LIU CHAN KUEN v. LIU YIN PING AND OTHERS

DCCJ 15811/2000

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO. 15811 OF 2000

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J U D G M E N T

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1. This is a claim by the Plaintiff against the Defendants for recovery of possession of premises known as Flat C on the 9th Floor of Lisa House at Nos.33-37 Nelson Street and Nos. 12-14A Yim Po Fong Street, Kowloon, Hong Kong (hereinafter called "the suit Premises"). The facts show that the suit Premises was purchased by the late father of the Plaintiff, Mr. Liu Sheung Lam and late stepmother, Madam Lau Chung Ying (hereinafter referred to as "Madam Lau") of the Plaintiff who held the property as joint tenants. The two were together the parents of the 1st named Defendant (hereinafter referred to as "the late parents").

2. The Plaintiff's father Mr. Liu Sheung Lam died on the 13th June 1995. Madam Lau Chung Ying became the sole owner of the suit premises.

3. The 1st named Defendant is the youngest child being the daughter of the late parents. The 2nd named Defendant is the husband of the 1st named Defendant and the 3rd named Defendant is the infant daughter of the 1st and 2nd named Defendants.

4. On or about the 12th December 1999, the Defendants moved into the suite Premises and resided therein.

5. It is the Plaintiff's case that a Deed of Gift dated the 25th January 2000 transferring the suit Premises to the Plaintiff was executed by Madam Lau Chung Ying in the presence of Mr. Anthony Tang Wing Tung, a solicitor who prepared the Deed of Gift.

6. Madam Lau Chung Ying passed away on the 7th September 2000 at Queen Elizabeth Hospital, Hong Kong. It is the Plaintiff's case that the Defendants resided in the suit Premises under a license at will, they having been permitted by the late Madam Lau Chung Ying to reside there. And at the death of Madam Lau, the license at will was revoked.

7. The Plaintiff by his solicitors sent a letter dated the 26th September 2000 by ordinary post on the 27th September 2000 to the Defendants revoking the license at will and demanding the Defendants to vacate and deliver up the suit premises to the plaintiff not later than 14 days from the date of the letter. The Defendants failed to vacate the suite Premises. By this action the Plaintiff seeks recovery of possession of the suit premises and claims damages or mesne profit from the date of writ until date of delivery up of possession.

8. The Defendants dispute the action. The 1st named Defendant denied that the Plaintiff became the sole owner of the suit Premises upon the death of Madam Lau. The 1st named Defendant contended that upon the death of Madam Lau the 1st named Defendant became beneficially entitled to a share in the suit premises by virtue of the following:-

(1) Madam Lau died intestate, leaving no husband but four issue including the first named Defendant, for whom the residuary estate of Madam Lau is held on statutory trusts.

(2) The suit premises comprised part of the estate of Madam Lau, as the alleged Deed of Gift ("the Deed") purportedly vesting title in the Plaintiff is null and void.

(3) At the time when the said Deed was purported to have been executed, Madam Lau was not of sound mind, memory or understanding.

(4) Further or alternatively, Madam Lau was induced to sign the said Deed whilst acting under the influence of the Plaintiff, who purports to be an illegitimate son of Madam Lau's husband.

(5) Further or alternatively, the Defendants case is that the 1st named Defendant is an equitable tenant having a proprietary interest in the suit premises having relied on the promises of Madam Lau that the suit Premises would belong to the 1st named Defendant and Liu Yin Ling. In reliance of the said promises she paid for the decoration of the suit Premises in the sum of $200,000 and moved into the suit Premises to take care of Madam Lau. The Plaintiff, whose purported title (which is denied) to the suit premises was obtained from Madam Lau as a volunteer, is estopped from saying that the Defendants occupy the suit premises as mere licensees at will.

9. And the 1st named Defendant Counterclaims as follows:-

(1) A Declaration that the first named Defendant is an equitable tenant in common of the suit premises;

(2) A Declaration that the said Deed of Gift purportedly assigning the suit premises to the Plaintiff and the Deceased as joint tenants is null and void;

(3) An Order that the Plaintiff do execute and deliver to the first named Defendant a transfer of the suit premises into the joint names of the first named Defendant and the personal representatives of the Deceased as tenants in common in such shares as the Court shall determine;

(4) Alternatively, a Declaration that the suit premises which is registered in the name of the Plaintiff as the sole surviving joint tenant is held by the Plaintiff on trust for himself and the first named Defendant in shares as the Court shall determine;

(5) An Order that the first named Defendant may be appointed Trustee of the said trust jointly with the Plaintiff;

(6) An Order that the Plaintiff do execute and deliver to the first named Defendant a transfer of the suit premises into the joint names of the first named Defendant and the Plaintiff as tenants in common in such shares as the Court shall determine.

10. The issues in this case are:-

(1) Whether the Deed of Gift dated 25th January 2000 whereby the suit premises situated at Lisa House, Nelson Street, Mongkok ("the suit premises") was transferred to Madam Lau and the Plaintiff as joint tenants is null and void by reason that at the time of the purported execution of the Deed of Gift, Madam Lau was mentally unfit to sign legal documents;

(2) Whether Madam Lau, at the time of the execution of the Deed of Gift, was acting under the undue influence of the Plaintiff, her stepson;

(3) Whether the 1st named Defendant has established her case that she is an equitable tenant having a proprietary interest in the suit premises by virtue of her reliance on the promise made by Madam Lau that the 1st named Defendant would be entitled to the suit premises together with Liu Yin Ling and by virtue of the expenditure of a total sum of about HK$200,000 by the 1st and/or the 2nd named Defendants in the renovation of the suit premises.

The Plaintiff's Evidence

11. The witnesses who gave evidence on behalf of the Plaintiff were Mr. Tang Wing Tung Anthony, the Plaintiff himself, Liu Yuen Fong, Liu Yuen Kwan, Liu Woon Kwan, Liu Kam Tim and Liu Kuk Ying.

Evidence of PW1 Tang Wing Tung Anthony

12. He is the Solicitor who prepared the Deed of Gift transferring the suit Premises from the sole name of Lau Chung Ying Deceased (hereinafter referred to as "Madam Lau") to the joint names of Madam Lau and the Plaintiff.

13. He stated that he received a phone call from the Plaintiff requesting him to prepare a Deed of Gift transferring the suit Premises from Madam Lau to Madam Lau and the Plaintiff as joint tenants and to bring such Deed of Gift to Queen Elizabeth Hospital to be signed by Madam Lau and himself. He informed the Plaintiff that he needed time to do that.

14. A few days later, he completed the preparation of the documents. He telephoned the Plaintiff. The Plaintiff informed him that Madam Lau had now been discharged from hospital.

15. PW1 did not know the Plaintiff. He had been recommended to the Plaintiff by a mutual friend. On the day when he brought the Deed of Gift to Madam Lau to be signed, PW1 met the Plaintiff at the China Travel office nearby and the Plaintiff took PW1 to the suit Premises.

16. At the suit Premises, he met with Madam Lau. He saw an Indonesian maid in attendance on Madam Lau.

17. The Plaintiff introduced PW1 to Madam Lau. PW1 enquired of Madam Lau whether it was her wish to transfer the suit Premises into joint names of herself and the Plaintiff. She said "yes". He explained to Madam Lau the effect of holding a property in joint tenancy. The effect would be that when one joint tenant passes away the property would be left in the sole name of the one surviving. He also brought with him the Assignment wherein Madam Lau purchased the suit Premises in the names of herself and her late husband and informed Madam Lau that the effect of a joint tenancy was the same as when she held the suit Premises in joint names of herself and her late husband. He asked her whether that was what she wanted. She stated "yes".

18. PW1 asked to see the I.D. card of Madam Lau. He checked with her whether she would sign by a "X" as that was the manner in which she signed in the Assignment. She said "yes". PW1 then explained the Deed of Gift word by word to Madam Lau. Madam Lau signed in his presence.

19. PW1 stated that he found Madam Lau to have been mentally clear as she was able to answer his questions and she looked mentally alert. Further he had found out that Madam Lau had been in hospital previously for pain in her legs.

20. PW1 stated that he did not think it was a situation wherein he should advise Madam Lau to seek independent legal advice before signing the Deed of Gift. He stated that if he had to take the Deed of Gift to the hospital for Madam Lau to sign she would ask the Doctor to be present and if she demonstrated that she was not mentally clear, he would ask her to seek independent legal advice.

Evidence of PW2 the Plaintiff

21. He is the stepson of Madam Lau. His father and his natural mother lived together with him in Hong Kong. When he was about two years old, Madam Lau came to live in Hong Kong from Mainland China. His natural mother and Madam Lau could not get on. His own mother left the family leaving him with his natural father and Madam Lau.

22. He has 4 sisters, Liu Yuen Fong, his elder sister, Liu Yuen Kwan, Liu Yin Ping and Liu Yin Ling his younger sisters.

23. His parents purchased the suit Premises in 1984 and held the suit Premises as joint tenants. His father passed away in June 1995.

24. His elder sister Liu Yuen Fong returned from Canada to Hong Kong on 17 January 2000. She went to the hospital to visit Madam Lau. Since about 20 Jan 2000 Madam Lau informed his elder sister Liu Yuen Fong that she wanted to see a Solicitor to have the suit Premises transferred into the joint names of herself and the Plaintiff. Madam Lau asked her to look for a Solicitor to attend to this. Liu Yuen Fong asked him to make arrangements for this.

25. His friend introduced him to Mr. Tang, PW1. The Plaintiff told him to prepare the document and to go to the hospital to have Madam Lau sign it.

26. On 21 January 2000, Madam Lau's doctor telephoned Liu Yuen Fong to inform her to arrange for the discharge of Madam Lau from hospital. The Plaintiff telephoned Liu Yuen Kwan. Whilst attending to Madam Lau being discharged from hospital, Madam Lau kept saying why Leung Kai Cheung was not there as he had promised to take her out of hospital.

27. On 25 January 2000, Mr. Tang telephoned him and said he had prepared the documents. The Plaintiff told him Madam Lau had been discharged from hospital. He arranged with Solicitor Tang to meet him at the office of China Travel Service. Madam Lau telephoned Liu Yuen Fong and Liu Yuen Kwan to ask them to come home as the solicitor would come and she would sign the Deed of Gift. Liu Yuen Fong said she lived in Tai Po and could not come out so soon. Liu Yuen Kwan said she had to cook for her son. He met Solicitor Tang and took him to the suit Premises and introduced him to Madam Lau. The Indonesian maid helped Madam Lau into her bedroom to sit at the chair at her desk.

28. Solicitor Tang asked Madam Lau, "Is this your son?" Madam Lau said "Yes". Solicitor Tang asked, "Do you want to transfer the property into the joint names of yourself and your son as joint tenants?" Madam Lau said "Yes". Solicitor Tang wanted to see her I.D. Card. He then brought out the documents to explain to Madam Lau that it was a Deed of Gift to transfer the property into herself and the Plaintiff as joint tenants. He also explained to Madam Lau that when she purchased this property she did so in the joint names of herself and the Plaintiff's late father as joint tenants. He also said that when he first purchased the property she signed her signature with a cross. He explained to her the Deed of Gift clearly. The Deed of Gift is at between pages 2 - 7 of the Bundle of Court Documents. He could see the places at page 6 where his Mom signed with a cross.

29. The whole process took about 10 minutes. He then took Solicitor Tang downstairs. His sisters Liu Yuen Fong and Liu Yuen Kwan came to the suit Premises at about 2 p.m. Their Mom told them in the Plaintiff's presence that she had signed the Deed of Gift. Their Mom requested Liu Yuen Kwan and Liu Yuen Fong not to tell the Liu Yin Ping and Liu Yin Ling as they were not in agreement with this action of hers. Madam Lau asked them to keep it confidential so as not to create problems. They agreed.

30. Thereafter Liu Yuen Fong came to visit Madam Lau every day. On 27 January 2000 Madam Lau was admitted to hospital because she had a fever and her legs were painful. Liu Woon Kwan the cousin of the Plaintiff's father went to visit Madam Lau in hospital.

31. After Madam Lau passed away on 7 September 2000, the Plaintiff gave instructions to Solicitor Tang to write to the 1st and 2nd named Defendants to ask them to move out. The 2nd named Defendant telephoned him and asked him to give them $300,000.00. If he did not do so, he should let them live in the suit Premises for 3 years rent free. He told his relatives about this. They said, "this is like blackmail". He therefore refused. He then took out these proceedings. The 2nd named Defendant said that they had paid $300,000.00 for the decoration of the suit Premises. However, to his knowledge it is Madam Lau that paid for it. He also said that Liu Yin Ling did not get cash gift from his mother and was not happy.

32. His relationship with Madam Lau was good. He used to buy really good fruits to visit her. He would take Madam Lau out for tea and would not allow her to pay. In the past, Madam Lau had helped put down a HK$20,000.00 for him to purchase a home ownership scheme property. He had since paid it off. When his son was born, she was very happy and she asked him to go to their home village in Mainland China to light up the lamp - a ritual we have as a Hakka people. So they went together for one week.

33. His father loved every one of his children equally.

Evidence of PW3 Liu Yuen Fong

34. She is the elder half sister of the Plaintiff. She migrated to Canada in 1993 and has since then resided in Canada. She stated that on 17 January 2000, she returned to Hong Kong to visit her mother. Upon landing at the airport, she immediately went to the hospital to see her mother. Madam Lau was very happy to see her. A few days after her return, Madam Lau told her that as she was the eldest, she wanted PW3 to look for a solicitor for her. She wanted to change the ownership of the property to add the name of the Plaintiff as a joint tenant with her. Madam Lau told her that this was because the Plaintiff was the only son of her husband. PW3 telephoned her younger sister Liu Yuen Kwan to inform her of that.

35. She telephoned the Plaintiff to ask the Plaintiff to arrange for a solicitor to prepare the documents.

36. On the day when the solicitor went to the suit Premises with the documents for her mother to sign, her mother telephoned her and asked her to go to the suit Premises as the solicitor has come. PW3 stated that as she lived far away, by the time she arrived, the solicitor had gone. When she got to the suit Premises, her mother said, "You have failed to see the solicitor". She stated that the solicitor had completed it. She stated that "the Plaintiff had arranged for you to meet him for tea." And she said "go to the restaurant to meet with the Plaintiff." She said "when I pass away in due time, the property would belong to the Plaintiff."

37. PW3 then went to the teahouse to meet the Plaintiff for tea. Liu Yuen Kwan and the Plaintiff's wife as well as the Plaintiff were there. After tea, she, together with Liu Yuen Kwan and the plaintiff's wife went to visit Madam Lau. Madam Lau told PW3 not to tell Liu Yin Ping and Liu Yin Ling about the Deed of Gift. She was afraid they would cause trouble. She said, "as far as parents' property are concerned, they should have the right to give their property to whomever they want".

38. PW3 stated that her mother's mental state was clear. Madam Lau knew what she had done. She informed PW3 that she had added the name of the Plaintiff as owner to the property and as far as parents were concerned they could give their property to whoever they wanted.

39. PW3 stated Madam Lau was good to the Plaintiff and treated the Plaintiff as if he were her own son. Madam Lau stated that she did this Deed of Gift because the Plaintiff was the only son of her late husband. All of the sisters had gotten married.

40. Every day whilst she was in Hong Kong, she went to visit her mother. She found her mother to be in a good mental state during the time she was in Hong Kong. Even after her mother went back into hospital on 26 January 2000, she did not hear the nurses say that her mother shouted or was disorientated or mistook the nurses for her daughters. When she visited her mother at the hospital, her mother could recognize her from a distance.

41. She never heard her mother say that she would give the suit Premises to the 1st named Defendant. However, her mother told her that the 1st named Defendant had always wanted her to transfer the property to the 1st named Defendant. Her mother was angry about that and said that the 1st named Defendant was greedy. When she asked her mother what she would do in response to the 1st named Defendant's request, her mother said, "Of course not. You are all married. Even if it were right to give the property to a daughter, you would want it to be transferred to all of you?"

42. Before PW3 came back from Canada, she had heard Madam Lau say that if the Plaintiff's wife had a son, then she would transfer the property to the Plaintiff. Her Mom did not say to her that the Plaintiff had asked her to add his name to her title to the property.

43. Before that, when her Mom was in Canossa Hospital, her Mom told her uncle that she wanted to gift the property to the Plaintiff.

44. In relation to the decoration of the suit Premises, her Mom told her that she had paid $250,000.00 for the decoration.

45. PW3 stated that her mother had four Savings Accounts at four different Banks. She had over $100,000.00 in each account. However after her mother's death, she found that there was no money in the accounts. Her mother had told her that for convenience she had added the name of the 1st named Defendant to some accounts.

46. PW3 stated that her mother had lent her husband $1 million in December 1997. He did not tell her before he borrowed from her mother. He told her afterwards. Her mother also told her. Her husband had repaid about 70 to 80% of that and he paid for her funeral expenses that came to over $200,000.00. The plot of ground in the cemetery alone cost $130,000.00. She stated that if Madam Lau did not sign the Deed of Gift, she knew that the property would be divided equally between the 5 siblings.

Evidence of Liu Yuen Kwan

47. She stated that the relationship between her late mother and the Plaintiff was good. The Plaintiff usually went to visit her late mother or take her out for tea or speak to her on the telephone. Her late mother was concerned for the Plaintiff.

48. The relationship between her late mother and Liu Yin Ping was sometimes good and sometimes not so good. Her late mother said to her on the telephone that Yin Ping is not genuinely good to her. She wants her late Mother's money and the suit Premises. Her mother has always stated that the suit Premises is a property of the Liu family. It had to be passed on to the male heir of the Liu's family.

49. On the 20 January 2000, her elder sister, Yuen Fong telephoned her and said that she went to the hospital to visit their mother. Their mother asked her to look for a solicitor to transfer the property to her. PW3, Yuen Fong asked her whether she was in agreement with that. She told Yuen Fong that she was. On the 22nd January 2000, the plaintiff and her went to the hospital to collect Madam Lau from the hospital. She was very happy and said that she wanted to transfer the property to the Plaintiff.

50. On the 23 January 2000, she went to the suit Premises to have dinner with her late Mom. Liu Yuen Fong and the Plaintiff were there. Her late mother appeared to be in good spirits even though her legs were causing her pain.

51. On the 25 January 2000, the Plaintiff telephoned her and asked her to go to the suit Premises as the solicitor had come. She said she could not come. When she got to the suit Premises it was past 2 p.m. However under cross-examination, she said that she had gone to the teahouse to have lunch with PW3 and the Plaintiff and after lunch they all went to the suit Premises.

52. She saw her late Mom was very happy and said that she had transferred the suit Premises into the joint names of herself and the Plaintiff as joint tenants. Her late mother was clear-headed and very happy. She told them not to tell Liu Yin Ping, the 1st named Defendant and Liu Yin Ling as they would cause trouble.

53. At the end of January 2000, her aunt Liu Kuk Ying telephoned her. She told her that Madam Lau had informed her that she had transferred the property into joint names with the Plaintiff. Her aunt asked her if that was true. PW4 stated that it was true.

54. At about the end of April or early May 2000, Liu Yin Ling telephoned her and asked her if Madam Lau had transferred the property to the Plaintiff and herself. She informed Liu Yin Ling that it had been done. Liu Yin Ling asked why she did not tell her. She stated that their mother told her not to tell Yin Ling and Yin Ping as they could cause trouble. Liu Ying Ling suggested to her to ask the Plaintiff to sell the property to divide the proceeds between the five of them. Each of them would get between $300,000.00 to $400,000.00. She said "No, I want to follow mother's wishes". Liu Yin Ling said, why won't you make a claim on it. PW4 stated that she would not. Liu Yin Ling stated that if she succeeded in claiming her share, she would not have a share.

55. In relation to the decoration, she stated that her mother told her that the decoration, done in Oct - Dec 1999, was at the suggestion of the 1st named Defendant. Her mother told her that her mother suggested to the 1st named Defendant to decorate only one room. The 1st named Defendant wanted to decorate the whole property. Her mother told her that she paid for the decoration. $230,000.00 was for the decoration and $20,000.00 was for the furniture. Her mother told her that she had told the 1st named Defendant that when she died the property had to go to the Plaintiff although the 1st named Defendant could live there during her life-time.

56. She stated that her relationship to her mother was good. She visited her mother frequently and her mother would speak to her on the telephone. She stated that the Plaintiff is honest, filial and is good to her mother. He treated her mother as his own natural mother.

57. The Plaintiff had never stated that he wanted the property to be transferred into his name.

58. Under cross-examination she stated that her relationship with the Plaintiff was so, so but she added that it is good. Her relationship with Yin Ling is good. However Yin Ping could not get on with all of them. However their mother treated everyone on an equal footing.

59. She stated that the Plaintiff was concerned for Madam Lau. She stated that because the 1st named Defendant lived with her mother, when her mother went into hospital it was the 1st named Defendant who took her to the hospital. The 1st named Defendant also took her to see the doctor. However all the children took care of their mother. They went to visit and if there was a need they looked after her.

60. She was cross-examined on the time the plaintiff moved in with her mother for two weeks, after which he left. She stated that after Yin Ping moved out from her late mother's home, her late mother telephoned her and asked her whether she should invite the Plaintiff and his family to move in. She stated "yes" and she telephone the Plaintiff to inform him of that. She stated that Yin Ping constantly telephoned her mother that her rent was high and she could not make ends meet. She constantly asked her mother if she could move back to live with her mother. She said that her mother told her that Liu Yin Ping spoke against the Plaintiff's wife when Liu Yin Ping telephoned her mother.

61. She stated that her mother on one occasion said in the presence of herself and the Plaintiff that she would transfer the suit Premises to the Plaintiff. That was a few years before she died. She said that it was a property of the Liu family and should be passed onto the male heir of the Liu family. She would be able to have a good conscience towards her father. At the point when her mother said that, she did not say anything.

62. She said that in the days around the time of the transfer of the property into the joint names of her mother and the Plaintiff, she saw her mother's mental state was clear. She did not see any sign that her mother was not clear-headed.

Evidence of Liu Woon Kwan

63. He is the paternal cousin of the Plaintiff's father and the cousin-in-law of Madam Lau. He has kept in touch with Madam Lau. He knew that Madam Lau was hospitalized for a period of time. When she was in Canossa hospital at the end of December 1999, he visited her. In the hospital there were the Plaintiff, Liu Yuen Kwan and Liu Kam Tim, his younger paternal cousin. Madam Lau said to him during that visit that the suit Premises belonged to the Liu family and should be given to the Plaintiff who is her son. He heard her talk about the decoration. Madam Lau said to her that the decoration expenses were paid by her as she had plenty of money.

64. Whilst Madam Lau was at Queen Elizabeth Hospital, he visited her with his younger sister Liu Kuk Ying. Madam Lau told him the suit Premises had been transferred to the plaintiff. She was very happy and very relaxed. She said it was a joint tenancy. Afterwards he telephoned the Plaintiff and asked him whether that had been done and to congratulate him. He did so not because he did not believe what Madam Lau told him but he merely wanted to keep in touch with the Plaintiff.

65. After the 27 January 2000, he went to visit her in hospital. He did not find her lacking in mental clarity. He heard her say that her youngest daughter on several occasions asked her to transfer the suit Premises into her name. Madam Lau stated that she said "No" to her. Madam Lau would get angry talking about that.

66. He stated that according to his opinion it was the right thing for Madam Lau to do. When asked whether according to Chinese custom the property should go to the male heir, he stated that usually it was according to circumstances.

67. When asked under cross-examination as to whether Madam Lau mentioned to the Plaintiff that the suit Premises should not be sold, he said that he did not hear it.

68. At the dinner after the funeral, he was present. He did not hear the Plaintiff ask the 1st named Defendant to move out of the suit Premises. He did not hear Liu Yuen Kwan ask the 1st named Defendant to hand over their mother's money.

Evidence of Liu Kam Tim

69. He is the younger paternal cousin of the Plaintiff's father Liu Sheung Lam. At the end of 1999 he went to Canossa Hospital to visit Madam Lau. He went together with Liu Woon Kwan, the Plaintiff, Liu Yuen Kwan. Whilst he was there he heard her say that she wanted to transfer the suit Premises to the Plaintiff in a solicitor's office.

70. In relation to decoration of the suit Premises, she said that she would pay for the decoration but it was a waste of money.

71. When she was in Queen Elizabeth Hospital, he visited her. She said the property had been transferred to the Plaintiff and herself as joint tenants. At the time she was alert. Her emotions appeared to be happy because she had completed this procedure. From beginning to end when she visited her at Queen Elizabeth Hospital she was clear headed.

72. Before she got into hospital, when he was speaking to her, she said the 1st named Defendant had often asked her to transfer the suit Premises to her. Madam Lau expressed irritation. He said that according to Hakka people, they were Hakka people, they had a custom that when they had property they would give it to their son or grandson.

73. Under cross-examined it was put to him that he went to visit with the Plaintiff, Liu Woon Kwan and Liu Yuen Kwan in order to persuade Madam Lau to transfer the suit Premises to the Plaintiff. He stated that they had not talked about the transfer of the suit Premises before. It was Madam Lau who brought it up. He did not know why she brought it up. No one raised this. No one expressed any reaction to what Madam Lau said.

74. In relation to the decoration of the suit Premises, he said it was spoken by Madam Lau but he could not remember whether it was spoken when Madam Lau was at the Canossa Hospital or whilst she was at the Queen Elizabeth Hospital.

Evidence of Liu Yuk King

75. She is the younger paternal cousin of Liu Sheung Lam. Madam Lau was her cousin-in-law.

76. When she visited Madam Lau at Canossa Hospital, Madam Lau said to her that she would transfer the suit Premises to the Plaintiff. At the time when she said that, she was in good spirits. She was well. In relation to the decoration of the suit Premises, Madam Lau stated that the suit Premises could still be lived in. It was a waste of money to decorate the property. She said that it was her youngest daughter who asked her to decorate the property. However Madam Lau did not like it. Madam Lau stated that she had paid for the decoration of the property. Madam Lau had plenty of money. The reason why she did not like the decoration was because she had to live in Tai Woo and she did not want to live elsewhere during the decoration.

77. On the 27 January 2000, she went to visit Madam Lau with Liu Woon Kwan. When they were there, Madam Lau said that the property had been transferred to the Plaintiff. It would belong to the two of them. She said she had decided to give the property to him and she willingly decided to do that. She was happy about it.

78. Whilst she was hospitalized, she visited her about once a week or every two weeks. She found nothing wrong with her. She was in good spirits. She did not fail to recognize her.

79. After she heard that the suit Premises had been transferred to the Plaintiff, she telephoned Liu Yuen Kwan.

80. Under cross-examination, she stated that Madam Lau had expressed before she was ill that the suit Premises would be left to the Plaintiff.

The Defendants' Case

81. The witnesses of the Defendant were Dr. Chan Kwok-tung, Usrek Suwarni, Liu Yin Ping and Liu Yin Ling.

82. The Defendants called Dr. Chan Kwok-tung to give evidence. He was asked by the 1st named Defendant to examine Madam Lau after the 1st named Defendant learnt about the Deed of Gift. The medical report of Dr. Chan is at page 15 of the Agreed Bundle of Documents ("ABD"). He saw Madam Lau on 15 April 2000. The general medical history of Madam Lau is stated at paragraph 10 of the ABD.

83. He stated that he had a habit of asking the general nursing staff about the condition of the patient when he saw the patient. He stated that a nursing officer told him that Madam Lau had on and off shouting and confusion after admission. There is no precise record of the date when this occurred. The nursing staff also stated that she had misidentified the staff to be her daughter.

84. During the examination on the 15 April 2000, Madam Lau could carry on conversation. Her sentences were short. She was alert but her memory was not clear. During the process of examination she spoke Hakka and he spoke to her through the interpretation of her daughter. During the interview she had hallucination of two children running around her. His diagnosis of her condition on the 15 April 2000 was that she suffered from delirium. However it was clear in his evidence that as he only saw Madam Lau on the 15 April 2000, he was not able to give any opinion as to whether she had delirium on the 25th January 2000.

85. He stated that arthritis could cause delirium. When she was admitted on the 16 January 2000 she had septic arthritis. However by the 15 April 2000 her septic arthritis had cleared. He stated that it could have been caused by the anaesthesia from operation. Madam Lau had three operations during the period from February to March 2000. A brain scan was done on Madam Lau and the result of the brain scan did not show signs of Alzheimer or epilepsy or delirium. He stated that it was not a necessary consequence of infection that a patient suffering infection would have delirium. His written Report at page 15 stated that a patient in a delirious state was not considered to be mentally fit to sign legal documents.

Evidence of Usrek Suwarni

86. She is the domestic helper of the 1st named Defendant. She is Indonesian and commenced to work for the 1st named Defendant since 27 October 1998 when she first came to Hong Kong. At the time the 1st named Defendant was living in Sheung Shui. Her main responsibility was to care for the 1st and 2nd named Defendants' newly born baby. She would visit Madam Lau together with the 1st named Defendant and the baby twice a week. She noticed that Madam Lau's health was good in 1998 but her legs were often in pain.

87. In October to December 1999, Madam Lau moved to live with the Defendants in Sheung Shui for 2 months. That was when the suit Premises was being decorated. After that, the Defendants and herself moved to live with Madam Lau at the suit Premises.

88. At the time, the health of Madam Lau was not so good. Usually she said her feet were sore. She was uncomfortable when sitting. She would sit at the edge of the sofa.

89. Madam Lau was hospitalized about 10 odd days after they moved to the suit Premises. When she was discharged from hospital, her condition was not so good. She was a bit weak. Her mental condition, her memory was poor. She had headache, often had fever. She had to have help when going to the toilet. She could not recognize people. Madam Lau called her Madam Lau's sister. When she went to the toilet she would go into her daughter's room. However, this evidence is not consistent for if she had to be helped to go to the washroom, how could she have gone to her daughter's room instead when she was assisted?

90. In relation to the incident of signing the Deed of Gift on the 25 January 2000, the Plaintiff came into the suit Premises at around 11 a.m. alone. He went into Madam Lau's room. After about 15 minutes he came out of the room and went out. After a short while he came back with his friend. He went into Madam Lau's room. She stated that at the time Madam Lau was in her room sleeping. She was not comfortable. When the Plaintiff came in with the stranger, the stranger asked the Plaintiff, "where is your mother?" The Plaintiff said, "in the room." They both entered into the room.

91. At the time she had gone into the bathroom. She saw the Plaintiff's friend took out some documents out of his bag. Madam Lau sat at the edge of the bed facing the dressing table. She was uncomfortable. She put her head down on her hand, supported by her hand. The two persons looked at her. She then went into the kitchen. About 10 minutes later the two of them left. She then went inside the room and asked Madam Lau "who is that person?" Madam Lau stated that she did not know. She gave some congee to Madam Lau to take. Madam Lau stated that she did not want to eat, she wanted to sleep. She could not sleep. She helped her to the toilet. She saw that her excrement had threads of blood. After the two men left, Madam Lau stated that her head was sore. She sweated and looked like she had a fever.

92. When asked by the Defendants' Counsel, "Was she clear headed?" She replied that "Madam Lau had a head ache and she misidentified others. She would not want to eat." That evening, Madam Lau had a fever and a headache. Her legs were aching. She did not want to eat. Next day, Madam Lau was taken to the hospital namely in the morning of the 26 January 2000.

Evidence of Liu Yin Ping

93. She gave evidence that her late parents owned and managed a guest house in Shan Tung Street, Canton Road, in Kowloon. She lived with her parents in the guest house together with Liu Yin Ling until she was 12 years old. Yuen Fong and Yuen Kwan the other daughters of her late parents lived in the Mainland. Eventually, her late parents moved to a flat on the 9th Floor of the same building where the guest house was located and she lived there until she was aged 17. Her late parents then purchased the suit Premises and they moved to reside there.

94. She stated that Madam Lau said the suit Premises was purchased for herself and Yin Ling. She lived here until her marriage when she moved out to live in Tai Po. Subsequently, she sold her Tai Po flat and purchased a flat in Fanling Centre where she and her husband moved.

95. In 1995, she moved back to live in the suit Premises when her father passed away. In 1995, Madam Lau's health was poor as she was diagnosed with cervical cancer. After treatment her cancer cleared. She lived in the suit Premises until September 1998 after her baby was born.

96. She moved out of the suit Premises because her mother would take on herself to care for her baby. She would get too exhausted from that. The 1st named Defendant had employed a domestic helper but Madam Lau would still take on the care of the baby despite that.

97. In 1997, she had sold her property at Fanling Centre and made a profit from the sale. She rented premises at Sheung Shui Center where she and her family moved. After she moved out of the suit Premises, the Plaintiff moved in with his family. The Plaintiff had a home ownership property. He moved out of that to live with Madam Lau.

98. She said that Madam Lau told her that the Plaintiff had stated that he wanted to move in to care for her. Three days after the Plaintiff moved in, Madam Lau telephoned her to tell her that the Plaintiff did not care for her. She regretted asking the Plaintiff to move in. Madam Lau constantly telephoned her to complain about the Plaintiff. During this time, Madam Lau stated that the suit Premises would not be given to the Plaintiff. The Plaintiff could live there but the suit Premises would not be transferred into their name.

99. Shortly after moving in, the Plaintiff moved out of the suit Premises with his family. Madam Lau was happier. During that time, Madam Lau asked her when she and her family would go to live with her. However, as they had rented a flat in Shui Shui Centre on a one year's tenancy, she had to live there until the end of the tenancy. After the 1st named Defendant decided to move into the suit Premises, Madam Lau stated that it was time to tidy up the house. It had been purchased in 1984 but there had been no decoration since. The 1st named Defendant had the suit Premises decorated before she moved in. She stated that she wanted her mother to enjoy living there therefore she had the suit Premises decorated. She stated that she paid for the decoration. She admitted that her mother first suggested tidying up one room. However she said to Madam Lau that the suit Premises was old. It needed decoration. Her mother then moved to live at Sheung Shui Centre to live with her for two months during the time of decoration. Whilst she was living in Sheung Shui Centre, Madam Lau already had pain in her legs.

100. They moved back to the suit Premises on the 12 December 1999. Madam Lau's health was deteriorating. During the move, Madam Lau just sat on a chair. Three days later, Madam Lau was admitted to Canossa Hospital. In January she was discharged for two to three days. Her condition did not improve. Her legs were not healed. Because of that she was admitted to Queen Elizabeth Hospital on the 13 January 2000 and was discharged on the 22 January 2000.

101. Upon discharge, Madam Lau's legs were not in good condition. Also her kidney needed treatment. However this is contradicted by the medical report at page 10 of ABD. It stated that when she was discharged Madam Lau was in a stable condition. The Plaintiff took her out of hospital upon her discharge on the 22 January 2000.

102. Upon discharge, she had to take a lot of medication. Her legs were swollen and were in pain. She could only be propped up to sleep. She had to be moved to move the position of her legs.

103. She did not know that her mother had signed the Deed of Gift on the 25 January 2000. She discovered that when she received a letter from the Government related to the suit Premises and the letter was sent to the Plaintiff and Madam Lau.

104. After the time when Madam Lau was re-admitted to hospital on 26 January 2000, she went to visit Madam Lau often. When she visited Madam Lau in April and asked her about the Deed of Gift, Madam Lau could not remember what she had done. She therefore requested for a psychiatrist to visit her to find out whether on the 25 January 2000 her mother was capable of understanding the significance of her action of signing the Deed of Gift.

105. Dr. Chan went to see Madam Lau on the 15 April 2000 and on 27 May 2000. However Dr. Chan could not confirm what was the situation of Madam Lau on the 25 January 2000.

106. She stated that Madam Lau's condition was not good after she came out of hospital on the 22 January 2000. She was feeling really bad. She had a fever and sweated. She was not able to talk much.

107. She stated that between the 23rd to the 25th January 2000, Madam Lau would not be able to recognize her and when Ying Ling came, Madam Lau thought Yin Ling was her. Madam Lau was in a bad state.

108. On the date of Madam Lau's funeral, they had a dinner. After dinner, the Plaintiff asked the guests from their church to leave first. The Plaintiff asked her to stay behind and they were at a table. The Plaintiff said to her to move out of the suit Premises. Yuen Kwan asked her to hand back her mother's money.

109. On the 26th September 2000, she received a letter from the Plaintiff's solicitors requesting her to vacate the suit Premises.

110. She stated that the relationship of Madam Lau with the Plaintiff was not good. When the Plaintiff married his 2nd wife, Madam Lau requested the Plaintiff to tell his 2nd wife that Madam Lau was not his natural mother.

111. Madam Lau's relationship with Yuen Kwan was not good. Yuen kwan had quarrelled with Madam Lau. At page 139 of the ABD, it is the ambulance journey record. It stated the date and time she was sent into the hospital. It was 26 January 2000 at 10 a.m. The chief complaint was bleeding from her lower part. When she went to the toilet, blood was left on the toilet seat.

112. She referred to the bills paid by her and these were:-

1. Page 135-6 ABD Statement of Account from St. Teresa's Hospital dated 27 Dec 1999 in the sum of $6,648.00

2. Page 131-2 ABD Statement of Account from St. Teresa's Hospital dated 15 Dec 1999 in the sum of $26,705.00.

3. Page 133 ABD Statement of Account from St. Teresa's Hospital dated 15 Dec 1999 in the sum of $4,253.00.

4. Page 129 to 130 Statement of Account from St. Teresa's Hospital dated 3 Jan 2000 $26,982.00.

5. Page 111 ABD Receipt from Hospital Authority in the sum of $612.

6. Page 95 and 96 decoration expenses in the sum of $195,700 and $55,700.

7. Page 71 to 94 various invoices inclusive of purchase of adult nappies massage gel to help circulation, air bed for patients with bed sores. She purchased the airbed for Madam Lau to use in hospital. At the time she already knew about the Deed of Gift.

8. Pate 37 AND this is the tombstone cost in the sum of $46.000.

9. Page 33 of ABD, payment for the decoration fee in the sum of $200,000.

113. Page 31 of ABD shows a withdrawal of a sum of HK$1,000,000.00 from Madam Lau's bank account at Kincheng Banking Corporation and the subsequent deposit of this sum into the account of Lo Chung Wan, the husband of Liu Yuen Fong. She stated that her late mother had lent this sum to Lo Chung Wan and he had only repaid about $300,000.00.

114. She stated that she had not heard Madam Lau say that the suit Premises would be given to the Liu's family's male heir. She said she had two joint accounts with Madam Lau in Kincheng Bank. One had A$94,000 odd. Another had HK$150,000.00. In relation to the joint accounts, she withdrew the sums after her late mother's death and she had spent it. She stated that her mother had put money in it and said it was joint ownership. When she passed away, she could use it.

Evidence of Liu Yin Ping

115. She adduced her witness statement into evidence after correcting typographical errors at para 27 where the year 1997 in three place was changed to 1995, at para 29 where she corrected the statement that the 1st and 2nd named Defendant paid for the funeral of her late father to show that it was Madam Lau who paid for this. Again at para 30 the year 1997 was changed to 1995. At para 48 reference to 38 hours on the first line was changed to 8 hours.

116. She stated that the 1st and 2nd named Defendants arranged for her late mother's funeral and paid for all expenses.

117. In relation to joint accounts between herself and her mother, she stated that she had a joint account in 1996 in Po Sang Bank. It was a fixed deposit with HK$250,000.00. After the end of that it was deposited back into her Mom's account. In relation to the fixed deposit in the sum of HK$1,000,000.00, evidenced by the Certificate at page 30 of ABD, after the 1 month's deposit it was deposited back into her late mother's bank account. She had no further joint accounts with Madam Lau.

118. Related to the evidence of Liu Yuen Kwan, that she had telephoned Liu Yuen Kwan to enquire whether the suit Premises had been transferred into the names of Madam Lau and the Plaintiff, she stated that she asked Liu Yuen Kwan why neither she nor the 1st named Defendant knew about it. Liu Yuen Kwan told her that Madam Lau stated that they should not tell the 1st named Defendant and Liu Yin Ling. Liu Yin Ling stated that she told Liu Yuen Kwan that had the property not been transferred into joint names of Madam Lau and the Plaintiff, were Mom to die, all four of them girls would have a share. Liu Yuen Kwan stated that she did not mind if she did not have a share. Liu Yin Ling stated that she then did not say anything more.

119. She stated that the relationship between Madam Lau and the Plaintiff was just ordinary. They were not too close. That was the same between Madam Lau and Liu Yuen Fong and Madam Lau and Liu Yuen Kwan. She stated that Madam Lau was closest with the1st named Defendant. She stated that Madam Lau was quite good to her. She and her younger sister the 1st named Defendant grew up together living with their parents. Her late parents purchased the suit Premises in order that the 1st named Defendant and herself would grow up in a better environment.

120. She stated that at first when the property was purchased, her late parents stated that the suit Premises would be given to the 1st named Defendant and herself. Madam Lau said this in casual conversation. She stated that after her late father passed away, she lived with her mother for one year after she got married. Thereafter, she moved out but would visit once a week.

121. In 1999, her late mother's health was poor. The 1st named Defendant had moved out to Sheung Shui Centre. The Plaintiff moved to the suit Premises to live with Madam Lau. The Plaintiff stated that he would care for their mother. Her mother had no objection. The Plaintiff stayed there for 2 weeks then moved out. The Plaintiff's wife and Madam Lau were not compatible in living habits.

122. The 1st named Defendant moved back because Madam Lau suggested it. In relation to the decoration, she stated that Madam Lau suggested that as the suit Premises is so old it has to be re-decorated. The 1st named Defendant paid for the decoration expenses of $200,000.00 odd. Shortly after the decoration her late mother moved back from Sheung Shui to live in the suit Premises.

123. Madam Lau's mental state was not good. Her legs were causing her pain. They were swollen. It affected her mental state.

124. Madam Lau was admitted into Queen Elizabeth Hospital. She was discharged from hospital and taken out of hospital by Yuen Fong and the Plaintiff. She visited Madam Lau on the 23 January 2000 and found her mental state was not clear. She asked her how she was. She was sleepy. When she woke up she said is this the roof? At one point, they lived on a roof in Kowloon City. On the 24th January 2000, she went to visit her, she found she was half asleep. Madam Lau was re-admitted to Queen Elizabeth Hospital on the 26 January 2000. She asked Madam Lau how she was and whether she was in pain. When she asked her questions she seemed to be asleep. When the 1st named Defendant found out about the Deed of Gift, she went to ask Madam Lau, Madam Lau stated, "I do not know". "I do not remember."

125. At the dinner after the funeral, the Plaintiff and Liu Yuen Fong asked the 1st named Defendant to move out of the suit Premises. She stated that in response, the 1st named Defendant thought for a while and stated "that the suit Premises may not belong to you."

126. She stated that the 1st named Defendant paid for the medical expenses of Madam Lau as well as for the decoration expenses.

Credibility of Witnesses

127. Mr. Tang Wing Tung, Anthony, the solicitor who drafted the Deed of Gift and who went to the suit Premises to oversee its execution by her, gave evidence in a clear and straightforward manner. I have no reason to doubt his credibility. I find him a credible witness.

128. The Plaintiff gave evidence in a straightforward manner. In many instances he demonstrated his honesty by stating what was not advantageous to himself, for instance he frankly admitted that Madam Lau and his wife did not get along and that was why he decided it was better for them all to move out of the suit Premises after 14 days. He was unshaken in his testimony when cross-examined. I formed the impression that he was a straightforward person and an honest witness.

129. PW3 Liu Yuen Fong also impressed me as an honest and straightforward witness. I found that her evidence was unshaken in cross-examination. I formed the impression that she was an honest witness.

130. PW4 Liu Yuen Kwan also impressed me as an honest witness. Both Liu Yuen Fong and Liu Yuen Kwan were cross-examined on whether they knew that if the suit Premises were not transferred to the Plaintiff and if the suit Premises were to devolve to the estate of Madam Lau, they would have a benefit in the estate of Madam Lau. Both Liu Yuen Fong and Liu Yuen Kwan stated that they only wanted to follow the wishes of their late mother. They would not consider their personal interests so long as the personal wishes of their late mother was carried out.

131. PW5, PW6 and PW7 gave evidence as to the intention of the late Madam Lau related to the suit Premises conveyed to them by Madam Lau. I am of the view that they were straightforward and honest witnesses. They were independent bystanders who were not members of the immediate family. In my view, they would have little reason to concoct evidence in order to support the Plaintiff's case.

132. Liu Yin Ping gave me the impression of having been a spoilt youngest daughter who saw herself as the favorite child and sought to win special advantage and favour from her late mother. In my view she had been used to having her own way and put that above the needs of her mother. This could have been seen in her insistence in the decoration of the suit Premises before moving back into the suit Premises to live with her late mother. Even according to her, she said her late mother only requested that she decorated one room namely her own bedroom. However she insisted on the decoration of the entire suit Premises without due consideration of the state of health and comfort of her late mother. Because of the decoration of the entire flat of the suit Premises, her late mother had to move to live in the Defendants' home in Sheung Shui Centre. That meant that her late mother had to share a bed with the daughter of the 1st and 2nd named Defendants who was a child of about 2 years old. For an elderly woman who was not well and who was not able to move about easily, to share a bed with a child could not have been comfortable. At the time Madam Lau had to go to Queen Elizabeth Hospital for follow-up treatment once every two weeks from Sheung Shui Centre. It was an inconvenience for someone who was not able to move about freely to do that and it must have been exhausting for her as well. Further for an elderly woman of poor health to have to move to another home for a short period of time would have been disruptive as she would have to acclimatize to the new environment of the premises.

133. The 1st named Defendant was caught out telling a blatant untruth in relation to the purchase of her first property in Tai Po. Under cross-examination on her finances, she stated that she purchased the property in Tai Po without the assistance of a mortgage. She was assisted by money lent from her father-in-law, the father of the 2nd named Defendant. Upon a land search of the property conducted by the Plaintiff's solicitor in the course of the hearing, it was found that in fact the property was purchased with a financial facility of a mortgage provided by Hang Seng Finance. The date of the Mortgage was the same as the date of the Assignment. This showed that the 1st named Defendant told an untruth. Was that just to create the impression that her father-in-law was rich? This shows that she could easily resort to a blatant lie when it suited her. Her explanation that she stated this out of forgetfulness could not be believed.

134. There were other instances that showed that she must have made up the evidence in the course of her evidence. Another instance related to the receipt from the Hospital Authority at page 111 of the ABD in the sum of HK$612.00. Her evidence was that she paid for this receipt. Her evidence was that on the 22 January 2000, the Plaintiff collected Madam Lau from Queen Elizabeth Hospital upon her discharge. It is undisputed evidence that the Plaintiff and Liu Yuen Fong collected Madam Lau from hospital. However upon cross-examination, as to whether this sum had to be paid before discharge, she gave the story that the situation could have been that her husband the 2nd named Defendant paid this after he saw the Plaintiff, Liu Yuen Fong with Madam Lau outside the hospital, standing at the taxi stand waiting for the taxi. Her evidence related to this is unbelievable as common sense would tell us that all hospital bills have to be paid upon discharge of a patient.

135. In my view, Liu Yin Ping must have tried hard to work on Madam Lau to persuade Madam Lau to transfer the property to her. As the youngest child, acting as the favourite child, I have no doubt that she would have tried to manipulate Madam Lau to seek benefits from her. I do believe the evidence of Liu Yuen Fong and Liu Yuen Kwan that Madam Lau told them not to inform the 1st named Defendant and Liu Yin Ling about the Deed of Gift as they would cause trouble. This has a ring of truth to it and shows the anxiety of Madam Lau in the light of the pressures put upon her by the 1st named Defendant related to the suit Premises.

136. Another matter throwing light on Liu Yin Ping's character and her attitude relates to the two joint deposits she had with Madam Lau, one in the sum of A$94,000 and the other in the sum of HK$150,000.00. When Madam Lau died, she simply withdrew these two sums without informing the Bank that her late mother had died.

137. Hence I do not find Liu Yin Ping to be a credible nor reliable witness.

138. In relation to Liu Yin Ling, DW4, I also do not find her a credible nor reliable witness. It can be clearly seen that most of her evidence contained in her witness statement is identical to that in the witness statement of DW3, Liu Yin Ping. It can be clearly seen that a lot of the evidence contained in her witness statement is hearsay evidence. Her evidence was modeled on that of DW3, the 1st named Defendant in order to support it. However, when she gave oral evidence and when cross-examined her oral evidence could not support what was in her witness statement. Her lack of credibility came to the fore. The instances of this are many.

139. Under cross-examination when shown that many parts of her witness statement did not correspond with her oral evidence, she stated that Her Chinese Statement was correct. She then stated that she had a Chinese Statement and the Defendants' solicitors had wrongly translated it. Under cross-examination she stated that there were parts of her witness statement that was not in accordance with her instructions. Throughout her cross-examination it seemed to me that she had little understanding of the responsibility when giving evidence under oath to give truthful and accurate evidence. I do not find her to be a truthful nor reliable witness. I accept the evidence of Liu Yuen Kwan that when Liu Yin Ling found out about the Deed of Gift, Liu Yin Ling asked Liu Yuen Kwan why she did not tell her. Liu Yin Ling suggested to her to ask the Plaintiff to sell the property to divide the proceeds between the five of them. Each of them would get between $300,000.00 to $400,000.00. When Liu Yuen Kwan said, "No, I want to follow mother's wishes". Liu Yin Ling said, "why won't you make a claim on it?" When Liu Yuen Kwan stated that she would not, Liu Yin Ling stated that if she succeeded in claiming her share, Liu Yuen Kwan would not have a share.

140. In relation to the evidence of DW2, the Indonesian domestic helper, her evidence of the mental condition of Madam Lau on the 25 January 2000 has to be considered in the light of the evidence of Mr. Tang Wing Tung, Anthony, Liu Yuen Fong, Liu Yuen Kwan and the Plaintiff. There is no doubt that physically, Madam Lau may not have been too well. However according to Mr. Tang Wing Tung, Anthony she could answer the questions he asked her coherently. She seemed to know what she was doing. His view was that she was mentally clear and alert when she signed the Deed of Gift. According to Liu Yuen Fong, on the 25 January 2000 Madam Lau asked the Plaintiff, or she herself telephoned her to inform her that the lawyer was going to her home to handle the matter. Madam Lau asked her to go to the suit Premises. She was not able to go to her mother's home before the lawyer left. However, when she got to the suit Premises, sometime past 11 a.m. on the 25 January 2000, her late mother told her that the solicitor had come and she said the solicitor had just completed it. She said that were she to leave this world the property would belong to the Plaintiff. She stated that Madam Lau's state of mind was clear. She knew what she had done that she had added the name of the Plaintiff to the title of the property.

141. Liu Yuen Fong stated that on the 23 January 2000 she went to the suit Premises for dinner with Yuen Fong and the Plaintiff. She saw her mother. She seemed to be in good spirits even though her legs gave her pain. She was very clear headed. She together with the Plaintiff and Liu Yuen Fong gave this evidence that after signing the Deed of Gift, on the 25th January 2000, Madam Lau told them not to tell Liu Yin Ping and Liu Yin Ling as they could cause trouble.

142. I am of the view that the evidence of DW2, Usrek Suwarni, related to the mental state of Madam Lau could not be true or correct. If Madam Lau's mental state were as poor as stated by her, Mr. Tang Wing Tung, Anthony would certainly have picked it up. The evidence of Mr. Tang Wing Tung, Anthony, would not be repeated again but he did ask her questions and she answered coherently and appeared to understand what he said. Hence, I am of the view that therefore that DW2's evidence that Madam Lau was confused or that she misidentified people in the few days leading up to the 25 January 2000 was not likely to be true. There is no doubt that the physical health of Madam Lau may not have been good but her mental state was clear and she knew what she was doing when she gave instructions for the Deed of Gift to be prepared by a solicitor and when she signed the Deed of Gift.

143. The evidence of Dr. Chan could not verify the mental state of Madam Lau on the 25 January 2000. He could only give his opinion on the state of Madam Lau on the 15 April 2000. He stated that the cause of Madam Lau's delirium on the 15 April 2000 was not clear. The comment of the nursing officer given to him that there were times when Madam Lau shouted and was confused did not refer to a particular time in question. From the medical report on pages 10-11 of the ABD, there is no mention of epilepsy upon her admission to hospital. Nor is there mention of such in Dr. Chan's report at page 15 of the ABD. Hence, reference to such is not supported by the Medical Reports. Despite careful consideration of his evidence, I find that from his evidence, there could be no deduction of the mental state of Madam Lau on the 25 January 2000. Dr. Chan himself made that clear. The diagnosis of delirium required clinical observation or assessment and this did not happen on the 25 January 2000.

Finding of Fact

144. I accept the evidence of the Plaintiff and his witnesses as reliable despite consideration of all of the Defence Counsel's submissions on this. In the light thereof, I come to the finding that Madam Lau was of sound mind at the time she signed the Deed of Gift as stated in their evidence. This is to some extent supported by the Ambulance Journey Record at page 139 which showed that when she was taken by ambulance to the hospital on the 26 January 2000, her level of consciousness was alert (see section "Level of Consciousness, Initial Condition/Condition at A & E"). I accept their evidence that the reason why Madam Lau executed the Deed of Gift was because she felt that it was her late husband's wishes that the suit Premises be left to the Plaintiff. The evidence also showed that she believed that the property should go to the male heir. That line of thinking appeared to be the culture of the Hakka people. She was of the Hakka culture and heritage. As her health began to deteriorate, this desire of following her late husband's wishes and her culture and tradition increasingly became her resolve, so that her mind was not at rest until this was done. She asked her eldest daughter Liu Yuen Fong to arrange a lawyer for her to handle this matter upon her return from Canada to visit her. She told Liu Yuen Fong that as she was the eldest child she wanted her to arrange this. She probably trusted Liu Yuen Fong not to have any personal agenda in relation to the suit Premises as well as the fact that as the eldest child she had that responsibility. I accept the evidence of PW2, PW3 and PW4 that Madam Lau told them not to mention this to the 1st named Defendant and Liu Yin Ling as they could make trouble. Madam Lau felt that they could cause trouble. This would show the extent to which Madam Lau must have been harassed by the 1st named Defendant and Liu Yin Ling to seek to cause her to transfer the suit Premises to them. I find that the 1st named Defendant and Liu Yin Ling had frequently sought to persuade Madam Lau to transfer the suit Premises to them before the 25 January 2000. However, Madam Lau herself stated that as a parent she had the right to transfer her assets to whoever she wished.

145. In relation to the payment of the decoration of the suit Premises, PW2, PW3, PW4, PW5, PW6, and PW7 all stated that Madam Lau had told them that she paid for the decoration of the suit Premises. Madam Lau was unhappy about the decoration and stated that it was a waste of money and that it was the 1st named Defendant who asked her to decorate the suit Premises. It is highly improbable that an elderly woman who was not in the best of health would initiate the decoration of premises because this would inevitably cause discomfort and inconvenience. As a result of the decoration, she had to move to Sheung Shui to live for 2 months. Usually, elderly people who are not in good health do not like to move from their familiar surroundings and their usual comforts. I therefore find that Madam Lau did not ask the 1st named Defendant to decorate the suit Premises. She allowed the 1st named Defendant to decorate the suit Premises at the persuasion of the 1st named Defendant. Madam Lau complied with the 1st named Defendant's wishes as she knew that the 1st named Defendant and her family would find it more comfortable to live in the suit Premises after its decoration. Madam Lau, no doubt was motivated to comply with the 1st named Defendant's request because she preferred to live with members of her own family rather than live on her own. There is evidence that the 2nd named Defendant paid the sum of $110,000.00 towards the decoration expenses by a transfer from his bank account to that of a Mr. Law Yun Cheung. In relation to the balance there is no supporting evidence as to who paid this. It may have been Madam Lau who paid the balance.

The Issues

The 1st Issue

146. As I have found that Madam Lau was mentally fit to sign the Deed of Gift on the 25 January 2000, I find the Deed of Gift expressed the true wishes and intention of Madam Lau. The Deed of Gift is thus valid and effective.

The 2nd Issue

147. In relation to the burden of proof of undue influence, Royal Bank of Scotland v Etridge (No.2), (HL(E)) [2001] 4 All ER, in paragraphs 13 and 14 thereof, in the speech of Lord Nicholls of Birkenhead, states,

"[13] Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.

[14] Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn."

148. Further in para [16] of the same speech Lord Nicholls states,

"When a plaintiff succeeds by this route he does so because he has succeeded in establishing a case of undue influence. The court has drawn appropriate inferences of fact upon a balanced consideration of the whole of the evidence at the end of a trial in which the burden of proof rested upon the plaintiff. The use, in the course of the trial, of the forensic tool of a shift in the evidential burden of proof should not be permitted to obscure the overall position. These cases are the equitable counterpart of common law cases where the principle of res ipsa loquitur is invoked. There is a rebuttable evidential presumption of undue influence."

149. I found that the purpose and motivation behind the Deed of Gift by Madam Lau was because she wanted to comply with the wishes of her late husband and with the traditions of her culture. She believed that to be her responsibility and she carried out her responsibility before she died. In my view her relationship with the Plaintiff though good was not one of trust and confidence. It was clear that she could not get on with the Plaintiff's wife and the Plaintiff and his family were not able to live with Madam Lau in the suit Premises beyond two weeks. From all the evidence of the parties, although the Plaintiff visited Madam Lau and purchased fruits when visiting and the Plaintiff also took her out to have tea when she was healthy, the Plaintiff was not that close to Madam Lau as she was not her natural born son. In fact there is evidence that Madam Lau at first resented the Plaintiff when he was a child as he reminded her of the unfaithfulness of her husband. That was given as the reason why she sent the Plaintiff to their native village to be reared there. Even though this evidence that Madam Lau resented the Plaintiff's existence when he was a child came from the 1st named Defendant this was highly likely to be the reason why he was sent to the native village on the Mainland when he was a child. It was when he was adult that he came to Hong Kong. There is no evidence that Madam Lau had ever confided in the Plaintiff or had trusted him with her personal matters or with her money. Whilst Madam Lau had joint accounts with Liu Yin Ping and they jointly held a safe deposit box in which the title deeds of the suit Premises was put, and at one time Madam Lau had a joint deposit with Liu Yin Ling, there is no evidence that Madam Lau had ever had joint accounts with the Plaintiff. If Madam Lau had a relationship of confidence and trust with the Plaintiff, she would not have asked Liu Yuen Fong to arrange for a lawyer to prepare the Deed of Gift. She would have asked the Plaintiff direct. Hence I find that there is no evidence to support the contention that the Plaintiff had a relationship of trust and confidence with Madam Lau before the signing of the Deed of Gift. There is no evidence of actual undue influence. Nor was the relationship between Madam Lau and the Plaintiff one from which undue influence could be presumed.

150. I therefore find that at the time of the execution of the Deed of Gift, Madam Lau was not acting under the undue influence of the Plaintiff.

3rd Issue

151. Snell's Equity, 30th edition at paragraph 39-14 to 39-17 states that for the equity or right over the land to arise under proprietary estoppel, four conditions must be satisfied:

(1) Detriment

"There is no doubt that for proprietary estoppel to arise, the person claiming must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment." (Snell's Equity, paragraph 39-14)

(2) Expectation or belief

This is as stated in Snell's Equity, paragraph 39-15.

"A must have acted in the belief either that he already owned a sufficient interest in the land to justify the expenditure or that he would obtain such an interest. But if A has no such belief and improves the land in which he knows he has no interest, or merely the interest of a tenant or licensee or occupier under an incomplete or irrevocable contract, he has no equity in respect of his expenditure."

(3) Encouragement

The belief that the defendant owned a sufficient interest in the property must have been encouraged by Madam Lau to satisfy this third condition.

(4) No bar to equity

This is not a relevant condition in the circumstances of this case.

152. In this case, even if there is some evidence for it to be argued that the Defendants acted to their detriment in moving to live in the suit Premises and contributing to the decoration of the suit Premises, there is no clear evidence to ground an expectation or belief that the 1st named Defendant already owned a sufficient interest in the land to justify the expenditure or that she would obtain such an interest. I have found the 1st named Defendant and Liu Yin Ling to be unreliable witnesses. The 1st named Defendant's evidence that tends to support this is not reliable nor clear. It could not be the basis to

establish that she had such expectation or belief. The third ground that needed to be established is encouragement by Madam Lau that the 1st named Defendant owned a sufficient interest in the property. Again as I have found the 1st named Defendant and Liu Yin Ling to be unreliable witnesses there is no evidence to support such a ground.

153. I therefore find the 3rd Issue based on proprietary estoppel against the Defendants. I find that the 1st named Defendant has not been able to establish that she had an equitable proprietary interest in the suit Premises.

154. I therefore find that the 1st named Defendant have failed to establish her Counterclaim in this Action.

155. I grant the Plaintiff's claim for possession of the suit Premises. In relation to the claim for damages or mesne profit from date of writ until possession is delivered up, there is no evidence adduced related to this item of claim. I therefore dismiss this item of claim.

156. I grant judgment for the Plaintiff against the Defendants for possession of the premises known as Flat C on the 9th Floor, Lisa House, No. 33-37 Nelson Street and Nos. 12-14A Yim Po Fong Street, Kowloon, Hong Kong together with costs of these proceedings to be taxed if not agreed with Certificate for Counsel. The Counterclaim is dismissed.