CHANG KING TO v. CHANG KING HIM CLARENCE AND ANOTHER

CACV 513/2019 & CACV 514/2019

[2022] HKCA 481

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 513 OF 2019

(ON APPEAL FROM HCA NO. 2518 OF 2015)

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 514 OF 2019

(ON APPEAL FROM HCA NO. 1574 OF 2017)

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(Heard Together)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court) :

I.  The appeal

1.  This is an appeal by the plaintiff against the judgment (the ‘Judgment’) of Deputy High Court Judge M K Liu (the ‘Judge’) dismissing the plaintiff’s claims in both actions upon a four‑day trial. The plaintiff now appeals against the Judgment. The case was originally scheduled to be heard on 23 February 2022 but was directed to be dealt with on paper because of the COVID situation.

II.  Background

2.  The plaintiff together with his mother Madam Wong Shuen Yuk (‘Madam Wong’), the defendant in HCA 2518/2015 and 2^nd defendant in HCA 1574/2017, were the registered owners of the property known as Unit 1, 16^th Floor, Block 17, Heng Fa Chuen, Hong Kong (the ‘Property’) as joint tenants prior to the events in 2011.

3.  The background leading to the acquisition of the Property began in 1985 when Madam Wong together with her husband signed a sale and purchase agreement for the Property when it was still under development. The husband passed away in mid‑1986 before completion. The Property was then assigned to Madam Wong and the plaintiff as joint tenants in 1987 after the completion of the development. The plaintiff and Madam Wong were both mortgagors of the mortgage (the ‘Hang Seng Mortgage’) granted by Hang Seng Finance Limited in February 1987.

4.  Madam Wong moved into the Property in 1987 after its completion. The 1^st defendant Chang King Him Clarence (‘Clarence’) in HCA 1574/2017 is her youngest son and the younger brother of the plaintiff. Clarence moved into the Property shortly thereafter. The plaintiff did not live in the Property and emigrated to Australia in 1990.

5.  The plaintiff after his divorce moved back to Hong Kong in early 2010 and stayed in the Property. In September 2010, there was a scuffle among the plaintiff, Clarence and Clarence’s then girlfriend (whom he subsequently married in 2011) in the Property. The plaintiff moved out of the Property after the scuffle.

6.  Madam Wong later had a fall and was declared mentally incapacitated in August 2014. She was represented by the Official Solicitor as her guardian ad item whose attendance was excused from the trial. Madam Wong subsequently passed away in December 2019 after the trial. She was unrepresented in these two appeals but by Order of Lam VP dated 9 October 2020, any judgment shall bind her estate ‘to the extent as it would have been bound had a personal representative of the Deceased been a party to the proceedings’.

7.  Madam Wong had during her life instructed a firm of solicitors Cheung & Choy to issue two Notices of Severance to sever the joint tenancy of the Property. The terms of these two notices are as follows :

1)  The 1^st Notice of Severance :

‘ We are instructed to act on behalf of Ms WONG Shuen Yuk (‘Ms Wong’).

Pursuant to s8(1), 62(1), 62(3), & 62(4) of the Conveyancing and Property Ordinance (Cap 219 of the Laws of Hong Kong), we hereby give you notice that, as a joint tenant of Room 1601, Block 17, Heng Fa Chuen, Hong Kong (the “Premises”), Ms Wong desires to and hereby does, sever the joint tenancy of the Premises with immediate effect. Upon service of this Notice of Severance, the legal joint tenancy of the Premises will be severed.’ (emphasis added)

2)  The 2^nd Notice of Severance :

‘ We are instructed to act on behalf of Ms WONG Shuen Yuk (‘Ms Wong’).

Pursuant to s8(1), 62(1), 62(3), & 62(4) of the Conveyancing and Property Ordinance (Cap 219 of the Laws of Hong Kong), we hereby give you notice that, as a joint tenant of UNIT 1 ON 16^TH FLOOR OF BLOCK 17, HENG FA CHUEN, No.100 SHING TAI ROAD, HONG KONG (the “Premises”), Ms Wong desires to and hereby does, sever the joint tenancy of the Premises with immediate effect. Therefore, the legal capacity of you and Ms Wong in respect of the Premises, formerly as joint tenants of the Premises, now becomes tenants‑in‑common in equal shares.’ (emphasis added)

8.  In HCA 2518/2015, the plaintiff claimed that Madam Wong had never given instructions to the solicitors to issue the two notices of severance on her behalf. Alternatively, the 1^st Notice of Severance had been revoked by a 29 July 2011 email and the 2^nd Notice of Severance was revoked by a letter dated 29 February 2012. In the 9 July 2011 email, the plaintiff wrote to Cheung & Choy stating that Madam Wong maintained that she had not given them instructions to change the status quo of the joint tenancy arrangement. The plaintiff claimed that a copy of the email was signed by him and Madam Wong and sent to Cheung & Choy. In the 29 February 2012 letter drafted by the plaintiff, he claimed that it was written at the request of Madam Wong. It was signed by her and sent to Cheung & Choy. It was stated in that letter that Madam Wong had not instructed Cheung & Choy ‘to write the two “Notice of Severance” ’. For the purpose of this appeal, it is sufficient to state that the 1^st Notice of Severance was withheld from registration by the Land Registry. Apparently, that notice incorrectly described the Property. The plaintiff sought a declaration to the effect that the two notices of severance are void, and he himself and Madam Wong remain as joint tenants of the Property.

9.  In HCA 1574/2017, the plaintiff claimed that Clarence had been in occupation of the Property under a gratuitous licence granted by him and Madam Wong, which was terminated either upon the expiration of a Notice to Quit dated 12 June 2014 issued by the plaintiff’s solicitors (‘the NTQ’) or by Madam Wong becoming mentally incapacitated by 7 August 2014. He sought an order against Clarence for delivery of vacant possession of the Property to him and also for mesne profits or damages for trespass.

10.  Clarence’s position is that Madam Wong was at all times the sole beneficial owner of the Property. Although the plaintiff is a registered owner of the Property, he is a bare trustee holding the Property for Madam Wong. After the death of Madam Wong’s husband, as Hang Seng Finance Limited required two mortgagors instead of one for the mortgage, Madam Wong nominated herself and the plaintiff to take up the assignment of the Property with the intention that the plaintiff would be a bare trustee to hold the interest in the Property for her in March 1987. Such intention was known to the plaintiff and Clarence. The payments for the Hang Seng mortgage were paid by Madam Wong with contributions from Clarence after he moved into the Property in August 1987. Madam Wong gave instructions to Cheung & Choy to sever the joint tenancy by phone in July 2011. She did so again when she personally attended Cheung & Choy’s office on 21 November 2011 accompanied by Chang King Hei Terry (‘Terry’), Madam Wong’s second son. The 1^st and 2^nd Notices of Severance were served pursuant to her instructions. Clarence’s stance is that the plaintiff cannot evict him from the Property for he is occupying the Property pursuant to a permission given by Madam Wong, and that permission is irrevocable by reason of proprietary estoppel in that Madam Wong had made representations on three occasions (i.e. in late March 1987, in October 2010 when Clarence was about to get married and in August 2013 when Clarence’s wife was pregnant) to Clarence to the effect that if Clarence contributes to the mortgage repayments and takes care of her, he could live in the Property until her death. Thereafter, the Property would belong to her three sons. In reliance of Madam Wong’s representations, Clarence contributed towards the payment of the mortgage, renovation and various expenses of the Property.

11.  Two other witnesses gave evidence at the trial. They were Terry and Cheung Long Yu Lorna (‘Lorna’) who is the cousin of the plaintiff, Terry and Clarence. Terry’s evidence was that he was living in Australia and in April 2011 when he visited Hong Kong, he discussed the joint tenancy matter with Madam Wong, and Madam Wong strongly indicated to him that she did not intend to let the plaintiff have the Property upon her death. Madam Wong also told him that the reason she added the plaintiff as one of the co‑owners was simply for the purpose of satisfying the mortgagee’s requirement. Her intention was to let Clarence live in the Property for as long as he wanted, and the Property would be passed to the three sons after Madam Wong’s death. After returning to Australia, Terry sent an email to the plaintiff on 3 May 2011, in which he told the plaintiff their mother’s intention concerning the Property :

‘ ...Spoken to mum in depth when I was in HK last week and it is her intention to put the ownership of her house to the whole family. And that will involve your attendance to a lawyer to sign some documents because apparently, not to my knowledge, previously she mistakenly put your name ONLY together with her. Let me know when you can do it and I can organize the lawyer’s meeting.’

12.  The plaintiff did not give any reply to this email. In November 2011, Terry came to Hong Kong to attend Clarence’s wedding. Madam Wong asked Terry to accompany her to go to the solicitors’ office to handle the severance matter, and Terry did so. Terry said the solicitor had explained everything to Madam Wong, and she understood and signed the documents.

13.  Lorna’s evidence was that in late August or early September 2010, Madam Wong contacted her by phone and complained that the plaintiff had lodged in the living room of the Property for several months with no intention of moving out. Madam Wong told Lorna that in 1986, the mortgagee required Madam Wong to add one more mortgagor to take up the Property. She decided to use the plaintiff’s name to satisfy the mortgagee’s requirement. It was not her intention to give the Property to the plaintiff after her death. Madam Wong also told Lorna that since Clarence had lived with her in the Property and had contributed a lot in relation to the Property, she intended to let Clarence live in the Property for as long as he wanted, and the Property would be passed to the three sons after her death. Madam Wong told Lorna that the plaintiff actually knew that his name was added to the Property for the purpose of satisfying the mortgagee’s requirement only and she had expressly told him this at the outset. Madam Wong told Lorna that she did not want to see her sons having quarrels because of the Property. Madam Wong asked Lorna to try to persuade the plaintiff to move out from the Property and find a place to live.

14.  Lorna then arranged a dinner with the plaintiff, Clarence and Madam Wong. She tried to facilitate the discussion concerning the plaintiff’s stay in the Property, and Lorna encouraged the plaintiff to seek another accommodation. The plaintiff, however, refused to discuss the matter and left. After this incident, the plaintiff sent numerous messages to Lorna through mobile phone, blaming Lorna for arranging that dinner. In her witness statement, Lorna also mentioned Madam Wong had discussed with her the way to resolve the ownership problem. Lorna also said Terry and Clarence had informed her that Madam Wong had instructed a lawyer to sever the joint tenancy.

15.  Prior to these two actions, the plaintiff had commenced an action (HCA 785 of 2014) against Cheung & Choy in respect of the 2^nd Notice of Severance. He claimed that Cheung & Choy owed him a duty of care and was in breach of that duty by issuing the 2^nd Notice of Severance without the instruction of Madam Wong. He sought, inter alia, a declaration that the 2^nd Notice of Severance was null and void and be vacated from the Land Registry. The action was struck out by Deputy High Court Judge Mayo on the ground that it disclosed no reasonable cause of action. The appeal (CACV 257/2014) was dismissed by this Court. The judgment in CACV 257/2014 set out the circumstances in which the two notices of severance came into being and the response by the plaintiff to these two notices. In the hearing below, the plaintiff and Clarence agreed that the facts set out in the judgment were not in dispute and the Judge repeated the relevant parts in [8] of his judgment.

16.  The Judge dismissed the plaintiff’s claim in both actions.

III.  The Judgment below

17.  The Judge recognized the need for caution in respect of what was allegedly said by Madam Wong since she did not give evidence. Nonetheless, having considered the totality of the evidence, he held that he would not accept the evidence given by the plaintiff. He described the plaintiff as evasive and unreliable. The Judge was of the view that the plaintiff’s claim in respect of the two notices of severance was untrue and inherently improbable. This also affected the plaintiff’s evidence on the other issues in this case. The Judge, on the other hand, accepted the testimonies of Clarence, Terry and Lorna.

18.  The Judge identified the following issues to be resolved in the case :

1)  Whether the plaintiff was a bare trustee holding the Property on trust for Madam Wong;

2)  Whether Madam Wong had severed the joint tenancy of the Property;

3)  Whether the plaintiff may evict Clarence from the Property; and

4)  Whether Clarence is liable to pay any mesne profits or damages for trespass to the plaintiff.

19.  The Judge found Issues 1 and 2 in the affirmative and Issues 3 and 4 in the negative.

IV.  Grounds of appeal

(1)  CACV 514/2019 (on appeal from HCA 1574/2017)

20.  The plaintiff filed a Notice of Appeal on 4 November 2019 and a Supplemental Notice of Appeal on 21 October 2020. Having reviewed both, it appears that the content of the Notice of Appeal is largely subsumed by the Supplemental Notice of Appeal.

21.  The plaintiff’s grounds of appeal for both actions can be summarised as follows :

1)  The Judge should not have admitted the affidavits of Mr. Simon Cheung (‘Mr. Cheung’) of Cheung & Choy dated 23 June 2014, 6 August 2014 and 5 November 2014 filed in HCA 785/2014 as undisputed evidence, despite the fact that Mr. Cheung did not attend trial and was not cross‑examined by the plaintiff, in contravention of the Pre‑trial Review (‘ PTR ’) Order dated 9 July 2019 requiring his attendance.

2)  There were two affidavits in HCA 2518/2015 of Mr. Cheung dated 18 October 2017 and 20 November 2017 which were not admitted in HCA 1574/2017. Had those been admitted, they would have shown that Madam Wong was not a client of Cheung & Choy and that someone other than Madam Wong gave instructions to issue the 1^st and 2^nd Notices of Severance.

3)  The Judge was biased against the plaintiff and wrong to assume that this Court’s judgment set out the undisputed factual background of both cases.

4)  HCA 2518/2019 should have been heard first and not together with HCA 1574/2017, because if the plaintiff remained a joint tenant and not tenant in common, Clarence would have no defence in HCA 1574/2017.

5)  Not all the issues and evidence in HCA 2518/2019 overlap with those in HCA 1574/2017. They should not have been heard together.

6)  The Official Solicitor representing Madam Wong did not attend the trial. Had the Official Solicitor attended the trial, he would have pointed out that this Court’s judgment should not have been treated as the undisputed factual background and that Mr. Cheung was evasive when the Official Solicitor requested him to provide documents.

7)  There is no evidence upon which to conclude the plaintiff is a bare trustee, or that there was a common intention within the family to that effect.

8)  There is no evidence to support the finding of the ‘Hang Seng Requirement’.

9)  There is no evidence for the finding that Madam Wong told Terry that the plaintiff was a bare trustee, because Terry admitted in his witness statement that it was only in around September 2010 that he learned the Property was under joint ownership of Madam Wong and the plaintiff.

10)  There is no evidence that Clarence contributed to the repayments of the Hang Seng Mortgage after he moved into the Property, as the debit notes he provided as proof of payments were dated before the Property was ready for anyone to move in.

11)  There is no evidence that Clarence paid any fees of the Property, as the debit notes produced by Clarence were paid when Madam Wong lived in the elderly home and not when Madam Wong lived in the Property.

12)   The plaintiff is not an evasive and unreliable witness.

13)  Clarence is not an honest witness since he tried to steal from Madam Wong, was dishonest to her and physical towards his eldest brother.

(2)  CACV 513/2019 (on appeal from HCA 2518/2015)

22.  The plaintiff filed a Notice of Appeal on 4 November 2019 and a Supplemental Notice of Appeal on 21 October 2020. Having reviewed both, it appears that apart from repeating the grounds of appeal in CACV 514/2019, the plaintiff raises the following additional grounds :

1)  There is no document or evidence upon which the Judge can find support for the allegations in the affidavits of Mr. Cheung filed in HCA 785/2014 (presumably, the plaintiff is referring to allegations that Cheung & Choy acted on the instructions of Madam Wong in issuing the 1^st and 2^nd Notices of Severance).

2)  The Judge’s holding that there is a need for the plaintiff to allege fraud or dishonesty against Mr. Cheung is incorrect. All that is required of the plaintiff is to prove that Madam Wong was not the person who gave instructions to issue the 2^nd Notice of Severance.

3)  There is no evidence for the finding that Madam Wong had been a client of Cheung & Choy, or that she gave instructions to issue the Notices of Severance.

4)  The Judge’s finding that the plaintiff is an evasive witness and his evidence on the Notices of Severance is obviously untrue is wrong.

23.  The plaintiff filed two written submissions in the two appeals. He also filed a reply submission to Clarence’s submission. In his first submission, he elaborated on his grounds of appeal. It contained various repetition of issues, such as reference to the parties’ pleadings and verbal evidence at trial of Clarence and his witnesses. He repeated his position regarding the 1^st and 2^nd Notices of Severance and the related allegations against Mr. Cheung. The plaintiff’s second submission is basically a shortened version of the first submission and contained no additional arguments. His reply submission does not carry the matter further.

V.  Our view

24.  The plaintiff’s appeal is essentially an appeal against the finding of facts by the Judge. He is repeating the arguments that had been argued before the Judge. The well‑established principle in challenging finding of facts by the trial judge is that the appellate court will not overturn the finding unless it is shown that it is plainly wrong in the sense, for example, that it is one where there is no evidence to support, or which is based on a misunderstanding of the evidence, or which no reasonable judge could have reached. This is a high threshold to overcome.

25.  We will refer to the finding by the Judge on the issues identified by him to see if the finding is plainly wrong.

1)  Whether the plaintiff was a bare trustee

26.  The starting point is that the legal ownership of a property is normally consistent with the beneficial entitlement, and the onus is upon the person seeking to show that the beneficial ownership is different from the legal ownership. In our view, the evidence adduced on behalf of the defendants clearly shows that the common intention of Madam Wong and the plaintiff at the time of the acquisition of the Property was for the plaintiff to be a bare trustee only and for Madam Wong to retain the beneficial interest in its entirety. The evidence of Clarence, Terry and Lorna which was accepted by the Judge as credible, shows that Madam Wong merely nominated the plaintiff in order to satisfy the requirement of Hang Seng Finance Limited that two mortgagors were required to secure the mortgage and that she intended the plaintiff to be a co‑owner in name only. What Madam Wong told Clarence, Terry and Lorna was, of course, hearsay evidence. But such evidence is admissible subject to the question of weight. The assessment of weight to be attached to the evidence is within the province of the Judge who had the benefit of hearing and observing the witnesses before him. He is in the best position to assess the weight having considered the totality of the evidence. On the other hand, despite being named as one of the mortgagors, there is no credible evidence of any substantive financial contribution to the Property by the plaintiff whether in terms of mortgage payments or other expenses. This would be rather surprising if the intention was for the plaintiff to be one of the beneficial owners, given that the plaintiff was the eldest son of the family and already 34 years old when he became a registered owner and mortgagor of the Property.

27.  The plaintiff’s conduct is also consistent with the defendants’ case that the plaintiff was a bare trustee with no beneficial interest. When the plaintiff after his divorce returned to Hong Kong in early 2010, he stayed in the Property on a temporary basis by sleeping on a sofa in the living room while Clarence occupied the master bedroom. That the plaintiff’s stay in the Property was to be on a temporary basis is further made clear in his email dated 26 October 2009 to Clarence that he would look for alternative accommodation. After the scuffle in September 2011, it was the plaintiff and not Clarence who moved out of the Property to seek alternative accommodation. It would be surprising if the plaintiff had beneficial interest in the Property but did not seek a better arrangement on account of such and instead sought alternative accommodation. On the plaintiff’s own case, all matters concerning the Property were to be decided by Madam Wong during her lifetime, which is consistent with Madam Wong being the absolute beneficial owner and the plaintiff being a bare trustee.

28.  In the next section, we will deal with the two Notices of Severance. At this juncture, we will examine whether Madam Wong’s acts of severance were consistent with her being the sole beneficial owner of the Property. First, on the face of the 1^st and 2^nd Notices of Severance, there is no indication that Madam Wong had any intention to sever the joint tenancy in equity, or that she had considered that she and the plaintiff were joint tenants in equity. Both notices referred to the severance of the legal joint tenancy and the legal capacity of the plaintiff and Madam Wong. Section 8 of the Conveyancing and Property Ordinance (‘CPO’) consists of two sub‑sections. Section 8(1) provides for severance of joint tenancy at law, while section 8(2) provides for severance of joint tenancy in equity. The specific reference to section 8(1) and not section 8(2) of the CPO) in the two Notices of Severance combined with the provision of severance in respect of ‘legal joint tenancy’ and ‘legal capacity’ leave little doubt that the intention was to sever the joint tenancy in law only and not in equity.

29.  Second, as shown by the evidence of Clarence and Terry, Madam Wong’s intention in serving the 1^st and 2^nd Notices of Severance was to prevent the plaintiff from becoming the sole owner in law upon Madam Wong’s death, which was the first step of clarifying the ownership of the Property and ensuring that the Property would go to her three sons upon her death. Such evidence is corroborated by the email dated 3 May 2011 sent by Terry to the plaintiff.

30.  In these circumstances, Madam Wong’s intention in serving the 1^st and 2^nd Notices of Severance was to sever the joint tenancy in law only as the first step of clarifying the ownership of the Property. They ought not to be construed as evidence of Madam Wong’s acceptance or admission of the plaintiff’s beneficial interest in the Property.

31.  In the circumstances, the Judge’s finding that the plaintiff was a bare trustee and Madam Wong had the absolute beneficial interest in the Property is plainly right and the plaintiff is not able to cross the threshold in his challenge. The plaintiff’s grounds of appeal in [21. 8) and 9)] relating to this issue do not assist him at all. The Judge was clearly entitled to accept the evidence of Clarence, Terry and Lorna that the Hang Seng Finance Limited required Madam Wong to find another mortgagor. As to Terry’s admission that he only learned in around September 2010 that the Property was under joint ownership of Madam Wong and the plaintiff, this does not assist the plaintiff. On the contrary, that Terry had always assumed that Madam Wong was the absolute beneficial owner of the Property supports Clarence’s case that the common intention within the family was for Madam Wong to be the absolute beneficial owner.

2)  Whether the joint tenancy was severed

32.  Based on the evidence of Terry, the Judge was clearly entitled to find that the joint tenancy had been severed by reason of the 2^nd Notice of Severance, which was issued pursuant to Madam Wong’s instructions. Terry’s evidence was corroborated by that of Lorna.

33.  The Judge was clearly entitled to reject the plaintiff’s evidence having regard to these evidence. Further, the plaintiff’s own evidence is that he had informed Madam Wong of the issuance of the 1^st and 2^nd Notices of Severance. If Madam Wong had never given instructions to Cheung & Choy to issue the Notices of Severance as alleged by the plaintiff, it would be surprising that between the time of the 2^nd Notice of Severance (February 2012, registered on 28 February 2012) and the accident which led her to become mentally incapacitated (September 2013), she never took any steps to vacate or revoke them, especially given that the plaintiff on his own case met Madam Wong frequently and no doubt would have urged her to do so. The Judge was therefore right to conclude that the plaintiff’s evidence concerning the Notices of Severance was inherently improbable.

34.  The plaintiff argued that the Judge was wrong to admit the affidavits of Mr. Cheung dated 23 June 2014, 6 August 2014 and 5 November 2014 filed in HCA 758/2014 as undisputed evidence, despite the fact that he did not attend trial and was not cross‑examined by the plaintiff, in contravention of the PTR Order dated 9 July 2019 requiring his attendance. In these three affidavits, Mr. Cheung responded to the plaintiff’s claim against his firm. He detailed how he received instruction from Madam Wong to issue the two Notices of Severance. The plaintiff is correct to say that as Mr. Cheung did not give evidence, according to the Judge’s PTR order, his affidavits should not have been admitted as evidence in the trial below. The Judge had not considered the three affidavits in his judgment. But in the extract of this Court’s judgment in CACV 257/2014 which the Judge cited, there was reference to Mr. Cheung’s evidence on the instructions he received from Madam Wong on the two Notices of Severance. The Judge asked the parties if they had any issue with the judgment and they said no. We are of the view that the Judge was incorrect in his approach. First, the plaintiff was a lay person and the Judge’s question would put him in an impossible position when his case was that Madam Wong had not given instructions to Cheung & Choy. Second, using what was said in this Court’s judgment to find against the plaintiff was to rely on evidence which should have been excluded by reason of Mr. Cheung not testifying at the trial. Third, what was said in this Court’s judgment was only a summary of the background of the case. They were not findings of facts after a trial. The issue in that appeal was whether the plaintiff’s claim was properly struck out for lack of a reasonable cause of action. However, having said that, we do not consider this fault is fatal because irrespective of the position concerning the 1^st Notice of Severance, the Judge was clearly entitled to accept the evidence of Terry that Madam Wong had indeed given instructions to Cheung & Choy to issue the 2^nd Notice of Severance.

35.  The plaintiff also referred to two affidavits in HCA 2518/2015 of Mr. Cheung dated 18 October 2017 and 20 November 2017 which were not admitted in HCA 1574/2017. He argued that had they been admitted, they would have shown that someone other than Madam Wong issued the Notices of Severance. In these affidavits, Mr. Cheung confirmed that other than the documents already provided to the Official Solicitor representing Madam Wong (which include the letter of instructions dated 21 November 2011 and Madam Wong’s Hong Kong Identity Card), there was no retainer, written instructions, attendance notes/records/correspondence or bill/invoices in connection with the issuing of the Notices of Severance. We do not see how these affidavits could have the effect as submitted by the plaintiff.

36.  The other grounds relied upon by the plaintiff related to the case management power of the Judge. They do not advance his appeal.

37.  The plaintiff submitted that the Judge was biased towards him. There is no evidence to support this allegation. The fact that the Judge was wrong in his approach does not mean he was biased. The plaintiff also submitted that he was not an evasive witness. Instead, he claimed that Clarence was not an honest witness since he tried to steal from Madam Wong, was dishonest to her and physical towards his eldest brother. The assessment of the credibility of a witness is within the province of the trial judge. The plaintiff had not pleaded that Clarence tried to steal from Madam Wong and was dishonest to her. It is not open to him to raise these unpleaded allegations. The Judge rightly rejected the unpleaded allegations.

3)  Eviction

4)  Mesne profit

38.  Based on the evidence of Clarence which is corroborated by the evidence of Lorna, the Judge was clearly entitled to find that proprietary estoppel was established. The plaintiff has not challenged the Judge’s finding that Madam Wong did make representations to Clarence allowing him to continue to live in the Property. His objections solely relate to the Judge’s finding on Clarence’s reliance on these representations to his detriment financially in that there is no evidence that Clarence made the financial contribution.

39.  Clarence’s evidence is that he moved into the Property and started contributing to the mortgage payments in around August 1987 to 2000 when the Hang Seng Mortgage was discharged. The mere fact that the documentary evidence produced by Clarence on the mortgage repayment was limited and the documentary evidence on the payment of rates, management fees and utility charges could not reveal who actually made the payment, does not mean that the Judge could not accept that he had made the payment. After all, the Judge had seen and heard Clarence giving evidence and found him to be an honest and reliable witness.

40.  In any event, even if Clarence’s financial contributions to the Property were somewhat more limited than those found by the Judge, it is likely that when this is taken together with other aspects of Clarence’s detrimental reliance, i.e. his care and maintenance of Madam Wong since 1987, they would, in any event, be sufficient to support the Clarence’s claim of proprietary estoppel. Clarence’s evidence in this regard is corroborated by Terry and Lorna. The plaintiff has not challenged this aspect of the Judge’s finding in the appeal.

5)  Summons

41.  By a summons dated 25 November 2019, the plaintiff applied to adduce the Further and Better Particulars of the Defence dated 16 January 2015 as further evidence. The particulars were, in fact, amended on 20 May 2015.

42.  As this document formed part of the pleadings in the action, we do not see the point of this application. We will make no order on the summons.

VII.  Conclusion

43.  The plaintiff’s appeal in both actions is dismissed. As both parties are unrepresented, we will make no order as to costs of the appeal and the summons.