CACV 91/2014
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 91 OF 2014
(ON APPEAL FROM HCMP NO. 3477 OF 2013)
_______________________
| BETWEEN | | |
| LAW WAI HAY | Plaintiff |
| AND | |
| LAW PO CHONG PRISCILLA,
the administrator of the estate of
CHEUNG WAI FUN | Defendant |
_______________________
| Before: Hon Lam VP, Yuen and Chu JJA in Court |
| Date of Hearing: 16 October 2015 |
| Date of Judgment: 16 October 2015 |
| Date of Reasons for Judgment: 29 October 2015 |
__________________________
REASONS FOR JUDGMENT
__________________________
Hon Lam VP:
1. I agree with Yuen JA’s reasons for judgment.
Hon Yuen JA:
2.1. This is the appeal of the defendant (the administratrix of the estate of Madam Cheung Wai Fun, deceased) against an Order made by Deputy High Court Judge B. Chu (now B. Chu, J) on 11 April 2014 that the defendant render accounts within 28 days and complete the administration of the estate within 42 days of the Order.
2.2. There was also a summons issued by the defendant for leave to adduce fresh evidence on appeal which we considered de bene esse.
2.3. At the conclusion of the hearing, we dismissed the appeal and the summons. After hearing both counsel, we summarily assessed the costs of the appeal at $80,000 and ordered that the defendant pay those costs personally (not out of the estate) to the plaintiff. My reasons appear below.
Background
3.1. Madam Cheung (“the Deceased”) died at home sometime between 31 October and 1 November 2011 aged 81 years, intestate.
3.2. It is common ground that the Deceased was pre-deceased by her husband Lo (or Law) Sheung Kim (“Mr Lo”).
3.3. On 5 September 2012, the defendant made an affirmation in support of her application to be administratrix of the Deceased’s estate in which she stated the following:
“2. The following persons are the only persons entitled to share in his/her estate:
| Name in English | Name in Chinese | Relation | Age |
Law Po Chong Priscilla
[“the defendant”] | 羅寳莊 | her lawful and natural daughter | 50 years |
Law Wai Hay
[“the plaintiff”] | 羅偉熹 | her lawful and natural son | 57 years |
3(a). The Deceased had the following issue now surviving:
| Name in English | Name in Chinese | Relation | Age |
| Law Po Chong Priscilla | 羅寳莊 | her lawful and natural daughter | 50 years |
| Law Wai Hay | 羅偉熹 | her lawful and natural son | 57 years” |
4.1. On 18 September 2012, Letters of Administration were granted to the defendant.
4.2. The estate included credit balances in bank accounts, a securities account and a flat which the defendant sold in 2013.
5. On 16 October 2013, the plaintiff through his solicitors wrote to the defendant demanding an account and payment of certain sums. The defendant did not reply.
6.1. On 31 December 2013, the plaintiff issued an originating summons (“the OS”) for:
(1) the rendering of accounts within 14 days;
(2) payment of debts said to be owed by the defendant personally to the estate; and
(3) completion of the administration within 28 days.
6.2. An affirmation in support of the OS was filed by the plaintiff on the same day. One of the documentary exhibits was a notarial certificate issued by the Guangzhou Notary Public Office (“GZ NPO”) dated 28 September 2012 (“the GZ notarial certificate”) which certified that the plaintiff was born in Guangzhou City, Guangdong Province on 23 September 1954, that his father is Mr Lo and that his mother is the Deceased. It is common ground that the plaintiff does not have a birth certificate.
6.3. On 12 February 2014, the defendant filed an affirmation containing, among other matters, a query whether the plaintiff was the Deceased’s son (although there was no direct assertion that he was not).
6.4. This was followed by an affirmation from the plaintiff in reply exhibiting, among other things, a statutory declaration made by the Deceased herself on 6 May 1960 (“the SD”) stating:
“ ... my son LO Wai Hay (羅偉熹) was born on the 23rd day of September in 1954 in Canton, Kwangtung Province, China”.
Hearing
7. On 11 April 2014 the learned judge heard the OS and made the Order mentioned earlier in this Judgment.
8. On 12 May 2014 the judge handed down written reasons for her Order.
Notice of Appeal
9. On 25 April 2014 the defendant lodged a notice of appeal. The grounds may be summarized as follows:
(1) the judge should have given an adjournment to the defendant, who was then acting in person, for her to adduce evidence to challenge the GZ notarial certificate (grounds 1-3);
(2) the judge failed to consider “the suspicious circumstances” under which the GZ notarial certificate was obtained, including
(i) there was a “previous different version of notarial certificate (back in the 1990's)” which the plaintiff had failed to disclose;
(ii) the GZ notarial certificate did not disclose the source of information (ground 4);
(3) the judge failed to adequately consider the fact that the plaintiff had taken various documents, and “in the absence of such documents, it is impossible for the Defendant to comply with the Order, in particular the order to render an account of the Estate” (ground 6).
Application to adduce fresh evidence
10.1. On 25 September 2015, the defendant applied by summons to adduce fresh evidence, being her affirmation of the same date with various exhibits. The fresh evidence (which we considered de bene esse) may be summarized as follows.
A. In relation to the GZ notarial certificate:
(1) After the Order was made, the defendant found out from the GZ NPO that the GZ notarial certificate had been issued in reliance on another notarial certificate (“the SC notarial certificate”), dated 16 July 2012 and issued by the South China Notary Public Office (“the SCNPO”) which was in the same terms.
(2) The defendant then asked both NPOs to review the notarial certificates, providing them with various materials.
(3) In January 2015, the SC NPO notified the defendant that it has accepted her application for review. However on 31 March 2015, it informed her that the materials she provided did not prove that the plaintiff was not the son of Mr Lo and the Deceased.
(4) Despite the defendant’s complaints, neither NPO has responded to her any further.
(5) The defendant then sought legal advice from a PRC lawyer歐陽奕(Mr Auyeung Yick), whose opinion dated 23 September 2015 was exhibited. Essentially what Mr Auyeung did was to have gone to the SC and GZ Notary Public Offices to obtain promotional materials (宣傳資料) for notarization of birth, which materials stated that a birth certificate was required (in the case of the SC NPO, what was required was a “hospital birth certificate”). As the plaintiff does not have a birth certificate, Mr Auyeung’s opinion was as follows:
“… 監於該二公証處對辦理出生公証皆有明確的文件要求，如該二公証處未按其自設要求的文件清單搜集齊備相應文件，則該二公証處不應受理有關公証申請人的辦理申請，不應辦理相關証明”
[“... as the two Notary Public Offices have specific documentary requirements for processing notarization of birth, if the two Notary Public Offices had not collected the complete corresponding documents in accordance with their self-imposed requirements, then the two Notary Public Offices should not have accepted the relevant notarization applicant’s application for processing, and should not have processed the related proof]”.
B. Madam Mok’s affirmation
There was also exhibited to the defendant’s affirmation an affirmation of 莫艳荷(Madam Mok Yim Ho) dated 3 August 2015 which said the following:
- she (Madam Mok) was born in 1926;
- in her youth she married 羅湘德 (Mr Lo Sheung Tak), an elder brother of Mr Lo, and she has been living in Guangzhou ever since;
- her husband and Mr Lo were on good terms;
- Mr Lo and the Deceased were married in December 1953, and she attended the wedding;
- a few months afterwards, around early 1954, Mr Lo and the Deceased moved to Hong Kong;
- she and all members of the clan did not witness (見證) the plaintiff’s birth in September 1954 in Guangzhou, nor had any members seen him as a child;
- the first time she met the plaintiff was in the mid-1970’s, when Mr Lo and the Deceased took the plaintiff and the defendant to visit. At that time the plaintiff was close to 20 years of age, and thereafter she had not seen him again in Guangzhou.
10.2. The plaintiff objected to the application to adduce fresh evidence on the ground that the three conditions of Ladd v Marshall [1954] 1 WLR 1489 had not been satisfied, ie (1) such evidence could not have been obtained at the hearing below with reasonable diligence; (2) it would, or might, if believed, have a very important effect on the mind of the judge; and (3) it is of a sort which inherently is not improbable.
10.3. The plaintiff himself also filed fresh evidence in the form of a notarial certificate (“the GD Province notarial certificate”) issued on 31 March 1992 by the Guangdong Province Notary Public Office (“GDP NPO”), which certified, after conducting inquiries with 羅湘泉 (Mr Lo Sheung Chuen) a brother of Mr Lo and his wife, that the plaintiff was the son of Mr Lo and the Deceased. Presumably this was the “previous different version of notarial certificate (back in the 1990’s)” referred to in ground 4 of the defendant’s notice of appeal.
10.4. As mentioned earlier, we considered all the fresh evidence de bene esse.
Discussion
11.1. In relation to grounds 1-3 of the notice of appeal as summarized above, Mr Desmond Leung, the defendant’s counsel, accepted that the defendant had not asked the judge for an adjournment in order that she could adduce evidence to challenge the GZ notarial certificate. This is confirmed by the Transcript. Mr Leung referred the court to Chan Chiu Yin v Chan Ki Kau CACV468/2001, unrep. 28 May 2003 but the factual circumstances of that case were entirely different. First, that appeal was concerned with proceedings in the Lands Tribunal, which governing statute contains a requirement that proceedings be conducted informally. More importantly, in that case one of the parties had at an earlier hearing raised a specific point, which apparently the presiding officer had forgotten by the time of the subsequent hearing. The court of appeal held that the presiding officer’s failure to deal with that point was an irregularity rendering the proceedings amenable to appeal. Mr Leung was unable to formulate any irregularity in the present case. That is the end of the matter as far as grounds 1-3 are concerned.
11.2. However, even if something said by the defendant during her oral submissions could somehow be regarded as an application to the judge for an adjournment, it would have been within the judge’s case management powers to refuse the application. The GZ notarial certificate had been exhibited to the plaintiff’s affirmation filed on 31 December 2013. The hearing before the judge was held on 11 April 2014. The defendant had more than three months to challenge the notarial certificate, but failed to take any steps to do so.
11.3. Moreover, it is not an excuse for the defendant to say that she was not legally represented and that she thought the hearing on 11 April 2014 was only a call-over. The Rules of the High Court are available for all to read. Order 28 rule 4(1) RHC states that if the liability of the defendant to the plaintiff is established, an order may be made at the hearing of the OS.
12.1. In any event, having considered the fresh evidence de bene esse, it is clear that the fresh evidence that the defendant sought to adduce would not have assisted her case. First, the defendant’s attempts to review the notarial certificates were unsuccessful. After considering the defendant’s materials on review, the SC NPO has concluded that there are no grounds to set aside its notarial certificate. As (on the defendant’s case) the GZ NPO issued its notarial certificate in reliance on the SC notarial certificate, it is reasonable to assume that the same applies to the GZ notarial certificate.
12.2. Second, Mr Auyeung’s opinion would not have assisted the defendant either (even assuming that directions had been sought and given under Order 38 rule 36 RHC for adducing this opinion as expert evidence on PRC law).
- First, Mr Auyeung says that under PRC law, there are no substantive regulations on notarization of birth.
- The only material Mr Auyeung could refer to was the “promotional materials” (宣傳資料) of the NPOs and he referred to the documents listed as “self-imposed” requirements (自設要求). However his opinion was completely lacking in information or legal analysis as to (a) when those requirements came into effect, (b) whether any of those “self-imposed” requirements (eg production of a birth certificate) could be waived or varied by the Offices that imposed them, (c) whether notarial certificates so issued were void or voidable, or (d) the effect of the review and the SC NPO’s conclusion on review.
Consequently, Mr Auyeung’s opinion would not have assisted the defendant in her effort to show that the notarial certificates were somehow invalid.
13. Coming then to ground 4, this referred to “suspicious circumstances” under which the GZ notarial certificate was obtained. The only substantive ground put forward by the defendant was that there was a “previous different version of notarial certificate (back in the 1990's)” which the plaintiff had not produced (which has now been produced).
14.1. In any event and most importantly, the notarial certificates were really in the nature of “red herrings”. The true issue was whether the defendant could show, as a defence to the OS, that the plaintiff lacked status because he is not the Deceased’s son. In this regard, it is abundantly clear that the judge took into account - not only the GZ notarial certificate - but also the following documentary evidence:
- the defendant’s own affirmation stating that the plaintiff is the lawful and natural son of the Deceased (para. 6 of the Reasons for Decision);
- Mr Lo’s death certificate (para. 8);
- Mr Lo’s record of landing (para. 9); and
- the Deceased’s SD (para. 10).
14.2. Of the documentary evidence listed above, the last two are crucial because they emanated – long before these proceedings commenced -- from the people who knew best whether the plaintiff is the Deceased’s son (viz Mr Lo and the Deceased), and of those two documents, the Deceased’s own SD is the best and strongest evidence on the issue.
14.3. In the SD the Deceased refers to the plaintiff as her son. On a natural and ordinary reading of the words, it is clear and unequivocal. More importantly, irrespective of whether the SD was made for the purpose of proving the plaintiff’s age to enter school, it was a statement made underoath. As such, it would require very strong evidence for doubt to be thrown on its veracity. As the defendant’s own counsel accepts, there is not a shred of evidence that the plaintiff had been adopted. So when the Deceased herself had said – on oath – that the plaintiff is her son, a matter on which she had personal, first-hand knowledge, the defendant would have to produce strong evidence to refute it. Speculation and peripheral evidence would not suffice.
14.4. As noted earlier, the defendant’s own affirmation does not contain a direct assertion that the Deceased had told her that the plaintiff is not her son. Her affirmation has only sought to put a suspicious slant on statements or events which are otherwise innocuous. The affirmation did nothing to discredit the Deceased’s clear and unequivocal sworn statement.
15. As for ground 6, the defendant’s affirmation before the judge never indicated that she needed any financial documents from the plaintiff before she could render an account or complete the administration. It is clear from the Transcript that at no stage during the hearing before the judge did the defendant claim that it would be “impossible” to comply with the Order. On the contrary, the defendant indicated that she wished to have 28 days (instead of 14) to render accounts, and to have 42 days (instead of 28) to complete the administration. Ground 6 is clearly an after-thought, or a delaying tactic, neither of which this court should entertain.
16.1. Finally there is Madam Mok’s affirmation. First, it is not clear to which ground of appeal this is directed. Ground 5 of the Notice of Appeal only gives notice that the defendant may apply to adduce fresh evidence. It is not a substantive ground of appeal.
16.2. Be that as it may, having considered the evidence de bene esse, Madam Mok’s affirmation would not have been of assistance to the defendant either. The following gaps in the affirmation are notable:
- Madam Mok did not say that in the months after the wedding, she had seen the Deceased, and if so, when;
- she did not identify who were the “members of the clan” referred to, nor how she purports to know that they did not “witness” the plaintiff’s birth;
- she did not say when Mr Lo and the Deceased moved to Hong Kong from Guangzhou;
- she did not explain why she would have expected to “witness” (見證) the birth of a child of her husband’s brother’s wife.
16.3. Therefore, even if one ignores the failure to satisfy even the very first condition of Ladd v Marshall, Madam Mok’s affirmation would not have swung the case in the defendant’s favour when placed against the Deceased’s own sworn statement that the plaintiff is her son.
Order
17. For the reasons set out above, the summons for leave to adduce fresh evidence and the appeal were dismissed. At the conclusion of the hearing, we considered the plaintiff’s written statement of costs and the comments thereon from the defendant’s counsel. On a summary assessment, we ordered the defendant to pay personally (not out of the estate) the plaintiff’s costs of $80,000.
Hon Chu JA:
18. I agree with Yuen JA’s reasons for judgment.
| (M H Lam) | (Maria Yuen) | (Carlye Chu) |
| Vice President | Justice of Appeal | Justice of Appeal |
Mr Desmond Leung, instructed by Deacons, for the defendant
Ms Rachael Siu, instructed by Lim & Lok, for the plaintiff