LUK SIU PO v. LUK HIN LUN AND OTHERS

HCA 399/2019

[2025] HKCFI 6302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 399 OF 2019

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BETWEEN

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JUDGMENT

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INTRODUCTION

1.  It takes two to tango and the four individuals, namely, Madam Luk (“P”), Mr Luk (“D1”), Madam Lee (“D2”) and Madam Tung (“D3”), in this action were locked in an extraordinary dance in their own making over the course of a decade from 2008 to 2017. The chemistry among them was intriguing and their interactions were beyond reason. The binding force of this quartet was provided by a divine master (“the Master”) who could perform a wide range of rituals to improve their health, fortunes, personalities and physical appearances.

2.  Among them, P was financially strongest having decent employment that yielded a high income. She had spent huge amounts of money mostly pursuant to the instructions of D2 when the parties were very close. At long last, in 2018, P came to her sense and now seeks to press the undo button to recover her financial loss and seek damages by this action.

3.  P’s non-monetary claims concern two landed properties. One is known as 1^st Floor and Roof, Lot No 1140 in DD450, Tsuen Wan, New Territories (“the 1140 Property”) and the other one is known as 1^st Floor and Roof, Lot No 1151 in DD450, Tsuen Wan, New Territories (“the 1151 Property”). For the 1140 Property, P executed an assignment (“the 1140 Assignment”) in January 2016 and for the 1151 Property, P signed a Declaration of Trust and an Acknowledgment of Debt both dated 23 February 2016 (collectively “the Impugned Documents”) in the office of Messrs. Ng, Au Yeung & Partners (“NAYP”), which acted for D1. P now seeks to set aside or nullify all the Impugned Documents on the ground that her execution of the same was procured by undue influence, duress, threat and/or violence against her.

4.  For the 1140 Property and the 1151 Property, Prior to the signing of the 1140 Assignment, P were the registered owner of both properties. P claims that they have been occupied by D1 and D2 to her exclusion.

5.  P claims vacant possession of both the 1140 Property and the 1151 Property to be delivered to her by Ds forthwith.

6.  P further make some monetary claims against Ds. First, as against D1, P seeks to recover from him a debt in the sum of HK$700,000 (“the Debt”). The advancement was made to D1 in or about June 2008.

7.  Second, P makes a claim against D1 and D2 for an aggregate sum of HK$5,389,975 which she claims to have been transferred out from her monthly income to D2 over the years pursuant to her demand (“Transferred Income”).

8.  Third, another sum sought to be repaid to P is an aggregate sum of HK$1,159,995.45 which P claims to have transferred to the personal account of D1 from a joint account in the names of P and D1 (“the Joint Account”) on 14 and 16 January 2015.

9.  Fourth, P claims against Ds for repayment of three bank loans which she applied for their use. These loans include a loan of HK$1 million from Standard Chartered Bank (“SC”) made on 21 May 2015 (“the SC Loan”), a loan of HK$700,000 from Bank of China made on 23 September 2015 (“the BOC Loan”) and a loan of HK$200,000 from Hang Seng Bank made in about 2017 (“the Hang Seng Loan”).

10.  Fifth, P seeks an account, tracing and inquiries of all the monies withdrawn from the Joint Account and the monies Ds received out of D2’s custody and possession of her nine credit cards and 4 ATM cards since 2016.

11.  Sixth, P asks for damages to be assessed for various fraudulent misrepresentations made by Ds. P says she has suffered a loss of HK$1,242,499.00 as a result of their misrepresentations.

12.  Seventh, P seeks to recover a sum of HK$1,949,300 (“the 43 Payments”) which represents the aggregate amount of the monies P paid Ds on 43 separate occasions from 2009 to 2017 due to many years of deceit, physical violence in the form of intimidation and assault as well as duress and undue influence by Ds.

13.  Eight, for the tort committed by Ds including assault, battery and false imprisonment, P asks for general damages in the sum of HK$100,000 and aggravated damages in the sum of HK$500,000.

14.  The table setting out the monetary claims of P prepared by Mr Nip and Mr Tang, counsel for P, is shown below:

Loss in the form of expenditures due to the fraudulent misrepresentations relating to the Master	HK$1,242,499.00
Loss in the form of bank loans due to the fraudulent misrepresentations relating to the Master	HK$1,962,274.00
43 Payments	HK$1,949,300.00
Transferred Amount	HK$5,389,975.00
Damages for torts	HK$600,000.00
Total	HK$11,144,048.00

15.  P is willing to give credit for the aggregate amount of HK$1.75 million given to her by D1 when P purchased two properties including the 1151 Property. Hence, P asks for an order that D1 and D2 jointly and severally pay her HK$9,394,048.00 and for D1 alone, an additional sum of HK$700,000 as debt repayment

16.  Lastly, P asks for other relief ancillary to the foregoing matters and interest on the sums above.

17.  Ds had been jointly represented by the same firm of solicitors and they had filed a joint Defence. Until the Case Management Conference on 29 July 2024 before this court, they were represented. They now act in person and they took different approaches at trial. D2 did not take any part at all. Less than a week before the commencement of the trial, D2 wrote to this court and explained that she was troubled by many ailments and was unable to attend the trial. She enclosed the death certificates of her mother and brother (both passed away before 2000) and two medical certificates issued by her doctor respectively dated 28 September 2020 and 18 January 2025 with her letter.

18.  After close of evidence, D3 reached a settlement with P though she also lodged her written closing submission.

19.  D1 testified and resisted P’s claim vigorously from start to finish.

The Parties

20.  At the outset, it is necessary to provide some background information about the parties to understand the dynamics and the power distribution among the quartet.

21.  P is the elder sister of D1 and they have no other siblings. Their mother is a Singaporean. P is now in her early fifties. In 1995, she graduated from the National University of Singapore. After graduation, she worked in Singapore until 2001. In 2006, P obtained her dual master’s degree in Business Administration and Financial Analysis at the Hong Kong University of Science and Technology.

22.  P has long been employed by reputable enterprises working in the field of information technology assuming senior positions. At all material times, P was single.

23.  D1 is only one year younger than P. He graduated from Curtin University of Technology and has operated a retail shop dealing in computer accessories and electronic appliances with the trade name “Forward Technology Company” in Kwai Chung since 2010.

24.  D1 has had a number of names and his current name is Ivan. He married one Madam Liu in 2003 and got divorced in the Mainland in October 2008.

25.  Prior to 2007, D1 worked in Malaysia. Then he returned to Hong Kong and was employed by a local company known as China Harbour before he opened his retail shop.

26.  Little is known about the real background of D2. She has also had a number of names and alias. The documentary evidence shows that she was referred to Joan, Zoe and「亞敏」.

27.  Purportedly, D2 earned a degree in interior design from the University of London and worked as a free-lance designer. D1 and D2 clearly had a romance though, for unknown reason, D1 refused to admit the relationship at trial despite his intimate notes to D2 and their wedding photos.

28.  D3 was the childhood friend of D2 and they were neighbours. D3 finished her secondary school studies and took on a few different jobs including estate agent. D3 was once declared a bankrupt. D3 came to know D1 in an online forum on Buddhism in December 2006. She became their close friend when D1 returned from Malaysia to settle in Hong Kong in mid-2007.

29.  In or about March 2009, D3 held her birthday party and she invited P, D1 and D2. It was the first time when P met D2 though they had spoken online. The quartet was then formed.

30.  D3 once had a Japanese boyfriend known as Mr Kato in her workplace. Mr Kato gave her substantial financial support.

Parties’ respective case

31.  P’s story with D1, D2 and D3 (collectively “Ds”) spans a long period of time and P has included a very long story in her pleadings and witness statement. Her case is summarised as follows:

32.  On the other hand, in late May and early June 2008, D1 orally represented to P in a restaurant in Causeway Bay that he was indebted to some banks and he was on the verge of bankruptcy. D1 asked P to lend him HK$700,000 so that he could discharge his liabilities.

33.  P agreed and made transfers to D1’s designated company known as Joysky Holdings Limited and D3 in June 2008 and the Debt was incurred. The loan was repayable on demand.

34.  By a demand letter dated 30 June 2020 (“the June 2020 Letter”), the solicitors of P demanded D1 for payment for the Debt. In reply, D1 denied having incurred the Debt and refused to make any repayment.

35.  For the Debt, P makes an alternative restitutionary claim against D3 based on unjust enrichment, money had and received and mistake.

36.  The short answer of D1 to the Debt allegation is that the amount of HK$700,000 was given to him as an absolute gift. It was a bait to induce him to return to Hong Kong from Malaysia. D1 alleges that P expressly told him that the advancement was not a loan and he did not have to make repayment.

37.  D1 also claims that the Debt is in any event time-barred under the Limitation Ordinance, Cap 347 (“the LO”). He further denies any oral admission of the Debt and any estoppel arising from such admission.

38.  Now I turn to the main story. In 2008, D1 called P and told her that D2 was pregnant with his child and D2 had decided to leave him. D1 asked P to convince D2 to stay with D1. P then started talking to D2 online and over the phone. They became close.

39.  P was impressed by D2 though they had not yet met until March 2009. D2 told P that:

(1) D2 was well-educated and came from a wealthy family;

(2) D2 was good at problem solving and helped D1 a lot including improving his physical appearances;

(3) D1 was in the course of his divorce with Madam Liu and Madam Liu approached D2 and humiliated her;

(4) D2 and D1 had a son called「德仔」 (“Tak”);

(5) D2 had a sworn father called Alan who is a rich person with high social status residing in a prestigious area in Hong Kong; and

(6) Alan knew the Master well.

40.  All these made P admire and like D2. P loved D1 very much and P treated D2 as her family member. It should be noted that P never met Alan in person and they only communicated via text messages.

41.  P’s major allegation against Ds is that from 2008 to 2018, on multiple occasions on diver dates, Ds, either individually or jointly, systemically, routinely and deliberately indoctrinated and/or inculcated and/or instilled into P the belief in the Master who had a lot of supernatural powers.

42.  First, in the very beginning, in late 2008, D2 called P over the phone. D2 told P that at the request of D1, she sent some Buddha statutes by post but it turned out that some dangerous drugs were hidden in such statutes. For fear of criminal prosecution, she would soon abscond with the assistance of Alan. D2 told P that a police officer known as Chi Keung would make the arrangement for her to abscond before the police caught her. D2 gave the phone number of Chi Keung to P.

43.  In early February 2009, P was very anxious about the condition of D2 because she could not be reached. She called Chi Keung and could not reach him too. She then left a voice message in her voice mailbox and she mentioned the absconding plan of D2 (“the Voice Message”).

44.  D2 then called P and complained about the Voice Message saying that it would incriminate Chi Keung and caused troubles to him in his position including criminal prosecution. P felt very guilty.

45.  D2 then represented to P that the Master could help and use his divine powers to delete the Voice Message at a fee. P paid a sum of HK$200,800 into D3’s account on the instruction of P as the fee for the deletion of the Voice Message on 19 February 2009.

46.  After payment, D2 told P that the Voice Message was successfully removed. P was very much impressed.

47.  Before long, D2 sent a text message to P that D1 was hexed and vomited insects. D2 told P that D1 would soon die according to Alan and the Master and a ritual was necessary.

48.  Around the same time, D2 and Alan by text messages told P according to the Master:

(1) Simon was D2’s sworn brother and he was from Germany. Simon was destined to be P’s future husband.

(2) Simon’s mother was diagnosed with terminal illness.

(3) Simon was required to take part in a happy event like a marriage so as to remove his mother’s terminal illness.

(4) If P agreed to take part in the happy event, it would help to save D1 from his hex.

49.  Alan and D2 gave the email address and a photograph of Simon to P. P agreed to take part in the fake wedding but she received an email purportedly sent by Simon and was told that his mother had passed away.

50.  Somehow P was very fond of Simon though she had never seen him in person. They kept in touch by emails. On 28 April 2009, P received an audio recording from Simon and Simon told her that he loved her sincerely. However, on 2 May 2009, P received another message from Simon and Simon told her that he gave up the idea of getting married with her. P was heartbroken and frustrated.

51.  Between 2009 and 2011, Simon sent flowers and gifts to P for around 10 times. However, P found Simon to be inconsistent and erratic. He purportedly went to Cambodia to fix his emotion problems by rituals.

52.  In mid-2011, D2 told P that Simon’s issue could not be fixed and the Master advised that a wedding would be of use to fix his problems. Simon must stay in Cambodia but the wedding had to take place in Hong Kong.

53.  The resolution was this. To complete the wedding ceremony, D3 agreed to procure the participation of Mr Kato and he would lend his body for Simon to possess. Mr Kato, possessed by Simon, would be the bridegroom and D3 would be the bride. Eventually, a wedding was held on 10 July 2011. Throughout the wedding ceremony, P did not talk to Mr Kato as instructed by D2.

54.  Afterwards, D2 told P that the ritual was unsuccessful despite the wedding because of Simon’s breach of the Master’s instructions.

55.  P was told that a 2^nd wedding banquet was required. Thus, on 10 September 2011, a wedding banquet was held in a restaurant in Kwai Chung and there were around 90 guests in attendance. I saw the photos of the wedding banquet and it looked like a real one with all the wedding costumes and wedding photos. The guests including the relatives and colleagues of P thought that P was a genuine bride. D2 pocketed all the gift monies given by the guests.

56.  However, Simon’s mood problem persisted and P and Simon had arguments sometimes. D2 encouraged P to pay for a report made by the Master and the Master could tell the future of P and Simon. The Master would charge HK$48,000 for the report (“the Report”).

57.  P agreed and paid the fee. By emails dated 25 and 27 December 2011 and 8 January 2012, P received the Report purportedly from the Master. The Report contained a negative prediction on the long-term relationship between P and Simon.

58.  On 17 January 2012, P received an email from Simon and Simon told her not to contact him again. P has never heard from Simon again after his last email dated 29 February 2012.

59.  This is the end of P’s episode with Simon.

60.  From 2008 to 2017, the quartet was indeed close and from 2009 to 2015, they resided near one another in Ho Pui Tsuen (“HPT”). Altogether 3 flats were rented by them sometime between 2009 and 2019. In July 2009, P rented a flat at 1/F, 23 Kwok Shui Road, HPT (“1/F, 23 HPT”) and she stayed there with her parents. Her parents moved back to their home in Shau Kei Wan in end of 2009 or early 2010.

61.  From 2011 to 2019, D1 rented 2/F, 22 Kwok Shui Road, HPT (“2/F, 22 HPT”). In October 2012, P moved to G/F, 23 Kwok Shui Road, Ho Pui Tsuen (“G/F, 23 HPT”) and resided with D3 whereas D1 and D2 lived at 1/F, HPT from late 2012 to July 2015 (D1 denies that D2 ever lived there with him though). The two flats shared the same roof.

62.  It is necessary to mention an individual called Chen Ze Long 「陳澤龍」 (“Long”) who is a Mainlander by way of background. In around September 2014, D2 instructed P to be the sponsor for Long’s application for a student visa to come to Hong Kong. P agreed and the application was successful. Long came to Hong Kong and resided with P and D3 at G/F, 22 as instructed by D2. P believed that Long should bring good luck to her because he was born in the year of the Ram (1991). During his stay, his father Mr Chen Linhua (“Mr Chen”) would occasionally pay a visit to Long at P’s residence. Long had no interest in his studies and missed school often. He quitted school in October 2016 having jumped off from the roof of their flats.

63.  On the other hand, in around 2009, D2 asked P to sign a written agreement printed in Thai language for admission to the divine club of the Master. The members of the divine club included Alan, Simon, D2 and D3.

64.  P agreed to join the divine club and signed the written agreement delivered to her by D3. As members’ benefits, persuaded by D2 and D3, P joined a beauty plan (“the Beauty Plan”). Having subscribed the beauty plan, the Master would use his divine power to bless the beauty products and skin care accessories bought by D2 on her behalf. After the exercise of the divine power, such products would be doubly effective.

65.  Pursuant to the Beauty Plan, P bought such blessed products from the Master through D2 and/or D3. P had to report to the Master through D2 or Alan his measurements, diet and cosmetic products she was using. The Master would from time to time give instructions to P as to how to use the blessed products. If P failed to comply with such instructions, a financial penalty would be imposed on P.

66.  P spent altogether HK$24,499 to purchase such blessed products and the sum included two penalties amounting to HK$1,700.

67.  P also complains about her financial loss caused by various rituals purportedly carried out for D1. First, in 2010, D2 incessantly complained about D1’s poor temper. D2 demanded D1 to complete a series of programs including rituals. One of them was a river jumping ritual in Cambodia performed by the Master. D1 was required to immerse himself in a river every 1-3 months to improve his character (“River Jumping Rituals”). Eventually, P paid Ds an aggregate sum of HK$400,000 for the River Jumping Rituals including the fees of the Master.

68.  At the end of 2011, the Master emailed P and told her that D1 required more rituals to avoid his suicidal conducts. P paid D2 a further sum of HK$20,000.

69.  On the other hand, D2 told P that D1 had to join a weight loss program so as to enhance his chance of winning Mark Six (“the Weight Loss Program”). Altogether, P paid D2 a total sum of HK$110,000.

70.  In November 2012, D2 told P that D1 had bowel problems and was in poor health. She said D1 could either undergo an operation after which he would be required to wear a colostomy bag for the rest of his life or go through a bowel ritual performed by the Master. D1 had indicated that he would kill himself if he had to wear a colostomy bag. P could only agree with D2 to pay the Master to perform a ritual for D1 to cure his bowel problems (“the Bowel Ritual”). P paid HK$600,000 into the Joint Account so as to pay for the Bowel Ritual.

71.  In 2014, D2 told P that Alan was very ill and required rituals to save his life. D2 warned P that she could not shed a tear because there was a rule against crying. The rituals performed on Alan would be rendered futile if the rule against crying was breached.

72.  In mid-2014, Ds accused P that she had breached the rule against crying and the rituals for Alan were unsuccessful. More rituals had to be performed and much more expenses were incurred. The Master was unduly troubled too. As a result, the Master imposed penalties on P and P must pay such penalties for redemption. At last, in July 2014, D2 told P that Alan had died and she blamed P for her breach of the rule against crying.

73.  P felt very guilty. She did not know the exact amount of the penalties and D2 only told her that the amount was very substantial and P must raise as much as possible. D2 also told P that she had actually paid part of such penalties on her behalf to the Master.

74.  P believed D2 and she felt that she was heavily indebted to the Master and D2.

75.  In particular, D2 penalised P for failing to advise properly Long, on the choice of courses in his school application. On each of the three occasions on 31 August 2015, 1 September 2015 and 8 September 2015, D2 obtained HK$20,000 from P’s Hang Seng Bank visa card account as penalties. Altogether a total sum of HK$60,000 was withdrawn from P’s visa card account and P has suffered loss.

76.  In their Re-Amended Defence (“RAD”), Ds simply make a bare denial of all the allegations relating to the Master.

77.  For the SC Loan, in or about April 2015, D2 falsely represented to P that the Master found P to be too greedy and she should be saddled with bank loans so as to curb her greed. As a result, P applied for the SC Loan in the amount of HK$1 million in May 2015. P further transferred the SC Loan in the sum of HK$938,470 to the bank account of D1 after deduction of all the handling charges pursuant to D2’s instruction on 21 May 2015. P repaid the SC Loan in 60 monthly instalments of HK$17,043.66 each.

78.  For the BOC Loan, in or about September 2015, D1 demanded the same to be taken out by P because of the alleged fracture of D2’s finger. D2 hit P so hard that her finger was injured and she demanded P for compensation. D2 alleged that she required a surgery on her finger and D1 demanded P to apply for the BOC Loan in the sum of HK$700,000 to fund the surgery. D2 agreed that D1 and D2 would repay her the said sum. P then transferred HK$672,000 to the account of D1 by a cashier order after deduction of the bank charges on 23 September 2015. D1 and D2 did not make any repayment. P alone repaid the BOC Loan in 48 monthly instalments of HK$14,888.53 each. P had to pay BOC an addition fee of HK$15,000 on 22 October 2017.

79.  Ds’ defence to the allegations of the SC Loan and the BOC Loan is that the monies borrowed were transferred to D1 as a conditional gift on the condition that they would be used in accordance with P’s instructions and D1 and D3 would pay the living expenses of the quartet by the use of such monies.

80.  For the Hang Seng Loan, D2 demanded P to apply for the same so as to settle her credit card overdrafts. P did so on 24 April 2017. The Hang Seng Loan in the sum of HK$200,000 was used by Ds with P’s ATM cards in their possession.

81.  P alone repaid the Hang Seng Loan in 60 monthly instalments of HK$3,753.40 each.

82.  Ds in the AD deny any demand made to P to apply for the Hang Seng Loan and none of them used the Hang Seng Loan.

83.  I now turn to P’s disposal of her assets in Singapore in 2011. Her pleaded case is as follows.

84.  Due to her employment in Singapore prior to 2017, P had assets in Singapore in the form of a flat (“Singapore Flat”), pension money kept with the Singapore Central Provident Fund (“SCPF”) and credit balance in her bank account with POSB Bank (“the POSB Account”).

85.  D2 repeatedly asked P to liquidate all the assets of P in Singapore and transfer them to Hong Kong. P agreed and did the following:

(1) P sold the Singapore Flat at SGD$366,000. The net equity after mortgage repayment was SGD$311,478.54 (“the Singapore Flat Net Proceeds”).

(2) Out of the Singapore Flat Net Proceeds, SGD$188,446.33 was transferred to P’s HSBC account and SGD$123,032.21 was transferred to P’s SCPF.

(3) P withdrew her pension money from SCPF in the amount of SGD$127,328.26 and deposited the same to the POSB Account. Then from the POSB Account, P transferred SGD$125,800 to her HSBC account. Thus, the total amount P transferred to her HSBC account as a result of her disposal of the Singapore Flat and withdrawal from SCPF amounted to SGD$314,246.33 (“the Singapore Transfer Monies”).

86.  After applying the same to pay for the River Jumping Rituals and the Bowel Ritual, P transferred the balance of the Singapore Transfer Monies to Ds for them to hold as constructive trustees.

87.  P contends that, alternatively, Ds were unjustly enriched by their receipt and use of the balance of the Singapore Transfer Monies and they are liable to make restitution to P for a total failure of consideration or a mistake.

88.  I note that P does not ask for any specific relief in relation to the Singapore Transfer Monies.

89.  Next, in April 2012, D2 demanded P to transfer all her income to her after deduction of a fixed sum to be advised by her as P’s living expense so that D2 could carry out financial management for P. P has altogether made 104 transfers amounting to HK$5,389,975.00 over the years on the understanding that D2 merely holds the monies on trust for P and P remains to be the sole beneficial owner of the monies. This is P’s primary case of Transferred Income.

90.  P makes an alternative plea of money had and received, total failure of consideration, undue influence, misrepresentation to claim a return of the Transferred Income by Ds to her.

91.  Ds dispute the total amount of the Transferred Income. They accept that from 2013 to 2017, P advanced a total of around HK$2,318,600 to D1 and HK$593,800 to D3 by way of an absolute gift on the understanding that they would use the monies in accordance with P’s directions to settle payments and pay for their daily expenses.

92.  For the 43 Payments, P is able to give particulars of 43 payments relating to the dates, amounts and modes of payment but is not sure which Ds she paid on each and every occasions. Further, she merely made a broad brush allegation that such payments were made from 2009 to 2017 on divers occasions because of many years of deceit and physical abuse, intimidation, duress and undue influence.

93.  Ds only admit receipt of the monies as absolute gift and deny that P was made to pay them such monies as a result of any tort committed against her.

94.  For the Joint Account, P contends that it was opened pursuant to the instruction of D2 on 3 January 2013. D2 from time to time asked P to make deposits into the Joint Account and Ds had access to the Joint Account.

95.  On 18 July 2013, D2 instructed P to close the Joint Account. The balance in the Joint Account was transferred to D1’s personal account by way of 2 transfers on 14 and 16 January 2015 on the instruction of D2. The first transfer was in the amount of HK$500,000 and the second transfer was in the amount of HK$659,995.45. P prays for declaratory relief in respect of the total amount of HK$1,159,995.45 (“the Joint Account Balance”).

96.  Ds, in particular D1, has a totally different account in respect of the Joint Account. Ds plead that on 2 January 2013, P and D1 opened the Joint Account with the payment of D1 in the sum of HK$601,000 as initial deposit. The common purpose of the Joint Account was to facilitate their investments in properties. The common intention of P and D1 was that the ownership of the beneficial interest in the monies in the Joint Account was to be determined in accordance with the amount of their contribution.

97.  Ds admit D1’s receipt of the Joint Account Balance upon the closure of the Joint Account on 17 January 2015. It was closed after the acquisition of the 1140 Property by D1 in P’s name. They deny any undue influence exerted on P and any manifest disadvantage to P concerning the deposit of funds into the Joint Account and the eventual transfer of the Joint Account Balance to D1. D1 denies any unauthorised use of the funds in the Joint Account and D2 and D3 had no access to the Joint Account at all.

98.  For the torts allegedly committed by Ds on P at her residence starting from July 2014, P makes the following allegations:

(1) On multiple occasions, P was physically abused. Ds assaulted her with fists and kicks, sometimes with a mop stick. Her face was repeatedly slapped. In around October 2014, P had a rib fracture because of D2’s assault and was admitted to hospital on 8 October 2014.

(2) Ds cut her hair;

(3) P was forced to be engaged in homosexual acts with D3 with D1 taking their nude photographs and videos.

(4) D2 threatened P that if she reported the matter to the police she would be harmed.

(5) P would be punished by the Master if she did not obey D2’s instructions.

(6) P’s credit cards and ATM cards were surrendered to D2 in around May 2016 and all her travel documents were taken away in February 2017.

(7) P was warned that because of her substantial indebtedness to the Master, which D2 had made partial repayments for her, P must accept what D2 did to her.

(8) P was threatened that her employer and recruiting agents would be notified of her huge indebtedness.

(9) On multiple occasions from 2015 to April 2017, D3 did not allow P to leave home for work as a form of punishment on the instruction of D2.

99.  Out of these allegations, P makes a claim in intimidation, unlawful threats to cause harm, assault and battery and false imprisonment.

100.  Ds make a blank denial of all these allegations. Their alternative plea is that any claim made out of them should be time-barred by reason of section 27 of the LO.

101.  Now I turn to P’s claims concerning the landed properties. P starts with the acquisition of a flat known as First Floor, no. 91 Kwan Mun Hau Tsuen, Tsuen Wan, New Territories (“the TW Property”) completed on or about 23 May 2012.

102.  For this acquisition, P entered into a Provisional Agreement for Sale and Purchase on 5 April 2012 (“the PSPA”) and completed the sale on 23 May 2012 with the payment of the purchase price of HK$3,150,000 with a mortgage loan granted by Hang Seng Bank (“1^st HS Mortgage Loan”) of HK$1,200,000.

103.  P avers that the purchase price, stamp duty, legal costs for the purchase of the TW Property and the repayment of 1^st HS Mortgage Loan were paid by her either directly or through Ds or any of them by using the monies beneficially owned by P.

104.  On 15 July 2013, she sold the TW Property at HK$3,930,000 and the net proceeds received was HK$2,597,459.44 (“the TW Net Proceeds”). It is pleaded that due to the threat, undue influence and/or the instruction of D2, P deposited the TW Net Proceeds into the Joint Account to which Ds had access directly or indirectly.

105.  Ds’ case is that the TW Property was purchased by D1 and D1 provided all the purchase monies. D1 had to ask P to purchase the TW Property on his behalf because he was unable to apply for mortgage loans from local banks due to his credit record.

106.  D1 avers that he borrowed from Mr Hirokazu, his elderly Japanese friend, a sum of HK$900,000 and gave the same to P in person or by cash deposit into her bank accounts from March to May 2012. D1 also gave P a cheque of HK$290,000 dated 16 May 2012 issued by him and a cashier order dated 17 May 2012 in the sum of HK$550,000 procured by D3.

107.  D1 says that he repaid the 1^st HS Mortgage Loan by a total sum of HK$147,068 into P’s Hang Seng Bank account.

108.  D1 avers that the sale proceeds of the TW Property should be HK$2,440,959.44 and it was paid into the Hang Seng Bank account of P on 16 July 2013. On 18 July 2013, the entire balance of P’s Hang Seng Bank account in the sum of HK$2,445,668.44 was transferred to the Joint Account.

109.  D1 claims that he is the sole owner of the beneficial interest in the TW Net Proceeds.

110.  The next property in dispute is the 1140 Property. P’s case is that she alone provided the purchase price of HK$3,900,000 and all other related costs with the mortgage loan of HK$1.5 million provided by Hang Seng Bank (“the 2^nd HS Mortgage Loan”). Completion took place on 6 August 2014 and thereafter P has been the sole registered owner of the 1140 Property.

111.  Again, P avers that the purchase price, stamp duty, legal costs for the purchase of the 1140 Property and the repayment of 2^nd HS Mortgage Loan were paid by her either directly or through Ds or any of them by using the monies beneficially owned by P.

112.  P never occupies the 1140 Property. To her exclusion, D1 and/or D2 were in possession of the same without any payment.

113.  Ds’ case is similar to that relating to the TW Property. It is pleaded that D1 paid the deposit of HK$100,000 and a sum of HK$2,300,000 was transferred out from the Joint Account to settle the purchase price together with 2^nd HS Mortgage Loan.

114.  D1 claims to have repaid the 2^nd HS Mortgage Loan and paid HK$666,850 as renovation costs.

115.  On this basis, D1 claims to be the sole beneficial owner of the 1140 Property and P holds the same on constructive trust, or alternatively resulting trust for him.

116.  The situation is very similar in regard to the purchase of the 1151 Property. P claims that she provided all of the purchase price of HK$3,800,000 and all other related costs with the mortgage loan of HK$1.5 million provided by Hang Seng Bank (“the 3^rd HS Mortgage Loan”). Completion took place on 15 April 2015 and thereafter P has been the sole registered owner of the 1151 Property.

117.  Again, P avers that the purchase price, stamp duty, legal costs for the purchase of the 1151 Property and the repayment of 3^rd HS Mortgage Loan were paid by P either directly or through Ds or any of them by using the monies beneficially owned by P.

118.  P herself never occupies the 1151 Property. D1 and/or D2 were in exclusive possession of the same without any payment.

119.  Ds’ case is that D1 provided a total sum of HK$1,911,000 to P by one transfer on 17 February 2015 and two transfers on 14 April 2015 for the partial payment of the purchase price of the 1151 Property and he has settled the renovation costs in the sum of HK$762,420 on or around 20 October 2015.

120.  D1 claims that his foregoing payments gave rise to a resulting trust and he has acquired some beneficial interest in the 1151 Property accordingly.

121.  It should be noted that there is no counterclaim for beneficial interest in any property, however.

122.  Lastly, P prays to set aside the 1140 Assignment, Acknowledgement of Debt and the Declaration of Trust. These documents were all prepared by NAYP.

123.  In mid-January 2016, P went to the office of NAYP to execute the 1140 Assignment whereby P assigned her legal title and interests in the 1140 Property to D1 for the consideration of HK$3,700,000. The 1140 Assignment has been registered in the Land Registry.

124.  In late February 2016, P was asked to go to the office of NAYP to execute two more documents. First, by the Acknowledgment of Debt, P acknowledged that she was indebted to D1 four specific amounts of HK$153,392.94, HK$74,442.65, HK$31,600.00 and HK$16,000.00 and further addition debts.

125.  Second, by the Declaration of Trust, P declared that she held the 1151 Property on trust for the sole benefit of D1.

126.  P avers that she did not have the chance to obtain independent legal advice on these documents and though their contents are untrue, she signed them because she was affected by the threats, duress and/or undue influence of Ds.

127.  P makes it clear that she did not intend to assign the 1140 Property to D1 and D1 never paid her the purported consideration of HK$3,700,000. She did not owe D1 any amount and she is the sole beneficial owner of the 1151 Property.

128.  The pleaded case of Ds is that there was an oral agreement between P and D1 that P would transfer the legal title to D at nil consideration. By two cheques both dated 28 January 2016, D1 paid HK$1,394,456.51 to redeem the 2^nd HS Mortgage Loan and HK$92,850 for all other legal costs.

129.  Ds avers that it was the common intention of P and D1 that the Acknowledgement of Debt and the Declaration of Trust have no legal binding effect. They were created merely to show Mr Chen that P was in poor financial condition.

130.  D1 insists that P had ample opportunities to seek legal advice on these documents.

131.  P claims that she discovered the fraud perpetrated on her only in April 2017 when D2 evicted her from her residence in HPT. P returned to her parents’ home and her mother told her that Ds had defrauded her. It was not until then that P realised that Ds had perpetrated fraud on her throughout.

ANALYSIS

Credibility of witnesses

132.  The disputes in this action are largely factual in nature. One of the major tasks of this court is to assess the credibility of each of P, D1, D2 and D3. As earlier explained, P, D1 and D3 are the only live witnesses.

133.  I find the following guideline for the assessment of credibility given by DHCJ Eugene Fung SC (as Eugene Fung J then was) in Hui Cheung Fai v Daiwa Development Ltd (unreported, HCA 1734/2009, 8.4.2014) at §§77-79 to be of assistance,

(1) Contemporaneous written documents and documents which came into existence before the problems in question emerged are of the greatest importance (§77);

(2) In deciding whether to accept a witness’s account, importance should also be attached to the inherent likelihood or unlikelihood of an event having happened, or the apparent logic of events (§78); and

(3) Importance should be attached to the consistency of the witness’s evidence with undisputed or indisputable evidence, and the internal consistency of the witness’ evidence (§79).

134.  In this case, the parties, P in particular, try to take this court through all their dealings over the years and more than 3,000 pages of documents are included in the trial bundles. There are numerous printed copies of online text messages (MSN, Skype and WhatsApp, etc.), transcripts of their conversations and emails exchanged among them. Many audio-recordings have been produced as well.

135.  It is indeed a laborious task to go through these documents but they are very revealing. They paint a graphic picture of how the quartet got along with each other throughout these years.

136.  D1 complains that P is selective in her production of documents. There is no substance in this complaint. D1 does not explain how the missing documents show a different picture and why none of Ds has produced such documents.

137.  Evidently D2 appeared to be the leader purportedly with exclusive access to the Master. She commanded unquestioned loyalty from P, D1 and D3. All of them were completely submissive to D2. In so many exchanges among the parties involving D2, none of them ever expressed any disagreement let alone challenges to D2.

138.  D2 appeared to be irascible and irritable. She could not speak without using vulgar language. She was extremely rude to P, D1 and D3. She was very manipulative, making unreasonable demands, sometimes in the name of the Master. D2 and D3 explained to this court that D2 was sometimes unable to leave her home to join their gathering. Yet, she would instruct them to turn on their mobile phones and wear Bluetooth headphones with her on the other side of the line so that she could be kept abreast of their interactions and give them instructions instantly.

139.  Her conduct could be somehow explained by the medical certificates produced by her. Nevertheless, in the absence of a recent medical certificate proving her inability to attend the trial, I am unable to accept that D2 has valid grounds for not testifying to support her defence. D3 told this court that D2 asked her to report to her the progress throughout the trial on a daily basis.

140.  I should be entitled to draw negative inference against her from her absence from trial. She did not even try to substantiate all her allegations in the RAD and her witness statement. I cannot give any weight on the latter and it must be expunged.

141.  Indeed, D2 appeared to be a dishonest and deceitful person. She sent some baby photos to P to make her believe that Tak was in existence and was the son of D1 and her. In the RAD, she merely accepts that she did not have any baby with D1 and does not tell the truth. D1 in court accepted that he never had any baby with D2 and Tak did not exist.

142.  D2 even claims that she had sex with Long and other men solely for P’s benefit because these activities would bring good luck to P in her career. She could not have honestly believed this outrageous allegation.

143.  There is a clear difference between superstition and lies. Believing something seemingly unbelievable does not necessarily make one a liar; creating a fictitious character and a false story does. I have read all the messages exchanged between Simon and P, his photos sent to P and the whole story about the bogus wedding banquet. Absent any evidence adduced by D2 to prove the source of information about Simon, I am positive that Simon was never in existence. Indeed, in April 2017, D2 confessed to P that Simon was a made-up character. Everything purportedly said and done by Simon originated from or was orchestrated by D2 only. D2 has no credence at all.

144.  D1 was not a truthful witness in my view. He showed little care about the truthfulness of his testimony and had scant regard for what he had said in his witness statement and his pleadings. He was prepared to say anything just to evade liability. He denied making threats and assaulting P but the transcripts tell a different story. He did not appear to have financial resources and he was in financial difficulties. I am sceptical about his allegations of payment and I require compelling evidence to be convinced.

145.  D1 was clearly infatuated with D2 though he denied having any romance with D2. He denied having cohabited with her and claimed that she sometimes went to HPT just to see the cats. All the photos including fake wedding photos and his loving messages show that he was head over heels in love with her.

146.  D1 held D2 in high regard and he would only side with D2 when she scolded or assaulted P. D1 was always disrespectful and aggressive towards P though he knew very well P loved him without reservation. It is sad to see him thoughtlessly speak to P in foul and derogatory language.

147.  Unless his evidence is supported by compelling documentary evidence or collaborated by cogent evidence, I am unable to have any confidence in him.

148.  D3 was probably the most easy-going character among the four of them and was happy to follow the instructions of D1, D2 and P. She believed, and I suspect she still believes, in the Master. She told this court that she had genuinely found those skincare products were of better quality after the blessing of the Master following the Beauty Plan. As with P, D3 must have been deceived by D2 too.

149.  When D2 instructed P to make love to her, D3 did not refuse P though she was reluctant to do so. She did not appear to me to be a fraudster and she was forthcoming in the witness box. I am willing to accept her evidence in respect of those matters which she had personal knowledge, experience and involvement whereas her evidence of such matters related to her by others especially D1 and D2 cannot be reliable.

150.  P is educated and in very decent employment. Of course she appeared to be intelligent and articulate.

151.  She was generally an honest witness and her factual allegations against D1 and D2 are mostly supported by incontrovertible documentary evidence and relevant audio-recordings. She was also fair in accepting the innocence of D3 in some of her pleaded allegations.

The Debt

152.  Now I turn to the claims of P.

153.  I accept P’s evidence that the advancement was made as a loan to D1 and not a gift. D1’s explanation that it was a gift to encourage him to return to Hong Kong must be rejected. I accept P’s evidence that D1 had orally promised to repay the Debt when he had the money.

154.  P pleads that the Debt was payable on demand. P relies on the June 2020 Letter but it was issued only after the issue of the Writ herein.

155.  This is a well-established common law rule that where a loan has been made without any provision as to the time for repayment or even where the loan is expressed to be repayable on demand, the obligation on the borrower to repay is immediately after the loan is made. In other words, the cause of action against the borrower for the repayment of the loan accrues once the loan is made: Chuang, Eugene Yue Chien v Kevin Ho Yau Kwong, unreported, HCA 1904/2001, 8.11.2002 per Ma J (as the former CJ then was) at §15.

156.  The Debt is clearly time-barred.

157.  P’s reliance on the representation, promise and/or reassurance of D1 that he would repay the Debt when his financial condition permitted is misplaced. There can be no estoppel disentitling D1 to the limitation defence under the LO.

158.  If such oral representation, promise and/or reassurance can suffice to stop the time to run, the formal requirement of a written acknowledgement of the loan in section 24 of the LO would be meaningless.

159.  I cannot accept that the Debt is still recoverable when the Writ was issued. This claim must be rejected.

Damages for loss caused by the fraudulent misrepresentations involving the Master

160.  I should remind myself of the relevant principles relating to fraudulent misrepresentations and limitation period in fraud cases.

161.  In Wong Wai Sum v. AXA China Region Insurance Company Limited and Anor. [2025] HKCFI 872, Cheng J set out the relevant principles in the following two paragraphs:

Ҥ72. The burden of establishing fraudulent misrepresentation lies on the complainant. Whilst the burden is that of the balance of probabilities, it is to be borne in mind that the more serious an allegation is, the more cogent is the evidence required to overcome the unlikelihood of what is alleged and thus to prove it. This is because the inherent probability of an event is a matter to be taken into account when deciding whether it occurred. See In re H and others (minors) [1996] AC 563 at 586G (Lord Nicholls).

§73. The elements of a claim of fraud or deceit were set out in Haifa International Finance Co Ltd v Concord Strategic Investments Ltd [2009] 4 HKLRD 29 at [15], citing Winfield & Jolowicz on Tort, 17^th ed., at paragraph 11-3:

73.1 There must be a representation of fact made by words or conduct.

73.2 The representation must be made with knowledge that it is or may be false. It must be wilfully false, or at least made in the absence of any genuine belief that it is true.

73.3 The representation must be made with the intention that it should be acted upon by the claimant, or by a class of persons which includes the claimant, in the manner which resulted in damage to him.

73.4 It must be proved that the claimant has acted upon the false statement.

73.5 It must be proved that the claimant suffered damage by so doing.”

162.  The limitation period for a claim in fraudulent misrepresentation is 6 years: section 4(1)(a) of the LO, see also Li Ngan Kwan and Anor v Gao Li Hui and Ors. [2021] HKCFI 2878 at §113 per Au-Yeung J.

163.  Section 26 of the LO provides that if the action is based upon the fraud of the defendant, the period of limitation shall not begin to run until the plaintiff has discovered the fraud or could with reasonable diligence have discovered it.

164.  D1 and D3 testified that they believed in the existence of the Master, Simon and Alan. D1 even said that he knew Simon and Alan had met them in person. I do not believe him. He should have said so and given some details about them in the RAD and/or his witness statement in view of P’s challenges to their very existence.

165.  Mr Nip submits that the pleading of Ds does not allow D1 and D3 to say that they believed in the Master. I cannot agree with him. In the RAD, they expressly deny P’s allegation that Simon and the Master were fictitious characters deliberately deployed by Ds to deceive and defraud P. I see no reason why they are debarred from expressing their own bona fide belief in the Master, which may possibly negative any intention to defraud P.

166.  However, I agree with Mr Nip that in their witness statements they did not expressly say so and indeed they avoid any mention about the Master in their witness statements.

167.  In the present case, it is pleaded that P discovered the fraud only after the conversation with her mother in April 2017 and on the other hand, it is pleaded that P only discovered the fraudulent misrepresentations of Ds in or after October 2017 and could not with reasonable diligence have discovered it prior to that date, praying in aid section 26(1)(a) of the LO.

168.  P’s evidence that her mother’s account of the argument between D1 and D2 caused her to reflect that D2 could actually twist the truth and hence she discovered the fraud. Her explanation is illogical and I cannot be convinced. P should know the disposition of D2 much better than her mother and there is no suggestion that P’s mother was in possession of any insider information about the various misrepresentations relating to the Master. The argument between D1 and D2 was more like the last straw and P decided not to put up with D1 and D2 anymore in my view.

169.  For the claim relating to the Report, it should be noted that the Report was issued in December 2011 and P made payment in January 2012. There is no reason why P only discovered that it was a fraud in October 2017. P did not say what additional information she had acquired in October 2017 to lead her to the discovery of a fraud. The content of the Report was very suspect, bordering on absurdity. It contained a large amount of personal information of Simon purportedly and Simon was said to have an undergraduate degree and a doctor degree from Harvard University and has become a multi-billionaire. The Report should cause concern to any right-thinking persons. P should soon have discovered the fraud and taken action within the limitation period.

170.  I conclude that the claim relating to the Report is time barred.

171.  For the Beauty Plan claim, it is likewise time-barred. Another intractable problem with this claim is that P did not spell out the premium charged by the Master for each of the products purchased through D2 and/or D3. She could not have claimed the entire amount.

172.  For the River Jumping Rituals, I accept the evidence of P that D2 made such a fraudulent misrepresentation to her orally knowing that it was false. P acted on it and paid the sum of HK$400,000. She suffered loss as a result.

173.  P said that D1 had told her that he flew on Alan’s private jet for all the trips to Cambodia for the purpose of the River Jumping Rituals. D1 also explained to P that for the River Jumping Rituals, he was required to immerse himself in a river for some time. Afterwards, he would be locked in a dark room with snakes and rats around him. D1 did not cross-examine P on this and I have no reason to suspect P that she made this up.

174.  D1 did not say a word about the River Jumping Rituals himself in his witness statement. In cross-examination, D1 explained that, contrary to D2’s representation, he only slept and dreamt to be immersed in a river which was very far away.

175.  To me, D1 clearly did not tell the truth. The River Jumping Rituals were plainly a scam. There were in fact no such rituals.

176.  Unfortunately, this claim is time-barred and there is no reason to extend the limitation period. P fails to show how she should be entitled to an extension under section 26 of the LO.

177.  For the Weight Loss Program and the Bowel Ritual, I am unable to accept that they were genuine. Even D1 did not give credible evidence or any evidence at all to show that he had taken part in these activities. I hold that P paid for these because of the fraudulent representations knowingly made by D2 and suffered loss. The claims are, however, time-barred similarly.

178.  For the 3 amounts of penalties of HK$20,000 each purportedly imposed by the Master, I find that D2 made fraudulent misrepresentation to P. The alleged breach of the rule against crying is outlandish and even D2 did not attempt to substantiate this allegation. P was deceived into paying the total amount of HK$60,000 to D2 and suffered loss as a result. There is no evidence of the involvement of D1 and D3 in this matter. There is no limitation issue. D2 alone is liable to pay damages in the like amount to P.

Transferred Income

179.  The primary complaint of P under this head is that in April 2012, D2 demanded her to hand over the Transferred Income for her financial management on behalf of P. D2 would take care of the payments to the Master. Pursuant to this demand, P has transferred a total sum of HK$5,389,975 to D1 and/or D3 pursuant to the instructions of D2 from 2012 to 2018.

180.  Based on this complaint, P has pleaded several causes of action including breach of fiduciaries, undue influence, estoppel, unjust enrichment and false representations. It is difficult to understand some of these pleas, which are not completely pleaded.

181.  Ds accept the receipt of the Transferred Income and do not challenge the quantum of the Transferred Income. Their major contention is that the Transferred Income had been used with the authorisation of P and for her purposes. They were spent on the living expenses of the quartet with her consent.

182.  I should first set out the factual findings in respect of this complaint:

(1) The transfers in Schedule 1 to the Amended Statement of Claim amounting to HK$5,389,975 were made to D2 via D1 and D3 from June 2012 to September 2017 pursuant to the instructions of D2.

(2) I accept P’s evidence that prior to the transfers, D2 told her that she would use such monies to pay for the living expenses of the quartet and to pay the Master.

(3) P agreed to give D2 the Transferred Income only for P’s own purposes and the purposes of the quartet including their living expenses and those of Long and P’s cat and rental payments for their residences at HPT.

(4) I do not accept that D2 has made any payment to the Master by the use of the Transferred Income on behalf of P. There is no such evidence at all.

(5) I accept D3’s evidence that indeed she had used the Transferred Income as directed by P, D1 and D2.

(6) D1 has not given any credible evidence as to how he had spent the monies he had received from P. Nor has D2.

183.  At the material times, before P moved out of HPT, all four of them resided near one another. It is understandable that they agreed to share their living expenses. P was a high earner and it was probable that she intended to show her generosity to D2 and agreed to hand over her income to D2 for her management. P’s rental expenses were taken care of.

184.  In light of these findings, I can conclude that the understanding between P and D2 for the use of the Transferred Income was that the Transfer Income was to be held by Ds on trust for P and such funds could be used only for the purposes agreed by P as aforesaid.

185.  The Transferred Income remains to be trust property. P does not plead any plea of fraud or fraudulent breach of trust in respect of the Transferred Property. Section 20 of the LO is not applicable.

186.  P pleads that Ds have breached their duties as trustees to give an account to P setting out how they have used it and return to her the balance if any. P now asks for an account.

187.  This claim is subject to the 6-year limitation period: section 4(2) of the LO.

188.  I agree that each of D1 and D2 should give an account of such part of the Transferred Income received by him or her. This claim was only added in the Re-Amended Writ dated 18 June 2020. The account covers all the monies received from 18 June 2014 onwards.

189.  Having come to this conclusion, it is not necessary to deal with all other pleas made out of the same complaint.

190.  However, there is an allegation of D1 and D2 against P arising from the issue of the Transferred Income that I find it necessary to deal with despite its lack of relevance. I do this to clear the name of P.

191.  D1 and D2 alleges that P was the mistress of Mr Chen and this was the reason why P assisted Long in his application for a student visa and supported his living in Hong Kong.

192.  After reading all the messages of D2 and seeing all the photos of D2 and Long, I have no doubt that Long and D2 had a very intimate relationship and this was the reason why D2 asked P to assist Long to come to Hong Kong. D2 and P said very little about Mr Chen and there is not the slightest suggestion that P had any relationship with Mr Chen.

193.  Both P and D3 observed that D1 was upset about Long’s stay in their residence. P once apologised to D1 in a text message for causing the failure of Alan’s rituals leading to his death. P told D1 that that was probably the reason why Long managed to take away D2 from D1. D1 might feel broken-hearted but he had no reason to make such a serious and scandalous allegation against his sister.

Joint Account

194.  Though in the RAD, it was alleged that D1 paid HK$601,000 into the Joint Account as an initial deposit, D1 did not adduce any evidence to prove this allegation. In fact, P paid HK$600,000 into the Joint Account on 3 January 2013 on the instruction of D2 for the Bowel Ritual from her HSBC account. D1’s assertion relating to the Joint Account in the RAD must be rejected.

195.  I accept the unchallenged evidence of P that all the monies deposited into the Joint Account were indeed provided by P including the initial deposit demanded by D2. D1 agreed that P alone made deposits into the Joint Account in cross-examination. I refuse to accept D1’s allegation of his contribution to the Joint Account in any event.

196.  It is settled law that where all the money paid into a bank account held by two or more persons is provided by one of them. Normally there will be a rebuttable presumption that all the money standing to the credit of the account is held in trust for the person who provided the money: see Lewin on Trust, (20^th Edn.) at §10-095.

197.  I accept that up till the closure of the Joint Account in January 2015, P was the sole beneficial owner of the funds in the Joint Account. I accept P’s evidence that pursuant to D2’s direction, she transferred the Joint Account Balance on 14 January 2015 and 16 January 2015 respectively to D1. P contends that the two transfers are not gifts and neither D1 nor D2 have provided any consideration for these.

198.  One of P’s pleas is undue influence. P claims that there was presumed undue influence of Ds on her which caused her to make payments to the Joint Account and to transfer all the balance to D1 at nil consideration.

199.  I accept that when the Joint Account was made and when the balance was transferred to D1, P had been indoctrinated by D2 that the Master existed and she believed all the incredible stories of D2 about Simon, Alan, Keung and the Master which D2 did not say anything in the RAD and her witness statements. P felt obliged to comply with the commands of the Master and followed his instructions. D2 was the spokesman of the Master and I am persuaded on the evidence that D2 had become the guru of P in her own right.

200.  I find that D2 had irresistible influence on P and P reposed full trust and confidence in her. P simply followed D2’s instructions unquestioningly. Examples abound. The payments of the Joint Account Balance to D1 could not be readily explained and there is no reason why P made such a gift to D1. I find that the payments were procured by the undue influence of D2.

201.  The transaction must be set aside and D1 and D2 must return the Joint Account Balance to P.

202.  I allow this claim against D1 and D2 accordingly.

43 Payments

203.  P alleges that she made 43 Payments from 2009 to 2017 after many years of deceit and subject of physical violence in the form of intimidation and assault as well as duress and undue influence by Ds.

204.  P did not give evidence on the precise circumstances under which each of these transfers was made. Most of them were made when the parties were very close. I am not satisfied on the evidence that there is a clear and sufficient legal basis to order any of Ds to repay any part of the 43 Payments after all these years. I can only dismiss this claim.

The three bank loans and retention of P’s credit cards and ATM cards

205.  I prefer P’s evidence relating to D2’s representation made to P resulting in her application for the SC Loan and her surrender of her 9 credit cards and 4 ATM cards. The SC Loan application was taken out only because of the misrepresentation made by D2 in May 2015, which was, to the knowledge of D2 false and fraudulent. D2 did not adduce any contrary evidence. I hold that P suffered loss as a result in the form of her repayment made to SC including interest and all other related fees. I accept that she has suffered loss in the sum of HK$1,139,200 and I hold D2 to be liable to pay this amount to P as damages.

206.  I reject D1’s allegation that P and Ds agreed that the SC Loan was to be used to pay for the everyday living expenses of the quartet and P’s own expenditure. There is no evidence of any suggestion or complaint that the Transferred Income was not sufficient and there was no reason why P decided to raise additional fund to pay for the living expenses of the quartet.

207.  For the BOC Loan, the claim is made on a different basis. P relies on an agreement between D1 and P that D1 and/or D2 would repay the BOC Loan which was transferred to D1’s account in the sum of HK$672,000 on 22 September 2015.

208.  I have read see in the text messages exchanged between D1 and P on 14 and 15 September 2015 and P and D2 on 22 September 2015. They lend support to P’s case. D1 suggested to P to lend HK$500,000 or HK$600,000 for the surgery costs. The BOC Loan had nothing to do with living expenses.

209.  D1 should be held to this agreement. I cannot accept D1’s case that it was a conditional gift. I hold that D1 should pay P damages in the amount of P’s repayment of the BOC Loan including interests and all other related charges. I accept Mr Nip’s calculation and the final amount should be HK$801,250.00, which includes interest and an additional payment of HK$15,000 made in October 2017.

210.  For the Hang Seng Loan, it was demanded by D2 in 2017 and the sum of HK$200,000 was deposited to P’s Hang Seng personal account. Subsequently, it was totally withdrawn by the multiple use of P’s ATM cards within 1 month. P handed over to D2 her credit cards and ATM cards in or about 2016 on the misrepresentation that the Master demanded D2 to manage her finance. Ds only plead a bare denial.

211.  I accept the evidence of P. I do not believe that there was such a demand by the Master. The misrepresentation was false and fraudulent and P relied on it and suffered loss as a result. The case of P is made out on the evidence.

212.  There is no evidence that D1 and D3 were involved in this matter and that either of them ever made unauthorised withdrawals with P’s ATM cards. I hold that D2 alone should be liable to pay a sum of HK$225,004 being the amount that P has repaid the Hang Seng Loan as damages.

The TW Property

213.  P was the sole registered owner of the TW Property. She is presently the sole registered owner of each of the 1140 and the 1151 Properties. D1 claims beneficial interests in all three properties though he makes no counterclaim in this action. His beneficial interest, however, may enable him to defeat P’s claim for vacant possession of the 1140 and the 1151 Properties.

214.  D1’s case is that the purchase money for these properties originated from the TW Net Proceeds. D1 claims that he provided the purchase price for the acquisition of the TW Property and hence he had beneficial interest in the TW Property and the TW Net Proceeds. The onus is on D1 to prove that he has beneficial interest in all these properties.

215.  D1’s pleaded case is that he was unable to obtain mortgage loan in his own name and so he had to ask P to purchase the TW Property on his behalf in 2012.

216.  Allegedly he provided all the funds to P for the purchase of the TW Property in the following manners:

(1) By way of cash deposits a total amount of HK$900,000 into P’s bank account between March and May 2012 by D1;

(2) By way of a cheque in the amount of HK$290,000 dated 17 May 2012 issued by D1 to P and paid into the account of P;

(3) By way of a cashier order in the amount of HK$550,000 dated 17 May 2012 issued by the Bank of China from D3 on D1’s behalf (“the BOC Cashier Order”);

(4) By way of mortgage payments and payment of all other related costs.

217.  By reasons of these payments, D1 claims that P merely held the TW Property on constructive/resulting trust for him.

218.  HK$100,000 was paid as initial deposit upon the signing of the PSPA was signed on 5 April 2012. The Formal Sale and Purchase Agreement was signed on 18 April 2012 and a further deposit of HK$215,000 was paid. The balance of the purchase price in the sum of HK$2,835,000 was paid on completion taking place on 23 May 2012.

219.  The following evidence emanating from P is supportive of D1’s contribution to the purchase price. First, P sent to D2 an email dated 12 April 2012, calling herself as D2’s sister. In the email (“the 12/4/12 Email”), P set out a breakdown of money available for the purchase of the property:

$300,000	(D3 obtained from Mr Kato)
+$181,576.6	(D3 obtained JPY1,970,000 from Mr Kato)
- $33,000	($25,000 ritual and $8,000 No.234 deposit to D2)
- $22,110.68	(transaction fee for 2 batches of stock)
$426,465.92	(Remaining amount available for house purchase)

220.  On 18 April 2012, P sent to D2 an email (“the 18/4/2012 Email”) containing another breakdown in the following terms:

$458,222.56	(Balance as of 13 April in my previous email to you)
+ $200,000	(Cash deposit from D2)
+$61,591.09	(Monthly salary)
- $275,100.00	(2nd deposit $215,000 + stamp duty $60,100)
- $1,000.80	(Monthly Insurance Payment)
$443,712.85	(Remaining Balance)

221.  By an email dated 4 May 2012, P explained to D2 that after taking into account of the 1^st HS Mortgage Loan and the payments of two deposits, solicitor fees, estate agent commission, etc., the total amount that “we” need to pay would be HK$1,662,000.

222.  By an email dated 17 May 2012 (“the 17/5/2012 Email”), P asked D3 to issue a cashier order in the amount of HK$550,000 for the TW Property on the same day.

223.  On 21 May 2012, Messrs. Raymond Chan, Kenneth Yuen & Co., solicitors acting for P in the conveyance, issued receipts for a cheque of HSBC of HK$1,091,000 and the BOC Cashier Order for the balance of purchase price and costs and disbursements.

224.  D3’s testimony is that D1 wanted to purchase the TW Property and asked her for a loan. D3 agreed to lend him HK$550,000 by way of the BOC Cashier Order with the assistance of Mr Kato. D3 confirmed that D1 had repaid her the loan in instalments within several years thereafter.

225.  In her Re-Amended Reply, P merely made a denial of D1’s financial contribution to the purchase price of the TW Property.

226.  In her witness statement, P claims that the funds to acquire the TW Property were monies beneficially belonging to her and partly coming from the SG Property Proceeds. Among D1’s alleged contributions, P only dealt with the BOC Cashier Order and asserts that the monies were derived from the funds she had previously transferred to Ds from 19 February 2009 to 11 April 2012.

227.  I am unable to accept P’s evidence relating to the BOC Cashier Order. It was clearly expected by her from D3 as shown in the 12/4/2012 Email. If it represented the monies transferred to Ds previously, no doubt she would have asked for a bigger sum to cover the purchase price. P’s request for the BOC Cashier Order by the 17/5/2012 Email did not show any understanding that the monies in fact originated from her. I accept D3’s testimony that it was provided to D1 as a loan and therefore D1 provided the sum of HK$550,000 as part of the purchase price. The loan was extended with the fund of Mr Kato and can have nothing to do with P.

228.  On the other hand, I have checked the bank statement of P and it does show that on 17 May 2012, she received a cheque of HK$290,000. D1 has provided a copy of the cheque of HK$290,000. I accept D1’s evidence that it was his cheque payment.

229.  I cannot accept D1’s allegation of other contributions, nevertheless. I cannot believe his alleged cash payments amounting to HK$900,000 in the absence of cogent documentary evidence. I am unable to discern any such payment in the bank statement covering March to May 2012.

230.  D1 produced a written loan agreement between Mr Hirokazu and him dated 27 March 2012. I cannot accept that it is a genuine loan agreement and I have serious doubt its authenticity.

231.  In the loan agreement, the loan was stated to be for money in Hong Kong currency repayable within 10 years by monthly instalments of HK$7,500.00 each. There is no evidence of any of such repayments. D1’s repayment obligations have not ceased after the commencement of this action. There is no reason why D1 has not kept any evidence of his repayments for the purpose of these proceedings.

232.  In cross-examination, contrary to his pleaded case, D1 asserted that he gave the loan amount of HK$900,000 in both Hong Kong dollars and Japanese Yen to P. He was clearly unreliable.

233.  I also accept the submission of Mr Nip that there is no reason why D1 did not try to adduce evidence, live or documentary, directly from Mr Hirokazu to support his case.

234.  Further, I cannot accept D1’s evidence that he paid the monthly mortgage payments by depositing such sums into the Hang Seng Bank account of P, either. There is only one page of the relevant bank statement disclosed and I could only see monthly cash deposits of HK$11,313 each were made into the account and then the same amounts were transferred out for mortgage payments. I am not convinced that it was D1 who made the cash deposits in the absence of any documentary evidence such as payment advice. In any event, payment of the mortgage loan cannot be equated with contribution to the purchase price: Lewin on Trust §10-087, Sophisticated Materials Ltd v Sidepec International Ltd & Anor. [2018] HKCFI 2836.

235.  Thus, on the evidence, I am not satisfied that P provided all the purchase money. At least, she received HK$840,000 from D1 and HK$200,000 from D2. I cannot conclude that these sums were the monies previously transferred to Ds and P remained the beneficial owner of them for whatever reason. I cannot accept the submission of Mr Nip that these sums are traceable proceeds.

236.  In the absence of any evidence of common intention for these contributions, by resulting trust, D1 should have some beneficial interest in the TW Property and P held such interest for D1.

237.  A few days after the sale of the TW Property, by an email dated 18 July 2013 P gave a breakdown of the sale proceeds to D2 and explained to her how the TW Net Proceeds was computed.

238.  It is common ground that the TW Net Proceeds was deposited into the Joint Account in 18 July 2013. The parties agree on the pleadings that each of P and D1 remained to be the sole beneficial owner of the funds that she or he paid to the Joint Account.

239.  In light of my finding of D1’s beneficial ownership of the TW Property, it follows that D1 also had corresponding beneficial interest in the TW Net Proceeds transferred to the Joint Account.

The 1140 Property

240.  For the purchase of the 1140 Property in July 2014, D1 alleges to have made the following financial contributions:

(1) Payment of HK$100,000 as deposit;

(2) Payment of HK$378,750 for the further deposit, stamp duty and miscellaneous charges from the Joint Account;

(3) HK$2,300,000 for the payment of the remaining balance of the purchase price from the Joint Account;

(4) Repayment of the 2^nd HS Mortgage Loan in the sum of HK$1,500,000; and

(5) Payment of the renovation costs in the sum of HK$666,850.

241.  D1 alleges that by reason of his contribution, he should have some beneficial interest in the 1140 Property and P holds the 1140 Property on constructive or resulting trust for herself and D1 in such shares proportionate to their respective contributions to its purchase price.

242.  I can see from the bank statement of the Joint Account that a sum of HK$378,750 was withdrawn on 8 July 2014 and a cheque in the amount of HK$2,015,208.91 dated 1 August 2014 was issued. There is no dispute that these two sums were applied to settle the purchase price of the 1140 Property partially.

243.  I am unable to accept Mr Nip’s submission that these two sums had been wholly owned by P.

244.  I cannot accept D1’s assertion that he has ever repaid the 2^nd HS Mortgage Loan out of his own pocket. He did not adduce any credible evidence to prove such payment. On the contrary, there is documentary evidence of P’s payment of the 2^nd HS Mortgage Loan by cheque deposit to her Hang Seng Bank account.

245.  D1’s payment of the renovation costs was made to Chi Ping Renovation Company (“Chi Ping”) on 14 April 2015. P adduced no contrary evidence and D1’s evidence including the receipt issued by Chi Ping was not challenged. That said, such a payment alone, not being a contribution to the purchase money, could not be relied to claim any beneficial interest in the 1140 Property.

246.  There is no evidence as to any common intention or understanding between P and D1 when the funds in the Joint Account were used to pay part of the purchase price of the 1140 Property. Resulting trust is in operation and D1 should have acquired beneficial interest in the 1140 Property given his beneficial interest in his share of the TW Net Proceeds transferred to the Joint Account.

The 1151 Property

247.  For the acquisition of the 1151 Property, D1 alleges that there was an agreement or understanding between P and him that he would make financial contribution to the majority of the purchase price of HK$3,800,000 and all other related costs. D’s evidence is that he transferred a sum of HK$1 million on 17 February 2015, a sum of HK$800,000 and a sum of HK$111,000 on 14 April 2015 to the Hang Seng Bank account of P. D1 claims to have paid a total amount of HK$1,911,000 towards the purchase price and expenses of the 1151 Property.

248.  Again, D1 alleges that he paid the renovation costs of HK$762,420 to Chi Ping.

249.  D1 relies on all these payments to claim beneficial interest in the 1151 Property by constructive trust or resulting trust.

250.  In the email from P to D2 dated 17 March 2015, P stated that D3 paid her a sum of HK$115,400 and she used HK$100,000 to pay the initial deposit and D1 had deposited a sum of HK$1 million from the Joint Account to pay the further deposit of HK$280,000, stamp duty of HK$171,000 and legal fees and to make some mortgage payments.

251.  I refuse to accept D’s alleged contribution to the purchase price. The HK$1 million was undoubtedly from the Joint Account and D1’s share of the TW Net Proceeds transferred to the Joint Account should have been exhausted in the acquisition of the 1140 Property. The remaining balance in the Joint Account should belong to P absolutely. For the two sums amounting to HK$911,000, D1 claims that he agreed to make such contribution because of his receipt of the Joint Account Balance. As explained above, D1 obtained the Joint Account Balance merely as a result of undue influence and P should remain the beneficial owner of the same.

252.  As regards the renovation costs allegedly paid to Chi Ping, such a payment has no bearing on the issue of constructive trust or resulting trust.

253.  To sum up, D1 is unable to discharge the burden of proof to show that he owns any beneficial interest in the 1151 Property despite P is the sole registered owner. P being the sole beneficial owner of the 1151 Property must be entitled to vacant possession of the same though she has indicated that D1 and D2 have vacated the property already.

The Impugned Documents

254.  D1 says that P executed the Acknowledge of Debt and Declaration of Trust to dissuade Mr Chen and mislead him into believing that she was penniless. This purported explanation is unacceptable. P did not need to create such a big drama involving NAYP.

255.  It is astonishing that D1 could go that far with an elaborate story to protect his illegitimate gains.

256.  I accept the evidence of P relating to the circumstances leading to her signing of the Impugned Documents. I have no doubt that P was under the undue influence of D1 and D2 and was under stressed out as explained earlier. Mr Chen was sent by D2 to exert more pressure on P and to make sure that P would sign the Impugned Documents. These documents are manifestly disadvantageous to P and contain false information which even D1 could not justify. Indeed, Ds agree that the Acknowledgment of Debt and Declaration of Trust can have no legal effect. I opine that all of them must be set aside to restore the position of P.

Intimidation, Assault, Battery and False Imprisonment

257.  I have read the transcripts of some conversations and text messages exchanged among the group. I saw the photos depicting the injuries of P. Coupled with the live evidence of P, D1 and D3, I find as a fact that from 2014 to 2017:

(1) P had long been emotionally abused by D1 and D2 and P even wrote a letter of repentance to the Master on 9 January 2014;

(2) P was demanded by D2 to have sexual activities with D3 in the presence of D1 and her nude photos or videos were taken on several occasions;

(3) P was under D2’s threats of punishment from the Master;

(4) P was threatened by D1 that he would go to her workplace to make a scene;

(5) In or about October 2014, after saying to D3 that D2 showed signs of aging, D2 slapped P on her face and kicked her back. P went to St Paul’s Hospital and rib fracture was diagnosed;

(6) In late 2015, P was assaulted by D2 with a mop stick and her face was slapped. As a result, P sustained a left pinna injury and bruises all over her arms and legs;

(7) In February and April 2017, on several occasions, D2 stopped or asked D3 to stop P from leaving home for work. P begged D2 to let her go to work but in vain and P had to take sick leave as a result.

258.  On their pleading, Ds only make a bare denial. P was not cross-examined on these allegations. I find P’s evidence to be credible and well-supported by contemporaneous documents though P could not produce any medical evidence. Her injuries were very conspicuous in the photos.

259.  Based on these findings, I come to the conclusion that P’s claims in tort are made out. What D1 and D2 did to P was egregious. I am positive that P suffered mental distress, humiliation and physical injuries as a result.

260.  The limitation issue is a non-point. Section 27 of the LO only applies to actions for damages for negligence, nuisance or breach of duty causing personal injuries. In the present case, the personal injuries inflicted on P are of a different kind.

261.  For quantum, Mr Nip asks for HK$100,000 for general damages and HK$500,000 for aggravated damages.

262.  Taking into the long period of time in which P was subject to these violent actions and the gravity of her injuries, I believe an appropriate amount of damages payable by D1 is HK$50,000 as general damages and an additional sum of HK$20,000 as aggravated damages. D2 should pay P HK$100,000 as general damages and an additional sum of HK$30,000 as aggravated damages.

Conclusion and orders

263.  In light of my analysis and for the reasons given, I have reached the following conclusions on P’s claims.

264.  I hold that Ps’ claims relating to the Debt, the Report, the Beauty Plan, the River Jumping Rituals, the Bowel Ritual and the Weight Loss Program are time-barred and I dismiss such claims.

265.  I conclude that D2 should make restitution by repayment of the sum of HK$60,000 to P by reason of her fraudulent misrepresentation about the penalties payable to the Master. Likewise, D2 should pay P a sum of HK$1,139,200 due to her fraudulent misrepresentation concerning the SC Loan and a sum of HK$225,004 for the Hang Seng Loan.

266.  For the BOC Loan, D1 should pay P a sum of HK$801,250.

267.  For the Joint Account Balance, P remains to be the beneficial owner of the sum. D1 and D2 should give an account of the Joint Account Balance.

268.  For the Transferred Income, D1 and D2 should give an account from 18 June 2014 to the date of the Re-Amended Writ.

269.  I hold that D1 has certain beneficial interest in the 1140 Property under a resulting trust to be computed in accordance with his financial contribution to the purchase money. D1 is then a co-owner of the 1140 Property and he should not be evicted therefrom.

270.  I find that D1 has no beneficial interest in the 1151 Property. P is the sole beneficial owner and she is entitled to the delivery of vacant possession of the 1151 Property by D1 and D2.

271.  I conclude that the Impugned Documents were procured by undue influence and must be set aside. The registration of the 1140 Assignment must be removed.

272.  Lastly, I allow P’s claim in intimidation, assault, battery and false imprisonment and D1 and D2 are liable to pay P general damages and aggravated damages.

273.  I make the following orders:

(1) An order that the Declaration of Trust made by P in favour of D1 relating to the 1151 Property be set aside, annulled, void and of no effect.

(2) An order that the Acknowledgment of Debt dated 2016 be set aside, annulled, void and be of no effect.

(3) An order that the 1140 Assignment be set aside and be of no effect.

(4) D1 do forthwith remove and vacate or cause to be removed and vacated the registration of the 1140 Assignment from the Land Registry.

(5) D1 do forthwith return all the title deeds and documents relating to the 1140 Property in his possession, power and custody to P.

(6) D1 and D2 do within 28 days from the date of this order deliver vacant possession of the 1151 Property to P.

(7) D2 do pay P a total sum of HK$1,424,204 (HK$60,000 + 1,139,200 + 225,004) forthwith.

(8) D1 do pay P a sum of HK$801,250.

(9) An order against D1 and D2 for an account, tracing and inquiries in respect of the whereabouts and what has become of the Transferred Income from 18 June 2014 onwards.

(10) An order against D1 and D2 for an account, tracing and inquiries in respect of the whereabouts and what has become of the Joint Account Balance and the money withdrawn by them or any of them by the use of P’s credit cards and ATM cards that were in their possession without authorisation and approval of P.

(11) An order that D1 and D2 do pay P all sums found due (with interest) and do return all money and properties found to be belonging to P upon taking such account and/or inquires under paragraphs (9) and (10) hereof.

(12) D1 do pay P general damages in the sum of HK$50,000 and aggravated damages in the sum of HK$20,000.

(13) D2 do pay P general damages in the sum of HK$100,000 and aggravated damages in the sum of HK$30,000.

(14) Interest on all sums found payable by D1 and D2 from the date of the Re-Amended Writ to the date of this Judgment at HSBC prime rate plus 1% and thereafter at judgment rate until full payment.

(15) P’s costs of this action including all costs reserved be paid by D1 and D2, to be taxed if not agreed.

274.  No doubt P would be advised to give credit any sums already received from D1 and/or D2.

275.  This is a grotesque case and the interactions among the parties are beyond belief. P’s inexplicable loyalty to D2 and her love for D1 were seriously exploited. D1 should have a good look at himself.

276.  I have tried to do justice to the parties in accordance with the established principles. P seeks full recovery of her financial losses but there are hurdles. Without adding to her distress, I should point out that the orders made by this court or any other court may not solve all her problems. A holistic and realistic approach may be more helpful in mitigating her losses and that mediation is never too late.

277.  Interpretation of this Judgment can be arranged with my assistance should any of Ds make such a request in writing.

278.  Last but not least, I thank Mr Nip and Mr Tang for their impressive industry and able assistance.