LIU YING LAN v. LIU TUNG YIU AND ANOTHER

HCA 6693/1992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO. 6693 OF 1992

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J U D G M E N T

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Facts

1. This is a dispute relating to the succession to the estate of a deceased person, the late Liu Shau Tseung (the "Deceased"), who passed away in Hong Kong more than half a century ago in 1943. The Plaintiff and the 2nd Defendant are the daughters of the Deceased. The 1st Defendant is their cousin, and the paternal nephew of the Deceased.

2. The material facts are relatively simple and not in dispute. All the parties and the Deceased belong (or belonged) to the Liu clan, one of the five major indigenous clans in the New Territories. The Liu clan in Sheung Shui of the New Territories traces its origin to a common ancestor in the Western Jin Dynasty (西晋) (265-316). In the Yuan Dynasty (元) (1271-1368), a descendant belonging to the 30th generation settled in what is now known as Sheung Shui, the New Territories, and became the 1st generation ancestor of the local Liu clan in Sheung Shui. Counting from this patriarch, the Deceased belonged to his 18th generation. His father (the "grandfather") had three sons and the Deceased was the youngest one. The grandfather passed away in 1902. The Deceased passed away in 1943 leaving behind two surviving daughters, namely, the Plaintiff and the 2nd Defendant, but no surviving sons or male issue.

3. In other words, the two daughters belong to the 19th generation, and so does the 1st Defendant who is one of the three sons of the eldest brother of the Deceased. To cut a long story short, and to simplify the relevant family tree in question, the three sons of the grandfather (including the Deceased), all belonging to the 18th generation, have passed away. Of the 19th generation having the grandfather (of the 17th generation) as the nearest common ancestor, there are only two surviving male descendants including the 1st Defendant. The other male descendant, the son of another brother of the Deceased, has renounced any interest in the estate in question. Of the next generation (i.e. the 20th generation), there are the sons of the 1st Defendant as well as two sons of the other male descendants of the 19th generation. Some of them have renounced interest in the estate, whilst others are obviously not eligible for succession to the estate in question, and they have not taken any part in this action.

4. The estate of the Deceased simply comprises a piece of land in Sheung Shui registered in the Land Registry as Lot No. 1346A in D.D. 52 on which a brick house has been erected. The Deceased lived there until his death, and his widow lived there for substantial periods of time until she passed away in August 1987. The two daughters used to live there as well prior to their respective marriages in 1949 and 1958.

Issues

5. Since the death of the widow, the 1st Defendant has been claiming before the District Officer responsible for registration of succession to nonexempt rural land in the New Territories under section 17 of the New Territories Ordinance (Cap. 97) that pursuant to Chinese law and custom, since the Deceased died without leaving behind any surviving male descendants but only daughters, the 1st Defendant as the closest male relative of the Deceased on the paternal side of the right generation (i.e. the 19th generation - see below) is entitled to succeed to the estate of the Deceased comprising the property in question, the other surviving male descendant of the same generation originating from the same grandfather having renounced any interest in the estate in his favour.

6. The Plaintiff and indeed the 2nd Defendant deny the 1st Defendant's claim. The Plaintiff maintains a number of stances in the alternative. She argues that under the applicable Chinese law and custom, when the family of her father became extinct upon his death in the sense that he was not survived by any male descendant or lawfully adopted son or heir, and when no such son or heir was adopted posthumously for the Deceased by the elders from the male descendants of the right generation of the clan after a period of time following the death of the Deceased, the daughters are entitled to succeed to the property and estate of the Deceased. It should be noted that it is accepted by the 1st Defendant that nobody has ever been adopted as the son or heir of the Deceased whether during his lifetime or after his death even up to now, and in particular he himself has not been so adopted.

7. Alternatively, the Plaintiff maintains that if the applicable Chinese law and custom have the effect of depriving her and her sister of their right to succeed to the estate in the above circumstances, the same should not be applied or enforced by the Court as being unjust and oppressive. In that case, the Plaintiff argues that the Court should apply either Hong Kong law or that part of the relevant Chinese law and custom that is neither unjust nor oppressive.

8. These are basically the main issues raised by the parties. There are related or side issues that were raised and argued at trial. I shall deal with them in turn.

9. For the sake of completeness, I should point out that although the 2nd Defendant, i.e. the elder sister of the Plaintiff, has not seen fit to join in as a co-plaintiff and is therefore sued in the present action as a co-defendant, the position she takes is basically the same as that of the Plaintiff.

Application of Chinese law and custom

10. At this juncture, it is convenient to say a word or two on the relevant background against which the parties invoke and argue about Chinese law and custom.

11. As I said, the Deceased was an indigenous inhabitant of the New Territories. He owned a piece of land in the New Territories. The land is not exempted pursuant to section 7(2) of the New Territories Ordinance from the provisions of Part II of the Ordinance (including sections 13 and 17). According to section 13, as it then was prior to its amendment by the inclusion of an overriding sub-section (2) in 1994 (see below), which may be traced to section 25 of the New Territories Regulation Ordinance, 1910 (Ord. No. 34 of 1910), and the even earlier section 11 of the New Territories Land Ordinance, 1905 (Ord. No. 3 of 1905),

"In any proceedings in the High Court or the District Court in relation to land in the New Territories, the court shall have all power to recognize and enforce any Chinese custom or customary right affecting such land."

12. This section was considered in great detail by Mills-Owen J. in Tang Kai-chung v Tang Chik-shang [1970] HKLR 276, 294 and 295, a case concerning whether the rule against perpetuities applied to tso land in the New Territories, and the learned judge concluded (at p. 295) that under section 13:

"the Court must recognise and enforce Chinese custom and customary right in the case of a Tso in the N.T. It is then a necessary corollary that one must disregard any aspect of English law, including the rule against perpetuities or any rule regarding unusual modes of devolution, which might affect the customs or trusts of the Tso; and I would so hold."

13. This decision has since been generally regarded as the authority on the proper construction of section 13 in general, namely, that the Court must recognise and enforce Chinese custom and customary right in all matters in relation to land in the New Territories, to the exclusion of any English or Hong Kong law that might otherwise be relevant, even though the decision itself only concerned the recognition and enforcement of Chinese custom and customary right relating to a tso in the New Territories. See for instance, Tsang Wing-lung v Tsang Lun [1993] 2 HKLR 23; Halsbury's Laws of Hong Kong Vol. 20 para. [285.042] and footnote 6; Selby, Everything you wanted to know about Chinese customary law (but were afraid to ask) (1991) 21 HKLJ 45, 48.

14. In 1994, the New Territories Land (Exemption) Ordinance (Cap. 452) was enacted. Section 3 of the Ordinance has the effect of exempting nonexempt rural land in the New Territories from the operation of Part II of the New Territories Ordinance of which section 13 forms part, "for the purpose of entitlement to rural land in succession". Moreover, section 13 was amended by the inclusion of a new overriding sub-section (2) which has the effect of limiting the application of Chinese custom or customary right under the original section 13 (now section 13(1)) to proceedings other than that in respect of or in relation to the Probate and Administration Ordinance (Cap. 10), the Intestates' Estates Ordinance (Cap. 73) or the Inheritance (Provision for Family and Dependants) Ordinance (Cap. 481). Further, section 17 of the New Territories Ordinance relating to registration of succession to rural land by the Land Officer was repealed by section 11 of the 1994 Ordinance.

15. The subject property is such a piece of rural land caught by section 3 of the 1994 Ordinance. However, section 12, a transitional provision, provides as follows:

"Where, at the commencement of this Ordinance, rural land is held in the name of a deceased person registered in accordance with the New Territories Ordinance (Cap 97) otherwise than as a manager, if no grant of probate or administration of the estate of the Deceased is made by the Court of First Instance within 3 months after the death of that person then, notwithstanding sections 3(a), 10(c) and 11 of this Ordinance -

(a) the Secretary for Home Affairs may exercise the powers conferred on him under section 17 of the New Territories Ordinance (Cap 97) in respect of any person who may be entitled to that rural land in succession to the Deceased person as if section 17 of that Ordinance had not been repealed;

(b) in any proceedings in the Court of First Instance or the District Court concerning the exercise by the Secretary for Home Affairs of those powers in relation to that rural land, the court shall have power to recognize and enforce any Chinese custom or customary right affecting that rural land as if section 13(2) had not been added to that Ordinance; and

(c) on the registration of the name of the person entitled to that rural land in succession to the Deceased person being effected by the Secretary for Home Affairs under section 17 of that Ordinance, that rural land shall, for the purpose of entitlement to rural land in succession and only for that purpose, be deemed to be land exempted from Part II of that Ordinance by the Chief Executive under section 7(2) or (3) of that Ordinance."

16. In those circumstances, since the Deceased had passed away long before the enactment of the New Territories Land (Exemption) Ordinance, succession to the subject property still continues to be governed by "Chinese custom or customary right" under the original section 13 as per section 12(b) of the 1994 Ordinance. Further, the Secretary for Home Affairs may still register a new successor to the property in question pursuant to section 17. But because of this litigation, no such registration has thus far been made. In other words, we are back to square one.

17. Building on that basis, the 1st Defendant argues that this Court must turn to the relevant Chinese law and custom for determination of succession to the subject property of the Deceased, and regardless of the contents of the applicable law and custom, the Court must apply the same for the resolution of the present dispute. (Since the estate of the Deceased only comprises the property, I need not deal with succession to any other property of the Deceased not comprising nonexempt rural land in the New Territories. To cut a long story short, if there had been any such property, succession to the same would also have been governed by Chinese customary law - see below.)

18. As I said, the Plaintiff challenges this approach and argues that the Court may refuse to recognise and apply any Chinese law and custom that would, if applied, be unjust and oppressive or lead to such a result.

19. This is obviously a very important and fundamental point. But it would only arise, if at all, after the contents and application of the relevant Chinese law and custom are ascertained by this Court according to the evidence and material available. To this I now turn.

Qing Code (Da Qing Lu Li)

20. The dispute between the parties centres on a particular regulation, li (例), in the Qing (Tsing/Ching) Code, Da Qing Lu Li (大清律例), namely, article or lu (律) 88, regulation (2). The parties are ad idem that in the application of Chinese custom or customary right, one must first look at the Code to see if there is any relevant and applicable article or regulation; and if the answer is yes, the same will be applied by the Court subject to the Plaintiff argument's over the Court's discretion not to apply unjust or oppressive Chinese law and custom. However, if there is ambiguity in the meaning or application of the Code, or if the Code is silent on a particular matter, one may turn to custom for assistance. The parties and their experts all agree that no custom can contradict the Code; but when the Code is silent or ambiguous, custom may be resorted to, and one should adopt a flexible approach in the matter.

21. As I said, the parties rely on a particular regulation in the Code. Now the Code was the Imperial Code of the Qing Dynasty (清) (1644 - 1911). According to Jamieson's classic work Chinese Family and Commercial Law (1921 ed.) 9,

"The Code was originally compiled by order of the Emperor Shun Chih, the first of the Manchu [Qing] Dynasty who caused the Lü of the preceding Dynasty, the Ming, to be translated into Manchu and with some additions, to be published as the laws of the new Empire. It would thus appear that of the two parts of which the Code is built up, the first the Lü was the already existing law of the land which was taken over orderly by the conquerors, and the second Li or supplementary laws were the new rules which they thought fit to impose. The Lü which are divided into 436 headings or sections stand as the fundamental framework and are never revised or altered. Each section therefore consists of two parts, the first the Lü, generally in one clause, the second the Li, in two, three or more, sometimes as many as 30 or 40 clauses, representing successive legislation on the particular subject. When a new law was passed it did not appear as an additional section but had to find a place under one of the existing sections as an additional Li in that particular category. It will be seen therefore that the Li which form more than half of the bulk of the work are also the most important, inasmuch as they comprise all recent legislation."

22. Jamieson's groundbreaking work comprised a complete English translation of the Code (based on the 1877 imperial edition plus the subsequent revisions), including both the lus and the lis, as well as a most valuable commentary of the provisions in the Code.

Article 88 regulation (2) of the Qing Code

23. As I said, all parties refer to a particular li under article (lu) 88, namely, the second li included under that article. For the ease of reference, in this judgment, I would simply refer to it as regulation 88(2) (and other regulations in the like manner), which must be understood in the light of what Jamieson said about the arrangement of the lus and lis in the Code. The Code, written in classical Chinese, does not contain any original punctuation. In Jamieson's translations, understandably punctuation appears. Likewise in reprints of the original Chinese text of the Code by subsequent publishers, punctuation is very often found added. For the purpose of this judgment, having had the benefit of reading the original Chinese text and hearing the expert evidence adduced by the Plaintiff and the 1st Defendant, I accept the following rendition of regulation 88(2) taken from a reprint of the original Chinese text by the Tianjin Classical Work Publisher in the Mainland as the correct one:

"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。"

24. Jamieson translates this regulation as follows (at p. 17):

"In the event of a family becoming extinct for want of legal successors, the daughters shall be entitled to the property, and if there are no daughters the property shall be forfeited to Government."

25. Experts on both sides agree that this translation is imperfect. First, it does not distinguish the use of two different Chinese characters, "戶" meaning household, and "宗" meaning kindred or lineage, in the regulation. As is quite apparent from the original Chinese text, the extinction that is mentioned in the regulation refers to the extinction of the "戶", i.e. the household. There is no question of the extinction of the "宗", i.e. kindred or lineage, in the regulation. Moreover, the translation's reference to an extinction "for want of legal successors" is incomplete in that the "legal successors" that are wanting must be from the same kindred or lineage. Again as is quite apparent from the original Chinese text, the regulation actually refers to there being no "應繼之人" (literally "the person who should succeed") within the same "宗" (i.e. kindred or lineage). Third, and perhaps of lesser importance is that, the Chinese character "果" appearing in the regulation has not been translated. There is not much dispute that this is an emphatic word, which means and should be translated as "really", or better still, "indeed".

26. Alternative translations have been suggested by the experts on both sides bearing the above in mind. For my part, I would prefer the following translation as the best working translation of the regulation. But I must emphasize that in my deliberation of the issues raised in this case, I work on the original Chinese text as understood by me, regard having had to the experts' valuable evidence and other available material before me. The translation is as follows:

"When a household becomes extinct, [and] within the same kindred (or lineage) there is indeed no person who should succeed to the property, all the daughters shall inherit [the property]. If there is no daughter, in accordance with [the order of] the local official after making a detailed report to his superior, [the property] shall be forfeited to the Government."

Succession under Chinese law and custom

27. To understand how this regulation may apply to the dispute in the present case, one needs to state very briefly the general rules of succession under Chinese customary law, which I gather from the expert evidence adduced before me and the relevant material on this subject, including Jamieson at pp. 17 to 31; Chinese Law and Custom in Hong Kong, Report of a Committee appointed by the Governor in October 1948 (better known as the "Strickland Report") 16-18; Report of the Working Group on the New Territories Ordinance (Cap. 97) (April 1988) Annex 4 "Customary succession to land in the New Territories"; Evans, The New Law of Succession in Hong Kong (1973) 3 HKLJ 7, 13-19.

28. First, there is a distinction between succession to a male line and succession to or inheritance of property. As a very general rule, the eldest son or the eldest son from the principal wife is the heir (" ") of his father. Upon his father's death, he carries on his father's line. This is succession to the male line. However, when it comes to succession to the property or inheritance, the father has no right to make a will in the English sense of the word to dispose of his property after his death. Instead, upon his death, all the sons of the father enjoy an equal share, and the heir does not have any privilege over his brothers. As for the daughters, daughters who are already married at the time of death have no claim to the property at all. Unmarried daughters have a claim to maintenance until marriage and upon marriage a claim for dowry. As for the widow, she has a sort of life interest claim to the property of her deceased husband for maintenance during her lifetime. The claim ceases upon her death. During her lifetime, her sons cannot insist on dividing up the property of their late father without her consent, given her prior claim to maintenance for life.

29. This is the general rule. But what if the man dies without leaving behind any surviving son or male issue? This would cause a problem to succession to his line as well as succession to his property. Now if the man has prior to his death adopted a son as his heir, this would solve the problem. An adopted son is as good as a natural son. So in that case, he becomes both the heir to the line as well as the sole successor to the property subject to the widow's prior claim to maintenance during her lifetime.

30. As for adoption, Qing law requires the adoptee to be picked from the next generation. In other words, there is just one "correct" generation for adoption purpose, although it is known that there have been ingenious devices to get round this rule both under the Code itself and by custom. Moreover, as a general rule, the adoptee cannot be the only son of his natural father because the effect of an adoption is to treat for all purposes the adoptee as the son of the adopted father for the dual purpose of succession to the line and succession to property, in replacement of the adoptee's birthright (and duty) to succeed to his own natural father's line (if applicable) and to his natural father's property. Adopting such a person as a sonless man's son would solve the latter's problem at the expense of creating a similar problem for the natural father of the adoptee. As for the order for choosing the adopted son from the pool of eligible adoptees, the Code lays down rules. Basically, one starts with the paternal nephews of the sonless person and moves outwards within the same kindred or lineage until the right person who and whose family are agreeable to the adoption can be found.

31. What if no one was adopted during the lifetime of the sonless male? The answer lies with posthumous adoption as expressly provided for in the Code. I shall return to this subject later. But what if no such posthumous adoption was made prior to the death of the widow?

32. Can a daughter, married or unmarried, ever succeed to anything (other than that already set out above) in those circumstances? Everyone agrees that even in those circumstances a daughter cannot succeed to her father's line. In other words, a daughter, married or not, can never become her late father's heir. But what about succession to her late father's property? Regulation 88(2) of the Code seems to provide the answer in that it defines the circumstances under which daughters may inherit their late father's property.

Extinction of a household ("戶絕")

33. This is indeed the context in which one is involved with regulation 88(2) of the Code in this action. In order to understand the meaning and application of the regulation, it is necessary to dissect the regulation and find out the individual meanings of its components.

34. First, what is a household and when does it become extinct? Now it is clear from the Code itself as well as general Chinese history that a household (戶) is an important unit for various purposes, including population registration and control, taxation, military organization and deployment, and provision of manual labour for imperial duties. A household comprises members who would, as well as those who would not, usually be regarded as members of the same family in the West or in modern-day Hong Kong, namely, parents plus unmarried children. According to the expert evidence and indeed as is apparent from article 87, regulation 87(1) and article 88 of the Code, whilst the grandparents or parents are still alive, all the sons and grandsons, married or not, are regarded as being under the same household under the headship of the most senior male member. And article 87 actually prohibits the setting up of a separate household by a son or grandson during the lifetime of the grandparents or parents and sets out the sanction in case of non-compliance. Of course, married daughters are regarded as a household member of their husband's household.

35. The experts, however, differ in their views as to when a household becomes extinct. Dr. K.H. Hwang, retained by the Plaintiff, maintains that a household becomes extinct upon the death of the household head without leaving behind any surviving male descendant (including a child en ventre sa mere), whether natural or adopted prior to his death. In other words, using the facts in the present case as an example, Dr. Hwang is of the view that the Deceased's household, comprising the Deceased, his wife and their two (then unmarried) daughters immediately prior to his death, became extinct in 1943 upon his death, as there was no surviving son (or son adopted prior to his death) to succeed to his line.

36. Professor Hugh Baker, retained by the 1st Defendant, disagrees. He maintains that a household in the situation which we are concerned with 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. In other words, on the facts of the present case, Professor Baker says that the household of the Deceased only became extinct when his widow passed away in 1987, there having been no posthumous adoption of a son to carry on the Deceased's line during the lifetime of the widow.

37. Leaving aside the question of adoption and posthumous adoption for the time being, I accept Professor Baker's view on when a household becomes extinct. In my judgment, this view is supported by the Code itself. So for instance, regulation 76(12) of the Code regulates the future of the servants and slaves of a household belonging to one of the "eight flags" of the Manchu governing class of the Qing Dynasty that has become extinct. The servants and slaves will be assigned to the household of a related tribe/flag member, if any, failing which they will be charged with the responsibility of looking after the family graves of their former master whose household has become extinct. In my judgment, if only the household head is dead, but the widow is still living, it would not make sense at all to deprive the surviving family member(s) of their servants and slaves in accordance with regulation 76(12). Of course, upon the death of the widow, the situation should be different, and there would be more good reason for applying the regulation to give the servants and slaves a new household to serve or a new responsibility to undertake.

38. Further, as relied on by Professor Baker, regulation 78(2) provides good support for his view. The regulation is translated by Jamieson (at p. 14) as follows:

"A widow left without a son and not remarrying shall be entitled to her husband's share of the family property, and it shall rest with the elders of the Family to select the proper relative, and appoint him to the succession; but in the event of her remarrying, all the property and her marriage outfit shall remain in the family of her deceased husband."

39. Since a widow not remarrying is entitled to enjoy her deceased husband's property during her lifetime, this is quite inconsistent with the idea of someone else's inheriting the property on the ground that her deceased husband's household has become extinct upon his death thereby triggering the operation of regulation 88(2) relating to inheriting the property of an extinct household.

40. Further, I would add that article 87 and regulation 87(1) (already referred to above) concerning the setting up of a separate household by sons or grandsons during the lifetime of their grandparents or parents also support this view. The article and regulation actually refer to the setting up of a separate household during the lifetime of the grandmother or mother, besides that of the grandfather or father, by the sons or grandsons, and make this a forbidden act punishable by flogging.

41. For all these reasons, I find that under regulation 88(2), a household only becomes extinct upon the death of the widow who left behind no surviving male descendants, whether natural or adopted prior to her death, to continue the line of her deceased husband.

Adoption and posthumous adoption under Chinese law and custom

42. As was foreshadowed in the preceding discussion, adoption and in particular posthumous adoption greatly complicate the matter. And this also brings me to the correct meaning of the phrase "應繼之人" in regulation 88(2), meaning literally a "person who should succeed". In order to understand this phrase properly, one needs to consider the question of adoption and posthumous adoption, as well as the rationale behind.

43. Article 78 of the Code deals with the appointment of an heir who is to succeed to the family line of the person making the appointment. The article deals with the situation where the person making the appointment has more than one sons, where he has a principal wife who has not given birth to a surviving son and a son or sons given birth to by his concubine(s), where he is childless but with an adopted son, where he adopts (wrongfully) as his son somebody of a different surname, and where he adopts as his son someone from the same kindred or lineage but of the wrong generation. In the last-mentioned case, he should appoint a "person who should succeed" in place of his wrongfully adopted son who should return to his own line or branch.

44. Regulation 78(1) provides that:

"When any person is without male children of his own, one of the same kindred of the next generation may be appointed to continue the succession, beginning with his nephews as being descended from the nearest common ancestor, and then taking collaterals, one, two and three degrees further removed in order, according to the table of the five degrees of mourning. ..." (per Jamieson's translation at pp. 14-15)

45. Article 78 and regulation 78(1) quite clearly deal with (amongst other things) the adoption of a son from the same kindred or lineage of the right generation as the heir of a male who has no living natural male descendant to continue his line after his death.

46. I have already reproduced above Jamieson's translation of the next regulation, i.e. regulation 78(2), relating to the enjoyment of the property of a deceased husband by his widow during her lifetime. The same regulation also provides for the selection of a proper relative by the elders of the clan (or "senior agnates") for appointment as the deceased husband's adopted heir. This regulation, unlike the previous article and regulation, deals expressly and specifically with posthumous adoption for a deceased person, at least during the lifetime of the widow.

47. Indeed posthumous adoption during the lifetime of the widow under Chinese customary law was recognised by the local Court in Yau Tin-sung v Yau Wan-loi [1984] HKLR 15, a case concerning a rather peculiar type of posthumous adoption known as "kim tiu" during the lifetime of the surviving widow and the role she plays in the selection of the adopted son/"proper successor" under Chinese customary law.

48. But experts on both sides go further and agree that posthumous adoption after the death of the widow is possible. This view has the support of at least one local case, namely, In the Goods of Chan Tse Shi, deceased [1954] HKLR 9. In that case, the husband died in 1923. His widow died twenty years later in 1943 leaving behind no male issue. In 1946, the surviving members of the family adopted two young nephews of the deceased husband as his authorised successors to his line and estate. The Acting Chief Justice, Gould J., applying Qing law, recognised the posthumous adoptions as valid and granted letters of administration in favour of the two nephews as adopted sons of the deceased husband and widow in respect of their respective intestate estates (p. 14) - see below.

49. Leaving aside the problems created by allowing posthumous adoption after the death of the deceased's widow for the time being, the rationale of the device to continue the male line is not difficult to guess or understand by anyone with some general understanding of the traditional Chinese society and its conventional or Confucius values and thinking. But perhaps one need go no further than Jamieson in understanding all this (at pp. 2-6, 20-30):

" The foundation of Chinese society is the Family, and the religion is Ancestral Worship. Ancestral Worship is not a thing which the community as a whole can join in; it is private to each individual family, meaning by family all those who can trace through male descent to a common Ancestor, however numerous, and however remotely related. ...

The family is the unit. The Father or senior male ascendant has control over his sons, his grandsons and their wives as well as over hired servants and slaves. ... In the Father is vested all the family property, and he alone can dispose of it. At his death his eldest son takes his place and the family goes on as before. It may continue so undivided for several generations and is still deemed a single unit. But the Father or Head is also the high priest. He alone is capable of conducting the ancestral worship, whether in the ancestral hall or at the tombs of the ancestors. If irregularly performed by any disqualified person the spirits of the departed will not be appeased, and calamity will fall on the living. If, on the other hand, the sacrifices are duly performed at the stated periods by a qualified descendant, with the customary offerings and oblations, not only will the comfort and happiness of the spirits be secured, but they in turn will extend their protecting care over their surviving posterity. ...

It is from this imperious necessity that the law of succession has arisen. Son succeeds Father in regular order, because he alone is capable of performing this all-important duty. Failing sons a legitimate heir is adopted, because it is of paramount importance that the line should not be allowed to die out, leaving no one to attend to the family sacra. It may be assumed that this was the common or customary law of the land long before the written or statute law made its appearance. Statute law, in this as in many other instances, merely endorsed what already was the rule, and contented itself with forbidding any deviation from it. An illustration of this is seen in the opening sentence of the translation of [article] 78 of the Code in Chapter II: - "Whoever appoints his son successor to the family contrary to law shall be liable to 80 strokes." It does not define, as one would expect, what the law is. That is understood. It is the customary law which has prevailed from time immemorial and which everyone is presumed to know. ...

Roman Law admits the adoption of strangers in blood into the group; Chinese Law does not admit strangers. In both cases married daughters and their descendants are excluded, and for the same reasons, viz., that on marriage they fall under the dominion of their husband's family, and cannot be subject to two jurisdictions. Unmarried daughters in both have a right to maintenance, but are incapable of becoming heirs to the headship of the family, or of inheriting family property. ... In regard to property, the rules of evolution in both cases are identical so far as regards direct descendants. ...

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. ...

If the Father has failed to adopt in his lifetime, the duty falls on the senior Agnates (族長) to select a proper successor, but the Widow would seem to have a considerable voice in the selection. As she is to stand as Mother to the adopted son it may be said that any choice must have her approval at least. In the latter case, that is when the senior agnates and the widow select, the claims of the next of kin are given more weight than they would have as against the wishes of the Father. Their claims are not absolute, but good cause must be shown against the strictly legal heir if he is to be passed over. ...

A son once formally adopted passes out of the control of his original family and loses his right of inheritance or his share in that family property. Conversely he acquires the rights of a natural born son in his adopted family and cannot afterwards be expelled except by a judicial proceeding and for good cause shown. ... But he cannot in any case inherit in more than one of the families.

[S]everal of the reported cases establish the rule which permits a posthumous adoption to be made so as to bring in a brother's grandson as successor. ...

[T]hough not specially emphasised in the code the underlying motive for these rules is the perpetuation of the ancestral worship. Every family has its own particular sacra, consisting of the ancestral tablets, usually arranged with that of the founder of the house in the centre, and those of the four immediately preceding generations set right and left on either side. The duty and capability of rightly conducting the services are co-extensive with the right to the succession and generally to the inheritance of the family property. ...

The successor adopted by the Father or appointed by the Elders in default of direct issue is, as a rule, entitled to the whole of the property. As he undertakes the duties of an only son he acquires the corresponding advantages. ...

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."

"Person who should succeed" ("應繼之人")

50. Jamieson in his work translated "應繼之人" as "legal successor(s)". This is the translation used in his translation of regulation 88(2). Is that a correct translation, or, more importantly, a correct understanding of the phrase, which literally means a person who should succeed? Jamieson's translation of the phrase would seem to suggest that this refers to a particular title or office held by a person, to which he has been appointed - in the present context, this could only mean the heir. But experts on both sides are in agreement that basically the phrase simply means a willing male person within the same kindred or lineage who satisfies the legal requirements for adoption as the son of the sonless male. In other words, he is a legally eligible and willing candidate who is first in line for adoption amongst the pool of potential and eligible adoptees within the same kindred or lineage. He is not yet the adopted son. He is not yet the heir. But he has the best claim to be adopted.

51. As I said, the phrase is used elsewhere in the Code, for instance, article 78, regulation 78(7) and regulation 88(1). The usage of the phrase in article 78 concerning the appointment of an heir is consistent with the meaning suggested by the experts as well as understanding the phrase as meaning the heir. Regulation 78(7) dealing with the appointment of an heir in case the "person who should succeed"/"legal successor" does not get along well with the sonless couple would seem to suggest that the phrase simply means the person with the best claim to be adopted. In any event, in my judgment, regulation 88(1) dealing with division of property puts the point beyond doubt when it specifically refers to appointing a "person who should succeed" as the "heir" when there is no legitimate but only illegitimate son to inherit property ("如別無子, 立應繼之人為, 與奸生子均分。"). Used in that way, the phrase cannot possibly mean an heir or an adopted son.

52. So for all these reasons, I would accept the experts' understanding of the meaning of the phrase as set out by me above. I would avoid using the term "legal successor" as this might create the misunderstanding or confusion that this phrase refers to a titleholder or an appointed person, i.e. the heir/adopted son. In other words, the phrase only refers to the best candidate for appointment as heir by adoption.

53. The regulation does not say that if there is such a person who should succeed, he will inherit the property. The underlying assumption is obviously that in such a case, the elders will and should appoint him as the posthumous adopted son of the deceased person by going through the necessary ceremony. Once that is done, he will become the adopted son of the deceased, and by definition in those circumstances, the heir to his line. In that status, he will continue the male line of his deceased adopted father and succeed to his property.

Succession by daughters

54. Finally, the regulation simply refers to "all the natural daughters" inheriting the property of their father. It does not make any distinction between married and unmarried daughters. Experts on both sides agree that the distinction is irrelevant. I agree. Indeed in an old case Ngai Chung Shi v Ngai Yee Mui (1927) 22 HKLR 105, Wood Acting C.J., basing on the expert evidence available to him as well as a particular English translation of the regulation, went further and found that if there were no natural daughters, any surviving female relatives of the last deceased male member of the family could inherit under the regulation. In this regard, I would simply note that the regulation says if there is no "女", which in the context should be translated and understood, in my view, as "daughter" (rather than female - a translation or understanding which would support the argument that female relatives other than daughters may succeed in the absence of daughters), the property may be forfeited to the government. But of course one is not concerned with the translation but proper construction of the regulation, and moreover one is concerned with any possible custom supplementing the regulation when the regulation is unclear. On all this I have no or no sufficient material adduced before me at trial. The understanding of the Court in Ngai Chung Shi (that in the absence of daughters female relatives may inherit) has the support of Jamieson in a passage (at p. 30) already extracted above. I need not express any definite view on it.

55. Looking at the regulation as a whole, I would say this. The obvious intention of the regulation is that if there is any person who is qualified and willing to be adopted, the property should not go to the daughters. But if there is indeed no such person within the kindred or lineage, the property should go to the daughters almost as a matter of last resort. But even then, the daughters will only be allowed to succeed to the property but not the line of their father, which must remain extinct. Quite obviously, the regulation treats this as an exceptional situation. This is not only confirmed by the expert evidence and the material placed before me but by the use of the word "果" (indeed) to emphasize the surprising situation of there being no person within the same kindred or lineage who should succeed to the property.

Any "person who should succeed"?

56. Bearing in mind the above meanings of the individual components of regulation 88(2), one is now in a position to determine whether the case of the Plaintiff and her elder sister falls within the regulation. First, it is clear that the household of the Deceased has become extinct. This happened not in 1943 when he died, but in 1987 when his widow died, without leaving behind any male issue or adopted son. The couple had no son. No son was adopted during the lifetime of the Deceased. Nor was anyone adopted posthumously during the lifetime of the widow. When the widow died, the household became extinct. So the first requirement of extinction of a household is satisfied.

57. Second, is there any person within the kindred or lineage who should succeed to the property? The 1st Defendant says he is such a person. Alternatively, if he is not, the 1st Defendant argues that it is for the Plaintiff to establish that there is no such person within the kindred or lineage who should succeed to the property.

Any time limitation for posthumous adoption?

58. The Plaintiff takes a fundamental point. She argues that there is now no one who should succeed because the Deceased is dead for fifty-nine long years and his widow has passed away for fifteen years. Granted posthumous adoption after the death not only of the husband but also of his widow is allowed under Qing law, it is now simply too late for any such adoption. And as it is too late for any such adoption, there is simply no longer any person who should succeed (which could only be accomplished by way of adoption).

59. Put another way, the Plaintiff argues that one cannot delay forever the posthumous adoption of a son/heir to continue the male line. There comes a point of time when the household/line of the deceased male has become extinct for too long that it is incapable of being revived by posthumous adoption.

60. Neither Ms. Sze, counsel for the Plaintiff, nor her expert, Dr. Hwang, was able to point to any article or regulation in the Code laying down effectively a time limit for carrying out a posthumous adoption after the death of the widow. But Dr. Hwang maintained that any posthumous adoption must be carried out as soon as possible after the death of the deceased husband. The force of this stance is lessened by my rejection of Dr. Hwang's opinion on when a household becomes extinct. Ms. Sze accepted during final submission that no matter how long after the death of the deceased husband, provided that the widow is still alive, a posthumous adoption may still take place. But what about after the death of the widow?

61. The Plaintiff argues from first principles. The entire rationale of adopting a son, whether during the lifetime of the sonless male or after his death, is to serve two purposes, namely, continuation of the male line particularly for ancestral worship purpose, and succession to property, with the former being the predominant purpose. As Liu J. (as he then was) observed in Yau Tin-sung, supra, at p. 17A:

"In an article entitled "Chinese Law in Hong Kong: The Choice of Sources" Mr. McAleavy hammered home a man's moral obligation to procure, by birth or adoption, an heir based on the Confucius' concept of ancestral worship in "filial piety" and Mencius' condemnation of lineal extinction as the most unfilial act."

62. Whilst the widow is still alive, as Professor Baker suggested in evidence, the widow will be there to perform ancestral worship to her deceased husband as well as his forefathers and ancestors. So perhaps the urgency to adopt a son for the deceased husband is not that great, even though regulation 78(2) of the Code specifically mentions the posthumous adoption of a son by the elders for the deceased husband in such a case.

63. But the situation changes drastically with the death of the widow. There will be no one left to perform the ancestral worship of the deceased husband and his forefathers. If a son is to be posthumously adopted, the elders must act quickly. The longer they delay in so doing, the longer the deceased husband and his forefathers will be left without ancestral worship by descendants. The Plaintiff therefore argues that there would be reached a point of time when the ancestral worship has been neglected for so long that the line should be regarded as extinct forever and beyond rescue.

64. Mr. Cheung, counsel for the 1st Defendant, argued during submission that ancestral worship is just one of the many considerations. He argued that if the Plaintiff's construction of the regulation or understanding of posthumous adoption were correct, this would lead to the most undesirable consequence of allowing the daughters, particularly married ones, to inherit property of a clan member. The property would go to families of outsiders and persons of different surnames. This would seriously disrupt the traditional concept of keeping land within one's clan, kindred or lineage. Professor Baker said in evidence to the effect that this should be defended at all costs. I agree that this would be something quite exceptional and undesirable in terms of traditional Chinese values, and this is reflected to some extent by the use of the emphatic word "果" (indeed) in regulation 88(2) regarding the lack of any person within the kindred or lineage who should succeed.

65. As mentioned above, in the local case of In the Goods of Chan Tse Shi, deceased, supra, the Court recognized as valid two posthumous adoptions made 23 years after the death of the husband and 3 years after the death of the widow. It was argued before the Court that the adoptions came too late. Without saying whether as a matter of principle there was any time limitation on posthumous adoption, the Court concluded on the facts that the adoptions were not made too late. Gould J. said (at p.14) as follows:

"The present case has been argued only from one side and therefore when I accept certain aspects of the law as proved, it is in the absence of evidence to the contrary, and only for the purposes of this application. Subject to the foregoing, I find it sufficiently established that under Tsing law posthumous adoption was valid and that it could be effected before or after the death of the widow of a deceased male. If there was no adoption during the lifetime of the widow, it could be effected after her death by ascendants (if any) or by a family conference; if, as may be, the ascendants had the prior right, it would appear in the present case that all the ascendants joined in the family conference and signed the document; no question therefore arises on that score. The selection of nephews of the deceased husband was in accordance with correct practice. The adoption of two successors is permissible, and persons so posthumously adopted, there being no natural children of the marriage, would be entitled under Tsing law to succeed to the family estate. No law was quoted to indicate whether there was any limitation as to the period after the death of the widow within which the adoption might validly take place. In the present case, a long period elapsed between the death of the husband and of the widow; after the latter three more years elapsed before the document was signed. It was pointed out however that the death of the widow occurred in the middle of the second world war, when conditions were particularly uncertain; I have no reason to suppose, on the evidence before me, that if Tsing law is the only relevant law, the adoption was not a valid one."

66. This case does not provide any support for the existence of such a rule of time limitation. In fact, it evidences that no law was quoted to the Court that such a rule existed under Qing law.

67. One can easily understand the advantage of having such a rule in terms of removing uncertainty. As the Strickland Report observed (at p. 58) in recommending the preservation of Chinese customary posthumous adoption in Hong Kong:

"It has been indicated supra that the custom should continue. If, however, such an adoption were postponed indefinitely the estate of the intestate could never safely be distributed until adoption took place. This is presumably the main reason why posthumous adoption has no place in the Nationalist Code."

68. Any uncertainty that might follow from the lack of a formal time bar would apparently be lessened to some extent by the fact that regulation 88(2) quite obviously envisaged someone bringing the matter of succession to the attention of the elders or in case of dispute to the relevant Qing official, whereupon the question of whether there really was no one within the kindred who should succeed would presumably be investigated and determined. If the elders or official (and in particular the latter), having exercised their/his investigative power, came to a determination one way or another, that should presumably settle the matter forever. Of course this should be the ideal position, but in practice there might be difficulties and uncertainties might entail. That apparently was why posthumous adoption was abolished by the Nationalist Civil Code in the Mainland in 1930/1931. This also highlights one unsatisfactory aspect of posthumous adoption under Qing law.

69. But the more important thing here is that the Strickland Report did not mention the existence of any time limitation for posthumous adoption. Rather the report proceeded on the basis that there was no such rule under Qing law, and gave that as the presumed reason for the abolition of posthumous adoption under the Civil Code. The report actually debated about the adoption of a 1-year limitation as the period within which a posthumous adoption must take place in order to qualify for intestate succession purpose (see pp. 52-53, 58-59 and 74). And if the presumed reason given for the abolition of posthumous adoption under the Civil Code was the correct one, that by itself would provide extra support for saying that no such rule of time limitation existed under Qing law (and hence the need for abolition).

70. In my judgment, the problem with the Plaintiff's argument is that she can point to nothing by way of written law under the Qing Code or custom to support the argument of there being in effect a time bar for posthumous adoption. Neither the case law nor the other material analysed above helps her case. She is forced to rely on first principles. My task here (subject to Ms. Sze's argument on section 13) is to find out what the applicable Chinese customary law is and apply it. I do not sit here to develop Qing law. If no such Qing law or Chinese custom is in existence, it is not my function here to develop the law from first principles or predict how the law should be developed, or more correctly, how it would have been developed by the Qing court if this case had been brought before it in 1898 when the New Territories were leased to the British Crown for 99 years.

71. The Plaintiff argues that there is a time limit beyond which no posthumous adoption may be made after the death of the widow. He who asserts must prove. On the material before me, I find that such proof is lacking.

72. If I were wrong, and I should consider the matter from first principles, I would still have come to the conclusion that first principles do not require such a rule. First, preservation of property within one's own clan is an important and powerful consideration. Second, preserving the male line and ancestral worship are also important and powerful considerations. But quite contrary to the argument of the Plaintiff, such considerations would actually militate against the existence of a time limitation for posthumous adoption. Such a rule of time limitation would actually prevent rather than promote the continuation of the male line and ancestral worship. It does not logically follow from the fact that a posthumous adoption should be made as soon as possible so as not to leave the deceased husband and his forefathers without ancestral worship for too long, that beyond a point of time no posthumous adoption may take place - this would only result in depriving the deceased husband and his forefathers of ancestral worship forever. In my view, better late than never.

73. Of course, given the nature of things and bearing in mind the requirement that the adoption must be from the correct generation, there would be a natural and built-in time bar for posthumous adoption. Moreover, the longer the lapse of time, the more difficult it would be for anybody minded to opposing the daughter's claim to succession to say that there is still any person who should succeed.

74. During cross-examination of Professor Baker who maintained that he was aware of no Chinese law or custom setting a time limit for posthumous adoption after the death of a deceased male and his widow (although this would be unusual), Ms. Sze asked, perhaps rather rhetorically, that if there were really no time limitation, the property would in practice never go to the daughters or the government, as the case may be, under regulation 88(2). 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.

75. In short, I reject the Plaintiff's argument based on any time limitation for posthumous adoption after the death of a surviving widow.

Impact of Adoption Ordinance

76. But then the question still remains, is there any person who should succeed? Here I must consider another fundamental point raised by Ms. Sze, namely, the effect of the Adoption Ordinance (Cap. 290). By and large, it is correct to say that prior to 1971, Chinese law and custom played a major role in relation to a person of the Chinese race domiciled in Hong Kong in the area of marriage, succession and adoption. Furthermore, if one is concerned with nonexempt rural land matters in the New Territories, one has to turn to Chinese law and custom. In 1971, after years of government studies, various pieces of legislation were enacted, the net effect of which was to reduce substantially the significance of Chinese law and custom in the area of marriage and intestate succession. But at that stage, the legislature deliberately left undisturbed the provisions in the Adoption Ordinance relating to the preservation of Chinese customary adoption. Thus section 25 of the Ordinance, originally section 23 of the Ordinance which was first enacted in 1956 (No. 22 of 1956), continued to read as follows:

"Nothing in this Ordinance shall affect any adoption undertaken or to be undertaken under Chinese law and custom but, where any person has been adopted both under such law and custom and under this Ordinance, the provisions of this Ordinance shall prevail."

77. This remained the position until the Ordinance was amended by the Adoption (Amendment) Ordinance 1972 which repealed section 25 and substituted a new section 25 as follows:

"(1) After the 31st December 1972, an adoption in Hong Kong may be effected only in accordance with this Ordinance.

(2) Subsection (1) shall not affect in any way the status or rights of a person adopted in Hong Kong under Chinese law and custom before the 31st December 1972."

See generally Evans, op. cit., at pp. 26-28.

78. Under the Adoption Ordinance (as amended), which has thus become the only basis of lawful adoption in Hong Kong as from 1st January 1973, only an unmarried person under the age of 21 may be adopted. Whilst there is no rule against a widow adopting a son or daughter after the death of her husband as her adopted son or daughter, the Ordinance does not allow or provide for posthumous adoption after the death of the surviving widow for the deceased husband or widow.

79. What is the impact of this development on the present case, and more particularly, on the 1st Defendant's claim as a person who should succeed under regulation 88(2), or on his alternative argument that there may still be somebody who should succeed within the Liu clan, via posthumous adoption? The first thing to note is that the amendment to the Ordinance in 1972 specifically deals with Chinese customary adoption. It is of general application. It does not distinguish between a purported Chinese customary adoption by an indigenous inhabitant of the New Territories and one by a non-indigenous person. Neither can adopt another person in that way anymore after 31st December 1972. Nor does the amendment restrict, on the face of it, its application to areas not concerning nonexempt rural land in the New Territories.

80. In other words, it is arguable that as from 1st January 1973, no valid adoption can take place even amongst indigenous inhabitants of the New Territories, and even if the validity of the purported adoption relates to nonexempt rural land in the New Territories. For it is arguable that given the legislative history of the Adoption Ordinance and the amendment in question, the 1972 amendment was passed after due consideration of the potential impact of the amendment on section 13 of the New Territories Ordinance, as a sequel to the substantial law reform relating to Chinese law and custom in Hong Kong introduced by the legislature in 1971. Put another way, the question is whether the new section 25(1) of the Adoption Ordinance overrides section 13 of the New Territories Ordinance if the validity of a Chinese customary adoption after 31st December 1972 is relevant to the determination of a matter relating to nonexempt rural land in the New Territories. For reasons that will become apparent, I need not express any definite view on the issue.

81. Assuming that the Plaintiff is right in saying that the Adoption Ordinance as amended overrides section 13, how would that help the Plaintiff's case? The Plaintiff basically argues thus. As from 1st January 1973, the Deceased's surviving widow could only adopt a son pursuant to the provisions of the Adoption Ordinance but not otherwise. No Chinese customary adoption would have been valid. This should not have created any problem for the widow if she had wanted to adopt a son so as to continue the male line of her deceased husband and to provide for the succession to his property. All she would have needed to do would be to find an unmarried person under the age of 21 from the 19th generation with the best claim to adoption who was willing to be adopted, and then go through the adoption procedure laid down under the Ordinance for adoption purpose. The adoption would have been valid under the law. And such an adopted son would have fulfilled the requirements under the Qing Code as well, and in that capacity he could succeed to the property of the Deceased.

82. But the problem for the 1st Defendant, so the Plaintiff argues, is that that never happened. And the widow died in 1987. Upon her death, no adoption would have been possible under the Ordinance anymore. In any event, given his age and married status, the 1st Defendant was never eligible for adoption by the widow under the Ordinance. Whether there were others eligible is neither here nor there because once the widow died, no posthumous adoption under the Ordinance could be made.

83. This being the case, so the Plaintiff further argues, the 1st Defendant is not a person who should succeed under regulation 88(2), for the simple reason that he cannot as a matter of law be adopted by the elders posthumously as the son and heir of the Deceased to succeed to the property.

84. Attractive though this argument may seem, I do not accept it. The Adoption Ordinance when read as a whole is clearly a piece of legislation dealing with adoption of an unmarried infant, i.e. one under 21 (or 18 since an amendment to the Ordinance in 1997). For the adoption of such a person in Hong Kong, after 31st December 1972, it "may be effected only in accordance with [the] Ordinance" as per section 25(1). In my judgment, on the proper construction of section 25(1), it does not apply to any adoption of an adult. For plainly, the Ordinance makes no provisions for the adoption of an adult. To construe section 25(1) as requiring the adoption of an adult to be done in accordance with the Ordinance does not make sense.

85. Now there is no dispute amongst the experts that under Chinese customary law there is no restriction on age or marital status of the potential adoptee, and a married adult may be adopted posthumously or otherwise. See also Pegg, Family Law in Hong Kong (3rd ed.) 280-281; Halsbury's Laws of Hong Kong Vol. 12 para. [180.347]; Ngai Chung Shi, supra, at p. 109 relating to the age of the adoptee. The Ordinance does not legislate on, outlaw or invalidate any Chinese customary adoption of an adult.

86. This conclusion is supported further by a reading of the Strickland Report published on 8th December 1950, which after further consultations and deliberation eventually led to the enactment of the Adoption Ordinance in 1956, which was based on the corresponding legislation in the United Kingdom: Pegg at p. 283; Halsbury's Laws of Hong Kong Vol. 12 para. [180.351]. The question of Chinese customary adoption, posthumous adoption and the introduction of the English adoption system were discussed in detail (at pp. 49 to 53, 58 to 59, and 78). The report recommended the preservation of Chinese customary adoption (including posthumous adoption) but set out certain perceived advantages of introducing a parallel English system: see particularly pp. 50 to 51. The report specifically recommended as follows (at p. 74):

"96 (i) Chinese law and custom as to adoption, including posthumous adoption, should be continued whether or not it is, as seems desirable, supplemented by legislation on the United Kingdom model, allowing adoption by Order of Court.

(ii) It should be declared in the case of posthumous adoption that the consent of the widow of the deceased if surviving is a condition precedent and that if the adopted person is sui juris, his consent is necessary, if not that of his parents or guardian. ..." (emphasis added)

87. It is clear from the report that it recognized the posthumous adoption of an adult in its reference to the consent of an adoptee who is sui juris to the adoption. According to the recommendation in the report, the adoption of such a person posthumously under customary law, like all other forms of Chinese customary adoption, should be left untouched by the introduction of any legislation based on the English model. In other words, the Adoption Ordinance enacted in 1956 based on the English model, which dealt with adoption of unmarried infants by court order, was never meant to affect the continued operation of customary law regarding, amongst other things, the posthumous adoption of adults.

88. Furthermore and more fundamentally, the legislation, which focused on the welfare of the adopted infant as its primary consideration, was never intended to apply to adult adoption, and still less posthumous adoption, in the first place, which latter concerned a wholly different purpose, namely, the continuation of the family and ancestral worship: The Strickland Report at p. 50. In my judgment, therefore, the 1972 amendment, removing Chinese customary adoption as a valid mode of adoption and thus making an adoption by court order the only viable mode, simply affects the adoption of an unmarried infant, the subject matter of the Adoption Ordinance from day one, and nothing else. It does not affect the posthumous adoption of an adult under customary law for the purpose of family continuation and ancestral worship.

89. This being the case, if the widow had attempted to adopt an infant between 1st January 1973 and the time of her death in 1987, and if it had been sought to be argued by anybody that that adopted son should inherit the subject property under Chinese customary law pursuant to section 13 of the New Territories Ordinance, then the question would arise as to whether that adoption must have been one done in accordance with the provisions of the Adoption Ordinance before it could be recognised for the purpose of succession. The resolution of this question would depend on whether section 13 is to that extent overridden by section 25(1) of the Adoption Ordinance as amended.

90. However, no such question arises here. No such adoption, customary or otherwise, ever took place. The 1st Defendant now argues that he is still eligible to be posthumously adopted by the elders under Chinese customary adoption. As I explained above, to such a customary adoption of an adult, the Adoption Ordinance and section 25(1) simply do not apply. The question of any potential conflict between the Ordinance and section 13 simply does not arise. There is nothing to stop the 1st Defendant from claiming that he is still eligible to be posthumously adopted pursuant to Chinese custom (assuming that all other requirements are satisfied), and therefore that he is a "person who should succeed" under regulation 88(2).

91. Furthermore, I have serious reservation as to whether in determining if a person is a "person who should succeed" under the regulation in the Code, one should look beyond Qing law and Chinese custom. In other words, it seems to me that the question simply is whether he is a person who should succeed via posthumous adoption under Qing law and Chinese custom, and therefore the fact that he cannot be lawfully adopted under Hong Kong law is neither here nor there.

92. I tend to think that this must be the correct analysis, and in determining whether a person is a "person who should succeed" under regulation 88(2), one talks about whether he should succeed under Qing law and Chinese custom via customary adoption, and nothing else.

93. For all these reasons, I reject the Plaintiff's argument based on the Adoption Ordinance.

Is the 1st Defendant a "person who should succeed"?

94. 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 1st 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 1st 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.

95. The Plaintiff also seeks to argue that the 1st Defendant is not eligible for another reason. The argument runs like this. The 1st Defendant has two sonless elder brothers who have both passed away. Therefore the 1st Defendant is now the heir of his own father (Liu Hop Tseung)'s line. He cannot be adopted as the son of the Deceased without breaking the continuation of his natural father's line.

96. I do not accept this argument. One of the 1st Defendant's sons (Liu Chun Wai), an adult, has been adopted posthumously as the son of one of his deceased elder brothers (Liu Kam Tai) to continue his male line. As I decided above, the Adoption Ordinance does not apply to this type of adoption. In the circumstances, the adoption of the 1st Defendant as the son of the Deceased would not discontinue the line of the 1st Defendant's father, because it would be continued by the posthumously adopted son of the deceased brother of the 1st Defendant (i.e. the 1st Defendant's natural son in his capacity as the posthumous adopted son of his deceased natural brother). In short, there is no objection to the 1st Defendant's being adopted as the son of the Deceased posthumously on this ground. But this is academic because I have decided above that the 1st Defendant is not qualified to be adopted for a different reason.

What about others within the 19th generation?

97. But what about the other Lius of the 19th generation? Is there not a single one of them who may be described as a "person who should succeed" in terms of regulation 88(2)?

98. Who bears the burden of proof in relation to this important if not difficult point? The Plaintiff says he who asserts must prove, and since the 1st Defendant says such a person still exists, he must prove it. On the other hand, the 1st Defendant says he only puts to the Plaintiff to proof that no such person exists. In my judgment, the true principle is that he who asserts something as part of his case bears the burden of proving it according to the applicable standard of proof. This is true even if it involves proving a negative, if the negative forms an essential part of his case. See generally Phipson on Evidence (15th ed.) paras. 4-02 to 4-05, and 4-12 and footnote 50.

99. The Plaintiff relies on regulation 88(2) to claim succession. One of the requirements of the regulation is that there is within the kindred "no person who should succeed". In my judgment, this is an essential element of the case relied on by the Plaintiff. She therefore bears the legal burden of proving that this is indeed the case. This, by definition, involves the Plaintiff establishing a negative. But in my judgment, this is no reason for saying that she does not bear the burden of proving what she has to assert in order to rely on regulation 88(2) in this case, namely, that within the kindred there is "no person who should succeed". But this can be done by circumstantial evidence and inherent probabilities.

100. The dispute between the parties arose at least in 1988. The 1st Defendant claimed himself to be the person entitled to succession before the District Office for registration as successor to the property in question under section 17 of the New Territories Ordinance. This was objected to by the Plaintiff and her elder sister. Litigation was started by the Plaintiff in 1992. The 1st Defendant defended the action but did not make a counterclaim in respect of his own entitlement to succession. Nonetheless in 1994 the clan elders wrote to the District Office claiming that the 1st Defendant was the successor to the Deceased's estate. In the action, both parties argue about whether there is still any person who should succeed. The 1st Defendant claims that he need not be that person. But neither he nor any clan elders has or have suggested anyone else apart from the 1st Defendant as the person who should succeed. A deceased paternal uncle of the 1st Defendant, i.e. the second elder brother of the Deceased (Liu Luk Hseung), had two sons (both of the 19th generation). One has died and the other (Liu Kin Yip) has renounced any interest in the estate of the Deceased.

101. I need not repeat here the restrictions on adoption. Even if one satisfies all the requirements, one may not be willing to be adopted, thereby switching from one's own line to someone else's line and making oneself responsible for worshipping someone else as one's own father, particularly when the relationship between the two lines is not close. Furthermore, such an adoption would have the necessary effect of depriving the adoptee of his right to inherit the property of his natural father. The estate of the Deceased comprises only a piece of property. The financial incentive for adoption may not be great or sufficiently great. The fact is that after the lapse of 14 years after this dispute first arose, the 1st Defendant remains the only person who has come forward to claim entitlement, and that no one else has been put forward by the 1st Defendant or the clan elders as an alternative candidate.

102. All this would constitute good evidence that there is no such person who should succeed. But two matters militate against this conclusion. First, according to the local custom of the Liu clan, after the death of a family head, the power to adopt a son posthumously to continue the family line lies with the widow. After her death, the brothers of the deceased may choose the adoptee. This is quite contrary to regulation 78(2) of the Code which gives the power to the elders to appoint the adoptee. Neither expert suggests that the local custom can override the Code. But the point here is this. Given the local custom, one cannot infer from the fact that thus far only the 1st Defendant has come forward to claim entitlement that there is no other willing and eligible person within the 19th generation to be adopted. For it is quite possible that the elders have simply not looked out for one, thinking (in accordance with their custom) that the power to adopt lied with the widow when she was alive and lies with the brothers of the Deceased (or their issue) after her death.

103. Second, the fact is that the 1st Defendant has since 1988 been claiming that he is entitled to succeed. Given his closeness in relationship to the Deceased, he was obviously the best candidate (but for the one matter I decided above which disqualifies him). There was thus understandably no reason for the elders or anyone else to look further for any potential candidate. In short, it may not be safe, even on the civil burden of proof, to infer from the fact that the 1st Defendant is the only candidate who has come or been put forward to claim succession that there is no other willing and eligible candidate within the 19th generation to be adopted.

104. According to Professor Baker, when he did his field study of the Liu clan in Sheung Shui back in mid 1960s, there were about 3,000 members of the clan. Of course, not all of them belonged to the 19th generation, and some of them must have passed away by now. There is no evidence on the present number of clan members, and certainly there is nothing concrete to show how many of them are males and belong to the 19th generation. How many of them are eligible and amongst them how many of them are willing to be adopted are unknown to me. The evidence is simply inconclusive, even on the civil burden of proof.

Declaratory relief

105. The difficulty facing the Plaintiff does not stop there. The Plaintiff asks for a declaration that she and the 2nd Defendant are entitled to succeed to the property. This must involve the Court deciding in their favour that there is no "person who should succeed". But only the 1st Defendant has been joined. The elders to whom regulation 78(2) of the Qing Code gives the power to choose the posthumous adoptee have not been joined. No one has been appointed to represent those belonging to the 19th generation. In those circumstances, I do not see how my decision on whether there is any "person who should succeed" based on the evidence presented by the parties before me at trial, and any consequential declaration that I might be minded to make, can help the Plaintiff and the 2nd Defendant in claiming succession to the property. The determination and declaration will not be binding on the elders or anyone belonging to the 19th generation except the 1st Defendant.

106. This is a difficulty facing the Plaintiff regardless of whether she bears the burden of proof, a matter hotly contested at trial. For even if I were wrong, and it was for the 1st Defendant to prove that there is still a person who should succeed, and even if I were to come to the conclusion that he was unable to do so, that would not help the Plaintiff very much. Any declaration that I would be minded to make in that case would still not be binding on anybody except the 1st Defendant. The elders could always on the next day after judgment put forward another candidate before the Secretary for Home Affairs under sections 13 and 17 of the New Territories Ordinance as preserved by section 12 of the New Territories Land (Exemption) Ordinance to block the Plaintiff's claim for succession based on the Court's judgment and declaration.

107. A declaration is a discretionary remedy. A declaration that would not serve any real purpose will generally be refused. See generally Hong Kong Civil Procedure 2002 Vol. 1 paras. 15/6/1 to 15/6/8. For all the above reasons, the making of a general declaration that the Plaintiff and the 2nd Defendant are entitled to succeed to the property is quite out of the question.

108. Further, also for the same reasons, it is quite meaningless for me to make a finding on the evidence adduced by the parties before me whether there is still any person who should succeed. Once I decide as I do that the general declaration sought should not be granted, the question ceases to be a meaningful issue and it becomes quite unnecessary for me to decide it. I therefore make no finding on this non-issue.

109. On the material before me, subject to the Plaintiff's further argument based on section 13, I am prepared to make a limited declaration that the 1st Defendant is not eligible to be adopted as the son of the Deceased posthumously, is not a person who should succeed within the meaning of regulation 88(2), and is not entitled to succeed to the property. That would be sufficient to dispose of the 1st Defendant's claim for succession to the property before the District Officer (now the Secretary for Home Affairs).

110. As to whether the elders will put forward any alternative candidate or whether anyone else will come forward to claim succession, the eligibility of any such person to be adopted, and the general question of whether there is still anyone within the 19th generation who is willing and should succeed, that must be a matter for the Secretary for Home Affairs to decide in discharge of his statutory function and duty under sections 13 and 17 of the New Territories Ordinance as preserved by section 12 of the New Territories Land (Exemption) Ordinance. The position may look unsatisfactory. But this is something anticipated by the Strickland Report (at p. 58). In the absence of legislation to curtail the period of posthumous adoption as mooted in the report, there is nothing this Court can do, given the constitution of the parties to this action as pointed out above. As for the Secretary, not only has he a statutory role to perform,

"the position of the Land Officer [now the Secretary] carries with it a deep significance in the eyes of the people of the New Territories: he is not only a Government official but he is regarded by them as the paterfamilias of every clan, family or t'ong." (per Briggs J. (as he then was) in Lai Chi Kok Amusement Park Co. Ltd. (No. 2) v Tsang Tin-sun [1966] HKLR 124, 130-131)

111. In my view, once the 1st Defendant's claim is thrown out, and the Plaintiff and her elder sister become the only claimants to the property, it would be incumbent upon the Secretary to inform the elders and others in the clan (through the normal channel and means) of their claim and invite, as is the usual practice, the submission of any objection within a specific period of time, failing which I would have thought the Secretary would be quite entitled to reach his conclusion on whether there is still any person who should succeed and thus the Plaintiff and the 1st Defendant's claim accordingly. If any objection is received, the Secretary will have to deal with the objection on its merits, which may or may not result in further litigation. This is by no means satisfactory, but it represents what I perceive to be the logical development of this matter.

Whether application of Chinese law and custom mandatory under s. 13 of the New Territories Ordinance?

112. The Plaintiff argues in the alternative that if regulation 88(2) had the effect in law or in practice of depriving the Plaintiff and the 2nd Defendant as daughters of the Deceased of their rights to inherit the subject property, this part of Chinese law and custom would be unjust and oppressive, highly discriminatory against daughters, and should not be recognised and enforced by the Court which must then apply Hong Kong law instead.

113. Central to the Plaintiff's argument is whether under section 13 of the New Territories Ordinance, application of Chinese law and custom is mandatory or merely permissive. The Plaintiff restricts her argument to the proper construction of section 13, and does not rely on any other legislation such as the Hong Kong Bill of Rights Ordinance (Cap. 383) or the Sex Discrimination Ordinance (Cap. 480), or for that matter, the Basic Law. Based on the arguments I have heard, I agree that all this is irrelevant to the issue before me.

114. As I mentioned at the earlier part of this judgment, since the decision of Mills-Owen J. in Tang Kai-chung, supra, in 1970, described as a "landmark decision" by Yam J. in his first instance judgment in To Kan Chi v Pui Man Yau HCMP562/92 & HCMP2084/94 (26/11/98) Chap. 4, para. 4.2, it is a generally held view that section 13 is a mandatory section requiring the Court to recognize and enforce Chinese customary law in all matters in relation to nonexempt rural land in the New Territories. There is no discretion not to apply the same, even though it may be unjust or oppressive, say, according to contemporary social values and standards, such as its heavy bias in favour of males and the corresponding discrimination against females.

115. The gist of the Plaintiff's argument is that the decision only related to tso land in the New Territories, in which case Chinese customary law must be applied because of the peculiar nature of tsos and tongs. The decision has no general application to other matters concerning land in the New Territories. And the conclusion of the learned judge in Tang Kai-chung was simply that "the Court must recognize and enforce Chinese custom and customary right in the case of a Tso in the N.T." (at p. 295). There is no warrant, so the Plaintiff argues, to extend the decision to matters not concerning a tso or tong.

Earlier cases on application of Chinese law and custom

116. It has also been pointed out during submission, quite correctly, that prior to Tang Kai-chung, there were cases suggesting that application of Chinese customary law in Hong Kong is not mandatory. Ms. Sze argued that they represent the true position in relation to application of Chinese customary law save in the case of land held in the name of a tso or tong. So for instance, in Wong Yu Shi v Wong Ying Kuen (No. 1) [1957] HKLR 420, the Full Court had this to say about the application of Chinese customary law in Hong Kong (at p. 443):

"These general observations have been made to indicate that in our view Chinese law and custom prevails only if the corresponding English law is inapplicable in the sense that it cannot be applied without injustice or oppression and if it is not shown to be excluded by Hong Kong legislation. An example of Chinese law and custom being excluded where English law is not considered inapplicable is to be found in the fact that the Rule against Perpetuities has been held to be in force in Hong Kong (Lau Leung Shi v. Lau Po Tsun) as it was in Penang by the Privy Council in Yeop Cheah Neo v. Ong Cheng Neo (supra). An example of local custom being overriden by the application of a Hong Kong Ordinance can be seen in the requirement that probate or letters of administration must be taken out by all personal representatives - Chinese - in respect of estates in Hong Kong, vice In the Estate of Chak Chiu Hang and ors. (supra)." (emphasis added)

See also, for instance, Tse Moon-sak v Tse Hung [1969] HKLR 159.

117. First, I note that these cases do not say exactly what the Plaintiff says. They say that Chinese law and custom prevail only if the corresponding English/Hong Kong law cannot be applied without injustice or oppression. They do not say, as the Plaintiff does, that Chinese law and custom do not apply if they cannot be applied without injustice or oppression. But more importantly, I do not agree that these cases are of direct relevance. They are cases concerning the intestate succession to the estate of a Chinese person who died domiciled in Hong Kong generally. Prior to October 1971, Chinese customary law governed intestate succession to such a person's estate: See Evans, op. cit., at pp. 13 to 19. This was not based on section 13 of the New Territories Ordinance, and indeed had nothing to do with it.

118. To cut a long story short, soon after the ceding of Hong Kong Island to United Kingdom under the Treaty of Nanking, Ordinance 15 of 1844 was passed. Section 3 of the Ordinance provided that "the law of England shall be in full force" in Hong Kong "except where the same shall be inapplicable to the local circumstances" of Hong Kong "or its inhabitants". The same theme was followed by section 7 of the Supreme Court Ordinance of 1873 which stipulated that:

"such of the laws of England as existed when the Colony obtained a local legislature, that is to say on the 5th day of April 1843 shall be in force in the Colony except so far as the said laws are inapplicable to the local circumstances of the Colony or its inhabitants and except so far as they have been modified by laws passed in relation to the laws of England."

119. This eventually became embodied in section 3 of the former Application of English Law Ordinance (Cap. 88) (which was not adopted by the Standing Committee of the National People's Congress upon the establishment of the Hong Kong Special Administrative Region in 1997), which provided that the English common law and rules of equity applied in Hong Kong "so far as they are applicable to the circumstances of Hong Kong or its inhabitants" and "subject to such modification as such circumstances may require."

120. All this was taken by the Courts prior to 1st July 1997 and in particular prior to the general law reform relating to application of Chinese customary law in 1971 to mean that English laws applied in Hong Kong unless they could not be applied without injustice or oppression, in which case Chinese law and custom would be applied. One of the prime examples of application of Chinese law and custom in place of the corresponding English law in this context was in the area of intestate succession to the estate of a Chinese male who died domiciled in Hong Kong prior to the law reform in 1971. Another area was the marriage law of such a person again prior to the marriage law reform in 1971. In these areas, it was thought by the Courts that the application of English law would be unjust or oppressive or would produce unjust or oppressive results. Wong Yu Shi, supra, and other cases cited by Ms. Sze during submission, were all such cases concerning whether English law could be applied without injustice or oppression and thus whether Chinese law and custom should be applied in its place. They have no direct relevance to the proper construction of section 13 with which Tang Kwai-chung was directly concerned.

121. Section 13 is not concerned with the application of Chinese law and custom in Hong Kong in general when the corresponding English law could not be applied without injustice or oppression. Instead it deals with a very specific area, namely, nonexempt rural land in the New Territories. It has it own peculiar origin and history, something that was fully explored in Tang Kai-chung. The two situations must not be confused with each other, which is the basic fallacy of the Plaintiff's argument in this regard. In fact, at least according to the Strickland Report, which was written 20 years before Tang Kai-chung was decided, the two topics were distinct topics and were dealt with separately; and for land matters governed by section 13, the report clearly stated that Chinese law and custom should be applied (subject to certain immaterial exceptions): See pp. 6-8 of the report, and the most illuminating Appendix 1 to the report (at pp. 82 to 121) entitled "The True Interpretation of Section 5 of the Supreme Court Ordinance, 1873, in relation to the Survival of Chinese Law and Custom in Hong Kong" written by the then Solicitor General, Mr. G.E. Strickland, in whose name the report is generally known.

Cases after Tang Kwai-chung

122. It is also true that after Tang Kwai-chung, there was only one occasion, according to counsel's research, in which the Court expressly and specifically adopted and followed (as opposed to making a passing reference to) Tang Kwai-chung's construction of section 13 as a mandatory provision in relation to a non-tso land situation: See Tsang Wing-lung, supra, a case on intestate succession to land in the New Territories covered by section 13. As has been pointed out to me, in Wu Koon Tai v Wu Yau Loi [1995] 2 HKC 732, 737G (reversed on appeal: [1996] 2 HKLR 477), Litton JA (as he then was) in the Court of Appeal only said that section 13 "empowered" the Court to recognize and enforce Chinese custom or customary right affecting land in the New Territories, thereby suggesting that section 13 is only an empowering section rather than a section of mandatory application. It has also been said that neither the Court of Appeal nor the Privy Council in that case took the opportunity to endorse the decision of Tang Kai-chung in so far as it relates to non-tsoi land.

123. I do not agree. I would have thought that if the general understanding of the effect of Tang Kwai-chung was not accepted by the Privy Council or the Court of Appeal, they would have expressly said so. To argue from the mere use of one word "empowering" in a passing reference to the application of Chinese law and custom in matters concerning land in the New Territories in a lengthy Court of Appeal judgment that the Court of Appeal must have disagreed with the decision in Tang Kai-chung in so far as it relates to non-tsoi land is far-fetching. The lack of any express endorsement of the case by either the Court of Appeal or the Privy Council, or for that matter, by other judges in cases decided after Tang Kai-chung, is, in my view, explicable by the general acceptance of the correctness of the decision in relation to all matters concerning land in the New Territories, and thus the lack of any need for express or specific endorsement.

Tang Kwai-chung

124. But more fundamentally, I would respectfully say that the reasoning of the decision is detailed and sound and is not restricted to tso land. It is based both on the legislative history of the New Territories Ordinance in general and section 13 in particular as well as on the linguistic construction of the section using established canons of construction. This can be seen from the following extract from the judgment (at pp. 287 to 291) where the learned judge dealt with in great detail the pertinent legislative history of section 13:

" It is necessry to refer to the history of the N.T. and its legislation in some detail. By a Convention between Great Britain and China signed at Pekin on the 9th June 1898 the area known as the N.T. was leased to Great Britain for 99 years. By the N.T. Order in Council made on the 20th October 1898 it was provided that the N.T. should be part and parcel of the Colony of Hong Kong, and that from a date to be fixed by proclamation to be made by the Governor all Laws and Ordinances in force in the Colony should take effect in the N.T. The proclamation was duly made and published on the 8th April 1899 (Hong Kong Government Gazette G.N. No. 202 of 1899). Accordingly, and by virtue of section 7 of the Supreme Court Ordinance, 1873 (section 5 of Cap. 4 of the Revised Edition of 1950), such of the laws of England as existed on the 5th April 1843 became in force in the N.T. (as well as in the rest of the Colony) "except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by Laws passed by (the Colony's) legislature". The N.T. (Exemption for Laws) Ordinance, 1899 provided for certain Ordinances of the Colony not to apply to the N.T. but this is not material to the present case; the Ordinances made inapplicable concerned such matters as building and public health. By the Local Communities Ordinance 1899, applicable only to the N.T. , provision was made, inter alia, for establishing local tribunals with jurisdiction to decide civil dispute; the jurisdiction not to extend to debts etc. over 100 dollars or to land exceeding 100 dollars in value; the proceedings to be conducted in Chinese, to be informal, and the duty of the tribunals being to do substantial justice, subject to rules to be made by the Governor in Council; legal practitioners were to have no right of audience. The next material step appears to have been the establishment of a land court in the N.T. by the Land Court (N.T.) Ordinance 1900; the Ordinance provided that "All claims to land in N.T. shall ... notwithstanding any previous registration, be heard and determined by a Land Court ..." On claims being established titles were to be granted, and in order to enable that to be done it was declared by section 17 that all land in the N.T. was the property of the Crown during the term of 99 years specified in the Convention of 1898. A member of the Legislative Council, Mr. Whitehead, published a formal protest against the manner in which the Bill had been carried into law (Gazette G.N. No. 115 of 1900). Later in the same year the N.T. Land Court Ordinance, 1900 was passed in terms little different from the Land Court (N.T.) Ordinance, 1900. According to a Report (published in the Gazette as G.N. No. 200 of 1905) the Land Court completed its work by the end of 1904; the necessary surveys had been completed earlier in that year. In 1905, the N.T. Land Ordinance, 1905 was passed. It applied specifically to the N.T. but provided that the Governor might exempt any land in the N.T. from its provisions. It made sundry provision concerning the registration of instruments affecting land in the N.T. By section 6 the Land Officer was empowered "to decide in a summary way" all questions and disputes affecting land (excepting, unless with consent, disputes to which the Crown was a party, or affecting land having a capital value exceeding $5,000 or an annual value exceeding $500); also that the Land Officer should "have power to recognise and enforce any Chinese custom or customary right in relation to land", i.e. in terms similar to the present section 13 of Cap. 97. Under section 8, legal practitioners were not to have any right of audience except by special permission of the Land Officer. Section 9 provided that every judgment or order of the Land Officer should be conclusive, subject to an appeal to the Supreme Court if the Land Officer certified the subject-matter to exceed $2,000, or by leave of a judge. Section 10 provided that except by way of appeal no proceeding relating to land in the N.T. might be commenced in the Supreme Court unless the Crown were a party or the Land Officer certified the land to be worth more than $5,000 or to have an annual value exceeding $500. Under section 11 it was provided that the Supreme Court should "have power to recognise and enforce any Chinese custom or customary right ...", i.e. again in terms similar to the present section 13 of Cap. 97. Section 13 made provision for the registration of managers in respect of any land "held from the Crown under Lease or other grant, ... in the name of a clan, family or Tong", and conferred the powers of the sole owners on such managers in dealing with the land, subject to the consent of the Land Officer (in terms similar to those of the present section 15 of Cap. 97). It appears that Tso lands have always been treated as "clan, family or t'ong" lands. These statutory provisions were repeated in the N.T. Regulation Ordinance, 1910 (No. 34 of 1910) which became (with amendments) Chapter 97 of the Revised Edition of the Laws of 1950. There were however some changes in the pecuniary limits of the Land Officer's jurisdiction. ...

Returning to the legislation affecting the N.T. - in 1961 the District Court assumed jurisdiction over land matters in the N.T., within its ordinary limits of jurisdiction (vide the N.T. (Amendment) Ordinance, 1961). The sections conferring judicial powers on the Land Officer and providing for appeals from his decisions were repealed. Thus jurisdiction became vested solely in the District Court and the Supreme Court. The then section 16, providing that (except on appeal from the Land Officer, or where he had no jurisdiction or the Crown was a party) no proceeding relating to land in the N.T. should be commenced in the Supreme Court or the District Court, was replaced by the present section 12 of Cap. 97. Section 17 became the present section 13 which I have already set out in extenso (i.e. the section referring to the recognition and enforcement of Chinese custom and customary right). The defence contends that on the proper construction of this section, or at least in the circumstances of the present case, the Court is obliged to recognise and enforce Chinese custom, in particular alleged customs of inalienability of the Tso's lands and overall dedication thereof for worshipping purposes."

125. Based on the above, the learned judge then construed section 13 of the Ordinance in the following manner:

" There was considerable argument on the effect of the provisions of sections 13 and 15 of the N.T. Ordinance. Counsel for the Plaintiffs contended that section 13 was permissive only, not obligatory or mandatory, and that section 15, in conferring on the registered managers the powers of sole owners, had the effect of avoiding the application of the rule against perpetuities. The latter contention does not appear to me to meet the objections of remoteness of vesting (in its wider sense); accordingly, as it appears to me, the matter depends on the construction of section 13. Counsel for the defendants argued that section 13 was mandatory and he pointed, with some force, to the fact that the same phraseology, namely "shall have power", was employed in section 13 as was employed in the (repealed) subsection (1) of section 12 (1950 Revised Edn. of the Laws) whereby it was provided that the Land Officer "shall have power to decide in a summary way all questions and disputes in connexion with ... land ..."; likewise in subsection (2) it was provided that "The Land Officer shall have power to recognise and enforce etc ...". The authorities on the question whether provisions such as the provisions of section 13 are permissive or mandatory are conveniently gathered together in Maxwell on the Interpretation of Statutes (11th Edn. at pp. 236 et seq) (see also Craies on Statute Law (6th Edn. pp. 284 et seq.)). Particular reliance was placed on the case of Julius v. Bishop of Oxford. Looking at the matter free from authority, and purely as a matter of construction, I would feel bound to conclude that the repealed section 12(1) conferred upon the Land Officer a jurisdiction which he was bound to exercise, and that it would then be very difficult to escape the conclusion that the provision relating to Chinese custom and customary right was likewise mandatory, because of its use of the same expression "shall have power" and because of the chaos which could ensue if the application of custom were merely discretionary. In a situation such as Cap. 97 envisages, authorities, I think, are of limited assistance; one must give priortiy to the language of the enactment itself and the circumstances in which it was enacted. When one comes to consider the circumstances in which the N.T. Ordinance came to be enacted, including the history of the N.T., in my view all doubts disappear. The establishment of the Land Court to ascertain and determine claims to land, with the provision for titles to issue in respect of claims duly established, the form of the block Crown leases expressly recognising the various forms of clan holding, including that of a Tso, and the provisions of (the present) section 15 - expressly recognising such holdings- taken in combination - lead, I think, irresistibly to the conclusion that the Court must recognise and enforce Chinese custom and customary right in the case of a Tso in the N.T. It is then a necessary corollary that one must disregard any aspect of English law, including the rule against perpetuities or any rule regarding unusual modes of devolution, which might affect the customs or trusts of the Tso; and I would so hold."

126. It is abundantly clear from the about lengthy extracts that the Court's reasoning was based on the legislative history and general construction of the section. It was not restricted to tso land or excessively affected by any peculiarity relating to tso land. The conclusion reached by the learned judge was expressed in terms of mandatory application of Chinese customary law to tso land and non-application of the English rule against perpetuities. This was so because the case concerned tso land. I have no hesitation in concluding that the construction placed by the Court on section 13 is of general application and is not so restricted. As I said, I respectfully agree with it.

Concessive treatment of New Territories land

127. To what has been said in Tang Kai-chung, I would only add one word, based on what I have already mentioned in relation to the application of Chinese law and custom in Hong Kong generally in situations where the corresponding English law could not be applied without injustice or oppression. As clearly explained in Tang Kai-chung (at p. 287), soon after the leasing of the New Territories to the United Kingdom for 99 years, by virtue of the New Territories Order in Council in 1898, the Government Proclamation in 1899, and section 7 of the Supreme Court Ordinance 1873, the laws of England as existed on 5th April 1843 became in force in the New Territories (as well as in the rest of Hong Kong) "except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants, and except so far as they have been modified by Laws passed by (the Colony's) legislature". In other words, at that stage, in the New Territories, as well as in the rest of Hong Kong, Chinese customary law instead of English/Hong Kong law was already applicable if the latter could not be applied without injustice or oppression. This was so whether the subject matter concerned land in the New Territories or not. If the Plaintiff's contention were correct, so that application of Chinese customary law to rural land in the New Territories under section 13 (or its predecessor) was not meant by the legislature to be different from its application under circumstances already defined by law in Hong Kong prior to the leasing of the New Territories, there would have been no need to enact the new provisions at all.

128. This, in my view, provides some additional support for saying that the new provisions were enacted with the intention to accord nonexempt rural land in the New Territories some special treatment in terms of continued application of Chinese customary law, which is distinct from the rest of the territory or other subject matters. This could well be explained by the simple fact that (from the angle of the former colonial government) one was concerned with land in the New Territories, which unlike the rest of the then colony, were only leased to the United Kingdom for 99 years, and this called for or justified a more disciplined, or, put another way, concessive application of Chinese customary law in the area of land matters in the leased territories.

129. I therefore reject the Plaintiff's alternative argument.

If not Chinese customary law, what Hong Kong law to apply?

130. Given my conclusion on the proper construction of section 13, I need not express any view on whether on the facts, application of Chinese customary law would be unjust and oppressive, or, perhaps more fundamentally, how that whole question should be approached or decided; and the further question of what law in Hong Kong should be applied in the case of non-application in whole or in part of the relevant Chinese customary law.

131. As to the latter issue, there are authorities to the effect that upon the death of a husband, his estate passes to his widow for her enjoyment for life under Chinese law: In the Goods of Chan Tse Shi, deceased, supra, at p. 17; Ho Sau Lam v Ho Cheng Shi (1915) 11 HKLR 92, 93. If this is indeed the case, then when the Deceased died in 1943, the subject property passed to his widow who only died in 1987. The Intestates' Estates Ordinance does not apply to a death prior to October 1971 but this would seem to present no problem because one would be concerned with the death of the widow in 1987, and thus the distribution of her estate including the property according to the provisions of the Ordinance.

132. As I said, I need not express any definite view on any of these interesting matters.

Outcome

133. In conclusion, as I indicated above, I make a limited declaration that the 1st Defendant is not eligible to be adopted as the son of the Deceased posthumously, is not a person who should succeed to the subject property within the meaning of article 88 regulation (2) of the Qing Code, and is not entitled to succeed to the subject property.

134. I reject the Plaintiff's claim for a general declaration of entitlement to succession to the subject property.

135. As regards costs, the Plaintiff obtains a limited declaration against the 1st Defendant but fails to get the general declaration she seeks. The 1st Defendant loses on the limited declaration but quite obviously succeeds on a number of important issues and matters vigorously contested in this action. All this should be reflected in my order as to costs.

136. Looking at the matter in the round, I make an order nisi that the 1st Defendant pay to the Plaintiff 25% of her costs of the action to be taxed if not agreed; the Plaintiff's own costs be taxed in accordance with the Legal Aid Regulations (Cap. 91); and there be no order as to costs in respect of the 2nd Defendant (who has taken an inactive part in the action and at the trial). Unless any party applies to vary this order nisi as to costs within 14 days after the handing down of this judgment, the same shall become absolute upon the expiry of the period.

137. Lastly, I would like to thank counsel for their assistance in this case, and I must express my gratitude to Mr. Cheung for his extremely helpful and thorough research into the relevant authorities and material on Chinese law and custom. Although I have not found it necessary to refer to many of them in this judgment, they were all illuminating and helpful.