溢緯有限公司 v. Ms Joanna Leung 或佔用人

LDPD 669/2026

[2026] HKLdT 60

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDPD 669 OF 2026

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DECISION

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1.This case originated from an application for recovery of possession of a property situated at Flat C, 11/F, Tower 5A, Oceanaire, No 18 Po Tai Street, Sha Tin, New Territories (“the Subject Property”). The Subject Property is owned by Danson Limited (ie the Applicant), a company incorporated in Hong Kong. Following a change of directorship of the company on 31 March 2026, Danson Limited applied to the Lands Tribunal (“the Tribunal”) on 26 May 2026 to evict the occupiers of the Subject Property who include Ms Leung Ka Yan (hereinafter referred to as “the Respondent”) who is also known as Ms Joanna Leung. I delivered my judgment (“the Judgment”) orally on 29 June 2026 in favour of the Applicant.

2.Upon the hearing on 24 July 2026 of the Interlocutory Application by the Respondent dated 10 July 2026, stay of execution of the writ of possession was granted until 14 August 2026 while the Respondent was seeking legal advice.

3.And on 27 July 2026, the Respondent applied for leave to appeal against the Judgment. After the hearing on 13 August 2026, a decision (in Chinese) (“the Decision”) was handed down on 24 August 2026, refusing the application and any further stay of execution of the writ of possession.

4.A further application by the Respondent for stay of execution of the writ of possession was refused by the Tribunal on 9 September 2026.

5.Then came this third application on 23 September 2026 by the Respondent for stay of execution of the writ of possession (“the Present Application”) through her solicitors, Messrs Deannie Yew & Associates, relying particularly on the ground that proceedings have been commenced by the Respondent in the District Court on 16 September 2026, being DCCJ 4684/2026, claiming beneficial interest in the Property on the basis of common intention constructive trust.

The Respondent’s Stay Summons

6.Attached to the Summons filed by Messrs Deannie Yew & Associates was an Affirmation of the Respondent also dated 23 September 2026, the contents of which are as follows:

“3. Young Tat Chiu Thomas (楊達潮)[1] (“Deceased”) and I started courtship in 2009.

4. Deceased and I had been cohabited as husband and wife with my son from previous marriage (“My Son”) since January 2013. We were residing under the same roof in a property known as Flat C, 11^th Floor, Tower 5A, Oceanaire, 18 Po Tai Street, Sha Tin, New Territories (“Subject Property”).

5. After some period of cohabitation, Deceased liked My Son so much. They were on very good terms. The Deceased even promised that he would treat My Son as his own son. Therefore, at the request of the Deceased but not otherwise, My Son changed his name from Ng Ming Ho (吳銘浩) to Yeung Chun Shing (楊竣丞) by a Deed Poll dated 26 July 2013, bearing the same surname in Chinese character as the Deceased.

6． During our cohabitation, the Deceased treated me as his wife whereas I also treated the Deceased as my husband. Deceased, My Son, and I were residing in the Subject Property as our family house and were a core family…

7. At all material times, I treated the Subject Property as our family house. I did not and do not own any other landed property in Hong Kong. I have been residing in the Subject Property for over 13 years.

8. All along, Deceased told me and I believed him that he was the owner of the Subject Property. Before we moved in, Deceased took me to view the Subject Property which was vacant, represented to me that the tenancy of the Subject Property had just ceased, that he took back the Subject Property for self-occupation if I was fond of the environment. In the end, we decided to move in and cohabited since then. All along, Deceased represented himself to be the only true owner of the Subject Property and he did not have to and indeed had never have to pay any rent or fee for the occupation.

9. As I deposed in my previous affirmations, there was a common intention and common understanding between the Deceased and I that the Deceased would let me become the owner of the Subject Property and/or that I would be entitled to reside in the Subject Property for as long as I would give up my career and take good care of him.

10. Before cohabitation, I was working as an estate agent earning commission. I was able to earn about HK$30,000.00 per month in about 2012. I had many clients and was able to earn substantial commission monthly.

11. After cohabitation, Deceased requested me to give up my career and to look after him because he did not have good relationship with his children and he was not in good health. At that time, he told me that his wife had passed away many years ago. He even promised me that if I was willing to stay with him, cohabitate with him, accompany him to collect rent and/or to inspect many of his properties, give him advice on property renting and property investments, and look after him, he would support me for the rest of my life and My Son until he finished his tertiary education financially and he would let me own the Subject Property as a matter of compensation and/or protection to me. He said he was serious about that. He said he owned many properties or his companies owned many properties. Based on the common intention and understanding of the parties and his promises made to me, I did give up my career and cohabitate with him in the Subject Property and take good care of him. From time to time, I gave my advice to Deceased on his property renting matters and property investment.

12. I stress that I have never heard of “Danson Limited”[2] before. I had never dealt with Danson Limited. It was plainly wrong that license was given to me to stay in the Subject Property by Danson Limited with Deceased as alleged by Danson Limited.

13. In any event, it was later found after the Deceased’s death that Deceased is the sole shareholder and director of Danson Limited.

14. I gave up my career and income-earning capacity 13 years ago at the request of Deceased. I did not have any income of my own to purchase property. I did not take up other employment as the Deceased asked me not to and he said he would support me financially for the rest of my life. He told me not to worry about money and he would take good care of me and My Son financially. Deceased requested to cohabitate with me as he needed me to be with him like a family, to give him advice on property renting and property investment as I was familiar with this field, to take good care of him as he was a patient of diabetes which required controlled diets and taking medicine. Most importantly, he was fold of My Son and treated him as his own son. Otherwise, he would not ask me to convince My Son to change his name with the same surname 楊 as Deceased. But for Deceased’s request, I would not ask My Son to do so.

15. Deceased stressed that he owned numerous properties in Hong Kong and the Subject Property was just one of those properties belonged to him.

16. I was acting in person in these proceedings and had not have the benefit of legal advice.

17. …”

Stay of Execution of Writ of Possession

7.The application for stay is made under Order 45, rule 11, Rules of the High Court and inherent jurisdiction of the Court.

8.Order 45, rule 11 provides that:

“Without prejudice to Order 47, rule 1, a party against whom a judgment has been given or an order made may apply to the Court for a stay of execution of the judgment or order or other relief on the ground of matters which have occurred since the date of the judgment or order, and the Court may by order grant such relief, and on such terms, as it thinks just.”

9.The words “on the ground of matters which have occurred since the date of the judgment or order” require the applicant to invoke matters going to the validity of the judgment which, if established, might justify the court in saying that this is not a judgment which on the new material it will allow to be executed: China Citic Bank International Ltd v Durrant Simon Patrick Michael, CACV 127/2014, 21 July 2014, §29.

10.It is significant to note that “matters which have occurred since the date of the judgment or order” under Order 45, rule 11, have been interpreted as referring to “matters which went to the validity of the judgment and which, if established before the court, might justify the court in saying that this was a judgment which on the material now placed before it, it would not allow to be executed.” (Hong Kong Civil Procedure 2026, Vol 1, §§45/11/2 at p 1098; Credit Lyonnais v SK Global Hong Kong Ltd [2003] 4 HKC 104 at 115A-B, §28, per Cheung JA). In Tam Ho Man v Wong Kwok Tai, HCA 4736/1985 (unreported, dated 20 October 1986) (cited by Cheung JA in Credit Lyonnais), Hunter J observed at §3 that the examples given in the authorities are “matters which go to question the validity of that judgment as against the defendant”, which are “very far removed from matters which go to the enforcement of that judgment”. In Wong Wah On v Tsung Tsin Association [2019] HKCA 795 at §12, the Court of Appeal held that “It was only available when a defendant sought to recall or prevent execution on account of ‘some matter occurring after the judgment amounting to a discharge and which could not have been and cannot be taken advantage of otherwise’”.

11.Bearing the above principles governing the exercise of the court’s jurisdiction in mind, I proceed to consider the Respondent’s Stay Summons.

Reliability of the Respondent’s Statements

12.In the Respondent’s Affirmation dated 23 September 2026, the Respondent stated at §9: “there was a common intention and common understanding between the Deceased and I that the Deceased would let me become the owner of the Subject Property and/or that I would be entitled to reside in the Subject Property for as long as I would give up my career and take good care of him.” She continued at §11: “and he would let me own the Subject Property as a matter of compensation and/or protection to me.”

13.Unfortunately, in the Respondent’s Notice of Opposition dated 3 June 2026 and during the hearing on 29 June 2026, the Respondent did not mention anything like the above.

14.In her Notice of Opposition, the Respondent only stated:「上述地址是業主楊達潮在25-01-2013 準許我以業主身份入住，並承認我是楊生的伴侶。在此期間我完全由楊生贍養，包括兒子的供書教學。」

15.And during the hearing on 29 June 2026, the Respondent stated at 10:33: 「…… 入住嘅時候，係准許我以業主嘅身分喺屋苑嘅申請嗰個智能咭嗰張 form 嗰到，有佢嘅親筆簽名，因為我同佢係同居伴侶關係 …… 因為佢就喺第一日俾我喺嗰到住 …… 我喺哩個單位住左13年」At 10:34, she continued: 「…… 佢當初係口頭承諾係俾我長期居住嘅，因為我係佢伴侶」Further at 10:37, she stated:「…… 根據法律呢，佢對我哩種承諾係不可撤銷，…… 係因為佢之前對我嘅承諾，係附帶產權不容反悔嘅承諾許可 …… 因為佢當初許可我即住喺到，並且口頭上係同我講，我係可以長期居住喺呢度，咁佢呢種承諾，係附帶產權不容反悔嘅許可 ……」 That is, the Respondent had been repeating that the Deceased had just promised her that she could reside at the Subject Property for a long term rather than the Deceased promising her to be the ultimate owner of the Subject Property.

16.I had dealt with「附帶產權不容反悔」as proprietary estoppel as stated in the Decision, though proprietary estoppel may not be applicable in the present situation because the Deceased was not the legal owner of the Subject Property and so could not confer a proprietary interest of the Subject Property on the Respondent. In any event, the constituent elements of proprietary estoppel overlap with those of promissory estoppel which appears to be more likely in the present case.

17.Similarly, in the Respondent’s application dated 10 July 2026 for stay of execution of the writ of possession, the Respondent only stated「本人和 死者楊達潮在2013年居住在上述單位 …… 死者承諾我這間屋是我一直居住的，而佢也用行動履行他的承諾……」. And even during the hearing on 24 July 2026, the Respondent’s only stated her position at 9:34 as 「…… 涉及13年同居受養人嘅權益 …… 同時我喺法援個申請嗰到呢，涉案物業嘅居住權係我嘅一個其中一個標的物」. That is, the Respondent was repeating just her right「在此期間」to reside at the Subject Property rather than the Deceased promising her to be the ultimate owner of the Subject Property.

18.Now in the Present Application, the Respondent, through her newly appointed solicitors, has amended her claim as stated in §9 of her Affirmation that “there was a common intention and common understanding between the Deceased and I that the Deceased would let me become the owner of the Subject Property and/or that I would be entitled to reside in the Subject Property for as long as I would give up my career and take good care of him.”

19.Here, the Respondent alleges that she relied heavily on what had been said by the Deceased. There is then clear authority from the Court of Final Appeal that in a claim against the estate of a deceased who cannot give evidence, the court shall always approach such claims with some suspicion, especially in the case of an alleged gift, where the only or principal witness in support of the claim is the claimant: Yung Shu Wu v Vivienne Sung Wu (2011) 14 HKCFAR 39, at §73.

20.Similarly as Walton J observed in In re Gonin, deceased. [1979] 1 Ch. 16 at p 32:

“Now it is common sense that all claims against the estate of a deceased person which had not been put forward whilst they were still living fall to be scrutinised with considerable care, for the obvious reason that the other party to the agreement is in the nature of things unable to give his or her version of events.”

21.In a similar vein, in Ko Nga Chun v Companhia De Desenvol Vimento Wui San Limitada & Anor, HCA 277/2012 (unreported, dated 24 May 2018) [2018] HKCFI 1134, DHCJ To refused to admit the hearsay statement of a deceased witness, and said at §20:

“…… It is important that the evidence of such a crucial witness should be tested by cross-examination … Without such cross-examination, the defendants are severely prejudiced ...”

22.Although this case did not lay down any principle that whenever the opponent is deprived of the opportunity to cross-examine the statement maker, such a statement should not be admitted or be given no weight. But this case reminds me that the potential prejudice which could be brought by the lack of opportunity to cross-examine the witness concerned.

23.In such regard, what Coleman J (as he then was) said in Yu Man Fung Alice v Chiau Sing Chi Stephen, HCA 1584/2012 (unreported, 23 December 2020) [2020] HKCFI 2923) is particularly relevant:

“53. […] evidence based on recollection of what was said in an undocumented conversation which occurred so long ago is inherently problematic. It is, however, perhaps only in the last decade or so that courts have consistently properly recognised the fallibility and potential unreliability of human memory.

54. In Gestmin SGPA SA v Credit Suisse (UK) Ltd [2013] EWHC 3560 (Comm) at §§16-20, Leggatt J made certain observations on the point, to which he also returned in the Blue v Ashley case. Those observations have commended themselves to a number of other judges, including judges in Hong Kong: see, for example, Sarah Sally Chan-Kent v Chim Sau Ching [2019] HKCFI 3066 at §45.

55. In the Blue v Ashley case at §68, Leggatt J also referred to a paper published by two academic psychologists, Howe and Knott ‘The fallibility of memory in judicial processes: Lessons from the past and their modern consequences’ (2015) Memory, 23, 633 at 651-3. He also footnoted, but did not make any extensive reference to, the book by the psychologist Schacter ‘How the Mind Forgets and Remembers: The Seven Sins of Memory’ (2001).

56. The various judicial and academic observations would bear repetition at some length, but I shall attempt to restate them in more compressed form:

(1) While everyone knows that memory is fallible, we are often unaware of the full extent to which our own and other people’s memories are unreliable.

(2) Common and related errors include supposing that (a) the stronger or more vivid a recollection, the more likely it is to be accurate, and (b) the more confident a person is of their recollection, the more likely it is to be accurate.

(3) But memory is not a mental record fixed at the time of the experience, then fading gradually over time. So it is a misconception that memory operates like a camera or video device making a fixed and chronological record of an experience.

(4) Rather, memories are fluid and malleable, being constantly rewritten whenever they are retrieved.

(5) What gets encoded into memory in the first place is determined by what a person attends to, what they have already stored in memory, and their expectations, needs and emotional state.

(6) This information is subsequently integrated or consolidated with other information already stored in a person’s long-term, autobiographical memory.

(7) What is subsequently retrieved from that memory is determined by the same multitude of factors, and additionally by what drives the recollection of the event.

(8) What is retold about an experience depends on the person to whom one is talking, and what the purpose is of remembering that particular event.

(9) What gets remembered is reconstructed from the remnants of what was originally stored, taking account of whatever has already been forgotten or any interference from any new experiences across the interval between storing and retrieving a particular experience or event.

(10) So the content of memory for experiences involves active manipulation, integration with pre-existing information, and reconstruction of that information.

(11) Memory is particularly vulnerable to interference and alteration when a person is presented with new information or suggestions about an event in circumstances where his or her memory of it is already weak due to the passage of time.

(12) Therefore, and in addition, the process of civil litigation itself subjects the memories of witnesses to powerful biases.

(13) First, such witnesses often have a stake in a particular version of events. This is obvious where the witness is a party or has some type of loyalty to a party to the proceedings.

(14) Secondly, other subtler influences come into play, perhaps from the process of preparing a witness statement and coming to court to give evidence for one side in the dispute. The natural desire to assist, or not prejudice, the party calling the witness, and the desire to give a good impression in a public forum, can be significant (even if unconscious) motivating forces.

(15) Considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. A witness is asked to make a statement, often (as in this case) when a long time has already elapsed since the relevant events. The statement is usually drafted for a witness by a lawyer who is inevitably conscious of the significance for the issues of the case of what the witness does or does not say.

(16) The witness statement is made after the witness’s memory has been ‘refreshed’ by reading documents. Yet those documents themselves often include statements of case and other argumentative material, as well as documents not previously seen by the witness, or documents which came into existence after the events which the witness is being asked to recall.

(17) The witness statement may go through several iterations before it is finalised.

(18) Months or even years later, the witness will be asked to re-read his or her statement and review documents again before giving evidence in court.

(19) The effect of the process is to establish in the mind of the witness the matters recorded in his or her own statement and other written material, whether they be in fact true or false, and to cause the witness’s memory of events to be based increasingly on this material and later interpretations of it, rather than on the original experience of the events.

(20) There is also a powerful tendency for people to remember past events concerning themselves in a self-enhancing light.

(21) It is also not uncommon for witnesses to deceive themselves in what are essentially honest but nonetheless false recollections.

57. These matters do not mean that human memory is simply unreliable. Often, memory is reliable. However, it is also fallible, and so when assessing reliability, it is important to have in mind what causes that fallibility.

58. Therefore, in a case such as the present case, it seems to me that a sensible approach may be to limit (or at least be cautious about) the reliance placed on the witnesses’ individual recollections of what was said in conversations, and to give more weight and make factual findings on inferences drawn from any documentary evidence as well as known or probable facts, in particular objective facts.

59. Documents which are likely to be helpful are those contemporaneous documents which may describe not only what was going on, but also the motivation and state of mind of those concerned. Documents passing between the parties themselves can be important, but in some cases ‘internal’ documentation may also greatly assist.

60. In most cases, the credit of a witness on matters not germane to the litigation is unlikely to be helpful, and the demeanour of witnesses is not a reliable pointer to honesty or accuracy. Witness evidence, written and oral, is obviously not without purpose; but, its principal uses are to allow scrutiny of any documentary record and to evaluate the witness’s motivations, personality and working practices.

61. Evaluation of a witness’s evidence may, depending on the particular circumstances, also include having regard to factors such as: evasive and argumentative answers, tangential speeches avoiding the question, blaming legal advisers for pleadings, disclosure and evidence shortcomings, self-contradiction, internal inconsistency, shifting case, new evidence, and selective disclosure: see Painter v Hutchison [2007] EWHC 758 (Ch) at §3. There may be other factors in any particular case, but this list gives important and helpful guidance. As will be seen, some of them are rather pertinent to this case.

62. An examination of the consistency of conduct and documents and motives will, therefore, likely be helpful. As long as it is recognised that there is also a risk of potential (perhaps unconscious) bias in the identification of them, it is the inherent probabilities and likelihoods which will be of greater assistance in deciding what, on the balance of probabilities, actually happened.” (underline added)

24.In a more similar vein, in Watson v Foxman & others (1995) 49 NSWLR 315 at 319, McLelland CJ in Eq said:

“Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions of self‑interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.”

Although his Honour was addressing evidence of the content of conversations, his observations seem to me to be of general application.

25.At this juncture as well, the Respondent’s failure to do anything regarding a transfer of the Subject Property or any share of interest in the Applicant during the 13 years of cohabitation raises suspicion.

Common Intention Constructive Trust

26.Before me in the hearing on 29 September 2026, Ms Yanky S Y Lam, counsel for the Respondent, submitted that the Respondent has relied on common intention constructive trust in her claim against the Subject Property.

27.A constructive trust arises in connection with the legal title to property wherever one party, in reliance upon his common intention held with another party, has so conducted himself to his detriment or significantly altered his position that it would be inequitable to allow that other party to deny him of a beneficial interest in the property acquired: Mo Ying v Brillex Development Ltd [2015] 2 HKLRD 985; Primecredit Ltd v Yeung Chun Pang Barry [2017] 4 HKLRD 327.

28.In Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1, Miss Luo and Mr Hui had been a cohabiting couple for some four years since 1996 (together with Miss Luo’s daughter from her former marriage, Mon Din, for some of that time). In September 1997, they moved into a flat in Tsim Sha Tsui which was purchased by Mr Hui in Miss Luo’s name. In February 1999, Mr Hui proposed marriage to Miss Luo, which she accepted, and they then moved into another property in Sai Kung (“the Sai Kung property”) which was owned by Glory Rise Limited (“Glory Rise”), a company in which Mr Hui was the majority shareholder. Miss Luo spent some $70,000.00 on decorating the master bedroom and in buying furnishings for the Sai Kung property. She also arranged for her furniture in the Tsim  Sha Tsui flat to be moved there.

29.In June 1999, it was established that Mr Hui expressly promised Miss Luo a 35% beneficial interest in the Sai Kung property as a form of financial security in anticipation of their marriage. Mr Hui then immediately transferred 35% of the share in Glory Rise into Miss Luo’s name.

30.Meanwhile, Mr Hui was in a tight cash position and Miss Luo lent him $1 million in June 1999. She also paid the mortgage instalment for August 1999. By mid-April 2000, however, Mr Hui was able to repay with interest the $1 million he had borrowed from Miss Luo as well as the mortgage. Unfortunately, while it was intended that the marriage would take place in October of that year, Mr Hui fell ill on 31 August 2000 and died on 1 September 2000.

31.Ribeiro PJ, on behalf of the Court of Final Appeal, remarked on the applicability of the common intention constructive trust as follows:

“34. Prior to the deceased deciding that the Property should serve as their family home, it had clearly been beneficially owned as a marketable investment by Glory Rise[3]. The company borrowed money from its shareholders and from a bank to purchase the Property and executed a mortgage on it by way of security. Glory Rise’s interest in the Property is said to have been transformed into the interest of a trustee solely on the basis of a constructive trust resting on the couple’s common intention. There is certainly no reason – and none is alleged – to lift the corporate veil or for treating Glory Rise as anything other than a legal person distinct from its shareholders. The basic proposition that a shareholder has no legal or equitable interest in the company’s property (as opposed to a right to share in the profits of its business and to a distribution of any surplus on liquidation) therefore applies.

…

38. Where a constructive trust is alleged to arise on the basis of the parties’ common intention, it is the intention commonly held by the property owner and the claimant regarding their shared beneficial interests in the property that matters. The trust is constituted by the claimant’s detrimental reliance on their common intention and the unconscionability of the property owner departing therefrom.

39. It follows that Glory Rise’s ownership of the Property is crucial. The fact that A and B might form a common intention that they should have shared beneficial interests in C’s property cannot in principle be sufficient to impose a constructive trust on C to hold C’s property on trust for A and B. C is not party to and does not unconscionably depart from any common intention, so there is nothing to constitute C a trustee for A and B. If B does not make good his promise, he might attract personal liability to A, but it does not mean that an equitable interest in C’s property is created in favour of A.

…

41. The “intention” referred to must be the common intention of Miss Luo and the deceased on the evidence canvassed. But the existence of that common intention cannot transform Glory Rise into a constructive trustee and does not result in Miss Luo acquiring any proprietary interest in the Property. Moreover, Miss Luo did not know at any stage before the deceased’s death that the Property was held by a company so that there could not, on the evidence, ever have been the posited common intention that Glory Rise should hold the Property as trustee.

…

43. ... The Judge’s findings as to common intention relate only to beneficial interests in the Property and also to the shareholders’ loans to Glory Rise. There was never any discussion of anyone acquiring an interest in the deceased’s 6,500 shares. On the contrary, the Judge found (as the evidence clearly warranted) that the deceased’s intention was that “they were to hold shares in the Company in the proportion of 35% and 65%”, although she found that this was a “legal nicety” which the deceased had not communicated to Miss Luo. The deceased plainly meant to keep the 6,500 shares and to remain the majority shareholder. If the deceased had come under some equitable obligation preventing him from dealing with his own shares in a manner inconsistent with that obligation, this might take effect as a personal equity – as discussed below in relation to promissory estoppel – but that could not have resulted in the creation of any beneficial interest in favour of Miss Luo in the Property.” (underline added)

32.In my opinion, the same principle should apply to the present case. There has been no evidence before me as to how the promises by the Deceased had been communicated to the Applicant, and had come to be adopted or assumed by the Applicant, to become an assumption shared between the Applicant on the one part, and the Respondent on the other part. As the Respondent admitted in her Affirmation dated 23 September 2026 at §12, “I have never heard of “Danson Limited” before.”

33.In Luo Xing Juan, Ribeiro PJ discussed the relationship existing between Mr Hui and Miss Luo at §58 of the judgment as follows:

“The deceased and Miss Luo were living together in the Property as man and wife, treating Mon Din as their daughter, and intending to get married in October 2000. In June 1999, at the time his promise was made, the deceased was the controlling shareholder of Glory Rise (having 80% of its shares) and had the power to cause Glory Rise to exercise its rights over the Property in a manner adverse to the interests of Miss Luo. If, for instance, they had decided to separate, he would have had the power to cause Glory Rise to evict her from the premises. He could also have caused the company to dispose of the Property without any of the proceeds going to Miss Luo. That is plainly a sufficient relationship for the purposes of promissory estoppel…”

34.However, the meaning of the promise conveyed by the promisor’s words or conduct must be clear and unequivocal. In Luo Xing Juan, Mr Hui should have made it clear that he was promising not to enforce the relevant rights or powers. Ribeiro PJ found as follows:

“64. … The substance of the promise, expressed in terms which take into account the legal forms employed, was that the deceased would, as controlling shareholder of Glory Rise, secure for Miss Luo a 35% interest in the value of the Property if and when the same should be realised by the company and that, unless and until the Property was disposed of and her 35% entitlement duly provided for, Miss Luo would have the security of being allowed to occupy it as her home without interference by the company. Put negatively, the deceased was promising to forgo exercising his legal powers (as controlling shareholder of Glory Rise) to cause the Property to be disposed of without Miss Luo receiving a 35% share of the proceeds or to cause her to be evicted pending disposal.

65. … In the present case, the deceased’s assurance was explicit and was plainly intended by him to be relied on. It naturally gave rise to Miss Luo’s expectations of a 35% beneficial interest in the Property and security in its occupation pending any disposal. And, as noted above, the Judge found that in reliance upon the deceased’s promise, Miss Luo continued to reside with him de facto as man and wife, forwent the pursuit of employment opportunities of her own and paid the $40,000 mortgage instalment for August 1999. These are significant acts and omissions of detrimental reliance. In my view, the combined expectation and reliance factors in the present case plainly make it inequitable or unconscionable for the estate now to act inconsistently with the deceased’s promise. Accordingly, all the elements of promissory estoppel are established and a personal equity is raised in favour of Miss Luo. It becomes necessary to consider what relief should be granted to give effect to that equity.” (underline added)

35.In the present case, the Deceased’s promise was not so clear and unequivocal. This is particularly the case when the Respondent’s new Affirmation of 23 September 2026 is taken into account. The Respondent now alleges that the Deceased had indeed made the promises (“the Promises”) that he would let the Respondent become the owner of the Subject Property and/or that Respondent would be entitled to reside in the Subject Property for as long as the Respondent would give up her career and take good care of the Deceased[4].

36.In my opinion, the Promises that the Deceased would let the Respondent become the owner of the Subject Property and/or that Respondent would be entitled to reside in the Subject Property for as long as the Respondent would give up her career and take good care of the Deceased were also vague and uncertain. Did the Deceased intend to transfer his interest in the Applicant to the Respondent? Did the Deceased intend to arrange for the sale of the Subject Property to the Respondent? Or did the Deceased, as the director of the Applicant, simply want to grant a licence to the Respondent to reside in the Subject Property for as long as the Respondent would give up her career and take good care of the Deceased? It would appear that these alternatives, if true, were decided entirely at the Deceased’s sole discretion. This uncertainty rendered it unlikely that the Deceased before his death, or the Applicant would have intended the Promises, or the Common Assumption based on them, to be legally binding, or to constitute any legal obligation assumed by the Applicant which is enforceable at law.

37.In the context of certainty in terms, Ribeiro PJ explained in Unruh v Seeberger [2007] 2 HKLRD 414, (2007) 10 HKCFAR 31 that the clarity required will seldom fall below what is unequivocal for the relevant purpose. In Tung Woon Hing Candice v Cathay Pacific Airways, HCLA 18/2019 (unreported, 29 March 2022) [2022] HKCFI 826, the Court explained that the common assumption alleged must be unambiguous, and that the evidence “must point to only one conclusion that there must be a common assumption as alleged”.

38.In any event, as admitted by the Respondent in her Affirmation dated 23 September 2026 at §12, the Deceased did not bother to disclose to her that the Subject Property was not owned by him personally but by the Applicant. It was probable that he might have fulfilled his Promises by any of the alternatives but as I mentioned at §9 of the Decision, 「楊先生生前也沒有把涉案處所的業權或擁有涉案處所的申請人公司股權轉讓給她。」

39.In Spencer Bower: Reliance-Based Estoppel (5^th edition, 2017), the learned editors, having referred to the necessary ingredient of the assumption of responsibility for an estoppel by convention, continued at para 8.25:

“For this reason a party who fails to establish the necessary intention to contract to found a claim in contract … is unlikely to be able to make good that defect by claiming an estoppel based on the convention as to the existence of such a contract, as the want of contractual intention imports also a want of the actual or apparent intention to assume responsibility to the other party that would be necessary to found an estoppel.” (underline added)

40.As the judgment in Blue v Ashley [2017] EWHC 1928 demonstrates and explains, the intention to create a legally binding contract, and certainty and completeness of the terms agreed, are both essential requirements of a contract. The intention must be to create legal rights and obligations, from which legal consequences may flow, and it is not sufficient for the parties to have intended to create and accept moral obligations only. Vagueness and uncertainty in what was expressed may show that the terms expressed were not in fact intended to be legally binding at all. The court cannot enforce or uphold a contract if it is legally or practically impossible to give any sensible content to the agreement (Scammell v Dicker [2005] EWHC Civ 405, para 30).

41.It is also important to note that even though in Luo Xing Juan, all the elements of promissory estoppel were established and a personal equity was raised in favour of Miss Luo, Glory Rise was ordered to be would up. Miss Luo was entitled, on disposal of the Sai Kung property, to receive a sum equivalent to 35% of the net proceeds of sale (that is, the proceeds after deduction of the reasonable expenses of the sale) out of the sums to be distributed by the Liquidator to the estate both as a creditor and a contributory of the company in liquidation. Notwithstanding the above, Miss Luo was ordered to give up possession of the Sai Kung property upon receiving from the Liquidator reasonable notice (of not less than one month) in writing to do so.

42.Soon after Luo Xing Juan, there was another case, Hong Kong Hua Qiao Co Ltd v Cham Ka Tai, HCA 2619/2005 (unreported, dated 30 July 2013) where a Mr Lee and his mistress, Madam Cham, had cohabited as husband and wife at a property owned and controlled by Mr Lee who died in an accident. Although Madam Cham gave evidence that since she and Mr Lee started cohabiting, Mr Lee had made a promise to her from time to time that “she could live at the property for the rest of her life and that she need not worry that she had nowhere to live or that her living was not protected”. The Court of First Instance decided that the promise was equivocal. That was not a promise to make an absolute gift of a property to a person, but at best, a promise of a life interest.

43.Once again, in the present case, 「楊先生生前也沒有把涉案處所的業權或擁有涉案處所的申請人公司股權轉讓給她。」

44.In light of the above, my conclusion is that any assurance or undertaking given by the Deceased that he would provide for or take care of the Respondent in terms of her livelihood and accommodation was NOT intended to create legal relations, or any rights or obligations which could be enforced in a court of law.

45.I appreciate that the Respondent had total trust in the Deceased, and had relied completely on him for taking care of and looking after her during their co-habitation. However, I consider that precisely because of their close and trusted relationship, there was no understanding between the Deceased and the Respondent, at the time the former gave the assurances, that there should be any legal results flowing from the Deceased’s Promises. Nor do I consider that the Respondent had expected anything from the Deceased other than his moral duty to abide by his Promises, to take care of her. No reasonable observer would have considered in the context that it would have been open to the Respondent to take legal action against the Deceased (moral judgment aside), for damages or for declaratory relief, if he should renege from his Promises.

46.Again in Luo Xing Juan, it was found that in reliance upon Mr Hui’s promise, Miss Luo continued to reside with him de facto as man and wife, forwent the pursuit of employment opportunities of her own and paid the $40,000 mortgage instalment for August 1999.

47.In the present case, the Respondent suggested that she had given up her career as an estate agent as well in reliance on the Promises.

48.Detrimental reliance is an element common to both proprietary estoppel and common intention constructive trust. The party asserting a claim to a beneficial interest must show that he or she has acted to his or her detriment or significantly altered his or her position in reliance on the agreement, arrangement or understanding in order to give rise to a constructive trust. There must be some connection between the Respondent’s conduct and her belief that she has an interest in the property. To constitute conduct amounting to an acting upon the common intention, it must be conduct on which the Respondent could not reasonably have been expected to embark unless she was to have an interest in the property. Unfortunately, the Respondent had remained reticent even when the Deceased took no action to transfer any beneficial interest in the Subject Property to her. Detriment arising from reliance that could not reasonably be expected is to be disregarded. See: The Law of Proprietary Estoppel, McFarlane, para 4.69.

49.In James v Thomas [2007] 3 FCR 696 the parties formed a relationship and the claimant moved into a property owned by the defendant to live with the defendant as man and wife. The property was solely owned by the defendant from where he carried on business as an agricultural building and drainage contractor. The claimant assisted in the business and engaged in heavy work. She asserted an interest in the property by way of constructive trust. She pleaded that:

“33. … whenever the parties discussed carrying out improvements to the property and matters relating to the business, the defendant would say to the claimant ‘this will benefit us both’.”

50.Her claim for an interest in the property was rejected. The English Court of Appeal, per Sir John Chadwick at 705, held that:

“24. … More pertinently, if the circumstances so demand, a constructive trust can arise some years after the property has been acquired by, and registered in the sole name of, one party who (at the time of the acquisition) was, beyond dispute, the sole beneficial owner: Gissing v Gissing [1970] 2 All ER 780 at 786, [1971] AC 886 at 901, Bernard v Josephs [1982] 3 All ER 162 at 170, [1982] Ch 391 at 404. But, as those cases show, in the absence of an express post-acquisition agreement, a court will be slow to infer from conduct alone that parties intended to vary existing beneficial interests established at the time of acquisition.”

51.Sir John Chadwick further added that:

“36. The judge did not find it necessary to address the question whether Miss James acted upon the assurances to her detriment. That is understandable, given that he held that the assurances were not sufficiently specific to found proprietary estoppel or constructive trust. In the circumstances that I share that view, I, too, find it unnecessary to address the question of reliance. But, for completeness, I should add that the factors which lead to the conclusion that the assurances were not intended or understood as a promise of some property interest lead, also, to the conclusion that it would be unreal to think that Miss James did what she did in reliance on such a promise. The true position, as it seems to me, is that she worked in the business, and contributed her labour to the improvements to the property, because she and Mr Thomas were making their life together as man and wife. The Cottage was their home: the business was their livelihood. It is a mistake to think that the motives which lead parties in such a relationship to act as they do are necessarily attributable to pecuniary self-interest.

…

38.  … Her interest in the property (if any) must be determined by applying principles of law and equity which (however inadequate to meet the circumstances in which parties live together in the twenty-first century) must now be taken as well-established. Unless she can bring herself within those principles, her claim in the present case must fail. As Baroness Hale of Richmond observed in Stack v Dowden [2007] UKHL 17 at [61], [2007] 2 FCR 280 at [61] it is not for the court to abandon the search for the result which reflects what the parties must, in the light of their conduct, be taken to have intended in favour of the result which the court itself considers fair.”

52.Similarly in Morris v Morris [2008] EWCA Civ 257 the claimant is the wife of the 1^st defendant. The 1^st defendant and his mother entered into a farming partnership. One of the assets of this partnership is a farm property solely owned by the mother. The wife assisted in the farming business and carried out improvements on the farm. She asserted that she had a beneficial interest in the farm by reason of constructive trust, alternatively proprietary estoppel. Her claim was rejected on appeal.

53.The English Court of Appeal, per Sir Peter Gibson, repeated what was said in Morris v Morris:

“23. … the first question being whether an agreement arrangement or understanding that the claimant was to acquire a beneficial interest in the land has been shown. The authorities make clear that a common intention constructive trust based only on conduct will only be found in exceptional circumstances.

…

25.  Nor do I see that the conduct that is relied on by the claimant must lead to the conclusion that she was acquiring an interest in land. It has been said in a number of cases that the court should be cautious before finding that the activities of a wife or a cohabitant can only be explained on the footing that she believes that she was acquiring an interest in land.”

54.As regards the Respondent’s claim that she had paid for gas charges and other outgoings, if any, in respect of the Subject Property, this cannot amount to any detriment suffered, as the expenditure would have been made by her in any event as part of her own household and regular expenses (see Yuen Kam Lok Eddy v Yuen Lai Fun Cindy & Another, DCCJ 3972/2020 (unreported, dated 31 December 2021) [2021] HKDC 1632, at §§28-31).

55.There was no detrimental reliance on the common assumption, even if this could be established.

Interim Rent

56.Order 29, rule 18, Rules of the High Court provides that a defendant who counterclaims against a plaintiff can also seek an order for interim payment.

57.Order 29, rule 12(b), Rules of the High Court also provides that:

“If, on the hearing of an application under rule 10, the Court is satisfied –

…

(b) that the plaintiff’s action includes a claim for possession of land and, if the action proceeded to trial, the defendant would be held liable to pay to the plaintiff a sum of money in respect of the defendant’s use and occupation of the land during the pendency of the action, even if a final judgment or order were given or made in favour of the defendant;…

the Court may, if it thinks fit, and without prejudice to any contentions of the parties as to the nature or character of the sum to be paid by the defendant, order the defendant to make an interim payment of such amount as it thinks just, after taking into account any set-off, cross-claim or counterclaim on which the defendant may be entitled to rely (underline added).”

58.This is the third time that the Respondent applied for a stay of execution of the writ of possession since the Judgment was delivered on 29 June 2026. Ms Young Hsiao Ling Shirley, the present director of the Applicant, was concerned about the interim loss of rental pending the delivery of the captioned decision. I ordered an interim payment of $55,000 by the Respondent into the Tribunal: see Car Po Ltd v Chan Pik Kuen, HCA 13517/1998 (unreported, dated 26 March 1999), at §7 per Keith J. This $55,000 was equivalent to approximately two months’ rental of the Subject Property, being assessed on the basis of a recent letting of Flat C, 10/F, Tower 5A, Oceanaire, ie one floor below the Subject Property for a term of 2 years from 24 July 2026 to 23 July 2028 at $27,000 per month inclusive of rates, Government rent and management fee.

Conclusion

59.In view of the above, the Respondent’s Stay Summons dated 23 September 2026 be dismissed.

60.As a result of this decision, I order the interim rent in the sum of $55,000 having been paid by the Respondent into the Tribunal be released to the Applicant.

Costs

61.As I stated in the hearing on 29 September 2026, I make no order as to costs.

The Applicant, represented by Ms Young Hsiao Ling Shirley, acting in person

Ms Yanky S Y Lam, instructed by Messrs Deannie Yew & Associates, for the Respondent