CHAN CHIU LAM AND OTHERS v. YAU YEE PING

HCAP 6/1991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION NO. 6 OF 1991

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J U D G M E N T

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Introduction

1. This is an application relating to the administration of the estate of Sung Chuen Pao ("Sung"). Sung married Madam Chan, the 1st Plaintiff, in Shanghai in 1929. There was no issue arising out of that marriage. They legitimately adopted a daughter, the 3rd Plaintiff. In 1933, Sung took Madam Sung as his concubine. Madam Sung gave birth to two sons and a daughter. Madam Sung and her eldest son predeceased Sung. The second son, called "Momo", was married to Madam Lee. He survived Sung but died before this action was instituted. The daughter is the 2nd Plaintiff in this action. This concubinage was held to be illegitimate and the 2nd Plaintiff is to be treated as an illegitimate child of Sung and a total stranger to Sung's estate. In 1945 Sung took Madam Chu ("Chu") as his second concubine. There was no issue arising out of that concubinage. This concubinage was also found to be illegitimate and Chu is to be treated as a mistress and a total stranger to the estate of Sung.

2. Sung came and settled in Hong Kong in about 1951. A year later, Chu left China to join Sung and lived with him until he passed away in November 1985. Chu applied for grant of letters of administration of the estate of Sung. In support of her application, she made an affirmation in November 1986 deposing that she was the lawful kit-fat wife of Sung who had no other wife or concubine other than herself and had no issue. She was granted letters of administration of the estate of Sung. Chu died intestate on 26 November 1987. In July 1991, the Plaintiffs commenced proceedings against the estate of Chu seeking, inter alia, revocation of the letters of administration granted to Chu in respect of the estate of Sung and an order for an account of the assets of Sung. Initially Chu's estate was represented by her sister. After the sister's death, the niece ("the Defendant") was appointed to represent Chu's estate.

3. The litigation took a convoluted course including an appeal to the Court of Final Appeal. The Defendant is now prepared to submit to judgment so far as Sung's estate is concerned and would be prepared to consent to an order for an account in the common form. The outstanding issue remitted by the Court of Appeal to this court to determine is the footing upon which the account in respect of Sung's estate should be taken.

The law

4. There are two different modes of accounting, to which a personal representative may be ordered to give an account. The personal representative may be compelled to give an account on the common form or on the basis of wilful default. Accounting in the common form requires the personal representative to account only for what he has received of the testator's or intestate's personal estate. Ms Wong, for the Defendant, submitted that this is the appropriate form of accounting to be ordered. In contrast, on taking of an account on the footing of wilful default, the personal representative is accountable also for assets which he has not actually received but which he ought to have and might have received if he had acted with proper diligence. Mr Miu, for the Plaintiffs, submitted that the accounting should be taken on this basis.

5. The two forms of accounting proceed on totally distinct grounds. The former supposes no misconduct. It is assumed that the personal representative acted in good faith and without impropriety. The second form of accounting is based on wilful misconduct, wilful default, wilful neglect or acts known by any other name involving breach of duty. Lord Eldon often said that, as a general rule, in order to obtain an inquiry as to wilful default against an executor or a trustee, the plaintiff must allege a case for such an inquiry, must pray for it, and prove one act at least of wilful default, and that, doing so, the plaintiff may have a general decree as to wilful default. A party seeking such a decree has to prove a loss of at least one asset received in the hands of the personal representative or which might have been received but not so received and that the loss or omission occurred under circumstances as to show wilful default on the part of the personal representative. In other words, he must prove a causal connection between loss and breach of duty. The personal representative may have acted erroneously but in good faith. He may have made a wrongful payment and caused loss to the estate, but the wrong can be put right by disallowing the payment when he brings in his account. That wrongful payment does not bring all his dealings with the estate into question and it would not be right to charge him with loss attributable to some other breach of duty, unless that wrong is attributable to a proven breach of duty. The situation would be otherwise if the loss is shown to have been occasioned by wilful default on the part of the personal representative. Then all his other dealings with the estate must be viewed with circumspection.

The material circumstances

6. Before considering the loss and Chu's misconduct, it is useful to set out the circumstances peculiar to Chu. Though she was not Sung's concubine de juri, she was his de facto concubine. She was recognised as his concubine by all the members of Sung's family, by that I include his wife, his first concubine, his adopted daughter and their issues. She also considered herself as such and addressed the 1st Plaintiff as her elder sister, a term which in the particular context implied submission to the 1st Plaintiff's hierarchal status in the family. Similarly in her letters to the 3rd Plaintiff, she signed herself as mother, reflecting her belief of her status in the family. As written by Chu in her letter to the 1st Plaintiff dated 19 January 1986, she lived with Sung for more than 40 years and considered herself a spouse of Sung. She was concerned with the welfare of Momo and considered him as part of her family, if not as her own issue. She applied the proceeds of sale of her own flat towards the purchase price of a flat in North Point ("the North Point Premises") to be held in the joint names of herself, Momo and his wife and to live with Momo's family there. She must have done so with the knowledge that in normal course of event, her contribution to the purchase price would have passed to either Momo or his wife by survivorship. I have not the slightest doubt that Chu regarded herself as a Sung's lawful concubine, though as a matter of law she was not. But what she did in relation to Sung's estate must be understood in that light and the inference as to her intentions must be drawn bearing in mind those circumstances.

The loss and wilful default

7. Since a causal connection between the loss and wilful default must be proved, it is more convenient to deal with both issues together. According to the Particulars of Fraudulent Conduct filed by the Plaintiffs, the misconduct alleged are (1) Chu's selling of two tranches of a total of 22,359 shares of Hongkong & Shanghai Banking Corporation Limited ("HSBC shares"), (2) Chu's fraudulent declaration that Sung died without issue and had no other wife or concubine other than herself in her oath of administration and her failure to administer or attempt to administer Sung's estate after obtaining the grant of letters of administration.

8. The two tranches of HSBC shares had not been disclosed to the Estate Duty Office and were not included in the Schedule of Property of Sung's estate ("Sung's Schedule"). Upon production of the documents of transfer relating to these shares and the bought and sold notes in respect of the first tranche, the Defendant's solicitors conceded that Chu had sold the first tranche of shares but not the second tranche. However, they were prepared, for the purpose of disposing of the present application, to accept that the second tranche had also been sold by Chu. In her letter dated 17 December 1985 to the 1st Plaintiff, Chu wrote that two months before Sung's death, Sung transferred some shares to her for her "to make good arrangements if anything should happen to him". In my view, as the signatures of the transferor on the documents of transfer in respect of the second tranche are similar to those on the documents of transfer in respect of the first tranche and in view of the concession made in respect of the first tranche of shares, the inference that Chu had also sold the second tranche of shares could readily be drawn. Much has been commented by the Plaintiffs of the Defendant's initial refusal to admit selling the HSBC shares. The Defendant has no personal knowledge of what had happened. She was a total stranger appointed to represent Chu's estate. The cautious stance adopted by her is only to be expected. No adverse inference could be drawn against the Defendant or Chu for failing to promptly admit Chu's sale of these shares.

9. The Defendant explained that the cash assets in Sung's estate were exhausted in paying estate duty and that prior to obtaining letters of administration of Sung's estate on 15 January 1987, Chu made undisputed payments totalling $344,268.40 in paying funeral and related expenses, distributing $100,000 to the 1st Plaintiff on 7 March 1986 and 24 April 1986, paying $20,000 to the 2nd Plaintiff in July 1986 and April 1987 and in paying the last instalment of estate duty on 15 September 1986. Hence, Ms Wong submitted that the inference that could be drawn from these payments and the timing of the payments is that the proceeds of sale of these shares in the amount of $171,080.40 were applied to finance in part the discharge of these payment obligations. She argued that hence there was no loss to the estate and the question of Chu's conduct does not even arise.

10. This is a possible explanation or an account. As Chu was probably not a very sophisticated person with good knowledge of the law, she may not realise that Sung's transfer of the shares were caught as part of Sung's estate. Even if she was aware of that, she might have conveniently excluded those shares from Sung's Schedule for the purpose of saving estate duty. Dishonest as that may be, failure to include those shares in the Schedule as such is not evidence of misconduct which resulted in loss to the estate. The real question is whether by not including those shares in the Schedule and by selling them, Chu had appropriated those shares or their proceeds of sale to herself with the intention of permanently depriving the estate of those shares or proceeds of sale. Chu is not here to answer those questions. I shall have to make a finding based on inference from all the circumstances.

11. The second misconduct alleged is Chu's fraudulent declaration in the oath of administration and her failure to administer or attempt to administer the estate after obtaining letters of administration. Again, Ms Wong submitted that there was no loss to the estate. In my view, the issue is whether by transferring the property to herself or by failing to distribute the estate, Chu intended to permanently deprive the beneficiaries of their share in the estate.

12. I shall consider these issues by taking the most favourable view of Chu by assuming that she honestly believed she had acquired the status of Sung's concubine and she regarded herself as part of Sung's family. She must know that what she deposed was blatantly false. Sung was survived by his wife, the 1st Plaintiff and a son and a daughter by Madam Sung, apart from herself. Why Chu made the fraudulent declaration is now a secret buried in her grave with Sung in Shenzhen. I would have to make a finding of her intention based on inferences. It could be said that she did so for convenience to facilitate easy administration of the estate. But the overwhelming inference is to the contrary.

13. In her letter to the 1st Plaintiff dated 17 December 1985, she told the 1st Plaintiff that the value of Sung's estate was about $600,000. When the 1st Plaintiff asked for $150,000 by way of distribution, she tried to make further deductions from the said $600,000 and offered her $100,000 and the 2nd Plaintiff $20,000 only. She paid the 1st Plaintiff $100,000 by two instalments. On the receipt in respect of the second instalment, the 1st Plaintiff was asked to acknowledge giving up her right to Sung's estate in Hong Kong. According to the Sung's Schedule, the value of Sung's estate, excluding the 22,359 HSBC shares was $2,720,125.71. Her representation to the 1st Plaintiff was such a gross understatement that it could not have been an honest mistake. The inference is that Chu was engaged in a fraudulent design to deceive the Plaintiffs of their entitlement to Sung's estate. Even if that was done for the purpose of preserving the estate for Momo in the way she saw fit as Momo's parent, that was nevertheless a fraudulent preference, which if carried out would be a misappropriation of the estate and a breach of duty.

14. As the Schedule of Property of Chu's estate ("the Chu's Schedule") shows, the value of the shares under Chu's name at the time of her death two years later was $5,210,396.84. There is nothing to explain how a housewife, like Chu, could have acquired such a wealth. However, a tracing exercise carried out by the Plaintiffs showed that about 40% worth of the shares (i.e. about $2 million) shown in the Chu's Schedule could be traced to the Sung's Schedule. That effectively means, the majority if not all of the shares belonging to Sung's estate had been appropriated by Chu to herself. She could have appropriated the shares to herself as administrator of Sung's estate or to herself personally. But the fact is that she did not distribute them to the beneficiaries, such as the 1st and 2nd Plaintiffs or to Momo and the 3rd Plaintiff. This fact and the inference I drew earlier that she was deceiving the 1st and 2nd Plaintiffs out of their entitlement to Sung's estate points to the irresistible inference or conclusion that when appropriating the shares belonging to Sung's estate to herself, Chu did so by way of distribution to herself in her personal capacity with intention to permanently deprive the estate or the beneficiary of the shares and that since the transfer she held the shares in her personal capacity and not as administratrix of Sung. The shares were not held by her as administratrix pending distribution. She has therefore misappropriated the shares to herself and Sung's estate suffered significant loss.

15. Likewise, I conclude that the two tranches of HSBC shares were appropriated by Chu with intention to permanently deprive the estate of the shares. If there is any explanation the Defendant wishes to offer, that could be done by way of giving an account.

Conclusion

16. Accordingly, I am satisfied that the Plaintiffs have shown the estate suffered loss. The loss included the two tranches of HSBC shares sold by Chu and almost the entirety of Sung's estate which has found its way into Chu's estate. I am also satisfied that the loss was occasioned by Chu's wilful default in that she fraudulently declared she was the only surviving wife entitled to the estate of Sung which enabled her to obtain the letters of administration for Sung's estate and to appropriate Sung's estate to herself. Accordingly, I order that the account to be taken of the Sung's assets in accordance with the terms of Keith JA's second judgment on the footing of wilful default.

17. I agree with Ms Wong's submission that this is not an appropriate occasion to consider the other detailed questions raised by the 3rd Plaintiff, namely as to what should or should not be included in the account and as to how Chu's estate should restore the undisbursed and undistributed assets in Sung's estate to the 1st Plaintiff's estate and the 3rd Plaintiff. These matters should be dealt with in the course of taking of the account.

18. I make a costs order nisi that the Plaintiff shall have costs of this application, including those costs reserved by Deputy High Court Judge Woolley in respect of the hearing on 9 April 2002.

Representation:

Mr Nelson Miu, instructed by Messrs Fong & Ng, for the 3rd Plaintiff

Ms Lisa Wong, instructed by Messrs Fan Wong & Tso, for the Defendant

Remarks:
Appeal by the Defendant to Court of Appeal. Appeal allowed. Please refer to the appeal judgment of CACV000209/2003.

HEADNOTE

[(1) A union of concubinage is recognised by law and comes within section 13(2) of the Intestates' Estates Ordinance (Cap. 73) if it is a union which the law recognises as one to which legal rights attach, even if the union falls short of one which the law regards as valid and lawful.

(2) Although it was not possible for a woman to acquire the legal status of a concubine in China following the promulgation of the Marriage Law of the People's Republic of China on 1st May 1950, the subsequent grant of various legal rights to women who had been de facto concubines prior to the abrogation of the Civil Code on 29th September 1949 meant that their unions were recognised by the law of the People's Republic of China.]

HCAP 6/91

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 6 OF 1991

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J U D G M E N T

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Introduction

1. Concubines are a relic of China's imperial past. Their survival well into the twentieth century is an anachronism, inconsistent with modern thinking about monogamy, female emancipation and equality of treatment for women. The legal status of concubines now comes before the court again - this time in the latest episode in the saga relating to the estate of a woman who was taken in concubinage in Nationalist China in 1945.

2. The history of the litigation is set out in the judgment given on 24th April 1998, which disposed of a number of issues which divided the parties. That judgment is reported at [1998] 1 HKLRD 716. A reading of that judgment is essential to an understanding of the issues now before the court. In a nutshell, the action concerns the estate of Madam Chu Lee (who was also known as Chu Lan Fan). She died intestate in Hong Kong in November 1987. She had been taken as a concubine by Sung Chuen Pao (who was also known as Robin Sung) in Shanghai in 1945. However, she had not been his first concubine. In 1933 in Shanghai, Mr. Sung had taken Madam Sung So Chung as his first concubine. Madam Sung bore Mr. Sung three children. She had died by the time Madam Chu died in 1987, but two of Madam Sung's children, Suen Toi Lee (P2) and Sun Ming Sheng ("Momo"), were still alive. Momo subsequently died, and in this action P2 and Momo's estate claim to be entitled to administer Madam Chu's estate and share in it.

The statutory provisions

3. It is useful to recall the relevant statutory provisions. The claim made by P2 and Momo's estate to Madam Chu's estate is based on various provisions in the Intestates' Estates Ordinance (Cap. 73) ("the Ordinance"). The Ordinance has been amended since Madam Chu's death, and all references to the Ordinance in this judgment are to the provisions of the Ordinance as it was at the time of Madam Chu's death. Section 4(5) provided:

"If the intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate."

Since Madam Chu did not have a husband at the time of her death, it is her issue who will share in her estate.

4. Whether P2 and Momo were her issue at the time of her death turns on section 2(2)(b) of the Ordinance, which provided:

"References in this Ordinance to a child or issue of any person shall mean ... if that person is a female, a child of a valid marriage to which her last husband and another female were parties; ..."

Thus, the claims of P2 and Momo's estate to Madam Chu's estate depend on Mr. Sung having been Madam Chu's "husband" and on Mr. Sung and Madam Sung having contracted a "valid marriage" within the meaning of the Ordinance. Here, P2 and Momo's estate rely on para. 2 of the Schedule to the Ordinance which provided:

"(1) A child of a union of concubinage shall be regarded for the purposes of the Ordinance as the child of a valid marriage.

(2) The reference in section 2(2)(b) to 'husband' shall be construed as including a reference to the male partner of a union of concubinage."

A "union of concubinage" was defined in section 13(2) of the Ordinance, which provided:

"In this section and in the Schedule, 'union of concubinage' means a union of concubinage, entered by a male partner and a female partner before the appointed date under the Marriage Reform Ordinance, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally."

The appointed date under the Marriage Reform Ordinance was 7th October 1971.

5. Accordingly, the crucial question is whether Mr. Sung and Madam Sung, and later Mr. Sung and Madam Chu, had entered a "union of concubinage" within this definition. If they had, it will be P2 and Momo's estate who will share in Madam Chu's estate. If they had not, and if Madam Sung and Madam Chu had simply been his mistresses with no legal rights or status, it is Madam Chu's brothers and sisters (or their respective estates) who will share in her estate pursuant to section 4(8) of the Ordinance.

The current issue

6. In the earlier judgment, I decided that the words "union of concubinage" in section 13(2) of the Ordinance relate to a union of concubinage de jure, and not a union of concubinage de facto. I shall have to return to the meaning of those phrases a little later. I also decided that the union of concubinage ceased to be recognised in China as a legitimate legal status with effect from the coming into operation on 5th May 1931 of Book IV of the Civil Code of the Republic of China (which governed family law). However, those findings did not necessarily mean that the claims of P2 and Momo's estate to a share in Madam Chu's estate had to be dismissed. Their alternative case, as outlined by their counsel, Mr. Nelson Miu, at the earlier hearing was that even if Chinese law did not continue to recognise concubinage as a legal status up to 5th May 1931,

(a) Madam Sung and Madam Chu were subsequently recognised as the concubines of Mr. Sung under Chinese law once the Civil Code had been abrogated on 29th September 1949, and

(b) Madam Chu was recognised as the concubine of Mr. Sung under Hong Kong law once they had acquired domicile in Hong Kong prior to the coming into force of the Marriage Reform Ordinance in 1971.

Mr. Miu no longer wishes to argue that Madam Chu was recognised as the concubine of Mr. Sung under Hong Kong law. Accordingly, the issue which I now have to decide is whether Madam Sung and Madam Chu were recognised as the concubines of Mr. Sung under Chinese law once the Civil Code had been abrogated.

The distinction between de jure and de facto concubinages

7. I return to the phrases "union of concubinage de jure" and "union of concubinage de facto". The phrase "union of concubinage de jure" was the phrase used in my previous judgment to describe a union of concubinage "recognised by law" (see p.721F). It was to be distinguished from a union "which, whether or not it was recognised by the law, had the attributes of a union of concubinage - the acceptance of the concubine by the male partner's wife, and the recognition of the concubine as his concubine by his family generally - i.e. a union of concubinage de facto" (see p.721G).

8. However, relationships between men and women can be recognised by the law in different ways. Thus, their relationship might be one which the law recognises as a valid and lawful relationship. Marriage is such a relationship. But other relationships between men and women can be said to be recognised by the law even if that relationship falls short of one which the law recognises as valid and lawful. Such a relationship can just as easily be described as a relationship recognised by law if it is a relationship which the law recognises as one to which certain legal rights attach. Thus, a union of concubinage comes within the meaning of section 13(2) of the Ordinance if

(a) it was entered before 7th October 1971,

(b) accepted by the man's wife, and

(c) recognised by the man's family,

and if the law accorded legal rights to one or other of the parties to it. I therefore cannot go along with the contention of Ms. Lisa Wong for the Defendant that for a union of concubinage to come within section 13(2) of the Ordinance, the union has to be recognised by the law as such, i.e. as a valid and lawful one.

9. This refinement of what constitutes a union of concubinage within the meaning of section 13(2) of the Ordinance does not affect in any way the conclusion which I reached about the legal status of concubines in Nationalist China following the coming into operation of the Civil Code. Not only were unions of concubinage not recognised in that period of Chinese history as valid and lawful unions. Women in de facto unions of concubinage were not accorded any legal rights either. Such rights as were accorded to them were accorded to them as "members of the house" and not as de facto concubines.

The position of concubines under the law of the People's Republic of China

10. Two experts on Chinese law have given evidence before me on this issue. Madam Zhang Guo Rong was a witness for the Plaintiffs, and Prof. Anthony Dicks S.C. was a witness for the Defendant. Madam Zhang is a lawyer in private practice, and her expertise on the law of the People's Republic of China is not challenged. As for Prof. Dicks, although he is an acknowledged expert on Chinese law prior to the establishment of the People's Republic of China, Mr. Miu questioned Prof. Dicks' expertise on the law of modern China. I have no doubt that Prof. Dicks has the expertise to give expert evidence on both the law of modern China in general, and the family law of the People's Republic of China in particular.

(i) From 29th September 1949 to 30th April 1950. On 29th September 1949, the entire pre-existing legal system of the Republic of China was abolished as part of the provisional constitutional arrangements for the People's Republic of China. Laws governing concubinage were not promulgated until 1st May 1950. Did that mean that the pre-existing traditional legal system, under which concubines had been recognised, was revived? Madam Zhang did not directly answer this question, but Prof. Dicks' view is that such a suggestion would be "wholly unrealistic". His opinion is that "it was plainly intended to bring about a complete break with the whole of the past in legal terms as part of a revolutionary change in society as a whole". I accept that evidence, which seems to me to accord with the views which the Central People's Government would have held on the institution of concubinage. Thus, until the enactment of laws governing concubinage, there was a legal vacuum in connection with their status and the legal rights which they enjoyed. The absence of any law governing their status or their rights meant that during that time it cannot be said that a union of concubinage was a union recognised by law.

(ii) From 1st May 1950. On 1st May 1950, the Marriage Law of the People's Republic of China was promulgated. Arts. 1 and 2 provided as follows:

"Article 1

The feudal marriage system based on arbitrary and compulsory arrangements and the supremacy of man over woman, and in disregard of the interests of the children, is abolished.

The New Democratic marriage system, which is based on the free choice of partners, on monogamy, on equal rights for both sexes, and on the protection of the lawful interests of women and children, is put into effect.

Article 2

Bigamy, concubinage, child betrothal, interference in the re-marriage of widows, and the exaction of money or gifts in connection with marriages, are prohibited."

The prohibition on concubinage in Art. 2 meant that from then on it was not possible to acquire the legal status of concubine. It was unclear from the language of the Marriage Law what effect, if any, the Marriage Law was intended to have on de facto concubinages which had come into existence before its promulgation. However, both Madam Zhang and Prof. Dicks are agreed that over the years concubines whose de facto concubinages had come into existence prior to 29th September 1949 were accorded the same legal rights as those enjoyed by wives in modern China in relation to divorce, matrimonial protection and inheritance. In those respects, such concubines were far better off under the law than they had been prior to 29th September 1949. In my judgment, the grant of these rights to women who had become concubines prior to 29th September 1949 meant that the unions of concubinage to which they were parties were recognised by the law of the People's Republic of China, even though the law did not go so far as to recognise the unions to be valid and lawful.

11. This disposes of the principal argument developed by Ms. Wong. In a submission of conspicuous clarity, she argued that the agreed facts and the evidence of Madam Zhang and Prof. Dicks show that the distinction between a wife and a concubine under traditional Chinese law had been eliminated. A woman who had been taken in concubinage prior to 29th September 1949 was subsequently treated as a wife of her partner enjoying a status equal to that of her partner's first wife. Accordingly, if the law did not distinguish between a wife and a concubine, it was meaningless to speak of concubines enjoying a status which the law recognised. The trouble with that argument is that it assumes that the only way in which a union of concubinage can be recognised by law is if the law recognises it as having a separate legal status of its own. For the reasons I have given, I do not believe that to be the case.

Conclusion

12. It is not disputed that Mr. Sung's wife accepted Madam Sung and Madam Chu as his concubines, and that Mr. Sung's family recognised them as his concubines. Since the law of the People's Republic of China accorded Madam Sung and Madam Chu legal rights by virtue of their position as his de facto concubines, I find that they had entered unions of concubinage with him within the meaning of section 13(2) of the Ordinance. It follows that Mr. Sung was Madam Chu's husband, and that Mr. Sung and Madam Sung had contracted a valid marriage, within the meaning of section 2(2)(b) of the Ordinance. That means that P2 and Momo's estate are entitled to a share in Madam Chu's estate, and I order that they be granted letters of administration in respect of her estate.

13. I turn to Mr. Sung's estate. I have already ordered that the grant to Madam Chu of letters of administration in respect of his estate be revoked. I now make the following additional orders, which are based on what the Defendant has been prepared to submit to in the past:

(i) an order that Mr. Sung's widow (P1) and P2 be granted letters of administration in respect of Mr. Sung's estate;

(ii) an order that an account to be taken of:

(a) those of Mr. Sung's assets which came into Madam Chu's hands,

(b) Madam Chu's dealings (if any) with Mr. Sung's assets,

(c) such of Mr. Sung's funeral and administration expenses, the estate duties and Mr. Sung's debts and other liabilities as were properly payable and paid by Madam Chu out of the assets of Mr. Sung,

(d) the assets of Mr. Sung already distributed by Madam Chu, and

(e) the undistributed assets of Mr. Sung now included in Madam Chu's estate; and

(iii) an order for the payment out of Madam Chu's estate to P1 and P2 of what is found to be due on the taking of the account with interest thereon.

For the reasons given in my previous judgment at p.728G, it is not now necessary for me to decide whether Madam Chu's estate should account on the footing of wilful default.

14. I should add that the conclusion which I have reached about the legal position of concubines in the People's Republic of China gives effect to what I imagine was the intention of those who drafted the Ordinance. They intended, no doubt, to put concubines on the same footing as wives when it comes to intestate succession. I would not have wanted that intention to have been unwittingly frustrated by the unexpected discovery that concubines did not enjoy a legal status equivalent to wives, even though they acquired other rights which were accorded to wives. It may seem strange that the estate of an intestate concubine with no children should go to the children of her "husband's" other concubine in preference to her brothers and sisters, but that is precisely what section 2(2)(b) of the Ordinance provides for.

15. Finally, I was told at the end of the hearing that both sides were legally aided, and that it may not be obvious what the appropriate order for costs should be. I was therefore invited not to include an order nisi for costs if I handed down my judgment, but instead simply to give the parties liberty to apply as to the costs of the proceedings if they are unable to agree the costs between themselves. I make such an order.

Representation:

Mr. Nelson Miu, instructed by Messrs. John Ku, Tam & Ho, for the Plaintiffs.

Ms. Lisa Wong, instructed by Messrs. Hastings & Co., for the Defendant.