JORA SISI OMAR v. JORA HARMIDAR OMAR

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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BETWEEN

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D e c i s i o n

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Applications

1.  Before the court are three applications :

(1) the plaintiff’s application for summary of disposal of the action pursuant to Order 14A and Order 14 of the Rules of the High Court;

(2) the plaintiff’s application to strike out certain parts of the defence and the counterclaim (“DCC”);

(3) the defendant’s application to strike out certain parts of the statement of claim (“SOC”) and the reply to defence to counterclaim (“RDCC”);

2.  The background circumstances may be summarized as follows.

Background

3.  Mr Abdool Kadar Omar (“the Deceased”) was an Islam.  He and Madam Harmidar Ng Yuk (“Madam Ng”) celebrated their marriage at a mosque in Hong Kong on 19 April 1944 (“the Marriage”).

4.  The defendant was born on 7 April 1951.  She was not the natural daughter of the Deceased or Madam Ng.  Since 17 January 1952, she had been living with the couple.  By adoption order dated 19 April 1960 (“the Adoption Order”), the Deceased and Madam Ng formally adopted the defendant as their daughter (“the 1960 Adoption”).

5.  In about 1954, the Deceased had a relationship with a Madam Wong Miu Mee (“Madam Wong”).  She bore him three children, Andy, the plaintiff and Lucy.

6.  On 16 February 1957, United Co-operative Building Society Limited (“the Society”) was registered.  The Deceased was registered as a member.  The Society owned a Government Housing Scheme.  It conferred on the Deceased, as member, exclusive right and possession of 3/F, 170 Sai Wan Ho Street, Hong Kong (“the Property”).

7.  Section 17 of the Co-operative Societies Ordinance, Cap 33 (“CSO”) provides :

“17. (1) On the death of a member, a registered society may transfer the share or interest of the deceased member to the person nominated in accordance with the rules made in this behalf, or, if there is no person so nominated, to such persons as may appear to the committee to be the heir or legal representative of the deceased member, or may pay to such nominee, heir or legal representative, as the case may be, a sum representing the value of such member’s share or interest, as ascertained in accordance with the rules or by-laws :

Provided that -

(a) …

(b) in the case of a society with limited liability, the society may transfer the share or interest of the deceased member to such nominee, heir or legal representative, as the case may be, being qualified in accordance with the rules and by-laws for membership of the society, or on his application within six months of the death of the deceased member to any person specified in the application who is so qualified.”

8.  Section 21 of the CSO further provides :

“21. In order to be qualified for membership of a co-operative society a person, other than a registered society, must -

(a) have attained the age of 18 years;

(b) be resident within or in occupation of land within the society’s area of operations as described by the by‑laws.”

9.  Under Clause 7 of the By-Laws of the Society, a member may nominate in writing either the spouse or a parent or descendant to be his beneficial successor in the event of his dying or becoming a lunatic.

10.  By a nomination in writing dated 12 May 1960, the Deceased nominated Madam Ng to be his beneficial successor to his membership of the Society (“the 1960 Nomination”).  The Deceased died on 5 December 1977.  Pursuant to the 1960 Nomination, Madam Ng succeeded the membership of the Deceased with the Society and was so registered on 2 January 1978.

11.  On 2 January 1979, Madam Ng nominated the defendant as her beneficial successor to her membership with the Society (“the 1979 Nomination”).

12.  The Society was dissolved on 12 March 1998.  On 25 April 1998, Madam Ng passed away.

13.  It is not in dispute that the plaintiff has been living at the Property since 1960.  She commenced the present proceedings in July 2011.  Mr Chong, for the defendant, told me at the hearing that because of the present proceedings, the liquidator of the Society appointed under section 41 of the CSO has not taken any step to deal with the interest in the Property.

Pleadings

14.  The SOC is not easy to follow.  Stripped to its bare essentials, the plaintiff’s pleaded case runs like this.

15.  First, the plaintiff is entitled to succeed to the estate of the Deceased, derived from his membership with the Society, in her capacity as his heir or legal representative.

16.  Second, by reason of various matters including what effectively are legal submissions, the Marriage was invalid.  Since the Marriage was invalid, Madam Ng was not the Deceased’s spouse.  The 1960 Nomination was therefore invalid.  Madam Ng should not have been registered as a member of the Society in January 1978.

17.  Third, because Madam Ng was not the Deceased’s spouse, they could not have satisfied the statutory requirement of section 5(2) of the Adoption Ordinance, Cap 290, namely, that the adoptive parents must be two spouses.  The 1960 Adoption was therefore invalid.

18.  Fourth, since the 1960 Adoption was invalid, the defendant was not Madam Ng’s adopted daughter legally.  The 1979 Nomination was therefore invalid.

19.  Fifth, the defendant made false declaration that she resided at the Property when in fact she has never done so.  She does not satisfy the live-in requirement under section 21 of the CSO to be qualified as a member of the Society.

20.  The plaintiff sought a declaration that the Marriage is invalid, a declaration that the adoption of the defendant in invalid; and an order that a letter of administration of the Deceased’s estate be granted to her and consequential relief.

21.  The defendant pleaded in the DCC that latest by 19 April 1944, Madam Ng had converted to Islam.  The Marriage was entered into in accordance with the personal law of both the Deceased and hers – the law of Islam.  It was a valid marriage.  Alternatively, they had been living together as husband and wife since 1944, the common law presumption of husband and wife applied.  The 1960 Adoption was valid.  The Adoption Order had been registered with the General Register Office on 30 April 1960.  The plaintiff had no locus to challenge the validity of both the Marriage and the Adoption Order.  Alternatively, such challenges are time-barred.

22.  On her interest in the Property, the defendant pleaded that upon the death of the Deceased, Madam Ng was registered as a member of the Society and had since become a member thereof.  Upon the dissolution of the Society, the right to succeed Madam Ng’s membership became a chose in action.  Upon her death, such right became part of her intestate estate which the defendant is entitled to succeed.  The plaintiff’s claim against the defendant’s interest in the Property is time-barred any way.

23.  The defendant further alleged that the plaintiff had been allowed to stay at the Property for free because of the blood and family ties between the parties.  By service of the pleadings, she revoked the plaintiff’s licence to stay at the Property and counterclaim for delivery of vacant possession of the Property by the plaintiff within 30 days.

24.  In the RDC, the plaintiff repeated quite extensively what she had already pleaded in the statement of claim and made reference to some wholly irrelevant matters.

25.  I now deal with the three applications in turn.

Application for summary disposal

26.  By the Order 14A application, the plaintiff sought a determination of two issues :

(1)     that the Marriage was invalid (“the 1^st Issue”); and

(2)     that the adoption of the defendant did not fulfill the statutory requirement of two spouses under section 5(2) of the Adoption Ordinance, Cap 290 (“the 2^nd Issue”).

The 2^nd Issue is predicated on a finding in respect of the 1^st Issue in her favour.

27.  Acting on the basis that the court would agree with her on the Order 14A application, the plaintiff then sought summary judgment under Order 14.

28.  The plaintiff’s applications under Order 14A and Order 14 are wholly misconceived.  They can be disposed of shortly.

29.  It is common ground that the Marriage was an Islamic marriage and that its validity has to be decided by reference to the Islamic law.  This calls for expert evidence.  The plaintiff has however proffered none.  As a Muslim, she pleaded what she regarded as the applicable Islamic law, which was repeated in her submissions.  I do not think she is qualified or entitled to do so.  Further, I also agree with Mr Chong that the validity of the Marriage is fact–sensitive, involving the circumstances of how it was actually celebrated at the time.  The 1^st Issue is patently not a suitable question of law for determination under Order 14A.

30.  It must follow that the 2^nd Issue is not appropriate for determination under Order 14A either.

31.  It also follows that the plaintiff’s application for summary judgment under Order 14 must fail.

32.  Further, as rightly submitted by Mr Chong, the pleadings have given rise to numerous issues which cannot be resolved without a full trial.  Those issues include :

(1)     Whether the Marriage was valid;

(2)     Whether the 1960 Nomination was valid;

(3)     Whether the 1960 Adoption was valid;

(4)     Whether the plaintiff has locus to challenge the validity of the Marriage and the 1960 Adoption;

(5)     Whether Madam Ng’s registration as a member of the Society was valid;

(6)     Whether the 1979 Nomination was valid;

(7)     Whether upon dissolution of the Society, the 1979 Nomination became a chose in action which was capable of forming part of Madam Ng’s intestate estate upon her death.

33.  Finally, given the allegation of fraud against the defendant, the application for summary judgment also offends the fraud exception in Order 14, rule 2 (b).

34.  This is clearly not a case for Order 14.

35.  For the above reasons, both the plaintiff’s applications under Order 14A and Order 14 are dismissed.

Application to strike out the DCC

36.  The plaintiff did not specify in the summons the relevant parts of the DCC that she wanted to strike out.  She only did so in her affirmation filed in support of the application by grouping them into different categories.  I will deal with them accordingly.

(A) Paragraphs 37 to 40(b), 40(c) and 42

37.  In paragraphs 37 to 40(b), the defendant pleaded the fact that the Deceased and Madam Ng had entered into a valid marriage in 1944, alternatively, the common law presumption of husband and wife applied. In paragraphs 40(c) and 42, the defendant pleaded the fact that she had been lawfully adopted by the Deceased and Madam Ng in 1960. 

38.  The plaintiff contended that the defendant had made mistakes on facts and Islamic affairs, and these paragraphs are made out excuses to get round the laws.  However, the mere fact that the plaintiff considered these facts to be untrue is not a ground for striking out.

(B) Paragraphs 44 and 48

39.  These paragraphs concern the plea of limitation defence.  Plainly, they cannot be struck out.

(C) Paragraphs 12 and 36

40.  In these paragraphs, the defendant denied varies allegations pleaded in the SOC and pleaded certain matters to support her case.  The plaintiff said they should be struck out essentially because she is right in what she has pleaded and that she has the right to claim in her capacities as heiress and descendent.  These are not proper grounds for striking out.

(D) Paragraph 6

41.  In this paragraph, the defendant denied that the plaintiff has any right to claim adverse possession.  The plaintiff said she has the right to claim my home on the legal on the legal basis of adverse possession.  Again, this is not a ground for striking out.

(E) Paragraphs 49 to 50

42.  In these paragraphs, the defendant pleaded that Madam Ng nominated her as nominee to succeed Madam Ng’s membership with the Society, to take effect from Madam Ng’s death, and that the Society was dissolved on 12 March 1988.  The plaintiff said they should be struck out because the nomination was invalid, and that even should it be valid, the defendant failed to fulfil the live in requirement.  These matters have to be determined at trial.  They cannot be struck out.

(F) The Counterclaim in its entirety

43.  The plaintiff wanted to strike out the counterclaim because the defendant has been “living in a dream world” and that the counterclaim is unbelievable.  That assertion is not a ground for striking out.

(G) Paragraphs 8, 15 and 17

44.  The plaintiff wanted to strike out these paragraphs because they are false.  But again, it is a matter for trial and not striking out.

45.  The plaintiff’s application for striking out is entirely misconceived.  It is dismissed accordingly.

Application to strike out the SOC

46.  The defendant wanted to strike out :

(1) In the SOC :-

(i)  paragraphs 3, 4, 7, 14, 15, 27‑30, 42(ii)‑42(iv), 42(vi)‑(xi), 43(ii)‑43(viii), 43(x)‑(xii), 44(ii)‑(xi), 45(ii)‑(iv), 45(v)(a),45(vi), 45(vii)(a)-(b),45(viii)-(xi) (“Category 1”);

(ii)  paragraphs 34-40, 44(x), 46-50 (“Category 2”); and

(2) The RDC in its entirety, save for paragraphs 35, 42, and 45 (“Category 3”).

47.  Mr Chong submitted that Category 1 contains assertions of law or legal arguments, rather than assertions of facts.  As such they should not be included in the SOC.  In particular :

(1) Paragraph 3 pleads the “governing legislative instruments”;

(2) Paragraph 4 pleads the “specific legal requirements”;

(3) Paragraph 7 pleads general principles of equity;

(4) Paragraphs 14 and 15 are the plaintiff’s interpretation of the “governing legislative instruments”;

(5) Paragraphs 27 - 30 are the plaintiff’s legal arguments as to the application of the “governing legislative instruments”

(6) Paragraph 42(ii)-(iii) are the plaintiff’s elaboration of Islamic marriage;

(7) Paragraph 42(iv) refers to the plaintiff’s own research on the history of licensed venues for Islamic marriages in Hong Kong;

(8) Paragraph 42(vi)-(ix) are the plaintiff’s elaboration on the law on marriage in Hong Kong during the war period, customary marriage, and modern marriage and her legal arguments on how should the law be applied in the present case;

(9) Paragraph 42(x) is the plaintiff’s submission on how Islamic law should apply in the present case;

(10) Paragraph 42(xi) is the plaintiff’s submission and assertion that Islamic law recognized the marriage of the Deceased and Madam Ng, and citing a published article of the Chief Imam of Hong Kong;

(11) Paragraph 43(ii)-(iii) are her submissions on the capacity of Madam Wong as surviving spouse and concubine;

(12) Paragraphs 43(iv)-(vii) contains the plaintiff’s submissions on the legal requirements of modern marriage and their application in the present case;

(13) Paragraph 43(viii) pleads the law on concubinage, referencing Family Law in Hong Kong by Leonard Pegg;

(14) Paragraph 43(x) is the plaintiff’s submissions on the relevance and strength on the facts stated;

(15) Paragraph 43(xi)-(xii) are the plaintiff’s submissions on Madam Wong’s status of concubine;

(16) Paragraphs 44(ii)-(x) are her submissions on the legal principles concerning adoption law and their application in the context of an Islamic marriage in the present case;

(17) Paragraph 44(xi) are her submissions on the “wish and intention” of the Deceased, and her inclusion of the defendant at the probate application;

(18) Paragraphs 45(ii)-(iv), (v)(a) relate to her submissions on the law on registration of children;

(19) Paragraphs 45(vi) is the citation of Ng Ka Ling v Director of Immigration (1999) 1 HKLRD 315;

(20) Paragraphs 45(vii)(a)-(b), (viii)-(xi) contain the plaintiff’s assertions of various domestic legislations, including the Companies Ordinance, Fatal Accidents Ordinance, the Basic Law, various articles of the International Covenant on Civil and Political Rights, citing the case law of Wong Kam Ying v Man Chi Tai, and Tristam and Coote’s Probate Practice.

48.  I agree with Mr Chong that these paragraphs, which contain law and legal submissions, are objectionable.  They should be struck out.

49.  The ground for striking out Category 2 is irrelevance.

50.  Mr Chong’s analysis of Category 2 is as follows :

(1) Paragraph 34 is the plaintiff’s speculation and opinion on the defendant’s application for probate of Madam Ng’s estate;

(2) Paragraph 35 is a comparison between the size of the defendant’s property in Canada and the Property, and the plaintiff’s opinion that the defendant is aiming at a “windfall profit”;

(3) Paragraph 36 is the plaintiff’s opinion on how much is the Property worth, and how much is the defendant’s costs;

(4) Paragraph 37 is the plaintiff’s speculation on why other families living next to the Property did not sell their flats, and her opinion that developers are uninterested in the building;

(5) Paragraphs 38-39 contain the plaintiff’s view that certain civil servants had made mistakes;

(6) Paragraph 40 is the recollection of an incident involving a teenager Wong Kwan Heung (with no connection to the present case), and Plaintiff’s complaint that the Social Welfare Department failed to help her;

(7) Paragraph 44(x) deals with the plaintiff’s the defendant opinion that has been enjoying social benefits of Canada and has secured provisions from her family after marriage and that she would still enjoy these benefits and security after her adopted status is “cleared off”;

(8) Paragraphs 46-50 state that the plaintiff had spent considerable time and effort in preparing and researching for this case and that she would like to share these materials with the community for educational purposes.  The plaintiff also stated that the Chief Imam of Hong Kong had written an article based on the facts of this case and it has been published in the Hong Kong Law Society’s publications.  Further, the plaintiff opined that the “working styles” of “related civil servants and lawyers” have been questionable.

51.  I agree with Mr Chong.  These are all irrelevant pleas and should be struck out.

52.  On Category 3, Mr Chong submitted that the purpose of a reply is to enable a plaintiff to set up an affirmative case in answer to the facts pleaded by a defendant.  It is wholly unnecessary to repeat in extenso what he has already pleaded in the statement of claim.  I think as a matter of general principle, Mr Chong’s submission must be correct. Here, paragraphs 1 to 6, 9, 12 to 27, the second paragraph of 29, paragraphs 31 to 34 and the 1^st paragraph of 55 of the RDC are very much a reiteration of various paragraphs of the SOC.  (In his written submissions, Mr Chong has complied a very helpful summary setting out the repetitions.)  They should be struck out.

53.  Mr Chong next complained that paragraphs 7, 12, 22, 39, 40, 42 to 45, 47 to 49, 51, 53 to 54, 57 to 59, 61, 64 and 65 of the RDC all contain legal arguments.  They should be struck out.  I agree.

54.  Mr Chong then submitted that paragraphs 10 to 12, 28 to 29, 36 and 37, 60, 62, 66 to 68 of the RDC contain either the plaintiff’s own assessment of the strength of the parties’ case, her opinion and speculation on various matters or her sentiments.  These are all objectionable and should be struck out.  Again, I agree.

55.  Finally, Mr Chong contended that paragraphs 8, 21, 38 to 42, 52 and 2^nd and 3^rd paragraphs of 55 of the RDC contain wholly irrelevant matters.  Having gone through these paragraphs, I agree with Mr Chong.  They should be struck out.

56.  For the above reasons, I allow the defendant’s application for striking out.

Costs

57.  Costs should follow the event.  I order the plaintiff to pay forthwith costs of all the three applications, including all costs reserved, to be taxed if not agreed.