LILY CHEUNG v. CHEUNG WAI KWOK AND ANOTHER

HCAP 3/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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JUDGMENT ON COSTS

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1.  The parties contested for the prior right to administration of the estate of late Madam Luk Kim Ying, deceased (“the Deceased”), which hinged upon the establishing of their respective alleged relationship with the Deceased. The plaintiff (“Lily”) and the 2^nd defendant (“Luk”) claimed to be the daughters adopted by the Deceased in Hong Kong and the Mainland respectively at different times. The 1^st defendant (“Cheung”) claimed to be the surviving lawful husband of the Deceased.

2.  There were the following major questions for determination:

(1) whether Lily is an adopted daughter of the Deceased within the meaning of section 2(2)(c) of the Intestates’ Estates Ordinance, Cap 73 (“IEO”);

(2) whether Cheung is the Deceased’s surviving lawful husband within the meaning of section 3(d) of the IEO;

(3) whether Luk is an adopted daughter of the Deceased within the meaning of section 17(1) of the Adoption Ordinance, Cap 290 and section 2(2)(a) of the IEO;

(4) if Cheung is found to be the surviving lawful husband, whether the court should defer granting letters of administration on the ground that Cheung is suffering from mental incapacity.

3.  After trial, I handed down judgment on 3 June 2015.  I found against Lily in respect of question (1).  I found against Cheung in respect of question (2), and question (4) became academic.  I found for Luk in respect of question (3).  I therefore dismissed the claim of Lily and the counterclaim of Cheung.  I allowed Luk’s counterclaim and granted the declaration of her status as sought.

4.  I deferred judgment on costs pending written submissions by the parties upon the above outcome.  The following submissions have since been lodged:

(1) submission on behalf of the parties respectively all dated 30 June 2015;

(2) reply submission on behalf of the parties respectively all dated 14 July 2015;

(3) further submission on behalf of Lily dated 30 July 2015; and

(4) further submission in reply to (3) above on behalf of Cheung and Luk dated 7 August 2015.

COSTS ORDER SOUGHT BY THE PARTIES

5.  Lily submits that Cheung should pay her costs of defending his counterclaim; such costs should be borne by Luk or alternatively, jointly and severally by Cheung and Luk (without prejudice to the right of Luk to seek indemnity from Cheung for such portion of costs as further determined between themselves), and in any event on an indemnity basis with certificate for 2 counsel.

6.  By the further submission dated 30 July 2015, Lily asks that part of Luk’s costs arising out of the filing of the statement of Hai[1] and the calling of her to testify should be disallowed.  The ground is that such evidence has significantly increased the length of the proceedings and costs.

7.  Cheung and Luk seek (i) no order as to the costs between Lily and Cheung; and (ii) that Lily shall pay Luk’s costs of defending the former’s claim and those of the latter’s counterclaim on indemnity basis.  Luk also contests that as the guardian ad litem of Cheung, she should be made to bear his costs liability to Lily.

Costs between Lily and Cheung

8.  Lily claimed to be the lawful adopted daughter while Cheung claimed to be the surviving lawful husband of the Deceased.  They both failed in their claims, or they succeeded in defending the other’s claim.  Whilst she submits that she is entitled to her costs of defending Cheung’s counterclaim, Lily somehow makes no mention of Cheung’s entitlement to his costs of defending her claim.  I accept the submission on behalf of Cheung that in view of the inevitable set-off between cross costs orders, it will be just to make no order as to costs between Lily and Cheung in the circumstances.

9.  It follows that there is no basis for considering Lily’s argument that Cheung’s costs liability should be discharged by Luk or alternatively Cheung and Luk jointly and severally.  I would nevertheless briefly set out my views on the various points raised in this respect in the submissions.

10.  Essentially it is argued that Luk funded and controlled the conduct of Cheung’s case with a view to her personal benefit, which contradicted her duty as the guardian ad litem and was an abuse of process.  Luk, Lily argues, should be personally responsible for Cheung’s costs liability.

11.  The history of the matter was set out in the judgment.  The dispute first arose out of the competing applications for grant of administration of the estate of the Deceased by Cheung and Lily in 2007.  In March 2008, Lily commenced the present action against Cheung, putting in issue his alleged marriage and husband relationship to the Deceased.  Through his solicitors, he put in his defence, and asserted his right as the surviving lawful husband of the Deceased.

12.  Luk was not joined until 2009 to enable her to put forward her claim to entitlement to the estate of the Deceased on the basis of her adopted daughter status.  The rights of Cheung and Luk to the estate of the Deceased were asserted on the basis of their respective relationship with the Deceased, which did not conflict with each other.

13.  Cheung put in his witness statements in January 2010 and October 2013.  He would have been expected to attend the trial.  Any suggestion that he had all along been mentally incapacitated, or that Luk sort of anticipated such condition of Cheung when she was joined, would have been bold without factual basis.  That fact was that Luk’s application to be appointed as the guardian ad litem of Cheung came only after the certification of his mental condition, and it was 2 weeks before the commencement of trial in February 2014.

14.  The effect of Luk’s application to be appointed as the guardian ad litem was to enable Cheung’s case to continue to proceed.  For such application, I considered and concluded that their positions in this action were not in conflict[2]. Luk, as his guardian, also cared to apply for leave to adduce her supplemental statement with a view to preserving the evidence of Cheung contained in his own statements, which he became unable to verify in court due to his recently certified mental condition.  I also allowed that, subject to weight.

15.  It was only natural to expect Luk to give instructions for the conduct of the defence and counterclaim for herself as well as Cheung since her appointment as his guardian.  That did not suggest conflict of interest between them.  Nothing in the trial suggested that Luk, in her capacity as the guardian of Cheung, and their legal representatives acted otherwise than advancing the case of Cheung as far as the evidence permitted.

16.  Somehow, at the same time, Lily argues that by advancing the case of Cheung, Luk was not acting in conflict but pursuing her own interest.  What Lily refers to is the relief Luk sought in the event that the court held that Cheung succeeded in establishing his entitlement as the surviving lawful husband of the Deceased, and thus his prior right to the grant, but was incapable of managing his affairs by reason of his mental incapacity.  Cheung claimed such relief in her capacity as the adopted daughter of the Deceased and Cheung.

17.  The claim for such relief was introduced only consequential upon Luk’s appointment as the guardian of Cheung just before the trial.  Further, putting aside the validity of its statutory basis[3], which I did not have to decide eventually, I do not think that that would have been a matter concerning Lily, if her claim had failed.  Had Luk failed in her claim, I wonder if she would still have been in a position to seek the relief as if she was the adopted daughter of Cheung.  Had all the parties’ claims based on their respective capacities been established, both Lily and Luk, as the beneficiaries to the estate, would have had their say as to how to go about the prior entitlement of Cheung to the grant.  In the circumstances, I do not see how Cheung’s claim should be viewed as the alternative way for Luk to benefit herself from the estate of the Deceased.

Costs between Lily and Luk

18.  Again no mention is made in the submission on behalf of Lily about Luk’s prima facie entitlement to her costs of her counterclaim and of defending Lily’s claim.  The question Luk raises is whether such costs should be awarded on indemnity basis.  It is argued that Lily ought not to have pursued her claim.  Her credibility and reliance on Hai’s declarations in support, which were not accepted by the court, are also criticized.  Hence basis for ordering indemnity costs against Lily.

19.  An award of indemnity costs is a more generous basis, and in that sense is perceived as achieving a fairer result for the successful party, because it avoids the successful party having to pay part of his costs out of his own pocket.  However, the successful party must show that the case has some special or unusual feature before warranting the consideration of costs on the indemnity basis instead of the usual party and party basis.

20.  The appropriateness of such an order depends on all the circumstances of the case. The attributes of the parties and the character of the proceedings are not irrelevant.  The court’s discretion may be exercised in relation to, but not limited to, cases brought with an ulterior motive or for an improper purpose or where there is some deception or underhand conduct on the part of the losing party.  However such improper conduct generally relates to the conduct of the litigation rather than conduct which constituted the cause or matter giving rise to the litigation.

21.  In the present case, all the parties had some forms of dealings between them and the Deceased at different points of time.  The dispute lied in whether they managed to establish their alleged respective relationship with the Deceased and thus legal status for their alleged rights to the Deceased’s estate as pleaded.  Observations about credibility and reliability of their evidence[4] were made, but I do not consider that to be differing significantly from any other case where the losing party’s account of what happened was not preferred or the court was not satisfied that the claim is proved on the evidence as a whole.  I am not inclined to order costs to be taxed on the high basis in the circumstances.

Costs in connection with Hai

22.  The starting point is that costs should follow the event.  The starting point does not cease to apply simply because the successful party raises issues or makes allegations on which he fails, though, in appropriate cases, he may be deprived of any costs increased significantly because of such failing issues.

23.  Now O.62, r.3(2) of the Rules of the High Court, Cap 4A expressly provides that the court shall (subject to the rules) order costs to follow event, except when it appears to the court that in the circumstances of the case, some other order should be made as to the whole or part of the costs.  The special matters to be taken into account are set out in O.62, r.5, of which the following would be relevant to the parties’ arguments:

“(1) The Court in exercising its discretion as to costs shall, to such extent, if any, as may be appropriate in the circumstances, take into account-

……

(e) the conduct of all the parties;

(f) whether a party has succeeded on part of his case, even if he has not been wholly successful;

……

(2) For the purpose of paragraph (1)(e), the conduct of the parties includes-

(a) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue;

(b) the manner in which a party has pursued or defended his case or a particular allegation or issue;

(c) whether a claimant who has succeeded in his claim, in whole or in part, exaggerated his claim; and

(d) conduct before, as well as during, the proceedings.”

24.  It is the burden of the losing party to show there is good reason to depart from the general rule and to deprive a successful party of costs because of his failure on a discrete issue which has significantly increased the costs.

25.  Essentially Lily’s argument is that Cheung and Luk called Hai as a witness but her evidence was considered unreliable.  That was a failure on their part, which has significantly increased the length and costs of the proceedings.

26.  The argument on behalf of Lily is not an accurate reflection of the position.  It was in the first place Lily’s reliance on the 2004 declarations made by Hai as evidence. Throughout the trial, Lily maintained that.  Hai made her 2013 declaration to overturn what she stated in her previous declarations. Hence her being called to testify.  That part of the trial, and thus the time and costs, was necessitated not entirely by Cheung or Luk.  I concluded in the circumstances that it would be dangerous to place any weight on any of Hai’s declarations.  In that sense, it cannot be said that the purpose of Cheung and Luk was not effectively served.

27.  The time and costs incurred in this respect cannot be said to have been improper or unnecessary.  The basis for considering the deprivation of that part of the costs of Cheung and Luk in defending Lily’s claim, according to the rules of court and the established principles, is not there.

CONCLUSION

28.  Between Lily and Cheung, I make no order as to costs.  Between Lily and Luk, the former shall pay the latter’s costs, including her costs of defending the claim and those of her counterclaim as well as any costs reserved between them.

ORDER AS TO COSTS

29.  I make an order as to costs of this action as aforesaid.  Such costs shall be taxed, if not agreed, with certificate for 2 counsel.

30.  I thank counsel for their assistance.

HCAP 3/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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J U D G M E N T
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1. The parties contest for the right to administration of the estate of late Madam Luk Kim Ying, deceased (“the Deceased”). The plaintiff (“Lily”) and the 2^nd defendant (“Luk”) claim to be the daughters adopted by the Deceased in Hong Kong and the Mainland respectively. The 1^st defendant (“Cheung”) claims to be the surviving lawful husband of the Deceased.

BACKGROUND

2. The Deceased was born on 15 November 1915[1]. Cheung was born on 3 September 1921.  They were allegedly married in Shanghai on 18 March 1949.

3. The Deceased then migrated from Shanghai to Hong Kong, but the exact time of that is unclear.  The Deceased was first issued with identity paper in Hong Kong in May 1951.

4. Lily was born in Hong Kong on 5 April 1951[2]. Her natural father and mother are Lau Kai Hau and Lee Su Wah respectively.  No name was given to her on birth; and she was handed over to the Deceased for raising soon after birth[3].

5. In July 1955, Cheung was sentenced to prison in the Mainland for 5 years.

6. In 1956, when she was 5 about years old, Lily was made a ward under the custody of Cheung Wing Tak (“Cheung WT”).

7. On 5 January 1957, the Deceased entered into a registered marriage with Chao Cheung Yuk (“Chao”) in Hong Kong.

8. On 18 May 1963, Luk was born in the Mainland.

9. On 30 May 1979, Cheung migrated to Hong Kong from Szechuan.

10. In 1979, Lily got married in Hong Kong.

11. In 1980, Cheung Wing Tak passed away.

12. In 1984, the Deceased allegedly adopted Luk in Jiangsu.

13. In 1986, Luk moved to Hong Kong on a one-way permit.

14. In 1990, Luk was married in Hong Kong.

15. In 2001, the Deceased suffered a stroke and was certified to be mentally incapacitated.  The Guardianship Board, after enquiry, appointed Luk as her guardian.  The appointment was subsequently renewed.

16. The Deceased owned, amongst others, various landed properties in Hong Kong, some of which are co-owned with Luk.  In 2003, it was discovered that part of the Deceased’s interest in 2 of her properties was transferred to Luk’s brother by deed of gift.  Luk reported the same, resigned from the guardianship in the same year and consented to the Director of Social Welfare to act as the next friend of the Deceased to commence recovery action against Luk’s brother to set aside the gift.  Hence HCA 2498/2004, which was commenced in November 2004.

17. The Official Solicitor was then appointed as the committee of the Deceased pursuant to Part II of the Mental Health Ordinance, Cap 136.

18. The Deceased passed away intestate on 15 March 2006; and upon that, the committee of the Deceased was automatically discharged.  In the same month, Lily commenced originating proceedings (HCMP 635/2006) against the Official Solicitor and Luk, seeking, among other things, her appointment as the administratrix of the estate of the Deceased and to take over the conduct of HCA 2498/2004.

19. In the meantime, Luk undertook to the court that she, among other things, would not deal with the rental income received from the properties belonging to the estate of the Deceased except for the discharge of the liabilities for normal recurrent expenses of the properties and her share of liability for the mortgage in respect of the properties as joint owner.

20. On 9 May 2007, Cheung applied for grant of administration in respect of the Deceased’s estate (HCAG 4655/2007), claiming that he is the surviving lawful husband of the Deceased and that the Deceased has no surviving child.  This was stalled by Lily’s caveat entered on 27 September 2007.  On 21 November 2007, Lily applies for grant of administration in respect of the Deceased’s estate (HCAG 12391/2007).

21. On 11 March 2008, Lily commenced the present action against Cheung, claiming for declaration of her entitlement to the grant of administration of the Deceased’s estate.  She disputes the alleged marriage between the Deceased and Cheung and its validity.  Cheung counterclaims for declaration of his prior entitlement as the surviving husband to the grant.

22. Luk was then joined as a defendant in the present action.

23. Lily’s claim in HCMP 635/2006 was then struck out by the master.  The master’s decision was reversed in part on appeal[4]. On further appeal by Luk (CACV 2/2009), the Court of Appeal adjourned the case sine dine with liberty to restore pending the determination of the present action[5].

24. A week before the trial, I gave leave, upon application, for Luk to be appointed to act as the guardian ad litem of Cheung, on the ground that Cheung was certified to have become mentally incapacitated.

PLEADED CASE

25. According to Lily, she was adopted by the Deceased according to Chinese custom in 1951 in Hong Kong.  She denies Cheung was ever lawfully married to the Deceased.  Alternatively, if he was, he and the Deceased were divorced before the Deceased married Chao Cheung Yok (“Chao”) in Hong Kong in January 1957.  The Deceased and Chao divorced before 14 October 1981, and the Deceased had remained single ever since.  Lily also denies the alleged adoption of Luk by the Deceased in the Mainland, as there was no evidence of adoption application or approval.

26. Both Cheung and Luk deny the alleged adoption of Lily by the Deceased.  Specific reliance is also placed on the fact that Lily was made a ward under the Protection of Women and Juvenile Ordinance 1951 (“PWJO 1951”) under the custody of Cheung Wing Tak (“Cheung WT”) in 1956 when she was 5 years old.

27. According to Cheung, he and the Deceased were married in Shanghai on 18 March 1949.  They had since lived together until 1951, when the Deceased moved to Hong Kong.  28 years later, in 1979, Cheung moved to Hong Kong and had since lived with the Deceased until 1986.  Cheung contends that the marriage between the Deceased and him subsisted until the Deceased’s death, and therefore the marriage between the Deceased and Chao in Hong Kong was void for bigamy.

28. According to Luk, she was adopted by the Deceased in her home county, Nam Tung, Jiangsu in 1984.  Luk accepts that her right to grant is second to that of Cheung, being the surviving lawful husband of the Deceased.

ISSUES

29. The parties agree that the following questions are pertinent to the determination of the dispute:

(1) whether Lilyis an adopted daughter of the Deceased within the meaning of section 2(2)(c) of the Intestates’ Estates Ordinance, Cap 73 (“IEO”);

(2) whether Cheung was the Deceased’s surviving lawful husband within the meaning of section 3(d) of the IEO;

(3) whether Luk is an adopted daughter of the Deceasedwithin the meaning of section 17(1) of the Adoption Ordinance, Cap 290 (“AO”) and section 2(2)(a) of the IEO;

(4) if Cheung is found to be the surviving lawful husband, whether the court should defer granting letters of administration on the ground that Cheung is suffering from mental incapacity.

WHETHER LILY IS A LAWFULLY ADOPTED DAUGHTER OF THE DECEASED

30. Section 2(2) of the Intestates’ Estates Ordinance Cap 73 (“IEO”) provides that for the purpose of the Ordinance, a person adopted by, among others, an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973 shall be treated as the child of the adopter.

31. Whether Lily was so adopted is a matter for the court to decide.  This turns on (i) whether the alleged adoption took place in Hong Kong; and (ii) if so, whether such adoption accords with Chinese law and custom within the meaning of section 2(2)(c) of the IEO.

Whether the adoption took place

32. Lily’s case is that the adoption took place in Hong Kong in 1951.  Cheung and Luk cannot claim personal knowledge about that, as both were not present at the material time. The former was yet to come to Hong Kong and the latter was yet to be born.  Nor can Lily, as that allegedly happened before she had any cognitive ability.

33. Nevertheless Lily testified as to what she was allegedly told about the adoption by the Deceased in 1967 when she was about 16 years old.  She also called Lau Man Sum (“Lau”), his natural brother, and Cheng Ding Ding (“Cheng”) to testify in this respect.  However, Lau turns out to be telling what their natural mother allegedly told him about the adoption, while Cheng turns out to be telling what her mother and the Deceased had allegedly told her about the adoption.

34. In support, Lily relies on various declarations to the Immigration Department including:

(1) the declaration made by Lau in 1989;

(2) Lily’s letter in 1989 (“the 1989 Letter”); and

(3) Lily’s declaration in 1991.

35. As declared in the above documents, no name was given to Lily by her natural parents when she was born in Hong Kong in 1951[6]. Soon after her birth, she was given or handed over to the Deceased at the Deceased’s then Kowloon address for raising.  When she was 5 years old, due to what according to the Deceased were financial difficulties, Lily was passed to the Deceased’s family friend, the Cheung family.  Cheung WT became her “second father” and she started to use the surname Cheung.

36. Mr Poon, appearing with Mr Chan, for Lily accepts that the evidence in respect of the alleged event happening decades ago, when his client was an infant, is hearsay.  He accepts that credibility has to be assessed carefully[7]. But he points out that the above documents are reliable as they were not made with a view to the present litigation.  Rather they came in existence for the purpose of the Immigration Department at times well before the present dispute.

37. It becomes clear that Lily’s reliance on the above documents in support of the essentially hearsay nature of the oral evidence in respect of her alleged adoption by the Deceased is not at all straightforward.

38. As to when she came to discover that the Deceased was not her natural mother, Lily stated in the 1989 Letter that it was in 1970 when she also had the first reunion with her natural father and Lau.  This differs from her evidence as per her statement that the Deceased somehow brought up this subject during supper with her in 1967.  Yet with reference to the riot in Hong Kong, which is commonly known to have happened in 1967, Lily is actually uncertain whether the alleged conversation took place before or after the riot.

39. As to why she was passed to Cheung WT when she was 5 years old, Lily stated in the 1989 Letter that according to the Deceased, that was her financial difficulties.  According to her evidence as per her statement, the reason was completely different.  First it was said to be because the Deceased was busy with work.  Subsequently it was said that she was sent away to avoid having to see Chao, then boyfriend of the Deceased and whom Lily was said to dislike.  As mentioned, the Deceased got married to Chao in 1957 in Hong Kong.

40. In the 1989 Letter, Lily stated that the Deceased then resided at a Hong Kong address, and she last visited the Deceased 2 days before the letter.  This differs from what she asserts in her statement.  There she accused Luk of trying to prevent her from seeing the Deceased by misrepresenting to her in 1988 that the Deceased no longer lived in Hong Kong.  She was unable to see the Deceased until late 2004.

41. In adopting her statement as her evidence, what Lily stated in the 1989 Letter would be false. Lily attributes all of these apparent falsities to her friend, who either misunderstood her or simply made things up in preparing the 1989 Letter.  Mr Hung finds it wholly incredible that Lily, with her Form 3 education at an English grammar school, would be unable to notice the various wrong statements in the 1989 Letter when sending it out.  Observing what Lily said in court in explaining how her version as per her statement, allegedly told to her friend, could end up like what was stated in the 1989 Letter, I share that view of her evidence in this respect.  In any event, the corroborative value of these documents does not turn out to be as high as Lily would have wanted.

42. Worth noting is that none of these document mentioned anything about adoption ceremony.  It might be that adoption ceremony was not a material concern for the purposes of those declarations to the Immigration Department at the times.  But it is an agreed issue to be resolved for the present purpose.

43. In court, Lau confirmed that his mother did not mention adoption ceremony; while Cheng did not give evidence in this respect.  What remains is Lily’s hearsay evidence, allegedly from the Deceased at a time which does not appear to be as certain as she projected, and the details of which are first found in her statement dated 2010.  According to her, it was not elaborate, involving a simple dinner without rituals.

44. Lily used to have the support of Madam Hai Tse Yan (“Hai”), who was the wife of Luk’s brother and resides in the United States.  Hai’s first declaration was handwritten in Chinese and the second one was typed in English.  By them, Hai declared that she learned from the Deceased during the latter’s visit in Shenzhen in 1987 that Lily was the Deceased’s adopted daughter in Hong Kong.  By the second declaration, Hai further declared that she was acquainted with the Deceased and Lily for 3 and 2 decades respectively.  Both were dated December 2004 and notarized in the United States.  In May 2013, Hai made the last of these declarations.  By this declaration, Hai overturned her previous declarations, which, according to her, were made at the request and instruction of Lily in November 2004 to assist her in applying in Hong Kong to become the guardian of the Deceased.

45. As mentioned, the Deceased had been mentally incapacitated by then.  Luk, who used to be the guardian of the Deceased appointed by the Director of Social Welfare had resigned after discovery of her brother’s acquisition of interest in a couple of the properties of the Deceased by way of deed of gift.  HCA 2498/2004 was commenced to set aside the deed of gift in November 2004.

46. Then there came Hai’s first declaration in respect of the relationship between Lily and the Deceased in 10 December 2004.  On 18 December 2004, Lily through her solicitors sent another draft English declaration to Hai, advising her to sign it and have it notarized before the County Court.  Besides the effect of what was stated in the first declaration, the statements as Hai’s acquaintance with the Deceased and Lily, as mentioned above, were added.  Hence the second declaration made on 22 December 2004.

47. In February 2005, Lily indeed applied to the Guardianship Board for a review of the guardianship order in place of the Director of Social Welfare in respect of the Deceased.

48. In overturning her previous declarations, Hai denied that she had known Lily for 2 decades but had come to know her in October 2004, when Lily also sought her assistance in making the previous declarations.  She stated that she had no personal knowledge whether Lily was adopted by the Deceased.  She stated that in her declaration made in 2013, presumably because of the present litigation.

49. Hai gave evidence.  According to her, she came to know the Deceased shortly before her marriage to Luk’s brother in 1987.  That she could have been acquainted with the Deceased for 3 decades by 2004, as per her second declaration, sounds odd.  So does the statement that she and Lily have been acquainted with each other for 2 decades by 2004.  Much is said about her credibility.  But there would have been no reason for Hai to come up with those declarations in 2004, had it not been Lily and for her purpose in Hong Kong at the time.

50. The reality is that Hai admits that her declarations made in 2004 are false.  While Mr Poon asks me to find that her explanations and evidence to be incredible, this would not lend any assistance to his client’s case either, if I agree with him.  It simply becomes dangerous to place any weight on Hai’s declarations in any event.

51. What do all those leave us with?  There is Lily’s assertion of what, if accepted, would be hearsay about the adoption ceremony.  The evidence in respect of the ceremony is flimsy.  The only objective fact at the relevant time was the passing of the birth certificate of Lily by her natural parents to the Deceased and the lack of suggestion or evidence that Lily and her natural parents had maintained contact since.

Whether the adoption accorded with Chinese law and custom

52. Mr Poon refers to the history of section 2(2)(c) of the IEO by reference to the legislative reform and amendment papers.  Mr Hung refers to De Wong Au Edith v Kho Sin Tek Henry & Anor, HCAP 12/2000 (17 March 2004) per Yam J in this respect.  Both serve the purpose of illustrating that the 1995 amendment to the IEO, which introduced the subparagraph to section 2(2), aimed at bringing persons adopted under Chinese law and custom back into the classes of issues as might inherit on intestacy under the IEO.  The right of an adopted child to take as issue was effectively reinstated.

53. Lily relies on the expert evidence of Professor Hugh Baker  (“Professor Baker”) whereas Cheung and Luk rely on the expert evidence of Professor Wejan Chang (“Professor Chang”).  They are ad idem in the following respects:

(1) The Qing Code contains detailed and strict rules governing adoption. They are for a married man without a son to adopt a male member of his clan one generation down as his heir to continue his line in his clan and to succeed to his property.

(2) A married woman, whose husband died without a son, is allowed to adopt a son as his late husband’s heir and keep his share of the family property, provided that she remains in his family as his widow.

(3) A couple can adopt a nominal son (yi-nan義男) or their son-in-law who are dear to them and are allowed to live together for mutual support.  However neither the nominal son nor the son-in-law is allowed to inherit the adopting father or the father-in-law.

54. Undisputedly there was no such thing as adoption of a daughter, let alone by a woman, under the Qing Code.  Professor Baker agrees that should the adoption or appointment of male heir be impossible under the Qing Code, a natural daughter may inherit, failing which the State would take the estate.

55. One then turns to the custom.  In doing so, I accept Professor Chang’s opinion and Mr Hung’s submission that custom was there to add to the law and not to contradict it, including the rule of inheritance: see Liu Ying Lan v Liu Tung Yiu & Anor, HCA 6693/1992 (8 May 2002) at §20 per A Cheung J (as he then was)[8].

56. Mr Hung submits that for the purpose of section 2(2) of the IEO, an adoption had to be a formal one according to Chinese law and custom.  He refers to De Wong Au Edith (above) where it was held that an informal adoption would not suffice to enable an informally adopted son or i-tze to inherit the adoptive parent’s estate, and under customary law[9], the distribution of estate to an i-tze is in any event discretionary.  Mr Hung submits that likewise the adoption of a daughter, which could not be formal and where she is not entitled to inherit the adopting parent’s estate, is not an adopted person for the purpose of section 2(2)(c) of the IEO.

57. Mr Poon submits that the Qing Code has to be read holistically. It was only a penal code and did not represent the whole of the law of the the Dynasty.  The fact that it was silent in the Code does not mean that one is permitted to or prohibited from doing such a thing.  Professor Baker opines that under Chinese custom, it would turn on the intention of the parties to the adoption at the time of the adoption. In court, Professor Chang was not against this proposition.

58. I think the case of De Wong Au Edith should be read together with the subsequent case of Mok Hing Chung v Wong Kwong Yiu, HCAP 8/2010 (3 July 2014), which Mr Hung supplied to the court after the conclusion of the trial.  Neither counsel made further submission on this additional authority.  I find the following paragraphs of the judgment in the latter case (per Mr Recorder Coleman SC) helpful, which I echoed as the approach to the question before the court:

“118. The labels of “formal adoption” and “informal adoption” are perhaps not necessarily the most helpful, and I see force in a more proper and accurate distinction between “ritual adoption” and “simple adoption”. Whatever the label, whether the necessary characteristics of adoption have been made out depends upon the evidence in any individual case.

119. I accept the submission that the question of whether or not a person is adopted in accordance with Chinese law and custom before 1 January 1973 is not to be answered by reference to whether that person could or would have become the legal successor to the family line, or could or would have inherited family property under Chinese law and custom.  Rather, it is necessary to decide the status of adoption or not, leaving any question of inheritance to be determined in accordance with Hong Kong law and statute.”

59. Professor Baker opines that in 1951, Hong Kong was still in some turmoil following the war and the huge influx of refugees from across the border.  As such, a wide range of Chinese customary practices seemed to have been tolerated by the courts, and there was little agreement on what constituted valid adoption procedure.  He opines that it was common to expect the adoptee to kowtow to ancestors of the adopting family, and the adoptee would offer tea to the adopting parents. Ceremony and banquet would be open to public view.

60. The rituals suggested above could not realistically be expected of Lily, who was a baby when the alleged adoption took place.  As mentioned, I have doubt about Lily’s credibility, including that of her evidence in respect of what the Deceased allegedly told her all of a sudden in 1967.  Nevertheless her natural parents handed over the birth certificate to the Deceased.  There is no suggestion or evidence that the natural parents had maintained contact with Lily ever since (until, according to Lily and Lau, the reunion in 1970).  The objective fact was that the natural parents had relinquished parental rights and obligations over Lily since that time.  Professor Chang seemed to accept that with the passing of the birth certificate openly to the Deceased by Lily’s natural father, the ceremony, albeit not elaborate, could constitute an informal adoption.

Making of Lily as a ward of the Secretary for Chinese Affairs

61. However, the development did not end there.  As mentioned, Cheung and Luk put in issue by way of pleading the making of Lily as a ward of the then Secretary for Chinese Affairs (“the Secretary”)[10] under the custody of Cheung WT after her having spent 5 years with the Deceased.

62. Consistently, Lily and her witnesses as well as the declarations to the Immigration Department spoke of giving away or handing over.  Whilst Lily’s case is that that was equivalent to adoption, she suggests that her being handed over to the Deceased was adoption whereas that to Cheung WT was not.  In this respect, she emphasizes that she addressed Cheung WT (as 張爸爸) as opposed to father (or 爸爸).  I would be slow to find such assertion, which, even if true, refers to how a 5-year-old girl addressed or was probably guided to address the man who would be raising her, to be indicative of the distinction that Lily is trying to draw here.

63. Cheung WT’s custody of Lily is evidenced by document.  The identification ticket issued by the then Social Welfare Office evidences that Lily was made a ward of the Secretary under the custody of Cheung WT.  The back of the ticket bears this note:

“According to the Law of Hong Kong, children cannot be bought or sold and the payment of money cannot confer any rights whatsoever or property or possession over any child.”

64. There is dispute as to what accounted for the making of Lily a ward.  The PWJO 1951 is a starting point (and it is not suggested otherwise).  Sections 31 and 32 set out the circumstances in which the Secretary could become the guardian of a female infant.

65. Section 31 provides that any female infant adopted other than by virtue of an order of a competent court shall be put under the guardianship of the Secretary.

66. Section 32 provides for the power of the Director to become the guardian of a female infant by way of a declaration that such infant shall be his ward.  Section 32(1) provides:

“Subject to the provisions of subsection (4)[11], whenever the Director of Social Welfare, upon such enquiry as he may think fit to make, is satisfied that either of the parents or any person acting in the place of a parent of any female infant has parted or agree to part with the custody of the girl to some other person either permanently or for any consideration except marriage, the Director of Social Welfare, in his absolute discretion, may in writing declare that such infant shall be his ward, and upon the making of such declaration the legal guardianship of such infant while in his Colony shall during her infancy vest in the Director of Social Welfare.”

67. Section 32(2) provides for the case where any female infant has been treated as a drudge or with cruelty or unkindness or has otherwise not been treated properly by the person in whose custody she is or appears to be or that the female infant is unwilling to remain in such custody.  There is no such suggestion by Lily in the present case, which could have invoked the application of this subsection.

68. Mr Poon submits that there is no evidence supporting that infant Lily was made a ward of the Secretary under section 32 of the PWJO 1951.  But the documentary evidence prima facie shows that.  Mr Poon then submits that alternatively the fact that Lily was then made a ward of the Secretary does not mean that she must have been the subject of a permanent giveaway or for consideration.  With respect, I do not understand this alternative argument.

69. Section 32(1) indeed provides that the Secretary may make inquiry and has the absolute discretion whether to declare a female infant shall be his ward.  However, whatever combination of factors that the Secretary may take into account upon the inquiry and in the exercise of the discretion, he must first be satisfied with the statutory criteria, namely that either the parents or the person acting in the place of a parent of the female infant has parted or agreed to part with the custody of the girl to some other person either permanently or for any consideration except marriage.  As such, the making of the declaration must mean such criteria have been satisfied.  There is no suggestion of other statutory basis on which Lily could be made a ward.  I do not agree with Mr Poon that the fact of the Secretary’s declaration that Lily was his ward is neutral.

70. The fact was also that she was named or given her surname after Cheung WT.  By her supplemental statement, she accepted that.  With this second father, Lily resided for years, though, according to her, she had also stayed with the Deceased and the wife of Cheung WT respectively for years.  In his declaration made in December 1960 in support of the application for registration of dependants under the age of 17 years pursuant to the then Registration of Persons Ordinance 1969, Cheung WT did so in his capacity as the father of Lily.

71. Even assuming that Lily was handed over by her natural parents to the Deceased in 1951 for raising; and the Deceased raised her as daughter, she was further given away to Cheung WT in 1956, which was of such nature and to such extent that invoked the exercise of discretion by the Secretary to make her his ward pursuant to section 32 of the PWJO 1951.  This does not sit well with the continuation of adoption relationship between the Deceased and Lily, assuming it existed in 1951.

Conclusion

72. Considering the evidence as a whole, I do not find that Lily is the adopted daughter of the Deceased for the purpose of section 2(2) of the IEO; or alternatively she cannot claim to be such since the Deceased gave her away to Cheung WT in 1956.

WHETHER CHEUNG IS THE SURVIVING LAWFUL HUSBAND OF THE DECEASED

73. Apart from documentary evidence, Cheung has prepared 2 signed statements and would have given evidence.  This has become impossible because of his certified mental incapacity.  For that reason, Luk has applied to adduce her supplemental statement in respect of the circumstances surrounding Cheung’s signing of his statements dated January 2010 and October 2013.  The intention of Luk to rely on Cheung’s statements as hearsay evidence was made known.  I gave her leave to do so subject to the question of weight, which will be addressed during this trial.  I shall not repeat my reasons set out in the written decision dated 6 February 2015 (at §§53-66).

74. As to the weight to be attached to Cheung’s statements, some of the relevant considerations are set out in section 49 of the Evidence Ordinance, Cap 8:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purpose of subsection (1), regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

75. As far as his stance is concerned, Cheung is not an independent witness but an interested party.  As far as his credibility and reliability are concerned, the medical records and reports recently disclosed reveal that Cheung has been suffering from mixed anxiety and depressive disorder since 1998.  In 2011, he was diagnosed to have dementia entailing regular medication and injection.  His statements were made in 2010 and 2013.

76. By way of further submission, Mr Hung took me through various medical notes, with a view to demonstrating that Cheung has been noted to be coherent and to have good memory at about the time when his statements were made.  Luk gave evidence to similar effect.  Be that as it may, the statements were made for an account of what allegedly happened over 6 decades ago.  His condition has indeed developed to the present state of mental incapacity.  One would have expected much legitimate room for ascertaining the reliability of his evidence in any event, had he managed to give evidence as per his statements.

77. Perhaps more significantly, there are matters arising out of the documentary evidence that he would have been expected to explain.  Both he and, more importantly, his opponent are now deprived of the opportunity of clarification.

Proof of the 1949 marriage until the death of the Deceased

78. In essence, Cheung’s evidence would be that he and the Deceased were married in a mass wedding ceremony on 18 March 1949 held in Shanghai.  It is also his case that 1949 marriage subsisted until the Deceased passed away in 2006.

79. Document-wise, a photograph said to be depicting the couple together is produced.  Luk could have been cross-examined on the photograph, but there is no real challenge that it was such a photograph of Cheung and the Deceased, though the time and occasion are unknown and not apparent from the photograph itself.  There is a marriage certificate dated the day of the alleged marriage (“the Marriage Certificate”).  It is under heavy challenge.

80. Lily served her notice disputing authenticity of the Marriage Certificate in August 2013. There could be no dispute that this was served seriously out of time, given that the document was disclosed by list in June 2009.  Mr Poon argues that the authenticity of the Marriage Certificate has always been in issue.  He refers to Lily’s pleading, but the same simply denies any valid marriage between the Deceased and Cheung.  Authenticity of the document is not raised in the pleading.  The case cited, Chan Yuk Kwan v Chan Yee Chai Henry, HCA 6/2003 (12 May 2006) per DHCJ L Chan (as he then was) at §9 is distinguishable on that.  Mr Poon refers to the dispute as to the authenticity of the Marriage Certificate raised by Lily’s supplemental witness statement, but that came about as the aftermath of the abovementioned notice within a month’s time.

81. Having said that, I notice that 1 month after the abovementioned notice and on the same day as Lily’s supplemental statement, in September 2013, Poon J did direct the parties to lodge agreed proposed direction on expert evidence in relation to the authenticity of the Marriage Certificate, failing which Cheung should take out the necessary application.  The court therefore perceived that as an issue in dispute.  There is no suggestion that objection to such direction was raised during or after the direction.

82. In his witness statement dated October 2013, Cheung on the one hand questioned the right of Lily to dispute the authenticity of the Marriage Certificate, and on other hand referred to the production of a new witness, Wong Lie Ngo (“Wong”), for the purpose of adducing copies of sample marriage certificates of the era said to be similar to the Marriage Certificate obtainable from the Internet.  The point would be to demonstrate that marriage certificates like the one in question were invariably affixed with the seals of the parties attending and not signed.

83. I agree with Mr Poon that there is a distinction between admission as to authenticity of a document and admission as to the truth of its contents: see Guangzhou Green-Enhan Bio-Engineering Co Ltd v Green Power Health Products International Co Ltd, HCA 4651/2002 (8 April 2005) per Lam J (as he then was).  In a case where the existence and validity of a foreign marriage are in dispute, the mere production of a marriage certificate would not suffice[12]. Likewise, the existence and validity of a marriage outside Hong Kong may be proved other than by relying on and even in the absence of such a marriage certificate.

84. The concern is the proof of the content of the Marriage Certificate.  It is not such a document that on its face suggests that it was issued under the law and with the authority in force in the place of marriage at the time.  Experts could have been engaged to provide opinion evidence in this respect.  But the parties have not complied with the directions by Poon J in this respect.  The experts engaged by the parties, Mr Li Meike (“Li”) for Lily and Mr Chang Xuan (“Chang”) for Cheung and Luk, gave their evidence in respect of this alleged marriage without really questioning the Marriage Certificate or its content.

85. Cheung and Luk also rely on the evidence of Wong, which is admittedly factual.  But Wong is in no position to tell, apart from the multiple hearsay information from the Internet, whether or not those sample certificates are genuine or authoritative.

86. The content of the Marriage Certificate is also not free from doubt.  Whilst the name and place of origin of the Deceased were correct, the date of birth of the Deceased stated in the Marriage Certificate was 6 November 1921.  This is at variance with the date of birth of the Deceased according to the official documents in Hong Kong, namely 15 November 1915.  Cheung apparently would have given evidence to explain that as per his first statement.  The explanation would have been that her date of birth was incorrectly recorded as 1915 in the official documents in Hong Kong, owing to her lack of education and miscommunication with the official.  That would have been hearsay, and it is not just the year but also the day of her birth which is different.  This is one example calling for clarification, even if Cheung had given evidence as per his statements.

87. As mentioned, the Deceased left the Mainland for Hong Kong in 1951 (at the latest[13]), which would be just 2 years after the alleged marriage to Cheung.  In 1955, Cheung was sentenced to 5 years of imprisonment in the Mainland.  As mentioned, in 1957, the Deceased entered into a registered marriage with Chao in Hong Kong.  According to the marriage certificate, the Deceased declared herself to be a spinster.  By the time when she applied for certificate of identity in January 1971, the Deceased had separated from Chao.  When she applied again in November 1981, she declared that she was divorced.

88. Meanwhile, the prison record shows that the Deceased was still stated to be Cheung’s wife (“愛人“).  Cheung arrived at Hong Kong in 1979.  In his various declarations to the Immigration Department since his arrival until 1986, Cheung still stated the Deceased to be his wife and reported the address of the Deceased as his.

89. It would have been his evidence that he moved out of the Deceased’s address to live on his own only in 1986.  The documents show that since the 90s, Cheung had been applying for public rental housing.  There seems to be no real dispute that he applied for the “Singleton” type[14]. According to his declaration in 1996 in connection with his application submitted in 1994, his wife, who was unidentified, had left him for 22 years, and they had lost contact.  That would mean 1972-1974.  This hardly sits well with his case that he resided with the Deceased between 1979 and 1986.  For that reason, Lily even suggests that Cheung has been concealing another marriage after the Deceased left the Mainland for Hong Kong.

90. The above also does not sit well with his case that he took part in the adoption of Luk in the Mainland in 1978-1979.  In any event, the fact was that the notary certificate relied on as evidence of such adoption mentioned only the Deceased as the adopting parent.  Cheung was never mentioned.  It also becomes apparent at trial that Luk is not in a position to testify as to the notary certificate.  Nor is she certain about Cheung’s participation in the adoption in 1978-1979.  More will be discussed when I come to her case below.

91. According to the recently discovered medical notes kept by the hospital in respect of Cheung dated November 1995, the family history that Cheung is said to have disclosed to the treating medical officer was that he has no children.  How he perceived his position vis-à-vis Luk, if it was in truth a joint adoption by him and the Deceased, calls for explanation.  It should be noted that by 1995, Cheung has yet to be diagnosed with anxiety and depressive disorder, let alone dementia, which was diagnosed only in 2011.

92. The medical notes in November 1995 also recorded that Cheung informed the treating medical officer that his wife died in 1982.  In his application for social allowance in 1997, Cheung declared his marital status to be single.  The certificate issued by the Immigration Department in connection with Cheung’s new identity card in 2006 recorded that Cheung declared that he is a widower.  All these hardly sit well with the evidence that Cheung would have given, namely that he had been visiting the Deceased since his stroke and admission into the elderly home since 2001.  Again that fuels the suggestion by his opponent that he has been concealing the fact of another marriage.

93. Mr Hung submits that how the parties to a marriage subjectively consider and even declare in respect of the marriage status does not alter the existence of a legally binding marriage.  As a matter of principle, I agree.  But that is not complete, if at all, answer to the situation where the existence and validity of the marriage is in dispute, and the evidence of the parties in that respect, both oral and documentary, cries out for explanation.

94. By now, enough has been shown to demonstrate the difficulty in attaching meaningful weight to the evidence that Cheung would have given as per his statements in the absence of the opportunity of subjecting his evidence to test, which the circumstances cry out for[15]. It is not for the parties or the court to speculate that there could be explanation, let alone what it is.  However compelled one feels, it would be unjustified and dangerous to so speculate and to speak for Cheung.

Conclusion

95. On this basis, there is no way this court could be satisfied on the balance of probabilities that the alleged marriage between him and the Deceased existed and continued since 1949 until the demise of the Deceased as a matter of fact.

96. On this basis, the registered marriage between the Deceased and Chao in 1957 in Hong Kong, as evidenced by their marriage certificate, is not impeached by bigamy in the absence of decisive evidence of an earlier marriage[16].

Other issues

97. The other issues raised are premised on the 1949 marriage having existed as a valid matrimonial union.  Mr Poon approaches them in 2 ways.

98. First, Mr Poon submits that the 1949 marriage between the Deceased and Cheung, if valid, would have been terminated by divorce by 1957 when the Deceased married Chao in Hong Kong.  He argues on the basis of different points of time the Deceased might have left the Mainland for Hong Kong and, according to those, the applicable law in relation to divorce of a Mainland marriage contracted under the Republic of China regime.

99. This would have been Lily’s burden to prove such alleged divorce as a matter of fact.  Mr Poon acknowledges the lack of primary evidence of such divorce, but he resorts to the documentary evidence of the declaration of marital status by the Deceased and Cheung discussed above as the basis for inference.  But the available evidence and submission made, in my view, would not have taken such proposition as to fact beyond speculation and mere possibility.

100. Second, it is argued that the 1949 marriage, if valid, would have become void as a matter of law for the lack of registration after the enactment of the 1950 Marriage Law of the People’s Republic of China.  In this respect, Mr Li Meike (“Li”) gave expert evidence in respect of this subject for Lily.  Mr. Chang Xuan (“Chang”) gave his expert evidence in this respect for Cheung and Luk.

101. Li has essentially the following opinion:

(1) The combined effect of the abolition of the Civil Code of the Republic of China and the various marriage law passed by the People’s Republic of China is that the pre-existing marriage would terminate unless and until it is registered according to the marriage law under the new regime.

(2) Alternatively, the relationship between the Deceased and Cheung did not qualify as a defacto marriage under the law as there was no certificate of conjugal relationship issued by the government department verifying the fulfillment of the pre-conditions, namely (i) a long period of cohabitation, (ii) carried out in the name of spouses made publicised, (iii) being universally regarded as a couple, and (iv) verified by relevant departments.  He opines that the circumstances of the Deceased and Cheung did not satisfy these pre-conditions.

(3) Since Deceased and Cheung never applied for registration of their marriage, and they did not live together publicly as husband and wife thereafter, their marriage was automatically dissolved upon the Deceased’s marriage with Chao Cheung Yok in Hong Kong in 1957.

102. Chang holds a different view of the matter.  Essentially:

(1) Although the original Civil Law of the Republic of China was abolished, there is no requirement in the new Marriage Law 1950 that parties who (validly) married under the Civil Code era has to re-register their marriage.

(2) As a matter of principle, without an explicit law extending the effect of a provision into the past, the registration requirement imposed by the new Marriage Law 1950 would not retrospectively affect those who were already validly married.

(3) Instances of legal interpretations issued by judicial organs, he says, support his understanding that the Mainland Courts recognised unregistered marriages contracted during the previous regime by assuming jurisdiction in those matters.

103. Probably Li’s opinion is more easily understood than actually accepted whereas the principle underlying Chang’s opinion is appealing.  But his opinion based on certain legal commentary[17] seems to be suggesting what the effect of the law ought to be instead of what it is.  His citation of his own experience including the case of his grandmother as example is also unexpected.  Having said that, in view of the primary factual findings, I do not really need to express further conclusive view on these issues.

WHETHER LUK IS THE ADOPTED DAUGHTER OF THE DECEASED

104. Section 2(2)(b) of the IEO provide that a person adopted under an adoption to which section 17 or 20F of the Adoption Ordinance, Cap 290 (“AO”) applies shall be treated as the child of the adopter for the purposes of the IEO.

105. Section 17(1) of the AO provides that where a person has been adopted (whether before or after the coming into operation of the section) in any place outside Hong Kong according to the law of that place, and the adoption is one to which this section applies, then for the purposes of the AO and all other Hong Kong enactments, the adoption shall have the same effect as an adoption order validly made in accordance with the AO, and shall have no other effect.

106. In 1986, when she was 23 years old, Luk came to Hong Kong on a one-way permit to join the Deceased.  They had since resided together at the Deceased’s address until Luk got married.  The photographs produced depict their birthday celebration occasions.  When Luk got married, the Deceased’s name was put in the marriage certificate[18]. The two co-owned landed properties and held joint bank accounts in Hong Kong.  As mentioned, the Guardianship Board appointed Luk as the guardian of the Deceased when the Deceased suffered a stroke and was certified mentally incapacitated. Luk was also seen in charge of the funeral matters when the Deceased passed away.

107. All these, by primary evidence and inference, tend to show a de facto relationship of mother and daughter since Luk’s migration to Hong Kong.  Nevertheless, for the purpose of section 17(1) of the AO, and thus section 2(2)(b) of the IEO, the question is whether all these followed an adoption of Luk by the Deceased in Nan Tung, Jiangsu according to the law of the Mainland.

Proof of the adoption

108. Luk relies on the notary certificate issued by the Notary Office of Nan Tung on 27 April 1984 (“the Notary Certificate”), which certified that on 10 March 1984, the natural parents of Luk and the Deceased agreed, with the consent of Luk, that the Deceased would adopt Luk as her daughter.  The documents suggest that this was when the application for the certificate was made.  Luk was then just under 21 years old[19].

109. There is no dispute that one of the functions of notary officer in the Mainland at the material time was to issue certificate as evidence of adoption.  Mr Hung accepts that under the then Mainland law, the notary officer was required to investigate the facts before certifying their truth.  However he submits that pursuant to art.36 of the Notary Law (公証法), the certificate is presumed to be true unless there is sufficient evidence to the contrary, and it is the burden of Lily to prove otherwise.

110. When the matter is now one before the Hong Kong court, I do not think this article of the Mainland law serves to alter the legal burden of Luk to prove her adoption according to the law of the Mainland.  To such end, the Notary Certificate, properly understood according to the Mainland law, is but one of the documentary evidence relied on by Luk in discharge of her burden of proof. It remains hearsay by nature[20]. In any event, once her opponent adduces contrary evidence in respect of what are stated in the Notary Certificate, the court will assess all the evidence on the balance of probabilities as it would in any other given case.

111. To begin with, the Notary Certificate was indeed issued in 1984.  The Notary Office of Nan Tung confirmed that in writing in 2006, after having consulted the notary officer responsible for issuing it.  Li (above) and Mr Wang Ye (“Wang”) gave their expert evidence for Lily and Luk respectively.  There is no dispute that the relevant underlying file or documents in this connection[21] could not be located at the notary office.  But to suggest that the Notary Certificate came to be issued out of the blue seems far-fetched.  Indeed Mr Hung criticizes such suggestion as being illogical.

112. Li actually investigated to the extent of actually meeting the notary officer who issued the Notary Certificate in 2006.  Mr Hung criticizes Li for marching into the arena of factual investigation beyond the expertise being sought from him for the purpose his opinion evidence.  He cited Tang Ping Choi v Secretary for Transport [2004] 2 HKLRD 284 in support.  Tang Ping Choi is very much a case of its own peculiar facts; and that the issue of impartiality or bias readily arose in that case is understandable.  The same probably cannot be said in the present case.

113. What Li recited about the meeting with the notary officer in his report is actually brief.  Essentially it was said that the Deceased submitted her application by letter instead of personally attending the Notary Office[22].  But Li then went much further in court.  Such evidence would still be considered like that given by a witness as to fact.

114. Li’s evidence in respect of what the notary officer allegedly told him is hearsay.  As to that, whilst the notary officer might have no difficulty in confirming having issued the Notary Certificate simply by the sight of it, her ability to recall this particular case when called upon to do so over 2 decades later is very doubtful.  This is so, particularly in the undisputed absence of the underlying document in this connection.  Unlike Hai, who sought to overturn her previous notarized declarations as discussed above, the notary officer is not here for cross examination.

115. Mr Poon also asks me to draw inference from the evidence of Luk as well.  But the inference sought to be drawn is not entirely clear.  On the one hand, Mr Poon submits that Luk actually could not quite tell much about the application for the Notary Certificate and its processing.  The inference would be that no verification had been sought from her about the adoption before the certificate was issued.  On the other hand, he refers to Li’s expert report somehow reciting that the Notary Certificate was issued pursuant to the request of Luk.  The inference, he submits, is that Luk could not possibly be ignorant about the processing of the application for the certificate.

116. The present situation is that Luk does not have primary evidence to show that the Deceased had submitted all the necessary materials and documents for verification pursuant to the Mainland law applicable at the time.  Nor does Lily manage to adduce reliable evidence that the Deceased had not done so.  In the premises, it is not difficult to understand why Mr Hung takes the view that we are back to square one, namely that we have to take the Notary Certificate as it is.

117. It should be noted that the Notary Certificate was then the common form of formal proof an adoption arrangement, which, to begin with, would be a question of fact.  The experts are ad idemthat de facto adoption at the time in the Mainland required the following elements: (i) an agreement between the natural, the adoptive parents and the adoptee; (ii) the addressing of the adoptive parents as parents; (iii) the discharge all the parental rights and obligations of the natural parents; (iv) the establishing of the supportive relationship between the adoptive parents and the child.

118. According to Luk, the Deceased was her aunt, being sister of her natural father.  In 1978, the Deceased paid her family a visit, when adoption of Luk was proposed. She was then a teenager.  In 1979[23], as part of the ceremony, a meal was held in Nan Tung, and a couple of photographs said to depict such occasion were produced in support.  Since then, the Deceased would visit Luk from time to time and provide for her by giving money to her natural parents and to her as pocket money.  Luk would also address the Deceased as mother.  In 1986, she left Nan Tung on a one-way permit to join the Deceased in Hong Kong.

119. This was a situation of the Deceased adopting her brother’s daughter in Mainland and then arrangement to enable the daughter to leave the Mainland for Hong Kong on a one-way permit.  Given what actually happened, I do not find it realistic to question whether the arrangement was agreed to by the parties concerned.  This is not what the experts’ evidence is required or expected to differ about.

120. There is dispute as to whether Luk’s natural parents had relinquished parent rights and duties for the purpose of de facto adoption, because the fact was that they and Luk remained together under the same roof even after March 1984, the date of adoption.  However, expecting the adopting parent from Hong Kong and the adopted child from the Mainland to live together upon adoption would have entailed the former to move to the Mainland or the latter to migrate to Hong Kong.  The impracticability of either course would be obvious.  For the adopted child to come to Hong Kong, which would seem to be the common case, all parties concerned would have to wait for the one-way permit, the issuance of which was in the hands of the Mainland authority.  In court, Li apparently accepted that.

121. Practically, it also follows that the continued residence under the same roof and care of the natural parents until the adopted child is permitted to leave the Mainland to join the adopting parent in Hong, as in the present case, per se should not disqualify the relationship between the adopting parent and the adopted child from being de facto adoption.  One turns to the remaining criteria, namely, the recognition and addressing of the adopting parent and the supportive relationship.  In this respect, Luk gave her evidence, as per her statement, including what is summarized above.

122. Mr Hung questions Luk’s general credibility by reference to events that had to do with Cheung and her brother as well as to how she performed as the guardian of the Deceased.  On the whole, I am not impressed that her evidence in respect of her relationship with the Deceased since 1978 is inherently incredible.

123. As a matter of fact, I find on the balance of probabilities that the Deceased indeed adopted Luk; and the arrangement of and after the adoption in fact fell in line with what de facto adoption required according to the Mainland law at the time.  Any doubt about that may also be removed by the fact that in 2 years after the obtaining of the Notary Certificate, Luk was issued the one-way permit enabling her to come to join the Deceased in Hong Kong.  There is no documentary evidence of the details, including what caused the Mainland authority to decide to issue the permit.  But one inference, and I say a fairly probable one, is that this had partly to do with the adoption relationship between the Deceased and Luk.  Along the line of argument of Lily’s, it may be suggested, though not actually argued, that this would have simply compounded the falsity of adoption.  I am not inclined to prefer that suggestion and assume that the Mainland authority did not conduct the necessary investigation before deciding to issue the permit to Luk.

Conclusion

124. I find as a matter that Luk was the daughter adopted by the Deceased for the purpose of section 17(1) of the AO and thus section 2(2)(a) of the IEO.

ORDER

125. Lily’s claim is dismissed.  So is Cheung’s counterclaim.  I allow Luk’s counterclaim and make the declaration as sought, namely, that she is a lawfully adopted daughter of the Deceased.

126. Costs should follow the event.  But I would defer ruling, partly in view of possible argument as to whether Lily’s costs of defending Cheung’s counterclaim should be borne by Luk.  I give leave to the parties to lodge and serve written submissions (of not more than 4 pages each) on costs within 14 days, and reply written submissions, if any (of not more than 4 pages each) within 14 days thereafter.  Decision on costs will be given in writing, unless otherwise directed.

127. I thank counsel for their assistance.

HCAP 3/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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D E C I S I O N

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1.  The 2^nd defendant applies for: (i) appointment of herself as the guardian ad litem of the 1^st defendant; and (ii) leave to serve her supplemental statement. The plaintiff opposes.

BACKGROUND

2.  Luk Kim Ying, deceased (“the Deceased”) passed away intestate on 15 March 2006.  The plaintiff claims to be the Deceased’s sole adopted daughter and thus her right to the grant of administration of the Deceased’s estate (“the Estate”).  The 2^nd defendant also claims to be the adopted daughter of the Deceased and the 1^st defendant, who were allegedly married in the Mainland in 1949.  Both the plaintiff and the 1^st defendant have applied for grant of administration of the Estate.

3.  In March 2008, the plaintiff commenced this action against the 1^st defendant, claiming for declaration of her entitlement to the grant of administration of the Estate.  She disputes the alleged marriage between the Deceased and the 1^st defendant and its validity.  The 1^st defendant counterclaims for declaration of his prior entitlement as the surviving husband to the grant.

4.  Then the 2^nd defendant was joined.  The plaintiff disputes her alleged status as the adopted daughter of the Deceased.  In her defence, the 2^nd defendant, among other things, supports the 1^st defendant’s case (that he was the Deceased’s lawful husband).

5.  In the meantime, other (but related) litigation commenced by the plaintiff against, among others, the 2^nd defendant prior to the passing of the Deceased continued into 2009 until the Court of Appeal decided and gave directions that the proceedings in this action ought to be expedited (CACV 2/2009, decision dated 29 June 2009).

6.  Leave to set down this action for trial was given in late 2011.  The trial is not due to commence on 11 February 2014, estimated to last for 9 days.

7.  Despite the initial separate legal representation, the 1^st and the 2^nd defendants have since been represented by the same legal team.

8.  By summons filed on 28 January 2014, the 2^nd defendant applies for an order for her appointment as the guardian ad litem of the 1^st defendant on the ground that the 1^st defendant has become mentally incapacitated.

9.  By summons filed on 29 January 2014, the 2^nd defendant applies for leave to file and serve her supplemental witness statement.

THE O.80 APPLICATION

10.  Pursuant to O.80, r.2(1) of the Rules of the High Court (“RHC”), a person under disability may not bring a claim in any proceedings except by his next friend and may not defend except by his guardian ad litem.  A person under disability includes a mentally incapacitated person.

11.  A mentally incapacitated person means a mentally disordered person or a mentally handicapped person (within the meaning of the Mental Health Ordinance Cap 136 (“MHO”)) who, by reason of mental disorder or mental handicap, is incapable of managing and administering property and affairs: O.80, r.1.

12.  In case a defendant becomes mentally incapacitated after an action has commenced, an application must be made to the court for the appointment of a guardian ad litem: O.80, r.3(5).

13.  Pursuant to O.80, r.3(6) and (8), the following documents have been produced in support of the present application:

(1) written consent of the intended guardian, i.e., the 2^nd defendant;

(2) certificate by the solicitors for the 1^st defendant (and the 2^nd defendant) certifying that:

(i) he believes that the 1^st defendant is mentally incapacitated on the basis of the facts and information contained in the affirmations filed in support as well as the psychiatrist report mentioned below;

(ii) no person has been authorized under Part II of the MHO before; and

(iii) the 2nd defendant, being named as the guardian, has no interest in the cause or matter in question adverse to that of the 1^st defendant.

THE DISPUTE

14.  In opposition, the plaintiff questions:

(1) whether the 1^st defendant is mentally incapacitated; and

(2) whether the 2^nd defendant should be appointed as the guardian ad litem of the 1^st defendant.

Whether the 1^st defendant is mentally incapacitated

15.  The 1^st defendant is 92 years old; and has been staying at a nursing home since 2011.  The affirmations in support set out the deterioration of the condition of the 1^st defendant in the recent 2 months noted by the health care worker of the nursing home and the 2^nd defendant.  The pre-trial conference with counsel last month also had to be cancelled as a result.

16.  All these alerted the 2^nd defendant and her legal team as to the possible need for invoking O.80 in order to enable the proper representation of the 1^st defendant in the conduct of the forthcoming trial.  For such purpose, psychiatrist was engaged to assess the condition of 1^st defendant.

17.  Dr Jenny Tsang, psychiatrist, examined the 1^st defendant on 21 January 2014 and produced her report dated 24 January 2014.  The report set out the medical and psychiatric history of the 1^st defendant as well as information obtained from the interview with the health care worker of the nursing home.  Assessment with the aid of the mental state examination was carried out.  Dr Tsang formed the opinion that the 1^st defendant has been suffering from mixed anxiety and depressive disorder since 1998, which has been under symptom control.  His dementia also responded to therapy.  But his mental incapacity started about 2 months ago.  She opined that he has been suffering from cognitive impairment and active psychotic symptoms for at least 2 months.  The cause of that was uncertain at the moment, which would be a matter of further investigation by the treating psychiatrist.  She concluded that the 1^st defendant is incapable by reason of mental incapacity as defined in the MHO of managing and administering his property and affairs.

18.  Mr Poon for the plaintiff indicated that his client would adopt a neutral stance in respect of the 1^st defendant’s mental condition.  She only could not be sure about the alleged mental incapacity; and took the view that Dr Tsang’s report does not suffices for the purpose of establishing the alleged mental incapacity.

19.  Mr Poon did not give me the impression that his client is indeed neutral in this respect.  The stance of the plaintiff is certainly not that she would leave it to the court to decide the question on the basis of the materials and would abide by the court’s decision.  Quite to the contrary, Mr Poon argued that his client should have the opportunity of examining the 1^st defendant by another psychiatrist of her choice.  She also requested for the disclosure of all the previous medical records of the 1^st defendant for the past 3 years.  That could only mean the plaintiff does not accept that the materials before the court entitle the court to conclude that the 1^st defendant is mentally incapacitated for the purpose of O.80.

20.  Mr Poon borrowed support from Moral Luck Finance Limited v Law Kin Leung, DCCJ 736/2011 & DCMP 2062/2011 (25 August 2011), specifically what the Deputy District Judge said at §29.  Mr Poon submitted that that offers various outcomes available to this court in this application.

21.  What the learned Deputy District Judge said in Moral Luck Finance Limited came directly from §63 of the judgment of the Court of Appeal in Ho Po Chu v Tung Chee Hwa & Ors, CACV 206/2005 (19 January 2006).  Yet there Lam J (as he then was) made clear (at §62) that he was going to add some observations as to what the court could do when it is faced with a litigant who is not represented by a next friend and there is suggestion that he or she might suffer from mental incapacity.  The paragraph cited by the Deputy District Judge in Moral Luck Finance Limited follows:

“63. In my view, the court has a number of options and it is a matter of discretion for the court to decide which is the most appropriate option to adopt in the circumstances of the case. The options are:

(a) Strike out the claims if it is obviously vexatious;

(b) If mental incapacity is clearly established by way of medical evidence and there is no dispute by the litigant as to his mental incapacity, and if the action is not vexatious, the court may stay the action pending either appointment of next friend under Order 80 or an inquiry and appointment of committee under Part II of MHO;

(c) If mental incapacity is disputed, the litigant must be given a fair chance to defend his or her case on that issue. The matter as to capacity can still be resolved within the context of Order 80…Alternatively, the court may stay the action pending the holding of a Part II inquiry;

(d) If the evidence as to mental incapacity is inadequate, the court may allow the action to be proceeded on the basis that the challenge based on disability is unsubstantiated.

……”

(underline added)

22.  It is obvious that the context in Ho Po Chu was a debarring order against a litigant commencing legal proceedings.  Lam J was referring to the case where a party to litigation challenges against the mental capacity of the litigant bringing about the litigation (ie the plaintiff).  Options (b) and (c) above refer to dispute by the plaintiff as to his mental incapacity alleged by his opponent.  Hence a fair chance to the plaintiff to defend his case on that issue.

23.  The above does not assist in the context of the present case.  It simply does not follow from the above that as the plaintiff in the present case disputes the alleged mental incapacity of the 1^st defendant, it would be unfair to her if she is not afforded with the chance of contradicting the alleged mental incapacity by adducing medical expert evidence.

24.  The significance of the context of Ho Po Chu, as opposed to an usual case of O.80, in terms of the evidence required was actually made abundantly clear in various parts of the judgment:

(1) Reference in O.80 to the MHO is for definitions only.  An inquiry similar to that under Part II of the MHO is not necessary before a next friend or guardian ad litem may be appointed.  O.80, r.3(8) requires a certificate from the solicitor for the person that he believes that person is a mentally incapacitated person with grounds for such belief (§§28-31; 43-44).

(2) Order 80, r.2 is of wide application.  Whilst the test of mental incapacity is identical, it does not follow that the evidence needed to pass that test must be the same in all situation.  In a situation where an act in legal proceedings is clearly for the benefit of the person in question, it is unnecessary for formal medical evidence to be adduced to show that the plaintiffs needs by reason of mental incapacity to sue by a next friend or defend by a guardian ad litem (§§45-46).

(3) The court should adopt a flexible approach to the evidence of mental incapacity under O.80. Where mental incapacity is relevant because a debarring order is sought, the court would expect clear medical evidence to prove the mental incapacity because the effect of such an order.  However where mental incapacity is relevant because an action is started by the next friend or defended by the guardian ad litem of a person said to be suffering mental incapacity and that act is obviously for the person’s benefit, the court would not initially require formal medical evidence, although it would of course be prudent for the next friend or guardian ad litem and the solicitor acting under his instructions to have medical evidence available before the event in case of challenge (§52).

25.  In approaching a situation where there is dispute between the parties as to whether the person concerned is mentally incapacitated for the purpose of O.80, I would with respect echoe what Judge Lok said in Chan Ka Yi v DBS Bank (HK) Ltd [2010] 2 HKLRD 528 (after citing the dicta of Warrington J in Richmond v Branson & Son [1914] 1 Ch 968):

“18. Based on the aforesaid dicta, it is clear that the provisions contained in O.80 are purely procedural in nature. Order 80 enables a plaintiff who is unable to give instruction to his solicitor by reason of his mental incapacity to commence legal proceedings with a next friend. With the instruction given by the next friend, it provides authority to the solicitor to conduct the proceedings in the name of the patient. In substance, it is still a claim by the mentally incapacitated person himself. It is also important for the solicitor to invoke such procedure in the case of doubt as to mental capacity of his client. As laid down in the case of Yonge v Toynbee, a a solicitor would be personally liable for the costs of the opposite party if he has no authority to conduct the proceedings in the name of a mentally incapacitated client even if he is ignorant that his client is a person of unsound mind.

…

20. As the appointment of next friend is procedural in nature and the real issue at this stage is not about the authority of the applicant’s solicitor, I am of the view that the Court is entitled to deal with this interlocutory application for the appointment of next friend in a summary manner……”

26.  The same approach was also reflected by the Court of Appeal’s discussion of the test of mental incapacity for the purpose of O.80 in Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435.  Whilst the evidence needs to establish that the mentally disordered person is incapable of managing and administering his property and affairs (see §31), the Court of Appeal in Ng Hong Ki had this to say (at §34):

“For the purpose of an appointment of a guardian ad litem under O.80, the test of mental incapacity is “issue-specific” and the test that has to be applied is “whether the party to legal proceedings is capable of understanding, with the assistance of such proper explanation from legal advisers … the issues on which his consent or decision is likely to be necessary in the course of the proceedings”. The focus of the enquiry is on the litigation under consideration rather than the whole of that person’s property and affairs.  Complete incapacity is not required to be established……These features were identified in a person that would lead the Court to conclude that he was a person under disability for the purpose of O.80: “…he had no insight at all into his own mental state.  He was not capable of exercising any reasonable judgment on a possible settlement…”

27.  Applying the above to the facts of Ng Hong Ki, the Court noted that whilst the doctor stated in his report that the defendant there had limited capacity (as opposed to incapacity) of managing and administering his property and affairs, the doctor did state that the defendant was mentally not fit to give instructions in legal proceedings.  The Court took the view that the medical evidence, though scanty, sufficed for the judge below to come to the view that the defendant was incapable of understanding the problem in respect of which he needed advice, to give instructions to his legal adviser for the latter to advise him properly, and to understand and make decisions based on the advice given.

28.  This brings me to consider the evidence adduced in support of the present application.  As mentioned, besides the description of the events leading to the present application in the affirmations in support, there is indeed a medical report by Dr Tsang.  This is formal medical evidence.  Further, Dr Tsang is on the list of approved doctors for the purposes of section 2(2) of the MHO as having special experience in the diagnosis or treatment of mental disorders.  This is what would have been expected in the case of an enquiry under Part II of the MHO where at least one of the 2 medical practitioners certifying the mental incapacity of the patient must be on that list.

29.  The instances that were set out under the section ‘Assessment on Mental Capacity’ of the report, in my view, also served to address the “issue-specific” element explained in Ng Hong Ki above.  The 1^st defendant was effectively unable to even recognize his own solicitor and what the latter has been instructed to do for him.  As mentioned, the affirmations in support also explained that the recent meeting with counsel had to be cancelled in the circumstances.

30.  It was not suggested on behalf of the plaintiff that the opinion and its basis as stated in the report is doubtful.  But Mr Poon argued that Dr Tsang mentioned that the cause of the 1^st defendant’s mental incapacity at this juncture was uncertain and suggested further investigation by his treating psychiatrist.  The treating psychiatrist was however not consulted.

31.  The cause of the incapacity may be the concern of the treating psychiatrist for the purpose of treatment. Dr Tsang did not make that observation with a view to qualifying or expressing reservation about the genuineness of the 1^st defendant’s condition or the integrity of any part of her opinion and conclusion.

32.  Mr Poon queried whether the mental incapacity of the 1^st defendant would be permanent and whether it might respond to appropriate treatment.  But I am not aware of any authority suggesting that ‘mental incapacity’ for the purpose of O.80 must be permanent or fairly permanent.  If the best that could be suggested was that the 1^st defendant’s condition might improve with treatment or medication, then I do not see how it follows that the 1^st defendant should be considered as mentally capable of managing the conduct of the legal proceedings or giving instruction to those acting for him.  The 1^st defendant has to face the trial commencing in less than a week and instruction needs to be given at this very minute.

33.  Except for complaining about the lack of opportunity to subject the 1^st defendant to another examination by psychiatrist of her choice, the plaintiff was not able to suggest any reasons to suspect that the formal medical evidence produced by the 2^nd defendant in support of the application is either unreliable or insufficient for the purpose of O.80.

34.  On the materials before me, I am satisfied that the 1^st defendant is mentally incapacitated for the purpose of O.80; and that a guardian ad litem should appointed to enable the continuation of the 1^st defendant’s conduct of the proceedings.

Whether the 2^nd defendant should be appointed

35.  Mr Poon started by submitting that clearly a co-defendant could not be the guardian ad litem.  He got this from Hong Kong Civil Procedure 2014 (“HKCP”) at 80/3/8, which starts by saying that a co-defendant should not be a next friend, citing Lewis v Nobbs (1878) 8 Ch 591.

36.  It probably goes without saying that a co-defendant could not be a next friend (of the plaintiff).  But it hardly follows that a defendant could not be a guardian ad litem (of his co-defendant).  The case of Lewis cited in that paragraph of HKCP did not go so far as saying what Mr Poon submitted either.

37.  What matters is that the guardian to be appointed must have no interest in the cause or matter adverse to that of the person under disability: O.80, r.3(8)(c)(iii).  It is also desirable that he should be a relation, connection or friend of the family and not a mere volunteer.  This is also what the editor of HKCP in the rest of the paragraph (80/3/8) cited by Mr Poon states.

38.  Mr Poon also relied on SX v LW & Ors, HCMC 8/2011 (30 July 2013).  The learned judge (at §17) also stated as a starting point that a co-defendant should not be a next friend “or guardian”.  The same paragraph of HKCP (80/3/8) was cited.  As mentioned, that paragraph (and the case of Lewis v Nobbs) does not actually say more than the suitability of a co-defendant as a next friend.

39.  In SX, what actually caused the learned judge to refuse to appoint the proposed guardian of the person under disability was the appreciable and real risk that the proposed guardian might be influenced by the views of the parties who had claims to or interests in the assets of the person under disability, such that the proposed guardian might lack the necessary impartiality when making decisions on matters which concerned the benefit and interests of the person under disability (see §20).

40.  Mr Poon submitted that the 2^nd defendant is competing with the plaintiff for the Estate.  This is obvious; but it is what is between the 1^st and the 2^nd defendants that matters for the present purpose.

41.  Mr Poon submitted that the 2^nd defendant would be competing with the 1^st defendant; and it could not be said that she would have no interest adverse to that of the 1^st defendant.  I do not see how, according to the pleaded cases of the 1^st and the 2^nd defendants, as they now stand, as mentioned above.

42.  Then Mr Poon pointed out that the 2^nd defendant would be amending her pleading so as to put forward a counterclaim for declaration of her entitlement to the grant of administration.  What he referred to was the current negotiation between the plaintiff and the 2^nd defendant for applying to amend their respective pleadings by way of consent.  As at today, no such application for amendments has been filed yet.

43.  Just to properly understand Mr Poon’s argument in this respect, I have obtained copies of the intended amended pleadings of the parties.  As far as the 2^nd defendant is concerned, the intended amendments indeed consist of the addition of a counterclaim for her right to apply for the grant of administration of the Estate.  But the following should be noted:

(1) The 2^nd defendant’s such right will be asserted expressly subject to the priority of that of the 1^st defendant.

(2) The relief in respect of her such right will be sought only if the court holds that for his health reason, no letters of administration should be granted to the 1^st defendant.

44.  Mr Hung for the 2^nd defendant pointed out that the relief sought in the intended counterclaim would be based on the contingency envisaged under section 33(1)(ii) of the Non-Contentious Probate Rules, Cap 10, which provides that:

“(1) Where the Registrar is satisfied that a person entitled to a grant is by reason of mental or physical incapacity incapable of managing his affairs administration for his use and benefit limited during his incapacity or in such other way may be granted-

(i) if the person incapable is entitled as executor, to the person entitled to the residuary estate of the deceased;

(ii) if the person incapable is entitled otherwise than as an executor, to the person who would be entitled to a grant in respect of his estate if he died intestate.”

45.  I need not, and probably should not, at this stage express any view on the intended reliance on the above provision by the 2^nd defendant.  Suffice it to say that I do not see the mere intended introduction of the counterclaim by the 2^nd defendant on the basis mentioned above, which is yet to materialise, will render her interest in the cause in this action adverse to that of the 1^st defendant.

46.  But the plaintiff also produced evidence of what was said to be an instance reflecting the unsuitability of the 2^nd defendant to be the guardian ad litem.  The 2^nd defendant had been the guardian (not guardian ad litem) of the Deceased prior to her death.  In 2003, the relevant guardianship order was reviewed and the Director of Social Welfare took over the guardianship of the Deceased.  Mr Poon pointed out that according to the report then, the 2^nd defendant was requested to take legal action as the next friend of the Deceased to set aside the purported gift of some shares of the properties of the Deceased to the 2^nd defendant’s brother on the ground that the Deceased lacked the capacity to execute the deeds in question. However the 2^nd defendant declined to do so.

47.  According to the report, fully read, it was actually the 2^nd defendant who reported the transfer of interests of the Deceased’s properties once she was alerted of the same by the letters from the Inland Revenue Department.  She claimed no prior knowledge about that.  She explained her concern about the legal costs and the risk of financial crisis to the Deceased as a result of the proposed legal action.  Whether she was right or wrong about that, it was the 2^nd defendant who decided in the circumstances to resign from the role as the guardian of the Deceased.  Hence the recommendation in the report for the appointment of the Director of Social Welfare in her place.

48.  Mr Poon submitted that if the 1^st defendant succeeds in establishing his entitlement to the grant of administration of the Estate, there may be need to revisit the recovery from her brother of the interests in the properties that should belong to the Estate.  He cast doubt as to whether the 2^nd defendant would act differently from before in that respect.

49.  It should be noted that we are concerned about the appointment of the 2^nd defendant as the guardian ad litem of the 1^st defendant for the purpose of the conduct of proceedings in this action.  Counsel for both sides acknowledge in their opening submissions for the trial next week that the actual grant of letters of administration might have to be deferred, if the disputed entitlement to the grant is resolved in favour of the 1^st defendant.  An application for the appointment of a committee of the 1^st defendant under Part II of the MHO may be necessary: see Re NCS, HCAG 1036/2008 (31 July 2009).  Through Mr Hung in his opening submissions, the 2^nd defendant undertakes to take out such an application.

50.  In the circumstances, the court’s hands would not be tied in the consideration of the suitability of the 2^nd defendant to be granted the letters of administration, notwithstanding the provisions as to the persons who may be entitled to be granted the letters of administration under section 33(1)(ii) of the Non-Contentious Probate Rules (mentioned above).

51.  Mr Poon also questioned what if the 2^nd defendant, as the guardian of the 1^st defendant, abandons his case all together so as to facilitate her own claim.  Such a bold suggestion, in my view, serves no purpose than to stretch the argument to the extreme apparently for the sake of argument.  The possibility projected was not founded by any factual basis.  It is not consistent with the pleaded case of the 2^nd defendant, as it now stands and even if amended as mentioned above.  Nor is it consistent with the current attempt of the 2^nd defendant to rely on the evidence contained in the 1^st defendant’s witness statement (as discussed below).

52.  Considering all the materials and arguments, I do not find that the 2^nd defendant is an unsuitable candidate to be appointed as guardian ad litem of the 1^st defendant for the purpose of conducting the legal proceedings herein.

THE SUPPLEMENTAL WITNESS STATEMENT OF THE 2^ND DEFENDANT

53.  The supplemental statement of the 2^nd defendant essentially covers 2 aspects: (i) recent deterioration of the condition of the 1^st defendant as mentioned above; and (ii) circumstance surrounding the 1^st defendant’s signing of his 2 witness statements dated 11 January 2010 and 26 October 2013 respectively.

54.  When asked, Mr Poon accepted that the 2^nd defendant’s own statement of the above matters said to be within her knowledge is in principle not objectionable.  It is the stated intention to rely on the contents of the 2 statements of the 1^st defendant as hearsay evidence that the plaintiff opposes.

55.  Mr Poon referred to O.38, r.2A(6) of the RHC and submitted that where the party serving a statement under this rule does not call the witness to whose evidence it relates, no other party may put the statement in evidence at the trial.  He also referred to O.38, r.2A(8) which provides that nothing in the rule shall make admissible evidence which is otherwise inadmissible.

56.  O.38, r.2A(6) is easy to understand.  It is no excuse if the party does not call or ensure that the witness could be called at the trial.  Nor is it excuse that the witness does not or refuses to testify for personal reasons.  But here the situation is different in that the 1^st defendant is prevented by his post-statement mental incapacity from attending the trial to verify his statements and to testify.

57.  O.38, r.2A(6) is actually expressed to be subject to r.2A(9).  R.2A(9) provides that:

“Where any statement served is one to which the Evidence Ordinance (Cap 8) applies, paragraphs (6) and (7) shall take effect subject to the provisions of that Ordinance and Parts III and IV of this Order.”

58.  As mentioned, the 2^nd defendant put the plaintiff on notice of her intention to rely on the statements of the 1^st defendant as hearsay evidence.  Pursuant to sub-rule (9) above, Part IV of the Evidence Ordinance applies so that sub-rule (6) shall take effect subject to that. 

59.  Section 47(1) of the Evidence Ordinance (under Part IV) provides that:

“(1) In civil proceedings evidence shall not be excluded on the ground that it is hearsay unless –

(a) a party against whom the evidence is to be adduced objects to the admission of the evidence; and

(b) the court is satisfied, having regard to the circumstances of the case, that the exclusion of the evidence is not prejudicial to the interests of justice.

......”

60.  The discretion of the court in admitting witness statements intended to be relied on as hearsay evidence does exist.  See also O.38, r.2A(1):

“(1) The powers of the Court under this rule shall be exercised for the purpose of disposing fairly and expeditiously of the cause or matter before it, and saving costs, having regard to all the circumstances of the case…”

and  O.38, r.2A(17):

“(17) The Court shall have power to vary or override any of the provisions of this rule (except paragraphs (1), (8) and (12) to (16)) and to give such alternative directions as it thinks fit.”

61.  The question is whether the statement should be excluded without prejudice to the interests of justice in the circumstances of the case.  As mentioned, in the normal case where there is no excuse for the failure to call the witness or for the refusal of the witness to testify, the answer may be more readily apparent.

62.  In the present case, the 1^st defendant is apparently the one person who would be in a position to testify in respect of his history with and alleged marriage to the Deceased and thus his status as the surviving husband.  Excluding his statements could stifle much of the 1^st defendant’s case as a result of circumstances beyond his control.  I find it to be difficult to conclude that exclusion of the statements would not be prejudicial to the interests of justice.

63.  I certainly understand the other side of the matter.  Essentially the plaintiff is not going to have the opportunity of cross-examining the 1^st defendant on the contents of his statements.  However, it remains open to the plaintiff to refer to that fact in her submission on the weight, if any, to be attached to the statements of the 1^st defendant.

64.  Section 49 of the Evidence Ordinance sets out some of the relevant considerations:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purpose of subsection (1), regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

See also HKCP at 38/0/5

65.  As to O.38, r.2A(8) referred to by Mr Poon (above), what that paragraph targets is the incorporation of inadmissible evidence in the statement served; and that this shall not render the inadmissible evidence admissible: see HKCP at 38/2A/3.  An example will be opinion evidence.

66.  Considering all the circumstances, I would not exclude the statements of the 1^st defendant as hearsay evidence.  As to the weight, this will certainly be a matter to be addressed at the trial.

67.  This is of course the decision on the admissibility of the statements of the 1^st defendant in the circumstances of the present case.  Simple reliance on this decision to suggest the opening of a backdoor for admitting into evidence contents of statements of witnesses who are not called will be misplaced.

ORDER

68.  I allow the applications of the 2^nd defendant by her 2 summonses.

69.  Consequential upon the appointment of the 2^nd defendant as the guardian ad litem of the 1^st defendant, the title of the action from now on (excluding the present order) shall bear the fact that the 1^st defendant acts by the 2^nd defendant as his guardian ad litem.

70.  As to the supplemental witness statement of the 2^nd defendant, the same as per draft annexed to the summons shall be filed and served by 4 pm tomorrow.

71.  The plaintiff shall ensure that the trial bundles are duly updated with the additional documents consequential upon this order.

COSTS

[Submission on costs]

72.  Mr Hung proposed, and Mr Poon did not object, that the costs of the applications by the 2^nd defendant shall be costs in the cause of the action.  I so order.

Mr Vincent POON, instructed by Charles Wong & Co for the plaintiff

Mr Andy HUNG, instructed by B C Chow & Co for the 2^nd defendant

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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BETWEEN

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D E C I S I O N

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1.  This is the plaintiff’s application against the 2^nd defendant for specific discovery for documents, photographs and other chattels or articles being deposited by the Deceased but later removed by the 2^nd defendant from the safety box held under the joint name of the Deceased and the 2^nd defendant with the Bank of China (“the Safety Box”), and consequential directions.

2.  The background leading to this application may be summarized thus.

Background

3.  The Deceased, then 86, suffered from a stroke on 3 July 2001.  She was admitted to hospital on the same day.  She had since become mentally incapacitated.  By order dated 23 October 2001, the 2^nd defendant was appointed her guardian under Part IVB of the Mental Health Ordinance.  By another order dated 5 November 2004, the Official Solicitor was appointed the committee of her estate under Part II of the same Ordinance.  On 15 March 2006, she died intestate.

4.  The plaintiff commenced the present proceedings on 11 March 2008.  She claimed to be the Deceased’s adopted daughter.  The adoption took place under the Chinese custom in 1951 in Hong Kong.  The 1^st defendant claimed to be the Deceased’s lawful husband, having married her in Shanghai on 18 March 1949.  The 2^nd defendant claimed that the Deceased adopted her as daughter in Nam Tung, Jiang Su Province, in 1984.  The 1^st defendant and the plaintiff took out an application for letters of administration in May and November 2007 respectively.  The parties are embroiled over the fight as to who is entitled to the Deceased’s estate and be granted the letters of administration.

5.  As between the plaintiff and the 2^nd defendant, the hotly disputed issue is their respective adoptive status.

Discussion

6.  The plaintiff alleged that back in 1967 the Deceased told her that she kept her personal valuables together with some important family papers and photographs evidencing her relationship with the plaintiff in her bank’s safe deposit box.  In about the end of 2004, the 2^nd defendant’s brother told the plaintiff that the Deceased had suffered from a stroke and was staying in an aged home.  She immediately called the 2^nd defendant and told her that the Deceased had kept some important family papers and photographs in her safety box and if she had accessed to it, she should return the articles to her.  The 2^nd defendant did not respond and hung up the phone.  In 2005, the wife of the 2^nd defendant’s brother called the plaintiff again, telling her that the 2^nd defendant had removed some important papers and photographs from the Deceased’s safety box and had them destroyed.

7.  The plaintiff’s solicitors then made enquiries with the 2^nd defendant’s, who stated in a letter dated 12 April 2006 that the Deceased died without leaving any safe deposit box opened either in her sole name or in the joint name of the Deceased and the 2^nd defendant. 

8.  The plaintiff’s solicitors then made enquiries with the Bank of China, which revealed that what the 2^nd defendant had said is not entirely correct.  For in fact, the Deceased and the 2^nd defendant opened the Safety Box in their joint name in 1996 and the 2^nd defendant had it closed in 2003.  (The fact that the Deceased and the 2^nd defendant had opened the Safety Box was not revealed by the 2^nd defendant in the application for the guardianship order : see the social enquiry report dated 3 October 2001.  On the materials before me, the 2^nd defendant has not offered any explanation for the omission.)  The track records of the Safety Box showed that the Safety Box was solely assessed by the Deceased between 27 November 1999 and 1 December 2000.  It was then solely assessed by the 2^nd defendant on 18 July 2001 (that is, 15 days after the Deceased’s stroke), 24 July 2001 and 12 April 2003.

9.  Further correspondence between the solicitors ensued, which cumulated in the present summons taken out by the plaintiff on 7 June 2010.

10.  In her 1^st affirmation dated 29 June 2010, the 2^nd defendant listed out the various items that she had collected from the Safety Box, which did not include any of those sought by the plaintiff.  The plaintiff pressed on with further correspondence by her solicitors and a further affirmation.  Then the 2^nd defendant filed her second affirmation on 2 August 2010, categorically stating :

“3. I would like to make it clear once and for all that there were and are no such family documents and/or photographs evidencing the Plaintiff’s alleged adoptive relationship between the Deceased and the Plaintiff ever in my possession, custody and control. I have never had such family documents and photographs in my possession, custody and control, whether in the Safety Box or otherwise. I confirm the contents of my Solicitor’s said letter dated 21^st July 2010.”

11.  Since it is trite that the opposing party’s affidavit as to whether he had or has in possession any documents sought is conclusive, the 2^nd defendant’s 2^nd affirmation should bring an end to the present application.

12.  However, the plaintiff still pressed on.  Hence today’s hearing.

13.  In my view, even if the plaintiff is not content with what the 2^nd defendant has alleged in her 2^nd affirmation, given the conclusiveness of the evidence, the matter must now stop here.  Any order compelling the 2^nd defendant to make discovery, which she would do by repeating what she has already said in the 2^nd affirmation, is meaningless and a waste of time and costs.  In short, the plaintiff is not entitled to the specific discovery sought or any consequential directions for filing of further witness statements to deal with the events relating to the Safety Box.  Even if the request for the consequential directions is to be treated independently, this is not the appropriate occasion to make any direction because the 1^st defendant should also be heard on this matter.

14.  For the above reasons, I will make no order on the plaintiff’s summons.

15.  What remains is the question of costs.  In my view, the plaintiff was initially entitled to seek specific discovery.  The way how the 2^nd defendant dealt with the Safety Box and the plaintiff’s request for the documents sought provided a proper basis for the application.  But when the 2^nd defendant filed the 2^nd affirmation, she should have withdrawn the summons.  It is wrong for her to protract and to bring the matter before this court for substantive argument.  In the circumstances, the plaintiff shall have the costs of the summons before and up to 2 August 2010 but the 2^nd defendant shall have the costs thereafter including the costs of today’s hearing.  Both sets of costs are to be paid forthwith and to be taxed on a party and party basis if not agreed.

16.  To expedite the proceedings, I will direct the parties to approach the listing officer within the next 14 days for the purpose of fixing a case management conference.

Mr Lam Chin Ching Gary, instructed by Messrs Charles Wong & Co., for the Plaintiff

Mr Erik Shum, instructed by Messrs K.Y. Woo & Co., for the 2^nd Defendant