NORMAN GUY DONALD AND ANOTHER v. LI PAK HUEN in his capacity as executor of the estate of LI PAK WING AND OTHERS

CACV 126 & 137/2024, [2026] HKCA 125

On Appeal From [2024] HKCFI 645

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS 126 AND 137 OF 2024

(ON APPEAL FROM HCMP NO 1836 OF 2017)

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JUDGMENT

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Hon Chow JA (giving the Judgment of the Court):

INTRODUCTION

1.  There are before the Court the following matters:

(1)     the Notice of Motion of the 2^nd, 3^rd and 11^th Defendants (collectively “the Applicants”) dated 9 July 2025 (“the Notice of Motion”) seeking leave to appeal the Court’s judgment dated 12 June 2025, by which the Applicants’ respective appeals against the judgment of Madam Justice B Chu (“the Judge”) dated 8 March 2024 were dismissed;

(2)     the Applicants’ summons dated 28 October 2025 (“the Stay Summons”) seeking a stay of execution of the Judge’s orders, upheld by this Court, for possession of, inter alia, various parts of the building erected upon No 15 Robinson Road, Hong Kong (the “Property”) currently occupied by the 3^rd and 11^th Defendants, and sale of the Property (collectively “the Orders”), until the full determination of their application for leave to appeal, and if leave to appeal is granted, until the full determination of their appeal by the Court of Final Appeal; and

(3)     the Applicants’ summons dated 19 November 2025 (“the Amendment Summons”) seeking leave to amend the Notice of Motion as per a draft Amended Notice of Motion (“the Amended Notice of Motion”) annexed to that summons.

2.  On 31 October 2025, the Court granted an interim stay of execution of the Orders pending the determination of the Stay Summons upon certain conditions to be complied with by the Applicants.  Those conditions have been complied with.  Accordingly, execution of the Orders has been stayed pending the determination herein.

3.  On 19 November 2025, the Court directed that the Notice of Motion and the Amendment Summons were to be dealt with together.

4.  The Plaintiffs do not object to the proposed amendments of the Notice of Motion[1]. We shall therefore focus on the Amended Notice of Motion in this judgment.

5.  In the Amended Notice of Motion, the Applicants raise the following question said to be a question of great general or public importance which ought to be determined by the Court of Final Appeal:

“In the case where probate was granted to more executors than one appointed under a will, whether the power to grant a licence to occupy a property (or part thereof) in the estate is exercisable by one such executor, or whether such power must be exercisable jointly by all executors so appointed” (“Question”).

6.  In addition, the Applicants seek to rely on the “or otherwise” limb in s 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap 484, in support of their application for leave to appeal.

DISCUSSION

7.  The basic facts of this case and the Court’s reasons for dismissing the Applicants’ respective appeals are fully set out in the Court’s Reasons for Judgment dated 31 October 2025 (“the CA Reasons for Judgment”), and will not be repeated here.

8.  Under Section 22(1)(b) of the Hong KongCourt of Final Appeal Ordinance, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

9.  It can be seen from the Amended Notice of Motion that the Question is put forward as being relevant to the 3^rd Defendant’s adverse possession claim in respect of that part of the Property referred to as “2/F East Wing”[2] only, but not (i) his adverse possession claim in respect of “1/F West Wing”[3], or (ii) the 11^th Defendant’s adverse possession claim in respect of “3/F West Wing”[4].

10.  There are multiple reasons why leave to appeal in respect of the Question should not be granted.

11.  First, the answer to the Question has no impact on the outcome of the 3^rd Defendant’s adverse possession claim in respect of 2/F East Wing.  As mentioned in the CA Reasons for Judgment, the 3^rd Defendant did not attend the hearing before the Judge for cross-examination, and his evidence (in the form of three affirmations) were thus not admitted by the Judge as evidence.  There was no evidence coming from the 3^rd Defendant, or from any other sources, which proved the necessary ingredients (ie, factual possession and animus possidendi) for his adverse possession claim in respect of 2/F East Wing, and thus his claim must fail in limine.  The Judge was of the view that “[w]ithout any of [the 3^rd Defendant]’s affirmations being admitted, there was simply no evidence from him, ie the claimant, to support his case for adverse possession”, and “as for the requisite intention to possess, animus possidendi, there was simply no evidence of [the 3^rd Defendant’s] intention was to exclude the world at large…”[5].  This Court agreed with the above views of the Judge[6].  Thus, the Question is academic in so far as the present case is concerned.

12.  Second, the contention that the power to grant a licence to occupy an immovable property belonging to the estate of a deceased person is exercisable only by all executors appointed under a will (or all appointed executors who have proved the will) acting jointly, but not by one of them acting severally, is a new point which was never advanced either before the Judge or in the Court of Appeal.  Hence, there was no discussion of this point of law in the CFI Judgment or the CA Reasons for Judgment.  The practice of the Court of Appeal is not to grant leave to appeal for new points (not restricted to new points involving fact-sensitive issues) that has not been canvassed in the substantive appeal: see Norman Guy Donald and Others v Lee Michael Chak Chuen and Others [2024] HKCA 403, at §27.  It has also been said by the Appeal Committee of the Court of Final Appeal in Secretary for Justice v Timothy Wynn Owen KC (2022) 25 HKCFAR 288, at §25, that “it is only in the most exceptional circumstances that the Court of Final Appeal will entertain an appeal on a new issue, not fully explored and argued below, when it involves a major development of the law” even where the new point is not barred by the state of the evidence bar.

13.  Further, the contention now advanced by the Applicants is contrary to the stance taken by the 3^rd Defendant’s former counsel at the trial.  As noted at §47(1) of the CA Reasons for Judgment, in the 3^rd Defendant’s closing submissions to the Judge dated 24 August 2023, at §41, it was stated that “… upon the death of the personal representative (Mother, in this case), the licence granted by her is automatically terminated by operation of law.  It is noted that executors can act severally, and thus Mother’s granting of licence does not without more mean that Pak Leung (or vice versa) has granted a licence” [emphasis added].

14.  The Applicants argue that there is no “new point”, because it has always been the 3^rd Defendant’s case that his occupation was not pursuant to any permission of the Estate, and if a licence is really to be considered, it would be a licence granted by Madam Chau in her personal capacity.  It is said that this point was also argued on appeal, but was erroneously dismissed as being inconsistent with his position at trial[7].  In the Amended Notice of Motion, the Applicants further argue that the Court misunderstood the 3^rd Defendant’s submissions at trial (which was that any licence granted by Madam Chau could only have been granted in her personal capacity), and refer to two passages in the transcript of the 3^rd Defendant’s former counsel’s oral closing submissions before the Judge[8].  Three things may be said about this argument.

(1)     At §29 of the Plaintiffs’ Skeleton Submissions dated 29  May  2025 for the substantive appeal before this Court in CACV 137/2024, the Plaintiffs expressly referred to the written closing submissions of the 3^rd Defendant’s former counsel at trial (Mr Chan, SC) quoted at §13 above[9], and submitted that “[the 3^rd Defendant]’s former counsel accepted in their written closing submissions that the licence from Madam Chau to [the 3^rd Defendant] was granted in her capacity as a personal representative of the Estate”.  The 3^rd Defendant’s former counsel in the appeal (Mr Yeung and Mr Fong) did not refute this submission made by the Plaintiffs.

(2)     The statement made in Mr Chan’s written closing submissions for the 3^rd Defendant quoted at §13 above clearly supported the Plaintiffs’ aforesaid submission.  There would be no point in saying that “executors can act severally” unless the submission being advanced before the Judge was that the licence granted by Madam Chau was one granted in her capacity as executrix.  Insofar as the two passages in the oral closing submissions of Mr Chan now relied upon by the Applicants are concerned:

(a)     At p121 of the transcript of the trial, Mr Chan said the following:

“Secondly, of course, we do rely on the law to say that the executrix can act all by herself. If she died, then automatically any licence she granted is terminated. That is springing from the principles that executors, unlike trustees, do not have to act jointly, with the exception of conveyancing, my Lady, because of the PAO.

So really, one really started with this, that since the death of the father we have been living with the mother who, to say the least, has got a life interest to stay in the premises.  So the mother herself has got two hats.  But since the mother’s death why must one assume that she allowed my client to stay with her not because of her life interest, but because she is an executrix purporting to act on behalf of the estate…” [underlining added]

The word “since” in the passage is probably a mistake, and should read “prior to”. Anyhow, what Mr Chan submitted was nothing more than that one should not assume that Madam Chau was acting in her capacity as an executrix of the Estate when she granted a licence to the 3^rd Defendant, in view of the fact that she wore 2 hats (ie as executrix and as someone with a life interest to stay in the premises).  The position put forward was at best equivocal.

(b)     At pp141-142 of the transcript of the trial, Mr Chan said the following:

“Now, if one actually use the artificial assumption that it must be granted by the executors, can the executors simply grant licences to person lived in the house rent free and without any payment? Well, one must remember that the complaint made against Daisy for her removal of executors, a very serious complaint, was that she stayed in the premises with his – her children rent free. That was a sin of the executors. Why should one assume that such would be the action of the executors and not that of the mother?

Bearing in mind that, of course, the executors can all grant licences, but why should one really assume that they should be granting licence in breach of their duty as executors for which this court held that they should be removed?

So, so far as my client is concerned, if he were able to stay because he stay in the flat together with someone with a life interest there, obviously he can’t have the necessary possession.  But if a licence is really to be considered, it must be granted by his mother in her capacity as being the life tenant who are able to live in the premises, in the house.  And upon her death, then in our submission in accordance with the Ho Hang Wan case, there must be a termination of the licence, my client become the trespasser.  We submit that there was and has never been any evidence of any licence granted by the executors.”

Had the above passage been brought to the Court’s attention in the appeal, the Court would have considered the Plaintiffs’ submission more closely, and might have come to the view that the 3^rd Defendant’s stance at the trial on this matter was conflicting or equivocal.  However, it would have no impact on the Court’s conclusion at §47(3) and (4) of the CA Reasons for Judgment.

(3)     Even if it was the 3^rd Defendant’s position at the trial that any licence granted by Madam Chau was granted in her personal capacity (which would be a matter of fact), it remains the case that the point of law now sought to be raised in the Question is a new point that was never advanced at the trial or in the appeal, and contrary to the stance taken by the 3^rd Defendant’s former counsel at the trial, who plainly accepted that one of several executors acting by himself has the power to grant a licence to occupy land belonging to the estate of a deceased person.

15.  Third, the Judge found as a fact that the 3^rd Defendant “has been occupying 2/F East Wing with the knowledge and permission of the executors”[10].  This finding of fact was upheld by this Court after consideration of the evidence in the case: “The Judge took those and other matters into account in coming to the conclusion that [the 3^rd Defendant] had failed to demonstrate that his occupation and possession of Apartment 2E was without the knowledge and permission of the executor(s) of the Estate.  In our view, the Judge was entitled to place reliance on the fact that the Estate had paid for the utilities and other outgoings over the years as one of the factors against [the 3^rd Defendant’s] contention that his occupation of Apartment 2E was without the knowledge and permission of the executors of the Estate …”[11]. We see no basis for the 3^rd Defendant to seek to overturn this concurrent finding of fact in the intended final appeal.

16.  Fourth, the proposition now put forth by the Applicants is not supported by authorities.  The Applicants state, at §6.1 of the Amended Notice of Motion, that:

“In general, a representative represents the estate for all purposes. Where there is more than one personal representatives, they have joint and several authorities to act: William, Mortimer & Sunnucks (22^nd edn.), §§6-02, 31-25, 46-69.”

17.  The Applicants contend, however, that there is an exception to this general rule in the case of a licence to occupy realty.  The basis for this exception, according to the Applicants, is that (i) in relation to a sale or conveyance of realty, the executors only have joint authority to act, and (ii) the power to grant a licence to occupy a property in the estate “is an act which is not administrative in nature but is akin to the disposal, sale or conveyance of realty”[12].

18.  In the UK, the exception to the above general rule formerly applied only to a conveyance of land (but not chattels real) prior to 1926.  It was extended by s 2(2) of the Administration of Estates Act 1925 to a conveyance of real estate (which was defined as including chattels real[13], ie leaseholds), and further extended by s 16 of the Law of Property (Miscellaneous Provisions) Act 1994 to a contract for the conveyance of real estate: see Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (22^nd edn), §§6-03, 46-69 & 46-70; and Megarry & Wade, The Law of Real Property (10^th edn), §13-147.

19.  In Hong Kong, the position is governed by s 54 of the Probate and Administration Ordinance, Cap 10, which is derived from s 2(2) of the Administration of Estates Act 1925, and states, so far as relevant, as follows:

“(1) No conveyance of immovable property of a deceased person dying after the commencement of this Ordinance shall be made without the concurrence of all the personal representatives of the deceased or an order of the court.

(2) Notwithstanding subsection (1), where probate is granted to one or some of two or more persons named as executors, whether or not power is reserved to the other or others to prove, any conveyance of the immovable property may be made by the proving executor or executors for the time being, without an order of the court, and shall be as effectual as if all the persons named as executors had concurred therein.

(3) Save where subsection (1) or (2) applies, where there are several personal representatives the powers of all may, in the absence of any direction to the contrary in the will or grant of administration, be exercised by any one of them.

…”

20.  It is clear from s 54(3) of the Probate and Administration Ordinance that the exception to the general rule that personal representatives may act severally applies only to a conveyance of immovable property.  Whilst the expression “conveyance” is not defined in the Probate and Administration Ordinance, it is a well understood legal concept when used in the context of immovable property.  On any view of the matter, a bare licence to occupy an immovable property is not a conveyance of the property.

21.  The Applicants have not been able to refer the Court to any authority which held that a bare licence to occupy an immovable property belonging to the estate of a deceased person should be treated as a conveyance of the immovable property so that the power to grant such a licence can only be exercised by all executors or personal representatives acting jointly.

22.  In all, we are not satisfied that leave to appeal should be granted to the 3^rd Defendant in respect of the Question, because it is not a question involved in the appeal which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

23.  It is the well-settled practice of this Court to defer to the Appeal Committee of the Court of Final Appeal to consider whether leave to appeal ought to be granted under the “or otherwise” limb, and we see no good reason to depart from this practice in the present case.

24.  It follows, from our conclusion that leave to appeal should be refused, that the Stay Summons should also be dismissed.

DISPOSITION

25.  An order is made in term of §1 of the Amendment Summons.  The Amended Notice of Motion and the Stay Summons are dismissed.  The Plaintiffs shall have the costs of the Notice of Motion, the Stay Summons and the Amendment Summons, to be summarily assessed.  Having regard to the history of these proceedings and the fact that the leave application is completely unmeritorious, we order that the Plaintiffs’ costs shall be assessed on an indemnity basis.

26.  We have considered the Plaintiffs’ Statement of Costs dated 5 December 2025, and the Applicants’ List of Objections to the Plaintiffs’ Statement of Costs dated 12 December 2025, and summarily assess the Plaintiffs’ costs in the sum of HK$500,000.

27.  We further make an order that any part of the costs incurred by the Plaintiffs in relation to the Notice of Motion, the Stay Summons and the Amendment Summons which cannot be recovered from the Applicants should be paid out of the Estate of Li Sing Kui, deceased on a trustee basis.

28.  For the avoidance of doubt, the interim stay of execution of the Orders granted by this Court on 31 October 2025 lapses or expires upon the handing down of this judgment.