XCHRX YU CHO WAH v. HO CHI KWONG MICHAEL AND OTHERS

HCMP1571/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1571 OF 1998

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J U D G M E N T

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1. This is an appeal from Master Chung who had refused to give leave to the Applicants (Appellants) to join as Defendants under O.15, r.6(2) in claiming an interest in a property registered in the Island New Territories Land Registry as Lot No.518 in Demarcation District No.10 on Lamma Island.

2. The Appellants and the 2nd Defendant are siblings of the same parents. Their father, who was predeceased by their mother, died intestate in 1968 in Hong Kong. At the time of his death, the only valuable properties the father had were two plots of land at Lamma Island, one of which, Lot No.518, is the subject matter of this action. The deceased was survived by the four named Appellants and the 2nd Defendant. When the father died, the 1st named Appellant, Madam Yim Ngor, was already married. The other three named Appellants were not then married and the 2nd Defendant, their brother, was an infant.

3. Letters of Administration were granted to the 2nd Defendant on 3 September 1992. On 31 January 1994, he entered into a development agreement in respect of the two properties. Subsequent to the agreement, the 2nd Defendant mortgaged the property in question to the Plaintiff (Respondent) to secure a loan. Money under the mortgage was advanced to the 3rd Defendant who had since defaulted in repayment and the Respondent, by this action, seeks vacant possession of No.518. The Appellants' application for leave to be joined as Defendants in the action was dismissed by Master Chung on the ground that the Appellants did not have any interest in the subject property so as to enable them to be joined as parties in the action. They appealed.

4. The appeal was listed before Yuen J., who on 5 January 1999, adjourned the hearing and granted leave to the Appellants to adduce expert evidence on Chinese customary law.

5. At this hearing, the Appellants produced before this Court the opinion of Mr H.C. Miu, an expert in Chinese customary law. The Appellants contend as daughters they were entitled to dowry from their family and their respective entitlement would give them a claim on the estate of their deceased father.

6. The Appellants relied on the case of Wong Pun Ying and Anor. v. Wong Ting Hong [1963] HKLR 37, in which Scholes J. found for the plaintiff in her claim for dowry when the claim was made before she married. The facts of this case, however, are clearly distinguishable from the Wong case. I note from para.8 of the Appellants' expert's opinion :

" Under Tsing law, daughters are not legal successors to succeed to the estate of their deceased father unless all qualified heirs whether sons or adopted son had become extinct. However, by Chinese custom, daughters unmarried at the date of the death of their deceased father have a right of maintenance until their marriage and a further right of dowry on their marriage. Married daughter having left the family for good, of course, would have no claim for dowry thereafter unless her claim had lodged before her marriage in the principle laid down in Wong Pung-ying and another v. Wong Ting-hong, (1963) H.K.L.R. 37."

In my view, Wong's case is only authority for the proposition that the claim for dowry, if there be any, should be lodged before the daughter's marriage. There is nothing in that case to suggest that any such claim can be made after the daughter's marriage. This, I think, must be consistent with the Appellants' expert opinion referred to above and also with the view expressed by Professor Emrys Evans in his article "The New Law of Succession in Hong Kong" (1973) HKLJ at p.17 observed :

" As far as the position of a daughter was concerned, she received a dowry on her marriage, but this was not customarily seen as a right in the western sense, but rather as one necessary aspect of the complex process of marriage within the Chinese family system. ..."

7. The case of the 1st named Appellant, Madam Yim Ngor, was that she was married in or about 1962, prior to the death of her father. There is no evidence before this Court whether Madam Yim Ngor had received any dowry from her father. If she had sufficient reasons to support such a claim on dowry, then I fail to see her reasons for such delay as no such reasons were given. In the case of the remaining Appellants, the expert opined :

"... his only son, the said Yim Kwong Ming (the 2nd Defendant), would be entitled to succeed to the estate of the deceased subject to the right of maintenance of the unmarried daughters who were unmarried at the date of his death ... until their marriage and subject to their right of dowry on their marriage and therefore the said unmarried daughters of the deceased are entitled to maintenance until their marriage and to dowry on their marriage on the presumption that they must have claimed the same before their marriage in the circumstances as it is very important to them in the Chinese family ..."

8. In my view, the passage above is to a certain extent inconsistent with the expert's views in para.8. The expert also concluded that it is presumed that the daughters must have claimed dowry before their marriage and on that basis they should have a claim to the property in question.

9. The Appellants have never disputed the capacity of the 2nd Defendant as the administrator for the estate of their father. The position of the administrator is governed by s.54(4) of the Probate and Administration Ordinance, Cap.10 which gives power to the personal representative to sell or mortgage the property. The Plaintiff (Respondent) could well be a bona fide purchaser without notice whose right to possession under the duly executed legal charge is not, in any event, affected by any possible claim of the Appellants for dowry against the 2nd Defendant.

10. Despite my observations, the position of the Appellants remain to be this : they may have a claim to the interest in the property in question by reason of their entitlement to dowry before their respective marriages. In order to give effect to O.15, r.6(2) of the Rule of High Court, the Appellants' right and entitlement to dowry and in turn, what, if any, claim they may have on their deceased father's estate is a matter to be decided by the Court.

11. For the reasons given, this appeal is allowed. I would grant leave to the Appellants to be joined as Defendants in this action and they are to serve their defence within 14 days of this order. The costs of the appeal and for the hearing before Master Chung on 20 October 1998 be to the Appellants.