Hong Kong Case Law: Decisions & Judgments

Topic

Locus poenitentiae

Legal area

Court

29 Sept 2017

CHUNG TIN PUI, as manager of CHUNG MAN YIU TSO v. LI PAK SAU AND OTHERS

Citation

CHUNG TIN PUI, as manager of CHUNG MAN YIU TSO v. LI PAK SAU AND OTHERS
Court

Court of First Instance
Case number

HCA568/2007

Leave to re-amend was granted because the amended pleadings were clarified to properly plead withdrawal from the illegal development under the framework established by Patel v Mirza, the proposed amendments are neither futile nor barred by limitation or delay in the circumstances, and the court should assess any restitution/retransfer claims by weighing public interest factors and proportionality as set out in Patel.
16 Dec 2016

LI (or LEI) TING KIT TSO WITH LEE CHO TUNG AND LEE WING CHEONG AS MANAGERS v. CHEUNG TIN WAH AND ANOTHER

Citation

LI (or LEI) TING KIT TSO WITH LEE CHO TUNG AND LEE WING CHEONG AS MANAGERS v. CHEUNG TIN WAH AND ANOTHER
Court

Court of First Instance
Case number

HCA2500/2013

The court held the Agreements were illegal and thus unenforceable for breach claims, but the 2nd defendant held the Original Land on a resulting trust because the stated consideration was not paid; because the 2nd defendant had assigned away the sections and could not account or restore the trust property, equitable compensation in the sum of HK$14,900,000 was awarded to the plaintiff with interest; the 1st defendant was not ordered to pay.
14 Apr 2014

TANG TENG AND OTHERS v. CHEUNG TIN WAH AND ANOTHER

Citation

TANG TENG AND OTHERS v. CHEUNG TIN WAH AND ANOTHER
Court

Court of First Instance
Case number

HCA729/2011

The agreements were illegal and their illegal purpose had not been carried into effect; the defendants failed to prove payment of the stated consideration and relied on the illegal agreements to justify their position; accordingly the plaintiff validly withdrew under locus poenitentiae and the 2nd defendant holds the lands on resulting trust for the plaintiff, the assignment is null and void and must be rectified and set aside.
18 Mar 2010

CHEERBOND DEVELOPMENT LTD v. TUNG KWOK YU

Citation

CHEERBOND DEVELOPMENT LTD v. TUNG KWOK YU
Court

Court of Appeal
Case number

CACV238/2009

The appeal was dismissed because the Court found the illegal purpose to defraud creditors had not been implemented (the banks were not deceived by the mortgages), the presumption of advancement was rebutted on the evidence, and therefore the defendant held a beneficial interest under a resulting trust and was entitled to possession.
28 Dec 2009

TIU SUM FAT AND OTHERS v. SHUN SING DEVELOPMENT LTD AND ANOTHER

Citation

TIU SUM FAT AND OTHERS v. SHUN SING DEVELOPMENT LTD AND ANOTHER
Court

Court of First Instance
Case number

HCA1746/2005

The agreements were held unenforceable because performance would necessarily involve making or continuing a misrepresentation to the Government (the nominee owner had falsely held himself out as true owner to obtain a small house building licence); plaintiffs and 1st defendant were in pari delicto (both had knowledge or were imputed with knowledge of the nominee arrangement) so plaintiffs cannot recover the deposits; locus poenitentiae failed because the illegal purpose had been substantially performed (building licence granted); claim against 2nd defendant dismissed as he neither received de…
12 Jun 2001

YAU CHIU WAH v. GOLD CHIEF INVESTMENT LTD. AND ANOTHER

Citation

YAU CHIU WAH v. GOLD CHIEF INVESTMENT LTD. AND ANOTHER
Court

Court of First Instance
Case number

HCA807/2001

The original ex parte Mareva injunction was set aside for material non-disclosure but, on balance, a fresh Mareva injunction was granted; the 1st defendant's HSBC current account should be specifically named; the 1st defendant is permitted to spend up to $1,000,000 on legal costs; the plaintiff must pay the costs of and occasioned by the two summonses including the hearings on 23 February and 20 April 2001 (but not the 19 February 2001 hearing) because the plaintiff obtained an indulgence despite innocent material non-disclosure; no enhanced scale of costs awarded given the innocence of the o…
24 Apr 2001

BEST SHEEN DEVELOPMENT LTD. v. THE OFFICIAL RECEIVER AND TRUSTEE OF THE PROPERTY OF LAI THOMAS, A BANKRUPT

Citation

BEST SHEEN DEVELOPMENT LTD. v. THE OFFICIAL RECEIVER AND TRUSTEE OF THE PROPERTY OF LAI THOMAS, A BANKRUPT
Court

Court of First Instance
Case number

HCMP7250/1999

Plaintiff proved it retained the beneficial interest and could establish title without relying on the illegal development scheme (via the Declaration of Trust and resulting trust principles and locus poenitentiae), so a declaration of beneficial ownership and that the Bankrupt/Official Receiver held the land on trust for Plaintiff was permissible despite the underlying illegality; consequential orders followed and costs were awarded against the Plaintiff.

Hong Kong Case Law

CHUNG TIN PUI, as manager of CHUNG MAN YIU TSO v. LI PAK SAU AND OTHERS

LI (or LEI) TING KIT TSO WITH LEE CHO TUNG AND LEE WING CHEONG AS MANAGERS v. CHEUNG TIN WAH AND ANOTHER

TANG TENG AND OTHERS v. CHEUNG TIN WAH AND ANOTHER

CHEERBOND DEVELOPMENT LTD v. TUNG KWOK YU

TIU SUM FAT AND OTHERS v. SHUN SING DEVELOPMENT LTD AND ANOTHER

YAU CHIU WAH v. GOLD CHIEF INVESTMENT LTD. AND ANOTHER

BEST SHEEN DEVELOPMENT LTD. v. THE OFFICIAL RECEIVER AND TRUSTEE OF THE PROPERTY OF LAI THOMAS, A BANKRUPT