MIR, ABDUL REHMAN v. MIR, HEENA

HCMP 1347/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1347 OF 2008

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J U D G M E N T

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1.  This dispute centres on the rights to ownership of a residential property at Belmont Court in Kotewall Road, Hong Kong (“Belmont Court”). By an Originating Summons dated 18 July 2008 the Plaintiff, Mr Abdul Rehman Mir sought relief comprising, primarily, an order under s. 6 of the Partition Ordinance (Cap. 352) that Belmont Court be sold and the proceeds distributed between the Plaintiff and the Defendant.

2.  Following an exchange of affirmation evidence it became apparent that there were serious factual disputes which required resolution and the parties sought directions by consent to have the matter pursued as a writ action.  Directions to this effect were given by Master Lung on 22 May 2009, and pleadings, documentary, and witness evidence was thereafter exchanged.

Background

3.  The Plaintiff and the Defendant were in a close personal relationship from about 1988 to 2006.  The Defendant had been employed in the Plaintiff’s business since 1983 and was at that stage married to the Plaintiff’s brother.  That marriage broke down during the 1980’s after which the Defendant’s personal relationship with the Plaintiff developed.

4.  In 1988 the Plaintiff purchased a flat in Belmont Court (“Belmont Court”), apparently for the use of the Defendant.  The Defendant took occupation of Belmont Court with her three children, who were the nieces and nephews of the Plaintiff.

5.  There is no dispute that the Plaintiff provided the funds to purchase Belmont Court although there is some factual dispute as to the sources of funds for renovation, decorations and so on.  Nor is there any dispute that the property was conveyed to the Plaintiff and the Defendant in joint names as tenants in common, with the Plaintiff having a ¾ share and the Defendant a ¼ share.  The original intention seems to have been that the Defendant would pay for that share over time but she says that the Plaintiff later said that this would not be necessary.  Certainly the Plaintiff does not assert any entitlement to more than a half share of Belmont Court at this trial.

6.  The Defendant continued to live in Belmont Court, as she still does, and she continued to work for the Plaintiff.  Her role in the business developed to a stage where she was running that business in Hong Kong for much of the year while the Plaintiff pursued his business interests in other parts of the world.  The Plaintiff nevertheless remained involved in the overall management of the business and remained personally involved with the Defendant.  The personal relationship developed such that a wedding was planned for 1997.  The wedding did not take place for reasons which are neither agreed nor of relevance, but an engagement party was held at which their relationship was made public.

7.  In 2001 the Plaintiff had a falling out with his children.  As a consequence he says, he took the decision to transfer his ¾ interest in Belmont Court to the Defendant.  A Deed of Gift was drawn up by solicitors by which the Plaintiff’s interest was transferred to the Defendant and this was executed on 5 September 2001 (“the 2001 Deed”).

8.  Contemporaneously with that 2001 Deed however the Plaintiff says that there was an agreement or an understanding that the Defendant was to hold this ¾ share in Belmont Court on trust for the Plaintiff.  The Plaintiff’s pleading alleges this to have been an agreement while the Plaintiff’s affirmation made in support of the Originating Summons describes it as an understanding.  The two are rather different things and I return to this below.  Suffice it to say that “on paper” at least, by this stage the Property was wholly owned by the Defendant.

9.  The next significant stage in the chronology came in 2006.  The personal relationship between the Plaintiff and the Defendant began to deteriorate and did so sharply when, in or about May 2006 the Plaintiff discovered that the Defendant had been having an affair.  The Plaintiff returned to Hong Kong for a period and during that visit the Defendant executed a further Deed of Gift (“the 2006 Deed”), this time re-transferring a ½ share in Belmont Court to the Plaintiff.

10.  The 2006 Deed forms the basis on which the Plaintiff has brought this claim seeking the sale of the property and the distribution of the proceeds.  The circumstances in which the 2006 Deed came to be made are however controversial, and formed the main factual issue between the parties.  The Defendant’s case is that the 2006 Deed was procured by duress, and is therefore not binding on the Defendant.

June 2006

11.  The parties’ accounts of the happenings in the first few days of June 2006 are almost entirely contradictory.  There is common ground that the Plaintiff returned to Hong Kong for a visit, and he and the Defendant met at the business during the day.  There was some limited discussion about the Defendant’s affair.  The Plaintiff says that there was also discussion about Belmont Court, and whether a half share was to be transferred back to him.  The dialogue between the parties continued after work in the evening of 1 June at Belmont Court.  That dialogue included a discussion of the Defendant’s affair.  Although the parties had discussed this via email in May 2006 it was the first occasion on which the Plaintiff confronted the Defendant with this matter face to face.

12.  The Plaintiff left Belmont Court but later in the evening the Plaintiff and the Defendant met again at the Plaintiff’s hotel following which the Defendant returned to spend the night at Belmont Court. Although there is common ground that the Defendant visited the Plaintiff at his hotel, the instigator of that further encounter, and the time at which it took place, are disputed.

The Plaintiff’s Account

13.  The Plaintiff returned to Hong Kong on 31 May 2006, and checked into the Marriott hotel.  He did not contact the Defendant that day, but as described above, he paid a visit to the business premises and met the Defendant the following morning, that is, on 1 June 2006.  He says that they had a relatively short private conversation in which he discussed with the defendant the “return” to him of a one half interest in Belmont Court.

14.  The Plaintiff says that the Defendant was not unwilling to make this transfer and he attributed this both to the oral arrangement made in 2001 by which the Defendant was holding three quarters of the shares in Belmont Court on trust for the Plaintiff, but also to her “guilt” over her affair.

15.  As is common ground, the discussion between the parties continued in the evening of 1 June at Belmont Court.  It is at this point in the narrative that the versions diverge significantly.  The Plaintiff recounts a discussion which lasted for about an hour.  This was not wholly amicable and he refers in his supplemental witness statement to there having been a heated quarrel, in the course of which some “pushing” took place. 

16.  The Plaintiff says that he left Belmont Court after about one hour and returned to his hotel.  He says that he received phone calls from the Defendant pestering to be allowed to visit the Plaintiff, and this he says the Defendant did at around 9:30 pm.

17.  The Plaintiff says that at about 11.00 pm he escorted the Defendant back to Belmont Court.  Shortly after arriving there the Defendant’s son, Charlie Mir (“Charlie”) returned home from work.  The Plaintiff then returned to his hotel.

18.  According to the Plaintiff the next day, 2 June 2006 was, for the most part, a normal working day except perhaps that the parties had limited contact during the day.  However the Defendant requested the Plaintiff to go to Belmont Court after work to talk to the Defendant’s younger brother, Danny Gohel, and this the Plaintiff did.  The discussion between the Plaintiff and Danny Gohel was relatively short, lasting about half an hour.  The Plaintiff then returned to his hotel.

19.  On the next day (3 June 2006) the Plaintiff moved into Belmont Court and stayed there until he left for London on 18 June 2006.  This is also common ground.  It was during this period that the 2006 Deed of Gift was executed, this being signed by the parties at the solicitor’s offices on 12 June 2006.  For reasons that have not been explored or explained, that Deed has been registered twice with the Land Registry by the Plaintiff. On the same day as the Deed of Gift was executed the Plaintiff made a further will at the solicitor’s offices. 

The Defendant’s Account

20.  The Defendant’s version of events is quite different, with the key differences starting with the return of the parties to Belmont Court in the evening of 1 June 2006.  The Defendant says that she was physically assaulted, which she describes in terms of a beating having taken place at the hands of the Plaintiff.  The Defendant says that she was slapped, punched and kicked by the Plaintiff over a lengthy period of time.  A considerable level of violence was used and the Defendant was left quite severely bruised.  As a result of this attack she was unable to go to work for about a week.

21.  The Defendant says that this assault took place initially in the living room of the flat and later in the bedroom.  The noise attracted the attention of her domestic helper, Ms Ramos who came from the kitchen and tried to stop the Plaintiff, but without success.

22.  The Defendant recounts that Ms Ramos was concerned with what was taking place and called the Defendant’s son Charlie to come home from work. Charlie did return home, but when he came into the flat the Defendant says that she told her son that everything was alright, and Charlie returned to work shortly thereafter. According to the Defendant things were not alright however.  She describes herself as already having been badly bruised by the assault, and says that after her son left to return to work the Plaintiff resumed his assault on her.

23.  After some time the Plaintiff left and went to his hotel, but later he called her from the hotel and demanded that she go to see him there.  The Defendant says that the Plaintiff was insistent, and that she acceded to the request and went to the hotel.

24.  The Plaintiff further abused the Defendant at the hotel but when Charlie returned home from work and found the Defendant missing he called the hotel and spoke to the Plaintiff.  Initially the Plaintiff denied that the Defendant was with him, but he then allowed Charlie to speak to the Defendant.  When his mother did not then return home, Charlie telephoned again and insisted that his mother return home.  The Plaintiff then escorted her home.

25.  At Belmont Court the Plaintiff said that he wanted to stay the night, but Charlie insisted that he leave, which he did. The Defendant describes how badly she was hurt, and says that she slept on the sofa in the living room that night because her bedroom was in such a mess after the fight.  She says that the Plaintiff returned the next morning and recounts a further argument, but there was no further violence.

26.  Both the Plaintiff and the Defendant have called witnesses to support their respective versions, although the Plaintiff’s evidential options are of course limited to seeking to establish that no assault took place.

Evidence of other witnesses

27.  As appears above there was one witness other then the parties themselves to part of the alleged assault, the Defendant’s domestic helper, Ms Melbourne Ramos.  Ms Ramos has been an employee of the Defendant since 1982 and remains an employee of the Defendant.  She related in her witness statement, and confirmed in oral evidence how she had seen the Plaintiff hitting, slapping and kicking the Defendant, and how, when she tried to intervene, the Plaintiff had sent her away and had taken the Defendant from the living room to the bedroom.

28.  She also described how she heard the Defendant crying out loud from the bedroom, and how she decided to call Charlie and ask him to come home because she felt unable herself to restrain the Plaintiff. This she did, and she stated that Charlie arrived at Belmont Court at about 10.00 pm but did not stay long.  The Plaintiff later left, and Ms Ramos went to see what had happened.  She stated that she saw that the bedroom was a mess, there was blood on the Defendant’s lips, and her cheeks were swollen.

29.  Ms Ramos also gave evidence relevant to the question as to who instigated the Defendant’s visit to the Plaintiff’s hotel. She said that after the Plaintiff had left to return to his hotel there was a phone call received at Belmont Court after which the Defendant told her that the Plaintiff wanted her to go to his hotel.  Ms Ramos advised against going, but the Defendant went nevertheless. 

30.  Ms Ramos was also able to recall that Charlie arrived home after work at about 11.30 pm, after the Defendant had gone to the Plaintiff’s hotel.  He asked Ms Ramos where the Defendant was.  Ms Ramos knew that the Defendant had gone to the Plaintiff’s hotel, but did not know which hotel that was, so Charlie looked for and found the telephone number of the Plaintiff’s hotel from the calls recorded on the caller display of the home telephone and called to speak to his mother. 

31.  When the Defendant came home with the Plaintiff Ms Ramos says that she was “in bad shape and could not walk properly”.  After an argument Charlie told the Plaintiff to leave.

32.  Ms Ramos says that the Plaintiff returned to Belmont Court the next morning (2 June) and she believed from what she could hear that there was a further argument.  Ms Mir did not go to work and stayed at home the whole of the next day.  The Plaintiff returned to the flat in the evening of 2 June and then stayed there until he left Hong Kong.

33.  The gist of these events was supported by Charlie Mir who also was called to give evidence on behalf of the his mother. He stood at one remove from the more critical events themselves since there was no suggestion of any physical assault taking place while he was present.

34.  He also stated that when he returned home after work on 1 June, he found his mother was not at the flat, and that he decided to telephone his sisters, Amina and Shaziya neither of whom was in Hong Kong.  It was they who insisted that he must locate his mother and make sure that she returned home safely.  This he did by finding the hotel phone number by looking in the list of received calls on the house telephone.  He called and spoke firstly to the Plaintiff and then the Defendant.

35.  He was unable to corroborate the Defendant’s and Ms Ramos’ evidence as to a further argument at home in the morning of 2 June, his evidence being that he slept, undisturbed, in the flat until about 9.30 am. 

36.  The Defendant’s brother, Dr Danny Gohel was also called, and gave evidence as to his involvement.  This started with his having received a text message in the morning of 2 June 2006 from which he learned that the Defendant had been assaulted.  That message had been sent to him from London by the Defendant’s daughter, Amina Mir who, he understood, had herself heard about what had happened through telephone conversations with Charlie.

37.  Dr Gohel said that he tried to telephone his sister, the Defendant, in the morning of 2 June, but was unable to make contact with her at first.  He planned to visit her flat on his way to work but was pre-empted by a phone call made by the Plaintiff using the Defendant’s phone. The Plaintiff told him there had been an argument and that things had got out of hand, but that the Defendant was alright and was resting.

38.  Dr Gohel visited Belmont Court in the evening of 2 June.  Both the Plaintiff and the Defendant were present, and the Defendant was in bed.  The Plaintiff was feeding her.  Dr Gohel (who is not a medical doctor) said that he could see bruising on the Defendant’s face, and that she was visibly upset.  He could see that she had some difficulty moving in the bed, and he advised her to get medical attention.  He told the Plaintiff that, in the circumstances, he should not stay at the flat and the Plaintiff told him that he was staying at the hotel.

39.  Dr Gohel left, but telephoned the Defendant later in the evening.  She told him that the Plaintiff had left.  He advised her again to see a doctor about her injuries.  Dr Gohel stayed in close contact with the Defendant by telephone over the course of the next week or so.

40.  One consequence of the attack according to the Defendant was that she was unable to attend work for a period after the attack.  This was an area of her evidence that the Plaintiff sought to rebut with evidence from an employee at the business, Mushtaq Ahmed.  Mr Ahmed was a long term employee at the business and was familiar with both the Plaintiff and the Defendant.  He related that he had no recollection of the Defendant being absent from work during this period.  However it appeared that he had no recollection of the Defendant ever being absent from work, and, while I accept his recollection to be genuine, this is of little assistance in determining whether or not the assault took place.

41.  Indirect evidence as to what had taken place on 1 and 2 June 2006 was also adduced through the evidence of one of the Defendant’s daughters, Amina Mir.  Not only is she the Defendant’s daughter, at the relevant time she was in London, so there are clear limits to be placed on the weight of what she had to say.  She was able to confirm however that she had been telephoned by Charlie on the evening of 1st (Hong Kong time) when he returned to the flat and found his mother was not there.  Amina Mir advised that he ‘track down’ the Defendant.  She also had a telephone conversation with Danny Gohel who had told her that there had been a fight.

The Period Following 18 June 2006

42.  The Plaintiff left Hong Kong on that date and, on the face of things, the Defendant was then free of whatever influence the Plaintiff may have been having over her actions.  The Defendant says that she had been assaulted, and had been pressured into signing over a half interest in her home.  Counsel for the Plaintiff makes the submission that these are circumstances in which the Defendant might have been expected to react strongly once any pressure from the Plaintiff was removed so as to record what had really happened and to rectify the position in regard to Belmont Court. 

43.  In fact very little seems to have been done, and the evidence shows the Defendant’s attitude to have been somewhat ambivalent at this time.  On the one hand she had some email exchanges during this period with the Plaintiff, and this correspondence was cordial and even friendly.  There were no recriminations or accusations about the assault.  If anything the tenor of the correspondence is mundane.    

44.  On the other hand the Defendant resigned from her employment with the Plaintiff after 23 years of service on 1 August 2006. This seems to suggest that a rather serious rift had taken place, but this is perhaps just as consistent with the ending of the personal relationship due to the Defendant’s affair as with the assault alleged having taken place. 

45.  One thing the Defendant did not do until three weeks after the assault was to seek medical assistance, and this she even then deferred for several days after the Plaintiff had left Hong Kong. She only consulted Dr Gloria Kim on 23 August, 2006.

46.  Doctor Kim also gave evidence on behalf of the Defendant at the hearing and her contemporaneous case notes were in evidence. The reason given to Dr Kim by the Defendant for going to see her was that she had been assaulted by the Plaintiff.  Both Plaintiff and Defendant were known to Dr Kim socially.  At her examination of the Defendant Dr Kim saw evidence of bruising on the Defendant’s thighs but these seem to have been the only symptoms of physical injury still visible. 

47.  Dr Kim noted that the Defendant appeared to her to be stressed and anxious at this examination, even though this took place several days after the Plaintiff had left Hong Kong.  This appears to have been the main concern at that stage.  The treatment prescribed by Dr Kim was for stress rather than for physical injury. The Defendant was prescribed with Xanax to treat anxiety.  Dr Kim described the Defendant as being palpably anxious at that examination and because of her apparent state of mind she referred the Defendant to a psychologist although the Defendant seems not to have followed up on this referral.

Conclusions on the Assault

48.  As referred to above, the positions of the Plaintiff and the Defendant are entirely polarized so far as the alleged assault is concerned.  The Plaintiff says that it simply did not happen while the Defendant’s witnesses describe a sustained physical attack.  Having heard the evidence I am left in no doubt that the evidence of the Defendant is more persuasive.

49.  The Defendant and her witnesses were cross examined in some detail by Mr Raymond Tsui on behalf of the Plaintiff and it is fair to say that he was able to identify a number of inconsistencies in the various versions of events.  He was also able to point to a number of rather odd omissions from their actions and reactions to the assault.  Although the assault was said to have been severe nobody made any report to the police, and nobody tried to prevent the Plaintiff from returning to live at the flat.

50.  Although living at home with his mother and with the Plaintiff after he returned on 2 or 3 June, Charlie did not seem to be unduly worried that there might be further violence towards his mother.  Having returned home from work on 1 June after being told by Ms Ramos that there had been trouble, and after seeing that her mother had been “roughed up” he nevertheless simply went back to work. 

51.  Dr Danny Gohel lived close to Belmont Court but did not make any further visits to see about the welfare of his sister or to see that she took his advice and visited a doctor.  Dr Gohel’s evidence clearly corroborates an assault having taken place, but somewhat similarly to Charlie, he does not appear to have viewed this as being as serious as is now suggested.  He accepted in the course of his cross examination that perhaps more ought to have been done to protect the Defendant in the circumstances, especially after the Plaintiff returned to live in Belmont Court, but of course this “low key” response could well be consistent with a lesser degree of violence having been used than is now suggested by the Defendant.  Neither of the Defendant’s other two brothers who were living in Hong Kong came to visit her during this period either despite apparently having been told by Dr Gohel what had happened.

52.  With the benefit of hindsight, and in the context of this litigation, these various omissions do seem surprising and to some extent inconsistent with what is said to have happened.  However it is a fact of life that people do not always take the course of action that hindsight or litigation suggests would have been wise or prudent.  On balance I do not believe that these matters impeach the overall veracity of the evidence of the assault given on behalf of the Defendant but they do suggest to me that the physical damage inflicted on the Defendant may have been ‘played up’ in the evidence.

53.  Also puzzling according to the Plaintiff are the various, apparently caring emails sent by the Defendant to the Plaintiff in the weeks and months following the assault.  She sent him birthday greetings by email on 25 June, albeit she says this was at his request.  Emails in friendly terms were sent also on 17 July, 19 August and 18 September.

54.  It seems to me however that these emails have to be understood in the context of a relationship that had endured between the Plaintiff and the Defendant for about 18 years.  The Defendant had, to say the least, the right to be angry at what had happened, but the mere fact that she was able to write civilly, even somewhat affectionately does not persuade me that she must be untruthful in her evidence as to the fact of the fact of the assault.

55.  The Defendant is able to corroborate the main elements of her evidence with evidence from (in particular) Melbourne Ramos, and Danny Gohel.  It is true to say that all of the witnesses called on behalf of the Defendant are family members or either a long term employee (Ms Ramos) or a friend (Dr Kim).  The weight to be given to this evidence has to be reduced accordingly and it is fair to say that I believe I believe the Defendant and one or two of the family members who gave evidence may have overstated the severity of the assault somewhat. 

56.  This possible embellishment, the close relationship of the witnesses to the Defendant, and the minor inconsistencies in the evidence of the witnesses who were able to speak to the events of 1 June do not, in my view, impeach the overall veracity of their evidence or undermine the gist of that evidence so far as the fact of an assault having taken place is concerned however.

57.  The severity of the assault is, in fact, difficult to ascertain.  Although this was a prolonged attack according to both the Defendant and Ms Ramos, no lasting physical damage was caused, and the Defendant was able to present herself in public when she returned to work.  I accept Dr Kim’s evidence however that some residual bruising was still visible on the Defendant some three weeks later and, perhaps as significant in the circumstances of this dispute, that the Defendant was patently anxious and stressed at that time. 

58.  In summary therefore, while I believe that the Defendant’s evidence somewhat overplays the physical aspects of what took place, it is decidedly closer to the truth than the evidence given by the Plaintiff that nothing untoward took place. 

Consequences on the 2006 Deed of Gift

59.  The above summarises the circumstances in which the Deed of Gift came to be executed by the Defendant on 12 June.  The Defendant alleges that these circumstances amount to duress such as to enable her to avoid the transaction.  There is no real dispute as to the law in this respect and Mr Tsoi, on behalf of the Defendant referred me to a passage in Trietel where the position was summarised in the following way:

“Duress of the person involves actual or threatened physical violence, or unlawful constraint. It will normally be directed at the person of the contracting party, but it also includes threats directed at employees for whom he is responsible. In Barton v Armstrong, the Privy Council drew an analogy with fraud and held that it is not necessary to show that the threat was the sole inducement of the contract, or that it would not have been entered “but for” the threat. It is enough that it was a factor and it seems that, once the threat has been established, the burden is on the defendant to prove that it ‘contributed nothing’ to the decision to enter the contract.”

60.  That passage speaks in terms of direct physical violence or the threat of violence but it is clear that relief from a transaction may be available even when the relevant circumstances relate solely to commercial or domestic pressure illegitimately exerted.  See Barton v Armstrong [1976] AC 104.

61.  In the present case there was a gap of time of about 10 days between the physical assault and the execution of the Deed of Gift.  During that period it is not suggested that there was further physical violence nor even any direct threat of further physical violence.  In my judgment however the Plaintiff took advantage of the violence which had previously occurred and continued to exert illegitimate pressure on the Defendant during this period not least by his decision to return to live with her in the flat at Belmont Court.

62.  The Defendant may have had other motivations in executing the Deed of Gift on 12 June 2006, including perhaps some sense of responsibility for the breakdown of her relationship with the Plaintiff, but this aspect was not really explored in the evidence.  It suffices for present purposes however for me to find that there was illegitimate pressure exerted by the Plaintiff which was, at the very least, a contributory factor in the Defendant’s decision to enter into the Deed of Gift.  

Deed void or voidable

63.  Mr Tsoi, on behalf of the Defendant contended that in these circumstances the deed was void.  I do not agree with that proposition.  Mr Tsoi referred me to an academic article in support of the proposition, and pointed out that the Privy Council in Barton also held the deed in question there to be void but it seems to me to be the better view that such a contract is voidable, not void.  Consequently, as succinctly stated in Chitty on Contract at paragraph 7-053, a person who has entered into a contract under duress may either affirm or avoid the contract after the duress has ceased.

64.  One puzzling feature is that no steps were taken by the Defendant to have the 2006 Deed of Gift set aside.  Nor indeed is there any evidence that she protested promptly to the Plaintiff about the way she claims to have been treated or the fact half of her family home had been taken away from her.  There was ample opportunity for her to do so after the Plaintiff left Hong Kong for London on or about 18 June 2006.

65.  The lack of any positive action by the Defendant to have the 2006 Deed set aside cannot amount to an affirmation of it in circumstances in which the Plaintiff was taking no action to enforce his ostensible rights under that Deed, but nor does inaction amount to a repudiation of the Deed either.

66.  In the immediate aftermath of the Plaintiff’s departure from Hong Kong on 18 June 2006 there was no action taken by either party in regard to the 2006 Deed.  The Plaintiff did not raise the question of Belmont Court until late March 2007 when he wrote an email to the Defendant stating, very briefly, that he would like to “settle” Belmont Court either by the Defendant buying his share or by selling the flat and presumably dividing the proceeds.

67.  The Defendant’s reply, on 22 March 2007 is important in my view.  She stated:

“As for Belmont Court, firstly the building is still under renovation for a few more months and secondly nobody (and I mean nobody) knows you took 50% of the flat back last year in June and do not wish for anybody to know and am in no position to buy you out or wish to sell the flat at anytime.

Under the condition you made me sign the flat over, I really do not want to explain this to anybody. This matter is closed and concluded and you have nothing to worry about.

I have never called to trouble you or disturb you in any manner and always wish you well and for all to have a peaceful life.”

68.  Although this clearly referred back to “the condition you made me sign the flat over” the Plaintiff’s response did not query that phrase and was simply that the affair of Belmont Court had to be settled sooner or later. Counsel for the Plaintiff characterises the Defendant’s email as a ploy possibly adopted by the Defendant with an eye on a future dispute over the Belmont Court property.  I do not believe that to be the case.

69.  The exchange of emails continued with, in summary, the Plaintiff pushing for the sale or other resolution of his claim and the Defendant seeking to put things off.

70.  The correspondence did die down for a period due perhaps to a relatively serious illness suffered by the Plaintiff, involving surgery in March 2008. The email exchanges resumed in mid 2008 and positions hardened.  The Defendant wrote on 11 June 2008 stating that she was in no position to buy the Plaintiff out, and that he could “gift it back” to the Defendant following which the matter would be settled.  She stated that she did not want it to be known as to the way in which “… 50% of the flat was taken from me under duress…”.

71.  Shortly thereafter the matter passed into the hands of solicitors and, on 2 July 2008 the solicitors acting for the Defendant informed those acting for the Plaintiff that the Defendant was seeking financing for the purpose of purchasing the one half interest in Belmont Court from the Plaintiff.

72.  The Defendant’s solicitors wrote on 4 July 2008 stating that if the bank approved a loan to the Defendant then the Defendant would complete the purchase of the Plaintiff’s share expeditiously.  The Plaintiff submits that this correspondence through solicitors shows an affirmation of the 2006 Deed by the Defendant.  I do not agree.  The letter of 4 July also stated that given the background to the 2006 Deed “our client could take this matter further if no amicable resolution can be reached between parties”.  What this correspondence demonstrates, it seems to me, is an attempt by the Defendant to resolve the matter with the Plaintiff albeit largely on his terms. 

73.  The Plaintiff was unwilling to wait and he made a counter offer on 8 July 2008.  That did not result in agreement and the Originating Summons was issued 10 days later.

74.  Looking at this chain of correspondence as a whole, as one must, it is clear to me that the Defendant has come nowhere near affirming, in any clear or unequivocal way, the 2006 Deed.  Accordingly it remained open to her to refute its validity as she did, at the latest, with the service of her affirmation in these proceedings.

75.  It follows that, in my judgment, the 2006 Deed was vitiated by duress and has been avoided by the Defendant.  The Plaintiff may not rely on the 2006 Deed to found a claim to the property.

76.  The Plaintiff submits, against this eventuality, that there was an oral trust made in 2001 contemporaneously with the 2001 Deed that the Defendant was to hold the ¾ interest in Belmont Court transferred to her by the Plaintiff by that Deed on trust for the Plaintiff.  I reject any such arguments.

77.  The Plaintiff has advanced this alternative as an express agreement, an understanding, and a resulting trust arising from the fact that the Plaintiff’s intention to retain beneficial ownership negatives any true consent to the 2001 Deed.  None of these arguments, whether viewed separately or collectively, is at all persuasive especially when viewed in the contemporaneous context, namely that the Plaintiff amended his will at the same time to remove any reference to Belmont Court.  The only rational explanation for these two actions; making the 2001 Deed and amending his will in the way that he did, is that the Plaintiff was indeed divesting himself of his share of the flat.

78.  It follows that the Plaintiff’s claims for Orders under the Partition Ordinance and for a declaration must fail, and are dismissed.  The Defendant’s counterclaim for an Order that the 2006 Deed be set aside succeeds.

PSLA

79.  There remains the Defendant’s counterclaim for damages for the injuries suffered in the 2006 assault.  In her Statement of Damages the Defendant asserts that she suffered physical injury to various parts of her body and also alleges that she suffered from stress, anxiety, shock and panic attacks.  A damages award of $100,000 is claimed.

80.  The Defendant also claims a further sum of $100,000 by way of aggravated damages on the basis that her injuries were inflicted maliciously and with the intention of humiliating the Defendant.  A small sum of $3,100 is claimed by way of special damages.

81.  No expert opinion evidence was adduced by either party on this aspect although the factual evidence of Dr Gloria Kim was before the court as referred to above.

82.  So far as the general damages claim is concerned, the Defendant has referred me to three authorities all of which involved injuries apparently more serious than those suffered by the Defendant in the present case.  In Szeto Ming v Lo Man Kam (DCPI 567/2004) an award of $300,000 was made following an assault by the Defendant and several others which left the victim hospitalized for 5 days.

83.  In Faridha Sulistyoningsih v Mak Oi Ling, Karen (DCPI 1575/2005) the Plaintiff was physically abused by her employer by “hitting, pinching, scratching and assaulting with umbrellas, stool’s legs, mops, hangers and even teapots” over a period of time culminating in an assault with a wooden ruler.  In addition to her physical injuries the Plaintiff required psychiatric assessment some 12 months after the assaults, dental treatment and plastic surgery.  An award of $280,000 was made for psla.

84.  The third case relied on by Mr Tsoi also involved deliberate physical abuse of a domestic helper; Achacoso, Warly Cabaneros v Liu Man Kuen a case in which the Plaintiff’s hands were deliberately burned by the employer Defendant with an iron.  The Plaintiff was left with permanent physical scars although over time these became less conspicuous.  An award of $280,000 was made.

85.  In the present case, as referred to above, Ms Mir’s injuries were less severe.  The independent evidence is rather limited, being in effect that of Dr Gloria Kim.  I have indicated above my view that the Defendant may have exaggerated the physical consequences of the assault somewhat, but I do accept that she was physically assaulted, and was suffering stress and anxiety following the assault.

86.  Mr Tsui, on behalf of the Plaintiff submits that the lack of medical evidence coupled with the ‘limited’ treatment necessitated when the Defendant visited Dr Kim should lead the court to conclude either that the damage suffered was quite minor, or that the evidence is insufficient to provide a base for any substantial monetary award.

87.  I do not agree and accept that the claim merits a monetary award.  Having regard to the facts outlined above I accept that an award of $100,000 as claimed would be reasonable, and I so award.

Aggravated Damages

88.  The Plaintiff submits that the relevant principle is to be seen in the following quote from Mak Oi Ling, Karen:

“In Rookes v Barnard Lord Devlin said that aggravated awards were appropriate where the manner in which the wrong was committed was such as to injure the plaintiff’s proper feelings of pride and dignity or gave rise to humiliation, duress, insult or pain… In other words the type of conduct which had previously been regarded as capable of sustaining a punitive award. It would therefore seem that there are two elements relevant to the availability of an aggravated award, first, exceptional or contumelious conduct or motive on the part of the defendant in committing the wrong and second, intangible loss suffered as a result by the plaintiff, that is injury to personality.”

89.  Mr Tsui submits that I should follow the award made in that case, namely $50,000 if any award is to be made under this head. Mr Tsoi for the Defendant submits that the humiliation suffered by the Defendant was greater than that suffered by any of the victims in the comparable cases to which he has referred because the assault took place in her own house and came to the knowledge of her family members.

90.  I accept that the manner and circumstances of this assault and the intangible injury to the Defendant’s pride and dignity entitle the Defendant to an award of damages under this head.  In my judgment the Plaintiff is correct to submit that a guide can be found in Mak Oi Ling,Karen.  The circumstances of the present case justify an award of $40,000 under this head.

Special Damages

91.  Two items were claimed, the medical bill for Dr Kim and the repair of a watch damaged in the assault.  Neither is evidenced at all and I make no award.

Interest

92.  The Defendant is to have interest at 2% from the date of the Defence until the date of this judgment.

Conclusions

93.  The Plaintiff’s claims fail and are dismissed.  I make a declaration that the 2006 Deed of Gift has been avoided by the Defendant and is set aside.  I award the Defendant also a sum of $100,000 in respect of her pain suffering and loss of amenities arising out of the assault, with interest, and $40,000 by way of aggravated damages.

94.  I also make an Order that the Defendant is to have her costs, to be taxed on a party and party basis, if not agreed.