HO KO SHING , THE ADMINISTRATOR OF THE ESTATE OF HO LEUNG HUNG, DECEASED v. HO CHEE AND ANOTHER

HO KO SHING , THE ADMINISTRATOR OF THE ESTATE OF HO LEUNG HUNG, DECEASED v. HO CHEE AND ANOTHER

Court found the Deceased authorized the 1st defendant as an authorized person creating a bare trust over HK$509,227.94; the 1st defendant breached that trust by transferring HK$200,000 to the 2nd defendant and withdrawing HK$85,000 for purposes other than the Deceased's benefit; the 2nd defendant received the HK$200,000 with knowledge rendering retention unconscionable and acted with dishonest assistance; judgment awarded equitable compensation of HK$200,000 (against both jointly and severally) and HK$85,000 (against 1st defendant) with interest and costs; late witness application to call Ms Law was refused for inexcusable delay and prejudice.

Citation
HO KO SHING , THE ADMINISTRATOR OF THE ESTATE OF HO LEUNG HUNG, DECEASED v. HO CHEE AND ANOTHER
Parties
Plaintiff (administrator): plaintiff (administrator of the estate of Ho Leung Hung); 1st Defendant: 1st defendant (youngest brother of the Deceased); 2nd Defendant: 2nd defendant (son of the 1st defendant)
Court
District Court
Jurisdiction
Hong Kong
Judgment Date
25 November 2015
Case Number
DCCJ747/2013
Procedural Posture
Civil Trusts and Restitution (equitable Compensation for Breach of Trust) / Judgment at Trial
Outcome
Judgment for the plaintiff in equity
Legal Topics
Breach of Trust, Bare Trust, Knowing Receipt, Dishonest Assistance, Late Adducing of Witness Evidence, Letters of Administration, Costs
Source Language
EN
Equity Trusts Fiduciary Duty Restitution Probate and Administration Civil Procedure Breach of Trust Bare Trust +5 more

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Parties

plaintiff (administrator of the estate of Ho Leung Hung)

Plaintiff (administrator)

1st defendant (youngest brother of the Deceased)

1st Defendant

2nd defendant (son of the 1st defendant)

2nd Defendant

Procedural Posture

Civil Trusts and Restitution (equitable Compensation for Breach of Trust) / Judgment at Trial

Legal Issues

  1. 1 Whether the 1st defendant was a bare trustee of the Deceased's bank account balance
  2. 2 Whether the 1st defendant breached the trust by transferring HK$200,000 on 28 May 2008
  3. 3 Whether the 1st defendant breached the trust by withdrawing HK$85,000 on 26 Feb 2011

Ratio Decidendi

Court found the Deceased authorized the 1st defendant as an authorized person creating a bare trust over HK$509,227.94; the 1st defendant breached that trust by transferring HK$200,000 to the 2nd defendant and withdrawing HK$85,000 for purposes other than the Deceased's benefit; the 2nd defendant received the HK$200,000 with knowledge rendering retention unconscionable and acted with dishonest assistance; judgment awarded equitable compensation of HK$200,000 (against both jointly and severally) and HK$85,000 (against 1st defendant) with interest and costs; late witness application to call Ms Law was refused for inexcusable delay and prejudice.

Court Disposition

Judgment for the plaintiff in equity

Orders

  • Judgment against the 1st defendant and the 2nd defendant jointly and severally for HK$200000 with interest at judgment rate from date of writ until payment
  • Judgment against the 1st defendant for HK$85000 with interest at judgment rate from date of writ until payment