CHIN LAN HONG AND OTHERS v. CHEUNG POH CHOO AND OTHERS

cacv 98/2004

in the high court of the

hong kong special administrative region

court of appeal

civil appeal no. 98 of 2004

(on appeal from HCA NO. 1208 of 2000)

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J U D G M E N T

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Hon Rogers VP:

1.  I have had the advantage of reading the judgment of Le Pichon JA in draft and there is nothing I can add.

Hon Woo VP:

2.  I entirely agree with the judgment of Le Pichon JA.

Hon Le Pichon JA:

3.  This is an appeal and cross-appeal from the judgment dated 15 January 2004 of Deputy High Court Judge To.  The proceedings concerned the right of the 1^st defendant to occupy the property known as No. 4A South Bay Road (“the property”) after the expiration of a notice to quit served on her by the plaintiffs on 24 December 1999.  The judge found that the 1^st, 2^nd and 3^rd defendants were guilty of trespass in respect of the 1^st defendant’s occupation of the property for nine days between 2 and 11 October 2000 and awarded the plaintiffs damages which he assessed at $36,812.90 together with interest.  It was also ordered that the property be sold by public tender with a reserve price but that part of the order was made with the consent of the 2^nd and 3^rd defendants and does not form the subject matter of the appeal and cross-appeal.  At the conclusion of the hearing, judgment was reserved which we now give.

The facts

4.  Cheung Kung Hai (“the father”) was a wealthy Singaporean businessman.  He came to Hong Kong in 1961 and built an eight-bedroomed house on the property in 1967 as a home for his wife Lim Bee and the eight children of that marriage consisting of a son Cheung Chin Chye (“CCC”) and seven daughters including the 1^st defendant. 

5.  The father had a concubine namely, the 1^st plaintiff with whom he had three sons, Cheung Kee Wee (“CKW”), Cheung Lin Wee (“CLW”) and Cheung Ying Wee (“CYW”) and three daughters.  The 1^st plaintiff and her children lived in a flat at No.4 South Bay Road and at a later date in a house in Black’s Link.  The judge found that the relationship between the half siblings was less than harmonious.

6.  The father also had two adopted sons, Cheung Theam Siew (“CTS”) and the late Cheung Kwong Wai.  Three of the daughters including the 1^st defendant are unmarried.

7.  Starting from 1967, the 1^st defendant assisted in the family business together with CTS.  In 1975, when she was sent to take charge of the family business in Singapore, she maintained a room in the property which she used whenever she returned to Hong Kong.  In 1976, CKW joined the family business in Hong Kong.  Lim Bee died in 1977.  At about that time the 1^st defendant returned to work in Hong Kong and lived in the property.

8.  The family business which was property orientated experienced financial difficulties in the early 1980s when uncertainty over the future of Hong Kong led to a drop in the property market.  On 30 October 1982, the father assigned his interest in the property to the 1^st plaintiff, CCC, CKW, CLW and CTS in equal shares as tenants in common (“the 1982 assignment”).  The judge found that the assignment was made to protect the property from possible enforcement action by creditors of the family business as the father was the guarantor of the business debts.  Given that finding, he had little difficulty in holding that the presumption of a gift to the 1^st plaintiff and 4 sons had been rebutted.  The father was to live for another 18 years after the 1982 assignment.  As will become apparent, he remained in possession either actually or through Lim Bee’s children right up to his death in October 2000.

9.  In 1984, the father and the 1^st plaintiff relocated to Taiwan and the 1^st defendant was again sent to work in Singapore.  She nevertheless maintained a room in the property for her use whenever she was in Hong Kong.  The father maintained control of the Hong Kong business from Taiwan, with CTS and CKW being responsible for the day-to-day management in Hong Kong.  At about this time, CLW also joined the family business in Hong Kong.  In the following year, CTS emigrated to Canada and re-assigned his 1/5 share in the property to the 4^th plaintiff in exchange for some assets from the father.  The judge, apparently erroneously (although nothing turns on this) thought that the 4^th plaintiff was owned and controlled by CKW, CLW and CYW when it was in fact owned by Doran Ltd which the father and the 1^st plaintiff controlled at the time and only later came to be controlled by CKW, CLW and CYW.  The judge summed up the situation in 1985 as follows:

(1)	Lim Bee’s children were ousted from the family business in Hong Kong and were replaced by the 1st plaintiff’s sons; and
(2)	the 1st plaintiff’s sons together with the 1st plaintiff became the legal owners of 4/5ths of the family home for Lim Bee’s children but the de facto possession remained unchanged.

10.  In the late 1980s, CLW and CKW assigned their respective interests in the property to the 2^nd and 3^rd plaintiffs, companies which they respectively controlled. 

11.  When the father and the 1^st plaintiff returned to live in Hong Kong in 1987, they did not move to live in the property; rather, they resided in a house in Shatin.  The property remained as a home exclusively for Lim Bee’s children.  By 1989, CPK, a sister of the 1^st defendant was the only person living in the property although the 1^st defendant who was still working in Singapore maintained a room which she used whenever she returned to Hong Kong.  CPK accepted the father’s offer to buy her a flat in Repulse Bay and moved out of the property in 1990.  Although a similar offer had been made to the 1^st defendant, she declined.  When the father and the 1^st plaintiff moved into the property in 1990, the 1^st defendant who was still working in Singapore, continued to maintain a room there and used it whenever she was in Hong Kong.  The father renewed his offer to purchase a flat for the 1^st defendant in 1995 but the 1^st defendant did not take it up.

12.  CCC died in Singapore in 1995.  On 27 November 1996, letters of administration were granted in Singapore to the 2^nd and 3^rd defendants who are his sons and the sole beneficiaries of his estate.  They obtained a re-sealed grant of administration to CCC’s estate in Hong Kong on 11 October 2000. 

13.  The 1^st defendant returned from Singapore in 1996 and lived in the property with the father and the 1^st plaintiff.  In May 1996, the father was diagnosed as suffering from a brain tumour.  That affected his walking ability, obliging him to use a wheelchair whenever he went out.  He and the 1^st plaintiff moved to a flat in Grenville House in late 1996.  The judge found that he did so for health reasons and rejected the plaintiff’s case of constructive exclusion by the 1^st defendant particularly as the 1^st plaintiff who was in a position to give first hand evidence of the 1^st defendant’s alleged intolerable behaviour was never called to give evidence in support of the plaintiffs’ case.  The father’s health continued to deteriorate.  He had operations in January 1997, August 1998 and September 2000.

14.  After her return to Hong Kong, the 1^st defendant began to suspect that she was being systematically excluded from the family business.  When she complained to her father that her half siblings CKW and CLW were receiving higher salaries than herself, she was told that her salary included an element of rent-free accommodation in the property.  Whilst there had been unhappy quarrels between the 1^st defendant and the family companies particularly in the second half of the 1990s, the judge found that there was no evidence to suggest that any of the plaintiffs or the father objected to the 1^st defendant’s occupation of the property.

15.  In about 1999, the 1^st defendant had further complaints about various matters relating to the family business including a complaint concerning the receipt of salary by one of her half sisters from the family business without working for any of the family companies.  Those disputes led to the issue of a notice to quit on 24 December 1999 by the 3^rd plaintiff on behalf of the plaintiffs (who were 4 out of 5 tenants in common) requiring her to vacate the property within 30 days “assuming that [the 1^st defendant] had been occupying the property as a licensee”. 

16.  The 1^st defendant and one of her sisters had a meeting with the father on 17 February 2000 in the presence of the 1^st plaintiff.  The 1^st defendant produced a tape recording and a transcript of the conversation that took place during the meeting.  The judge summarised the gist of that conversation at paragraph 45 of his judgment:

“When the 1^st Defendant asked if the Father knew about the action taken by the half-siblings to evict her from the Property, the Father said unequivocally that he did not know.  He did not categorically tell the 1^st Defendant that he had revoked her licence or that what the half-siblings did was with his consent or words to that effect. …  This evidence was not challenged by the Plaintiffs.” 

17.  Several events occurred on 31 May 2000.  On that day, the father signed an affirmation to the effect that he had never granted any permission to the 1^st defendant to remain on the property for so long as she wished, that he moved out to avoid quarrels, that he did not recall the conversation with him on 17 February 2000, and that the writ seeking vacant possession from the 1^st defendant was issued on 1 February 2000 with his knowledge and consent.  The affirmation which was written in English was signed in the presence of Mr Sit, a solicitor.  Mr Sit who had interpreted the contents to the father was satisfied that the father understood the contents before signing the affirmation.  However, the judge gave no weight to it because the judge concluded that what the father had said in that affirmation was unreliable given the fact that although he had been given details of the February 2000 conversation with the 1^st defendant, the father said in his affirmation that could not recall the conversation at all having regard to the fact that the evidence of that conversation and its contents were unchallenged.  Also on 31 May 2000, the 1^st defendant’s employment by the family companies was terminated.

18.  The father died on 2 October 2000. 

19.  The judge accepted the evidence of the 2^nd and 3^rd defendants that the 1^st defendant had their consent to live at the property and that she also had the consent of CCC to do so before his death in 1995.

20.  Based on those facts, the judge reached the following conclusions:

(1)	the 1st defendant had implied authority from the plaintiffs to reside in the property at least until the expiration of the notice to quit by 23 January 2000;
(2)	the 1st defendant’s entitlement to reside in the property as part of her remuneration package for working in the family business terminated on 31 May 2000 when her employment by the family companies came to an end;
(3)	the fact that Lim Bee’s children remained in undisturbed possession of the property for about 20 years after the 1982 assignment coupled with the fact that the assignment was not a gift nor made for valuable consideration gave rise to an irresistible inference that the assignees of the 1982 assignment took the legal title subject to certain obligations;
(4)	those obligations were described by the judge (at paragraph 27 of his judgment) in the following terms:
	“27.   … it was understood by members of the family, including the 1st Plaintiff, the 1st Defendant and her half-siblings to whom the Property was assigned, that despite the assignment, the Property would remain as the family home for the Lim Bee’s line of children and that the Father, as head of the family, would continue to make decisions as regards the Property, though he no longer held its legal title.  What in fact she was saying in laymen’s term is that the Property was held on trust by the assignees for the Father, even though it was not so pleaded.  Accordingly, I find that despite the assignment, the Father remained as the beneficial owner of the Property, at least to the extent of a life interest in the Property.  He may remain in possession in the Property for as long as he wished and may grant licence to anyone to use and enjoy the Property. …”
(5)	given the father’s interest in the property, he had the power to and did grant the 1st defendant a licence to stay in the property which was never revoked during his lifetime; and
(6)	the 1st defendant’s occupation of the property was non-exclusive.

21.  Although the judge rejected the 1^st defendant’s defences based on family tradition, arrangement or understanding in favour of an unmarried daughter and estoppel, his findings summarised above meant that the plaintiffs’ claim in trespass prior to 2 October 2000 fell to be dismissed.  As to the 1^st defendant’s occupation after the death of the father on 2 October 2000, it was contended on her behalf that she was entitled to do so with the permission and as the “representative or agent” of the estate of CCC.

22.  The judge held that (1) until the re-sealing of the grant in Hong Kong on 11 October 2000, the 1^st and 2^nd defendants had no interest in the property; (2) beneficiaries under an intestacy have no beneficial interest in the assets of the estate and the 2^nd and 3^rd defendants as CCC’s beneficiaries were not in a position to grant the 1^st defendant a licence to occupy the property applying Commissioner of Stamp Duties v Livingstone [1965] AC 694; (3) the 2^nd and 3^rd defendants from the date of re-sealing of the grant as administrators of CCC’s estate were entitled to authorise the 1^st defendant to occupy, use and enjoy the property on a non-exclusive basis on their behalf whether as agent or licensee; and (4) that such licence could not be terminated by the plaintiffs without the consent of the 2^nd and 3^rd defendants.  Those findings meant that between 2 and 11 October 2000, the 1^st defendant was in occupation as a trespasser and he so held.  The damages awarded in favour of the plaintiffs for that period were based on 4/5ths of the rental value of the property, which the judge assessed at $36,812.90.

The appeal

23.  The appeal focused on two matters: (1) the father’s life interest in the property; and (2) the ability of the 2^nd and 3^rd defendants as representatives of the estate of one of the tenants in common to grant a licence to the 1^st defendant. 

Life interest

24.  The thrust of the argument was that it was not open to the judge on the pleadings to find that the father had a life interest in the property.  It was said that even if there had been the understanding that notwithstanding the 1982 assignment, the father could deal with the property as he liked, that would not have created any proprietary interest in the property.  Any obligation in that context could only have been binding either in personam or as a matter of honour.  It was also said that a person who only had a life interest was not in the position to dictate how the property was to be dealt with.

25.  In paragraph 8 of the re-amended defence of the 1^st defendant, particulars were given of the assertion that she had been occupying the property pursuant to a family arrangement.  Paragraph (11) read as follows:

“(11)

In the early 1980s the Cheung family group of companies controlled by the said Cheung Kung Hai experienced financial difficulties; the said Cheung Kung Hai had personally guaranteed repayment of loans made to those companies; in order to avoid the Property being the subject of enforcement proceedings, the said Cheung Kung Hai caused ownership of the Property to be transferred to his second wife Chin Lan Hong (the 1st Plaintiff) and to his sons, namely, Cheung Chin Chye, Cheung Theam Siew, Cheung Kee Wee and Cheung Lin Wee; the said transfers were made on the understanding between Cheung Kung Hai, the said transferees and all members of the family that the Property was, and would continue to be, the family home and that the said Cheung Kung Hai, as head of the family, would continue to make decisions as regards the Property despite its no longer being registered in his name and that the Property would continue to be available for members of the family to live in.”

There was a request for further and better particulars directed at the alleged understanding of the property remaining the family home as to whether it constituted a binding contract or is otherwise enforceable at all and, if so, the legal basis thereof.  The following particulars were given:

“(5)	A licence revocable in limited circumstances (namely the provision of equivalent alternative accommodation by the paterfamilias) only, binding upon the Plaintiffs in equity.”

There was never any request made of the understanding regarding the father’s right to “continue to make decisions”.

26.  Mr Shieh SC who appeared for the plaintiffs submitted that that answer given to the request was inconsistent with any suggestion of the carving out of a life interest for the father and the father then granting a licence.  But when fairly read, the answer stated quite clearly that the 1^st defendant was asserting a licence granted by the father and which was binding on the plaintiffs in equity.  It was further submitted that the plaintiffs’ understanding of the 1^st defendant’s case that her right to live at the property was linked to the unmarried daughter’s equity which did not find favour with the judge.  But the 1^st defendant’s pleadings amounted to this: notwithstanding the 1982 assignment, there was a family understanding to the effect that not only could the father continue to use the property as a family home, but also that as regards any matter that had to do with the property, in colloquial language, the father would still be “calling the shots”.  Those matters must, it seems, include any decision to renovate, redevelop, lease or sell the property.  That right or interest must necessarily encompass a right to grant the 1^st defendant a licence to occupy the property on a non-exclusive basis.  Once granted, that licence would be binding on the plaintiffs in equity and whilst it was revocable by the father, he could only do so in limited circumstances, namely, by providing the 1^st defendant with the equivalent alternative accommodation.

27.  In paragraph 27 of his judgment (cited above), the judge accepted the 1^st defendant’s evidence as regards the family understanding concerning the 1982 assignment outlined above.  As I understand it, this appeal has not been put on the basis that the judge’s finding of the existence of the family understanding that the father would continue to make decisions regarding the property should be reversed.  In other words, no challenge is being made in the appeal against this finding of fact.  That being so, it must follow from that finding that despite the 1982 assignment, the father did retain a beneficial interest in the property.  Whether or not the judge was correct to describe that interest as a “life interest” in the property matters not. 

28.  It was urged before this court that a finding of “a full beneficial ownership” would have serious estate duty implications.  But the possibility of such implications arising ought not deter the court from reaching such a conclusion if warranted by the evidence and if necessary for the resolution of the issue between the parties.  In my view, it is unnecessary to explore the precise parameters of that interest or to give it a label because during the lifetime of the father, at a minimum, it was an interest that enabled him to grant the 1^st defendant a licence to occupy the property non-exclusively during his lifetime which was binding in equity on the plaintiffs.

29.  I should briefly mention the plaintiffs’ fallback position.  It was said that the father had, at the latest by 31 May 2000, withdrawn any permission for the 1^st defendant to remain in occupation.  This submission was grounded upon the affirmation signed by the father in the presence of Mr Sit, a solicitor whose unchallenged evidence the judge had found to be of “undoubted credibility”.  As noted above (see paragraph 17), the judge attached no weight to Mr Sit’s evidence.  Suffice it to say that on no view could it be said that the judge was plainly wrong in so doing.  To the contrary, there was ample material before the judge to warrant the finding made.  The following extract is from Mr Sit’s evidence:

Q.	I see.  And when you said he wasn’t in full control of his faculties, one example is, he wasn’t able to converse with you normally like other people.  So is it correct that he had some difficulty in talking, was that what you were describing?
A.	Say that I can’t remember exactly what I said to him when I started.  I would have -- after sitting down, I asked him if he was the person I was supposed to take the affirmation from, I would have asked him if he was Mr Cheung Kung-hai…
…
A.	I would have asked him something like, “Are you Mr Cheung Kung-hai”, and if he was normal, he would have said to me like, “Yes, I am indeed that person.  Thank you for coming over here,” something like that.
Q.	Right.
A.	But he just respond in the affirmative, by nodding his head.
Q.	He just nodded, I see.
A.	He might have said “yes” in the process, but he didn’t say much and judging from the fact that he had his nurse with him, I had the feeling that perhaps he wasn’t -- he wasn’t in full control of his faculties.
(Tr. p. 118D-L)

Its significance is brought home by a careful reading of the transcript of the conversation that took place only 3 months earlier in February 2000 (referred to in paragraph 17 above).  It shows that the father, then 85 and ailing, was not a person in control of his faculties.  It gave the impression of a sick and elderly man mechanically repeating what the 1^st plaintiff had reminded him of without any real recollection or understanding, susceptible to manipulation and a person with an apparent lack of memory.  The latter alone would negate “informed” consent.  There is simply no basis for interfering with the judge’s treatment of the evidence.

Whether one of several tenants in common may grant a non-exclusive licence

30.  In practical terms, the question is whether the 2^nd and 3^rd defendants could validly grant the 1^st defendant a licence to occupy the property on a non-exclusive basis as from 11 October 2000 notwithstanding objections from the other tenants in common.  Mr Shieh SC relied on Annen v Rattee [1985] 1 EGLR 136 and Robson-Paul v Farrugia (1969) 20 P&CR 820 for the proposition that one of several tenants in common may not unilaterally and against the wishes of the other tenants in common grant a licence to a third-party that was effective against the other tenants in common, the corollary of which may be put on the basis that a co-owner may terminate a licence granted by another co-owner to occupy the property jointly owned by them.

31.  I propose, first of all, to consider the rights of legal tenants in common.  Their rights were stated by Denning LJ in Bull v Bull [1955] 1 QB 234 at 237 in these terms:

“Each of them is entitled to the possession of the land and to the use and enjoyment of it in a proper manner.  Neither can turn out the other; but if one of them should take more than his proper share the injured party can bring an action for an account.  If one of them should go so far as to oust the other he is guilty of a trespass: see Jacobs v. Seward.  Such being the rights of legal tenants in common, I think that the rights of equitable owners in common are the same, save only for such differences as are necessarily consequent on the interest being equitable and not legal.  It is well known that equity follows the law; and it does so in these cases about tenants in common as in others”.  (emphasis added)

These rights were more recently considered in the decision of Paterson J in U-Needa Laundry Ltd v Hill [2000] 2 NZLR 308:

“[24]    … Because a tenant in common has an undivided share, that tenant is free to deal with his or her share as he or she sees fit.  On the other hand, joint tenants do not have undivided shares.  In the case of joint tenants, as the property or rights are held jointly, a transfer or lease must be by or under the authority of all interested.  Because of the unity of title, it is not possible for one co-owner to deal with the property without the authority of others.  That is not the position with tenancy in common as the co-owner is only dealing with his or her particular interest in the title.  It is the interest of the co-owner which is being leased and which entitles the lessee to possession to be shared with the other co-owners.

[25]      For the above reasons I am of the view that the statements in the English authority are not relevant to the legal rights of tenants in common in New Zealand.  The position in New Zealand is as it was in the United Kingdom before the passing of the Law of Property Act 1925 (UK).  That position was stated in Woodfall: Landlord and Tenant in para 2.102 as follows:

‘Tenants in common needed to have only unity of possession; they might have unequal shares, and there was no right of survivorship.  Each tenant in common could at common law make a lease in respect of his own share alone, the interest of each being separate and distinct, and if tenants in common all joined in one lease it operated as a lease by each of his respective share, and a confirmation by each as to the shares of the others.’”

32.  The position in Hong Kong is similar to that in Australia and New Zealand and in the United Kingdom prior to the 1925 legislation.  A tenant in common is entitled to deal, in whatever way he desires, with his own undivided share: he may lease it or dispose of his right to possession to a stranger as he likes without the concurrence of the other tenants in common.  See Incorporated Owners of Chungking Mansions v Shamdasani [1991] 2 HKC 342 at 352 G-H.

33.  What then of the authorities relied on by Mr Shieh?  The first matter to note is that both authorities are based on the decision of Lord Tenterden CJ in Doe d Aslin v Summersett (1830) 1 B & Ad 135, a case concerning the rights of joint tenants in law and in equity.  In that case, the land in question had been devised to the two lessors of the plaintiff as joint tenants.  The question before the court was whether a notice to quit, signed by one of two joint tenants, was sufficient to put an end to the tenancy.  In holding that the notice was sufficient, Lord Tenterden CJ gave the following explanation (at page 739):

“But, though upon a joint lease by joint-tenants each demises his own share, this is not the only operation of such a lease.  Joint-tenants are seised not only of their respective shares, per my, but also of the entirety, per tout; Litt. s. 288.  The rent reserved will enure jointly to all the lessors; Co. Litt. 47 a. 192 a. 214 a.; and if any of them die, the lessee shall hold the whole as tenant to the survivors.  Upon a joint demise by joint-tenants upon a tenancy from year to year, the true character of the tenancy is this, not that the tenant holds of each the share of each so long as he and each shall please, but that he holds the whole of all so long as he and all shall please; and as soon as any one of the joint-tenants gives a notice to quit, he effectually puts an end to that tenancy; …”

34.  As succinctly explained in the U-Needa case, a lease by a tenant in common of his interest in the land operates differently: the lessee of that interest has to share possession with the other co-owners which could lead to practical inconveniences.  In the U-Needa case at paragraph 26, Paterson J cited the following passage from Re Marcellos (1940) 41 SR (NSW) 154, 155:

“The rarity of a lease by one of two tenants in common is explained by the inconvenience to which it may lead, as illustrated in Woodfall on Landlord & Tenant, 17th edn 15.  But if one tenant in common is willing to submit to or to create this inconvenience and can find a lessee, there appears to me to be no objection in law to his granting a lease.”

35.  In my view, the judge’s statement of the law, in particular at paragraphs 77 to 79 which Mr Shieh sought to impugn is correct.  The 2^nd and 3^rd defendants as representatives of the estate of CCC had the power to grant the 1^st defendant a licence to occupy the property on a non-exclusive basis.  That licence could not be determined by the other tenants in common without the consent of the 2^nd and 3^rd defendants.  Accordingly, the plaintiffs cannot maintain a claim in trespass in respect of the 1^st defendant’s occupation of the property as from 11 October 2000.

The cross appeals

36.  The cross appeals relate to two issues: (1) whether the doctrine of relation back applies to the facts of the present case such that as from the resealing of the grant in Hong Kong on 11 October 2000, the 2^nd and 3^rd defendants could grant the 1^st defendant a licence to occupy the property on a non-exclusive basis as from the death of CCC on 8 August 1995; (2) whether the 2^nd and 3^rd defendant being the sole beneficiaries of CCC’s estate had the power to licence the 1^st defendant to occupy the property on a non-exclusive basis before the resealing of the grant.  There had been a third issue relating to ratification which was not pursued at the hearing.

Relation back

37.  As a general rule, an intended administrator has no power to do anything as administrator before the grant of letters of administration.  The doctrine of relation back is an exception to that general rule.  For the doctrine to apply, it must be shown (1) that the person whose conduct is relied upon as binding the estate should have been acting in the assumed character of an administrator, and he does that if the act is done by him when professedly intending to take out letters of administration so that he is an executor de son tort; and (2) that the act done should be for the benefit of the estate: see per Sir Alan Huggins VP in Chan Pak-man v Chan Pang-fee [1981] HKLR 483 at 506I.  Where the doctrine applies, it results in the administrator being deemed to have been in existence at the relevant time i.e. during the interval between the death and the grant of administration: see Chan Pak-man at 494H.  As Parke B observed in Foster v Bates (1843) 12 M&W 226,

“… when one means to act as agent for another, a subsequent ratification by the other is always equivalent to a prior command nor is it any objection that the intended principle was unknown, at the time, to the person intended to be the agent, the case of Hull v Pickersgill 1 Bro. & B. being authority for that position.”

38.  In the present case, the evidence was that the 1^st defendant had the consent and permission of the late CCC to occupy the property.  The 2^nd and 3^rd defendants obtained a grant in Singapore on 27 December 1996.  In late 1996/early 1997, the 2^nd and 3^rd defendants orally requested the 1^st defendant to look after the property as their agent and/or representatives.

39.  Given those facts, I have no doubt that when the 2^nd and 3^rd defendants requested the 1^st defendant to look after the property as their agent and/or representative, they were acting in the assumed character of administrators of CCC’s estate.  At that time they had just been, or were about to be, granted letters of administration in Singapore.  Whilst the grant was not to be resealed in Hong Kong until 11 October 2000, there is no question but that they were the intending administrators of CCC’s Hong Kong estate. 

40.  That leaves the question whether the act done was for the benefit of the estate.  The test is objective.  It was submitted by Mr Shieh that a gratuitous licence could not possibly have been of benefit to CCC’s estate.  Moreover, it prevented a sale or other profitable use of the property.  But the benefit has to be assessed from the point of view of CCC’s estate and not that of the other co-owners of the property.  The evidence of the 2^nd and 3^rd defendants was to the effect that they made their request because the 1^st defendant was their aunt; she was already living at the property; they enjoyed a close relationship with her as did their father; they therefore trusted her to look after the interests of CCC’s estate; and they themselves were living in Singapore and not Hong Kong.  At that time, the 1^st defendant was the only person residing at the property although, as the judge found, her occupation of the property was on a non-exclusive basis.  CCC’s estate was but one of five tenants in common and the only one not based in Hong Kong.  In those circumstances, it was unarguably in the interests of the estate to have an agent or representative here to look after its interests in the property.  Whilst one may admittedly ‘look after’ a property without residing in it, equally I can discern no disadvantage in having the agent/representative residing there where the relationship with the other co-owners have not been harmonious and it is certainly true that given Hong Kong’s climate, a property is better lived in than left empty.  That is nothing more than plain commonsense.  Therefore I have no difficulty in accepting that the act done was for the benefit of the estate.

41.  The plaintiffs placed reliance on Fred Long & Sons Ltd v Burgess [1949] 2 All ER 484 at 489H where it was held, inter alia, that the principle of relation back cannot be applied so as to invalidate interests lawfully acquired in the interval.  The plaintiffs’ contention was premised on the 1^st defendant being a trespasser.  But, as explained above, CCC’s estate had the power to grant a licence to the 1^st defendant over the objections of the other co-owners.  That being so, the 1^st defendant’s occupation of the property did not and could not give rise to any accrued cause of action in trespass which the application of the doctrine would extinguish.  The Fred Long case is therefore not of assistance.

42.  For my part, I am of the view that both conditions for the doctrine of relation back to operate were fulfilled with the consequence that the doctrine applied to render legal the 1^st defendant’s occupation of the property during the 9 days between the date of the father’s death on 2 October 2000 and the resealing of the grant.

Reasonable notice

43.  Even if I were wrong on the issue of relation back and the father’s licence to the 1^st defendant to occupy the property terminated with his death, she would nonetheless be entitled to reasonable notice to vacate the property.  When the plaintiffs served the notice to quit on the 1^st defendant on 24 December 1999, she was given 30 days’ notice on the assumption that she was occupying the property as a licensee.  I do not see that it is open to the plaintiffs to contend that a shorter period would be appropriate.  In any event, it could certainly not be less than nine days.  This conclusion renders it unnecessary to deal with the other point left in the cross appeals, namely, a beneficiary’s right to grant a licence and I do not propose to do so.

Conclusion

44.  Accordingly, I would dismiss the appeal and allow the cross appeals of the defendants.  I would also make an order nisi that the costs of the appeal be to the defendants and the costs of the cross appeals here and below be to the defendants.