MAN KING CHUEN AND OTHERS v. INTERNATIONAL COLLEGE HONG KONG HONG LOK YUEN ASSOCIATION LTD (formerly known as HONG LOK YUEN INTERNATIONAL SCHOOL ASSOCIATION LTD) AND ANOTHER

HCA 299/2011

[2025] HKCFI 2704

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 299 OF 2011

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BETWEEN

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DECISION

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A. Introduction

1.  I refer to the Judgment I handed down on 29 May 2023[1] (the “Judgment”). I use the same terms and abbreviations as used therein.

2.  After trial, and for the reasons set out in the Judgment, I ordered that D1 and D2 shall deliver to P1 to P7[2] vacant possession of the Subject Lot (the “Order for Possession”), and pay P1 to P7 damages/mesne profit on the rate as specified therein.

3.  This hearing concerns the enforcement of the Order for Possession.

4.  Before me there are 2 summonses. One is dated 8 October 2024 (the “1^st Summons”), and the other one 4 June 2025 (the “2^nd Summons”, and collectively the “Summonses”). Both are taken out by D1.

5.  By the 1^st Summons, D1 seeks in summary:

(a) §1 - An injunction restraining P8 from seeking to enforce the Order for Possession in favour of P1 to P7 or otherwise seeking to gain vacant possession of Portion B and Portion C;

(b) §§2 and 3 - D1 to pay damages in substitution of an injunction against entrance or use of Portion B and Portion C (“Damages in Substitution”), and direction on the mechanism for future adjustment of the amount;

(c) §4 - Whilst Damages in Substitution as adjusted from time to time are being paid:

(i) there be a stay of execution of the Judgment, and that;

(ii) Ps and any other owners of the Subject Lot be restrained from taking any enforcement action for possession of Portion B and Portion C, or otherwise seeking to prevent access or use by D1 of the same.

6.  The 2^nd Summons is stated to be further or alternative to the 1^st Summons. D1 seeks thereby that time for it to deliver up vacant possession of Portion B and Portion C be extended to 31 August 2027 inclusive or other time the court deems fit.

7.  Ms Frances Lok SC leading Mr Douglas Clark (Solicitor Advocate) appeared for D1. Mr CY Li SC leading Mr Jeremy Kwong appeared for Ps.

B. Relevant affirmations

8.  Before me, in support and opposition respectively, there are 3 affirmations by Mr Derek James Pinchbeck (“Mr Pinchbeck”, and “Pinchbeck Aff/1” to “Pinchbeck Aff/3”), and 1 affirmation by P8. Mr Pinchbeck is the Head of the School.

C. Development since Judgment

9.  The following matters that occurred post-judgment are relevant.

10.  In relation to appeal:

(a) D2 had once lodged an appeal against the Judgment. It has since been withdrawn;

(b) D1 has never appealed, though it had filed a respondent notice in D2’s appeal, to the effect that if D2’s appeal was to be allowed, the Judgment against D1 should also be set aside. That has gone away together with the withdrawal of D2’s appeal;

(c) The Judgement is now final.

11.  In respect of P8:

(a) P8 in 2009 obtained consents from the Tai Po District Office to purchase from P1 to P6 their interests in the Subject Lot. The consents were valid for 6 months. No purchase pursuant to the consents materialized;

(b) Via 2 assignments of 9 April and 20 May 2024 (the “P8 Assignments”), P8 has acquired from P1 to P7 their interests in the Subject Lot. He paid in total HK$3,500,000. He says that the transactions are not arm’s length ones, as he is “a related party to P1 to P7” given the fact that they are all members of the Man clan coming under the same ancestral tong;

(c) P8 is hence and from 20 May 2024 the sole registered owner of the Subject Lot;

(d) Upon application made by P8 to a Master on an ex parte basis, an Order was made on 20 August 2024 joining P8 as the 8^th plaintiff. D1 had sought to challenge the joinder on the basis that P8 ought not to have made the application ex parte. The challenge was heard by another Master, who formed the view that any procedural irregularity would have made no difference as the matter had subsequently been fully argued before him (when the challenge was heard), who confirmed the joinder;

(e) I immediately add that despite the joinder of P8, Mr Li accepts that the correct parties to enforce the Order for Possession under the Judgment remain P1 to P7.

12.  Compliance of the Judgment:

(a) No issue arises out of the monetary part of the Judgment;

(b) D2 has delivered vacant possession of Portion A;

(c) D1 remains in occupation of Portions B and C. There had been negotiations between the parties, some open and some on a without prejudice basis, for arrangements to allow D1 to remain in occupation of the same. P8 had taken an active role in the negotiations, even before he purchased and unified the interests in the Subject Lot;

(d) The negotiations had not been fruitful – hence the Summonses.

D. Parties’ stances clarified

13.  During the hearing, and upon this Court’s requests for clarification, Ms Lok confirmed that:

(a) Despite §§1 and 4 of the 1^st Summons, D1 would not be seeking any injunction;

(b) As Ps have confirmed that they are not seeking any Injunction, D1 would not be seeking any order for Damages in Substitution;

(c) In respect of D1’s application for a stay under §4 of the 1^st Summons:

(i) Whilst this is not clear on the face of the summons, D1 is not seeking any permanent stay;

(ii) Whilst the Court has power to order a stay based on the Rules of the High Court (and in particular O.1B, r.1(2)(e) and O.45, r.11) and inherent jurisdiction, D1, in making its application for stay, seeks to invoke this Court’s inherent jurisdiction;

(d) Comparing the stay sought in the 1^st Summons with the extension sought in the further/alternative 2^nd Summons:

(i) The jurisdictional bases for this Court to grant any stay or extension are different;

(ii) But whilst that is so, and assuming that the end date or event of any stay coincides with the deadline for the extension, the practical effects of the 2 are similar. Further, Ms Lok informed this Court that if this court is to grant a stay with an end date or event, D1 would not simply sit on the stay, but would, like the position of an extension, equally take steps in preparation of vacation;

(e) In relation to the terms for any extension, whilst that is not made clear on the face of the 2^nd Summons, D1 proposes and accepts the condition of monthly payment in the sum of HK$30,000 to P8 for its occupation of Portion B and Portion C.

14.  On Mr Li’s part on behalf of Ps:

(a) Mr Li confirmed (though he submitted that that should have been clear from parties’ prior conduct and communications) that Ps are not seeking any injunction, so that any application for Damages in Substitution by D1 was misconceived;

(b) As I have mentioned in the Judgment, part of the Old Block encroached upon the Subject Lot. The encroachment is only on a small portion of Portion C (see Annexure A to the Judgment). But whilst the encroachment may be small, the evidence received during the trial was that if the School is to deliver vacant possession of the Subject Lot to Ps, given the encroachment, the Old Block would have to be demolished or re-built;

(c) I refer to §§32, 33 and 270 of the Judgment, wherein I recorded the confirmation given by Mr Edward Chan SC, leading counsel then acting for P1 to P7, that given the long lapse of time, P1 to P7 would no longer be seeking any injunction requiring reinstatement. I have refused the related relief;

(d) Mr Li has confirmed that Ps would not be seeking delivery up of the part of Portion C which is currently occupied by the Old Block.

E. Whether a stay

15.  I focus upon the court’s inherent (as opposed to the Rule-based) powers to order a stay of execution of judgment.

16.  The court indeed retains an inherent jurisdiction, in suitable cases, to make orders staying execution. But as explained by Ma CJHC (as the former CJ then was) in Credit Lyonnais v SK Global Hong Kong Ltd [2003] 4 HKC 104 at §3, whilst it would not be right to set out any exhaustive list of relevant factors for the exercise of that power:

it is important to bear in mind that the jurisdiction will only be activated where an injustice would otherwise be caused, to prevent abuse, to preserve the dignity of the court or to facilitate the administration of justice.

The observations of Rogers VP in that same case at §21 are to the similar effects, that:

In relation to judgments which have been regularly obtained and in respect of which there is no challenge as to their validity or appeal pending, it may be said that, in broad terms, the court has jurisdiction to stay enforcement of its judgments. It is difficult to imagine circumstances in which that power should be exercised short of there being shown to be some abuse. Whilst it would not be appropriate in a judgment of this nature to try to define all the circumstances in which a court may exercise its power to stay enforcement of a valid judgment, I would for present purposes, say that for that to happen justice must require it and there must indeed be very special circumstances.

17.  Ms Lok has referred me to Batistatos v RTA (NSW) (2006) 226 CLR 256. In that case, and in the context of considering whether a civil action should be dismissed or permanently stayed or struck out as an abuse of process, the High Court of Australia made reference to Rogers v The Queen (1994) 181 CLR 251 wherein McHugh J at 286 observed that:

Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.

In seeking a stay, Ms Lok informed me that she relies on categories (1) and (2).

18.  The context in which the concept of “abuse” may become relevant varies. I have reservation whether the context of considering whether to stay a pending action is equally applicable to the context of depriving an already successful party of the fruit of the judgment they have obtained.

19.  But in my view, this is not a case for me to dwell on the precise meaning of abuse. Because for the following reasons, I am of the view that this is simply not a suitable case for this court to exercise the jurisdiction to order a stay:

(a) The main plank of Ms Lok’s submissions, as summarised at §18(a) of her written submissions, is that:

the Court’s machinery (being execution proceedings) are being used as a means of oppression, to coerce the School into yielding to a demand of exorbitant rental payment 25 times over the assessed market rate.

(b) But P1 to P7 are the successful parties. They are entitled to enjoy the fruit of the Judgment. They are entitled to utilize the enforcement process for that purpose;

(c) P8 has now unified the interests in the Subject Lot. He may want to maximize his investment. He may want to be a tough bargainer so as to take full advantage of his bargaining position. I heed the level of rent he has demanded, and Ms Lok’s submissions made in that regard with reference to the valuation evidence I received in the course of the trial. But I am not here to judge P8’s values or approaches. I may not agree with him on those. But it is quite another thing for this Court to say that what he has done constitutes abuse, or that the court’s machinery is being use for illegitimate purpose to oppress;

(d) What is also important is that even if I want to judge his values or approaches, I do not have all the materials to do so:

(i) In her endeavour to make good her submissions on abuse, Ms Lok relies on parties’ communications and conduct in the course of the negotiations for D1’s continuous use of Portion B and Portion C;

(ii) But as I have mentioned above, the negotiations comprise both open and without prejudice communications. Ms Lok can only take me through the open ones;

(iii) Mr Li in his written submissions[3] makes the complaint that the allegations leveled against P8 are extremely unfair, “as the open correspondence (with relevant WP communications excluded) do not represent the full picture”. In my view, that complaint is a justified one;

(iv) In the course of the hearing, I raised this point with Ms Lok. Mr Li on behalf of Ps said that they are prepared to waive privilege. Ms Lok took instructions. Having done so, she told me that the School did not want to conceal anything, but that the School, being a school with its own approval process, could not without having gone through that process give the consent;

(v) I understand the School’s difficulty, though I expressed concern as to why the issue had not been considered earlier;

(vi) I am not drawing any adverse inference against the School. But on the materials in front of me, though possibly and at best marginal, I simply do not have the requisite materials to conclude any abuse, or that the facts of this case have given rise to “very exceptional circumstances” such that this is a “suitable case” for this court to invoke its inherent jurisdiction to order a stay;

(vii) In my view, it has not been demonstrated that justice requires a stay.

20.  I refuse to exercise my inherent jurisdiction to order any stay. D1’s application for a say is refused. The 1^st Summons is dismissed.

F. Extension of time for compliance

F.1. The Court’s discretion

21.  Ms Lok relies on O.3 r.5, r.5(1) of stipulates as follows:

The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by these rules, or by any judgment, order or direction, to do any act in any proceedings.

22.  O.3 r.5(1) covers and applies to extension of time for compliance of final judgment – see the wording of the rule itself, and Re Good Idea International Investment Ltd [2012] 4 HKLRD 186 §8.

23.  The Court’s discretion under O.3 r.5 has been described by Riberio PJ in Astro Nusantara International BV v PT Ayunda Prima Mitra (2018) 21 HKCFAR 118 as being “broad and unrestricted”[4], “a discretion to be exercised in accordance with the requirements of justice in the particular case”[5], and that “the applicable principle in deciding whether time should be extended is to look at all relevant matters and consider the overall justice of the case. A rigid mechanistic approach is not appropriate”[6].

24.  Mr Li has cited to me DBS Bank (Hong Kong) Ltd v Ngai Yim Shing [2005] 2 HKLRD 740 §§17-19 and Two-Way Media Ltd v PCCW Ltd [2022] HKCFI 1103 §5(ii). I have considered them. But they would have to be considered in the light of the elucidation of principles by Riberio PJ in Astro. Further, the facts in those 2 cases are vastly different, the former being whether in the context of an order for possession under O.88, a stay of execution should be granted to an occupant, and the latter being whether extension of time for payment of security for costs should be granted. The differences on facts are of particular importance when the test for the exercise of discretion requires all relevant matters to be looked at so as to consider the overall justice of the case.

F.2. Whether to extend

25.  I have considered all relevant matters in the present case. For the following reasons, and subject to the condition that I will explain, I extend D1’s time for compliance of the Order for Possession until 31 August 2027:

(a) This has to be acknowledged first. P1 to P7 are the successful parties. They have obtained the Judgment, and in particular the Order for Possession. They are entitled to enjoy the fruit of their success. That include selling their interests in the Subject Lot to P8 (or any third party). However:

(i) In context, D1 has been occupying and using Portions B and C openly for more than 40 years. The present action was not commenced until 2011;

(ii) P8 says that D1 had been enjoying Portions B and C for 40 years “rent free, at the expense of P1 to P7”;

(iii) But that is not for P8 to complain. P1 to P7 had delayed in asserting their own interest. D1 has in any event, in compliance of the monetary part of the Judgment, paid mesne profit/damages calculated from February 2005;

(iv) Mr Li submits that Ds have raised no laches as a defence. Whilst that is so, I am entitled to take into account the “substantial and unexplained delay”[7] on the part of P1 to P7 in asserting their title to the Subject Lot, while at the same time acquiescing in Ds’ use and occupation of the same;

(b) P8 has acquired from P1 to P7 their interest in the Subject Lot. He is entitled to enjoy his property right, which the law should respect and protect;

(c) But there is no evidence that P8 can have any profitable use of Portions B and C in the near and foreseeable future other than leasing them to D1:

(i) The Subject Lot is landlocked by lands owned by D2, including partly by the School Land. As I have described in §190 of the Judgment:

the Subject Lot is enclosed by HLY Land, that the HLY Land has been fenced off since sometime in or before 1982 by metal fences, and that electric fences were further installed at certain parts in around 2011 to enhance security. The Subject Lot has in practice been incorporated into, and has been used as, part of the Hong Lok Yuen development that was planned and developed by D2.

(ii) At §34(4)(c) of his written submissions, Mr Li submits that “[t]here is nothing to stop P8 from coming to some mutual arrangement with D2 for access to the Subject Lot”;

(iii) There is no evidence that P8 has approached D2 for such access;

(iv) Also at §34(4)(c) of his written submissions, Mr Li submits that “[t]he Subject Lot is zoned ‘Residential (Group C) 1’”;

(v) Zoning does not however tell us the full picture in relation to the use of the Subject Lot. I have in the Judgment referred to the Grandmax Report #1. Mr Wong noted from the Block Government lease that the Subject Lot “can be used for agricultural purpose only”[8]. In the P8 Assignments, Ps themselves “certified that the Property is a non-residential property within the meaning of Section 29A(1) of the Stamp Duty Ordinance, Cap.117”;

(vi) No evidence has been adduced by P8 as to what steps he has taken to take any advantage of the zoning of the Subject Lot;

(vii) There is in fact no concrete evidence from P8 as to his intended use of the Subject Lot;

(viii) Nor has any evidence been adduced by P8 on D2’s stance and attitude as to his intended use of a piece of land that is entirely within Hong Lok Yuen;

(ix) There is in my view a lot of force in Ms Lok’s submissions that “[t]he only conceivable use of the Lot would be to lease it to the School. The only conceivable purpose of [P8]’s ‘purchase’ of the Lot would be to become the Schools’ landlord”[9];

(d) The School is expected to comply with the Judgment. But to the School’s credit:

(i) It has fully settled the monetary part of the Judgment;

(ii) It has engaged in prolonged negotiations with Ps for the continuous use and occupation of Portions B and C;

(iii) Mr Li has criticized the School for its delay in compliance with the Order for Possession. He has taken me through some of the open correspondence between Ps and the School. He points in particular to a letter from Messrs Rene Hout & Co for Ps saying that “our client is not interested in conducting any further negotiations with your client, as it is now clear that your client is simply employing various tactics to delay surrendering vacant possession”[10];

(iv) On the facts of the case, I am of the view that D1 has been bona fide and genuine in its negotiation with Ps. The School can be forgiven for believing that Ps had been adopting their tactics in negotiating[11]. In fact, as recent as 26 May 2025, the School made a topped-up offer to Ps;

(e) Losing the use of Portions B and C, and adjusting to that loss, are going to be difficult and time-consuming for the School:

(i) I accept that that will be so for the School. In particular I accept the following evidence from Mr Pinchbeck in Pinchbeck/Aff1 at §§41 to 45:

41. The School is a non-profit school and has seen a close to 10% decline in student numbers post-Covid, particularly at the entry levels. If it was to pay the rent demanded, to remain viable, the School would need to increase its fees charged to parents to pay the rent. However, any increase would be subject to the Education Bureau’s approval. The Education Bureau may not allow a large increase in fees. Any increase in fees may result in some parents taking children out of the School, or other parents considering the School for their children to choose other schools, further impacting the School’s finances.

42. As has been found by Mr Justice K Yeung the School will suffer hardship if it has to give up the field. The School was established by [D1] in 1983 and has been in occupation of the field for more than 40 years. It is used as a playground for the children in their break times for sports activities by school children and other community organisations. Many parents have selected the School because of the field.

43. The field is used for community events which add value not just to the culture of the School but to the surrounding areas. The outdoor areas are not just a playing space for the students but a central feature that sets the culture of the School with students using the areas on a daily basis full integrated into their curriculum. Losing access to these areas would radically alter the culture of the School and would likely lead to departure of students and staff for whom they are a major factor in choosing the School as a place to educate their children and to work.

44. Further, the School has invested heavily in developing natural areas including a Mini Forest, Woods areas and outdoor classrooms. The School has won international awards for these areas and the loss of them will mean a major reduction of the School to fulfil its vision of being a leader in outdoor learning. This vision is one of the main draws of the School for new families. We expect that the School’s ability to attract students will be greatly reduced by the loss of the field and outdoor learning areas, which decrease the School’s ability to compete in a competitive market nowadays. Now produced and shown to me marked “DJP-11” are copies of various articles relating to awards won by the School and activities organised by the School.

45. In any event, it will be very difficult for the School to stop using the relevant portion of the subject lot and deliver vacant possession and cease use of the field to the Plaintiffs in a short period of time. The School will need to re-design the field and have construction work done to ensure the much reduced area is a safe place for children to use an play. The only time this can effectively be done is during the summer school holidays which run from mid-June to mid August. The proposed work will need to be put out to tender. At its quickest, this could possibly be done by the 2025 summer holidays but given the need to tender and find contractors most likely the 2026 summer holidays.

(ii) I have considered Pinchbeck Aff/2, and accept Mr Pinchbeck’s evidence on the difficulty the School will face in reconstructing the Playground (except reinstatement of the Old Block, which Ps are not seeking);

(iii) I have considered Pinchbeck Aff/3, and accept his evidence that the School requires time to make orderly surrender. Whilst reinstatement of the Old Block is no longer requested, the works remain very substantial. According to the firm of architects which the School has engaged, the works would include redesigning the sprinkler system underground, disconnecting the sprinklers in the School Field, rerouting the water supply circuits and electricity system, dismantling of the outdoor classroom canopy and certain offices, erecting safety fences, removing and relocating play equipment, relocation of outdoor and landscaping work, relocating of basketball courts, and resurfacing of playground;

(iv) As explained further by Mr Pinchbeck at §§ 9 to 15 of Pinchbeck/Aff3:

9. The works above are extensive; the School needs to engage competent designers, licensed contractors (including specialists like field contractors) and Authorized Persons to handle the projects properly. The School needs to seek approval from the responsible governing authorities including the Education Bureau, Fire Services Department, and Building Authority …

10. All of the works are outdoors, hence delay caused by adverse weather or rain must be factored in.

11. Before the works outlined above can be done, the School has to go through a formal tendering process …

12. There is now produced and shown to me marked “DJP-23” the latest approved School calendar and the draft calendar for the year next. School calendars have to be first approved by the Education Bureau (which generally will be given in early July prior to the commencement of a school year). The construction works are dangerous. They require the use of heavy equipment and building materials will need to be brought on site. It will also be noisy and dusty. In addition, the School is required to conduct police checks on the contractors entering the School premises to ensure safety. The construction works can therefore only be undertaken when the School is not in session.

13. None of the shorter public holidays, Christmas or Easter breaks are long enough to bring the construction projects to completion, especially after having factored in the potential overrun due to adverse weather or contingent factors. The Schools students are small children aged from 3 to 11. It is not viable to have half-finished construction projects ongoing in the campus when the children return to School, for obvious health and safety reasons. Hence the only viable time to complete the projects would be during the 2026 and more realistically the 2027 summer holidays. The exact working days for the contractors can be finalized upon the approval of the School calendars by the ED.

14. In the circumstances, taking into account the time required to complete the construction projects and the need to reduce safety and health hazards to the School children, a realistic time for the School to hand over vacant possession is 31 August 2027. In the worst-case scenario (for example, where a lot of students decide to drop their enrolment), it is when the Current School Lease expires.

15. I understand [P8’s] position to be that the School should have taken the above steps much earlier. I have explained that the School was not commercially savvy enough to realize earlier that [P8] was really demanding a rent over 25 times above the market rate (instead of using it as a negotiation tactic). Moreover, these are very substantial works that not only require time and planning, but are expensive, irreversible and permanent. There are good practical reasons to only take these steps upon the determination of the pending summons …

(v) The significance of the date of 31 August 2027 should be noted. As I have explained in the Judgment, the School Land has been leased by D2 to D1 since 1 September 1983. The current lease runs up to 31 August 2027[12];

(vi) I have considered the submissions and criticisms which Mr Li has made both in his written and oral submissions against the time the School says it needs. But in my view, those submissions ignore the very significant and extensive design, construction, curriculum and cultural change required for an orderly surrender by the School of Portions B and C.

F.3. The condition

26.  Whilst I am of the view that the time for D1 to comply with the Order for Possession may be extended, I at the same time have formed the view that it is only right for D1 to pay P8 for its occupation of the same. So as not to add any unnecessary dispute over the matter, I prefer not to call it any occupation or licence fee. I just call it the “Extension Condition Fee”.

27.  In the course of the hearing, I sought Ms Lok’s assistance on the amount of the Extension Condition Fee should this Court be prepared to grant the extension. She upon instruction proposed the monthly amount of HK$30,000. Mr Li left the amount to this Court.

28.  I order that the Extension Condition Fee shall be in the amount of HK$30,000 per month. The payments shall be made and received via parties’ respective legal advisers, or otherwise as agreed.

F.4. Conclusion

29.  Subject to the payment of Extension Condition Fee from the date of this Decision of HK$30,000 per month (pro rata during the first incomplete month), and subject to the deletion of the words at the end “or any other time the court deems fit”, I grant an Order in terms of §1 of the 2^nd Summons.

30.  I make the following clarifications to avoid any argument. The Order granted is one of extension until 31 August 2027. D1 is not being ordered to occupy till then. D1 is at liberty to arrange earlier compliance, and the Extension Condition Fee shall cease to be payable upon such compliance.

G. Costs

31.  I have dismissed the 1^st Summons. I make a costs order nisi that D1 shall bear the costs of and occasioned by the same, with certificate for 2 counsel.

32.  In respect of the 2^nd Summons, though D1 has been successful, the fact remains that it is seeking the Court’s indulgence in having an extension. I make a costs order nisi that D1 shall also bear the costs of and occasioned by the same, with certificate for 2 counsel.

33.  On the issue of assessment, I do not have full details on the assessment of the costs of the action, and how the overall costs assessment may bear upon the costs of the Summonses. I hence make the order nisi that the costs of the Summonses shall be taxed if not agreed.

34.  Any application for variation shall be made within 14 days by letter to this Court, upon receipt of which papers directions may as appropriate be handed down.