IP CHEUNG KWOK v. YIP CHI KEUNG, ALLEN AND OTHERS

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

PROBATE JURISDICTION

NO. P4 of 1989

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J U D G M E N T

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Godfrey, J.A:

1. By an order of this court made on 22 November 1993, this court directed the trial (fixed for 11 April 1994) of certain preliminary issues; by an order made by consent on 15 April 1994, in the course of the trial of the preliminary issues, the issues were amended, and now read as follows:

"1. Whether the question who is entitled to inherit the immovable estate of Ip Koo Chi in Hong Kong has been conclusively determined for the purposes of these proceedings by the proceedings in China referred to in the Plaintiff's Statement of Claim and the judgment of the People's Court at Heungchow dated the 4th day of April 1994;

2. Whether as a matter of law the defendants or any of them are bound by an estoppel as to the said question arising out of the said proceedings in China and the said judgment."

2. This is the judgment of the court upon those preliminary issues, which arise out of the following history.

3. Ip Koo Chi ("the deceased') died, many years ago, domiciled in China. On 18 May 1988, this court decided that the deceased was at the date of his death beneficially entitled to certain immovable property in Hong Kong (which has since been sold and is now represented by a fund in court). Ip Cheung Kwok, the plaintiff in these proceedings, claims to be entitled to this fund as the assignee of his father, who, he says, is the sole surviving next-of kin of the deceased. Ip Chi Keung, Ip Chi Ying and Ip Siu Bun, the defendants in these proceedings, deny the plaintiff's claim, and advance claims of their own as to the persons beneficially interested in the fund. On 1 March 1989, the plaintiff commenced the above-mentioned probate action, P4 of 1989, and on 29 September 1989 he commenced the above-mentioned administration action, MP 2593 of 1989, in order to further his claim to the fund. On 6 October 1989, the court, in the administration action, ordered a kin enquiry. This has not yet been concluded; if it proceeds to a conclusion, it will end in an order declaring who is the person or who are the persons now beneficially entitled to the fund.

4. The deceased died beneficially entitled, not only to immovable property in Hong Kong, but also to immovable property in what is now the People's Republic of China. The plaintiff instituted proceedings in China claiming to be beneficially entitled to that property, too. The defendants Ip Chi Keung and Ip Chi Ying participated in those proceedings in China; the defendant Ip Siu Bun was not invited to do so and did not do so. On 4 April 1994, the Heungchow District People's Court (in Zhubai, Guangdong province) upheld the plaintiff's claim to be the great grand-nephew of the deceased (who, it held, had died on 11 on April 1903) and his sole legal successor, and accordingly it upheld the plaintiff's claim to the deceased's property in China.

5. Before the Heungchow District People's Court, the plaintiff relied on certain notarial certificates which he contended supported his claim. The Heungchow District People's Court, despite an attempt by the defendants certificates, accepted them as valid.

6. The plaintiff, at the trial of these preliminary issues, contended that this court was bound to treat these notarial certificates as conclusive of the rival claims of himself, on the one hand, and the defendants, on the other hand, to the fund in court. Alternatively, he contended that this court was bound to treat the judgment of the Heungehow District People's Court as conclusive of the same matter. Either way, he said, further prosecution of the kin enquiry directed by this court would be pointless.

7. In my judgment, the plaintiff's attempt to rely on the notarial certificates as conclusive of the matter is misplaced. The notarial certificates (the product of "the proceedings in China" referred to in the preliminary issues) do not operate, and do not even purport to operate, to resolve disputes between rival claimants. Indeed, under Article 17 of the (interim) rules for notarial procedures, promulgated by the Ministry of justice of the People's Republic of China on 12 December 1990, it is made an express condition of an application for notarisateion that "there is no dispute about the matter, which is under application for the notarisation, between the party who applies for its notarisation and the persons who have interests in it": see Chapter 5, Article 15.

8. I heard much evidence (which I do not find it necessary to review), and much argument, as to the status and effect of notarial certificates for the purposes of legal proceedings in the People's Republic of China (where such certificates are to be taken by a people's court "as a basis for ascertaining facts": see Article 67, in Chapter VI - EVIDENCE, of the Code of Civil Procedure of the People's Republic of China adopted on 9 April 1991). None of this came anywhere near satisfying me that a notarial certificate had the effect of determining at all, let alone conclusively determining, any factual or legal issue in dispute between rival claimants to the property of a deceased person (even in the People's Republic of China, let alone elsewhere). The resolution of such an issue must, in my judgment, be a matter exclusively for a court or other tribunal of competent jurisdiction, even in a case where that court or tribunal would, for practical purposes, have virtually no other option but to proceed on the footing that what was stated in the notarial certificates was correct.

9. The plaintiff, then, cannot rely on the notarial certificates to achieve the affirmative answer which he seeks to the questions raised in these preliminary issues. Can he rely on the judgment in his favour of the Heungchow District People's Court?

10. In my judgment, he cannot do so. Certainly, the Heungchow District People's Court is a court of competent jurisdiction. But over what? I have no doubt that the Heungchow District People's Court was competent to decide any question relating to the succession to the deceased's immovable property in China; and any such question relating to any movable property of the deceased, whether situated in China or elsewhere. Indeed, the defendants do not suggest otherwise. The issue, however, is whether the Heungchow District People's Court was a court of competent jurisdiction for the purpose of deciding questions relating to the succession to the deceased's immovable property in Hong Kong.

11. In my judgment, this court is the only court of competent jurisdiction for this purpose, and in relation to immovable property in Hong Kong, this court is entitled and bound to decide for itself any question of fact, such as kinship, on which the right to succession to the property depends. No authority was cited to me which would support the proposition that, in relation to immovable property, as distinct from movable property, of the deceased, this court must hold itself bound by a decision of the court of the deceased's domicile: indeed, all the authorities show that the only courts of competent jurisdiction in the case of immovable property are the courts of the lex situs. I was pressed, on behalf of the plaintiff, with the case of Doglioni v. Crispin (1866) LR I HL 301; but that case related only to the movable property of a deceased person. I am not prepared to hold that, because the court of the deceased's domicile, in relation to property of the deceased in China, has decided in favour of the plaintiff that he is the great grand-nephew of the deceased, this court must treat itself as bound by that finding of fact. I was pressed, too, with the case of Niboyet v. Niboyet (1878) 4 PD 1 which shows that this court will treat as conclusive a decision of the court of a deceased's domicile relating to status. But the status of an individual, used as a legal term, means that the legal position of the individual in law with regard to the rest of a community (as Brett, L.J., pointed out at p. 11). I do not accept that the question whether a man is or is not the great grand-nephew of another is a question of status; it is a simple question of fact like any other, and no authority was cited to me which would support the contrary conclusion.

12. For these reasons, I propose to decide each of the preliminary issues (1) and (2) in favour of the defendants.

13. The result will be that the kin enquiry directed by this court by its order of 6 October 1989 will have to proceed to a conclusion. No doubt, in the course of the kin enquiry, the plaintiff will seek to rely on the notarial certificates and on the judgment of the Heungchow District People's Court. Whether he should be permitted to do so, and if so, what weight ought to be attached to the notarial certificates and to the judgment of the Heungchow District People's Court, will be a matter to be considered in the course of the enquiry; nothing I have said in this judgment is intended to pre-empt any argument, either on the part of the plaintiff or the defendants, as to those matters.

14. The defendants having succeeded on the preliminary issues, I propose to order that their costs be taxed (if not agreed) and paid by the plaintiff.