P v. D1 AND ANOTHER

DCCJ 811/2020

[2026] HKDC 560

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 811 OF 2020

________________________

________________________

________________________

J U D G M E N T

________________________

Introduction

1.  This is my judgment, after trial, for a strange case.  At the time of the trial, the plaintiff (“P”)  was 72 and the 1^st defendant (“D1”)  was 74.  P and D1 were married to each other.  Despite their acrimonious dispute in relation to a residential property in Hung Hom (“the Property”)  forming the subject of this litigation, they had no plan to divorce each other.

2.  P was represented by Mr Dicky Cheung (“Mr Cheung”)  and Ms Esther Leung.  D1 and the 2^nd Defendant (“D2”)  (collectively, “Ds”)  were at one point jointly represented by Mr Lawrence Cheung on private instructions from Yu Hung & Co Solicitors.  On Day 6 of the trial, I found D1 to be a mentally incapacitated person (“MIP”). The Official Solicitor was appointed D1’s guardian ad litem: see P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744.  Mr Lawrence Cheung and Yu Hung & Co Solicitors ceased to act for Ds.  D2 became unrepresented.  For directions hearings, Mr Samuel Chan acted for D1 on the Official Solicitor’s instructions: P v D1 [2025] HKDC 1337 and P v D1 [2025] HKDC 1496.  Eventually, D1 applied for and was granted legal aid.  Mr Damian Wong (“Mr Wong”)  and Wan and Leung Solicitors, assigned by the Director of Legal Aid, acted for D1 for the remaining days.  D2 continued to be unrepresented.  I say at once all counsel had in my view done their very best to assist, and I thank all of them.  Nothing in this judgment should be read as criticizing any of them.

Undisputed Facts

3.  Since D1 is an MIP but I intend to publish this judgment, care should be taken not to state anything, disputed or undisputed, which can be used to identify D1.  D1 should remain anonymized.

4.  In gist, D1 was born in August 1950 and had a first wife (“the 1^st Wife”)  in Mainland China.  The two of them gave birth to D2, their son, in March 1970, and then divorced each other. D1 married P in 1974.  Two children were born within this new marriage between D1 and P.  They were L (born 1981)  and G (born 1983)  respectively.  L and G grew up in Hong Kong and became accountants.  D1 openly had an extra-marital affair with a certain lady (“Madam Leung”).  In 1990, P and D1 bought the Property, and the Property became registered to them as joint tenants.  The price was HK$948,000.  There was a mortgage in favour of Standard Chartered Bank (“SCB”). That mortgage was discharged in 1995.  Mortgage documents named the joint mortgagors as P and D1 but rather curiously named D1 as the sole borrower.  For a number of years, the Property was rented out.  The Property was never sold.

5.  In February 2018 while D1 was in Mainland China, D1 had a head injury (“the Head Injury”).  D1 was hospitalized in Mainland China, during which some surgery was performed on D1.  On 5 March 2018, D1 was transferred to a hospital in Hong Kong.  D1 stayed in Hong Kong until some point in August 2018, when D1 moved to Mainland China.

6.  On 10 September 2018, D1 executed (1)  a notice of severance (“the Notice of Severance”); and (2)  a deed of gift (“the Deed of Gift”)  vis-à-vis the Property.  P became aware of these documents and challenged their alleged validity via this litigation, which P commenced on 16 March 2020.

7.  On 30 November 2021, with leave granted by Master B Mak, P filed an Amended Statement of Claim (“ASoC”)  which added a claim of adverse possession.  This action was eventually set down for trial. On 22 April 2025, the trial started.  It went part-heard.  Despite some tribulations, the trial concluded on 13 October 2025.

P’s Case

8.  As pleaded by P via §§9 to 14 of the ASoC, P’s primary case was that the Property was subject to a common intention constructive trust (“CICT”)  in P’s favour so that in Equity there was nothing for D1 to severe or give away making the Notice of Severance and the Deed of Gift void or voidable.  In the alternative, P claimed via §§15A to 16C of the ASoC that she acquired a possessory title vis-à-vis the Property. P further claimed via §§16 to 33 of the ASoC that in any case D1 was of unsound mind or signed documents under duress from, or the undue influence of, D2 and D2’s wife.  P also pleaded yet another alternative case that the Property was subject to a resulting trust in P’s favour so that the Notice of Severance and the Deed of Gift were for that alternative reason void.  On the basis of the above, P asked for declarations vis-à-vis the Property and various title documents registered against it.  P also asked that Yu Hung & Co Solicitors be ordered to personally pay for costs, though I should record that as at the date hereof I have not yet heard Yu Hung & Co Solicitors on the issue, and no costs order absolute shall be made against them until they have had a reasonable opportunity to make full submissions on the same.

D1’s Case

9.  Prior to the Official Solicitor’s appointment as D1’s guardian ad litem on 29 April 2025 in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, D1’s legal team (a different member of the Bar settled the pleadings) somehow saw fit to deny virtually everything.  The Statements of Truth for D1’s pleadings did not seem to have the interpretation certificates required by §5 of Practice Direction 19.3, which was unsatisfactory.  Fortunately, upon my appointment, the Official Solicitor and Mr Wong on behalf of D1 adopted a substantially more sensible approach and conceded, correctly in my view (more on that below), that D1 plainly did not have the requisite mental capacity to execute the Notice of Severance and the Deed of Gift in 2018 so that D1 for his part shall only contest P’s allegations of trust (“P’s Trust Claim”)  and adverse possession (“P’s Adverse Possession Claim”), inviting me to reject both.  On costs, Mr Wong simply asked that the parties be given a further opportunity to address me on costs after they have been notified of my factual findings.

D2’s Case

10.  As to D2’s stance, since D2 acted in person and addressed me orally in Cantonese on top of providing me with a written note, instead of paraphrasing D2 in English, I should perhaps set out the most relevant parts of his oral closing in his original words, as follows: -

“張律師頭先即係喺堂上呀，即係都令到我哋好大部分都笑咗幾次喇，嗰個質疑佢嘅水平或者佢講嘅嘢有冇假，即係有冇編造出嚟呢，咁樣？即係好似話，佢話我軟禁我老竇呀，又話欺騙喇，又話呃佢咁，佢都冇事實根據，佢係咁講我喇，我對於一個我服侍咗我老竇八年嘅人，即係我其實就好嬲嘅，點解咁樣誣捏我㗎，係咪？我呢啲嘢我就講埋出嚟。咁就跟住頭先佢所講喇，業主法團大會，佢就凈係去睇工程嘅啫，都冇即係--冇話上去睇下每樣咁嘅，我就唔信咁多年嚟，次次大會都係講工程嘅，我真係唔信喇，係咪？邊度可能呢？即係我覺得係冇可能嘅，個機會好少呀。咁就其他嗰啲，我都冇乜嘢即係好講囉，即係如果係白紙黑字搵晒律師、搵晒醫生，都話唔算數嘅，咁我真係冇話好講喇，即係佢頭先講過即係大陸嗰個醫生喇，佢又話人哋點點點，好喇，咁呢個由佢質疑喇，咁就最終決定係法官大人信唔信嘅啫，跟住香港，香港夠晒--即係喺我印象之中，所有律師同埋醫生都係好正規、好正規嘅，好喇，佢張大律師都講，佢此時此刻就諗呢樣嘢喎咁，咁佢又唔係佢，佢點知道人哋凈係諗嗰樣嘢呢？我真係摸不著腦喎，就係--即係我就係呢啲疑問同埋法官呢啲意見啫，其他主要嘅--即係主要嘅嘢都係頭先我呈上嚟嗰啲原因喇，即係白紙黑字嘅，有證據嘅嗰啲囉。”

11.  In gist, D2 disagreed with most if not all points made by P and asked that P’s claims be dismissed.  D2 maintained D1 made a valid gift of an interest in the Property to him when D1 was of sound mind.

Legal Principles

12.  The general principles on the assessment of evidence are well-known and had been appropriately summarized in Li Chun Pong Raymond v Li Maggie Hang Yung [2024] HKDC 1211 (§§10 to 19, DDJ Kenneth KY Lam) and Far East Rent-a-Car Ltd v Favour Link International Ltd [2026] HKDC 336.  I apply the same principles in this case.  Since D1 was an MIP, and D2 was a litigant-in-person, I paid special attention to the applicability of the rule in Browne v Dunn (1893)  6 R 67 and its well-known limitations, including what the Privy Council had on 13 March 2026 explained in Rubis Bahamas Ltd v Russell [2026] UKPC 9, where Lord Leggatt famously said the following (at §37): -

“It should be added that, even if there had been any merit in the argument based on the rule in Browne v Dunn, this would not have absolved the judge from his duty to assess the evidence as a whole. The significance of failure to cross-examine on a matter can only be gauged by considering how the evidence that was not challenged relates to the issues in dispute and the other evidence bearing on those issues. An omission to put a relevant matter to a witness does not place the trial judge “into a straitjacket, dictating what evidence must be accepted and what must be rejected”: MBR Acres Ltd v McGivern [2022] EWHC 2072 (QB), para 90 (Nicklin J). That is because, as a rule of fairness, the rule is not inflexible and “a more nuanced judgment is called for”: Griffiths, para 69.”

13.  In treating all witnesses fairly in this judgment, I also read and duly considered what was said by Professor Ross Cranston, a former judge in England and Wales, in Judging (OUP, 23 October 2025, p.199 onwards, under “Fact-Finding”), and what was said by DHCJ Herbert Au-Yeung in Hu Lan v David Golden [2023] HKCFI 873 (§36). Given P’s allegation of CICT, I paid special attention to what was said by Godfrey Lam J (as Lam JA then was) in Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9 (§§46+) to the effect that in CICT litigation, a judge should start with “evidence of express discussions” whilst at all times recognizing and remembering the parties’ other conduct “remains relevant as a matter by reference to which their assertions about the agreement or understanding must be gauged and tested”.  I agree with and apply what was said by Godfrey Lam J.

14.  For the general principles vis-à-vis CICT litigation, one of the most helpful summaries can be found in HK Sources Finance Ltd v Ling Kai Wan Paul [2024] 2 HKLRD 1133 [2024] HKCFI 1141 (§§36 & 37 per Bebe Chu J).  In gist, P had the burden of proving (1)  the common intention; (2)  her detrimental reliance on that; and (3)  unconscionability of departing from it.  An allegation that the beneficial interest is different from the legal interest is inherently unlikely to be true so clear evidence would be required for the allegation to be considered proven.  Unequal financial contributions per se, even if established, would be unlikely to be enough for the Court to move away from the starting point that Equity follows the law.

15.  For the legal principles vis-à-vis adverse possession I am fully aware that in Wong Chee Sing v Hung Wah [2026] HKCFA 7, the HKCFA granted leave to appeal and will on 9 September 2026 be reconsidering the well-known cases of Wong Tak Yue v Kung Kwok Wai (No 2) (1997-98)  1 HKCFAR 55 and J A Pye (Oxford)  Ltd v Graham [2003] 1 AC 419.  I am satisfied I should nonetheless continue to give my judgment in this matter without waiting for that reconsideration, as nothing in this matter turns on the certified questions.

16.  For resulting trust, D1 cited my own decision in Sophisticated Materials Limited v Sidepac International Limited [2018] HKCFI 2836 to the effect that Curley v Parkes [2004] EWCA Civ 1515 formed part of the laws of Hong Kong so that financial contributions in the form of mortgage loan repayments should be treated as those of the borrower for the purposes of any resulting trust analysis.  I am satisfied that is still the legal position today.

Witnesses – Overview

17.  The following witnesses (5 factual 1 expert) gave evidence at the trial: -

(1)  P;

(2)  G;

(3)  L;

(4)  D1;

(5)  Dr Gabriel Hung; and

(6)  D2.

Evidence of P (PW1)

18.  P adopted her two witness statements and was cross-examined.  In gist, P claimed she paid HK$400,000 from her own sources as the down payment for the Property, and she used rental income to repay the mortgage loan until the discharge of the mortgage in 1995.  She claimed D1 “did not contribute any monies towards the Purchase Price”.  When asked how she allegedly paid the HK$400,000, P said it was by a Hang Seng Bank Cheque, but no record of that had ever been disclosed or produced by P[1]. The source of the funds was also made a topic of cross-examination, and P was unable to explain her different versions of events on the same page of her Chinese witness statement[2]. On repayment of the mortgage loan P admitted she had no idea what the terms of the repayment were or whether the monthly rental income must be more than the monthly repayment instalment[3]. P admitted §29 of her Chinese witness statement vis-à-vis SCB’s letter was false[4], and P was wholly unable to explain why she confirmed illogical false contents in relation to that as correct[5].

19.  On adverse possession, P’s oral evidence shockingly showed she had no idea what it was despite the fact that she was legally represented by solicitors and counsel throughout the entire course of these proceedings and one would have thought P must have been properly advised on the law.  The most relevant questions and answers went as follows[6]: -

“官：證人，即係咁呀，我哋喺你份證人陳述書嘅第一段，就見到你自己寫咗「逆權侵佔」呢四個字嘅，喺度嘅，你嘅證供一部分嚟嘅。

答：喀。

官：有提「逆權侵佔」呢四個字嘅，請問你知唔知逆權侵佔係咩嘢呀？

答：「逆情侵券」佢咪話--即係意思話攞我一半囉。係咪咁呀？

官：唔知呀，就係問你知唔知囉。你知唔知逆權侵佔即係咩嘢㗎？

答：係囉。「逆情侵券」咪即係話攞我--攞我一半囉。

官：攞你一半。即係你嘅認知入面，攞你一半就逆權侵佔嘞？

答：唔。

官：哦。

答：係咪咁呀？

官：我唔知㗎。

答：我唔知喎，我...

官：問下你嘅認知咋嘛。

答：我--我都唔明，我唔識解喎我都。

官：唔明？

答：唔係呀，咪包紮係咁--係咪包--包括係話業--業權侵佔，即係話攞我一半。

官：唔。明白。知道，係。”

20.  As P’s oral evidence went on, it became increasingly obvious that at some points P was just guessing instead of telling the Court the truth, the whole truth and nothing but the truth based on actual knowledge. The following questions and answers neatly illustrated the serious problem with the way P’s evidence was partially just her own guesswork and thus of very little value[7]: -

“官：唔係，證人，證人，證人。即係我經常遇到呢個問題嘅，所以其實就好常見，我先解釋畀你聽，大律師問緊乜嘢先。大律師問緊嘅係你嘅個人認知呀。即係我再講多次，證人只應該回答佢自己知嘅嘢，就唔應該去估嘅。舉例，如果我問你，我呀，我呀。

答：唔。

官：而家肚餓定飽？你知唔知呀？

答：咩嘢話？

官：我呀，而家呀，肚餓定飽，你知唔知㗎？

答：而家飽囉。

官：你點解知我飽呀？

答：咁你啱啱食完飯吖嘛。

官：你點知我有食飯呀？

答：咪你冇--你冇食飯囉。

官：呢個咪就係個問題囉，我事實上真係冇食飯喎。我有24小時冇食過嘢。

答：吓？你2...

官：你係唔知嘅，所以你不應該嘗試估。你會錯㗎嘛。

答：係囉。

官：我24小時冇食過嘢。所以你話我飽，就係虛假嘅，你估，同埋估錯咗。

答：唔…”

21.  For P’s allegation of CICT, P claimed that after the mortgage was discharged in 1995, there was a telephone call[8] where D1 told her the Property would belong to her going forward, and so P could live there with her children (“the Phone Call”).  When asked about the Phone Call, P first alleged the contents of her own witness statements were false, only to then allege it was her oral correction which was false[9]: -

“官：好簡單嘅啫，講緊一個電話對話咋嘛，個電話號--個電話對話入面，呢一個 [redacted] 有冇同你講小朋友可以喺入面住，有講定冇講？

答：冇講，我都--層樓係我，叫我整好，點會話小朋友喺度住…

…

…

官：咁點解你個證人陳述書會話有呢一句喺入面嘅？呢個你自己個證人陳述書嚟㗎嘛，你自己個口供嚟㗎嘛，你呢一度話有呢句㗎嘛，咁點解會咁嘅，如果你記得？

…

…

答：咁有時諗啲嘢諗唔到㗎嘛。

官：即係而家你記得嘞，頭先諗唔到，頭先唔記得咁樣？

答：唔係，有陣時勞氣得滯。

官：勞氣得滯，明白，謝謝你，thank you。”

22.  When asked about the question of reliance, the questions and answers went as follow[10]: -

“官：咁講完個電話嘞，咁又點呢，你嘅生活有冇改變呀，佢個問題係，即係呢個電話嘅對話內容會唔會令到你嘅生活改咗，即係本來你就去西灣河返工嘅，聽咗呢個電話之後你就改去灣仔返工嘞，咁咪變咗囉，又或者本來喺灣仔返工嘅，聽完呢個電話之後我又改去西灣河返工嘞，即係個電話有冇令到你嘅生活有改變呀？有定係冇？咁有可能有，有可能冇吖嘛，要問你囉，即係可能聽完個電話之後收線，生活繼續，冇分別嘅，咁呢個可能性一喇。可能二就係，聽完之後我變晒所有嘢嘞，所有行動唔同晒嘞，本來一個禮拜睇三次戲，而家一個禮拜睇一次，本來一個禮拜食十餐飯，而家食五餐，即係可能有改變㗎嘛，我哋而家係睇緊個電話對話有冇令你有改變，個生活呀，有定係冇呀？

答：咁畀層樓畀我--唔係，層樓係我嘅，咁我搬入去住，唔使交租，咁梗係好喇。

官：唔係，咁同個電話對話有咩嘢關係呢？即係係咪有關係？如果有你就話畀我知吖嘛，係聽完先搬入去住，定係唔關事㗎？因為佢講唔講呢一句你都可以住嘅，係咪呀？我唔知呀，即係問下你個電話對話，...

答：咁梗...

官：跟住之後嘅生活，即係嗰個關係喺邊囉，你明唔明呀？

答：即係個生活關係？

官：唔係呀，即係你聽完個電話嘞，咁佢講完有層樓你㗎嘞，咁跟住點呢，你有冇因為呢個電話對話做咗任何嘢呢？即係要--我要知個因果關係呀。

答：咁層樓畀咗我梗係好喇，梗係。

官：唔係，咁你覺得好一件事吖，你有冇改變你嘅行為㗎？有定冇呀？

答：改善咩嘢行為呀？

官：即係我舉個例子，譬如我本來唔食早餐嘅，我成世人都唔食早餐嘅，突然之間有人畀咗張早餐優惠券畀我，我去呢個太興食早餐有八折咁樣，八折喎，咁我食嘞，咁我就由唔食早餐變做食早餐，咁咪叫有改變囉，因為有八折券我先食，如果唔係我唔食嘅，咁呢啲叫做改變吖嘛，即係有一個事件發生咗，你嘅行為有改變，咁呢個就係我哋想知嘅嘢囉，個電話對話，1995年8月你同 [redacted]個電話對話有冇令你嘅行為有改變，有定冇？

答：有。

官：係，請講吖，係咩嘢改變呀？

答：生活改變咗呀？

官：我問你囉，就係，有冇，你話有吖嘛，咁你話畀我聽改變咗啲咩嘢囉，個電話對話令你改變咗啲咩嘢呀？

答：咪改變話唔使交租，唔使盛，有得住吖嘛。

官：咁如果冇呢個對話，咁你會點㗎？

答：冇呢個對話，咁佢唔畀我住，咁我咪要出去租樓住。

官：冇呢個電話對話唔畀你住，你就會出去租樓住？唔係好理解，因為有冇呢個電話，你都最少有半層樓㗎嘛，而家你嘅講法係個電話對話係成層樓都係你。

答：咁佢話--佢--咁佢話我冇份㗎嘛，佢買㗎嘛，佢話佢㗎嘛，佢出錢㗎嘛。

官：佢幾時話過你冇份呀？

答：吓？佢講我冇出錢買吖嘛，層樓係佢㗎嘛咁。

官：幾時講過呀？

答：幾時講過唔記得，幾時講...

官：唔係好理解。

答：唔記得唔幾時講過呀，係...

官：唔記得幾時講過，明白。好，我諗都係交番畀大律師繼續安全啲。

MR LAWRENCE CHEUNG：唔好意思，法官閣下，因為譬如如果我問佢呢啲問題，咁佢唔會答我嘅，多謝。”

23.  My understanding of P’s evidence is that whatever intention or representation existed, it changed nothing as far as P was concerned.  It did not result in any detrimental reliance or change of position.  It made no difference to P.  As I shall explain in a later part of this judgment, this piece of evidence appears to be fatal to P’s allegation of CICT.

Evidence of G (PW2)

24.  G, as a son and a factual witness of P, adopted his two witness statements and was cross-examined.  In gist, G stated he studied accounting and finance at the University of Hong Kong and became an accountant.  G was fluent in both Cantonese and English and could read both Chinese and English.  His background was in audit.  G recalled D1, as his father, getting “separated” from P when G was still in primary school, and felt sad about what happened.  When asked about his own understanding of this litigation, G emphasized that to his own understanding, this legal action was triggered by the Notice of Severance and the Deed of Gift vis-à-vis the Property.  At this point, G applied for my permission to give this part of his oral evidence in English instead of in Cantonese so that D2, who was sitting in the public gallery, could not understand it.  I found the application somewhat unusual but since D2 was represented by bilingual lawyers who could, if necessary, translate evidence given in English to Cantonese for D2’s benefit at a later stage, I granted leave.  What followed was an outburst of anger. Essentially, G said he considered D2 “a very bad guy” who had a record of transferring money away from D1 “with very mischievous intention”[11].  Speaking for himself, G wished to secure justice, with the alleged validity of the Notice of Severance and Deed of Gift judicially determined.  Indeed, G’s witness statements spent considerable passages dealing specifically with the Head Injury sustained by D1 in Mainland China in February 2018 and its adverse effect on D1’s mental capacity thereafter.  According to G, he managed to speak to D1 directly over the phone on 2 February 2019, and D1 appeared to G to be confused and of unsound mind with D1 claiming he did not know his own physical location, and with D1 being unable to comprehend what G was saying[12].  G gave detailed evidence of various other incidents which caused G to become exceedingly concerned D1 had literally lost his mind, including incidents where D1 simply failed to remember G’s name, told a false story about having been to Australia on holiday, being paranoid about people shooting him with guns, told a false story of G being a lawyer, and so on[13]. These parts of G’s evidence were unchallenged by Ds’ joint legal team at the time.  After the Official Solicitor had been made D1’s guardian ad litem, the Official Solicitor eventually chose not to ask that G be recalled for his “top-up” cross-examination.  These parts of G’s evidence had thus remained unchallenged.

Evidence of L (PW3)

25.  L was a daughter of P.  L adopted her two witness statements and was cross-examined.  In gist, L also went to a local university and then became an accountant.  According to L, after the Head Injury sustained by D1 in Mainland China in February 2018, L visited D1, but D1 was unable to recognize her and told a false story about G being a lawyer, when G was an accountant.  There were other incidents which occurred in L’s presence and caused L to become very concerned D1 had an unsound mind[14].  Again, these parts of L’s evidence were unchallenged by Ds’ joint legal team, and the Official Solicitor eventually chose not to ask that L be recalled for his “top-up” cross-examination.

Evidence of D1

26.  D1, aged 74 by the time of the trial, adopted his two witness statements and was cross-examined.  In gist, D1 said the HK$400,000 odd downpayment for the Property was paid by him instead of P.  The balance of the purchase price was also borrowed, and then repaid, entirely in D1’s own name.  D1 considered the Property jointly owned by P and D1, as per the legal title registered in the Land Registry.  He never gifted his interests in the Property to P.  There was no trust agreement between P and D1.  D1 claimed the Notice of Severance and the Deed of Gift vis-à-vis the Property were voluntary, valid and effective, and they represented D1’s true wishes.

27.  In the course of the cross-examination, D1’s answers became increasingly absurd.  D1 claimed the Property had been sold, giving minute details as to how that supposedly happened, all of which plainly false. The Land Registry record showed the Property had never been sold.  It was also clear the suggested selling price could not possibly be true, as it was so low it would be absurd[15]. D1 could not remember what was said in his presence, such as the fact that I did not eat for 24 hours[16]. D1 stated he did not know whether there were one or two defendants in this very trial[17], or the number of registered owners for the Property at the time of purchase[18].  He claimed he was “the big shareholder” and owned at least 80 percent of the Property, when that 80 percent figure was no party’s case and was pulled out of thin air[19].  He then mistook P’s counsel as his own counsel[20]. At one-point D1 claimed he was well-known in Hong Kong as a murderer, in these bizarre words[21]: -

“你再係咁拋我呢，你逼我發火嘅即係，即係逼我發火，我發火你知我點㗎喇？我喺香港出晒名呀，發火我殺人㗎，我--拉咗我--拉我上去差館拉我幾次，我殺人呀。”

28.  The last straw for D1’s own counsel at the time was D1’s non-sensical evidence to the effect that two ladies, whom everyone knew to be two separate ladies, were one and the same person with two separate names, in these bizarre words[22]: -

“答：都係嗰個人喇，我話「點解你兩個名呀？」「我點知我老豆呀」咁佢話，佢咁答我，「我點知我老豆同我改咁多名呀」，佢咁答我囉，咁我唔問你。

問：你講緊 [redacted] 定係 [redacted] 呀？

答：唔，都係嗰個人嚟㗎。

問：即係...

答：我話「點解你兩個名嘅？」

問：即係...

答：「你屎忽痕呀？」佢話「我點知我老豆啫」。”

29.  At this point, D1’s own counsel jumped up from his seat and made an application.  The exchange went as follows: -

“MR LAWRENCE CHEUNG: Your Honour, I hate to do this but, at this juncture, I wish to inform the court that what he said in the past ten minutes, most of it, are against my instructions that he gave to me and...

COURT:  Well, obviously.

MR LAWRENCE CHEUNG:  Yes, and ...

COURT:  I think I got that.

MR LAWRENCE CHEUNG:  Yes.

COURT:  I got that, yes.

MR LAWRENCE CHEUNG:  And I need to inform the court that and, the way he’s giving evidence now, I think I am duty-bound for his interest and for the interest of justice to apply for adjournment so that he can be examined because I haven’t seen him like this.

COURT:  All right.  So this is a formal application?

MR LAWRENCE CHEUNG:  Yes, yes.

COURT:  And it is for an adjournment so that he can be examined medically?

MR LAWRENCE CHEUNG:  Yes…”

30.  As I thereafter stated in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, eventually, having heard expert evidence on the issue, I found D1 to have no mental capacity to litigate, give valid instructions to lawyers, or give evidence in this matter.  D1 was duly released without further cross-examination.

Evidence of Dr Gabriel Hung

31.  With my permission, Dr Gabriel Hung, a recognized expert in the field of psychiatry, gave evidence on both the substantive issues of this trial (specifically, whether D1 had the mental capacity, back in September 2018, to execute the Notice of Severance and the Deed of Gift vis-à-vis the Property), and on the new issue as to whether D1 had become an MIP with no mental capacity to litigate, or give valid instructions to lawyers, or give evidence, in this matter.  In gist, as to whether D1 had the mental capacity back in September 2018 to execute the Notice of Severance and the Deed of Gift vis-à-vis the Property, Dr Gabriel Hung was of the view that it was more likely than not that D1 had no capacity, mainly because of the Head Injury.  Independent medical records and reports produced by the Hospital Authority showed that as of August 2018[23], D1 was still “disorientated in time & place” and it was highly unlikely that there was significant recovery for the month which followed.  Dr Gabrial Hung most responsibly qualified his opinion by saying he was never present at the time of execution and did not medically examine D1 back in September 2018, so he could only form a responsible opinion based on relative likelihood and assumptions[24].  As to whether D1 was by the time of D1’s giving evidence at this trial an MIP incapable of conducting litigation, Dr Gabriel Hung took the view that D1 was clearly an MIP.  For this part of his expert evidence, Dr Gabriel Hung based his opinion on real-time observations, as Dr Gabriel Hung was at the public gallery observing D1 whilst D1 was answering questions under oath.  According to Dr Gabriel Hung, D1, whilst answering questions under oath, showed signs of confabulation, with D1’s brain inserting completely false information into itself, tricking itself into believing the false information to be true, and tricking itself into giving false evidence believing it to be true.  Detection of this was based on cross-referencing.  According to Dr Gabriel Hung, D1’s brain ceased to be able to differentiate between truth and falsity.  Accordingly, information in D1’s brain became wholly unreliable, and D1 was medically unable to understand this litigation.  Possible medical causes included alcohol use, dementia, head injuries, and the like.  Based on D1’s age, Dr Gabriel Hung predicted “a progressively declining course” vis-à-vis D1’s psychiatric deficiencies, saying “it is unlikely that there would be improvement”[25].  This was, medically speaking, a most “serious” situation for D1[26].

Evidence of D2

32.  D2 adopted his shockingly short two-page witness statement[27] as his evidence-in-chief and was cross-examined.  D2 denied there was any duress or undue influence affecting the validity of the Notice of Severance or the Deed of Gift vis-à-vis the Property.  D2 confirmed D1 left D2 behind when D2 was just a baby.  What happened was that D1 moved, by himself, from Mainland China to Hong Kong, and did not bring D2, despite the fact that D2 was D1’s son.  By the time D2 reached the age of 18, D2 was aware D1 had a separate family in Hong Kong[28].  D2 was specifically asked why, to his own understanding, D1 allegedly “gifted” half of the Property to D2, and as to whether that was the result of oral conversations between the two of them.  D2’s answer under cross-examination differed significantly from what he stated in his two-page witness statement.  The following exchange followed[29]: -

“官：證人，不如直接睇喇...

問：係喇。

官：麻煩你揭去206頁吖。206頁頂部第5段，你自己嘅證人陳述書呢，你講述嗰個送禮嘅過程係咁嘅「父親自從手術之後一直與我同住，期間感受到我的細心照料和無盡孝心，所以決定將自己的名下業權送贈予我...（宣讀）是我心甘情願出於做兒女的義務，委派律師做出業權嘅送贈，完全是父親自己的願意和要求」句號。咁你成段就係咁嘅啫，咁就同你頭先口頭個答案就有啲分別嘅，因為你頭先--即係你記得你自己講咗咩㗎喇，就似乎唔係咁講個喎，即係第一，咁你書面就話細心照料、無盡孝心呀，呢啲係個原因。咁但係即係頭先大律師問你個原因呢，你又唔係講呢啲嘅，咁跟住而家又多咗啲嘢呢，就係話其實又諗過將層樓送畀第二個呀，咁但係呢啲又冇寫落第5段度嘅。咁你有冇解釋點解你口頭答案同書面嘅寫法有出入？如果有，就麻煩你而家話畀我知。

答：唔，點解有出入呢...

官：唔。

答：...呢個第五點嗰度都係事嚟嘅，係即係文字上嘅表達嘅事實嚟嘅...

官：唔。

答：...咁頭先張律師問我，我先講嘅啫，因為我覺得嗰啲好似同本案無關咁樣，佢唔問，我講嚟都冇意義喇，我覺得。

官：我又唔係好能夠完全理解，因為呢個其實就係成件案就住你個案情嚟講個重點嚟㗎嘛，就係嗰層樓係唔係即係你父親有效地贈送畀你嘅，咁你嘅講法係有效地贈送畀你，真嘅禮物嚟嘅，有效嘅，佢知自己做緊咩嘅，呢個係你個講法。咁原告人一方個講法就係冇效㗎嘛，呢個饋贈，咁所以呢個其實係案件嘅重點嚟個喎，究竟嗰個當時嗰個情況係乜嘢，係成件案個重點嚟個喎，咁審咗七日，其實最重要係呢一樣嘢，喺你嘅角度喇起碼，咁點解會係呢一段係寫得咁簡單，就冇咗你頭先講嗰啲細節嘅？

答：我就--嗱，呢個--呢個就係第五點，即係我理解吓，我講出嚟係事實嘅重心。

官：唔，唔。

答：頭先我講去沖涼呀、大便呀，同細細佬講--即係我老竇同話畀細佬嗰啲，我覺得係--即係佢唔問我，我唔會講囉。

官：唔係，即係--等等，證人，我唔係講緊沖涼嗰啲呀，我係講緊頭先你話其實層樓諗過畀第二個人，跟住佢唔要，跟住先畀你，咁呢一個就同層樓有關係喇嘛。

答：係吖。

官：咁點解冇提過嘅，成份證人口供？

答：因為嗰陣時呢，因為兩段時間吖嘛...

官：唔。

答：...佢係喺9月份之後先轉畀我吖嘛...

官：唔。

答：...咁喺鄉下同埋喺烏溪沙嗰時我真係悉心照料佢吖嘛。官：唔。

答：喀，嗰陣時佢咪可能會感動呢，係咪呀，我爸爸話感動先畀我呢，就咁，咁嘅原因囉。

官：明白，好，理解。咁我交番畀大律師處理呢個議題喇。

MR CHEUNG：好呀。

官：唔該你。”

33.  As the cross-examination of D2 went on, D2 shifted his case from “it was an absolute gift” to “it was a transaction with consideration” and the following exchange took place[30]: -

“問：咁事實上如果話爸爸送咗層樓畀你，執行咗爸爸呢個意願呀，爸爸的確少咗資產，同唔同意？

答：咁我--佢喺轉樓之前，你哋又睇唔睇到嗰張嘢呀，手寫嘅，喺轉--喺上律師樓之前我係寫咗一份承諾書畀佢個喎，佢轉咗畀我之後呢，我要一世照顧佢個喎，係咪？我好清楚記得，上律師樓之前佢寫個喎，我又簽咗名喎，你冇睇到咩？係咪呀，我承諾--我承諾係養佢個喎？即係咁重要嘅嘢你又唔記得，又要問人。

問：我要問人呀，因為你都真係--你都真係拋到我喎，我都--我問...

答：我唔係拋你，我而家係提醒你。

官：唔係，等等，證人，你等等先。我想你睇番206頁，唔好講其他嘢，凈係睇206頁。成頁我都見唔到你講呢個一世照顧佢嗰張紙你有提過喎，咁點解嘅，因為如果你話有張紙？

答：唔係，嗰張係獨立嘅，嗰張係獨立嘅。

官：唔係，咁但係第5段你係解釋緊個禮物，即係層樓作為一個禮物嗰個饋贈嘅來龍去脈吖嘛。

答：唔。

官：咁如果個故事係有一張紙係你簽畀你爸爸係話「我收咗你層樓之後，一世照顧嘅」，咁都應該係故事一部分嚟㗎，咁我哋睇到嘅呢，就係第5段係冇提過呢張「我一世照顧佢」嘅紙嘅。咁點解冇提嘅？

答：因為我覺得嗰張紙已經係呈咗上堂，就嗰--同埋嗰啲內容係有相連性嘅。

官：我自己就未見過喇，係，你有冇喺度㗎，嗰張紙？我就冇見喇，係。

答：嗰張紙...

官：你呢度又冇提，咁所以我就唔係好知你講緊咩，所以即係喺你責怪大律師唔睇嘢之前，或者我先問下你張嘢喺邊呢？我自己都未睇過，我就唔覺有呢個一世照顧佢呢個...

答：我--我之前有交畀即係上一個嗰個律師行嗰度，佢...

官：唔。

答：佢呈咗上嚟個喎，佢話畀我知。

官：哦，咁樣㗎？

答：係，咁我所以先至--頭先先有咁嘅疑問啫。

官：咁個事實係點㗎？我哋先撇除呢個文件披露嘅問題唔提住喇，事實係點㗎，事實係爸爸送層樓畀你，唔係送嘅，有代價嘅，個代價就係你要一世照顧佢，即係買賣嚟個喎，即係你就收層樓，跟住一世照顧佢，即係買賣嚟嘅，咁樣呀？

答：即係我對佢嘅承諾，唔--即係--即係我唔覺得係買賣，係承諾。

官：承諾，即係承諾換承諾，佢又承諾送層樓畀你，你就承諾照顧佢一生一世，互相交換咗個承諾咁樣呀，係咪咁樣㗎？

答：唔，可以，可以咁理解，可以咁理解。

官：可以咁理解？

答：係。

官：咁咪唔係禮物囉，交換承諾吖嘛，咁就唔係送個囉喎。

答：即係點講呢，即係一個老竇，即係我覺得係點呢，我覺得係點呢，就係一個老竇想轉棟樓畀你，我跟住同你講，簽咗張紙「喂，你要照顧我喎，我先畀你喎。」咁樣喎，咁我覺得，冇所謂喇，始終都係--即係始終都係我照顧你㗎喇，咁寫唔寫冇所謂㗎，你鍾意寫咪寫囉，我就係咁嘅心態。

官：明白。咁呢張紙係律師樓嗰度簽，定係私底下簽，定係喺茶樓簽？

答：喺茶樓簽。

官：茶樓簽。

答：唔，簽咗，飲完茶，跟住上律師樓。

官：哦，咁樣嘅。

答：係。

官：咁個正本喺邊呀，你自己度，跟住交咗畀律師咁呀？答：個正本喺鄉下，即係影印本就交畀律師樓。

官：哦，明白。好，或者安全起見，我都係交番畀大律師處理呢個議題喇，我都唔應該問太多。

MR CHEUNG：好呀。

問：咁你同唔同意呀，如果係咁講，其實爸爸就唔係送層樓畀你，佢對你係有一個要求，就係要你照顧佢過世，同唔同意？

答：即係我覺得呢--頭先講過喇，我覺得呢，除咗我照顧佢之外，冇人會照顧佢喇，佢鍾意話簽，覺得咁安心啲，我咪簽囉，就係咁樣，咁嘅，我就係咁啫，純粹係咁啫。咁你話交唔交換好，要唔要求，代唔代價好，呢啲我冇考慮過，我真係冇考慮過。

問：好，你都同意，你喺證人陳述書所謂嘅口供就冇提過呢一張紙同埋呢個照顧過世承諾，同唔同意？

答：嗯？

問：同唔同意，你冇講過喺茶樓簽過你嗰張照顧你過世嗰張承諾嗰張呢件事呀，喺呢兩頁嘅證人陳述書裡面？

答：係呀，即係冇--我覺得係有牽連，但係上邊嗰個律師行冇提上嚟我真係唔知喎。

問：好，呢個案你做咗個狀紙，嗰個狀紙係英文㗎，但係應該有人翻譯過畀你聽㗎，你知唔知你有做過狀紙呀？

答：我真係--咁我真係--你提醒，我可能會記得，可能會唔記得，但係肯定嗰間律師行即係同我好多時溝通，真係即係唔記得咁多嘢。

問：我哋睇一睇你嘅狀紙吓。你係完全唔識英文㗎，係咪，定係識...

答：識少少。

問：識少少。識幾多呀？

答：可能百分一喥囉。

問：簡單英文單字識？

答：睇下點簡單法喇。

問：Okay，係。

官：或者我哋直接睇英文讀中文喇。

MR CHEUNG：好呀，好呀。第文件夾A呀，我哋去第二個文件夾呀吓。

官：第幾頁？

MR CHEUNG：閣下，第六十--我哋先去69頁，就係嗰個劈頭嘅開初，等一等吓。

問：好，我哋睇第24段，即係73頁。73頁第24段就係你同爸爸嘅共同狀紙，咁你都--後來都簽名作實㗎喇，咁呢度寫咩呢，就係話爸爸喺大陸同 [redacted] 住，同埋同埋你同埋你當時嘅太太就住㗎，就自從扻親個頭嗰件事。咁爸爸就話自己係健康、自願、清醒，就去搵律師將--去準備嗰啲送贈嘅契約嘅，佢就冇受到人哋任何脅迫同埋不當影響㗎，你同埋你當時嘅太太就係所謂嘅體貼照顧佢喇，體貼照顧佢喇，就所以佢好單純呀--爸爸呢個就話單純願意喇，simply willing就畀個--畀半層樓你喇。跟住第25段就話喇，爸爸一開始就諗過賣咗層樓㗎，所以就搵咗地產經紀郭生，咁郭生就搵咗 [redacted]，[redacted] 就唔肯賣呀，跟住就發來嗰啲都唔關事喇。首先呢兩段呢，我就大意個中文翻譯咗畀你聽喇。

答：唔。

問：第一，冇講 [redacted] 冇講爸爸送--一開始就諗住送層樓畀[redacted] 呢回事㗎，同唔同意？

答：（沒有可聽到的回答）

問：同唔同意？

答：咩話？

問：係，呢度頭先我口述畀你聽嘅兩段呀，就冇講 [redacted] 嗰件事，冇講話爸爸送層樓畀 [redacted] 呢回事呀？

答：係吖。

問：好，第二，呢度反而講呢，爸爸嘅初心就係賣層樓，搵地產經紀郭生，你頭先亦都冇咁樣講過呢回事㗎，同唔同意？

答：係吖，頭先冇講，但係我知。

問：冇講，呀呢--okay，第三，呢度就話爸爸係單純因為嘅--呢度--呢度話爸爸係單純願意將你嘅--將佢嗰半份業權係送畀你，咁嗰個英文句式一句寫嘅，就係話你同太太照顧佢，佢就單純願意將層樓畀你喇，就冇話要你承諾以後照顧佢過世個喎，佢呢度就係講話你嗰陣時照顧緊佢咋喎，咁你有咩...

答：嗰張紙又係事實，呢度講又係事實囉。

問：係喇，就係話呢度冇講嗰張紙嗰樣嘢呀，呢度呢個狀紙凈係話你嗰陣時照顧緊佢，就唔係話你有簽一張紙承諾話照顧佢過世？

答：咁嗰個啲法律文件我係唔係好清楚㗎嘛，係咪？

問：好。

答：咁佢寫乜，咁我覺得--我--我知道係，咁佢有冇寫其他嘢落去，有冇--重唔重要，我唔知㗎嘛，係咪？

問：好喇，咁或者我去番個事實問你喇，唔好問你--唔好同你糾纏狀紙喇。

答：係囉，問事實好過喇。

問：事實上你覺得爸爸要求你照顧佢過世，呢個係咪對你嚟講都係一個重要嘅承諾吖？

答：係。

問：因為係喇，任何人要求你照顧佢過世都係--你都要諗清諗楚㗎，係咪？

答：係呀，係呀。

問：咁如果爸爸有提出呢個要求，話喺茶樓提出要求，仲要簽紙作實嘅，點解你喺證人供詞又唔講番呢件事出嚟，就話「爸爸對我嘅要求都係好高㗎，我都覺得係一個重要承諾嚟嘅，所以我諗--思前想後先答應佢...」

答：我冇思...

問：「...咁佢先畀層樓我，我先...」

答：我冇思前想後呀，頭先我咪講得好清楚囉，唔係我照顧佢，邊個照顧佢，佢覺得寫份紙安心啲嘅，我就照簽，冇所謂。”

34.  As the cross-examination of D2 went on, D2’s answers under oath became increasingly illogical.  The following exchange took place in Court[31]: -

“MR CHEUNG：係。

官：...你介唔介意我問一條問題？

MR CHEUNG：可以，可以，可以。

官：係，證人呀，我有少少嘢就唔係好明，咁我就好怕自己有嘢唔明，因為唔明就判錯案，所以我想你澄清下。

答：唔。

官：如果爸爸係經濟上可能唔夠錢，又或者擔心冇人照顧佢，咁所以畀層樓你，又要你簽番張紙話照顧佢一生一世，我唔係好明點解佢唔直接賣咗層樓，我講我諗緊咩，跟住我先再問條問題。

答：唔。

官：因為根據香港嘅法律呢，其實賣樓係唔使人同意嘅，可以嚟法庭根據呢一個《分割條例》強迫強賣層樓，跟住再睇下啲錢點搞。所以賣樓呢，係唔使共同擁有人同意嘅。咁呢個係香港嘅法律喇，我哋處理咗好多呢啲案件嘅，呢件--即係呢個法庭。咁如果你爸爸又可以聯絡到律師嘅，咁律師一定會同佢講「其實賣樓唔使人同意個喎，你可以賣咗佢，跟住變咗現金，咁你咪慢慢搣囉咁樣。」咁你知唔知點解你爸爸係冇選擇就咁賣咗層樓套現，而係反而係畀咗層樓你呢，即係你知就知，唔知就唔知，唔使估嘅，但係我...

答：我唔知。

官：你唔知？

答：唔知。

官：哦，咁樣。咁同樣地，如果佢唔賣層樓，就咁畀咗即係半層樓你咁樣，咁其實有咩用呢，即係我又諗唔通喇，你揸住半層樓，但係又唔賣，咁冇意義喎。咁你知唔知點解佢個選擇係會就咁畀半層樓你，而唔係畀成層樓你或者畀現金你呢，你知就知，唔知就唔知？

答：我真係唔知。

官：你真係唔知。哦，明白，好，咁我可以交番大律師喇，唔該。”

35.  Further, it seems clear that much of what D2 had said in Court was pure speculation.  The following exchange took place[32]: -

“MR WONG：法官閣下，我諗我冇其他問題。

官：謝謝你。證人，我有少少嘢想問你，麻煩你揭去205頁吖，即係你嘅證人陳述書。咁我哋先睇第2段喇，第2段數落嚟第四行呢，我就見到你寫住「令父親心灰意冷」呢幾個字，你見唔見到先？

答：唔。

官：咁如果我揭去下一頁呢，譬如206頁，即係你嘅證人供詞嘅第2頁吖，咁第5段喇，我哋之前都睇過㗎喇，咁你又講父親，跟住去到第一句嘅最尾呢，就「所以決定將自己名下的業權送贈予我」，咁我有少少擔心你呢一啲寫法，因為譬如父親係咪心灰意冷，其實得佢知嘅啫，即係你見到一個人即係疑似心灰意冷又未必係㗎，你都係會覺得佢係一個知佢係心灰意冷，定話因為第二啲原因傷心，咁206頁又係，佢做咗個決定你就知啫，點解做個決定其實又係得佢自己知㗎咋喎，你都係估嘅啫。咁結案陳詞嘅時候，可能有大律師會同我講，我唔知吖，未發生，即係我不應該採納或者信納你嘅證供，因為你似乎係講緊一啲超出咗你個人認知嘅嘢，你係講緊阿爸諗緊咩嘢，唔係講緊你自己諗緊乜，咁當然你就可能會不同意喇，你覺得冇問題呀，咁你有冇多啲嘅嘢可以話到畀我聽，點解我應該接納你呢啲關於你阿爸個諗法嘅證供？

答：因為--點講呢？因為跌咗落嚟之後喇，咁就跟住一開始嗰陣時，喺咩嘢 [redacted] 醫院呀？嗰陣時呢，的的確確係個妹、同埋個細佬、同埋 [redacted] 有去睇佢嘅，但係就好似後期先至睇到，因為嗰陣時喺ICU比較嚴重嘅，不過跟住就好番啲喇，就去咗 [redacted] 醫院，咁都有嚟，但係就有一次我就唔在場喇，佢哋講㗎，[redacted] 同埋 [redacted] 口角 [redacted]…

官：唔係，呢啲嘢同我條問題有咩嘢關係呀？

答：有呀。

官：你講吖，個關係喺邊？

答：叫 [redacted] 去買紙尿片 [redacted]…

官：唔係，咁你唔好去跳到去個關係嗰度，呢拃嘢全部係真喇，咁又點呢？你點樣知道你阿爸個腦入面諗緊咩嘢呢？你兩個腦分開㗎嘛。

答：係吖，咁佢咪話畀我知囉，即係好嬲咁對佢囉，即係好嬲，即係我睇見我老竇好嬲，對住呢個仔，咁就覺得佢哋嘅關係咪就係差囉。

官：明白，咁譬如第5段嗰個決定咁樣喇，即係假設你個講法係啱喇，佢係送畀你嘅，咁背後個原因你都可能係唔知㗎嘛，係咪？即係你講到好似係你好肯定佢送禮物畀你嘅原因係細心照料、無盡孝心，但係可以係一個你唔知嘅原因㗎嘛。

答：係呀。

官：即係我舉例咁，如果有個女仔約你睇戲咁先算喇，咁你可能真實唔想同佢睇戲嘅原因呢，就係你老婆或者女朋友會嬲、妒忌，所以就即係唔好喇，家變㗎喇咁樣，咁即係你又未必想咁樣講㗎嘛，咁你可能會講個白色大話喇，就話「呢排好忙，工作好忙，好忙，即係下次，下次，下次」，咁大話嚟㗎嘛，咁個女仔就話「你忙呀？咁唔睇戲冇所謂喇」，咁所以你講畀人聽嘅嘢，同你心入面諗嘅嘢可以係有分別㗎嘛，亦都未必係邪惡或不誠實，即係--係不誠實嘅，但係唔係邪惡喇，白色大話，真正嘅原因係「老婆鬧死我，同妳睇戲，妳仲要咁靚，搞唔掂」，係，但係你講嘅就係「好忙呀，好忙呀，真係，工作真係好忙」，咁好多人都係咁做㗎喇，推人咁話忙，但係其實唔係個真正原因嚟嘅，咁所以你明唔明先？即係可能一個人講嘅嘢同佢心入面諗嘅嘢有分別㗎嘛，咁所以我就唔係好明你第5段，點解可以講到你父親做決定背後嘅原因喇，會唔會係超出咗你嘅認知㗎？會唔會係其實你唔知點解佢簽呢啲文件...

答：佢話畀我知喇。

官：係。

答：我阿爸話畀我知。

官：咁你就信咗佢喇？

答：係。

官：咁有冇可能係佢呃你㗎？

答：咁我唔知喎，呢樣嘢。

官：係囉。

答：呢樣嘢我真係唔知喎。

官：明白，好。咁就得喇。”

36.  D2 also made an oral application to adduce new documentary evidence, and all parties agreed I should look at the new document on a de bene esse basis, which I did.  D2 read out the contents of the new document, marked “MFI-1”, in Court, in this manner[33]: -

“官：或者咁樣喇，證人，你由頭讀到尾，成份文件。

答：好，好。

問：好。

答：「經過四個半月以來嘅艱辛日子，多得 [redacted]、[redacted] 和 [redacted] 三人對我 [redacted] 的不離不棄，以及細心照顧我，終於可以自己走路--行路了，有幸活」...

問：「我有幸」。

答：「我有幸活著，並且能夠自己有賴於」...

問：「自己行路」。

答：「自己行路有賴於他們三人的努力和付出。本人的財產不多，但也不能虧欠他們三人，現將我的個人財產如下安排：第一，紅磡 [redacted] 業權嘅百分之五十以信託形式轉讓給大仔 [redacted] 持有，但受益人仍然係我本人[redacted]，直至本人死後直接歸於 [redacted] 所有，此物--此業權每月所得的租金用作本人嘅生活費用，日後基本生活費由 [redacted] 負責供應。第二，本人一次性支付500,000港幣給 [redacted] 及 [redacted] 夫婦，本人以後的起居生活由他們夫婦全職全責照顧，本人能逃過此次命中劫數，有賴於 [redacted] 其他方面的」...

問：「[redacted] 金錢」。

答：係，「方面的支援，[redacted] 墊付的費用用$650,000，本人也一次性歸還給他，銀行只剩現金4,600,000港幣留作本人日後身體所用，任」...

問：「所需用」。

答：「所需用，任何人等不得動用」，簽名，咁喇。

問：係，好。繁體字你其實睇得明㗎喎，睇到明、睇得到，係咪？

答：黐埋有啲得、有啲唔得。

問：係，頭先你自己都讀到喇，係咪？

答：唔。

問：好喇，簡單嚟講就係，第一點，爸--呢度就寫到明，爸爸將嗰個業權畀你呢，唔係送畀你喎，係以信託形式託畀你喎，而受益人仍然是 [redacted] 本人喎，咁就同你講話爸爸係送咗層樓畀你，係完全唔同喎，同唔同意呀？

答：係咁嘅，因為當時我就覺得佢高興就好喇，而且咩嘢叫做信託、咩嘢「盛」呢，我就唔知。我就唔知嘅，唔知呢啲咁嘅嘢嘅，咁佢話過戶我就過戶，佢話簽名我就簽名囉，冇所謂，反正佢唔會害我。

問：或者我--或者「信託」呢個字你未必識喇，但係有一啲字好簡單嘅，就係「受益人仍然是我本人 [redacted]，直至本人死後直接歸 [redacted] 所有」，你爸爸到今天都未死㗎嘛，係咪？

答：係。

問：係囉，咁死呢個概念唔係咩嘢法律概念吖，死後先係你吖嘛，你而家喺法庭同我哋講嘅係今天嗰層樓已經屬於你喎，唔同喎，佢...

答：但係佢--即係點講呢...

問：首先你明我問--你明我指出嗰個唔同嘅...

答：我明白，我明白。

問：咁咪你咪講大話囉，係咪？

答：唔係講大話喎。

問：你講吖。

答：我就咁理解㗎，佢簽咗呢份嘢，因為佢高興，我孝義，佢鍾意冇問題，我簽乜都得，因為我心知道佢唔會害我，但係上咗律師樓之後呢，因為佢入咗去同個律師傾，咁就傾咗啲咩嘢，我真係唔知喎，我真係唔知喎。

問：係吖，咪即...

答：係囉，咁就跟住呢，跟住聽完咗出嚟之後，跟住律師就話畀我知，「你老竇」，即係 [redacted] 喇，「咁就轉咗半層樓畀你喎，你願唔願意先？願唔願意？」咁樣，我話願意，咪就係咁囉，就咁簡單，咁我就--成個過程就係咁喇。

問：好，你講得好啱呀，其實爸爸同律師單獨傾啲乜，你係唔知㗎嘛，係咪？

答：唔知。

問：所以你唔知嘅情況底下，你唯一知嘅就係你當日早前飲茶嘅時候，佢話死後先畀層樓你，咁呢個一定係你當時認知嘅嘢㗎，「咪就係死後畀層樓我囉」，咁點會係你今日喺法庭上同埋打咗咁多年官司，一路堅稱話今天你已經有層樓呢？唔同㗎喎。

答：咁佢--佢上咗律師樓之後，之後佢自己個--即係佢自己同律師講喇，咁唔知短短嘅時候，佢有咩嘢改變我唔知喎，真係。如果佢係咩嘢--即係唔係畀我嘅，係咪？唔係畀我嘅，咁佢何必叫個律師叫我簽呢？

問：係，我就係講呢樣嘢。

答：即係我就--係囉，我就係咁理解囉，我話律師叫得我簽話畀呢個層樓畀我喎，咁我以為係我㗎喇喎。

問：好，直接啲答問題，喺律師樓你唔知爸爸有冇改變佢嘅心意吖嘛，啱唔啱？

答：係。

問：咁所以你唯一知道佢嘅心意就係呢一份文件，佢話死咗之後，你就可以攞到層樓囉。

答：唔係喎，個律師問我，問我呀，問得好清楚㗎，前後問咗幾次㗎，「你爸爸畀份--畀半間樓畀你喎，你要唔要呀？你同唔同意呀？」咁喎，佢問過好多次喎，咁我先簽名喎。

問：好喇，咁你呢度又要講番個信託，你就話唔知喇，但係其實你係知道個安排嘅，個安排就係層樓名的確係要畀你，但係實權，嗰個實際嘅利益，都係 [redacted] 嘅，同你喺律師樓發生嘅事係完全吻合嘅，同唔同意呀？

答：佢畀我，我就同意喇。

問：係，佢個名畀你，實益權冇畀你，同唔同意？

答：但係佢後尾就冇話畀我知喎，佢嗌個律師前嚟出嚟話畀我知，「你爸爸畀咗半層畀你，你同唔同意，你接唔接受？」咁喎，咁我咪接受，咪簽名囉。

問：係，咁講喇，你律師見完爸爸出嚟之後呢，有冇咁同你講就係話，「爸爸原本諗住信託託畀你嘅，不過佢而家就送畀你，自己唔做受益人喇」，有冇咁講？

答：冇。

問：咁所以你其實知道你只係代持囉。

答：我唔--我--即係聽到佢叫我簽，即係個律師問我問咗幾次，「你要唔要你爸爸嗰半間樓？」問咗幾次，「你明唔明白咩嘢意思？」咁，我話要，咁我咪簽名囉。

問：而代持呀，用信託形式代詞呢一個安排呢，你頭先--你明唔明代詞或者信託形式係咩嘢嚟㗎？

答：信託我就真係唔知。

問：代持呢？

答：都唔知，即係唔係知得好清楚，即係代詞就係話，即係我同佢擁有先咁囉，係咪？

問：或者代佢持有囉。

答：係。

問：係喇，呢--起碼你可以代爸爸持有物業，你呢個概念你當時有㗎嘛？

答：有㗎。

問：有嘅，而實際亦都係咁樣安排㗎嘛，喺簽呢一份酒樓嘅文件嘅時候，茶樓嘅文件時候，係咪？

答：咁我真係唔知喎，就係我簽呢份文件，我都有睇過，而且仲加咗嗰啲字嘅，係咪？

問：係，係。

答：不過跟住信託我真係唔知道咩嘢文--咩嘢東西嚟嘅。

問：好，你其實唔知呢，你係扮唔知，講大話，點解呀？一，手寫嗰個文本係你自己寫嘅，你經過腦聽、寫；第二，你簽名。所以你係知道係信託安排，同唔同意？

答：信託我識寫，但係喺呢個咁嘅文件裡邊，咩嘢叫做信託，我真係唔知咩嘢，佢--即係佢 [redacted] 講吖嘛，我寫之嘛。

問：好。「受益人仍然是我本人 [redacted]」，呢句唔係咩嘢艱深嘅法律語文喎，呢句係...

答：咁冇問題--我明白，呢個我明白...

問：不如你講下你明咩嘢喇，就咁「受益人仍然是我本人[redacted]」，你點理解呢句嘢？因--呢句文字，因為你自己有簽名嘅。

答：佢即係意思--我嘅理解嘅意思即係話，佢收咗啲租，即係嗰啲租金，係屬於佢嘅，攞嚟生活嘅，就咁嘅意思囉。

問：唔係囉，又講大話囉，因為你講租金嗰句係下一句喎，睇下，「而此業權每月所得的租金用作本人的生活費用」，就即係話首先係講咗「業權受益人仍然是我本人[redacted]」，第二，業權所得的租金用喺爸爸嘅生活費用，就即係話無論業權同埋租金都係歸爸爸所有囉，你而家就混淆視聽喎，你凈係話我--你凈係話你自己嘅理解係租金歸爸爸喎，你又講大話喎。

答：唔係，即係點解呢...

問：唔係，你再解釋喇。

答：個業權--我頭先係講漏咗啫，我明白呢樣嘢，但係我承認張嘢呀，就唔明白信託呢樣嘢喺呢度係屬於咩嘢我唔明白，其他嘢我明白嘅。你都唔使咬文嚼字。

問：咁我唔咬文嚼字，就咁問你喇，簽呢份文件嘅時候，你嘅理解呀，租金一定爸爸，啱嘛？

答：係吖。

問：業權歸邊個？

答：業權？歸爸爸。

問：咁咪係囉，咁咪唔係送咗畀你囉…”

37.  D2 was asked why he buried the document marked “MFI-1” for so many years, when he was previously represented by solicitors so that he must have been advised on it.  The following exchange took place[34]: -

“問：佢係咪律師，你知唔知？

答：我知。

問：佢係咪？

答：唔係。

問：好。好喇，你同佢講咗之後，佢--好喇，你畀咗佢之後呢，其實係唔係你指示佢收埋呢份文件，唔好攞出嚟？

答：唔係，我話「劉先生，我有一張呢啲咁嘅嘢嘅，需唔需要呀？」佢話「唔需要呀」咁，好似話過嘅，咁我就一路由佢。

問：你今早有話呢，你覺得其實呢張文件應該係呈咗堂嘅，咁點解你咁覺得嘅？

答：因為我話我--即係我電話呀，就畀過佢㗎嘛。

問：電話--用電話溝通就發咗個...

答：即係用微信。

問：...相畀佢，微信發咗畀佢。

答：係，發過畀佢。

問：咁你就以為佢呈個堂喇？

答：係。

問：好。你冇同佢夾計話係「呢啲文件對我不利呀，唔好搦出嚟呀」嗰啲？

答：冇。”

38.  I asked D2 clarification questions, and the following exchange took place[35]: -

“官：證人，我聽咗你頭先個證供喇，咁有少少嘢我想知多啲，因為我要確保我嘅對證據嘅理解係正確，個判決先會係正確。咁我見到你第5段就寫，「決定將自己名下的業權送贈予我」咁樣喇，咁但係你啱啱申請呈堂嗰份文件呢，其實就白紙黑字寫住「死後直接歸何鏘帶」，咁就多咗個「死後」嘅，咁第--即係唔好理你講真話、講大話先喇，即係你會唔會同意唔係好完整呢？因為如果你啱啱呈堂嗰份文件係事實真相，咁第5段就唔應該就咁寫「送贈」，而係「死後送贈」喎，即係在生送贈同死後送贈有分別㗎嘛，咁你就住死後送贈同埋生前送贈兩個嘅分別，你有冇嘢想講？

答：有，嗰個其實嗰個--頭先嗰張嘢呀，係信託嗰度，我唔係--即係唔知...

官：唔係先，唔好講「信託」兩個字先...

答：係，咁就跟住呢...

官：...講生前、死後，生同死你識分吖嘛，係咪？

答：好，我--明白，明白。

官：係，你而家生嘅。

答：係。

官：將來一定會死㗎嘛，希望唔好咁快。

答：明白，明白，係喇，但係我都...

官：咁生前、死後都有分別㗎嘛，咁你呢度就咁寫「送贈」，又冇講係「死後送贈」，咁係咪有分別㗎？

答：係吖。

官：係囉，咁點解...

答：但係...

官：...唔係寫「死後送贈」？

答：但係我明--即係我明--我就到而家為止，我都係堅信我老竇喺度，喺律師樓嗰度呀，老竇喺度，個律師問咗個幾次話畀我咁樣，因為嗰啲先係--即係我自己覺得係先係好正常、好正常嘅，即係好--有法律意義嘅文件嚟㗎嘛。

官：係。

答：係喇，所以呢張嘢，你哋如果唔係問開我，係懷疑緊我係專登坤我老竇嘅，咁我覺得冇意義嘅。

官：明白喇，咁呢個就係我跟住下一條想問嘅問題就係，喺你嘅認知入面，即係唔好理法律點講先，你自己嘅個人認知入面，你啱啱申請呈堂呢份文件，而家呢一刻係有效定冇效㗎？

答：我覺得呀？

官：係。

答：我畀你哋參考㗎咋。

官：參考嘅啫？

答：係呀，我唔知道--我唔知有冇效力㗎，我唔知㗎。”

39.  D2 was asked why the document marked “MFI-1” was never stamped, and the following exchange took place[36]: -

“官：順帶問一問你喇，咁我見到你證人陳述書第7段呢,就有講到話你將個契約，轉名契約，就攞咗去打釐印㗎嘛，你做嘅。

答：唔。

官：因為你話「我當日即刻於稅務局繳交了印花稅」，咁你啱啱想申請呈堂呢份就冇繳交印花稅嘅，咁有冇原因㗎？

答：即係走去政府嗰度交錢，係咪？

官：係，係。

答：冇咩嘢原因，有咩嘢原因？

官：咁點解另外嗰份你又識得交印花稅，呢份又唔交印花稅？

答：邊份？

官：啱啱你而家申請呈堂呢份囉。

答：因...

官：呢張紙呀，你而家喺...

答：嗰張紙要交錢嘅咩？

官：係喇，我就係想知，你係覺得唔使吖，定係覺得要囉。

答：我覺得唔使㗎，我覺得...

官：你覺得唔使。

答：係，我覺得凈係--即係點講？我嗰個內容，𧨾我老竇高興，等佢唔好咁多思想包袱，你話點就點，冇問題咁樣，我就咁㗎咋。

官：咁我就諗到三個可能性嘅，咁就我哋討論下喇。可能性一，份文件完全冇效嘅，垃圾嚟嘅，即係好似即係哈利波特小說咁樣，成份嘢都係假嘅，咁哈利波特小說梗係唔使打釐印喇，小說嚟㗎嘛，係咪？虛假文件嚟嘅，咁但係唔係不誠實，睇完開心咁樣嘅啫，小說。可能性二，遺囑嚟嘅，死後畀你吖嘛，即係講緊死後點樣傳嚟傳去，咪遺囑囉，咁遺囑都唔使打釐印㗎。咁就第三，呢個可能係一個信託聲明嚟㗎喎，信託聲明就要打釐印喇，因為講緊個物業個真正擁有人係係邊個吖嘛。咁我見到有三個可能性喇，即係可能有第四個、第五個，我唔知喇。咁喺你自己即係嘅個人認知入面，我知你唔係律師喇，你個人認知入面，佢係冇用嘅文件吖、遺囑定係信託聲明嚟㗎？

答：即係我覺得係佢要我承諾佢囉，即係唔好唔理佢，就係咁樣。

官：係，咁你嘅認知入面，呢個係道德上嘅承諾，定係法律上嘅承諾嚟㗎？

答：道德上嘅承諾。

官：道德上承諾，明白。”

Witnesses – Assessment

40.  As far as P’s evidence is concerned I find it unreliable, though it is immaterial that I so find.

41.  Firstly, P never managed to produce the necessary documents, such as bank statement entries or copies of personal cheques, to explain in any satisfactory manner how she supposedly paid the downpayment for the Property, and I am not at all satisfied she paid that sum of HK$400,000 out of her own funds as alleged.  However, that seemed immaterial since even if P could prove that she paid HK$400,000 for the Property, the remaining sum of HK$548,000 was still paid by D1 as the sole borrower in question, and P’s financial contribution towards the Property would still be less than half, and that does not assist P in establishing a resulting trust vis-à-vis the whole of the Property.

42.  Secondly, P’s evidence on the Phone Call was both confusing and self-contradictory.  I am not at all satisfied the issue of the Property’s ownership was mentioned by D1 orally in any of the ways suggested by P, or whether it was mentioned at all. However, that seemed immaterial since even if P could prove the contents of the Phone Call, in the absence of any evidence of detrimental reliance, P’s pleaded allegation of CICT could not get off the ground.  Evidence of a common intention, without any proof of detrimental reliance and unconscionability, would not give rise to any valid claim of CICT (see the discussion on the law above).

43.  Thirdly, no weight could be given to P’s evidence on adverse possession, because she did not appear to understand the concept, and there was no reliable evidence that P had the necessary intention to exclude D1 from the Property in the sense as required by the law of adverse possession, so that P’s allegation of adverse possession could never get off the ground either.

44.  Fourthly, on the Notice of Severance and the Deed of Gift vis-à-vis the Property, it seems clear from the evidence of G, L and Dr Gabriel Hung, all of which I accept as true and reliable for the reasons to be set out below, that D1 never had the necessary mental capacity, back in September 2018, to execute them, rendering them void. It seemed wholly unnecessary for me to go any further than that in my factual finding.

45.  All in all, it is substantially more useful to focus on assessing the evidence of other witnesses.

46.  As far as G’s evidence is concerned, it is truthful and reliable, and I accept what G said to be true.  In particular, as I had explained above, G’s evidence was primarily about the Head Injury’s adverse effect on D1’s mental capacity.  Those parts of G’s evidence was unchallenged. Whilst I am aware unchallenged evidence can still be false, and the caselaw is clear that I should never mechanically accept a piece of evidence as true simply because it was never challenged (see the discussion on the law above), as far as G’s evidence is concerned I am independently satisfied it was highly likely to be true.  G’s first-hand account of D’s serious mental deficiencies before the commencement of this action was perfectly consistent with the independent contemporaneous records released by the Hospital Authority, which were unchallenged either.  For my part, I can see no reason why G’s sworn oral evidence should be doubted.

47.  For L’s evidence, on my assessment it is truthful and reliable for similar reasons as above, and I accept what L said to be true. I can see no reason why L’s sworn oral evidence should be doubted.

48.  D1’s evidence is the most unreliable since he was an MIP and confabulating, which means his own brain could not differentiate between truth and falsity.  I reject D1’s oral evidence in its entirety.  I am aware D1, on becoming represented by Wan and Leung Solicitors on assignment by the Director of Legal Aid, filed and served a Hearsay Notice for his written statements, but with respect I am unable to attach any weight on what was written by D1 in this matter, given his known mental deficiencies.  D1 did not call any of his doctors, qualified as psychiatrists or otherwise, to testify on D1’s mental capacity during the period from February 2018 to the start of the trial, and I am unable to accept D1 had mental capacity for litigation at any point during that entire period.  However, as I shall explain at a later part of this judgment below, nothing really turns on the documents covered by D1’s Hearsay Notice, so D1’s Hearsay Notice is a red-herring.

49.  As to Dr Gabriel Hung’s expert evidence, it was responsible, fair, based on unchallenged or unchallengeable documentary evidence and actual observations, and well-reasoned.  I independently checked reference materials cited by him and am satisfied they do support his opinion.  I find Dr Gabriel Hung’s expert evidence most reliable and I give full weight to the same.

50.  For D2’s evidence I do find it illogical and inherently unlikely to be true.  D2’s “ever-changing explanations” on the Notice of Severance and the Deed of Gift vis-à-vis the Property, including his burial of MFI-1 until Day 7 of the trial despite being represented and advised by solicitors for a large number of years, were all unsatisfactory.  I reject D2’s evidence as unreliable and likely to be false.

P’s Trust Claim

51.  For those reasons set out in §§40 to 42 above, P’s Trust Claim was and remains thoroughly bad and is dismissed.  P’s resulting trust claim was based on a fundamental misunderstanding of the law, as P did not seem to understand that repayment of the mortgage loan borrowed in D1’s name was in law D1’s financial contribution so that on a legally correct analysis P could never have contributed more than half of the HK$948,000. P had no answer to D1’s citation of my own decision in Sophisticated Materials Limited v Sidepac International Limited [2018] HKCFI 2836 to the effect that Curley v Parkes [2004] EWCA Civ 1515 formed part our laws so that financial contributions in the form of mortgage loan repayments should be treated as those of the borrower for the purposes of a resulting trust analysis. Sophisticated Materials [2018] HKCFI 2836 remains good law.

52.  In any case, evidentially speaking P failed to prove her alleged contribution (ie HK$400,000 as the downpayment), there being not a single sheet of paper in support of P’s allegation and P’s bare oral assertions were unreliable.  For CICT, there was no evidence of detrimental reliance.  There was no evidence of unconscionability.  For either of these reasons the CICT claim must be dismissed.  For completeness, in §22 of P’s Written Closing, P sought to say she refrained from requesting the transfer of D1’s legal title to her, but that did not assist as the cause of that was said to be D1’s demand of “not divorcing him”, instead of the Phone Call or any common intention of any kind[37]. The evidential gap was obvious.  Similarly, for completeness, in §23 of P’s Written Closing, P sought to say the “non-divorce” qualified as P’s detrimental reliance, but that made no sense as no person, certainly not P, was ever barred from divorcing a living spouse.  Even if P refrained from starting divorce proceedings because of the Phone Call or a common intention (which I do not accept to be the truth), there was nothing to stop P from doing that at any point from the point of their falling out with each other.  Indeed, P can still divorce D1 today and the Family Court shall have the jurisdiction to claw back assets which had been transferred, or add back expenses which had been spent.  Further, it is actually possible for P to be getting more (instead of less) financial reliefs from D1 if P were to divorce D1 today instead of back in the 1990s – we do not know that for sure as no evidence on this had ever been led.  I am not satisfied a temporary decision on the part of P not to start divorce proceedings can on the facts of this case be treated as “detrimental reliance”[38].

53.  Further, P’s latest suggestion that the “non-divorce” qualified as P’s detrimental reliance was in fact unpleaded, and I should not even let P run such a case.  The oral discussions on this at closing submissions went as follows[39]: -

“官：呢個其實即係有兩個層次喇，第一就係咁事實上你冇講離婚喇，即係我睇嚟睇去都睇唔到離婚，或者家事法，或者家事法庭呢一啲字眼，喺嗰個狀紙度，咁呢個第一點喇。第二點就係，其實就睇你呢一句喇，即係 “resulting in the plaintiff’s reliance on the single mode of income”，成唔成立呢？你離婚咪多過一個方法攞錢囉，即係王大律師話齋，咁你離婚要畀贍養費㗎嘛，咁好多人都知㗎喇，離婚要畀贍養費，仲要係可以係攞一鈫，跟住隨住經濟狀況加加減減，可以返去vary嘅添。咁所以其實事實上又成唔成立呢？離開咗就得一個收入方法，離婚咪多一個囉，咁成唔成立㗎，究竟？即係我想你講一講呢兩點，即係第一就係狀紙冇寫離婚喇，第二就係事實上係咪成立呢，（1）呢個講法？

MR CHEUNG：係，狀紙冇講離婚係啱嘅，所以我就話文字上，我講即係唔能夠話完全係拼到嘅。咁第二就係，呢度係講緊話因著你--因著 [redacted] 畀咗層樓，或者應承咗畀層樓我，我就有咩嘢嘅detrimental reliance，我有咩嘢不利嘅，倚賴我嘅情況係咩嘢，閣下講得啱嘅，如果係離咗婚嘅話就有多啲嘅income，所以呢--但係因為英文嘅寫法喺呢度就係話，因為我倚賴咗，所以我得番--即係我要自力更生，所以閣下講嘅嘢其實同呢個狀紙係不謀而合嘅，就係冇錯，如果離婚就係有more than one mode of income，如果唔離婚就係呢個狀紙裡面寫喇。或者唔好講離唔離婚喇，因為...

官：或者即係唔好講離唔離婚，佢都唔一定係得一個收入方式㗎，你咪買股票收息囉，即係咁即係--又買債券又收息囉，咪三個囉，咁即係點樣single mode of income呢？即係我唔係好能夠理解證據上，呢一個點可能係啱呢？

MR CHEUNG：係，證據上呢，咁呢個當然嗰個所謂嘅detrimental reliance，既要有客觀嘅事實支持，但係講緊即係因為一個人點樣倚賴一個承諾，係最主要係講緊佢嘅主觀嘅感覺，佢就係--即係佢嘅感覺就係「你畀層樓我，我就唔同你分身家，唔要求你點樣養啲仔女」，呢個咪就係佢--而如果佢真係有呢個感覺，有呢個依賴，而對佢不利嘅，呢個就係個detrimental reliance嘅精髓…

…

…

官：係咪呢？即係有啲夾硬喎，即係唔好話我講得直接啲，即係我明點解你咁講，因為你凈係可以咁講吖嘛，咁我梗係理解喇，咁就係即係我都不得不講一講，即係有啲夾硬囉。

MR CHEUNG：我認同個文字上係唔係完全一樣，但係因為狀紙佢最主要個核心，佢唔係--佢要講出原告人嘅重要事實佢嘅認知，佢嘅認知佢當時係咁樣諗，而法官閣下就要諗，佢咁樣諗係唔係對佢不利喇…

…

…

官：「咁點解直到呢一刻，妳都冇同佢離婚」吖嘛，咁所以幫唔幫到你呢，呢個？即係--同埋其實因為你冇喺狀紙度寫到呢一個係你嗰個detrimental reliance，即係蝕底嘅回應，咁所以大家都冇攞過同分身家有分--有關係嘅文件出嚟？咁可能係而家多過以前㗎，咁你唔入Form E都唔知㗎，咁所以即係幫唔該幫到你呢？即係我問--開放式問題嚟嘅。

MR CHEUNG：係，閣下，我諗如果用而家個狀紙嚟到分析呢，就個側重點就唔係離婚嘅，個側重點係在於分身家嘅，咁因為狀紙只不過係一個好籠統咁講過話demand呢個字，咁所以我個陳詞就係話，佢唔同佢分身家，咁分身家就係愛嚟養啲仔女嘅，即係起碼當時佢嘅諗法就係愛嚟咁樣做，咁咪就係唔demand to一啲 [redacted] 同埋[redacted] 的生活費用去到養大呢兩個仔女。

官：咁但係一個人究竟佢有幾多錢就每一秒都唔同㗎嘛，即係時間遲咗，可能少咗喇當然，但係都可能多咗喎，咁所以即係我有少少保留，遲咗離婚，即係假設佢聽日先嚟咁樣喇，唔係當年嚟喇，佢係咪一定少咗錢呢？可以多咗都得㗎，大家都唔知，因為根本就冇就住呢樣嘢攞過任何文件，可能即係第一被告有三十個親戚係1995年同而家中間過身，跟住佢係遺產受益人都可能係㗎，咁可能佢嘅錢係多咗三十倍㗎喎，我點知啫，即係？所以你個論點係咪有啲難令我接受呢？即係如果你係真係想我接受，你係咪要講多啲呢？即係我交畀你決定，但係我即係諗緊乜我就照講啫，睇下你會唔會想處理下喇。

MR CHEUNG：好，係，就住呢度可以講都講到喇。

官：暫時冇，係，明白，明白，明白，好。”

54.  All in all, despite Mr Cheung’s admirable best effort, I am not satisfied P’s ASoC allowed P to run this innovative case of “non-divorce” as P’s detrimental reliance.  In any case, in my view, even if I were to allow P to run such a case, I would have rejected it as legally misconceived and evidentially not established.  The “detrimental reliance” element of CICT being absent, P’s claim of CICT must be, and is hereby, dismissed.

P’s Adverse Possession Claim

55.  For those reasons set out in §43 above P’s Adverse Possession Claim was and remains thoroughly bad and is dismissed.  P’s evidence and submissions curiously focused on P’s continuous usage of the Property and that does not help at all because all parties agreed P was a co-owner of the Property at law and in Equity, so P’s usage of the Property tells us nothing of value.  P was of course using the Property – all parties agreed she was a co-owner entitled to do so as of right.  There was no evidence that P had in fact excluded D1 in the sense as required by the law of adverse possession, and there was also no evidence of P’s intention to permanently exclude D1 in the sense as required by the law of adverse possession.  For all we know, D1 exercised its ownership rights by collecting rent and visiting.  P did not even understand what adverse possession was, which showed P could not have an honest belief that she supposedly had a claim in adverse possession.  In this connection, I accept §§78 to 84 of D1’s Written Closing as correct.  The further discussions on this at closing submissions went as follows[40]: -

“官：因為佢係訴訟人嚟㗎嘛，如果訴訟人本人唔知咩嘢係逆權侵佔...

MR CHEUNG：係...

官：...咁我點判佢贏呢？即係佢自己都唔知咩嘢嚟嘅，咁佢唔知自己告緊乜，我應該點處理呢？

MR CHEUNG：係，佢其實唔係唔知自己告緊乜嘅，佢講到--因為閣下，嗰個法律嘅訴訟因由，起碼一個證人或者與訟一方，佢要講到個material fact，佢要到關鍵嘅事實，咁佢講到關鍵事實，佢講唔到個法律嘅學名之嘛，佢唔知法律學--即係佢直情--佢甚至--因為我睇佢個謄本，佢連複讀番法官閣下嗰個逆權侵佔個字，佢都複讀唔到，即係話佢對於呢個學名可能佢唔認知，冇問題，因為呢個學名亦都佢喺證人供詞嗰度亦都冇提及，喺個狀紙嗰度係英文嘅，真係靠口譯翻譯畀佢聽，佢唔一定要好記得呢個學名嘅，但係佢講到個基本關鍵事實，咁就已經足夠喇。

官：明白。

MR CHEUNG：係。

官：考慮下，係。”

56.  Despite Mr Cheung’s effort, I am not at all satisfied P had any genuine claim in adverse possession, as P had no intention to permanently exclude D1 from using the Property (including collecting rent or visiting it as an owner), and P did not even know she was suing in adverse possession or if so what that meant.  Since P was not just a witness but was at the same time a litigant represented and advised by competent lawyers, the fact that P did not even know she was suing in adverse possession or if so what that meant is actually rather shocking.  P’s Adverse Possession Claim was and remains thoroughly bad and is dismissed.

Notice of Severance and Deed of Gift

57.  By §§36(3)  & 36(4)  of the ASoC, P claimed declarations that the Notice of Severance and the Deed of Gift were null and void and of no legal effect.  This part of P’s claims succeeds and I do hereby grant the two declarations sought.  I also make an order that those two documents, if they are still registered in the Land Registry, shall be vacated and removed from the Land Registry forthwith.  As I had stated in Chan Kang Hung Bovis v Chan Kang Kong [2023] HKDC 933, that jurisdiction exists because what was said by DHCJ Andrew Cheung (as the Honourable Chief Justice then was) in the famous case of Wong Kum Chi v Lee Tit Ying [2003] 1 HKLRD 594 (§16)  applies to the District Court as well, and the District Court does have the jurisdiction to vacate the purported registration of any instrument in the Land Registry which does not affect or no longer affects land.

58.  As to why this part of P’s claims succeeds, I say at once I am deciding this issue based on Dr Gabriel Hung’s expert evidence on mental capacity, as opposed to allegations of duress and undue influence. In gist, having carefully considered Dr Gabriel Hung’s evidence – see §§31 & 49 above – it is crystal clear to me D1 could not have had the capacity to sign documents as complicated as the Notice of Severance and the Deed of Gift in September 2018.  As Dr Gabriel Hung previously explained in his expert report[41], mental capacity to make decisions required the ability to inter alia (1)  fully understand; (2)  retain for a sufficiently long period; and (3)  weigh up information relevant to that decision, and it was clear from the Hospital Authority medical records and Dr Gabriel Hung’s analysis of them that D1 did not have those abilities back in September 2018.  Whilst the signatures were there, they were void in law.

59.  It remains for me to address D2’s submissions on the issue.

60.  D2 acted in person and his position was as follows[42]: -

“如果係白紙黑字搵晒律師、搵晒醫生，都話唔算數嘅，咁我真係冇話好講喇…”

61.  It is important that I state, for the benefit of D2, why I rejected his case.  D2 seemed to have laboured under the false impression that if the signatures on legal documents were handled by solicitors and doctors then they would somehow be valid and immune from challenge.  That would be an incorrect understanding of our laws.  All documents can be challenged.  Further, as the UKSC had said in Griffiths v TUI (UK)  Ltd [2025] AC 374 [2023] UKSC 48 (per Lord Hodge DPSC), whilst as a very general rule it would be best that if the opinion of an expert, such as that of a solicitor or a medical doctor, should be rejected, he should first be heard and properly challenged with a comprehensive set of Browne v Dunn questions, this is not always necessary.  It all depends on the factual circumstances.  Classic exceptions included (1)  where the matter to be challenged was collateral or insignificant; (2)  the evidence was manifestly incredible; (3)  the evidence consisted of a bold assertion of opinion without any reasoning; (4)  obvious mistakes existed on the face of reports; (5)  evidence or finding of primary facts was contrary to the basis on which the expert expressed his view; (6)  the expert in question having been given a sufficient opportunity to respond to criticism of or otherwise clarify his report; and (7)  the opinion did not comply with other requirements, such as the requirement that its reasoning must also be sufficiently set out, etc.  The above formed part of the laws of Hong Kong.  Applying the above principle to Ds’ situation, the documents from D1’s private doctors and the Mainland China Hospital are caught by the classic exceptions in that there was no or insufficient reasoning, such as detailed analysis of established clinical psychiatric tests on things like D1’s concentration, memory or decision making abilities, and there was no citation of reference literature, to enable me to assess the alleged value of what they said.  As such they can be, and are hereby, rejected by me without first calling them to give evidence or subjecting them to a comprehensive set of Browne v Dunn questions.  In this world, any person can say anything, but the words they utter or write do not carry more weight just because of their occupation, unless they also responsibly explain their reasoning in an acceptable manner with the expertise they have, supporting what they say with proper materials.  Bold assertions of opinion without reasoning by any person, including lawyers and doctors, simply do not assist the Court, and can be rejected by the Court without a Browne v Dunn exercise.

62.  Indeed, until my appointment of the Official Solicitor as D1’s guardian ad litem in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, Ds were jointly represented by solicitors and counsel, and Ds did not seek to call the solicitors responsible for the Notice of Severance and the Deed of Gift to give evidence, and their office file was never disclosed or produced by Ds.  Ds could have applied for leave to adduce expert evidence, but Ds had never done so.  On 22 April 2025[43], I specifically asked Ds’ counsel at the time “on what basis” would he be cross-examining P’s expert since he chose to call no expert himself, and his answer was “we don’t see the need to do that”, and “an expert is expensive”[44].  The need was actually obvious.  That choice appeared to me to be unwise but as I had also stated at the time I should not “force the parties to spend more money”[45].  D2 was bound by the way his legal team at the time chose to handle this matter for him.  Dr Gabriel Hung’s expert report was dated 5 July 2023, and I assumed it was disclosed soon after that, way before the start of the trial on 22 April 2025.  Having read the comprehensive, well-reasoned and persuasive contents of that report in July 2023 and being fully aware what Dr Gabriel Hung would be saying in Court, D2 still knowingly chose to call no expert to rebut any of the things Dr Gabriel Hung would be saying.  In such circumstances, D2 cannot complain that I ended up agreeing with Dr Gabriel Hung’s opinion that D1 in most likelihood had no mental capacity to execute the Notice of Severance and the Deed of Gift in 2018.  Given the comprehensiveness and persuasiveness of Dr Gabriel Hung’s expert report, I would have thought if D2 was serious in trying to persuade me Dr Gabriel Hung was wrong, he should have done much more than just instructing his counsel to maybe ask Dr Gabriel Hung a few random or unimportant questions here and there by way of clarifications.  The way D2 had been defending this matter appears to me to be bizarre.  D2 ignored all evidence conspicuously adverse to his interests and conspicuously contradicting his case.  Putting it graphically if I may, D2 was very much like an ostrich burying its head in the sand, with himself being unable to see anything of importance, but with everyone else being able to clearly see the weaknesses of his case.  It was a strange way to handle litigation.

63.  For the avoidance of doubt, I make no finding on the serious allegations of duress and undue influence, as it is unnecessary for me to do so, given the clear evidence that D1 simply had no mental capacity to sign the Notice of Severance and the Deed of Gift.

D2’s Counterclaim

64.  D2’s counterclaim[46] assumed the Notice of Severance and the Deed of Gift were valid.  Since those documents were void, the entire basis of D2’s counterclaim was wrong.  I dismiss D2’s counterclaim.

Costs

65.  The last issue is costs.  I should start by saying given all of the above, and the fact that my substantive rulings turned out to be very much along the lines as advocated by Mr Wong on behalf of D1 once Mr Wong took over the conduct of these proceedings upon legal aid being granted to D1, the Director of Legal Aid and the Official Solicitor should be allowed to recover their costs from others.

66.  The more difficult question is who, then, should pay for costs?

67.  My observations are as follows.

68.  Firstly, whilst I ruled against P on (1)  P’s Trust Claim; and (2)  P’s Adverse Possession Claim, P did have to incur costs in this legal action to get the Notice of Severance and the Deed of Gift declared void by me, so P should be allowed to recover, at the very least, those costs.  Secondly, whilst P would first and foremost wish to recover costs from Yu Hung & Co Solicitors personally, no inter partes summons for that had been taken out by P under Part E of Practice Direction 14.5, and the required procedure as set out in that practice direction has not yet been complied with.  Thirdly, the Hong Kong Court of Appeal has on 1 August 2025 in Indah Veby Mega v OWT Asia Ltd [2025] 4 HKLRD 421 [2025] HKCA 720 (§31, per Kwan V-P) emphasized the importance of procedural fairness in proceedings for wasted costs against solicitors, and I agree with what the Hong Kong Court of Appeal had said in relation to this.

69.  Given the above, apart from the declarations and other orders referred to above, I also give the following directions on the issue of costs for this whole matter: -

(1)  Should any party wish to apply for any order that a law firm or solicitor should personally pay for wasted costs, that party should take out an inter partes summons with supporting affidavit at or before 4pm on 27 April 2026, failing which that party would be barred from making such an application.  Such a summons with supporting affidavit must be served on the law firm or solicitor in question, together with an office copy of this reasoned judgment, and allegations must be fully particularized in compliance with the letter and the spirit of Part E of Practice Direction 14.5.

(2)  The anonymity order dated 28 April 2025 is varied to the extent that steps, including incidental steps, taken by a party pursuant to this set of directions shall not be considered a breach of the said anonymity order.

(3)  Unless this Court directs otherwise, the said summons for wasted costs, if taken out by any party hereto, shall be dealt with and disposed of by DDJ Kenneth KY Lam by paper-disposal, without any oral hearing, and further procedural directions shall be given by DDJ Kenneth KY Lam on paper.  All requests for oral hearings, made pursuant to Order 62 rule 8(3)  to Order 62 rule 8E of the Rules of the District Court (Cap 336H)  or otherwise, shall be made in and/or incorporated into the affidavits or submissions to be filed pursuant to the paragraphs set out below.

(4)  All parties, and all law firms or solicitors asked to pay costs personally, have leave to file affidavit and written submissions at or before 4pm on 11 May 2026.

(5)  All parties, and all law firms or solicitors asked to pay costs personally, have leave to file affidavit and written submissions in reply at or before 4pm on 25 May 2026.

(6)  All parties, and all law firms or solicitors asked to pay costs personally, are encouraged to assist this Court by making full legal submissions on the extent of the duty, if any, of solicitors in ascertaining the mental capacity of, and/or potential conflicts between, their own clients in the circumstances of the present case, including the modern application of what was said by Buckley LJ of the English Court of Appeal in Yonge v Toynbee [1910] 1 KB 215 (at 227+), and/or Chapters 5 & 9 of the Hong Kong Solicitors’ Guide to Professional Conduct, and/or what had been said in HKCP 2026, §§62/8/3 & 62/8/4.

(7)  P’s solicitors are ordered to draw up, file and serve this set of directions on costs, and to prepare and then serve on D2 a set of Chinese translation for the same, at or before 4pm on 27 April 2026.

(8)  There be liberty to apply on the sole issue of costs.

Publication

70.  In compliance with Practice Direction 25.2, unless any party lodges full written submissions, reaching this Court before 4pm on 17 April 2026, explaining why this judgment should not be published, this judgment shall be published (by being uploaded to the Judiciary’s public website) on 20 April 2026 without further order.

Final Remarks

71.  I do thank all counsel for the most able assistance.  As I stated in P v D1[2025] 2 HKLRD 1018 [2025] HKDC 744, in my view, D1 was a person in urgent need of proper psychiatric medical care.  D1’s situation was dire.  Any person who confabulates needs to be protected properly.  In fact, in my view, a formal application should be made under Part II of the Mental Health Ordinance (Cap 136)  to protect D1 from harm, but that is not something for me to decide.  I shall leave it to D1’s responsible relatives to decide for themselves whether they need to do more to protect D1 from harm.