YOUNG TIN KIN KENNETH v. LAU LAN FONG NANCY

HCA 1545/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1545 OF 2004

____________

____________

_______________

J U D G M E N T

_______________

1.  The plaintiff, Mr Young, is the son and executor of the will of the late Yang Shen Sum, a well known artist, whom I will call, as do the witnesses, Master Yang, he being a master of the modern Chinese Lingnan school of painting.  Mr Young claims against the defendant, Madam Lau, who is Master Yang’s second wife and his own stepmother, for the return of a collection of Chinese works of art.  Mr Young claims that these belong to the estate but Madam Lau claims that they belong to her, having been given to her by Master Yang during his lifetime.

The Collection

2.  This is described in the Amended Statement of Claim as “a collection consisting of at least 165 paintings and other objects of Chinese fine art (“the Collection”)”.  It is said to consist of all the items of Chinese fine art acquired and kept by Master Yang during his lifetime and that 75 of those items are now situated in Hong Kong and at least 90 in Vancouver, Canada. 

3.  It is not in dispute that the Collection exists, and consists of works of artists other than Yang himself.  The number of items of fine art of which it originally consisted, and the number of which it now consists, is disputed.  It is not in dispute that the whole Collection was taken to Canada in 1988 and that various pieces were later brought back to Hong Kong at different times.  After Master Yang’s death, Madam Lau deposited 75 pieces with the Hong Kong Heritage Museum.   

Background

4.  Master Yang died on 15 May 2004, in Hong Kong, at the age of 91.  By his first marriage, he had five sons and a daughter.  In the 1970s, he met the defendant, Madam Lau.  She was one of his students, and a social work officer employed by Government.  They married in 1974, and in 1978 their son Yang Chun, Alfred was born.

5.  In October 1998, Master Yang, Madam Lau and Alfred emigrated to Vancouver, in Canada.  Madam Lau took early retirement from the civil service.  They lived first at 3676 West 38^th Avenue, Vancouver.  Later they bought a house at No. 4233 Quesnel Drive, Vancouver.  The whole family acquired Canadian citizenship in 1993.

6.  The family emigrated because, as Madam Lau puts it, Master Yang was afraid of 1997.  However, his heart remained in Hong Kong and China.  He frequently returned here and stayed for several months at a time at a flat in Po Shan Road, Hong Kong, which he owned through a company.  He often went to Mainland China. 

7.  Master Yang also owned a flat at Harrison Court, Kowloon, and this was on 8 January 2004 conveyed by assignment to Madam Lau and Alfred as joint tenants for a consideration of $3,000,000.  It appears (although Mr Young sought to deny this in evidence) that no actual consideration was paid and the assignment was in fact a gift.

8.  Master Yang made three wills.  The first was made on 27 July 1998.  Madam Lau and the eldest son of the first marriage, Yeung Tin Yau, were the executors, and the property was left in shares to Madam Lau and all the children.

9.  The second will is dated 15 October 2001.  Madam Lau was the sole executor.  Master Yang bequeathed to her the Harrison Court property, which was then still in his own name, and “all my personal chattels, household articles and paintings including my collections”.  The rest of the property was left to the executrix on trust to divide it into eight equal shares and to hold them on trust, as to one share each for Madam Lau, each of the children of the first marriage and Alfred. 

10.  The third and last will is dated 4 May 2004.  Mr Young is the executor.  There are no individual bequests.  The whole property is to be divided into sixteen shares, to be held on trust as to two shares for each of the children of the first marriage, and as to one share for each of Madam Lau, Alfred, and two grandsons. 

11.  There is written evidence of donations of paintings, which Madam Lau says came from the Collection, by Master Yang and in his name to Hong Kong and Chinese museums and galleries.  On 19 December 1999, Master Yang donated a large number of paintings and other items to the Guangzhou Museum of Art.  There is a full inventory and a declaration signed by Master Yang as donor and Madam Lau as representative.  On 6 May 1999, he made a donation of a piece of calligraphy to the Poon Yu Po Mak Garden a group of galleries in Mainland China.  On 19 January 1999 he donated 7 pieces of painting or calligraphy to the Hong Kong Urban Council. 

12.  In about 2002, Master Yang planned to publish an album of photographs of some of the paintings he owned.  The plaintiff’s side claims, though Madam Yang denies it, that he intended thereafter to sell them at auction.  It was for the purpose of the album that the pieces, including those which were in Hong Kong at the time of his death, were brought back piecemeal when the couple travelled from Vancouver to Hong Kong, and kept at the Po Shan Road flat.  

13.  In October 2003 Master Yang returned to Hong Kong for the last time.  He intended to stay for six months, but postponed his return to Canada in order to officiate at the opening ceremony of an exhibition of his paintings in Macau in early May 2004.  Ill-health, probably gout, prevented his attendance, and Madam Lau says that she attended in his stead.  In any event, Master Yang never again left Hong Kong; he died here on 15 May 2004.

14.  After Master Yang’s death, there were discussions between Madam Lau, the family and officials of the Leisure and Cultural Services Department regarding the possibility of establishing a gallery at the Hong Kong Heritage Museum in Master Yang’s name.  Mr Young does not dispute that these discussions were ongoing, and even says that he had some of Master Yang’s works, as well as his personal effects, which he was prepared to donate for starting up the gallery, although they were not enough.  It appears that the oldest brother, Yeung Tin Yau, attended one of the meetings. 

The Dispute

15.  On about 30 May 2004 Mr Young went to make an inventory at the Po Shan Road flat.  He wanted to take away the 75 pieces.  Madam Lau claimed that they belonged to her, and would not let him have them.  He went away.  Alfred made a list of the pieces and delivered the list to Mr Young a couple of days later. 

16.  On 4 June 2004 Madam Lau deposited the 75 pieces with the Hong Kong Heritage Museum at Shatin.  The receipt records that they were deposited “for donation or on loan”.  An indicative end date of June 2006 is given and it appears that the Museum will hold the items deposited pending the outcome of this litigation.

17.  A further 63 items of works by Master Yang himself and other memorabilia of him were listed by Madam Lau, and also handed over to the Museum.  She says that this was done following discussions with Mr Young and the other brothers, regarding the proposed gallery mentioned above.  In any event these 63 items do not form part of the Collection and are not concerned in these proceedings. 

18.  The contents of the last will were announced to the family on 25 May 2004.  Mr Young’s solicitors wrote to Madam Lau on 9 June 2004, asking her on behalf of the executor to reveal the whereabouts of more than 70 pieces from Master Yang’s collection of Chinese painting and calligraphy.  Madam Lau replied through solicitors on 11 June to the effect that the 75 items were inter vivos gifts to herself.  They had been brought back to Hong Kong with her consent for preparing an album of painting collections and for donation.  In order to commemorate Master Yang, she had deposited them with the Hong Kong Heritage Museum. 

19.  Further correspondence followed, and on 29 June 2004, Madam Lau, through her solicitors, made an open offer to have the entire Collection deposited with the Leisure and Cultural Services Department.  Mr Young as executor did not accept this proposal and issued proceedings on 2 July 2004.

Canadian aspect

20.  At the request of the lawyers in Vancouver handling probate of the Canadian property, the prayer for relief asks for declarations concerning the part of the Collection remaining in Canada.  Succession to the items in Canada would be governed by the law of British Columbia.  The parties accept that under that law, succession to moveables is governed by the law of the deceased’s domicile at the time of death, which, according to Mr Young, is Hong Kong.  

Evidence

21.  The only direct evidence that there was a gift comes from Madam Lau herself.  The plaintiff and his witnesses all give evidence of the words, actions and attitude of Master Yang during his lifetime, on which they rely as suggesting that there was no gift; but they have no direct evidence to contradict what Madam Lau says.  Those witnesses are the plaintiff himself; Mr Francis Chung Cheuk Sang, who was a student of Master Yang, and the solicitor who handled the assignment of the Harrison Court property and the drafting and execution of the last will; the plaintiff’s brother, Yang Tin Yee, who is himself a professional artist; Mr Yung Ching Sho, a student and long-time assistant of Master Yang, and Mr Lau Wai Hung, another student. 

Madam Lau

22.  Madam Lau’s evidence is that when Master Yang was medically examined before emigrating to Canada in 1987, he was found to have a heart condition, namely congestive heart failure.  He was then 74 years old.  Given his age and due to his medical condition, Master Yang told Madam Lau that he wanted to give her, and did give her, the whole of his Collection.  He knew she was only interested in the paintings as art, and not for any commercial value, so she would not sell any of them but would keep them, and let other persons who were interested in Chinese art enjoy them. 

23.  Madam Lau’s adopted statement and her evidence in chief were alike rather sketchy about the actual making of the gift.  She was cross-examined at length on this.  Under cross-examination she said that Master Yang, pointing at the chest where the paintings were kept in their bedroom in Hong Kong, said that he gave the paintings to her as a gift.  Originally the English translation of the Cantonese evidence was that he “would give” her the paintings, but on further questioning Madam Lau insisted that Master Yang said that he “gave” the paintings, rather than that he “would give” them.  She said that that was their mutual understanding.  He did not physically hand over the Collection to her; he just pointed at the chest and said “I give them to you”.  It was not physically possible to hand over the Collection to her because it was too heavy.

24.  Master Yang also said that many people had offered to buy a lot of the paintings, but he did not want to sell them.  He told Madam Lau to safeguard them properly, and that he did not know what would become of him in future. 

25.  Madam Lau’s evidence of the circumstances of the gift was rather vague.  She said that she remembered “the concept” but had difficulty remembering the details after so long.  She amplified her original evidence, as it appeared in her written statement.  When objection was taken to this, she explained that it was because the questioning reminded her of more detail.

26.  After the incident to which Madam Lau speaks, the paintings continued to be kept as before, i.e. in the large wooden chest at the foot of the couple’s bed.  Although Madam Lau did not feel greatly honoured or pleased by the gift, she did accept that she had been given a heavy responsibility; but she agreed that she did not tell anyone about the matter, right up until the time when, after Master Yang’s death, someone, i.e. Mr Young, tried to take them away and to infringe her rights.

27.  When the time came to emigrate, the Collection went with the family to Canada.  Madam Lau organised the shipment, and her name appears on the packing list and the contract with the shipper.  Customs declarations had to be made also.

28.  The “Casual Goods Accounting Document”, to which the packing list was attached is in the names of all three family members.  The document declares a value, but the packing list does not appear to cover the Collection. 

29.  Two other documents, which appear to be lists of accompanied goods by air, and goods to follow, are more useful.  They are in the name of Yang Lan Fong Nancy Lau.  The first contains entries for “Collection of Chinese paintings and calligraphy”, 108 pieces, valued at C$250,000, and “Collection of Chinese fan paintings and calligraphy”, 27 pieces, valued at C$30,000.  The second contains and entry for “Collection of Chinese paintings and calligraphy”, 30 pieces, valued at C$20,000. 

30.  Madam Lau says that these entries represent the Collection.  However, there are many other entries in the documents and she does not dispute that some of them are for personal items belonging to Master Yang and to Alfred. 

31.  Although the pleaded number of pieces in the Collection is “at least 165”, and this is the total which appears on the customs documents, Mr Young can give no specific evidence as to the number.  He only says that it would be “almost 200”.  Madam Lau explained that the figure of 30 pieces in the second document was a rough estimate, and in fact 18 pieces were sent in the second, unaccompanied shipment.  Her figure for the Collection in 1987 is 153 pieces, plus, it appears from cross-examination, another three later-acquired works of calligraphy and a scroll, which she said had been given to Mr Young.  She says that 68 items were later given to the Guangzhou Museum of Art, 7 to the Hong Kong Arts Museum and one to the Poon Yu Po Mak Garden, on the Mainland.

32.  After the family emigrated to Canada, according to Madam Lau, the Collection remained in the wooden chest at the foot of the bed, in both he houses in which they successively lived.  After about two years, a steel cabinet, like a wide filing cabinet was acquired, and this was used instead.  Both Master Yang and Madam Lau had a key to the cabinet. 

33.  In addition, there was a safe deposit box in a down-town bank in Vancouver, which was taken out in the name of Madam Lau alone, and which she says was used for some of the more valuable items.  It is not clear what went where, and indeed it seems that different pieces were kept in the flat or in the bank at different times, but Madam Lau says that many of the pieces were in scroll form and could be rolled up.  Also some pieces were painted fans.  They could fit in the safe deposit box which measured 21 by 16 by 10 inches.

34.  As I have indicated, various pieces were given away.  Some were also given, according to Madam Lau, to the children, and in particular to Yang Tin Yee, the artist, and to Mr Young.  Madam Lau gave evidence to account for what became of the original collection and the three pieces which she says were added to it since 1988.  She says that, apart from the 75 pieces in the Museum, only two pieces now remain in Vancouver.  While Mr Young is skeptical of this, there is no better evidence available of the contents of the Collection as it now stands. 

Mr Young

35.  In his witness statement, which he adopted, Mr Young said that Master Yang used to keep the Collection in his studio on the top floor of the house in Canada.  Master Yang was very jealous of his Collection, which he kept locked up in his studio, even from Madam Lau; she was not allowed inside.

36.  As to the events after the death of Master Yang, Mr Young said in his statement that he had two meetings with Madam Lau, and that she admitted that the 75 pieces in Hong Kong and belonged to Master Yang.  In oral evidence, however, it appears that there was only one such meeting, at which the ownership of the 75 pieces was disputed.  Nevertheless, Mr Young insisted that on some occasion, which he could not remember, Madam Lau had made the admission.

37.  Mr Young’s evidence also dealt at some length with the question of the transfer of the Harrison Court property to Madam Lau and Alfred.  He had, it appears, discovered that this was done for a consideration of $3 million but there was no record of payment.  Notwithstanding his decision, as executor, not to pursue the matter, because the sale was probably a fiction, he nevertheless insisted in evidence that he did not accept that the assignment of the Harrison Court property was done by way of a gift. 

Mr Francis Chung Cheuk Sang

38.  Mr Cheong was a student of Master Yang, and also a solicitor.  He it was who dealt with the drafting and execution of the 2001 and 2004 wills, and the assignment of the Harrison Court property.  As to the first will, he said that he had asked Master Yang if the painting collection and other valuables were to be treated in the same way as the Harrison Court property, and Master Yang indicated that they were; hence the specific bequest.  He said that there was no mention by Master Yang of any collection having been previously given to Madam Lau. 

39.  In connection with the Harrison Court transaction, Mr Chung had explained that the transfer could be done by way of a deed of gift, or by an assignment, and the pros and cons of both.  Master Yang had taken the latter course.  Mr Chung had obtained the written instruction letter that the consideration of $3 million would be dealt with between the parties, and said that he did not himself know whether any such payment had been made.

40.  He said that in the course of dealing with the execution of the assignment, Master Yang had complained that Madam Lau was greedy and was “always keeping an eye on my things”.  Later, when he was taking instructions for the 2004 will, Master Yang had again complained that Madam Lau had forced him to change the ownership of the Harrison Court property, and he wanted to cut her out of the will.  He also complained that he had given Madam Lau “a lot of things”, though he did not specify what.  Mr Chung asked Master Yang to think the matter over, and eventually the Master decided to give Madam Lau and Alfred a small share.

Yang Tin Yee

41.  This witness is another of the sons of Master Yang, and the most like his father, in that he is now a professional artist, though he says that all his siblings were interested in art, and practise painting and calligraphy to some degree.  Mr Yang speaks generally of his impression of Master Yang’s attitude to the Collection and to the various donations which he made, particularly on the mainland.  He also speaks to Master Yang’s intention with regard to the making of the album.  He says that his father never had the intention to give his collection to any single member of the family.

42.  Mr Yang says that his father complained to him that Madam Lau had removed and put paintings into her old bank safe deposit box and without his knowledge, and had warned her to return all the painting collections immediately.  This complaint, however, seems to have come in 1994, and the safe deposit box was opened in 1989.

Yung Shing Cho

43.  This witness was also a student of the Master, and says that he spent a lot of time with the master when the latter was in Hong Kong, took him for walks, looked after his bank passbook and deposit receipt and so on.  He had also travelled with Master Yang to other places, including many places in Asia and China.  He says that Master Yang always treated his collection as his own property and never said that he had given any part of it to Madam Lau.

44.  Mr Yung’s evidence dealt mainly with what he saw and heard when the master was in Hong Kong.  He also gave evidence about the various donations, which are not in dispute.  Although Yung had stayed with Master Yang and Madam Lau at Quesnel Drive, he could not really say anything as to how the Collection was kept there.  There was no suggestion from him that the Collection was kept under lock and key or that Madam Lau was not allowed access to it.

Lau Wai Hung

45.  Mr Lau was another student, and he too said that he had had a close relationship with Master Yang and knew that the Master treated all the paintings as his own.  Mr Lau of course took lessons, and he went to art exhibitions and dinners at which some of the paintings were shown, in Hong Kong.  One point which is perhaps significant in his evidence relates to an antique painting.  He believed that the Master had acquired this after 1987, because he was told as much.  However, according to Madam Lau, this antique painting had been acquired long before, but was only re-mounted after 1987.

46.  I have not gone through the evidence of the plaintiff and his witnesses in any great detail, because, as I have indicated, not one of them, except perhaps the solicitor, can give much more than his impressions of Master Yang’s attitude to the Collection.  The general tenor of their evidence is that the Master always treated all his paintings as his own.  When he made donations, he made them in his own name.  None of this is disputed, though Madam Lau says that when the donations were made, they were always made with her knowledge and consent as owner of the paintings donated.

Evaluation

47.  Madam Lau herself appeared to be an honest witness, and I do not think she is motivated by anything other than a desire to fulfil what she says were her late husband’s wishes, to have the Collection kept safe in a museum.  As I have noted, on 29 July 2004, through her solicitors, she made an open offer to the plaintiff to have the entire Collection donated to the Leisure and Cultural Services Department of the Hong Kong SAR Government, so that the same could be “shared and enjoyed amongst people who are interested in Chinese fine art”.  The donation was to be made in the name of Master Yang.

48.  I do not believe Mr Young’s evidence that Master Yang jealously guarded the Collection and kept it under lock and key.  That is contradicted by a photograph of Madam Lau and her friends in Master Yang’s studio.  Further Mr Yung, who visited the family at Quesnel Drive, said nothing about it.  Nor do I believe that Madam Lau ever made any admission to Mr Young.  His inconsistent attitude to and evidence about the matter of the consideration for the Harrison Court property indicates that he is not a reliable witness.

49.  The other witnesses all appeared straightforward and honest enough but, as I have indicated, they really tell me very little apart from the general attitude of Master Yang to his paintings in his later life.

The issues

50.  The central issue in this case is whether Master Lau gave the Collection to Madam Lau in about 1987.  There is a subsidiary issue as to what the Collection now comprises.  Other matters, which Mr Merry identifies as subsidiary issues, are, I think, rather matters to be taken into consideration in arriving at a conclusion on the main issue, than matters which must be decided for the purpose of the action.

What is in the collection now?

51.  Mr Young has no knowledge of this.  He can only rely on what appears in the export documents.  The only evidence comes from Madam Lau.  She says that when the gift was made, there were 153 items.  Only three paintings were acquired after the date of the gift, and that they had already been given to Mr Young.  She says that the Collection now consists of the 75 items in the Hong Kong Heritage Museum plus two in Canada and has explained to the best of her ability what happened to the rest.  There is nothing to contradict her evidence, and it is not inherently incredible.  I believe her and find that the Collection now consists of the 75 items in the Museum plus two in Canada. 

Was there a gift?

52.  I do not think there is any dispute that the onus of proving the gift lies on Madam Lau.  The donor is now deceased.  Corroboration is not required as a matter of law, but where there is a claim that a gift has was made by a person who is now dead, the court must approach the claim with suspicion.  See In re Garnett (1885) 31 Ch. D 1 CA, followed in Thomas v Times Book Co. Ltd, [1966] 1 WLR 911.

53.  There is also no dispute that in order to constitute the gift of a chattel there must be a voluntary transfer from the donor to the donee with the full intention that the chattel not return to the donor.  In the case of the gifts inter vivos, some form of delivery of possession is necessary to vest the chattel in the donee. 

54.  I have had cited to me various cases showing how the courts have approached the problem in the past, particularly with reference to delivery of possession.  Many of them were considered in the judgments of the Court of Appeal in In re Cole, a Bankrupt [1963] 1 Ch. 175.  It is fruitless to trawl through these cases in an attempt to find some set of circumstances which nearly fits, or is at least analogous to the present set.  One must look at the principles to be distilled from the cases. 

55.  There is no doubt that, where there is a verbal declaration of gift, it must show that the donor intends there and then to give the chattel to the donee.  Words of instruction would not be enough; see Thomas. Nor would words indicating an intention to give in future, whether by will or otherwise.

56.  Delivery has caused problems in the past because of the difficulties which may arise where the chattel was in the possession of the donee prior to the gift, or the chattel is too big, or a collection of chattels too numerous, for them in some way to be physically handed over from the donor to the donee. 

57.  Thus the courts have resorted to the notions of constructive or symbolic delivery, in circumstances where is might reasonably be said that there was no real delivery accompanying the gift at all.  Constructive delivery was resorted to in cases where the chattel or chattels had been had been handed over already (Winter v Winter (1861) 4 LTNS 639; Alderson v Peel (1891) 7 TLR 418; In re Stoneham, Stoneham v Stoneham [1919] 1 Ch. 149).  Symbolic delivery was resorted to where the chattels were too numerous or bulky, e.g. Lock v Heath, (1892) 8 TLR 295, where the donor pointed to an inventory, and said that he gave his children the goods mentioned therein, and Rawlinson v Mort, (1905) 21 TLR 774  where the donor made a gift of a church organ and delivered it by putting his hand on the organ in the presence of the donee and accompanying his gesture with words of gift.

58.  Problems have also arisen in the case of husband and wife or other persons living in a common establishment.  In such cases, possession is attached by law to the title: Ramsay v Margrett [1894] 2 QB 18.  Where there is transfer of physical possession of an object from the owner to the wife or cohabitee this may be equivocal as to the intention of the transferor.  See Bashall v Bashall, (1894) 11 TLR 152, CA, an action by a wife against her husband, where Lord Esher M.R. said that:

“it was clear law that in order to pass property in chattels by way of gift mere words were not sufficient, but there must be a delivery.  And this requirement was as essential in a case of husband and wife as in a case of two strangers.  But a difficulty arose when they came to consider how a husband was to deliver a chattel to his wife so as to pass the property in it.  The difficulty arose, not from the legal relation between them, but from the fact of their living together.  When a husband wished to make a present of jewellery to his wife, he generally gave it into her own hands and then it was easy to see that there was a delivery.  But in the case of a horse or a carriage, that would not be so.  In such a case it was true the husband might wish to make an absolute gift to his wife, but, on the other hand, he might wish to keep the horse or carriage as his own property and merely to let his wife have the use of it.  In an action by the wife it was necessary for her to show that the husband had done that which amounted to a delivery.”

59.  Two cases in which the courts found what appears at first glance to be totally fictitious delivery to a wife are summarised by Harman LJ in In re Cole at pp. 189-190:

“A stronger case is In re Magnus, Ex parte Salaman [1910] 2 KB 1049, CA, where the husband settled furniture upon his wife by a marriage settlement and covenanted to add further furniture.  He purchased a large amount of additional furniture which he installed in the house; he did not formally deliver it to the trustee of the settlement, but the trustee visited the house and saw the furniture there.  It was held that this was a sufficient delivery to the trustee and that the wife was enjoying the furniture under the trusts of the settlement.  This was enough to defeat the claim of the trustee in the husband’s bankruptcy …

Perhaps the strongest case in the wife’s favour is Kilpin v Ratley [1892] 1 QB 582.  In that case furniture belonging to the husband and in the matrimonial home was purchased by his father-in-law who took an assignment of it by deed.  Subsequently the father visited his daughter at the house and standing in one of the rooms orally gave her the furniture and then walked out of the house, leaving it behind him, and this was held to amount to a sufficient delivery to the wife.  This furniture, until the time of the gift, was owned by the father and was in the possession of the son-in-law, but the father by pointing the furniture out to his daughter and then leaving the house put her and not her husband in possession of it and there was, therefore, a sufficient change of possession.”

60.  This kind of anomaly is perhaps easier to understand when one looks at the elements of possession.  Possession requires intention to possess, which in turn requires knowledge, and some form of custody or control.  Thus in criminal cases where proof of possession is required, the jury will be directed that a person has possession of an object if he knowingly has it in his physical and actual custody or otherwise within his physical control, and intends to have custody of it or to exercise control over it as and when the occasion arises.

61.  It seems to me that in cases where the courts have found delivery of possession where there was no actual handing over of anything, emphasis has been placed, albeit tacitly, on the element of intention, rather than that of custody or control.  What has been found is some action by the donor, going further than mere words, which indicates clearly that he gives up his intention to possess, in favour of the donee’s intention; so long as there is some such action, it is immaterial that custody or control apparently remains with the donor, or is joint, or has already passed from the donor to the donee.  What is required in an action which demonstrates intention.  The donor’s intention is the most important element.

62.  I am fortified in this view by the comments of Pearson LJ in his judgment in In re Cole at p 192:

“As to what is necessary to constitute delivery from husband to wife, guidance is afforded by the judgment of Lord Esher in Bashall v Bashall.  The earlier part of that judgment has been read by Harman LJ, and so I need only read the concluding part of it: ‘In an action by the wife it was necessary for her to show that the husband had done that which amounted to delivery.  If the facts proved were equally consistent with the idea that he intended to deliver the thing to the wife so as to be her property, and with the idea that he intended to keep it as his own property, then the wife failed to make out her case.  He thought there was no sufficient evidence of delivery here, and the appeal must therefore be allowed.’

As I understand that passage, it is dealing with delivery, and the effect of it is that an act to constitute delivery must be one which in itself shows an intention of the donor to transfer the chattel to the donee.  If the act in itself is equivocal - consistent equally with an intention of the husband to transfer the chattels to his wife or with an intention on his part to retain possession but give to her the use and enjoyment of the chattels as his wife - the act does not constitute delivery.”

63.  It seems to me, therefore, that what really has to be proved here is that Master Yang in 1987 intended to give the Collection to Madam Lau and did something to manifest that intention.

64.  Madam Lau gives evidence that, when he uttered the words of gift, Master Yang pointed to the chest which contained them.  By reference to the cases, that gesture might possibly be regarded as indicating that he no longer intended to possess the contents of the chest, in the sense that he no longer intended to have custody of them or exercise control over them as and when the occasion arose.  There is, unfortunately, no support for Madam Lau’s evidence that the words were spoken or the gesture made, and the gesture was never even mentioned until she was cross-examined.

65.  In establishing intention, it is necessary to look not just at what happened at the time, but also at what happened later.  It was argued that later events are a matter of hindsight and therefore not impressive; and in Thomas (at 917C), Plowman J rather discounted hindsight in dealing with matters of probability.  That may be so, but obviously a person’s later actions may be consistent or inconsistent with his earlier expressed intention, and may be so inconsistent as to negative it.

66.  Here it is clear that Master Yang continued to exercise custody and control over the Collection, and its contents, as and when the occasion arose, although I do not accept that he kept jealous guard over them.  He had them brought back to Hong Kong, and he expressed an intention to Mr Yung Shing Cho to sell them by auction to fund a museum or gallery.  He exhibited some of the items in the Collection, when he wanted to do so, as if they were his own; no one ever seems to have heard that Madam Lau had any interest in them.  He gave some of them away, in his own name.  It is true that Madam Lau says that all this was done with her consent; but unfortunately no one else ever knew that or even that her consent would be required.  Even where she signed the document recording the gift to the Guangzhou Museum of Art, she signed as representative of Master Yang rather than as owner.

67.  It is said that the family members were not told of the gift because there were good reasons not to; it would have provoked trouble.  That may be so, but there were better reasons to do so.  Madam Lau says that the gift was made when Master Yang was worried about his health.  That meant that there was good reason to show to the family that the gift had been made, in order to avoid trouble later.  Everyone who has buried a family member, and by the age of 74 Master Yang must have buried a few, knows that the claims start as soon as the deceased’s last breath is drawn, if not before “Father always wanted me to have this” “Mother said she would give me that because she knew I liked it so much” and so on.  If there is no will, and no executor to step in, a lot of squabbling can ensue.  It is a matter of obvious prudence, if a gift is to be made, to make the gift clear during the donor’s life.

68.  I do not think anything can be inferred, in support of Madam Lau’s case, either from the fact that the items were exported to Canada under her name, or that she kept some of them, at different times, in the safe deposit box in her name.  Personal effects of Master Yang and Alfred were also exported under Madam Lau’s name; that is common enough in the family situation and it is no indicator of anything except convenience.  The same applies to the use of a safe deposit box.  There is nothing in either of these facts from which any inference as to intention can be drawn.

69.  The 2001 will purported to give “paintings including my collections” to Madam Lau.  This is equivocal.  It could be a confirmation of the earlier gift but it could equally be inconsistent with an earlier gift; if the paintings belonged to Madam Lau there would be no need to leave them to her by will.  There is certainly no indication that the matter was discussed with the solicitor, Mr Chung, who drafted the will, as one might have expected if there had been a gift. 

70.  The same applies to the later will, and the gift, as it obviously was, of the Harrison Court and Canadian property to Madam Lau and Alfred.  I do not think anything can be drawn from the arrangements made at this time.  Nor do I think that anything can be drawn from Mr Chung’s evidence that Master Yang was then complaining about Madam Lau “keeping her eyes on his things”.  He was an old man then, and old people sometimes sit and brood, and get things out of proportion.  In any event a person’s view of his or her spouse can change over the years.

71.  The evidence of Mr Yang Tin Yee that his father complained to him, much later, that Madam Lau had removed and put paintings into her old bank safe deposit box and without his knowledge could be taken as an indication that no gift was ever made; it certainly indicates that Master Yang thought of the paintings as his own.  But again this came long after the event, and I do not think much weight can be attached to it either way. 

Conclusion

72.  Although Madam Lau appeared to be an honest witness, her evidence of the gift is rather vague, and she only gave full details of what happened in oral evidence and particularly under cross-examination.  There is no extrinsic evidence to support what she says.  The other evidence, taken as a whole, suggests that between 1987 and his death, Master Yang treated the Collection as his own.  This is inconsistent with his having in 1987 expressed the intention in words, and further confirmed that intention by his conduct, to give the Collection to Madam Lau.  Bearing in mind that evidence of a gift by a deceased person is to be treated with suspicion, in the circumstances I cannot be satisfied that Master Yang gave the Collection to Madam Lau.

Result

73.  The plaintiff succeeds, and will have judgment.

Judgment

74.  There will be judgment for:

(1) the return and delivery by the defendant to the plaintiff of the 75 pieces from the Collection now held at the Hong Kong Heritage Museum and the two pieces now held in Vancouver;

(2) a declaration that the Collection, which then consisted of those 75 pieces plus two more kept at the residence of Master Yang in Vancouver was the property of Mr Yang at the date of his death;

(3) the costs of the action (nisi) to be taxed if not agreed.

75.  In connection with (2) above, I note that the prayer in the Amended Statement of Claim was also that the courts of British Columbia be requested to assist in the enforcement of the Order.  I have omitted an order for such a request to be made here, because I am not sure of the basis for it.  If the parties wish to be heard on this, they will have liberty to apply.