Your World of Legal Intelligence
 Hong Kong | 1-800-335-6202

Yang Foo-oi By Leung Ping Chiu, Roy Her Next Friend v Wai Wai Chen And Another

Judgment Cited authorities 25 Cited in 2 Precedent Map Related
Vincent
Judgment Date20 January 2020
Neutral Citation[2020] HKCFI 235
Judgement NumberHCA1739/2010
Subject MatterCivil Action
CourtCourt of First Instance (Hong Kong)
HCA1739J/2010 YANG FOO-OI by LEUNG PING CHIU, ROY her next friend v. WAI WAI CHEN AND ANOTHER

HCA 1739/2010

[2020] HKCFI 235

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1739 OF 2010

________________________

BETWEEN

YANG FOO-OI by LEUNG PING CHIU, ROY her next friend Plaintiff
and
WAI WAI CHEN 1st Defendant
TIMFORD RESOURCES LIMITED 2nd Defendant

________________________

Before: Hon Anthony Chan J in Chambers
Date of Hearing: 20-22 and 25-26 November and 3 December 2019
Date of Decision: 20 January 2020

_________________

D E C I S I O N

_________________

1. In this Decision, I shall adopt the nomenclature used in the Judgment of this Action dated 29 November 2016 (“Judgment”). There are 3 applications before the court, namely :

(1) the Defendants’ Summons filed on 8 November 2017 seeking, inter alia, (i) a determination of Yang’s locus to pursue the claims in this Action; (ii) to set aside the Judgment; and (iii) a dismissal of this Action (“Locus Summons”);

(2) Yang’s Summons filed on 8 November 2017 to join Angela as a co-plaintiff (alternatively, a defendant) to these proceedings (“Joinder Summons”); and

(3) Yang’s application for rectification of a Deed of Gift (“D/G”) and a Gift Declaration (“G/D”) by way of Summons filed on 1 August 2018 (“Rectification Summons”).

Background

2. The unusual circumstances giving rise to these applications are as follows.

3. This Action was commenced by Yang in November 2010 against Vivien. Timford was joined as a defendant in December 2012. Yang’s primary claim against Vivien was to set aside two “Disputed Agreements” which she entered into with Vivien in respect of Chen’s distribution of assets to his family and for consequential relief. In the event that the Disputed Agreements were held to be valid, Yang had an alternative claim: (i) in respect of the beneficial ownership of the shares in Timford and (ii) for a shortfall in the charitable donation which Vivien was obliged to make under those Agreements.

4. The trial of this action took 21 days from 21 September to 1 November 2016. By the Judgment, Yang’s claim for rescission of the Disputed Agreements was upheld on the grounds of: (i) breach of fiduciary duties; (ii) breach of duty of disclosure in respect of a family arrangement; and (iii) undue influence. Consequential relief of account of profits or alternatively equitable compensation was granted. Yang’s alternative claim was also upheld in the event that the court was wrong on her primary case.

5. On 23 December 2016, the Defendants filed a Notice of Appeal against the Judgment.

6. In April 2016, Vivien commenced HCMH 19/2016 (“MH Proceedings”) seeking to appoint a committee to manage and administer Yang’s affairs. Angela intervened in those proceedings. In her 4th Affirmation filed in the MH Proceedings on 26 May 2017, it was stated that the Certificate of Family and Property submitted by Vivien was not accurate, and redacted copies of 4 documents were exhibited: the G/D, D/G, an Irrevocable Power of Attorney (“P/A”) (all dated 12 December 2012) and a Deed of Assignment (“D/A”) dated 20 December 2012. These documents were subsequently referred to as “Gift Documents”.

7. By an Order dated 18 September 2017 in the MH Proceedings, Lok J directed Angela to provide Vivien with unredacted copies of the Gift Documents. After receiving those documents on 27 September 2017, Vivien applied in the MH Proceedings on 20 October 2017 for leave to use the Gift Documents in her appeal against the Judgment (“Appeal”). That application was granted on 23 October 2017, one day before the hearing of the Appeal.

8. On the same day (23 October 2017), Vivien took out an application in the Appeal to adduce the Gift Documents as fresh evidence. She contended that by the Gift Documents Yang’s claims in this Action against her (“Claims”) were vested in Angela.

9. It should be noted that Vivien’s position “has always been that she does not accept the validity of the assignment of [this Action] to Angela and that the validity of the [D/G] should be challenged whenever it is possible to do so”[1]. I shall return to this issue below.

10. Yang’s position before the Court of Appeal (“CA”) was that she did not admit that the Gift Documents had the effect of assigning the Claims to Angela. However, she applied for Angela to be joined as a co-plaintiff to deal with any technical issue which might arise from the Gift Documents. The CA decided to stay the Appeal pending the determination of the issues of locus and joinder by this court. Hence these applications.

Issues

11. There is an Amended Joint List of Agreed Issues filed pursuant to the directions of this court. It contains no less than 14 issues with 5 sub-issues.

The respective position on the main issues

12. Yang’s stance on the main issues[2] had been summarized by Mr Yu SC, who appeared with Mr Man SC, Mr Lam and Mr Lee for her, as follows :

(1) On the true construction of the Gift Documents, they do not cover the Claims;

(2) Alternatively, the Gift Documents should be rectified so as to make clear that they do not cover the Claims;

(3) If, contrary to the above contentions, the Gift Documents do purport to assign the Claims to Angela, the assignment is: (i) not effective because the Claims were in law not assignable; and (ii) not effective against Vivien without notice;

(4) Angela should be joined as the 2nd Plaintiff, which would regularise the Action and preclude any challenge by Vivien;

(5) This court should not countenance Vivien’s attempt to run diametrically opposite cases on the validity of the Gift Documents. This should result in two things. First, Vivien’s challenge of Yang’s locus should be dismissed because her positive contention is that the Gift Documents are invalid. Second, the court should not accede to her suggestion of rendering a conditional judgment so as to preserve her option to challenge the validity of the Gift Documents in the future.

13. On behalf of the Defendants, Mr Strachan SC, who appeared with Mr Dawes SC, Mr Chau and Mr Man, contends that :

(1) It is plain that as a matter of construction and law that the D/G assigned the Claims to Angela so as to prevent Yang from pursuing this Action;

(2) There is nothing in the Rectification Summons, since the evidence provides no basis whatsoever for imputing to Yang some intention other than that which is plain from the D/G itself;

(3) Nor does the evidence disclose any basis upon which the court should take the exceptional course of permitting Angela to be joined in this Action post judgment in order that she can get the benefit of the same. There is no warrant in the authorities for the court taking such an unusual course in the present circumstances;

(4) The legal propositions in para 12(3) and the contention in para 12(5) above are disputed.

Witnesses

14. The hearing was conducted with cross-examination of the witnesses. However, the only witnesses were those of Yang, namely, Angela, Mr David Wong (“Wong”) who acted for Yang and drafted the Gift Documents and Ms Ann Hui (“Hui”) who assisted Wong in relation to those Documents.

Gift Documents

15. On 12 December 2012, Yang executed 3 documents in her hospital room, namely, the G/D, D/G and P/A. These were short documents in Chinese and expressed in simple terms.

16. Each one of the Documents was signed by Yang and witnessed by Wong and Dr Wong Yee Him (“Dr Wong”), a psychiatrist. A statement by Dr Wong was contained in each Document to the effect that Yang was mentally capable to execute the Document and she did so voluntarily.

17. It is reasonably plain from the terms of the G/D that :

(1) Yang had made a Will on 25 February 2008 (“2008 Will”) which provided that Angela was the only beneficiary thereunder[3] (Clause 4);

(2) Yang was determined not to make any gift to Vivien (Clause 5);

(3) The purpose of the Declaration was to avoid “unnecessary disputes in the future” (Preamble);

(4) Yang’s assets were estimated to be worth no less than HK$15 billion as of July 2011 (Clause 1);

(5) Yang would reserve HK$0.2b (kept in 2 bank accounts) for her living and other expenses (Clause 2). The remainder of the assets, regardless of their value, would be gifted to Angela (Clause 3);

(6) A Deed of Gift (the draft of which was attached to the G/D) would be executed on that day to achieve the early completion of the gift to Angela under the 2008 Will (Clause 4) but that last Will should not be regarded as cancelled.

18. There were only 3 clauses in the body of the D/G. Clause (1) referred to the reservation of HK$0.2b for Yang’s living and other expenses. The terms of Clause (2) go to the heart of the dispute on the construction of the Gift Documents:

“除本人以上保留的財產之外 [the HK$0.2b] ，本人將本人的全部和任何財產，以在生餽贈方式，全部即時送贈及轉予本人長女，即陳慧芳…，旨在使她即時成為該等贈予她的財產的實益擁有人。”

[emphasis added]

19. Clause 3 referred to the assets which Angela was holding on her mother’s behalf. They were considered as immediately transferred to her as beneficial owner.

20. The term “全部和任何財產” (translated as “all and any of my properties”) was also used in Clause (3) and the G/D.

21. As stated, the P/A was created to enable Angela to take any steps which were considered necessary to transfer Yang’s assets to her, her nominees or companies pursuant to the D/G.

22. Clause (1) of this document also contained the reference to 全部和任何財產.

23. Clause (2) of the P/A was in the following terms:

“上述的授權，旨在保障及體現陳慧芳於她受贈財產的實益產權，因此即使之前或日後有部份餽贈文件乃由本人親身簽署，或本人日後失卻精神行為能力或去世，上述的授權仍然持續有效，直至全部餽贈財產的正式產權轉移手續，均全部妥善完成為止。”

24. On 20 December 2012, Yang executed the D/A in favour of Angela in connection with the debts owed to her by 9 companies in which she had an...

To continue reading

Request your trial
2 cases
  • Re Minloy Ltd And Others
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 28 August 2020
    ...in previous proceedings (Re Shun Tak Holdings Ltd [2009] 5 HKLRD 743 §§83-90 (per Kwan J, as she then was); Yang Foo-Oi v Wai Wai Chen [2020] HKCFI 235 §217 (per Anthony Chan J)). The principle can be seen as an extension or flexible application of the orthodox doctrine of abuse of process ......
  • Pako Enterprises Ltd v Tse, Yuet Toa
    • Hong Kong
    • Court of First Instance (Hong Kong)
    • 13 May 2020
    ...23 June 2006 [7] [2010] 1 HKC 585, [25(10)] [8] The CC-to-CC is verified by a statement of truth signed by Lee on behalf of P. [9] [2020] HKCFI 235 ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT