CHEUNG LAI MUI, the executrix of the estate of CHEUNG PING KAU and the administratrix of the estate of CHEUNG PING FUK (alias CHEUNG BING FUK) v. CHEUNG WAI SHING AND OTHERS

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FACV No. 1 of 2021

[2021] HKCFA 19

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 1 OF 2021 (CIVIL)

(ON APPEAL FROM CACV NO. 107 OF 2017)

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JUDGMENT

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Chief Justice Cheung:

1.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Gummow NPJ.

Mr Justice Ribeiro PJ and Mr Justice Gummow NPJ:

2.  There has reached this Court litigation commenced by the Appellant (“P”) in 2012.  It concerns family disputes respecting two parcels of land located in the Sha Kok Mei Village (“the Village”), Sai Kung, in the New Territories.  The Cheung family are indigenous inhabitants of the Village.  The land law in the New Territories in 1898 and its subsequent development provides the background to the issues in this litigation and has been traced in Winfat Enterprises (HK) Co Ltd v A-G [1983] HKLR 211, and on appeal [1985] 1 AC 733 at 744.

3.  The first dispute relates to the parcel (“the Disputed Land”) being Lot 1101 in Demarcation District 221.  The principal issues in this Court concern equitable doctrine and remedies, in particular the existence and incidents of proprietary estoppel in favour of the Third Respondent (“D3”).  

4.  The second dispute concerns Lot 774 on which a house is erected (“House 774”).  House 774 is about two minutes walking distance from the Disputed Land.  The First and Second Respondents (“D1” and “D2”) together hold a 1/3 undivided share in the land.  P was born in 1960 (adopted in 1961).  She grew up in House 774 and lives there with her daughter and granddaughter on the ground floor. She derives rental income from the other two floors.  The trial judge ordered that P pay to D1 and D2 1/3 of that rental income from 1997 (the year of the death of P’s father) and 1/3 of the mesne profits from 1997 in respect of the ground floor.

Question 1

5.  It is convenient to deal first with the Disputed Land and to begin with the family history which lies behind the litigation.

6.  Cheung Tak Ming died in 1934.  He was owner of the Disputed Land, along with other land in the Village.  His three sons, Wan, Kau and Fuk, became registered co-owners of the Disputed Land.  The eldest, Wan, died in 1999.  D1 and D2 are respectively his son and daughter.  They together are registered owners as to 1/3 of the Disputed Land, in succession to their father.  D1 is the father of D3.  D3 was born in 1971 and is the sole great grandson of Cheung Tak Ming.  This was a matter of much significance from the traditional viewpoint of Wan, Kau and Fuk.

7.  The second son, Kau, died in 1997.  P is his adopted daughter, executrix of his will under a grant made in 1998 and beneficiary of his estate with her daughters.

8.  The third son, Fuk, had a physical disability, never married and suicided on a date between September 1991 and May 1992.  He died intestate and P is administratrix of his estate under a grant made as late as 2006.  By operation of s 4(8) of the Intestates’ Estates Ordinance, Cap 73, Fuk’s assets passed to his brothers Wan and Kau who survived him.

9.  In this litigation P sought, among other relief, an order for sale of the Disputed Land under the Partition Ordinance, Cap 352.  After a 16 day trial Wilson Chan J dismissed her claims.  He found P not to be a credible or reliable witness, whereas D3 was a credible witness whose evidence was consistent with the objective circumstances. 

10.  On the counterclaim by D3, his Lordship declared that D3 is the sole beneficial owner of the Disputed Land and P is a constructive trustee holding 2/3 interest therein for D3.

11.  The inconclusive outcome of the appeal by P to the Court of Appeal, [2020] HKCA 148, is described in the Reasons for the Determination of the Appeal Committee (Ribeiro, Fok, Cheung PJJ) given on 18 December 2020 ([2020] HKCFA 41).  The Court of Appeal (Lam VP, Cheung and Au JJA) set aside the judgment of the trial judge and remitted certain issues for determination in accordance with its legal analysis, but not on a retrial.  Leave was granted by the Appeal Committee on several questions of law.  Question 1 concerns proprietary estoppel and the position of D3 with respect to the Disputed Land.

12.  Before turning to the text of that question it is appropriate to consider the findings at trial respecting what was identified as the “Common Understanding” and the reliance of D3 upon it.

13.  The Disputed Land is situated in front of Lot 1099 where the family of D3 lived since 1974 and he grew up.  The evidence of D3, accepted at trial was that since the 1970’s there had been a “Common Understanding” among the elders of the family, in particular Wan, Kau and Fuk, that D3 could use and own the Disputed Land and build a house there when he became an adult at the age of 18.  The Common Understanding did not include an assurance that by way of testamentary disposition the three brothers would bequeath the Disputed Land to D3.

14.  D3 is a professional construction contractor and builder.  Knowing about the Common Understanding, when D3 was a teenager in the 1980’s he had started carrying out works to build stone walls to surround the Disputed Land.  In 1991/1992 D3 applied substantial physical effort to heighten the stone walls and install underground electricity cables connected to the lights at the entrance gate.  He also installed a new gate to prevent strangers entering the Disputed Land and maintained the trees, plants and storage house there.  Significantly, in March 1997, Wan and Kau, the surviving brothers, signed a consent statement to facilitate the intended application by D3 to the District Lands Office of Sai Kung for permission to build a house on the Disputed Land.  In this Court, D3 submits that by 1999 when the last of the three brothers died he had already acted upon the Common Understanding and sustained significant detriment.

15.  In about 2002, D3 erected a one storey building, referred to in the pleadings as “Structure B” and in 2003 a second building (“Structure A”). In September 2003, with his wife and infant son, D3 commenced living on these premises and in the following years D3 made further improvements to the Disputed Land.  He estimated that from the early 1990s he spent at least HK$2 million on construction and improvement works to the Disputed Land and did so in reliance on the Common Understanding. 

16.  The trial judge accepted that the case for proprietary estoppel had been established by D3.

17.  To displace that outcome, P submits that (i) the activities of D3 from 1992 to 1999 do not constitute the requisite “substantial” detrimental reliance (ii) no “equity” had arisen in favour of D3 at the time of the death of Wan, the last of the three brothers, in 1999 and (iii) the activity of D3 after 1999 cannot supply the necessary detrimental reliance because this must occur before the death of the last of the authors of the Common Understanding. 

18.  D3 responds that, contrary to (i), the activities of D3 from 1992 to the death of Wan in 1999 did constitute sufficient detrimental reliance, and this Court should accept that submission and uphold D3’s case on proprietary estoppel giving rise against P to a constructive trust over the Disputed Land as the measure of relief.

19.  Further, and in the alternative, D3 submits that the determinative question is whether D3 had suffered sufficient detriment when P, as personal representative of the estates of Kau and Fuk, sought in 2012 to resile from the Common Intention.

20.  Before considering those submissions, several observations of a general nature are appropriate. The first concerns the approach of equity in such property disputes as those concerning undue influence and, here, proprietary estoppel.  In Muschinski v Dodds (1985) 160 CLR 583 at 616 Deane J emphasised that, while “general notions of fairness and justice” inform “the content and application of equity”, relief by way of constructive trust should not reflect “the formless void of individual moral opinion”.  Nevertheless,in Jenyns v Public Curator (Q) (1953) 90 CLR 113 at 119, Dixon CJ, McTiernan, Kitto JJ emphasised the “comprehensive view” taken by a court of equity of connected circumstances which influence determination upon “the real justice of the case”.  Recently, Lady Arden has emphasised that equity operates by “principles” rather than “rules”, to produce a “fair result” (Manchester Ship Canal Co Ltd v Vauxhall Motors Ltd [2020] AC 1161 at [63]-[64]).

21.  In the current, 21^st, edition of Hanbury and Martin “Modern Equity” (Glister and Lee eds.) §30-022, it is said that the doctrine of proprietary estoppel has developed rapidly in the past half century.  That may be so, as illustrated by the numerous cases decided in Hong Kong, the United Kingdom and Australia to which the parties to this appeal referred the Court.

22.  But the foundation decision of Dillwyn v Llewelyn^[1]was decided in 1862.  There, a father, having made an incomplete gift of land to his son for the express purpose of the son building a house on the land, thereafter assented to and approved of the son proceeding with the building; the father’s conduct after making the incomplete gift, with the expenditure by the son thereby induced, supported the Court of Chancery obliging the father’s executors to convey the land to the son.

23.  Put shortly, the requirements of equity to recognise and give relief based on proprietary estoppel are (a) a representation or assurance made to the claimant (b) reliance thereon by the claimant and (c) detriment to the claimant in the consequence of that reliance.[2]

24.  More specifically, in Gillett v Holt [2001] Ch 210 at 225, 232, Robert Walker LJ (as Lord Walker then was) emphasised that (i) “the doctrine of proprietary estoppel cannot be treated as subdivided into three or four watertight compartments”, (ii) “the quality of the relevant assurances may influence the issue of reliance”, (iii) “reliance and detriment are often intertwined”, (iv) “the fundamental principle that equity is concerned to prevent unconscionable conduct permeates all elements of the [proprietary estoppel] doctrine” and (v) detriment is “not a narrow or technical concept”; it need not consist of expenditure of money or other quantifiable financial detriment and may consist of manual labour.  His Lordship added “In the end the Court must look at the matter in the round”; there is “a broad inquiry as to whether repudiation of an assurance is or is not unconscionable in all the circumstances.”

25.  With respect to (v) in Clarke v Meadus [2010] EWHC 3117 (Ch) at [86] Warren J emphasised that “where promises are made over a period of years, it is necessary to stand back and look at the claim in the round.”

26.  With respect to (iii), and to later statements by Robert Walker LJ in Jennings v Rice [2002] EWCA Civ 159 at [50], Lady Arden (then Arden LJ) in Suggitt v Sugitt [2012] EWCA Civ 1140 at [44] observed that there need not be “a relationship of proportionality between the level of detriment and the relief awarded”; the question on an appeal is whether the relief granted was “out of all proportion to the detriment which the claimant has suffered?”

27.  It may be confusing to use the term “cause of action” in this context.  Rather there are two steps involved.  First, once the elements of the proprietary estoppel are established an equity arises; secondly the court then must decide the most appropriate form of relief, and may have regard to the circumstances as they then exist.[3]

28.  The facts of the present case give rise to another temporal question.  When are the representations spent so that subsequent reliance upon them of itself cannot complete the accrual of an equity in the claimant?  This issue is presented by Question 1.

29.  Question 1 on which the Appeal Committee granted leave asks, with respect to the claim by D3 based on proprietary estoppel and the building of the two structures in 2002 and 2003,

“Whether there can be proprietary estoppel arising from an oral promise relating to [an] interest in land binding on the estate of the promisor in the absence of any or any reasonable detrimental reliance by the promisee prior to the death of the promisor; and in such case whether detrimental reliance of the promisee only after the death of the promisor can give rise to proprietary estoppel against the estate of the deceased promisor overriding the interest of the successors or beneficiaries to the estate?”

30.  In Webster v Ashcroft [2012] 1 WLR 1309 at [27], it was said “Normally, the promisee would not bring proceedings unless and until the [promisor’s] personal representative refused to give effect to the equity.  In Gillett v Holt [2001] Ch 210, the promisor made inconsistent dispositions in his own lifetime, and earlier proceedings were justified.”  In both instances the right in equity to relief against the promisor had accrued.  Question 1 postulates occurrence of the necessary reliance by the promisee being present only after the death of the promisor.

31.  P correctly submits that where there is not the necessary reliance by the promisee prior to the death of the promisor, the promise or assurance by the promisor must be taken to have lapsed.  The executor or administrator of the promisor otherwise, if it were sufficient that the detriment occurred after the death of the promisor, would be giving precedence to an interest which only accrued after the interests of the testamentary beneficiaries or of the next of kin (under the Intestates’ Estates Ordinance, Cap 73) had taken effect.

32.  Two further points should be made.  The first is that where the requirements for the equity of the promisee to accrue have been satisfied before the death of the promisor, the state of affairs subsequent to the “cut-off” point may be relevant at the stage where the Court is considering the appropriate remedy to be awarded.

33.  The second point concerns the situation where, as in the present case, the promise or assurance was by co-owners of the property in question.  Reference has been made above in [14] to the significant steps by Wan and Kau in March 1997 supporting the intended application by D3 to build a house on the Disputed Land. This was not after the “cut-off” point because it postdated the death of Fuk.  Where the subject land is in co-ownership the “cut-off” date is that of the last survivor.  As Cheung JA put it in the Court of Appeal at 6.35, this is the last chance to go back on the promise or representation.

34.  Question 1 should be answered accordingly.

35.  That, however, opens up a further issue which was debated on the appeal.  It is whether there had been sufficient activity by D3 with respect to the Disputed Land before the death of Wan in 1999.

36.  It is here that the principles dealt with above in [23]–[27] come into play.

37.  The trial judge emphasised that the litigation concerned a traditional Chinese family living in the New Territories.  The steps taken by D3 described in [14] were those of a young man preparing for an adult life in occupation of the improved Disputed Land, he doing so with the support and encouragement of his elders.  Those steps were in the setting of this case sufficient reliance by D3 upon the Common Understanding.

38.  The question is whether the remedy for the equity should be the constructive trust by P of her 2/3 interests in the Disputed Land for D3, or some lesser remedy such as a sum of money.  The former remedy is appropriate.  It would “enable the claimant to have the benefit of the equitable right which he is held to have” (Luo Xing Juan v Estate of Hui Shui See (2009) 12 HKCFAR 1 at [68].

39.  As noted at [32], at this stage the Court may have regard to the state of affairs as it developed after the death of Wan in 1999.  This is not a case such as Giumelli v Giumelli (1999) 196 CLR 101, where other parties have made contributions to the land in question so that relief by way of constructive trust would inflict an injustice.  The trial judge found that after 2003 and the birth of D3’s son and when P had become friendly with D3, she would occasionally visit his house on the Disputed Land and stay for dinner with his family.  The infant son called P “aunt”.  P did not assert the titles of Kau or Fuk until relations with the defendants soured and she embarked on this litigation, joining D3 as a party only in 2013.  D3 believes this change in attitude by P occurred after she had become interested in the sale of the Disputed Land to a developer.  For his part, it appears that D3 did not invest in any other properties and his emotional and sentimental attachment to the Disputed Land, his family home for many years, would make his dispossession unconscionable in the sense used by Lord Walker in Gillett v Holt, discussed above [24].[4]

40.  The trial judge held that the facts gave rise in favour of D3 both to a proprietary estoppel and a common intention constructive trust (at [89]).  In Stack v Dowden [2007] 2 AC 432 at [37] Lord Walker warned against the assimilation of the common intention constructive trust and proprietary estoppel.   The death of the legal owner also supplies the “cut-off” date for any common intention constructive trust, as Cheung JA held in the Court of Appeal at 6.38.  But in other respects the common intention as constructive trust and proprietary estoppel are distinct.[5]

41.  The matter need not be further pursued here.  The arguments in this Court focused upon proprietary estoppel and D3 succeeds on that ground.  There remains the second dispute and the issue presented by Question 2.

Question 2

42.  Question 2 is in these terms:

“Whether a co-owner in sole occupation of land, in cases other than partition or ouster and in the absence of agreement, should be ordered to account to the other co-owners for occupation rent. Alternatively, whether the proposition of law in Re Pavlou (A Bankrupt) [1993] 1 WLR 1046 at 1050D that ‘a court of equity will order an inquiry and payment of occupation rent even if there is no ouster when it is necessary to do so to do equity between the parties’ should be confined to partition or analogous proceedings?”

43.  It arises in relation to the counterclaim mounted by D1 and D2 against P for an account and payment of 1/3 of the rental income from the first and second floors of House 774 and of 1/3 of mesne profits claimed in respect of the ground floor in which P resided.  The trial judge made the orders sought.[6]  The Court of Appeal held however that the issue regarding the expenses of rebuilding House 774 should be remitted to the trial judge to be taken into account in applying a specified approach to the law (referred to below) but that otherwise, his Lordship’s findings should be left undisturbed.[7]

44.  The following facts are not in dispute, namely that:

(a)     As noted above at §4, House 774 is erected on Lot No 774 in DD 221.  We will refer to the property as a whole as “House 774”.

(b)     P had grown up in House 774 which was occupied by her grandparents and parents;

(c)     the building had collapsed in 1984 after a typhoon and was rebuilt in 1985, initially as a house with two floors, using funds provided by P’s family, after which she took up occupation in it;

(d)     in 1997, P let out the first floor and received rent from the letting which she retained;

(e)     in 2008, P sold her interests in other plots of land and used the proceeds to convert House 774 into a three-storey building; and

(f)     in 2009, she let out the second floor and received the rent.

45.  It is common ground that D1 and D2 together hold an undivided 1/3 interest in House 774 as tenants in common with P who, as personal representative succeeding to the estates of Fuk and Kau, holds an undivided 2/3 interest therein. 

The claim and decision at first instance

46.  It is evident from the pleadings that the case as framed at first instance suffered from certain misconceptions held on either side. 

47.  Although D1 and D2 admit that they are co-owners of the property as tenants in common with P, their counterclaim is posited simply on the basis that “[as] the 1/3 co-owner” of House 774 they are entitled to a 1/3 share of the rent P received and “1/3 of the mesne profits in respect of the ground floor” where P lived, reflecting their “proprietary interests and rights”.[8]

48.  So pleaded, it was not a viable claim since it is well-settled that a co-owner who is not in occupation has no claim for rent against the occupying co-owner simply by virtue of the latter’s sole occupation of the co-owned property.[9]  This is because unity of possession among the co-owners is central to a tenancy in common.  As Meagher JA explained in a valuable summary of the rights of co-owners inter se in Forgeard v Shanahan:[10]

“1. Since both joint tenants and tenants in common have joint possession of the land in which they have the estate, it was a settled rule of law that the possession of any one of them was the possession of the other of them, so as (for example) to prevent the statutes of limitation from affecting them; nor did the bare receipt of all the rents and profits by one operate as an ouster of the other...[11]

2. It follows that, where one co-owner is in occupation and the other not, but there has been no actual ouster or exclusion by the former of the latter, the law treats the latter simply as someone who has chosen not to exercise his legal right to occupy the land.”

49.  As Lord Cottenham LC explained, the effect of imposing an obligation to pay rent in such circumstances “would be, that one tenant in common, by keeping out of the actual occupation of the premises, might convert the other into his bailiff; in other words, prevent the other from occupying them, except upon the terms of paying him rent.”[12] That was in principle unacceptable.

50.  As indicated in the passage from Meagher JA cited above, a co-owner who has been ousted, that is, excluded from the co-owned property, does have an action in trespass and can recover mesne profits or an occupation rent from the co-owner in occupation.[13]  As Lord Hatherley LC stated:

“Now, as regards the question of trespass, it appears to be perfectly settled ... that unless there be an actual ouster of one tenant in common by another, trespass will not lie by the one against the other so far as the land is concerned.”[14]

51.  Other bases exist for founding a claim by a tenant in common for occupation rent or for an account of rent against a fellow tenant in common in sole occupation.  These are considered later in this judgment and include cases where partition or analogous proceedings are brought with a view to ending the co-ownership; where there is an agreement giving rise to a duty to account and where a statutory action may be available.  But for immediate purposes, ouster is the relevant basis for consideration.

52.  This is so because of the nature of the defence mounted by P against the counterclaim.  As noted by the Judge,[15] it was a purported defence based on adverse possession.  P was at pains to argue that the counterclaim, viewed as an action for trespass, was barred by her adverse possession of House 774.  This was misconceived since, as tenants in common, they had joint possession of the property and no question of adverse possession could arise.  Indeed, such joint possession was pleaded by P.[16]

53.  In furtherance of her purported defence of adverse possession P’s pleadings include the following averments:

“At all material times, all of the Defendants in this action were not allowed to enter the house on said Lot 774 unless they were invited by the Plaintiff or her father, namely Kau.” (Defence to Counterclaim §27(f))

“From the aforesaid [...] time in 1997, no one can enter House 774 without the Plaintiff’s permission.” (Ibid at§28(d))

“At all material times since about 1997, the Plaintiff had the [sic] every intention to possess House 774 adverse to the interests of other registered owners of the same.” (Ibid at §28(e))

“By reason of the exclusive possession, occupation and control of House 774 by the Plaintiff with the requisite intention to exclude all others at large, the rights, interest and title of the Ds in respect of [House 774], have been extinguished and the Ds are barred from recovering the same, under the Limitation Ordinance (Chapter 347).” (Ibid at §28(f))

54.  P’s witness statements supported her pleadings:

“Based on my memory, all Defendants were not allowed to enter the Replacement House unless they were invited by My Father or me. We had always treated the Replacement House as our solely owned property and enjoyed exclusive possession, occupation and control of the same.”[17]

“After My Father passed away in 1997, I had always enjoyed exclusive possession, occupation and control of the Replacement House. No one has ever made any queries of my right to do so. Since 1997, no one can enter the Replacement House without my permission. I have always had and continue to maintain absolute exclusive use of the Replacement House and land on which it sits on [sic].”[18]

55.  D1 and D2’s evidence also lent support to their having been excluded.  They gave evidence of an incident in 1997 when they approached P asking for a share of the rent she had started collecting from letting out the first floor of House 774.  P reacted with great hostility and threw a hard object through the window of D1 and D2’s house, leading to P being prosecuted (and apparently convicted[19]).

56.  One would have thought that those pleadings and the evidence filed provided a basis, self-inflicted by P, for supporting D1 and D2’s counterclaim, enabling them to contend that they had been ousted by P from House 774 and therefore that notwithstanding co-ownership, they had a good claim against P for trespass and mesne profits.[20]

57.  However, the point has not been taken at any stage.  Instead, D1 and D2 were intent on showing that there was no ouster, believing that this advanced their cause against P rather than barring its success.  Although his Lordship had held that adverse possession was a bad defence in law, he proceeded to make findings aimed apparently at negating adverse possession by confirming that there had been no ouster, believing that such findings supported D1 and D2’s counterclaim.  Thus, he held:

(a) “The plaintiff cannot establish ouster by simply showing that she has pocketed all the rental income of House 774.”[21]

(b) “... in the present case, the 1^st and 2^nd defendants have done more than enough to negative ouster.”[22]

The Court of Appeal

58.  In the Court of Appeal, the “no ouster” finding was not challenged and the Court proceeded on the basis that there had been no ouster of D1 and D2 from the property.[23]  Ms Audrey Eu SC[24] (who did not appear at the trial) seized on that finding and argued:

“... that the Judge erred in ordering an account and enquiry as to one-third of the rental income arising from the 1^st and 2^nd floors of House 774 and one-third of the mesne profits in respect of the ground floor of House 774 as from 1997 onwards and ordering the plaintiff to pay them, in that it is well settled that co-owners are not agents or fiduciaries for one another and a co-owner out of occupation has remedies in law in two situations: (1) damages for occupation rent for ouster, or (b) an account if the other co-owner has rendered himself liable as agent or bailiff (Chen Yu Tsui v Tong Kui Kwong [2006] 1 HKC 23 at paragraphs 87-105, cited with approval by the Court of Appeal in Tang Tak Sum v Tang Kai Fong [2015] 1 HKLRD 286). None of the two situations arise on the facts of this case and the Judge expressly found in paragraphs 112 to 113 of the judgment that there was no ouster.”[25]

59.  In response, Mr William Wong SC,[26] submitted:

“... that it is now recognised that a co-owner may claim occupation rent from another co-owner where it is ‘fair’, ‘just’ or ‘in order to do equity between the parties’: Gray and Gray, Elements of Land Law (5^th ed) at paragraph 7.4.45.”[27]

60.  He cited in particular In re Pavlou (A Bankrupt),[28] in which Millett J (as Lord Millett then was) stated:

“[A] court of equity will order an inquiry and payment of occupation rent, not only in the case where the co-owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that an occupation rent should be paid.”

61.  Mr Wong SC also cited Re Byford (deceased),[29] where Collins J (as Lord Collins of Mapesbury then was), stated: “[W]hat the court is endeavouring to do is broad justice or equity as between co-owners.”  Counsel also referred to French v Barcham,[30] for the proposition that “whether occupational rent would be charged on the facts of each case is ‘ultimately a matter of discretion’”.

62.  Thus, Ms Eu SC was advancing the traditionally understood position (as indicated above) that one tenant in common could not, in the absence of ouster or another recognised ground, bring a claim for rent against another tenant in common simply based on the latter’s sole occupation of the property in question.

63.  While their Lordships did not do so explicitly, it would appear that they accepted that absent ouster, the counterclaim of D1 and D2 could not be sustained on traditional grounds. However, they considered that the counterclaim could be viable if what was referred to as “the modern approach” were adopted.  Thus, in the majority, Lam VP (Au JA agreeing) held that: “As regards the order for account on the counterclaim, as the modern approach has not been addressed by the judge and he found that there was no ouster, the claim should be remitted to the judge.”[31]  By the “modern approach”, his Lordship had in mind the passages cited above from In re Pavlou and Re Byford:

“In respect of the finding that there was no ouster, it should not be a bar to a claim for equitable account in light of the authorities cited ... below. ... That should not bar this Court from re-examining the law in light of the modern position as reflected in the English authorities of Re Pavlou (A Bankrupt) [1993] 1 WLR 1046 and Re Byford (deceased) [2004] 1 P & CR 12 159, which has been followed by Ng J in Leung Siu Man v Leung Yiu Tai [2019] HKCFI 1971.”[32]

64.  His Lordship concluded:

“I see no reason why the modern approach should not be followed in Hong Kong. In other words, a court of equity will order an inquiry and payment of occupation rent even if there is no ouster when it is necessary to do so to do equity between the parties.”[33]

65.  The majority however, held that to enable this “modern approach” to be considered it was necessary for there to be a remitter to the trial judge to enable findings to be made as to the expenses of rebuilding House 774 to be taken into account in doing equity between the parties.[34]

66.  Cheung JA held that the Judge had failed to articulate reasons why he had ordered an account and considered that the whole matter should be remitted, with a wide range of inquiries to be pursued.[35] On the scope of the remitter, he was in the minority.

67.  The Appeal Committee granted leave to appeal on Question 2 which calls for examination of the Court of Appeal’s holding that a co-owner in sole occupation of land, in cases other than partition or ouster and in the absence of agreement, may be ordered to account to the other co-owners for occupation rent and rental receipts adopting a broad, discretionary “modern approach” regarded as an independent basis for such a claim.

The established principles

Ouster and agreement as basis for action

68.  Initially, a co-owner out of occupation had very limited remedies against his co-owner in occupation in relation to the land.  As Meagher JA put it:

“... a co-owner not in occupation was normally virtually without remedy. He could not sue in trespass unless there was an ouster. ... A co-owner out of occupation could not even recover his share of rents and profits if the co-owner in occupation appropriated them to himself; no action of account lay either at law or in equity.”[36]

“Apart from statute, a co-owner out of occupation had remedies at law in two situations, and no more. If he had been ousted, he could bring ejectment and mesne profits ... If, on the other hand, his co-owner were in occupation by agreement that co-owner became an agent or bailiff and rendered himself liable in a common law action of account. In either case (ie of ouster or occupation by agreement) he would be liable for rents actually received and possibly also for an occupation fee.”[37]

His Honour added:

“Apart from Statute, in equity the plight of a co-owner not in occupation was little better. There did not seem to be any action which would render a co-owner in occupation liable to refund any rents received, much less liable for an occupation fee.”[38]

Statutory action

69.  The position was considered unsatisfactory and in England, led to the enactment in 1705 of the Statute of Anne[39] which created a statutory right of action against a tenant in common for rents actually received and which constitute “more than ... his just share or proportion”.   While this statutory claim was once available in Hong Kong, it ceased to have any application as from 7 January 1966.[40]  It therefore needs no further discussion here save to note that no such statutory action presently exists in this jurisdiction.

Constructive ouster

70.  There have, however, been incremental improvements to the position of co-owners out of occupation. One development involves widening the notion of “ouster” to include constructive exclusion of one co-owner especially in cases involving breakdown of a matrimonial or co-habiting relationship, and especially where domestic violence or the threat thereof is involved.[41]

Equity’s intervention in partition and analogous proceedings

71.  Another development, of particular importance in the present case, occurred in the context of equitable accounting.  While equity does not provide a basis for an independent, proactive claim for an account of rent against a co-owner in occupation, it does intervene where a co-owner institutes a partition or analogous action and may impose a requirement for adjustments to be made in the process of equitable accounting in order to do equity between the parties. 

72.  An illustration is provided by Leigh v Dickeson,[42] where one tenant in common brought an action to recover rent from another and faced a counterclaim for the cost of repairs.  The Court held that the claim failed but Cotton LJ explained the position which would have arisen if it had been a partition action:

“... no remedy exists for money expended in repairs by one tenant in common, so long as the property is enjoyed in common; but in a suit for a partition it is usual to have an inquiry as to those expenses of which nothing could be recovered so long as the parties enjoyed their property in common; when it is desired to put an end to that state of things, it is then necessary to consider what has been expended in improvements or repairs: the property held in common has been increased in value by the improvements and repairs; and whether the property is divided or sold by the decree of the Court, one party cannot take the increase in value, without making an allowance for what has been expended in order to obtain that increased value; in fact, the execution of the repairs and improvements is adopted and sanctioned by accepting the increased value. There is, therefore, a mode by which money expended by one tenant in common for repairs can be recovered, but the procedure is confined to suits for partition. Tenancy in common is an inconvenient kind of tenure; but if tenants in common disagree, there is always a remedy by a suit for a partition, and in this case it is the only remedy.”

73.  In Brickwood v Young,[43] Griffith CJ elaborated upon Leigh v Dickeson as follows:

“The principle appears to be that the making of permanent improvements by one tenant in common in sole occupation gives rise to an equity attaching to the land, analogous to an equitable charge created by the owners for the time being, but enforceable only in the event of partition or a distribution of the value of the land amongst the tenants in common. There can be no reason why such a charge should not run with the land in favour of purchasers from the person originally entitled to it.”

74.  And in Squire v Rogers,[44] Deane J further explained:

“As a general rule, capital expenditure upon permanent improvements to land by one joint owner without the authority of his co-owner creates a passive equity which attaches to the land. The joint owner making the improvements is not entitled to bring proceedings for contribution against his co-owner. In circumstances where his co-owner (or a successor in title of his co-owner other than a purchaser for value without notice) would otherwise unfairly benefit under an order in equity (including partition or sale of the property), he is entitled to an allowance for his expenditure on such improvements to the extent to which they result in the present enhancement of the value (or the price on sale) of the land ...”

75.  Of particular relevance to Question 2 are cases where, as part of the equitable accounting exercise in a partition action or analogous proceedings, an occupying owner who claims an allowance for his expenditure may be permitted such an allowance only if he consents to be charged an occupation rent.  These represent cases where an occupation rent is claimable by the owner out of occupation without proof of ouster. 

76.  Thus, in Teasdale v Sanderson,[45] a suit was instituted by one of several tenants in common against the others, for partition of the estate and for an account of the rents and profits received by the defendants, who had been in exclusive possession for about fourteen years.  One of the defendants was in personal occupation of part of the premises, and sought to claim credit for the sum of £60 spent on necessary repairs and improvements of the property.  Sir John Romilly MR held “that these accounts must be reciprocal, and, unless the Defendant is charged with an occupation rent, he is not entitled to any account of substantial repairs and lasting improvements on any part of the property”.

77.  In McCormick v McCormick,[46] Salmond J also referred to such reciprocity, pointing out that:

“ ... there is no general right even in a partition suit to charge an occupying owner with an occupation rent. I think that the obligations of co-owners to account to each other are the same in equity as at law, and are the same in a partition suit as in other proceedings, save only that in a partition suit, if an occupying owner claims an allowance for his expenditure, he can obtain it only if he consents to be charged with an occupation rent.”

78.  And in Forgeard v Shanahan, Meagher JA explained the position in Equity as follows:

“As far as equity is concerned, an occupation fee will be exacted in at least two circumstances: first, in a partition suit (or related litigation): if there has been an exclusion, the tenant in occupation will be charged with an occupation fee: this is an example of equity following the law; and secondly, if the owner in occupation claims an allowance in respect of improvements effected by him, equity will permit such an allowance only on terms that he is accountable for an occupation fee – this is an example of he who comes to equity having to do equity.”[47]

79.  Cases in this category should be borne in mind when examining the “modern approach” favoured by the Court of Appeal.

Is there an independent “modern approach”?

80.  In D1 and D2’s Written Case,[48] it is contended that:

“The principles in Re Pavlou clearly establish a flexible approach in equity to order occupation rent without confinement to ouster, partition or anything in analogy.”

“As a matter of law, it is now recognised that a co-owner may claim occupation rent from another co-owner where it is ‘fair’, ‘just’ or ‘in order to do equity between the parties’: Gray and Gray, Elements of Land Law (5^th ed) at §7.4.45, without restrictions to ‘partition’, ‘ouster’, ‘agreement’.”

81.  In support, the following citations and propositions are put forward:

“[A] court of equity will order an inquiry and payment of occupation rent, not only in the case where the co-owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that an occupation rent should be paid”: In re Pavlou (A Bankrupt) [1993] 1 WLR 1046, per Millett J (as he then was), at 1050D.

In determining the question of occupation rent, “[w]hat the court is endeavouring to do is [broad] justice or equity as between co-owners”, and the Court would take into account of the use or benefit derived by the co-owner in occupation: Re Byford (deceased) [2004] 1 P & CR 12 159, per Collins J (as he then was), at 168.  Whether occupational rent would be charged on the facts of each case is “ultimately a matter of discretion”: French v. Barcham and another [2009] 1 WLR 1124, per Blackburne J at §43.

82.  We will say at once that we do not accept that the authorities justify the proposition that a “modern approach” has been introduced so that under the guise of “flexible equitable relief”, the principles incrementally developed over the centuries, each subject to principled rationales for dealing with issues between co-owners encountered in practice, have been overridden and replaced by an amorphous broad discretion. 

83.  As always, context is all important.  The line of cases of which In re Pavlou forms a part are all illustrations of the courts doing justice in making adjustments and imposing set-offs in the process of equitable accounting.  It is in that context that the dicta cited by D1 and D2 must be understood.  They do not signal any departure from the principles explained above and in particular, do not eliminate the threshold requirements for equity’s intervention. 

84.  We may begin by reference to Bernard v Josephs,[49] where the principles on which the court acts in making adjustments to the shares in which tenants in common are entitled to the proceeds of the sale of property are elucidated.  Lord Denning MR explained:

“After ascertaining the shares, the next problem arises when it is to be turned into money. Usually one of the parties stays in the house, paying the mortgage instalments and the rates and other outgoings. The house also increases in value greatly owing to inflation. None of that alters the shares of the parties in the house itself. But it does mean that when the house is sold — or the one buys the other out — there have to be many adjustments made. The value of the house itself is taken at the value at the time of sale or buying out. There must be deducted from it all the money needed to redeem the mortgage. Then the one in possession must be given credit for paying the other’s share of the mortgage instalments and be debited with an occupation rent for using the other’s share of the house. Other adjustments may be needed for other outgoings. Then the net amount must be divided according to the shares.”[50]

And Griffiths LJ stated:

“When the proceeds of sale are realised there will have to be equitable accounting between the parties before the money is distributed. If the woman has left, she is entitled to receive an occupation rent, but if the man has kept up all the mortgage payments, he is entitled to credit for her share of the payments; if he has spent money on recent redecoration which results in a much better sale price, he should have credit for that, not as an altered share, but by repayment of the whole or a part of the money he has spent. These are but examples of the way in which the balance is to be struck.”[51]

In such cases, occupation rent may be an element in the adjustment where entitlement does not depend on ouster or agreement. 

85.  That decision was applied in In re Gorman (A Bankrupt),[52] an authority later cited by Millett J in In re Pavlou.  In re Gorman involved a husband who had become bankrupt after being divorced from his wife.  His trustee in bankruptcy sought an order for sale of the former matrimonial home which was in the former couple’s joint names.  The issue, as Vinelott J noted, was “whether the trustee is entitled to an immediate order for sale and whether, when sold, there should be any equitable accounting between Mrs. Gorman and the trustee to reflect the fact that the whole of the mortgage instalments have been paid by her.”[53]  In particular, the question was “whether Mrs. Gorman is entitled to be credited with one half the mortgage instalments she has paid, and whether she is liable to be debited with one half of an occupation rent.”[54] Applying Bernard v Josephs, Vinelott J ordered:

“... an inquiry into the amount of the proper occupation rent, between the making of the receiving order and the sale of the property, and an account of all the mortgage instalments paid by Mrs. Gorman before and after the receiving order was made. One half of the occupation rent will have to be debited and one half of the mortgage instalments credited to Mrs. Gorman's share.”[55]

86.  The situation in In re Pavlou[56]was similar.  A wife petitioned for divorce against her husband for desertion (although she was apparently willing and anxious to have him back).  He was made bankrupt and the trustee in bankruptcy applied for an order for sale of the property jointly owned by the couple as tenants in common in equal shares.[57]  It was agreed that there would be an order for sale and that “there must be an equitable accounting between the parties.”[58]  Millett J was throughout concerned with that equitable accounting process.  His Lordship took the guiding principle from Leigh v Dickeson,[59] explaining that:

“On a partition suit or an order for sale adjustments could be made between the co-owners, the guiding principle being that neither party could take the benefit of an increase in the value of the property without making an allowance for what had been expended by the other in order to obtain it.”[60]

87.  It was as part of the accounting exercise that Millett J posed these questions:

“More difficult questions arise from the wife’s continued occupation of the property. Is she chargeable with an occupation rent in respect of any period prior to the date of the bankruptcy order? And is she entitled to credit for the interest element in the mortgage repayments which she has made since the husband left her?”[61]

88.  He proceeded to review cases where ouster had been the basis for claiming occupation rent and where domestic violence cases were treated as constructively involving ouster,[62] and then made the statement relied on by the Court of Appeal and the respondents for the existence of a “modern approach”, namely:

“[A] court of equity will order an inquiry and payment of occupation rent, not only in the case where the co-owner in occupation has ousted the other, but in any other case in which it is necessary in order to do equity between the parties that an occupation rent should be paid.”

89.  Millett J was thus concerned with possibly ordering an inquiry and payment of occupation rent as part of an equitable accounting exercise where an order for sale had been made.  It is entirely consistent with previous authority reviewed above to hold that in that context, occupation rent may be ordered not only where there has been ouster but where it is necessary to do equity between the parties in the accounting process.  His Lordship ended his judgment by stating that the wife was prima facie entitled to credit for the interest element in the mortgage payments made since her husband left the property.

90.  The circumstances in Re Byford (deceased),[63] were similar except in one respect, namely, that a husband who had been declared bankrupt continued to live with his wife in their house.  The trustee in bankruptcy did not seek to realise the husband’s interest in it until after the husband died, when he claimed a half interest and an order for sale if the wife did not agree to pay an appropriate amount for the trustee’s interest.  So this was a case where there had been no actual ouster of the husband from the property during his lifetime.  Meanwhile, the wife had continued to pay mortgage interest and make repairs, etc.  She did not dispute the trustee’s half interest but claimed credit for her outgoings and the trustee claimed to be entitled to set off occupation rent. 

91.  Collins J cited In re Gorman and In re Pavlou, and asked whether the same result as in those cases should follow, noting the husband’s continued residence for nearly 10 years after the bankruptcy.  His Lordship reviewed the authorities, including most of the cases cited in this judgment, stating:

“In the typical case an occupation rent has been charged where the party in occupation has actually or constructively excluded the other party from occupation.”[64]

92.  However, as Collins J pointed out, the issue before him was one of set-off in equitable accounting:

“The principal issue debated in this case is whether an occupation rent will be set off against mortgage interest payments made by the wife when there has been no marital breakdown and the bankrupt husband has remained in the matrimonial home.”[65]

93.  His Lordship referred to Leigh v Dickeson,[66] and In re Pavlou for the “guiding principle”:

“The principles of equitable accounting apply equally to beneficial tenancies in common and beneficial joint tenancies. The guiding principle is that neither party can take the benefit of an increase in the value of the property without making an allowance for what had been expended by the other in order to obtain it.”[67]

94.  This was the context in which his Lordship made the statement relied on by the Court of Appeal and the respondents:

“What the court is endeavouring to do is broad justice or equity as between co-owners. As Millett J. said in Re Pavlou, the fact that there has not been an ouster or forcible exclusion is not conclusive. The trustee cannot reside in the property nor can he derive any financial enjoyment from the property while the bankrupt’s spouse resides in it, and the bankrupt spouse’s creditors can derive no benefit from it until he exercises his remedies.”[68]

95.  Plainly, neither of the decisions of Lord Millett and Lord Collins is authority for any sweeping new “modern approach”.  Rather, they illustrate the need to consider a judgment as a whole when extracting a proposition of law for which it is authority.

96.  The respondents also rely on the decision of Blackburne J in French v Barcham,[69] for saying that “Whether occupational rent would be charged on the facts of each case is ‘ultimately a matter of discretion’.”  The circumstances were like those in In re Byford.  A husband and a wife occupied a property owned by them as tenants in common.  He was made bankrupt and the couple remained in occupation.  It was only 12 years after the bankruptcy order that the trustee in bankruptcy applied to the court for the sale of the property, seeking to set off against the wife’s 50% share a notional occupation rent to reflect their continued occupation.  This ought therefore to have been approached as another case of equitable accounting requiring a decision as to whether it was equitable to charge her occupation rent.  This was indeed how the District Judge had dealt with the case. 

97.  However, after dealing with statutory provisions that do not concern us,[70] and despite his citation of the line of cases referred to above, Blackburne J focussed narrowly on the question of ouster rather than on the process of equitable accounting.  He held that “[without] actual ouster of the one co-owner by the other any liability to pay an occupation rent simply did not arise”.[71]  This required him to deal with the fact that there had been no actual ouster of the bankrupt husband for some 12 years. The question to be determined, as he saw it, was “what would amount to ouster (or exclusion) so as to give to the tenant in common who was out of occupation a claim for compensation against the tenant in common who remained in occupation.”[72] 

98.  His Lordship proceeded to hold that the concept of “ouster” should be greatly extended, adopting a notion of “unreasonableness” in formulating the following test:

“The essential point, in my view, is that when on inquiry it would be unreasonable, looking at the matter practically, to expect the co-owner who is not in occupation to exercise his right as a co-owner to take occupation of the property, for example because of the nature of the property or the identity and relationship to each other of the co-owners, it would normally be fair or equitable to charge the occupying co-owner an occupation rent.”[73]

By way of elaboration:

“... if there is some reason why that co-owner is not in occupation and it would be unreasonable in the circumstances for him to take up occupation fairness requires the occupying co-owner to compensate the other for the fact that the one has enjoyment of the property while the other does not.”[74]

99.  The application of this approach to the trustee in bankruptcy’s claim led to his Lordship treating the trustee as the co-owner out of occupation (while the husband continued to live in the house) and concluding as follows:

“When a trustee in bankruptcy has been appointed of the estate of a co-owner so that that co-owner’s interest vests in the trustee, but the other co-owner remains in occupation of the property, application of the principle will ordinarily, if not invariably, result in the occupying co-owner having to account to the trustee of the beneficial interest to which the bankrupt co-owner was formally entitled for an occupation rent. This is because it is not reasonable to expect – even if it were otherwise practicable for him to do so – the trustee in bankruptcy to exercise the right of occupation attaching to the interest in the property that vested in him on his appointment as trustee of the bankrupt co-owner.”[75]

100.  With respect, the failure to appreciate that the relevant line of cases deals with equitable accounting upon partition or an order for sale, permitting occupation rent to be charged often by way of set-off and without a requirement for ouster, appears to have led the analysis in French v Barcham astray.  Faced with an absence of any actual ouster over nearly 12 years, Blackburne J resorted to a notional ouster on the footing that it would have been unreasonable to expect the trustee to exercise the right of occupation.  He appears to have regarded such occupation to involve a personal, physical taking up of residence by the trustee (rather than say, occupation for the purpose effecting sale or of renting out the property) and therefore reached the conclusion that the trustee would almost always be entitled to charge the occupying co-owner with occupation rent since the trustee could not reasonably be expected to take up residence.  That destroys the flexible equitable approach adopted in the cases by introducing a test based on a highly artificial scenario. 

101.  In Davis v Jackson,[76] Snowden J declined to follow French v Barcham.  This was yet another case involving an application by a trustee in bankruptcy for sale of a house held in the joint names of a formerly married couple.  The background facts were unusual in that:

“... the parties have at all relevant times been estranged and lived apart when the house was originally acquired by the wife in her sole name, and the husband was never intended to live in the house and has not done so at any time. The property was only transferred into joint names when the house was re-mortgaged, but at no time did the husband pay any of the instalments of either mortgage or contribute to any of the outgoings.”[77]

102.  His Lordship approached the case as one concerning equitable accounting.[78]  He regarded Blackburne J’s “unreasonableness” test as inconsistent with earlier authorities, commenting that, contrary to the “default position” where no occupation rent is payable, under the proposed test “it would invariably be unreasonable for a trustee in bankruptcy to seek to take up occupation, [so that] Blackburne J’s approach would have the result, as a virtually immutable rule, that an occupation rent should be payable.”[79] As such, it would exclude “the possibility of the court having any regard to the position that existed prior to the bankruptcy, or to the conduct or circumstances of the non-bankrupt party”[80] in deciding whether to order payment of occupation rent. 

103.  As indicated in cases like Pavlou and Byford, the court adopts a broad equitable approach in the exercise of equitable accounting, requiring the person seeking equity to do equity in the circumstances of each individual case.  Those authorities do not discard the established principles which determine when a viable claim for an account may arise.  On the unusual facts in Davis v Jackson, Snowden J refused to charge Mrs Jackson occupation rent, holding that:

“[If she] were to be charged occupation rent for the period since the vesting in the Trustee of Mr Jackson’s interest in the Property, so as to offset the substantial mortgage payments which she has continued to make after that time, the result will, to my mind, represent an unjust windfall for Mr Jackson’s creditors”.[81]

Conclusion on Question 2

104.  We conclude that the authorities considered above do not establish any new, free-standing “modern approach” such as that urged by the respondents and favoured by the Court of Appeal.  Claims by one co-owner against a co-owner in occupation for payment of occupation rent or for an account of rent can only arise in accordance with the principles laid down in the established authorities.   Unity of possession precludes such claims otherwise than in cases of ouster (including “constructive exclusion” as in domestic violence cases); or where an operative agreement renders the co-owner in occupation an agent or bailiff so as to come under a duty to account to the other.  Where partition or analogous proceedings have been instituted, apart from cases of ouster, equity may recognise a defensive equity in favour of one of the co-owners regarding expenditure appropriately incurred and may, in the process of equitable accounting, require the other, viewed as a seeker of equity required to do equity, to be debited with an occupation rent to set off the expenditure incurred, thus reciprocally balancing the parties’ interests in the distribution of the realised proceeds of the co-owned property. 

105.  The present case has proceeded throughout (including in this Court) on the basis that there has been no ouster.  None of the other established bases for claiming occupation rent or an account of rent have been alleged, let alone made out.  Accordingly, the action against P for “mesne profits”, occupation rent and an account of rent must fail.  There is thus no basis for ordering any remitter to ascertain P’s building expenses since there is no viable claim for rent against which such expenses might be set off.

106.  We would therefore allow P’s appeal and dismiss the counterclaim of D1 and D2, setting aside the orders made by the Courts below in relation to such counterclaim.

Disposal of the appeal

107.  We would accordingly make the following orders, namely, that:

The appeal be allowed and the order of the Court of Appeal dated 5 March 2020 be set aside and in place thereof:

(1)      it be declared that the Plaintiff is estopped from denying that the Third Defendant is beneficially entitled to Lot 1101 in DD221;

(2)      the Plaintiff cause the undivided 2/3 share she holds in Lot 1101 DD221 be transferred to the Third Defendant;

(3)      the parties seek to agree the terms to implement order (2) and in default of such agreement the parties within 14 days of these orders lodge their proposed order, for determination by this Court;

(4)      the claims by the Plaintiff against the First and Second Defendants, and against the Third Defendant be dismissed;

(5)      the claim by the First and Second Defendants against the Plaintiff be dismissed; and,

(6)      within 14 days of these orders the parties lodge their submissions as to the costs of the proceedings in the Court of First Instance, the Court of Appeal and this Court to be determined by the Court on the papers.

Mr Justice Fok PJ:

108.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Gummow NPJ.

Mr Justice Bokhary NPJ:

109.  I agree with the joint judgment of Mr Justice Ribeiro PJ and Mr Justice Gummow NPJ.  All that I add is this. On its own, each side has achieved a measure - although not necessarily an equal measure - of success in this appeal. Together they share the success of a final disposal here and now of this unhappy case without a remitter. For reasons which I can understand, the learned judges of the Court of Appeal felt unable to avoid remitting certain matters to the trial court. Our avoidance of a remitter was, as it seems to me, materially assisted by the able and responsible way in which Ms Audrey Eu SC for the Plaintiff and Mr William Wong SC for the Defendants presented their respective cases. I am grateful to them for that. So should the parties be. Finality is an important element of practical justice.

Chief Justice Cheung:

110.  The appeal is unanimously allowed and the order of the Court of Appeal dated 5 March 2020 is set aside.  In place thereof we make the orders set out in paragraph 107 above.