LI YILIN, the administratrix of the estate of YIP FUNG KAM, deceased v. YIP CHI HO

DCCJ 1595/2022

[2026] HKDC 78

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1595 OF 2022

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JUDGMENT

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A.  OVERVIEW

1.  The present proceedings pertain to a dispute arising between a stepmother, the Plaintiff (“P”) and her stepson, the Defendant (“D”), over the ownership of a property located at Flat 11, 22/F, Po Tai House (Block 2), Po Lam Estate, No 18 Po Lam Road North, Tseung Kwan O, Sai Kung, New Territories, Hong Kong (the “Property”). The Property was held by the estate of P’s husband and D’s father, the late Mr Yip Fung Kam (the “Deceased”). P, acting as the sole administratrix of the estate, seeks recovery of vacant possession, mesne profits, and other ancillary relief with respect to the Property.

2.  In his Defence and Counterclaim, D contends that he is the sole beneficial owner of the Property. The D’s case is grounded in the assertion that, although the Property was purchased in the Deceased’s name, there existed a common intention and agreement between the Deceased and his three children from his previous marriage, namely D himself, his elder brother Yip Chi Wai (the “Brother”), and his elder sister Yip Siu Fung (the “Sister”) (collectively the “Children”). According to this arrangement, the Property was to be acquired for the family to live in, and held on trust for the benefit of the Children, with the Deceased acting merely as the paper owner. D calls this the “First Trust Arrangement” in his Defence and Counterclaim.

3.  Subsequent to the passing of the Deceased, the Children entered into another agreement whereby the Brother and the Sister relinquished their respective beneficial interests in the Property in favour of the Defendant. Consequently, the Defendant have become the sole beneficial owner of the Property. D calls this the “Second Trust Arrangement” in his Defence and Counterclaim.

4.  At the trial, P was represented by Ms Kitty Tsang and D by Ms Lilian Ip. P was her sole witness, while all three of the Children gave evidence for D.

B.  UNDISPUTED BACKGROUND

5.  The following facts are either not in dispute or indisputable.

6.  The Deceased was married to Madam Tsang Po, the mother of the Children (the “Mother”), in 1989. The Deceased, as tenant, resided at the Property alongside the Mother and the Children. At that time, the Property was a public housing unit owned and operated by the Hong Kong Housing Authority (the “HKHA”).

7.  The Mother passed away on 28 March 2004.

8.  Subsequently, HKHA introduced the Tenants Purchase Scheme (租者置其屋計劃) (the “Scheme”), allowing tenants of public housing to acquire their rented properties at a discounted rate. The Deceased applied under the Scheme and, pursuant to an assignment dated 25 November 2005 between the HKHA as vendor and the Deceased as purchaser, acquired the Property in his sole name for HK$186,000.

9.  An official receipt dated 29 September 2005 acknowledging the payment of intention money (意向金) in the sum of HK$2,500 was issued by the HKHA to the Deceased.

10.  A mortgage was obtained by the Deceased from the Bank of East Asia in the amount of HK$183,500 to finance the purchase of the Property. Monthly repayments were made from the Deceased’s account with the Bank of East Asia until shortly before his passing.

11.  After the purchase of the Property, P moved into the Property with the Deceased.

12.  The Deceased died intestate on 10 August 2015.

13.  Shortly after the Deceased’s death, P executed an undated Form No L2.1 (Renunciation of Administration) (放棄遺產管理權利書) (“Written Renunciation”), relinquishing her right to apply for a grant of letters of administration. The Written Renunciation was however not filed.

14.  Following the Deceased’s passing, the responsibility for settling the outstanding and remaining monthly mortgage repayments was assumed by the Brother, except for one payment that instalment was paid by P.[1] The mortgage was ultimately discharged in full on 13 October 2015.

15.  On 11 July 2017, letters of administration for the Deceased’s estate were granted to P.

C.  P’S CASE

16.  P recounted that she first met the Deceased in 2000. During the Deceased’s lifetime, the Deceased conveyed to her that the Property was acquired using his own funds. P understood these funds to have originated either from Good Empire Engineering Ltd（君威工程有限公司） (“Good Empire”), of which the Deceased was the sole director and shareholder, or from his other personal assets. The Deceased told her that the Children did not contribute financially to his living expenses or the mortgage repayments. Further, she was never made aware, either by the Deceased or by any of the Children, that the Property was held on trust for the Children, or that the Children had any beneficial interest in it.

17.  Although P said she had no knowledge about the Deceased’s income, P acknowledged that the business of Good Empire was not always successful or profitable. There were occasions when she had to use her own earnings, typically between HK$500 to HK$1,000, which she earned from performing at a community centre, to purchase food for the family when the Deceased lacked available funds. From 2005 to 2015, she provided such financial support more than ten times each year. Around 2010, her contributions for food amounted to as much as HK$5,000 to HK$6,000 per month. When questioned on how the Deceased was able to afford mortgage repayments despite Good Empire’s business being allegedly mediocre, P responded that the Deceased would borrow funds from Good Empire.

18.  P rejected D’s suggestion that she claimed to possess a large house in mainland China by showing the title deeds of her house to the Children. Although P admitted that she owned a property in the mainland, she explained that that property was already sold in 2002. Therefore, she could not have presented the title deeds to the Children. She also denied that she had ever said that she would refrain from contesting ownership of the Property with the Children.

19.  P admitted to having signed the Written Renunciation but maintained that she did so under duress from the Brother. She said the Brother pressured her to go to the High Court building by speaking loudly and getting angry with her when she was reluctant to go. P highlighted that she did not have the opportunity to read the Written Renunciation before signing it, as the front section was covered, obscuring the heading of the Probate Registry. Upon later learning the substance of the Written Renunciation, she chose not to file it with the High Court Registry. Instead, P sought legal counsel and instructed solicitors to apply for a grant of letters of administration for the Deceased’s estate.

20.  P claimed that in or around October 2015, D spoke to her in an unkind manner and demanded that she vacate the Property, and she complied. When asked why she, as the spouse of the Deceased, who is the paper owner, would leave solely because of D’s harsh words, P explained that she was fearful of being assaulted.

D.  D’S CASE

D’s evidence

21.  D stated that in 2005, when he was about 16, the government rolled out the Tenants Purchase Scheme. After discussions among the Deceased and the Children, it was agreed that the Property would be purchased for the family to reside in, and the Deceased would hold the Property on trust for the Children. The Deceased was chosen to be the registered owner and mortgagor because he had all along been the registered tenant of the Property since 1989.

22.  As D was still in school at that time, the intention money of HK$2,500 was paid by the Brother and Sister. It was agreed that the mortgage payment would be covered by monthly maintenance paid by the Children.

23.  D stated that he started working as a casual worker since he was 14 or 15, and then in 2007 and 2008, when he was around 18 or 19, he started working full-time. He worked as a kitchen helper and a restaurant waiter. His initial starting salary was around HK$6,000 to $8,000, and by 2012, his monthly salary was around HK$12,000. After he started working full-time, he started giving his father at least HK$2,000 a month for household expenses, mainly to pay the mortgage payments on the Property and for other expenses. This sum was later increased to HK$3000 to $5000 in 2013.

24.  He knew the Deceased had income from Good Empire, and that the Children collectively gave him no less than HK$10,000 per month for household expenses. The Deceased’s total monthly income should have been sufficient to cover the mortgage and other expenses. However, D also knew the Deceased was a big spender, mainly because he was very concerned with appearances and frequently treated friends to meals, each costing thousands of dollars. He knew that during the 2013 Lunar New Year, the Deceased had borrowed HK$130,000 from Good Empire, as well as some money from the Brother on the third day of the 2013 Lunar New Year.

25.  The Sister moved out of the Property in 2010 after getting married. The Brother also moved out in 2018. Around 2018, the Children discussed and it was decided that the Brother and the Sister would relinquish their beneficial interests in the Property in favour of D, and that D would be responsible for all expenses related to the Property, including utilities, rates and rent, management fees, and property maintenance. Since 2018, D has been bearing these related expenses.

26.  P moved into the Property after marrying the Deceased in 2009 and remained there until 2016. During their time living with P, D’s family repeatedly and explicitly stated to P that the beneficial interests in the Property belonged to the Children. P also expressed that she did not intend to acquire any rights to the Property.

27.  D explained that the expenses for utilities such as water, electricity, and gas were all managed and paid by the Children. The Deceased himself never handled these payments. According to D, the Deceased often mentioned that his company was frequently operating at a deficit.

28.  D recalled that there were three formal family discussions regarding the purchase of the Property, which took place in April, July, and September 2005. The decision to proceed with the purchase was made in July, and the purchase documents were signed in September. During the July meeting, it was agreed that the Brother would be responsible for all expenses initially, and the Sister and D would start contributing at a later stage. Since D was under 18 at the time the purchase documents were signed in September, he was unable to sign them. As he was still quite young, D listened to the discussions but did not actively participate.

29.  D acknowledged that the Deceased never explicitly used the term “trust” during the relevant discussions. At that time, D was unaware that the Property could have more than one registered owner, nor did he know why his siblings were not registered as co-owners, as this topic was not discussed.

30.  When asked about measures to guard against the risk of P asserting an interest in the Property, D responded that P had repeatedly stated she would not make any claim. The Children had also consistently repaid the mortgage instalments, management fees, and other related expenses, and their names were listed as family members under the Scheme. P further indicated her intention by showing the property certificate to her property in mainland China, explaining that she owned a large house there and therefore would not make any claim on the Property. Additionally, the Deceased commented that P was wealthier than their family due to her mainland assets.

31.  D was asked about a two-page document that appeared to have been written by him to his solicitor.[2] It was put to D that, in this document, he did not mention the trust arrangement by which the Deceased held the Property on behalf of the three siblings. In response, D explained that, at the time, he considered it most important to emphasize that P had repeatedly expressed her intention to relinquish any claim to the ownership of the Property. D further clarified that, within the same document, he had referred to the fact that he and his siblings shared the responsibility for the mortgage payments and also contributed to other miscellaneous expenses related to the Property.

The Brother’s evidence

32.  In 2005, the government launched the Tenants Purchase Scheme. Initially, the family did not intend to purchase a property, as he and the Sister were both employed and their salaries exceeded the income limit. However, wanting a home for the family to live in, the Children and the Deceased later agreed to purchase the unit by way of a trust arrangement. While the Deceased would be the paper owner, he would only hold ownership for the Children. Since the Deceased had always been a registered tenant of the Property, everyone considered him the most suitable choice to be the owner and mortgage holder. An intention money of HK$2,500 was required for the purchase, which was paid by the Brother and the Sister.

33.  The Brother would give the Deceased HK$2,000 to HK$3,000 monthly for household expenses to help with mortgage payments. In 2007, the Brother began to live in the unit intermittently, but still continued to give the Deceased monthly household expenses.

34.  In 2009, the Deceased married P, and P moved into the unit that same year. The Sister had already married and moved out of the Property several years prior, so only he, D, the Deceased, and P lived there. During this time, the Deceased and the Children repeatedly mentioned to P that the father had purchased the property through a trust arrangement. P also stated that she understood this arrangement and would not attempt to acquire any rights to the property.

35.  The Brother provided the Deceased with monthly household expenses to cover mortgage payments and the Property's daily costs. The Deceased’s financial situation was bad and the Deceased had to occasionally borrow money from him. Although the Deceased did not repay the debts, since he is the Deceased’s son, he did not pursue them.

36.  One morning in early August 2015, he received a call from the hospital informing him that the Deceased was in critical condition due to a fall, and the doctor estimated that the deceased had only a few days to live. Upon returning home that day, he informed P that the Deceased had not made mortgage payments for the property for several months. At that time, P stated that she only wanted to continue living in the property, knew that she had not contributed to the purchase of the property or any other expenses. As a result, P expressly stated that she did not seek ownership rights to the property and further indicated her intention to relinquish any claim to the administration of the estate. As a result of P’s said promise, the Brother went to the Bank of East Asia and paid off the outstanding mortgage payments in cash. The Deceased passed away in August 2015, and the mortgage payments and other expenses for the Property had been paid by him and D.

37.  The Brother recalled that the family began discussions about the possible purchase of the Property in April 2005. They reached a decision in July to proceed with the purchase. Given that the Deceased expressed he would not be able to afford the mortgage payments, the family agreed that the Children would be responsible for making all payments, while the Deceased would serve as the registered owner of the Property.

38.  At the time of the purchase, both the Sister and D did not have sufficient funds to contribute. As a result, the Brother undertook responsibility for all payments, until the others were able to participate. Beginning in September 2005, the Brother started providing funds to the Deceased, which included the amount used as the intention money for the purchase. He specifically instructed the Deceased that these funds should be used first and foremost to pay the mortgage instalments, with any remaining amount to be used by the Deceased for household expenses.

39.  On several occasions, P assured the family that she would not contest ownership of the Property. P made this promise approximately three times. During these conversations, the Brother responded by pointing out that there was no reason to dispute ownership, as the Deceased was merely the registered owner and the Children were the actual purchasers of the Property. P also indicated that she had property of her own and therefore had no intention of making any claim on the Property. To demonstrate this, she presented her property certificate from mainland China and remarked that, since she already possessed a home there, there was no need to dispute the family’s Property.

40.  The Brother also described the events surrounding the Written Renunciation at the Probate Registry. He explained that he was informed by Registry staff that he could only apply for probate if P formally renounced her rights. The Brother denied any suggestion that P was coerced into going to the Registry or that she was prevented from reviewing the Written Renunciation before signing. He said while they were waiting for the scheduled swearing-in appointment at the Registry, P had a change of heart. She decided that she wished to contest the ownership of the Property, and as a result, she ultimately refused to attend the swearing-in required for the renunciation to take effect.

The Sister’s evidence

41.  She started working in 1999 as a waiter in a restaurant, earning approximately HK$5,000 to HK$6,000 per month.

42.  In 2005, the government launched the Tenants Purchase Scheme. At that time, she and his brother were both employed and their salaries exceeded the income limit. However, they still wanted to own a home for the family. After discussion, the Children and the Deceased agreed that the deceased would be the registered owner, holding the property in trust for the Children. The Children would pay the mortgage payments for the Property as household expenses. Since the Deceased was the registered tenant of the Property, he also became the mortgagor. An intention money of HK$2,500 deposit was required for purchasing the property, which was paid by her and the Brother.

43.  The Deceased married P in 2009, and P moved into the Property. At that time, her monthly salary was approximately HK$10,000, and she gave the Deceased HK$3,000 monthly for household expenses and to help with mortgage payments. The Deceased and the Children repeatedly mentioned to P that the Property was purchased under a trust arrangement. P also stated that she did not intend to acquire any rights to the property.

44.  The Sister married in 2010 and moved out of the Property, but she frequently visited his family there. Even after marriage, she stopped working but still providing P with approximately HK$3,000 monthly for mortgage payments and other property expenses. The Deceased's financial situation was good; his company Good Empire had borrowed approximately HK$70,000 from her father-in-law due to funding issues. The Deceased only repaid the debt after the Sister’s husband pursued repayment. Therefore, the Deceased’s relationship with her father-in-law’s family was not particularly close.

45.  In 2018, she discussed with the Brother and D and agreed to give up her beneficial interest in the Property in favour of D.

46.  The Sister said the discussions regarding the purchase of the Property began in April 2005, though no consensus was reached at that time. The decision to proceed with the purchase was finalized in July of the same year. Due to the Deceased’s unstable income, it was agreed among the three siblings that they would collectively contribute to the mortgage repayments.

47.  Since the Deceased was already listed as the tenant of the Property, it was decided that the Property would be registered in his name, while the mortgage payments would be made by the three siblings.

48.  The Sister participated in paying the intention money for the purchase. After the Brother paid HK$2,500, she provided him with HK$1,250 in cash, which occurred around October 2005.

49.  When questioned about the absence of any written documentation confirming that, despite the property being registered in the Deceased's name, the mortgage payments were in fact made by the Children, the Sister responded that the family relied on mutual trust and therefore did not consider it necessary to create any formal records.

50.  She recalled that P stated more than once that she had no intention of claiming ownership of the property. These remarks were usually made during family meals, as such topics were not discussed during private conversations.

E.  LEGAL PRINCIPLES

Credibility of witnesses

51.  The test for assessing the credibility of witnesses has been set out in Hui Cheung Fai & Anor v Daiwa Development Limited (unreported, HCA 1734/2009, 8/4/2014) at §§76-82 per DHCJ Eugene Fung SC (as he then was):-

“76. In making my findings of fact in this case, I am guided by a number of general principles which judges apply as to fact finding and the assessment of credibility.

77. Generally speaking, contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance in assessing credibility: Onassis v Vergottis [1968] 2 Lloyd’s Rep 403 at 431 (Lord Pearce). It is right to point out, however, that some of the documents in this case are alleged by the Son to be shams and those documents obviously cannot be used to assess the credibility of the parties.

78. In deciding whether to accept a witness’ account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events: eg Lam Rogerio Sou Fung v Tan Soon Gin George (unreported, HCA 2576/2005, 5 May 2011) §39 (Chu J).

79. In determining a witness’ credibility, I have also attached importance to the consistency of the witness’ evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence. The latter type of consistency is often tested by a comparison between the witness’ oral testimony and his or her witness statement.

80. I have cautioned myself against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses (Ting Kwok Keung v Tam Dick Yuen [2002] 5 HKCFAR 336 at §§36-37 (Bokhary PJ)), or from the assessment of the witnesses’ character (Esquire (Electronics) Ltd v HSBC [2007] 3 HKLRD 439 at §135 (Stock JA)).

81. The practical approach to assessing credibility of witnesses in a case such as the present may have best been summarised by the words of Robert Goff LJ, as he then was, in The Ocean Frost [1985] 1 Lloyd’s Rep 1 at 57:

“Speaking from my experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a judge in ascertaining the truth.”

82. Whilst these words were spoken in the context of a fraud case, I believe they are applicable to any case where a witness’ credibility features prominently in the court’s determination. They are particularly apposite in a case like the present where very serious allegations (akin to allegations of fraud) have been made by the Son against the defendants.”

Common Intention Constructive Trust and Resulting Trust

52.  In Woo Tat Huen v Lee Wai Ping (unreported, HCA 1725/2017, 9 March 2021), Madam Recorder Sit SC explained (at §§ 42-46):-

“42. The starting point where there is sole legal ownership (as is the present case) is sole beneficial ownership, and the onus is on the person seeking to show that beneficial ownership is different from the legal ownership; in other words, it is for the non-owner to show that he has any interest at all: Stack v Dowden [2007] 2 AC 432, §56.

43. The relevant principles have been conveniently summarized recently by Coleman J in Lam Ka Kui v Choi Yuen Ling [2020] HKCFI 2647; HCA 537/2017 (unrep., 23 October 2020), §§8-16:-

(1) Where a common intention constructive trust has arisen, ownership in the property is split into legal ownership and beneficial ownership. The trustee holds the legal title on trust for the beneficiary.

(2) Where a constructive trust is alleged to arise on the basis of the parties’ common intention, it is the intention commonly held by the property owner and the plaintiff regarding their shared beneficial interests in the property that matters. The trust is constituted by the three elements of (i) the common intention, (ii) the plaintiff’s detrimental reliance on their common intention, and (iii) the unconscionability of the property owner departing from it.

(3) The burden of proving each element of common intention, detrimental reliance and unconscionability is on the person seeking to show that the beneficial ownership is different from the legal ownership. The focus is on the intention of the parties at the time of acquisition of the asset. Contemporaneous conduct is inherently more likely to be a reliable indicator of intention, to be given greater weight, than are words and conduct after the event.

(4) Common intention can be expressed or implied. It can be deduced or inferred objectively from the parties’ conduct. As a matter of common sense, it is easier to infer such an intention prior to the acquisition of property which results in an obvious change in legal ownership (rather than after such an acquisition where there is no change in legal ownership and a change in beneficial ownership is not otherwise apparent).

(5) In Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327, §§2.3-2.4, Cheung JA identified two situations where a common intention constructive trust may arise.

(a) The first is where at any time prior to acquisition, or exceptionally at some later date, there is an agreement, arrangement or understanding reached between the parties on how the property is to be held beneficially. The finding of such an agreement or arrangement can only be based on evidence of express discussions between the partners, however imperfectly remembered and however imprecise their terms may have been.

(b) The second situation is where there is no evidence to support a finding of an agreement or arrangement on the beneficial ownership of the property, and the court must rely entirely on the conduct of the parties both as the basis from which to infer a common intention on the beneficial ownership of the property and as the conduct relied on to give rise to a constructive trust. In this situation, direct contributions to the purchase price by the party who is not the legal owner, whether initially or by mortgage instalment payments, will readily justify the inference necessary to the creation of a constructive trust.

(6) A resulting trust arises by virtue of the plaintiff’s contribution in money or in some other way towards the property's acquisition. Equity holds the legal owner to be a trustee of that property for the plaintiff in an appropriate share, giving effect to the parties presumed intention. Particularly in a domestic context, but also generally, if it is possible to resolve the matter by reference to common intention, there is no need to resort to resulting trust.

(7) As emphasized in Stack v Dowden §§68-69, an intention to have beneficial interest different from legal interest in property is unlikely, and the task of showing that should not be lightly embarked upon. It was recognized that, in family disputes, strong feelings are aroused when couples split up which can often lead the parties, honestly but mistakenly, to reinterpret the past in self exculpatory or even vengeful terms. If a difference is to be found between the beneficial and legal interest, clear evidence will be required. Unequal contributions to the purchase price of property will not likely be enough to move away from the starting point that equity follows the law.

44. As can be seen from the above, ultimately it is a question of intention – in the case of constructive trust, the common intention of the property owner and the plaintiff; and in the case of resulting trust, the intention of the person who provided the purchase price at the time the property was acquired. Between the two, and particularly in a domestic context, if it is possible to resolve the matter by reference to common intention, it would not be necessary to resort to resulting trust at all: Primecredit §1.3.

45. The modern approach to constructive trust is to assess the common intention of the parties by a holistic approach having regard to the context. In a domestic context (particularly in relation to a matrimonial home), the court is not constrained in that exercise by pure direct monetary contributions to the purchase price: Primecredit §1.6.

46. Moreover, in the assessment (whether on constructive trust or resulting trust), the court should have regard to inherent probabilities in light of the surrounding circumstances at the time the property was acquired: Primecredit §1.4.”

F.  ANALYSIS

53.  As D is asserting a claim against the estate of the Deceased, the court must approach the evaluation of this claim with particular caution. The Deceased is unable to provide his own account or respond to the allegations. Therefore, a careful and thorough assessment of the evidence is necessary, with recognition of the inherent limitations and risks associated with claims made against an estate where one party cannot speak for himself.

54.  While it is undisputed that P was not involved in the discussions surrounding the formation of the alleged First Trust Arrangement, P maintains that the Deceased consistently represented to her that he acquired the Property solely with his own funds. Additionally, the Deceased asserted that the Children neither contributed financially to his living expenses nor assist with mortgage repayments. Further, it is P’s case that neither the Deceased nor the Children ever conveyed to P that the Property was held on trust for the Children.

55.  After careful consideration of the evidence, I prefer the evidence of the Children to that of P.

56.  Throughout P’s testimony, she responded in a careful and guarded manner, even when faced with some straightforward questions that ordinarily would not require such caution. Further, her approach to giving evidence was marked by statements that were, at times, broad or sweeping in nature, only for her to later retract or modify these positions during cross-examination.

57.  For example, P asserted in the witness box that the Children never contributed any money over the years, yet her own Reply and Defence to Counterclaim[3] included an exception for “pocket money” given at times. When confronted with this inconsistency, P stated that the court’s version was correct and the written version was wrong, but she could not explain the discrepancy. I find that P amended this evidence in an attempt to reinforce her position by asserting that the Children did not make payments to the Deceased at all, thereby seeking to preclude any suggestion of their financial contribution toward mortgage payments or involvement in the alleged trust arrangement.

58.  P’s behaviour during the proceedings further revealed a distinct emphasis on safeguarding her own rights and interests. Throughout her testimony, she consistently sought to assert her position with determination. Yet, upon closer examination, aspects of her evidence appeared inconsistent with this self-protective stance. In several instances, the scenarios she described suggested a tendency to acquiesce to the unreasonable demands of the Children, a pattern that stands in contrast to the assertiveness she otherwise demonstrated.

59.  For instance, P recounted that the Brother pressured her into attending the Probate Registry by raising his voice and displaying anger when she hesitated. Despite these circumstances, it is not apparent that P is a person who would be easily intimidated or compelled to comply merely because someone spoke loudly or exhibited anger. Her decision to acquiesce, rather than stand her ground, raises questions about the credibility of her narrative.

60.  Furthermore, P claimed that, around October 2015, D addressed her in an unkind manner and insisted that she vacate the Property. She chose to leave in response to D’s harsh words. When questioned as to why she would leave solely based on verbal demands, P explained that she was fearful of being assaulted. However, she did not provide any explanation as to why verbal aggression alone would give rise to such fear, nor did she offer any evidence that D had ever demonstrated violent behaviour towards her, either on this occasion or in the past.

61.  In contrast to the evidence provided by P, the evidence of D and his witness were nature and spontaneous and corroborated each other’s evidence. They were not shaken despite lengthy cross-examination.

62.  One of P’s main criticisms centered on the lack of documentary evidence supporting D’s case. P highlighted that D was unable to produce any written documentation to support the existence of the alleged First Trust Arrangement or Second Trust Arrangement. Specifically, P noted that no formal written trust instrument had ever been executed. She argued that, given that the purchase of the Property was conducted through lawyers, it would have been straightforward for the parties to draw up a formal trust instrument at the time.

63.  Nevertheless, it does not appear unusual or unnatural for such family arrangements to be conducted informally and without any official record. Family agreements of this nature are often not documented in writing, particularly where trust and mutual understanding are presumed among the parties involved.

64.  On the other hand, I think a significant factor to consider is the financial situation of the Deceased. According to P herself, the Deceased’s business at times operated at a loss and the Deceased’s finances were under considerable strain. P asserted that, under these circumstances, she was compelled to use her own earnings from singing performances to support the household. P stated that she would regularly hand over sums of HK$500 or HK$1,000 to the Deceased, which were intended specifically for purchasing food. This pattern of financial assistance was not an isolated occurrence. In fact, P estimated that between 2005 and 2015, she provided such support on more than ten occasions each year. Notably, in or around 2010, her monthly contributions for food increased significantly, reaching amounts as high as HK$5,000 to HK$6,000.

65.  This depiction of ongoing financial hardship raises doubts about whether the Deceased truly had the financial capacity to meet both mortgage repayments and general household expenses singlehandedly, as claimed by P. Instead, the evidence presented by P herself appears to support the Children’s position: the Deceased typically expended all available funds and frequently had to borrow from family members to make ends meet. This narrative reinforces the view that the Deceased did not make the mortgage payments himself; rather, the necessary funds for paying the mortgage instalments were provided by the Children, whose support was also used to cover other household expenses.

66.  In conclusion, I accept Ds’ factual case as true and, in case of conflict, I prefer D’s evidence to P’s.

67.  In her closing submissions, Ms Tsang, representing P, advanced an argument concerning alleged illegality and the doctrine of unclean hands. She contended that “the DWs / at least [the Brother] and [the Sister] who did not [joined as registered owners] because it would affect their entitlement in buying other subsidized flats under HOS or applying for public housing units”.[4] This submission was based on the testimony of both the Brother and the Sister, who stated that they were relatively young at the relevant time and chose not to register themselves as owners so that they could retain future eligibility for public housing. Ms Tsang further noted that the Sister ultimately succeeded in acquiring a flat under the Home Ownership Scheme.

68.  However, this argument was only briefly presented and is, with respect, rejected. Ms Tsang fairly conceded that there was no evidence of any express discussion among the Children and the Deceased regarding the future intentions of either the Brother or the Sister to acquire subsidized housing at the time the First Trust Arrangement was made. These stated intentions therefore appear to reflect merely the subjective considerations of the Brother and the Sister, rather than constituting any part of the common intention of the parties involved.

69.  Further, there is no evidence indicating that D engaged in any alleged wrongful conduct or harboured any such intentions. On the contrary, the evidence illustrates that D, unlike his siblings, was unaware that the Property could have more than one registered owner. Additionally, D did not understand why his siblings were not registered as co-owners, as this matter had not been discussed among them.

Findings

70.  In conclusion, I am satisfied that the First Trust Arrangement was established. The Children, including D, relied upon this arrangement to their detriment. Their reliance is demonstrated through their payment of the intention money, making mortgage repayments, and regularly contributing to various household expenses. Given the extent of these contributions and the reliance placed on the First Trust Arrangement by the Children, it would be unconscionable for the paper owner to renege on the arrangement.

71.  Further, I am satisfied that the Second Trust Arrangement was established, which resulted in D becoming the sole individual with beneficial entitlement to the Property.

G.  ORDER

72.  For the aforesaid reasons, I make the following orders:-

72.1.  P’s claim is dismissed;

72.2.  P (in her capacity as the sole administratrix of the Deceased’s estate) do transfer and assign her interest and title in the Property to D within 28 days, and to take all reasonable steps and execute all documents as may be necessary to effect the aforesaid transfers and assignments to D; and

72.3.  In default of D complying with paragraph 3 above, any solicitor from D’s solicitors’ firm be directed under Section 38A of the District Court Ordinance (Cap 336) to take all steps and execute all documents as may be necessary to effect the transfers and assignments as stated under paragraph 3 above.

73.  I also make a costs order nisi that the costs of the action be paid by P to D, to be taxed if not agreed, with certificate for counsel. D’s own costs to be taxed in accordance with the Legal Aid Regulations.

74.  Lastly, I thank all counsel for their helpful assistance.