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Tsang Yee Kam v Yip Kwun Lun, The Executor Of The Estate Of Yip Shing, Deceased

Judgment Cited authorities 11 Cited in Precedent Map Related
Vincent
Judgment Date02 April 2020
Neutral Citation[2020] HKCFI 553
Year2020
Judgement NumberHCA608/2014
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA608/2014 TSANG YEE KAM v. YIP KWUN LUN, the executor of the estate of YIP SHING, Deceased

HCA 608/2014

[2020] HKCFI 553

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 608 OF 2014

________________________

BETWEEN
TSANG YEE KAM Plaintiff
and
YIP KWUN LUN, the executor of the estate of YIP SHING, Deceased Defendant

_______________________

Before: Hon B Chu J in Court

Dates of Hearing: 3 – 4, 8 – 11, 14 and 16 October 2019

Date of Judgment: 2 April 2020

_________________

J U D G M E N T

_________________

_____________________

Table of Contents

_____________________

A. Introduction
B. Background
C. The various litigations
C.1 The litigations in Hong Kong
C.2 The litigations in Dongguan
D. The general legal principles
E. The Scott Schedule
F. The witnesses
G. Circumstances leading to Mother making her two wills
H. Circumstances leading to Father making the 2013 Will
I. Subject Matter (4) – Mother’s role in the family
J. Subject Matter (1) – Chung Sing Flat
J.1 Mother’s case
J.2 D’s case
J.3 The Land Registry documents
J.4 Who paid for the sum of HK$14,840 under the SPA?
J.5 Who paid for the monthly bank mortgage instalments of the 1st Mortgage Loan
J.6 Whether there was a common understanding and intention that Chung Sing Flat was purchased for Father and Mother as equal beneficiaries
K. Subject Matter (2) – Yau Wing Hong
K.1 When did Yau Wing Hong commence and cease business
K.2 What was the source of capital for the setting up of Yau Wing Hong
K.3 What was Mother’s role in Yau Wing Hong
K.4 What was the Father’s role in Yau Wing Hong
K.5 Who was the person primarily generating profit of Yau Wing Hong
K.6 Whether there was a common understanding and intention between Father and Mother that Yau Wing Hong’s profits should be shared between Father and Mother equally
L. Subject Matter (3) – Other Properties
L.1 Shop 10
L.2 Shop 11, Shop 12, Shop 16A, Carparking Space
L.3 The Sale Proceeds (of the Yau Wing Hong Tower in Dongguan), withdrawals from the Joint Account and the Dongguan Flat
M. Other assets of Yau Wing Hong
N. Account
O. Conclusion and Order

A. Introduction

1. In the present case, a mother is suing the eldest of her five children, who is the eldest son and the sole executor and sole beneficiary of her deceased husband’s estate. The mother seeks various declarations that certain of her deceased husband’s assets were held on trust for her and/or she had/has beneficial interests therein. I understand the other four of her children (“4 Siblings”) are all on mother’s side.

2. Counsel Mr Richard Leung and Mr Tommy Cheung appeared for the plaintiff mother (“Mother”) and Counsel Mr Roland Lau and Mr Andrew Lau appeared for the defendant (“D”) at the trial.

B. Background

3. Mother was born in Mainland China in 1939 and was about 80 years old at the time of the trial. Her husband Yip Shing (“Father”) was born in Dongguan in about 1931. According to Mother, Father told her that he had reported himself to be a couple of years older in order to find a job after he came to Hong Kong with his younger brother to join their father, but Father had also often told her that he was 8 years older than she. Anyway, after arriving in Hong Kong, Father started to work as a sewing machine technician.

4. According to Mother, her father was a landowner in Mainland China and her mother Madam Leung Suet Fong (“Madam Leung”) was his 3rd concubine. Mother said her father died in 1940s when she was young, and she was mainly brought up by Madam Leung. Later, according to Mother, Madam Leung came with her to Hong Kong and that Madam Leung had brought with her some gold ornaments and some money and that they were able to support themselves. In about 1956, Mother started to work as a spinning and weaving worker.

5. Father and Mother met in a garment factory in Hong Kong and were married on 3 February 1960. 5 children were born out of their marriage, namely:

(1) D (葉冠麟), the eldest son, born on 24 August 1960, now aged 59, who worked as a “clothings technician”.

(2) Yip Ka Fai (葉家輝), a son, born on 17 September 1961, now aged 58, who is a police officer.

(3) Yip Kam Har, (葉錦霞) a daughter, born on16 November 1963, now aged 56, who owns a fashion shop.

(4) Yip Kam Yee (葉錦儀), a daughter, born on 25 May 1966, now aged 53, who is a housewife.

(5) Yip Ka Kit (葉家傑), a son, born on 26 February 1968, now aged 51, who is an estate agent.

6. It was Mother’s case that soon after her marriage to the Father, the Father’s own father Yip Kam Chuen (“Yip Senior”) and her mother Madam Leung jointly provided funds for Father to set up a business in buying and selling new and/or second hand sewing machines in Cheung Sha Wan called 榮生衣車公司/“Wing Sang Sewing Machine Company” (“Wing Sang”). Mother worked as a helper in Wing Sang until the business ceased, and so did Yip Senior. According to Mother, the business did not go well and often owed rent to the landlords and had to move several times.

7. Due to the riots in Hong Kong in 1966-1967, Wing Sang had to cease business and Father had to go to Taiwan in about May 1967 to avoid his creditors. Mother said she was pregnant at that time with the youngest child Ka Kit and that she left the 4 older children in the care of Madam Leung who was living in Kwu Tung in Sheung Shui while Mother worked in a bra manufacturing factory in Kowloon to provide support for the children. During this time, Mother rented a bed space in Cheung Sha Wan to be near the bra factory.

8. Father returned from Taiwan in around late 1967 or early 1968, and the family together with Madam Leung then all moved into a flat in Chung Sing Building in Tai Kok Tsui (“Chung Sing Flat”). Mother and D gave different versions as to when they and/or Father moved into Chung Sing Flat which I will come back to later in this judgment. The Agreement for Sale and Purchase of the Chung Sing Flat (“SPA”) was initially signed by Madam Leung in 1968 but the assignment was signed by Father in 1970 (“Assignment”). It is Mother’s case that she had/has beneficial interest in this property and suffice to say at this stage, this is one of the major disputed issues. What was not disputed was that although Madam Leung moved into Chung Sing Flat with the family, she later moved out, which D said was in about 1970-1971, but Mother said during the trial that it was in 1971.

9. After Father returned from Taiwan, Mother said she continued to work in the bra factory during the day and she also brought pieces home to sew at night to support the family as Father was unemployed for about a year. According to Mother, it was in early 1969, that Father found a job at a handbag factory and the family then settled down and Father and Mother worked hard and were later able to pay off the mortgage on Chung Sing Flat in February 1976. However, D said Father was all along the main bread winner.

10. It would appear that as Father and Mother had a friend called 樊叔, or “Uncle Fan” who was living in Lau Fau Shan, they often brought the children to Lau Fau Shan during weekends. This led to a flat at 3rd floor in Kei Yip Building in Lau Fau Shan being purchased in the sole name of Mother on 20 December 1977 (“Kei Yip Flat”).

11. Father’s employment at the handbag factory was terminated in about 1978 and according to Mother, Father then became unemployed for about a year, and he and Mother later started to work as hawkers in Lau Fau Shan. It was Mother’s case that she and Father then mortgaged Chung Sing Flat to secure general banking facilities for their hawker business which then developed into a business of parallel trading (水貨生意) namely buying goods in Kowloon and selling them to Mainlanders. Father moved to reside in the Kei Yip Flat followed by Mother. 3 of their children including D remained living in the Chung Sing Flat on their own while the other two moved to live with Madam Leung who helped to care for them.

12. According to Mother, after several months, they started to make a profit out of their parallel trading business and in about 1980, 有榮行貿易公司or Yau Wing Hong Trading Co was established for their business (the original business and various businesses subsequently registered as being carried out by Father as a sole proprietor with name of Yau Wing Hong will be referred to herein collectively as “Yau Wing Hong”). Mother’s case was that she and Father jointly held beneficial interest in Yau Wing Hong, and this is another of the major disputes in the present action.

13. Although according to Mother that it was in 1980 that Yau Wing Hong was set up by her and Father, according to D, Yau Wing Hong was only commenced in 1983 and by Father as a sole proprietor, and that until it ceased business in 2004, Father was the sole beneficial owner of the business of Yau Wing Hong.

14. On 14 November 1983, Shop 12, G/F at Yik Fat Building in Yuen Long (“Yik Fat”) was purchased in Father’s sole name (“Shop 12”). Thereafter, the parallel trading business of Yau Wing Hong was carried out at Shop 12. Mother said she acquired a driving licence and she started to drive to deliver goods to customers of Yau Wing Hong and that Father never held any driving licence. In her witness statement, Mother said she obtained her first driving licence at the age of 45 on 17 March 1984[1].

15. Later in April 1986, another shop space Shop 16A, Wing Fu Mansion in Yuen Long was purchased in the joint names of Father and...

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