Lam Kwok Hing (Administrator of the Estate of Lam Ping Sang, deceased) v Lau Ha (劉霞) (also known as Lau Ha Lily) & Ors [2025] 4 HKC 267, [2025] HKCFI 1354 (Tasman Tam)
Tasman Tam represented the plaintiff in Lam Kwok Hing (Administrator of the Estate of Lam Ping Sang, deceased) v Lau Ha (劉霞) (also known as Lau Ha Lily) & Ors [2025] 4 HKC 267, [2025] HKCFI 1354.
Sha Tin Rural Committee (沙田鄉事委員會) (STRC), the 3rd defendant, was an unincorporated association, formed as early as 1945 and was recognized under the Heung Yee Kuk Ordinance (Cap 1097). It promoted and represented the interests of indigenous villagers in Shatin. Sha Tin Welfare Association (沙田福德會) (STWA), the 4th defendant, was also an unincorporated association. STWA gathered contributions from its members (who were indigenous villagers in Shatin) and paid wreath fees and/or funeral expenses whenever a member passed away. STWA had been managed and/or operated by STRC, and it had been regarded as a branch or department of STRC. The 1st defendant was the tenant of the Property leased by STRC to her. The property in dispute was acquired by four village representatives of various villages in Shatin (Registered Owners) as joint tenants. The Registered Owners passed away eventually, with the last surviving Registered Owner, Lam, died in 2012. The plaintiff was Lam’s son and the administrator of his estate. The plaintiff maintained that the registered title of the Property vested in Lam’s estate and sought to recover possession of the Property. The defendants’ case was that the Registered Owners acquired the Property on behalf of STWA’s members, and a trust had arisen in favour of STWA’s members (or alternatively STRC’s members).
Held, dismissing the plaintiff’s claim and allowing the defendants’ counterclaim, that:
(1) The Registered Owners held the Property on trust for STWA, based on common intention constructive trust. There was a common intention amongst the Registered Owners, STRC and the members of STWA that the interest in the Property belonged to STWA’s general body of members collectively, and the Registered Owners were merely nominees or representatives who were entrusted to hold the title for the benefit of the members of STWA. Mo Ying v Brillex Development Ltd [2015] 3 HKC 104; [2015] 2 HKLRD 985; Liu Wai Keung v Liu Wai Man [2013] 5 HKLRD 9; [2013] HKCU 2294; Leung Hang Lin & Anor v Lam Mei Yung [2019] HKCFI 2819; [2019] HKCU 4420; Stack v Dowden [2007] UKHL 17; [2007] 2 AC 432; [2007] 2 All ER 929; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKC 588; [2017] 4 HKLRD 327; and Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1; [2008] HKCU 918 applied (paras 42, 48-64).
(2) In a typical scenario, the parties to a common intention constructive trust would not have entered into the transaction in question at all but for the common intention. In other words, the fact that a party entered into the transaction in question or agreed that the property be registered in the name of the other party could ipso facto constitute detrimental reliance. Against this background, the English courts appeared to take the view that it would not be necessary for the claimant to show that it suffered additional detriment as a result of relying on the common intention. In any event, it was found that STWA had acted in detrimental reliance on the common intention. First National Trustco (UK) Ltd v Page [2019] EWHC 1187 (Ch) and R v Moore [2021] EWCA Crim 956; [2021] 4 WLR 121 considered (paras 65-75).
(3) Since Lam was privy to the common intention, it would be unconscionable for the plaintiff to cause the estate of Lam to renege from it. The plaintiff could not have honestly and conscionably treated Lam’s estate as the sole beneficial owner of the Property when the same had been absolute used, enjoyed and managed by STRC and/or STWA for decades. The requirement of unconscionability was satisfied (paras 76-78).
(4) The Property was acquired for the general benefit of STWA, instead of only being used for the specific purpose of generating rental income to defray the wreath fees and funeral expenses of STWA’s members. Further, STRC and/or STWA were free to utilize or dispose of the Property as they saw fit. The rules against perpetuity or inalienability were not engaged on the facts. Re Bucks Costabulary Widows’ and Orphans’ Fund Friendly Society No 2 [1979] 1 All ER 623; [1979] 1 WLR 936; Re Sam Shui Natives Association [2010] 2 HKC 204; [2010] 2 HKLRD 649; Neville Estates Ltd v Madden [1961] 3 All ER 769; [1961] 3 WLR 999; [1962] Ch 832; Cheung Man Yu v Lau Yuen Ching & Ors [2007] 4 HKC 314; Re Macaulay’s Estate [1943] Ch 435; and Re Lipinski’s Will Trusts [1976] Ch 235; [1977] 1 All ER 33; [1976] 3 WLR 522 considered (paras 88-111).
(5) Based on the findings of facts that (i) the common intention was known to the Registered Owners; (ii) the members of STWA and STRC had suffered detrimental reliance as a result of acting on the common intention (or convention) and their positions had changed; and (iii) it would be unconscionable for the plaintiff to cause Lam’s estate to renege from the common intention, Lam’s estate and/or the plaintiff were estopped from asserting ownership of the Property against STWA or its members under the doctrine of estoppel by convention and proprietary estoppel (paras 116-120, 125).
(6) The defendants’ alternative case based on adverse possession failed because the possession of the property could not be adverse as the Registered Owners, knowing that they were merely nominees or representatives with no interest at all, must have consented to the arrangement of the property being used and/or leased out by STRC Cheung Lai Mui (the executrix of the estate of Cheung Ping Kau and the administratrix of the estate of Cheung Ping Fuk) v Cheung Wai Shing & Ors [2021] 5 HKC 185; (2021) 24 HKCFAR 116; [2021] HKCFA 19 considered (paras 138-144).
Obiter
(7) Based on the evidence, alternatively on the basis of ‘contract holding theory’, it was possible to infer that the Registered Owners, STRC and the members of STWA had an agreement in respect of the Property that: (i) the Registered Owners were authorized to acquire the Property on behalf of the members of STWA and hold the title on the members’ behalf; (ii) the Registered Owners could not treat the Property as their personal assets and should not use the Property for their personal benefit; (iii) the STRC was authorized by the members of STWA to manage and handle the affairs of the Property on their behalf; and (iv) the members of STWA had a collective interest in the Property and so long as a person remained a member of STWA, he or she had a say in regard to the affairs of the Property, and STRC should take into account his or her views. The plaintiff (who was the administrator of Lam’s estate) was not in a position to bring the claims as these claims constituted flagrant violation of the contractual duties on the part of Lam. Re Sam Shui Natives Association (above) considered (paras 129-134).
[The above is excerpted from the headnote to the report in HKC.]
