HCMP 1924/2020
[2024] HKCFI 2689
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 1924 OF 2020
________________________
| | IN THE MATTER of the estate of LAM TIM STAN (林添) also known as LAM TIM (林添) alias STAN LAM TIM (林士丹) late of No. 6 Sharp Street East, Ground Floor, Hong Kong, deceased (“the Deceased”) |
| | and |
| | IN THE MATTER of Order 85 Rule 2 and Order 62 Rule 6 of the Rules of the High Court (Cap 4A) |
________________________
| BETWEEN | | |
| | NG KIN YUEN (吳健源),
ADMINISTRATOR OF THE
ESTATE OF LAM TIM STAN (林添)
ALSO KNOWN AS LAM TIM (林添)
ALIAS STAN LAM TIM (林士丹), DECEASED | Plaintiff |
| | and
| |
| | LAM SIK YING VICTOR (林昔應) | 1st Defendant |
| | TANG LAM MO CHING MARY (鄧林慕貞)
| 2nd Defendant
|
| | LAM MO LIN (林慕蓮) | 3rd Defendant |
| | SHUM CHI WANG (岑子弘), the
lawful attorney of SHUM WAI KUEN SANDA (岑偉權), the Administrator of the estate of LAM MO CHUN (林慕珍), deceased | 4th Defendant |
| | LAM MO CHU SUSIE (林慕珠) | 5th Defendant |
| | LAM SIK SHI (林昔時) | 6th Defendant |
________________________
| Before: | Hon Winnie Tsui J in Chambers (Open to the Public) |
| Dates of Hearing: | 30 and 31 August 2023 |
| Date of Decision: | 30 September 2024 |
________________________
D E C I S I O N
________________________
INTRODUCTION
1. These are Order 85 proceedings brought by Mr Ng Kin Yuen, the administrator of the estate of the late Mr Lam Tim Stan, to seek directions from the court on a number of issues.
2. The originating summons was issued on 30 October 2020. It was amended on 6 December 2021. Evidence was filed in 2020 and 2021. By consent of the parties, it was ordered on 10 March 2022 that the amended originating summons be adjourned for substantive argument and that no further affirmation should be received in evidence without leave of the court.
3. The substantive hearing took place before me on 30 March 2023. I made a number of directions at the hearing, which were recorded in the decision at [2023] HKCFI 1575. The hearing was adjourned part-heard to 30 August 2023, with 31 August also reserved. I heard arguments on the remaining issues and reserved my decision on two of them. They have been referred to as “the D2 status issue” and “the Madam Wong status issue”. They correspond to paras 5(1) and 5(1A) respectively of the amended originating summons.
4. The question under the D2 status issue is whether the 2nd defendant was and is the lawful daughter of the deceased and is thus entitled to share in the estate.
5. The question under the Madam Wong status issue is whether the late Madam Wong Kwan Ying was the concubine or the lawful widow and relict of the deceased at the time of the latter’s death, and what her or her estate’s entitlement under the estate is, if any.
6. This is my decision on the two issues.
7. I also need to deal with the summons taken out by the 1st defendant on 29 March 2023, just one day before the first hearing, to adduce further evidence. I will take into account the new evidence on a de bene esse basis below.
8. The deceased passed away intestate in 1983. All the defendants except the 2nd defendant were his natural children. The 2nd defendant’s status is to be determined under the D2 status issue. I shall refer to the defendants by their first names, namely Victor, Mary, Mo Lin, Mo Chun, Susie and Tony. (Mo Chun passed away in 2003. Her estate is the 4th defendant. Depending on the context, the references to “Mo Chun” in this decision are either to her personally or to her estate as a defendant.)
9. Mo Chun, Susie and Tony were born to the deceased and his wife, Madam Chan Yuk Mui. Madam Chan passed away in 1970. Victor and Mo Lin were born to the deceased and Madam Wong. Madam Wong passed away in 1999. Mary contends that she was lawfully adopted by the deceased and Madam Chan in 1939.
10. Since the passing of the deceased, the children have been embroiled in protracted and hostile litigation over the estate for the past few decades. A number of judgments have been handed down. For the family background, see paras 16 to 23 of the judgment of Chow J in HCA 1605/2004 and HCA 894/2011 dated 3 October 2016 (“Chow J’s judgment of 2016”). However, I should point out at the outset that the facts stated in paras 16(2) and 17(1) are subject to dispute.
11. To complete this brief introduction, letters of administration was granted to Victor and Madam Wong in March 1999. The latter passed away in June of that year. Victor therefore became the sole administrator. In September 2017, he was removed as administrator by the court in the action in HCA 1974/2015. Mr Ng, an independent solicitor, was appointed in his place.
12. In the present proceedings, Mo Lin has not made an appearance at all despite being served and notified of the hearing dates. All other parties are legally represented.
PREVIOUS LITIGATION
13. The evidence adduced by the parties comprise documents made or filed in previous litigation. For that reason, it would be helpful to identify at the outset these proceedings chronologically and, to the extent possible, briefly outline what they were about. For some of these proceedings, I do not have a full picture of what they were about as only limited information can be gleaned from the evidence before me.
HCA 1885/1987 (“the 1987 action”)
14. In 1987, Madam Wong commenced the action in HCA 1885/1987 against Tony. She contended that she was the lawful concubine of the deceased and sought a declaration that she was entitled to a grant of letters of administration to the estate on that basis. She also claimed that Tony had intermeddled with the estate.
15. The 1987 action was settled in 1992 by way of a Tomlin order.
Declaration made by Madam Wong dated 28 April 1992
16. Madam Wong made a declaration on 28 April 1992 before a solicitor. The document was six pages long. It has not been made clear to me the background leading to the making of this declaration or to which litigation it related. Upon reviewing its contents, it would appear that the purpose of the document was to give an account of how Madam Wong came to be a concubine of the deceased. It comprised an introduction of her personal background, how she and the deceased first met, how she was accepted as his concubine and how eventually she, the deceased, Madam Chan, and the children lived together as one family.
17. I identify this document in this section simply because this would place it in a proper chronological context. I shall refer to it as “Madam Wong’s declaration of 1992” below.
HCAG 2260/1998 (“the 1998 HCAG proceedings”)
18. In HCAG 2260/1998, Madam Wong applied for letters of administration to the estate. It would appear that the application was not granted.
HCAG 498/1999 (“the 1999 HCAG proceedings”)
19. In HCAG 498/1999, Madam Wong and Victor applied for letters of administration to the estate. That was granted on 24 March 1999.
HCA 4713/2001 (“the 2001 action”)
20. In 2001, Victor acting as the administrator commenced the action in HCA 4713/2001 claiming against Tony and his (then) wife for intermeddling with the estate and committing acts causing loss and damage to the estate.
21. In 2013, Victor’s claim against Tony’s wife was struck out for want of prosecution. In 2017, Victor’s claim against Tony was also struck out on the ground of abuse of process. Victor lodged an appeal against the latter decision. The Court of Appeal dismissed his appeal.
Statutory declaration made by Mo Lin dated 21 May 2004
22. Mo Lin made a statutory declaration on 21 May 2004 before a solicitor. It was two pages long. Like Madam Wong’s declaration of 1992, it has not been made clear to me the background leading to the making of Mo Lin’s declaration or to which litigation it related. In gist, Mo Lin made two main assertions. First, after Madam Chan passed away, the deceased instructed the children to address Madam Wong as 二媽 (second mother), and Mo Lin believed that the deceased’s intention was to treat Madam Wong as his tin-fong wife. Second, when the deceased and Madam Wong emigrated to Canada in the early 1970s, Madam Wong was stated in the application documents as the wife of the deceased.
23. I shall refer to the document as “Mo Lin’s statutory declaration of 2004” below.
HCA 1605/2004 and HCA 894/2011
24. HCA 1605/2004 was commenced by Tony against Victor as administrator and a company owned by Mo Lin and her son, which I shall refer to as “APH”. HCA 894/2011 was commenced by Susie against the same parties. In these actions, Tony and Susie challenged the propriety of the sale of a property at Sharp Street East owned by the estate by Victor to APH.
25. The actions were tried together by Chow J in 2015 and 2016. Judgment was entered against APH in 2015 and against Victor in 2016. Victor was found to have acted in breach of his fiduciary duties in the sale and the sale was set aside. This judgment is what I have identified above as “Chow J’s judgment of 2016”.
THE D2 STATUS ISSUE
26. The administrator seeks a determination on whether Mary was and is the lawfully adopted daughter of the deceased for the purpose of the Intestates’ Estates Ordinance, Cap 73.
27. Section 2(2) of the Ordinance provides:
“For the purposes of this Ordinance, a person adopted under –
(a) an adoption order made under the Adoption Ordinance (Cap. 290);
(b) an adoption to which section 17 of that Ordinance applies; or
(c) an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973,
shall be treated … as the child of the adopter, and not as the child of any other person, and all relationships to the adopted person shall be deduced accordingly.”
28. Mary says that she was adopted in 1939 in Hong Kong in accordance with Chinese law and custom. She relies on section 2(2)(c) of the Ordinance to say that she was and is the lawful daughter of the deceased. This issue therefore has a direct impact on whether she is a beneficiary of the estate or not.
29. The evidence before me shows that all along the family has been treating Mary as a daughter. What needs to be resolved now is (1) the actual circumstances in which she was adopted, and (2) whether those circumstances amounted to proper adoption under Qing law.
30. The administrator takes a neutral stance on this issue. Mo Chun is also neutral. Susie and Tony support Mary’s case. Victor’s position is that the court cannot make the determination now and should direct the administrator to obtain further expert evidence on Qing law.
Mary’s case
31. Mary says that she was adopted by the deceased and Madam Chan when she was a newborn infant. Her natural mother met Madam Chan in a delivery room in Wanchai in around 1939. Her natural mother said she already had two children and could not afford to raise a third child, ie Mary. At that time, the deceased and Madam Chan were married but did not have their own child yet. The deceased and Madam Chan agreed to adopt Mary. They took her back to their home and informed their family members accordingly. They gave Mary the surname of the deceased.
32. Mary only learnt of the fact that she was an adopted daughter just before Madam Chan passed away in 1970.
33. On these facts, Mary has produced two legal opinions on Qing law. According to the opinions, Mary was lawfully adopted by the deceased under Qing law.
34. These two opinions are:
(1) the opinion of Professor 李啟成 (“Prof Li”) of Law School of Peking University dated 14 July 2020; and
(2) the opinion of 林辰彥 (“Mr Lin”), a lawyer practising in Taiwan, dated 25 August 2020.
35. Prof Li set out a number of grounds in support of his conclusion. He approached the matter from the angle of both Qing law and Qing custom. I reproduce the material parts of his reasoning below.
36. On Qing law:
“符合《大清律例》關於收養之規定。 … 《大清律例》跟養女直接有關的法條只有這一款，即“其收養三歲以下遺棄之小兒，仍依律即從其姓。” (《大清律例》，78.03) 小兒當然包括女孩兒。 … 其理由 … ：如果3歲以下的小孩不允許別人收養，勢必“性命將絕”；允許這種收養，可以增進社會道德、宏揚社會公益。根據本案案情， … 如果林女士不為其養父母所收養，即便有可能不是“性命將絕”，但亦境遇堪憂。此種收養行為有利於增進社會公益無疑，需要鼓勵。林女士養母在獲得其生母同意後，將其抱回家並“知會家中各大小”，當時也無其他家庭成員的成對意見，則可視為所有家庭成員都認可了該收養事實。更重要的是，林女士到養父母裡後，即從養父姓，完全符合《大清律例》“依律即從其姓”這個認定收養是否合法的實質要件。”
37. On Qing custom:
“符合清代中國的風俗習慣。 ... 在清代關於收養的法律中，對異姓養子的限制較嚴，故有“異姓亂宗”之禁止性規定，實踐中也執行得比較嚴格。但異姓養女不存在“亂宗”之顧慮，只要不存在買賣兒童從中獲利的行為，官府一般不會主動介入干預禁止。 … 清代收養，有祭祀、承家、養老、恤孤等多重目的，收養女兒，重在養老和恤孤。本案林女士于1939年被收養之際，其生母為上海人，生父是裁縫，經濟境況一般，無力撫養作為家中初生的第三個小孩林女士，故找到其養母請求收養，完全沒有買賣兒童從中牟利的意圖和行為。此時，林女士的養父母雖結婚多年，但膝下無子，之所以同意收養林女士，肯定是出於養老和恤孤雙重目的。林女士被領養後，一直被視為養父母的親生女兒。1970年林女士已31歲，養母才在離世前告訴她是領養的。據此可確知，當初的收養行為已達到養老和恤孤之目的。故從清代以來之風俗習慣的角度來看，收養關係已完全確立。”
38. In his opinion, Mr Lin quoted Qing law 78.03 and opined:
“則見當時收養子女自由為之。”
39. He referred to Qing law 78.04 (which was quoted by Prof Li as 78.03 in the above extract) and said:
“易言之，大清律例承認自幼收養子女之制度。”
40. He concluded as follows:
“考諸前抽揭說明，林女士既為自幼扶養之養子女，且未有符合大清例律禁止收養之情事，是故，林女士對於收養家庭仍有繼承權利，受分給財產之保障。”
Other evidence and matters in support of lawful adoption
41. There is before the court other documentary evidence which is said to be in support of the contention that Mary was lawfully adopted by the deceased. I make a list of the material documents in order of time.
42. First, Mr Acorn Lau, counsel for Mary, places heavy reliance on her marriage certificate. It recorded that Mary was married on 12 November 1961. The certificate was signed by the deceased as witness. Under the box “Father’s name and surname”, the deceased’s name was entered. Mr Lau says that the certificate is a critical uncontroverted document which puts to bed the issue of lawful adoption. This is an objective piece of evidence which, he submits, shows that the deceased recognised and embraced Mary as his lawfully adopted daughter.
43. Second, in the 1987 action, Madam Wong filed a statement of claim dated 1 April 1987. There she made a list of the deceased’s surviving next-of-kins. She included Mary in the list and described her as “his adopted daughter”.
44. Third, almost 11 years later, Madam Wong made a similar assertion in writing. In the 1998 HCAG proceedings, she made an “Affirmation by Administratrix” dated 13 March 1998. When listing out the surviving next-of-kins, she similarly included Mary and described her as “his lawful and adopted daughter”.
45. Fourth, not only did Madam Wong so describe Mary, Victor also said the same thing. In the 2001 action, Victor, in his capacity as the administrator, made a supplemental witness statement dated 25 October 2016. He described Mary as an adopted daughter. He wrote:
“My late father has 2 sons, 3 daughters and an adopted daughter, Tang Lam Mo Ching, Mary.”
46. Fifth, in Chow J’s judgment of 2016, in the section entitled “Basic Facts”, he introduced Mary as “adopted daughter of the Deceased”: see para 17(1).
47. In addition, Mr Kerby Lau, counsel for the administrator, refers me to case authorities in which the issue of adoption under Chinese law and custom arose and findings or remarks were made by the court. See:
(1) In Liu Ying Lan v Liu Tung Yiu [2003] 3 HKLRD 249 at para 51, the Court of Appeal recited the first instance judge’s statement that under Chinese customary law, there is no restriction on age or marital status of the potential adoptee and a married adult may be adopted posthumously or otherwise.
(2) In Wong Kwong Yiu v Mok Hing Chung[2019] HKCA 452 at para 52(3), the Court of Appeal recited the first instance judge’s finding that there are no requirements for formalities for adoption set out in Qing law.
(3) In the same case, as recorded in para 52(2), the judge found that a femme sole could have an i-tze, male or female, by informal or quasi-adoption.
48. These findings or statements would seem to support a number of aspects of Mary’s case, namely as female, she could be lawfully adopted, and with no special formality.
Evidence and matters potentially against lawful adoption
49. On the other hand, Victor points to other documents which, Mr Keith Cheung, his counsel, says are countervailing evidence against Mary’s case. He has not however adduced any expert evidence on Qing law.
50. First, Mr Cheung relies on the following paragraph in Madam Wong’s declaration of 1992:
“In August 1945, [Madam Chan] who is Lam’s first wife suddenly arrived in Hong Kong from China. She was residing there avoiding the war. There she had adopted a girl called Mo Ching [ie Mary]. This was not the daughter of either Lam or Chan. At first sight, Chan introduced herself as Mrs Lam and asked me what I had to do with Lam. I did not answer her and took Mo Lin away from the premises.”
51. Based on this account, Mr Cheung submits that contrary to Mary’s case, she was adopted in the mainland but not in Hong Kong, and she was adopted by Madam Chan alone without the involvement of the deceased. Furthermore, if Mary was born in 1939, as she now alleges, she must have been six years old when she arrived in Hong Kong in 1945. That means that she was adopted above the age of three, which is the age limit identified by the experts under Qing law.
52. Second, Mr Cheung refers to a handwritten note signed by Mo Lin and dated 2 August 2007 (“Mo Lin’s note of 2007”). In the note, she described a conversation which she had with the deceased in August 1982. On that occasion, the deceased handed over a written note to her which set out the names and details of family members. Mo Lin noted that Mary’s name was omitted. To that, the deceased’s reply was:
“父親親口訴說大家姐 (林慕貞) 是從小領養回家，所以沒有出生証明文件，而將來大家姐 (林慕貞) 亦不能承受他的產業。”
53. Mr Cheung’s point here is that Mo Lin’s note and the deceased’s note were not brought to the attention of Mary’s experts. He says that these documents should be looked at by Qing law experts to determine their impact on Mary’s status.
54. In addition to the above factual evidence, Mr Cheung also discusses the case authorities cited by the administrator and refers me to additional authorities in which Chinese customary law on adoption was discussed and decided. He points to some statements in them which, on their face, are not readily reconcilable to those in the administrator’s authorities. They are:
(1) On whether a female can be adopted, it was stated in Lily Cheung v Cheung Wai Kwok HCAP 3/2008, 3 June 2015 at para 54 that “[u]ndisputedly there was no such thing as adoption of a daughter, let alone by a woman, under the Qing Code”.
(2) On whether any formality is required for adoption, it was stated in Official Administrator v Luk Hoi Tong Co Ltd HCA 1348/2000 and HCAP 4/2000, 16 September 2005 at para 42 that “[t]he experts are in agreement that there is no fixed formality requirement for a customary adoption. But what is required is some kind of ceremony, comprising essentially ancestral worship”.
55. Lastly, on authorities, Mr Cheung submits that the statement in Liu Ying Lan that there is no restriction on the age of the potential adoptee seems to contradict the opinions of Prof Li and Mr Lin, which made a reference to the age limit of three.
56. Mr Cheung then submits that statements of customary law in case authorities are not binding legal precedents. This is because findings of customary law are akin to findings of foreign law, which is an issue of fact that must be proved by evidence: Wong Kwong Yiu at para 53. While a court can inform itself from sources such as textbooks and treatises, the long-accepted approach is for the court to take evidence on customary laws: Re Tse Lai Chiu (1969) HKLR 159 at 194.
57. Furthermore, Mr Cheung emphasises two general propositions which apply to Order 85 proceedings. First, the court is essentially engaged solely in determining what ought to be done in the best interests of the estate and not in determining the rights of adversarial parties. Second, when seeking directions from the court, the administrator should put the court into possession of full and proper information: Marley v Mutual Security Merchant Bank and Trust Co Ltd [1991] 3 All ER 198 at 201d-j.
58. Bearing in mind the above general propositions and in light of the different accounts given by Mary and Madam Wong of the circumstances of the adoption and the apparently inconsistent findings or statements in case authorities on the requirements of adoption under Qing law, Victor contends that the court is not in a position at this stage to determine Mary’s status. Applying Wong Kwong Yiu and Tse Lai Chiu, he proposes that the court should direct the administrator to obtain further expert evidence on Qing law on the following matters:
(1) on the basis of Mary’s factual case, whether the opinions of Prof Li and Mr Lin are correct;
(2) on the basis of Madam Wong’s account, whether there was a lawful adoption; and
(3) in any event, whether the contents of Mo Lin’s note of 2007 and the deceased’s note would disentitle Mary from sharing in the estate under Qing law.
59. Upon receiving such evidence, the administrator may then form his own view and seek further directions from the court on the issue where appropriate.
Discussion
60. Mary accepts that she bears the burden to prove, on a balance of probabilities, her status as an adopted daughter of the deceased under Qing law.
61. She gives a factual narrative of the circumstances in which she was received into the family as a daughter by the deceased and Madam Chan. The narrative is straightforward, inherently plausible and credible.
62. In Madam Wong’s declaration of 1992, she said that in August 1945, she was told by Madam Chan that Mary was adopted in the mainland. Mr Cheung submits that Mary might have been adopted when she was older than three years old.
63. I have reservation in giving weight to the account given by Madam Wong. As remarked earlier, the purpose of her declaration appeared to be in the main to account for how she became the concubine of the deceased. Against that context, when and where Mary was adopted was just a minor and unimportant detail. Furthermore, the declaration was made more than 40 years after the alleged conversation. There is clearly doubt in my mind whether Madam Wong could have or indeed had a clear and accurate memory of what was said in the alleged conversation. For these reasons, I do not find it safe to place much weight on Madam Wong’s account.
64. As for Mo Lin’s note of 2007 which was accompanied by the deceased’s note, I am similarly unable to give much weight to it for two reasons. First, Victor referred to Mo Lin’s note and exhibited a copy to his affirmation. But he gave no account of how Mo Lin’s note came into existence in the first place and how it came into his possession. The circumstances in which the document was made and the reason for making it is simply not known. Second, Mo Lin herself should be able to explain why she made the note. Nevertheless, even though she has been served with these proceedings, she has not participated in them at all. In sum, neither Victor nor Mo Lin has come forward to explain the origin of the note. I consider that the evidential value of such a document of unknown origin is highly questionable.
65. In the absence of any rebuttal evidence of probative value, I find Mary’s factual account on how she was received as a daughter of the deceased as facts.
66. The next question is whether those circumstances amounted to adoption under Qing law.
67. Applying Wong Kwong Yiu, the Qing law on adoption should be proved by evidence. Mary relies on the opinions of Prof Li and Mr Lin. Their expertise on Qing law is not challenged by any party. No other party has adduced expert evidence. Mary’s experts quoted the relevant sections of the Qing law and discussed them with reference to her factual account. More specifically, Prof Li highlighted that Mary was adopted when she was an infant and she was born to a family who could not afford to raise her. It was therefore in the public interest for such an infant to be adopted. He also pointed out that the deceased and Madam Chan then informed the family members of the adoption and Mary took the name of the deceased. He opined that all these fully complied with the relevant Qing law. Furthermore, her adoption was also in accordance with the custom.
68. In my view, the experts came to their conclusion with sound reasoning. In this regard, I note the previous statements or findings made by the courts on the Qing law on adoption. Some of them are on their face in favour of Mary’s case and some others are not. It seems to me there is apparently no general consensus on the various aspects of Qing law on adoption as revealed by the authorities. If there were one and if it were contrary to, or called into question the validity of, the opinions of Prof Li and Mr Lin, it might warrant the court obtaining further Qing law evidence such that it would have full and proper information to come to a correct finding on the issue, following Marley.
69. But that is not the case here. In the circumstances, the clear opinions of Prof Li and Mr Lin should be deferred to. I would just add that in respect of the age restriction mentioned in Liu Ying Lan, this should not affect the validity of their opinions. This is because on the facts as found, Mary was adopted when she was an infant. If there was an age limit, she was under that limit. If there was no age limit, then the issue of age did not arise in the first place.
70. In the circumstances, I am prepared to accept the opinions of Mary’s experts.
71. In this regard, however, I need to deal with Victor’s proposed directions as set out in para 58 above. I would not accede to his proposal.
72. In his affirmation, Victor expressly stated that he “challenge[d] the status of Mary and her entitlement to the Estate”. He referred to the opinions of Prof Li and Mr Lin and said that he reserved the right to adduce expert evidence. In fact, he mentioned that he had instructed his solicitors to write to Dr Eric Ip of Chinese University of Hong Kong to seek his expert assistance on Qing law. That affirmation was filed in August 2021. Notwithstanding what he said there, he did not subsequently put forward any expert evidence before the court. Then, in March 2022, the parties agreed to set down the amended originating summons for substantive hearing. It was further agreed that no further affirmation be received in evidence without the leave of the court.
73. If Victor had genuinely wanted to put forward Qing law evidence to assist the court, he should have done so before the parties’ agreement in March 2022. Had he done so, the court would then have given proper directions, depending on the contents of the new evidence. It might include a direction that the experts be tendered for cross-examination at the substantive hearing such that any disputes regarding the adoption law could be resolved once and for all.
74. That of course did not happen. In fact, up to now, Victor has not offered any explanation why he did not adduce the expert evidence which was contemplated in his affirmation back in August 2021. In the circumstances, after the order to set down was made in March 2022, the expectation must be that the D2 status issue would be resolved definitively at the substantive hearing, based on the evidence so far filed. Victor’s present request for further expert evidence should not now be entertained.[1]
75. For the reasons set out above, I accept the opinions of Prof Li and Mr Lin and find them as facts.
76. I therefore conclude that Mary was lawfully adopted by the deceased and Madam Chan in Hong Kong in 1939 in accordance with Chinese law and custom. She therefore was and is a daughter of the deceased for the purpose of the Intestates’ Estates Ordinance.
77. Before leaving this issue, I should state for the record my views on the other pieces of evidence relied on by the parties.
78. First, I do not consider that the marriage certificate of Mary is of critical importance. No doubt, it shows that the deceased treated her as his daughter. However, it says nothing about when, where and how the deceased adopted her. The marriage certificate sheds no light on these questions.
79. Second, Mr Acorn Lau places much emphasis on the written statements made by Madam Wong and Victor in previous legal proceedings in which they said that Mary was the adopted daughter of the deceased. Mr Lau argues that Victor is in blatant abuse of the court’s process when he now advocates for an opposite conclusion in the present proceedings. He should not be allowed to do so. On this point, as I have made my determination based on the substantive evidence adduced by the parties, it is unnecessary for me to decide whether Victor should be barred from disputing the status of Mary because of his previous inconsistent position.
80. Third, I also do not consider it proper to rely on the remark made by Chow J in para 17(1) of his judgment of 2016. It is tolerably plain that the remark was made as part of the introduction of the case. The status of Mary was irrelevant in that dispute. The remark should not be treated as a factual finding in that case.
MADAM WONG STATUS ISSUE
81. The administrator seeks a determination on whether Madam Wong was the concubine or the lawful widow of the deceased at the time of his death.
82. This issue has a direct impact on how the estate should be distributed.
83. The administrator observes that all along the administration has proceeded on the basis that Madam Wong was the deceased’s concubine and it was only around the time the present proceedings were commenced that Victor suggested for the first time that she was indeed the lawful wife. Previously, both Madam Wong herself and Victor had repeatedly stated in court documents that she was the concubine. Notwithstanding that, the administrator presently takes a neutral stance on the issue as he has no personal knowledge of the facts.
84. Victor’s position is twofold. He says there are two factual scenarios, either one of which, if proved, would lead to the conclusion that Madam Wong was the wife. First, she was the first and/or principal wife of the deceased. Second, alternatively, if she was initially a concubine, she was elevated to the status of a wife through a ceremony known as fuzheng (扶正) after Madam Chan passed away. I shall refer to this as “the fuzheng scenario”. Victor says that the court can only determine her status by reference to expert evidence which is not before the court. He asks the court to direct the administrator to obtain expert evidence on the two factual scenarios.
85. Mary, Mo Chun, Susie and Tony all contend that Madam Wong was a concubine of the deceased at the time of his death.
Victor’s case
86. For the first factual scenario, Victor relies on Madam Wong’s declaration of 1992.
87. In that document, Madam Wong gave an account of how she met the deceased in 1941, started to cohabit with him in the same year and gave birth to Mo Lin in 1943. She described her first encounter with Madam Chan and the subsequent ceremony in 1945 through which she was accepted as a concubine. She ended the document by stating that she, the deceased, Madam Chan and their children then all lived together without any differentiation as to which child was born to which mother.
88. Based on the above, Mr Cheung submits that in reality, Madam Wong could be the first and/or principal wife of the deceased and that expert evidence should be obtained to comment on the customary significance of those facts.
89. For the fuzheng scenario, Victor gave a first-hand account in his first affirmation:
“(a) On 4 February 1970, Madam Chan Yuk Mui, the “Kit-fat” wife of the Deceased (not admitted), passed away. On the first night when I returned to Hong Kong from Canada in the summer that year, the Deceased personally instructed me that I should no longer address Madam Lam [ie Madam Wong] as “細姐”, literally “small sister” but as “二媽”, literally “second mother”. I understand that Mo Lin has issued a statutory declaration to the same effect.
…
(d) Furthermore, the Deceased also bought a ring for Madam Lam and, that night, our family went to a restaurant to celebrate what was apparently the “elevation” of Madam Lam’s status to being the Deceased’s “Tin-fong” wife. The Deceased told me that the said family dinner was arranged to celebrate Madam Lam becoming his “Tin-fong” wife. That night was the first time I, the son of the Deceased by Madam Lam, returned to Hong Kong and was asked by the Deceased to call Madam Lam as “亞媽”.”
90. Victor now wishes to rely on two photographs (as part of his summons to adduce further evidence) in support of his assertion. The first is a photograph showing, among others, the deceased and Madam Wong. The second photograph shows a ring and a bracelet. Victor stated in his second affirmation that the ring and the bracelet were given by the deceased to Madam Wong “in recognition that she is his wife”. I should, however, point out immediately that only the ring was mentioned in Victor’s first affirmation, not the bracelet.
91. In addition to his first-hand account, Victor relies on the following as further proof of Madam Wong’s status as the wife.
92. First, he relies on Mo Lin’s statutory declaration of 2004. For its contents, see para 22 above.
93. Second, he relies on the obituary of the deceased published in the newspaper. In addition to Madam Chan, Madam Wong was stated as a wife. I note, however, that there is a third name stated to be the deceased’s wife in the obituary.
94. Third, there was an “Affidavit for the Commissioner” signed by a Tse Wan Yee, who applied for letters of administration in her capacity as the lawful attorney of the person so entitled, dated 15 January 1983, in which it was stated that Madam Wong as the “Tin-fong Widow”.
95. Fourth, Victor has obtained a legal opinion from Mr William Cheung, barrister and solicitor practising in Alberta, Canada. Mr Cheung conducted a review of the application documents which the deceased and Madam Wong submitted for their emigration in 1974, Canadian immigration records and other records. He was of the opinion that as a matter of Canadian law and custom, the deceased and Madam Wong stayed married to each other until the death of the former.
96. By his summons to adduce further evidence, Victor applies to rely on the exhibits to Mr Cheung’s opinion, some of which were omitted from his first affirmation.
97. Based on the above, Mr (Keith) Cheung submits on behalf of Victor that in order to determine the true status of Madam Wong, the court should direct that (1) there be cross-examination on whether the dinner in fact happened, and (2) expert evidence be obtained on whether the combined effect of a ring, a celebration dinner and the change in how she was addressed by the children amounted to fuzheng. In the absence of such evidence, the court should not proceed to make a determination now.
Evidence showing that Madam Wong was the concubine
98. I now set out the evidence which suggests that Madam Wong was the concubine all along.
99. First, in respect of the fuzheng scenario, Mary, Susie and Tony all stated in their affirmations that they could not recall and are not aware of any ceremony or dinner to elevate the status of Madam Wong from concubine to wife.
100. Second, in the 1987 action, in the statement of claim filed on behalf of Madam Wong and settled by counsel, it was pleaded:
“As the lawful concubine of the Deceased, the Plaintiff is entitled to:
(i) a grant of letters of administration in respect of the Deceased’s estate, and
(ii) share in the Deceased’s estate in accordance with the provisions of the Intestates’ Estates Ordinance (Cap 73).”
101. Third, also in the 1987 action, five years later, in the Tomlin order made in 1992 between Madam Wong, Victor and Tony, it was stated in the schedule:
“The Defendant [ie Tony] agrees and acknowledges that the 1st Plaintiff [ie Madam Wong] was and is the lawful concubine of the Deceased and accordingly is entitled to a grant of the Letters of Administration to the estate of the Deceased”
102. Fourth, in the 1998 HCAG proceedings, in her “Affirmation by Administratrix” made in March 1998, Madam Wong referred to herself as the “lawful concubine” twice, in paras 8 and 10.
“8. The deceased was married to the said CHAN YUK MUI other than the said LAM WONG KWAN YING who was the lawful concubine of the said deceased.
…
10. The said LAM WONG KWAN YING was the lawful concubine of the said deceased.”
103. However, in the same document, when listing out the surviving beneficiaries in para 1, Madam Wong was stated to be “his lawful widow and relict”.
104. Fifth, in the following year, in the 1999 HCAG proceedings, in their “Affirmation by Administrators”, both Madam Wong and Victor stated that she was the concubine of the deceased. What stands out from this document is the fact that some of the original wording describing her as “lawful widow and relict” was crossed out and replaced by the word “concubine”. I quote below the relevant paragraphs.
“1. [The deceased died] ... leaving him surviving the following persons being the only persons now entitled to share in his estate:-
Name Age Relation
LAM WONG KWAN YING 76 his lawful widow (林黃群英) and relict concubine
…
16. We I, the said LAM WONG KWAN YING, am applying as the lawful widow and relict concubine of the said deceased, and I, the said LAM SIK YING VICTOR, am applying as the lawful and natural son of the deceased, are applying as and one of the persons entitled to share in the said estate of the deceased for letters of administration to the said estate.”
105. Sixth, in the 2001 action, in his witness statement dated 18 June 2004, Victor expressly described Madam Wong as the concubine of the deceased and Madam Chan the wife.
“My late mother Madam Wong was the concubine of my late father, Mr. Lam Tim (“Mr. Lam”). Out of the concubinage, my mother had one child, namely myself. The 1st defendant [ie Tony] is my half-brother, his mother being the kit-fat wife of Mr. Lam.”
106. Seventh, in Chow J’s judgment of 2016, he introduced Madam Wong as “a concubine”: see para 16(2).
Discussion
107. It is not entirely clear to me who bears the burden of proof under the Madam Wong status issue. Should Victor bear the burden to prove that Madam Wong was the wife? Or should it be the other beneficiaries who bear the burden to prove that she was the concubine? Having said that, I do not need to decide where the burden lies because in my view, the evidence pointing to the conclusion that she was the concubine is overwhelming. The determination of the issue does not turn on the incidence of the burden of proof.
108. The first factual scenario put forward by Victor can be disposed of quickly. It is through his counsel’s written submissions that Victor suggests that Madam Wong was “the first and/or principal wife” of the deceased.
109. It is plain that this suggestion is directly contradicted by Madam Wong’s own statement. In her declaration of 1992, she said that she met Madam Chan for the first time in August 1945 and the latter introduced herself as “Mrs Lam”. In her own account, she described Madam Chan as “Lam’s first wife”. See the extract in para 50 above.
110. I therefore reject the first factual scenario.
111. As regards the fuzheng scenario, Victor’s factual case is that a dinner was held in the summer of 1970 in which Madam Wong was celebrated as the wife of the deceased in the presence of the family. Victor said he was present. Mary, Susie and Tony were not aware of such a dinner.
112. The parties are therefore putting forward opposite stances on a factual matter. Generally speaking, such a stark factual dispute can only be resolved after the court hears live evidence from witnesses when they will be cross-examined. However, in the present case, there is ample evidence before me which shows that Victor’s allegation is plainly incapable of belief and can therefore be summarily rejected without any cross-examination.
113. The only proof of the dinner is a short paragraph in Victor’s affirmation. It is a bare assertion without any documentary proof. The photograph of the ring and bracelet is of no probative value as it is just a photograph of a ring and a bracelet. There is nothing in the photograph which links the ring and bracelet to the occasion.
114. If the dinner had in fact happened, Madam Wong would most certainly have remembered it. From the summer of 1970 onwards, she would have regarded herself as the wife of the deceased, and not his concubine.
115. Mr Nelson Miu, counsel for Susie, submits that the status of a woman as a wife or a concubine was a most important matter for traditional Chinese women. All Chinese women knew well the difference. A woman who is a wife would no doubt be most offended if she was called a concubine. I share that view.
116. Nevertheless, since the passing of the deceased, Madam Wong had in four formal court documents made in 1987, 1992, 1998 and 1999 described herself as the concubine. (I do note however that in the same document made in 1998, there was one reference to her being the “lawful wife”.) In my view, it is inconceivable that Madam Wong would have so described herself if she had in fact been elevated as the deceased’s wife in 1970 as alleged by Victor. I find that it is more likely than not that she was aware of the difference between a wife and a concubine. When she said she was the concubine in those court documents, she meant what she said. She was stating her own status according to what she knew.
117. On this point, it is worth specifically highlighting the statement of claim filed in the 1987 action. As Mr Alan Yung, counsel for Tony, submitted at the hearing, this was the action where her status was put in issue – she was applying for the letters of administration on the basis that she was the concubine. In other words, her plea was not a passing reference.
118. In my view, therefore, Madam Wong’s statements that she was the concubine made in previous litigation show overwhelmingly that the dinner did not happen.
119. Victor’s assertion is also contradicted by Madam Wong’s declaration of 1992. It will be recalled that Madam Wong gave a detailed account from when she first met the deceased to when she, the deceased, Madam Chan and all the children lived in the same household as one family. Nowhere did she mention the dinner. If Victor’s assertion about the dinner is true, its omission in the document is glaring, illogical and inexplicable. In my view, the omission suggests that the dinner did not take place, as otherwise Madam Wong would have most likely referred to it.
120. Victor’s assertion is further directly contradicted by what he himself repeatedly said in previous litigation. He had in three formal court documents made in 1992, 1999 and 2004 described Madam Wong as the concubine. It is inconceivable that he would have made those statements if Madam Wong had in fact been celebrated as the deceased’s wife in 1970. Worse still, Victor has not even attempted to give any explanation in his affirmations why he had in the past consistently and repeatedly stated that Madam Wong was the concubine. It must be taken that he indeed has no explanation. In the absence of any explanation, I simply cannot accept what he now says to be true.
121. The other matters relied on by Victor are of marginal relevance. The Canada emigration application documents (1974), the obituary (1983), and the affidavit of Tse Wan Yee (1983) are of little probative value when the court decides whether the dinner had taken place or not. They only show that the deceased and/or the family had on specific occasions regarded Madam Wong as the wife but they shed no light on whether the dinner had taken place or not. The Canadian legal opinion is simply irrelevant.
122. As for Mo Lin’s statutory declaration of 2004, I would not give much weight to it. She could have come forward in these proceedings to explain the document or speak to its contents but she has not.
123. In sum, I reject Victor’s bare assertion regarding the dinner as unbelievable because (1) it is contradicted by previous opposite statements made by himself and Madam Wong at different times over the past four decades, and (2) it is inherently implausible and unbelievable that Madam Wong and Victor would have made those previous statements if she had indeed been elevated as the wife at the dinner in 1970.
124. I therefore find that the dinner alleged by Victor did not take place. There is therefore no need to adduce any expert evidence on its legal effect. (In any event, Victor ought to have adduced such expert evidence when he filed his affirmation evidence.) On the basis of the evidence presently before me, I conclude that Madam Wong was the concubine of the deceased at the time of his death.
125. Same as in my analysis of the D2 status issue, I do not find it necessary to deal with Mr Acorn Lau’s submission that by raising the present allegation, Victor is in abuse of the court’s process as this allegation is diametrically inconsistent with his statements made in previous legal proceedings, relying on Chan Chun Chuen v Kao, Lee & Yip (a firm) HCA 597/2015, 12 October 2017. This is because I have made my determination on the substantive evidence adduced by the parties.
126. I have also found that Victor’s new evidence, namely the two photographs and the exhibits to the Canadian legal opinion to be of no or little probative value. For that reason, I refuse to admit them.
CONCLUSION
127. For the reasons given above, I make the following orders, based on the draft submitted by the administrator.
128. There be a declaration that Mary was and is the lawfully adopted daughter, and the issue, of the deceased for the purpose of the Intestates’ Estates Ordinance, and was and is a beneficiary of the estate.
129. There be a declaration that Madam Wong was the concubine of the deceased, but not the wife, spouse, widow or relict of the deceased, for the purpose of the Intestates’ Estates Ordinance, and Madam Wong and/or her estate was not and is not a beneficiary of the estate upon her death.
130. I dismiss Victor’s summons to adduce further evidence.
131. As to the costs of the amended originating summons, the costs of the hearing on 30 March, 30 and 31 August 2023, and the costs of Victor’s summons, given the diverse issues which have been determined, instead of making a costs order nisi, I would direct as follows:
(1) Any party who seeks costs should inform the other parties by letter the costs orders which he or she seeks within 14 days of the handing down of this decision.
(2) Parties should try to agree on the costs orders within 14 days after that.
(3) If disagreed, the plaintiff be at liberty to fix a two-hour hearing before me, in consultation with counsel’s diaries, to resolve the differences.
(4) Parties do exchange and lodge written submissions at least seven days before the hearing. The submissions should be within three pages.
| (Winnie Tsui)
Judge of the Court of First Instance
High Court |
Mr Kerby Lau, instructed by Liu, Chan & Lam, for the plaintiff
Mr Keith Cheung, instructed by Robertsons, for the 1st defendant
Mr Acorn Lau, instructed by Tsang, Chan & Woo, for the 2nd and 4th defendants
The 3rd defendant was not represented and did not appear
Mr Nelson Miu, instructed by King & Co, assigned by the Director of Legal Aid, for the 5th defendant
Mr Alan Yung, instructed by Hastings & Co, for the 6th defendant
[1] I should put on record that at the adjourned hearing on 30 August 2023, Mr Cheung handed up a document. It was said to be an unsigned draft report of Prof Michael Palmer on Chinese law. The report would demonstrate, Mr Cheung submitted, that Mary’s adoption was not intended to have such an effect that she would have a share in the estate. Mr Cheung invited me to read the draft on the spot. I declined his invitation. I considered that if Victor wished to adduce further expert evidence at such a late stage, he should have put in a proper application, with an affidavit explaining the lateness. He should also have given proper notice to the other parties. I was not going to accept a bare set of papers handed up to me in court as an application. I returned the papers to counsel. I also said that if Victor wished the court to take into account the draft report as part of the evidence, he should take proper steps to make that happen. Victor has not since pursued this.