CHEUNG CHO KAM SINDY AND ANOTHER v. CHEUNG YUET YING ROSE

CACV 178/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 2008

(ON APPEAL FROM HCA NO. 885 OF 2005)

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J U D G M E N T

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Hon Rogers VP:

1.  This is an appeal from a judgment of Deputy High Court Judge Muttrie given on 13 July 2007.  The order that was made by the judge was that all moneys and securities and assets deposited in bank accounts of the deceased, Madam Lau Mei-tai, which were and are held by the defendant, whether solely or jointly with others, were declared to be held on trust for the deceased absolutely.

2.  The judge made other and further orders, including orders for interim payment of a sum in excess of $5 million to the 1st plaintiff, and a sum in excess of $1.5 million to the 2nd plaintiff.  I should state at the outset that the 1st and 2nd plaintiffs are sisters of the defendant.  There were other siblings who took part in the case but were not parties to the action.  There was also a father.

3.  The history of the matter is relatively simple, although the judgment is extensive.  For the full facts of the case reference can be made to the judgment.  In essence, the deceased was the mother of the family.  She, by all accounts, must have been a fairly shrewd lady.  She operated a store in the Wong Chuk Hang Estate.  By dint of her financial acumen - which was not apparently learned at school, but in practice - she managed to accumulate considerable wealth, largely probably by dealing in shares.  Towards the end of her life her health was not good.

4.  In summary, what the judge held was that the deceased had arranged for the defendant to help her manage her bank accounts.  There were a large number of bank accounts.  They are set out in paragraph 5 of the Amended Statement of Claim.  There was also a deposit box.  Many of those bank accounts were held in the name of the deceased solely, but the defendant had control of them.  Some of them were held in the name of the deceased and the defendant.  One of the interesting points of the evidence is that, while she was able, the deceased used to go to the bank to have her bank statements explained to her.  In later years, especially when she was in hospital, that was not possible.

5.  The judge carefully examined and considered the evidence that was given at the trial before him that had extended for a period of some five days.  He reached firm conclusions.  I think I need only cite from paragraph 80 of the judgment, where he said:

“I am not satisfied that the mother’s funds or the articles kept in her safe deposit box, or any of them, were given to Rose by the mother as a gift inter vivos, nor am I satisfied that the mother approved and consented to the withdrawals which Rose made.  I am satisfied that Rose held the funds on trust for the mother, and to the extent that she took them for herself she was in breach of trust.  As to Stella’s account, the conclusion must be that the mother kept the funds for Stella, who was the beneficial owner, and Rose wrongfully converted the sum pleaded to her own use.”

6.  The judge did not alight upon that finding simply as such, but he had scrutinised the evidence.  He had examined in particular the evidence which had been given by Rose, and the way in which it had emerged over the course of time that Rose actually had claimed that the moneys and the contents of the deposit box belonged to her and had been given to her.  The judge was not satisfied and, thus, he came to his firm conclusions.  His judgment followed accordingly.

7.  On this appeal Mr Yip has manfully tried to argue that the judge should have applied the presumption of advancement.  He says that the judge should have started with that.  But the fact of the matter is that the presumption of advancement is only a presumption which is applied when there are no facts upon which the court can operate which would determine one way or the other where the particular property was intended to be owned.  Once the judge has made findings of fact, as has the judge in this case, there is no scope, in my view, for the presumption of advancement.

8.  For those simple reasons, in my view this appeal must fail.

Hon Le Pichon JA:

9.  I agree.

Hon Stone J:

10.  I entirely agree with the judgment of the Vice President.

11.  It seems to me, with respect, that the Appellant has given an wholly erroneous significance to the so-called “presumption of advancement.”  It is not a ‘starting point’, as Mr Yip strongly has maintained, which thus immediately reverses the burden of proof.  As the Vice President has intimated, the presumption is relevant only when there is no evidence of actual intention, or when the evidence available as to actual intention is evenly balanced.  This patently is not the case here.  The learned judge considered all the evidence and made his firm findings of fact.  In the circumstances I, too, fail to see how the presumption comes into play at all.

(Submission re costs)

Hon Rogers VP:

12.  We have generally adopted the approach that even if people do not ask for it, they will be entitled to a certificate for two counsel into the Order.  But we now will make it clear, as very often people forget to ask for it.  In this court we think that no case should come to this court unless it merits two counsel.