XCHRX YU CHO WAH v. YIM NGOR AND OTHERS

HCMP 1571/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1571 OF 1998

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D E C I S I O N

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1. The Plaintiff is the lender of a sum of money, the 3rd Defendant is the borrower and the 2nd and 1st Defendants were mortgagors of the property in question. Money judgment has been obtained against the Defendants and the only matter left in these proceedings is the question of possession and sale of the property.

2. This is an appeal from a Master who had refused leave to the Applicants to join as Defendants under Order 15 Rule 6(2) to claim an interest in the property in question. The Applicants' claim is based on their being daughters of the owner of the property who had died in 1968 when Tsing Law still applied to succession to the property of a person dying intestate. The Applicants say that they were entitled to a dowry at the date of death of their father because they were unmarried at that time, although they are now all married.

3. Ms. Lai for the Applicants has referred me to certain passages in the Strickland Report which contain recommendations but which apparently were not enacted in the New Territories Ordinance. The other case that she referred me to, being Wong Pun Ying v. Wong Ting Hong [1963] HKLR 37, seems to be against her, where at the second holding, the entitlement to dowry appears to be limited to a claim made when the daughter was still unmarried. Ms. Lai said, however, that the recommendations in the Strickland Report must have been based on Chinese Customary Law although she is as yet unable to point to any passages in any authoritative books to support her proposition.

4. She has applied for an adjournment to adduce expert evidence on Chinese Customary Law in this respect. This was opposed by Mr. Chan acting for the Plaintiff who said that his client could be prejudiced by delay, although he has not been enable to point to any actual incidence of prejudice. In the exercise of my discretion, balancing the prejudice that would be suffered by the Applicants were they to be shut out at this stage, as opposed to the prejudice to the Plaintiff which would simply be a question of time, I thought it would be proper to grant an adjournment to the Applicants to enable them to adduce expert evidence on Chinese Customary Law. Ms. Lai said that a period of four to six weeks would be required, that seems to be appropriate and there has been no objection by Mr. Chan to the period of time sought. Accordingly, I would grant Ms. Lai's application for an adjournment of this appeal.