CHAU SEN KIN alias CHOW SIN KIN v. THE OCCUPIERS AND ANOTHER

DCMP 855/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO 855 OF 2013

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DECISION

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Introduction

1.  In this case, the plaintiff claims possession of a property known as Flat H (No. 75 Electric Road) on PH/F, Fat Cheong Building, Nos 63-81 Electric Road, No 1B Lau Li Street, No 2B Tsing Fung Street, Hong Kong (the“Property”) under Order 113 of the Rules of the District Court (“O.113”).

2.  The plaintiff had filed three affirmations on 26 March 2013, 29 July 2013 and 16 August 2013 in support of his claim (“P’s 1^st Affirmation”, “P’s 2^nd Affirmation” and “P’s 3^rd Affirmation” respectively).

3.  The 1^st defendant took no steps in this proceeding.  The 2^nd defendant had filed two affirmations on 18 July 2013 and 1 August 2013 in opposition to the plaintiff’s claim (“Zhou’s 1^st Affirmation” and “Zhou’s 2^nd Affirmation” respectively).

4.  The plaintiff and the 2^nd defendant are half-blood brothers.  They are sons of Mr Chow Nai Chee alias Chow Yee Tak (the “Father”).  The plaintiff was born to the 2^nd wife of the Father whereas the 2^nd defendant was born to the 1^st wife of the Father.

5.  The plaintiff was born in Hong Kong whereas the 2^nd defendant was born in China. 

6.  The Property was purchased by the Father in 1963.  He transferred the Property to the plaintiff, the plaintiff’s mother Madam Woo Pao Chi (“Woo”) and the plaintiff’s sister Chow Sen Chi (“Chi”) as joint tenants on about 22 May 1993 by way of gift.  The plaintiff, Chi and Woo remained as the registered owners of the Property since then.

7.  The 2^nd defendant came to Hong Kong under a one way permit in 2002 and had been living in the Property since then.

8.  The plaintiff claimed that the defendants had been in occupation of the Property without licence or consent. He seeks to recover possession of the Property from the defendants.

The plaintiff’s case

9.  The plaintiff’s case was that the 2^nd defendant started to visit Hong Kong in 1984 and eventually came to Hong Kong under a one way permit in 2002.  The 2^nd defendant began to live in the Property since he came to Hong Kong in 2002.

10.  The 2^nd defendant used to work as a cleaning worker.  The Father asked the 2^nd defendant to quit his job and paid him $5,000 a month to look after the Father.  At that time the Property was occupied by the plaintiff, the 2^nd defendant and the Father.

11.  The Father had a stroke in August 2006.  He was admitted to hospital for pneumonia in about March 2007.  The 2^nd defendant’s mother filed a petition for divorce against the Father on about 15 March 2007.  The plaintiff said that the relationship between the 2^nd defendant and the Father deteriorated since then.  The Father and the plaintiff moved out from the Property on about 30 July 2007 and the Father stopped paying any money to the 2^nd defendant since then.  The Father passed away on about 31 July 2009.

12.  No decree of divorce was made on the 2^nd defendant’s mother’s divorce petition prior to the death of the Father.  Accordingly, the 2^nd defendant’s mother remained a wife of the Father as at his death.  The Father had made a will bequeathing the entire residuary estate to the plaintiff, his two whole-blood sisters and their mother.  The 2^nd defendant’s mother claimed financial provision from the Father’s estate under the Inheritance (Provision for Family and Dependents) Ordinance, Cap 481 (the “Family Court Action”).  The 2^nd defendant represented his mother as her next friend in the Family Court Action.  Deputy District Judge S Lo handed down his judgment in the Family Court Action on 8 July 2011 (the “Family Court Judgment”).  The court awarded $2,500,000 to the 2^nd defendant’s mother in the Family Court Action on the basis that the Property was not part of the net estate of the Father.  Both the plaintiff and the 2^nd defendant had exhibited a copy of the Family Court Judgment to their respective affirmation.

13.  The plaintiff said that the 2^nd defendant had confirmed to the court in the Family Court Action by giving evidence in the witness box that he did not have any interest in the Property and that he would move out from the Property.

14.  By a letter dated 22 November 2011, the plaintiff’s former solicitors, Messrs Fairbairn Catley Low & Kong, wrote to the defendants requiring the defendants to return the possession of the Property to the plaintiff and his co-owners (the “Letter”).  The defendants were told that they had been occupying the Property without licence or consent.  However, the defendants did not move out.  The plaintiff then commenced this proceeding on 26 March 2013.

The 2^nd defendant’s case  

15.  The 2^nd defendant in Zhou’s 1st Affirmation stated that he lived in the Property since 2002.  He said that he was responsible for taking care of the Father who was of old age and the plaintiff who had suffered from mental illness.  He said that the court had in the Family Court Action allocated $3,552,000 from the Father’s estate for the plaintiff’s whole life maintenance including rental expenses.  He said that the plaintiff had no immediate right to possession of the Property.

16.  In Zhou’s 2^nd Affirmation, the 2^nd defendant stated that the Father had made a declaration in 1985 (the “Declaration”) stating that the Father would transfer the Property to the 2^nd defendant as a gift upon the 2^nd defendant’s arrival in Hong Kong.  The 2^nd defendant further said that he had paid the government rates, management fees, repair contributions and repair costs for the Property.

17.  The 2^nd defendant was represented by Mr Patrick Szeto of counsel at the hearing on 2 August 2013 when the 2^nd defendant sought an adjournment of the hearing and leave to file Zhou’s 2^nd Affirmation.  Mr Szeto had submitted his skeleton submission for the 2^nd defendant (“D’s 1^st Skeleton”) for the said hearing.  In the hearing on 6 September 2013, the 2^nd defendant was represented by Mr Wang who adopted D’s 1^st Skeleton and submitted a further submission for the 2^nd defendant (“D’s 2^nd Skeleton”) and a 2^nd further submission for the 2^nd defendant (“D’s 3^rd Skeleton”).  I noted that Mr Wang also represented the 2^nd defendant’s mother in the Family Court Action.  

Discussion

18.  This is an application under O.113.  The court’s approach to an application under O.113 was stated by the Court of Appeal in the following frequently quoted judgment of Nazareth VP in Direk Mahadumrongkul v Lau Chun Keung & Ors (unrep, CACV 133/1998, 16 October 1998):-

“24. [O.113] provides a summary procedure which enables the court in a proper case to deal more quickly with a claim for possession than it would otherwise be able to do.

25. In earlier editions of the annual practice it was stated that this summary procedure was intended for uncontested and clear cases. The latter statement has been omitted from the latest two editions. However, that is said to have been the result of the increased material that has had to be included in the White Book rather than because of any authority to the contrary. Certainly, counsel has not been able to find such authority. In that context Godfrey J (as he then was) in Vipac Engineers & Scientists Ltd v Karpovich & anor [1989] 2 HKC 358 at 359H said this:-

“I have to say that this goes further than the judgments themselves and somewhat overstates the matter.  If the case is a clear one, it cannot matter that the defendant has contested it.  The right test, in my view, is whether the issue between the parties is one which the defendant is entitled to have sent to a trial – whether it be on an issue of fact or of law.  If the issue is seen on analysis to be capable of determination in only one way, in favour of the plaintiff, then, as it seems to me, it is proper to the court to exercise the power conferred on it by O.113 and determine the matter, however vigorous the contest may have been.”

That seems to me to be obviously right and not to be significantly different from the approach under O.14.”

19.  The approach of the court in dealing with an application under O.113 is akin to that of a summary judgment application.  If the defendant cannot raise any issue which should be determined in a proper trial, the court would grant a possession order to the plaintiff.

20.  In this case, the plaintiff is one of the registered joint tenants of the Property and is prima facie entitled to possession of the Property.  The plaintiff claimed in the originating summons that the people in occupation of the Property were in occupation without licence or consent.

21.  There was no dispute that the 2^nd defendant was occupying the Property.  The 2^nd defendant contended that he was a licensee in occupying the Property.  The 2^nd defendant further contended that his licence was irrevocable.  Alternatively, the 2^nd defendant relied on the doctrine of proprietary estoppel to resist this claim of the plaintiff.

22.  The issues before me are as follows:-

(1) whether the 2^nd defendant was in occupation of the Property without licence or consent;

(2) if the 2^nd defendant was a licensee, whether his licence was irrevocable in law or in equity; and

(3) if the 2^nd defendant’s licence was not irrevocable, whether the same had been validly revoked or terminated.

Did the 2^nd defendant occupy the Property without licence or consent?

23.  In D’s 1^st Skeleton, the 2^nd defendant’s counsel submitted that when the 2^nd defendant came to Hong Kong under the one-way permit, he had no other support in Hong Kong other than his family here.  He was given permission to reside at the Property.  He was asked later by his family to cease working and to take care of the Father and the plaintiff.

24.  The 2^nd defendant’s counsel submitted that the 2^nd defendant was at the very least a licensee.  The 2^nd defendant’s counsel further submitted that the 2^nd defendant’s occupation of the Property was not without consent as the plaintiff had taken a direct benefit from assistance rendered by the 2^nd defendant while they were living together.

25.  In P’s 1^st Affirmation, the plaintiff stated in para 7 that:-

“The 2^nd Defendant started to visit Hong Kong in 1984 and eventually he came to Hong Kong under one way permit in 2002 and began to live in the said property [the Property].”

26.  A licence may be expressly granted or it may be implied.  It was not the plaintiff’s case that when the 2^nd defendant started to live in the Property in 2002, the 2^nd defendant was a trespasser.  The plaintiff, Chi and Woo were already owners of the Property as at 2002.  The 2^nd defendant had to have permission or consent from the owners or one of them to live in the Property when he came to Hong Kong in 2002.  When the plaintiff and/or other co-owners of the Property allowed the 2^nd defendant to live in the Property when he arrived in Hong Kong in 2002, an express or implied licence to live in the Property would have been granted to the 2^nd defendant.  I accept the 2^nd defendant’s counsel’s submission that the 2^nd defendant was at least a licensee in 2002 to live in the Property.  A licence is a permission which makes it lawful for the licensee to do what would otherwise be a trespass.  The 2^nd defendant’s occupation of the Property was lawful unless and until his licence to occupy the Property had been validly revoked or terminated.

Was the 2^nd defendant’s licence irrevocable?

27.  The 2^nd defendant’s counsel submitted that the 2^nd defendant’s licence was irrevocable. In paras 7(a) and (b) of D’s 1^st Skeleton, the 2^nd defendant’s counsel submitted that:-

“a. There is no unfettered right for the plaintiff to terminate/revoke the license at will (Megarry & Wade The Law of Real Property 7^th Ed at 16-037; 34-007 to 34-013).

   “If C is a licensee, one form of relief which the court may give is of course to declare that his license is thereafter irrevocable or revocable only on terms or after a period of time … … A license once acted upon cannot be revoked.  Thus if A gives B permission to build his house in such a way that it interrupts A’s right to light, A cannot thereafter revoke his license and require B to demolish his house.”

“… it is a long established rule of common law that a license once acted upon cannot usually be revoked. If A gives authority to B for the doing of an act of [sic] A’s land, and the act is done and completed, then, whatever be the strict description of the authority … it is generally speaking at any rate too late for a [sic] who gave the authority to complain of it.” [emphasis added]

b. After reviewing relevant authorities, the learned authors of Megarry & Wade concluded at 34-010 that “The judicial consensus is now to the effect that a licensor has no right to eject a licensee in breach of contract, even where equity will not assist the licensee …”. [emphasis added] See further Plimmer v Mayor (1884) 9 App Cas 699 at 710, 713-714, Armstrong v Sheppard [1959] 2 QB 384;”

28.  Licences may be granted in a wide variety of forms.  They can be bare licences, contractual licences or licences coupled with an interest.  Not all licences are irrevocable.  A bare licence can be revoked at any time on reasonable notice.  Revocation of a contractual licence is governed by the contractual terms.  A licence coupled with a recognised interest in property is irrevocable.  (See Megarry & Wade 8^th Ed at 34-002 to 34-005)

29.  To say “a licence once acted upon cannot be revoked” is quoting the learned author out of context.  At 34-012 of Megarry & Wade 8^th Ed., the learned author explained that:-

“No revocation of a licence acted upon. It has already been explained that it is a long-established rule of the common law that a licence once acted upon (in the sense that the licensee has completed their use) cannot usually be revoked.

‘If A gives authority to B for the doing of an act on A’s land, and the act is done and completed, then, whatever be the strict description of the authority … it is, generally speaking at any rate, too late for A, who gave the authority, to complain of it.’

The principle which underlines this rule is similar to the equitable doctrine of proprietary estoppel.” (Emphasis added)

30.  It can be seen that the aforesaid rule only applies to licence coupled with an equity.  It applies to licence where the licensed acts have been executed.  It may also apply to cases where performance of the licensed acts have been started but not yet completed.  It applies to cases where the licensee has altered his position on the faith of the licence granted.  As such, it will be inequitable to allow the licensor to revoke the licence.  The application of this rule is similar to that of the doctrine of proprietary estoppel.  I shall discuss below whether the 2^nd defendant’s licence was this type of licence.

31.  The 2^nd defendant relied on the following matters raised in his affirmations to contend that he had acquired an interest in the Property or that the doctrine of proprietary estoppel would come to his aid to render his licence irrevocable:-

(1) the 2^nd defendant had looked after the Father and the plaintiff before they moved out from the Property in 2007;

(2) the 2^nd defendant had paid government rates, management fees, repair contributions and repair costs for the Property;

(3) the court had in the Family Court Action awarded substantial sum to the plaintiff for his whole life maintenance; and

(4) the Father had made the Declaration in 1985 stating that he would transfer the Property to the 2^nd defendant as gift.

32.  Before I deal with the aforesaid matters raised in the 2^nd defendant’s affirmations, I shall briefly deal with the operation of the doctrine of proprietary estoppel.

Proprietary estoppel

33.  Proprietary estappel is a mean by which property right may be affected or created.  It is a species of equitable estoppel, a relief for inequitable conduct.  It describes the equitable jurisdiction by which a court may interfere in cases where the assertion of strict legal rights is found to be unconscionable. (See Megarry & Wade at 16-001)  In the words of Lord Denning MR: “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,” (Crabb v Arun District Council [1976] Ch 179 at 187 to 188)

34.  In Willmott v Barber [1880] 15 Ch D 96, Fry J explained the principle at 105 to 106 as follows:-

“A man is not to be deprived of his legal rights unless he has acted in such a way as would make it fraudulent for him to set up those rights. What, then, are the elements or requisites necessary to constitute fraud of that description? In the first place the plaintiff must have made a mistake as to his legal rights. Secondly, the plaintiff must have expended some money or must have done some act (not necessarily upon the defendant’s land) on the faith of his mistaken belief. Thirdly, the defendant, the possessor of the legal right, must know of the existence of his own right which is inconsistent with the right claimed by the plaintiff. If he does not know of it he is in the same position as the plaintiff, and the doctrine of acquiescence is founded upon conduct with a knowledge of your legal rights. Fourthly, the defendant, the possessor of the legal right, must know of the plaintiff’s mistaken belief of his rights. If he does not, there is nothing which calls upon him to assert his own rights. Lastly, the defendant, the possessor of the legal right, must have encouraged the plaintiff in his expenditure of money or in the other acts which he has done, either directly or by abstaining from asserting his legal right. Where all these elements exist, there is fraud of such a nature as will entitle the Court to restrain the possessor of the legal right from exercising it, but, in my judgment, nothing short of this will do.”

35.  Although Fry J used the word “fraud”, Scarman LJ had explained in Crabb v Arun District Council at 195 that “fraud” was a word often used by those robust judges in the 19^th century. But whether one used the word “fraud” or not, the claimant had to establish as a fact that the possessor of the legal right, by setting up his right, was taking advantage of the claimant in a way which was unconscionable, inequitable or unjust.

36.  The essential elements of proprietary estoppel are summarized at 16-001 of Megarry & Wade as follows:-

(1) The owner of the property (“the Owner”) induces, encourages or allows the claimant (the “Claimant”) to believe that he has or will enjoy some right or benefit over the Owner’s property;

(2) In reliance upon this belief, the Claimant acts to his detriment to the knowledge of the Owner; and

(3) The Owner then seeks to take unconscionable advantage of the Claimant by denying him the right or benefit which he expected to receive.

37.  To put the aforesaid elements into the context of this case, in order to invoke the doctrine of proprietary estoppel, the 2^nd defendant had to satisfy the court that:-

(1) The plaintiff or his co-owners had induced, encouraged or allowed the 2^nd defendant to believe that he had or would enjoy the right of occupying the Property for as long as he wished;

(2) In reliance upon such belief, the 2^nd defendant provided the services to the Father and the plaintiff and / or paid the government rates, management fees, repair contributions and repair costs for the Property to the knowledge of the plaintiff or his co-owners; and

(3) The plaintiff was seeking to take unconscionable advantage of the 2^nd defendant by denying him the right or benefit to continue to occupy the Property.

38.  If the 2^nd defendant satisfied the aforesaid elements, it would be unconscionable, inequitable or unjust for the plaintiff to deprive the 2^nd defendant of his expected right.  The doctrine of proprietary estoppel would come to the 2^nd defendant’s assistance.  His licence would become a licence coupled with an equity and hence irrevocable.

39.  I shall now deal with each of the contentions raised by the 2^nd defendant to see if the doctrine of proprietary estoppel will come to his aid.

Services provided by the 2^nd defendant to the Father and the plaintiff

40.  There were no disputes that the 2^nd defendant had looked after the Father and the plaintiff when they were living together in the Property.

41.  The plaintiff stated in para 8 of P’s 1^st Affirmation that:-

“8. The 2^nd Defendant came to live at the said property [the Property] and started working as a cleaning worker. Later the 2^nd Defendant was asked to quit his job and was paid HK$5,000 a month by my father to look after him.” (Emphasis added)

42.  It was the plaintiff’s case that the 2^nd defendant was asked by the Father to quit his job to take care of the Father and the Father had paid $5,000 a month to the 2^nd defendant for his services.  These were not disputed by the 2^nd defendant in his two affirmations filed herein.  In the Family Court Judgment, it was stated that:-

“20. Zhou [the 2^nd defendant] started to visit Hong Kong in 1984 and eventually he came to Hong Kong under one way permit in 2002. He said he came to live at the Electric Road Property [the Property] and initially worked as a cleaning worker and after about August 2006 he came to be engaged by the Deceased [the Father] to look after the Deceased and Kin [the plaintiff] at a monthly fee of $5,000. Zhou has continued living at the Electric Road Property up to now after the Deceased and Kin left in July 2007.” (emphasis added)

43.  In Zhou’s 1^st Affirmation, the 2^nd defendant stated in para 3 that:-

“我於2002年獲批准來香港也住在這裏 [the Property]，當 時負責照顧大年紀的父親和患有精神病的原告 人，… ”

44.  In the affirmations subsequently filed by the plaintiff, the plaintiff did not dispute the 2^nd defendant’s above evidence.

45.  The 2^nd defendant’s counsel submitted in D’s 2^nd Skeleton that “it was not a mere gratuity on the part of the Plaintiff to permit the 2^nd Defendant to occupy the captioned premises.  The sacrifice or the contribution of the 2^nd Defendant towards the family should not be rendered for nothing.  It is reasonable in the circumstances for the 2^nd Defendant to have the belief that he would not be evicted for no reasons.”

46.  According to the evidence given by the 2^nd defendant in the Family Court Action, it was the Father who in August 2006 requested the 2^nd defendant to quit his job to take care of the Father and the plaintiff.  I accept the 2^nd defendant’s evidence that when he lived with the Father and the plaintiff, he had provided services to both of them.  According to the evidence given by the 2^nd defendant in the Family Court Action, the period in which he had provided such services was from August 2006 to July 2007, ie about one year.

47.  I also accept the plaintiff’s evidence which was confirmed by the 2^nd defendant’s evidence given in the Family Court Action that it was the Father (not the plaintiff) who had asked the 2^nd defendant to quit his job to take care of the Father and the 2^nd defendant had been paid $5,000 per month by the Father for his services.  In such case, the 2^nd defendant did not render his services for nothing.  He had been remunerated for his services.

48.  As pointed out above, it was the Father, not the plaintiff, who had requested the 2^nd defendant to quit his job to take care of the Father and the plaintiff.  There was no evidence suggesting that the plaintiff or any other joint owners of the Property had induced, encouraged or allowed the 2^nd defendant to believe that he had or would enjoy the right of occupying the Property for as long as he wished.  The evidence given by the 2^nd defendant in the Family Court Action also confirmed that he provided the services in return for the monthly payment of $5,000.  The 2^nd defendant did not in reliance upon the alleged belief in providing the services.

49.  The 2^nd defendant’s counsel referred to Greasley v Cooke [1980] 1 WLR 1306 in which the three co-owners of a dwelling house brought a claim of possession against the defendant in the county court.  The defendant (“C”) started to live in the house in 1938 as a living-in maid to the then owner of the house (“F”) who had three sons and one daughter.  C was paid a weekly wages until 1948 when F died.  C cohabited in the house with one of F’s son K since 1946 until K’s death in 1975.  C also looked after F’s daughter who was mentally ill from 1947 until her death in 1975.  When F died, F left the house in equal shares to K and F’s another son O.  When K died, K left his half-share to H, his surviving brother.  O’s half-share interest in the house was succeeded by his daughters, P2 and P3.  H, P2 and P3 were the claimants in that case.  H and O had left the house when they married.  C was the sole occupant of the house since 1975 when K and F’s daughter died.  C’s case was that she had not received payment from any person for her services after the death of F in 1948 and had not asked for payment because she reasonably believed and had been encouraged by K and H to believe that she could regard the property as her home for the rest of her life, and that in the premises the claimants were estopped from evicting her. C counterclaimed for a declaration that she was entitled to occupy the house rent-free for the rest of her life.  The claimants withdrew the possession claim against C at the trial.  C continued to pursue her counterclaim and the claimants took no part by way of defence to the counterclaim.  The county court found that K and H had led C to believe that she would be able to remain in the house but refused the declaration sought as there was no evidence to prove that C had acted to her detriment as a result of her belief.  The county court held that C had failed to discharge her burden of proof.  The English Court of Appeal allowed C’s appeal on the ground that once it was shown that C had relied on the assurances given to her, the burden of proving that she acted to her detriment in staying on to look after the house and family without payment did not rest on her; and in the absence of proof by the claimants to the contrary, the court would infer that her conduct was induced by the assurances given to her and declare that in equity she should be allowed to remain in the house for so long as she wished.

50.  The 2^nd defendant in this case had been paid $5,000 each month when he was providing services to the Father and the plaintiff.  The Father ceased paying the 2^nd defendant only when the Father and the plaintiff moved out from the Property and the 2^nd defendant provided no further services to them.  In other words, the 2^nd defendant had been paid $5,000 each month for the whole period when he was providing services to the Father and the plaintiff on full time basis.

51.  Lord Denning MR stated in Greasley v Cooke at 1311 G to H that:-

“It is sufficient if the party, to whom the assurances is given, acts on the faith of it – in such circumstances that it would be unjust and inequitable for the party making the assurance to go back on it: see Moorgate Mercantile Co Ltd v Twitchings [1976] QB 225 and Crabb v Arun District Council [1976] Ch 179, 188.”

52.  In the case before me, there was no evidence showing that from August 2006 to July 2007 when the 2^nd defendant was providing the services, the plaintiff or any other co-owners of the Property had induced or encouraged the 2^nd defendant to believe that he would be allowed to remain in the Property for so long as he wished.  As no assurances from the owners of the Property were shown, no reliance on such assurances could or could have been shown by the 2^nd defendant.  The case of Greasley v Cooke does not assist the 2^nd defendant.

53.  The plaintiff said that in the Family Court action, the 2^nd defendant had given evidence in the witness box stating that he did not have any interest in the Property and that he would move out from the Property. (See para 14 of P’s 1^st Affirmation)  Such evidence was not disputed by the 2^nd defendant in his two affirmations subsequently filed.  This showed that the 2^nd defendant had not formed any expectation that he would be allowed to live in the Property indefinitely and he did not provide services to the Father and the plaintiff in reliance upon such expectation.

54.  I reject the 2^nd defendant’s contention that he was entitled to occupy the Property for an indefinite period because of his services provided to the Father and the plaintiff.

Payments of government rates, management fees and repair contributions

55.  The 2^nd defendant’s counsel submitted in D’s 2^nd Skeleton that before the 2^nd defendant was requested to leave the Property, he had already made substantial contributions to the maintenance of the Property in the belief that he could keep residing therein.

56.  The 2^nd defendant stated in para 4 of Zhou’s 2^nd Affirmation that:-

“(4) 最後，本人在取得單程証後，亦已經在本物業居住至今，而我亦一直負責支付差餉及管理費，直到2013年年頭才沒有交。其間，我亦曾支付大廈的維修費用－2011年8月8月 [sic] ($4,901.00 [sic])；2011年10月24日($16,835.00)；2011年9月19日($22,447.00)；2011年11月16日($16,835.00)；2013年3月20日($20,000.00)；2013年3月20日($2,100.00)。總數為$82,308.00元。現附上該維修費的副本－見(周4)。”

57.  The 2^nd defendant did not state when he had started paying government rates and management fees for the Property.  He seemed to suggest that he had been paying these expenses since he lived in the Property in 2002.

58.  The plaintiff did not dispute that the 2^nd defendant had paid the government rates, management fees, repair contributions and repair costs for the Property but seemed to suggest that the 2^nd defendant only started paying these expenses since 1 August 2007 although the plaintiff did not expressly say so.  In para 17 of P’s 3^rd Affirmation, the plaintiff stated that:-

“The 2^nd Defendant’s occupation of the said property [the Property] from 1 August 2007 to present, which was about 8 years, has already enjoyed a total monetary rental value of around HK$1,584,000 (HK$16,500 x 12 x 8 years). The alleged expenses of HK$82,308 was incomparable to the total rental value of more than 1 million rental value of the said property throughout these 8 years.”

59.  In making the above statement, the plaintiff had not taken into account that the 2^nd defendant had also paid government rates and management fees for the Property.  According to the demand for rates produced by the plaintiff, the government rates for the Property were $1,054.50 for each quarter in 2013, ie $351.50 per month.  The plaintiff said that management fees for the Property were $500 per month. Although it was unclear whether the 2^nd defendant had paid the government rates and management fees for the Property from 2002 to 31 July 2007, this uncertainty did not affect my findings.

60.  The 2^nd defendant’s counsel referred to Plimmer and anor v The Mayor, Councillors, and Citizens of the City of Wellington [1884] 9 App Cas 699 in which the appellants’ lessor had in 1848 erected a wharf on the land concerned, with the permission of the Government, and in 1855 a jetty.  In 1856, at the request and for the benefit of the Government, the appellant’s lessor incurred large expenditure for the extension of the jetty and for the erection of a warehouse.  In subsequent years, the Government used, paid for, and, with the consent of the appellant’s lessor, improved the said land and works.  The Privy Council held that the appellant’s lessor had to be deemed to have occupied the ground from 1848 under a revocable licence to use it for the purposes of a wharfinger and that by virtue of the transactions of 1856 such license ceased to be revocable at the will of the Government, whereby the appellant’s lessor acquired an indefinite right to the jetty for the purposes of a wharfinger.

61.  In the Plimmer case, Sir Arthur Hobhouse set out the relevant principles at 710-711 by referring to the judgment of Lord Kingsdown in Ramsden v Dyson as follows:-

“The law relating to cases of this kind may be taken as stated by Lord Kingsdown in the case of Ramsden v Dyson (1). The passage is at page 170:-

‘If a man, under a verbal agreement with a landlord for a certain interest in land, or, what amounts to the same thing, under an expectation created or encouraged by the landlord that he shall have a certain interest, takes possession of such land with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord and without objection by him, lays out money upon the land, a Court of Equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v Mighell (2), and, as I conceive, is open to no doubt. … If, on the other hand, a tenant being in possession of land, and knowing the nature and extent of his interest, lays out money upon it in the hope or expectation of an extended term or an allowance for expenditure, then, if such hope or expectation has not been created or encouraged by the landlord, the tenant has no claim which any Court of Law or Equity can enforce.  This was the principle of the decision in Pilling v Armitage (1), and, like the decision in Gregory v Mighell (2), seems founded on plain rules of reason and justice.”

62.  In this case, it was not the case of the 2^nd defendant that the plaintiff or any of the other joint owners had requested him to pay the expenses alleged to have been paid by him. No evidence had been adduced to show that the 2^nd defendant’s expectation to continue to occupy the Property was created or encouraged by the plaintiff or his co-owners and that 2^nd defendant incurred these expenses upon the faith of such promise or expectation.  As deposed by the plaintiff in para 14 of P’s 1^st Affirmation to which the 2^nd defendant had not disputed in his affirmations subsequently filed, the 2^nd defendant had in the Family Court Action stated in his evidence that he would move out from the Property and returned the Property to its owners.  This showed that the 2^nd defendant clearly knew the nature and extent of his interest in the Property as a bare licensee.  He knew that the permission for him to occupy the Property might be terminated at any time.  Borrowing the words of Lord Kingsdown: If the 2^nd defendant laid out money upon the Property in the hope or expectation of an extended term or an allowance for expenditure, then, if such hope or expectation had not been created or encouraged by the plaintiff or his co-owners, the 2^nd defendant had no claim which any Court of Law or Equity could enforce.

63.  The 2^nd defendant’s counsel also referred to Inwards v Baker [1965] 2 QB 29 to contend that equity would protect the 2^nd defendant’s licence from being revoked in this case.  In Inwards v Baker, the son was encouraged by his father in 1931 to build a bungalow on his father’s land.  The son did expend money to build the bungalow on his father’s land and went to live in the bungalow thereafter in the expectation and belief that he would be allowed to remain there for his lifetime or for so long as he wished.  His father visited him from time to time.  His father died in 1951 without having made any binding contractual arrangement or promise as to the son’s occupation or its duration. Under the father’s will made in 1922, the land was vested in trustees for the benefit of persons other than the son.  In 1963, the trustees brought proceedings for possession of the bungalow in the county court.  The county court made an order for possession.  The English Court of Appeal in allowing the son’s appeal held that where a person expended money on the land of another in the expectation, induced or encouraged by the owner of the land, that he would be allowed to remain in occupation, an equity was created such that the court would protect his occupation of the land, and the court had power to determine in what way the equity so arising could be satisfied.  In that case, the Court of Appeal held that the son’s expenditure of his money on the land of his father, in the expectation, induced or encouraged by his father and that the son would be allowed to remain in occupation for as long as he desired.

64.  Inwards v Baker did not create a new head of relief in equity.  It confirmed the principle stated in the Plimmer case.  Lord Denning MR in his judgment in Inwards v Baker stated at 36F to 37B that:-

“We have had the advantage of cases which were not cited to the county court judge – cases in the last century, notably Dillwyn v Llewelyn and Plimmer v Wellington Corporation. This latter was a decision of the Privy Council which expressly affirmed and approved the statement of the law made by Lord Kingsdown in Ramsden v Dyson. It is quite plain from those authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitle him to stay. He has a licence coupled with an equity.”

65.  Lord Denning MR further explained the principle at 37C to G as follows:-

“… the court can look at the circumstances and see whether there is an equity arising out of the expenditure of money. All that is necessary is that the licensee should, at the request or with the encouragement of the landlord, have spent the money in the expectation of being allowed to stay there. If so, the court will not allow that expectation to be defeated where it would be inequitable so to do. …

… It is an equity well recognised in law.  It arises from the expenditure of money by a person in actual occupation of land when he is led to believe that, as the result of that expenditure, he will be allowed to remain there.  It is for the court to say in what way the equity can be satisfied. … ”

66.  It can be seen that not all expenditure of money on the licensor’s land will attract intervention of equity.  The following elements have to be presented before equity will intervene:-

(1) the licensee had spent money in the expectation of being allowed to stay;

(2) the money was spent at the request or with the encouragement of the licensor; and

(3) it would be inequitable to defeat the licensee’s expectation.

67.  As pointed out above, there was no evidence that the plaintiff or any of the other co-owners of the Property had induced or encouraged any expectation on the part of the 2^nd defendant of having the right to occupy the Property.  There was no evidence showing that the plaintiff or his co-owners had requested or encouraged the 2^nd defendant to pay those expenses.  No evidence had been adduced to show that the plaintiff or his co-owners had knowledge of the repair contributions or repair costs when they were incurred.  All repair contributions paid to the Incorporated Owners of the Property and other repair costs paid by the 2^nd defendant were paid after the 2^nd defendant gave evidence in the Family Court Action that he would move out from the Property.  The two sums of repairs costs (ie $20,000 and $2,100) were paid by the 2^nd defendant on 20 March 2013 after the Letter was issued to the defendants (including the 2^nd defendant) requiring them to return possession of the Property to its owners.  The 2^nd defendant did not make such payments upon an expectation to have the right to continue to occupy the Property.  Furthermore, the works done stated on receipts produced by the 2^nd defendant were “室內石屎結構連油漆 (連工包料) 工程費” and “安裝坐廁連洗手盆人工費”.  These works were done for the benefits of the 2^nd defendant when he was occupying the Property and did not amount to a detriment. (See Bostock v Bryant [1990] 2 EGLR 101)   

68.  The 2^nd defendant had been occupying the Property rent free for more than six years since August 2007.  The plaintiff put the market rental of the Property at $16,500 in 2013. (See para 17 of P’s 3^rd Affirmation)  The plaintiff produced an advertisement in respect of a similar property in the same building (ie Fat Cheong Building) found on internet in support of his rental valuation of the Property.  I do not accept that such advertisement was sufficient proof of the alleged market rental.  The demand for government rates exhibited to P’s 3^rd Affirmation stated the rateable value of the Property was $84,360 as at 2013.  I note that the rateable value of a property stated on rates demand will likely fall behind the rising rental market in Hong Kong in recent years.  If I adopt the Property’s rateable value as its market rental, I am stating the Property’s rental value at the low side.  Even with this understated rental value, I am satisfied that the value of free accommodation enjoyed by the 2^nd defendant from 2007 to 2013 still far exceeded the expenses paid by the 2^nd defendant.  The 2^nd defendant had already had sufficient satisfaction for the expenses paid by him and was not entitled to further relief.  (See Sledmore v Dalby [1996] 72 P&CR 196, Watts v Storey [1984] 134 NLJ 631, E & L Berg Homes Ltd v Grey [1980] 1 EGLR 103)

69.  If the 2^nd defendant had the expectation of occupying the Property indefinitely because of the expenses paid, such expectation was unreasonable expectation in view of the nature and extent of the alleged detriment and it would not be inequitable in the circumstances of this case to see such unreasonable expectation being defeated.

70.  I do not see that making the payments claimed has conferred any interest in the Property on the 2^nd defendant or entitled him to continue to occupy the Property.

The Family Court Judgment

71.  The 2^nd defendant argued that the Family Court Judgment had awarded $3,552,000 out of the Father’s estate to the plaintiff for the plaintiff’s whole life maintenance.  In Zhou’s 1^st Affirmation, the 2^nd defendant stated that:-

“4. 上述家事法院案件FCMC 233/2010的判決書 [the Family Court Judgment] 中，法官因應原告人是註冊業主，但又不想影響我繼續在此物業居住，已經在周迺熾 [the Father] 的遺產中撥出港幣3,552,000.00元交給原告人作為另外租用居所和今生的全部生活費用。見附件(周2) 判詞副本中之94及95段。

5. 基於上述論點，原告人沒有立即占有權 (immediate right to possession)，所以法理上無權要求收回物業自住。”

72.  In para 3 of Zhou’s 2^nd Affirmation, the 2^nd defendant stated that:-

“(3) 由於在2010年的案件FCMC 233/2010 [the Family Court Action] 的訴訟中，本案原告人已接受了法院的安排，在去世的父親的遺產中獲得了300多萬港元，包括其今生及往後的在外租住和全部的生活費用。由於法院已就原告人在外居住的租金作出合適的安排。所以，本人是真誠地相信，我及家人是可以在這個物業繼續居住。”

73.  Paras 94 and 95 of the Family Court Judgment stated that:-

“94. Although no information had been provided as to the financial resources of Kin [the plaintiff], I do not think he has significant resources in view of his mental illness except that he is one of the registered owners of the Electric Road Property [the Property]. However, I consider that he cannot reside there for the rest of his life because Zhou [the 2^nd defendant] is now occupying the same unless either a legal action is taken to evict him or he moves out voluntarily.

95. I note that D1 [Chow Sin Kim (“CSK”), another sister of the plaintiff not being a co-owner of the Property] was not cross-examined by Mr Wang [counsel representing the 2^nd defendant’s mother in the Family Court Action and representing the 2^nd defendant in this Action] relating to the alleged Kin’s monthly expenses for $18,500. As a generous interpretation approach shall be adopted in this case, I accept D1’s suggested-figure of $18,500 as Kin’s monthly expenses. Regarding the appropriate multiplier, I adopt 16. Hence, the need of Kin is $3,552,000 (i.e. $18,500 X 12 X 16).”

74.  The 2^nd defendant’s counsel submitted in D’s 2^nd Skeleton that the 2^nd defendant’s belief that he would not be evicted for no reasons had been further fortified by the substantial allowance given to the plaintiff in the Family Court Action on the basis that the plaintiff would not reside at the Property for the rest of his life and that the 2^nd defendant had never been requested to leave the Property until the said allowance was granted to the plaintiff.

75.  It can be seen that in the above quoted paragraphs of his judgment, the learned Deputy Judge did not award $3,552,000 or any sum at all to the plaintiff out of the Father’s estate.  The learned Deputy Judge was considering financial needs of other possible applicants under the Inheritance (Provision for Family and Dependants) Ordinance (the “IO”) when he dealt with the 2^nd defendant’s mother’s application in the Family Court Action.  The plaintiff had not made any application under the IO.  Nowhere in the Family Court Judgment had the court awarded any sum to the plaintiff.  I do not see that the Family Court Judgment would have precluded the plaintiff from exercising his rights as one of the registered owners of the Property rendering him to have “no immediate right of possession” to the Property as contended by the 2^nd defendant.  I also do not see that the Family Court Judgment would have conferred any interest in the Property to the 2^nd defendant or granted a right of occupation to the 2^nd defendant.  In fact, none of the plaintiff and the 2^nd defendant was a party to the Family Court Action (other than the 2^nd defendant acting as next friend for his mother).

76.  Mr Wang in D’s 2^nd Skeleton made the following submissions:-

“Unconscionability

5. The Plaintiff denied having received any part of the award by the Court from his younger sister Chow [CSK]. Unfortunately, there is no explanation from him why he received nothing from his younger sister Chow. Though he had not given any evidence in the proceedings FCMP No.233 of 2010, Chow described him as suffering from serious mental problem and could not even look after himself.

6. However, it is clear that the present action of the Plaintiff is assisted by Chow and the award to the Plaintiff is retained by her as well. Unfortunately, there is no explanation from Chow why she did not use the award to provide accommodation to the Plaintiff.

7. Justice shall demand at least some explanations either from the Plaintiff or Chow. It is unconscionable to allow them to retain the benefit of the award on one hand but resile from their original position to regain the possession of the captioned premises [the Property] on the other hand.

8. In Pennington v Waine [2002] 1 WLR 2075, Arden LJ said, at para 64 of the judgment, that:-

“There can be no comprehensive list of factors which makes it unconscionable for the donor to change his or her mind: it must depend on the court’s evaluation of all the relevant considerations.”

9. In the circumstances and in particular of the unexplained whereabouts of the provisions awarded by the Court for the future accommodation and personal needs of the Plaintiff, there is unconscionable enrichment obtained by Chow vis-à-vis the Plaintiff.”

77.  Mr Wang was the counsel representing the 2^nd defendant’s mother in the Family Court Action when that proceeding was conducted by the 2^nd defendant as the next friend of his mother.  He should well know that the court had not actually awarded any sum to the plaintiff in the Family Court Action.  I am surprised to see that Mr Wang would pursue argument along this line in this case.

78.  The Family Court Action was brought in the name of the 2^nd defendant as next friend for his mother against the plaintiff’s sister CSK, for a lump sum equivalent to half of all dispositions made by the Father to CSK as donee within 6 years prior to the date of death of the Father and against the Intended Personal Representative of the Father’s estate for a lump sum equivalent to half of the net estate of the Father upon his death.  The dispositions referred to were transfers of the Father’s shares to CSK by a deed of gift dated 21 March 2007. (See para 4 of the Family Court Judgment)  Under the Father’s will, the Father bequeathed the entire residuary estate to the plaintiff, the plaintiff’s mother and the plaintiff’s two whole-blood sisters (including CSK).  The uncle of the Father was appointed the sole executor of the Father’s estate but as at the trial of the Family Court Action, no one had applied for the probate of the will. (See para 21 of the Family Court Judgment)  It turned out that the Family Court Action only dealt with the aforesaid depositions which belong wholly to CSK in the absence of any application under the IO.

79.  In the Family Court Action, the court awarded $2,500,000 as reasonable financial provision for the 2^nd defendant’s mother pursuant to the provisions of the IO.  The said sum was paid out from the depositions made by the Father to CSK.  I do not see how the decision in the Family Court Action which required CSK to pay out to the 2^nd defendant’s mother part of the gift made to her by the Father could be an “unconscionable enrichment” obtained by CSK vis-à-vis the plaintiff or would render the plaintiff’s claim herein for possession of his property unconscionable.  I also do not see the relation between the plaintiff and the 2^nd defendant in this proceeding resembled in any way a donor and donee relation as suggested by Mr Wang. 

80.  I see no merits in Mr Wang’s above contention.

The Father’s declaration in 1985

81.  In Zhou’s 2^nd Affirmation, the 2^nd defendant referred to the Declaration made by the Father in 1985.  The 2^nd defendant stated in para 2 of his said affirmation that:

“(2) 我現向法庭確認，本人的父親，周迺熾曾在1985年8月12日在廖陳林律師行的廖瑶珠律師的見證下，作出聲明「本人的兒子，周大略，單程來港定居，照顧他及妻子的晚年生活。」當我到達後，父親亦會自願送贈予本案爭拗的物業予本人。現附上一份該聲明的副本－見(周3) 。”

82.  In the Declaration exhibited to Zhou’s 2^nd Affirmation, the Father stated that:-

“現因我与妻子均年紀老邁，精神体力日漸衰退，日常起居，渴望有親人在身边照顧一切，為此特向有關當局申請兒子周大略 [the 2^nd defendant] ，… 单程來港定居，照顧我倆晚年生话，當其单程抵港後，本人自願將上述物業 [the Property] 贈予兒子周大略，懇請有關部門早給予批准。”

83.  It can be seen that the Father did not transfer any interest in the Property to the 2^nd defendant by virtue of the Declaration.  He only indicated his wish as at 1985.  It is noted that the Father had in 1993, ie 8 years after making of the Declaration, transferred the Property by way of gift to the plaintiff, his sister and their mother.  If the Father had in 1985 wished to transfer the Property to the 2^nd defendant, he had changed his mind latest by 1993 when he transferred the Property to the plaintiff and others.  If the gift is incomplete, “the donor has a locus poenitentiae and can change his mind at any time.  No question of conscience enters into the matter, for there is no consideration, and there is nothing dishonest on the part of an intending donor if he chooses to change his mind at any time before the gift is complete.” (per Jenkins LJ in In re McArdke, Decd [1951] Ch 669 at 677)

84.  By the time the 2^nd defendant arrived in Hong Kong in 2002 under a one-way permit, it was already 17 years after the Father had made the Declaration and 9 years after the Father had transferred the Property to the plaintiff and his co-owners.  The 2^nd defendant did not contend that the Father still had any interest in the Property after the transfer. (See para 42 of the Family Court Judgment)  If the 2^nd defendant had any claim under the Declaration, it would be a claim against the Father or his estate.  The Declaration did not create a right for the 2^nd defendant to occupy the Property.

85.  I do not see that the Declaration assists the 2^nd defendant in resisting this claim of the plaintiff.

Other issues

86.  The 2^nd defendant’s counsel submitted that the fact that there was no evidence to suggest that the licence to the 2^nd defendant was terminable gave rise to a favourable inference the same was irrevocable.  He referred to Millenium Productions Ltd v Winter Garden Theatre [1946] 1 All ER 678 to support this contention.

87.  In the Millenium Productions case, the licence concerned was a contractual licence.  The claimant was granted a licence to use the owner’s theatre for 6 months at a weekly rent of £80 with an option to continue the licence for a further 6 months at an enhanced rent.  On the expiration of the two periods of 6 months, the claimant was to have the option of further continuing the licence of the theatre at a weekly rent of £300.  The claimant might terminate the licence by one month’s notice and it had to give 6 weeks’ notice to exercise the aforesaid options.  The licence commenced on 6 July 1942.  On 24 April 1943, the claimant exercised the option to prolong the licence beyond 6 July 1943.  On 11 September 1945, the owner purported to determine the licence.  The English Court of Appeal held that upon the true construction of the terms of the contract in question, the owner had no power to revoke the licence. 

88.  At common law, a licence, unless coupled with an interest, was always revocable.  The learned author of Megarry and Wade noted that this simple position had been modified by: (1) revocation restricted by contract; (2) the rule that no revocation of a licence acted on; and (3) revocation restricted by estoppel. (See 34-007 to 34-013 of Megarry and Wade)  The Millenium Productions case is an illustration of revocation restricted by contract.  The case was a ruling on construction of contract.  It does not support the aforesaid general proposition advanced by the 2^nd defendant’s counsel.  The licence of the 2^nd defendant in this case was not a contractual licence but a bare licence.  A bare licence can be revoked at any time on reasonable notice.

89.  Mr Wang submitted in D’s 2^nd Skeleton that “it is undisputed evidence in the previous proceedings FCMP No.233 of 2010 [the Family Court Action] that upon the moving out of the captioned premises [the Property], their father [the Father] had specifically told the 2^nd Defendant that he could keep staying at the captioned premises.”  The 2^nd defendant in his two affirmations filed herein did not say so.  The Family Court Judgment did not record such “undisputed evidence”.  Even if the Father did say such thing to the 2^nd defendant, it did not assist the 2^nd defendant’s case.  The Father was no longer owner of the Property as at 2007 when the Father and the plaintiff moved out from the Property.  The Father had no proprietary interest in the Property as at 2007.  It was stated in the Family Court Judgment that:-

“42. It is not disputed by the Plaintiff [the 2^nd defendant as next friend for his mother] that the Electric Road Property [the Property] is not part of the net estate as the same having been assigned to Madam Woo [the plaintiff’s mother], Chi [the plaintiff’s sister] and Kin [the plaintiff] back in 1993. It cannot be caught by section 12 of the IO. Fortunately, the Plaintiff never alleges that Madam Woo, Chi and Kin hold the Electric Road Property on trust for the Deceased [the Father]. So, it is not an issue for me to determine.”

90.  It can be seen that the 2^nd defendant well knew that the father no longer had interest in the Property.  In such case, I do not see that the alleged representation made by the Father (even if it had been made) might assist the 2^nd defendant’s case.

91.  Mr Wang further submitted in D’s 3^rd Skeleton that the plaintiff by asking through CSK in the Family Court Action for financial provisions for accommodation for the rest of his life, had explicitly promised to the court that he would not reside in the Property.  He further submitted that such promise should in a family dispute context amount to a representation to the 2^nd defendant that the 2^nd defendant could stay in the Property during his life time.

92.  The plaintiff and the 2^nd defendant were not parties to the Family Court Action.  It was the 2^nd defendant’s case that the plaintiff did not give evidence in the Family Court Action. (See para 5 of D’s 2^nd Skeleton)  In such case, the plaintiff had not made the alleged representation to the Court by himself.  I do not see that the case ran by CSK to resist the 2^nd defendant’s mother’s application would amount to representation made by the plaintiff to the court.  In fact, in the Family Court Judgment, the learned Deputy Judge stated at para 94 that he considered that the plaintiff could not reside in the Property for the rest of his life unless either a legal action was taken to evict the 2^nd defendant or the 2^nd defendant moved out voluntarily.  Such remarks did not support the 2^nd defendant’s contention that the plaintiff had made the alleged representation to the court in the Family Court Action that the 2^nd defendant could stay in the Property during his life time.

93.  Mr Wang further submitted that it was upon such representation that the 2^nd defendant made various payments in capital nature to the Incorporated Owners of the Property.  Such contention was not supported by the 2^nd defendant’s evidence.  In Zhou’s 2^nd Affirmation, he stated at para (3) that:-

“由於法院已就原告人在外居住的租金作出合適的安排。所以，本人是真誠地相信，我及家人是可以在這個物業繼續居住。”

94.  The 2^nd defendant’s evidence was that he thought the court had made provisions for the plaintiff’s accommodation which led him to believe that he could continue to live in the Property.  The 2^nd defendant’s said belief was not caused by any representation made by the plaintiff (whether to the court or to the 2^nd defendant) but by his own understanding of the Family Court Judgment.

95.  The total amount of repair contributions paid by the 2^nd defendant to the Incorporated Owners of the Property was $60,208 (ie $4,091 in August 2011, $16,835 in October 2011, $22,447 in September 2011 and $16,835 in November 2011).  Even if the 2^nd defendant had made such payments upon the belief that he would be allowed to continue to live in the Property, the 2^nd defendant had been living in the Property rent free for more than two years since the Family Court Judgment.  The 2^nd defendant had been more than adequately compensated for his said payments.  Equity would not call for the court to confer a right for the 2^nd defendant to stay further in the Property.  I reject this contention of Mr Wang.

96.  In D’s 3^rd Skeleton, Mr Wang criticized the plaintiff giving no explanation for why possession of the Property had to be regained.  If the 2^nd defendant had established that his expectation to occupy the Property for as long as he wished was encouraged by the plaintiff and an equity was created by proprietary estoppel, the court will have to determine the extent of such equity and to balance the position of the plaintiff and his needs against the 2^nd defendant’s need to occupy the Property.  This was done by the court in Sledmore v Dalby. However, I have found that such expectation of the 2^nd defendant was not encouraged or induced by the plaintiff or the other co-owners of the Property.  It is not necessary for an owner of a property to explain the reasons for asking for possession of his own property against someone who is no longer permitted to occupy the property.  A proprietor of a property is ex debito justitiae entitled to possession of his property unless it can be said against him that he has raised such an equity that it is no longer open to him to assert his legal or proprietary title.  This is not the case here.

97.  The 2^nd defendant’s counsel quoted Megarry & Wade in D’s 1^st Skeleton to submit that a licence once acted upon could not be revoked.  Such principle does not apply to all types of licence.  It simply does not apply to the case before me.  Sir Arthur Hobhouse had illustrated how this principle would work in the Plimmer case at 714 as follows:-

“where a landowner permits his neighbour to execute works on his (the neighbour’s land), and the licence is executed, it cannot be revoked at will by the licensor. If indefinite in duration, it becomes perpetual. Their Lordships think that the same consequence must follow where the licence is to execute works on the land of the licensor, and owing to some supervening equity the licence has become irrevocable.”

98.  The 2^nd defendant’s counsel also referred to Armstrong v Sheppard & Short Ltd [1959] 2 QB 384 to support his aforesaid contention.  In that case, the claimant owned a small strip of land on which the defendants had entered and constructed a sewer for the discharge of sewage and effluent.  The court found that the claimant had orally informed the defendants that he did not object to the construction of the sewer but when he so said, he was not aware that he was the owner of the strip of land or that he had a right to object to the construction of the sewer.  The English Court of Appeal held that:-

“if A gives authority to B for the doing of an act on A’s land, and the act is done and completed, then, whatever be the strict description of the authority, whether it be called a permission or a licence, it is, generally speaking at any rate, too late for A, who gave the authority, to complain of it. And that will go to this extent – that a man may by such means extinguish a proprietary right: for example (to quote an instance from the cases), if I, having an easement of light, permit another to come and build a wall up against my window, so as to extinguish the easement, if the wall is built and completed, that may well be the end of it, and I cannot complain of the infringement of my ancient light or require the wall to be taken down.” (per Lord Evershed MR at 399 to 400)

99.  This case before me bears no resemblances to cases to which the aforesaid principle applied.  In those cases, the licensee had either incurred substantial expenditure at the request of the licensor to build on the licensor’s land or the licensee had carried out construction works on his own land relying on the licensor’s express representation of no objection to such works.  In view of the nature of the building work or the extent of expenditure incurred, the court found that it was inequitable if the licensors were allowed to revoke the licences after the licensees had completed the works.  It was in such circumstances that the court held that the licence once executed could not be revoked.  A licence is executed when the licensed acts are specific works and such works have been completed by the licensee. Where the licensed acts from their nature lie in repetition, such licence by its nature cannot be said to have been executed and this rule does not apply. The licensed act claimed by the 2^nd defendant was continuous occupation of the Property which by its nature was repetitious and could not be said to have been executed.  The 2^nd defendant’s licence was not the same kind of licence concerning the Plimmer case or the Armstrong case.

Whether the 2^nd defendant’s licence to occupy the Property had been revoked or terminated?

100.  In P’s 1^st Affirmation, the plaintiff stated that:-

“Although the 2^nd Defendant remained at the said property [the Property] after our father and I have moved to live in Tseung Kwan O on July 2007, neither my father nor I have ever given any permission by licence or by consent for the 2^nd Defendant to continue to use the said property.” (Para 11)

“By a letter dated 22 November 2011 [the Letter], my previous solicitors, Messrs Fairbairn Catley Low & Kong wrote to the Defendants to inform them to return the possession of the said property to us because they had no interests on the said property and they occupied the said property without licence or consent,” (Para 17)

“On or around April 2012, my sister Chow Sin Kim [CSK] made a phone call to the 2^nd Defendant and has directly asked him to move out from the said property and the 2^nd Defendant simply refused.” (Para 18)

“I then had no choice but applied for legal aid to commence the present legal action to recover the said property application on 6 June 2012. In the same time, my younger sister Chow Sin Kim also approached the relatives in Mainland China who were the whole-blood brothers and sisters of the 2^nd Defendant to help us to ask the 2^nd Defendant to move away from the said property. The relatives in Mainland China were willing to help us but the 2^nd Defendant still refused to our requests for him to leave the said property.” (Para 19)

“At all material times, neither one of the other two joint tenants of the said property nor I has ever given any consent or licence for the 2^nd Defendant or other persons to continue to use the said property.” (Para 21)

101.  The above were not disputed by the 2^nd defendants in his two affirmations subsequently filed in this proceeding.

102.  In P’s 3^rd Affirmation, the plaintiff said that:-

“From 30 July 2007 to 31 July 2009, I was told by my father that he personally has asked the 2^nd Defendant several times to move out from the concerned property but the 2^nd Defendant simply has ignored him. During that time, my father has asked his other relatives from Mainland China to ask the 2^nd Defendant to move away but he also ignored.” (Para 14)

“After the judgment of the said Family Court Action, on or around April 2012, I had made a phone [sic] to the 2^nd Defendant at night and the 2^nd Defendant answered the phone. Over the phone, after I had introduced myself to the 2^nd Defendant, I explained to the 2^nd Defendant that he has illegally occupied our family’s property and I asked him to move out from the said property. The 2^nd Defendant over the phone replied that he was very upset about the judgment given in the said Family Court Action because he could not receive any shares from the estate. The 2^nd Defendant told me over the phone that he would appeal against the judgment and the 2^nd Defendant further asked me not to create any further troubles on him. After this telephone conversation, I have tried to seek help from the whole-blood brothers and sisters of the 2^nd Defendant to ask the 2^nd Defendant to move out but the 2^nd Defendant simply ignored all such requests.” (Para 16)

103.  The 2^nd defendant did not seek to file further affidavit evidence to rebut the plaintiff’s aforesaid evidence.  Mr Wang submitted in D’s 3^rd Skeleton that:-

“7. It is misleading either to say the father of the 2^nd Defendant had made the said request. On the other hand, it is undisputed evidence in the previous proceedings FCMP No.233 of 2010 [the Family Court Action] that upon the moving out of the captioned premises [the Property], their father had specifically told the 2^nd Defendant that he could keep staying at the captioned premises. However, he also told the 2^nd Defendant that Chow [the plaintiff’s younger sister] would like him returning back to China and promised to remit monies to him every month.”

104.  Although Mr Wang’s above submission was not supported by evidence stated in the 2^nd defendant’s two affirmations filed herein, the 2^nd defendant’s case put forward by Mr Wang was that the Father had asked the 2^nd defendant to return to China.  Whether the request was made in the name of the plaintiff’s younger sister, or in the name of the plaintiff, or in the name of the Father was irrelevant.  The fact was that the Father had told the 2^nd defendant to return back to China which in effect would have him moved out from the Property.

105.  It was not the plaintiff’s case that he had given any notice to revoke or terminate the 2^nd defendant’s licence when the plaintiff and the Father moved out from the Property in July 2007.  Even if the licence granted to the 2^nd defendant to occupy the Property was a bare licence, I do not accept that it was revoked or terminated by the mere fact that the plaintiff and the Father moved out from the Property in late July 2007.  Such act of the plaintiff was not inconsistent with a bare licence for the 2^nd defendant to continue to occupy the Property.  I find that when the plaintiff and the Father moved out from the Property in July 2007, the 2^nd defendant was still occupying the Property under the licence granted to him previously in 2002.

106.  The 2^nd defendant’s counsel had in D’s 1^st Skeleton submitted that the plaintiff’s evidence showed that the 2^nd defendant was not asked to move out even when the relationship between the Father and the 2^nd defendant had allegedly deteriorated.  Instead the plaintiff and the Father moved out from the Property.  These facts were not in dispute.  He further submitted that there was no positive termination or revocation of the 2^nd defendant’s licence when the plaintiff and the Father moved out and there was no complaint regarding the occupation of the Property by the 2^nd defendant until November 2011 when the plaintiff’s former solicitors issued the Letter to the defendants.  This was different from Mr Wang’s aforesaid submission contained in D’s 3^rd Skeleton when Mr Wang agreed that the Father had requested the 2^nd defendant to return back to China.

107.  The 2^nd defendant’s counsel further contended that the Letter did not seek to terminate or revoke any licence but was written on the assumption that the occupation of the 2^nd defendant was unauthorized when it was not.  Mr Wang in D’s 2^nd Skeleton submitted that the plaintiff had never demanded the 2^nd defendant to leave the Property after the plaintiff moved away with the Father in 2007 and the licence, permission or consent given to the 2^nd defendant had never been revoked.  With respect, I do not agree.  The Letter was clearly an act on the part of the plaintiff to revoke or terminate the 2^nd defendant’s licence to occupy the Property.  The Letter read as follows:-

“本行為該物業 [the Property] 之業主，周善建先生 [the plaintiff] 的代表律師。

根據本行客户的指示及有關土地查册紀錄，該物業之業權屬本行客户、胡寶芝女士及周善之女士擁有。 閣下在2011年3月23日於區域法院勞杰民暫委法官席前亦親口承認 閣下在該物業上並無任何權益。

按本行客户的指示， 閣下至今仍未交出該物業之空置管有權。 閣下在未有租約或授權或本行客户之許可的情況下繼續佔用該物業已構成非法侵入本行客户之財產的行為，閣下需就此賠償本行客户的所有損失 (包括但並不限於租值補償金) 。

請 閣下在2011年12月22日或之前與本行之鄭律師聯絡 (電話：2532 5317) ，以便安排交出該物業之空置管有權。

請注意，倘若 閣下在2011年12月22日或之前仍未與本行聯絡安排遷離該物業，並交出該物業之空置管有權及承認責任；本行客户將就上述事宜入稟法庭，向 閣下追討該物業的空置管有權及一切有關法律程序所衍生之訟費；以及因 閣下未能或拒絕交出本物業之空置管有權而導致本行客户所蒙受之一切損失及損害。

本行客户保留其一切權利。”

108.  The Letter clearly stated that the 2^nd defendant and other occupiers had no rights to occupy the Property and had to move out from the Property latest by 22 December 2011.  The 2^nd defendant was occupying the Property under a bare licence.  The licence had been revoked or terminated by the Letter.  One month notice was given for the defendants to vacate the Property.

Mental condition of the plaintiff

109.  In Zhou’s 1^st Affirmation, the 2^nd defendant referred to the plaintiff as suffering from mental illness when the 2^nd defendant arrived in Hong Kong in 2002.  In a letter dated 29 August 2013 from the 2^nd defendant’s solicitors to the plaintiff’s solicitors, the 2^nd defendant’s solicitors queried that the plaintiff was likely a mentally incapacitated person incapable of managing and administrating his property and affairs and hence was incapable of conducting this proceeding.  The plaintiff’s solicitors in their letter dated 2 September 2013 disputed that the plaintiff was mentally incapacitated.  The plaintiff’s solicitors produced a letter dated 1 September 2013 issued by Dr Lai Siu Kee certifying that the plaintiff had sound mind and his mental functions were satisfactory and that he was fit to make his own decision.

110.  At the beginning of the hearing on 6 September 2013, Mr Wang drew my attention to the above but Mr Wang confirmed that the 2^nd defendant had no application to make.  As there was no application from either party placed before me and in view of the letter issued by Dr Lai, I do not consider that it is necessary for this court to go any further into this issue. 

Conclusion

111.  I find that the 2^nd defendant was occupying the Property on a bare licence.  The licence had been revoked on 22 November 2011.  The plaintiff is entitled to possession of the Property.  The matters raised by the 2^nd defendant do not constitute grounds to resist the plaintiff’s claim.  I also do not see that any of these matters ought to be tried or further investigated at a trial.

112.  As stated by Fung J in Aegi Capital Limited v Wai Sik Yin Felicia (unrep, HCMP 851/2009, 23 June 2010) that:-

“16. If the issue (on facts or law) is seen on analysis to be capable of determination in favour of the plaintiff only, then it is proper for the court to exercise the power conferred on it by O.113 and determine the matter however vigorous the contest may have been (see Vipac Engineers & Scientists Ltd v Karpovich [1989] 2 HKC 538; Matilda & War Memorial Hospital v Henderson [1997] 1 HKC 509).”

113.  I am satisfied that the issues in this case on analysis as set out above are capable of determination only in favour of the plaintiff.  I grant the plaintiff’s application and make an order in terms of the originating summons.

114.  This is an application under O.113 and the plaintiff does not seek costs in the originating summons.  I make an order nisi that there be no order as to costs between the parties for this proceeding. As the 2^nd defendant is legally aided, the 2^nd defendant’s own costs shall be taxed in accordance with the Legal Aid Regulations.

115.  The above costs order nisi shall become absolute after 14 days from the date of this decision unless application is received from any party during this 14 days period to vary the same.