Ho Yat Wah (何日華) v Chung Hang Him (鍾衡謙) (sole executor named in the will of Chan Yuk Mui, deceased) [2024] 5 HKC 47, [2024] HKCA 378
Jonathan Chang SC, Vincent Chen and Jeff Yau represented the plaintiff in Ho Yat Wah (何日華) v Chung Hang Him (鍾衡謙) (sole executor named in the will of Chan Yuk Mui, deceased) [2024] 5 HKC 47, [2024] HKCA 378.
The plaintiff claimed for return of various landed properties and assets held on trust for him by the deceased. It was initially alleged that the trust arose out of an oral agreement (‘Trust Agreement’). At trial, the claim for landed properties was based on common intention constructive trust and/or resulting trust. The defendant (who was the deceased’s son and the sole executor named in the will of the deceased) denied the existence of any trust arrangement, and maintained that the assets were acquired by the deceased with her own money and money given to her by the plaintiff as gifts due to their romantic relationship. After trial, a judge of the Court of First Instance dismissed the plaintiff’s claims save for a claim of medical expenses paid on the deceased’s behalf. The judge’s findings were, inter alia, that (i) there was a romantic relationship between the plaintiff and the deceased; (ii) there was no sufficient evidence of for the alleged oral trust agreement or any trust agreement between the plaintiff and the deceased; and (iii) the plaintiff asked the deceased for a HK$2 million and such funds came from her. The plaintiff appealed to the Court of Appeal, contending that the judge wrongly reached a conclusion on the alleged oral trust agreement; that the judge wrongly found that the deceased had sufficient financial resources to fund the purchase of the landed properties; that the judge erred in her approach with regard to the plaintiff’s ‘financial contribution’; and that the judge erred in her findings regarding the loan. The defendant cross-appealed in respect of the interest for the judgment sum and on the mesne profits, as well as an account of the proceeds from the sale of Property 7 and payment of the sum found due with interest.
Held, unanimously, dismissing the appeal and allowing the cross-appeal:
Per Anthony Chan J
(1) The Court of Appeal would not disturb factual findings of the court below unless the trial judge fell into palpable error. The Confirmation Letter was only one of the many pieces of evidence which the judge had to evaluate in considering the common intention of the deceased and the plaintiff. The surrounding evidence was carefully considered by the judge at length with considerable care, referring to a number of unsatisfactory elements about this piece of evidence. There was no basis to fault the judge’s analysis of the evidence concerning the Confirmation Letter and this did not detract from the judge’s other findings. Wong Ka Yan Patrick v Cheung Ka Yu Nicole [2021] HKCFI 3199 ; [2021] HKCU 5109 applied (paras 30-36).
(2) The Judgment had to be read as a composite whole. Whether the trial judge fell into the Mibanga error in not surveying all the relevant evidence on a point before reaching her conclusion on it was a matter of substance rather than form. The structure of the Judgment reflected the issues identified by parties and set out in an agreed Scott Schedule. In any event, the reliance on the Mibanga principle would not assist the plaintiff unless the Confirmation Letter was a piece of material or weighty evidence in support of the alleged oral trust Agreement. The criticism that that the Judge had failed to take into account the Confirmation Letter in rejecting the Plaintiff’s case on the Trust Agreement was not made out. Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 and R (MN) v Secretary of State for the Home Department [2021] 1 WLR 1956 considered (paras 37-45).
(3) The starting point was that the landed properties were legally owned by the deceased. The plaintiff bore the burden to show the beneficial interest differed from the legal ownership. The purpose of examining the deceased’s financial resources was to see if she was unable to purchase the landed properties with her means. The trial judge did not fall into palpable error on the findings over the deceased’s resources. There was no reason why the maintenance and gifts should not be regarded as part of the deceased’s financial resources. Stack v Dowden [2007] 2 AC 432 applied (paras 46-50).
(4) The plaintiff’s case was that all landed properties were acquired with his money. He denied his relationship with the deceased and advanced no alternative case of financial contribution in a domestic context. The findings in the Judgment on the lack of linkage between the plaintiff’s funds and the acquisition of any specific property were made in the context of evaluating his case that he paid for the landed properties. There needed to be a common intention that the plaintiff should have an interest in the property, then his financial and non-financial contributions made in reliance of such belief, which did not have to be referable to the landed properties, would be taken into consideration in determining the ownership of them. There was no common intention on which the plaintiff could rely upon. Grant v Edwards [1986] Ch 638 applied (paras 51-55).
(5) There was no basis to suggest the trial judge had misunderstood the evidence in respect of the Loan (paras 56-60).
(6) The trial judge overlooked the award of interest claimed by the defendant. In respect of the cross-appeal for interest on the judgment sum, the parties agreed that interest should be awarded on the judgment sum at prime plus 1% from the date of the counterclaim to date of Judgment and thereafter at judgment rate(s) until payment. There was no reason why the defendant should be deprived of his interest claim on the mesne profits. The calculation of mesne profits in the present case did not contain an element which might reflect the loss of use of the ‘notional rent’ which would have been payable. Nonetheless, the computation of the interest due on the mesne profits would be a complex exercise by reason of the lengthy period of wrongful occupation and the variation in rent and interest rate over time. The award of interest should be based on a broad brush approach, ie one half of the total interest calculated with reference to the total rent payable and the interest payable thereon based on the prevailing prime rates plus 1%. Whitwham v Westminster Brymbo Coal and Coke Co [1896] 1 Ch 894; Persaud v Glenealy Mansion Ltd [1987] 1 HKC 112 and Trafigura Beheer BV v Mediterranean Shipping Co SA [2008] 1 All ER (Comm) 385 distinguished (paras 61-70, 74(1)-74(2)).
(7) Given the plaintiff was a fiduciary under the specific power of attorney granted to him to deal with the sale of Property 7 and his admission that the sale proceeds were received by him, there was no reason why the relief of account of the sale proceeds of Property 7 should not be granted. This was an inadvertent oversight by the trial judge. Where there was an apparent oversight by the trial judge in dealing with a relief, the party seeking the same should have applied under the slip rule to have the matter considered by the judge instead of lodging an appeal (paras 71, 73, 74(3)).
(8) Where a respondent chose to lodge separate submissions on the appeal and on his cross-appeal, the submissions on cross-appeal should be confined to addressing the issues of that appeal in order to avoid unnecessary duplication (para 72).
[The above is excerpted from the headnote to the report in HKC.]
