This decision is now reported in [2024] 5 HKC 47.

In Ho Yat Wah v Chung Hang Him, The Sole Executor Named in the Will of Madam Chan Yuk Mui, Deceased [2024] HKCA 378 the Court of Appeal dismissed the appeal and allowed the Defendant’s cross-appeal.  Mr C Y Li SC, Jonathan Ah-weng and Nicole Liu represented the Defendant.  Jonathan Ah-weng represented the Defendant in the trial below.

The Plaintiff claimed that he bought 7 properties, in the name of his secretary the late Madam Chan (“Deceased”), held on common intention constructive trust for him.  The Plaintiff continued to occupy one of the properties after the Deceased’s death.  By the Deceased’s will, the Defendant (her son) inherited 4 properties (the other 3 were sold prior to her death), including the one occupied by the Plaintiff.  The Plaintiff placed heavy reliance on a confirmation letter signed by the Deceased shortly before her death, which was prepared by and in the presence of a solicitor, the Plaintiff’s cousin, who also testified.  The defence was that the Deceased purchased all the properties with her own funds, and there was no trust.  The Defendant counterclaimed, inter alia, to uphold the will, and for vacant possession of the occupied property.  He contested the authenticity of his late mother’s signature on the confirmation letter, and alternatively, asserted the non est factum defence, that she signed it without fully understanding its contents.  After a 13 day trial involving handwriting experts and extensive cross examination, the Defendant was successful at first instance (see [2019] HKCFI 3041)

The Court of Appeal affirmed the Judgment below.  In finding that the learned trial Judge did not commit a Mibanga error (failure to properly consider all relevant evidence before drawing her conclusions on the non-existence of a trust agreement), the Court of Appeal clarified the application of Mibanga v Secretary of State for the Home Department [2005] EWCA Civ 367 in R (MN) v Secretary of State for the Home Department [2021] 1 WLR 1956 at [108], that the test was “a matter of substance rather than form”.

Further, in awarding interest on pre-judgment mesne profit in the Defendant’s cross appeal, the Court distinguished earlier cases, and rejected the notion that the Defendant would be overcompensated should interest be awarded.  The Court found that unlike earlier cited cases, the calculation of mesne profit was based on historical rents, rather than a “notional rent” at the date of the judgment.  Therefore there was no double benefit in awarding interest.

Click here for the judgment.