TANG CHO SANG WAYNE v. CHIM SIU WAH

IN THE COURT OF APPEAL

1995, No. 163
(Civil)

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J U D G M E N T

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Bokhary, J.A.:

1. At the conclusion of the hearing, we allowed this appeal with costs and indicated that we would hand down our reasons in due course. We now do so.

2. I have read in draft the judgment prepared by my brother Liu. It contains a summary of the facts which I gratefully adopt.

3. The appellant, a member of the Tang family, seeks a declaration that the respondent, his half-brother, is unable to accept any share in that family's property consisting of land in the New Territories.

4. In the court below, the appellant sought such a declaration on two alternative bases. The primary basis was that the respondent had never become an informally adopted member of the Tang family. The alternative basis was that, if he had, then he had thereafter returned to his original family, the Chim family.

5. The respondent resisted the declaration by asserting that he had been informally adopted into the Tang family and by denying that he had ever returned to the Chim family.

6. The trial judge (Rogers J) found that the respondent had proved that he had been informally adopted into the Tang family. And the judge found that the appellant had failed to prove that the respondent had returned to the Chim family. Accordingly, the declaration was refused by the judge.

7. In seeking a declaration at our hands, the appellant does not ask us to overturn the judge's finding of an informal adoption. He confines himself to asking us to overturn the judge's refusal to find a return.

8. In my view, that refusal was not only justifiable but indeed inevitable.

9. The question of a return was pleaded only in the final paragraph of the Reply filed by the appellant. It was pleaded only in answer to a defence of estoppel and in further answer to a defence of limitation. It says nothing as to how or when it is alleged a return took place.

10. Nor does the appellant's difficulty end with the facts.

11. Turning to the law, we come first to section 13 of the New Territories Ordinance, Cap. 97, which provides that: "In any proceedings in the High Court or the District Court in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting such land." That brings in Ching law, for which we look essentially to the Ching code i.e. the Ta Ching Lu Li.

12. As to how we inform ourselves of Chinese custom and customary rights, it has become the practice of our courts to take evidence of the same although, as Sir Michael Hogan CJ said in Re Tse Lai-chiu, dec'd [1970] HKLR 276 at p.176, such practice "should not be taken to supplant the court's right to inform itself by other means."

13. The Ta Ching Lu Li itself is silent as to what constitutes a return by an informally adopted son to his original family.

14. In the present case, the only expert evidence is that contained in an expert's opinion put in by the appellant under a hearsay notice. The expert was not called because the respondent's legal advisers indicated that he was not required for cross-examination. His opinion touches upon the consequences of a return by an informally adopted son to his original family. But it does not say what constitutes such a return.

15. Both counsel - assisted, if my brother Liu will permit me to say so, by an extensive booklist with which he helpfully provided them in the course of the hearing - took us through various textbooks on Chinese custom and customary rights. But nothing in those books provide a sound basis for saying that what appears to have happened in the present case constitutes a return by the respondent to his original family.

16. Accordingly, the appeal failed.

Liu, J.A.:

17. The plaintiff and the defendant are half brothers, sharing the same mother Madam Lo Ma Ko-kiu. In 1930 Madam Lo married Chim Tin-yeung of Chim Uk Village, near Tai Po, New Territories. Chim died in or about 1944. About a year later, Madam Lo married Tang Sek-fuk of Po Sum Pai Village, also near Tai Po. Tang died in 1955. The defendant was fathered by Chim and the plaintiff Tang. It is now agreed on all hands that the defendant was instantly adopted by Tang upon his mother's remarriage and that he became an informally adopted son of Tang. The defendant thereupon assumed the surname of Tang, that of his adoptive father. As it will be seen, the change of surname was out of the ordinary. The issue before Rogers, J was whether the defendant had permanently left the Tang family. The judge found that the defendant had not and was still a member of the Tang family. The plaintiff felt aggrieved by the determination of the judge, from which he appealed. We dismissed the appeal at the conclusion of counsel's submissions, and these are my reasons for dismissing the appeal.

18. There were a great many collateral issues, including a submission of proprietary estoppel. The defendant has throughout maintained that he was a member of the Tang family and that he built on Tang land in 1975 in his capacity of a member of the Tangs. Proprietary estoppel would not arise unless one builds on land believing it to be his own and the true owner, perceiving the mistake, stands by. That was not the situation in this case. Of the defendant's encounters with the Chim family, no evidence was led as to what and how much was known to the Tang family at the time when the houses were being constructed. When that piece of Tang land was divided between the plaintiff and the defendant for the houses to be erected in 1973, the defendant's portion was immediately registered in his name. The division and registration were openly known to the Tang clan. No one including the plaintiff had, prior to these proceedings, claimed that the defendant was then building on land other than his own. How is it that the plaintiff can be said to have stood by as an owner of the land upon which the defendant's house was erected? As for the defendant, is it seriously arguable that he could have then realised the severing of tie with the Tang family as a possible consequence of his succession to and acceptance of Chim family property? Evidently, the defendant had not intended or consciously evinced any intention to leave the Tang family otherwise he would not be claiming to be a Tang member to-day. On the scenario then prevailing, where the plaintiff believed the defendant to be the land owner and the defendant believed himself to be a member of the Tang family, there was no room for running "proprietary estoppel" before the judge.

19. The parties have brought into sharp focus the defendant's alleged return to his own family, the Chim's and it is quite unnecessary for this Court to be concerned with the other peripheral issues.

20. The plaintiff's case is that by accepting divisions of property from the Chim family, by changing his surname back to Chim for such acceptances and by donating ￡ 100 towards the rebuilding of the Chim ancestral hall, the defendant had evinced an intention to and did permanently leave the Tang family and returned to the Chim family. The consequence of this is that the defendant will not be entitled to share in the division of his adoptive father's estate, worth several million dollars. That is all to it. Money turns one of the half brothers against the other of them.

21. I need set out merely the major events:

(1) on 12 January 1955, the defendant's uncle for himself and as trustee for the defendant succeeded to the property of the defendant's grandfather on the Chim side;

(2) on 21 December 1959, the defendant and another member of the Chim family succeeded to the property of his uncle on the Chim side;

(3) on 11 December 1984, the defendant made a statutory declaration verifying his various aliases under the surname of Chim;

(4) in the late 80's, the defendant contributed ￡ 100 to the rebuilding of the Chim family ancestral hall in Chim Uk Village;

(5) on 13 July 1992 the defendant was a party to the sale of some Chim land to Panwealth Limited for $1.7 m.;

(6) on 20 May 1993 the defendant was again a party to another sale of Chim land to Treasure Sport Limited for $700000;

(7) from the sales of Chim lands the defendant was given $200,000.

22. The defendant explained before the judge that his involvement in the Chim succession documents and in the Chim's land sales documents were merely to oblige, in official papers, relatives of his former Chim family to whom Madam Lo had returned the Chim land title deeds, that the $200,000 was to cover his expenses and that the ￡ 100 was given as a charitable donation.

23. The defendant changed his surname to Tang after he was accepted as an informal adopted son, "i-tze". Counsel for the defendant leant heavily on the following activities as evidence of his tie with the Tang family:

(1) On 8 January 1954, the plaintiff and the defendant with their mother at trustee succeeded to Tang properties;

(2) on 16 December 1958, together with their uncle, the plaintiff and the defendant with their mother as trustee succeeded to another Tang property;

(3) on 2 July 1959, the defendant and his mother surrendered part of the land belonging to a Tang uncle, i.e. Lot 743B in DD 23;

(4) on 8 July 1963, the plaintiff and the defendant with their mother as trustee surrendered Tang land to the Crown ;

(5) on 17 January 1967, the plaintiff and the defendant with their mother as trustee succeeded to the property of the defendant's adoptive father;

(6) on 21 September 1973 the plaintiff and the defendant who was represented by his mother on a Power of Attorney agreed to divide Lot 743 Section A in DD 23, a Tang property;

(7) on 26 November 1973, the defendant through his mother accepted a licence from the Crown to his portion of divided Tang land;

(8) on 2 May 1975, houses were completed at the expense of the defendant allegedly in the region of ￡ 13,000 on the respective portions of the divided Lot No. 743 section A;

(9) on 21 September 1975, the defendant granted a Power of Attorney to his mother in respect to Subsection 1 of Section A of Lot No. 743, his divided portion of the Tang land;

(10) on 14 October 1988 the defendant granted another Power of Attorney to his mother for receiving compensation from Government in respect of a Tang property.

24. The concept of tie under a common ancestor through male descendants was the corner-stone of family life in the T'sing dynasty. See p. 4 G Jamieson on Chinese Family and Commercial Law. All "fruit of labour" would go into the family headed by the Chia Chang, (head of the family) who was in charge. See p 538 and p 540 of Chinese Customary Law in the light of Japanese Scholarship by Henry Mcaleavy. As an introduction, I should repeat what is at pp 545 and 546:

"The general rule was that the fruit of the labour of all family members, whether they worked at home on the family land, or earned money from jobs outside the home, had to be put into the common fund from which the family supported itself and which, on partition was divided among those entitled. To this rule there were certain exceptions. A statue of the Tang dynasty provided by necessary implication that land granted by the states to junior members of a family as a reward for distinguished government service should not become family property for the purpose of partition, and some centuries later another statute, found in a legal work of the Mogol dynasty, but probably dating from the Chin dynasty, makes a similar rule for all official stipend whether civil or military."

25. The closely knit relationship of a family unit was the fabric of the Chinese society.

26. At p. 27 Jamieson said of the position of an "i-tze" as follows:

"Such relations are not within the agnatic group and are incapable of being legally adopted as family successor. The tie is not binding and may be dissolved by (sic) will, but if it continues up to the death of the adopter the child, if a male will become entitled to some share on division of the family property. How much is not stated, the amount if presumably left to the adopter or the Elders of the family to be settled proportionately to the regard entertained towards the recipient."

At p. 28 the following passage appears:

"The stranger by informal adoption, though he cannot succeed nor change his name, yet must cast in his lot so to speak with the new family if he will take a share in the family property. He cannot wait until his share accrues, and then take it away with him to his original family. If he will go back, he must leave all he got behind him. It need not, however, apparently debar him from accepting a share in the division of his natural Father's estate, provided he will wait till that event takes place. What is meant is that the share from his adoptive Father must not fall into the general estate of his natural Father for redistribution."

27. There was no expert evidence led on this point at the trial and Mr Wong, leading Counsel for the plaintiff/appellant had to be content with this passage. It was conceded that as an "i-tze" the defendant could not really change his surname and that the capricious switch of surnames, Tang to Chim and Chim to Tang, for a variety of purposes could not be telling, but it was submitted on behalf of the plaintiff that changing the defendant's surname from Tang to Chim for accepting divisions of the Chim property carried the connotation of a desire to sever family tie with the Tangs. Leading counsel was unable to be more specific and no authoritative statements of any kind were submitted for our consideration.

28. It was further argued by Mr Wong that in T'sing law, the exclusivity of a family unit under the concept of "Tsung" was deeply rooted and that this concept would disallow any fusion of properties from two or more families. Mr Wong further submitted that the ancestral hall, housing the ancestral tablets which were regarded as sacred, could not be repaired or rebuilt by contributions from persons other than members of the same family. See p. 143 of Chinese Law and Custom in Hong Kong Committee Report 1948 for ancestral tablets. However, the passage at pp 28 & 29, when most favourably read, may be taken as laying down the principles that if an informally adopted son severs his family tie with the adoptive family and returns to his original family, he must leave behind all the property he had been given by the adoptive family and that on his return he would not necessarily be prevented from taking a share in the property division of his original family. The passage does not go far enough to support the proposition that a man informally adopted by another family is not permitted to accept a share of his natural father's estate during the subsistence of his adoption or that if he did so wrongfully, he would be instantly regarded as having left his adoptive family. Nor would the passage enable us to conclude with reasonable confidence that in order to be able to accept a share in the land division of his original family, an informal adopted son must first elect to leave his adoptive family or that by accepting a division of property from his original family, he must have intended to leave his adoptive family and should be regarded as having done so. Also, no material was placed before us in support of counsel's submission that a contributor to the rebuilding cost of an ancestral hall must himself be a member of or must have elected to return to the family to which that ancestral hall belonged. There is a ring of logic in these propositions of Mr Wong, but that would not be enough. I was more receptive to his propositions than the other members of this court, but in the final analysis we were unable to pronounce on T'sing law without reliable supporting material or expert evidence.

29. The judge accepted the explanations of the defendant and found for him primarily on credibility. The appellant failed to persuade us that the judge had not properly interpreted the defendant's acceptance of shares in the divisions of property by his original Chim family or his contribution to the rebuilding costs of the Chim ancestral hall. For all these reasons, we could find no justification for faulting the findings of the judge. Consequently, this appeal was dismissed with costs to the respondent.

P Chan J:

30. I agree entirely with the reasons given by Liu JA.

31. The Appellant's main case as pleaded in the Amended Statement of Claim was that the Respondent was not an adopted son of the deceased Mr Tang Shek Fuk and never treated as such by him and was therefore not entitled to any share in the deceased's estate. Li 4 to section 78 of the Ta Ching Lu Li was merely set out in Paragraph 13 as one of the particulars of the Chinese Law relied on without specifying the extent of such reliance. In Paragraph 5 of the Reply, the Appellant again "relies on Li 4 to section 78 of the Tsing Code by which an adopted son who retains his original surname and returns to his original family (at any time) may not retain any share of property that he has received from his adopted family". No particulars were however pleaded.

32. At the trial, the issue of the Respondent's return to the Chim family was not fully canvassed, partly, I think, because of the state of the pleadings. The trial judge, having come to the conclusion that the Respondent was an informally adopted son and had been treated as such by the deceased, went on to hold that on the evidence adduced before him the Appellant had failed to show that the Respondent had returned to his natural family.

33. In the light of all this, it is unfortunate that the main argument on appeal put forward by leading counsel (who did not have conduct of the trial) turned on the important question of what is the meaning of "returning to his family" in Li 4 and whether the Respondent had returned to the Chim family.

34. There is nothing in the Ta Ching Lu Li on what constitutes "return to a family". The Appellant's expert opinion gave no assistance. Nor are there any decided cases or textbooks directly on this point. In my view, whatever it means, there must be a clear, voluntary and unequivocal abandonment of the rights and obligations accrued in relation to one family and the resumption of the rights and obligations which entail in relation to the other family. From the evidence adduced, it cannot be said that the Respondent had clearly, voluntarily and unequivocally abandoned the rights and obligations which had accrued to him as a member of the Tang family and had resumed the rights and obligations of a member of the Chim family.

35. The Respondent was, as the trial judge had found, treated by the deceased as his son and had changed his surname to that of Tang. Under Chinese Law and custom, a new surname should not be assumed by an informally adopted child. In any event, it was due to force of circumstances that from time to time he had to use the surname of Chim. This cannot be held against him as clear evidence of his return to the Chim family.

36. The succession or acquisition of the Chim properties in 1955 and 1959 could not amount to a return either. The Respondent was born of a Mr Chim and there was nothing he could do about it. There can be no choice of one's own natural father. When his uncle saw fit to register the Chim properties in his name, he might not be in a position to fully appreciate the significance of that. As I understand it, what leading counsel sought to argue as constituting a return to the Chim family was not the registration of the Chim properties into the Respondent's name, but the sale of the properties in 1992 and 1993 coupled with the receipt of part of the proceeds of sale. He submitted that this was a receipt of benefits arising from the succession to those properties and was therefore a clear indication of a return to the Chim family. The evidence showed that the Respondent only received $200,000 of the total of over $1.7 million proceeds when his share would be at least one third if not one half. In my view, the evidence falls far short of showing a clear intention on the part of the Respondent to unequivocally abandon the rights and obligations accrued to him as a member of the Tang family and to resume the rights and obligations arising from returning to the Chim family. There is nothing to prohibit him as a member of the Tang family from acquiring properties from the Chim family. The Tangs cannot have any valid complaint that he brings other properties into the family.

37. With regard to the Respondent's payment of one hundred pounds towards the ancestral hall of the Chim clan, I accept that according to Chinese customs, the clansmen would not have solicited or even accepted contributions from a person whom they did not consider as a member of the same clan and that a outsider would not normally contribute towards the construction of the ancestral hall. It might therefore seem reasonable for the Respondent's clansmen to ask him to make a donation or contribution because they still regarded him to be a Chim. But to the Respondent, it might be just a request for donation which he, who had no doubt his origin in the Chim clan, could not refuse. This point was not pursued at the trial. There is no evidence on whether it was an obligation to make a contribution and if so, how much each clansman was supposed to pay. I do not think it is fair to decide on this issue based on such scanty evidence. In the circumstances of this case, this donation cannot be positive evidence of his return to the Chim family.