HCA1819/2016

HCA1819/2016

A A B B HCA 1819/2016 C C [2023] HKCFI 2813 D D IN THE HIGH COURT OF THE E E HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE F F ACTION NO 1819 OF 2016 G _______________________ G H BETWEEN H LIN SIU KOK (連兆覺), the Executor and one 1st Plaintiff I I of the Joint Executors of the estate of CHEUNG WEI MING (張慧明), deceased J J LIN SIU KOK (連兆覺) 2nd Plaintiff K K LIN SUK MI (連淑薇) 3rd Plaintiff L L LIN SUK YUNG (連淑蓉) 4th Plaintiff M LIN SIU FUNG (連兆峯) 5th Plaintiff M N and N LAM SHUI CHUN (林瑞珍), the Defendant O O Administratrix of the estate of LIN SHIUE KIANG, ALLAN (連兆江), Deceased P P ______________________ Q Q Before: Hon B Chu J in Court R R Dates of Trial: 14-17, 20-24 February and 12 April 2023 S Date of Judgment: 31 October 2023 S T T U U V V  - 2 - A A ________________ B B JUDGMENT C _________________ C D D _____________________ E Table of Contents E _____________________ F F G G Page H A. INTRODUCTION............................................................................ 4 H B. BRIEF BACKGROUND AND OVERVIEW................................ 6 I I C. PS’ CLAIM AND D’S COUNTERCLAIM ................................. 14 J D. THE WITNESSES ......................................................................... 17 J E. SOME PRELIMINARY COMMENTS/OBSERVATIONS ...... 17 K K F. THE DISPUTED ISSUES ............................................................. 21 G. THE HANG TUNG PROPERTY CLAIM .................................. 22 L L G.1 The agreed disputed issues .................................................... 22 M G.2 The relevant title documents.................................................. 22 M G.3 Ps’ and D’s respective case ................................................... 23 N N G.4 The Lin Family’s financial situation in early 1970s .............. 24 O G.5 The alleged contributions/payments to Grandmother ........... 26 O G.6 The alleged agreement and common intention ...................... 30 P G.7 Analysis of the evidence and conclusion ............................... 32 P H. THE BENEFICIAL OWNERSHIP OF THE WAH LAI Q Q PROPERTY.................................................................................... 39 H.1 The disputed issue ................................................................. 39 R R H.2 The relevant title documents.................................................. 39 S H.3 Ps’ and D’s respective case ................................................... 40 S H.4 The Lin Family’s financial situation in early 1980 ............... 41 T T U U V V  - 3 - A A H.5 Ps’ and Allan’s alleged savings ............................................. 44 B B H.6 The alleged agreement and common intention ...................... 46 C H.7 Analysis of the evidence and conclusion ............................... 46 C I. THE SOUTH HORIZON PROPERTIES CLAIM .................... 50 D D I.1 The agreed disputed issues .................................................... 50 I.2 The relevant title documents.................................................. 51 E E I.3 Ps’ and D’s respective case ................................................... 52 F I.4 Whether the alleged Family Fund existed ............................. 53 F I.5 Whether P1-P4 had in fact contributed towards the G acquisition costs of the South Horizon Properties ................. 67 G I.6 Conclusion ............................................................................. 74 H H J. THE SCENIC GARDEN PROPERTY CLAIM ......................... 75 I J.1 The agreed disputed issues .................................................... 75 I J.2 The relevant title documents.................................................. 75 J J J.3 Ps’ and D’s respective case ................................................... 76 K J.4 The alleged payments ............................................................ 78 K J.5 Allan’s SDs and Mother’s SD ............................................... 79 L J.6 Analysis and conclusion ........................................................ 82 L K. THE LOANS CLAIM.................................................................... 86 M M K.1 The agreed disputed issues .................................................... 86 N K.2 Mother’s alleged loans to Allan ............................................. 86 N K.3 P2’s alleged loans to Allan .................................................... 87 O K.4 P3’s alleged loans to Allan .................................................... 88 O L. THE INVESTMENTS CLAIM .................................................... 89 P P L.1 The agreed disputed issues .................................................... 89 Q L.2 D’s case and Ps’ case ............................................................. 89 Q L.3 Analysis and conclusion ........................................................ 90 R R M. THE GOLD ZODIAC COINS CLAIM ....................................... 93 S M.1 The agreed disputed issues .................................................... 93 S M.2 Ps’ and D’s respective case ................................................... 93 T T U U V V  - 4 - A A M.3 Analysis and conclusion ........................................................ 94 B B N. ORDERS ......................................................................................... 96 C N.1 Regarding Ps’ Claim in the SOC ........................................... 96 C N.2 Regarding the Estate’s Counterclaim .................................... 98 D D E E A. INTRODUCTION F F 1. The present action concerns disputes between family members G G over the beneficial interests in various landed properties and other assets. H At the time of the commencement of the action, the plaintiffs were H respectively the mother and 4 of her children, and the defendant, the widow I I of the mother’s eldest deceased child, was sued in her capacity as J administratrix of his estate. J K K 2. The mother Madam Cheung Wei Ming (張慧明) (“Mother”)1 L L and her husband Lin Po Ying (連普英) 又名 連普瑛 or Lin Wun (連雲) M (“Father”)2 had 6 children who were in order of their ages as follows: M N N (1) Lin Shiue Kiang, Allan (連兆江) (“Allan”), a son, who was O born on 19 May 1948 and who died intestate on 4 June 2015 at O the age of 67, and the defendant Lam Shui Chun (林瑞珍) (“D”) P P is his widow Q (2) Lin Siu Kok (連兆覺), the 2nd plaintiff, a son, who was born on Q 16 May 1950 (referred herein as or “P2”), and was 72 at time R R of the trial S S 1 21.01. 1930 – 15.08. 2017 T 2 December 1911 – 28.05.1977 T U U V V  - 5 - A A (3) Lin Siu Fung (連兆峰), the 5th plaintiff, a son, who was born B B on 14 November 1952 (referred herein as or “P5”), and was 70 C at time of the trial C D (4) Lin Suk Yung ( 連 淑 蓉 ), the 4th plaintiff, also born on D 10 November 1955 (referred herein as “P4”), and aged 67 at E the time of the trial E F (5) Lin Suk Mi (連淑薇), the 3rd plaintiff, a twin daughter with the F th 4 plaintiff, born on 10 November 1955 (referred herein as G “P3”), and aged 67 at the time of the trial G H (6) Lin Siu Chung (連兆沖), a son, who was born on 17 December H 1960 (“Chung”), and is not a party in this action I I J 3. Father predeceased Allan, having passed away on 28 May 1977 J aged 66. Mother passed away after the commencement of this action, on K K 15 August 2017 aged 87, and P2 was granted leave to carry on the action as L one of the executors of Mother’s estate. L M 4. D was granted letters of administration of Allan’s estate M N (“Estate”) on 12 April 20163. N O 5. P1-P4 claim against the Estate, amongst other things, beneficial O interests in 3 flats in South Horizons (respectively “Flat 25D”, “Flat 33D” P P and “Flat 39F”, and collectively referred to as “South Horizons Q Q Properties”). All 5 Ps claim against the Estate, amongst other things R beneficial interests in a flat and car parking space at Scenic Gardens, in Yuen R Long (collectively “Scenic Garden Property”). P1, P2 and P3 claim S S 3 T C1:5-15 T U U V V  - 6 - A A against the Estate repayment of alleged loans from them respectively to B B Allan (“Loans”). C C 6. The Estate counterclaims amongst other things, (i) against P2, D D beneficial interests in a property in Hang Tung Building on Canton Road, E Kowloon presently held in P2’s sole name (“Hang Tung Property”), (ii) E against P1, beneficial interests in the Scenic Garden Property (iii) against Ps, F F for damages for conversion of various gold coins said to be belonging to G Allan (“Gold Zodiac Coins”), and (iv) against P1-P3, various investments G said to be held on trust for Allan (“Investments”). H H I 7. Counsel Mr Derek JY Chan and Mr Dexter Leung appeared for I Ps at the trial and Counsel Mr Ken TC Lee and Ms Candice Lau appeared J J for D and the Estate. K K B. BRIEF BACKGROUND AND OVERVIEW L L M 8. The background of the family (“Lin Family”) 4 set out M hereinafter was mainly extracted from P2’s witness statement. N N O 9. Father and Mother were married in 1946 in Shun Tak, O Guangdong Province, in Mainland China, and in about 1950, they moved to P P Hong Kong with their two elder sons, namely Allan and P2, together with Q Mother’s mother Madam Cheung Suk Fun 5 (“Grandmother”). Initially, Q the then Lin Family members resided in a rented flat in Central and later in R R S 4 S Consisting of Grandmother (before her demise), Father (before his demise), Mother (before her demise) and their 6 children Allan (before his demise), Kok (P2), Fung (P5), Mi (P3), Yung (P4), and Chung, 5 T Born in January 1911, passed away on 20 July 2007 T U U V V  - 7 - A A a rented flat in Jordan in Kowloon. Mother gave birth to four more B B children in Hong Kong. Father was a teacher and Mother was a housewife C throughout. C D D 10. In about 1970, the Lin Family of a total 9 members were E allocated a 400 sq ft public housing unit in Ping Shek in Kwun Tong of E which Father was the registered tenant (“Ping Shek Unit”). The 5 older F F children were just starting to work in early 1970s while the youngest one G Chung was still at school. G H H 11. Grandmother was about 64 years old in 1975. She was said I to be the “family treasurer”. According to Ps, the 5 older working children I would contribute a portion of their respective monthly salary to J J Grandmother for household expenses, and that Grandmother was the one in K charge of such expenses and that she would save up any balance and would K invest the same. L L M 12. Ps’ case was in order to improve the Lin Family’s living M circumstances, in 1975, the family decided to purchase a private property N N from their pooled funds with a mortgage loan. This was the Hang Tung O Property which was purchased in 1976 in the names of Mother and P2, as O joint tenants. P P Q 13. After the purchase of the Hang Tung Property, for convenience Q of travelling to work and/or to school, P5, P4 and Chung moved to reside in R R the Hang Tung Property, whereas Grandmother, Father, Mother, Allan, P2 S and P3 continued to reside in the Ping Shek Unit. Every night, P5, P3 and S Chung would return to the Ping Shek Unit to have dinner with the rest of the T T U U V V  - 8 - A A family. The Hang Tung Property was regarded as the “family home” of B B the Lin Family, as well as the Ping Shek Unit. C C 14. According to P2, the Lin Family agreed that the Hang Tung D D Property to be divided into 7 shares, namely Father, Mother, and the 5 older E children, ie, Allan, P2, P3, P4, and P5 due to their contributions. This was E not admitted by D whose case was that the Hang Tung Property was held in F F trust for only 4 members in equal shares, namely Father, Mother, P2 and G Allan. G H H 15. After Father passed away in May 1977, Mother became the sole I registered tenant of the Ping Shek Unit. According to Ps, in order not to I be in breach of any public housing policy, the Lin Family then agreed that J J the registered ownership of Hang Tung Property to be transferred to the sole K name of P2. Although there was a consideration of HKD 50,000 stated on K the assignment for Mother’s transfer to P2, no consideration was paid by P2, L L save that he paid the legal fees of HKD 588 for the transfer. M M 16. According to Ps, in about 1980, Grandmother suggested that N N the family to buy another private property, for the brothers to use after their O marriage and also for long term investment, and that the agreement was that O the Mother and the 5 older children were to contribute equally. As a result, P P a flat at Wah Lai Mansion in North Point (“Wah Lai Property”) was Q purchased in 1981 in the joint names of Allan and P3. It was Ps’ case the Q property was held in trust for Ps and Allan in equal shares. It was D’s case R R that Allan was the sole beneficial owner of Wah Lai Property. S S T T U U V V  - 9 - A A 17. P2 was the first of his siblings to get married, in August 1981 B B prior to the completion of the purchase of the Wah Lai Property. His wife C Joanna Lung Suk Yee (“Joanna”) was also a teacher. After marriage, they C at first resided in rented premises and later moved to reside in the Hang Tung D D Property upon P5 moving out in 1982. E E 18. P5 got married in 1982, and after marriage, he moved out of the F F Hang Tung Property to reside in the Wah Lai Property until he and his wife G purchased their own unit in 1986 at Diamond Hill from the Hong Kong G Housing Authority ie Lung Poon Unit (龍蟠苑) (“Lung Poon Unit”). H H I 19. P3 got married in 1983, and according to Ps, as P3 and her I husband wanted to apply for public housing, she then transferred by deed of J J gift in 1984 her legal title in the Wah Lai Property to Allan’s sole name. K K 20. Allan and D married on 17 August 1986. According to D, she L L and Allan met in early 1985 through their respective mothers. At that time M Allan was working as a teacher and D was working as an accounts manager M in a garment company. After their marriage, they lived in rented property N N until about August 1987 when they moved to reside in the Wah Lai Property, O O after P5 and his family moved to their Lung Poon Unit. P P 21. P4 married in October 1986 and after her marriage, emigrated Q to Boston, USA in May 1987 to join her husband there. Q R R 22. Chung married in April 1987 and he and his wife moved to S reside in a property at Kornhill. S T T U U V V  - 10 - A A 23. It was P2’s case that after the family bought Wah Lai Property, B B Allan started to invite him to pool together savings for various investments. C According to P2, the monies he handed to Allan were mostly by way of bank C transfers but sometimes it was in cash or cheques. Although Grandmother D D was still the family treasurer, she was mainly responsible for handling E household expenses and although she had experience in making investments, E after purchase of the Wah Lai Property, she decided to hand over the savings F F she held for P4 to Allan to hold and manage. At the same time, Allan had G also asked Mother and P3 to jointly invest. However, as P5 had just G purchased the Lung Poon Unit, he had no spare cash to join in the family H H investment. As for Chung, he had become qualified as an accountant and I he was busy with his own work, and therefore he did not join. I J J 24. In short, it was Ps’ case that a family investment fund was K formed in 1981 (“Family Fund”) with the participants being Mother (and/or K Grandmother), Allan, P2, P3 and P4 (“Fund Participants”) and that the L L 6 Family Fund was managed by Allan . M M 25. It was not disputed that Allan and D bought a unit in Ma On N N Shan (馬鞍山中心) (“Ma On Shan Unit”) in 1993 in their joint names, but O O according to Ps, it was not clear whether the monies for the purchase had P come from Allan’s own money or the Family Fund. According to D, the P purchase was funded by Allan’s own money. Anyway, Ps did not make Q Q any claim for this property. R R S S 6 T See para 39, A1:183 T U U V V  - 11 - A A 26. It was Ps’ case that in about May 1993, when the entire family B B was having dinner, upon Alan’s suggestion, there was a joint decision by the C Fund Participants to utilise the Family Fund to jointly invest in the Hong C Kong property market (“Joint Decision”)7. Pursuant to the Joint Decision, D D 3 flats in the then new South Horizon development were purchased. P2 E said he and Allan went to visit the show flat at the then South Horizons E development, and as the purchase of the flats was by ballotting, they all F F agreed to apply and that whoever’s application was successful, he/she would G hold the property for the Fund Participants. Eventually, those who were G successful were Allan, D, and P2. According to Ps, Allan and P2 then H H selected the 3 flats. I I 27. After purchase, the South Horizons Properties had been let out, J J and two had been sold since. Ps’ case was that as the acquisition costs of K the South Horizons Properties came from the Family Fund, the sold flats K were held in trust for the Fund Participants, namely P1-P4 and Allan. This L L was not admitted by D. M M 28. Later, Mother decided to surrender the Ping Shek Unit in N N exchange for purchase of a unit under the Government Home Ownership O Scheme. This led to the purchase of a unit at Kwai Chun Court (葵俊苑) O P in Kwai Chung(“Kwai Chun Unit”) in November 1995, which was P purchased in the joint names of Mother and P2 as joint tenants. According Q Q to P2, he and Joanna did not have sufficient liquid cash at the time, and P2 R then discussed with Allan in relation to a loan. According to P2, Allan told R him that P2’s share in the Family Fund was at that time over HKD 3m, but S S 7 T See para 13, A1:5 T U U V V  - 12 - A A as over HKD 2.6m was invested in the South Horizons Properties, there was B B a balance of over HKD 1m in cash, excluding the long term investments in C shares. P2 then borrowed HKD 350,000 from the Family Fund in about C July 1994, and later according to him, he had repaid the Family Fund a total D D of HKD 420,000 (ie principal plus interest). E E 29. After purchase of the Ma On Shan Unit, Allan, D and their son F F moved out of Wah Lai Property in 1993, and from June 1994, Wah Lai G Property was rented out and all rental matters were said to be handled by G Allan. According to P2, subsequently, Allan discussed with Grandmother H H and Mother, with P2 also present, and suggested to them to sell Wah Lai I Property. As the three of them agreed, Allan did not consult the other I contributors, and that Wah Lai Property was later sold in July 1996. J J According to P2, although everyone had asked Allan about the net sale K proceeds and rental income, Allan did not provide them with any detailed K account, and only said the amount would be regarded as part of the Family L L Fund. M M 30. It was not disputed that after Allan and his family moved to the N N Ma On Shan Unit, Allan had continued to use the address of the Hang Tung O Property as his correspondence address for shares, invoices and bank O communications etc. P P Q 31. It was Ps’ case that in about 1998, Allan, through using Q Mother’s name for the ballot, acquired the Scenic Garden Property. The R R Scenic Garden Property was purchased in the names of Allan and Mother as S joint tenants but Ps’ case was that it was held on trust for P1-P5. It was S D’s case that Allan was the sole beneficial owner of this property. T T U U V V  - 13 - A A 32. According to P2, after the above acquisition in 1998 he and B B Joanna decided that they would no longer contribute further monies into the C alleged Family Fund as Allan had refused to render an account of the Family C Fund, or the rental income from the South Horizons Properties. D D E 33. In December 2002, Allan left his then employment as a full E time teacher and thereafter was working as a substitute teacher and F F according to P2, his income became unsteady. It was Ps’ allegation that G from 2002 onwards, Allan started to frequently borrow from family G members, namely the alleged Loans from Mother, P2 and P3. H H I 34. D denied the alleged Loans. According to D, although Allan I was semi-retired between 2002-2008 and only fully retired in 2009, by early J J 2000, she and Allan had amassed sufficient assets in properties, stocks, K savings and medical insurances with no mortgage loans or any other K liabilities. It was D’s case that Allan would invest his own monies under L L her name or names of other family members and that Allan and D had M attended family gatherings until 2008. It was only after Allan’s losses in M his investment in products of the Lehman Brothers in 2008, the relationship N N between Allan and his siblings gradually became worse and there were O frequent quarrels, and his family gatherings reduced in frequency. O P P 35. It was further D’s case that Allan had between 1976 and 1987 Q bought various commemorative gold Chinese zodiac animal coins, namely Q the Gold Zodiac Coins8. Each of these coins was contained in a special R R individual box with a commemorative card/certificate. According to D, S S 8 T A1:71 T U U V V  - 14 - A A due to a post fire renovation of the Ma On Shan Unit, Allan had placed all B B the coins in one plastic box and took the box to the Hang Tung Property for C storage, whilst the individual boxes and certificates remained in the Ma On C Shan Unit, and there should be 70 of these Gold Zodiac Coins but they were D D missing after Allan’s death. E E 36. On the other hand, according to P2, in January 2015, Allan had F F accused Mother of stealing the gold Chinese Zodiac Coins placed in the G Hang Tung Property. P3’s evidence was that Allan later found them in a G wardrobe inside the Hang Tung Property, and that Allan told her that he had H H taken them back to the Ma On Shan Unit. The Gold Zodiac Coins were I subject matter of D’s counterclaim. I J J 37. It was also D’s evidence that between 1993 and 2015, P1, P2 K and P3 purchased various shares and securities using funds provided by K Allan and that such investments (“Investments”) were held on trust by P1, L L P2, and P3 for Allan. D has sought an account of the Investments. M M C. PS’ CLAIM AND D’S COUNTERCLAIM N N O 38. To summarise, Ps’ claims in their statement of claim (“SOC”) O against D are, amongst other things9: P P Q (1) P1 claims against D for an order for delivery up of the title Q deeds to the Scenic Garden Property, and for P1’s portion of R R the Loans, ie HKD 353,150.68; S S 9 T A1:16-18 T U U V V  - 15 - A A (2) P2 claims against D for repayment of HKD 291,839 of his B B portion of the Loans; C C (3) P3 claims against D for repayment of her portion of the Loans D ie HKD 307,500; D (4) P1-P4 claim against D for a declaration that the Estate E E held/holds the South Horizon Trust Assets10 on trust for them F and the Estate in such shares as determined by their respective F contributions to the Family Fund; G G (5) Ps claim against D that before Allan’s death, Allan jointly with H Mother held the Scenic Garden Property on trust for Allan H himself and Ps in equal shares. I I J 39. As said, D denies Ps’ claims and counterclaims in her Re-Re- J Amended Defence and Counterclaim (“RRADCC”) for, amongst other K K things11: L L Against P1, M M N (1) a declaration that P1 held/holds the Scenic Garden Property on N trust for the Estate upon Allan’s death; O O (2) an order for P1 to transfer the Scenic Garden Property to D in P her capacity as the administratrix of the Estate; P Q Q R R 10 S Defined in para 22 of the SOC, A1:9 to include all fruits, rental income and sale proceeds derived S from the South Horizon Properties, and any property or assets acquired therefrom and beneficial interest in any unsold South Horizon Properties 11 T A1:67-69 T U U V V  - 16 - A A Against P2, B B C (1) [should the Court find that the South Horizons Properties were C purchased pursuant to the alleged Joint Decision (which is not D D admitted by D)] 12 , a declaration that P2 held/holds the sale E proceeds and rental income derived from Flat 25D on trust for E the benefit of the Fund Participants, and an order for account F F for sale proceeds and rental income derived from Flat 25D; G (2) a declaration that P1 and/or P2 held/hold the Hang Tung G Property on resulting or constructive trust for the benefit of H H Father, P1, P2 and Allan, and an order of account for profit and I benefits derived from the Hang Tung Property; I J J Against P1, P2 and P3, K K (1) a declaration that P1, P2, and P3 respectively held/hold the L L Investments on trust for Allan; M (2) an order for P1, P2, and P3 to transfer the Investments to D in M her capacity as the administrator of the Estate and an order of N N account. O O Against P1-P5 P P Q (1) for damages for conversion of the Gold Zodiac Coins. Q R R S S 12 Although these words were missing, this should be an alternative claim, as set out in para 18, T RRADCC, A1:58 T U U V V  - 17 - A A D. THE WITNESSES B B C 40. P2 had submitted two witness statements on behalf of P1 and C himself, one on 1 December 2020 and a supplemental one on 19 April 2022. D D His wife Joanna, P3, P4, and P5 had each submitted a witness statement on E 1 December 2020. They all attended trial to be cross examined on their E written evidence. F F G 41. D had made an affirmation on 28 June 2018 in support of her G then summons to amend the amended defence and counterclaim and later H H submitted a witness statement on 30 November 2020. She attended trial to I be cross examined on her written evidence. D called no other witnesses. I J J E. SOME PRELIMINARY COMMENTS/OBSERVATIONS K K 42. First, Ps chose not to launch any claim against Allan during his L lifetime, even though on their own evidence, they had on many occasions L asked Allan to account for the alleged Family Fund and sale proceeds and M M rental income of the South Horizons Properties and that P2 had even raised N queries on the account given by Allan in relation to the income and expenses N of Flat 33D and Flat 25D which were ignored by Allan. O O P 43. As has been stated by Lord Walker of Gestingthorpe NPJ in P Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39, Q Q R “73. ... Vivienne is making a claim against the estate of a deceased R person who cannot give evidence against her claim. The court has always approached such claims with some suspicion, S especially (in the case of an alleged gift) where the only or S principal witness in support of the claim is the donee. T Corroboration is not essential in every case. But as T U U V V  - 18 - A A Plowman J said in Thomas v. The Times Book Co. Ltd [1966] B 2 All ER 241, 244 (the curious case about ownership of the B manuscript of Dylan Thomas’ Under Milk Wood), C ‘Therefore, not only in this case is the onus of proof on the C defendants [who were resisting a claim by the poet’s D administratrix], but I am enjoined by authority to approach D their story with suspicion having regard to the fact that the other actor in the story, the late Dylan Thomas, is dead and E cannot therefore give his own version of what took place.’ E This principle has been applied in Cheung Cho Kam Sindy v. F F Cheung Yuet Ying Rose (Deputy High Court Judge Muttrie, 13 July 2007).” G G H 44. Even though in the present case, Ps were not alleging that there H was any gift made by Allan to them, they were making claims against a I I deceased person who could not give evidence against their claim. D, being J the administratrix of the Estate, had no personal or direct knowledge about J what was discussed and/or agreed between Allan and the rest of the Lin K K Family members before her manage to Allan save what Allan had told her, L and whatever documents she could find among Allan’s belongings after his L death. M M N 45. As has been said by Recorder Coleman SC, as he then was, in N paragraphs 58 and 59 of his judgment in Tang Wing Lam, the sole executor O O of the estate of Siu Mak Cheung, Deceased, v Chung Wai Sing, unrep, HCA P 2373/2012: P Q Q “58 Where the court is faced with a claim against the estate of a deceased person who cannot give evidence against that claim, R the court has always approached such claims with some R suspicion, especially (in the case of an alleged gift) where the only or principal witness in support of the claim is the donee: S S see for example Yung Shu Wu v. Vivienne Sung Wu (2011) 14 HKCFAR 39 at §§73-76. T T U U V V  - 19 - A A 59. Corroboration is not essential in every case. But, not only is B the onus of proof – sometimes called a ‘heavy burden of proof’ B or a ‘special burden’ – on (in this case) the defendant, the court is enjoined by authority to approach his story with suspicion, C C having regard to the fact that the other actor/actors in the story is/are dead and cannot therefore give their own version of what D took place. The court is looking for evidence which is clear D and reliable.” E (emphasis added) E F F 46. Second, Ps were making a claim in respect of the beneficial G ownership of the South Horizon Properties and the Scenic Garden Property G which they alleged to be different from the registered legal title. As H H accepted by them and their counsel Mr Derek JY Chan, the burden of proof I rested on them. I J J 47. Mr Chan had submitted on behalf of Ps that although the K burden rested on Ps, the incidence of the burden should not be overstated, K citing what was said by G Lam J as he then was, in paragraph 43 of Chow L L Kwan Yee v Leung Mei Yin May [2021] HKCA 497. In the Chow Kwan M Yee case, as pointed out in that paragraph, there was no documentary M evidence from either side, and it was said that there was nothing to prevent N N the trial judge from coming to a decision based on oral evidence on the O O parties. P P 48. Insofar as I can gather, the parties in that case were however all Q giving direct first hand oral evidence, and what was said has to be seen in Q that light. In any event, as said by Coleman J, the Court will be looking at R R evidence which is clear and reliable. S S T T U U V V  - 20 - A A 49. Third, P2’s wife, Joanna, was the first witness called to give B B evidence on behalf of Ps. Joanna could not give first hand evidence on C events prior to her marriage to P2 in August 1981, and her evidence during C the trial was that she did not participate in the circumstances leading to the D D purchase of the Hang Tung Property or the purchase of the Wah Lai Property, E or the discussions leading to the purchase of the South Horizon Properties E (save for discussions regarding the renting out), and that her own evidence F F during the trial was that she only started to “記賬”, namely keep a record of G G the contributions/amounts made by her and Kok from 1995 in her notebook H (“Joanna’s Notebook”). However, the record in Joanna’s Notebook H could not be said to be a contemporaneous record of contributions made I I prior to 1995. In any event, according to P2, he and Joanna ceased J transferring any sums to Allan for purpose of investment from 1998 onwards. J K K 50. Fourth, whilst Ps on one side had relied on documents said to L be found (i) shortly after Allan’s death in 2015, inside the Hang Tung L Property by P3 and P413; and (ii) in early 2022, inside the Kwai Chun Unit M M by P2 and Joanna when sorting out documents stored there14, D had on the N other hand relied on documents said to be found inside the Ma On Shan Unit N after Allan’s death 15 . Some of these documents contained handwritten O O notes and annotations said to be that of Allan’s. Although authenticity of P these handwritten notes and annotations appeared to be initially challenged P by D, during the trial, she had identified those handwritings which were Q Q Allan’s on those relevant handwritten documents. Ps similarly did not R really dispute that those documents produced by D said to contain Allan’s R S 13 Those falling within the range of Tab 1 to 90 of Bundles B1 to B3, see A1:186, para 55 S 14 Those falling within the range of Tabs 91 to 102 of Bundle B3, see A1:243, para 3 15 T Those documents in Bundles C1-C12 T U U V V  - 21 - A A handwritings although they alleged selective disclosure on the part of D. B B In any event, there was never any handwriting expert evidence sought or C produced by either side. The main issue over those relevant handwritten C documents was when they were written and interpretations of what were D D written. E E 51. I now turn to the disputed issues. F F G F. THE DISPUTED ISSUES G H H 52. The parties had lodged an agreed Scott Schedule of disputed I issues. The issues were divided into the following disputed subject matters: I J J (1) Ps’ claim and D’s counterclaim in relation to the beneficial K ownership in the South Horizons Properties (“South Horizons K Properties Claim”) L L (2) Ps’ claim and D’s counterclaim in relation to the beneficial M ownership in the Scenic Garden Property (“Scenic Garden M Property Claim”) N N (3) Ps’ claim for the repayment of the alleged Loans (“Loans O Claim”) O (4) Ps’ claim and D’s counterclaim in relation to the Hang Tung P P Property (“Hang Tung Property Claim”) Q (5) D’s counterclaim in relation to the return of the Gold Zodiac Q Coins (“Gold Zodiac Coins Claim”) R R (6) D’s counterclaim in relation to the beneficial ownership in the S Investments (“Investments Claim”) S T T U U V V  - 22 - A A 53. I will consider the disputed issues chronologically according to B B the time of acquisition of the disputed properties and will start with the Hang C Tung Property Claim. C D D G. THE HANG TUNG PROPERTY CLAIM E E G.1 The agreed disputed issues F F 54. There were two agreed disputed issues under the Hang Tung G G Property Claim: H H (1) Was there an agreement of understanding between Father, I I Mother, P2 and Allan that the Hang Tung Property would be J held on trust for them? J K (2) What was the proportion of contribution by each of them to the K purchase price for the acquisition of the property? L L G.2 The relevant title documents M M N 55. The assignment for the Hang Tung Property was dated N 29 January 1976 and the consideration was HKD100,000 16 . It was O O purchased in the names of Mother and P2 as joint tenants. A mortgage P deed was entered into on 29 January 1976 by Mother and P2 with the Wing P Lung Bank to secure a loan of HKD 40,000 and interest17. According to Q Q R R S S 16 See Land Registry record, C1:152-156; assignment at C11:2490-2499 17 T C11:2500-2515 T U U V V  - 23 - A A the Land Registry Record, the mortgage to Wing Lung Bank Limited was B B reassigned on 10 April 1976, about 3 months later. C C 56. On 5 May 1978, there was a copy of an assignment by Mother D D of her interests in the property to P2 at a consideration of HKD 50,00018. E E G.3 Ps’ and D’s respective case F F G 57. D’s pleaded case in the RRADCC19 was that, amongst other G things, at the time of the acquisition of the Hang Tung Property, there was H H an agreement and common intention between Father, Mother, P2 and Allan I that each of them would contribute towards the acquisition as an investment I for Father, Mother and their children, and that such agreement was J J evidenced by the conduct of those parties subsequent to the acquisition. K Pursuant to and in reliance on such agreement and common intention, the K acquisition was financed substantially by contribution from Father, Mother, L L P2 and Allan, and that, Allan also incurred various expenses in the outgoings, M maintenance and repair of the Hang Tung Property. In the premises, P2 M held/holds the property on resulting or constructive trust for the benefit of N N Father, Mother, P2 and Allan and by virtue of the maxim “Equality is O Equity”, P2 held/holds the property on trust for the benefit of Father, Mother, O P2 and Allan in equal shares and P2 was liable to account for all profits and P P benefits derived therefrom. Q Q 58. D thus sought a declaration that P1 and/or P2 held/hold the R R Hang Tung Property on trust for Father, Mother, P2 and Allan in equal S S 18 C11:2516-2525 19 T See paras35A -35H, A1:63-65 T U U V V  - 24 - A A shares and an order of account for the profits and benefits derived from the B B Hang Tung Property. C C 59. Ps’ defence in the re-amended reply and defence to D D counterclaim (collectively “Reply”)20, was that Father together with each E of Ps had respectively contributed to the purchase price and/or mortgage E payments in respect of the acquisition of the Hang Tung Property and that F F each of them did so upon the understanding and expectation that the property G was to be a Lin Family property, and had been used for the benefit of the G members of the Lin Family, and that no rental income or profits were ever H H generated by the property. I I G.4 The Lin Family’s financial situation in early 1970s J J K 60. To start with, the financial situation of the Lin Family in early K 1970s appeared to be: L L M (1) Father had worked as a teacher at a government subsidized M secondary school, and after his retirement, he had continued to N N teach part time at Shue Yan College and in 1976, he (then about O 65 years old) was re- employed by another school Pooi Tun O Secondary School teaching Chinese language and Chinese P history and receiving a monthly salary of about HKD 1,800; P Q (2) In 1976, Mother was about 46 years old. She had always been Q a housewife and apart from occasionally working at home R assembling plastic flowers she had no other income. R S S 20 T See para 15B, A1:83 T U U V V  - 25 - A A (3) Since about August 1968, when Allan was about 20 years old B B and still studying at Baptist College, he started to work as a C clerk for Kowloon Motor Bus Company Limited (“KMB”) in C the evenings earning a monthly salary of about HKD 200 to D D HKD 300. In 1975, Allan graduated from Baptist College and E started teaching full time at a private school Wellington E 21 College, earning a monthly salary of about HKD 1,732 . F F (4) In 1972, when P2 was about 22 years old, he graduated from G the Faculty of Chinese Language at the New Asia College of G Chinese University, and obtained a Diploma in Education in H H 1973 and was a Graduate Master from 1973 onwards. In 1974, he started teaching at the Stewards Pooi Tun Secondary School I I (“SPTSS”) as a teacher in Chinese language and a disciplinary J teacher, and at the same time, he was also teaching at an J evening school. According to P2’s written evidence, he was K K earning a total of about HKD 2,200 per month at that time22; L (5) P5 started working in June 1970 upon graduating from L secondary school when he was about 18 years old23. He had M M worked as a salesman and in September 1974, he joined the N Hong Kong Government and started working as a traffic N warden. According to P5’s written evidence, his total income O was about HKD 40,695 between June 1970 and December O 1975. P P (6) P4 started working in August 1973 in a kindergarten when she Q was about 18 years old after graduation from secondary school, Q earning about HKD 450 a month. In April 1975, she started R R S 21 This can be seen from Allan’s Notice of Assessment of Salaries Tax for 1975/1976, C1:20 S 22 See para 10(4), A1:177 23 T See para 4, A1:236 T U U V V  - 26 - A A to work as a clerk in the Wing Lung Bank, initially earning B B HKD 650 per month, which was increased to HKD 1,050 a C month as from April 197624; C D (7) P3 also started to work as a salesgirl in 1973, after her D graduation from secondary school when she was about 18 years E old, and between 1973-1975, and her salary was HKD 350-600 E per month, and after 1975 she worked as an office worker and F F her salary was increased to HKD 1,400 per month25; G (8) Chung, being born in December 1960, was still at school. G H (9) Grandmother, about 64 years old in 1975, was the family H treasurer but she had never worked. I I J G.5 The alleged contributions/payments to Grandmother J K 61. As set out earlier, Grandmother was said to be in charge of the K family finances. According to P2’s oral evidence, in 1970, Father would L L pay Grandmother about HKD600 or HKD700 per month to maintain the M household and each of the working children would also pay a part of his/her M salary to Grandmother for household expenses, and Grandmother would N N save up and invest the savings. O O 62. It was P2’s oral evidence that prior to his marriage to Joanna in P P August 1981, he would usually hand over most part of his salary to Q Grandmother for her to save up and invest for him, although during the years Q R R S S 24 See para 4, A1:225 25 T See para 4, A1:200 and para 9, A1:201 T U U V V  - 27 - A A 1975-1980, he had asked Grandmother to pay Mother about HKD 200 per B B month for Mother as pocket money/allowances. C C 63. P3’s written evidence was that between 1973 to 1975, she was D D paying Grandmother HKD 100 per month initially, which was increased to E HKD 180 per month, and that she had also paid Mother about HKD 100 per E month as pocket money. By 1975, she had about HKD4,000 savings 26. F F G 64. As for P4, her written evidence was that between August 1973 G and March 1975, she was paying Grandmother and Mother each HKD 100 H H per month, and that after she started working for the Wing Lung Bank as a I clerk in April 1975, she started to pay Grandmother HKD 150 per month I and Mother HKD 100 per month and that by 1975, she had saved about J J HKD 5,00027 . K K 65. According to P5’s written evidence, he had paid Grandmother L L about 1/3 of his total income of HKD 40,695 between June 1970 and M December 1975, and he kept the balance for his own expenses and savings M and allowances to the elders28. According to him, in about 1975, he could N N only contribute HKD 8,000 from his savings towards the purchase of the O Hang Tung Property29. O P P 66. It was D’s evidence that as Allan, being the oldest child, wanted Q to alleviate the burden on his father to support the Lin Family of 9 members, Q R R 26 At para 4, A1:200 S 27 At para 5, A1225-226 S 28 See para 4, A1:226 29 T At para 6, A1:237 T U U V V  - 28 - A A he gave up the opportunity to study full time at a university when he was B B about 20 years old, and that later, Allan also gave up various opportunities C to go abroad to study in 1975, 1978, 1980 and 1984. Whether Allan had C given up an opportunity to study at a university or to go abroad or not, Allan D D being the oldest child and son, was the first of the six children to start E working, followed by P5 two years later in 1970 and the twins P3, P4 in E 1973, and then P2 in 1974. F F G 67. So far as P2 was concerned, although in the Reply, it was G pleaded that P2 had started working while he was a university student to H H help support the family30, there was no sufficient evidence as to what his I work was at the time when he was a university student and/or his then I earnings. During the trial, when he was asked, P2 claimed that between J J 1973-74 and between 1978-1979 he had taught at evening schools. He was K vague and I find no sufficient evidence of his income or contribution to K family expenses, if any, prior to him being formally employed by SPTSS in L L 1974. M M 68. D had produced a table of Allan’s income compiled by her N N based on the IRD notices of Allan’s salaries tax assessment commencing O from the year of assessment 1975/1976 until 2012/2013 (save for those O missing between 1980/1981 to 1983/1984 and including those joint salaries P P 31 tax assessment after marriage to D ) of which a revised copy was produced Q during the trial32 (“Accumulated Income Table”). Q R R S 30 At para 3.2, A1:79 S 31 C12:2588 32 T Exhibit P-4 T U U V V  - 29 - A A 69. Although there were no notices of salaries tax assessment B B between the years 1968 until 1975 available, D had compiled a table of C Allan’s teaching experience from 1 January 1975 to 5 June 2008 33 C (“Teaching Experience Table”), according to which, Allan started teaching D D 34 at Wellington College HK from 6 December 1974 . D had also produced E employers’ letters to show that Allan had worked as a clerk for KMB E between 8 August 1968 until 31 December 198835 and thereafter as a clerk F F 36 for Dah Sing Bank between 3 February 1989 until 31 December 1989 . G G 70. The evidence showed that by early 1975, Allan held at least H H two jobs, working as a clerk at KMB as well as a teacher at Wellington I College. When Allan started to work in 1968, Father was already about I 57 years old and was due to retire soon. It was not really disputed by Ps J J that Allan, after he started working in 1968 , he had also paid Grandmother K part of his salary for contributions towards household expenses 37 . No K doubt, in line with Ps’ case of Grandmother’s role as family treasurer and L L that she was good in investing, Grandmother would also have saved up for M M Allan any balance not used for household expenses and would have invested N the same for Allan. N O 71. Although Father retired from teaching at a government O subsidized school, as mentioned earlier, he did continue teaching part-time P P Q Q 33 R C12:2590 R 34 According to an undated resume of Allan produced by Ps, it was 1975-1977 that he worked for Wellington College, B1:176 S 35 C1:144, letter from KMB S 36 C1:145 letter from Dah Sing Bank Ltd T 37 See para 11, P2’s witness statement, 1.12.20, A1:177 T U U V V  - 30 - A A and later was re-employed in 1976 by Pooi Tun Secondary School earning B B HKD 1,800 per month. C C 72. What was clear was that there was no record or any D D documentary evidence as to the portion of salary or amount which each of E the then working children had paid to Grandmother in 1975, nor the amount E Grandmother had allegedly saved up from their respective contributions by F F 1975. Further, apart from P2 who claimed that he had paid Grandmother G most of his monthly income of HKD 2,200 prior to his marriage, leaving G only HKD 100 to HKD 200 for himself, the evidence of P3, P4, and P5 H H showed that they did keep part of his/her salary for their own expenses and I were also saving up on his/her own. I J J G.6 The alleged agreement and common intention K K 73. According to P2, although the consideration for Hang Tung L L Property was HKD 100,000, there was a discount from the developer and M that the net purchase price was HKD 98,000 only. There was no reflection M of this discount in the relevant title documents. Anyway, according to the N N alleged contributions by Ps, their total contributions towards the down O payment were HKD 60,000 with a mortgage loan was HKD 40,000. O P P 74. P2’s evidence was that the Lin Family had discussed the living Q environment at the Ping Shek Unit many times, and that in order to expand Q and to improve their living space, in 1975, the Lin Family decided to pool R R in their funds to purchase a private property and that it was Allan who first S learnt about the Hang Tung development, and after further discussion, the S T T U U V V  - 31 - A A Lin Family decided to pool in their funds and to buy the Hang Tung Property B B in the joint names of Mother and P2. C C 75. P2’s evidence was that at the time of pooling in their funds, D D Grandmother was the one who went and asked each of the family member E as to their savings, and that P5 had told Grandmother that he could only E afford HKD 8,000 out of his savings and that was why Grandmother F F suggested that Mother and the then 5 working children (P3 and P4 with help G from Grandmother) should contribute HKD 8,000 each and the 6 of them G then came up with HKD 48,000, ie HKD 8,000 each. Father then paid H H HKD 12,000 from his savings and monies held by Grandmother. The I monthly mortgage was paid by Grandmother from the household I contributions paid to her until Father paid off the balance of the mortgage J J loan out of his retirement fund of HKD 32,000. K K 76. P3’s and P4’s evidence was they only had respectively HKD L L 4,000 and HKD 5,000 savings of their own at the time, and that M Grandmother had to subsidize and make up their respective share of HKD M 8,000 for the purchase price. N N O 77. P2 to P5’s written evidence was that in 1976, after Father paid O off the outstanding mortgage loan, there was an oral agreement that Father, P P Mother and the then 5 contributing children that the 7 of them each held one Q equal share in the Hang Tung Property, totalling 7 shares38. Q R R S S 38 T See para 16, A1:179 T U U V V  - 32 - A A 78. On the other hand, D’s case was that at the time of purchasing B B the Hang Tung Property, P3, P4 and P5 had no financial ability to contribute C HKD 8,000 each and that the purchase of the Hang Tung Property was C funded by only Father, Mother, P2 and Allan, and that they should have D D equal beneficial interest. E E G.7 Analysis of the evidence and conclusion F F G 79. Although P2 admitted during the trial that he did not really G know how Father and/or Mother came up with their share of the down H H payment for the purchase of the Hang Tung Property, D did not challenge I that Father and/or Mother had contributed towards the acquisition costs of I the Hang Tung Property. She was mainly challenging the financial ability J J of P3-P5 to contribute HKD 8,000 towards the purchase costs. K K 80. As mentioned earlier, it was P5’s evidence that during the L L period of about 67 months between June 1970 to December 1975, his total M income was HKD 40,695. As to how he came up with the total amount of M HKD 40,695, P5’s evidence at the trial was during the first year, he was N N earning HKD 300 as a salesman which was gradually increased and that O before he joined the Government as a traffic warden in September 1974, his O monthly salary was already HKD 600, but such was all paid in cash and P P there was no documentary evidence. His evidence was that since he joined Q the Government, he had kept a record of his salaries in his computer but he Q had not produced the same. R R S 81. Assuming his income was a total amount of HKD 40,695 over S a period of about 67 months, this would mean that P5’s monthly income T T U U V V  - 33 - A A over that period was an average of about HKD 607 only. According to B B P5’s evidence in his witness statement, about 1/3 of his monthly salary (ie C about HKD 202) was paid to Grandmother as his contribution for household C expenses. During the trial, he claimed he would save about 1/3 of his D D monthly salary. However, this was not his evidence in his witness E statement in which he said he had kept the balance for his own spending, E paying pocket money to elders and for savings. Anyway, if he was indeed F F saving up 1/3 of his monthly salary, up to the end of 1975, he would have G some HKD 13,534 in total savings, and not merely HKD 8,000 odd. G H H 82. I therefore do not find there was sufficient evidence that P5 I was saving up as much as 1/3 of his salary. Having said this, there was no I sufficient evidence to contradict his evidence that at the time of the purchase J J of Hang Tung Property, he did have about HKD 8,000 in savings. K K 83. As for P3, she admitted during the trial that there was no L L documentary evidence of her monthly income as a salesgirl of HKD 350- M HKD 600 between 1973-1975 as such income was paid in cash, and she M could not recall whether she kept any record herself, and what she stated in N N her witness statement to be her savings of HKD 4,000 was also an O approximate amount only. She claimed that she had paid HKD 100-180 to O Grandmother as contribution towards household expenses, and that she had P P also paid Mother HKD 100 every month for her pocket money. P3 only Q Q graduated in 1973, presumably in summer that year, same as P4 and that she R only started to work thereafter. R S 84. Based on her own evidence, even if say, her average monthly S income was HKD 475 , it was unlikely that P3 would be able to save more T T U U V V  - 34 - A A than HKD 100 per month, or more than P4, and over a period of say B B 29 months from about August 1973 (same as P4) until the end of 1975, P3 C would have only been able to save about HKD 2,900. It was unlikely that C she would be able to save as much as HKD 4,000. When asked how D D Grandmother would have money to subsidize her share, P3 said E Grandmother had invested the money she had, and that she had the money. E F F 85. As for P4, her evidence was that her monthly salary when she G worked for a kindergarten between August 1973 to March 1975 was HKD G 450, namely a total of about 20 months, and that she had given Grandmother H H HKD 100 per month for household expenses and HKD 100 to Mother, and I as her uniform and lunches were provided by the kindergarten, she only I needed to spend HKD 150 per month on herself, and she was able to save J J HKD 100 per month. Thus over the period of 20 months, her savings K would only be about HKD 2,000. From April 1975 until the end of K December 1975, a period of 9 months, P4’s monthly salary from working as L L a clerk for Wing Lung Bank was HKD650, and her evidence was that she M M paid Grandmother HKD150, Mother HKD100, and that she only needed N HKD 120 per month for her own expenses. Even if she were to save all N the rest of HKD 280 per month, her savings over 9 months would only be O O HKD 2,520. Thus, her total savings between August 1973 and December P 1975 would have been only about HKD4,520 (HKD2,000+HKD2,520), ie P just short of HKD 5,000. Q Q R 86. Having considered the above, to summarise, although there R was no sufficient evidence to contradict P5’s evidence that he had savings S S of HKD 8,000 in 1975, I find that P3 and P4 would not have sufficient T savings to come up with a contribution of HKD 8,000 each. This does not T U U V V  - 35 - A A mean that P3 and P4 could not have made some contributions from whatever B B savings they had. As said, their evidence was that Grandmother had helped C them to make up the balance their respective share of HKD 8,000. C D D 87. When asked during the trial why Grandmother did not have a E share in the Hang Tung Property, P5’s answer was that Grandmother herself E did not wish to own a share as she was not greedy. P3 had also said during F F the trial that Grandmother did not want any share and that the others did not G object. G H H 88. Although D did not dispute P2’s financial ability in 1975, P2’s I own evidence during the trial was that as he had handed over most of his I monthly salaries to Grandmother, she was the one who paid for his share of J J HKD 8,000 on his behalf. K K 89. Notwithstanding Ps’ respective evidence, as said earlier, there L L was really no sufficient evidence as to how much Grandmother had saved M up from the contributions paid to her by Father and/or the working family M members for household expenses, and what savings and/or investments she N N had made out of the balance not used for household expenses. O O 90. Having said this, it was also clear that whether it was D’s case P P or Ps’ case, although the legal title of the Hang Tung Property was to be held Q by Mother and P2 as joint tenants, the agreement and/or common intention Q was that the beneficial ownership of the Hang Tung Property was intended R R to be different from the legal ownership, namely Mother and P2 were only S trustees at the time of the acquisition. The dispute between Ps on one side S T T U U V V  - 36 - A A and D on the other was essentially whether P3-P5 should have an equal share B B with Father, Mother, P2 and Allan. C C 91. D’s pleaded case was rather vague, in that all that was pleaded D D was that that the agreement and common intention was that each of Father, E Mother, P2 and Allan would contribute towards the acquisition of the E property as an investment for Father, Mother and their children and there F F were no particulars as to what was the agreed amount each was to contribute, G and/or whether it was agreed and/or intended that all the children would G have a beneficial share in addition to Father and Mother. H H I 92. D’s evidence in her witness statement39 was that Allan had told I her that it was his decision to purchase the Hang Tung Property and that J J there was a mortgage loan the balance of which was paid off by Father from K his provident fund and that Allan had contributed towards the purchase price K and mortgage loan repayments and that Allan had told her that he had a share L L in the Hang Tung Property. D had also produced various documents to M support her case that Allan had made contribution towards the acquisition M of the property. N N O 93. Further, D’s evidence in her witness statement was that at the O time of acquisition, compared to Mother, P3-P5, she believed that Father, P2 P P and Allan would have better financial ability to be responsible for the Q payments for the acquisition of the Hang Tung Property “我相信江父, 江 Q R 和覺當時較具有財政能力負責恆通物業的資金”40. Although it was not R S S 39 Para 12, A2:264 40 T See para 50(3), A2:277 T U U V V  - 37 - A A quite clear in their pleadings, it was confirmed during the trial that Ps did B B not dispute that Allan had contributed towards the acquisition of the property C but their case was that he should have an equal share in the Hang Tung C Property, namely 1/7 of the beneficial interest. D D E 94. In any event, there was no sufficient evidence produced by D E as to the respective contribution made by Father, Mother, P2 and Allan. F F G 95. Although P2’s written evidence seemed to be that the G agreement/common intention was formed after Father had paid off the H H mortgage loan, P3 had said during the trial that Ps knew already at the time I of acquisition as to when Father was due to receive his provident fund and I that at the time of the acquisition that they had already discussed and agreed J J there be 7 equal shares. K K 96. As said, there was no sufficient evidence to contradict P3’s and L L P4’s evidence that they did have some savings of their own and that they did M contribute their own savings toward the purchase of the Hang Tung Property. M N N 97. Ps’ case in relation to their common intention was not that the O beneficial interests in the Hang Tung Property should be held in trust for the O beneficial owners in accordance with their respective amount of P P contributions, since Father had clearly contributed substantially more than Q the others but being their family home, Father and Ps and Allan should each Q have an equal share as they had all contributed. R R S 98. Having considered all the evidence, I find Ps’ case to be more S probable, namely that the agreement and common intention at the time of T T U U V V  - 38 - A A acquisition was that Hang Tung Property was to be held on trust for 7 family B B members, namely Father, Mother, and the then working children, namely C P2-P5 and Allan in equal shares. If Father died intestate on 28 May 1977, C his share should devolve to Mother, Allan and P2-P5 in accordance with the D D then version of the Intestates’ Estate Ordinance, Cap 73. E E 99. Upon Father’s death, Mother and P2, and later P2 alone, held F F the property on trust for Father’s estate, Mother, Allan, P2-P5 in equal shares. G Upon Allan’s death, P2 held the property on trust for Father’s estate, Mother, G the Estate, P2-P5 in equal shares, and upon Mother’s death, P2 held and still H H holds the property on trust for Father’s estate, Mother’s estate, the Estate, I P2-P5 in equal shares. I J J 100. Even though the Hang Tung Property was regarded as the K “family home”, it appeared that not all the beneficial owners held a set of K keys. Allan was using the Hang Tung Property for his correspondence L L address and he was at the Hang Tung Property when he passed away. As M seen later, although Mother moved to reside with P2 and Joanna in the Ma M On Shan unit, she had also occasionally stayed or used the Hang Tung N N Property. However, the fact is 3 out of the original beneficial owners have O now passed away and the remaining 4 have their own separate residences. O Even though the property was a family home, D/Estate or Allan’s son had P P not been provided with a key for use of the property or even access thereto. Q It was also not Ps’ pleaded case, nor was there any sufficient evidence that Q R there was any agreement or common intention between the 7 beneficial R owners that the property was never to be sold or rented out particularly after S S Mother’s death, even though prior thereto, some of the beneficial owners T had stayed or resided there rent free. Further, as there were 7 equal T U U V V  - 39 - A A beneficial owners, the outgoings and expenses of the Hang Tung property B B should be shared by the 7 beneficial owners equally from date of acquisition, C subject to any agreement to the contrary. C D D 101. I am therefore of the view that D/Estate is entitled to an account E and enquiry into the benefits and outgoing and expenses of the property. I E will hear parties on further directions as to how and from when the account F F and enquiry is to be taken. G G H. THE BENEFICIAL OWNERSHIP OF THE WAH LAI H H PROPERTY I I H.1 The disputed issue J J 102. The Wah Lai Property was not actually subject to Ps’ claim in K K the SOC, or D’s counterclaim in the RRADCC. It was only Ps’ case that L L they had beneficial interests in the Wah Lai Property together with Allan in M equal shares and the net sale proceeds and rental income of the Wah Lai M Property were applied towards the purchase of the Scenic Garden Property. N N Ps had thus contributed towards the purchase of the Scenic Garden Property, O which was subject to their claim in the SOC. O P H.2 The relevant title documents P Q Q 103. The preliminary sale and purchase agreement for Wah Lai R Property was signed on 16 March 1980 41 , the formal sale and purchase R agreement was signed on 23 August 1980, and the assignment was signed S S 41 T C2:248 T U U V V  - 40 - A A on 12 October 198142. The purchase was in the joint names of Mother and B B Allan and the consideration was HKD 299,340. C C 104. According to the preliminary sale and purchase agreement, the D D temporary deposit paid was HKD 10,000 and the balance of deposit of HKD E 19,972 was to be paid on or before 23 March 1980. Thereafter, there were E 4 bimonthly payments of HKD 14,967 each, to be paid on or before 1 May F F 1980, 1 July 1980, 1 September 1980, 1 November 1980. The balance of G HKD 209,500 was to be paid in one sum within 7 days upon issue of G occupation permit. H H I 105. On 6 August 1984, the property was transferred by deed of gift I from P3 to Allan, since when it was held in Allan’s sole name 43, until its J J sale. K K 106. Wah Lai Property was sold in July 1996 at HKD 1,680,000. L L The agreement for sale and purchase for the sale of Wah Lai Property was M dated 25 June 1996 and and the assignment was signed on 25 July 199644. M N N H.3 Ps’ and D’s respective case O O 107. According to Ps’ pleaded case , amongst other things, 45 P P Q Q R R 42 B1:83, 85 S 43 See Land Registry Record, B1:84 S 44 See supra 45 T See paras 8-10, A1:4, and also answer to request 1, A1:40 T U U V V  - 41 - A A (1) The purchase price and expenses associated with the B B acquisition of the Wah Lai Property were shared between Allan C and Ps in equal shares at around HKD 50,000 each. C D (2) It was intended to be a family asset held on trust for the 6 of D them in equal shares and the intention was formed in around E October 1981 in the course of oral discussions and conduct of E Ps and Allan leading up to purchase of the Wah Lai Property. F F (3) Allan and/or P3 at all material times held the Wah Lai Property G together with all income and proceeds generated therefrom as G trustees for and on behalf of the 6 of them. H H I 108. D’s pleaded case in the RRADCC was that all or any of Ps I could not have the financial resources to contribute towards the purchase J J price and expenses associated with the acquisition of the Wah Lai Property K as claimed, and that according to papers discovered by D in Allan’s personal K property, P3 had been receiving a monthly allowance of HKD 2,000 from L L Allan for a substantial period of 19 years, the exact years of which D had no M knowledge46. D denied that Allan and/or P3 had at all material times held M the Wah Lai Property and all income and proceeds thereof as trustees for Ps N N 47 and Allan in equal shares . O O H.4 The Lin Family’s financial situation in early 1980 P P Q 109. P2’s evidence at the trial was that at the time of the purchase of Q the Hang Tung Property, the Lin Family members had come up with as R R S 46 S It appeared during the trial that the document relied on by D at C11:2339 in fact referred to the monthly allowance of HKD 2,000 being paid to Mother’s brother and not P3. 47 T See paras 4-7, A1:54 T U U V V  - 42 - A A much money as possible to reduce the amount of the mortgage loan required. B B P2 accepted that after the purchase of Hang Tung Property, between 1975 C and 1980, there would not have been much savings left in the family, C although P2’s evidence was that this did not continue to be the situation until D D 1981. E E 110. As the mortgage loan appeared to be only for some 3 or F F 4 months only, had the Lin Family members been able to come up with G sufficient money at the time of the completion of the acquisition of the Hang G Tung Property, there would not have been any need to obtain the mortgage H H loan. Ps’ own evidence clearly showed that upon the completion of the I purchase of the Hang Tung Property on 29 January 1976, the then savings I of everyone (ie Father Mother, Allan, P2-P5, and Grandmother, if any) J J would have been mostly, if not all, exhausted. K K 111. The preliminary sale and purchase agreement for the Wah Lai L L Property was signed in March 1980 and completed in October 1981, about M 5 years and 8 month after the completion of the acquisition of Hang Tung M Property. N N O 112. Father had passed away in May 1977. Mother was then about O 50 years old. Grandmother was then about 68 years old. As before, they had P P no income save whatever payments for household expenses/allowances/ Q pocket money received from the working members of the Lin Family. Q R R 113. In March 1980, Allan was almost 32 years old and between S 1 September 1979 and 31 August 1980, he was teaching at Kiangsu- S T T U U V V  - 43 - A A Chekiang College48 as well as Delia Memorial School49. According to his B B notice of salaries tax assessment for 1979/198050, his income from principal C employment was HKD 19,405 and from other employment was HKD C 28,085, totalling HKD 47,490, or average of about HKD 3,958 per month. D D E 114. P2 was then 30 years old, and by early 1980, he had been E teaching at the SPTSS for almost 5 ½ years. According to his witness F F statement, his then salary was a total of HKD 4,000 per month. He had G met Joanna who started teaching at the same school since 1975 and they G started dating in about 1977/1978. They were married in August 1981, H H before the completion of the purchase of the Wah Lai Property. I I 115. P5 was then 28 years old and in early 1980 he had been with J J the Government some 5 ½ years, and by early 1980, he was a traffic K supervisor. According to P5, between January 1976 and September 1981, K ie 69 months, his total salary was about HKD 141,200. This would thus be L L an average of about HKD2,046 per month. His oral evidence was that he M and his wife who was his colleague started dating in about 1978 and they M were married in 1982. According to P5, they had been respectively saving N N up even when they were dating as it was their plan to buy a Housing O Authority unit after marriage. O P P Q Q R R S 48 C1:98 S 49 C1:99-100 50 T C1:28 T U U V V  - 44 - A A 116. P3 was then about 25 years old. After purchase of the Hang B B Tung Property, she had worked for different companies and her monthly C salary was increased from HKD 600 to HKD 1,400. C D D 117. P4, also then about 25 years old, had by then worked as a clerk E for the Wing Lung Bank for about 5 years, and according to her, her monthly E salary in 1976 of about HKD 1,050 was increased to about HKD 2,800 in F F 1981. G G 118. Chung was then 20 years old and still studying. H H I H.5 Ps’ and Allan’s alleged savings I J 119. According to Allan’s notices of salaries tax assessment for the J K 5 years 1976/1977 throughout to 1979/1980 51, his total assessable income K for that period of 5 years was HKD 153,678. It was not clear how much L L Allan had contributed to Grandmother for the family household expenses or M to Mother for pocket money, or kept for his expenses or savings, but I find M the evidence showed that he, like P2, was frugal and that Allan was keen in N N investing money and in exploring ways to maximise his savings. If he had O paid Grandmother and Mother a total HKD 280 per month like P4, and kept O HKD 100 for his own spending, he could save the bulk of his assessable P P income of some HKD 130,000 over the 5 years, and invest the same. Q Q 120. D’s oral evidence was that Allan had told her that the blue chip R R shares which Allan purchased had out-performed the market 3 times in the S 1970s, and that prior to their marriage in August 1986, Allan had told her S 51 T C1:22-29 T U U V V  - 45 - A A that he had savings of about HKD 700,000. There was however no B B sufficient evidence as to which blue chip shares D was referring to, nor was C there any sufficient evidence of the amount of savings Allan had by early C 1980. However, having considered Allan’s accumulated income and he D D was then living at the Ping Shek unit, as said, he could save some HKD E 130,000 over the 5 year period and invest the same. I find it was probable E that Allan could come up with at least 50% of the acquisition costs of Wah F F Lai Property, from his savings and investments. G G 121. P2’s oral evidence was that prior to his marriage, he handed H H over almost all his entire monthly salary to Grandmother. During the trial, I he had said that Grandmother was saving half of his payments for him. I I find no sufficient evidence as to how much Grandmother had saved up for J J him. In any event, based on P2’s own evidence, he would not have much K savings of his own at the time of the acquisition of the Wah Lai Property. K When asked during the trial, P2’s evidence was that his share/contribution L L of HKD 50,000 for the acquisition of Wah Lai Property was paid by M M Grandmother out of the monies she had saved for him. N N 122. P3’s written evidence was in about 1980, she was paying about O 50% of her monthly salary to Grandmother and Mother, and that her own O savings were about HKD 37,000, and that Grandmother had subsidized P P HKD 13,000 on her behalf. Q Q 123. P4’s written evidence was that every month, she would pay R R Grandmother HKD 180 and Mother HKD100, and that her own savings S between 1976 to 1981 were HKD 110,000. S T T U U V V  - 46 - A A 124. As for P5, his oral evidence was that at the time of acquisition B B of the Wah Lai Property, he had savings of about HKD 90,000 of his own. C C H.6 The alleged agreement and common intention D D E 125. According to Ps, the agreement and the common intention of E for the acquisition of the Wah Lai Property was similar to that of Hang Tung F F Property, which was that Mother and the then 5 working children were to G contribute equally, namely HKD 50,000 each, but this time, the property G would be purchased in the joint names of Allan and P3 to hold on trust for H H Ps and Allan. Grandmother would supplement the rest of the expenses, I such as legal costs and renovation expenses, and Chung would not be I contributing as he was still studying. According to Ps, the reason why P5’s J J name was not used was because he, being a government servant, was K planning to purchase a Housing Authority unit, which he did subsequently K in 1987. Further according to Ps, the reason why P4’s name was not used L L as she was planning to emigrate after marriage. M M 126. As D’s case was that none of Ps had the financial ability to N N contribute towards the purchase of the Wah Lai Property at the time except O Allan, her case was thus Allan was the one solely responsible for the O payment of the entire purchase price of the Wah Lai Property and that he P P was the sole beneficial owner. Q Q H.7 Analysis of the evidence and conclusion R R 127. When asked during the trial if Allan was the one who had paid S S solely for the purchase of the Wah Lai Property, why did Allan want to T T U U V V  - 47 - A A purchase the property in joint names with P3 as joint tenants, the initial B B explanation D came up with was that in the event of anything happening, C the Government should not be benefited. She later tried to retract her C answer. Her explanation did not really make sense, since if anything were D D to happen to Allan ie that if he were to pass away, had Allan been the sole E legal and beneficial owner of the property, the property would have E devolved upon Allan’s estate in accordance with the Intestates’ Estate F F Ordinance, and would not have gone to the Government. Having said this, G D would not have any direct personal knowledge as to the reason why Allan G bought the property in joint names with P3. P3’s explanation was that H H Allan and she were only trustees holding the property for family members I and she did not wish to be a registered owner of Wah Lai Property after her I J marriage as she and her husband were planning to apply for a Housing J Authority unit. However as Ps’ case was that it was the family tradition K K for more than one family member to hold a family investment, it was not L consistent with their case for P3 to transfer her title to only Allan. In fact, L notwithstanding the transfer to Allan’s sole name on 6 August 1984, some M M of the rent had been collected by P3 in 1994 and the 1994/1995 Property N Tax Notice of Assessment was addressed to both Allan and P3. P3’s N evidence was that she was collecting the rent upon Allan’s direction and that O O she handed the rent to him, but there was no sufficient evidence of this. P P 128. D had relied on the fact that the payments for the acquisition of Q Q the Wah Lai Property were made from bank account/s held in Allan’s sole R name. This would however not mean that such payments were made from R Allan’s own funds/savings without contributions from others. S S T T U U V V  - 48 - A A 129. Having considered all the evidence, I do not find sufficient B B evidence that Allan would have the financial ability to fund the purchase C price of the Wah Lai Property of HKD299,340 in 1980/1981 solely on his C own. D D E 130. However, Ps’ evidence as to their respective contributions were E also confusing and not consistent. In any event, there was no sufficient F F evidence that Mother had HKD 50,000 savings to contribute and/or to have G contributed that amount. Ps’ evidence that it was in about 1980 that the G agreement and common intention was formed between Ps and Allan to H H purchase the Wah Lai Property, with each contributing HKD 50,000 equally I and that they each was to have an equal share in the property. This was not I consistent with their pleaded case that the agreement and common intention J J was formed in or around October 198152. K K 131. Anyway, on Ps’ own case, it was Grandmother who had paid L L the HKD 50,000 on behalf of P2, and it was Grandmother who had M subsidized HKD 13,000 on behalf of P3. When asked whether Grandmother M had to sell some shares in order to come up with the cash, P2’s evidence was N N that Grandmother had bought shares in Dairy Farm which was then taken O over by Hong Kong Land and she made a lot of money. However, the O Hong Kong Land take over was in 1972. When this was pointed out to P2, P P he then said vaguely that Grandmother had made some money investing in Q Q shares and that was why she had helped in subsidizing the purchase of the R Wah Lai Property. R S S 52 T See answer 1(a) to (c), A1:40 T U U V V  - 49 - A A 132. There was simply no sufficient evidence as to what shares B B Grandmother had invested in or the amount of funds she had in early 1980 C to October 1981. There was no sufficient evidence that Grandmother had C paid HKD 50,000 on behalf of P2 and HKD 13,000 on behalf of P3. D D E 133. P5’s evidence during the trial was that after contributing HKD E 8,000 for the purchase of the Hang Tung Property, he only had a few F F hundred dollars left. However, P5’s oral evidence was that he had savings G of about HKD 90,000 at the time of acquisition of the Wah Lai Property, ie G in early 1980. P5 got married in June 1982, and he had disclosed during the H H trial he had met his wife in 1978 when they were colleagues, and that during I the time they were dating, they were already saving up to purchase their own I Housing Authority unit through the government housing scheme for civil J J servants. What was not disputed was that P5 and his wife did eventually K purchase a the Lung Poon Unit from the Hong Kong Housing Authority on K 27 November 1986 and the consideration was HKD 235,700 53. There was L L no mortgage loan. When asked during the trial as to the source of his share M of the funds for the purchase of the Lung Poon Unit, P5’s response was that M N Mother had lent him HKD 50,000 to pay for the purchase which he had also N said he did not need to repay. O O 134. Having considered P5’s evidence, in light of the fact that P5 P P was already saving up and planning to get married and to buy a flat with his Q Q wife, it did not seem probable that he would then contribute a sum which R R S S 53 T B3:651 T U U V V  - 50 - A A was more than 1/3 of his total income over some 69 months towards the B B purchase of the Wah Lai Property. C C 135. P4 claimed to have savings of about HKD 110,000 at the time D D of the acquisition. P4 had continued to work at the Wing Lung Bank and E had a steady income but there was no sufficient evidence that she had E savings of about HKD 110,000 or that she had contributed $50,000 towards F F the acquisition of the Wah Lai Property. G G 136. Having considered all the evidence, even though I do not find H H sufficient evidence that Allan would have the financial ability to fund the I acquisition of the Wah Lai Property solely on his own, I find Ps’ evidence I in this respect was unsatisfactory. I find no sufficient evidence that there J J was an agreement or common intention between Ps and Allan that the Wah K Lai Property was to be held by Allan and/or P3 on trust for Ps and Allan in K equal shares. I have found earlier it was probable that Allan could come L L up with at least 50% of the acquisition costs of the Wah Lai Property. The M property was acquired in the joint names of Allan and P3. I find Allan M and/or P3 had held 50% of the beneficial interests in the Wah Lai Property N N on trust for Allan. O O I. THE SOUTH HORIZON PROPERTIES CLAIM P P Q I.1 The agreed disputed issues Q R 137. There were 2 agreed disputed issues under this claim: R S S T T U U V V  - 51 - A A (1) Was there an agreement or understanding between P1-P4 and B B Allan that the South Horizons Properties would be held on trust C by P2/Allan/D as legal title holders, respectively for and on C behalf of P1-P4 and Allan in proportion to their contribution to D D the purchase price? E (2) What was the proportion of contribution to the purchase price E of the South Horizons Properties? F F G I.2 The relevant title documents G H H 138. There were 3 flats in the South Horizons development which I were purchased as follows: I J J (1) Flat 33D was purchased in the joint names of Allan and D as K joint tenants at a consideration of HKD 2,152,600. The sale K and purchase agreement was dated 1 April 1993 and the L assignment was dated 9 May 199454. L M (2) Flat 25D was purchased in the sole name of P2 at a M consideration of HKD 2,040,038. The sale and purchase N N agreement was dated 4 May 1993 and the assignment was dated 21 May 199455. O O (3) Flat 39F was purchased in the sole name of Allan at a P P consideration of HKD2,459,184; the sale and purchase agreement was dated 4 May 1993 and the assignment was dated Q Q 56 21 May 1994 . R R S 54 B1:106,108 S 55 B1:99,101 56 T B1:113,115 T U U V V  - 52 - A A 139. Flat 33D was sold in April 2013 for HKD 6,300,000. The B B formal sale and purchase agreement was dated 7 December 2013 and the C assignment was dated 12 April 201357 . C D D 140. Flat 25D was sold in March 2014 for HKD 6,330,000. The E formal sale and purchase agreement was dated 17 January 2014 and the E assignment was dated 12 April 2014 58. F F G I.3 Ps’ and D’s respective case G H H 141. It was Ps’ pleaded case that in around May 1993, there was the I Joint Decision and P1-P4 and Allan agreed to put forward their names (as I well as D’s name) in the ballot drawing system for the first hand sales of the J J South Horizons residential estate development59. Any successful applicant K would acquire the relevant property in his/her name for the benefit of P1-P4 K and Allan. Profits/rental income generated from the properties would be L L held on trust for the benefit of P1-P4 and Allan.P1-P4 agreed to apply their M share of the Family Fund towards the purchase price of the South Horizon M Properties. N N O 142. As for D, she denied Ps’ case and put Ps to strict proof of the O matters alleged by them60. D was not privy to the alleged Joint Decision, P P and her case was that P1-P4 could not have the financial resources to Q Q R R 57 B1:1060107, 110 S 58 B1:99,103 S 59 See para 13, A1:5 60 T See paras 9-19, A1:55-58 T U U V V  - 53 - A A contribute towards the purchase price and expenses associated with the B B acquisition as claimed. C C I.4 Whether the alleged Family Fund existed D D E 143. According to Ps, the total purchase price and acquisition costs E of the 3 South Horizon Properties was HKD 6,931,386.25 . 61 It was Ps’ F F pleaded case that the total amount was paid out of the alleged Family Fund. G G 144. The first question was therefore whether the alleged Family H H Fund existed. I I 145. It was argued on behalf of Ps that D had admitted to the J J existence of the Family Fund in her pleadings62. Although D did admit to K the existence of “some kind of family fund arrangement” between the Fund K Parties, she had pleaded clearly that she had no personal knowledge of when L L such arrangement came into place and the terms and content of such M arrangement and that Ps were put to strict proof of what was pleaded in their M SOC63. This was also D’s written evidence, namely that even if the Family N N Fund alleged by Ps did exist, she did not know the details such as source of O funds, the beneficiaries, the assets, the administration, and the validity O period etc. P P Q 146. During the trial, D had explained that she did not accept the Q existence of the Family Fund, and she only agreed that Allan had “金錢來 R R S 61 See Annex C, Ps’ Closing Submissions. S 62 See para 8, A1:55 63 T Ie paragraphs 11 and 12 of SOC T U U V V  - 54 - A A 往”, ie monetary transactions, with the other family members, but she would B B not know nor was she clear whether such transactions would constitute a C family trust fund, ie the Family Fund, or not. It was also her oral evidence C that Allan did tell her that he wanted to establish a “信托基金” but as D D everyone had different intentions, and it was a “broken dream” (夢碎). E E Although this evidence was not in her witness statement, she had produced F a handwritten note of Allan’s in which Allan had written , amongst other F words, “連家信托基金夢碎”64 (“Broken Dream Note”). G G H 147. The reference in the Broken Dream Note to the dream of a Lin H Family’s trust fund being broken would not be sufficient to mean that a trust I I fund, or the alleged Family Fund, had been established as pleaded by Ps. J Having considered D’s evidence, I find she only admitted to there having J been some monetary transactions between Allan and his family members. K K In my view, there was no admission on D’s part to the existence of the L L Family Fund as pleaded by Ps, and the burden was on Ps to satisfy this Court M their pleaded case. M N 148. In Ps’ Closing Submissions, their counsel Mr Chan had N submitted that the “Family Fund” was simply a “convenient shorthand” to O O describe the fund-pooling arrangement to which Ps contributed over the P P years, allowing Allan to invest for all of them to generate returns from their Q savings. It was also clarified on behalf of Ps that they were not making any Q claim in this action in relation to the alleged Family Fund, nor were they R R seeking an account of the funds in the alleged Family Fund, but “the S existence of the Family Fund explains how Allan was able to arrange the S 64 T C11:2340 T U U V V  - 55 - A A purchase of the South Horizon Properties and the Scenic Garden Property B B using funds contributed by Ps”65. C C 149. Whatever they may now describe it, Ps’ pleaded case was that D D since the acquisition of the Wah Lai Property66, Allan and P1, P2, P3, and E P4, agreed to set up a pool of funds to be contributed by the 5 of them from E time to time, namely the Family Fund , which was agreed to be managed by F F Allan as trustee for and on behalf of the 5 of them. G G 150. Further, in answer to D’s request for further and better H H particulars67, Ps’ answers were that (i) the Fund Participants agreed to set up I the Family Fund in or around 1981, shortly after the acquisition of the Wah I Lai Property, (ii) the alleged agreement to set up the Family Fund was oral J J and by conduct, (iii), the alleged agreement was not formally recorded in K any document by reason of the trust and confidence of the Fund Participants, K and (iv) the Fund Participants made contributions to the Family Fund by L L entrusting their contributions by cash to Allan or by bank transfer to Allan’s M bank account and thereafter, Allan was entrusted with administering and M maintaining the Family Fund. N N O 151. Thus, Ps’ pleaded case was that there were 5 Fund Participants O who agreed to set up the Family Fund in or around 1981. To put it in P P context, in around 1981, Mother was about 51 years old, Allan was about Q 33, P2 about 31, P3 and P4 were both about 26 years old. Q R R S 65 See para 29, pg 7 Ps’ Closing Submissions 30.03.23 S 66 See para 11, A1:4 67 T See request 2, and answers thereunder, A1:41-42 T U U V V  - 56 - A A 152. First, as to the Fund Participants, Ps’ respective written B B evidence was confusing and not really consistent with each other and/or their C pleaded case. P2’s written evidence was that “本人,外婆,母親,四妹及 C D 五妹投資的金額當作家族基金”,namely there were 6 persons who had D contributed towards the Family Fund, including Grandmother (who was E E 70 years old in 1981 ) and Allan himself 68. On the other hand, P3’s written F evidence was that those who had participated in investing with Allan F between 1981 and 1994 were P2 and his wife, Mother, P4, and herself69. G G P3 had explained in her witness statement why P5 and their youngest brother H Chung did not participate, but she then went on to say although Grandmother H had invested with her good friend/s, due to her age, Grandmother also I I decided to hand over her investment matters to Allan. As for P4, her J written evidence was that those who participated in investing with Allan J during 1981 to 1994 were Mother, P2 and his wife, P3 and herself70, and that K K prior to her emigration to the States in 1987, her savings of about L HKD400,000 had been handed over to Grandmother for safekeeping and to L manage, and after her emigration, Grandmother participated in the Family M M Fund on her behalf. N N 153. Thus, it would appear from P2’s evidence that Grandmother O O was one of the Fund Participants, although it was not so clear from P3’s and P P4’s written evidence, whether Grandmother was participating in her own P right or on behalf of P3 and P4. Further, P3 and P4 appeared to have Q Q regarded Joanna as also being one of the Fund Participants. R R S 68 See paras 39, 40, A1:183 S 69 See para15, A1:202-203 70 T See para 21, A1:228 T U U V V  - 57 - A A 154. Second, Ps’ written evidence as to when the Fund participants B B agreed to set up the Family Fund was also confusing and inconsistent with C their pleaded case. C D D 155. As the purchase of the Wah Lai Property was completed on E 12 October 1981, Ps’ pleaded case would mean that the Family Fund was E agreed to be set up shortly thereafter in around 1981. F F G 156. However, this did not really accord with Ps’ written evidence. G H H 157. According to P2’s written evidence, after the purchase of the I Wah Lai Property, Allan started to invite P2 to pool in his funds to jointly I place on “large sum fixed deposit”, or for foreign currency investment J J (mainly to place on sterling deposits), or to use P2’s name to subscribe for K new shares and/or to buy shares 71 . P2 had also stated in his witness K statement that prior to P4 emigrated to the States in 1987, after discussion L L with P4, Grandmother decided that P4’s savings of about HKD 400,000 M (which had been placed with Grandmother) be handed over to Allan for “代 M 管及投資”. At the same time, Allan also invited Mother and P3 to jointly N N invest. P2 had also explained that as P5 had bought his own unit in 1987 and O O needed funds, he did not participate in the Family Fund 72 . Thus, P2’s P written evidence was that Allan started to only invite P2 to jointly invest in P 1981, and that Grandmother then joined on behalf of P4 before P4’s Q Q R R S S 71 See para 34, A1:182 72 T See paras 35-37, A1:182 T U U V V  - 58 - A A emigration in 1987, and that it was at that same time, namely 1987, that B B Allan invited Mother and P3 to join in. C C 158. P3’s evidence in her witness statement was that between 1981 D D and 1994, those who had joined in investing with Allan were P2 and his wife, E Mother, P4 and P3 herself. She had also mentioned that as Grandmother was E responsible for taking care of her when she was a baby, Grandmother was F F fond of her and had all along given P3 money to place on fixed deposit and G that in 1986, P3 had a fixed deposit at the Shanghai Commercial Bank of G about HKD 150,000, and that according to her knowledge, Grandmother H H had also given money to Allan as contribution on behalf of P3, for the I purpose of trading in shares and to place on fixed deposit to earn higher I interest, and that in 1990, Allan told her that the principal of the fund he was J J managing for Grandmother and P3 was about HKD 450,000, and that K Grandmother had continued to authorise Allan to invest the principal on P3’s K behalf73. L L M 159. P3’s written evidence seemed to indicate that in 1986, she had M a fixed deposit in her own name, and she did not have any direct knowledge N N as to when Grandmother had given money to Allan on her behalf for O investments. O P P 160. As for P4, as mentioned earlier, her evidence in her witness Q statement was that after her emigration, her savings and MPF totalling about Q HKD 400,000 were handed to Grandmother to manage, and that R R 74 Grandmother participated in the Family Fund on her behalf . In short, S S 73 See paras 20-22, A1:204 74 T At para 24, A1:229 T U U V V  - 59 - A A P4’s written evidence was that she only joined /participated/ became one of B B the Fund Parties after her emigration in May 1987. C C 161. P2, P3, and P4’s respective oral evidence was even more D D confusing and inconsistent with their respective written evidence and/or E with each other’s evidence. E F F 162. When asked during the trial when P2 was first invited by Allan G to pool in funds to be placed on “large sum fixed deposit”, he said it was in G around 1985. He had also said latter part of 1984 or after1984. When H H pressed as to when P2 joined in the investment in forex/foreign currency I fixed deposit, he said it was during the latter part of 1980s and that he had I to check the Po Sang Bank fixed deposit confirmation. P2’s oral evidence J J was inconsistent with his written evidence in which he had said it was since K the acquisition of the Wah Lai Property in 1981. K L L 163. Although P2 mentioned that Allan also invited Mother and P3, M he admitted during the trial that he was not in fact clear whether Allan M invited others to pool in their funds. Later, he then changed and said he N N did know that Allan did invite others but could not recall when, and that he O did not know whether the others had contributed/pooled in their funds or not. O Upon further cross examination that in Ps’ answer to D’s request for P P particulars, Ps had said it was in around 1981, P2 responded by describing Q the period prior to 1984 as the “醞釀期”, or “brewing period”, and that it Q R was only later in 1984 that the alleged Family Fund was officially R established and that it was Allan who proposed to call it “家庭基金” in 1984. S S P2 then also said it was not until after the establishment of the Family Fund T T U U V V  - 60 - A A in 1984 that the funds therein were used to place larger lump sum time B B deposits as well as to buy forex and shares. C C 164. P2’s above evidence during the trial would mean that the D D alleged Family Fund was only set up in around 1984 or thereafter. This E was clearly not consistent his own written evidence, nor with P4’s written E evidence that it was only after her emigration to the States in May 1987 that F F Grandmother had participated in the Family Fund on her behalf. Although G initially during the trial, P4 had maintained that it was after her emigration G that Grandmother had participated in the Family Fund on her behalf, under H H further cross examination, P4 then changed her evidence and said the Family I Fund was set up at the time of buying the Wah Lai Property and that the I contribution of HKD50,000 each from the Fund Parties were paid from the J J Family Fund. Her answer added to further confusion and inconsistencies K in Ps’ case. K L L 165. As for P3, under cross examination, she had said that it was in M about 1980/1981 that Allan had invited her to join in placing funds for fixed M deposit. When asked whether Allan had invited other members of the family, N N P3 replied that she had heard Allan mentioning about his thinking of inviting O other family members, and that Allan was asking them individually. She O said she could not recall the amount of her contribution, but that everyone P P had a share. The investments were not only fixed deposits but also in Q Q stocks and shares. She said Grandmother had also made investments but R was not investing much in 1980s, as Grandmother was getting on in years. R P3 also claimed that there were shares which Allan wanted to invest in, S S which she did not agree but could not now recall which ones. P3’s T evidence was also that she had continued to contribute towards the T U U V V  - 61 - A A investments with Allan until Allan passed away. There was no such B B evidence in her witness statement. Anyway, P2’s evidence was he stopped C investing sums with Allan in 1998. C D D 166. Further, according to P2’s written evidence, Allan would E explain to the Fund Participants the type of shares to be invested in and/or E the type of investment at the first gathering/calling of funds for each type of F F investment (“每項投資的第一次集合金錢時”) 75 . P3’s evidence was G also “每次投資的第一次集合資金時”, meaning that at the time of the first G H gathering /calling in funds on each occasion of investment, Allan would H briefly explain what shares and/or what investments he had in mind 76. It I I would appear from their evidence that there was a calling for pooling in of J funds by Allan to them individually only at the first time of each type of J investment. K K L 167. P2, P3, and P4’s respective oral evidence mainly concerned L how and when they themselves were first invited by Allan to participate M M and/or when they actually participated in the alleged Family Fund. It was N not clear as to how or when Mother (and/or Grandmother), became one of N the alleged Fund Participants. O O P 168. In any event, as mentioned, I find the evidence of P2, P3 and P P4 to be confusing and inconsistent. Their evidence showed that the Q Q participation of P2, P3 and P4 in investing with Allan, if any, appeared to R R S S 75 See para 40, A1:183 76 T See para 14, A1:202 T U U V V  - 62 - A A have taken place at different times and/or for different periods, and their B B respective contributions, if any, were of varying amounts. C C 169. Ps had produced various handwritten notes containing Allan’s D D handwriting77, in particular at B1:1- B1:6 of the trial bundles, as evidence of E their respective contributions towards the alleged Family Fund. E F F 170. The 1st one B1:1 bore a date “10/4/92” next to which was the G word Mother, then words of HKD 790,000 were deleted and there were G handwritten words of HKD 800,000 and HKD 870,000 (“Mother’s Note”). H H D had agreed that those words and the date “10/4/92” were written by Allan. I Those words were then followed by the words of HKD 35,000 and date of I 2 April 1993, which according to P2, such could have been written by J J Mother but he was not sure. Below the words of HKD 35,000 was another K HKD 10,000 faintly written. D had agreed that the words of the total K amount of HKD 915,000 were written by Allan. L L M 171. The dates on the Mother’s Note did not actually coincide with M those on the lower part of another handwritten note produced by Ps at B1:3. N N According to the lower part of B1:3, the date of the starting amount of HKD O 800,000 was 25 February 1991, with HKD 100,000 added on 25 February O 1991, HKD 70,000 added on 8 February 1993, HKD 35,000 added on 2 May P P 1993, and against a date “4/5” two amounts of HKD 60,000 and HKD Q 10,000 added. Pausing here, the total after adding the HKD 35,000 on Q 2 May 1993 was already HKD 1,005,000 and not HKD 915,000 (written R R S S 77 T B1:1 T U U V V  - 63 - A A words in red). There were some other amounts written below, and then the B B principal was written to be 1,825,000. C C 172. Anyway, if the total amount on Mother’s Note was HKD D D 915,000 on 2 April 1993, then according to the lower part of B1:3, the total E amount on 2 May 1993, a month later, would have reached HKD 1,005,000. E F F 173. As for B1:2, this one page handwritten piece of paper was G relied on by P2 to be a record of the alleged amount of the principal of P2’s G contribution to the alleged Family Fund. B1:2 was a poor photocopy with H H some figures blurred, and a clearer copy of the original was produced at I B1:128 in the trial bundles , which bore some markings, figures and a date I in red and B1:129 appeared to be the back page of B1:128 78. There was J J another similar handwritten note produced at B3:619 with B3:620 said to be K the back page of B3:619. B1:2/B1:128,129 had been referred to by Ps as K “二弟本金單” (“P2 Principal Note”) as the words “二弟” and “本金 L L 1,890,925” appeared thereon, whereas B3:619, 620 had been referred to by M M Ps as “二弟投資單” (“P2 Investment Note”) as the words “二弟投資金額” N appeared thereon. N O O 174. There were however discrepancies between the two notes. In P particular, the words of “Principal 1,890,925” on the P2 Principal Note were P written against a date of “6/12/90” and below this, an amount of “$2,048,309” Q Q was written against a date of “28/1/91”, and there was an amount of R “3,621,273.97” written in red at the bottom, which appeared to be alongside R some words and a date “5/2/94”. On the other hand, the P2 Investment S S 78 T B1-128,129 T U U V V  - 64 - A A Note started off with an amount of “$1,048,309” against the date of “28/1/91” B B and the last line was an amount of “$2,621,273.97” in red, above which C were some handwritten record of purchase of some shares on “5/2/94”. C D D 175. The amount of “$1,048,309” in the P2 Principal Note had E clearly been altered to “$2,048,309”, the figure of “2,444,865” altered to E “3,444,865”, the figure of “2,604,865” to “3,604,865”, “2,616,514,50” to F F “3,616,514.50” and “2,621,273.97” to “3,621,273.97”. The unaltered G figures appeared on P2’s Investment Note. In short, there was HKD 1m G H difference. H I 176. According to the P2 Principal Note, it would appear that by I 31 July 1992, the total amount was HKD 2,058,547. This amount also J J appeared on the P2 Investment Note below the items paid out on 31 July K 1992 and 1 August 1992. K L L 177. On the P2 Principal Note, there was the amount written HKD M 3,444,865, alongside which was written the words “投資屋” ie investment M N in property, below which was written another amount of 3.5m. These N words did not however appear on the P2 Investment Note. It was thus not O O clear how the amount of HKD 2,058,547 became HKD 3,444,865. There P were no clear explanations from P2. Nevertheless, whether HKD P 3,444,865, or 3.5m, I accept that the P2 Principal Note and the P2 Q Q Investment Note appeared to indicate records of amounts attributable to P2. R R 178. As earlier mentioned, there were two parts in the B1:3 S S handwritten note with the lower part appearing to refer to Mother. The T upper part appeared to show that as at 1 June 1990, the principal amount of T U U V V  - 65 - A A “ 婆 細 ” (said to refer to P3) to be HKD446,600. Followed by some B B reference to Hong Kong Land shares, which were then sold on 19 July 1991, C with 437,100 and also written in red “(細婆 577,100)” and then below a date C D “11/7/94” with the words “借購公屋”, and some further amounts. D E E 179. The amount of 446,600 as at 1 June 1990 appeared on another F note at B1:6 with a photocopy of a Po Sang Bank Deposit Confirmation (“Po F Sang Bank Confirmation”). On this note, there appeared to be 3 columns G G of handwritings. In the right column were words indicating 112,300 from H P3 in May 1990 and 81,000 from Grandmother in May 1990 and that with H 253,300 transferred in on 1 June 1990, there was a total of 446,600. In the I I middle column, there were written words indicating a sale of shares on J 17 April, of net sale proceeds of 120,000 of which Allan’s share was 40,000, J ie 1/3 and P2’s share was 80,000, ie 2/3 with a deduction of 18,500, making K K a net of HKD 61,500 for P2. The calculations of 18,500 were set out in the L left column. L M M 180. The Po Sang Bank Confirmation showed that as at N 30 November 1994 there was a fixed deposit in Allan’s name of a principal N amount of HKD 605,000 placed for deposit for one day until 1 December O O 1994. P P 181. As for B1:4 and B1:5, these appeared to be handwritten notes Q Q in 1995 concerning some interest calculations on a principal sum of R “910,107.4” placed on a one day fixed deposit for “1/5 -2/5/95”. R S S 182. During the trial, P2 agreed that the purchase and sale of the T Hong Kong Land shares written on the upper part of B1:3 concerned only T U U V V  - 66 - A A Grandmother and/or P3, and there was no indication that the transaction was B B a joint investment by the alleged Fund Participants. C C 183. Although the handwritten notes B1:1 to B1:6 were not disputed D D to have contained mostly of Allan’s handwriting, they were very confusing E and were unreliable. There was no evidence that there was any initial E capital agreed among the Fund Participants and/or paid by the Fund F F Participants to Allan at the same time to set up the Family Fund. The G handwritten notes appeared to record that family members at various times G could have placed his/her funds with Allan’s own funds for “large sum fixed H H deposits”/foreign currency fixed deposits to earn interests and/or to jointly I invest in shares. However, Allan could have refunded them afterwards I even though such was not reflected in the notes. These notes would not be J J sufficient evidence that there was a family trust fund, or the Family fund K alleged by Ps. There was no sufficient evidence of any agreed arrangement K or agreement between Ps to form a joint pool of funds together with Allan L L for investment purposes. There appeared also to be no handwritten notes M M concerning P4. N N 184. In any event, having considered all the evidence, I find no O sufficient evidence that there was an agreement or consensus between the O alleged Fund Participants, namely P1-P4 and Allan to set up the alleged P P Family Fund in around 1981, as pleaded or alleged by Ps. Q Q R R S S T T U U V V  - 67 - A A I.5 Whether P1-P4 had in fact contributed towards the acquisition B B costs of the South Horizon Properties C C 185. In so far as Allan’s income was concerned, apart from D D Accumulated Income Table and Teaching Experience Table, D had further E compiled (i) a table setting out a part of Allan’s share trading between 4 May E 1988 and October 1993 (“Share Trading Table”)79; (ii) a table setting out F F Allan’s fixed deposits between 18 June 1986 and 22 August 1997 (“Fixed G Deposits Table”)80; (iii) a table of records of excess application/share offer G between 27 June 1991 and 30 December 1999 (“Applications for Excess H H Shares Table”)81. I I 186. Anyway, for the year 1984/1985, Allan’s total assessable J J income was HKD 118,608 and for 1985/1986, HKD 136,533. K K 187. As evidence of his income, P2 had produced an Education L L Department Provident Fund Statement as at 31 August 1985 to show his M then contribution to his provident fund was HKD 9,072.25 for the year1984- M 198582. His date of entry to the scheme was 1 September 1982. If his N N contribution was at 5% of his income, then his income for that year would O be some HKD180,000, without taking into account Joanna’s income. O P P 188. As acknowledged by D during the trial, P2’s income in around Q 1985 should be the highest in the Lin Family, followed by Allan’s. It was Q also accepted by Ps that P3 and P4 had more modest earnings. Allan’s R R 79 C12:2592 S 80 C12: 2593 S 81 C12:2594 82 T B1:220 T U U V V  - 68 - A A assessable income for 1992/1993 was HKD 226,680 for the year and for B B 1993/1994, it was HKD 250,860. The Share Trading Table only showed C the shares Allan sold with no evidence as to when those shares were C purchased or the source of funds for their purchase. The Applications for D D Excess Shares Table showed refunds around HKD 5-6 million 1991 to 1993 E but again no evidence of the source of funds. Although the Fixed Deposits E Table showed there were about HKD 6 or 7 million in 1993, again, there F F was no evidence as to the source of funds, or whether the amounts came G from the sale of shares or refunds. G H H 189. Having considered the Accumulated Income Table, it did not I seem probable that Allan would have sufficient income on his own to be I able to accumulate total savings of some HKD 7 million between 1981 and J J 1994, to purchase 2 South Horizon Properties in 1994 (in his and/or D’s K names), as well as purchasing the Ma On Shan Unit for his home with D and K their son. The acquisition of these 3 properties were all completed in May L L 1994 with not more than 12 days in between and at a total sum of some HKD M M 7 million. N N 190. As mentioned earlier, it was pursuant to the Joint Decision that O the South Horizons Properties were purchased. P2’s evidence was that the O Joint Decision was made over a family dinner at the Ping Shek Unit in May P P 1993 and that Joanna should be present but she did not participate in the Q Q discussion. However, in relation to Flat 33D, the down payment of HKD R 195,000 was paid on 4 April 1993 upon signing the Memorandum for Sale, R and another HKD20,260 was paid on or before 7 April 1993 upon signing S S T T U U V V  - 69 - A A of the Formal Sale and Purchase Agreement 83 , and thus any decision to B B purchase could not have been made in May 1993. When asked during the C trial, P2 said he could have made a mistake but he maintained that there had C been the Joint Decision to buy 3 units. D D E 191. During the trial, Joanna’s evidence was that she was not present E at the dinner when the discussion took place regarding the purchase of the F F South Horizon Properties, and that she was only present during discussions G when they were rented out. She had also said she only knew what was G discussed regarding the purchase and the Joint Decision afterwards when P2 H H told her. Her oral evidence was not consistent with P2’s. It appeared I unlikely that Joanna would not be present, as it was her written evidence that I after her two daughters were born respectively in 1982 and 1984, they were J J placed in Mother’s care at the Ping Shek Unit, and that every night after K work, she and P2 would go to Ping Shek Unit to help Mother and that they K would only return to Hang Tung Property (where she and P2 were living L L after their marriage) after having dinner at Ping Shek Unit with the family M M and that this pattern continued until she and P2 moved to Kwai Chun Unit. N N 192. P3’s written evidence was that in about 1993, Allan had O suggested to Mother, P2, P4 and P3 herself to purchase unit/s at South O Horizons development from the funds he held for each of them, and that P P after discussion, and after Grandmother discussed with P4 over telephone, Q Q they all agreed. When asked during the trial, P3 said she could not recall R which month it was in 1993 but it was during dinner at Ping Shek Unit, and R she said she could not recall when Grandmother telephoned P4 or whether S S 83 T C3:526 T U U V V  - 70 - A A Grandmother telephoned P4 from Ping Shek Unit, but that Grandmother did B B notify P4. According to P3, Grandmother called P4 several times about C Allan having this idea and asked P4 whether she agreed. When asked C whether Allan had suggested using her name to for the balloting, P3’s D D response was Allan said he would use P2’s and D’s name and that there was E no need for so many people to apply for the balloting. P3 had initially said E she could not recall whether Allan had said there were sufficient funds to F F pay for 3 flats, but later she then maintained that Allan did tell them. G G 193. P4’s written evidence was that it was in 1994 that Grandmother H H called her about Allan suggesting purchasing units at the South Horizons I development for investment purposes84, but this was not consistent with Ps’ I pleaded case or P2’s evidence that it was in May 1993 that the Joint Decision J J was made. Under cross examination, P4 had initially said Grandmother K did not call her immediately and she was not clear whether it was after the K others had decided already. Then she seemed to change somewhat and she L L denied that she was only told after the decision was made to purchase 3 units. M M P4 did not mention how many times Grandmother had telephoned her. N N 194. Ps’ evidence as to when or how the Joint Decision was made O was confusing. Having said this, notwithstanding their confusing evidence, O there did seem to be funds held by Allan which consisted of various amounts P P placed with him by other family members in particular P1-P3, and they had Q Q agreed to the purchase of the South Horizon Properties out of those funds. R R S S 84 T See para 29, A2:229 T U U V V  - 71 - A A 195. Ps had set out in the SOC the alleged amount of the Fund B B Participants’ respective contributions from the alleged Family Fund for the C purchase of the South Horizon Properties, as follows 85: C D D (1) Mother’s contribution : HKD 1,230,000 E E (2) P2’s contribution : HKD 2,717,784 F (3) P3’s contribution : HKD 750,000 F (4) P4’s contribution : HKD 620,000 G G (5) Allan’s contribution : HKD 1,418,723 H H I 196. The amounts set out in (i) to (iv) above had come from a I handwritten note B1:7 (“SH Note”) the SH Note which was said to be found J J in the Hang Tung Property after Allan’s death. Ps relied essentially on the K SH Note as evidence for their contributions and/or beneficial interests in the K South Horizon Properties. L L M 197. Insofar as the alleged contribution of Allan’s in (v) above, there M was no record of this in the SH Note, and it would seem this was an amount N N calculated by Ps after deducting (i) to (iv) from the total estimated amounts O incurred for the purchase of the South Horizon Properties. O P P 198. P2’s evidence was that he never saw the SH Note when Allan Q was alive. Ps’ case was Allan had shown the SH Note to P4 in 1995, when Q P4 returned to Hong Kong and had asked Allan about the details of the R R purchase of the South Horizon Properties. When Allan showed the SH S S 85 T See para 17, A1:7 T U U V V  - 72 - A A Note to P4, P4 had written the last line of words thereon, and that after P4 B B had written those words, Allan took back the SH Note for his record C purposes. C D D 199. Under cross examination during the trial, P2 had further said E that before Allan took back the SH Note, Allan had asked P4 to copy down E the figures as her own record, and that P4 had read the figures to him. F F However, P2 then said he only wrote down the figure for his own G contribution, and not those for the others. This part of P2’s evidence was G not mentioned in his witness statement, nor was it mentioned by P4 in her H H witness statement. I I 200. P4’s evidence was that she and P3 found the SH Note among J J Allan’s papers at his desk in the Hang Tung Property. She admitted that K the last line on the SH Note was written by her, but maintained the rest was K written by Allan. It was P4’s evidence that in 1995, when she returned to L L Hong Kong from the States during the summer holiday, she had asked Allan M about the details of the funds for the purchase of the South Horizon M Properties and that Allan showed her the SH Note. P4 admitted that she N N had no knowledge as to when the SH Note was written by Allan. O According to P4, as the SH Note only recorded the respective capital amount O of each of P1-P4, she had asked Allan whether he had included the rent and P P interests from the Wah Lai Property, and that Allan told her to write on SH Q Note the words in the last line, namely “計至 1994 年，未有計利息和租 Q R 金”, ie “Calculations until to 1994 did not take into account interest and R rent”. Thereafter, according to P4, Allan then took back the SH Note, as S S T T U U V V  - 73 - A A he explained to her that this was because he was the one who was responsible B B for safe keeping all the documentations. C C 201. P4’s oral evidence was that her discussion with Allan regarding D D the purchase of the South Horizon Properties took place at the Ping Shek E Unit, and that Grandmother, Mother and P4’s son were present, but P2, his E wife Joanna and P3 were not. P4 further said Allan did not produce the F F calculations then and there and that it was about 2 or 3 weeks later, that G Allan handed her the SH Note, again at the Ping Shek Unit, with G Grandmother, Mother and P4’s son present, but not the others. She then H H claimed that she had written down the figures on a sheet of a paper. When I asked what she had written down on the sheet of paper, she said only the I 4 figures. When asked the whereabouts of this sheet of paper, she then said J J after she reported to Grandmother, Mother, P2 and P3 orally of their K respective figures, she then placed the sheet of paper in a drawer of a desk K at the Ping Shek Unit. Thereafter, she returned to the States and had L L forgotten about it. M M 202. P4 had never mentioned in her witness statement about her N N having recorded the figures on the SH Note on a sheet of paper. When O asked why she never mentioned this sheet of paper in her witness statement, O her evidence was that she did not include all the details and that she did not P P know she needed to mention all this. I have to say I do not find P4’s Q Q evidence satisfactory. R R 203. Notwithstanding P4’s evidence being confusing and S unsatisfactory, D did not dispute that apart from the last line of words, all S T T U U V V  - 74 - A A the words and figures on the SH Note were written by Allan, including the B B words “all invested in South Horizons” (全投資在海怡). C C I.6 Conclusion D D E 204. There was no dispute that the total purchase price and E acquisition costs of the 3 South Horizon Properties was HKD 6,931,386.25. F F As said, Flat 33D and Flat 39F were held by Allan and/or D. I have found G earlier that it did not seem probable that Allan had the financial ability to G purchase 2 of the South Horizon properties, plus the Ma On Shan Unit. H H Having considered all the evidence, I find more probable than not that SH I Note did reflect a record by Allan of the respective contributions from P1- I P4 towards the acquisition costs of the South Horizon Properties. J J K 205. Based on the SH Note and the undisputed acquisition costs of K HKD 6,931,386.25, I find Allan’s contribution was HKD 1,613,602.25 out L L of HKD 6,931,386.25, ie about 23.28% of the South Horizon Properties, and M that the total contributions from P1-P4 as set out in the SH Note to be M 76.72%. N N O 206. P1-P4 seek a declaration that the Estate holds the South O Horizons Trust Assets for the benefit of P1-P4 and Allan by their respective P P contributions. However Flat 25D was held by P2 for P1-P4 and Allan in Q the same proportions as to 76.72% for P1-P4 and 23.28% for Allan. The Q declaration should be in respect of all 3 flats and the South Horizon Trust R R Assets should include those assets arising out of all 3 flats. S S T T U U V V  - 75 - A A 207. I will also order an account and inquiry to be taken in respect B B of all 3 South Horizon Properties including all benefits, outgoings and C expenses. There was no reason why P1-P4 should not pay their respective C share of the outgoings and expenses of South Horizon Properties. I will D D hear parties further on directions as to how and from when the account and E inquiry is to be taken. E F F J. THE SCENIC GARDEN PROPERTY CLAIM G G J.1 The agreed disputed issues H H 208. There were 2 agreed disputed issues: I I J J (1) Was there an agreement or understanding between Ps and Allan that the Scenic Garden Property would be held on trust by K K Mother and Allan as legal joint tenants for and on behalf of Ps L and Allan in proportion to their contribution to the purchase L price? M M (2) What was the proportion of contribution by each of Ps and N Allan to the purchase price for the acquisition of the property? N O O J.2 The relevant title documents P P 209. The Scenic Garden Property was purchased in the joint names Q Q of Mother and Allan as joint tenants, at a consideration of HKD 4,747,000, R together with HKD 310,000 for the car parking space, totalling HKD R S S T T U U V V  - 76 - A A 5,057,000. The formal sale and purchase agreement was signed on B B 11 October 1997 and the assignment signed on 30 April 1998 86. C C 210. Allan passed away on 4 June 2015 and Mother passed away on D D 14 August 2017. The property is now held by the executors of Mother’s E estate, one of whom is P2. E F F J.3 Ps’ and D’s respective case G G 211. Ps’ pleaded case was that the purchase price and expenses H H incurred in the acquisition of the Scenic Garden Property in the total sum of I around HKD 5,238,63687 were derived from Ps and Allan as follows: I J J (1) Sale proceeds and rental income generated from the Wah Lai K Property in the total sum of HKD 1,801,427.20 88 ( which K according to Ps’ pleaded case, belonged to Ps and Allan in L equal shares); L M (2) P2 contributed a further sum of HKD 1,746,93989 from his M personal savings; N N (3) HKD 912,449.1190 was contributed through the rental income O of the South Horizons Properties which according to Ps’ O P 86 B1:89,91,94,96 P 87 See para 26, SOC, A1:10 the total consideration was HKS 5,057,000(including the carpark) and the acquisition expenses were HKD 181,636; see also Annex D in Ps’ Closing Submissions Q Q 88 In para 26.1, SOC, A1:10, the pleaded amount was HKD 2,137,801, but in Ps’ Closing Submissions, at para 109, the total amount was after taking into account the evidence was set out to be HKD1,673,336 (net sale proceeds of Wah Lai Property) + HKD 167,600 (rental income) – HKD R R 39,508.80 (expenses) 89 In para 26.2, SOC, supra, the pleaded amount was HKD 1,783,419, which was corrected by Joanna S during the trial to HKD1,746,939 S 90 In para 26.3, SOC, supra, the pleaded amount was HKD1,295,000, which was then amended to HKD 912,449.11 based on the information and documentation disclosed by D in relation to the income and T expenditure of Flats 33D and 39F, set out in Annex E of Ps’ Closing Submissions, see para 111. T U U V V  - 77 - A A pleaded case was held by P1-P4 and Mother in the proportions B B of their respective contributions; C C (4) The remainder of the purchase price of HKD 777,820.79 was D believed to be contributed by Allan91. D E E 212. D denied Ps’ claim and counterclaimed in the RRADCC that F the Scenic Garden Property was during Mother’s lifetime held by Mother F and Allan on trust for Allan solely, and that upon Allan’s death, Mother held G G the Scenic Garden Property on trust for the Estate. It was averred, amongst H other things, that92: H I I (1) Mother entered her name into the ballot for the purchase of a J unit in the Scenic Garden development upon Allan’s request, J and that upon successful drawing of the ballot, the property was K K transferred into joint names of Mother and Allan, and the purchase price and expenses were contributed solely by Allan; L L (2) Ps could not then have the financial resources to contribute M M towards the purchase price and acquisition expenses; N (3) When Mother applied for Old Age Allowance from the Social N Welfare Department in March 2014, she declared that she did O O not enjoy any interest in any real property and her total assets (inclusive of bank savings and investment) were worth only P P HKD 155,359.88; Q Q (4) Allan made a statutory declaration dated 5 September 2014, R and further Mother herself made a statutory declaration dated R 91 S See para 26.4, SOC, supra, the pleaded amount of the remainder of the purchase price was HKD S 22,416, but according to those calculations in Ps’ Closing Submissions, the remainder would be HKD 777,820.79 92 T See paras 20-27, RRADCC, A1:58-61 T U U V V  - 78 - A A 10 September 2014 (“Mother’s SD”)93, to the effect that all B B purchase price and acquisition expenses incurred in the C acquisition of the property were contributed by Allan and that C she did not have the financial capacity to purchase the Scenic D D Garden Property. E E J.4 The alleged payments F F 213. Based on the calculations in Ps’ Closing Submissions, it G G was submitted by Mr Chan that Ps’ and Allan’s respective contributions H H to the total amount of acquisition costs of the Scenic Garden Property of I HKD 5,238,636 were as follows 94: I J J (1) Mother : HKD 462,197.59 (i.e. 8.82% of HKD 5,238,636) K (2) P2 : HKD 2,404,948.17 (i.e. 45.91% of HKD 5,238,636) K L (3) P3 : HKD 398,964.86 (i.e. 7.62% of HKD 5,238,636) L (4) P4 : HKD 381,810.82 (i.e. 7.29% of HKD 5,238,636) M M (5) P5 : HKD 300,237.87 (i.e. 5.73% of HKD 5,238,636) N N (6) Allan : HKD 1,290,476.71 (i.e. 24.63% of HKD 5,238,636) O O 214. The above calculations were based on Ps’ pleaded case of their P P respective shares in the Wah Lai Property of net sale proceeds and net rental Q income (the amount was adjusted by Ps to be at least about HKD 1,801,427) Q and the South Horizons Properties of net rental income (the amount was R R S S 93 C6:1288 T 94 At para 107, pg 32, Ps’ Closing Submissions, see also Annex D T U U V V  - 79 - A A adjusted by Ps to HKD 912,449) 95. However as found by this Court, Allan B B held 50% or ½ of beneficial interests in the Wah Lai Property instead of 1/6 C as alleged by Ps. C D D J.5 Allan’s SDs and Mother’s SD E E 215. Allan had made a total of at least 3 declarations dated F F respectively 16 March 2014 , 3 April 2014, 5 September 2014 (“Allan’s G SDs”)96 , apparently to support Mother’s application for Old Age Living G Allowance. H H I 216. D did not have knowledge as to why Allan needed to make I 3 statutory declarations, nor did Ps. What was not disputed was that J J Mother signed an Old Age Living Allowance postal review form dated K 13 March 2014 (“OALA Review Form”)97 . K L L 217. As the OALA Review Form was stated to be a “postal review M form”, it appeared to be for a review by the Social Welfare Department. It M was not disputed that the OALA Review Form was filled in by Allan and N N signed by Mother, and that Mother’s SD was written by Allan and signed by O Mother. In light of Mother being then 84 years old, I do not find it O surprising that the form or the statutory declaration was filled in or written P P by Allan on behalf of Mother rather than Mother herself. This would not Q Q R R S 95 See para 108.1 and 108.3, pgs 32, 33 of Ps’ Closing Submissions S 96 See also C6:1285.1286,1287 97 T C6:1289-1290 T U U V V  - 80 - A A necessarily mean that Mother was under any undue influence or was misled B B by Allan into signing the form or the declaration. C C 218. According to Joanna’s written evidence, it was only on 30 July D D 2015, after Allan passed away, when Mother received a letter from D’s E solicitors Chow , Griffiths and Chan 98 that she and P2 learnt of Mother’s E SD and that they learnt that when Allan brought Mother to apply for the Old F F Age Living allowance, Mother had made a false declaration. According to G Joanna, they learnt from Mother that she made the declaration under G misrepresentation on the part of Allan, and that subsequently, Joanna H H accompanied Mother to the Social Welfare Depart to carry out the I cancellation procedure99. I J J 219. Joanna confirmed during the trial that Mother had no problem K in reading newspapers, although Mother was educated to Primary 6. It was K Joanna’s evidence that in 2014/2015, Mother was in reasonable health and L L could take care of herself, and that she saw Mother leaving home one day in M September 2014 and that Mother told her that she was taken by Allan to the M District Office. However, Joanna said she never asked Mother whether she N N was successful in applying for the Old Age living Allowance, nor did she O ever ask Allan. O P P 220. Joanna had confirmed during the trial that Mother had never Q told Joanna that she was forced to sign anything by Allan. Q R R S S 98 B2:445-457, which was in fact the letter was sent in reply to Ps’ solicitors’ letter of 16 July 2015, at B2:418-442, setting out Ps’ claim against the Estate 99 T See para 29, A1:221 T U U V V  - 81 - A A 221. When asked why her written evidence was that Mother was B B misled by Allan into signing the declaration, all Joanna could say was that C Mother’s SD was written by Allan and that Mother only signed and that she C was not sure whether Mother had read clearly, and also when they asked her D D about Mother’s SD, Mother said she could not tell. When it was put to E Joanna during the trial that perhaps Mother could not recall, Joanna said she E would not comment. F F G 222. Mother’s address on the OALA Review Form was stated to be G the Hang Tung Property. According to P2’s evidence in his witness H H statement, in about 1995, he, Joanna and their two daughters were hoping to I reside together with Mother and Grandmother and that they decided to hand I back the Ping Shek Unit to the Hong Kong Housing Authority and to apply J J in the joint names of Mother and P2 to purchase a Hong Kong Housing K Authority unit, and later they were allocated the Kwai Chun Unit. Mother K and P2 purchased the Kwai Chun Unit as joint tenants at a consideration of L L HKD 1,288,200, and the assignment was signed on 7 November 1995 at a M M sum of HKD 1,288,200100. According to P2, Mother moved to Kwai Chun N Unit in about December 1995 to live with P2, Joanna and their daughters, N 101 but Mother had sometimes also lived in the Hang Tung Property . O O 223. If Mother was living with P2 and Joanna, and that Joanna was P P aware that that Mother was taken by Allan to the District Office, it seemed Q Q odd that neither P2 nor Joanna had found out the purpose of the visit from R Mother and/or Allan then and there. R S S 100 C11:2360 101 T Para 60, A1:187 T U U V V  - 82 - A A 224. It was Ps’ case that as Mother passed away on 15 August 2017, B B she was unable to make a witness statement in this action, but that she had C signed a statement of truth to the Reply dated 22 November 2016 102. The C Reply was however in English and there did not appear to be an D D interpretation clause thereon. E E 225. Anyway, it would appear that Allan’s SDs and Mother’s SD F F were to explain Mother’s means to the Social Welfare Department. However, G at that time, Mother was also a joint tenant of Kwai Chun Unit, which did G not seem to have been disclosed in the OALA Review Form, nor was Mother H H required to provide an explanation as to her interests therein. I I 226. Having considered all the evidence, notwithstanding that J J Mother had signed a statement of truth on the Reply, I find Joanna’s K evidence to be confusing and not reliable and I do not find sufficient K evidence that Mother was misled or was under undue influence by Allan L L when she signed the OALA Review Form and her own statutory declaration. M In any event, it was stated in Mother’s SD that all payments for the purchase M of the Scenic Garden Property were paid by cheques from Allan’s bank N N accounts and that she had no financial ability to pay for purchase of such an O expensive property. This was on the face of it not an incorrect statement. O P P J.6 Analysis and conclusion Q Q 227. I have found earlier that there was no sufficient evidence that R R there was an agreement or common intention that the beneficial ownership S S 102 T A1:85 T U U V V  - 83 - A A in the Wah Lai Property was to be held by Ps and Allan in equal shares, and B B that Allan held 50% beneficial interests in the Wah Lai Property. C C 228. According to D’s calculations as to Allan’s accumulated D D income from the year of assessment 1975/1976 (ie accumulated assessable E income less housing expenses) 103 , as at 31 March 1996, it was HKD E 1,758,900 and as at 31 March 1997 , it was HKD 2,014,170. However, this F F did not take into account Allan’s personal expenses. As it was D’s case G that Allan had contributed towards the acquisition of the Hang Tung G Property in 1975/1976 and also Allan was the one who contributed solely H H towards the acquisition of the Wah Lai Property in 1980/1981, and the South I Horizon Properties in 1993/1994, it would not seem probable that Allan I would have so much savings of his own then to also purchase the Scenic J J Garden Property from funds solely his. K K 229. As said, D had compiled the Share Trading Table, but there L L were however no dates of purchase or of the purchase prices set out therein M and the table was not helpful in ascertaining the funds held by Allan at any M particular time and/or whether the sale proceeds from the shares were then N N placed on fixed deposits. O O 230. As for the Fixed Deposits Table, it would appear that the fixed P P deposits were mostly for short term between 1 to 7 days, and it was not clear Q whether Allan was moving the funds between banks to earn higher interest. Q In any event, there appeared to be a gap between 1993/1994 and April 1997 R R S S 103 T Exhibit P4 T U U V V  - 84 - A A with no fixed deposits, and then prior to September 1997, some HKD 6.585 B B million had been placed on fixed deposits. C C 231. Having considered that the sale of the Wah Lai Property was D D completed on 25 July 1996 and the formal sale and purchase agreement for E the acquisition of the Scenic Garden Property was signed on 11 October E 1997, I find more probable than not that the net sale proceeds and the net F F rental income of the Wah Lai Property would have been applied by Allan G towards the acquisition of the Scenic Garden Property. According to Ps, G the net sale proceeds of Wah Lai Property were HKD 1,656,536104. D said H H there was also agency commission of HKD 16,800105. This would make I the net sale proceeds to be HKD1,656,536. The rental income and I expenses, according to D’s tables106 appeared to be about a net rental of J J income of HKD 128,000. The total net sale proceeds and net rental income K from Wah Lai Property would appear to be HKD1,784,627 instead of HKD K 1,801,427. As I have found that Allan held 50% of beneficial interests in L L the Wah Lai Property, he would therefore have contributed out of this about M M HKD 892,313. N N 232. Further, having considered Allan’s accumulated income in the O Accumulated Income Table, I find more probable than not that the net rental O income from the South Horizons Properties would also have been applied P P towards the acquisition of the Scenic Garden Property. According to Ps’ Q Q R R S 104 C2:305-310, sale price HKD 1,680, 000 less conveyancing costs of HKD 6,664. S 105 C2:301 106 T C11:2456-2457, excluding what was collected by P3 T U U V V  - 85 - A A calculations, this was about HKD 912,449.11 and Allan’s share was B B $212,418.15. C C 233. Ps were prepared to accept Allan had contributed another HKD D D 777,820.69107. Based on what I find to be the net sale proceeds and rental E income of the Wah Lai Property this amount should be adjusted to be about E HKD 794,621. Thus Allan’s total contribution should be a total of about F F HKD 1,899,352, ie HKD 892,313 + HKD 212,418 + HKD 794,621. This G means Allan’s share of the beneficial interests in the Scenic Garden Property G should be about 36%. H H I 234. In light of my finding, I will order an account and inquiry of all I benefits, outgoings and expenses to be taken of this property. I will hear J J further submissions for directions regarding how and from when an account K and inquiry to be taken. Pending the final determination of the account and K enquiry in relation to the Scenic Garden Property, I will order the Estate to L L deposit all title deeds of Scenic Garden Property into Court within 28 days M hereof. M N N 235. I do not find it necessary to make a declaration as to each of Ps O share of beneficial interests save that Ps’ total beneficial interests were about O 64% in the Scenic Garden Property, as there was no dispute among Ps P P themselves and their claim was a collective one against D/Estate. Q Q R R S S T 107 See para 108.4, p33, para 112, p35, Ps’ Closing Submissions T U U V V  - 86 - A A K. THE LOANS CLAIM B B C K.1 The agreed disputed issues C D 236. This is a claim by Ps and the agreed disputed issues were: D E E (1) Is the Estate liable to repay the sum of HKD 253,150.68 F transferred by Mother to Allan on 4 March 1997? F G (2) Is the Estate liable to repay the sum of HKD 100,000 G transferred by Mother to Allan on 21 May 2007? H H (3) Is the Estate liable to repay the total sum of HKD 291,839 I transferred by P2 to Allan between August 2009 and April I 2010? J J (4) Is the Estate liable to repay the total sum of HKD 307,500 K transferred by P3 to Allan between August 2009 and April K 2010? L L (5) Have the loans to Allan by P1-P3 been fully settled? M M K.2 Mother’s alleged loans to Allan N N O 237. As mentioned earlier, it was P2’s evidence in his witness O statement that since Allan left Buddhist Wai Yan Memorial College in P P December 2002, he had only worked as a substitute teacher and that since Q 2002 and that Allan had been borrowing funds from Mother. In support of Q this allegation, P2 had produced a HSBC time deposit withdrawal advice of R R a principal sum and interest totalling HKD 253,150.68 being transferred to S Allan’s bank account on maturity date 4 June 1997108. However, this was S 108 T B1:120, C9:1941 T U U V V  - 87 - A A some 9 years before Ps issued the writ. As for HKD 100,000, according to B B Ps’ pleaded case, this was another loan from Mother to Allan on 21 May C 2007 but there appeared to be no supporting evidence of the transfer thereof. C D D 238. In any event, during the trial, under cross examination, P2’s E evidence was that he had no knowledge of Mother’s affairs with Allan. In E fact according to the Teaching Experiences Table prepared by D, Allan left F F the Buddhist Wai Yan Memorial Collage on 31 December 2001 and not G 2002, and in any event, Allan continued to teach as a substitute teacher until G 5 June 2008. There was no sufficient evidence of Allan being in any H H financial difficulties in 1997 or after 2001 even though he had suffered I losses in investments after the collapse of the Lehman Brothers which was I in 2008. There was also no sufficient evidence that those sums transferred J J by Mother to Allan were loans to Allan repayable on demand. K K K.3 P2’s alleged loans to Allan L L M 239. P2 had relied on 6 deposit slips respectively in 2009 and in M 2010 to support his alleged loans of a total of HKD 291,839 to Allan 109. N N Under cross examination, P2 had acknowledged that the purpose of the said O deposits was not written on those deposit slips, and in fact, his evidence O during the trial was that he could not recall the purposes of those deposits P P and that he was unsure if he had lent money to Allan. Q Q R R S S 109 T B1:121-123 T U U V V  - 88 - A A 240. In my view, there was simply no sufficient evidence to support B B P2’s claim that those sums totalling HKD 291,839 were loans made by him C to Allan and repayable on demand. C D D K.4 P3’s alleged loans to Allan E E 241. P3’s evidence in her witness statement was that between F F September 2005 until October 2014, Allan frequently borrowed loans from G her and she had listed out the respective dates and amounts from G 28 September 2005 until 16 December 2014 . 110 According to Ps’ pleaded H H case, such loans from P3 were in cash111. I I 242. It was not clear how P3 could have remembered the above J J various alleged loans which were paid in cash. When asked during the trial K as to the circumstances in which Allan requested for loans, P3’s answers K were confusing, and she seems to say some amounts were by cash and some L L were by bank transfers. P3 also suddenly said during the trial that she had M recorded the alleged loans on a piece of paper, but no such paper was M disclosed, and when this was pointed out to P3, she then said the paper was N N lost. I do not find her evidence in this respect was reliable. O O 243. Again, I find no sufficient evidence that the alleged amounts P P pleaded in the SOC allegedly paid by P3 to Allan were loans repayable on Q demand. Q R R S S 110 See para 56, A1:211-212 111 T See para 36, A1:14 T U U V V  - 89 - A A 244. In my view, Ps’ claim on the Loans must fail. B B C L. THE INVESTMENTS CLAIM C D L.1 The agreed disputed issues D E E 245. This is a counterclaim by D and the agreed disputed issues were: F F (1) Did P1/P2/P3 purchase various shares and securities using G G funds in the total sum of HKD 2,431,606 provided by Allan? H H (2) If so, was it mutually intended by Allan and P1/P2/P3 that the Investments would be held by P1/P2/P3 on trust for Allan? I I J L.2 D’s case and Ps’ case J K K 246. It was D’s pleaded case in the RRADCC that between 1993 and L 2015, Mother, P2 and/or P3 had purchased various shares and securities L using funds provided by Allan and that Mother and/or P2 and/or P3 did not M M contribute towards the acquisitions of the Investments. These Investments N were set out in Appendices 2A,2B and 2C of the RRADCC 112 (respectively N “App 2A”, “App 2B”, and “App 2C”). D counterclaimed that the O O Investments were held on trust by Mother, P2 or P3 respectively on trust for P Allan. P Q Q 247. Ps had denied D’s claim and in particular, P2 averred that the R Investments held in the name of P2 were his personal investments acquired R S S 112 T At para 41, A1:66, see also A1:72-2 to 74-4 T U U V V  - 90 - A A with his own personal funds113. As for Mother and P3, there was a general B B denial of D’s counterclaim. C C L.3 Analysis and conclusion D D E 248. D’s case was that she had found various documents inside the E Ma On Shan Unit, including (i) 65 shares certificates of HSBC shares F F registered in Mother’s name but held on trust for Allan; (ii) 62 share G certificates of various shares registered in P2’s name but held on trust for G Allan and various dividend payments notices;(iii) 34 share certificates of H H various shares registered in P3’s name but held on trust for Allan and various I dividend payment notices114. The App 2A (P2), App 2B (P3), and App 2C I (Mother) attached to the RRADCC were prepared by D in accordance with J J those shares and documents found by her. K K 249. D’s evidence during the trial was that Allan had a schoolbag L L (“School Bag”) in which he placed all his shares including those in his own M name and those held by other on behalf of him. D had also said during the M trial that she once asked Allan why the shares in the School Bag were under N N names of Mother and P2, and that Allan told her that all the shares in the O School Bag were his, although some of those shares were bought in other’s O names. Although this part of D’s oral evidence was never disclosed in her P P witness statement, the fact was that those share certificates were in Allan’s Q possession. Q R R S S 113 See para 18, A1:85 114 T See paras 41-46, A1:66-67 T U U V V  - 91 - A A 250. So far as those shares held in P3’s name in App 2B, namely B B 9,000 shares in China Coal Energy, 21,000 shares in China Communications C Construction, and 8,000 shares in Petrochina, it was P3’s evidence in her C witness statement that those shares were received as a result of Allan’s D D purchase of equity linked notes (ELNs) and that those investments belonged E to Allan’s solely and were funded by Allan solely115. P3 had said she was E willing to transfer the shares and dividends to D/Estate. F F G 251. As for the HSBC shares held in the name of the Mother, there G was no written evidence from Ps as to how Mother came to acquire those H H 65 share of certificates of 766 HSBC shares set out in App 2C. During the I trial when P2 was asked, he said it was Allan who had bought them for I Mother, and later Mother sold the shares, leaving the odd lots. The share J J certificates were of odd lots dating from as early as 2 March 1992 until K 10 December 2014. In Mother’s OALA Review Form, it was written by K Allan that as at 23 May 2013 Mother held 698 HSBS shares of HKD 54,444, L L at HKD 78 a share on 13 March 2014. Although in Allan’s SDs, he was M M explaining that Mother did not have funds to purchase Scenic Garden N Property which was all funded by him, he made no mention that those HSBC N shares were funded by him and held by Mother on his behalf. O O 252. Having considered the above, I find no sufficient evidence that P P the HSBC shares set out in App 2C were held by Mother on trust for Allan. Q Q 253. As for P2, D had produced a handwritten note of Allan’s on R R which Allan wrote the words “覺名下投資股票”, or “ investment in shares S S 115 T See paras 40-45, A1:207-209 T U U V V  - 92 - A A under P2’s name” (“P2 Shares Note”) 116 . D’s evidence was that the B B Investments held by P2 for and on behalf of Allan excluded 356 shares in C Agile Property Holdings Limited which belonged to P2 who had funded the C purchase as recorded on an envelope 117 (“Envelope”). D D E 254. P2’s evidence during the trial was that the words on the E Envelope were written by him. P2 maintained that those shares set out in P2 F F Shares Note and belonged to him, as there was no reason why Allan needed G to use P2’s name to purchase shares. However, when asked during the trial G why those share certificates of shares listed out in App 2A were kept by H H Allan, P2’s explanation was that the shares of those 8 companies written on I the P2 Shares Note were new shares at time of public listing which were I applied for by Allan in P2’s name. J J K 255. P2’s evidence was confusing. However, the evidence showed K that Allan and P2 had jointly invested in shares and in application for new L L shares for some years. As there was no sufficient evidence as to who had M invested what, I find it an equitable solution for those shares registered in M P2’s name but found in Allan’s possession be divided 50/50, save for the N N 2000 shares in Agile Property Holding Limited which shall be P2’s solely. O O 256. I am of the view that the transfers to the Estate by P2 and P3 of P P Allan’s shares shall be at the cost of the Estate since it was at the request of Q Allan and/or upon his arrangements that the shares came to be held by P2 Q and/or P3. R R S S 116 C11:2342 117 T C9:1994 T U U V V  - 93 - A A M. THE GOLD ZODIAC COINS CLAIM B B C M.1 The agreed disputed issues C D 257. This was part of D’s counterclaim. The agreed disputed D issues were: E E F F (1) Who owns the Gold Zodiac Coins? G (2) Where were the Gold Zodiac Coins stored? G (3) Ares Ps liable for conversion of the Gold Zodiac Coins H H I M.2 Ps’ and D’s respective case I J J 258. Although D appeared to have omitted and set out clearly her K claim for damages for conversion, her pleaded case had been set out clearly K 118 in the RRADCC that : L L M (1) Between 1976 and 1987 Allan purchased various M commemorative Gold Zodiac Coins as set out in Appendix 1; N N (2) after January 2011, Allan stored the Gold Zodiac Coins at the O Hang Tung Property; O (3) After Allan’s death, D found the Gold Zodiac Coins missing P P and that Ps had misappropriated them. Q Q 259. Ps made no admission to the above and averred that119: R R S S 118 See paras 36-40 of RRADCC A1:65-66, and A1:68-69 (9) to (11) 119 T See paras 16, 17, A1:84-85 T U U V V  - 94 - A A (1) In around 1996, Ps and Allan decided to purchase the Gold B B Zodiac Coins; C C (2) the Gold Zodiac Coins were purchased using funds contributed D by Ps and Allan with the intention that interest therein was to D be shared amongst the family members; E E (3) the Gold Zodiac Coins were at all material times in the custody F of Allan. F G G M.3 Analysis and conclusion H H 260. It was D’s written evidence that in early 2011, Allan had retired I and that he had more time to look after the family, and D had also invited I Mother to live temporarily with them at their Ma On Shan Unit. However, J J there was a fire there, and after the fire, the Ma On Shan Unit needed to K undergo renovation, and during that period, Allan and D had moved some K valuable objects to be temporarily stored at the Hang Tung Property, and L L these included the Gold Zodiac Coins purchased by Allan between the 1970s M to 1980s and that there was a box for each coin. Allan and D had placed M the Gold Zodiac Coins into one plastic box for storage at the Hang Tung N N Property, and that their individual boxes and certificates were kept in the Ma O O On Shan Unit120. P P 261. It was further D’s evidence that after Allan passed away, P3 did Q not return Allan’s keys to the Hang Tung Property to D, and that D was not Q able to gain access to the Hang Tung Property to retrieve the Gold Zodiac R R Coins. D had instructed her solicitors to write to Ps to claim return of the S S 120 T Para 28, A2:269 T U U V V  - 95 - A A Gold Zodiac Coins but according to P3, Allan told her that he had taken the B B coins in January 2015 together with the title deeds of the Scenic Garden C Property back to the Ma On Shan Unit. D had made a report to the police C on 20 August 2015, but as at that time she only found 58 boxes, she reported D D 121 to the police loss of only 58 coins . E E 262. P2 and P5 had alleged in an appendix attached to Ps’ solicitors F F demand letter of 16 July 2015 that they and Allan had each contributed G $20,000 towards the purchase of 2 sets of Gold Zodiac Coins between 1996 G to 1987 and P2 and P5 had at that time claimed repayment from the Estate H H of $20,000 each122. It was not P2’s or P5’s evidence in their respective I witness statements that the Gold Zodiac Coins were purchased out of the I alleged Family Fund and this seemed to be inconsistent with Ps’ pleaded J J case that Ps and Allan decided to purchase the coins in around 1996123 . K Although P3 did suddenly say during the trial that the Gold Zodiac Coins K were bought with monies in the alleged Family Fund, I find no sufficient L L evidence to support her evidence. Had P3 indeed been correct, that the M M Gold Zodiac Coins were purchased with monies in the alleged Family Fund, N there was no reason why Ps would be content for Allan allegedly taking N them back to Ma On Shan Property after Allan allegedly accusing Mother O O had taken them. P P 263. On P3’s written evidence, Allan had later told her that he had Q Q found the Gold Zodiac Coins in the closet of the Hang Tung Property, and R he took them back, in about January 2015. The Hang Tung Property was R S 121 See paras 40-42, A2: 273-274 S 122 B2:418-431, at 425, 426 123 T Para 16, A1:84 T U U V V  - 96 - A A not a big property, only about 300 sq fit and according to P3, the closet was B B used to divide a small bedroom from the bigger bedroom. It did not seem C possible that Allan had first claimed they were missing and then found them C in the closet. There was also no sufficient evidence that Allan had taken D D them back in early 2015. It would seem unlikely for Allan to take them E back in early 2015 and yet not placed them properly in their individual boxes. E F F 264. Having considered all the evidence, I find D’s evidence on this G issue to be more probable, that Ps had not returned the Gold Zodiac Coins G and Ps should return the same or be liable for damages for conversion of the H H same. I I N. ORDERS J J K N.1 Regarding Ps’ Claim in the SOC K L 265. In relation to P1’s claim against the Estate, the effect of the L Court’s order is that:- M M N N (1) In relation to the title deeds of the Scenic Garden Property, the Estate shall deliver up the same to be held by the Court within O O 28 days hereof, pending the finalisation of the account and P enquiry and/or further order. P (2) P1’s claim for repayment of the loan of HKD 353,150.68 is Q Q hereby dismissed R R 266. P2’s claim against the Estate for repayment of the loan of HKD S S 291,839 is hereby dismissed. T T U U V V  - 97 - A A 267. P3’s claim against the Estate for repayment of the loan of HKD B B 307,500 is hereby dismissed. C C 268. In relation to P1-P4’s claim against the Estate regarding the D D South Horizon Properties, the effect of the Court’s order is that: - E E (1) It is hereby declared that the Estate and/or D, and/or P2, F F whether jointly or severely, held/hold the beneficial interests in G South Horizon Properties and/or the South Horizon Trust G Assets on trust for Mother (P1), P2, P3, P4 and Allan (the H H Estate) as follows:- I (i) P1-P4 (in total) – 76.72% I (ii) Allan/Estate – 23.28%; J J (2) There be an order for an account and enquiry to be taken in K K respect of the South Horizon Trust Assets including all benefits, outgoings and expenses. L L M 269. In relation to Ps’ claim against the Estate regarding the Scenic M N Garden Property, the effect of the Court’s order is that:-. N O O (1) It is hereby declared that held the Scenic Garden Property was P held by Allan and/or Mother and/or Mother’s estate as to 36% P of the beneficial interests thereof on behalf of Allan and 64% Q for Ps; Q R (2) There be an order for an account and enquiry in respect of all R trust assets including all benefits, outgoings and expenses to be S taken in respect of the Scenic Garden Property. S T T U U V V  - 98 - A A N.2 Regarding the Estate’s Counterclaim B B C 270. In relation to the Scenic Garden Property, the order is as above, C D D 271. In relation to Hang Tung Property, E E (1) It is hereby declared that P1 and/or P2, whether jointly or F F severally, held/holds 1/7 of the beneficial interests in the Hang Tung Property for Allan and/or the Estate since its acquisition, G G together with any interests Allan/Estate may have under H Father’s and/or Mother’s respective estate since their H respective death, if any; I I (2) There be an order for account and enquiry into the benefits, J outgoings and expenses to be taken in respect of the Hang Tung J Property. K K L 272. In relation to the Investments, L M M (1) It is hereby declared that P2 held/hold the shares in App 2A N (save the Agile Property Holdings Ltd shares) as to 50% for the N Estate; O O (2) P2 shall transfer 50% of the shares in App 2A (save the Agile P Property Holdings Ltd shares) to the Estate within 28 days of P this Order, at the cost of the Estate; Q Q (3) It is declared that P3 held/hold the shares in App 2B on trust R for Allan/Estate; R S (4) P3 shall transfer the shares in App 2B to the Estate within S 28 days of this Order, at the cost of the Estate; T T U U V V  - 99 - A A (5) There an order for account and enquiry in relation to the B B benefits/dividends renewed by P2 and P3 arising out their C shares held respectively on behalf of Allan/Estate. C D D 273. In relation to the Estate’s claim for return of the Gold Zodiac E Coins, Ps shall return the Gold Zodiac Coins to Estate within 28 days hereof, E failing when there be an enquiry as to damages for conversion of the same. F F G 274. I direct the parties to a fix a hearing (of estimated length of 1 G hour) for directions in relation to the taking of account and enquiry, and/or H H assessment of damages as ordered above. I I 275. In relation to costs, as neither Ps nor the Estate has succeeded J J in the entirety of their claim/counterclaim, I make no order as to costs K including all costs reserved. This is an order nisi which shall be made final K after 28 days. L L M M N N O O ( Bebe Pui Ying Chu ) Judge of the Court of First Instance P P High Court Q Q Mr Derek JY Chan and Mr Dexter Leung, instructed by Tang & So, for the R R 1st to 5th Plaintiffs S Mr Ken TC Lee and Ms Candice Lau, instructed by Chow, Griffiths & Chan, S for the Defendant T T U U V V