Chin Lan Hong and Others v. Cheung Poh Choo and Others

HCA001208/2000

HCA 1208/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 1208 OF 2000

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Coram: Deputy High Court Judge To in Court

Dates of Hearing: 1-5 and 8-9 September 2003

Date of Judgment: 15 January 2004

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J U D G M E N T

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Introduction

1.This is an action for recovery of possession of a property known as No. 4A South Bay Road (the "Property") against the 1st Defendant, damages for trespass against all the Defendants and an order for sale of the Property under the Partition Ordinance (Cap. 352) against the 2nd and 3rd Defendants.

2.The Plaintiffs are four of the five tenants in common in equal shares of the Property. The remaining one-fifth share was held by Cheung Chin Chye ("CCC") who died intestate in Singapore on 8 August 1995. Letters of administration of the estate of CCC were granted to the 2nd and 3rd Defendants by the High Court of the Republic of Singapore on 27 December 1996 and the said grant of letters of administration was resealed in Hong Kong by the Court of First Instance on 11 October 2000.

3.The 1st Defendant's defences are that she is occupying the Property (1) pursuant to a family arrangement and family understanding; (2) as a contractual licensee; (3) as a representative or agent of the 2nd and 3rd Defendants and (4) that the Plaintiffs are estopped from seeking possession of the Property.

4.The 2nd and 3rd Defendants, as administrators of the estate of CCC, consent to the order for sale of the Property. They would continue to authorise the 1st Defendant to occupy and use the Property as their agent until vacant possession of the Property shall be delivered to the buyer. Their defences against the action for trespass are (1) that the estate of CCC, as joint tenant in common of the Property, has the same right to possession, occupation and use of the Property on a non-exclusive basis as have the Plaintiffs and has authority to grant a licence to the 1st Defendant to reside in the Property on that basis as its agent, (2) that the 1st Defendant's occupation of the Property has not been to the exclusion of the Plaintiffs and (3) that the Plaintiffs had no authority to terminate the licence given by them to the 1st Defendant without their consent.

Background

5.This action is one of a series of litigation between the 1st Defendant and her half-siblings. Their father (the "Father"), Cheung Kung Hai, was a wealthy businessman from Singapore. The Father had a wife, Lim Bee and a concubine, Chin Lan Hong who is the 1st Plaintiff. Lim Bee had one son, CCC and seven daughters, including the 1st Defendant. The 1st Plaintiff has three sons, Cheung Kee Wee ("CKW"), Cheung Lin Wee ("CLW") and Cheung Ying Wee ("CYW") and three daughters. In addition, the Father had two adopted sons, Cheung Theam Siew ("CTS") and Cheung Kwong Wai (deceased). Thus, the Father had altogether four sons, ten daughters and two adopted sons. Three of the daughters, including the 1st Defendant, are unmarried. The relationship between Lim Bee's line of children and the 1st Plaintiff's had not been harmonious and they live under separate households in Singapore and Hong Kong.

6.In 1961, the Father and his family came to Hong Kong and started his business here. He acquired and built on the Property a house with eight bedrooms as a home for Lim Bee and her children in 1967. The 1st Plaintiff and her children were accommodated in a flat in an apartment block nearby at No.4 South Bay Road. At a later stage, the Father moved the 1st Plaintiff and her children to a house in Black's Link in the Peak.

7.At the time, i.e. in 1967, the 1st Defendant had the highest level of education among the siblings and half-siblings, having graduated from the university with a degree in economics. She and CTS assisted the Father in the family business but not any of her half-siblings as they were still studying.

8.In 1975, the Father sent the 1st Defendant to take charge of the family business in Singapore. The 1st Defendant maintained a room in the Property and used it whenever she returned to Hong Kong for holidays. In the following year, CKW graduated from university in America and joined the family business working in Hong Kong.

9.In 1977, Lim Bee died. The 1st Defendant returned to work in the family business in Hong Kong.

10.In the early 1980s, the family business experienced financial difficulties. It was around that time, on 30 October 1982, the Father assigned his interest in the Property to the 1st Plaintiff, CCC, CKW, CLW and CTS in equal shares in order to protect the Property from enforcement action by creditors of the family business as the Father was the guarantor for some of the debts (see paragraphs 25 -26).

11.In 1984, the 1st Defendant was again sent to work in Singapore. The Father and the 1st Plaintiff relocated themselves to Taiwan. The day to day management of the Hong Kong business was in the hands of CTS and CKW, though the Father maintained control from Taiwan. In the same year, CLW also graduated from university and joined the family business in Hong Kong. It was not clear where CCC was at the time. He was probably in Singapore where he died eleven years later. Thus the participation in the family business in Hong Kong was being gradually shifted from the Lim Bee's line of children to the 1st Plaintiff's line.

12.A year later, in 1985, the adopted son, CTS, also left the family business to migrate to Canada. As part of the family arrangement, he re-assigned his one-fifth share in the Property to the 4th Plaintiff, a company owned and controlled by CKW, CLW and CYW in exchange for some assets from the Father. It would be convenient to mention here that in due course, in mid 1998, CLW and CKW assigned their interest in the Property to the 2nd and 3rd Plaintiffs which are companies under their respective control. Thus the overall picture that emerged as at 1985 was that (1) the Lim Bee's line of children were ousted from the family business in Hong Kong and replaced by the 1st Plaintiff's sons and (2) the 1st Plaintiff's sons together with the 1st Plaintiff became the legal owners of what used to be the family home for the Lim Bee's line of children, though there was no change in de facto possession.

13.In late 1987, the Father and the 1st Plaintiff returned to Hong Kong from Taiwan. They resided in a house in Shatin. The Property remained as a home exclusively for the children of Lim Bee. The 1st Defendant maintained a room which she used whenever she returned to Hong Kong on holidays.

14.It appeared that by 1989, Lim Bee had two unmarried daughters, namely, the 1st Defendant and her sister Cheung Po Kam ("CPK") and that CPK was the only person living in the Property as CCC and the 1st Defendant were working in Singapore and the other daughters had married and moved out. In late 1989, the Father offered to buy CPK a flat in Repulse Bay. CPK accepted the offer and moved out of the Property in 1990. The Father made a similar offer to the 1st Defendant but she declined. The Father and the 1st Plaintiff then moved into the Property in 1990. The 1st Defendant maintained her room in the Property and used it whenever she returned to Hong Kong. In 1995, the Father renewed his offer to buy the 1st Defendant a property if she would move out of the Property. The 1st Defendant refused because she liked living in the Property. At the time, she was still working in Singapore and her presence in Hong Kong was only occasional.

15.A series of events occurred in 1996. The family business in Singapore declined. The 1st Defendant returned to Hong Kong and resided in the Property where the Father and the 1st Plaintiff were living. On the other hand, the Father's health deteriorated. He had a black out in May 1996 and suffered a fall. He was diagnosed as suffering from a brain tumour which severely affected his walking ability. He had to use a wheelchair when he went out. Shortly after his fall, on 26 July 1996, the Father made a will appointing the 1st Plaintiff, CKW and CLW as joint executors of his will. He had three operations in January 1997, August 1998 and September 2000. He died a month later on 2 October 2000.

16.Towards the end of 1996, the Father and the 1st Plaintiff moved out of the Property and resided in a flat in Grenville House which the Father bought in 1993. There is some dispute as to the cause and the time of the Father's move to Grenville House. The 1st Defendant said the Father moved out of the Property in 1996 because of his health condition and because the 1st Plaintiff did not want to live in the Property which she regarded as Lim Bee's family home. According to CKW, the Father moved out of the Property in 1998 because of the 1st Defendant's intolerable behaviour towards the Father and the 1st Plaintiff. I accept the 1st Defendant's version as more probable (see paragraphs 33 - 37).

17.The 1st Defendant was very conscious of her interests in the family business. While she was working in Singapore in July 1990, she complained that her share of dividends from Dapoly Properties Limited ("Dapoly") declared since 1986 had been credited to the account of E Wah Construction Company Ltd ("E Wah Construction") and demanded immediate repayment and interest at 5% above prime rate if not paid to her before the end of July 1990 and threatened to take "appropriate action to recover" the dividend. It seems that because of his enormous wealth, the Father accommodated the 1st Defendant's complaint and she was subsequently paid $12,376,624.83 on 31 July 1990.

18.Since the 1st Defendant's return to Hong Kong in 1996, she had quarrels with the 1st Plaintiff and complained about the family business. There were complaints such as late payment of dividend and dubious inter-company transfers of funds. The 1st Defendant discovered that CKW and CLW had incorporated new companies in the family business appointing themselves as directors. She suspected she was being systematically excluded from the family business. She also found that CKW and CLW were receiving higher salary than she was. She complained to the Father and was told that her salary included an element of rent free accommodation in the Property.

19.The following are the more substantial complaints. In December 1997, the 1st Defendant complained of diminution of her shareholdings in two of the family companies, namely, E Wah Construction and E Tung Construction Company Limited ("E Tung Construction") from 25% to 20% 15 years ago in 1982. These companies were financed by the Father in 1978. The 1st Defendant was one of the four subscribers in both companies but CKW and CTS were subscribers to either but not both companies. As substantial profits had accumulated over the years, the Father decided to regularise the share structure in the two companies by making CKW and CTS shareholders in both companies which resulted in the reduction of the 1st Defendant's shareholding.

20.In December 1999, through her solicitors, the 1st Defendant complained of sales of two properties by Dapoly to Fupoly Properties Limited ("Fupoly") in 1988 at an undervalue which Fupoly resold for a profit of $1,279,140. Dapoly and Fupoly are 50/50 joint venture companies between the Father's family and his brother, Chung Ming Fai's family. The Father's offer to compensate her for her share of the loss was rejected by the 1st Defendant. Subsequently, the Father repaid the entire amount of $1,279,140 to Dapoly on 23 February 2000. Despite that, the 1st Defendant's solicitors threatened on 17 March 2000 to institute criminal proceedings against those involved in the transaction. While the sales adversely affected her interest as a shareholder, the Father's offer of compensation to her in respect of her loss and later to Dapoly of the entire difference in price must be adequate. While the threat of instituting criminal action were made by her solicitors, it could not have been uttered without the 1st Defendant's instruction. The threat is not at all palatable to the Father and her half-siblings. That adversely reflects her attitude towards her Father and her half-siblings and discredits her evidence that there was nothing wrong in writing letters of demand to her Father. This should also be viewed in the context that by December 1999, the Plaintiffs had started the present action to evict her from the Property and started to oust her from the family business.

21.Also, shortly after starting the above complaint, the 1st Defendant also complained about oppressive conduct against her as a minority shareholder of Da Lee Kai Property Management Limited ("Da Lee Kai"), about various inter-company loans, and about one of her half-sisters receiving salary from the family business without working in any of the family companies. To the last of these complaints, Messrs Wilkinson & Grist replied on 20 December 1999 on behalf of the Father and her half-siblings that the payment had been a long standing family arrangement which the 1st Defendant had always been aware of. This was followed four days later by a letter from Veristrong Co Ltd ("Veristrong"), signed by CKW, referring to the said complaint and intimating that Veristrong noted that the 1st Defendant had been receiving monthly payments of $165,500 from Veristrong without being a director or employee of Veristrong and it would be reviewing whether to make future payments. On the same day and at the height of these disputes, the 3rd Plaintiff issued her a month notice to quit the Property, thereby terminating any licence she may have in occupying the Property.

22.I do not think it necessary for me to adjudicate on these complaints. The relevance of these complaints is that they set the scene in which the present action arose and form part of the surrounding circumstances in which the evidence of the parties is to be understood and their credibility assessed. Suffice it to say that these complaints suggest there was no truth in the 1st Defendant's evidence that her relation with the Father was good and it was not offending to write him complaint letters or that her behaviour had not been offending to the 1st Plaintiff.

23.On 17 February 2000, the 1st Defendant and one of her sisters had a meeting with the Father in Grenville House in the presence of the 1st Plaintiff. She asked the Father if he was aware of the action taken by the Plaintiffs to evict her from the Property and to stop payment of her monthly salary. The Father said categorically he did not know and sighed a number of times in the course of the conversation. The Father then underwent his third and last operation in September 2000 and died on 2 October 2000.

24.Arising from these facts, there are two important mixed issues of fact and law which have to be resolved. These are firstly, the nature and effect of the 1982 assignment of the Property and the nature of the Father's residual interest in the Property and, secondly, whether the 1st Defendant occupied the Property to the exclusion of the Plaintiffs.

Nature and effect of the 1982 assignment of the Property

25.The Property was originally acquired in the Father's name. It must have been his intention that the Property was to be held distinct from his business assets and for the enjoyment of the family. The fact that he subsequently transferred the Property to the 1st Plaintiff and her sons instead of to any of his businesses fortifies this inference. In the early 1980s, there was a drop in the property market due to the uncertainty over the future of Hong Kong. There is therefore probably some truth in the 1st Defendant's evidence that the family business, which was property orientated, was in financial difficulties. I accept the 1st Defendant's evidence that the assignment of the Property was to protect it from enforcement action by creditors of the family business as the Father was the guarantor of the business debts. This was the most naturally thing to do in order that the Property could continue to be available for the use and enjoyment of the family.

26.On the other hand, CKW's account that the assignment was to off-set the dividends from the shares in Associate Hotel given to him and the other siblings by their grandfather which the Father had appropriated for his own use is far from being credible. This does not explain the assignment of one-fifth interest to the 1st Plaintiff and another one-fifth interest to CTS. There is no evidence that the 1st Plaintiff and the adopted son, CTS, had been given any shares in Associate Hotel by the grandfather. Quite apart from the lack of documentary evidence in support of the allegation, such as mention in the preamble in the assignment or ownership of shares in Associate Hotel, the allegation is inherently incredible. The Property was assigned to the 1st Plaintiff, her children and CTS in 1982 for $14 million. Dividend amounting to $14 million in 1982 was an enormous amount of money and must have involved ownership of a very substantial shareholding in Associate Hotel. Yet there was a total lack of documentary evidence in support of such shareholding by CKW, his siblings, the Father and the grandfather. I reject CKW's evidence that the Property was transferred to any of the assignees for valuable consideration.

27.Having accepted that the 1982 assignment of the Property was to protect it from the Father's creditors, the presumption of gift to the assignees is readily rebutted. As the assignment was not a gift and not for valuable consideration and the Lim Bee's line of children continued in possession for the next twenty years undisturbed by any of the assignees, the irresistible inference is that the assignees took the legal title of the Property subject to certain obligations. In the circumstances, I have no difficulties in accepting the 1st Defendant's evidence that it was understood by members of the family, including the 1st Plaintiff, the 1st Defendant and her half-siblings to whom the Property was assigned, that despite the assignment, the Property would remain as the family home for the Lim Bee's line of children and that the Father, as head of the family, would continue to make decision as regards the Property, though he no longer held its legal title. What in fact she was saying in laymen's term is that the Property was held on trust by the assignees for the Father, even though it was not so pleaded. Accordingly, I find that despite the assignment, the Father remained as the beneficial owner of the Property, at least to the extent of a life interest in the Property. He may remain in possession in the Property for as long as he wished and may grant licence to anyone to use and enjoy the Property. Such finding is not inconsistent with the pleading. The following subsequent events further reinforce the above conclusion.

28.In 1985 when CTS emigrated to Canada, the Father transferred some of his property to CTS in exchange for CTS transferring his share in the Property to the 4th Plaintiff, a company owned and controlled by the 1st Plaintiff's three sons. The 4th Plaintiff and its shareholders, i.e. CKW, CLW and CYW, paid no consideration for CTS's interest in the Property. If the Father had no interest in or control over the Property, he would not have paid a price for CTS's share and for the same to be vested in the 4th Plaintiff.

29.The Father's offer of a property to CPK and the 1st Defendant in 1989 in return for their vacating the Property and the Father's repeated offer to the 1st Defendant in 1995 also reinforce the inference that despite the 1982 assignment, it was the understanding of the assignees that the Property would, subject to the direction of the Father, continue to be used as the home of the Lim Bee's line of children.

30.Hence, the Father retained a life interest in the Property despite the 1982 assignment. As the 4th Plaintiff is a company owned and controlled by the three sons of the 1st Plaintiff, it has notice of the Father's beneficial interest. CLW's, CKW's and CTS's assignment of their interest in the Property to the 2nd, 3rd and 4th Plaintiffs in 1998 had no effect on the Father's life interest in the Property as these Plaintiffs must have notice of the Father's interest through CLW, CKW and CYW. While the Father was in Taiwan, the Lim Bee's line of children were in occupation of the Property as before. The Father's beneficial interest in the Property remained unchanged. The Father was in possession of the Property through the Lim Bee's line of children, until 1990 when he moved into the Property with the 1st Plaintiff and resumed actual possession of the Property. Thus when the 1st Defendant returned from Singapore to reside in the Property, she did so as a licensee of the Father.

Whether the 1st Defendant occupied the Property exclusively

31.Prior to the 1982 assignment, the 1st Defendant occupied the Property as part of the household of her Father and with his licence. Despite the successive assignments of the Property, she remained in occupation of the Property without any complaint from the present owners, i.e. the Plaintiffs. She must be taken to have implied authority from the Plaintiffs to reside in the Property at least until 23 January 2000 when the notice to quit took effect.

32.In 1987 when the Father returned from Taiwan, the Property was occupied by CPK and occasionally the 1st Defendant when she returned from Singapore. Though the Father, the 1st Plaintiff and her sons were the majority owners of the Property, the Father and the 1st Plaintiff did not take possession of the Property, but instead lived in a house in Shatin. According to CKW, this was to avoid disputes and quarrels between the 1st Plaintiff and CPK or the 1st Defendant. In 1990 when CPK accepted a flat purchased by the Father, the Father and the 1st Plaintiff moved into the Property. At the time, the 1st Defendant was in Singapore. The room used to be occupied by the 1st Defendant was set aside for her use. Then in 1993, the Father bought the flat in Grenville House.

33.In 1996, the 1st Defendant returned to Hong Kong. Not unexpectedly, she took possession of the room set aside for her in the Property. According to CKW, the 1st Defendant was an extremely difficult person to live with. She quarrelled with the mother of the 2nd and 3rd Defendants, i.e. her sister-in-law and with CTS. She drove people away from the seats at the dinning table or in the sitting room which she used to occupy. These allegations are not supported by the 2nd Defendant. CKW said that the 1st Defendant often scolded the 1st Plaintiff and called her by abusive names. It became so intolerable that the Father and the 1st Plaintiff moved out of the Property to live intermittently in Grenville House in 1996 and permanently in late 1997 or early 1998. On the other hand, according to the 1st Defendant, it was the 1st Plaintiff who was being difficult and the Father moved out of the Property because of his health reasons and not because of her disputes and quarrels with the 1st Plaintiff.

34.There is incontrovertible evidence from the Father's family doctor, Dr Laurence Shek, that since May 1996 the Father was suffering from a neurological problem which severely incapacitated his walking ability and he walked with a festinant gait. The Father had a black out and a fall in May 1996 causing a laceration to his scalp. In August 1996, Dr Shek wrote to the authorities requesting for a special permit for the Father to board or alight from his private car in designated restricted zones. Even CKW agreed that since August 1996, the Father had to use a wheelchair when going out. In January 1997, the Father underwent an operation to remove his brain tumour. His condition improved after the operation but deteriorated again in 1998. He had two further operations in August 1998 and September 2000. Not only did his tumour affect his walking ability, it could also be seen from the documents signed by the Father that he developed problem with his hand and his signature changed dramatically since early 1999 and even more so in 2000. This was probably related to his neurological problem.

35.When CKW's evidence is tested against the Father's physical condition between 1996 and 1998, I consider his evidence incredible. The Property is a gorgeous 6,000 square feet building with bedrooms on the first and second floors and sunken living and dinning areas on the ground floor. The Father was not walking steadily but with a festinant gait in May 1996 and requiring a wheelchair when going out. His condition would not have improved until at least after the first operation in January 1997. The Father had to negotiate the many flights of stairs between the second floor where he slept and the ground floor where the sitting and dinning rooms were to conduct his activities inside the Property and in and out of the Property. Apart from being inconvenient and difficult, it is hazardous for a person of the age of 80 and in his very fragile condition to move about in the Property. I find it incredible that the Father would have preferred to stay in the Property in 1996 when he had alternative accommodation in Grenville House. I accept the 1st Defendant's evidence that the Father left the Property voluntarily in 1996 because of his health conditions and not because of the conduct of the 1st Defendant. Naturally, the 1st Plaintiff left the Property in order to accompany her husband and not because the conduct of the 1st Defendant was intolerable, though the 1st Defendant was hostile towards her and was not an easy person to put up with under the same roof.

36.CKW's evidence is that a couple of months after the first operation, the Father had fully recovered and had no difficulties in walking. Then he moved back to the Property with the 1st Plaintiff in about March 1997 but had to move out again in late 1997 or early 1998 because of the conduct of the 1st Defendant. Again I do not find that credible. The Father made a will on 26 July 1996 describing himself as "Cheung Kung Hai of Apartment D, 4th Floor, Grenville House". Mr Tang, SC, argued that not much weight should be given to that description which merely provided his then residential address. If in the Father's mind his stay in Grenville House was going to be temporary, he would have described himself as "Cheung Kung Hai of 4A South Bay Road" where he had lived for 30 years. The Father was 80 years of age and suffering from a neurological problem. On my finding of fact, he moved out of the Property in 1996 because of his health conditions, the difficulties and hazard of negotiating the staircases. The Father must have elected to stay in Grenville House permanently at the time when he so described himself in his will. Hence, I reject CKW's evidence as being incredible and exaggerating. I accept the 1st Defendant's evidence that the Father and the 1st Plaintiff never returned to live in the Property after they moved out voluntarily in 1996.

37.The Plaintiffs' case of constructive exclusion from the Property is primarily based on the 1st Defendant's conduct towards the 1st Plaintiff. The Plaintiffs only offered the very vague, flimsy and partially hearsay evidence of CKW, which is vigorously contested by the 1st Defendant and contradicted by the 2nd and 3rd Defendants, whose parents allegedly were the victims of the 1st Defendant's intolerable behaviour. The 1st Plaintiff, who could have given first hand evidence of the 1st Defendant's intolerable conduct, was not called to give evidence in support of her case and the other Plaintiffs' case. There is nothing to suggest she was unable to give evidence by reason of her age or health condition or because of her absence from Hong Kong. The most natural inference is that the Plaintiffs fear that calling her may expose facts unfavourable to the Plaintiffs. This makes it easy for me to reject the evidence of CKW and to accept the evidence of the 1st Defendant.

38.Neither the 1st Plaintiff by herself nor any of her children ever attempted to move into the Property as they all had residences of their own. Besides, the Property was designed and built as a single family home. Whoever authorised by the Plaintiffs to move into the Property had to share common facilities with the 1st Defendant. Understandably, that could not be a pleasant experience in view of the relationship between the 1st Defendant and the Plaintiffs. However, the mere presence of the 1st Defendant in the Property as such does not mean the Plaintiffs were excluded from the Property. In fact, the Plaintiffs had a number of rooms locked to the exclusion of the 1st Defendant. Given the unfavourable view I formed of the credibility of CKW who impressed me as an incredible witness trying to advance the cause of the Plaintiffs by exaggeration, I accept the evidence of the 1st Defendant. I accept that the 1st Defendant was not an easy person to share a home with, particularly in view of her disputes over her interests in the family business and the rivalry between the two lines of children. But I am far from being satisfied that the Father and the 1st Plaintiff were being constructively driven out of the Property by reason of the 1st Defendant's conduct. The principal reason for their leaving the Property was the Father's health condition. The half-siblings did not move into the Property because they had their own accommodation. I find that the 1st Defendant's occupation of the Property did not amount to exclusive possession and at no time were the Plaintiffs excluded from the Property. It was the Plaintiffs' choice not to share the Property with the 1st Defendant.

39.There is no dispute that the Plaintiffs are the legal owners of the Property and are prima facie entitled to possession of the Property. The burden is on the 1st Defendant to justify her non-exclusive possession of the Property. With that I now turn to the 1st Defendant's defence.

Family arrangement - the unmarried daughter's licence, the Plaintiffs' notice to quit, termination of the 1st Defendant's licence

40.The 1st Defendant's case is that the Cheung family is a traditional Chinese family. Her grandfather had three wives and followed the Chinese tradition of providing accommodation for his unmarried daughters. Similarly, in accordance with that tradition, her Father provided a flat to each of his only two other unmarried sisters. She had also been offered a flat in 1990 and again in 1995 which she declined as she was happy to live in the Property. She said that the Property had always been treated as the family home of the Lim Bee's line of children and despite the change in ownership in 1982, the Property continued to be treated as the family property like any of the assets of the family business and remained under the power and control of the Father. The tradition she relied on was the Cheung's family tradition and not a tradition universal among Chinese families. Hence, the 1st Defendant said she was entitled to stay in the Property until provided alternative and comparable accommodation or such an amount of money as is acceptable to her.

41.To prove a binding tradition, it has to be shown that the tradition has been consistently observed generation after generation as an obligation but not as a gratuitous or fortuitous event. Without an element of consistent adherence, what one generation did was simply a family arrangement which depended on good faith and trust and usually not intended to be legally enforceable by legal proceedings and not binding on the later generation. In general, there is a presumption against such intention. Without an element of consistent adherence, the content of the obligation would be too obscure and uncertain to be enforced by a court of law. Though the tradition need not have been created since time immemorial, I do not think what the grandfather did necessarily became a binding tradition for a granddaughter to enforce against her father. In any event, in her evidence, the 1st Defendant unequivocally said that while her Father was willing to let her stay in the Property for as long as she was unmarried, he was not obliged to. In the circumstances, her claim of family tradition must fail.

42.The 1st Defendant also pleaded a family understanding that she may remain in the Property for as long as she remained unmarried. Apart from her evidence that the Father had so promised her, there is no evidence of such an understanding among the Plaintiffs who became the owners of the Property after 1982. I am not aware of any principle of law giving an unmarried daughter an equity in the family home. As a matter of law, a child's right to remain in the family home, both before and after the attainment of the age of majority, is generally based upon a revocable bare licence: see Metropolitan Properties Co Ltd v Cronan and Another (1982) PCR-44 1 at 8. Having found that the Father had retained a life interest in the Property, I have no difficulties to find that the 1st Defendant's stay in the Property was by the Father's licence. The Father had tried to terminate that licence amicably in 1990 and 1995 by offering her alternative accommodation. That was refused by the 1st Defendant who was permitted to continue to stay in the Property.

43.The Father moved out of the Property in 1996 leaving the 1st Defendant in possession of the Property. Her continued occupation of the Property must be with the licence of the Father. There had been nasty disputes between the 1st Defendant and the Father's group of companies since 1990, which resulted in the Father or the family business paying her over $12 million. Given his enormous wealth, the Father accommodated and condoned her conduct. He allowed her participation in the family business to continue and even permitted her to stay in the Property with him when she returned from Singapore in 1996. Despite that, in 1997 she complained about the reduction of her shareholding in E Wah Construction and E Tung Construction. The dispute escalated in December 1999 when she complained about the inter-company sale of two properties by Dapoly to Fupoly, the inter-company loans and the oppressive treatment she received as a shareholder of Da Lee Kai. Of course, to be fair to the 1st Defendant, at the same time she was being systematically ousted from the family business. She was stripped of her directorship in some of the family companies, while new companies were formed and placed under the control of her half-siblings. At that time, the 1st Defendant was still occupying the Property and there was no evidence to suggest that any of the Plaintiffs or the Father objected to her continued stay in the Property. I therefore have no difficulties to conclude that the Father was still accommodating towards her and had not revoked her licence despite the unhappy quarrels.

44.Under such atmosphere, it is not difficult to imagine what the half-siblings would do to rid the 1st Defendant from the family business and from the Property. The 1st Defendant's complaint that her half-sister received salary from the family business without working in any of the family companies provided a convenient opportunity and excuse for a review of the payment of her salary by Veristrong and to evict her from the Property. Hence the notice to quit was issued by the Plaintiffs on 24 December 1999 and payment of her salary was stopped altogether on 31 May 2000.

45.On 17 February 2000, the 1st Defendant had a meeting with the Father in the presence of the 1st Plaintiff. When the 1st Defendant asked if the Father knew about the action taken by the half-siblings to evict her from the Property, the Father said unequivocally that he did not know. He did not categorically tell the 1st Defendant that he had revoked her licence or that what the half-siblings did was with his consent or words to that effect. The 1st Defendant produced a tape and a transcript of the conversation which took place during the meeting. This evidence was not challenged by the Plaintiffs. However, in his affirmation filed for the purpose of summary judgment in these proceedings, the Father said that he had never granted any permission to the 1st Defendant to remain on the Property for as long as she wished, that he moved out of the Property to avoid quarrels between the 1st Defendant and the 1st Plaintiff and that he had consented to the action taken to recover possession of the Property. He affirmed that he had a sound and conscious mind and was not acting under undue pressure or influence from the 1st Plaintiff and her sons.

46.That affirmation was written in English and was presumably drafted by the Plaintiffs' solicitors. It was signed by the Father in the presence of another solicitor, Mr Sit Hoi Wah, who had interpreted the affirmation to him and was satisfied that the Father understood the content before signing the affirmation. Normally one would have little doubt as to the truth of the content of an affirmation made under such circumstances. However, despite that meeting was held only three months before he made the affirmation and that he was given the full detail of the conversation, the Father said in his affirmation that he did not recall the conversation he had with the 1st Defendant on 17 February 2000. The meeting, the conversation and its contents were not disputed by the Plaintiffs. The inferences that could be drawn in the circumstances are that the Father's memory was unreliable, or that he was deliberately misleading the court or that he did not actually know what he was doing or that he was indeed acting under the influence of the 1st Plaintiff and her sons. The fact that the affirmation had been interpreted to him by another solicitor of undoubted credibility who had satisfied himself that the content had been understood by the Father is, in my view, in the circumstances, not sufficient to displace the above inferences. Whatever the situation, what the Father said in the affirmation is not reliable. I give no weight to what he said in his affirmation. As the Father claimed he could not recall the conversation of 17 February 2000, I also dismiss the possibility that he was trying to save himself from embarrassment before his daughters when he denied during the meeting to have any knowledge of these proceedings. I find that he had no knowledge of the action being taken against the 1st Defendant and had not consented to evict the 1st Defendant from the Property, over which he still had a life interest or control.

47.On my finding that the 1st Defendant's occupation of the Property was by right of the Father's licence and that the Father had not terminated the licence by consenting to institute the present proceedings, the notice to quit issued by the Plaintiffs was ineffective to terminate the licence granted by the Father who at that stage still retained a life interest in the Property. Even if the Father had consented to evict the 1st Defendant from the Property, the revocation of her licence had not been communicated to her. Accordingly, I find that the licence given to the 1st Defendant was not revoked by the notice to quit issued by the Plaintiffs but was revoked on 2 October 2000 when the Father's life interest was extinguished by the Father's death: see Ho Hang Wan and Ma Ting Cheung [1990] 1 HKLR 649 at 652A and Terunnanse v Terunnanse [1968] AC 1086 at 1095G-1096A.

Contractual license

48.The 1st Defendant claimed that she had a right to occupy the Property as part of her remuneration package for working as an executive for the family business and as a director of a number of family companies. She said when she complained about the discrepancy between her salary and that of CKW's, the Father told her that her right to occupy the Property was part of her remuneration package whereas CKW lived on his own accommodation.

49.Mr Tang, SC, submitted that since 1982 the Father was not the owner of the Property and whatever arrangement between the Father and the 1st Defendant is not binding on the Plaintiffs and there was no contractual relationship between the 1st Defendant and the Plaintiffs, let alone a contract of employment, which entitled the 1st Defendant to be provided accommodation by the Plaintiffs. The 1st Defendant argued that all the assets of the family members and the family business were treated as part of the assets of the family business and because of the way the family business was run it did not matter to the family members which family company was to pay her salary or remuneration package. Since 1967 when she first started working for the family business, she was paid a salary in Hong Kong by E Wah Realty Limited. Later, she was paid by E Wah Construction and then by Veristrong. She was not a shareholder or director of Veristrong. Even CKW admitted that it was on the accountant's advice, presumably for tax avoidance or convenience, that she was paid by Veristrong. Her receipt of the remuneration was supported by tax returns signed by CKW. In view of this long standing arrangement, there could not be any dispute that she was paid a remuneration by the family business for working in one or some of the family group of companies, and it mattered not whether she held an office or a position in the company which paid her. My finding that the 1st Plaintiff and her children had given no consideration for the assignment of the Property and the fact that the Father paid to have CTS's one-fifth interest to be transferred to the 4th Plaintiff further supports the 1st Defendant's contention that the Property was treated as part of the asset of the family business and could be used to provide accommodation for the 1st Defendant as part of her remuneration package for working in the family business. But this arrangement must have been terminated by 31 May 2000 when the 1st Defendant's employment with all of the family companies was severed. By that date, her contractual licence must also be terminated. Beyond that, she was occupying the Property as the Father's licensee until the Father's death on 2 October 2000.

Estoppel

50.The 1st Defendant relied on proprietary estoppel as a defence against the Plaintiffs' claim for possession of the Property. The basis of proprietary estoppel is the interposition of equity which prevents a person from insisting on his strict legal rights. This principle used to apply under strict circumstances where a person has committed a fraud of such a nature as will entitle the court to restrain him from exercising his legal right against another person who has acted to his detriment in reliance of such fraudulent conduct in such a way as would make it fraudulent for him to set up his rights: see Fry J's five propanda in Willmott v Barber, 15 Ch D 96. But, the more recent authorities seem to support a much wider equitable jurisdiction to interfere in cases where the assertion of a person's strict legal right is found by the court to be unconscionable than to be fraudulent. In Crabb v Arun District Council [1976] 1 Ch 179, Scarman LJ equated "fraud" with "unconscionable conduct" and he emphasised that there need not be anything fraudulent or unjust in the conduct of the actual negotiations and the estoppel is raised after the event when it would be unconscionable to allow the defendant by relying on his right to defeat the expectation which he by his conduct encouraged the plaintiff to have. He said at 195:

"'Fraud' was a word often in the mouths of those robust judges who adorned the bench in the 19th century. It is less often in the mouths of the more wary judicial spirits today who sit upon the bench. But it is clear that whether one uses the word 'fraud' or not, the plaintiff has to establish as a fact that the defendant, by setting up his right, is taking advantage of him in a way which is unconscionable, inequitable or unjust. It is to be observed from the passage that I have quoted from the judgment of Fry J, that the fraud or injustice alleged does not take place during the course of negotiation, but only when the defendant decides to refuse to allow the plaintiff to set up his claim against the defendants' undoubted right. The fraud, if it be such, arises after the event, when the defendant seeks by relying on his right to defeat the expectation which he by his conduct encouraged the plaintiff to have. There need not be anything fraudulent or unjust in the conduct of the actual negotiations - the conduct of the transaction by the defendants."

51.Lord Denning MR's dicta at 187 show how this estoppel is raised:

"The basis of this proprietary estoppel - as indeed of promissory estoppel - is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as 'estoppel.' They spoke of it as 'raising an equity.' If I may expand what Lord Cairns LC said in Hughes v Metropolitan Railway Co (1877) 2 App Cas 439, 448: 'It is the first principle upon which all courts of equity proceed,' that it will prevent a person from insisting on his strict legal rights - whether arising under a contract, or on his title deeds, or by statute - when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.

What then are the dealings which will preclude him from insisting on his strict legal rights? If he makes a binding contract that he will not insist on the strict legal position, a court of equity will hold him to his contract. Short of a binding contract, if he makes a promise that he will not insist upon his strict legal rights - then, even though that promise may be unenforceable in point of law for want of consideration or want of writing - then, if he makes the promise knowing or intending that the other will act upon it, and he does act upon it, then again a court of equity will not allow him to go back on that promise: see Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130 and Charles Richards Ltd v Oppenhaim [1950] 1 KB 616, 623. Short of an actual promise, if he, by his words or conduct, so behaves as to lead another to believe that he will not insist on his strict legal rights - knowing or intending that the other will act on that belief - and he does so act, that again will raise an equity in favour of the other; and it is for a court of equity to say in what way the equity may be satisfied. The cases show that this equity does not depend on agreement but on words or conduct."

52.Thus, in my judgment, the inquiry which I shall make is whether, in view of the course of dealing between the 1st Defendant and the Father, including the Plaintiffs in his shoes, it would be unconscionable to allow the Plaintiffs in the Father's shoes, to deny the expectation which the Father had allowed or encouraged the 1st Defendant to assume to her detriment. This would require weighing, in the light of the circumstances, the 1st Defendant's expectation and the detriment she assumed on the one hand against the Father's and the Plaintiffs' conduct and knowledge of the 1st Defendant's expectation on the other.

53.The circumstances which led to the 1st Defendant's expectation are as follows. The Property had been built in 1967 and had since been used as the family home for Lim Bee and her line of children. After Lim Bee died in 1977, the Property continued to be used as the family home for her line of children. The 1st Defendant had the exclusive use of a room which she used whenever she was in Hong Kong and locked up while she was away and for her to keep her personal effects. This state of affairs continued despite the change in legal ownership in 1982 and despite the Father's move to Taiwan during 1984. When the Father returned from Taiwan in 1987, he and the 1st Plaintiff lived in Shatin, while the Property continued to be used by the 1st Defendant and the other members of the Lim Bee's line of children. Though the Father and the 1st Plaintiff moved into the Property in 1990, the 1st Defendant continued to use the Property in the same manner as before and without interruption from the Plaintiffs until the present proceedings.

54.Against the above circumstances, the 1st Defendant claimed that she was born to a traditional Chinese family and in accordance with the family understanding, tradition and custom, an unmarried daughter will be provided with the use of a room in the family home as her maintenance by the Father as the paterfamilias. She recognised fully that this is not a custom common to all traditional Chinese families but is only one which is peculiarly within the Cheung's family because her unmarried aunts were provided with accommodation by the grandfather and her unmarried sisters were also provided with alternative accommodation by the Father. She recognised that the Father was not legally obliged to provide her with accommodation but wished to do so. Hence, she had an expectation in view of the above circumstances that he will.

55.In addition, the 1st Defendant also relied on an expectation created by the Father's promise to her mother and later to herself. There is incontrovertible evidence that the Father promised Lim Bee during her lifetime when she expressed concerns for her unmarried daughters that he would take care of them, including the 1st Defendant and make provision for them. This promise was repeated to the 1st Defendant by the Father. This promise was vague in its content, but in a way, it was realised for all the other unmarried daughters of Lim Bee as well as the only unmarried daughter of the 1st Plaintiff. They had all been given the gift of a property as their homes. Indeed, the Father had offered to buy the 1st Defendant a property twice if she would move out of the Property. This was refused by the 1st Defendant who preferred to stay in the Property. The Father then repeated his promise that she may stay if she did not take up his offer. Mr Tang, SC, criticised her evidence as incredible as it would defeat the Father's purpose of trying to persuade her to move out of the Property. Be that as it may, the fact was the Father did permit the 1st Defendant to continue to occupy the Property and the Plaintiffs did nothing to evict her until December 1999. In this connection, I have rejected the Father's evidence in his affirmation that he never granted any permission to the 1st Defendant to remain on the Property for as long as she wished. I have no doubt that the Father had offered the 1st Defendant alternative accommodation if she would move out of the Property or consented to her continued stay in the Property if she did not accept the offer. The promise is unenforceable, but is relied upon as part of the course of dealing between the 1st Defendant and the Father which created her expectation that she will be provided accommodation in the family home for as long as she remained unmarried. I also have no doubt that the Father had knowledge that the 1st Defendant refused to move out of the Property on the strength of his promise.

56.Against all these backgrounds, Mr Chan submitted that the 1st Defendant made a mistake of her legal right. She thought there was a family tradition that an unmarried daughter will be allowed to stay in the family home and that she may stay in the Property on the strength of the Father's promise to Lim Bee and to herself. Mr Chan further submitted that as a result of her mistake, she suffered detriment. It is not suggested that the 1st Defendant suffered detriment by being unmarried or that she remained unmarried at the request of the Father. Being unmarried was the condition which gave rise to her expectation that she would be provided for. The detriment that the 1st Defendant relied on are that she continued to work for the family enterprises at a "modest" remuneration and that she arranged and supervised certain alterations to the Property and paid for its up-keeping costs.

57.The 1st Defendant's monthly remuneration had for some years been in the amount of $165,500 per month. It was paid by Veristrong, in which she had no role to play. Beyond showing a few correspondence relating to a complaint and some instructions to the solicitors, she was unable to show any work of substance she had undertaken in the family business which earned her $165,500 per month. She was not specific as to her role in the family business. She said when she complained that her half-siblings received a higher salary, she was told by the Father that she her remuneration package included an element for her accommodation in the Property. But there is no suggestion that her remuneration was kept at a lower level because of the promise that she would hence in future be entitled to live in the Property for life or until marriage or that her salary would have been increased if she had not continued to live in the Property. I do not think the remuneration she received could hardly be said to be a detriment or that her right to occupy the Property after her employment with the family business ceased was part of her remuneration package. Indeed on her evidence, she admitted that her entitlement to occupy the Property did not survive the termination of her employment in the family business.

58.The 1st Defendant relied on her paying the cost of up-keeping the Property and the effort she spent in the 1970 improvement of the Property as detriment. In my view, it is a necessary obligation of the occupier of a property to pay for the up-keeping of the property the use of which he enjoyed. The 1st Defendant is occupying one of the eight rooms and the common facilities, while four other rooms on the top floor had been locked up by the Plaintiffs. She is also looking after the Property on behalf of the estate of CCC. Thus, she as agent of CCC and as occupier on her own behalf, must be responsible for at least 20% of the cost of up-keeping of the Property. It is not seriously disputed that Property was not in a well kept state. It is not clear what amount she has expended in up-keeping the Property. In view of the lack of repairs, it could not have been a significant amount. Even if she had paid for the Plaintiffs' share of the cost, it could not have been substantial as to raise an equity in the Property.

59.As for the 1970 improvement works, these included the converting the canopy of the car park from plastic to concrete, improving the granite staircase leading to the living room, some extension works of the basement, repairs to some leaking windows, installing a fish pond in the rear garden, installing an iron gate, a marble wall and several altars. The works were carried out by contractors and paid for by the Father or the family business. Even accepting that she initiated and supervised the works, her contribution could only have been a fraction of the construction costs and is de minimis compared with the value of the Property worth $14 million in 1982. Though detrimental reliance is not limited to expenditure of money, it has to be proportionate to the value of the equity being claimed. Furthermore, back in 1970 when the works were carried out, the Property was occupied by Lim Bee, the 1st Defendant and her whole-siblings. Any contribution to the improvement works was for her own enjoyment of the Property and as a member of the Lim Bee's line of children and for their own well-being. I am far from being satisfied that her contribution to the 1970 improvement works and the cost of upkeep together constituted such a detriment as would create an equity in the Property.

60.Next, Mr Chan submitted that the 1st Defendant suffered detriment for not accepting the Father's offer of a property on the strength of the promise that she could stay in the Property for as long as she wished. The Father's promise was imprecise and in my view could not be taken as promising her a life interest of a room in the Property. The Father's promise was to provide her with accommodation for her as long as she remained unmarried. The 1st Defendant agreed that the accommodation she was promised was not necessarily the very accommodation she was enjoying at the time, but comparable accommodation or its equivalent money worth. She said she declined the offers of a property by the Father because she liked living in the Property. One view of that evidence is that she rejected the Father's offer not because of the Father's promise. But I think such an interpretation of her evidence is out of context. The promise or the expectation that she could continue to stay in the Property must have been operative in her mind when she rejected the offer. That she found the Property more attractive was only a side consideration. Even so, I am unable to find that by rejecting the offer she suffered detriment. Provision of comparable accommodation is an alternative to her continued use of the Property. One must be treated as the same as the other. Though, I assume, the property offered would be of lesser value than that of the Property, but it would be a property with all incidents of ownership and not just a non-exclusive possessory right as she enjoyed in the Property. She must also know that her possessory right in the Property was precarious because ownership of the Property has been vested in the 1st Plaintiff and companies under the control of her half-siblings and that she was being gradually ousted from the family business. It was a commercial decision for the 1st Defendant. That she chose one but not the other could not, in my view, amount to a detriment.

61.Even assuming that the 1st Defendant suffered some detriment, what has the Father done to allow or encourage her to assume to her detriment? There is nothing to suggest that the energy and effort in initiating and supervising the improvement works were spent on the strength of the Father's promise that in return for her effort she would be permitted to stay in the Property for as long as she wished or on the mistaken belief that she would be so rewarded as a result. There is nothing to suggest that the Father had promised her that by receiving a lower salary then she would thereafter be compensated with rent-free accommodation in the Property for as long as she wished. Indeed the Father had offered her a property, which she declined.

62.It could be argued that whatever the Father did or promised were not binding on the Plaintiffs. However, the Property was assigned to the 1st Plaintiff, CKW, CLW, CCC and CTS in 1982 and on my finding without consideration moving from the assignees. The assignees must take subject to whatever equitable interest the 1st Defendant had in the Property. As such, the 2nd to 4th Plaintiffs to which CKW, CLW and CTS transferred their interests, not being bona fide purchasers for value without notice of the equity created by the Father's act or promise, must also take subject to the interest of the 1st Defendant, if any.

63.Looking at the totality of the circumstances, even accepting that the 1st Defendant was mistaken about her right and that the Father and the Plaintiffs knew of her mistake, she did not suffer any detriment. Even if she did, the Father had done nothing to encourage her to assume the detriment. The promise is unenforceable as being neither under seal nor supported by any consideration. The 1st Defendant acknowledged that the Father was not obliged to provide her with accommodation, though she thought he would like to. She had been offered alternative accommodation twice, which she rejected. It is her case and my finding that by the 1982 assignment, the Father had only reserved to himself a life interest in the Property. She knew or must have known that the Father was not the legal owner of the Property and her occupation of the Property could be precarious after the Father's death. Though the Plaintiffs to whom the interest in the Property was transferred had notice of the Father's life interest, I do not think it unconscionable for them to exercise their right of ownership when that life interest is extinguished. The 1st Defendant's defence of estoppel must fail.

Occupation as agent of the 2nd and 3rd Defendants

64.A further and alternative defence of the 1st Defendant which is also in common with the defence of the 2nd and 3rd Defendant is that the 1st Defendant's occupation of the Property was on a non-exclusive basis with the permission and as the representative or agent of the estate of CCC, which holds one-fifth interest in the Property. CCC died intestate in Singapore on 8 August 1995. Letters of administration of his estate were granted to the 2nd and 3rd Defendants by the High Court of the Republic of Singapore on 27 December 1996 and resealed in Hong Kong by the Court of First Instance on 11 October 2000.

65.Mr Tang, SC, submitted as a matter of law that the 2nd and 3rd Defendants had no interest in the Property as administrator of the estate of CCC until the grant of letters of administration by the Singaporean Court was sealed in Hong Kong on 11 October 2000. That is absolutely correct. On my finding, the notice to quit issued by the Plaintiffs was ineffective to terminate the 1st Defendant's licence to stay on the Property on 23 January 2000. But upon the Father's death on 2 October 2000, the 1st Defendant's licence was automatically terminated. Mr Au argued that being the only beneficiaries of the estate of CCC, the 2nd and 3rd Defendants were beneficial owners of one fifth share of the Property and as equitable tenants in common of the Property, were entitled to grant a licence to the 1st Defendant or to appoint her as their agent and representative to occupy the Property. The authorities are clear. Beneficiaries under an intestate estate have no beneficial interest in the assets of the estate: see Commissioner of Stamp Duties v Livingston [1965] AC 694. Instead, by operation of law, the estate is vested in the Official Administrator under section 10 of Probate and Administration Ordinance (Cap. 10). Thus, between 2 and 11 October 2000, the 2nd and 3rd Defendants were not in any position to grant the 1st Defendant any licence to stay in the Property. This is so notwithstanding that they have been granted letters of administration by the Singaporean Court. They might perhaps have been able to persuade, if not compel, the Official Administrator to grant the 1st Defendant a licence, but they have not done so. Thus, technically, the 2nd and 3rd Defendants had no authority to grant the 1st Defendant any licence to occupy the Property between 2 and 11 October 2000. As such, the 1st Defendant's occupation during those nine days amounted to trespass. The 2nd and 3rd Defendant, on their own admission, having authorised the act of the 1st Defendant, are jointly liable with the 1st Defendant in trespass.

66.The next two issues are (1) whether the 2nd and 3rd Defendants were in any position to grant the 1st Defendant a licence to stay in the Property with effect from 11 October 2000 when the letters of administration issued by the Singaporean Court was sealed in Hong Kong without the consent of the Plaintiffs as co-owners of the Property; and (2) if yes, whether such licence could be validly terminated by the Plaintiffs without the consent of the 2nd and 3rd Defendants. It seems there are two lines of authorities to contrary effect. Mr Tang, SC, referred me to the cases of Robson-Paul v Farrugia and Another (1969) 20 PCR 820, Annen v Rattee [1985] 1 EGLR 136 and Sanders v McDonald and Pringle [1981] CLY 1534. He submitted that the 2nd and 3rd Defendants being a mere one fifth co-owner could not unilaterally grant any licence to the 1st Defendant to occupy the Property without the consent of the other co-owners. Mr Chan and Mr Au referred me to Bull v Bull [1955] 1 QB 234 and sought to distinguish the cases cited by Mr Tang, SC, on the basis that those cases were concerned with joint tenancy and not tenancy in common which is what this case is about.

67.I shall first turn to Bull v Bull. In that case, the son and mother put up funds to purchase a property as a home for themselves. The property was held in the son's name but the mother never intended to make a gift to the son of her share of the purchase price. Differences arose between the son and the mother. The son gave the mother notice to quit and sued her for possession. After finding that the mother was an equitable tenant in common, Lord Denning LJ (as he then was) said at 237:

"The rights of equitable tenants in common as between themselves have never, so far as I know, been defined; but there is plenty of authority about the rights of legal owners in common. Each of them is entitled to the possession of the land and to use and enjoyment of it in a proper manner. Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account. If one of them go so far as to oust the other he is guilty of a trespass. ... such being the rights of legal tenants in common, I think that the rights of equitable owners in common are the same."

Thus, each tenant in common is entitled concurrently with the other tenant in common to possession of the whole property and neither of them is entitled to turn the other out by notice to quit. If one uses the property to the exclusion of the other tenant in common, he is guilty of trespass.

68.I now turn to Mr Tang, SC's line of authorities. In Doe de Aslin v Summersett (1830) 1 B & Ad 135, the defendant had a lease granted by a lessor. Before the lease expired, the lessor devised the property to the two plaintiffs and a third party as joint-tenants. The defendant continued to occupy the property upon expiration of the lease and the plaintiffs issued a notice to quit which was signed by one of the plaintiffs only. Lord Tenterden CJ held that a notice to quit issued by one only of the joint-tenants was sufficient to terminate the lease. He said at 739:

"When joint-tenants join in a lease, each demises his own share ... and each may put an end to that demise as far as it operates upon his own share, whether his companions will join with him in putting an end to the whole lease or not ... so that upon the notice to quit in this case, no doubt a third might have been recovered, had there been a separate demise. But, though upon a joint lease by joint-tenants each demises his own share, this is not the only operation of such a lease. Joint-tenants are seised not only of their respective shares, per my, but also of the entirety, per tout; ... The rent reserved will enure jointly to all the lessors; ... and if any of them die, the lessee shall hold the whole as tenant to the survivors. Upon a joint demise by joint-tenants upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please; and as soon as any one of the joint-tenants gives a notice to quit, he effectively puts an end to the tenancy; the tenant has a right upon such a notice to give up the whole, and unless he comes to a new arrangement with the other joint-tenants as to their shares, he is compellable so to do. The hardship upon the tenant, if he were not entitled to treat a notice from one as putting an end to the tenancy as to the whole, is obvious; for however willing a man might be to be sole tenant of an estate, it is not very likely he should be willing to hold undivided shares of it ..."

The significance of the distinction between joint tenancy and tenancy in common is readily apparent from the above dicta. It is also important to note that this case is concerned with termination of a lease, which by definition relates to exclusive possession over the land.

69.In Parsons v Parsons and others [1983] 1 WLR 1390, the executor, in accordance with the provisions of the will, assented to the vesting of the freehold of the holding in the plaintiff and the three defendants as joint tenants at law and as equitable tenants in common in equal shares. The question at trial was whether a notice served by only two out of four persons holding the freehold as joint tenants on trust for themselves as beneficial tenants in common was effective. Deputy High Court Judge Donald Rattee QC applied Doe d Aslin v Summersett and held that the notice served by one of several joint owners was valid without the concurrence of the others. Mr Tang, SC, submitted that the court drew no distinction between joint tenancy and tenancy in common. That I respectfully disagree. The court obviously proceeded on the basis of a joint tenancy in applying Lord Tenterden CJ's dicta in Doe d Aslin v Summersett.

70.In Robson-Paul v Farrugia (1969) 20 PCR 820, the plaintiff and defendants were tenants in common of a freehold property in which they lived together for a time. After the plaintiff left, the 1st defendant fraudulently transferred the Property to the 2nd Defendant who then moved into the property. The plaintiff obtained a declaration against both defendants that the purported transfer had been a forgery and null and void. In resisting the plaintiff's action for possession, the 2nd Defendant claimed that she had been given a licence to occupy the property by the 1st defendant as equitable tenant in common and that one tenant in common could not determine a licence given by the other. Davies LJ said at 825:

"[Counsel for the appellant] submits that one equitable tenant in common cannot determine a licence given to a stranger by the other equitable tenant in common. He says that [the 1st defendant] must be taken to have given a licence to [the 2nd defendant] to go into this house. The judge says that appeared to be conceded. May be it was, but, for myself, in the absence of such a concession, I should wish to consider whether the entering into this fraudulent dishonest transfer did imply such a licence. Assuming, however, that such a licence is to be implied from [the 1st defendant's] transaction, it seems to me to be quite impossible to say that such a licence cannot be terminated by the other joint tenant or other equitable tenant in common without the agreement of both. If one can grant a licence - as to which, quaere - then, surely, the other can revoke the licence. Otherwise, the licence would remain in the premises ad infinitum."

So far as this dicta are relied on in support of the Plaintiffs' proposition that one tenant in common may terminate the licence granted by another tenant in common, it is at best obiter and assumed without argument. In fact, I have some serious doubt about its correctness. If one tenant in common can grant a licence which the other one revoke, then the reverse that one tenant in common can grant what the other one has revoked must also apply. The grant and revocation of licences will continue like a ping-pong game ad infinitum.

71.I think the ratio decidendi of that case is to be found in Megaw LJ's judgment at 827 - 828 where he said:

"[Counsel for the defendant] put the question forensically, having regard to the principle laid down in Bull v Bull: Should that principle not apply equally to prevent a tenant in common from getting an order for possession against someone to whom his fellow tenant in common has transmitted possession? I think that the answer to that question might well be 'No'. Indeed, I think that it might well be put the other way round: why should someone to whom the possession of the whole property has been transmitted by the tenant in common have protection against the obtaining of an order for possession by the other tenant in common who has not concurred in that transfer of possession? ...

... How can it be said that the licence which [the other tenant in common] purported to give to [the licensee] was a licence which he was authorised to give? It is not suggested, as I understand it, by [Counsel for the defendant] that there is any principle of law that one tenant in common has implied authority to grant a licence of the whole of the property without the consent of the other tenant in common." (My emphasis).

72.Though Megaw LJ held that the principle in Bull v Bull would not apply to prevent a tenant in common from getting an order for possession against another, it seems to me that the real basis of Megaw LJ's decision in Robson-Paul v Farrugia and Another is that one tenant in common cannot divest the other of possession of the whole property, which in the context of that case means possession to the exclusion of the other tenant in common. Understood in this light, what Megaw LJ said in that case is not inconsistent with Bull v Bull.

73.In Annen v Rattee [1985] 1 EGLR 136, the plaintiff and a Mr Wagar were co-owners of a flat. The plaintiff never resided in the flat, but Wagar and the defendant did. In September 1977, Wager granted the defendant an oral licence to occupy the flat who then shared it with countless other people. When Wager and the plaintiff left for Canada in 1979, the defendant occupied the flat on a "full-time basis" without the knowledge and consent of the plaintiff. In 1980, the plaintiff returned and attempted to occupy the flat herself and displace the defendant, but was unsuccessful. She purported to terminate the defendant's licence without the knowledge or consent of Wagar. After reviewing the authorities, which I have referred to above, Stephenson LJ held that the notice given by the plaintiff was sufficient to determine the licence given to the defendant by Wagar. This decision supports the Plaintiffs' contention.

74.It appears that Stephenson LJ disregarded the distinction between joint tenancy and tenancy in common in Doe d Astin v Summersett as being technical and unnecessary and then applied the principle Doe d Astin v Summersett as approved in Robson-Paul v Farrugia and Another to this case. He said at 138:

"The decision of [Doe d Astin v Summersett] is one which has to be examined with some care. It rests to a very large extent on highly technical and artificial considerations which now probably no longer prevail, and the fiction by which Mr Doe had in those days to be introduced as plaintiff leads the co-owners to be described as joint tenants in a way which is liable to confuse those who look at the authority for the first time. But what the case appears to decide is that a notice to quit signed by one of several joint tenants (who would now be called co-owners), apparently purporting to be signed on behalf of the others, is sufficient to determine a tenancy from year to year as to all."

He then cited Lord Tenterden CJ's dicta substituting "joint tenants" by "co-owners".

75.He continued at 139:

"The resemblance of Robson-Paul v Farrugia and Another to this case is limited, but nevertheless striking. It seems to me that what Davies LJ said, 'If one can grant a licence ... then ... the other can revoke the licence. Otherwise, the licensee would remain in the premises ad infinitum', applies just as much to a case of a sharing occupation as it does to an occupation, whether under licence or tenancy, of the whole of a property. It is also noticeable that in that case Farrugia was a defendant and not a plaintiff, and there are passages in the judgment of Davies LJ in which he said it would obviously have been quite idle to have tried to make Mr Farrugia a plaintiff; so the court does not seem to have found any difficulty in upholding a judgment for possession in favour of one co-owner or tenant in common, if that is the position, without the other owner or tenant in common being either a party to the proceedings or consenting to the termination of them or to the claim for recovery of possession of the property concerned. No reference was made in that case to the Summersett case, but it seems to me to support the view which the learned judge took, that there was no difference between a licence and a periodic tenancy for this purpose, and that the notice of October 1981 given by the plaintiff validly determined the licence given to the defendant by Mr Wagar." (My emphasis)

So, after disregarding the distinction between joint tenancy and tenancy in common, Stephenson LJ considered the point about occupation of the whole of the property significant. On that basis, he followed Robson-Paul v Farrugia and Another. It is not entirely clear from the facts of Annen v Rattee the nature of the defendant's occupation of the property. Mr Chan for the 1st Defendant referred me to the following passage at 138 of the judgment and urged me to infer that the defendant was occupying the property to the exclusion of the plaintiff:

"... the defendant occupied the flat on a full-time basis. ... [the plaintiff] made efforts to get [the defendant] out; there was even an effort for her to occupy the flat herself and displace him; ..."

I do not think occupation on a "full time basis" necessarily implies occupation to the exclusion of the plaintiff. After complimenting the trial judge for having set out the full story in connection with the flat with admirable clarity, Stephenson LJ said Davies LJ's dicta in Robson-Paul v Farrugia and Another applies as much to a case of sharing occupation as it does to an occupation of the whole of a property. He must have in mind that this is a case of sharing occupation than occupation of the whole of the property. The fact that the plaintiff was able to occupy the flat in 1980 in an attempt to displace the defendant is consistent with a case of sharing occupation than a case of occupation of the whole of the property.

76.I must confess I have some difficulties in understanding the decision in Annen v Rattee. Insofar as this case purports to establish the principle that even in a case where a licence for non-exclusive possession of a property granted by one of the tenants in common is determinable by another tenant in common, I would consider it inconsistent with the earlier decision of the Court of Appeal in Bull v Bull, which is a decision of equal authoritativeness. As the distinction between joint tenancy and tenancy in common is still very much alive in our law, I think Annen v Rattee should not be followed.

77.It is important to note that so far as the common law of Hong Kong is concerned, there are two forms of co-ownership: joint tenancy and tenancy in common. In the case of a joint tenancy, all the four unities, i.e. possession, interest, title and time, must be present. In the case of tenancy in common, only the unity of possession is required. A tenant's interest in the property is an undivided share in the whole property. Each tenant is entitled to possession of the whole of the property or any part thereof, provided that he cannot identify any particular part of the property as his own and use and enjoy it to the exclusion of the other co-tenants. A corollary of the unity of possession is that no co-owner can maintain an action for trespass against another co-owner, unless such enjoyment of the property amounts to an ouster of the other co-owners: see Jacobs v Seward (1872) 5 HL 464. No one co-owner has a better right to the property than another, so that an action for trespass or for rent will not normally lie: see Megarry & Wade, para. 9-005. I would follow Bull v Bull.

78.Having considered these principles and the authorities, I think it is well within the power of a tenant in common to possess, occupy and enjoy the use of a property with his other tenants in common on a non-exclusive basis. As long as he does not exceed his boundary of non-exclusive user, he is not guilty of trespass and the other tenants in common cannot turn him out. He may also grant a licence to his licensee to possess, occupy and enjoy the use of the property on the same basis. Thus, insofar as a licence granted by a tenant in common which does not purport to give exclusive possession of the property to the licensee, it cannot be validly terminated by the other tenants in common without his consent, just as much as tenant in common is not entitled to turn out the other if the other is properly enjoying the property within the boundaries of his rights as a tenant in common.

79.The Plaintiffs and CCC are tenants in common. The 2nd and 3rd Defendants as administrators of the estate of CCC, are entitled to possession of the whole of the Property or any part thereof on a non-exclusive basis and to authorise the 1st Defendant to occupy, use and enjoy the Property on their behalf. Whether as licensee or as agent of the 2nd and 3rd Defendant, the 1st Defendant may enjoy the use of the Property on a non-exclusive basis to the same extent as the Plaintiffs and that the Plaintiffs may not maintain an action for trespass against the 1st Defendant. On my finding of fact, I accept that the 1st Defendant did not occupy the Property to the exclusion of the Plaintiffs. In the circumstances, although the 1st Defendant's occupation of the Property as licensee of the Father was revoked automatically upon the Father's death on 2 October 2000, the 2nd and 3rd Defendant as administrator of the estate of CCC may grant her a licence to occupy the Property on a non exclusive basis as their agent with effect from 11 October 2000. This licence could not be terminated by the Plaintiffs without the consent of the 2nd and 3rd Defendants. Accordingly, the Defendants are not liable to the Plaintiffs in trespass in respect of the 1st Defendant's occupation of the Property after 11 October 2000.

The 1st Defendant's liability in damages and quantum

80.On the above finding, the 1st, 2nd and 3rd Defendants were guilty of trespass in respect of the 1st Defendant's occupation of the Property for the nine days between 2 and 11 October 2000. Mr Tang, SC, referred me to McGregor on Damages, 16th ed at paragraph 1503 and to Inverugie Investments Ltd and Hackett [1995] 1 WLR 713 and submitted that the normal measure of damages for trespass is the market rental value of the Property occupied for the period of wrongful occupation. I consider this as the correct measure of damages for trespass.

81.The parties have also agreed that the market rental value of the Property on January 2000 and January 2002 were respectively $150,000 and $167,000 without repairs and $200,000 and $189,000 with repairs. I adopt the average rental value without repairs as the basis for assessing the damages as indeed the Property was without repairs. Mr Chan for the 1st Defendant submitted that the 1st Defendant is only liable to four fifth of the damages. Mr Au for the 2nd and 3rd Defendant had no objection. As the Plaintiffs have to, in any event, account to the 2nd and 3rd Defendants for any rental income received from the Property, I consider it appropriate that the damages should be so reduced without the Plaintiff having to account for the same to the 2nd and 3rd Defendants. Accordingly, I assess the damages to be $36,812.90 i.e. ($150,000 + $167,000) ÷ 2 x 9/31 x 4/5.

The 2nd and 3rdDefendants' liability for occupational rent

82.I have dismissed the Plaintiffs' claim for trespass after 11 October 2000. However, Mr Tang, SC, sought to justify damages or occupational rent after 11 October 2000 on the basis that the Plaintiffs had been effectively excluded or ousted from the Property by reason of the 1st Defendant's occupation and alternatively if the licence granted by them to the 1st Defendant was valid that it is necessary in order to do equity between the parties on the principle of In re Pavlou [1993] 1 WLR 1046. I have rejected the Plaintiffs' case that the 1st Defendant's occupation of the Property was to the exclusion of the Plaintiffs. I shall therefore deal with Mr Tang, SC's alternative ground.

83.The Property has all along been used as the family home of the Lim Bee's line of children, though the 1st Defendant was the only one left to occupy the Property. The 1st Plaintiff was staying in Grenville House because of the health condition of the Father and had no use of the Property. All her other children had their own accommodation. As CKW said in evidence, none of them were desirous of living in the Property, which was designed as a single family property. When the Plaintiffs gave notice to quit to the 1st Defendant, their motive was simple to get her out of the Property and not that they were prevented from exercising their right of non-exclusive possession. They have quite overlooked or ignored the right of the 2nd and 3rd Defendants. When they came to realise, through reading the affirmation of the 2nd Defendant, that the 2nd and 3rd Defendants as administrators of the estate of CCC had granted the 1st Defendant a licence to occupy the Property, they did not attempt to resolve the matter in an amicable manner. Instead, they threaten to make the 2nd and 3rd Defendants a party to the litigation, if they should stand in their way. Since my decision is hinged on the way the parties conducted themselves in this connection, I shall quote their correspondence in full. On 20 November 2000, the Plaintiffs' solicitors wrote to the 2nd and 3rd Defendants as follow:

"We are instructed that your purported permission for the Defendant to reside in the Property have effectively prevented or obstructed the enjoyment of the Property by other co-owners and this was known or ought to have been known to you.

Accordingly we are instructed to request you to confirm within 14 days from the date hereof:-

(i)	whether, as administrators of the estate of Cheung Chin Chye deceased and the remaining co-owner of the Property apart from our clients, you grant consent or continue the alleged consent granted by Cheung Chin Chye to the Defendant to reside in the Property:
(ii)	whether you still engage the Defendant as your agent allegedly to live in the Property and to "look after" the Property;
(iii)	if either or both of the replies to the above questions (i) and (ii) shall be in the affirmative, please confirm for what further period of time you purport to permit the Defendant to remain on the Property.

We are further instructed to give you notice that in case either or both of your reply to the above questions (i) and (ii) shall be in the affirmative or in the case we do not receive your reply within the said period of 14 days, our clients will have no alternative but to apply to Court for an order for sale of the Property and to join you as party to such proceedings. ..."

Firstly, this letter was premised on the wrong basis that the 1st Defendant's occupation of the Property was to the exclusion of the Plaintiffs. Secondly, it was in wanton disregard of the 2nd and 3rd Defendants' right to non-exclusive possession of the Property. I consider the approach adopted by the Plaintiffs inappropriate and aggressive.

84.In reply, the 2nd Defendants wrote back on behalf of the estate of CCC on 27 November 2000 inviting amicable discussion. After receipt of a further letter from the Plaintiffs' solicitors suggesting a sale of the Property, the 2nd Defendant replied on 12 December 2000 as follows:

"Naturally, the sale should be with vacant possession. However, it is premature for us to consider terminating the consent to the Defendant unless your clients are able to confirm that it is the only issue in dispute in HCA No. 1208 of 2000 and that they will be able to deliver vacant possession immediately it is terminated. Otherwise, even if we were to agree to your suggestion, it will not be any more prudent to advertise the Property for sale than it is now, and it would be wiser to resolve whatever other issues there are first.

Moreover, we cannot reasonably be expected to commit ourselves in the absence of any corresponding commitment from your clients. We look forward to receiving your clients' concrete proposal relating to the sale of the Property including the proposed reserve, mode, time and terms of sale."

85.The offer was made shortly after the death of the Father when the 1st Defendant was still residing in the Property. She was the 2nd Defendant's aunt and the Property had all along been used as the family home for the Lim Bee's line of children. Not only did it make practical sense that the 2nd and 3rd Defendants should allow their aunt to continue to stay in the Property until vacant possession was required to be delivered to the buyer, they were even expected to do so in view of their familial relationship. In the circumstances, it was reasonable for them to enquire from the Plaintiffs if the question of their consent to the 1st Defendant's occupation was the only issue in dispute in this case. It is also reasonable to secure a reciprocal commitment or undertaking from the Plaintiffs in respect of anyone who would be let into possession of the Property by the Plaintiffs before its sale. Given the mutual mistrust between the two lines of children, I consider the 2nd Defendant's offer understandable, reasonable and practical. The Plaintiffs considered that an attempt to frustrate and obstruct their action to recover and sell the Property and refused to give the confirmation sought. The Plaintiffs impliedly rejected the offer, and amended the writ of summons in April 2001 making the 2nd and 3rd Defendants a party to the action. It then took three years for the case to reach this court. The 2nd and 3rd Defendants had always consented to the sale of the Property. Their offer was, as I said, understandable, reasonable and practical. It was, in my view, unreasonably rejected or ignored. It was the very unreasonable and aggressive stand adopted by the Plaintiffs which led to this long and wasting litigation. I am unable to see any equity in this case that the 2nd and 3rd Defendants should be required to pay any occupation rent to the Plaintiffs. They have as much right to use the Property as have the Plaintiffs. The Plaintiffs were largely responsible for the delay in the sale of the Property by reason of the course they took. Accordingly, I reject the Plaintiffs' claim against the 2nd and 3rd Defendants for occupational rent after 11 October 2000.

Conclusion

86.The 2nd and 3rd Defendants consented to the sale of the Property pursuant to section 6 of the Partition Ordinance, which I consider is in the best interest of all the parties. Accordingly, I make an order as against the 2nd and 3rd Defendants that the Property be sold in its "as is" condition by way of public tender with a reserved price as valued by an agreed independent valuer or, in default of such agreement, the average price of the valuation reached by one valuer appointed by the Plaintiffs and one appointed by the 2nd and 3rd Defendants. The period for submission of tender should be fixed between eight to twelve weeks. For the purpose of carrying into effect the order for sale, the parties shall have liberty to apply for further directions if necessary.

87.I also enter judgment in favour of the Plaintiffs against the 1st, 2nd and 3rd Defendants jointly and severally in the sum of $36,812.90 with interest at judgment rate from the date of issue of the Amended Writ of Summons on 24 April 2001.

88.I consider the act of trespass committed by the 1st, 2nd and 3rd Defendants was technical. As against the 1st Defendant, apart from that technical trespass, she was essentially successful with her defence by virtue of the Father's licence. As for the 2nd and 3rd Defendants, they had consented to the sale of the Property before the amendment of the writ of summons making them a party to the proceedings. In the circumstances, I consider justice would be best served by making a costs order nisi that there be no order as to costs.

Representation:

Mr Robert Tang, SC and Mr Godfrey Lam, instructed by Messrs Wilkinson & Grist for the Plaintiffs

Mr Alfred Chan, instructed by Messrs Herbert Smith, for the 1st Defendant

Mr Thomas Au, instructed by Messrs Lovells, for the 2nd and 3rd Defendants