SZE KA WAI v. CHOY WAI KA

HCA 1825/2018

[2021] HKCFI 454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1825 OF 2018

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J U D G M E N T

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THE ACTION

1.  This is an action about a property known as Flat 5, 6^th Floor, Block D, Yan Ming Court, No. 100, Po Lam Road North, Tseung Kwan O, Sai Kung, New Territories, Hong Kong (“the Property”).

2.  The registered owners of the Property are the Plaintiff and the Defendant as joint tenants.

3.  By her Amended Statement of Claim, the Plaintiff claims against the Defendant, inter alia :

(i)  A declaration that the Defendant holds his half share, whether legal and/or beneficial, of and in the Property on trust for and on behalf of the Plaintiff absolutely and

(ii)  An order that the Defendant do transfer all his interest of and in the Property to the Plaintiff or as she shall direct.

4.  By his Amended Defence and Counterclaim, the Defendant denies the Plaintiff’s claim and counterclaims against the Plaintiff for, inter alia :-

(i)  Occupational rent for having been prevented by the Plaintiff from getting into the Property and

(ii)  An order for the sale of the Property.

5.  In the Defendant’s Opening Submissions, it is stated that the Defendant is no longer pursuing the remedy of an order for the sale of the Property.

THE BRIEF FACTS OF THE CASE AND THE ISSUES

6.  The Plaintiff and the Defendant had been greeting acquaintances prior to the latter part of 2010 because they each had a shop in the same shopping mall in the Po Tat Estate in Sau Mau Ping.  They started going out in about the middle of 2010 which led to their having a romantic relationship in the latter part of 2010.

7.  In February 2011, they purchased the Property, a small size flat, as joint tenants at the price of $2,850,000 by getting a mortgage loan from the Standard Chartered Bank (“SCB”).

8.  According to the Plaintiff : -

(i)  The only reason why the Defendant became her co-owner was that she was unable to obtain a mortgage loan by reason of the fact that she, being a piano teacher by profession, was not able to show that she had a regular income.  She was advised by a bank staff member of SCB that she could get someone who would be able to show that he or she had a regular income to join her in the purchase.  Then it would be possible for her to get a mortgage loan. The Defendant offered to help her by becoming her co-owner and thus enable a mortgage loan to be obtained from a bank.

(ii)  The Plaintiff and the Defendant reached an agreement that she would in fact be the sole beneficial owner of the Property and that the Defendant would assign his interest in the Property to her as and when demanded by her.

(iii)  The Plaintiff had paid all the costs and expenses for acquiring the Property, including all the mortgage instalments, all by herself.  The Defendant had contributed nothing towards the costs and expenses for acquiring the Property or towards the mortgage repayments.

(iv)  The Plaintiff and the Defendant remained as lovers until they broke up in about February 2017.

(v)  Although the Defendant would sometimes spend the night in the Property, he never really resided in it.  He certainly never cohabited with the Plaintiff in the Property.

(vi)  The Plaintiff therefore claims her relief as set out in her Amended Statement of Claim on the basis of a common intention constructive trust.

9.  According to the Defendant : -

(i)  Although he and the Plaintiff had only started their relationship in the latter part of 2010, by the beginning of 2011, they were so deeply in love that they wanted to buy a flat together and start cohabiting.  He admitted, however, that they did not think of marriage, at least, not until 2016.

(ii)  They agreed to purchase the Property by each contributing half of the costs and expenses for acquiring the Property and to pay the mortgage instalments in equal shares.  They would become co-owners each having a half interest in the Property.

(iii)  It was he who contacted an estate agent known to him and located the Property.

(iv)  It was he who had arranged for the mortgage to be granted by SCB after having got a referral by a mortgage agency by the name of “M Referral”.

(v)  Although he did not make contributions by exactly calculated half amounts, he did give money initially and subsequently regularly to the Plaintiff, mostly in cash and sometimes by cheques drawn by his own customers, to cover the costs and expenses for acquiring the Property, for payment of the mortgage instalments, renovation, and household expenses, so that whatever money he had given to the Plaintiff would actually work out to be about half of all the total costs and expenses for everything.

(vi)  He expressly denies the agreement between him and the Plaintiff as alleged by the latter.

(vii)  After the purchase of the Property, he in fact moved into it and cohabited with the Plaintiff until they broke up in about February 2017.  The Plaintiff changed the lock to the Property and he could no longer gain access to the Property.

(viii)   Thus, he is truly entitled to a half interest in the Property both legally and beneficially.  

(ix)  He is further entitled to counterclaim for occupational rent for having been prevented by the Plaintiff from gaining access to the Property as from about February 2017.

10.  In the circumstances of this case, I take the view that it will be more convenient for me to deal with the law after I have made my findings of fact.

THE EVIDENCE

11.  There were 3 witnesses called on the Plaintiff’s side, namely :-

(i)  The Plaintiff;

(ii)  A Mr Cheung Kwai Sang Samson (“Cheung”); and

(iii)  A Mr Wong Ho Tin (“Wong”).

12.  There were 2 witnesses called on the Defendant’s side, namely :-

(i)  The Defendant; and

(ii)  A Mr Hung Tsz Ho (“Hung”).

13.  I shall first set out the evidence of the individual witnesses and my assessment of each of them before I go on to analyse the evidence overall in relation to the various major factual issues in particular.

The Plaintiff

14.  The Plaintiff made 2 Witness Statements.  Her evidence can be broadly summarized as follows :-

(1)  She has been a piano teacher and a concert pianist with about 20 years experience in the profession.

(2)  In about 2004, she set up a sole proprietorship business under the name “Clarity Music” and rented a shop on the ground floor of the shopping mall in Po Tat Estate where music lessons were being provided. Eventually, musical instruments were also sold there.  The business suffered a loss in the early stages because the rental for the shop was high.  She moved her shop subsequently to a higher floor in the shopping mall so as to pay less rental.  As a result, the business turned around and became profitable.

(3)  She continued to give her own students piano lessons on a private freelance basis.

(4)  Her students would normally pay for the lessons in cash.  Her earnings were initially in the region of $20,000 per month, gradually increasing to the level of up to $40,000 per month in 2010.

(5)  By around late 2010, she had managed to save up to well over $1 million, in fact, in the region of $1.5 million or $1.6 million.

(6)  Prior to February 2011, she had been sharing a flat in the Tseung Kwan O district with a woman surnamed Mui (“Mui”).

(7)  Gradually, her relationship with Mui deteriorated, partly because she was giving her students piano lessons at home which caused disturbance and inconvenience to Mui.

(8)  She had always dreamt of owning her own home where she would be able to keep pets, more particularly, cats.

(9)  She therefore started looking for a flat to purchase and finally located the Property.

(10)  She made inquiries with various banks about obtaining a mortgage loan.  Her applications had been rejected by HSBC because she could not show that she had a regular income.  She also applied to the Bank of China (HK) and SCB.  When she approached SCB, she was advised by a staff member of that bank that it would be difficult for her to obtain a mortgage loan because she could not show that she had a regular income and that she should try to get someone with a regular income or with a stable financial background to join her in the purchase of any property.

(11)  In the meantime, she had started a romantic relationship with the Defendant in the latter part of 2010.

(12)  On learning about this, the Defendant offered to assist her by using his financial background based on the fact that his parents had been in the pharmacy business and owned some medicine shop.  He could provide proof of his stable income as a director of his parents’ family company by the name of “Po Man Dispensary Company Limited” (“Po Man”).  She trusted him because he was her boy friend and accepted his offer of assistance.

(13)  It was decided that they would acquire the Property as co-owners.  She had no idea about the distinction between a joint tenancy and a tenancy-in-common.

(14)  They together applied to SCB for a mortgage loan of just under $2 million for the purchase of the Property.  In the process of the application, each of them supplied documentary information to SCB either individually or jointly.

(15)  Subsequently, SCB agreed to grant their application for a mortgage loan in the sum of $1,995,000.

(16)  The conveyancing was handled by a firm of solicitors called Gary Mak, Dennis Wong & Chong (“GMDWC”) which, according to the Plaintiff, was recommended by the estate agent.

(17)  As mentioned above, it is the case of the Plaintiff that she had paid all the costs and expenses for the acquisition of the Property, including all mortgage repayments, and that the Defendant has not paid a cent towards the same.

(18)  The Provisional Agreement for Sale and Purchase (“the PSPA”) shows that an initial deposit of $85,500 was paid by way of a cheque drawn by the Plaintiff alone.

(19)  On the signing of the Agreement for Sale and Purchase (“the SPA”), another sum of $199,500 had to be paid as further deposit and part payment.  The Plaintiff says she paid that by herself with a cheque drawn on her account with HSBC.

(20)  Completion for the purchase of the Property was scheduled to take place on 28 March 2011.  The purchasers were to make a final payment to the solicitors for the balance of the purchase price (less the mortgage loan in the sum of $1,995,000) together with all costs and disbursements in the total sum of $573,150.  Again the Official Receipt issued by GMDWC dated 23 March 2011 shows that that payment was made by a cheque drawn by the Plaintiff alone.

(21)  It is to be noted that the Defendant does not dispute the fact that the abovementioned 3 sums were paid by the Plaintiff with cheques drawn on her own bank account.

(22)  The Plaintiff says that immediately after the signing of the PSPA, it was orally agreed and commonly understood between the Defendant and herself that : -

(i)  The Defendant would be registered as a nominal co-owner of the Property purely for the purpose of securing the mortgage from SCB.

(ii)  The Defendant would hold his share on the Property on trust for her and on her behalf.  He would transfer his interest of and in the Property back to her if and when she asked him to.

(iii)  As she would be the only true owner of the Property, she would be solely responsible for paying the initial deposits and mortgage loan instalments for the purchase of the Property as well as all related expenses.

(23)  She says that the allegation by the Defendant that he and the Plaintiff purchased the Property for the purpose of their cohabitation was a complete lie.  She says that the Property was all along purchased by her as her own home with her cats.

(24)  The mortgage instalments over 30 years came to just about $6,400 per month which was less than the rental she had to pay when she shared the previous flat with Mui.

(25)  It was in August or September 2011 that she discovered that the Defendant was married because, on one occasion, she and the Defendant were accosted in the carpark by the Defendant’s then wife.  The Defendant told her that he and his then wife had separated since early 2010 and that he was planning to divorce her.

(26)  Although she and the Defendant were lovers until their break up in early 2017 and although the Defendant would sometimes spend the night in the Property, they never cohabited there.

(27)  During their relationship, there were a few occasions on which the Plaintiff wanted to break away from the Defendant, but every time he persuaded her not to leave her.

(28)  Sometime in 2016, the Defendant suggested that the Plaintiff should venture into the pharmacy business.  They located a shop in the shopping mall in Po Tat Estate and went into a joint venture by starting a pharmacy shop under the name of “Wiseman”.  I am informed during the course of the trial that the Plaintiff and the Defendant are currently involved in litigation in the District Court over the business of Wiseman.  This, however, is of no concern to me in the present case.

(29)  The reason for the final break up in early 2017 was that someone by the name of Penny Choy suddenly sent to the Plaintiff a message on her mobile phone notifying her that she was the new girl friend of the Defendant.  The Plaintiff got very angry about this because she realized that Penny Choy was an older lady but was apparently very rich.  She became very disappointed and upset with the Defendant for being willing to sell himself for money.

(30)  The Plaintiff wanted the Defendant to take away all his personal belongings in the Property.  As she did not wish the Defendant to go to the Property again, she asked Hung who was an assistant in the employment of Wiseman to help to take away the Defendant’s personal belongings from the Property and return the same to the Defendant.  She even changed the lock in the main door of the Property so that the Defendant could no longer access it with the key which he had.

(31)  The Plaintiff was so upset that she was not in the mood to ask the Defendant to assign his half share in the Property back to her immediately.  After she had got a new boy friend in the latter part of 2011, however, she decided to do so.

(32)  In late 2017, the Plaintiff approached a firm of solicitors, Messrs C K Charles Ho & Co (“CKCH”) with a view to asking them to help her to prepare documents for the Defendant to assign his half interest in the Property back to her.  She was received by Wong who was a conveyancing clerk in CKCH.  Wong advised her that if it was her intention to have the Property re-mortgaged, she should not ask the Defendant to assign his half share to her by way of a deed of gift because the banks would normally be reluctant to grant a mortgage on the basis of a deed of gift.  She should therefore proceed by way of a sale and purchase with a consideration being stated.  It was decided that a consideration of $4.5 million for the half share should be adopted.  It represented a rough estimate of the value of a half share of the Property.  She was further advised to instruct a separate firm of solicitors to act for her in the purchase whilst CKCH would act for the Defendant as vendor.  She accordingly instructed the firm of Messrs Yung Yu Yuen & Co (“YYY”) to act for her.

(33)  After CKCH and YYY had prepared all the necessary documentation for the conveyance, she telephoned the Defendant to ask him to go with her to the office of CKCH for the purpose of signing documents for assigning his half share in the Property to her.  The Defendant agreed.

(34)  On 8 January 2018, the Plaintiff picked up the Defendant in her car and drove to Mongkok to the office of CKCH.  On that occasion, Wong had instructed his colleague, Cheung, to deal with the matter in his place.  On arrival of the Plaintiff and the Defendant, Cheung explained to them the effect of the documents to be executed, namely, that the transaction was in the nature of a sale by the Defendant of his half share in the Property to the Plaintiff at a consideration of $4.5 million.  The Defendant stated that he was willing to assign his half interest to the Plaintiff but questioned why a consideration of $4.5 million was set out in the documentation.  He said that he was concerned about liability for tax because he was actually not going to receive any consideration for the transfer of his half share to the Plaintiff. After Cheung had explained to him that he would not be liable for any tax, the Plaintiff still said that he would like to consult his own lawyer before he would sign the documents.  All the documents had in fact already been signed by the Plaintiff by that time.  Anyway, since the Defendant refused to sign the documents, there was nothing that the Plaintiff could do.  The Plaintiff was adamant that she did not take away any of the documents from the office of CKCH.  She drove the Defendant back to his shop.  In the car, the Defendant begged her to get back together with him as he still loved her very much.  She then told him that she had got a new boy friend.  The Defendant became very sad and angry and said that he had done a lot for her in the past.

(35)  After that occasion, the Defendant refused to go on to transfer his half share in the Property back to the Plaintiff.  They then began to have disputes in relation to Wiseman.

Wong

15.  Wong’s evidence is basically corroborative of the evidence of the Plaintiff.  He says that the Plaintiff was just a walk-in client of his firm.  He confirmed that he had given advice to the Plaintiff about the mode of the proposed assignment by way of a sale and purchase as opposed to a deed of gift very much in the same way as related by the Plaintiff.  He also confirmed that he had instructed Cheung to deal with the matter in his place on 8 January 2018 because he would be out of the office on that day.  He also confirmed that, when he returned to the office subsequently, he was informed by Cheung that the Defendant had refused to sign the documents on 8 January 2018 for the reason that he stated that he wished to seek independent legal advice regarding the consideration set out in the proposed Assignment.

Cheung

16.  His evidence is corroborative of the evidence of both the Plaintiff and Wong.  His evidence is as follows : -

(1)  Before 8 January 2018, Cheung had briefly explained to him the facts of the case and asked him to explain the documents to the Plaintiff and the Defendant on 8 January 2018 and to witness their signatures on the conveyancing documents.

(2)  On 8 January 2018, the Plaintiff and the Defendant attended his firm’s office.  They sat side by side of each other in the conference room and there was nothing odd about them.  He then explained the contents of the documentation to them.  The Plaintiff signed some of the documents first.  He remembered clearly that, upon hearing that a consideration of $4.5 million was stated in the proposed Assignment, the Defendant voiced out his concern about liability for tax.  The Defendant said that he was willing to transfer back his half share in the Property to the Plaintiff but questioned why a consideration had to be stated.  He was concerned that there might be tax implications since in fact he was not going to receive payment of the stated consideration or any consideration.  He explained to the Defendant that no tax would be payable by him.  The Defendant said that he would still want to consult his own lawyer before signing the documents.  The Plaintiff and the Defendant then left together calmly.  The Plaintiff did not take any of the documents away.

(3)  Upon the return of Wong to the office, he related to Wong as to what happened on 8 January 2018.

(4)  He remembered what happened very clearly as it was very rare for clients to attend his office for the purpose of signing documents and then refuse to sign the same.

The Defendant

17.  The Defendant has also made 2 Witness Statements.  His evidence can be broadly summarized as follows : -

(1)  The Defendant was married to his ex wife.  They were living in a flat which belonged to the Defendant’s parents.  The address of the flat was Flat C, 12^th Floor, Block 2, The Metropolis, 8 Mau Yip Street, Tseung Kwan O, Kowloon (“the Metropolis Flat”).

(2)  By the early part of 2010, the Defendant and his ex wife decided to break up and they separated.  He said that his ex wife was from the Mainland and therefore she would go back to the Mainland very often. According to the Defendant, the main reason for their break up was that his ex wife could not get along with his parents.

(3)  Although he and the Plaintiff had only started their romantic relationship for a few months from the latter part of 2010, by February 2011, they were so deeply in love that they decided to buy a property jointly and cohabit together.  Their intention to do this had also been reinforced by the fact that there was friction between the Plaintiff and her flat mate Mui.  Such friction arose as a result of his visits to the Plaintiff which annoyed Mui and not as a result of her giving piano lessons in the shared flat as alleged by the Plaintiff.

(4)  In his oral evidence, the Defendant said that in fact the Plaintiff never gave piano lessons to students in the shared flat. Her only piano student in the shared flat was himself after he had purchased a second-hand Yamaha piano for $20,000 odd and gave it to her as a gift which she put in the shared flat.

(5)  He said that it was agreed between him and the Plaintiff that they would contribute to the purchase price of the flat to be purchased on an equal basis and that they would own the same equally.

(6)  It was he who had located the Property through an estate agent in Midland Realty by the name of May.

(7)  It was also he who initiated the process of applying for a mortgage loan after he had been given referrals by the mortgage agency “M Referral”.

(8)  According to the Defendant in his oral evidence, he initially contributed the sum of $400,000 towards the purchase of the Property by remitting from his bank account into the Plaintiff’s bank account the sum of $300,000 and by giving her cash in the sum of $100,000.

(9)  He also says that he contributed to the renovation cost of the Property as well as the purchase of air-conditioners and other household goods, such as the hi-fi system etc.

(10)  Furthermore, he regularly put a lot of cash in sums of tens of thousands of dollars in a drawer in the Property for the Plaintiff to take for the upkeep of the Property and for household expenses. He was in the habit of carrying on him a lot of cash which was paid to him by his various customers in the pharmacy business and he would seldom bank such sums in cash.

(11)  In addition, he would also give to the Plaintiff cheques issued by his customers on which the name of the payee was left blank. What he would do would simply be to fill in the name of the Plaintiff as payee and then give the cheques to her or let the Plaintiff fill in her own name as payee for her to use the money.

(12)  Despite all that he did as stated above, he never kept any account or record as to how much money he had given to the Plaintiff.  He reckoned however that what he had given to her so far would amount to about half of the price and expenses for the purchase of the Property and the monthly mortgage instalments.

(13)  One item which he was certain he paid was a sum of $28,500 to the estate agent, Midland Realty Agency (“Midland”), as the agency fee for the purchase of the Property.  He was able to show such an item in one of his credit card account statements.

(14)  He admitted that, although he had moved into the Property to cohabit with the Plaintiff, he never changed the record of his residential address so that his bank account statements and credit card statements were still sent to the Metropolis Flat.

(15)  Despite the fact that he had moved to live with the Plaintiff at the Property, he still kept the Metropolis Flat for the use of his wife whenever she came back to Hong Kong, because he still treated her as a member of his family and they were on friendly terms.  He would go back to the Metropolis Flat from time to time and would sometimes allow his sister and her husband to use it at weekends.  That would explain about the consumption of electricity and gas at the Metropolis Flat for some months.

(16)  Although he had separated from his wife since 2010, he did not institute divorce proceedings until 2016.

(17)  He says that just before the break up with the Plaintiff in February 2017, he gave a sum of $100,000 in cash to the Plaintiff for the purpose of paying mortgage instalments.

(18)  Regarding the occasion on 8 January 2018 when he and the Plaintiff went to the office of CKCH to sign documents, he gave a version which is completely different from that given by the Plaintiff and Cheung.  As I intend to deal with this part of his evidence in detail in my analysis of the major factual issues below, I shall not set out the same here.

Hung

18.  His evidence can be summarized as follows : -

(1)  He got to know the Plaintiff because his younger brother had been to Clarity Music to learn to play the piano in 2008.

(2)  He also got to know the Defendant subsequently.

(3)  He had been to the Property as a guest of the Plaintiff and the Defendant.  He and his brother and some music students were invited there to have a hot pot dinner.  They also played video games with their mobile phones there.  He saw many photos of the Plaintiff and the Defendant together at the Property.  He saw that the Defendant seemed to be very familiar with where things were located in the Property.  He therefore felt that the Defendant appeared to be the master of the house.

(4)  At the beginning of 2017, she was invited by the Plaintiff to work at Wiseman as a part-time assistant.

(5)  In about March 2017, one day, he was asked by the Plaintiff to go to the Property to help to move the personal belongings of the Defendant to Wiseman so as to return the same to the Defendant.  He agreed.

(6)  After that, on one morning, the Plaintiff drove him to the Property.  They both helped to pack some clothes, including many underpants, of the Defendant and some other of his personal belongings into two large, red, white and blue plastic bags.  There were also 8 – 10 tennis rackets and a box of about 100 tennis balls.  They then moved the abovementioned items to the car of the Plaintiff.  The same were later deposited into the mezzanine floor of Wiseman and the Plaintiff asked him to notify the Defendant to take back his things.

(7)  He frankly admitted that his idea that the Defendant had been residing at the Property was purely based on his observations of the matters set out above.  Other than that, he had no personal knowledge of the true situation.

MY ASSESSMENT OF THE WITNESSES

19.  At this juncture, I would set out the impression which I have formed about the 5 witnesses.

(1)  My view of the Plaintiff is that by and large she was telling the truth.  Although in relation to some matters, such as the question of the payment of the agency fee to the estate agent, her answer might not be entirely satisfactory, I am prepared to give her some allowance on the basis that the incident took place just under 10 years ago and that her memory might not have been accurate.

(2)  My impression of Cheung is that he is an honest and truthful witness.  He came to court to give evidence on subpoena.  He and his firm are no longer acting for the Plaintiff.  I cannot see that he has any motive to tell an untruth in favour of the Plaintiff.  He was completely unshaken in cross-examination.  I find him to be an honest and truthful witness.

(3)  My impression of Wong is very much the same as my impression of Cheung.  He likewise came to court on subpoena.  I also find him to be an honest and truthful witness.

(4)  I take the view that the Defendant is obviously a very clever person and a quick thinker.  For every question, he always seemed to have an answer, although very often not convincing.  Sometimes when he felt that he was being cornered, he would become evasive, for instance, by flipping through the trial bundle before him, apparently trying to buy time to think of a good answer.  Many parts of his evidence I do not believe to be true.  I shall deal with those in my analysis below.  It is noteworthy that in his final submissions, counsel for the Defendant chose to adopt a somewhat negative approach regarding the credibility of the Defendant.  Instead of urging the Court to find the Defendant to be an honest witness, he just submitted that even if the Court were not to believe in the truthfulness of the Defendant, it did not mean that the Court should accept the evidence of the Plaintiff as being truthful and that, the burden being on the Plaintiff to show that the registered legal title should be upset, her case should fail.  This is perhaps an indication of the quality of the Defendant’s evidence even in the eyes of his own counsel.

(5)  As for Hung, my view is that he is quite a fair witness who was trying to tell the truth.  I do not find him to be biased one way or another.

20.  I should add that my view of the witnesses set out above has been formed as a result of my overall assessment of their evidence, taking into account the inherent probabilities or improbabilities of their respective evidence on particular matters, the sufficiency or insufficiency of documentary or other evidence in support of their evidence and their respective conduct in the course of the proceedings leading up to the trial.  The above list is not exhaustive.

MY ANALYSIS OF THE MAJOR FACTUAL ISSUES

21.  Many factual issues have been raised between the parties, some are of major importance and some are of comparatively minor or even peripheral importance.  I intend to concentrate on the major issues which will be decisive of the case.

22.  In my judgment, there are four major factual issues in the case :-

(1)  The financial contributions made by the Plaintiff and the Defendant (if any) towards the initial purchase of the Property, the mortgage repayments and the household expenses.

(2)  Whether the Defendant did cohabit with the Plaintiff at the Property.

(3)  What happened on 8 January 2018 when the Plaintiff and the Defendant went to the office of CKCH.

(4)  What was the agreement between the Plaintiff and the Defendant in relation to the purchase of the Property.

(1)  The financial contributions by the Plaintiff and the Defendant (if any) towards the purchase price of the Property, the mortgage repayments and the household expenses

23.  As related above, there is no dispute that the initial cost for acquiring the Property, including the initial payment towards the purchase price, the stamp duty and legal costs, in the region of $900,000 in total was paid with cheques drawn on the Plaintiff’s bank accounts.

24.  The Defendant alleged that he did contribute to such initial payment by paying the sum of $400,000 to the Plaintiff by remitting the sum of $300,000 from his bank account into her bank account and by paying her the sum of $100,000 in cash.  He also says that he paid to Midland the sum of $28,500 by his credit card as commission for the purchase of the Property.

25.  In relation to the question of the supporting evidence for the allegation of the remittance of the $300,000 to the Plaintiff’s account, the Defendant says that he did not keep any bank statement showing the same.  Furthermore, he says that he could not get his bank to produce the record of that remittance because, by the time that he inquired with the bank, it had been more than 7 years after the date of the transaction and banks would only keep records of transactions for 7 years.

26.  In relation to the same transaction the Defendant alleged in his oral evidence that there was in existence a remittance slip.  He says that the reason why his ex wife knew about his purchase of the Property was that she had discovered the remittance slip for $300,000 which he kept at the Metropolis Flat.  When he was questioned by me as to how his ex wife could have related the remittance slip to his purchase of the Property, he said that his ex wife accidentally met an estate agent in Midland who worked in the same vicinity as the Metropolis Flat and the estate agent told her about his purchase of the Property.  Later in his oral evidence, he added that his wife also found “the agreement” relating to the purchase of the Property and thus got to know about it.

27.  The Defendant was then asked whether he still had the remittance slip; he said that his ex wife had taken it away.  He was next asked as to whether after the present litigation had started he tried to retrieve the remittance slip from his ex wife who he said was still on good terms with him.  His answer was that he did ask her but that she said she did not know what she had done with it.

28.  It is to be noted that in the 1^st Witness Statement of the Defendant, he said the following in paragraph 25 :-

“25. I made payments in various ways. I recall that for the purpose of paying further deposit and other incidental expenses (eg Stamp duty and legal fees), I gave her a big sum of about $400,000, partly by cash and partly by a transfer from my Bank of China account no 012-376-1-006854-6. After this litigation started in August 2018, I tried to apply to the bank for my bank statements back in February/March 2011 to prove the transfer. However, I was told by the bank that they did not keep my record anymore as it was more than 7 years ago.”

He never referred to the existence of the alleged remittance slip or to its having been taken by his ex wife or to any effort by him to retrieve it from his ex wife.

29.  In all the circumstances, I find the above explanation by the Defendant regarding the remittance slip for $300,000 to be incredible.  I do not accept his story that the discovery of the remittance slip would lead his ex wife to learn from an estate agent the fact that he had purchased the Property.  I also do not accept his subsequently added evidence that his wife also discovered “the agreement” relating to the purchase of the Property.  The allegation is too far-fetched to be true.  I find that the Defendant has made use of the fact that banks do not keep records for more than 7 years as an excuse for just making bald allegations about payment of money by him to the Plaintiff which are untrue.

30.  I further find his allegation that he paid the Plaintiff $100,000 in cash without any evidence in support to be just another bald allegation which is untrue.

31.  Even assuming that the Defendant did pay the commission of $28,500 to Midland and that the Plaintiff was wrong in saying that she thought that the agent’s commission had been included in GMDWC’s final statement of costs or that she did not know that the Defendant had paid the same because he had not told her, I do not think that the point has any real significance in the circumstances of this case.  It could have been regarded as a gift to the Plaintiff or a small contribution by the Defendant on the purchase of the Property.  After all, they were lovers at that time and were apparently buying each other gifts from time to time.  I shall refer to the matter about the Plaintiff buying a car for the Defendant below.

32.  In paragraph 26 of the 1^st Witness Statement of the Defendant, he says as follows : -

“26. I also paid for a number of furniture and appliances, usually by my Bank of China credit card but sometimes by cash. To be best of my recollection, they included a television (Sharp, 46”, Black), a hi-fi system (Onkyo Model 906 amplifier, Deli 4 stands speaker), a TV cabinet (from DSC furniture), 2 air-conditioners (Resonic), a sofa, a refrigerator (from Fortress), a bookshelf and a desk (from DSC furniture), and a second hand Yamaha piano (I purchased from a private seller on internet).”

33.  First of all, regarding the allegation that the Defendant purchased 2 air-conditioners to be put in the Property, it appears clearly from the PSPA that the previous owner was leaving 4 air-conditioners behind.  The Plaintiff denies that the Defendant ever bought any air-conditioner to be put in the Property.  When the Defendant was cross-examined about this, he said that 2 of the air-conditioners which were in the sitting room were not cool enough and therefore had to be changed.  I do not accept his explanation.

34.  Regarding the allegation by the Defendant that he purchased a second-hand Yamaha piano: “(I purchased from a private seller on internet)”, under cross-examination, he said that actually he purchased the piano and had it put in the flat previously shared between the Plaintiff and Mui instead of the Property.  He said that he had paid about $20,000 for it.  He also alleged that the piano was selected by the Plaintiff.  Such allegation clearly contradicts what is stated in paragraph 26 of his 1^st Witness Statement.  The Plaintiff denies that he ever bought her a piano.

35.  I do not accept his story that he bought a piano to give to the Plaintiff to be put in her previous flat or in the Property as he has alleged in his two contradictory versions.  I simply cannot believe that he would off his own bat purchase a piano to give to someone like the Plaintiff who is a piano teacher herself or that she did not already have a piano at home.  I think he has simply invented this.

36.  In any event, even assuming that the Defendant had purchased all the items for the Property as set out in paragraph 26 of his 1^st Witness Statement, I do not believe that they are items of any great value which are of significance in the circumstances of this case.

37.  In paragraphs 27 – 29 of the 1^st Witness Statement of the Defendant, he says as follows : -

“27.  As to monthly mortgage repayment, the way we did was this: I gave money to the Plaintiff for my share and she would add her share, and she then deposited the necessary amounts to the bank account in our joint names opened for the purpose of mortgage repayment.  As far as I knew, she did not deposit money to the joint account every month.  She usually did it once in a few months irregularly.  I trusted she could handle the “finance” part of our home well and she did handle it well.  There was no default of mortgage repayment.    

28.  As to how I gave her money, there were a few ways.  Sometimes, I gave her cash directly.  Sometimes, I put cash in a drawer at the Property.  The amounts varied each time.  The Plaintiff could take the cash any time for mortgage repayment as well as miscellaneous household expenses.  Whenever I saw there was not much money left in the drawer, I would put money again.

29.  Sometimes, I received cheques from the buyers of my company Jadeway for payment of purchase of goods from Jadeway.  Then I asked them to leave the payee name blank.  Then I gave those cheques with the payee name blank to the Plaintiff.  The Plaintiff would then write her name on the cheques and deposited the cheques to the bank for the purpose as I mentioned above.  These buyers included Hong Kong Kowloon Medicine Co, Cheung Wang Medicine Company, Wingram International Co Ltd, Fook Hing Shing Co Ltd.  These companies had no relation to the Plaintiff.”

38.  First of all, I find it extremely odd that there should be transactions involving payments of large amounts in cash between what appear to be legitimate trading companies or firms as named by the Defendant in doing lawful business.  All such companies or firms on the side of the Defendant and of the customers would presumably have to file tax returns with supporting audit reports.  I can think of no reason why such transactions had to be done by way of cash payments which would make the work of the auditors difficult.  The Defendant never gave any satisfactory explanation as to why the transactions had to be done by way of cash payments in large amounts, except that he mentioned something about discounts.  He also had produced no invoices, receipts or any other record to support such allegation.  He further said that he was in the habit of carrying large amounts of cash on him.  On the other hand, he had not adduced any evidence to support his allegation that he had such habit other than his own say so. If, as he alleges, he did not really keep any count of the money he had given to the Plaintiff throughout the few years they were together, I do not know how he was in a position to say that he had contributed appropriately 50% towards the mortgage repayments.

39.  In the witness box, the Defendant said that, before he parted with the Plaintiff in February 2017, he gave her a sum of $100,000 in cash as his share of mortgage repayments.  He had not said that in either of his 2 Witnesses Statements.  I think he just invented that as he went along.

40.  The Plaintiff admitted that the Defendant did give her money in cash from time to time in amounts of a few thousand dollars.  They were only for the purpose of her settling bills and invoices on his behalf and not for the purpose of any mortgage repayment.

41.  Regarding the allegation by the Defendant that he had given to the Plaintiff cheques drawn by his customers on which the name of the payee was left blank, the Defendant himself had never produced any copies of cheques or other documentary evidence to support such allegation.  On the other hand, it was the Plaintiff who had disclosed copies of a few cheques with herself as payee.

42.  In respect of 2 of the cheques drawn by a Wingram International Co. Ltd. (“Wingram”) dated 29 July 2013 and 5 August 2013 each for the sum of $5,000, when the Plaintiff was being cross-examined about those 2 cheques, she said that they had been given to her by a lady called Yiu Lam who was the mother of one of her students in settlement of tuition fees.  When the Defendant was cross-examined about those 2 cheques, at first he said that Wingram was one of his customers (as he has said in paragraph 29 of his 1^st Witness Statement) and that the 2 cheques were given to the Plaintiff by him.  Later, under further cross-examination, he changed his evidence and agreed that those 2 cheques were given to the Plaintiff by her student’s mother.

43.  The Plaintiff produced copies of 2 other cheques payable to her :-

(i)  A cheque dated 29 June 2013 and drawn by Hong Kong Kowloon Medicine Company for $23,846 and

(ii)  A cheque dated 3 July 2013 and drawn by Cheung Wang Medicine Company for $12,618.

She explained that on 14 February 2012, which was Valentine’s Day, she bought a second hand Audi S3 car as a gift to the Defendant.  She paid the sum of $125,000 as down payment to the car dealer, as shown by a copy of the bank record for the purchase of a cashier order produced by her. Subsequently, she and the Defendant had an argument and the Defendant gave her those 2 cheques saying that he did not want her gift of the car and the 2 cheques should be treated as partial repayment of the price for the car by him to her.  Later, they reconciled with each other and there was no further repayment by him.  The Defendant denied that it was a gift and said that she was only paying the price on his behalf.

44.  I accept the Plaintiff’s evidence that she did make payment to the car dealer as a gift for him, especially when she said that she would be able to use the car herself.

45.  The Plaintiff referred to copies of 3 further cheques payable to her :-

(i)  A cheque dated 10 March 2016 drawn by Cheung Wang Medicine Company for $37,410;

(ii)  A cheque dated 11 March 2016 drawn by Fook Hing Shing Co. trading as Yan Bo Tong Medicine Company for $2,600 and

(iii)  A cheque dated 30 March 2016 drawn by Po Man for $2,262.

She said that they were reimbursement to her by the Defendant because she had paid for their ski trip in Hokkaido in about February 2016.

46.  When the Defendant was cross-examined about those 3 cheques in 2016, he could not give a satisfactory answer as to why they were given to the Plaintiff.  I accept the Plaintiff’s evidence about the reason for her having been given those 3 cheques.

47.  In all the circumstances set out above, I find as facts the following :-

(i)  The Plaintiff had paid for the purchase of the Property, including all costs and disbursements (except for the commission of $28,500 to Midland), the down payment and all mortgage repayments, all by herself.

(ii)  Except for the commission of $28,500 paid to Midland, the Defendant did not contribute to any part of the purchase price, mortgage instalments and costs and disbursements for the purchase of the Property, whether by way of cash or cheques drawn with the Plaintiff as payee.

(iii)  Even if the Defendant had purchased certain household goods which were put in the Property, they were of relatively small value and could not have formed the basis for any beneficial interest in the Property to be attributed to him.

(2)  Whether the Defendant did cohabit with the Plaintiff at the Property

48.  The Plaintiff is adamant that she and the Defendant never intended to set up home together. They never intended to get married.  Even according to the Defendant, they did not think about marriage until 2016.  She had always wanted to purchase a home for herself and her cats.  Her evidence is that the Defendant had kept his own home in the Metropolis Flat and would only spend the night in the Property occasionally.

49.  The Defendant admitted that he never changed his correspondence address with banks and other institutions to the Property until 2019.  His bank statements and credit card statements were still being sent to the Metropolis Flat address.

50.  The Defendant disclosed copies of his BOC Credit Card Statements for 2011.  He drew attention to the fact that his account had been debited with the sum of $471 on 10 June 2011 by China Light and Power Co. Ltd (“China Light”) for electricity consumption at the Metropolis Flat.  Then there was no more debiting by China Light for electricity consumption until 17 October 2011 when there was a debit in the sum of $964.  He sought to rely on such fact to prove that he was no longer residing at the Metropolis Flat after June 2011 and had moved to live in the Property.  He said that the debit for $964 could be explained by the fact that his ex wife would go back to the Metropolis Flat from time to time when she returned to Hong Kong and that his sister and her husband or boy friend would sometimes stay at the Metropolis Flat over weekends.

51.  I find that the Defendant’s argument based on electricity consumption is far from being convincing.  First, the Defendant chose not to produce his credit card statements after 2011.  Thus, it is not known what the position about electricity consumption at the Metropolis Flat was from the latter part of 2011 onwards.  Secondly, there is no evidence about the billing system of China Light or whether the non debiting for electricity consumption between June and October was caused by China Light staff being unable to carry out meter reading at the Metropolis Flat.  Thirdly, the Defendant says that he would go back to the Metropolis Flat from time to time and that his wife would also stay there from time to time.  It is therefore improbable that there was zero electricity consumption between June and October 2011.  It is also to be noted that the sum debited in October 2011 was about double the sum debited in June 2011.  Thus, it was possible that the sum debited in October 2011 actually covered the electricity consumption between June and October 2011.

52.  I also do not find that the items of clothing and tennis rackets and balls retrieved from the Property by Hung for the Defendant amount to proof that the Defendant cohabited with the Plaintiff at the Property.

53.  Furthermore, in my view, the evidence of Hung about his observation and his conclusion that the Defendant was the master of the house is just neutral.  Bearing in mind the relationship between the Plaintiff and the Defendant, it is not surprising that the Defendant would be familiar with where things were put inside the Property.

54.  In light of the above and the fact that the Defendant did not start divorce proceedings against his ex wife until mid-2016, I find that the Defendant still kept a home with his ex wife at the Metropolis Flat and that he never cohabited with the Plaintiff at the Property.  It is to be noted also that the credit card statements for 2011 disclosed by the Defendant show that his ex wife, Au Yeung Pui Yee, was still regularly using her subsidiary card under the same account.  This at least casts doubt on whether the Defendant had really separated from his ex wife, especially in view of the fact that divorce proceedings had not been started until the middle of 2016.

(3)  What happened on 8 January 2018 when the Plaintiff and the Defendant went to the office of CKCH

55.  As mentioned above, the Defendant gave a totally different account of what happened on 8 January 2018 from that given by the Plaintiff and Cheung.

56.  In his 1^st Witness Statement, the Defendant said the following :-

“The Plaintiff’s fraudulent act

37. In early 2018, the Plaintiff presented to me a set of legal documents. I briefly looked at those documents. I recognized that they were conveyancing documents (now I identify them as Item 15 of the Plaintiff’s List of Documents). The documents bore signatures of the Plaintiff. She asked me to sign on those documents.

38. In Wiseman, the Plaintiff was responsible for the “money” related duties. She was responsible for depositing income to the bank issuing cheques for expenses such as salaries and managing the company’s accounts. She said to me that Wiseman required additional cash for operation. She said it was necessary to borrow additional loan from bank, such additional loan had to be further secured by a mortgage against the Property. She said to me that if the Property was in joint names, it would be difficult to borrow the loan. But if the Property was in her sole name, it would be much easier. Hence, she had prepared the documents to make the Property to be in her sole name.

39.  I found her reasons not truthful.  From the operation of Wiseman I knew that Wiseman should have sufficient cashflow and did not need further cash.  I enquired her why there was such a need.  She did not explain.  I also enquired her why it would be easier to borrow money if the Property was in her sole name.  She told me that she would find someone to prepare her own financial account and would easily borrow a loan in her sole name.  I found her explanation absurd.  I refused to sign.  She was angry and then took the documents away.”

57.  It will be noted that the Defendant did not make any mention at all of the visit to the office of CKCH on 8 January 2018.  It is to be noted also that by the Order of Master Au-Yeung dated 15 February 2019, the parties were ordered to file and exchange their witness statements.  I believe that the exchange eventually took place on 31 July 2019.  Thus, as at the time when the Defendant prepared his 1^st Witness Statement, he would not have seen the 1^st Witness Statement of the Plaintiff, the Witness Statement of Cheung and the Witness Statement of Wong and would not have known about their evidence relating to what happened on 8 January 2018.

58.  Subsequently, the Defendant filed his Supplemental Witness Statement in order to deal with what happened on 8 January 2018.  He said the following :-

“The incident in early 2018

2. I would like to supplement the event happened in early 2018, as said in paragraphs 37 to 39 of my first witness statement. This should also be the same event as said by the Plaintiff in paragraph 39 of her witness statement dated 31 July 2019. But what she said were only partly correct but mostly untrue. Hence, I need to provide much more details of what happened on that day.

3. In early 2018 (I cannot recall the date), I was working in the pharmacy shop of Wiseman. The Plaintiff drove her car to the shop and came to find me. She said to me that she would like to discuss some matters about Wiseman with me and asked me to board her car. I thought she was going to discuss with me about the shares of Wiseman (we were having some dispute over the shares) and did not want other staff to overhear the conversation. So I boarded her car.

4. After I boarded her car, she suddenly started to drive. I asked her where we were going and for what. She said some documents had been prepared in her lawyer’s office about the company, and she would bring me there to sign and come back.

5. I had lots of doubt. I told her if the documents were related to Wiseman, those documents could be sent to me by the lawyers or accountants for me to sign, and I did not have to attend their offices to sign. The Plaintiff said it was very urgent and I could just go to sign and come back, and that it would not take long.

6. She stopped her car in Mongkok. She took me to a commercial building and attended a lawyer’s office (I did not pay attention to the name of the office).

7. We sat in a conference room. Then a male staff brought a set of documents to me. The Plaintiff asked me to sign. I briefly looked at those documents and recognized that they were not company documents but conveyancing documents. I asked the Plaintiff what was going on.

8. The Plaintiff said to me that Wiseman required additional cash for operation and it was necessary to borrow additional loan from bank, such additional loan had to be further secured by a mortgage against the Property. She said to me that if the Property was in joint names, it would be difficult to borrow the loan. But if the Property was in her sole name, it would be much easier. Hence, she had prepared the documents to make the Property to be in her sole name.

9. At the same time, the male staff also said that that was a document for sale and purchase of property. He said, although a sale price had been put in the document to make it look like a sale and purchase transaction but indeed there was no money involved in this transaction.

10. I did not know and could not imagine this could have happened. I asked the male staff “Could a transaction be like this? We do not have to pay any tax arising from this?” He replied “No need to pay tax” and said that many people adopted this way to “take away the name” in order to avoid the government “spicy tax” (避「辣招」稅).

11. My immediate thought was that this seemed like a fraud – a fraud against the bank and the government.

12. At the same time, as mentioned in my first witness statement, I found the Plaintiff’s explanations not truthful because I knew that Wiseman should have sufficient cashflow and did not need further cash.

13. After some more conversations on this issue, I told the Plaintiff and the male staff that I would not sign those documents.

14. The Plaintiff suddenly took me to a lawyer’s office (without prior notice) and requested me to sign documents to dispose of my interest in the Property. I considered I was cheated to attend the office and was almost falling into the trap. I said to the male staff that I must need to seek my own lawyer’s advice on the matter.

15.  I do not know the Plaintiff’s other witnesses – Wong Ho Tin or Cheung Kwai Sang Samson.  One of them might be the male staff I mentioned above but I do not recall his name. In any event, I have never given instructions to them or Messrs CK Charles Ho & Co for any matter.”

59.  It is quite obvious that what the Defendant has said in his Supplemental Witness Statement is quite different from what he has said in his 1^st Witness Statement.  If there was any truth in his evidence, there was no reason why he did not say what is in his Supplemental Witness Statement when he first made his 1^st Witness Statement.  After he had been served with the 1^st Witness Statement of the Plaintiff and the Witness Statements of Cheung and Wong, he must have come to realise that he could not possibly deny having been to the office of CKCH on 8 January 2018.  Hence, he changed his original evidence by filing his Supplemental Witness Statement.

60.  I simply cannot accept the Defendant’s version of what happened on 8 January 2018.  I have no difficulty in accepting the evidence of the Plaintiff, Cheung and Wong relating to what happened on 8 January 2018.

61.  I find as facts the following :-

(i)  The Defendant did agree with the Plaintiff to assign back to her his half share in the Property and to go to the office of CKCH to sign documents for that purpose.

(ii)  On 8 January 2018, the Defendant did go voluntarily with the Plaintiff to the office of CKCH to sign documents for the abovementioned purpose.

(iii)  At the office of CKCH, the Defendant did state in front of the Plaintiff and Cheung that he knew that he was not going to be paid any consideration for assigning his half share in the Property to the Plaintiff but that he was worried about tax implications because the relevant document stated that he was going to receive the purchase price of $4.5 million and he would like to consult his own lawyer first.

62.  In the above circumstances, the Defendant had in fact made a serious declaration against his own interest on 8 January 2018.  Such a declaration is the strongest evidence in support of the Plaintiff’s case that it was agreed between her and the Defendant that she was to be the sole beneficial owner of the Property and that the Defendant should assign his half share in the Property to her without consideration upon demand by her.

63.  I so find the above as a fact.

64.  The doctrine of common intention constructive trust is in most cases applicable to situations where a man and a woman (whether married or not) purchase a property (whether in their joint names or in the sole name of one of them) for their joint occupation in a domestic context.  See the cases of Stack v Dowden [2007] 2 AC 432, Jones v Kernott [2012] 1 AC 776 @786 para 25 and Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327 per Lam V-P @332 para 1.6.

65.  In view of my finding that the Plaintiff and the Defendant (who are not married and had no intention to get married) did not intend to and did not in fact cohabit in the Property, the first question which I have to decide is whether the doctrine of common intention constructive trust applies in the present case.

66.  The doctrine is dealt with in detail in Lewin On Trusts (20^th ed) beginning at page 443.  On that page, it is said in paragraph 10-050 as follows :-

“4. BENEFICIAL INTERESTS OF TWO OR MORE PERSONS

Introduction

This section is concerned with the beneficial ownership under the law of trusts, both of property held in joint names and of property held in the name of one person in circumstances where another claims, not to be the full beneficial owner, but to have some beneficial interest concurrent with the beneficial interest of the legal owner. It is principally concerned with the question of the beneficial ownership of real property occupied by two people as their home in what the House of Lords has described as the “domestic consumer context”, ie the occupation by the two parties to a co-habiting relationship, whether married or in a civil partnership or neither, and where a dispute arises between them as to that beneficial ownership. The principles discussed here are, however, also applicable to assets other than to real property, and to assets acquired other than by co-habiting couples. …”

[emphasis added]

Under the last sentence quoted above, there is a footnote (194) which reads as follows :-

“The principles have been applied to friends who buy a property and live in it together without any sexual relationship: Gallarotti v Sebastianelli [2012] EWCA Civ 865; [2012] W.T.L.R. 1509. There are limits to the application of these principles, however, and they were not applied in a case where there was said to be nothing close about the relationship between the parties: Wodzicki v Wodzicki [2017] EWCA Civ 95; [2018] 1 F.L.R. 473 at [25] (stepmother and stepdaughter).”

67.  In the Gallarotti case, two friends contributed towards the purchase of a property which was conveyed under the sole name of Sebastianelli.  They then lived in it.  In paragraph 6 of the judgment of Arden L J, she said as follows : -

“[6] In giving her reasons for the conclusion that the parties had equal shares in the flat, the recorder held that the onus of proof was on Mr Gallarotti. The recorder held that the principles to be applied to a constructive trust were the same whether the parties were in a relationship such as that of husband and wife or were business associates, though the court might draw different inferences as to their conduct in the latter case. The recorder held that ‘in the light of the close relationship between the parties when the flat was purchased’ the analysis to be carried out ‘is to be seen more in the domestic than in the commercial context’ (judgment, para 106). I agree with all those points.”

[emphasis added]

68.  In view of the fact that the Plaintiff and the Defendant were lovers at the time of the purchase of the Property, I am satisfied that the doctrine of common intention constructive trust is applicable in the present case.

69.  In Lewin at paragraph 10-063 on page 452, it is said that the matters to be considered are as follows : -

“Questions to be considered

When a claim is made by a person to displace the presumption that the beneficial ownership of property follows the legal ownership in a case where there is no express declaration of trust, the following questions must be addressed:

(1) Does the case fall within the domestic consumer context, such that the common intention doctrine applies?

(2) Is there evidence of an actual common intention, in the form of an agreement, arrangement or understanding between the parties that the beneficial ownership should not follow the legal ownership, either at the date when the property was first acquired or at some later date?

(3) In the absence of such a common intention, can an agreement, arrangement or understanding to this effect be inferred from the parties’ conduct?

(4) Has the claimant relied to his detriment on the common intention relied upon?

(5) If there is an actual common intention, does it extend, either expressly or by inference, to the shares in which the property is to be beneficially owned?

(6)  If the common intention does not extend to the shares in which the property is to be beneficially owned, what is a fair share having regard to the whole course of the parties’ dealing in relation to the property, and to both financial contributions and other factors?”

70.  Going through the questions listed in Lewin above :-

(i)  I have already decided that the doctrine of common intention constructive trust applies in the present case.

(ii)  I have found that there were an agreement and a common intention between the Plaintiff and the Defendant that the Plaintiff was to be the sole beneficial owner of the Property and that the Defendant would transfer his half share in the Property to her upon demand.

(iii)  Question 3 does not apply in view of my answer to question 2.

(iv)  There is no doubt that the Plaintiff relied on her agreement with the Defendant to her detriment by having the Property assigned to them as joint tenants despite the fact that she was going to provide all the money for the purchase of the Property.

(v)  I have already made a finding on the express agreement and the common intention between the Plaintiff and the Defendant.

(vi)  Question 6 is no longer relevant.

71.  The Defendant has raised a point about the Plaintiff not having “clean hands” in praying for equitable relief.  The point is totally without merit and I will not deal with it further.

72.  In all the circumstances set out above, I find for the Plaintiff against the Defendant on her Amended Statement of Claim and dismiss the Amended Counterclaim of the Defendant.

(i)  A declaration that the Defendant holds his half share, whether legal and/or beneficial, of and in the Property, namely, “Flat 5, 6^th Floor, Block D, Yan Ming Court, No. 100 Po Lam Road North, Tseung Kwan O, Sai Kung, New Territories, Hong Kong” on trust for and on behalf of the Plaintiff absolutely;

(ii)  An order that the Defendant do transfer all his interest of and in the Property to the Plaintiff as she shall direct.

(iii)  An order nisi that the Defendant do pay to the Plaintiff the costs of and incidental to this action, to be taxed, if not agreed.

74.  Finally, it remains for me to thank counsel on both sides for their able assistance.