HCA 1966/2013 &
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
ACTION NO 1966 OF 2013 ＆ NO 660 OF 2014
||HO HON PIU (何漢標)
||HO HON KA (何漢嘉)
||(Consolidated by Order of Master Ho dated 6 October 2014)
|Before: Hon Chow J in Court
|Dates of Hearing: 6-9 December 2016
|Date of Judgment: 10 January 2017
J U D G M E NT
1. Hon Piu (the plaintiff) and Hon Ka (the defendant) are brothers. Their mother passed away in 2010. Hon Piu claims that a property in North Point held in the name of Hon Ka, which was purchased in 1987 and sold in 1994, belonged beneficially to Hon Piu, Hon Ka and their mother in equal shares. Hon Piu further claims that another property in Chai Wan purchased in 1992 originally in the joint names of Hon Ka and their mother and currently held in the sole name of Hon Ka is also beneficially owned by the three of them in equal shares. On the other hand, Hon Ka claims that:-
(1) their mother’s will, executed in 2007, in which she gave the whole of her residuary estate to Hon Piu, is invalid because (a) it was not properly executed by her and/or (b) of her lack of understanding of its contents; alternatively
(2) the disposition in favour of Hon Piu under that will is invalid because the will was witnessed by his wife (and one other person).
2. The principal issues which I have to determine are as follows:-
(1) whether the North Point Property belonged beneficially to Hon Piu, Hon Ka and their mother in equal shares;
(2) whether the Chai Wan Property belongs beneficially to Hon Piu, Hon Ka and the estate of their mother in equal shares; and
(3) whether the mother’s will, alternatively the disposition in favour of Hon Piu under that will, is invalid.
3. At the trial, Hon Piu, his wife (“Sai Mui”) and Hon Ka gave oral evidence. In addition, the parties agreed that a witness statement made by Sai Mui’s younger sister (“Sai Chun”) could be admitted as evidence without cross examination. In what follows, I shall set out what I understand to be undisputed background facts, save where otherwise expressly indicated.
(i) Family background
4. Mr Ho (the father) and Madam Chan (the mother) had two sons, namely, Hon Piu (born in 1947) and Hon Ka (born in 1950).
5. In the 1960s, the Ho family was not financially well off. Mr Ho did not work because of ill health. Madam Chan worked as a dish cleaner. Both Hon Piu and Hon Ka received primary education only and started to work to support the family since about 1963/64.
6. In around 1965, the Ho family moved into a public housing unit in Chai Wan.
7. Prior to 1967, Hon Piu worked as a messenger. In April 1967, Hon Piu joined the police force and became a police officer. He retired from the police force as a sergeant in April 2003.
8. On the other hand, in the 1960s, Hon Ka worked as an electrical apprentice. Later, he worked in different trades in Hong Kong and the Mainland until around 1994 when he became a taxi driver. Hon Ka has been working as a taxi driver up to now although, because of his current ill health, he has temporarily ceased working.
9. Mr Ho passed away in 1974.
10. Hon Piu and Sai Mui got married in 1977. Soon after their marriage, they moved to live in police married quarters in North Point.
11. In around 1989, Madam Chan retired.
12. In 1991, Hon Ka remarried in the Mainland. Hon Ka’s wife and their two daughters came to Hong Kong in about mid-1997, and they lived together with Madam Chan in the Chai Wan Property (more particularly described below).
13. In January 2010, Madam Chan passed away.
(ii) The purchase of the North Point Property
14. On 20 February 1987, Sai Mui signed a provisional agreement as agent for Hon Ka for the purchase of a property known as Flat C, 11/F, Ka Fook Court, Bedford Gardens, 151 Tin Hau Temple Road, Hong Kong (“the North Point Property”) at the price of HK$519,000. In that provisional agreement, the name of the purchaser was stated to be “Ho Hon Chiu”, an alias of “Ho Hon Ka”. “Ho Hon Ka” was also named as the purchaser in the subsequent formal sale and purchase agreement dated 4 March 1987 and assignment dated 8 May 1987.
15. As stated in the provisional agreement, an initial deposit of HK$10,000 was paid to the vendor upon the signing of that agreement, and a further deposit of HK$41,900 was payable upon the signing of the formal sale and purchase agreement on or before 4 March 1987.
16. In relation to the purchase of the North Point Property, a mortgage loan of HK$467,100 was obtained in the name of Hon Ka from HSBC repayable over a period of 15 years.
17. After the purchase of the North Point Property, it was let to three sisters of Sai Mui, namely, Sai Chun, Sai Hing and Sai Ha initially at the rent of HK$2,500 per month which was subsequently increased to HK$3,000 per month in around 1991.
(iii) The purchase of the Chai Wan Property
18. On 2 May 1992, Madam Chan and Hon Ka entered into a formal agreement for the purchase of Flat J, 11/F, Block 3, Fullview Garden, 18 Siu Sai Wan Road, Hong Kong (“the Chai Wan Property”), a Home Ownership Scheme flat, as joint tenants at the price of HK$750,700. As stated in the formal agreement, a deposit of HK$37,535 was paid upon the signing of that agreement, and the balance of the purchase price in the sum HK$713,165 was payable upon completion.
19. The purchase of the Chai Wan Property was completed on 29 March 1993. It was used as Madam Chan and Hon Ka’s residence. According to Hon Piu and Sai Mui, Madam Chan and Hon Ka moved in to the Chai Wan Property on 15 March 1993. On the other hand, Hon Ka said that they moved in after completion of the purchase of the Chai Wan Property, which took place on 29 March 1993.
(iv) The sale of the North Point Property
20. On 21 February 1994, Sai Mui entered into a provisional agreement as agent for Hon Ka for the sale of the North Point Property at the price of HK$2,400,000. Out of the proceeds of sale, approximately HK$400,000 was used to discharge the outstanding mortgage loan in relation to the North Point Property, and HK$800,000 was used to discharge the outstanding mortgage loan in relation to the Chai Wan Property, leaving a balance of HK$1,200,000. The sale of the North Point Property was completed on 31 March 1994.
21. Out of the balance of HK$1,200,000, Hon Ka paid HK$200,000 to Hon Piu. Hon Piu’s case is that the HK$200,000 represented a portion of his entitlement to the proceeds of sale of the North Point Property, whereas Hon Ka’s case is that he originally intended to pay the HK$200,000 to Madam Chan in appreciation of her support in the purchase of the two properties and it was upon Madam Chan’s suggestion and direction that he paid the said sum to Hon Piu.
(v) The transfer of the Chai Wan Property to Hon Ka
22. On 4 July 2007, Hong Kong Housing Authority gave consent to Madam Chan and Hon Ka for them to assign the Chai Wan Property to Hon Ka at nil consideration.
23. On 11 October 2007, an assignment of the Chai Wan Property was executed by Madam Chan and Hon Ka (as assignors) to Hon Ka (as assignee) for no consideration. The validity of this assignment is disputed by Hon Piu.
(vi) The Will
24. On 22 October 2007, Madam Chan was admitted to Mr and Mrs Lawrence Wong Lutheran Home for the Elderly (“the Elderly Home”).
25. Also on 22 October 2007, Madam Chan executed the disputed will (“the Will”) in the presence of two witnesses, namely, Sai Mui and Ho Hang Nga (Hon Piu and Sai Mui’s daughter), using a standard form provided by the Elderly Home.
26. Under the Will, Madam Chan appointed Hon Piu as the sole executor and trustee of the Will, and bequeathed the whole of her residuary estate to Hon Piu.
27. In the course of the trial, Hon Piu (who acted in person) raised a number of allegations in respect of a variety of matters, including a proposed investment in a “7-Eleven Franchise”, the purchase of a taxi and two other properties in the PRC, and an allegation that Madam Chan was beaten up and even tortured (虐打) by Hon Ka’s wife (which I do not accept). These allegations are peripheral to the main issues to be resolved in this action and I do not propose to deal with them further in this judgment unless they are relevant and necessary for the proper resolution of those issues.
The Alleged Family Fund
28. It is Hon Piu’s case that, in or about April 1967, there was an oral agreement (“the First Oral Agreement”) reached amongst Madam Chan, Hon Piu and Hon Ka that:-
(1) a fund (“the Family Fund”) would be set up with moneys contributed or to be contributed by the three of them, and the Family Fund was intended to be used for three purposes: (a) investment, (b) emergencies and special events, and (c) Madam Chan’s maintenance;
(2) the Family Fund was to be kept in a savings account with Bank of East Asia (no 015-144-10-06412-6) held in the sole name of Madam Chan; and
(3) on a broad-brush basis, Madam Chan, Hon Piu and Hon Ka would each be entitled to a one-third interest in the Family Fund even though the respective amounts contributed by them might be different.
29. Hon Ka denies that there was any such oral agreement reached amongst Madam Chan, Hon Piu and Hon Ka. Hon Ka accepts that both Hon Piu and he did pay a part of their respective earnings to Madam Chan, but the moneys that they paid to Madam Chan were given to her as their contributions to the living or household expenses of the family and out of their filial piety. According to Hon Ka, the family’s earnings were barely sufficient to support their living. There was no question of them setting up any fund for (inter alia)...