FACV Nos. 10 & 11 of 2015

IpsofactoJ.com: International Cases [2015] Part 13 Case 4 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

Asther W.Y. Leung

- vs -

Y.W. Kwok

Justice R.A.V. Ribeiro PJ

Justice ROBERT Tang PJ

Justice PATRICK Chan NPJ

Justice FRank Stock NPJ

Lord Collins of Mapesbury NPJ

22 DECEMBER 2015


Judgment

Justice Ribeiro PJ

  1. I agree with the judgment of Mr Justice Stock NPJ.

    Justice Tang PJ

  2. I agree with the judgment of Mr Justice Stock NPJ.

    Justice Chan NPJ

  3. I agree with the judgment of Mr Justice Stock NPJ.

    Justice Stock NPJ

    Introduction

  4. These are appeals against concurrent findings of fact. They arise from the determination by the District Court[1] of a preliminary issue in an application by the respondent husband for matrimonial ancillary relief. That issue was whether the beneficial interest in 20 million shares in a privately owned company was held by the petitioner wife or, on the other hand, by her father who was joined as intervener.

  5. The shares were registered in the wife’s name but it was her contention and that of her father that she holds them on trust for him. The judge rejected that contention and declared that the shares are part of the wife’s assets and therefore available for distribution upon the ancillary relief application.

  6. The judge’s decision was upheld by the Court of Appeal[2], whose judgment predated the repeal of section 22(1)(a) of the Court of Final Appeal Ordinance[3] so that, since the matter in dispute involves a claim to shares clearly quantifiable at a value in excess of $1 million, the appeals come to this Court pursuant to that “as of right” provision[4].

  7. The established practice is that this Court will not interfere with concurrent findings of fact other than in exceptional and rare circumstances, namely, where it is demonstrated that there has been a miscarriage of justice or violation of some principle of law or  procedure, and[5]:

  8. That miscarriage of justice means such a departure from the rules which permeate all judicial procedure as to make that which happened not in the proper sense of the word judicial procedure at all. That the violation of some principle of law or procedure must be such an erroneous proposition of law that if that proposition be corrected the finding cannot stand: or it may be the neglect of some principle of law or procedure, whose application will have the same effect. The question whether there is evidence on which the courts could arrive at their finding is such a question of law.

  9. The submission advanced by the petitioner (the wife) and her father is that in this case there are exceptional circumstances which warrant a review of the concurrent findings. Those circumstances are said to be inconsistent findings on the central issue; findings against the credibility of witnesses despite a failure to challenge that credibility; fundamental failures of analysis; and a failure by the first instance judge to provide adequate reasons. We are asked to reverse the declaration, failing which to order a retrial.

  10. Most of the complaints can be addressed briefly and do not warrant other than summary disposal, for they do not lend themselves to reasonable argument justifying a full review. There was, however, one aspect of the judgment at first instance which, in my opinion, does warrant review; that is whether the judge at first instance explained what weight he gave to certain events said by the wife and her father to be cogent evidence in support their case and why, despite that evidence, he found against them. 

  11. The evidence 

  12. The parties were married in 1999. They have one child. They lived together in properties provided rent-free by the company in question. The wife filed a petition for divorce on 11 October 2011 and a decree nisi was granted on 4 October 2012.

  13. The wife was aged 46 years at the time of the trial of the preliminary issue. She has three siblings: her elder sister, Leung Wa Yi, who lives in Canada; Leung Cham Wah (Cham), also in his mid-40s; and Leung Kwun Wa (Kwun), the youngest, aged 40 years at the time of trial.

  14. The father, aged 79 years at the time of trial, is a highly successful businessman. In 1977 he established Yee Fung Polyfoam Ltd (Yee Fung) and, subsequently, other companies including HK Sports Helmet Manufacturing Limited, leading manufacturers of crash helmets.

  15. The wife commenced work at Yee Fung in about 1990 and continued to work there at all material times. Before he left for Canada in 1997, Cham worked there and Kwun still does.

  16. The father invested most of the profits of these businesses in real estate and in March 1995 he acquired a shelf company, Nicegood Properties Limited (NPL), to hold the matrimonial homes of his family members and other properties.

  17. In April 1995 the authorised share capital of NPL was increased to $66 million divided into 66 million ordinary shares of $1 each. The father became the registered shareholder of 40 million shares and Cham and Kwun were each allotted 13.2 million shares.

  18. The father's case was that he told those of his children who held shares in NPL that they were not to deal in any way with them without his prior consent and that should they leave the family business, the shares were to be returned to him. It was well understood that the shares registered in the names of the two sons belonged to the father beneficially. No dividends were paid to them. He alone provided the working capital for NPL and was the sole authorised signatory of all NPL’s bank accounts.

  19. In 1997, Cham went to live in Canada and on 15 December 1997 he transferred his 13.2 million shares to the father. The instrument of transfer and the bought and sold notes state that the transfer was made in consideration of the payment to Cham of $13.2 million.  Stamp duty of $22,825 was paid for the transaction. However, the oral evidence was that no consideration was in fact paid.

  20. On 11 November 2004, Kwun executed a declaration of trust by which he stated that he held the NPL shares as nominee for his father. The evidence of the father and of the wife was that this occurred because of a falling out between the father and Kwun and that the father wanted thereby to show his lack of trust in Kwun. The effect of the father's testimony was that whereas the trust arrangement had hitherto arisen by reason of oral communications, the relationship between himself and Kwun now required that it be spelt out in writing. In respect of this transaction, stamp duty of $19, 880 was paid.

  21. Shortly thereafter, in early December 2004, the father asked the petitioner to replace Kwun as the nominee shareholder of those 13.2 million shares and to hold them on trust for him, the father. There followed, dated 8 December 2004, an instrument of transfer by Kwun to the wife of the 13.2 million shares and the consideration was therein stated to be nil with the words “change of nominee” inserted in manuscript.  There is an official stamp on the document stating : “No Ad Valorem Duty payable.”

  22. On the same day, the wife executed a declaration of trust stating that she held the shares as nominee for her father, the beneficial owner. The document states that no duty was chargeable.

  23. About six weeks later, namely, on 18 January 2005, the wife transferred those shares back to her father, again by an instrument of transfer expressed to be for no consideration followed by the words: “ Being shares transfer back from Nominee to Beneficial Owner”. The document states that no ad valorem duty was payable.

  24. According to her testimony, she returned the shares because her involvement in the dispute between her father and her brother had made her uncomfortable. The father’s evidence was that the request to execute a declaration of trust was, he thought, taken by her as a slight, an indication that her word that she held them on trust was not good enough. In those circumstances and since, at the time, the wife was the only one of his children upon whom he felt able to rely in respect of business and family matters, he thought it appropriate for her to hold shares for him but to do so, as had her brothers in the past, without requiring her to sign a declaration of trust. He also thought that transferring shares to her name would add to her authority and bargaining power with third parties such as estate agents and bankers. He told her and she agreed that “if she left the family business or upon my request, she had to return all things (including the shares of Nicegood) to me ....”[6]

  25. Consequently, by an instrument of transfer dated 31 March 2005, 13.2 million shares were transferred by the father to the wife but, according to that instrument and the relevant bought and sold notes, that transfer was effected in consideration of the sum of $13.2 million; however, the oral testimony by the father, the wife and the father’s accountant was that no sum was in fact paid. Stamp duty of $15,249 was paid.

  26. In December 2006, as a result of tax advice, the authorised share capital of NPL was increased by 60 million shares of $1 each, taking the total authorised share capital to $126 million.  The funds were provided by the father, though from what source and whether by director’s loan to the company, the evidence did not disclose. His testimony was that since his relationship with Kwun had by then improved, he decided to restore Kwun to his status as a shareholder and allotted to him 20 million shares in NPL and, to achieve parity between Kwun and the wife, allotted 6.8 million shares to her. Still, according to this evidence, the arrangement remained – although nowhere recorded – that all NPL shares in the names of Kwun and the wife were held on trust for the father; neither was asked by him to sign a declaration of trust because a trust was sufficiently understood.

  27. Amongst the matters which the father prayed in aid of his contention that he never intended to confer beneficial ownership of the shares upon Kwun and the wife were that he regarded NPL as his personal “piggybank”; that to donate shares to only some of his children would unfairly discriminate between his children, grandchildren and other family members; that he alone controlled NPL, its working capital and bank accounts; that no dividends were paid to Kwun or to the wife; that no consideration passed from Kwun or the wife for the shares[7]; that in 1997 Cham acceded to the father's request to return the shares in Cham’s name, conduct which sat squarely with the trust understanding; that, similarly, in 2004 Kwun acceded to the father's request to execute a declaration of trust and to assign his shares to the wife, a further instance of the understanding in action; that the share certificates held by the wife and Kwun were never signed; and that in the light of the divorce petition presented in October 2011 and the certain prospect of a claim for ancillary relief, he would never have permitted the subsequent purchase by NPL, in February and April 2012, of two properties for a total price of $208.8 million.

  28. The wife’s testimony supported that of her father, as did the evidence of Kwun. There was other evidence that no money had changed hands upon any of the transfers of NPL shares between father and his children; and of the father's complete control of the affairs of NPL and the Yee Fung group.

  29. The husband's evidence was that no one ever suggested in his presence that the siblings held NPL shares on trust for the father. His assumption was that, absent declarations of trust, the intention in transferring shares to the siblings who worked for the company was as a reward for having done so and an encouragement to continue. He speculated that the declarations of trust signed in late 2004 were triggered by the unusual tension between Kwun and his father and that the step by which Kwun’s shares were transferred to the wife upon her express declaration of trust was intended to send a message to Kwun that if he maintained his attitude of hostility to his father, his position would be supplanted by her. He asserted that the father was a generous man given to making gifts of blue-chip shares to the wife and providing substantial financial support to her and to him.

  30. The absence of pleadings

  31. The order for joinder of the father as intervener was made[8] pursuant to a consent summons which sought an order that he be so joined “to seek a declaration in respect of shares in [NPL] held in the name of the petitioner in which he claims beneficial ownership”.[9] In accordance with the terms of that consent summons, a direction was given for the petitioner to serve copies of all pleadings and other relevant documents in the suit on the intervening party, which, in context, can only have meant the pleadings – such as the petition and cross petition – and documents hitherto filed in the matrimonial proceedings.

  32. However, no direction was sought and none given for the filing of pleadings or for the discovery of documents in support of and directed to the preliminary issue. That omission was unfortunate and was understandably categorised by the Court of Appeal as contributing to confusion as to “what case was advanced by the husband in opposition to the father's claim, how the husband's case was conducted in the course of the trial, and the findings that should be made by the judge on the competing claims or contentions to resolve the dispute.”[10]  In this regard, I endorse the practice commended by the Court of Appeal that in the context of matrimonial proceedings for ancillary relief, disputes between a spouse and a third party as to ownership of property should procedurally be approached as in standard claims for ownership of property: in other words, after a direction for trial of the dispute as a preliminary issue and the joinder of the claimant as intervener, by directions for the filing of pleadings on the preliminary issue and for witness statements and discovery relevant to that issue.[11]  It does not however lie at the door of any party to the present proceedings now to complain about the procedural lacuna since the flawed directions were sought on the joint application of the parties and ordered by consent without anyone suggesting that appropriate directions be given for the preliminary issue.

  33. The first instance judgment

  34. As to the law, the judge said:

    1. that “[g]iven that the documents hold out the wife to be the legal and beneficial owner of the shares, shares apparently purchased by her for $13.2 million, it is for her and her father to prove on a balance of probabilities that the wife is the father’s trustee and that he remains the beneficial owner of the shares”[12]; and

    2. that it was his function to discover what the father's intention was when he transferred the shares to the wife, in which context he cited several passages from Lavelle v Lavelle[13] “which”, he said, “succinctly [address] what is required of me in the circumstances”[14]:

    [13]

    Where one person A transfers the legal title of property that he owns or purchases to another, B, without receipt of any consideration, the effect will depend on its intention. If he intends to transfer the beneficial interest in the property to B, the transaction will take effect as a gift and A will lose all interest in the property. If he intends to retain the beneficial interest for himself, A will take the legal interest but will hold the property in trust for [B][15].

    [14]

    Normally there will be evidence of the intention with which the transfer is made. Where there is not, the law applies presumptions. Where there is no close relationship between A and B , there will be a presumption that A does not intend to part with the beneficial interest in the property and B will take the legal title under the resultant trust for A. Where, however, there is a close relationship between A and B, such as father and child, a presumption of advancement will apply. The implication will be that A intended to give the beneficial interest in the property to B and the transaction will take effect accordingly.

    ....

    [19]

     

    In these cases equity searches for the subjective intention of the transferor. It seems to me that it is not satisfactory to apply rigid rules of law to the evidence that is admissible to rebut the presumption of advancement.[16]

  35. Under the heading “ Conclusions”, the judge said that there was no doubt but that the father had been very generous towards the wife and her husband; that the father was a traditional patriarchal head of the family, who demanded obedience and loyalty, factors to which he, the judge, had paid great attention. He said that he noted, as well and with care, “the pattern of share transfers both on the basis of trusteeship and of apparent transfers of beneficial interests”[17], and had given careful consideration to “the fact that the father made purchases of valuable property after he knew of the pending divorce.”[18]

  36. A key question in the case was what point there was, whether from the perspective of the father or from that of the siblings, in the siblings holding the shares as mere nominees. As to the father's explanation in this regard, most particularly in relation to the transfer of shares to the wife in March 2005, the judge found as follows[19]:

  37. I am bound to say that I have great difficulty in accepting the logic of the father's case that the motive in transferring the shares to the wife in this way was to provide her with ‘a psychological lift’ and in giving her more clout when dealing with third parties. As to the former I cannot really discern any ‘lift’ when the recipient of the shares was a mere nominee. As to added status, the fact of the matter is that status, if any, comes from the fact that she is a director but, even more importantly, that she is her father's daughter who overwhelmingly controls the group. No doubt when she speaks, she speaks for him so much so that she would need to consult with him before entering into any important transaction. This really betrays a certain contradiction; more standing with third parties in representing the company and yet, to the knowledge of the third parties called as witnesses, having to defer and consult her father before any final decision is to be taken. I do not believe this proferred motive for transferring the shares as nominee in this way can hold any water at all. I reject it as a reason.

  38. He concluded as follows:

  39. 61.

    In the final analysis I am afraid to say that the truth of this matter is that this kind and generous father decided to reward his beloved daughter and Kwun, with whom he had happily become reconciled, with this very valuable interest in NPL. As to the point that he would not do so because this would favour some relatives over others, is not a matter that I find at all persuasive. The fact is that when the time comes, he still holds great wealth in his own hands, he will be able to do what is right for the remainder of them. The wife in this case is his right hand and he intended, I use the word advisedly, to transfer the shares to her outright, which is what he did. Had it been otherwise he would have created a specific instrument of trust as he had in the past. This must have been, I find this as a fact, a deliberate choice to bring about a transfer of the beneficial interest in the shares.

    62.

    Now of course this has become very inconvenient because the husband is saying, and rightly so on my finding, that the shares, being the wife's must form part of the matrimonial estate which falls to be divided up between him and the wife in such proportion as the court considers correct and just. In order to avoid such a consequence, I regret to say that these usually honest and decent people have decided that they would give false evidence as to the basis of the transfer of these shares.

  40. He accordingly dismissed the father’s application for a declaration that the beneficial ownership of shares in NPL held in the name of the wife rested with him and ordered that the shareholdings stand as part of her beneficially owned assets available for distribution on the hearing of the ancillary relief application.

  41. During the course of the hearing on the preliminary issue, the judge raised of his own motion the question whether the instrument of transfer of shares to the wife and the bought and sold notes constituted an estoppel as against the father and the wife. In his judgment, he said that[20]:

  42. Having found that the father's intention was to and did transfer the beneficial interest in the shares to the daughter is sufficient to dispose of the issue .... I am therefore not required to decide whether an estoppel is available [to the husband] as an additional ground for succeeding in this matter.

  43. He nonetheless addressed that issue “in deference to counsel’s researches and in case the matter needs to be considered in another court” and, without providing analysis, held that the father and the wife were indeed estopped “from denying the truth of the contents of the instrument of transfer and the bought and sold notes. So this must stand as a further ground for the dismissal of the Intervener’s summons.”[21]

  44. The Court of Appeal

  45. In the Court of Appeal, it was contended on behalf of the father and the wife that the judgment at first instance was internally inconsistent in that the judge held that there had been a sale for value of the shares to the wife but, inconsistently, that the father had gifted the shares to her; that the documents purportedly recording a sale were erroneously treated by the judge as precluding the existence of a trust; that the judge failed to distinguish between the different circumstances in which the wife acquired the two parcels of shares (13.2 million in March 2005 and 6.8 million in December 2006); that he had ignored the evidence of a consistent pattern of trust arrangements between the father and three of his children, as demonstrated by the return of shares to the father by Cham in 1997 and Kwun in 2004; that the judge failed to appreciate the significance of the absence of signatures on the share certificates; that he failed to recognise the significance of the father’s investment in properties through NPL after he became aware of the institution of divorce proceedings; and that, contrary to the principle in Browne v Dunn[22], it had never been put to the father or the wife, or to other witnesses, in cross-examination of them on the husband’s behalf, that their accounts of an oral trust agreement were untrue.

  46. It was conceded by the respondent before the Court of Appeal that the judge had erred in his finding of an estoppel but, in a careful and thorough judgment[23], that Court rejected the argument that that conclusion had infected the judge’s central findings. The Court was satisfied that the judgment evidenced a single uncontradicted finding by the judge that the father had made a gift of the two parcels of shares to the wife; that there were significant indicia which countered the assertion of a trust; and that the failure to put to the witnesses in terms that their evidence was not true was of no consequence since it must have been obvious to the parties and to the witnesses that the husband's case was a challenge to their assertions of a trust arrangement.

  47. The Court was not persuaded that the judge had overlooked relevant evidence. The Court pointed to cogent factors against the wife’s case and that of her father:

  48. 78.

    .... the transfer to the wife in March 2005 was made without a declaration of trust, and this came not long after declarations of trust were executed by Kwun in November 2004 and by the wife in December 2004. No plausible explanation was given by the wife why she should have been unwilling to be the express nominee of the father when she returned the shares to him in January 2005 but was happy to take on the status in April 2005 without a declaration of trust. When the father was pressed for an explanation why he executed documents stating that consideration was paid and received when the shares were transferred to the wife, when it was his case that no consideration was paid as it was a trust arrangement, he said the documents were just formalities and claimed he did not remember much and did not know the contents. The father admitted at that time, he understood what a declaration of trust was, that it was a simple way of setting out the true beneficial ownership as opposed to registered ownership.

    79.

    As for transferring the shares to the wife as a nominee to provide motivation for the other children to join the family business and work hard, Mr Sussex asked rhetorically why would Cham come running back from Canada only to be made a mere nominee shareholder as he had already been before, on the father's case. That the father had wanted all along his children to carry on the family business was entirely consistent with the gift of the shares to them.

    Further, the Court agreed, “there was no credible explanation why the wife’s shareholding was increased to 20 million in 2006 if it was a merely nominal shareholding for spiritual or psychological purposes.”[24]

  49. The Court concluded that the trial judge was entitled to disbelieve the father and the wife, whose evidence he had heard and that there was no basis to impugn the finding of a gift.[25]  Accordingly, the appeals were dismissed.

  50. Concurrent findings

  51. These appeals challenge concurrent findings of fact. The established practice, to which I refer at the outset of this judgment[26], is that this Court will not interfere with concurrent findings of fact other than in exceptional and rare circumstances. The exceptional circumstances advanced on behalf of the father and wife are, in their combined effect, a repetition of the grounds of appeal canvassed before the Court of Appeal albeit, in the case of the father, with some difference of emphasis. I first address those which can be disposed of in short order.

  52. Inconsistent findings

  53. This complaint is not maintained by Mr Burns SC for the father but is maintained by Mr Coleman SC for the wife. Mr Coleman’s suggestion is, first, that resolution of the preliminary issue required the judge to decide not only whether the wife held the beneficial interest in the shares but, if she did, whether it was by reason of gift or of purchase since the route by which that interest was hers would impact upon the degree to which, if at all, the value of those shares would enure to the benefit of the husband in his claim for ancillary relief. The contention is, with respect, not sound, for the preliminary issue defined by the father's summons and ordered to be tried, was whether he held the beneficial ownership of the shares, no more and no less. In the event, the point matters not since the question whether a gift or a purchase, if not a trust, was in reality destined to be addressed – as indeed it was – and, more particularly, it is clear to me, as it was to the Court of Appeal, that the first instance judgment does not yield any inconsistent finding. The judge decided, as is apparent in that part of his judgment entitled “Conclusions”, that in 2005 and in 2006, the father made a gift to the wife of the NPL shares in contention.

  54. The Browne v Dunn point[27]

  55. It is true that there was an inconsistency in the husband’s case as canvassed in the District Court,although not, as just pointed out, in the judge's findings. The inconsistency was that in his affirmations, his case was that the shares were transferred to the wife by way of gift whereas at trial his case appeared to be that she had purchased them. Yet what was apparent throughout and must have been clear to the witnesses was that their suggestion of a trust was not accepted. The same complaint, when advanced to the trial judge, was dismissed by him with the comment that the entire curial contest had, to everyone's knowledge, concentrated upon the issue whether the father and the wife were telling the truth when they said that it had been agreed between them that she would hold the shares as trustee for the father. “Everybody knows,” he said “that their evidence is under the severest challenge.” A contrary contention is, in my opinion, not tenable. In the circumstances which prevailed at this trial – and such an issue is always case specific – a requirement to put to the witnesses in terms that they were not telling the truth would have been an insistence for form over substance.

  56. Judge’s reasoning: the arguments

  57. Mr Burns asserts that the judge erred in respect of the burden of proof. The suggestion is that in the matrimonial proceedings it was for the husband to prove that the shares belonged beneficially to the wife whereas the judge held[28] that since the documents held out the wife to be legal and beneficial owner, it was for her and the father to prove that she was a trustee.

  58. He further argues that whereas the judge was required to ascertain the father's subjective intention as at the time of transfers of shares to the wife in March 2005 and December 2006, the judge instead adopted an objective test in that he allowed the documents to distract him from evidence of the father's subjective intention. According to this argument, the documents were neutral in their effect since they purported to evidence sales for value whereas it was accepted that no sale had taken place, yet the documents on their face were inconsistent with a gift as well as with the creation of a trust. There was therefore no inference to be drawn from the documents and all that remained was the testimony of the father. It follows, it is said, that the judge’s approach was fundamentally flawed.

  59. It is then contended that since it was the father’s case that his evidence of intention was supported by two key undisputed facts – that shares were twice returned to the father upon his request and that expensive properties were injected into NPL after presentation of the petition – it was incumbent upon the judge to explain what impact those facts had upon his reasoning, whereas all he said in his judgment was that he noted them.[29]  This is said to demonstrate either a failure by the judge to understand the significance of the key evidence in support of the father’s case or a failure to provide adequate reasons for his decision; in either event, such a significant neglect as to warrant interference by this Court.

  60. The argument concludes with the suggestion that if the father’s testimony was correctly rejected, there remained only the presumption of a resulting trust since the transfers of legal title were made without consideration; a presumption which could be rebutted by the presumption of advancement only if the latter presumption were available in the case of transfer of a legal interest by a parent to an adult independent child, a proposition which counsel categorised as debatable.[30]  It was incumbent on the husband to rebut the presumption of a resulting trust but the judge erred in not approaching the issue on that basis.

  61. Mr Coleman adopted and further developed these submissions.

  62. The burden of proof

  63. It is unnecessary to decide upon whom the burden of proof lay and whether the judge erred in this regard. That is because the decision against the wife and the father on the preliminary issue did not rest upon a failure by them to discharge a burden of proof. It flowed from a finding of fact by the judge that the father intended by the transfers of shares to the wife to make a gift of them to her.[31]

  64. Subjective or objective approach

  65. The judge’s task was to ascertain the subjective intention of the father when in March 2005 he transferred the shares to the wife and when in December 2006 he caused shares to be allotted to her; and the case proceeded on the footing that the intention was the same on both occasions. The judge expressly recognised subjective intention as the key question[32] and I am satisfied that that is the test which he in fact applied. I do not accept the argument that he adopted an objective test; neither do I accept the argument that he should have treated the documents as neutral in their evidential effect.

  66. It is plain that what the judge did was to look primarily at the evidence presented to him of words and conduct contemporaneous with and proximate to the transfers in question in order to ascertain the subjective intention of the transferor at the time of the transfers. That evidence was of words allegedly passing between the father and the wife, and of conduct evidenced by the content and pattern of written declarations of trust and instruments of transfer. He concluded that the content of the documents and the stark contrast between them at a time when the father knew the effect of a trust declaration and had the benefit of legal and accounting advice, spoke volumes as to the father's intention in respect of the transfers in issue. At such a time, he chose on some occasions to cause such declarations to be made and on other occasions not to do so. He chose on some occasions instruments of transfer to bear the words "change of nominee" and "transfer back from nominee to beneficial owner" and on other occasions not. Absent a reasonable explanation for the choices he made in March 2005 and December 2006 not to seek written declarations of trust and not to refer to the wife as a nominee, and to pay duty on each such transaction, it was clearly open to the judge to reject the contention that on those occasions he intended the wife to hold the shares on trust.

  67. The father and the wife said, however, that there was indeed a reasonable explanation for wanting her and her brothers to hold as mere nominees and, save in the unusual circumstances pertaining at the end of 2004, to do so without the need for documents to evidence that status. But the palpable implausibility of that explanation was soundly revealed by the judge and by the Court of Appeal as not according with the common sense of the matter; and the logic of their analyses is not susceptible to valid criticism.

  68. There was no need in the circumstances for the judge to invoke the presumption of a resulting trust or to look to the presumption of advancement and he did not do so. The presumptions of resulting trust and advancement arise as a matter of default; in other words, where there is otherwise insufficient evidence of subjective intention. That is the point made in the passage cited by the judge from Lavelle that[33]:

  69. Normally there will be evidence of the intention with which the transfer is made. Where there is not, the law applies presumptions.

    and summarised thus, that[34]:

    Even where this [an express declaration of trust] is absent, the court aims to arrive at the parties' real intentions by considering direct evidence of the entire transaction. This requires an objective inference drawn from the parties’ words and conduct. As a result, the presumptions of resulting trust or of advancement are only relied upon as default rules where there is no sufficient evidence to displace them.

    Non-proximate conduct

  70. In that it is said that the judge’s conclusion evidenced a reliance on conduct proximate to the transfers themselves to the wrongful exclusion of non-proximate conduct (the 1997 and 2004 returns of shares at the father’s request; and the 2012 property purchases), the answer is, first, that he did not ignore the earlier or later events or the suggested significance of them. He mentioned them as matters to which he had close regard[35] and expressly recognised the reliance placed on them[36].  Whether he revealed what he made of those events and why, despite those events, he rejected the contention of a trust arrangement is a matter which merits scrutiny and to which I will shortly turn.

  71. A question canvassed in the course of argument before this Court was whether those earlier and later events were admissible as evidence of intention at the time of transfers. It seems to me that they were and that the issue was one of weight. In the context of a question whether evidence of conduct subsequent to the registration of shares in the names of children was admissible to rebut the presumption of advancement, it was held in Shephard v Cartwright[37] that whereas acts and declarations of the parties before or at the time of the transaction or so immediately after it as to render it a part of that transaction are admissible “either for or against the party who did the act or made the declaration.. . subsequent declarations are admissible as evidence only against the party who made them, not in his favour.”[38]  The modern approach is less rigid in relation to evidence of subsequent conduct[39]:

  72. .... it does not follow that subsequent conduct is necessarily irrelevant. Where the existence of an equitable interest depends upon a rebuttable presumption or inference of the transferor’s intention, evidence may be given of the subsequent conduct in order to rebut the presumption or inference which would otherwise be drawn.

  73. As a matter of common experience, contemporaneous conduct is inherently more likely to be a reliable indicator of intention, to be given greater weight, than are words and conduct after the event, especially in the case of “ self serving statements or conduct of the transferor, who may long after the transaction be regretting earlier generosity.”[40]  That rationale is not restricted to evidence in rebuttal of presumptions but embraces any evidence from which an inference of the transferor’s intention may properly be drawn.

  74. The 1997 and 2004 transfers to the father by Cham and Kwun, respectively, predated the 2005 transfer and 2006 allocation to the wife; and were admissible in support of the father’s theme that shares in his children’s name were to be returned to him upon his request.  So too in my judgment was the father’s 2012 injection of properties, even though subsequent to 2005 and 2006 events and, as to weight, such a substantial investment might justifiably be said not to be in the nature of a self serving afterthought.

  75. That the judge treated the 1997 and 2004 transfers to the father and the 2012 purchases of property as admissible evidence as to intention is clear enough and it is also apparent that that evidence did not move him to accept the father’s and the wife’s central contention. What, however, has prevented a summary disposal of this application to review concurrent findings of fact, is the absence of an express explanation by the judge as to why that was so; why, in other words, that evidence did not persuade him to a different result.

  76. Adequacy of reasons

  77. The question whether reasons provided in a judgment are adequate is always case and issue specific, and is a question which is to be approached with common sense [41]. It must, however, be made apparent to the parties, especially to the losing party, from the reasons which are provided, why the judge has arrived at his decision and[42]:

  78. .... if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process.

  79. The pattern of return of shares to the father, in so far as two occasions might be termed a pattern, as well as the injection of properties in 2012, were key planks of the case for the father and the wife and, in my judgment, it would have been preferable had the judge explained in terms how those events sat comfortably with his finding that, nonetheless, the father’s intention in March 2005 and December 2006 was to gift shares to his daughter. Yet the question is whether, despite the absence of a direct explanation, his reasoning in that regard is sufficiently apparent.

  80. The weight of the evidence which constituted these key planks was expressly addressed by the Court of Appeal in the context of submissions that the judge had overlooked them. The Court said that not only had the judge taken them into account but that[43]:

  81. .... just as [counsel for the father] had sought to persuade us by looking at the pattern of transfers and allotments in a particular light, equally if not more cogent reasons could be advanced showing that the transfer in dispute was not a trust arrangement.

    The Court thereupon tabulated compelling factors which, notwithstanding the pattern relied upon, sat ill with the notion of a transfer to the wife as trustee[44].

  82. It is sufficiently apparent from a sensible reading of the first instance judgment as a whole that the judge’s reasoning as to the significance of the two planks of evidence so much relied upon by the father and the wife, was the same as that subsequently articulated by the Court of Appeal; which is to say, that the account offered by the father and the wife made no sense either in practical terms or in the light of the documentary history preceding and accompanying the transfer in March 2005; and that, since no consideration was in fact paid, the only conclusion to which the evidence and the common sense of the matter drove him was that a gift had been intended.

  83. These findings by the judge and the Court of Appeal do not sit at odds with the incidents upon which the appellants rely. They are consistent with a desire by the family’s patriarch to reward by gift those who worked with him but with a willingness on the part of the siblings, as a matter of filial rather than legal obligation, to convey beneficial ownership to him should unusual circumstances so indicate.

  84. As for the suggested significance of the injection of property assets into NPL after filing of the petition, the weight of the point is highly doubtful since there was not a scintilla of evidence of the impact of those acquisitions on the value of NPL shares; and it is the shares, not the properties, which were liable to form part of the matrimonial assets.

  85. In the event, I am persuaded that the complaint of inadequate reasons must fail.

  86. Fresh evidence

  87. There was an application to this Court by the wife and father that, for the purpose of these appeals, they be permitted to adduce evidence of the purchase by Yee Fung of Mainland property in the names of several individuals and of a finding by a Mainland court in August 2015 that such of those properties as were conveyed into the name of the husband, were held by him on trust for Yee Fung. That finding was contrary to his contention prior to and in the Mainland proceedings that the four flats in his name were held by him beneficially. The proposed evidence, including the ruling, is said to exemplify the father’s practice of appointing family members and others to hold properties as nominees without formal declarations of trust.

  88. We rejected the application. Issues of relevance aside, no adequate reason was advanced for the failure previously to adduce or to apply to adduce the evidence. The properties were purchased in 2006 and it was known by Yee Fung in mid-2014 that the husband disputed Yee Fung’s ownership claim. The hearing of the NPL dispute before the District Court took place in November 2012 and the hearing in the Court of Appeal took place in November 2014 without any reference in either forum to the Mainland property, in respect of which it would have been open to the father and the wife to apply to adduce evidence from persons, other than the husband, in whose names flats in the same district had been purchased at the same time.

  89. The father’s explanation was that due to the insignificant value of the flats, he forgot about them during preparation for trial of the preliminary issue and was not reminded of them until May 2014 when, as a result of the termination of the employment by Yee Fung of one of the property holders, he was reminded of them by Yee Fung’s accounts department. Even then, he did not appreciate the relevance of the trust arrangements for those flats to the issue of beneficial ownership of the NPL shares.

  90. The first condition for the reception of fresh evidence at the appellate stage is that the evidence could not have been obtained with reasonable diligence for use at the trial[45].  The appellants did not begin to meet that condition.

  91. Conclusion

  92. For the reasons which I have provided, I would dismiss this appeals and make an order nisi that the costs of the appeals and of the applications to adduce fresh evidence be to the respondent, to be taxed if not agreed.

    Lord Collins of Mapesbury NPJ

  93. I agree with the judgment of Mr Justice Stock NPJ.

    Justice Ribeiro PJ

  94. The Court unanimously dismisses the appeals and an order as to costs is made in the terms proposed in paragraph 70 above.


[1] Deputy District Judge Carlson, FCMC 14018 of 2011, 4 March 2013.

[2] Cheung, Yuen and Kwan JJA, CACV 151 of 2013 and CACV 152 of 2013, 4 December 2014.

[3] The repeal took effect on 24 December 2014: section 7 Administration of Justice (Miscellaneous Provisions) Ordinance.

[4] Leave was granted by the Court of Appeal on 23 April 2015.

[5] Srimarti Bibhabati Devi v Kumar Narayan Roy [1946] AC 508 at 521-522, the test applied by this Court in Sky Heart Ltd v Lee Hysan Co td (1997-98) 1 HKCFAR 318; Wu Yee Pak v Un Fong Leung (2004) 7 HKCFAR 498; Chinachem Charitable Foundation Ltd v Chan Chun Chuen (2011) 14 HKCFAR 798; and Wealth Duke Ltd v Bank of China (Hong Kong) Ltd (2011) 14 HKCFAR 863.

[6] The father’s affirmation dated 25 September 2012, para 21.

[7] A contention described by the judge in the course of proceedings as incontrovertible.

[8]Judge Melloy 25 September 2012.

[9] Consent summons dated 13 September 2012.

[10] Paras 30 and 31, per Kwan JA.

[11] Court of Appeal judgment, para 30, citing with approval TL v ML [2006] 1 FCR 465 at [34] and [37].

[12] District Court judgment para 43.

[13] [2004] 2 FCR 418.

[14] Ibid para 55.

[15] The report of the judgment says “A” but that must be a slip.

[16] The emphasis is that supplied by Judge Carlson.

[17] Judgment para 58.

[18] Ibid para 59.

[19] Ibid para 60.

[20] Ibid para 66.

[21] Ibid para 67.

[22] (1894) 6 R 67 HL. See para 43 below, fn. 27.

[23] Kwan JA, with whom the other members of the Court agreed.

[24] Para 80.

[25] Ibid paras 81 and 88.

[26] Para 7 above.

[27] See para 37 above. Put broadly, the principle in Browne v Dunn is that where a party intends to impeach the credibility of a witness on a material point, that party is bound to challenge the witness in cross-examination so as to give the witness an opportunity of making any explanation open to him; failure to do so may be taken as an acceptance of his evidence. But there are cases “in which [notice of the challenge] has been so distinctly and unmistakably given and the point upon which he is impeached, or is to be impeached, is so manifest, that it is not necessary to waste time in putting questions to him upon it”: Browne v Dunn (1894) 6 R 67 HL at 70-71. See also Markem Corp v Zipher Ltd [2005] R.P.C. 31 at [57] – [61]; and Phipson on Evidence, 18th ed., [12-12] and [12-35].

[28] See para 30(1) above.

[29] See para 29 above.

[30] The question whether the presumption of advancement applies to the case of a transfer without consideration by a parent to an adult independent child has been left open by the Court of Appeal : Suen Shu Tai v Tam Fung Tai [2014] 4 HKLRD 436 at [10.16] and by this Court upon appeal from that judgment: FACV No 9 of 2015, 5 November 2015.

[31] See para 61 judgment; para 30 above: “ .... he intended, I use the word advisedly, to transfer the shares to her outright, which is what he did. Had it been otherwise he would have created a specific instrument of trust as he had in the past. This must have been, I find this as a fact, a deliberate choice to bring about a transfer of the beneficial interest in the shares.” (emphasis added).

[32] See his emphasis on para [19] of the judgment in Lavell, referred to at para 27(2) above.

[33] Lavelle at [14]. See also Au Yuk Lin v Wong Wang Hin [2013] 4 HKLRD 373 at [18] to [19]; and  Pettitt v Pettitt [1970] AC 777 at 811 and 813, passages referred to in Lavelle at [17].

[34] Snell’s Equity 33rd ed., at 25-11(a).

[35] See para 31 above; paras 58 and 59 of the District Court judgment.

[36] Judgment paras 15 and 47.

[37] [1955] AC 431 at 445.

[38] Citing Snell’s Principles of Equity (24th Ed. p 153).

[39] Tribe v Tribe [1996] Ch 107 at 129 per Millett LJ, as he then was. See also Lavelle, above, at [17] to[19] and Snell’s Equity 33rd ed., 25-013.

[40] Lavelle para [19].

[41] Oriental Daily Publisher Ltd v Commissioner for Television and Entertainment Licensing Authoriy (1997-98) 1 HKCFAR 279 at 290-291.

[42] English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409 at [19]. See also as to the duty to give adequate reasons: Zhou Cui Hao v Ting Fung Yee 1999 3 HKC 635; Welltus v Fornton Knitting [2013] 5 HKC 105.

[43]Court of Appeal judgment, para 77.

[44] Ibid paras 78 to 80, repeated at para 39 above.

[45] Ladd v Marshall [1954] 3 All ER 745 at 748.


Representations

Russell Coleman SC and Robin Egerton, instructed by Simon C W Yung & Co, for the Petitioner (Appellant in FACV 10/2015).

Charles Sussex SC, Neal Clough and Timothy Parker, instructed by T C Foo & Co, for the Respondent (Respondent in FACV 10/2015 and FACV 11/2015).

Ashley Burns SC, Maggie Wong and Tanie Toh, instructed by Li, Wong & Lam & W I Cheung, for the Intervener (Appellant in FACV 11/2015).


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