The recent Hong Kong High Court decision in Ng Nim Chung, deceased v Ng Wing Man Terry [2025] HKCFI 5314 provides a timely reminder of the importance of documentary evidence, corroborating evidence and asking the right questions in advancing a common intention constructive trust claim in a family dispute.
Factual & Procedural Background
This is the re-trial of an action between a 92-year-old mother and her son (Defendant). The mother and her late husband (the father) had 5 children including the Defendant. Since the mid-1960s, they lived in a public rental housing unit in Shatin Pass Estate. The children gradually moved away.
In 1997, the late father and mother moved to the subject property (“Property”), which was purchased under the Home Ownership Scheme and registered in the names of the late father and the Defendant as joint tenants.
After the late father passed in 2016, the mother (both in her personal capacity and as the administratrix of the late father’s estate) commenced the action, asserting that the late father and/or she beneficially owned the Property, in which she has resided since 1997 and the purchase price of which was paid solely by the late father and her. This was supported by all her other children, and contested by the Defendant alone.
The proceedings extended over 9 years. The trial took place in 2021 where the Defendant was absent and judgment was granted in favour of the Plaintiffs. In 2022, the judgment was set aside and a re-trial was ordered. The Plaintiffs appealed against the setting aside with leave of the court, which was dismissed in 2024.
In this re-trial, the Court again upheld the Plaintiffs’ claim based on common intention constructive trust.
Key Takeaways
1. Applicable principles in family disputes: It is trite that the burden was on the mother to show a common intention that the beneficial ownership of the Property was different from the legal ownership.
The court recognised that whilst it is unusual for the legal and beneficial interests in a purchased property to diverge, the court should nonetheless note a fundamental distinction from Stack v Dowden as that case concerned disputes between cohabitants whose relationship has broken down, whereas this case is a family dispute.
The mother had to show that the Defendant held his legal interest in the Property as a joint tenant on behalf of the late father, and that at the time of purchase it was the common intention of the late father and the Defendant, shared by the family, that the late father was the sole beneficial owner and the Defendant was only “lending” his name as a legal owner with no beneficial interest. The inquiry requires a holistic assessment of the family’s circumstance at the time of purchase.
2. Importance of documents & corroborating evidence: In accepting the Plaintiffs’ case, the court found that the contemporaneous documents produced by the Plaintiffs are overwhelmingly supportive of their case and are inherently credible. In particular, the Plaintiffs produced a consistent and complete documentary trail (including deposit slips, remittance advices and joint bank account passbook) showing that mortgage repayments were made exclusively by the mother, as well as bills and receipts which show that the household expenses were borne by them and not the Defendant.
The Plaintiffs’ case was further corroborated by witness testimony and other documents including a forfeiture form which shows the Defendant’s willingness to forgo his legal title in favour of the late father without consideration.
By contrast, the Defendant’s case (including that he made financial contributions to mortgage repayments) was considered “entirely collapsed”, and his evidence “riddled with contradictions, unsupported by any documentary proof, and wholly incapable of belief”.
3. Credibility & inherent probabilities: The inherent logical fallacies and inconsistencies of the Defendant’s case was also fully tested and exposed during his cross-examination, during which the Defendant gave further inconsistent and new version of events in response to counsel’s questions and/or failed to answer the questions being put to him. The court also noted that no other witnesses (including the Defendant’s wife) had come forward to corroborate his case.
The full judgment can be found at this link.
Mr Kerby Lau and Ms Regina Yip (on pro bono basis), instructed by Hampton, Winter & Glynn, for the 1st Plaintiff
Mr Kerby Lau and Ms Regina Yip (on pro bono basis), instructed by Hampton, Winter & Glynn, assigned by Director of Legal Aid, for the 2nd Plaintiff
