CHEUNG LAI MUI v. CHEUNG WAI SHING AND OTHERS

HCA 1652/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 1652 OF 2012

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REASONS FOR DECISION
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1. This was an application by the plaintiff by summons for leave to appoint a DNA expert to conduct a DNA test on the first and third defendants (“D1 and D3”) and an order that they submit their blood or bodily samples to the DNA expert to determine whether they are the descendants of Cheung Tak Ming deceased (“the deceased”) who died in 1933. 

2. On the eve of the hearing, in her reply submissions for the plaintiff, the plaintiff’s counsel sought alternative relief, namely, that in the event of D1 and D3 refusing to give samples, the plaintiff invited the court to exercise its discretion under the court’s inherent jurisdiction to stay their respective counterclaims.  At the conclusion of the hearing, the plaintiff’s application was dismissed with costs, with directions for such costs to be summarily assessed.

Background facts

3. The underlying dispute between the parties concerns a piece of land (being lot 1101) about 4,000 ft² in size and situated very close to the town of Sai Kung (“the land”). 

4. The land formed one of the land lots inherited by Cheung Ping Wan (“Wan”), Cheung Ping Kau (“Kau”) and Cheung Ping Fuk (“Fuk”) in equal shares from the deceased.

5. Wan who was born in 1917 died on 7 September 1999 leaving surviving him a son Cheung Wai Shing (“D1”) born 1948 and a daughter Cheung Wai Min (“D2”) born 1949.  Cheung Chi Yung (“D3”) is D1’s son.  On his death, Wan gave his one‑third share in the land to his children D1 and D2 in equal shares.  Accordingly, D1 and D2 are some of the registered owners of the land, each holding a 1/6 undivided share.

6. Kau was born in about 1928 and passed away on 31 May 1997 leaving surviving him an adopted daughter who is the plaintiff in this action and to whom he had bequeathed his one‑third share in the land. The plaintiff is the executrix of Kau’s estate.

7. Fuk (who was born in about 1934 and suffered disabilities) never married and died in 1991/92 intestate and without issue. Letters of administration to his estate were granted to the plaintiff who, as such administratrix and as executrix of the estate of her father is accordingly the co‑owner of the remaining two-thirds undivided share in the land.

8. The action which was commenced in September 2012 concerns an alleged encroachment by the defendants by:

(1) constructing a 3‑storey house (“structure A”) on the land;

(2) constructing a 1‑storey extension (“structure B”) on the land being an extension to House 1099 which house adjoins the north western boundary of the land; and

(3) erecting a gate controlling access to the land. 

The structures are said to be unauthorised and illegal and not built in compliance with the Building Ordinance. 

9. D1 is the registered owner of House 1099 and has lived there since about 1974 with his family including his son D3 until D3 moved to live in structures A and B in about 2002/2003.

10. The position of D1 and D2 is that pursuant to a family agreement/consensus amongst members of the Cheung family including Wan, Kau and Fuk and themselves, it was agreed that D3 should possess and use the land, D3 being the only male descendant of that generation of the deceased’s family.  It was said that D1 and D2 having no control over the land at all were not responsible for the structures erected on the land. 

11. D3’s case is that he used and occupied the land on the basis pursuant to a family agreement, common intention and/or consensus that he should become its sole owner.  As a result, he has exclusively and openly controlled the land and used it as the home for himself and his family since 1992, continually improving the land by building and maintaining a garden, and built structures A and B as early as 2002 and 2003.  D3’s defences are founded on common intention constructive trust; proprietary estoppel and adverse possession.

12. The plaintiff amended her statement of claim in March 2013 raising a new allegation that Wan was not a natural son of the deceased and alleged that D1 and D3 are not the male descendants of the Cheung family and hence the family agreement/consensus could not have existed.

13. The summons in the present case was taken out on 22 September 2014 seeking leave for the appointment of the DNA expert and for D1 to D3 to attend an appointment within 21 days from the date of the order to submit blood or bodily samples for the purpose of lineage analysis.

14. The court received the written submissions of Mrs Dora Chan, counsel for the plaintiff, on 21 April 2015.  One day later defendants’ counsel Mr Alan Kwong sent in his written submissions, inter alia, taking the point that the court has no jurisdiction to compel the defendants to provide DNA samples. 

15. On the following day (being the day immediately preceding the date of the hearing), Mrs Chan filed her supplemental submissions effectively accepting the proposition that the Court has no power to compel D1 and D3 to give bodily samples for DNA testing. Instead, she submitted that in the event of D1 and D3 refusing to give samples, she would invite the court to exercise its discretion under its inherent jurisdiction to stay the respective counterclaims of D1 and D3 “insofar as they concern the Consensus”.

The application

16. Confronted squarely by the jurisdictional problem, the plaintiff had to concede at the hearing that the court has no power to compel D1 and D3 to submit to a DNA test.  Short of going away empty‑handed, on the assumption and in the event of D1 and D3 refusing to submit to a DNA test on a voluntary basis, Mrs Chan’s application morphed into a request made on the spot and without seeking leave to amend the summons, that the court should exercise its inherent jurisdiction to stay the respective counterclaims of D1 and D3 insofar as they concern the consensus issue.

17. The parties have filed extensive affirmations in these proceedings.  The factual disputes are legion and it is impossible to predict what findings of fact a trial judge would make at the trial after hearing live evidence.  Nor is it the role of this court in this application to do so.

18. Underpinning the plaintiff’s case is that D1 and D3 are not the male descendants of the deceased and that therefore there would be no reason for any family arrangement/consensus that D3 should ‘inherit’ the land.  Her entire case is premised on an assumption that absent a blood relationship, there could not have been any family arrangement or consensus as to how the land should devolve.

19. On the family arrangement/consensus issue, the plaintiff’s position is that Wan was not a natural son of the deceased. Rather, he was a refugee/illegal immigrant from China who, at the end of the Second World War, was employed by Cheung Shing Heung (“Heung”) (said to be the son of the deceased’s elder brother Cheung He Yo (“Yo”)) as a gardener/handyman and who helped to look after the fields in Sai Kung owned by the Cheung family. 

20. To that end, the plaintiff has obtained witness statements from Cheung Ping Fat (“Fat”) (a son of Heung) and Cheung Tim Lui (“Lui”) (a son of Fat) who are said to be descendants of the deceased’s elder brother Yo.  A family tree prepared by the plaintiff as Annexure 2 to her Re‑amended Reply to the Re‑amended Defence and Re‑amended Defence to Re‑amended Counterclaim of D3 dated 2 April 2015 is reproduced as the appendix to these Reasons.

21. The defendants’ evidence on this issue in outline is as follows.  The deceased had two wives.  Wan was the son from his first wife.  The mother of Kau and Fuk was his concubine although apparently she had already conceived Kau by the time she became the deceased’s concubine. Despite having different mothers, Wan and Kau were close as natural brothers.  Fuk who suffered from physical disabilities was sent back to China aged eight and did not return to Hong Kong until he became an adult.

22. D1 explained that when Wan was in his 20s, he went to China with other young men to fight the Japanese and belonged to the Dongjiang column.  After he was injured he was sent back to Hong Kong but as the decommissioning fee was inadequate for him to get a train ticket back to Hong Kong, he walked the last leg and after three days arrived in Sai Kung on foot.  That could explain why some thought he was an illegal immigrant.

23. D1 lived in the Cheung’s ancestral house after he was born until about 1974 when he started to live in House 1099 that adjoins the land.  D3 also lived in the ancestral house after he was born in 1971 until D1 moved to House 1099.  In brief, they maintain that they were on good terms with the senior Cheung family members who were very fond of D3 and D3 grew up playing on the land that was adjacent to his home. 

24. Central to the many factual disputes between the parties is the relationship that existed between Wan, Kau and Fuk and whether they actually treated each other as brothers with kinship such that they would enter into a family arrangement for D3 to inherit the land. Inevitably, Wan’s role and relationship within the Cheung family, D1 and D3’s actual relationship with other members of the Cheung family would be critical. Even if D3 were not a blood relative, it would not necessarily rule out the existence of a family arrangement/consensus since relationships are not necessarily and exclusively blood‑based.

25. It will be seen from the family tree that the deceased would have left no living male descendants if the plaintiff were correct that Wan was not a natural son of the deceased.  It would not be beyond one’s contemplation that a traditional Chinese family that might otherwise be heirless could well wish someone of whom they were very fond, who grew up in the family and treated as a family member to inherit the land if he was of the male sex.

26. That aside, there is a considerable body of circumstantial evidence that appears to support the view Wan, Kau and Fuk treated each other as brothers and as sons of the deceased with equal status. Suffice it to say that those are matters for determination at trial and it would not be appropriate to comment on them at this stage. 

27. For those reasons I do not agree that, absent a genealogical link, no family arrangement or consensus could be established.

28. In any event there are other reasons why the proposed DNA expert evidence is of little probative value.  What was proposed was to conduct the DNA tests on the bodily samples of D1 and D3 and two relatives named Fat and Lui.  It will be seen from the family tree that they are descendants from another branch headed by Yo who left Sai Kung in about 1900 and lived in Happy Valley.

29. Mrs Chan placed great reliance on §3 of D1’s supplemental witness statement where D1 stated that Cheung To Bo had two sons including the deceased and Yo and that Yo had a son Heung.  She submitted that those were admissions by D1 of those facts.

30. That passage from D1’s supplemental witness statement was not made in response to any allegation of fact made by the plaintiff.  As such, it could not have amounted to an admission of any fact. When one looks at the family tree, what the defendants are saying (and I agree) is that even if a DNA test were to show that D1 and D3 are not blood relatives of Fat and Lui, it would not assist because it is uncertain whether they are related to Cheung To Bo and there is no evidence to show that Yo was actually the biological brother of the deceased.  The fact that Heung is no longer alive means that no DNA sample can be obtained to verify whether or not he was actually the biological son of Yo or that Fat is the biological son of Heung.

31. In the circumstances it is not even necessary to examine correctness of the plaintiff’s submission that there is an established practice to stay the claimant’s action when the claimant refuses to consent to a scientific examination.

 Mrs Dora K H Chan, instructed by So, Lung & Associates, for the plaintiff

Mr Alan Kwong, instructed by Tung, Ng, Tse & Heung, for the defendants

Appendix