WONG YUK WAH IN HIS PERSONAL CAPACITY AS THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WONG CHIU, DECEASED v. THE PERSONAL REPRESENTATIVE OF THE ESTATE OF WONG TAK DECEASED

HCMP 2543/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2543 OF 2015

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R E A S O N S   F O R   D E C I S I O N

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1.  In this application, the plaintiff (“P”), in his capacity as personal representative of the estate of his father Wong Chiu (“Estate”), sought a declaration that the Estate was/is entitled to 50% of the beneficial interest of the defendant (“D”) in a piece of land known as 3 Stanley Main Street, Stanley, Lot 385, Hong Kong (“Land”).

2.  D is the personal representative of the estate of Wong Tak.  The Official Solicitor was appointed under a consent order to represent the estate of Wong Tak for the limited purpose of accepting service of the originating summons herein but did not consent to act further for the estate of Wong Tak.  The Official Solicitor was absent at the hearing before this court and had maintained a neutral instance in these proceedings[1].

3.  P’s father Wong Chiu was the son of Wong Yau. Wong Yau and Wong Tak were brothers.  Thus, P was the great nephew of Wong Tak.

4.  On 20 September 2016, this court granted P the declaration as sought in the absence of D and the reasons are set out hereinafter.

Brief Background

5.  The Land was initially granted to Wong Yau and Wong Tak as tenants in common under a Crown Lease dated 31^st May 1934.  The two brothers each owned 50% beneficial interests of the Land. 

6.  When Wong Yau died in 1948, his 50% beneficial interest of the Land was inherited by his son, namely P’s father Wong Chiu, under the then governing law of Hong Kong, which was Tsing/Qing Law (“Qing Code”).   

7.  Wong Chiu died intestate on 24^th August 1980.   P’s 6 brothers and sisters have each signed a Deed of Relinquishment relinquishing their beneficial interest in the Estate to P and P is thus the sole beneficiary of the Estate.  As a result, P owns 50% beneficial interest of the Land. What P sought in the originating summons was a declaration that the Estate was entitled to the remaining 50% of the beneficial interest of the Land which originally belonged to Wong Tak.

8.  It was P’s case that when Wong Tak died, his estate would have passed to his only then surviving nephew, Wong Chiu, namely P’s father, under the then applicable Qing Code.

9.  P’s evidence showed:

(1) Wong Tak was the elder brother of Wong Yau;

(2) Wong Tak died in Hong Kong in the 1940s during Japanese occupation;

(3) Wong Tak was single when he died;

(4) Wong Tak had no legitimate or illegitimate issue when he died;

(5) Wong Tak left no other living relatives at the time of his death, apart from his brother Wong Yau and Wong Yau’s son Wong Chiu;

(6) Wong Tak died intestate;

(7) Wong Tak’s parents had already passed away when he died; and

(8) Wong Tak had no siblings apart from Wong Yau.

10.  Upon search by P’s solicitors on about 25 September 2015, no grant of probate or letters of administration of the estate of Wong Tak had been made.  In reply to Master J Wong’s comments dated 2 September 2016, P’s solicitors conducted an updated probate search on Wong Tak to see if any letters of administration or grant of probate had been granted.  The result of the search was again “No Record”.

Whether Wong Tak’s household had become extinct

11.  Wong Tak died intestate in the 1940s before the coming into force of the Intestate’s Estates Ordinance, Cap 73 (“IEO”) on 7 October 1971.  The IEO only applies to any person dying intestate after the commencement of the IEO[2].

12.  Where a Chinese person died intestate domiciled in Hong Kong before the commencement of the IEO on 7 October 1971, succession to estate on intestacy was governed by Chinese customary law[3].  The then governing Chinese customary law was the Qing Code.

13.  Article 88(2) of the Qing Code reads as follows[4] :

“戶絕財產，果無同宗應繼之人，所有親女承受。無女者，聽地方官詳明上司，酌撥充公。”

14.  As for what was meant to by “戶絕”, or “a household becomes extinct”, P’s Counsel Mr Vincent Lam had referred this court to both the judgment of DHCJ Andrew Cheung, as he then was, in Liu Ying Lan v Liu Tung Yiu &Another HCA 6693/1992 (“Liu HC Judgment”), and also the subsequent Court of Appeal Judgment, [2003] 3 HKLRD 249.

15.  Professor Hugh Baker, a Qing law expert instructed by the 1^st defendant in Liu Ying Lan was of the view that the household of a sonless household head did not become extinct upon the death of the household head, but only became extinct when his widow also died, and only if there had not been any posthumous adoption during the lifetime of the widow to succeed to the deceased’s line[5].  Professor Baker’s expert opinion was accepted by the court[6].

16.  Jamieson’s views in his classic work Chinese Family and Commercial Law (1921 ed)  on successor were also endorsed in Liu HC Judgment[7], as follows:

“Chinese Law only permits the adoption of agnates from a collateral branch of the family. ... In Chinese Law if a sonless father fails to adopt, the Elders of the house, that is the senior agnates, will adopted one for him, or in event of their failing to agree, the Magistrate, on being appealed to by any claimant, will direct who is to be adopted and that person will inherit the whole of the property. If no one has been nor can be adopted, in other words, if there are no male claimants of the agnatic kindred, then and in that case only the property may be divided among the daughters. …”

17.  It had been held by the Court of Appeal in Liu Ying Lan v Liu Tung Yiu & Another [2003] 3 HKLRD 249 (CA) 55 that posthumous adoption had been abolished by the Adoption Ordinance (Cap 290) as from 1 January 1973 onwards[8].

18.  In the present case, there was no evidence that any son was adopted by Wong Tak during his lifetime and/or up to 31 December 1972, and in any event, the evidence was that Wong Tak had no wife. 

19.  Having considered the legal principles and the evidence, I am satisfied that Wong Tak’s household had become extinct under Article 88(2) of the Qing Code.  The next available option is the daughters (if any).

20.  According to the evidence, Wong Tak had no daughters.

21.  Thus, under Article 88(2) of the Qing Code literally, the intestate estate of Wong Tak could go to the Government.

Whether the intestate estate of Wong Tak should go to the Government

22.  Mr Lam referred the court again to the views of Jamieson, which were endorsed by the court in the Liu HC Judgment[9], that:

“If the male line becomes extinct and no successor has been, nor can be appointed, the daughters, or persons claiming in their right, are next entitled to divide the property. In default of daughters the nearest females of the kindred are entitled, though in what precise order is not stated, presumably the analogy of male succession would be followed, but the forfeiture to the State (which is the next and final step in the process) is perhaps never insisted upon as against relations of any kind whether by consanguinity or affinity, provided at least that they will undertake out of the income of the estate to defray the expenses of the ‘worshipping, and sweeping’ at the tombs of the extinct family.”

23.  Further, it was said:

“The fallacy of this is that regulation 88(2), in my judgment, was never intended to be made use of save in the most exceptional circumstances. It was never the intention of the imperial government to forfeit the property of private individuals pursuant to regulation 88(2), or for that matter, to allow daughters to inherit property, save in the most exceptional circumstances. I find nothing surprising in such an attitude, given the traditional Chinese values and concepts. Jamieson (p 30) recorded no case of government forfeiture. Admittedly actual (as opposed to theoretical) inheritance by daughters is also extremely rare, if not unheard of[10].”

24.  In short, it was the view of the court in the Liu HC Judgment that it was never the purpose of the Qing Code or the imperial Qing Government to forfeit the estate of a deceased, having taken the traditional Chinese value into consideration.  The estate of a deceased should be vested in the hands of persons who relate to the deceased in terms of consanguinity or affinity (if any). 

25.  Mr Lam further submitted that the above view was also illustrated by two cases mentioned below. 

26.  In Official Administrator v Luk Hoi Tung Co Ltd HCA 1348/2000 (unrep, 16 September 2005), the deceased passed away intestate in Hong Kong in 1940[11].  Succession to the deceased’s estate was, as per the succession law in Hong Kong, governed by Chinese law and custom.  The court ruled that the two nephews of the deceased were entitled to succeed to the deceased’s estate even with the finding, inter alia, that the nephew’s case on adoption failed on evidence[12].  In reaching the conclusion, Professor Baker’s expert opinion given therein was preferred and endorsed by the court[13]:

“At this juncture, it is convenient to point out that the experts on both sides agreed that notwithstanding my first instance decision in Liu Ying Lan v Liu Tung Tiu, HCA 6693/1992 (8 May 2002) and the Court of Appeal’s decision in that case ([2003] 3 HKLRD 249), where a deceased person was survived by a widow without any sons (adopted or not) or daughters, and if his widow died without having appointed or adopted any heir or successor during her lifetime (or “gifted” away the assets to someone else – as per Mr Hui’s contention) the estate would go to the dead man’s closest male next-of-kin of the next generation, even in the absence of any adoption of the next-of-kin. A distinction between that situation and the situation faced by the courts in Liu Ying Lan is that in the latter case, it was a competition between the deceased’s daughters and the nephew, who was never adopted into the family of the deceased. Here, there is no such competition between a daughter and a nephew. If anything, it is a (potential) competition between the nephew and the government. As has been pointed out by Jamieson, Chinese Family and Commercial Law, 30, the forfeiture of the estate to the government is perhaps never insisted upon as against relations of any kind. Furthermore, the relevant Qing Code, ie article 88(2) providing for forfeiture of the property to the government, apparently provides for a discretion whether to forfeit (“酌撥充公”).”

27.  The principles in Luk Hoi Tung were applied in Tsang Yuet Mui v Wan On HCMP 2314/2012 (unrep, 23 September 2014)[14], where it was held that in the absence of competition by the deceased’s daughter (the daughters of the deceased were married[15] and therefore not eligible to succeed[16]), the deceased’s estate would go to the nephew, the male next of kin of the deceased’s next generation, after the widow of the deceased passed away, even if no adoption or appointment of the nephew was made.

28.  It was further held in Tsang Yuet Mui  that the principles and reasoning in Luk Hoi Tung  also applies to cases not governed by the New Territories Ordinance (Cap 97)[17] (“NTO”):

“Pausing here, I notice that the DO considered that the judgment in Luk Hoi Tung Co Ltd is irrelevant because that was not a case on succession pursuant to section 17 of the NTO. I disagree. It is the right to succeed that requires to be decided in accordance with Chinese law and custom. Section 17 of the NTO or pre-IEO intestacy is merely window through which such Chinese law and custom enter into the consideration for the same purpose.”

29.  DHCJ A Cheung (as he then was) in the Liu HC Judgment, however, accepted that there was a general rule in Chinese customary law prohibiting one from inheriting from both his father and uncle (“the General Prohibition Rule”)[18], which reads:

“But is the 1st Defendant a ‘person who should succeed’ under regulation 88(2) on the facts of this case? In my judgment, the answer is no. The 1^st Defendant has already succeeded to his natural father’s property many years before. I accept the expert evidence of Dr Hwang that this disqualifies the 1^st Defendant as a candidate for adoption. The general principle under Chinese law and custom is that no son should inherit property in more than one family (Jamieson at p 21). The principle is given indirect recognition in regulation 78(8) of the Code which stipulates the exceptional and peculiar circumstances under which an only son may succeed to two family lines, thereby suggesting that in the normal case no such thing should be allowed to happen.”

30.  The above ruling was endorsed by the Court of Appeal[19], which reads:

“I agreed with the learned Judge that this rule supports the general prohibition. Even in a kim tiu situation the two male lines have to remain distinct and the descendants in each household succeed to the line and patrimony of that particular house and no other. This clearly illustrates the importance of restricting someone who has inherited his natural parents’ estate from being adopted. The problems associated with succession and inheritance in this case would militate against the first defendant. He is not someone who is entitled to succeed the deceased because he has inherited his father’s estate.”

31.  DHCJ Cheung in Liu HC Judgment applying the General Prohibition Rule ruled that the daughters therein were entitled to succeed to the estate of the deceased.  However, in Luk Hoi Tung Cheung J (as he then was) explained that he and the Court of Appeal applied the General Prohibition Rule in Liu Ying Lan only because there was a competing interest between the daughters and the nephew[20]. 

32.  The court in Tsang Yuet Mui also ruled in favour of the nephew by distinguishing the facts of that case from Liu Ying Lan[21]:

“In the present case, Tang Yip Sang was the only male next-of-kin one generation down the agnatic line entitled to succeed. Tang Tin Yau and Madam Chong were survived by 2 daughters. Whilst neither of them has (formally) renounced their potential entitlement under article 88(2) of Qing Code, the expert opinion in the present case is that succession by daughters married out of the family, in view of an existing eligible male successor, would contradict the fundamental principle of preservation of the family property belonging to the male line under Chinese law and custom. In any event, both of them have been served with these proceedings, and neither of them comes forward to assert the right to succeed in preference to that of Tang Yip Sang. The reality is no different from the situation observed by the learned judge in Luk Hoi Tung Co Ltd above. Such situation was not the one faced by the appellate court in Liu Ying Lan, a decision that the learned judge in Luk Hoi Tung Co Ltd was acutely aware of when arriving at his conclusion.”

33.  It was Mr Lam’s submission that the court’s view from the authorities was that “the fundamental principle of preservation of the family property belonging to the male line under Chinese law and custom” would override the General Prohibition Rule in cases where no one had come forward to compete with the plaintiff. 

34.  In the present case, there was no competing interest in that no one had come forward to compete with the Estate over the estate of Wong Tak.

Conclusion

35.  Having considered all the authorities and the evidence of this case, I accepted Mr Lam’s submissions that the estate of Mr Wong Tak should go to his then only biological nephew, Mr Wong Chiu.  P being the personal representative of the Estate of Mr Wong Chiu should be entitled to the declaration sought, and this court had accordingly granted P the orders as sought. 

[1] See letter dated 6 September 2016, B:155

[2] See s12

[3] Liu Ying Lan v Liu Tung Yiu & Another HCA 6693/1992, para 117

[4] Liu Ying Lan v Liu Tung Yiu & Another [2003] 3 HKLRD 249, para 18(9)

[5] See para 36, Liu HC Judgment

[6] At para 37,Liu HC Judgment

[7] At para 49, supra

[8] See Holding (7), at pg 251

[9] At para 49

[10] At para 74

[11] See paras 5-7

[12] See Luk Hoi Tung, para167-168

[13] At para 167

[14] At paras 50-53

[15] See Tsang Yuet Mui, paras 2 & 9

[16] See Tsang Yuet Mui, para 52

[17] At para 49

[18] At para 49

[19] At pg 268-D

[20] At para 167

[21] At para 52