SUM, SIMON, the administrator of the Estate of SUM TIN SANG alias TIN SANG SUM, deceased AND ANOTHER v. SUM AH KIU

SUM, SIMON, the administrator of the Estate of SUM TIN SANG alias TIN SANG SUM, deceased AND ANOTHER v. SUM AH KIU

On the balance of probabilities the parties formed the Agreement and shared the Common Intention that Raymond would have the beneficial interest in the Relevant Floors; the Deceased paid the construction costs and acted to his detriment in reliance on that intention; it would be unconscionable for the Defendant to deny the beneficial interest; the illegality defence fails under the Patel v Mirza range-of-factors approach given the family, non-commercial context and aims of the Small House Policy; accordingly the Defendant holds the Relevant Floors on constructive trust for Raymond and must transfer title, account for receipts and is injuncted from dealing with them.

Citation
[2025] HKCFI 4428
Parties
1st Plaintiff: SUM, SIMON (administrator of the Estate of SUM TIN SANG); 2nd Plaintiff: SUM, RAYMOND; Defendant: SUM AH KIU
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
22 September 2025
Case Number
HCA2029/2020
Procedural Posture
Civil Action (equitable Proprietary Claim Constructive Trust/resulting Trust) / Trial Judgment (court of First Instance)
Outcome
Judgment for the Plaintiffs: declaration of constructive trust in favour of Raymond over the Relevant Floors; illegality defence rejected; remedies granted.
Legal Topics
Common Intention Constructive Trust, Resulting Trust, Illegality (ex Turpi Causa), Small House Policy and Building Licence Conditions, Non Alienation Clause, Declaration of Trust, Accounting for Profits, Injunctions, Transfer of Title
Source Language
EN
Equity Trusts Property Law Conveyancing Administrative Law (small House Policy) Common Intention Constructive Trust Resulting Trust Illegality (ex Turpi Causa) +6 more

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Parties

SUM, SIMON (administrator of the Estate of SUM TIN SANG)

1st Plaintiff

SUM, RAYMOND

2nd Plaintiff

SUM AH KIU

Defendant

Procedural Posture

Civil Action (equitable Proprietary Claim Constructive Trust/resulting Trust) / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Whether a common intention constructive trust arose in favour of Raymond over the ground and second floors and roof (Relevant Floors)
  2. 2 Whether alternatively a resulting trust arises from payment of construction costs by the Deceased
  3. 3 Whether the alleged Agreement/Common Intention is unenforceable for illegality because of false declarations under the Small House Policy and building licence (Illegality Issue)

Ratio Decidendi

On the balance of probabilities the parties formed the Agreement and shared the Common Intention that Raymond would have the beneficial interest in the Relevant Floors; the Deceased paid the construction costs and acted to his detriment in reliance on that intention; it would be unconscionable for the Defendant to deny the beneficial interest; the illegality defence fails under the Patel v Mirza range-of-factors approach given the family, non-commercial context and aims of the Small House Policy; accordingly the Defendant holds the Relevant Floors on constructive trust for Raymond and must transfer title, account for receipts and is injuncted from dealing with them.

Court Disposition

Judgment for the Plaintiffs: declaration of constructive trust in favour of Raymond over the Relevant Floors; illegality defence rejected; remedies granted.

Orders

  • Declaration that the Defendant holds the ground floor, second floor and roof (Relevant Floors) of No.10B Shui Wo Tsuen, Lam Tsuen, Tai Po on trust for and on behalf of the 2nd Plaintiff (Raymond)
  • Permanent injunction restraining the Defendant from assigning, disposing of or dealing with the Relevant Floors