YE JINXIANG v. KAM PING KWONG

HCAP 25/2012 and
HCMP 3548/2016
(Heard Together)
[2018] HKCFI 2652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 25 OF 2012 AND

MISCELLANEOUS PROCEEDINGS NO 3548 OF 2016

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(Heard Together pursuant to the Order of
Master Lo dated 8 December 2017)

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DECISION

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The appeals

1.   There are two appeals before me.  One is under HCAP 25/2012 (“HCAP 25”).  The other is under HCMP 3548/2016 (“HCMP 3548”).  Both relate to the decisions of Master Lo made on 14 March 2018 (the “Decisions”) dismissing the plaintiff’s summonses both dated 1 November 2017 (one in each action, the “Summonses”) for attachment of moneys said to be payable by the Urban Renewal Section of the Lands Department (the “Intended Garnishee”) to the defendant/judgment debtor (“Kam”) under the Lands Resumption Ordinance, Cap 124 (“LRO”).  They raise the same issues, and are heard together.

Relevant background

2.   Under HCAP 25 and HCMP 3548, there are a number of costs orders against Kam which he has not satisfied (the “Costs Orders”).  Save that those orders exist and that they have not been satisfied, we are not concerned with their details.  Nor are they in dispute for the purpose of these appeals.  What these appeals are concerned with are the plaintiff’s attempts to enforce those orders.

3.   Kam used to be one of two tenants-in-common in equal shares of the property located at the Remaining Portion of Kowloon Inland Lot No 1102 (No 541 Shanghai Street) (the “Property”).  That was until the Property was resumed by the Government on 3 April 1997 pursuant to the terms of the LRO.

4.   On 30 April 1997, a letter was issued by the Intended Garnishee to Kam and the other tenant-in-common (the “30 April Letter”).  An offer of compensation (“Compensation Offer”) was made thereby in respect of the resumption of the Property.  It was made pursuant to section 6(1)(a) of the LRO, and was made on a without prejudice basis.  The offered amount was HK$16,550,000.  The half share referable to Kam’s interest was HK$8,275,000.

5.   The 30 April Letter expressly stipulated that the Compensation Offer was only open for acceptance within 28 days, that:

“    The above offer remains open for acceptance for a period of 28 days from the date hereof and will lapse unless written acceptance of the offer is received on or before 28 May 1997.”

6.   No written acceptance had been received from Kam.  The Compensation Offer according to the terms set out above lapsed on 29 May 1997. 

7.   On 6 June 1997, another letter was issued by the Intended Garnishee to Kam and the other tenant-in-common (the “6 June Letter”).  Provisional payment in the sum of HK$14,895,000 (ie 90% of the Compensation Offer) was offered thereby in respect of the resumption of the Property.  It was expressed to be offered pursuant to section 16A of the LRO.  The 6 June Letter contained inter alia the following terms:

“ … As you have not indicated that the [Compensation Offer] is acceptable to you, you may either submit further evidence to substantiate your claim which you may subsequently make or in accordance with section 6(3) of the Crown Lands Resumption Ordinance apply to the Lands Tribunal to determine the amount of compensation to be paid in respect of the land resumed.

   Notwithstanding any application which may be made to the Lands Tribunal, Government is prepared to pay you a sum of $14,895,000.00, being a provisional payment under section 16A of the said Ordinance in respect of the value of the land resumed and any building thereon assessed in accordance with the said Ordinance together with interest on this amount … provided always that such interest and provisional payment shall be taken into account and set off against any compensation and interest awarded by the Lands Tribunal and if such interest together with the provisional payment that have been paid should exceed the amount of compensation and interest determined by the Lands Tribunal in respect of such application, the amount of excess shall be repaid to Government.

   Acceptance of the provisional payment by you would be entirely without prejudice to your right to make any claim to the Lands Tribunal for determination of the amount of compensation payable to you under the said Ordinance in respect of the resumption of the land described above ….”

8.   On 11 June 1997, Kam accepted his share of the provisional payment in the sum of HK$7,447,500 (the “Provisional Payment”).  He did so by signing back the Form of Acceptance attached to the 6 June Letter.  The version he signed back was in Chinese, and was in the following terms:

「   我/我們接納根據收回官地條例第124章第16A條所提議的臨時付款及所計算的利息，但還不會影響我/我們依照上述條例把此事轉交土地審裁處處理。」

9.   That sum of HK$7,447,500 was released to Kam on 9 March 1998.

10.   No claim in respect of the resumption of the Property has ever been submitted by Kam or the Government to the Lands Tribunal.

11.   On 1 November 2017, the plaintiff took out the Summonses.  The one under HCAP 25 was amended once on 1 December 2017.  No issue arises from those amendments. 

12.   The Summonses were taken out pursuant to section 23 of the Crown Proceedings Ordinance, Cap 300 (“CPO”) and Order 77, rule 16(2) of the Rules of the High Court.  The plaintiff seeks thereby inter alia an Order restraining Kam from receiving any money from the Intended Garnishee, and that the Intended Garnishee be directed to pay the plaintiff certain sums in satisfaction of the Costs Orders.

The hearing before Master Lo

13.   As the Summonses raised the same issues, they were on 8 December 2017 ordered to be heard together.  The substantive hearing subsequently took place before Master Lo on 14 March 2018.  Having heard parties, Master Lo dismissed both Summonses with costs.

The Notices of Appeal

14.   On 25 April and 30 April 2018, the plaintiff filed his Notices of Appeal respectively under HCAP 25 and HCMP 3548.  The sole ground put forward in both Notices is that “The offer of compensation in respect of the resumption of the [Property] under Section 6(1)(a) of the [LRO] are statutory compensation and attachable to satisfy any debt of the land owner.”

Whether leave to extend time

15.   The Notices of Appeal were out of time by about one month. The first issue to be considered is therefore whether to grant the plaintiff leave to file his Notices of Appeal late. 

16.   The relevant considerations when considering whether to extend time to appeal are not in dispute.  They are set out in paragraph 58/1/9 of the Hong Kong Civil Procedure 2019.  As summarized by Cheung JA in Menno Leendert Vos v Global Fair Industrial Ltd (HCMP 796/2010, 21 June 2010) (at paragraph 16), they are:

“ (1)   The length of the delay;

(2)   Reason for the delay;

(3)   Merits of this appeal: is there a reasonable prospect of success of the proposed appeal?

(4)   Prejudice to the other party if leave is granted.”

17.   In his affirmation of 24 April 2018, the plaintiff sought to explain the delay by saying that “I was at my home town in Guantung, China, out of Hong Kong for family affair when the [Decisions were] made”, and “it took me some time to decide whether there is merit to appeal”.

18.   In my view, the explanations given by the plaintiff for the delaylack particulars, and are completely inadequate.  However, I note that the delay was not long.  I note that no prejudice would be suffered by the Intended Garnishee if leave is granted.  I also note the underlying objectives.  I am prepared to consider the merits of the proposed appeals also before deciding whether to grant the plaintiff leave to file his Notices of Appeal late.

The plaintiff’s submissions on merits

19.   The plaintiff is represented by Mr Tony Ko of counsel.  His submissions in gist are:

   (a)   under the LRO read together with Articles 6 and 105 of the Basic Law, Kam has the right to be compensated without undue delay;

   (b)   upon proper interpretation of the LRO, the Compensation Offer, once made by the Intended Garnishee, even though not accepted by Kam, and until varied by the Lands Tribunal, remains payable;

   (c)   the release of the Provisional Payment by the Government was ultra vires and invalid as there was at the time no pending Lands Tribunal proceedings on foot in respect of the resumption of the Property; and

   (d)   viewed as such, there is still an attachable debt in the form of the Compensation Offer.

20.   The issues framed by Mr Ko are hence:

“ a)   Whether there is an attachable debt due or accruing due by the Gov’t in favour of Kam?

b)   Whether the provisional payment of HK$7,447,500.00 released to Kam is valid?”

The submissions on behalf of the Intended Garnishee

21.   Ms Jess Chan, Senior Government Counsel, appears for the Intended Garnishee.  Her submission is straightforward, that there is no present or accrued liability on the part of the Government to pay Kam, whether in terms of the Compensation Offer or the difference between that offered sum and the Provisional Payment.   

Attachment of debt due from the Government

22.   Garnishee proceedings are normally pursued under Order 49 of the Rules of the High Court.  However, Order 49 has no application if the garnishee is the Government.  Order 77, rule 16(1)(a) specifically provides that:

“ No order—

(a)   for the attachment of debts under Order 49 …

shall be made or have effect in respect of any money due or accruing due, or alleged to be due or accruing due, from the Crown.”

Instead, the applicable statute is section 23(1) of the Crown Proceedings Ordinance, Cap 300 (“CPO”), which stipulates that:

“ Where any money is payable by the Crown to some person who,under any order of any court, is liable to pay any money to any other person, and that other person would, if the money so payableby the Crown were money payable by a subject, be entitled under rules of court to obtain an order for the attachment thereof as a debt due or accruing due …, the Supreme Court may, subject to the provisions of this Ordinance and in accordance with rules of court, make an order restraining the first-mentioned person from receiving that money and directing payment thereof to that other person …”

23.   The starting words of section 23(1) are important.  The operation of the sub-section is prerequisite upon the satisfaction of the condition that “where any money is payable by the Crown”.

24.   In Da Fong Construction Engineering Co Ltd v Chuen Hing Construction Co Ltd HCA 4734/2001 (unreported, 17 June 2002), Deputy Judge A Cheung (as he then was) held and observed at paragraph 8 of the Judgment that:

“ … At this juncture, I should mention that s.23 of the Crown Proceedings Ordinance which gives the Court the power to makethe relevant order of attachment against the Government providesspecifically that where any money ‘is payable’ by the Government to some person i.e. the judgment debtor, the judgment creditor may make an application to Court for the attachment of the money as a debt due and owing by the Government to the judgment creditor rather than to the judgment debtor.  It is plain to me that the section only applies to a present and accrued liability on the part of the Government to pay.”

25.   I respectfully agree with those observations.  Unless there is a “present and accrued liability”, there cannot be any money which “is payable”.

26.   In this regard, I record that Mr Ko cites to me paragraph 49/1/12 of the Hong Kong Civil Procedure 2019, for the proposition that:

“ Debt of unascertained amount—The fact that the amount of the debt due or accruing due is not ascertained does not prevent a garnishee order nisi being made (Lucy v Wood…; De Pass v. Capital & Industries Corp…).”

Mr Ko also cites to me De Pass v Capital & Industries Corp [1891] 1 QB 216.

27.   I doubt the relevance of that proposition.  It relates only to thegranting of a garnishee order nisi.  In an application under section 23(1) ofCPO, the procedure is not split up into “nisi”and “absolute” stages.  I raised this with Mr Ko in the course of his submissions, which he acknowledged.  Further, Mr Ko’s stance is that the attachable debt in the present case is in fact an ascertained one, namely the Compensation Offer.  The position of an unascertained debt simply does not arise for consideration in this case.

Statutory interpretation

28.   In Yung Chi Keung v Protection of Wages on Insolvency Board (2016) 19 HKCFAR 469, the learned Chief Justice observed and explained at paragraph 22 that:

“ … This Court has on numerous occasions stated that statutory construction requires a purposive approach to be adopted; in other words, the words of a statute must be construed in the light of their purpose.  Context of course also plays an important part.  However, it must always be borne in mind that context and purpose are not to be seen in isolation.  Just as it would be wrong to construe words in a statute without regard to context and purpose, it is equally impermissible to ignore the actual words used in a statute in order to construe its effect.  In China Field Ltd v Appeal Tribunal (Buildings) (No 2), Lord Millett NPJ warned of the impermissibility of adopting an approach which would ‘distort or even ignore the plain meaning of the text and construe the statute in whatever manner achieves a result which they [the courts] consider desirable.’  While the plain or natural meaning of the relevant text may not always be clear cut (hence the obvious need to bear in mind as a starting point context and purpose), the actual words used cannot be ignored.  The Court is after all an ‘interpreter not a legislator’.”

29.   Yung Chi Keung, though not cited to me, was raised by me with Mr Ko in the course of his submissions.  I adopt the same approach when construing the LRO.

Whether any “money is payable” by the Government to Kam

30.   The provisions of the Basic Law raised by Mr Ko are not controversial.  Articles 6, 11 and 105 respectively stipulate, inter alia, that:

“    The Hong Kong Special Administrative Region shall protect the right of private ownership of property in accordance with law.” (Article 6)

“    No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this Law.” (Article 11)

“    The Hong Kong Special Administrative Region shall, in accordance with law, protect the right of individuals and legal persons to the acquisition, use, disposal and inheritance of property and their right to compensation for lawful deprivation of their property. 

   Such compensation shall correspond to the real value of the property concerned at the time and shall be freely convertible and paid without undue delay.”  (Article 105)

31.   Nor is it controversial that the right to compensation is a statutoryright, governed by the provisions of the LRO—Common Luck Investment Ltd v Cheung Kam Chuen [1999] 2 HKLRD 417, per Litton PJ at 426A.

32.   Whilst the above are not controversial, they fall a long way short of providing any justification for the proposition put forward by Mr Ko, namely any offer for compensation under section 6(1)(a) of the LRO, once made by the Government, even though not accepted by the offeree, and until varied by the Lands Tribunal, remains payable:

   (a)   That is not what is said by the section.In section 6(1)(a), the words used are “an offer of compensation” (emphasis added).  The offeree has the option of whether to accept it.  That is also consistent with the usual concept of offer and acceptance.  If the offer chooses not to accept it, that person has the right to refer the matter to the Lands Tribunal for determination of the amount of the compensation to be paid.

    (b)   Nor does reading LRO as a whole support that proposition. There is no express provision anywhere which supports that proposition.Sections 10, 11 and 12 contain detailed provisions on those matters that are relevant to the determination by the Lands Tribunal of the amount of compensation payable.  There is nothing in those section which remotely suggests that an unaccepted offer somehow remains payable.

   (c)   Mr Ko submits that if an unaccepted offer for compensation does not remain payable, in cases similar to the present one where the offeree does not refer the matter to the Lands Tribunal, the matter would be left hanging in the air for a long time, and that would be inconsistent with Article 105 of the Basis Law.  I do not agree.  A statutory system is in place for an offeree who chooses not to accept any offer of compensation to refer thematter to the Lands Tribunal, so that the amount of compensation can be determined without undue delay.  Once that system is in place, whether to accept any offer, and if not whether and when to refer the matter to the Lands Tribunal, are matters for the offeree.

    (d)   Mr Ko relies heavily on section 18 of the LRO.  He submits that that section completes the mechanism he is contending for.  I do not agree.  That section applies only to those cases specified in the section, namely:

“ When the owner of any land which has been resumed is absent from Hong Kong or cannot be found, or within 6 months from the date when the amount of compensation shall have been determined makes no claim to the same, or is in the opinion of the Chief Executive unable to give an effectual discharge for the same, the Chief Executive may direct payment of the compensation to be made to such other person on behalf of the owner as he shall think proper, …”

It does not give the Chief Executive any general power to direct payment in respect of any unaccepted offer.

   (e)   Nor can I see any basis to say that the purpose of the LRO supports the proposition being put forward by Mr Ko.

   (f)   In my view, Mr Ko’s contention is in effect an impermissible attempt to rewrite the LRO.  I with respect borrow the learned Chief Justice’s words in Yung Chi Keung, that “The Court is after all an ‘interpreter not a legislator’.”

33.   By reason of the above, I reject Mr Ko’s proposition that any offer of compensation, even though not accepted, and until varied by the Lands Tribunal, remains payable.

Whether release of the Provisional Payment ultra vires and invalid

34.   Mr Ko’s submission that the release of the Provisional Payment was ultra vires and invalid is based upon his interpretation of section 16A of the LRO.

35.   Section 16 of the LRO in its entirety stipulates that:

“ 16A  Provisional payment pending determination of compensation

(1)   Where, in the case of land resumed under an order made under section 3 on or after the commencement of the Crown Lands Resumption (Amendment) Ordinance 1984 (5 of 1984), any offer of compensation made by the Authority toany person under this Ordinance in respect of any claim isnot accepted, the Authority may, pending the determinationby the Lands Tribunal of the compensation, if any, payable in respect of such claim under this Ordinance, pay—

(a)   an amount as a provisional payment of the amount payable by virtue of such determination; and

(b)   interest on any payment made under paragraph (a), for the period from the date on which the land reverts to the Government under section 5, until the date on which the payment is made, calculated on a daily basis according to subsection (1A).

(1A)  For the purposes of subsection (1)(b), the rate of interest paid—

(a)   in respect of a working day must not be lower than the lowest of the interest rates paid on deposits at 24 hours’ call by note-issuing banks at the close of business on that day; and

(b)   in respect of a non-working day must not be lower than the lowest of the interest rates paid on deposits at 24 hours’ call by note-issuing banks at the close of business on the last working day before that day.

(2)   Any payment made by the Authority under subsection (1) in respect of any claim shall be without prejudice to the claim or the submission thereof to, or the determination thereof by, the Lands Tribunal under this Ordinance; but the amount of compensation payable by virtue of such determination in respect of such claim shall be reduced by the amount of such payment.

(3)   Where the amount of compensation payable by virtue of adetermination of the Lands Tribunal under this Ordinance isreduced under subsection (2) by the amount of any paymentmade under subsection (1), such compensation shall not as from the date on which the payment is made bear interest except on the amount thereof as so reduced.

(4)   Where the amount of any payment made by the Authority under subsection (1) in respect of any claim exceeds the amount of the compensation determined by the Lands Tribunal in respect of such claim, the amount of the excess shall be recoverable by the Authority as a civil debt.”

36.   To start with, there is nothing in that section which expressly provides that provisional payment can only be made when a claim for compensation before the Lands Tribunal is actually on foot.  The phrase “pending the determination by the Lands Tribunal of the compensation” does not necessarily carry that meaning or have that implication.

37.   More importantly, the express wording of the section is inconsistent with the interpretation which Mr Ko is contending for.  I highlight section 16A(2), that “Any payment made by the Authority under subsection (1) in respect of any claim shall be without prejudice to the claimor the submission thereof to, or the determination thereof by, the Lands Tribunal under this Ordinance”.  The underlined words clearly envisage the case of a claim actually on foot (“without prejudice to the claim”), and the case of a claim not yet on foot but which may be subsequently submitted (“without prejudice to the … submission thereof”).

38.   I also see no reason why the power to offer and release provisional payment should be confined to the scenario where a claim before the Lands Tribunal is actually on foot (as opposed to the parties having the power or entitlement under the terms of the LRO to submit or refer).

39.   For the above reasons, I reject Mr Ko’s submissions in this regard.

No “money is payable”

40.   Having answered the two issues against Mr Ko, the answer to the main issue follows naturally.  In my view, the plaintiff has failed to show that any money is payable by the Intended Garnishee to Kam, or in other words the existence of any present and accrued liability on the part of the Government to pay Kam, or any debt due or accruing due to Kam.  In my view, the facts of the case fall far short of establishing such a liability. The proposed appeals are not reasonably arguable.

Disposal

41.   In the circumstances, I refuse the plaintiff leave to file his Notices of Appeal late.  I would in any event have dismissed any appeal on the proposed grounds set out in the Notices. 

42.   Mr Ko and Ms Chan agree that costs of the appeals are to follow the event.  I order that costs of the appeals be borne by the plaintiff, to be summarily assessed.  The Intended Garnishee is directed to file and serve its submission within 10 days from the date hereof, and the plaintiff to file his reply within 10 days of its receipt.

HCAP 25/2012

香港特別行政區

高等法院

原訟法庭

遺囑認證訴訟2012年第25號

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判 案 書

背景及爭議事項

1.  本遺囑認證訴訟案件的背景資料，可詳見於2014年11 月28日，高等法院原訟法庭暫委法官梁俊文的書面判詞中第1至第9段。

2.  簡單說，原告人指稱死者甘克明（“甘氏”）是他父親的妾侍，因此他是甘氏遺產的繼承人之一，他要求法院委任他作為遺產管理人。相反，被告人否認甘氏是所稱的“妾侍”，她仍獨身，未有子嗣，而被告人則是甘氏親弟，所以有權繼承遺產，他才應成為遺產管理人。

3.  換而言之，本案唯一的爭議點是：“甘氏”是否原告人父親葉鎮邦的妾侍？若甘氏是葉鎮邦的妾侍，則根據香港法例第73章《無遺囑者遺產條例》附表1中的第2(2)(a)(i) 條，原告人葉錦祥及其親妹葉秀瓊乃是甘氏之子女，可以繼承甘氏全部遺產，並且原告人理應可以成為甘氏的遺產管理人。而被告人甘炳光（就算他真的是甘氏的親弟）也無權分享甘氏的遺產。

構成夫妾關係的原則

4.  在1971年10月7日以前，以香港為居藉的男士均有權娶妾。

5.  根據《無遺囑者遺產條例》第13(2) 條的規定：

「(2) 在第 (1) 款及附表1內，“夫妾關係”（union of concubinage）指男方與女方在1971年10月7日前締結的夫妾關係，而在該關係下，女方於男方在生時已被男方的妻子接納為其夫之妾，而男方家人亦普遍承認如此。」

6.  《無遺囑者遺產條例》中沒有規定需要任何的娶妾儀式。

7.  換而言之，原告人在本案中需要證明以下三件事項：

(1) 葉鎮邦與甘氏有共同意圖締結成為夫妾。

(2) 於葉鎮邦在生時，甘氏被葉鎮邦的正室（妻子）接納為妾侍。

(3) 於葉鎮邦在生時，甘氏妾侍的身份被男方的家人普遍承認。

［參照：Re Estate of Tse Chu，HCAG 11051/2011 （Judgment dated 30/05/2012），第24段；及Re Estate of Chan Cho Chak，HCAG 3695/2004 （Decision dated 14/12/2005），第6至第9段］

原告方證人的誠信

8.  簡彩楊女士、馬麗英女士與葉長椿先生，都是與甘氏和葉鎮邦正室王復幾十年來過從甚密的親戚。馬麗英是葉鎮邦堂兄的太太，葉長椿是葉鎮邦的堂弟，簡彩楊是王復的親弟婦。另一原告方證人方漢清女士是甘氏死前七年中身邊的密友、契女。

9.  本席同意，這些原告人的鄉親、友好都是單純誠實的證人。馬麗英和葉長椿都是八十多歲的老人。而簡彩楊在2016年7月以94歲的高齡去世，其誓章在審訊時被讀出。在本案審訊時，馬麗英和葉長椿非常樂意地複述他們幾十年來對葉家的所見所聞，很用心、真誠地向法庭表達他們與葉鎮邦一家多年來相處的回憶、理解。本席認為，他們是可信及可靠的證人。

10.  另一原告方證人方漢清是甘氏多年的好朋友，她與甘氏親切的程度，於甘氏口頭稱呼她為“契女”可見一斑。方漢清與甘氏的交往裏，知道甘氏丈夫葉鎮邦在國內有妻子與兒女，讓方漢清明白甘氏是葉鎮邦的妾侍。而且在方漢清對甘氏的認識中，從來沒有給方漢清感覺到有甘氏曾被王復拒絕、否認、或排斥的情況。

原告人誠實可靠

11.  原告人學歷不高，但證據顯示原告人是個可靠的兒子，嬴得了父親葉鎮邦、母親王復與“細媽”甘氏的信任。父親葉鎮邦在1986年把遺囑的內容告訴原告人，他把部分財產要轉移到甘氏名下的想法（為了怕大兒子不分給弟妹的緣故），在甘氏面前都告訴原告人了。另一方面，原告人沒有反對父親的意見，並同意父親的做法，可見原告人對“細媽”甘氏的信任與尊重。

12.  甘氏對原告人與妹妹葉秀瓊的疼愛，是可以從幾封甘氏的家書中看得出來。甘氏把許多心聲都跟他們在書信裏分享了，在1993年的信裏，甘氏特別提到叫兒孫們放心，她說必定會把財產留給兒孫們的，因為那些財產都是從原告人的父親葉鎮邦來的。

13.  甘氏在家書上寫明留財產予兒孫的意圖，是與甘氏把肇興房產留給原告人，及在死前通過方漢清把三個物業的鑰匙及三個保險箱的鑰匙交給原告人是非常吻合的。

14.  原告人的證供，基本上在重要方面都得到其他證人的支持與印證，也有相當的文件、照片證明屬實。例如：原告人說父親娶妾的主意是祖母提出、由母親同意的，這個比較特殊的歷史源由，由葉長椿在法庭上親自很清晰、很真情自然地向法庭表達證實了。

15.  另外一個支持原告人誠信的細節，是有關甘氏如何稱呼王復。原告人說甘氏稱王復為“姐”，王復稱甘氏為“妹”。這事實由馬麗英很真情自然的在法庭上說明印證了。馬麗英說王復曾經告訴她有關她（王復）對丈夫娶妾的感覺，王復說：「無所謂啦，都係做姊妹。」這印證了原告人對王復與甘氏之間如何互相稱呼的可信性。

16.  此外，原告人說甘氏後來跟隨他的孩子們稱王復為祖母。這個說法在甘氏1993年3月10日的家書中印證了（那時葉鎮邦的母親已於1973年去世，信中的稱呼不可能是指葉鎮邦的母親）。在這封家書中，甘氏台頭稱呼的“祖母”，就必定是王復，這印證了原告人的記憶是正確的。

17.  此外，被告人屢次說到甘氏應該有五個保險箱，但原告人說只有三個保險箱（二個裏面是有東西的，一個是空的）。原告人的說法，在有關的保險箱點算紀錄表上印證屬實了。事實上，打開保險箱點算的過程，是一個有政府官員及律師樓職員一齊見證的嚴格程序，不可能存在被告人聲稱“落格”的情況。

18.  因上述理由，本席接納原告人是一名可信及可靠的證人。

被告人的證供缺乏誠信及可信性

19.  在審訊期間，被告人說了很多難以置信、離奇古怪的事情：什麼在石硤尾有兩位警員要謀殺他，又說法律援助署發了個好市民獎給他，但後來在法援拒絕援助他後，他就說法援受賄了，成為了香港的重災區。被告人又說原告人是陳振聰犯罪集團的分子，某年某月某日看到原告人兩次，每次拿着十萬元交給陳振聰的親人。這些胡言亂語表面上被告人說得很實在，但明顯地這些被告人所謂的重大事情的真確性近乎是零，及無論如何也與本案扯不上任何關係。

20.  有一些被告人所說的大話，是可以從本案中的文件證據中證明被告人是說謊的。例如上文提及被告人說的甘氏應該有五個保險箱的事情。事實上，文件上顯示，甘氏在銀行裏只有三個保險箱，也就是原告人點算的三個。被告人說原告人是在一位叫陳美莉的律師陪同下去打開香港的保險箱的。但從文件裏可以看到，實在當天陪同原告人去打開保險箱的律師樓人員，只是一位姓謝的男士（Lawrence Tse）。這證明被告人只是看着文件表面律師樓的名稱，便隨意穿鑿附會，編砌事實，以圖粉飾自己的謊言，使其看起來好像是真實的。

21.  另外，被告人聲稱甘氏與他一直在九龍上海街同住直到1990年拆樓的時候（即每個月有十天時間左右甘氏會回去上海街與被告人和母親同住），但同時被告人又說他與母親要山長水遠地到銅鑼灣甘氏的另外的一個住所去探望甘氏。本席同意，被告人這說法並不可信。

22.  此外，從甘氏與葉鎮邦親密的夫妾關係來看，甘氏從1980年（被告人從內地出獄回港後）到1990十年的時間裏每個月有十天離開葉鎮邦的家，而跑到被告人在上海街的舊房子與被告人同住，是一件離奇古怪，不可能發生的事情。從證據上可以看到，葉鎮邦與甘氏的感情一向很好，尤其在80年代，她連回鄉都陪着葉鎮邦的。幾位年老的證人都沒聽過、沒見過甘氏曾離家跑回娘家住的事情。何況，80年代的末期，葉鎮邦身體不好，更需要甘氏的照顧，甘氏怎麼會無端端的每月長期時間離開葉鎮邦不照顧他？

23.  如果被告人與甘氏是關係良好的親姐弟，不可能幾位與甘氏非常稔熟的親戚證人（簡彩楊、馬麗英、葉長椿），及甘氏的好友契女方漢清，都不知道被告人的存在，也沒聽過甘氏說她有弟妹的事情。

24.  再者，如果被告人與甘氏真的是親姐弟，被告人是不可能不知道甘氏生病了，並且在甘氏死後三年才知道她的死訊。

25.  被告人又說他從來沒有從甘氏的口中聽過葉鎮邦的名字，又說不認識他，只說從某鄉里的口中知道葉鎮邦是一位已退休的裁縫，但不知道葉鎮邦是甘氏的好友或親人。被告人更說從來沒有與甘氏談論過甘氏的婚姻、拍拖的情況，但他卻一口咬定甘氏從來沒有結婚或同居。這證明被告人是一名極度武斷，並不可靠的證人。

26.  被告自認從1951年到1980年期間一直都被關在東北遼寧的監獄裏，他承認所有有關甘氏在這段時間裏的消息都是後來他被釋放出來回港後，從家人所認識的人的口中得知的。被告人沒有說是從甘氏的口中得知任何資料的，也沒有解釋那些所謂家人所認識的人是誰。

27.  被告人說他與甘氏經常有見面，但是他卻忘記了甘氏死前最後一次他與甘氏見面是哪年（雖然他對那些什麼謀殺、賄賂、公證處人員坐牢的日期時分秒卻都記得一清二楚）。

28.  最後，被告人違反了黃健棠聆案官在本案於2015年11 月6日頒下的命令，沒有向香港入境事務處申請被告人個人背景的資料，並且在本案審訊時第一次提出了嶄新的藉口，說什麼申請都沒用，因為入境處已經把他的出生證明書與在香港上學的證明書都丟失了，但他卻承認他的律師從來沒有收到香港入境事務處說明上述情況的書面回函。另一方面，被告人知道任何人可以向入境處申請補領自己丟失了的出生證明書，但他卻從來沒有嘗試申請補領，並且在沒有試過申請補領的情況下，便斷言他的出生證明書應該是給日本軍燒了。

29.  此外，有關被告人說丟了他的在港讀書證明，被告人聲稱他在華仁書院就讀，如果這是真的，被告人應該可以向華仁書院查詢拿出證明來，但卻沒有任何證據顯示被告人曾經嘗試向華仁書院查詢或補領他的就學證明。

30.  這些首次（在2016年8月25日審訊時）堆砌出來的丟文件藉口，被告人以前從來沒有提過。本席同意，如果香港入境事務處真的曾丟失了被告人遞交的文件，並且是被告人的律師告訴他的，被告人不可能一直閉口不告訴法庭或原告一方這個重大的消息及難處。

31.  而事實上，與甘氏同鄉同姓的人太容易、太多了。被告人沒有呈遞任何其他證人的口供、照片或文件來證明他與甘氏的關係。他在甘氏死後五年才冒出來，自稱是死者的親弟（雖然他的年齡後來發現比甘氏大三歲），向法庭申請甘氏的遺產執行權。到目前為止，被告人只能拿出甘氏父母的死亡證，但上面沒有被告人的名字，只有甘氏的名字。

32.  直至現在，被告聲稱的甘氏妹妹甘曼歡或另一位甘氏弟弟甘銘森，他們的年齡、個人資料或住處都不詳，被告人連他們的身份證複印本都不能向法庭提供。這兩個重要至親從來沒有為被告人作供，也沒有出現在甘氏的喪禮中，也沒有在認識甘氏幾十年的至親好友的印象中出現過。

33.  如果確有這兩位甘氏的弟妹的話，這兩名人士將會在證實了被告所謂甘氏“從未嫁人”的言論後，可以與被告人一同分享甘氏的遺產。但這兩位重大利益的關鍵人物卻從來沒有在甘氏死後的十一年裏出現過，也沒有在本案為被告人做過任何的證明。

34.  如果被告人所聲稱的妹妹甘曼歡只是因為基督教的信仰與甘氏不和，那麼甘氏在後期改信基督教的時候，她應早跟這妹妹和好如初了。但這妹妹一直沒有出現過，而被告人對這個妹妹不出現的解釋（宗教信仰問題）十分牽強，也是首次在法庭說出來的原因。而對於另外一位被告人聲稱為甘氏的弟弟甘銘森，除了名字以外，被告人在證供裏隻字不提，沒有解釋為何他從來沒有出來為被告人作證。

35.  本席同意，很大的可能性是所謂的甘曼歡和甘銘森根本是虛構、不存在的，或如存在的話，他們都不是甘氏的親弟妹，或他們早已知道甘氏嫁了葉鎮邦為妾，所以不同意出來為被告人做假證。

36.  被告人在盤問下，顯露了他與死者甘氏好像從來沒有直接對話過（死者在1951年到1980年的所有生平資料都是由別人告訴被告人的，他也直至甘氏死前沒有跟甘氏談及過她私人的感情、婚姻問題）。被告人不認識葉鎮邦 – 這個對甘氏的生命如此重要的人物。被告人對甘氏的生平似乎一點都不認識，或他是在刻意扭曲說謊，否認葉鎮邦與甘氏之間夫妾的關係。

37.  因上述理由，本席同意，被告人在他自稱是甘氏親弟的論據中，嚴重缺乏誠信，而他盲目不斷地否認葉甘之間夫妾關係的證供證據，本席也並不接納。

葉鎮邦與甘氏有共同意圖締结成為夫妾

葉鎮邦娶妾的意圖

38.  葉鎮邦娶妾之意圖，來自他母親與妻子王復。自1957年起，經過一場大病後，葉母便建議葉鎮邦娶妾，以照顧葉鎮邦與長子在香港的生活起居。這點由證人葉長椿證實了，葉長椿在法庭上解釋他為何覺得王復十分接受甘氏為妾，是因為王復曾對他說：“係我叫佢攞嘅”（意思是王復承認是她叫她丈夫葉鎮邦娶妾的）。

39.  在迎娶甘氏為妾時，葉鎮邦絕對没有任何意圖拋棄王復或取消與王復的婚姻，葉鎮邦是清楚解釋給甘氏知道，他在國內已經有妻子，所以只能娶甘氏為妾。葉鎮邦也從來没有意圖去降低王復的身份，反而是十分尊重王復為正室的地位，按着王復與母親的意願去迎娶甘氏為妾。

40.  1968年在香港尖沙咀漢宮酒樓裏舉行的娶妾婚宴，有百多位親友參加，葉鎮邦與甘氏一起迎賓、招待、敬酒、送客。葉鎮邦有向賓客解釋，在國內的正室王復與他三名子女是同意他娶甘氏為妾的，讓大家理解到他只是在娶妾侍，而不是抛棄正室王復娶新的妻子。

41.  原告人的老親戚證人，對1968年七月葉鎮邦在香港舉辦的娶妾婚宴的印象相當深刻。馬麗英說她很記得1968年的喜宴是葉鎮邦“娶妾”的喜宴，因為她記得她先生葉賀明曾在跟同鄉兄弟電話交談後對她說：“葉鎮邦有錢娶妾侍，十蚊人情就夠啦”。馬麗英還記得在該娶妾喜宴上，甘氏是穿長衫的，還有許多現在已過身的同鄉兄弟當時都參加了該喜宴。

42.  另一位證人葉長椿（三叔）對1968年的葉甘喜宴印象也非常深刻，因為漢宮酒樓的一位侍應，曾把一碟魚倒瀉在他的確涼的西裝褲子上。此外，葉長椿還記得甘氏當時是穿長衫、戴白手套的，而葉鎮邦當晚則是穿西裝的。馬麗英則與他同桌而坐。

43.  原告人得悉父親在香港擺“娶妾”喜宴，是因為他通過甘氏代筆的家書，得知父親與甘氏當晚的喜宴安排，他也從每兩個月回鄉一次的簡彩楊口中，得悉有關父親在香港擺設娶妾喜宴的事情。

44.  1968年8月13日（葉鎮邦娶妾所擇的吉日），正室王復在中國新興早上供奉太公，晚上代葉鎮邦舉辨娶妾的慶祝飯宴，一桌大概十位的至親一起吃飯（包括王復、祖母、原告人、秀瓊、舅父，表哥等等），沒有鋪張，沒有貼雙喜（意謂沒有掛對聯），只是吃頓飯。

45.  同日（1968年8月13日），葉鎮邦與甘氏在香港家中舉行拜天地、拜祖先的儀式，意思是要在天地祖先面前確認他們締結成夫妾的關係。

46.  在香港的法例下，對娶妾的儀式並無任何的要求。上述儀式的重要性，只是在顯示當年葉鎮邦與甘氏要締结成夫妾的強烈意圖，還有王復與葉鎮邦一家上下全力樂意的對葉鎮邦娶妾的決定支持、接納與承認。

47.  葉鎮邦在1979年的遺囑裏，宣稱甘氏為他的“妾侍”，本席同意這是葉鎮邦心中對甘氏身份的理解與確認最佳的證明。這個宣稱顯示了葉鎮邦娶甘氏為妾的一向意圖，到他死的那天，都沒有改變過。

甘氏願意被迎娶為妾的意圖

48.  甘氏從葉鎮邦向她的剖白與解釋中，清楚知道自己在葉家的地位。在1968年她被迎娶為妾侍的時候，葉鎮邦向親友介紹她時，說明國內的正室王復與三名子女都同意他娶甘氏為妾的。對於葉鎮邦的這個解釋，甘氏從來沒有反對或否認過。

49.  甘氏在二十多年來寫信回鄉與葉鎮邦一家的溝通中，沒有證據顯示她曾反對或否認過她是葉鎮邦的妾氏之事實。

50.  有關1979年葉鎮邦的遺囑內容，甘氏應該是十分清楚的，她應該知道葉鎮邦在遺囑中宣稱她為“妾侍”。根據原告人的記憶，甘氏是有份與葉鎮邦、原告人一起和葉鎮邦的律師喝茶，討論葉鎮邦遺囑與財產分配的事宜。甘氏對葉鎮邦在遺囑中宣稱她是妾侍並沒有反對、異議。這顯示了甘氏的認知與意圖，一向都是要成為葉鎮邦的妾侍，並不是只做情婦，也不是要奪取正室王復的妻子名份。

51.  甘氏在葉鎮邦兩個轉讓給她的物業契約裏，公開承認她是“已婚婦人” ，顯示她確認已“嫁”給葉鎮邦為妾的意圖。

52.  甘氏接受被王復稱為“妹”，稱王復為“姐”，被原告人稱為“細媽”，這些都表示甘氏十分願意把自己的身份、位置降在王復之下，非常吻合妾侍在共同家庭中尊敬正室為大的習慣。

王復對甘氏妾侍身份的接納

53.  正如葉長椿（三叔）在庭上說：王復十分接納甘氏，是因為王復承認是她自己建議丈夫去娶妾侍的。

54.  也正如馬麗英在庭上說：王復與甘氏的關係相當融洽，而王復曾對她解釋她與甘氏的關係，是做姊妹的關係，因為王復曾對她說：“無所謂啦，大家做姊妹”。

55.  原告人對於他母親王復與細媽甘氏之間的關係，他形容為“她倆十分喜歡對方，互相接納”。

56.  簡彩楊是王復的弟婦，是平農階層，在文化大革命期間仍可出入中國。她是最長期（1968年至1999年）奔走在鄉下的王復與香港的甘氏中間的，三十一年來她長期為甘氏帶錢、帶食物、衣物回鄉給王復與她的子孫們，簡彩楊是認識葉家最長、接觸王復、甘氏最多的歷史見證人。簡彩楊的證供是：她知道葉鎮邦的母親（祖母）與王復建議葉鎮邦娶妾，而王復有跟她明言她（王復）接納葉鎮邦收納甘氏為妾。

57.  簡彩楊不是葉家的人，她乃是王復娘家的人（王復親弟弟的妻子）。簡彩楊在血緣感情的關係上，理應是幫王復那邊說好話的，不大可能會說出對王復不利、不敬的謊言，或詆譭王復的身份或心態。故此，本席同意，當簡彩楊形容王復是接納甘氏為葉鎮邦妾侍的時候，她證供的份量和可信性是甚高的。

58.  王復與甘氏以“姊妹”互相稱呼，顯示出王復非常接納甘氏為葉鎮邦的妾侍，願意與她做“姊妹”，成為葉家的一個成員。

59.  在1980年代中國文化大革命結束後，葉鎮邦及甘氏開始回鄉探望王復與孩子們。甘氏常常被王復邀請，參加王復在新興舉辦的生日宴。這表示王復已十分接納甘氏為葉家妾侍的身份。

60.  另外，王復每年都容許甘氏跟隨葉鎮邦回鄉祭祖，這也是王復接納甘氏為葉家妾侍的強烈證據。而且每次甘氏回鄉都是與葉鎮邦同住在王復家裏的，如果王復不是已接納了甘氏為葉鎮邦的妾侍，她是絕對不可能幾十年坦然寬容地容許丈夫攜着另一位女士回鄉，在全村親友眾目睽睽下跟着葉家參祭葉家祖先及出席她自己的生日宴。

61.  1986年，在王復、原告人和妹妹葉秀霞來港的時候，葉鎮邦與甘氏為王復在九龍美麗華酒店擺生日宴，王復同意接納，並出席參與了。這也是顯示王復願意接納甘氏為葉鎮邦妾侍的印證。

62.  在1986年原告人告訴了王復有關父親葉鎮邦的遺產分五份（一份歸甘氏）的事實後，她對葉鎮邦在遺囑裏確認甘氏為妾，並賦予甘氏可繼承葉鎮邦五份之一的遺產的權利，從來沒有反對過。

葉鎮邦家人對甘氏為葉鎮邦妾侍的承認

63.  葉鎮邦在生之時，他的家人，包括他的正室王復、他的母親及他的三名子女對甘氏被娶為妾的事實，無論從哪個角度來看都是十分承認的。

64.  有關正室王復對丈夫葉鎮邦娶甘氏為妾的接納與承認，請看上文。

65.  至於葉鎮邦的母親，從簡彩楊及原告人的證供裏，看到是這位祖母首先提議葉鎮邦娶妾的，這等於她從1957年等待了十一年才完成了這個心願。葉鎮邦母親在1968年8月13日參與了在新興王復主持的娶妾慶祝飯宴。之後每年甘氏都經過簡彩楊帶禮物、家用等回鄉給王復一家，所以葉鎮邦的母親對甘氏在葉家妾侍的角色應該是非常接納的。

66.  至於葉鎮邦的三名子女，從多方面來看，都看得出他們處處承認甘氏為葉鎮邦的妾侍。

(1) 1957年，原告人與兄妹二人已經是十二、三歲左右，剛懂事，他們跟隨母親王復與祖母的意思同意父親娶妾。

(2) 1968年8月13日，原告人兄妹已經二十三、二十四歲的成人時，他們在書信裏告訴父親很支持他娶妾，並在家鄉出席參與了母親王復代父親舉辦的慶祝娶妾飯宴。他們很樂意跟隨母親及祖母的意願，支持父親在香港娶妾以照顧他自己與及大哥葉炎勳。

(3) 眾原告方證人都見證大兒子葉炎勳在香港1968年父親的娶妾宴上曾熱心幫忙招待賓客，可見他當時也是十分支持父親娶妾的，也承認甘氏為父親所娶的妾侍。

(4) 在1968年起，在中國的王復、原告人二兄妹和祖母（直至她在1973年去世），每月不停的接受甘氏送給他們的生活補貼（每月人民幣400–500元）及各樣禮物／資助，如同接納家人的支持與幫忙一樣的態度，絲毫沒有半點覺得生外、有愧或怕欠人情的情緒。因為原告人及其妹已承認了甘氏為他們細媽的身份，故此，甘氏對他們提供的生活幫助與噓寒問暖，他們都覺得很正常，沒有證據顯示他們覺得奇怪或不自然。

(5) 原告人及其妹對甘氏稱為“阿媽”或“細媽”，這充分顯示出他們承認甘氏為父親妾侍的心態。甘氏對原告人直叫他名字“錦祥”，在肇興房產的遺囑上稱原告人為兒子。甘氏也直接稱呼原告人妹妹為“三妹”。甘氏叫原告人的太太為“二嫂”，叫葉炎勳的太太為“大嫂”，叫葉鎮邦的母親為“祖母”，在較後時間又跟原告人三兄妹的孩子叫王復為“祖母”。這些稱呼都深深顯示了甘氏與原告人兄妹之間一家人的親密關係。原告人兄妹與甘氏之間有親密的稱呼，明顯地是因為他們已承認了甘氏為父親妾侍的緣故。

(6) 在甘氏1993年3月10日的家書裏，甘氏提到她“一定合理分配［家產］給子孫的，你們可放心”。這顯示甘氏認同原告人二兄妹兩人與他們的孩子是她的子孫，同樣地也看出原告人二兄妹已承認甘氏為他們家中的長輩的事實。

(7) 大兒子葉炎勳雖然已過身，但從他在80年代時常陪伴甘氏回鄉出席王復的生日宴，便可看出他當時是非常接受／承認甘氏為父親的妾侍。

(8) 在葉鎮邦1979年的遺囑中，大兒子葉炎勳為遺囑執行人。根據原告人的記憶，大哥葉炎勳已經在1986年之前知道父親立遺囑平均分五份給家人。直至父親於1992年去世，葉炎勳都沒有對這份遺囑書的內容或身份的宣稱提出反對，他在父親過身後把這份遺囑向香港政府申報，並執行了該遺囑，沒有證據顯示葉炎勳在執行父親的遺囑時對該文件內葉鎮邦形容甘氏為妾的宣稱有任何異議。

(9) 同樣地，沒有證據顯示葉炎勳、原告人或葉秀瓊曾經反對或不滿甘氏在父親1992年的喪禮中，以妾侍的身份為父親守夜，為父親規劃墓地，或在中港兩地設立靈位。如葉鎮邦家人沒有接納甘氏為父親的妾侍，則不會讓她全權辦理葉鎮邦的喪事（原告人作為兒子的也只是來港參與喪禮而已），並且接受甘氏以妾侍身份守夜，及容許甘氏按自己的意見規劃父親葉鎮邦墓地的風水設置。

總結及命令

67.  從本案原告方呈遞的證據可以清楚看到，葉鎮邦與甘氏在1968年7月在香港擺設夫妾締結喜宴，招待一百位以上的親戚朋友，在同年8月13日的吉日，在正室王復於中國新興代為擺娶妾飯宴的同日，葉鎮邦與甘氏一起在家中拜天地、祖先。這些都是葉鎮邦與甘氏強烈意圖成為夫妾關係的證據。

68.  直至1979年，葉鎮邦在他的遺囑中宣稱甘氏為他的妾侍。葉家上下都沒有人對這份遺囑的分配或宣稱有任何異議。這個事實不但看到葉鎮邦娶甘氏為妾的清楚意圖，也看得出正室王復對甘氏成為葉鎮邦妾侍的接受，還有葉家上下，包括王復與葉鎮邦三名子女對甘氏妾侍身份的承認。

69.  王復在葉鎮邦的有生之年，與甘氏以“姊妹”相稱，這都是王復接納甘氏為葉鎮邦妾侍的證據。此外，王復在葉鎮邦的有生之年，每年都接受葉鎮邦帶着甘氏回鄉出席她（王復）的生日宴，並容許甘氏跟葉鎮邦與王復一家一起上山祭祖。從這些事情上都可以看得出王復非常接納甘氏為葉鎮邦的妾侍。

70.  至於葉鎮邦子女對甘氏為妾的承認，他們同意祖母給葉鎮邦出的娶妾建議，到他們成年後（二十多歲）在新興參與王復代葉鎮邦舉辦的娶妾飯宴，大兒子在香港參與父親娶妾喜宴的招待，及後來原告人兄妹以“細媽”稱呼甘氏，並接受她多年親人般的關懷、幫助，也接受她每年跟父親回鄉祭祖、出席母親王復的生日宴，最後更同意父親把財產分五份，一份分給為葉鎮邦的妾氏–甘氏。以上等等都都顯示葉家的成員，於葉鎮邦在生時，是非常接納、承認甘氏為葉鎮邦妾侍的事實。

71.  基於上述理由，本席接納：

(1) 原告人父親葉鎮邦與甘氏有共同意圖締結成為夫妾。

(2) 於葉鎮邦在生時，甘氏被葉鎮邦的正室（妻子）接納為妾侍。

(3) 於葉鎮邦在生時，甘氏妾侍的身份被葉鎮邦的家人普遍承認。

72.  因此，本席頒令如下：

(1) 宣布死者甘克明是原告人父親的妾侍。

(2) 宣布原告人是死者甘克明的兒子／後嗣。

(3) 宣布原告人有權就死者甘克明的遺產，根據香港法例第 10章《遺囑認證及遺產管理條例》內的有關次序申請遺產管理書。

(4) 宣布原告人有權就死者甘克明的遺產，根據香港法例第 73章《無遺囑者遺產條例》第4條內的次序承繼死者甘克明的遺產。

(5) 撤銷被告人在本案中的反申索。

(6) 任何一方均可提出申請（Liberty to Apply）。

73.  本席作出暫准命令，本訴訟的訟費由被告人支付原告人（包括保留代決的訟費），若雙方未能就訟費數額達成協議，則數額留待法庭評定。倘若在本判案書頒下後14天內並沒有任何更改訟費命令的請求，此暫准命令將成為絕對命令。

HCAP 25/2012

香港特別行政區

高等法院

原訟法庭

遺囑認證訴訟2012年第25號

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判決書

引言

1.  原告人要求被告人作文件披露。

背景

2.  本遺囑認證訴訟案件的背景資料，可詳見於2014年11月28日，高等法院暫委梁俊文法官（當時官階）的書面判詞中（第1至9段）。

3.  簡單說，原告人說死者是他父親的妾侍，因此他是死者遺產的繼承人之一，他要求法院委任他作為遺產管理人；相反，被告人否認死者是所稱的“妾侍”，她仍獨身、未有子嗣，而他則是死者親弟，所以有權繼承遺產，他才應成為遺產管理人。

4.  2015年3月5日，原告人根據《高等法院規則》第24號命令第7條規則，提出申請，要求被告人向香港入境事務處（Immigration Department）取得他的個人資料（正確名稱為：登記事項證明書（Certificate of Registered Particulars），再以誓章附件方式披露；又或是，香港入境事務處直接向法院披露她擁有被告人的資料。

5.  2015年6月8日，在聆聽雙方陳述後，本席作出一般誓章指示，並押後申請排期正式聆訊。

6.  被告人之後並沒有存檔及送達“反對誓章”，不過，在正式聆訊時，他仍堅決反對原告人的申請。

裁決

7.  經詳細考慮所有證據、相關法規及雙方陳述後，決定原則上批准原告人的申請，有關理由，如下所述。

理由

8.  首先，本席提醒自己“文件披露”的基本原則[1]，申請者有責任證明有關文件：

(a) 存在；

(b) 與案中爭議點相關；及

(c) 被申請者擁有、管有或有權得到它（們）。

9.  法院滿意上述三點後，再行駛酌情權，考慮是否應當指令被申請者“文件披露”，但如認為就訟案或事宜作公平處置或就節省訟費而言，並無必要作出文件透露，即須拒絕作出該項命令[2]。

10.  本案中，

(a) 雙方並沒爭拗，有關資料確實存在；

(b) 被告人是否死者的親弟（或雙方關係），自是重要的爭議之一；

(c) 被告人沒有表示他不可以或不能夠[3]向香港入境事務處申請及取得有關資料。

11.  被告人在庭上口頭提出的反對理由，包括死者從未結婚及生小孩；死者與他是胞姊弟關係，有確實證據、證人，無需驚動香港入境事務處；本案會很快有新進展；他沒有做過任何壞事，不明白怎樣會變成“被告”等等，均不能說服本席，在行駛酌情權時，不應向他頒下文件披露命令。

12.  當然，有關文件披露，本席認為它將可以協助法院就本案及或上述10(b)事宜，作公平處置，而亦可節省訟費。

13.  另外，正如本席在庭上與代表原告人的丘律師討論，文件披露申請未有送達或知會香港入境事務處，所以“第三方文件披露”申請，不獲批准；還有，丘律師在2015年11月2日再單方面來信本席嘗試說服法庭，不過，除不應在未知會被告人的情況下作進一步陳述外，有關理據（包括從來未有提及的《高等法院規則》第38號命令第13條規則，由法庭代替被告人簽妥申請書及法庭命令可當作通知）均不獲本席接受。

14.  就訟費方面，本席在聆訊末段，諮詢雙方，在考慮他們的意見後，認為被告人須支付原告人本申請的一半訟費，簡易評估為$6,500。

(a) 原告人的申請，只算獲批“一半”，他要求香港入境事務處直接向法院披露被告人的個人資料，未能成功。

(b) 原告人要求被告人作文件披露的申請，實屬簡單。

(c) 被告人並未存檔、送達“反對誓章”，他只是在聆訊中作出簡短的“口頭反對”。

(d) 丘律師提出超過$100,000的要求，當中包括18小時文件預備、法律研究，明顯過多；在上述14(a)為前題下，本席認為$6,500訟費才適當（丘律師1.5小時工作 x$4,000 +$500雜費）。

總結

15.  總結上文，本席下令：

(a) 被告人須向香港入境事務處（Immigration Department）申請及取得他本人的登記事項證明書（Certificate of Registered Particulars），再以誓章附件方式存檔及送達，有關事宜，須在2016年2月7日或之前辦妥。

(b) 被告人亦須支付原告人本申請的一半訟費，簡易評估為$6,500。

訴訟待決期間遺產管理人的委任

16.  最後，對原告人在2015年10月12日存檔（委任訴訟待決期間遺產管理人）的申請，被告人表示反對，本席現在指示如下：

(a) 有關申請押後至2016年2月4日下午3時作進一步提訊（預留15分鐘）。

(b) 被告人可在2015年12月4日或之前，存檔及送達其“反對誓章”。

(c) 原告人亦可在2016年1月4日或之前，存檔及送達其“回應誓章”。

(d) 除此之外，雙方不得再存檔及送達其他誓章。

(e) 訟費歸申請中。

HCAP 25/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 25 OF 2012

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D E C I S I O N

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1. On 28 November 2014, I handed down the decision in respect of the application by the defendant (“Kam”) for determination under O.14A of the Rules of the High Court (“RHC”) and the application by the plaintiff (“Ye”) to strike out the defence and counterclaim of Kam under O.18, r.19 (“the Decision”). I dismissed both applications.

2. Following the above event, I made a nisi order that Ye should have his costs of and occasioned by Kam’s summons; while Kam should have his costs of and occasioned by Ye’s summons (but not including the costs of the hearing).  All costs shall be taxed, if not agreed, with certificate for counsel.  Kam’s own costs shall be taxed in accordance with legal aid regulations.

3. By summons filed on 8 December 2014, Ye applies to vary the costs order by adding that by operation of section 16C of the Legal Aid Ordinance, Cap 91, the Director of Legal Aid (“DLA”) shall pay, for and on behalf of Kam, Ye’s costs (inclusive of profit costs, counsel fee, disbursement, interest accrued thereon, taxation fees and taxation costs) of and occasioned by Kam’s summons.  Kam opposes that.

4. The parties seek a paper ruling and, for such purpose, have lodged their respective written submissions.  Noting the potential consequence of the order being sought, I have directed that the DLA be alerted of the application so that the DLA could be heard on this.  The solicitors for Kam have since reported that the DLA would endorse their submissions in opposition.

SECTION 16C

5. Section 19(1) provides that:

“A court or the Court of Final Appeal may make an order for costs in favour of or against an aided person in the same manner and to the same extent as it may make an order for costs in favour of or against any other person but such an order may only be enforced against the aided person and the Director to the extent permitted by section 16C.”

6. Section 16C reads:

“(1) Subject to section 18A, the liability of an aided person and of the Director for costs shall be determined in the following manner-

(a) an aided person shall not be liable for costs incurred by the Director on his behalf-

(i) in the case of costs incurred under the Supplementary Legal Aid Scheme, except in accordance with section 32; and

(ii) in any other case, in excess of such aided person's contribution;

(b) where a court or the Court of Final Appeal makes an order for costs against an aided person, or an agreement is entered into for the payment of costs by an aided person, in favour of a person not receiving legal aid-

(i) in any case in which the party not receiving legal aid is a defendant or respondent in the proceedings (other than a defendant or respondent to a counterclaim or cross-petition), or in the case of an appeal (including an appeal to, or an application for leave to appeal to, the Court of Final Appeal) is a respondent therein (other than a respondent to a cross-appeal) such costs shall be paid by the Director;

(ia) in any case in which the party not receiving legal aid is a defendant to a counterclaim or respondent to a cross-petition, or in the case of an appeal (including an appeal to, or an application for leave to appeal to, the Court of Final Appeal) is a respondent to a cross-petition, the costs occasioned by the counterclaim, cross-petition or cross-appeal filed by or on behalf of the aided person shall be paid by the Director;

(ib) in any case in which the party not receiving legal aid is an appellant in an appeal (including an appeal to, or an application for leave to appeal to, the Court of Final Appeal) and in the court whose judgment or order is appealed against the plaintiff was an aided person, such costs shall be paid by the Director; and

(ii) in any other case, neither the Director nor the aided person shall be liable for such costs unless a contribution is payable by the aided person under section 18(1)(b); in which case the Director on behalf of the aided person shall pay such costs to the extent that the contribution is in excess of the costs incurred by the Director on behalf of the aided person; and

(c) where a court or the Court of Final Appeal makes an order for costs against an aided person, or an agreement is entered into for the payment of costs against an aided person, in favour of a person who is also receiving legal aid, neither such person shall be liable for such costs in excess of his contribution and the contribution of the party who is liable for the payment of costs under such order or agreement shall be charged first with the costs of both parties and thereafter the contribution of the other party shall be charged to the extent of his own costs in so far as such costs are not recovered from the contribution of the party liable to pay costs.

(2) Subsection (1),in so far as it relates to the costs of an aided person, relates only to costs arising in respect of proceedings to which, and during the period to which, a legal aid certificate relates, and nothing in that subsection shall otherwise affect the liability for costs of an aided person.

……”

7. Section 16C(1) provides for the mandatory manner in which the liability of an aided person and of the DLA for costs shall be determined, when the aided person is faced with an adverse costs order.  Section 16C(1)(b) sets out the scenarios in which an order of costs is made against an aided person in favour of a non-aided person.  This is the applicable subparagraph in the present case.

8. In the submission on his behalf, Ye describes his application as one seeking my clarification as to whether or not it is my intention that the costs order, upon the application of the above provisions, would be an empty judgment on costs.

9. O.62, r.3(2A) of the RHC provides that the court has the discretion to make any order as to costs of and incidental to any interlocutory proceedings; and the court may order the costs to follow the event or make such order as the court sees fit.  I did so in accordance with the outcome of the hearing, and in the manner and to the extent as permitted by section 19(1) above.  Insofar as the incidence of liability for costs is concerned, the costs order speaks for itself, and there is no ambiguity or other intention behind it that requires clarification.

10. Ye is seeking to incorporate what are properly matters of enforcement as terms of the costs order.  In raising his query, Ye seems to be acknowledging that the enforcement of the costs order pursuant to section 16C(1)(a) and (b), literally read, would result in his not being able to recover his costs, albeit made in his favour.  Indeed he proposes to read section 16(1)(b)(i) other than literally with a view to making the DLA pay his costs of and occasioned by Kam’s O.14A application.

11. A couple of points to note.

12. First, section 16C(1)(b) exhaustively sets out the various scenarios where a costs order is made against a legally aided person in favour of a non-aided person.  This is reflected by the catchall provision under subsection (1)(b)(ii).

13. Second, the common feature of §§(i), (ia), (ib) and (ii) of section 16C(1)(b) is that such costs have been brought about and occasioned to the non-aided party by the aided person having vexed him by claim, counterclaim or appeal, but unsuccessfully.  Costs occasioned to the non-aided person in successfully claiming against an aided defendant or in successfully counterclaiming against an aided plaintiff shall not be payable by the DLA, save as provided in section 16(1)(b)(ii).  However, if the unsuccessful aided defendant appeals against the judgment or order obtained by the non-aided plaintiff but unsuccessfully, the costs of the appeal occasioned to the non-aided plaintiff, as the respondent in such appeal, shall be paid by the DLA pursuant to section 16(1)(b)(i).

14. The common feature was noted by the Court of Appeal in Common Luck Investment Limited v Director of Legal Aid, CACV 375/2001 (4 December 2001) (at §§23-24, per Woo JA).  On further appeal, the Court of Final Appeal gave a similar summary of the scenarios under section 16C: see Common Luck Investment Ltd v Director of Legal Aid, FACV1/2002 (30 July 2002) at §20.

15. It is important to note the Court of Appeal’s explanation of the intent and rationale behind section 16C and thus its strict construction (per Woo JA):

“13. Both parties before us accept and rely on what was said by the Judge at pp 10R-11E of his judgment, as follows:

“The common feature is that liability falls on the Director when the aided person prosecutes unsuccessfully a claim, counterclaim or appeal.  Even in the situation where the appellant is unaided liability will only ensue where the aided person has prosecuted a claim in the court below.  So in simple and wide terms, when an aided person prosecutes a case and loses or loses on appeal, the director pays.  When an aided person defends a case and loses, the Director only pays to the extent of the aided person’s contribution, if any.”

14.   I think that the Judge’s observations are correct.  The intent and spirit of the provisions in s 16C of the Ordinance, according to my understanding, are that the Director will only be bound to pay the costs to the successful defendant where a legally-aided claimant is unsuccessful in his claim, because he has assisted the claimant to bring the claim which may not have been brought without the assistance that is made available from public funds.  The reverse is that the Director will not pay the costs of a successful unaided claimant awarded against an aided unsuccessful defendant because the claim was initiated by the claimant and thrust upon the defendant who had no choice but to defend and the Director was merely assisting the defendant in defending such a claim.  The fact that the aided litigant has been granted legal aid is indicative of his poor financial position so that there is little hope that his successful opponent will be able to recoup costs from him.  The liability of the Director to pay costs is thus an additional benefit to the unaided litigant conferred by statute and resort is made to public funds.  Such statutory provisions must therefore be strictly interpreted.”

16. Ye argues that the designation of the parties’ respective positions in this action differ from a usual case, in that he did not choose to be the plaintiff.  He argues that the ‘natural plaintiff’ should have been Kam; and the references to the parties in the provisions should be construed with reference to the ‘natural plaintiff’ and ‘natural defendant’ accordingly.

17. The history of the matter was set out in the Decision (at §§4-9).  It started with Kam’s application for grant in respect of the estate in question (HCAG 4883/2010).  Then Ye entered a caveat (HCCA 2837/2012); and took out an application for various reliefs.  The master dismissed the application with directions for the commencement of the present action.  According to Ye, which is not disputed by Kam for the present purpose, the master at the beginning directed that Kam should commence the probate action.  However Kam indicated that legal aid approval would have been necessary for that to be carried into effect, which was then unknown.  To expedite the matter, the master directed Ye to commence the present action instead.

18. In this respect, Yeung J (as he then was) in Common Luck (above) had this to say:

“40. Section 16C of the Legal Aid Ordinance clearly prohibits the payment out of the legal aid fund of a plaintiff’s costs of his successful claim against a legally aided defendant. The rational is that it is up to a plaintiff to decide if he wants to commence proceedings against someone who is not good for the costs. If he chooses to do so, he should not be in a better position than he would have been but for the statutory provisions. As Woo JA has put it, the liability of the Director to pay costs is thus an additional benefit to the unaided litigant conferred by statute and resort is made to public funds.

41. Such argument in my view applies only in cases where the plaintiff has a genuine option whether to sue or not but not in a case where a plaintiff is compelled to sue to rid himself of unjustifiable claims against his right or interest. In such a case, a plaintiff either has to put up with unlawful and unjustifiable fetters over his right or interest or sue. When he sues, those who have made unjustifiable claims are assisted by the Director to maintain what is ultimately held to be not maintainable. If unassisted by the Director, the legally aided defendant might have given in at an earlier stage or not fought the case at all.

……

44. I hope the legislature would consider giving an unaided plaintiff wider rights to be paid his costs by the Director and that the court might be given some discretion to order the Director to pay the costs of a successful plaintiff who has been forced to sue a legally aided defendant in order to rid himself of unjustifiable fetters against his interest.

45.   But the Legal Aid Ordinance in its present form has made it abundantly clear that the Director is not liable for any part of the costs of the claim made by an unaided plaintiff.”

19. It may be said that the respective positions of the parties in the present action were designated by the court’s direction instead of entirely a matter of choice.  However, even on that basis, the circumstances of the present case still differ from the kind in Common Luck, which caused Yeung J to make his comment cited above.

20. In Common Luck, the registered owner of the land was prima facie entitled to resumption compensation.  In the absence of challenge, it would have been bound to succeed without much to proof. It was the claimant who intervened and put forward his challenge on the basis of alleged right arising out of adverse possession.  Therefore it may be said that there would be good sense in directing the intervening claimant to be the plaintiff instead of the registered owner (as opposed to what the court actually directed).  The Court of Final Appeal in Common Luck made a similar observation (at §§22-23).

21. The application for grant in the circumstances of the present case is different.  Neither Ye nor Kam in the instant case could claim to be prima facie entitled to the grant.  Whichever of them applies for the grant, he would have to establish his capacity and entitlement. In fact, it was Kam, in his alleged capacity as the deceased’s natural brother, who filed the application for grant, and in respect of which Ye has lodged his challenge by way of caveat twice on differently formulated bases.  The question of which of them should have the ‘natural plaintiff’ and the ‘natural defendant’ is not as apparent as that in Common Luck.  The consideration of this question and the designation of their respective positions in this action are likewise not as material as that in a case like Common Luck.

22. In this connection, I also refer to what Bokhary PJ (as he then was) said in the final court’s decision in Common Luck:

“24.  Turning to the first contention as to the law, I begin by observing that there is nothing in the language of s.16C which suggests that its references to plaintiffs and defendants are implicitly to be qualified so as to be read as references to “natural” plaintiffs and defendants.  Expressions like “plaintiff” and “defendant” are well understood terms of art which appear without implicit qualification in statutes, rules, pleadings, judgments and court orders.  So much for language, but what about context?

25.   In many situations the law looks beyond form and at substance instead.  That is done in order to arrive at reality.  But in the present context, the reality is this. The obvious intention of s.16C is to provide a code by which a non-aided person’s costs entitlement against the Director can be seen from the face of the court’s order.  This avoids disputes which might even result in further litigation. And it necessarily involves going by the parties’ formal designation.  In the vast majority of cases, form will naturally follow substance when it comes to who is the plaintiff and who is the defendant.  The risk of a mismatch between substance and form in that regard can arise in a case like the present.  I mean proceedings not begun by writ which are ordered to continue as if begun by writ, and in which directions are made as to who is to be the plaintiff and who is to be the defendant.  But that risk can be catered for ¾ and I dare say will in future be catered for ¾ by submissions with an eye to s.16C’s implications.”

23. The present case is faced with the same reality.  The parties were directed to take their respective positions in this action.  Contented or not, the parties are bound by that as at today.  It is not for the court now to import words into the provisions of section 16C in order to manifest what, according to Ye, should have been the just designation of their respective positions.

24. Ye also put forward his construction of the provisions in the context of interlocutory proceedings.  He argues that ‘the proceedings’ in section 16(1)(b)(i) shall include interlocutory proceedings; and in such proceedings, an application stands to be treated as a claim, and the respective positions of the parties are dictated by who was the applicant and who was the respondent.  Whilst he is the plaintiff in this action, he was the respondent to Kam’s O.14A application.  Fitting himself into the position of the defendant under section 16(1)(b)(i), the costs of and occasioned to him by the unsuccessful application, he argues, should be paid by the DLA.

25. Again Ye is rehearsing the argument that in construing section 16C, the court looks at what Ye says to be the substance, namely, which party is bringing about the proceedings (only that this time,  interlocutory proceedings) and which is at the receiving end of them.  Indeed a non-aided plaintiff may feel aggrieved, when he could not recoup his costs of successfully resisting interlocutory applications taken out by the aided defendant, especially when the applications are unmeritorious and numerous.  The answer to that, I think, still lies with the rationale behind the limited manner in which the public fund is made by statute to bear the consequence of the risk in respect of costs that the non-aided person would have had to take when deciding to claim against a person with no financial resource.

26. Ye at the same time argues that Kam’s O.14A application, if successful, would have been followed by some sort of counterclaim for relief as set out in his pleading. Therefore Ye’s costs of defending the application should form part of its costs of defending the counterclaim, and thus recoverable from the DLA.  His further submission leaves one with no doubt that he is relying on section 16C(1)(b)(ia).

27. Effectively Ye is contending that his case falls to be governed by both subparagraphs (i) and (ia) of section 16C(1)(b). This cannot be right, as the scenarios under the respective subparagraphs under section 16C(1)(b) were so worded that they do not overlap.

28. I also do not agree with the substance of Ye’s argument.  Ye argues that he is a ‘defendant to a counterclaim’ under section 16C(1)(b)(ia); and the O.14A application served part of the purpose of Kam’s counterclaim.  He resisted the application and thus part of the counterclaim successfully; and therefore should have his costs paid by the DLA.

29. By way of counterclaim in this action, Kam is seeking to establish his entitlement to grant in his alleged capacity as the natural brother of the deceased; and on this basis (together with the denial of Ye’s case) to have the court pronounce that he is so entitled.  The O.14A application was taken out with a view to defeating Ye’s claim.  Had that been entertained and ruled in favour of Kam, he would have expected the dismissal of Ye’s claim.  That would have been success in his defence, not counterclaim.  The situation differs from where the counterclaim merely mirrors the defence and must be allowed as a consequence of the success of the defence.  It cannot be said that because Kam needs to be succeed both in his defence and counterclaim, the O.14A application was thus part of his counterclaim for the purpose of the statute.

30. In any event, the O.14A application failed because it was inappropriate in the circumstances of the case.  That is not, and does not reflect, the failure of Kam’s defence or counterclaim on the merits.  All would be matters for trial.

31. The fallback of Ye, by way of his further submission, is that the O.14A application serves the purpose of clarifying the entitlement or priority in the application for grant, and therefore the costs of that should be paid out of the estate of the deceased.  The short answer is that this is not what is sought by Ye’s summons for variation of the costs order.  Both parties are yet to establish their alleged entitlement to the estate.  This alternative contention, even if entertained, is devoid of merit.

ORDER

32. For the above reasons, I do not agree that the costs order nisi dated 28 November 2014 calls for variation as sought by Ye. Ye’s application is dismissed; and the nisi costs order is hereby made absolute.  Ye shall pay Kam’s costs occasioned by this application, including the costs of the hearing before the master on 17 December 2014.  Costs shall be taxed, if not agreed.  Kam’s own costs shall be taxed in accordance with legal aid regulations.  In the absence of application within 14 days to vary, this costs order shall become absolute as well.

HCAP 25/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 25 OF 2012

____________

____________

_____________

D E C I S I O N

_____________

1. In question is the estate of Kan Hak Ming, deceased (“Madam Kan”). The plaintiff (“Ye”) is the son born out of the marriage between Yip Ching Bong (“the Father”) and Wong Fuk (“the Mother”) in the Mainland, now both deceased. Madam Kan is said to be the concubine of the Father contracted in 1968 in Hong Kong. She passed away in 2005. Ye claims to be the son of the common family of Madam Kan and the Father; and is entitled to share in her estate.

2. The defendant (“Kam”) denies the alleged concubinage.  Claiming to be the younger brother of Madam Kan, Kam claims to be entitled to share in the estate of Madam Kan and grant of administration.  Contrary to that, Ye says Kam is not the brother of Madam Kan but a mere impersonator.

3. Kam took out a summons for summary determination pursuant to O.14A of the Rules of the High Court, Cap.4.  Ye responded by a summons for striking out Kam’s case pursuant to O.18, r.19.

BACKGROUND

4. The Father was born in the Mainland in 1913.  In 1927 and at the age of 14, he came to reside and work in Hong Kong.  5 years later, the Father went back to the Mainland to marry the Mother.  The marriage took place on 5 September 1932.  Ye and his 2 siblings were later born out of such marriage.  In 1951, the Father came to Hong Kong again, this time bringing with him Ye’s eldest brother (now deceased).  They stayed here thereafter whereas Ye and his younger sister remained in the Mainland.  The Father passed away in Hong Kong in 1992.  The Mother passed away in the Mainland in 1999.

5. According to Ye, the Father took Madam Kan as concubine on 13 August 1968 in Hong Kong at the suggestion of his grandmother (the Father’s mother) and with the acceptance by the Mother and their children including Ye[1]. The Father and Madam Kan had since continued to live in Hong Kong.  The relationship between Madam Kan and the rest of the Father’s family is said to have been close and intimate throughout the years.  Details of that are particularised in the pleading.  Among other things, the Father named Madam Kan as one of the beneficiaries in her capacity as concubine in his will.  In her own will, Madam Kan also made specific bequest in favour of Ye as her son.  As mentioned, Madam Kan passed away in 2005.

6. Apparently in May 2010, Kam filed an application for grant in respect of Madam Kan’s estate (HCAG 4883/2010).  Ye then entered a caveat (HCCA 2188/2010), claiming to be the de facto and therefore de jure child of Madam Kan as his stepmother.  Such caveat was eventually withdrawn by consent in the same year.

7. By mid-2012, Kam had yet to obtain the grant. In July 2012, Ye again entered a caveat (HCCA 2837/2012), this time claiming to be the lawful son of the common family of the Father, the Mother and Madam Kan since 1968.  Ye took out an application for various relief, including one for the outstanding grant.  Not surprisingly, the court dismissed such an application with directions for the commencement of a probate action to resolve the dispute.  Hence the present action.

8. Ye’s case[2] is this:

(1)  By reason of the concubinage between the Father and Madam Kan, Ye became the lawful son of the common family and one of those entitled to share in the estate of Madam Kan.

(2)  Ye is a child or issue of Madam Kan within the definition and paragraph 2 of Schedule 1 of the Intestates’ Estates Ordinance, Cap 73 (“IEO”)[3] and is entitled to share in the estate of Madam Kan.

(3)  Kam impersonates as Kan’s brother.  Alternatively, even assuming Kam is the brother of Madam Kan, he has no right to share in the estate of Madam Kam by reason of the fact that Madam Kan leaves issues pursuant to sections 2, 4(5) and paragraph 2 of Schedule 1 of the IEO.

9. In defence, Kam essentially denies the alleged concubinage and Ye’s above case.

10. On 6 June 2013, Kam took out the O.14A summons, setting out the following question for determination:

“whether the alleged union of concubinage between the late Yip Ching Bong (葉鎮邦) and Kan Hak Ming (甘克明), the Deceased, entered in 1968 during the subsistence of the marriage between the former and the late Madam Wong Fuk Miu (王服妹) also known as Wong Fuk (王復), which was entered in 1932 and governed by the law of the People’s Republic of China, is void and unlawful.”

11. If the answer to the question is in the affirmative, Kam asks for the dismissal of the present action.

12. On 29 July 2013, Ye took out his summons seeking to strike out Kam’s defence and counterclaim on the ground that it is a sham; tends to embarrass a fair trial; or amounts to an abuse of process of the court.

KAM’S SUMMONS

13. O.14A, r.1 provides that the court may upon application or of its own motion determine any question of law or construction of document arising in any cause or matter where it appears that such question is suitable for determination without a full trial (r.1(1)(a)); and such determination will finally determine the entire cause or matter or any claim or issue therein (r.1(1)(b)).

14. What Kam seeks to argue is that even assuming that the concubinage was contracted in Hong Kong 1968 (which is disputed), it was nevertheless void and unlawful at the time because of the applicable Mainland law.  In such event, Ye would have no locus as a party to the present action to challenge Kam’s case.

15. Ye questions the appropriateness of invoking O.14A in the circumstances of the present case.

16. The question posed for determination strictly is not based on Kam’s pleaded case.  Ye’s pleaded case is summarised above, which Kam denies[4]. Kam avers that Madam Kan was never married nor had ever been a concubine to any person in her natural life.  Madam Kan had no children in her lifetime and left no issue on her death[5]. There is no alternative case on the validity of the concubinage, if in fact contracted in 1968 in Hong Kong as alleged.

17. The lack of such alternative plea is material. The validity of the concubinage, if in fact contracted, is a question of mixed law and fact.  That the validity of the concubinage, according to Kam, hinges upon the applicability and application of the Mainland marriage law to the Father in 1968 when the concubinage was contracted adds another dimension to the dispute.  Such foreign law must be properly pleaded with necessary particulars.  Strictly the question now posed for determination is formulated outside Kam’s pleading.

18. Pleading aside, issues of foreign law, as those of fact, even if pleaded, are inappropriate for determination under O.14A: see Nativitat v Nativitat [2012] 3 HKLRD 747. The applicability and application of the Mainland law in the determination of the validity of the alleged concubinage in 1968 is very much in dispute.  Simply by considering the opinion of the Mainland law experts engaged by the parties, one would be able to see their difference in emphasis.

19. It has also been held that this is not merely a question of satisfaction of the requirements under O.14A, r.1(1)(a) and (b) mentioned above.  Rather, the court must have all the necessary facts and matters before it in order to determine the question of law: see Rockwin Enterprises Ltd v Shui Ye Ltd & Ors [2003] 3 HKLRD 174 (at §20).  One needs no reminder that most of the material factual allegations of Ye are denied by Kam.  Kam poses the question for determination on the basis of assumed facts.

20. The tactic behind Kam’s application is that if Ye’s entitlement could be rejected summarily as a matter of law, even assuming there was in fact a concubinage between the Father and Madam Kan, Ye would lack the locus to remain as a party in this action.  As such, whether and how Kam proceed to establish his entitlement in his capacity as the natural brother of Kan would be something that Ye would not be in a position to challenge.

21. I doubt if this is the right approach of a party in utilising the O.14A procedure in the circumstances of a case like the present one.  Here the court is not considering Ye’s case on the court’s own motion but upon Kam’s application on the basis of his contentions and, more importantly, his evidence, including expert evidence, when the identity and thus locus of Kam to challenge his case is equally in serious dispute.

22. It should be noted that Kam does not say that the answer to the question posed, one way or the other, would determine the outcome of the case.  It just could; and for Kam’s purpose, this happens only if the answer is that the concubinage was void and unlawful.  If Kam fails on the O.14A application, he would certainly revert to his pleaded case, namely that Ye is put to strict proof of the concubinage, which is merely an assumed fact for the purpose of his application.

23. This, I think, highlights the significance of first, the necessary common factual basis for the question(s) to be determined under O.14A; and second, the residual discretion of the court to decide whether it is appropriate to embark on determination of the question(s) in the circumstances of the case: see Rockwin Enterprises Ltd (at §§20-23). Where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination: see Shell Hong Kong Ltd v Yung Wai Man Kiu Yip Co Ltd (2003) HKCFAR 222.

24. Considering the arguments presented with reference to the expert evidence and the case law, one would see that the path to an answer to the question posed for determination is not straightforward either.  To expedite the analysis, I propose to proceed on the following assumed basis, which is advocated by Kam:

(1)  After the introduction of the Civil Code of the Republic of China in force in 1932, marriage in the Mainland should be monogamous[6].

(2)  The marriage between the Father and the Mother in 1932 in the Mainland, according to the Civil Code, was monogamous[7].

(3)  That the marriage was monogamous did not change after marriage law of the People’s Republic of China[8] came into force in 1953.

25. The Father and Madam Kan entered into the concubinage union in Hong Kong in 1968 prior to the abolition of concubinage in October 1971.  The validity of the concubinage depends on whether the Father had the capacity to enter into the union, in light of the abovementioned background.  This is the major dispute.

26. Ye’s position is that the Hong Kong court will look at the law of the ante-nuptial domicile of the parties to the union, which determines their personal law in the determination of the capacity of the parties to the union and the validity of the union.  Ye argues that by adopting Hong Kong as his domicile, where concubinage was recognised prior to October 1971, the Father in 1968 had the capacity to enter into the concubinage union with Madam Kan in Hong Kong, notwithstanding the monogamous marriage in the Mainland in 1932.  Authoritative support of that comes from the Court of Final Appeal’s judgment in Suen Toi Lee v Yau Yee Ping (2001) 4 HKCFAR 474. 

27. Kam disagrees.  Among the cases he cited in support, the one closest to the present case in terms of facts is In the estate of Wong Wong, HCAG 1797/1998 (24 July 1998, per Yam J), which Kam also heavily relies on.  It was an ex parte non-contentious application for grant of letters of administration.  There the marriage between the husband (deceased) and wife was solemnised and registered under the laws of the Republic of China in 1944.  They then came to Hong Kong and acquired Hong Kong as their domicile of choice.  In 1958, the husband entered into a concubinage union with another woman in Hong Kong, who was accepted by the wife and the family.

28. In Wong Wong, it was accepted that the marriage in the Mainland in 1944 was monogamous.  But it was argued that as a result of the change in domicile, it brought about change of capacity; and the husband’s customary law capacity to take concubines was revived after his acquiring a domicile in Hong Kong.  Similar argument was proposed in Leonard Pegg, Family Law in Hong Kong (2^nd ed) at p.28, citing Ali v Ali[9] and Cheni v Cheni[10].  In Cheni, Sir Jocelyn Simon P said (obiter) that there were no marriages which were not potentially polygamous, in the sense that they may be rendered so by a change of domicile and religion on the part of the spouses.

29. Yam J rejected the argument.  His lordship held that even the law of Hong Kong in 1954 would not allow a person of Chinese origin who had entered into a monogamous marriage, whether in Hong Kong or elsewhere, to take a concubine.  The right to take a concubine would only exist when the first marriage was a polygamous one according to Chinese customary law; and the personal law in Hong Kong was not available to the husband to enable him to enter into a concubinage union when his original marriage was a monogamous one.  His lordship then referred to Wong Kam Ying v Man Chi Tai [1967] HKLR 201, where the court held that the husband’s union of concubinage in Hong Kong 1957 subsequent to the first marriage held at a Registrar’s Office in Hong Kong (which was monogamous) was bigamous and void under the Hong Kong law.

30. The decision of the court in Wong Kam Ying, in my view, should not be surprising.  That was a situation of a registered marriage and a subsequent concubinage both in Hong Kong, which did not seem to involve the issue of domicile of the parties at different relevant times, let alone change.  The scenario materially differed from that of Wong Wong and the present case.

31. In Wong Wong, Yam J cited Pegg (above) where the author contended that as Hong Kong provided in its laws for both monogamous and polygamous marriages to be celebrated in the territory prior to 7 October 1971, the marriage in the Mainland would be treated by the courts in Hong Kong as monogamous for all purposes and be incapable of being turned into a polygamous union by a change of domicile.  His lordship accepted that as a correct statement of the legal position.  Does that therefore provide the answer to the question in hands in the present case?

32. That brings us back to the more recent judgment of Bokhary PJ (as he then was)[11] and Lord Millett NPJ in Suen Toi Lee (above).  In that case, the husband married his wife in the Mainland in 1929.  Expert evidence was accepted during trial that as a result of the operation of the Civil Code in 1932, the originally potentially polygamous marriage became monogamous.  The husband purported to take 2 concubines in the Mainland in 1933 and 1945 respectively.  He came to Hong Kong with one of the purported concubines in 1952.  It was in such factual circumstances that his lordships had the following to say about the capacity of the parties to enter into such concubinage union.

33. After holding that the essential validity of the marriage depends on the capacity under the law of the parties’ pre-nuptial domicile (as mentioned above), Bokhary PJ continued (at §41) to hold that it is only if the parties had been domiciled in Hong Kong at the time when they sought to enter into unions of concubinage that Hong Kong law would have operated to give them capacity to do so under Chinese law and custom.  However, throughout the parties in that case were domiciled in the Mainland where concubinage had been abolished by the time when purported to enter into unions of concubinage.  So under their domiciliary law, none of them had capacity to enter into a union of concubinage.  In the eyes of Hong Kong law therefore neither became the husband’s concubines under Chinese law and custom.

34. Lord Millett NPJ (at §§98-99) stated the same principle that the essential validity of a marriage, which depends on the parties’ capacity to marry, is governed by the law of their pre-nuptial domicile.  His lordship continued (at §100) to hold that the character of a subsisting marriage may be altered in two ways: by a change in the law of the country where the marriage was celebrated or by a subsequent change in the husband’s domicile.  His lordship specifically referred to AG of Ceylon v Reid [1965] AC 720 where Lord Upjoin noted with interest the obiter of Sir Jocelyn Simon P in Cheni mentioned above.  His lordship continued (at §§101-102) to say[12] that mere change of residence is insufficient; and therefore even if the husband had purported to enter into a fresh union of concubinage in Hong Kong prior to 1971, the law of Hong Kong would have referred the validity of that union to the law of his domicile.

35. In Suen Toi Lee, the fact was that the concubinage union took place well before the husband came to acquire domicile in Hong Kong.  There was therefore no factual issue of change of capacity to take concubine as a result of change of domicile to Hong Kong.  Nevertheless, that did not prevent the members of the Court of Final Appeal from stating the legal position as they did.  They were also aware of a subsisting monogamous marriage in the Mainland at the time of the concubinage unions, when they nevertheless considered that had the husband and concubines been domiciled in Hong Kong when they entered into their unions, the law here would have operated to give them capacity to do so according to Chinese law and custom.  In the premises, whether this is the correct legal position as opposed to that expressed in Wong Wong is clearly arguable.

36. It should be noted that neither expert engaged by the parties respectively has expressed any views on this, presumably because they are supposed to give evidence on the Mainland law, and hence how the Mainland court views such a matter concerning its subjects within its territorial jurisdiction.  This however does not answer the question which concerns the Father and Madam Kan, both domiciled in Hong Kong at the time of the concubinage union, and which is very much a question for the court here according to the law of their domicile.

37. As mentioned, the above is merely an expedited analysis of a major argument on the basis of the assumed facts advocated by Kam.  The other arguments advanced on behalf of Ye[13] and their being interwoven with the facts, which are in serious dispute, constitute additional dimensions to the consideration; and cause me to conclude that the present case is inappropriate for summary disposal under O.14A.

YE’S SUMMONS

38. As mentioned, the ground for striking out Kam’s defence and counterclaim is a sham and that it causes embarrassment to the fair trial of the action and/or is an abuse of process of the court.  For the same reason, Kam has no locus standi and interest in the estate of Kan.

39. It is trite that striking out will be ordered only in a clear and obvious case.  For all the grounds under O.18, r.19 of the RHC relied on, Ye essentially has one contention, namely, Kam is an impersonator as the brother of Madam Kan.  Indeed by way of affidavit, Ye set out various features of the evidence adduced by Kam that are said to be incredible and incoherent.

40. Highlighting the factual dispute and incredibility of Kam’s evidence do not suffice, as this is not supposed to be a trial of the factual dispute on affidavits.  The striking out application, particularly in view of the serious nature of Ye’s contention against Kam, is inappropriate.  Accordingly the summons must be dismissed.

ORDER

41. Both summonses are dismissed.

42. Ye should have his costs of and occasioned by Kam’s summons; while Kam should have his costs of and occasioned by Ye’s summons (which does not include costs of the hearing[14]).  All costs shall be taxed, if not agreed, with certificate for counsel.  Kam’s own costs shall be taxed in accordance with legal aid regulations.  The costs order is nisi; and shall become absolute in the absence of application in 14 days for variation.

[1] Who then was in his early teen age.

[2] §§8-11 of the amended statement of claim.

[3] §2 of Schedule 1 of the IEO provides that (i) a child of a union of concubinage shall be regard for the purposes of the Ordinance as the child of a valid marriage; and (ii) “husband” shall be construed as including a reference to the male partner of a union of concubinage.  Section 13 defines a union of concubinage as one entered by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally.

[4] §§9-12 of the amended defence and counterclaim.

[5] §5(2) of the amended dfence and counterclaim.

[6] Though in reality, concubinage continued to exist; and, Ye argues, marriage continued to be potentially polygamous.

[7] Though the ceremony was said to follow potentially polygamous customary rites.  It should be noted that contrary to Kam’s suggestion, what Ye stated in his further and better particulars of paragraph 3 of the amended statement of claim (13 March 2013) is arguably not an unequivocal, if at all, admission that the 1932 marriage was a registered marriage under the Civil Code.

[8] Though the law did not penalize concubinage.  Again what Ye stated in his further and better particulars of paragraph 3 of the amended statement of claim (13 March 2013)  is arguably a mere contention that the requirements of a valid marriage were complied with in 1932, which was duly recorded and recognized under the marriage law of the People’s Republic of China since 1953.

[9] (1968) P 564, where it was held that a change of domicile by the husband in India to England resulted in him losing his capacity to contract further marriages during the subsistence of the first one.

[10] (1951) P 124.

[11] With whom Li CJ (as he then was), Chan PJ (as he then was) and Litton NPJ agreed.

[12] In rejecting the approach taken by Rogers JA (as then was) in the Court of Appeal decision of that case, namely, in deciding the parties’ capacity by reference to the law of their place of residence (instead of domicile).

[13] As set out in counsel’s skeleton argument.

[14] Notwithstanding the substantial written submissions, no time was actually spent during the hearing on arguing Ye’s summons.