LILY CHEUNG v. CHEUNG WAI KWOK AND ANOTHER

CACV 154/2015
CACV 156/2015
(Heard together)

[2018] HKCA 9

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 154 OF 2015

CIVIL APPEAL NO. 156 OF 2015

(ON APPEAL FROM HCAP NO. 3 OF 2008)

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(Heard Together)

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REASONS FOR JUDGMENT

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Hon Cheung CJHC:

1.  I agree with the Reasons for Judgment of Yuen JA.

Hon Lam VP:

2.  I agree with the Reasons for Judgment of Yuen JA.

Hon Yuen JA:

3.  CACV154/2015 and CACV156/2015 are appeals from a Judgment of Deputy High Court Judge Simon Leung (“the judge”) given on 3 June 2015 (“the Judgment”) in HCAP3/2008.

4.  The appeals arose from rival claims to the grant of administration of the estate of Madam Luk Kim Ying陸劍英 (“the Deceased”) who died intestate in Hong Kong on 15 March 2006 aged 91[1]. She had suffered a stroke in July 2001 and was diagnosed with dementia.

5.  The claimants were:

(1)   the plaintiff Lily Cheung (“LC”), who claimed that in 1951 “soon after her birth”[2] she was adopted in Hong Kong by the Deceased, who was then a single woman[3];

(2)   the 1^st defendant Cheung Wai Kwok (“CWK”), who claimed[4] that in 1949, he and the Deceased were married in Shanghai, which marriage subsisted until her death; he has become mentally incapacitated[5] and on 6 February 2014 the judge appointed the 2^nd defendant his guardian ad litem[6];

(3)   the 2^nd defendant Luk Tung Mei (“LTM”), who claimed[7] that in 1978‑1979[8], the Deceased (her father’s younger sister) adopted her in the PRC, which adoption was certified by a Notarial Certificate dated 27 April 1984 issued by the Notarial Department of Nan Tung County, Jiangsu Province[9].

LC’s position regarding the other parties’ claims

6.  LC challenged both CWK’s claim that he was the Deceased’s surviving spouse, as well as LTM’s claim that she was the Deceased’s adopted daughter.

CWK’s and LTM’s position regarding the other parties’ claims

7.  CWK and LTM challenged LC’s claim that she was the Deceased’s adopted daughter, but as between themselves,

-   CWK averred[10] that LTM was the Deceased’s adopted daughter, and

-   LTM admitted[11] that CWK was the Deceased’s lawful husband, and that her right to apply for administration was subject to his priority[12].

The judge’s Judgment

8.  For reasons set out in his Judgment, the judge dismissed LC’s claim as well as CWK’s claim, and gave an order declaring that LTM was the Deceased’s lawfully adopted daughter.  There was no order as such that LTM be granted letters of administration of the Deceased’s estate, but that was the obvious consequence of the Judgment.

9.  Both CWK and LC appealed.  Respondents Notices were also filed by all parties.  The main thrust of these appeals may be summarized as follows.

CACV154/2014

10.  In CWK’s appeal, his counsel Mr Andy Hung[13] submitted that in dismissing CWK’s claim, the judge had “wrongly evaluated the evidence” (including certain pieces of contemporaneous evidence) relating to two “key issues” relevant to the determination of CWK’s status, being:

(i)   the marriage of the Deceased and CWK; and

(ii)   CWK’s status as lawful spouse of the Deceased.

CACV156/2014

11.1.   In LC’s appeal, LC sought an order that she be declared the Deceased’s adopted daughter, as well as an order that LTM’s claim to administration as the Deceased’s adopted daughter be dismissed.

11.2.   Her counsel Mr Hectar Pun SC[14] submitted:

-   regarding LC’s claim,

that the judge had found as a fact that the adoption did take place, and that it was in accordance with Chinese custom, but had wrongly held that LC was not the Deceased’s adopted daughter for the purpose of s.2(2) of the Intestates Estates Ordinance cap.73 (“IEO”) as the judge had misunderstood the law when he held that the consequence of LC having been made a ward of the Secretary for Chinese Affairs (“the Secretary”) in 1956 under the Protection of Women and Juveniles Ordinance 1951[15] (“PWJO”) was that the adoption relationship was terminated;

-   regarding LTM’s claim,

that as the judge had found that LTM had continued to reside with and be cared for by her natural parents between the time of the alleged adoption (1978) and the time she came to Hong Kong (1986), this meant that LTM’s natural parents had not relinquished all their parental rights and obligations over her, and accordingly one of the elements of Mainland Chinese law for a de facto adoption — that the natural parents’ rights and obligations are discharged — was not satisfied.

LC’s appeal

12.  This court considered LC’s appeal first, because if she failed to establish that she was the Deceased’s adopted daughter, she would have no locus standi to participate in CWK’s appeal.  Both counsel had no objection to this course.

13.  The issues in LC’s appeal regarding her own claim were:

(i)   what were the judge’s findings on her claim that she had been adopted by the Deceased under Chinese custom?

(ii)   was the judge right to find that any adoption had been terminated by the wardship under the PWJO?

(i) The judge’s findings on LC’s claim of Chinese customary adoption by the Deceased

14.  To understand the judge’s conclusion on this issue, it is helpful to first set out some factual allegations.

15.  LC’s case was that on 5 April 1951, she was born at the Hong Kong Sanatorium and Hospital[16].  She produced an original document  (“the birth certificate”) which certified that on 5 April 1951 an unnamed female child was born at that hospital to Lau Kai Hau[17] and Li So Wah[18], whose birth was registered on 9 April 1951 under serial No.4848NR.  It should be noted that this copy certificate was dated 19 November 1951.

16.1.   LC alleged in her 1^st Witness Statement that “soon after” her birth[19], her natural father “handed [her] over” to the Deceased in a Shanghai restaurant in Hong Kong for adoption, and “gave my birth certificate to her for safekeeping”[20], and that the Deceased gave a red envelope[21] to her natural father in the presence of one of the Deceased’s friends[22] who attended the dinner.  It was LC’s case that this constituted an “informal and customary” adoption.  LC claimed that the Deceased had told her about this occasion, and gave her the birth certificate, when she was 16 years old (ie in 1967).

16.2.   However when she gave evidence at trial, LC retracted the allegation in her 1^st Witness Statement that her natural father had given the birth certificate to the Deceased on the same occasion when she (LC) was handed over.  She now said that the birth certificate was given to the Deceased “a few months later”[23].  However LC did not explain why, if it was the Deceased herself who had told her as long ago as 1967 that the birth certificate was handed over on the sameoccasion, she (LC) changed her case at the start of trial[24], to say that the birth certificate was handed over “a few months later”.  The Witness Statement had been interpreted to her by her solicitor and she did not allege there was a clerical error.  However when she changed the date in her evidence at trial, she did not disclose any new source of information for the new date alleged[25].

16.3.   As a matter of fact, it is clear from the face of the birth certificate that this document came into existence only on 19 November 1951 (more than 7 months after the birth), and so it could not have been given to the Deceased on the same occasion when LC was handed over (only several weeks after birth). This obviously diminished the reliability of her evidence as to what the Deceased had allegedly told her in 1967.

17.1.   Returning to the narrative of events, LC said that when she was 5 years old[26], she was “handed over” to Mr Cheung Wing Tak (“Cheung WT”)[27] for “wardship and care”.  In her 1^st Witness Statement she said that was because the Deceased was “very busy with her work”[28].  She produced an Identification Ticket issued under the PWJO (“the identification ticket”), which stated:

“Name of Custodian	Cheung Wing Tak 張永德
Name of Ward	Lily Lee aka Lily Cheung 張莉莉
Serial No.	3CA72/603/54.”

17.2.   In relation to her surname, LC alleged in her 1^st Witness Statement that “[the Deceased] ... did not give me any explanation in relation to her then marital status in 1951, and why I was given the surname of ‘Cheung’.  As I was warded to Mr Cheung Wing Tak[29] a few years after my adoption, I was under the belief that my surname of ‘Cheung’ was given to me by Cheung Wing Tak.  Since it was disclosed by [CWK] by his affirmation dated 3^rd April 2006 ... that [the Deceased] was married to him in 1949 in Shanghai, China, and their relation as husband and wife might still subsisted in 1951, I believe this was the reason why [the Deceased] provided me the surname of ‘Cheung’”.

17.3.   However the last sentence — that it was the Deceased who gave her the surname “Cheung” — was subsequently retracted.  In LC’s 2^nd Witness Statement, she said that it was Cheung WT who had given her the surname “Cheung”[30] with the consent and approval of the Deceased.  LC said this new belief came about from Cheung WT’s application on 9 December 1960 under the Registration of Persons Ordinance to register her as his dependant, where he had declared that he was her father[31].  However as this application was made some 4 years after LC had been put into Cheung WT’s custody, it does not support her allegation that the Deceased had given “consent and approval” for Cheung WT to change her surname to “Cheung” back in 1956.

17.4.   Be that as it may, apart from the point that LC’s case at trial was that she acquired her surname from Cheung WT (and not from CWK), the interesting point raised by the identification ticket is that her original name was shown as “Lily Lee”.  When cross‑examined at trial, LC said the Deceased had given her the name “Lily” but she could not proffer any evidence to explain why her surname was “Lee”[32].

17.5.   The notable point from this piece of contemporaneous, official, documentary evidence is that even if the Deceased had given LC the name “Lily”, she had not given LC her own surname of “Luk”.

17.6.   In Mr Pun’s submissions before us, he did not seek to argue that this was not a relevant point[33]. His argument was simply that LC had not been specifically cross‑examined on it.  But with respect, this was a document adduced in evidence by LC, and she was in fact cross‑examined on the name.  As noted above, her evidence was only that the Deceased gave her the name “Lily” but she proffered no evidence as to why she had the surname “Lee” (and not the surname of her allegedly adoptive mother “Luk”).

18.  Returning to the narrative, LC alleged that in 1970, her natural parents came to Hong Kong from Singapore for a “family (re)union” together with their son.  According to her, “in the meeting, my natural brother Lau Man Sum, Raymond (“Raymond Lau”) was also present together with [the Deceased] and my natural parents for mutual recognitions”[34].  She did not expand, either in her Witness Statements or at trial, on what relationships were “mutually recognized”.  It is interesting that no letters passing between Raymond Lau’s parents and LC for the period from 1970 to 1987 (when Raymond Lau’s mother died, his father having died in 1976) were produced in support of the alleged adoption.

19.1.   In 1989, LC wished to apply for a BDTC passport which was available to Hong Kong born persons.  Until then she had reported to the authorities that she had been born in Shanghai on 12 February 1953 and those were the personal particulars stated in her travel documents.

19.2.   She signed the 1989 Letter to the Immigration Department in support of her application for approval of her “status” as a Hong Kong born citizen.  The letter included the following contents:

(a)   she referred to Lau Kai Hau as her “first father”, Cheung WT as her “second father”, and Li So Wah as her “mother”.  The Deceased was referred to only as “madam Luk” who was “not my true mother”.  It is notable that the Deceased was not referred to as LC’s “second mother” or “adoptive mother”;

(b)   “As Lau family intended not to raise me, and gave me to their friend madam Luk [the Deceased]”;

(c)   “I have been raised by madam Luk until I was 5 years old.  And madam Luk said she was having financial difficulties and passed me to her friend the Cheung family”;

(d)   “Until 19 June 1989 I visited madam Luk again and asked her to re‑confirm of what actual happened, of my status.  Madam Luk told me that she paid HK$5,000 to my first father and took me from him, after I was borned only several weeks”.

19.3.   It is notable that even though this letter had been written well after 1967 when she had been allegedly told by the Deceased of the adoption ceremony, and after 1970 when the “family reunion” allegedly took place, there was no mention of an adoption.

20.  I shall discuss the judge’s assessment of LC’s evidence later[35].

21.1.   It is pertinent here to consider Raymond Lau’s evidence as it is relevant to LC’s case of adoption.

21.2.   Raymond Lau had given a Statutory Declaration (“SD”) in 1989[36], a Witness Statement in the probate action in 2009 and was cross‑examined at trial.  His evidence may be summarized as follows.

21.3.   Raymond Lau said in cross-examination that the first time he heard that a female child had been born to his parents in 1951 was in 1970[37] at the “family reunion” (when he was told by LC[38]), even though in 1951, he was living in Hong Kong and was already 8 years old[39].

21.4.   Be that as it may, in the SD, Raymond Lau said that he had been told by his parents that the female child born to them had been “handed over” to the Deceased “for raising”[40].  He said at trial however that it was only his mother who had told him that, and that was when he himself was between 10 and 20 years old[41]. As he was born in 1943, that would put the time frame as somewhere between 1953 and 1963, and not as late as the “family reunion” in 1970.

21.5.   More importantly, in the SD there was no reference to an adoption.  In the Witness Statement however, he added that his parents “further informed me that in fact [the Deceased] adopted my sister as her child by the prevailing customary means which was commonly used in Hong Kong at the time”[42].  However when he was cross examined on this[43], he accepted that in fact he had never heard anything from his parents about any ceremony, or passing of money for the child, or what had been said on the alleged occasion of adoption.

21.6.   It may also be noted that in his SD, he had said “after my sister was raised by [the Deceased] for a few years, my sister was handed over by [the Deceased] to Mr Cheung Wing Tak for wardship.  My sister was given the name of Lily Cheung by Mr Cheung”[44].  In court he admitted he had only been told this by LC[45].

21.7.   The points above diminish the reliability of Raymond Lau’s hearsay statements regarding the alleged adoption, and it is not surprising that the judge referred to his evidence only in terms of what his mother “allegedly”[46] told him.  In other words, the judge did not find as a fact that Raymond Lau’s mother had told him anything about an adoption.

21.8.   Finally Raymond Lau also said in the SD[47] and the Witness Statement[48] that in1970 his parents came to Hong Kong for a family reunion and that at the meeting, LC and the Deceased were present.  The same allegation had appeared in LC’s Witness Statement.

21.9.   However in his testimony in court he said his father had come to Hong Kong before his mother, and that at the meeting, only his father was present.  There was no explanation for the discrepancy, between LC’s evidence and his evidence, over what should have been a memorable event for both[49]. Again this diminishes the reliability of his evidence.

22.1.   The other witness LC called in support of her case of adoption was Madam Cheng Ding Ding.  She was the Deceased’s 契女[50] and the niece of the woman who (on LC’s case of what the Deceased had told her) was present on the occasion when she (LC) was handed over to the Deceased.

22.2.   Under cross‑examination Madam Cheng admitted that she did not know much about the Deceased’s private affairs[51], and that the Deceased had in fact never told her that LC was her adopted daughter[52], and all she could say was that the Deceased treated LC as if she were her natural daughter[53]. She had merely surmised, from her own mother’s instructions to her not to taunt LC for not having a father or mother, that LC was adopted[54].  In light of this, Madam Cheng’s evidence was of hardly any assistance to LC’s case.

23.  It was against the backdrop of the above state of evidence that the judge decided the 3 issues:

(1)   whether the alleged adoption took place (§§32‑51, Judgment);

(2)   whether such adoption accorded with Chinese law and custom (§§52‑60);

(3)   the effect of LC having been made a ward of the Secretary (§§61‑71);

before reaching his conclusion (§72) that:

“Considering the evidence as a whole, I do not find that [LC] is the adopted daughter of the Deceased for the purpose of section 2(2) of the IEO; or alternatively she cannot claim to be such since the Deceased gave her away to Cheung WT in 1956”.

24.1.   Mr Pun submitted before this court that the judge had found as a fact at §51 of the Judgment that the adoption of LC did take place, and at §60 that it did accord with Chinese custom.  He sought to rely on certain passages in these paragraphs, but it is important that those passages be considered as a whole and in context.

24.2.   Having set out the evidence on the alleged adoption, the judge said:

“51. What do all these leave us with? There is [LC’s] assertion of what, if accepted, would be hearsay about the adoption ceremony. The evidence in respect of the ceremony is flimsy. The only objective fact at the relevant time was the passing of the birth certificate of [LC] by her natural parents to the Deceased and the lack of suggestion or evidence that [LC] and her natural parents had maintained contact since”. (Emphasis added).

25.  In my view, the passages emphasized above confirm that the judge, after having:

-   discounted the hearsay evidence of Raymond Lau and Cheng Ding Ding (§33),

-   commented that LC’s reliance on Raymond Lau’s SD, and her evidence regarding her 1989 Letter and her declaration in 1991 were “not at all straightforward” (§37),

-   commented that LC’s evidence regarding the date of the Deceased’s disclosure of her adoption was “uncertain” (§38),

-   found that LC had given inconsistent reasons for her being taken into Cheung WT’s care (§39),

-   found LC’s explanation for admittedly untrue statements in the 1989 Letter was “wholly incredible” (§41),

-   found the corroborative value of those documents “not as high as [LC] would have wanted” (§41),

-   noted that none of the documents mentioned anything about any adoption ceremony (§42), nor did Raymond Lau or Cheng Ding Ding (§43),

-   found it would be dangerous to place any weight on the evidence of another witness who used to support LC, viz Hai Tse Yan (§50),

arrived at the conclusion (set out at §51) that the only facts proved were the passing of the birth certificate and the lack of maintenance of contact with the natural parents.

26.  Contrary to Mr Pun’s submission, the judge did not say he accepted LC’s evidence of the adoption ceremony.  On the contrary he said “I have doubt about [LC’s] credibility, including that of her evidence in respect of what the Deceased allegedly told her all of a sudden in 1967”[55]. What the Deceased allegedly told LC all of a sudden in 1967 was the alleged adoption ceremony.  Thus in §51, the judge had pointedly said that even “if accepted”, that evidence would only be hearsay.  And by referring to the evidence as “flimsy”, clearly the judge did not consider it had adequate weight.

27.  The judge found only two pieces of objective evidence — the passing of the birth certificate and the lack of contact with the natural parents.  In other words, the judge not having been satisfied with the weight of the evidence that an adoption ceremony had taken place as a matter of fact, the only accepted evidence on which the judge determined the issue whether there had been an adoption in accordance with Chinese custom were those two pieces of evidence.

28.  In my view the judge was entitled to approach the matter in that way.  In all cases,

(1)   the court must first see, from the evidence before it, whether it could determine what were the acts done by the parties, and

(2)   if the court is able to determine from the evidence what were the acts done by the parties, then it would see if it could ascertain whether the parties did those acts as a ceremony evidencing an intention to adopt.

29.  Regarding (1), if there is insufficient evidence of adequate weight for the court to determine what (if anything) in fact happened, then a court must find that the party with the burden of proof has failed to prove his assertion.  It sometimes happens, particularly when parties live in times of social tumult, that documents are missing, and with the passage of time, elderly witnesses may pass away or become mentally incapacitated.  Of course a court cannot expect every “i” to be dotted and every “t” to be crossed by a party collecting evidence to build up a case, but at the same time, the court must decide a case on the evidence presented to it, and if it is insufficient, there the loss must lie.

30.  Given the judge’s view that he was not satisfied on the evidence that an adoption ceremony had taken place, and the only pieces of factual evidence were the passing of the birth certificate and the lack of contact with the natural parents, the issue whether there had been an adoption which accorded with Chinese custom became more or less academic even on LC’s own expert evidence, as will be seen below.

31.  The judge adopted the approach taken by Recorder Coleman SC in Mok Hing Chung v Wong Kwong Yiu[56] as follows:

“118. The labels of ‘formal adoption’ and ‘informal adoption’ are perhaps not necessarily the most helpful, and I see force in a more proper and accurate distinction between ‘ritual adoption’ and ‘simple adoption’. Whatever the label, whether the necessary characteristics of adoption have been made out depends upon the evidence in any individual case.

119. I accept the submission that the question of whether or not a person is adopted in accordance with Chinese law and custom before 1 January 1973 is not to be answered by reference to whether that person could or would have become the legal successor to the family line, or could or would have inherited family property under Chinese law and custom. Rather, it is necessary to decide the status of adoption or not, leaving any question of inheritance to be determined in accordance with Hong Kong law and statute”.

32.  With respect I endorse these passages, adding only the following comment regarding (2), the intention of the parties[57]. When the court considers how acts done evince the intention of the parties doing those acts, it is obvious that the more formal or ritualistic the acts done (eg kowtowing before ancestral tablets), the more likely it would be for the court to find that the parties had the solemn intention to contract a permanent new status or relationship.  However other acts which were less formal may be equivocal, and therefore a court would be less able to ascertain from those acts alone what the parties were intending at the time.

33.1.   In the present case, Professor Baker, LC’s expert witness, said this in his Opinion:

“8. In Hong Kong before the Adoption Ordinance of 1972, the basic requirements for a valid Chinese customary adoption ceremony seem to have been that the adoptee should kowtow to the ancestors of the adoptive family, that the adoptee should offer tea to the adoptive parents, and that the ceremony and some form of banquet should be open to public view.

9. From the documents I have seen[58], the adoption ceremony for Lily Cheung was indeed held with a meal in a public place (a Chinese restaurant in Hong Kong), and the natural father of the adoptee was present and openly handed over the birth certificate to Madam LUK in the presence of Madam CHENG Deep Chau (鄭蝶秋) as witness. There is no mention of any written instrument other than the birth certificate, though the adoption took place in the same year as the adoptee’s birth and so could escape this condition. Similarly there is no mention of any form of serving of tea, and while the adoptee was too young to undertake such an activity herself, it would have been possible for her to be carried through the motions of doing so. The same applies to ancestor worship, but I think it most unlikely that a lone woman in Madam LUK’s position would be custodian of ancestral tablets in front of which worship could take place. In short, the ceremony of adoption of Lily CHEUNG was skimped and therefore less than ideal, but I doubt whether many adoptions of girls at that time would have punctiliously observed all (or indeed any) of the niceties customary in the adoption of boys”. (Emphasis added).

33.2.   The words emphasized above show that even on Professor Baker’s opinion, a ceremony is necessary[59].

33.3.   This was consistent with his evidence at trial.  Counsel referred him to LC’s new case at trial that the birth certificate had been handed over later, and not at the restaurant[60].  He was asked whether that would change his opinion.  His answer was as follow[61]:

“It still seemed to me that they held a meeting in a restaurant in a public situation and it was in front of some other witnesses. Again this was all hearsay ...

... but as far as I could tell from that evidence, if that was correct, then I would be happy that ...

... adoption had taken place”.

34.  In other words, the essential requirement was that a ceremony had to have taken place as a matter of fact (and not merely the two objective facts proved, viz. the handing over of the birth certificate and lack of maintenance of contact with the natural parents).  As noted above[62], the judge was not satisfied on the evidence that the ceremony had taken place. Consequently he said in his conclusion of her case[63]:

“Considering the evidence as a whole, I do not find that Lily is the adopted daughter of the Deceased for the purpose of section 2(2) of the IEO; or alternatively, she cannot claim to be such since the Deceased gave her away to Cheung WT in 1956”. (Emphasis added).

35.  Mr Pun sought to argue that the judge had found as a fact that the adoption did take place, and that it was in accordance with Chinese custom, but had only found against LC because the judge thought the wardship had terminated the adoption relationship.

36.  With respect, it is clear from the passage from the Judgment quoted above, particularly the words “or alternatively”, that the judge had dismissed LC’s case, not only because of his views on the effect of the wardship, but primarily because on the evidence, he doubted the credibility “of her evidence in respect of what the Deceased allegedly told her all of a sudden in 1967”, ie the alleged ceremony which was the essential requirement.  This is corroborated by the judge saying[64]:

“Even assuming that Lily was handed over by her natural parents to the Deceased in 1951 for raising; and the Deceased raised her as daughter, she was further given away to Cheung WT in 1956 ....This does not sit well with the continuation of adoption relationship between the Deceased and Lily, assuming it existed in 1951”. (Emphasis added).

The emphasised words are of an “assumption” of facts, in contrast with a determination of facts.  They clearly show that the judge had not found as a fact that the adoption relationship existed.

(ii) Was the judge right to find that any adoption had been terminated by the wardship under the PWJO?

37.  Although this issue has become academic, as a matter of completeness I shall discuss Mr Pun’s submission that if LC had been validly adopted by the Deceased, the fact that she had been taken into wardship under the PWJO did not terminate the adoption relationship.  With respect to the judge, I agree with this submission.

38.  By reason of the reference in the identification ticket to LC being a “ward”, it is likely that s.32 of the PWJO applied[65].  Under s.32,

“(1) ... whenever the Secretary ... is satisfied that either of the parents or any person acting in the place of a parent of any female infant has parted or agreed to part with the custody of the girl to some other person either permanently or for any consideration except marriage, the Secretary ... ... may in writing declare that such infant shall be his ward, and upon the making of such declaration the legal guardianship of such infant while in this Colony shall during her infancy vest in the Secretary ...”. (Emphasis added).

39.1.   The judge took the view that if the Deceased had parted with LC’s custody permanently to Cheung WT, that “does not sit well with the continuation of adoption relationship between the Deceased and [LC], assuming it existed in 1951”.

39.2.   With respect, in my view, if LC had been adopted by the Deceased, that relationship did not cease simply because the Deceased parted with her custody permanently to another person.  Whilst a parent normally has custody and guardianship of his minor child, the obverse situation does not follow.  In other words, when a person parts with custody and guardianship of his minor child, it does not mean that he ceases to be his child’s parent.

39.3.   No authority has been cited to the effect that such an abandonment of a child (whether natural or adopted) has the effect of extinguishing the parent-child relationship at law.  The PWJO does not contain any such provision.  On the contrary, s.32(1) specifically provides that the Secretary’s legal guardianship is only for the duration of the child’s minority and while she is in Hong Kong.  But it is clear that a parent-child relationship does not terminate upon a child reaching majority, nor is it specific to any jurisdiction.

40.  As for Chinese customary law, Mr Hung has not referred us to any evidence that supports the conclusion that a permanent parting with the custody of an adopted child terminates the relationship.

41.  For the reasons set out above, I disagree with respect with the judge’s conclusion on this issue. However, as the judge had not found that there had been an adoption in the first place, his error on this issue had no meaningful effect on LC’s case.

42.  On the basis of the reasons set out in §§24‑36 above, I agree with the judge that LC had failed to prove an adoption had taken place or that it had been in accordance with Chinese custom.  Consequently LC has no interest in the Deceased’s estate and no locus standi to appeal against the judge’s order that LTM be granted letters of administration to it.

43.1.   As a matter of completeness however, I would just mention that in any event, it seems to me that the judge was entitled to find that the fact that LTM continued to reside with her natural parents on the mainland while awaiting permission to join the Deceased in Hong Kong did “not disqualify the relationship between the adopting parent and the adopted child from being de facto adoption” according to the law of the Mainland.

43.2.   The experts agreed that one of the elements of de facto adoption was the discharge of the parental rights and obligations of the natural parents.  No doubt in the normal situation, those parental rights and obligations, including residence, would be transferred to the adoptive parents.

43.3.   However in the present case, the Deceased was living in Hong Kong and LC’s expert accepted that LTM had to wait for permission to move to Hong Kong.  Under these circumstances, it was simply impracticable for the Deceased to discharge her parental right and obligation of residing with LTM, and the judge accepted[66] LTM’s evidence that what the Deceased did during those years was to provide for her by payments of money to her natural parents[67]. This accords with common sense.  Otherwise the Deceased would have to pay for board and lodging for LTM, then still a teenager, on her own at a hotel on the Mainland.  It cannot be suggested that the latter arrangement would validate a de facto adoption but the former arrangement would not.

Order on LC’s appeal

44.  For the reasons set out above, LC’s appeal was dismissed.  It followed that it was not necessary to deal with the Respondent’s Notice.  The costs order is set out in §53 below.

CWK’s appeal

45.1.   Before discussing CWK’s appeal, I should record that this court was initially concerned about a conflict of interests arising from LTM’s appointment as CWK’s guardian ad litem.  If CWK’s case failed, not only would LTM be granted letters of administration to the Deceased’s estate, but he would also not benefit from the estate as surviving spouse, and her share would correspondingly increase.

45.2.   However there was no appeal from the judge’s order of appointment[68], and we were satisfied that LTM had shown that she had acted in CWK’s best interests.  In her Amended Defence and Counterclaim, she had pleaded that CWK was the Deceased’s lawful husband[69] and she sought the grant of letters of administration only “if it was held that for his health reason, no letters of administration of the estate should be granted to [CWK]”[70].  It is notable also that CWK had in May 2008, before his mental incapacity[71], averred that LTM was the adopted daughter of the Deceased and accepted that she was a beneficiary and was entitled to share in the Deceased’s estate[72].

46.1.   Having said that, it was remarkable that in the course of submissions, Mr Hung referred for the first time to a person, LTM’s brother (“the brother”), who has apparently claimed that he is the Deceased’s adopted son.  This was a remarkable disclosure because CWK’s case as pleaded was that the Deceased had not adopted LC but had adopted LTM (and by implication, no one else).  In those circumstances, one would have expected that the brother would be at least formally notified of the proceedings as he would have an interest in the Deceased’s estate if he had been validly adopted.  However Mr Hung informed the court that that had not been done.

46.2.   To resolve this problem, the course the court adopted was to first hear Mr Hung’s arguments in CWK’s appeal, and if the court considered that there were no merits whatsoever, the appeal would be dismissed, but if the court considered that there could be some merits in the appeal, the hearing would be adjourned and notice would be given to the brother.  As will be seen below, after hearing Mr Hung, the court did not find it necessary to adjourn the hearing.

46.3.   Be that as it may, we would advise practitioners that more care should be taken to avoid the risk of multiple proceedings (with the possibility of inconsistent findings and waste of court resources) where there are a number of parties who might have a claim to a deceased person’s estate.

47.  Returning now to CWK’s appeal, Mr Hung submitted that in dismissing CWK’s claim, the judge had “wrongly evaluated the evidence” (including certain pieces of contemporaneous evidence) relating to CWK’s claim of (i) marriage to the Deceased and (ii) the maintenance of that relationship until her death.

48.1.   As for (i), Mr Hung relied on an original document dated 18 March 1949[73] referred to at trial and in this Judgment as “the marriage certificate”.  The document did not in fact bear such a title[74], and it did not state the issuing authority, but in the body of the document there is a reference to it being to “prove” or “certify” that CWK and the Deceased had undergone a wedding ceremony at a restaurant in Shanghai on that date.  It was signed only by CWK, but had imprints of the purported seals of the Deceased, two persons presiding over the wedding, two introducers, and three witnesses.  None of these persons was called[75].

48.2.   Mr Hung submitted that the judge found that the validity and contents of the marriage certificate were not questioned by either of the PRC law experts. With respect, that is not correct.  As the judge said[76], the marriage certificate was “under heavy challenge”.

48.3.   The judge drew a distinction between a party’s challenge to the authenticity of a document, and the court’s examination of its contents.  He focused on the latter, and found that the marriage certificate

“is not such a document that on its face suggests that it was issued under the law and with the authority in force in the place of marriage at the time”[77].

48.4.   Moreover, the judge noted that the date of birth (6 November 1921) of the Deceased given in the marriage certificate was different from that (15 November 1915) given by her in Hong Kong official documents.  The judge did not accept that CWK’s hearsay evidence[78] (the Deceased’s lack of education and miscommunication with officials) provided an explanation for the discrepancy, particularly as to the day of birth[79].

49.1.   As for (ii), there was a prison record showing CWK’s personal details and activities over a number of years, apparently ending in 1977.  There are the handwritten words 愛人陸劍瑛 , the first two of which may represent the term for “spouse” followed by the name of the Deceased (although with a different character 瑛 instead of 英 ), together with an address in the estate in which the Deceased lived[80].

49.2.   Mr Hung also relied on an undated photograph of CWK and the Deceased, and CWK’s applications for a Hong Kong identity card in 1979 and a replacement identity card in 1986 in which he gave the Deceased’s name as his spouse.

50.  However there were the following other pieces of evidence (in chronological order) which appeared to be inconsistent with CWK’s case:

-   the Deceased had entered into a Registry marriage in Hong Kong with Chao Cheung Yok in January 1957, and in the certificate the Deceased had declared herself to be a “spinster”[81];

-   the Deceased’s application for a certificate of identity in November 1981 in which she declared she was divorced[82];

-   medical notes kept by a hospital attended by CWK in November 1995 in which he said his wife[83] had died in 1982[84];

-   CWK’s declaration in 1996 to authorities in support of an application (for accommodation as a single person) that his wife had left him for 22 years and they had lost contact[85];

-   CWK’s declaration in 1997 to authorities in support of an application (for social allowance) that his marital status was “single”[86];

-   CWK’s declaration in 2006 to authorities (for a new identity card) that he was a widower.

51.  Given the unanswered question regarding (i) and the inconsistent pieces of evidence regarding (ii) before the court, in my view the judge was clearly entitled to hold that[87]:

“On this basis, there is no way this court could be satisfied on the balance of probabilities that the alleged marriage between him [CWK] and the Deceased existed and continued since 1949 until the demise of the Deceased as a matter of fact”.

Order on CWK’s appeal

52.  Accordingly, CWK’s appeal was also dismissed.  As LC’s appeal had been dismissed, and in any event, it was not necessary to deal with her Respondent’s Notice.  Nor was it necessary to notify LTM’s brother (the alleged adopted son) of the proceedings.

Costs

53.  After hearing submissions, we considered that both appeals having been dismissed, the appropriate costs order was that in CACV154 (CWK’s appeal), the plaintiff (LC) would have her costs with certificate for two counsel, and in CACV156 (LC’s appeal), the defendants (CWK and LTM) would have their costs with certificate for two counsel.