YAP SUI KONG v. YIP FONG TIM

HCA 1409/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1409 OF 2013

____________

____________

_______________

J U D G M E N T

_______________

Introduction

1.  The plaintiff commenced this action in July 2013.  Essentially the claim is that certain land lots in an indigenous village in Sha Tau Kok (respectively “the subject land lots” and “the subject village”) should be inherited, in accordance with customary Chinese law, by the plaintiff (and several others he claims to also represent) and should not be inherited by the defendant (alternatively, one-half of the subject land lots (see para 41 below)).

2.  Both the plaintiff and the defendant claim inheritance of the subject land lots through their ancestors, especially their respective fathers.  It is the plaintiff’s case (denied by the defendant) that the defendant’s late father was not an indigenous villager of the subject village.

3.  By reason of the matters above, the important events (some of which are factually in dispute) would include:

(a)   the death of Mr Ip Ting Wing, the plaintiff’s great grandfather, in March 1933 (about 80 years before 2013) (“the great grandfather”);

(b)   the emigration of Mr Ip Wan Fook (born in 1915), allegedly also called Mr Yap Fook, the plaintiff’s father, to Malaysia in 1934 (aged 19) (about 79 years before 2013) (“P’s father”);

(c)   the alleged arrival of a Mr Chiu Loi at the subject village in 1947 (about 66 years before 2013).  Allegedly, he later changed his name to Ip Cheung Hong (born in 1919) (the defendant’s father) (“D’s father”);

(d)   P’s father visited the subject village in 1966 (aged 51) for 2 weeks (about 47 years before 2013);

(e)   D’s father emigrated to Britain in 1967 (aged 48) (about 46 years before 2013);

(f)   D’s father inherited the subject land lots in 1968 (about 45 years before 2013);

(g)   the defendant emigrated to Britain in 1970 (aged 15) (about 43 years before 2013);

(h)   further to sub-para (f) above, in March 1980 D’s father sub-divided the great grandfather’s land lots into the subject land lots and other land lots.  The other land lots were conveyed to 2 other Fongs of the Ip family by way of sale and purchase (the defendant only admits the conveyances on sale) (para 6, statement of claim);

(i)   the death of P’s father in 1991 (about 22 years before 2013);

(j)   compilation of the subject village’s genealogy by the village elders and Tso managers in 2002 (about 11 years before 2013);

(k)   the death of the plaintiff’s mother in 2003 (about 10 years before 2013);

(l)   the death of D’s father in October 2011 (less than 2 years before 2013).

4.  The doctrine of laches is not relied on by the defendant.  But the lengthy time periods separating the events above and this action are important.  This is because the main dispute herein, being which party should inherit the subject land lots, is highly fact-sensitive (see para 9 below).  The lapse of time between the above events and the commencement of this action, some of which were as much as a few decades earlier, has rendered the assessment of witnesses’ testimony (on which the fact finding has to be based) a rather difficult task.

Background

5.  The history probably should start with the great grandfather.  The great grandfather has several sons, including Mr Ip Kut Yee and Ip Kut Lung.  It is the plaintiff’s case Mr Ip Kut Yee was the plaintiff’s grandfather (“P’s grandfather”).  P’s grandfather has two sons: Ip Cheung Chun and P’s father.

6.  As stated above, the subject village is located in Sha Tau Kok.  It is also the plaintiff’s case P’s father emigrated to Malaysia in the 1934.  The plaintiff was born there in August 1956 and has been residing there since.

7.  On the defendant’s part, his case is that he belongs to Ip Kut Lung’s line of descendants.  As stated above, D’s father emigrated to Britain when the defendant was very young.  The defendant himself went to Britain to join his father when he was 15 years old (more than 40 years before trial; that is, around 1970).

8.  The rest of the relevant history, especially that related to the succession to the subject land lots, has been summarized in para 3(h) to (l) (especially para 3(h)) above.

Main issue

9.  The main dispute has been conveniently set out in the parties’ respective opening submissions:

(1)   “whether the plaintiff is a male descendent … of [P’s great grandfather] … (the origin of [the subject land lots])?” and “whether the defendant is at risk of losing his status as male descendent … of [the great grandfather] by reason … that [D’s father] was not a natural son of … Ip Kut Lung [who] was a son of [the great grandfather]?” (para 2.2, plaintiff’s opening submissions);

(2)   “[whether] the Plaintiff … are descendants of [the great grandfather]” and “[whether] [D’s father] was the lawful and natural son of Yip Kat Lung or was adopted by the wife of Yip Kat Lung as son of Yip Kat Lung” (para 8, defendant’s opening submissions).

Important documents

10.  The approach adopted by the courts for assessing credibility has been set out in my earlier decisions.  The relevant passages are repeated below to facilitate comprehension:

“The assessment of a witness’s credibility and/or reliability is a task frequently undertaken by the court in litigation (in fact, very often an essential task). I consider the following to be the appropriate test to adopt:-

‘There are two objective tests for assessing a witness’s credibility regarding a matter to which he has testified:-

(a) whether that part of his testimony is inherently plausible or implausible;

(b) whether that part of his testimony is, in a material way, contradicted by other evidence which is undisputed or indisputable (an example often given of such evidence is contemporaneous documents).

Further, where it is shown that a witness has been discredited over one or more matters to which he has testified (using the above tests), this fact is relevant to the assessment of his overall credibility. Likewise, regard may be had to a witness’s motive for deliberately not giving truthful testimony. For example, telling the truth may prejudice his interest, or a just determination of the litigation may affect his interest’.

(See, for example, the decisions in Chiu Chi Tong v. Lau Chong Sai & Another, HCA 765/2002 (para 28), Yu Ming Investment Ltd. v. Peng Ru Chuan, Richard, HCA 814/2002 (para. 13) and 林傳龍對謝巧玩 HCA 1443/2011 (19 December 2014))”

(Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12)  The same approach will be adopted in this action.

11.  In view of:

(a)   the events mentioned in para 3 above;

(b)   the main issues summarized in para 9 above,

several documents are important:

(1)   certified true copy of the birth register.  This shows the registration in January 1962 of the birth of D’s father in December 1919 (“birth cert of D’s father”).  Birth cert of D’s father shows the father to be Ip Kat Lung, the mother to be Mdm Wan Tam Kiu, and the date and place of birth to be 16 December 1919 and the subject village;

(2)   letter of the plaintiff’s solicitors dated 19 November 2014 to the Births and Deaths General Register Office (“the Register”) concerning birth cert of D’s father;

(3)   reply letter dated 22 November 2014 of the Register stating in effect that post registration of births should be supported by sufficient proof of birth and evidence of the date and place of birth, and the parent-child relationship, and that mere statutory declarations made by the parents, relatives, friends or other witnesses would not amount to sufficient evidence;

(4)   the genealogy (or family tree) of the Ip clan compiled in about January 2002 (“the 2002 genealogy”).  In particular, the defendant relies on the narration of Ip Kut Lung as the only male descendent of Ip Ting Wing (and Ip Kut Yee was not mentioned at all).  Further, D’s father was narrated to be the only male descendent of Ip Kut Lung;

(5)   certified true copy of the birth register of the plaintiff and 4 other males (claimed by the plaintiff to be the other descendants of P’s father) (“P’s birth certs”).  They show the father to be a Mr Yap Fook (“Yap Fook”).  Yap Fook’s birth place was stated therein to be China;

(6)   Malaysian identity card of Yap Fook (“the Malaysian ID card”).  It shows that a Mr Yap Git Yee (“Yap Git Yee”) was Yap Fook’s father.  The plaintiff claims that Yap Git Yee was P’s grandfather;

(7)   3 sets of conveyance on sale dated 3 March 1980 relating to parts of the subject land lots wherein D’s father was stated to be the vendor (para 3(h) above).

12.  There is also a genealogy which was compiled in about 2014 (“the 2014 genealogy”).  This document was prepared taking into account the information given, and claims made, by the plaintiff in 2012 when he approached and met the village elders of the subject village shortly beforehand.  Quite possibly, the plaintiff already intended to assert the claim herein when the 2014 genealogy was prepared.

Witnesses’ credibility

13.  The following witnesses testified at trial (unless otherwise stated, they are all related to the subject village):

(a)   the plaintiff (born in August 1956);

(b)   Ip Wah Ching (born in January 1955), a villager and the village representative.  He is also a son of the former village representative (1962 to 1991), Mr Ip Shing.  He also took part in the compilation of the 2002 genealogy;

(c)   Ip Cheung Yau (82 years old in September 2014), a villager;

(d)   Mdm Ip Ying Kiu (born in 1933) (but registered as born in January 1935), a villager;

(e)   Ip Cheung Ying (age undisclosed in witness statement, but testified that he was 81 years old), a villager;

(f)   Ip Kwan Bo (born in October 1930), a villager. He also took part in the compilation of the 2002 genealogy;

(g)   Ip Wai Ping (born in December 1950), a villager and a manager of one of the Cho’s.  He also took part in the compilation of the 2014 genealogy (para 12 above);

(h)   Ip Yuk On (born in November 1956), a villager and a manager.  He was also one of the village elders who took part in the compilation of the 2002 genealogy;

(i)   Ip Yuk Keung (born in August 1964), a villager;

(j)   the defendant (born in 1955).

14.  Of the 9 plaintiff witnesses, 4 were in their teenage in 1947 (when D’s father was said to arrive at the subject village) (see para 13(c) to (f) above) (the youngest two were about 14 and the oldest was about 17).  The other witnesses were not born yet.

15.  According to the witnesses who were in their teenage, D’s father was “adopted” by the wife of the deceased Ip Kut Lung.  The time and manner of the “adoption” was unclear.  One witness describes it as “2 or 3 years after [D’s father] began to work at [the subject village]” (that is, 2 or 3 years after 1947).  Another did not mention the time of the “adoption” at all.  Still another said that D’s father arrived at the subject village when he was about 27 or 28 years old (in 1946 or 1947?) (para 11(1) above), and was “adopted” after he turned 30 (after 1949?) (para 11(1) above). Finally, a witness who admittedly was staying in Kowloon from 1947 to 1950, and in Guangzhou from 1950 to 1958, claimed that he also knew about the “adoption” of D’s father but without giving any details.

16.  The other plaintiff witnesses were not even born in 1947.  And admittedly their knowledge of the alleged “adoption” of D’s father was hearsay in nature.  When they testified to the event, they were in effect recalling something which took place about half a century ago, and the lack of detail and particularity of their testimony clearly demonstrates the origin of their purported knowledge.

17.  But merely because witnesses were testifying to events which:

(1)   took place a long time ago; and/or

(2)   the witnesses have no direct or personal knowledge of,

does not by itself lead to their testimony being unreliable, or even untruthful.

18.  There are, however, several matters (which are not, or cannot properly be, disputed) which render D’s father being an “adopted” child (or, to put it in another way, D’s father being the same person as Chiu Loi (if Chiu Loi in fact existed)) inherently quite implausible.

19.  First, birth cert of D’s father appears to be a credible document.  It was issued in 1962; not only was it issued well before the commencement of this action, it was issued several years before D’s father emigrated to Britain, and before he inherited the subject land lots.  There is therefore no reasonable ground for thinking that the information in the document was “tailored” for the purpose of obtaining succession (or for any related pecuniary advantage).

20.  The Register’s letter of 22 November 2014 reinforces the credibility and reliability of birth cert of D’s father (para 11(3) above).  There is thus no need to rely on provisions such as s 38, Interpretation and General Clauses Ordinance (Cap 1) (presumption of lawful exercise of power).

21.  Similar reasons apply to the 2002 genealogy. Some plaintiff witnesses testified to the effect that:

(a)   the genealogy was not prepared with particular care or precision;

(b)   the individuals who compiled the genealogy have insufficient knowledge of Chinese customary law.

It must be borne in mind a genealogy of an indigenous village is not a document of pure academic interest.  Instead, it has legal, and often also pecuniary, effect because a male indigenous villager’s entitlement to properties distributable by the indigenous village (especially land lots, if any) will depend on the number of male descendants recognized by the genealogy (because the male descendants have their shares in the same “pot”).  It is thus unlikely for an “adopted” child to be narrated in a genealogy as if he were a lawful natural child (particularly so where the “adoption” was supposedly well known to most of the villagers).

22.  With this in mind, it is unlikely for a genealogy to make major mistake(s) as to who should be included (and who should not be); less still would it be likely the document was casually compiled.  The provisions of the New Territories Ordinance (Cap 97) appear to assume that the managers of clans, families or t’ongs can be relied on as having sufficient knowledge and integrity to determine certain matters (see, for example, s 15, Cap 97; managers of clans, families or t’ongs are commonly the respected and knowledgeable elders of the indigenous villages).

23.  In this connection, by 2002 (the 2002 genealogy), it is noted that even land lots in Sha Tau Kok would be more valuable than the same land lots in the 1960’s or 1980’s.

24.  The plaintiff argues that the 2002 genealogy is not a reliable document, pointing (in support) to statements therein to the effect that because of the lack of complete and/or formal written records, the 2002 genealogy may contain errors or omissions.  Even if this may in some way be true, the part of the 2002 genealogy which is important to this action is related to P’s father and D’s father, both of whom should be known to the villagers in the 1960’s (for example, para 13(c) to (g) above) (especially those responsible for compiling the 2002 genealogy (for example, para 13(b) and (f) to (h) above)) (P’s father visited the subject village in 1966 while D’s father succeed to the subject land lots in 1968).  It is unlikely for P’s father to be inadvertently omitted from the document.

25.  Secondly, not only did D’s father inherit the subject land lots, apparently he was the one who sub-divided (at least part of) the great grandfather’s estate and conveyed part of the same to 2 other Fongs of the Ip family (para 3(h) and 11(7) above).  It is inherently implausible for an adopted child (let alone an invalidly adopted child) to be entrusted with such task (even bearing in mind that land lots in Sha Tau Kok in the 1960’s were of much lower value than in the 1980’s). In fact, according to two plaintiff witnesses (para 13(d) and (f) above), the estate has long time ago been divided between, or distributed to, the two Fongs belonging to Ip Kut Yee and Ip Kut Lung.

26.  Thirdly, at no time did P’s father take any action to claim his entitlement to any of the estate of either the great grandfather (who passed away in 1933) or his own father (who passed away in 1991) (incidentally, there is no evidence he returned to the subject village on that occasion).  He did not do so in 1966 (when he visited the subject village) (para 3(d) above), or in 1968 (when D’s father inherited the subject land lots) (para 3(f) above), or in 1980 (when D’s father sub-divided the great grandfather’s estate, including the subject land lots) (para 3(h) and 11(7) above).

27.  As regards the plaintiff’s own entitlement to succession (of any part of the subject land lots), the defendant submits that the evidence adduced by the plaintiff is far from satisfactory and should not be relied upon.

28.  When P’s father (allegedly) emigrated to Malaysia in 1934, he was aged 19.  Only 4 out of the 9 plaintiff witnesses were already born then (para 13(c) to (f) above); they were respectively aged 2, 1, 1 and 4); the other witnesses were not born yet.  When P’s father visited the subject village in 1966, he was aged 51.  The eldest of the 9 plaintiff witnesses was aged 36 (para 13(f) above) and the youngest was aged 2 (para 13(i) above); more specifically, 4 were in their 30s (para 13(c) to (f) above), 3 were in early teens (para 13(a), (b) and (h) above), one was aged 16 (para 13(g) above) and one was aged 2 (para 13(i) above).

29.  Because of the age difference between him and the plaintiff witnesses in 1966, it is unlikely P’s father made friends with any of them during his 2-week visit (and none claimed so).  It is doubtful if any of the plaintiff witnesses knew him well.  None of these witnesses appear to be able to reliably remember (if at all) how Ip Wan Fook looked like when he left in 1934. 

30.  The documents provided by the plaintiff to establish connection of himself and P’s father to the villagers of the subject village are (as stated above):

(1)   P’s birth certs (para 11(5) above);

(2)   the Malaysian ID card (para 11(6) above).

31.  Strangely, the Malaysian ID card (with what appears to be a date: 3 September 1965) appears to belong to a gentleman known as Yap Fook, rather than P’s father, Ip Wan Fook.  P’s grandfather should be called Ip Kut Yee, but Yap Fook’s father was said to be Yap Git Yee.  While it can be argued the above names are phonetically similar, Yap Fook’s place of birth shown thereon (namely, China) cannot be satisfactorily explained.  It is inherent in the plaintiff’s case that the birth place of P’s father was the subject village, which was part of Hong Kong at the time (a British colony).

32.  The fact that, at the time, Britain, Malaysia and Hong Kong were all parts of the British Commonwealth of Nations renders it rather unlikely for the issuing officials of the Malaysian ID card to mistake Hong Kong as part of China in 1965.

33.  In addition, P’s father has not left any document which can reliably show his entitlement to succeed any of the subject land lots (not even (such as) a will, or a letter or statement).

34.  The plaintiff relies on a document headed “Application for Succession to Estates” dated 30 May 1968 in support of his case.  However, this document can at most show that the great grandfather has had four sons, two of which were Ip Kut Lung and Ip Kut Yee.  It still cannot establish a blood relation between Ip Kut Yee and Yap Fook (or even Ip Wan Fook).

35.  With the above in mind:

(a)   the witnesses who testified for the plaintiff cannot be safely relied upon; accordingly, their testimony, insofar as the parts which are inconsistent with those of the defendant are concerned, are not accepted as truthful or reliable evidence;

(b)   the testimony of the defendant is accepted as truthful and reliable evidence.

36.  In so concluding, I have also borne in mind the approach disapproved by the decision in The Popi M [1985] 1 WLR 948 (see also Ide v ATB Sales Ltd [2008] EWCA Civ 424 (28 April 2008)), para 1 to 6; Datec Electronic Holdings Ltd and Others v UPS Ltd [2007] 1 WLR 1325, para 46 to 50).  The impermissible approach was described in the ATB Sales judgment as follows:

“ … a trial judge was not compelled to choose between two theories, where the evidence was unsatisfactory … it was not possible to proceed on the basis of eliminating the impossible and deciding that the remaining explanation, however improbable, must be the cause … the concept of proof on a balance of probabilities had to be applied with common sense … ” (para 3 thereof).

Findings of fact

37.  The following findings of fact (following those proposed in App 1, plaintiff’s written opening) should come out of the admissible, and reliable, evidence:

(1)   Ip Cheung Hong was a natural son of Ip Kut Lung, and not an adopted son;

(2)   Ip Cheung Hong was not Chiu Loi (if Chiu Loi has in fact been staying and working in the subject village, he and Ip Cheung Hong were different persons).

38.  There is no (or insufficient) reliable evidence as to whether:

(a)   Ip Kut Yee has had two sons, Ip Cheung Chun and Ip Wan Fook;

(b)   the plaintiff and the persons he represents are descendants of Ip Ting Wing;

(c)   Chiu Loi has had stayed or worked at the subject village;

(d)   Chiu Loi was adopted by Mdm Wan Tam Kiu (the wife of Ip Kut Lung) as her son;

(e)   at what age was Chiu Loi adopted (if he had been adopted);

(f)   the Chinese customary ceremony or formality for Chiu Loi’s adoption (if any).

39.  By reason of the above matters, I am not satisfied that the plaintiff (and the persons he represents) has established the factual basis for concluding he should inherit the entirety of Ip Ting Wing’s estate (see also para 41 below).

40.  In view of the above findings, it is unnecessary to consider the expert evidence (which deals with what amounted to a valid adoption pursuant to Chinese customary law).  Suffice it to say the expert evidence is undisputed, and in effect opines that the “adoption” process as described by some of the plaintiff witnesses is and was invalid.

Conclusion

41.  The plaintiff argues (among other things), in the alternative, he (and the others) should be entitled to 50% of the subject land lots, if the court should find that both he (and the others) and the defendant were the great grandfather’s descendants (para 6.2, plaintiff’s closing submissions) (see also para 2 to 4, 6 to 8 and 11, statement of claim).

42.  By reason of the above conclusions, there is no admissible or reliable evidence to establish the alternative claim either.

43.  The plaintiff’s claim is dismissed.

Other matters

44.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

45.  The parties agree that costs should follow the event.  There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendant, to be taxed if not agreed.