HO WAI YIN AND OTHERS v. CHENG SUET YEE

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

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J U D G M E N T

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1.  This is the plaintiffs' application by summons under O. 14A r. 1 or alternatively O. 33 r. 3, Rules of the High Court (Cap. 4A), for the determination of certain questions set out in the summons. 

2.  Although formulated in a different way, the questions boil down to this: whether the definition of a “child of the adopter” under s. 2(2)(c) of the Intestates' Estates Ordinance (Cap. 73) (“IEO”), which reads:

“For the purposes of this Ordinance, a person adopted under –

...

(c) an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973”,

shall be treated as the child of the adopter, and not as the child of any other person ...

includes only a male heir/successor formally adopted/appointed under Chinese law or custom.

3.  If the answer is “yes”, the case of the defendant in this probate action must fail.  For she is at most, on her own case, an informally adopted daughter (“義女” or “養女” in Chinese) of the deceased involved in this litigation.  As such, she will have no right to administration of or succession to the intestate estate of the deceased.

4.  Superficially this is a question fit for determination under O. 14A r. 1 or O. 33 r. 3, regard having had to authorities like Shell Hong Kong Ltd v. Yeung Wai Man Kiu Yip Co. Ltd (2003) 6 HKCFAR 222, China United Holdings Ltd v. Johnson Stokes & Master [2004] 2 HKLRD 272, Hong Kong Kam Lan Koon Ltd v. Realray Investments Ltd (No. 2) [2005] 1 HKC 565 and Hong Kong Civil Procedure 2006 vol. 1 para. 33/3/1, which discuss general principles pertinent to these provisions in the rules.

5.  However, there is more to the issue than meets the eye.  But in view of the conclusion that I have reached, I will be as brief as possible.

6.  It is reasonably clear that the present s. 2(2) was enacted to replace the original subsection (2) in the IEO by the legislature in 1995, following recommendation of the Law Reform Commission, to remove an “anomaly” in the original provisions.  The original s. 2(2), which reads:

 “References in this Ordinance to a child or issue of any person shall mean –

...

(c)   a child adopted by that person –

(i)  in pursuance of an adoption order made under the Adoption Ordinance; or

(ii) by an adoption to which section 17 of the Adoption Ordinance applies”,

did not include a person adopted under an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973 from the definition of a “child” of a deceased person dying intestate, thus excluding him from any share in the intestate estate of the deceased person.

7.  This was an anomaly because prior to October 1971 when the IEO was enacted (and indeed until s. 25 of the Adoption Ordinance was amended in 1972), such an adoption made in Hong Kong in accordance with Chinese law and custom was a lawful adoption in the eyes of Hong Kong law by reason of the then s. 25 of the Adoption Ordinance (Cap. 290).  Such a person had right of succession to the property of the deceased under Chinese law and custom, which was the governing law of intestate succession in Hong Kong before the enactment of the IEO.

8.  Thus at a stroke, as it were, the right of succession to the intestate estate of a deceased person of such an adopted person under pre-existing law was removed by the IEO, which did not treat the adopted person as a child or issue of the deceased person for intestate succession purposes, although ironically the lawfulness of his adoption continued to be recognised by the then s. 25 and subsequently s. 25(2) of the Adoption Ordinance.

9.  The 1995 amendment of the IEO, it seems reasonably plain, sought to remove the “anomaly” – as it had been called by the Law Reform Commission.

10.  The crucial question for our case is: who is an adopted person under Chinese law and custom?  A male heir/successor formally adopted/appointed to continue the lineage of the deceased person is, it is common ground, within such a description.  He alone maintains the male line and succeeds to the estate (either alone or with others).  The question that divides the parties are whether he is the only person who falls within the description, to the exclusion of people like informally adopted sons or daughters – and the defendant claims that she is an informally adopted daughter of the deceased.

11.  That under Chinese law and custom, there are indeed informally adopted sons and daughters would seem to be common ground (leaving aside the question of how those Chinese terms used to describe such relationships should be translated into English for the time being).  However, the parties (and their experts) are divided on whether they have any entitlement, be it unconditional or discretionary, to the deceased's property under Chinese law and custom.  In particular, the defendant maintains that an informally adopted daughter stands in the same or a similar position to that of a natural daughter in terms of her entitlement to maintenance and dowry (upon marriage).

12.  This is not accepted by the plaintiffs.

13.  This dispute can only be decided after hearing expert evidence.

14.  The importance of this is that in my view – at least for the time being, the question of whether an informally adopted son or daughter, and more particularly, an informally adopted daughter, is entitled (whether as a matter of right or discretion) to a share in the deceased's property (whether for maintenance, dowry or otherwise), has a material bearing on the proper construction of s. 2(2)(c) of the IEO.  It constitutes important legislative background that the Court should find out before it can properly construe the statutory provisions.

15.  If the answer to the question I posed in the preceding paragraph is “no”, the case for construing s. 2(2)(c) as applying only to a mail heir/successor formally adopted/appointed under Chinese law and custom would be strong.  On that assumption, enactment of the IEO in 1971 created no anomaly in the cases of informally adopted sons and daughters and the remedial s. 2(2)(c) does not concern them.

16.  But if the answer is “yes”, a case for including an informally adopted son or daughter under s. 2(2)(c) would be more convincing.  On that basis, an anomaly was created in their case, albeit to a lesser extent, just as in the case of a formally adopted/appointed male heir/successor.  Arguably, it also called for legislative intervention.

17.  As I said, the question I posed cannot be decided on the conflicting expert reports before the Court.  Expert evidence will have to be heard.

18.  This is an important consideration against acceding to the plaintiffs' application for a determination of the construction issue under O. 14A r. 1 or O. 33 r. 3.  This is because Mr Chong, Ms Wong with him, for the plaintiffs, has asked me not only to grant his application, but also to hear and determine the construction issue on the materials presently before the Court at the hearing – without hearing the experts and resolving the disagreements between them.  For that latter purpose, Mr Chong has made submission on the proper construction of the relevant provisions.

19.  For reasons explained above, I do not think the construction issue can be so decided by the Court.

20.  Given the way Mr Chong has asked the Court to proceed with the determination of the construction issue, my view that it cannot be done that way effectively decides the application under O. 14A r. 1 or O. 33 r. 3 against him.

21.  In any event, in the exercise of my undoubted discretion whether under O. 14A r. 1 or O. 33 r. 3, I do not think the construction issue should be determined separate from the determination of the rest of the issues between the parties (at a trial).  I bear in mind the history of the litigation, the stage that it has reached, the time that would be required to fix a date for hearing the construction issue (with the assistance of experts on Chinese law and custom) if I should accede to the application but defer as I must the hearing of the issue to another date to be fixed, the remaining issues between the parties, the most suitable mode of trying the issues, the general rule that all issues should be tried together and not in a piecemeal fashion, and generally questions of time, convenience, practicalities and costs.

22.  In the circumstances, the plaintiffs' application is refused.

23.  The progress of the action has been impeded by this unsuccessful application, which has taken some time to be heard.   The parties are therefore directed to summit a draft directions (agreed if possible) for the further conduct of proceedings for the Court's consideration within 7 days after this judgment is handed down, with a view to progressing the action to trial within a reasonable time from now.

24.  Both sides have agreed that costs should follow the event.  I therefore order that the costs of this application be paid by the plaintiffs to the defendant, to be taxed if not agreed.

25.  Out of abundance of caution, I would like to say this: nothing I said in this judgment on the proper construction of s. 2(2)(c) of the IEO should be taken as anything other than the Court's provisional view on the matter.

26.  I thank counsel for their assistance.