CHANG KING TO v. WONG SHUEN YUK (by her guardian ad litem OFFICIAL SOLICITOR)

HCA 2518/2015 & HCA 1574/2017

[2019] HKCFI 2597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 2518 OF 2015

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION 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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INTRODUCTION

1.  This is a case concerning the respective rights of members of a family in a property known as Unit 1, 16^th Floor, Block 17, Heng Fa Chuen, Hong Kong (“the Property”). The Property is registered under the name of Madam Wong Shuen Yuk (“Madam Wong”) and her eldest son Mr Chang King To (“KT”). There is a dispute as to whether Madam Wong and KT are now joint tenants or tenants in common. The Property is now being occupied by Mr Chang King Him Clarence (“Clarence”, the youngest son of Madam Wong), and Clarence’s wife and son. Mr Chang King Hei Terry (“Terry”) is the second son of Madam Wong. Terry has no claim concerning the Property but is a witness in the trial of these proceedings.

2.  Madam Wong became mentally incapacitated in about August 2013.

3.  On 13 June 2019, B Chu J gave leave to the Official Solicitor for not attending the trial in these proceedings and directed that Madam Wong would be bound by the judgment on liability to be given by the court in the trial.

4.  On 9 July 2019, in the pre-trial review, I ordered HCA 2518/2015 and HCA 1574/2017 to be tried at the same time. In my view, all the issues in HCA 2518/2015 are covered in HCA 1574/2017. It would be appropriate for the two actions to be tried at the same time.

5.  The real battle is between KT and Clarence.

BACKGROUND FACTS

6.  Previously, KT has commenced proceedings concerning 2 notices of severance against a law firm (“the Solicitors”), ie HCA 785/2014. On 21 November 2014, KT’s claim was struck out by the Court of First Instance. KT took the matter to the Court of Appeal, ie CACV 257/2014. On 30 June 2015, the Court of Appeal handed down a judgment dismissing the appeal (“the CA Judgment”).

7.  In this trial, both KT and Mr Henry Suen, counsel for Clarence, agree that the facts set out in the CA Judgment are not in dispute. Accordingly, it would be useful to mention the facts set out in the CA Judgment, which can serve as the undisputed factual background. For ease of reference, unless otherwise indicated, the abbreviations used in the CA Judgment are adopted herein.

8.  In the CA Judgment, Yuen JA said:

“The Property

3.1. In 1985, Madam Wong Shuen Yuk (‘Madam Wong’), who was born in 1929, acquired a unit (‘the Property’) in a development then in the process of construction as joint tenants with her husband. Unfortunately her husband died before completion.

3.2. Madam Wong and her husband had three sons: the plaintiff, Terry and Clarence.

3.3. On completion of the Property in 1987, it was assigned to Madam Wong as joint tenants with the plaintiff who was her eldest son.

3.4. The plaintiff emigrated to Australia in 1990.

3.5. Madam Wong lived in the Property with Clarence (and later his girlfriend who became his wife).

3.6. In 2005, the Property was mortgaged, with Madam Wong, the plaintiff and Clarence named as ‘the borrower’. Banking facilities were similarly granted against the security of the Property in 2009.

3.7. After 20 years in Australia, in 2010 the plaintiff returned to Hong Kong and stayed at the Property with Madam Wong, Clarence and his girlfriend. This led to some unhappiness.

3.8. In September 2010, there was a dispute between the plaintiff and Clarence and his girlfriend during which there was a scuffle. The plaintiff then moved out of the Property.

1^st Notice of Severance

4.1. According to Simon Cheung (‘Mr Cheung’) of Cheung and Choy, a solicitors’ firm (‘the Solicitors’), in July 2011 he was telephoned by Madam Wong, who had been his client previously. Madam Wong instructed Mr Cheung to sever the joint tenancy of the Property.

4.2. Pausing here, it should be noted that the plaintiff’s counsel Mr Gary Lam accepts that at law, solicitors can act for one joint tenant in effecting a severance without the consent of the other joint tenant. Obviously it follows that the solicitors so effecting the severance do not purport to act for the other joint tenant.

5.1. On 26 July 2011 the Solicitors sent a Notice of Severance (‘the 1^st Notice of Severance’) to the plaintiff by email.

5.2. This Notice referred to the unit as ‘Room 1601’ and named only the development but not the street on which it was situate.

5.3. The email said, among other things, that the original document has been posted to the plaintiff.

6.1. T hat evening the plaintiff emailed the Solicitors a number of times, saying, among other things, that he disagreed with, and will contest, what was said in the Solicitors’ email. He also asked the Solicitors ‘if I need to find a lawyer to talk to you’.

6.2. The next day, the Solicitors replied to the plaintiff by email saying:

‘Please be advised that you are at liberty to consult legal opinion with respect to this matter. If you are minded to engage a firm of solicitors to act on your behalf, kindly pass the Notice for their perusal and direct future correspondence to us directly’.

29 July 2011 e-mail

7.1. On 29 July 2011 the plaintiff sent an email to the Solicitors saying:

‘Ms Wong shows me this morning the original letter you referred to in your email to me.

She maintains that she has not instructed you to write the letter to change the status of the “Joint Tenants” arrangement already exists for the said property.

We further agree today that we do not want to change the Joint Tenants arrangement, especially not unilaterally as what seems to have happened now.

We would seek consult upon hearing back from you, if you cannot represent us in the matter’.

The plaintiff typed only his name as the sender of the email, but a paper copy was signed by himself and (according to him) Madam Wong, and posted to the Solicitors.

7.2. The Solicitors did not respond.

8.   The plaintiff then visited a free legal website and consulted a solicitor whom he got to know through the website.

9.1. Subsequently, shortly after midnight on 20 September 2011 the plaintiff emailed the Solicitors saying:

‘Following our independent legal advice, [Madam Wong] and I would like to make an urgent appointment with you on 21 September 2011 at 2:00 pm in your office to discuss about the instruction that you mentioned you have received’. (Emphasis added).

9.2. The Solicitors replied that afternoon saying they were taking instructions from their client and would let him know if they had authority to meet him.

9.3. The plaintiff sent two emails in reply, the first asking if Madam Wong was the client from whom the Solicitors took instructions. The Solicitors did not respond. Within the hour the plaintiff sent a second email saying:

‘So you are saying [Madam Wong] is not your client ...... or you know more than one [Madam Wong] and you need to confirm.

This [Madam Wong] will bring her Hong Kong ID card to the meeting with you, hopefully tomorrow.

[Madam Wong] repeats that it is a urgent meeting with you that we seek’.

9.4. The Solicitors did not respond. Nor did the plaintiff, or Madam Wong, visit their office the next day.

Chinese instructions

10.1.    According to Mr Cheung, on 21 November 2011 Madam Wong went to his office together with her son Terry. He recognised her and checked her identity card which was identical to the copy kept in his office records.

10.2.    According to Mr Cheung, ‘she clearly and unequivocally repeated her earlier instructions to sever the joint tenancy with the Plaintiff in respect of the property’. Mr Cheung instructed his staff to type out her instructions in Chinese which (according to him) Madam Wong signed in his presence, which instructions (“the Chinese instructions”) stated:

‘I, [Madam Wong], address: [the Property], (Hong Kong Identity Card No. [redacted in this judgment]) hereby appoint Cheung & Choy to be the solicitors representing me and handling legal matters for me, including the issue of notice to sever joint ownership (Notice of Severance) to [the plaintiff] in relation to [the Property] so as to sever the property severally and jointly owned (“joint tenancy”) by [the plaintiff] and I and then convert it into tenancy in common (“tenancy in common”) as the type of ownership’ .

11.1.    According to Land Registry records, on 5 January 2012 the 1^st Notice of Severance was delivered to it for registration, but registration was withheld.

11.2.    According to the Solicitors, registration was withheld as the description of the Property in the 1^st Notice did not conform exactly with the description of the Property in the Land Registry which referred to the unit as ‘Unit 1 on the 16th Floor’, rather than ‘Room 1601’, and which contained the name of the street as well as the development.

2^nd Notice of Severance

12.1.    On 24 February 2012 the Solicitors sent another Notice of Severance (‘the 2^nd Notice of Severance’) by email and post to the plaintiff. In this notice, the description of the Property conformed exactly with the Land Registry description. This notice also added: ‘the legal capacity of [the plaintiff] and [Madam Wong] in respect of [the Property], formerly as joint tenants of the Property], now becomes tenants-in-common in equal shares’.

12.2.    This 2^nd Notice was registered in the Land Registry on 28 February 2012. It has remained on the register ever since.

‘To Whom It May Concern’ document

13.1.    The following day (29 February 2012), the plaintiff drafted a document saying:

‘To Whom It May Concern

This is to say that I, [Madam Wong] have not instructed, nor paid Cheung & Choy Law Firm to write the two “Notice of Severance” dated 26 July 2011 and 24 Feb. 2012 (Copies attached).

I do not know the email address of [the plaintiff].

And I have not received any copy of the letters as stated (cc. Client); the copies attached are provided by [the plaintiff].’

13.2.    According to the plaintiff, this document was drafted by him at Madam Wong’s request and was signed by her. It was dated 29 February 2012 and was posted to the Solicitors.

13.3      The Solicitors did not respond.

Search of Land Register

14.1.    According to the plaintiff, he conducted an online search of the Property on 14 March 2012 and saw that the 1st Notice of Severance had been withheld from registration.

14.2.    As at that date however, the 2^nd Notice of Severance had already been registered. No steps were taken by Madam Wong in respect of this registration, even though by this time (on the plaintiff’s case) she had consulted other solicitors (see para. 9.1 above).

Madam Wong’s incapacitation

15.       About 1½ years later, in August-September 2013 Madam Wong unfortunately fell injuring her head and became mentally incapacitated. A doctor certified her in October 2013 as being ‘mentally confused and failed MMSE’ (Mini Mental State Examination).

16.       There have been no dispositions of or dealings with the Property.”

9.  The original text of the Chinese Instruction mentioned in [10.2] of the CA Judgment is as follows:

“本人，WONG SHUEN YUK (黃璇玉) ，住址：香港杏花村第17座1601室， (香港身分證號碼：......) 茲委任張世文蔡敏律師事務所為我的代表律師，並為我處理法律事務，包括向張景濤 (Chang King To) 出具有關香港杏花村第17座1601室 (該“物業”) 的分拆共同擁有權通知 (Notice of Severance) ，把本人與張景濤 (Chang King To) 以各別及共同擁有 (“joint tenancy”) 形式共同擁有之物業分割，並轉為以分權擁有 (“tenancy in common”) 形式擁有。

日期：二○一一年十一月廿一日

		( (Signed)           )
		WONG SHEUN YUK (黃旋玉)
		(香港身分證號碼：............)”

10.  As recorded in [17.3] of the CA Judgment, KT made no allegation of fraud or dishonesty against the Solicitors in those proceedings.

11.  The evidence given by the witnesses in these proceedings will be assessed in the light of this undisputed factual background.

KT’s CASE

12.  In HCA 2518/2015, KT claims that Madam Wong has never given instructions to the Solicitors to issue the 2 notices of severance on her behalf. Alternatively, the 1^st Notice of Severance was revoked by the 29 July 2011 e-mail, and the 2^nd Notice of Severance was revoked by the “To Whom It May Concern” document. KT is seeking a declaratory judgment to the effect that the 2 notices of severance are void, and he himself and Madam Wong remain as joint tenants of the Property.

13.  In HCA 1574/2017 (previously DCCJ 2850/2014), KT claims that Clarence had been in occupation of the Property under a gratuitous licence only granted by Madam Wong and KT, which was terminated upon (a) the expiration of a notice to quit dated 12 June 2014 issued by KT’s solicitors (“the NTQ”)[1] or (b) Madam Wong becoming mentally incapacitated by 7 August 2014[2]. KT is seeking an order that Clarence shall deliver vacant possession of the Property to him. KT also seeks an order that Clarence shall pay mesne profits or damages for trespass to him, calculating from the expiration of the NTQ.

14.  A joint legal owner of a property may or may not be a joint owner of the same in equity. In respect of whether KT is a beneficial owner of the Property, KT’s position on this issue is not clear. During the trial, at one time KT said the Property was Madam Wong’s property during Madam Wong’s lifetime. However, KT also said that if the Property was sold during Madam Wong’s lifetime, he considered that he should be given 50% of the sale proceeds. In his final submissions, KT said that he considered himself as a joint tenant in equity. However, I note that in KT’s pleadings in both actions, there is no plea concerning whether KT has any beneficial interest in the Property.

15.  In both actions, KT is the only witness giving evidence in support of his case.

CLARENCE’s CASE

16.  Clarence’s participation is only in HCA 1574/2017. He only raised a defence to KT’s claim and has not put forward any counterclaim. In his amended defence, it is pleaded:

“5. ...... [Clarence] is entitled to acquire beneficial interests in and of the Property under the principle of proprietary estoppel and thus entitled to reside and/or occupy in the Property. Further or alternatively, at all material times, [Clarence] resided and resides in the Property with the consent and/or permission of [Madam Wong].

......

8A. ...... [Clarence] enjoyed a proprietary interest in the Property by way of proprietary estoppel. It is further denied that any consent granted by [Madam Wong] to [Clarence] to reside in the Property would be terminated upon [Madam Wong] becoming mentally incapacitated.”

17.  Reading the pleading, it is not clear whether Clarence is claiming that he has already acquired some beneficial interest in the Property. At the beginning of the trial, I have asked Mr Suen to clarify the position. Mr Suen submits that Clarence is not claiming that he has acquired any beneficial interest in the Property. Clarence’s position is that Madam Wong is the sole beneficial owner of the Property at all times. Although KT is a registered owner of the Property, KT is a bare trustee holding the Property for Madam Wong. Clarence’s stance is that KT 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 because of the proprietary estoppel pleaded in the defence.

18.  Clarence has given evidence in support of his case. He has also called two other witnesses to give evidence in the trial, namely (a) Terry; and (b) Madam Cheung Long Yu Lorna (“Lorna”), cousin of KT, Terry and Clarence.

THE ISSUES

19.  Having heard the submissions from the parties, I am of the view that the issues to be resolved in these proceedings are as follows:

(1)  whether KT is a bare trustee holding the Property on trust for Madam Wong;

(2)  whether Madam Wong has severed the joint tenancy of the Property;

(3)  whether KT may evict Clarence from the Property; and

(4)  whether Clarence is liable to pay any mesne profits or damages for trespass to KT.

20.  I will examine these issues in turn later in this judgment.

THE PRINCIPLES

21.  As to the assessment of the credibility and/or reliability of a witness’s evidence, the principles are well established. In Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others[3], Andrew Chung J said:-

“12. The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt: -

‘There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified: -

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest’.

(See, for example, the decisions in Chiu Chi Tong v Lau Chong Sai & Another, HCA 765/2002 (para 28) and Yu Ming Investment Ltd v Pang Ru Chuan, Richard,HCA 814/2002 (para 13)).”

22.  Similar guidance was given by DHCJ Eugene Fung SC in Hui Cheung Fai v Daiwa Development Ltd[4].

23.  For obvious reason, Madam Wong cannot give evidence in the trial. In these circumstances, KT’s evidence concerning the 2 notices of severance, as well as Clarence’s evidence concerning the representations allegedly made by Madam Wong to him, should be approached with caution. The situation is similar to approaching the evidence given by a person claiming to be a donee under a gift made by a deceased person. See Kwan So Ling v Woo Kee Yiu Harry and Others[5], in which G Lam J said:

“34. In approaching the plaintiff’s evidence, I remind myself that caution is needed since she is in effect alleging a gift or the promise of a gift to her by persons who are now deceased; she is making allegations of promises and assurances by Mr Woo Snr and Madam Woo neither of whom is alive. When these allegations were first made by the plaintiff in 2011, Madam Woo had already lost her mental capacity. In these circumstances great care is called for when assessing the plaintiff’s assertions. As Lord Walker of Gestingthorpe NPJ stated in Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39 at §73:

‘Vivienne is making a claim against the estate of a deceased person who cannot give evidence against her claim. The court has always approached such claims with some suspicion, especially (in the case of an alleged gift) where the only or principal witness in support of the claim is the donee. Corroboration is not essential in every case. But as Plowman J said in Thomas v. The Times Book Co. Ltd [1966] 2 All ER 241, 244 (the curious case about ownership of the manuscript of Dylan Thomas’ Under Milk Wood),

“Therefore, not only in this case is the onus of proof on the defendants [who were resisting a claim by the poet’s administratrix], but I am enjoined by authority to approach their story with suspicion having regard to the fact that the other actor in the story, the late Dylan Thomas, is dead and cannot therefore give his own version of what took place.”

This principle has been applied in Cheung Cho Kam Sindy v. Cheung Yuet Ying Rose (Deputy High Court Judge Muttrie, 13 July 2007).’

His Lordship referred again at §76 to this as ‘the special burden assumed by a person claiming to be a donee under a gift made by a deceased person’. See also In re Finch (1883) 23 Ch D 267 and In re Garnett (1885) 31 Ch D 1, 8.”

24.  With these principles in mind, I turn to the evidence in these proceedings.

THE EVIDENCE

KT

25.  I am of the view that KT is an evasive and unreliable witness. His evidence concerning the 2 notices of severance is obviously untrue.

26.  Before returning to Hong Kong in 2010, in October 2009, KT in Australia sent the following email (“the October 2009 email”) to Clarence in Hong Kong:

“Clarence,

離婚後我一个人在澳洲生活現越來越觉得沒意思...也很寂莫..

所以決定搬回香港生活..與Andy一同做点買賣.. (忘了叫您通

知Andy有关您的音樂会..他会喜歡那塲有古典味的jazz的)

幫手照顧下老母..

Andy生意舊曆年会忙..所以現計画一月左右回港..

開始時我可以睡梳化..然後再去找屋租吧.

您呢？您打算幾時结婚呀？

King”

27.  During cross-examination, KT was asked that as shown in this email, before he came back to Hong Kong in 2010, he sought a permission from Clarence allowing him to live in the Property on a temporary basis, and KT promised to find a place to live after some time. KT denied that he had made any promise to only live in the Property temporarily. He said that he had only said to stay at the sofa in the Property temporarily. In my view, this is clearly a disingenuous answer. The plain meaning of the October 2009 email is the one suggested to KT during cross-examination, and KT was trying to twist the meaning of that email.

28.  Under cross-examination, KT was referred to the first paragraph of the NTQ, in which the solicitors said “[w]e act for Chang King To, one of the 2 registered co-owners of [the Property]”. KT was asked whether the solicitors were only representing him in issuing the NTQ to Clarence. KT said he was not sure. He had not asked whether the solicitors were only representing him. He said the solicitors were retained by him, but he was not sure whether they were also representing Madam Wong. He said he was not a lawyer and could not be sure on this matter. I am of the view that KT was obviously evading the question. The meaning of the NTQ is plain. The solicitors were representing KT and KT alone in issuing this NTQ. KT just tried to refuse to admit this.

29.  In respect of the 2 notices of severance, the following undisputed facts have to be borne in mind:

(1)  KT has made no allegation of fraud or dishonesty against the Solicitors[6].

(2)  Mr Cheung of the Solicitors received instruction from Madam Wong (who was Mr Cheung’s client previously) over the phone to sever the joint tenancy of the Property in July 2011. On 26 July 2011, the Solicitors sent the 1^st Notice of Severance to KT by email[7].

(3)  According to Mr Cheung, Madam Wong together with Terry went to his office on 21 November 2011. Mr Cheung recognized her and checked her identity card which was identical to the copy kept in his office records. Madam Wong’s instructions were typed out in Chinese, and Madam Wong signed the Chinese instructions in the presence of Mr Cheung[8].

(4)  On 24 February 2012, the Solicitors sent the 2^nd Notice of Severance by email and post to KT[9].

(5)  KT conducted an online land search of the Property on 14 March 2012[10].

30.  In his evidence, KT’s claimed that:

(1)  The 29 July 2011 email was written by him in accordance with Madam Wong’s instruction. He gave a paper copy to Madam Wong to sign while he and Madam Wong were having a meal in a restaurant.

(2)  The “To Whom It May Concern” document was drafted by him in accordance with Madam Wong’s instruction.  He gave the document to Madam Wong to sign while they were having a meal in a restaurant.

31.  Having considered KT’s evidence carefully, I am of the view that his claim concerning the 2 notices of severance is inherently improbable and cannot be true.

(1)  There is no allegation of fraud or dishonesty against the Solicitors. There is no reason to doubt what has been said by Mr Cheung as mentioned in the CA Judgment.

(2)  Madam Wong’s true intention has been recorded in the Chinese Instructions signed by Madam Wong on 21 November 2011. Madam Wong’s signature on the Chinese Instructions was witnessed by Mr Cheung, who had no personal interest in the matters concerning the Property. It is inherently improbable that Madam Wong had an entirely different intention at a time shortly before or after 21 November 2011, ie at the time of the 1^st Notice of Severance and at the time of the 2^nd Notice of Severance.

(3)  As observed in the CA Judgment, Madam Wong must have been aware of the 2^nd Notice of Severance shortly after 14 March 2012, as KT did a land search on that date. There is no evidence that KT had kept this information to himself and there is no reason why he would not have informed Madam Wong of the registration. Madam Wong only became mentally incapacitated in August 2013. From March 2012 to August 2013, there was about 1½ years. If Madam Wong had not instructed the Solicitors to sever the joint tenancy of the Property, Madam Wong could take steps to vacate the registration of the 2^nd Notice of Severance, and she could also take action against the Solicitors during that long period of time[11]. However, the fact is Madam Wong has not taken any action. All the questions raised in the CA Judgment have not been addressed by KT in his evidence in these proceedings.

32.  I have also considered the paper copy of the 29 July 2011 email allegedly bearing Madam Wong’s signature, and the “To Whom It May Concern” document also allegedly signed by Madam Wong. I am not convinced that these documents can provide any support to KT’s case. After all, the weight of these 2 documents depends upon (a) whether these documents are really documents signed by Madam Wong; and (b) if yes, in what circumstances Madam Wong signed these documents. The only evidence on these matters is from KT. Bearing the inherent improbabilities of KT’s evidence as set out in [31] above, and bearing in mind the special burden mentioned by G Lam J in Kwan So Ling, I am not satisfied that there is any credible and reliable evidence showing that these 2 documents are documents signed by Madam Wong and representing Madam Wong’s real intent.

33.  The severance issue is an important issue in these proceedings. In my judgment, KT’s evidence on this crucial issue is untrue. That being the case, his overall credibility is doubtful. Save and except the admissions made by him which are against his interest, I reject his evidence.

34.  KT made the following admissions in his evidence:

(1)  he did not pay for the down-payment for the purchase of the Property;

(2)  he knew that the purchase of the Property was only possible with the assistance of a mortgage provided by a bank;

(3)  he was nominated by Madam Wong as a co-owner of the Property shortly after his father’s death;

(4)  Madam Wong had never told him that the purpose of nominating him as a co-owner was to give the Property to him as a gift; and

(5)  he did not contribute to the household expenses of the Property.

I attach weight to these admissions.

35.  I also note that there is no evidence from KT saying that KT has made any contribution in relation to mortgage repayments, management fees, government rent and rates, utilities expenses or any other expenses concerning the Property.

36.  In KT’s amended statement of claim in HCA 1574/2017, it is pleaded:

“3. In early 2010 upon the Plaintiff’s return to Hong Kong from Australia, he resided in the Property with Madam Wong, the 1^st Defendant and his girlfriend (who would subsequently become his wife). The Plaintiff was evicted by force and coercion from the Property by the 1^st Defendant and his then girlfriend one night in September 2010. Such force and coercion has since deterred the Plaintiff from entering the Property, the lock of the main door of which, in any event, was changed by the 1^st Defendant on or around 18^th September 2013 and the Plaintiff does not have the key to.”

37.  In respect of these allegations, the only relevant evidence is [10] of KT’s witness statement dated 16 June 2015 filed in HCA 1574/2017, in which KT mentioned that one night in September 2013, Clarence’s girlfriend intended to have a discussion with KT concerning KT’s residence in the Property. KT refused to have a discussion and ignored Clarence’s girlfriend. Thereafter, there was a dispute between Clarence and his girlfriend on the one hand and KT on the other hand. KT was assaulted by Clarence and his girlfriend. Madam Wong came out from her bedroom and was shocked by the scene. In order not to make Madam Wong worry, KT left the Property and moved to live in an another place.

38.  I have said that I do not accept KT’s evidence. In my view, even if KT’s evidence is accepted, his evidence cannot support the pleas in [3] of his amended statement of claim in HCA 1574/2017:

(1)  According to [10] of KT’s witness statement, the dispute and the assault occurred in that night was caused by KT’s refusal to enter into any dialogue with Clarence’s girlfriend concerning KT’s residence in the Property. Nothing in that paragraph saying that Clarence and his girlfriend have used force and coercion to compel KT to leave the Property.

(2)  In KT’s own words, he chose to leave the Property because he did not want to make Madam Wong worry (“最後我為免母親擔心受驚, 便離開該物業搬往別處”). In other words, KT left the Property on his own volition, and the reason for doing so was not to make Madam Wong worry.

(3)  As to the allegation “[s]uch force and coercion has since deterred the Plaintiff from entering the Property, the lock of the main door of which, in any event, was changed by the 1^st Defendant on or around 18^th September 2013 and the Plaintiff does not have the key to” pleaded in [3] of the amended statement of claim in HCA 1574/2017, there is no evidence on this allegation at all.

Clarence

39.  Clarence mentioned the following in his evidence:

(1)  His father passed away suddenly on 26 April 1986. Thereafter, his mother (ie Madam Wong) told him that the mortgagee had asked Madam Wong to nominate one more mortgagor to take up the assignment of the Property. Madam Wong told Clarence that she had asked KT to use KT’s name to take up the Property, so that the mortgagee’s requirement could be satisfied. Madam Wong told Clarence that KT had agreed to Madam Wong’s proposal. Madam Wong told Clarence that after her death, the Property would be given to her 3 sons, ie KT, Terry and Clarence. Clarence agreed to Madam Wong’s arrangement.

(2)  In or about late March 1987, Madam Wong asked Clarence to move into the Property and to live with her. Madam Wong also asked Clarence to contribute to the mortgage repayments as if he was an owner of the Property. Initially, Clarence was reluctant to move into the Property to live together with Madam Wong, as he was used to live on his own and he got many personal stuffs and musical appliances at his rented apartment. Madam Wong assured Clarence that he could reside at the Property as long as he could. Relying upon this assurance (“the 1^st Representation”), Clarence decided to give up his rented apartment and moved into the Property in August 1987 and contributed to the mortgage repayments, management fees, utilities charges and miscellaneous expenses of the Property.

(3)  From 1987 to 2000, Clarence earned approximately HK$20,000 per month.  In 2001, Clarence started his own business.

(4)  The mortgage of the Property was discharged on 12 June 2000.

(5)  In about October 2001, Clarence decided to marry his girlfriend and considered to move out from the Property after marriage. Madam Wong requested Clarence to stay after marriage, maintaining and taking care of her until her death as she was getting old. Madam Wong assured Clarence that he could just treat himself as an owner of the Property and could reside in the Property as long as he wished (“the 2^nd Representation”). Relying upon this assurance, Clarence decided to stay in the Property to look after Madam Wong after his marriage.

(6)  Madam Wong retired in 2004.

(7)  In about August 2013, Clarence’s wife was pregnant. Madam Wong repeated the previous representations made to Clarence and assured Clarence that he, his wife and his child might live in the Property without any interference in the lifetime of Madam Wong (“the 3^rd Representation”). Madam Wong also agreed that Clarence might renovate the Property to accommodate a new born baby. Relying upon this representation, Clarence incurred expenses to renovate the Property.

40.  I am of the view that Clarence is an honest and reliable witness. Importantly, his evidence on the 3 representations is unchallenged during cross-examination. I accept that Madam Wong did make the said representations to Clarence.

41.  Clarence has produced some documents concerning mortgage repayments and payments of management fees, utilities expenses and renovation expenses to support his evidence. KT challenged that those documents could not be sufficient evidence showing that those payments were indeed paid by Clarence. In my view, there is no substance in this challenge, bearing in mind that:

(1)  KT has never said that he had made any contribution in relation to any payment or any expense concerning the Property.

(2)  Terry has also not said that he had made such contributions.

(3)  It is not disputed that Madam Wong retired in 2004.

(4)  Clarence’s evidence on the contributions made by him is supported by Terry, who has no personal interest in the dispute between KT and Clarence.

(5)  With all these in mind, it is more likely than not that Clarence has made contributions relating to the Property, particularly after the retirement of Madam Wong in 2004.

42.  I accept Clarence’s evidence.

Terry

43.  Terry was married in 1982 and emigrated to Australia in 1989. According to Terry, the relationship among the 3 siblings was all along harmony until early 2010, when KT returned to Hong Kong from Australia on his own. He was told that there was a dispute between KT and Clarence as KT had broken his promise that KT’s stay in the Property was only on a temporary basis. Only at that time, Terry realized that the Property was registered under the joint names of Madam Wong and KT. Terry knew that over the years, Clarence had made contributions to the Property and had taken care of Madam Wong.

44.  Terry was in Hong Kong in April 2011 with his family to visit Madam Wong. Terry discussed the joint tenancy matter with Madam Wong, and Madam Wong strongly indicated to him that she did not intend to let KT to have the Property upon her death. Madam Wong also told him that she added KT as one of the co-owners was simply for the purpose of satisfying the mortgagee’s requirement. Her intention was to let Clarence to live in the Property as long as he wanted, and the Property would only be passed to the 3 sons after Madam Wong’s death. After returning to Australia, Terry sent an email to KT on 3 May 2011, in which Terry told KT their mother’s intent concerning the Property. KT did not give any reply to this email.

45.  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, Madam Wong understood and signed the documents. 

46.  I am of the view that Terry’s evidence remains intact after cross-examination. I accept Terry’s evidence.

Lorna

47.  Lorna is the cousin of KT, Terry and Clarence. She said that in late August or early September 2010, Madam Wong contacted her by phone and complained that KT had lodged in the living room of the Property for several months with no intention to move away. 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 KT’s name to satisfy the mortgagee’s requirement. It was not her intention to give the Property to KT 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 to live in the Property as long as he wanted, and the Property would be passed to the 3 sons after Madam Wong’s death. Madam Wong told Lorna that KT actually knew that his name was added to the Property for the purpose of satisfying the mortgagee’s requirement only, for Madam Wong had expressly told this to KT 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 KT to move out from the Property and find a place to live.

48.  Lorna then arranged a dinner with KT, Clarence and Madam Wong. Lorna tried to facilitate the discussion concerning KT’s stay in the Property, and Lorna encouraged KT to seek another accommodation. KT refused to discuss the matter and left. After this incident, KT sent numerous messages to Lorna through mobile phone, blaming Lorna for arranging that dinner.

49.  Lorna’s evidence is clear and cogent. Nothing in the cross-examination really casts doubt on her evidence. I accept Lorna’s evidence.

ANALYSIS

Issue 1 – KT being a bare trustee

50.  Joint legal owners of a property may not be joint owners of the same in equity. Each case depends upon its own facts.

51.  Based upon the evidence accepted by the court, it is clear that KT is a joint owner in name only and he does not have any beneficial interest in the Property. At the beginning, Madam Wong nominated KT to be a joint owner of the Property for the purpose of satisfying the mortgagee’s requirement only, and Madam Wong had made this known to KT. Further, there is no evidence showing that KT has made any contribution in relation to the Property at any time.

52.  In my judgment, Madam Wong is the sole beneficial owner of the Property. KT is a bare trustee holding the Property for Madam Wong.

Issue 2 – Severance of the joint tenancy

53.  As a matter of law, a joint tenancy can be severed by one joint tenant at any time without the consent of the other. As recorded in [25] of the CA Judgment, this is accepted by counsel for KT in that case. The correctness of this proposition of law cannot be doubted.

54.  Based upon the evidence accepted by this court, the 1^st Notice of Severance and the 2^nd Notice of Severance were issued pursuant to the instructions given by Madam Wong. If there is any deficiency in the 1^st Notice of Severance because the description of the Property therein may not be entirely correct, the problem has been rectified by the 2^nd Notice of Severance. In my judgment, the joint tenancy in law has been severed by the 2^nd Notice of Severance.

Issues 3 – KT may not evict Clarence from the Property

55.  In his evidence and in his final submissions, KT says that the purpose of Madam Wong nominating him to be a co-owner of the Property is to authorize him to make decisions concerning the Property after Madam Wong passing away.  During the final submissions stage, in response to the questions from the bench, KT agrees that all the decisions concerning the Property should be made by Madam Wong and not by him during Madam Wong’s lifetime. KT also says that the NTQ was issued on his instruction, not on Madam Wong’s instruction. That being the case, in my view, even according to KT’s own saying, the NTQ would not be valid and have no effect at all.  Further, there is no evidence showing that Madam Wong has ever required Clarence to move out from the Property.  Accordingly, even according to KT’s own case, there is no reason why Clarence should leave the Property and hand over the vacant possession of the same to KT.

56.  In my judgment, in any event, Clarence is entitled to stay in the Property during Madam Wong’s lifetime by the operation of the doctrine of proprietary estoppel.

57.  The 3 elements of proprietary estoppel are (a) a representation or assurance made to the claimant; (b) reliance on it by the claimant; and (c) detriment to the claimant in consequence of his reasonable reliance[12]. The principles concerning proprietary estoppel have been set out by DHCJ Cooney SC in detail in Szeto Chak Mei (the sole administrative of the unadmininistered properties of the late Szeto Chiu, deceased) v Chan Lam Shan and Others[13].

58.  With these principles in mind, I am of the view that there is a proprietary estoppel operating against Madam Wong. Madam Wong must keep the promise made to Clarence in the 1^st Representation, the 2^nd Representation and the 3^rd Representation, and cannot go back on her words. The meaning of these representations is clear, ie Clarence may treat himself as an owner of the Property and may stay in the Property as long as he wishes, but he has to make contributions to all the expenses relating to the Property and to maintain and to take care of Madam Wong. Clarence may live in the Property during Madam Wong’s lifetime, and after Madam Wong’s death, the Property would be given to the 3 sons. Relying upon these representations, Clarence moved into the Property in August 1987 to look after Madam Wong for many years, and Clarence has contributed to various payments and expenses concerning the Property. Maintaining and taking care of Madam Wong for many years, as well as the monetary contributions made by Clarence, are detriments to Clarence in consequence of his reliance on the representations.

59.  KT submits that the Property was mortgaged again in 2005 and 2009. The loans secured by the 2005 mortgage and the 2009 mortgage were used to support Clarence’s business.  Accordingly, Clarence’ repayments of these mortgages should not be treated as detriments in relation to the proprietary estoppel claimed by Clarence.  In my view, this submission cannot assist KT’s case. It is not disputed that the money raised by the 2005 mortgage and the 2009 mortgage was used to support Clarence’s business. However, Clarence is not relying upon the repayment of these mortgages to found the proprietary estoppel in his case. He is relying upon his contributions to the repayment of the very first mortgage used to assist the purchase the Property, as well as his contributions to other expenses in relation to the Property and his maintenance and care of Madam Wong for many years as detriments suffered by him in reliance of the representations made by Madam Wong. I am of the view that Clarence has shown all the necessary elements in the proprietary estoppel claimed by him.

60.  In my view, the proprietary estoppel would not cease to operate after Madam Wong becoming mentally incapacitated. If a person is estopped from doing something, the estoppel would still operate against his estate after the death of that person. Similarly, I am of the view that an estoppel against a person would still be operative against that person even he or she has become mentally incapacitated.

61.  Since Madam Wong is estopped from requiring Clarence to leave the Property, KT himself cannot do so. As a matter of law, a tenant in common may grant a licence to anyone to occupy the Property on a non-exclusive basis without the consent of other tenants in common[14]. Madam Wong is the sole beneficiary owner of the Property and KT is a bare trustee holding the Property on trust for Madam Wong. After the severance of the joint tenancy, KT at most is a tenant in common in law.  While the other tenant in common (ie Madam Wong) is estopped from evicting Clarence from the Property, by reason of this estoppel, Clarence may stay in the Property, regardless of KT’s view.

62.  In his final submissions, KT argues that Clarence has not come to the court with clean hands and hence is not entitled to have any equitable relief, and his defence of proprietary estoppel must fail. In my judgment, KT is not entitled to put forward this argument as the allegation of “unclean hands” has never been raised in KT’s pleadings. The allegation of “unclean hands” is a factual allegation which must be pleaded, so that the other side would have an opportunity to prepare evidence to meet this allegation. Without raising this allegation on pleadings, it would be unfair for KT to take this point at trial. Secondly, I have rejected KT’s evidence.  Based upon the evidence accepted by this court, there is nothing which may support KT’s allegation of “unclean hands”.

Issue 4 – No mesne profit or damages

63.  In my judgment, Clarence is not in wrongful possession of the Property. Accordingly, KT is not entitled to have any mesne profits or damages for trespass from Clarence.

Other matters

64.  Lastly, I have to mention 2 other matters.

(1)  KT’s claim in HCA 2518/2015 is made on the premises that Madam Wong has never given any instruction to the Solicitors to sever the joint tenancy of the Property. In essence, KT is making an allegation that the Solicitors issued the 2 notices of severances without any instruction from Madam Wong. I doubt the propriety of making the allegation against the Solicitors in this way. If there is any truth in this allegation, the claim should be made by Madam Wong through a next friend against the Solicitors. By making the allegation in the way framed in HCA 2518/2015, KT in fact is depriving the Solicitors of an opportunity to put in evidence in HCA 2518/2015 to refute the allegation made by KT therein. This is not a proper way in handling litigation.

(2)  Mr Suen asks me to make a ruling that Clarence may occupy the Property on an exclusive basis during the lifetime of Madam Wong. I decline to do so. In his pleadings, Clarence has not made any claim that he may have exclusive possession of the Property during Madam Wong’s lifetime. Further, there is no evidence on this exclusive possession point.

DISPOSITION

65.  I dismiss KT’s claim in each action.

66.  KT has agreed that the costs of HCA 2518/2015 should follow the event and be taxed on the High Court scale. I order that costs of HCA 2518/2015 be paid by KT to Madam Wong, to be taxed on the High Court scale if not agreed. For the period in which KT was receiving legal aid in HCA 2518/2015, KT’s own costs during this period be taxed in accordance with the Legal Aid Regulations.

67.  HCA 1574/2017 was transferred from the District Court, formerly known as DCCJ 2850/2014. The reason of the transfer is that KT has commenced HCA 2518/2015 in the High Court, and there are common issues in these 2 cases. KT and Mr Suen have agreed that the costs of HCA 1574/2017 should be taxed on the District Court scale, and they have agreed that costs should follow the event. In these circumstances, I order that costs of HCA 1574/2017 (including all the costs in DCCJ 2850/2014 and all costs reserved, if any) be paid by KT to Clarence and Madam Wong, to be taxed on the District Court scale if not agreed. For the period in which KT was receiving legal aid in HCA 1574/2017 (formerly DCCJ 2850/2014), KT’s own costs during this period be taxed in accordance with the Legal Aid Regulations.

68.  It is most unfortunate that KT and Clarence have to resolve their dispute in court. Although I have ruled that Clarence may continue to stay in the Property, the siblings may have another legal battle in future if the feud between them cannot be resolved through amicable discussion. I take this opportunity to urge the two brothers to try to have discussion to resolve the difference between them. After all, I am sure that their mother, Madam Wong (who is now 90 years old), would certainly want to see KT, Terry and Clarence to have a harmonious relationship among themselves again.