,000 for a loan allegedly made to Ms Chen.

4.  Ms Chen denies owing Mr Lee money.  In any case, she says that the counterclaim for HK$110,000 was time-barred.

B. UNDISPUTED BACKGROUND

5.  The background is taken from the helpful summary of undisputed facts prepared by counsel, for which the Court is grateful.

6.  The parties were classmates in primary school.  Mr Lee went to Taiwan for studies in 1997, where he eventually obtained a doctorate degree in electrical engineering and returned to Hong Kong in 2008.  In September 2002, Ms Chen went to Taiwan for university.  After her graduation in mid-2006, she came back to Hong Kong to work.

7.  At all material times, by profession, Ms Chen was a licensed real estate agent and Mr Lee was an electrical engineer.

8.  In around 2002, the parties began a romantic relationship.  In about 2008, they started cohabitation.  In about May 2010, they ceased cohabitation.

9.  The parties subsequently resumed intimate relationship in around mid-2011 (according to Ms Chen) or around March 2012 (according to Mr Lee). In July 2014, they broke up again.

10.  Over the years, the parties have invested in properties and money had changed hands for various purposes.  At the time of their first break up in 2010, a property (abbreviated as “Flat 6E”), then in joint names, was transferred to the sole name of Ms Chen.  The issue is whether or not that transfer was for free or for consideration.

11.  At the time of their second break up in mid-2014, there was one industrial property in joint names (abbreviated as “Delya Property”), one residential property in Mr Lee’s name (abbreviated as “Flat 1C”), funds of RMB200,000 deposited into Mr Lee’s bank account and one sum of about RMB100,000 in a joint bank account.  Those 4 assets emerged in the 2 years between March 2012 and July 2014.  This action is to sort out the parties’ entitlement to these 4 assets.

12.  Ms Chen’s case was one of express agreement on beneficial ownership each time before a property was purchased or fund transfer under the Investment Claim or Fund Claim.  To decide on beneficial ownership, one has to trace the history of their investments, starting with what was known as Flat 19A.

B1. Flat A, 19/F, Tower 3, Tai Hing Gardens Phase II, Tuen Mun (“Flat 19A”) (not subject matter of this action)

13.  Flat 19A was the first property in the picture.  It was purchased in January 2008 at HK$1,050,000 in the name of Mr Lee, with his brother as the mortgagor.  It was assigned to a third party in August 2008 for HK$1,290,000. About 3 days after the assignment, Mr Lee gave a cheque to Ms Chen for HK$235,000 which the parties agreed was the net profit.  Ms Chen said it was her entitlement as Flat 19A was beneficially and solely owned by her.  Mr Lee said it was a loan to Ms Chen.  This was relevant to Mr Lee’s defence that the RMB200,000 claimed by Ms Chen was repayment of this loan.

B2. Flat E, 6/F, Tower 7, Tai Hing Gardens Phase II, Tuen Mun, (“Flat 6E”) (relevant to Mr Lee’s counterclaim)

14.  Flat 6E was acquired in joint names in 2009 at HK$1,510,000, funded by the parties’ equal contribution to the deposits and a mortgage.  The parties had cohabited at Flat 6E until Mr Lee moved out in around May 2010.  Mr Lee requested for sale of this property to achieve a clean break in relationship (撇清關係).

15.  Flat 6E was assigned to Ms Chen on 3 August 2010 for a stated consideration of HK$1,000,000 but no payment had ever been made by Ms Chen to Mr Lee.  Ms Chen took up a new mortgage of HK$1,200,000 in her sole name.  The dispute is whether or not consideration of HK$400,000 (after deducting Mr Lee’s share of the prior mortgage) should have been paid by Ms Chen to Mr Lee.

16.  The parties later resumed cohabitation.

17.  Mr Lee’s case was that the cohabitation was subject to 2 options: (a) that Ms Chen would take steps to revert the title of Flat 6E to the joint names of the parties; or (b) that Ms Chen would repay HK$400,000 to Mr Lee and Mr Lee would purchase a property in his sole name.

18.  According to Mr Lee, Ms Chen elected Option (a) and the parties treated Flat 6E as jointly owned.  Ms Chen later changed her mind after completion of purchase of Delya Property, as the price of Flat 6E had risen. She opted to pay HK$400,000 to Mr Lee, which was agreed to by Mr Lee. This gave rise to the alleged “HK$400,000 Debt”.

B3. Workshop 14, 15/F, Block A, Delya Industrial Centre, 7 Shek Pai Tau Road, Tuen Mun (“Delya Property”)

19.  Delya Property was initially purchased in the name of Ms Chen, as stated in the provisional sale and purchase agreement, at HK$938,000.  Subsequently, at the request of Mr Lee, she added his name as a joint owner.

20.  The parties effectively did not need to use their own monies to fund the purchase of Delya Property because they were able to obtain 2 mortgages, one for HK$500,000 on the security of Flat 6E (then in the sole name of Ms Chen) and the other for HK$438,000 on the security of Delya Property.  The mortgage repayments were largely covered by the rent. 

21.  The rental income was all deposited into Ms Chen’s bank account.  The mortgage repayments were made out of her bank account. 

22.  The dispute is whether, despite the joint ownership, Mr Lee has beneficial interest in Delya Property and who had paid the mortgage repayments not covered by the rent.  Ms Chen claims that she had made clear to Mr Lee that he was only to be a manager of Delya Property and that the property was to be solely owned by her.  Mr Lee disputes this and claims that Delya Property was purchased in joint names at his suggestion.  Ms Chen claims that she had paid all the mortgage repayments.  Mr Lee claims that he used to pay HK$2,000 to HK$3,000 per month to Ms Chen to cover the mortgage repayments.

B4. Flat C, 1/F, Tower 6, Tai Hing Gardens Phase II, Tuen Mun (“Flat 1C”)

23.  Flat 1C, purchased at HK$1,900,000, has been in the sole name of Mr Lee.  Ms Chen put up a total of HK$290,000.  Mr Lee put up HK$280,000.  The balance was funded by a mortgage.  The rent had always exceeded the mortgage instalments. 

24.  Ms Chen’s case is that there was a pre-acquisition agreement that Flat 1C was the parties’ joint investment.  Since she already had 2 mortgages under her name, the parties agreed that Mr Lee’s name should be used for the purchase and the mortgage.  By virtue of the pre-acquisition agreement and her contribution to the down payment, she was entitled to half interest in Flat 1C. 

25.  Mr Lee disagrees.  He has been the sole owner.  The HK$290,000 was, by express agreement, in part payment of the HK$400,000 Debt which Ms Chen owed him.

B5. Claim for RMB100,000 (“Funds Claim”)

26.  On 10 March 2012, the parties opened with the China Construction Bank 2 joint accounts: (a) a foreign currency account (“CCB FX Account”) and (b) a Hong Kong dollar saving account (“CCB HKD Account”).

27.  On the same day, a sum of RMB100,000 was deposited into the CCB FX Account.

28.  Two days later, the RMB100,000 was used to establish a 3-month time deposit. Upon maturity, it had been renewed several times for different durations.  By 31 December 2013, the matured time deposit of RMB102,508.44 was renewed for another year (ie until 31 December 2014) at an interest rate of 2.95% per annum.

29.  On 8 July 2014 (upon break-up of the parties’ relationship), Mr Lee transferred a sum of RMB102,348.07 from the CCB FX Account to an account in his sole name.  Ms Chen seeks return of this sum with damages.

B6. Claim for RMB200,000 (“Investment Claim”)

30.  On 11 October 2013, Ms Chen transferred a sum of RMB200,000 from her bank account maintained with her Bank of China (PRC) account (“BOC PRC Account”) with a number ending 488 to Mr Lee’s BOC PRC Account with a number ending 317.

31.  Ms Chen claims that it was for the purpose of investing in stock in the PRC.  As the money was not so applied, she seeks return of the RMB200,000.

32.  Mr Lee disagrees.  He claims that the money was Ms Chen’s repayment of the HK$235,000 loan.

B7. Counterclaim for HK$110,000

33.  This is the balance of the HK$400,000 Debt, allegedly owed by Ms Chen after taking into account the HK$290,000 she repaid when purchasing Flat 1C.

B8. Counterclaim for RMB50,000

34.  On 18 October 2013, Mr Lee transferred a sum of RMB50,000 from his bank account maintained with BOC PRC with a number ending 596 to Ms Chen’s BOC PRC Account. 

35.  Mr Lee claims that it was a loan to her.  Ms Chen cannot remember what it was for but suggests that it was money passed by her client into Mr Lee’s account for Ms Chen to process.  She did not need a loan then.

B9.  Summary of the parties’ case

36.  The parties’ case can thus be summarized as follows:

Asset	Legal title	Ms Chen’s case	Mr Lee’s case
19A (not subject matter of claim)	Mr Lee’s sole name	100% hers; HK$235,000 net proceeds of sale belonged to her	100% his; lent HK$235,000 to Ms Chen
6E (not subject matter of claim)	Initially in joint names but later transferred to Ms Chen for clean break	Transferred to her for free	Entitled to half of the sale price on transfer; Ms Chen owed him HK$400,000
Delya Property	Joint names	100% hers	Joint ownership
1C	Mr Lee’s sole name	50% hers	100% his; Ms Chen repaid HK$290,000
Investment claim	RMB200,000 in Mr Lee’s account	100% hers	Repayment of HK$235,000 loan from Ms Chen
Funds claim	RMB100,000 in joint account	100% hers	100% his
Counterclaim for HK$110,000		Denied	Balance of HK$400,000 Debt owed
Counterclaim for RMB50,000		Denied	Loan to Ms Chen

B10.  Others

37.  On 9 July 2014, a sum of HK$150,000 was transferred from Ms Chen’s BOC HKD Account with a number ending 191-5 to Mr Lee’s BOC HKD Account with a number ending 570.

38.  Ms Chen reported the matter to the police, making 2 statements on 9 and 13 August 2014 respectively.  Mr Lee had, via the police, returned the HK$150,000 to Ms Chen.

39.  On 14 July 2015, Mr Lee through his solicitors, Liu, Choi & Chan, proposed to sell the Delya Property with the proceeds of sale equally shared by the parties.

40.  On 7 August 2015, Ms Chen through her solicitors, Szeto Virginia & Co., rejected Mr Lee’s proposal and instead demanded Mr Lee to transfer his legal title in the Delya Property to Ms Chen.

C.  AGREED ISSUES

41.  Counsel have helpfully come up with an agreed list of issues as set out below.

42.  In relation to the Delya Property claim:

(1) whether or not there was a pre-acquisition common intention between Ms Chen and Mr Lee that this property was to be beneficially owned by Ms Chen solely;

(2) whether Ms Chen was solely responsible for the monthly instalments under the 2 mortgages; and

(3) whether Ms Chen was solely responsible for the expenses and outgoings relating to the Delya Property.

Ms Chen relies on common intention constructive trust, resulting trust and proprietary estoppel.

43.  In relation to the Flat 1C claim:

(1) whether or not there was a pre-acquisition common intention between the parties that Flat 1C was to be beneficially owned by them equally;

(2) whether Ms Chen’s payment of HK$290,000 amounted to her direct contribution to the purchase price of Flat 1C, or part payment of the HK$400,000 Debt; the latter scenario would in turn depend on:

(a) whether Mr Lee agreed to transfer his interest and title in Flat 6E to Ms Chen for free or for HK$1,000,000;

(b) if there was a debt of HK$400,000, whether Ms Chen’s payment of HK$290,000 was intended to be a part payment of that debt; and

(3) whether Ms Chen had paid for the expenses and outgoings relating to Flat 1C.

Ms Chen similarly relies on common intention constructive trust, resulting trust and proprietary estoppel.

44.  In relation to the Investment Claim: whether the transfer of RMB200,000 from Ms Chen to Mr Lee was for Mr Lee to invest in the PRC stock market on her behalf; or was intended to be a repayment of the HK$235,000 loan which he advanced to her in September 2008.  The latter scenario would in turn depend on:

(1) whether the transfer of HK$235,000 from Mr Lee to Ms Chen in the first place (a) represented Ms Chen’s entitlement as the sole beneficial owner of Flat 19A; or (b) amounted to a loan from Mr Lee to Ms Chen as he was the sole beneficial owner of Flat 19A; and

(2) if the transfer of HK$235,000 amounted to a loan, whether the transfer of RMB200,000 was intended to be a repayment of the loan.

Ms Chen relies on total failure of consideration and Quistclose trust.

45.  In relation to the Funds Claim: whether the initial deposit of RMB100,000 in the CCB FX Account came from Ms Chen or Mr Lee’s money.  Ms Chen relies on constructive trust and resulting trust.

46.  In relation to Mr Lee’s counterclaim for the repayment of HK$110,000:

(1) whether Mr Lee agreed to transfer his interest and title in Flat 6E to Ms Chen for free or for HK$1,000,000; and

(2) whether this counterclaim was time-barred.

47.  In relation to Mr Lee’s counterclaim for the repayment of RMB50,000: whether it was a loan from Mr Lee to Ms Chen.

D. LEGAL PRINCIPLES

48.  The legal principles are not in dispute and are taken from the helpful summary of counsel.

D1. Common intention constructive trust

49.  The relevant principles were summarized by DHCJ Eugene Fung SC in Mo Ying v Brillex Development Ltd [2014] 3 HKLRD 224 at §§33-46:

(1) A common intention constructive trust requires (a) a common intention that the plaintiff (i) should have a beneficial interest in the property (where there was sole legal ownership) or (ii) was the sole beneficial owner (where there was joint legal ownership) and (b) the plaintiff has acted to his/her detriment on the basis of that common intention (see §33).

(2) The onus is upon the person (in this case, Ms Chen) seeking to show that the beneficial ownership is different from the legal ownership (see §34).

(3) The common intention, or the agreement, arrangement or understanding, between the parties may be based on express discussions between them or inferred from their conduct (see §37).

(4) To found any express agreement, arrangement or understanding between the parties, there must have been some actual discussions between them, however imperfectly remembered and however imprecise their terms may have been.

(5) When inferring common intention, the search is to ascertain the parties’ actual shared intentions to be deducted objectively from their words and their actions. The parties’ whole course of conduct in relation to the property must be taken into account in determining their shared intentions as to its ownership (see §39(2)-(3)).

(6) Factors which may be relevant to divining the parties’ intentions include: any advice or discussions at the time of the transfer which cast light upon their intentions then; the reasons why the property was acquired in joint names (or sole name); the purpose for which the property was acquired; the nature of the parties’ relationship; how the purchase was financed, both initially and subsequently; how the parties arranged their finances, whether separately or together or a bit of both; how they discharged the outgoings on the property and their other household expenses (see §39(4)).

(7) Direct contributions to the purchase price by one party who is not the legal owner, whether initially or by payment of mortgage instalments, will readily justify the inference (see §39(5)).

(8) In terms of detrimental reliance, there must be some connection between the plaintiff’s conduct and his/her belief that he/she has an interest in the property. It must be conduct on which the plaintiff could not reasonably have been expected to embark unless he/she was to have an interest in the property (see §42).

(9) The last question is to find out the extent of the parties’ respective beneficial interests in the property. Where the defined shares have been agreed by the parties, the Court will give effect to that agreement. When the evidence does not support an inference as to the shares they intended to take, the Court can impute an intention to them.  The parties are taken to have intended whatever share was fair having regard to the whole course of dealing between them (see §§43-46).

50.  The modern approach to constructive trust is to assess the common intention of the parties by a holistic approach having regard to the context: Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 at §1.6 (Lam VP), recently applied in Ho Kwok Wing v Chan Mei Mui [2020] 3 HKLRD 548 at §8.9 (Cheung JA).

51.  Where a person is added as a party to a contract to enable the obtaining of a loan, this fact, by itself, is not a basis for holding that there was no intention for that person to be a beneficial owner. On the contrary, the fact that the property could not be bought without the person incurring liability, or potential liability, would be some ground for inferring that the person was to be beneficially interested: Re Lau Hiu Tuen, HCB 8430/2006, 20 August 2015, at §11, G Lam J.

D2. Resulting trust

52.  If two or more people contribute to the purchase price, and title is registered in only one of them, their beneficial interest in the property will be proportional to their contribution and the title holder is presumed to hold another contributing party’s share on resulting trust for that party: Yip Lai Ngor v Chau Kam Siu (unrep, HCA 1716/2012, 29 July 2015) at §18 (Au-Yeung J).

53.  However, at least in a domestic context, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust: Primecredit at §1.3 (Lam VP).  The presumption of resulting trust can be rebutted by evidence of the parties’ actual intentions.  As a result, the presumption of resulting trust is only relied upon as a default rule where there is no sufficient evidence to displace it: Snell’s Equity (34^th ed) §25-011.

54.  This point was recently emphasized by the Privy Council in Marr v Collie [2018] AC 631 at §§53-54:

“If what Baroness Hale described as a “starting point” (that joint legal ownership should signify joint beneficial ownership) is to be regarded as a presumption, is it in conflict with the presumption of a resulting trust where the parties have contributed unequally to the purchase of property in their joint names? … The Board considers that, save perhaps where there is no evidence from which the parties’ intentions can be identified, the answer is not to be provided by the triumph of one presumption over another. In this, as in so many areas of law, context counts for, if not everything, a lot. Context here is set by the parties’ common intention – or by the lack of it.” (underline added)

D3. Proprietary estoppel

55.  The essential elements of proprietary estoppel are:

(1) The owner of land induces, encourages or allows the claimant to believe that he has or will enjoy some right or benefit over the owner’s property.

(2) In reliance upon this belief, the claimant acts to his detriment to the knowledge of the owner.

(3) The owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit which he expected to receive.

See Mo Ying at §145 (DHCJ Eugene Fung SC).

56.  But the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments. The fundamental principle that equity is concerned to prevent unconscionable conduct permeates all the elements of the doctrine. In the end the court must look at the matter in the round: Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at §56 (Ribeiro PJ).

D4. Restitution for failure of consideration

57.  In restitution cases, the relevant questions are: (a) whether the defendant was enriched; (b) whether the enrichment was at the plaintiff’s expense; (c) whether the enrichment was unjust; and (d) whether there are any defences available: Yukio Takahashi v Cheng Zhen Shu (2011) 14 HKCFAR 558 at §26 (Ribeiro PJ).

58.  “Consideration” in the context of a claim in unjust enrichment is different from that in the law of contract. “Consideration” for the purposes of the law of unjust enrichment does not mean the quid pro quo for there to be a binding contract as it is used in the law of contract. “Consideration” refers to the condition which formed the basis of the plaintiff’s transfer to the defendant of the benefit in question: Tin Wan Tung v Wong See Yin [2018] HKCFI 1143 at §113 (Wilson Chan J).

D5. Quistclose trust

59.  The relevant principles were set out in Typhoon 8 Research Ltd v Seapower Resources International Ltd & Another [2002] 2 HKLRD 660 at §§18-20 (Le Pichon JA):

(1) Where a loan is made to a borrower for a specific purpose and the borrower is not free to apply the money for any other purpose, that arrangement gives rise to fiduciary obligations on the part of the borrower which a court of equity will enforce.

(2) For such a trust to arise, a settlor must possess the necessary intention to create the trust but his subjective intentions are irrelevant. If he entered into arrangements which have the effect of creating a trust, it is not necessary that he should appreciate that they do so; it is sufficient that he intends to enter into them.

(3) The question in every case is whether the parties intended the money to be at the free disposal of the recipient. His freedom to dispose of the money is necessarily excluded by an arrangement that the money shall be used exclusively for the stated purpose.

(4) Where a Quistclose trust arises, the money remains the property of the lender unless and until it is applied in accordance with his directions and insofar as it is not so applied, must be returned to him.

(5) The duty to keep the money separate is an incident of a Quistclose trust, should one arise from the circumstances, rather than a pre-condition for the existence of such a trust.

(6) The concept of Quistclose trust applies to non-loan situations. There is a wide range of situations in which the parties enter into a commercial arrangement which permits one party to have a limited use of the other’s money for a stated purpose, is not free to apply it for any other purpose, and must return it if for any reason the purpose cannot be carried out. All such arrangements should if possible be susceptible to the same analysis.

D6. Money in joint bank accounts

60.  Where all the money paid into a bank account held by two or more persons is provided by one of them, normally there will be a rebuttable presumption that all the money standing to the credit of the account is held in trust for the person who provided the money: Lewin on Trust (20^th ed) §10-095.

D7. No prima facie obligation to repay money advanced

61.  The making of a bare payment to another might be explicable by reference to a wide variety of possibilities. The onus of proving that a transaction involving the payment of money amounted to a loan is on the plaintiff and is not satisfied by proof merely of the payment to the defendant of the amount claimed. The possibility that there was an obligation to repay the amount was not so strong that it should become the subject of a presumption, even a presumption of fact: at Big Island Construction (HK) Ltd v Wu Yi Development Co Ltd (2015) 18 HKCFAR 364 at §§101-108 (Ribeiro PJ).

E. CREDIBILITY AND THE EVIDENCE

62.  This is a one-to-one case in which credibility is important. When considering credibility of a witness, the Court takes into account the inherent probabilities/logicality in each version and the contemporaneous documents/circumstances. 

63.  Where a person without explanation fails to call a witness a person who he might reasonably be expected to call, or to produce a document or other real evidence that a person might reasonably be expected to disclose, it is open to the Court to infer that that person’s evidence would not have helped that party’s case: South China Securities Ltd v Lam Kwen Yuen [2012] 5 HKLRD 524, §7, DHCJ Lisa Wong (as she then was).

64.  Having heard the parties, I find that neither of them were entirely reliable.  There were eg illogicalities in their case.  Besides, Ms Chen has failed to call important witnesses.  Mr Lee has come up with new evidence in the witness box which was never pleaded, referred to in witness statements or put to Ms Chen.  I shall elaborate on these under specific issues below.

65.  Mr Timothy Wong, counsel for Mr Lee, accepts the handwritten annotations on the bank documents of Ms Chen, but not the annotations on the photocopied pages as the latter were not contemporaneous records.  I accept his submission.  The annotations covered a wide range of matters, not just those concerning the subject matter of this litigation.  The annotations were contemporaneous records of Ms Chen which I give great weight to.

66.  Mr Timothy Wong also added the caution, which I agree, that the annotations were there to record the fund flow but not the source of funds or beneficial interest.

67.  I now go to the evidence to analyze the history of transactions between the parties first before answering the issues one by one.

F. FLAT 19A

68.  It is Ms Chen’s case that due to prohibitions arising from her status as an estate agent, she could not purchase Flat 19A in her own name.  She had agreed with Mr Lee that the acquisition would be made in his name but Flat 19A would belong solely to her.  The $235,000 was her net profit.  Her pleading has no particulars, probably because this property is not the subject matter of these proceedings.

69.  It is Mr Lee’s case that Flat 19A was his and that he funded the deposits of HK$315,000.  The initial deposit came from funds in HSBC and BOC accounts which he placed in Ms Chen’s hands in 2006.  He also provided further deposits with his own money.  On discovering that he had made a profit, Ms Chen borrowed HK$235,000 from him.

70.  I have taken into account the following matters.

71.  Firstly, Ms Chen’s evidence on Flat 19A has changed on 2 aspects:

(1) Initially her case was that purchase in her name would be against the Real Estate Agency Code of Conduct.  However, on the day of trial, she amended her witness statement to say that she was concerned that if the owners knew that she was the buyer, in the event they changed their minds later and decided not to sell Flat 19A, they might refuse to pay her compensation in accordance with the contract. 

(2) Initially she claimed in the witness box to be guarantor of the mortgage loan but later changed her evidence to having forgotten who the guarantor was.  In fact, the guarantor was Mr Lee’s younger brother, because Mr Lee did not have income proof then. 

72.  I find that such changes in Ms Chen’s evidence was to boost her case that she had sole interest in Flat 19A.  However, the use of Mr Lee’s brother, instead of someone from Ms Chen’s side, as guarantor was more consistent with Mr Lee having ownership.

73.  Secondly, Ms Chen admitted that she was given Mr Lee’s ATM card and PIN of HSBC but not those of BOC.  She had withdrawn $60,000 (about 75% of the then bank balance) by 4 transactions in August and September 2006.  She denied withdrawing other sums from Mr Lee’s BOC account.

74.  In close proximity in time to the 4 transactions, the other sums were withdrawn in July, August and October 2006 from Mr Lee’s BOC account.  Although Mr Lee’s immigration records were not produced, the evidence was that Mr Lee was in Taiwan in July; he went to Canada in August and did not come back to Hong Kong until winter.  Even if Mr Lee might have withdrawn money by ATM in Taiwan and Canada, the probabilities were that they would not have been round sums in Hong Kong dollars.  On balance of probabilities, it was more likely than not that the person withdrawing the disputed sums from Mr Lee’s BOC account was Ms Chen. 

75.  I find that Ms Chen did have 2 cards of Mr Lee.  I accept Mr Lee’s version that Ms Chen had withdrawn a total of $139,800 using his cards.

76.  Thirdly, there was a sum of $85,000 for the further deposit, paid by Mr Lee’s cheque on 28 January 2008.  Mr Lee paid Wat & Co $100,000 on 29 February 2008 to complete the purchase.

77.  On 30 January 2008, Ms Chen transferred HK$85,000 to Mr Lee.  Mr Lee claimed that to be in repayment of HK$$100,000 drawn on his BOC cheque account on 31 October 2007.

78.  Ms Chen has produced contemporaneous annotations to bank documents to prove her contributions to Flat 19A:

(1) The entry on 29 February 2008 in her passbook showed withdrawal of HK$114,560.  It was annotated with “T3 19/F A 尾數” and “Anson [ie Mr Lee] 出左$10 萬”.

(2) The sum of HK$85,000, paid by her to Mr Lee 30 January 2008, was marked with “買T3 19/F A 首期大訂” in the BOC customer’s advice.

79.  The annotations in Ms Chen’s bank documents should be given great weight. 

(1) Back in 2008, there was no break up in relationship in sight. If she had intended to repay a loan, where was nothing that could have prevented her from making the appropriate annotations. 

(2) She did not just annotate her own payments for Flat 19A but Mr Lee’s as well.  She also made clear distinctions between the nature of each payment.

(3) The annotations for the HK$85,000 payment, ie “買 T3 19/F A首期大訂”, was weighty.  If this payment had been made by Ms Chen to the conveyancing solicitors instead of Mr Lee, then Mr Lee may still argue that Ms Chen was helping Mr Lee to pay for the further deposit of Flat 19A.  But here the further deposit had already been settled by Mr Lee a few days earlier.  Why would Ms Chen still label this payment as “首期大訂”?  The only reasonable explanation was that the payment was intended to be her contribution towards the further deposit of Flat 19A.

(4) The total withdrawals from Ms Chen’s bank accounts were HK$199,560 (ie HK$114,560 + HK$85,000).  Even so, she had still taken HK$139,800 from Mr Lee’s account without proof of repayment.  Even if she had contributed towards the purchase price of Flat 19A, she was far from proving that Flat 19A was solely hers.

(5) She also admitted having received $85,000 from Mr Lee on 15 November 2007 when Flat 19A was not in sight.

80.  Fourthly, if Ms Chen had been the sole owner of Flat 19A, she would not have received HK$235,000 on sale of this property.

(1) Agency fees of HK$12,900 that were paid were not deducted from the net proceeds.

(2) She should have received about HK$536,625 (ie $1,290,000 – $735,000 mortgage – solicitors’ fees of $5,475 – agency fee of $12,900). However, Mr Lee had not paid her anything over and above the $235,000 and she had not appeared to ask him for more.

(3) Under cross-examination, Ms Chen admitted that there was a “calculation error” and that if she had included the deposit, she should have more than $235,000.

81.  In my view, Ms Chen was far from showing that Flat 19A belonged to her or to her solely, especially in view of paragraph 80.  On balance, I accept Mr Lee ‘s version that he had advanced a loan of HK$235,000 to Ms Chen.

G. FLAT 6E

82.  Flat 6E was purchased in joint names.  The parties resided there until their first break-up in April 2010.  According to Ms Chen, Mr Lee asked for a clean break as soon as possible and he would give up everything.  He suggested transferring Flat 6E to her and would not require her to pay a cent to him.  Three friends of Ms Chen learnt about their separation and talked to Mr Lee.  One friend (Hui) told Ms Chen that Mr Lee confirmed to the 3 friends that Flat 6E could be transferred to Ms Chen without consideration.

83.  Ms Chen contacted Mr Lee 2 days later.  Mr Lee confirmed that he wanted to have a clean break of the relationship as soon as possible (儘快撇清關係).  He asked her if she wanted the property; if she did it could be transferred into her name; otherwise it could be sold.  He refused to resume cohabitation.

84.  Eventually, Ms Chen went to Ms Sofia Lee of Wat & Co to prepare the documentation for transfer of Flat 6E into Ms Chen’s sole name and to apply for a mortgage in her sole name.

85.  The then outstanding HSBC Mortgage amounted to HK$1.2 million.  To facilitate Ms Chen’s application for a new mortgage loan from the Bank of China (“BOC”) at a value of 60% of the purchase price, the transfer took the form of a “sale”.  The monthly instalment for the BOC mortgage was HK$5,517.13, borne solely by Ms Chen.

86.  Mr Lee himself testified that he had insisted on formal documentation.  The provisional sale and purchase agreement was dated 7 June 2010.  The consideration was stated to be HK$2 million with a deposit of HK$200,000 to be paid at the time of execution of the provisional sale and purchase agreement.  The completion date was 31 July 2010, but the assignment was dated 3 August 2010. The consideration on the assignment was HK$1 million for Mr Lee’s half share in the ownership, receipt whereof was acknowledged.

87.  In favour of Ms Chen’s case that the transfer was for free was the fact that no money was ever paid – deposit or balance.  It was Mr Lee who executed the assignment first and acknowledged receipt without actually receiving money.  Having experience as an estate agent himself, Mr Lee would have known that this was contrary to usual conveyancing practice.  Mr Lee also raised no objection to the assignment being 3 days beyond the “agreed” completion date.  According to the hearsay evidence of Ms Chen, Sofia had told Mr Lee the effect of the assignment and that there would be no consideration but Mr Lee signed without hesitation.

88.  There is no dispute that Mr Lee went to see Sofia for money after the assignment was executed.  However, Mr Lee never sued for payment because he was advised that it would take 3-5 years and may not justify the legal costs.

89.  Sofia had passed away.  So I have to assess the credibility of Ms Chen in the light of the objective circumstances below.

90.  Firstly, Ms Chen could have called her 3 friends to give evidence, and it would have been weighty corroboration.  Applying South China Securities Ltd v Lam Kwen Yuen, her failure to do so meant that their evidence was not in her favour.

91.  Secondly, even Ms Chen admitted that Mr Lee gave her the option of a transfer or a sale.  For a sale, one could reasonably expect a distribution of net proceeds of sale between the two of them.

92.  Thirdly, Ms Chen had offered to pay HK$150,000 to Mr Lee 3 months after the assignment was executed, despite the fact that they had allegedly agreed upon no consideration for the transfer.

93.  In her email to Mr Lee dated 18 November 2010 (“the 2010 Email”), Ms Chen stated that what she owed him she would pay and would send it to the solicitors’ office; he could go there to acknowledge receipt[1]. She expressed that they had completely lost heart in each other.  She claimed to have told Sofia that she would pay Mr Lee HK$150,000 but was not sure if Sofia had followed up.

94.  Under cross-examination, Ms Chen initially explained that what she would send to the solicitors’ office were the personal belongings of Mr Lee.  She later said that Mr Lee initially asked for HK$200,000.  She meant to say in the 2010 Email that she would bring HK$150,000 (being the deposit he had paid for Flat 6E) and his personal belongings to the solicitors’ firm. Mr Lee would not accept HK$150,000 but insisted on HK$200,000.  Therefore, Ms Chen did not bring the money to the solicitors’ office.

95.  Ms Chen knew that Mr Lee had another girlfriend.  The tone of the 2010 Email showed the parties’ relationship to have irretrievably broken down. There was simply no reason why Ms Chen should offer to give Mr Lee money, especially since she had told him, through Sofia, that he would not have a cent. The 2010 Email did not confront Mr Lee about his prior agreement that there would be no consideration.  Ms Chen’s initial oral evidence that she meant to return Mr Lee’s personal belongings through the solicitors’ firm was evasive, to say the least. 

96.  Moreover, it was only on the first day of trial that Ms Chen amended her witness statement to state that Mr Lee only demanded for HK$200,000 when, for 4 years, the parties’ dispute has been on HK$400,000.

97.  And the sum of HK$150,000 was only first mentioned by Ms Chen under cross-examination.  She even said she had told Sofia to relay her offer of HK$150,000 to Mr Lee, which completely contradicted her witness statement (at §21).

98.  Further, Ms Chen admitted that Mr Lee had paid deposit of HK$151,000, plus 12 instalments (about HK$36,000) and some decoration costs.  She had no reason to refuse paying him HK$200,000 if it had been suggested.

99.  Mr Thomas Wong, counsel for Ms Chen, submits that there was nothing to be gained by Ms Chen in lying about the HK$200,000.  I am unable to agree.  The lie would undermine the rational basis of Mr Lee’s demand based on the “sale price” for the transfer.  The lie, if successful, would also reduce Ms Chen’s exposure to damages.

100.  In my view, Ms Chen had no genuine belief that the transfer of Flat 6E to her was for free.  Even on her own case, Mr Lee should receive HK$150,000.  I find that she meant in the 2010 Email that she owed him HK$400,000 and would send it to the solicitor’s office.  Any suggestion that Mr Lee had not made full discovery on this aspect could not hold water because Ms Chen has not even suggested that there were other emails mentioning anything else about the consideration for Flat 6E (or the lack of it).  I find that she did owe Mr Lee the HK$400,000 Debt.

101.  I also accept Mr Lee’s explanation for not suing for HK$400,000 previously.

H. DELYA PROPERTY

H1. Common intention over beneficial interest

102.  In around mid-2011 or March 2012, the parties resumed their romantic relationship.  On Ms Chen’s case, she decided to buy the Delya Property and paid the deposit before telling Mr Lee about it.  Mr Lee allegedly said to her that she already had Flat 6E in her sole name whereas he did not have any property of his.  Upon Mr Lee’s request for several days, Ms Chen took the trouble of going back to the estate agency to add the name of Mr Lee to the provisional sale and purchase agreement (which meant troubling the vendor as well).

103.  However, Ms Chen allegedly told Mr Lee expressly that he would not have beneficial interest in the Delya Property and he was to manage the Delya Property for her.  Whatever purchase price and expenses, profit and loss, were her sole responsibility.  He allegedly agreed. 

104.  I have considered the following 7 factors.

105.  Firstly, even on Ms Chen’s own evidence, Mr Lee was insistent on having a property of “his”, which could only mean legal and beneficial interest.  And yet, in the end, he was satisfied with effectively an answer of “no beneficial interest” from Ms Chen but took up legal liability as one of the mortgagors.  This needs only to be stated to be rejected as inherently incredible.

106.  Secondly, Ms Chen had allegedly told her brother-in-law, in the presence of Mr Lee, that Mr Lee did not have beneficial interest in the Delya Property.  This was Ms Chen’s recent invention in the witness box.  Her failure to call her brother-in-law as witness meant that his evidence would not be in her favour.

107.  Thirdly, there was an email dated 15 March 2011 wherein Ms Chen expressed her love for Mr Lee and longed for his return to her.  It was more likely than not that she had acceded to Mr Lee’s request to add his name in order to mend the relationship.  In fact, she admitted in her statement to the police that she added the name of Mr Lee to strengthen their relationship and that she seldom managed this property.

108.  Fourthly, Ms Chen was allegedly told by the agent, May, that it was not advisable to add Mr Lee as owner because he was not trustworthy.  Ms Chen acted against May’s advice, making a deliberate choice to give Mr Lee ownership.

109.  Fifthly, Ms Chen admitted in answer to the Court’s question her understanding that if she were to die, the Delya Property would belong to Mr Lee and not her family members.  She plainly knew and intended the legal consequence of adding Mr Lee’s name.

110.  Sixthly, Ms Chen claimed to be able to meet the mortgages of $938,000.  I am unable to agree.  If only Ms Chen had to bear the mortgage repayments, there was no need to make Mr Lee one of the mortgagors.  There was no need for her inform him how much the interest rate and monthly instalments were and how they could have retrieved the deposit “they paid” if 2 mortgages were taken out. 

111.  Ms Chen explained that she was inviting Mr Lee to make suggestions whereas she would remain the decision-maker.  I reject this explanation as it was plainly inconsistent with the WhatsApp message dated 7 March 2012 in which she let Mr Lee decide whether one or both mortgages should be taken out.

112.  Mr Thomas Wong invites the Court to view the WhatsApp message with the greatest degree of circumspection.  He submits that it was absurd to assume that those conversations, which occurred within a space of 10 minutes from 1607 to 1617 hours on 7 March 2012 were the only WhatsApp messages concerning the ownership of the Delya Property.  Mr Lee failed to make discovery and was a shockingly dishonest witness who had no qualms about lying in Court.

113.  With respect to Mr Thomas Wong, I am unable to see how I could draw the inference that Mr Lee was lying, as there was simply no suggestion from Ms Chen that there were other WhatsApp messages with contents material to Delya Property.

114.  Seventhly, Mr Timothy Wong refers to the tax returns filled in by Ms Chen, which showed that she acknowledged that the Delya Property was jointly owned.  However, I place little reliance on this as people may just wish to take the best tax advantage out of their legal titles.  The tax returns do not necessary reflect the agreement between co-owners.

115.  Having regard to the first to sixth factors above, I find Ms Chen version of an express agreement in paragraph 103 above to be incredible. I find that the parties’ common intention was for Mr Lee to have beneficial ownership as a joint tenant in Delya Property.

116.  Whether Ms Chen had contributed to the mortgage and other expenses in relation to Delya Property would not affect my conclusion on beneficial ownership.  The addition of Mr Lee’s name as joint owner was unreserved. The parties did not have to pay the deposit.  The rent almost covered the mortgage payments.  Once Ms Chen’s version is rejected, there was no agreement to decide beneficial interest based on monetary contribution.  This excluded even the application of resulting trust.

117.  It was true that there was little risk faced by Mr Lee in that the Delya Property was a good investment with low price and high return from a sitting tenant, but the same would apply to Ms Chen.

118.  Similarly, the fact that Ms Chen had received all the rental income would not affect my conclusion.  Mr Lee admitted for the first time under cross-examination that he had confronted Ms Chen about her refusal to collect the rent through the joint CCB HKD Account (opened since March 2012).  She refused to change her mode of collection and he stopped chasing her.  I am not surprised that Mr Lee had not pressed Ms Chen further.  After all, the rental was not sufficient to cover the 2 mortgages. 

119.  However, for completeness sake, I deal with (a) the question of mortgage repayments and other expenses and (b) Mr Lee’s case as to Ms Chen’s treatment of the HK$400,000 Debt.

H2. Mortgage repayments and other expenses re Delya Property

120.  The rental income from Delya Property (HK$5,500) was not sufficient to cover the mortgage instalments (HK$2,625.22 and HK$4,331.20), let alone the management fees.  The documentary evidence showed that management fees, rates, fire insurance premium and mortgage instalments were settled out of Ms Chen’s bank account.

121.  It is Mr Lee’s case that he had contributed HK$2,000 to HK$3,000 per month towards mortgage repayments of Delya Property.  In his oral testimony, he mentioned for the first time that instead of simply withdrawing HK$2,000 to HK$3,000 in cash from his bank account and paying the same to Ms Chen each month, he would at the start of each month withdraw a larger sum of HK$3,000 to HK$4,000, of which HK$2,000 to HK$3,000 would be paid to Ms Chen.

122.  Counsel have summarized Mr Lee’s bank evidence as follows:

	Date	Amount (HKD)
1	2.6.2012	2,100
2	9.7.2012	3,700
3	5.8.2012	3,000
4	4.9.2012	3,000
5	2.10.2012	3,000
6	4.10.2013	3,000
7	5.3.2014	3,000
8	7.4.2014	5,000
9	5.5.2014	3,000

123.  Mr Lee has only produced a broken series of statements “as samples” available for the relevant period of 25 months.  There were withdrawals larger or smaller than HK$3,000 to HK$4,000.  For nearly the whole of 2013, he had not paid the mortgage.

124.  Mr Lee was working in and out of Hong Kong in the relevant period. Although the documentary evidence was incomplete, I am inclined to accept that he did contribute at least in part to the mortgage.

H3. Ms Chen’s alleged treatment of the HK$400,000 Debt owed to Mr Lee

125.  It is Mr Lee’s case that in about March 2012 when the parties decided to formally resume cohabitation, he gave 2 options to Ms Chen: (a) to revert Flat 6E into joint ownership; or (b) repay HK$400,000 to Mr Lee so that he could buy his own property. Ms Chen allegedly opted for (a).  She re-mortgaged Flat 6E for HK$500,000 to fund the purchase of Delya Property.  Both parties allegedly treated Flat 6E as jointly owned and that the re-mortgage should be jointly borne. 

126.  It is also Mr Lee’s case that to protect his interest under the re-mortgage of Flat 6E, he had offered to pay her HK$250,000 as his share under the re-mortgage but Ms Chen rejected it.  In return, she suggested that (a) he should pay the difference between the rent, and mortgage and outgoings; that difference was HK$2,000 to HK$3,000 per month; and (b) upon sale of Delya Property, HK$500,000 shall first be applied towards settlement of the re-mortgage, balance to be divided between the parties.  Allegedly, Mr Lee agreed.

127.  In about a month’s time, there was a quarrel between Ms Chen’s mother and Mr Lee.  Mrs Chen did not agree to reversion of title of Flat 6E into joint names.  She insulted Mr Lee and told her daughter that Mr Lee resumed relationship only for the sake of getting back Flat 6E.  Following on that, Ms Chen allegedly changed her mind, in view of the rise in price of Flat 6E.  She offered to pay HK$400,000 to Mr Lee instead of making him a joint tenant of Flat 6E.  Mr Lee agreed.

128.  When assessing the credibility of Mr Lee’s version, I have taken into account the following matters:

129.  Firstly, as in March 2012, on Mr Lee’s case, Ms Chen had owed him HK$235,000 for 3½ years and HK$400,000 for 1½ years.  After resuming relationship since about March 2011 (on Ms Chen’s case), there was cause for Mr Lee to clarify the financial position before resuming formal cohabitation.

130.  Secondly, Mr Lee’s “condition” for cohabitation only mentioned HK$400,000.  Not only had he failed to seek recovery of the HK$235,000 loan, but he had offered to pay Ms Chen HK$250,000 as his share of the re-mortgage of Flat 6E.  When asked about this during cross-examination, Mr Lee explained that the two figures were separate.

131.  With respect, it made no sense.  The sum of HK$235,000 would have exceeded his share of the re-mortgage in respect of Delya Property; that would have spared him from mortgage repayments for Flat 6E.  Further, as the Court has seen in the case of Flat 19A and Flat 1C, Mr Lee had not kept figures separate. 

132.  Thirdly, Ms Chen’s alleged suggestion to apply the first HK$500,000 to pay off the Flat 6E re-mortgage was nonsensical.  By the time of sale, the re-mortgage could have been redeemed.  Why should Ms Chen have a windfall of HK$500,000?

133.  Fourthly, Mr Lee went into details in his witness statement (§23) in describing how Mrs Chen insulted him, which led to Ms Chen’s change of mind as set out in paragraph 127 above.  Ms Chen did not refute those details.

134.  Taking all circumstances into account, I find that the facts in paragraphs 125 and 127 had happened.  The rest of the details were created to boost his case. Since Mr Lee thought he would be made a joint tenant, that explained why he had contributed (as least in part) towards the mortgage payments.

135.  As Ms Chen’s change of mind was within a month or so, I do not find it surprising that Mr Lee accepted the HK$400,000 instead.

136.  I pause to note that this part about the parties’ discussion on the HK$400,000 Debt was not very important in the overall context.  I have found that Ms Chen owed Mr Lee HK$400,000 and, as analysed below, that debt remains unpaid even till trial.

I. FLAT 1C

137.  The undisputed facts were that the purchase price was funded as follows:

(a) HK$290,000 from Ms Chen;

(b) HK$280,000 from Mr Lee; and

(c) HK$1.33 million from the Wing Hang Mortgage.

138.  As for the rental income and mortgage repayments, the objective facts were that:

(1) Rental of $8,000 per month was consistently deposited into the sole name account of Mr Lee.  Monthly mortgage was paid out of Mr Lee’s account.

(2) Until the parties ceased cohabitation in May 2014, Mr Lee had consistently transferred the entire rental income from his personal account to Ms Chen’s BOC HKD Account.

139.  It is Ms Chen’s case that at the time of making the decision to buy Flat 1C, at her suggestion, it was agreed between the parties that:

(1) Since there were outstanding mortgage loans in respect of Flat 6E and Delya Property, in order to ensure that the bank would grant a mortgage loan for Flat 1C, the property should be purchased in the sole name of Mr Lee;

(2) Flat 1C should represent the parties’ joint investment and belong to them in equal shares;

(3) The parties should contribute equally to the down payment;

(4) Flat 1C was not for self-use and any rental income should first be used for repaying the mortgage instalments;

(5) Any rental income generated from Flat 1C would be given to her as living expenses;

(6) She would pay for the expenses and outgoings relating to Flat 1C, which she did; and

(7) Mr Lee would pay for the mortgage of HK$5,500 per month.

140.  The agreement was not admitted by Mr Lee.  He claims that he had always wanted a property in his sole name.  There were 3 separate conversations, in each of which Ms Chen expressly confirmed that the payments would be used to repay her debt of HK$400,000.

141.  With regard Ms Chen’s case:

(1) She had bank documents showing:

(a) HK$100,000 paid on 16 April 2012 was annotated with “1/F C 臨約訂金”；

(b) HK$90,000 paid on 26 April 2012 was annotated with “1/F C大訂轉入律師樓”; and

(c) HK$100,000 paid on 28 June 2012 was not annotated, but the completion date was on 29 June.

(2) Those contemporaneous annotations were not challenged in cross-examination.

(3) If Ms Chen had intended to repay part of the HK$400,000 Debt to Mr Lee, she would have used different words.  It made no sense for her to make secret annotations if she did not have beneficial interest in Flat 1C.

(4) There was nothing to show that the parties’ relationship was facing break-up such that Ms Chen had to manufacture evidence then.

142.  However, Ms Chen’s case was self-contradictory.  How could rent be used both for repaying the mortgage and her living expenses at the same time in accordance with the oral agreement? 

143.  Further, Flat 1C was not rented out for the first 5 months since completion.  She had not received household maintenance from Mr Lee. Meanwhile, he had paid the monthly mortgage on his own.  When Flat 1C was leased out, Ms Chen received “double benefit” in the sense of receiving Mr Lee’s half share of the rent and did not have to pay her half share of the mortgage. 

144.  Ms Chen paid the outgoings until June 2014, shortly after the parties ceased cohabitation. The amount was only about $1,000 per month (including management fees of HK$674 per month), rent and rates.

145.  There was piecemeal documentary evidence of Ms Chen’s expenses on air conditioners and repair costs.

146.  In my view, the expenses in the 2 preceding paragraphs were not in themselves sufficient to establish Ms Chen’s case of 50% beneficial interest. An occupier without beneficial interest would have paid management fees and rates anyway.  The expenses on air conditioners and repair appeared to have been incurred whilst Flat 1C was on lease, and one-off.  They could not reflect beneficial ownership.

147.  Ms Chen, on amending paragraph 46 of her witness statement, had to admit that she and Mr Lee had not been making equal contribution (付出不對等).  I find that she had exaggerated her contribution in her original witness statement to boost her case.

148.  On Mr Lee’s side, the 3 separate conversations were not mentioned in his pleading or witness statements.  They were not put to Ms Chen in cross-examination except along the lines that, “We admit you had paid HK$290,000 as the purchase price of Flat 1C.  But if you owed the Defendant money at that time, then that would be repayment.”  In my view, the 3 separate conversations bore the hallmarks of recent invention and I reject the same. 

149.  Mr Lee denied that he had ever forwarded the rental income to Ms Chen.  Instead he claimed that he had merely paid her a sum of HK$6,000 to HK$8,000 every month, to be used as family expenses. He further claimed that those payments were unrelated to the rental income generated by Flat 1C and that he began making those payments in April 2012.

150.  However, Flat 1C was only leased out in November 2012 (5 months after completion). There was nothing to show that Mr Lee had paid Ms Chen any such sums before that. Moreover, bank documents that were disclosed showed that Mr Lee’s payments were invariably identical to the rental income, instead of fluctuating between HK$6,000 and HK$8,000.

151.  Taking into account all the circumstances in this section, I reject each party’s case as to the agreement or conversations before purchase of Flat 1C.  Based on Ms Chen’s contribution only to the downpayments, on resulting trust principles, I find Ms Chen and Mr Lee’s share to be 15.3% and 84.7%. 

J. FUNDS CLAIM FOR RMB102,348.07

152.  The answer to this claim turns on who put the initial RMB100,000 into the account.

153.  The parties opened two accounts on 10 March 2012.  I accept Mr Lee’s evidence that they wanted to have a joint name account to collect the Delya Property rent, a point which Ms Chen now conceded in her amended witness statement.  Two days later, a time deposit was established using the RMB100,000, which was renewed on maturity.

154.  It is Mr Lee’s case that he brought RMB105,000 cash to the bank and Ms Chen wanted to have her name added to the account.  He claimed, for the first time under cross-examination, that those monies were reimbursements given to him by his employer and were accumulated over time.  He no longer possessed the supporting documents, having given them to his employer.

155.  On the other hand, Ms Chen’s bank documents showed that: (a) she had withdrawn RMB50,000 each on 8 and 9 March 2012, right before the CCB RMB Account was opened on 10 March 2012; and (b) the RMB100,000 in turn originated from 5 deposits of RMB20,000 each made between 9 and 15 April 2010.

156.  It may appear strange that Ms Chen would have wanted to use Mr Lee as her nominee when she could have opened a deposit account herself.  She could have used auto-renewal of the deposit and managed the account herself at Tsimshatsui where she was posted to work. 

157.  However, the RMB100,000 had been sitting in her account for about 2 years. It was more probable than not that she had listened to Mr Lee’s advice that CCB offered a higher interest rate for time deposits.  That was why she deposited the RMB100,000 into the CCB account. As the parties’ relationship was good at that time, I do not think Ms Chen’s conduct in trusting Mr Lee as her nominee was unreasonable.

158.  Whilst Mr Lee’s case was entirely built on bare assertions, Ms Chen’s case was supported by contemporaneous bank documents.  She was not shaken in cross-examination.  Mr Lee was not able to explain where else Ms Chen’s initial RMB100,000 could have gone. 

159.  Further, the deposit was unilaterally withdrawn by Mr Lee about 6 months before maturity.  (By then, the parties had separated.)  It led to a loss of interest in the sum of RMB3,066 and administration fee of RMB160.37.  I agree with Mr Thomas Wong that it was precisely because the money did not belong to Mr Lee that he did not care about the loss.

160.  On balance of probabilities, I hold that the initial deposit of RMB100,000 had come from Ms Chen.  Her Funds Claim is substantiated.

K. INVESTMENT CLAIM FOR RMB200,000

161.  According to Ms Chen, in around October 2013, upon a friend’s introduction, Ms Chen wished to invest in the PRC stock market and asked Mr Lee to help her to open a securities account in Shenzhen. Mr Lee told her that to do so, she must provide a Mainland address; and that since he had a Mainland address, the securities account could be opened in his name.  Ms Chen agreed. Accordingly, the RMB200,000 was transferred from Ms Chen’s bank account to Mr Lee’s BOC PRC Account.

162.  On the other hand, Mr Lee claimed that it was repayment of the loan of HK$235,000 to him.  On Mr Lee’s evidence, it was after making the payment that Ms Chen told him that it was for the purpose of repayment of the loan.  Ms Chen did not explain why she suddenly decided to repay this 5-year old loan.  Mr Lee could only guess that she had too much money at that time.

163.  It was only in the witness box that Mr Lee first mentioned that the parties had express discussion as to treatment of that RMB200,000.  Again, it had all the appearance of a recent invention.

164.  Further, Ms Chen had exchanged HK$254,000 for RMB200,000 with a friend on 8 October 2013 before transferring the same RMB200,000 to Mr Lee 3 days later. This was supported by documentary evidence.  If Ms Chen had volunteered the repayment, she could have simply transferred HK$235,000 to Mr Lee (as it was a Hong Kong dollar loan) instead of converting the money into RMB first.

165.  On balance, I accept Ms Chen’s version.  The Investment Claim is substantiated.

L. COUNTERCLAIM FOR HK$110,000

166.  The parties broke up after a heated quarrel on 7 July 2014.  On the following day, Mr Lee transferred the RMB 100,000 before its maturity to his own account.  Then, in the small hours of 9 July 2014, he transferred another sum of HK$150,000 from Ms Chen’s BOC account (to which he had access) to his own BOC account.  On 12 July 2014, upon the confrontation of Ms Chen, Mr Lee allegedly admitted that he had taken the money.

167.  Ms Chen reported to the police on 9 and 13 August 2014.  Meanwhile, Mr Lee had, through the police returned the HK$150,000 to Ms Chen. 

168.  Mr Thomas Wong submits that the significance of these events was that Mr Lee would not have returned the HK$150,000 to Ms Chen if Ms Chen was really indebted to him for HK$110,000 and RMB50,000. 

169.  However, that submission was not put to Mr Lee in cross-examination. Given that Ms Chen had reported the matter to the police in respect of the specific sum of HK$150,000 but not other sums taken away by Mr Lee, I cannot exclude the possibility that Mr Lee returned the money only out of concern for criminal consequences, as opposed to lack of belief that Ms Chen owed him money.

170.  By reason of the analyses in section G (on Flat 6E), Ms Chen owed Mr Lee HK$400,000 and the counterclaim for HK$110,000 was part of it.

171.  Mr Thomas Wong submits that this counterclaim was time-barred under section 4(1)(a) of the Limitation Ordinance, Cap 347 (“LO”).  There was no part payment within the meaning of section HK$2,000 to HK$3,000 per month of LO which could revive the cause of action.  A unilateral appropriation by the creditor of a sum received towards the payment of a debt could make it a part payment in respect of that debt: Re Lau Wan, ex parte (a debtor) [2013] 3 HKLRD 567, §28-29, Anthony Chan J. 

172.  However, under section 19(1) of LO, “No action shall be brought to recover any principal sum of money secured by a mortgage or other charge on property, or to recover proceeds of the sale of land, after the expiration of 12 years from the date when the right to receive the money accrued.”

173.  The HK$400,000 were proceeds arising out of sale of Flat 6E to Ms Chen.  The right accrued on 3 August 2010, at the latest.  Mr Lee was not time-barred when he filed the original counterclaim in HCA 356/2017.

M. COUNTERCLAIM FOR RMB50,000

174.  Mr Lee claimed that this was a loan to Ms Chen.  However, there was no explanation as to how this loan came about.

175.  Ms Chen agreed that she has received this sum but could not recall the purpose of this transfer.  She suggested that it most likely belonged to one of her clients who wanted to transfer some of his/her RMB from the Mainland to Hong Kong for properties and insurance policies.  As Mr Lee worked in the Mainland, Ms Chen would sometimes instruct her clients to transfer the RMB to Mr Lee’s PRC account, whereupon Mr Lee would either take the cash to Hong Kong or transfer the money to her personal RMB account.

176.  Ms Chen tried to support this averment with the customer’s advices to show that between 20 December 2012 and 21 March 2013 there had been numerous substantial withdrawals from Mr Lee’s PRC bank account, ranging from RMB40,000 to RMB180,000, but none covered the present RMB50,000.

177.  However, Ms Chen has shown that she did not need to borrow RMB50,000 on 18 October 2013, because, as seen from her bank statement, she had over HK$1 million in her BOC HKD Account and over HK$400,000 worth of shares in her securities account.  

178.  Further, if Ms Chen had needed to borrow RMB50,000 on 18 October 2013, she would unlikely have made the alleged repayment of RMB200,000 seven days earlier, or she would have repaid RMB50,000 less. 

179.  The submission in the 2 preceding paragraphs is weighty.  Applying Big Island v Wu Yi, I am not satisfied on balance of probabilities that Mr Lee has shown that the RMB50,000 was a loan to Ms Chen.

N. ANSWER TO THE ISSUES

180.  From the above analyses, it can be seen that neither party were completely honest or reliable.  Ms Chen exaggerated her case on Flat 19A and Flat 1C.  She was evasive as regards the HK$400,000 Debt.  She denied Mr Lee’s interest in Delya Property when she plainly knew the consequence of making him a joint owner.

181.  As for Mr Lee, his evidence contained recent invention and was inconsistent with bank documents, eg as regards Flat 1C.  There were invention of details, eg as regards Delya Property.

182.  I answer the issues as follows.

183.  In respect of Delya Property, there was a pre-acquisition common intention between the parties that this property would be beneficially owned by them as joint tenants.  There was no question of detrimental reliance because not only Ms Chen but Mr Lee had also borne some of the monthly instalments under the 2 mortgages relating to Delya Property.  Resulting trust did not apply as, having rejected Ms Chen’s case, there was nothing to indicate that beneficial ownership should be decided in accordance with the amount of financial contribution to the purchase price or expenses in relation to this property.

184.  There is no point in partitioning this property.  It ought to be sold with the net proceeds distributed between the parties in equal shares.

185.  In respect of Flat 1C,

(1) I do not accept Ms Chen’s version on the agreement.

(2) However, her payment of HK$290,000 amounted to her direct contribution to the purchase price of this property.

(3) Ms Chen owed Mr Lee the HK$400,000 Debt.  Despite that, I am not satisfied that there was agreement that the HK$290,000 which Ms Chen paid was intended to be part repayment of that debt. 

(4) Ms Chen paid for the expenses and outgoings in relation to Flat 1C but it was small contribution compared to the full rental she had received and the mortgage she was spared from repaying.

(5) There was no reliable evidence on what the parties’ agreement was.  On resulting trust principle, Ms Chen should have 15.3% interest in this property.

186.  In relation to the Investment Claim, the transfer of RMB200,000 from Ms Chen’s BOC PRC Account to Mr Lee’s BOC PRC Account on 11 October 2013 was for Mr Lee to invest in the PRC stock market on her behalf.  It was not intended to be repayment of the loan of HK$235,000, advanced in September 2008.  The HK$235,000 was not her profit from Flat 19A.

187.  However, the claim for total failure of consideration and a Quistclose trust is inconsistent.  For the former, there was no investment and all that Mr Lee had to do was to repay the RMB2 million.  For the latter, Mr Lee had to give an account.

188.  In the present case, as Mr Lee thought it was repayment of a loan to him, the proper inference is that he had not invested on behalf of Ms Chen. There was a total failure of consideration and Mr Lee should return the money to her.

189.  In relation to the Funds Claim, the initial deposit of RMB100,000 had come from Ms Chen’s money.  Mr Lee should return the money to Ms Chen.  In addition, Mr Lee should compensate Ms Chen for her loss of RMB3,066.00 for withdrawal before the maturity date, and administration fee of RMB160.37.

190.  In respect of the counterclaim for HK$110,000, Mr Lee did not transfer his interest in Flat 6E to Ms Chen for free.  She owed him the HK$400,000 Debt arising out of that transfer.

191.  Unfortunately, the counterclaim has only prayed for HK$110,000.  There is no related claim for damages, tracing or restitution for unjust enrichment. Mr Timothy Wong invites the court to grant relief under the general prayer for “just and equitable relief”.  With respect, the HK$290,000 was a legal debt and not equitable claim.  I do not think there is room to grant such specific relief under the general prayer.  Accordingly, the Court can only award the sum of HK$110,000 to Mr Lee.

192.  This claim was not time-barred as it was brought within the 12-year limitation period laid down by section 19(1) of LO.

193.  In relation to the counterclaim for RMB50,000, although Ms Chen has received it and could not tell what it was for, she has shown that she did not need to borrow from Mr Lee.  There was no proof from Mr Lee that it was a loan.  This counterclaim should be dismissed.

O.  CONCLUSION AND COSTS

194.  I order as follows:

On the claim,

(1) In respect of Delya Property, Ms Chen’s prayer for a declaration that this property has been held on trust by Mr Lee for her is dismissed;

(2) In respect of Flat 1C,

(a) There be a declaration that Mr Lee held and continues to hold 15.3% of the beneficial interest in Flat 1C on trust for Ms Chen;

(b) There be an account by Mr Lee of all benefits, monies, income and/or profits that may have been received by him in connection with Flat 1C to the extent of 15.3% share which Mr Lee held and holds on trust for Ms Chen; and payment of any and all amounts found to be due upon the taking of such account to Ms Chen;

(c) Flat 1C be sold and the net proceeds be distributed to each party in the proportion of 15.3% for Ms Chen and 84.7% for Mr Lee;

(3) In respect of the Investment Claim,

(a) Mr Lee do return the sum of RMB200,000 to Ms Chen;

(b) On a nisi basis, there be interest on such sum at P + 1% per annum from the date of writ to the date of judgment and thereafter at judgment rate until payment;

(4) In respect of the Fund Claim,

(a) Mr Lee do return the sum of RMB100,000 to Ms Chen;

(b) Mr Lee to pay compensation to Ms Chen in the sum of RMB3,066 and RMB160.37;

(c) On a nisi basis, there be interest on the sums in (a) and (b) at 2.2% per annum from 8 July 2014 to the date of judgment and thereafter at judgment rate until payment;

On the counterclaim,

(5) Delya Property be sold and the net proceeds of sale be distributed to each party in equal shares;

(6) Ms Chen do pay the sum of HK$110,000 to Mr Lee;

(7) On a nisi basis, there be interest on the sum of HK$110,000 at P + 1% per annum from 3 August 2010 to the date of judgment and thereafter at judgment rate until payment;

(8) The counterclaim for RMB50,000 be dismissed;

(9) There be liberty to apply, including for directions pertaining to conduct of the sale of Delya Property and Flat 1C; and

(10) There shall be set-off of the money judgments against one another with the net balance to be paid.

195.  Interest under paragraphs 194(3)(b) and (7) is to compensate for loss of use of money on commercial rate.  Interest under paragraph 194(4)(c) is based on average interest rate when the money was put on deposit.

196.  Since the parties have succeeded on some aspects of her/his case, I am of the view that there should be an overall order for there to be no order as to costs.

197.  I am most grateful to Mr Thomas Wong and Mr Timothy Wong for their industry.  Their agreed facts and helpful submissions have greatly facilitated the writing of this judgment.