LAI WAI HA v. LAI WAI CHEUNG, in his capacity as the administrator of the estate of Lai Hing Yuen, Deceased

HCA 1187/2015

[2021] HKCFI 3316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CIVIL ACTION NO 1187 OF 2015

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J U D G M E N T

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A. INTRODUCTION

1.  This is the trial hearing of the plaintiff’s administration action against the defendant, the administrator, for, inter alia, accounts and declarations for her entitlement under intestacy and Chinse law and custom (“CLC”).

2.  At trial, the parties have agreed as follows:

(1)  As an unmarried and lawful daughter of the Deceased, the plaintiff is entitled to a share to the residuary estate of the Deceased (the “Estate”) under the Intestates’ Estate Ordinance, Cap 73 (“IEO”) and maintenance under CLC insofar as they are applicable.

(2)  The defendant shall render annual accounts of the Estate to the beneficiaries of the Estate, the first starting on 1 January 2022.

3.  In the circumstances, the remaining issues are very narrow, namely, which assets of the Estate fall under the IEO and CLC respectively and, insofar as assets under CLC is concerned, the quantum of the maintenance.

B.      BACKGROUND

4.  The deceased herein is the late Mr Lai Hing Yuen (the “Deceased”), died intestate on 29 May 1972.  He was married to Madam Man Foon Yu (the “Mother”) in around 1944 and had the following children born within the wedlock:

(1)  Lai Wing Hung (黎詠紅), daughter, born in 1945;

(2)  Lai Wai Cheung (黎偉祥) (the original defendant herein), son, born in 1947, died in 2020 (“Wai Cheung”);

(3)  Lai Wai Cheong (黎偉昌), son, born in 1949, died in 2018;

(4)  Lai Lai Yung (黎麗容), daughter, born in 1951;

(5)  Lai Wai Chu (黎慧珠), daughter, born in 1953;

(6)  Lai Lai Fong (黎麗芳), daughter, born in 1955;

(7)  Lai Wai Ling (黎偉凌), son, born in 1957;

(8)  Lai Wai Hung (黎偉鴻), son, born in 1960;

(9)  Lai Wai Ha (黎慧霞) (the plaintiff), daughter, born in 1962.

5.  The letters of administration of the Estate (“LA”) was granted to the Mother and Wai Cheung on around 14 August 1974.

6.  The Deceased was a member of one Lai’s clan which happens to be a rather big landowner in the New Territories.  According to the schedule of assets, at the time of death, the Estate was composed of (i) modest amount of cash and personal effects of around $600; (ii) 1/7 share in 11 pieces of lands held by him and 6 other people; (iii) 1/7 interest in the estate of Madam Lai Chung Kwai (the “LCK Estate”) which comprised of around 41 pieces of land and (iv) interest as 1 of the 7 members of the Lai Tsat Hing Tong (the “Tong”) with 2 pieces of lands held in the name of its managers.

7.  Over the decades, there has been negotiation and/or litigation among the Mother and Wai Cheung (on the Estate’s behalf) on the one hand and other interested parties of the LCK Estate on the other which resulted in some kind of family arrangement in terms of exchange of interests.  Meanwhile, some of the aforesaid lands have been resumed by the Government or been sold and hence compensation received by the Estate.

8.  The most significant of the aforesaid is the deed dated 25 July 1983 among the administrators of the LCK Estate, the Estate (as 1 of the 7 beneficiaries of the LCK Estate) and other beneficiaries of the LCK Estate.  Pursuant to the deed, the Estate surrendered its 1/7 interest (direct or indirect) in a number of land in return for the vesting in it the whole interest of Lot 832H, also known as 10 Wai Yan Street, Tai Po, New Territories (the “Wai Yan Premises”).

9.  Appendix A annexed to this Judgment is a table setting out (i) the evolvement of ownership of the landed assets; (ii) the compensation/sale proceeds received by the Estate for the resumed/sold land and (iii) the total estimated value of the Estate’s direct/indirect interest in the landed assets not yet resumed or sold.  Given that the plaintiff is not seeking a dollar-and-cent judgment, some details set out in Appendix A are for reference only and may not be material to this Judgment.

10.  The plaintiff was 10 when the Deceased passed away.  She started working after graduating Form 5 in 1981.  Since then, she has received no financial support from the Mother or Wai Cheung.  The only exceptions are that she had been living at the 1^st Floor (or “二樓” expressed in Chinese) of the Wai Yan Premises rent-free until 2001 when the premises turned uninhabitable, and small amounts of pocket money when she was unemployed.

11.  The plaintiff has never been married.  She is now around 59 years old and approaching retirement age.  She earns a modest income as a part-time accounting clerk or the like and has no substantial savings.  Before the instant action, she has never received any share of the Estate from the Mother or Wai Cheung.  Nor, except the foregoing exceptions, has she received any maintenance from the same.

12.  The Mother died in 2012, leaving Wai Cheung as the sole administrator of the Estate.  Despite the plaintiff’s urges, Wai Cheung has not distributed a share of the Estate to the plaintiff.  Left with no choice, the plaintiff commenced this administration action against Wai Cheung with legal aid in 2015.

13.  Soon after the commencement of the instant action, Wai Cheung did pay the plaintiff $100,000 on around 23 November 2015 “on ex gratia” basis.

14.  Indeed, the Estate does not seem to have been well administrated.  For example, according to Wai Cheung, the Estate, for reason unknown, has never received any rental for its direct or indirect interest in the lands.  In particular, Wai Cheong, the second eldest son of the Deceased, has been using the Ground Floor of the Wai Yan Premises to run his business rent free despite the Estate wholly owned the property.

15.  At the end of the day, according to the joint expert on valuation, the total worth of the Deceased’s interest (direct or indirect) in the landed assets that remain in the name of the Deceased or in the name of the LCK Estate is around $52 million and, according to Wai Cheung’s Witness Statements, the total cash received by the Estate for land resumption etc is around $6 million.

16.  On 23 April 2020, after setting down but before the trial, Wai Cheung passed away unexpectedly.  Mr Wong Tak Shing was eventually appointed the independent administrator of the Estate and was substituted as the defendant herein on 16 April 2021.

C.      THE APPLICABLE LAW REGARDING THE DISTRIBUTION OF ASSETS OF THE ESTATE

17.  The Deceased died intestate on 29 May 1972, ie after the commencement of the IEO on 7 October 1971.  In general, therefore, the distribution of the assets of the Estate must be governed by the laws of intestacy and not CLC.

18.  The only possible exception to the said general position is non-exempted New Territories (“NT”) land.  By virtue of section 11thereof(now repealed), the IEO did not apply to land underthe New Territories Ordinance, Cap 97 (“NTO”).  Instead, section 13 of the NTO, which requires the courts to enforce Chinse law and custom regarding non-exempted NT land, and section 17 thereof, which requires the Land Officer (now Secretary of Home Affairs) to register succession of NT land, remained in force.

19.  With the commencement of the New Territories Land (Exemption) Ordinance, Cap 452 (the “Exemption Ordinance”) on 24 June 1994, however, all NT land which had not already been exempted are exempted from the NTO: section 3.  At the same time, the aforesaid section 11 of the IEO was repealed, a new section 13(2)was inserted into the NTO to take away the court’s jurisdiction to enforce CLC in inheritance matters, and section 17 of the NTO was repealed.

20.  The only reason why CLC may still come into play in the present action is because and only because of the transitional provision of section 12 of the Exemption Ordinance:

“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 […]” (emphasis added)

21.  In other words, if (and only if) a piece of non-exempted rural land X was registered in the name of a deceased Y by way of succession at the time of 24 June 1994, the succession of the land X by the successor of the deceased Y will remain governed by CLC.  In the instant case, therefore, for this court to apply CLC, the following conditions must be met:

(1)  The land concerned is non-exempted rural land;

(2)  On 24 June 1994, such land is held in the name of the Deceased registered under the NTO (ie section 17 succession);

(3)  No grant issued within 3 months of demise (no issue herein);

(4)  The proceedings before the court are concerning succession under section 17 of the NTO (no issue herein).

22.  As for 21(1) above, as submitted by the plaintiff, it is comparatively easy to know whether a certain lot has been exempted by the Governor.  A simple land search can more or less tell.  The more difficult part is whether it is “rural land”.  According to section 2 of the Exemption Ordinance, “rural land” is defined as:

“(1) […] “rural land” (農村地) means land in the New Territories being the subject of a Government lease of an old schedule lot, village lot, small house holding or similar rural holding.

(2)     For the purposes of the definition of “rural land” (農村地) in subsection (1), the expressions “old schedule lot”, “village lot”, “small house holding” and “similar ruralholding” have the meanings respectively assigned to them under the Government Rent (Assessment and Collection) Ordinance (Cap 515).”

23.  Among the definitions, old schedule lot is obviously the most common form of rural land.  Section 2 of the Government Rent (Assessment and Collection) Ordinance in turn defines “old schedule lot” as:

“land held under a block lease granted by or on behalf of the Governor to the persons described in the schedule to the lease.”

24.  For 21(2) above, ie land held in the name of the Deceased registered in accordance with the NTO, it means that being held in the Deceased’s name is not enough.  It must be registered in his name under the NTO.  Note that there are only two kinds of registration under the NTO.  Registration of managers of t’ong under section 15 and registration of succession under section 17.  As section 12 of the Exemption Ordinance expressly excludes the former, the “registered in accordance with the [NTO]” requirement must be referring to registration of succession under section 17.  As such, rural lands held in the Deceased name but not registered in accordance with the NTO (for example, rural lands purchased or otherwise acquired by him) do not fall under this category.

25.  The restrictions may sound artificial.  But it is what it is.  The Secretary of Home Affairs’ speech regarding section 12 during the second reading of the bill does not suggest otherwise.  Apparently, the intent behind the transitional provision was to and only to preserve the traditional succession for those lands that were so succeeded under section 17 in the first place and not otherwise.

D.      CASE LAW ON QUANTUM OF MAINTENANCE FOR UNMARRIED DAUGHTER UNDER CLC

26.  Whilst it is well established that, under CLC as applied to Hong Kong, unmarried daughter is entitled to maintenance from her father’s estate until marriage (and to dowry upon marriage), the case law on quantum of such maintenance is very limited.

27.  In the pre-IEO case Wong Pun Ying and others v Wong Ting Hong [1963] 1 HKLR 37, the deceased had left behind two sons and one daughter.  The daughter was getting married and claimed dowry.  Scholes J held:

“The remaining question I have to decide is to how much dowry she is entitled. There is very little authority on this question. Dr Kao, the expert witness, stated that this was a matter to be agreed by the family, and that on the family failing to do so, it should be a reasonable amount to be fixed by the court. I see no reason to disagree with that opinion by the expert witness, and I so find it correct for the circumstances of this case.

The next question is how much is a reasonable dowry. I have some difficulty in deciding this matter, but in all the circumstances of this case, I think that what Dr Kao suggest, there being only three children and only one daughter, that 1/10 of the estate would not be unreasonable for a dowry and therefore I consider that the first plaintiff should get a dowry of the value of 1/10 from the estate; I am also satisfied that after the payment of her 1/10 dowry, the residue of this estate should be divided equally between the [two sons].” (p 42-43) (Emphasis added)

28.  In another pre-IEO case Wong Ying-kuen v Wong Yu-shi and others[1969] HKLR 391, an unmarried daughter of a well-off family claimed for maintenance before marriage and dowry upon marriage.  Briggs J (as the late Chief Justice then was) held:

“The third defendant [ie the unmarried daughter] is a woman of 29 years old. She is employed in an import and export business and will shortly become a partner in another such firm. She lives with her mother, the first defendant. She has not married but she is the mother of two children aged about 9 and 7.

She claims maintenance from the estate. […] Since she is in employment and living with her mother I think she should be paid five per cent of the income of the estate until her marriage. In awarding this sum I have not taken into account the maintenance of her two children.

The final matter is whether the third defendant is entitled to a dowry if and when she marries [...] I will follow the previous case Wong Pun Ying v Wong Ting Hong and I award a sum the equivalent of 10% of the capital value of the estate at the time of the marriage […]” (at 404) (Emphasis added)

29.  It is noteworthy that the court in the foregoing case, whilst having referred to Wong Pun Ying, did not expressly adopt the guideline on assessment of dowry as the guideline on maintenance.

30.  Chung Hop Shing v Yeung Shui Fun, HCA 5416/1984 (Unrep, 30 May 1986) is a post-IEO case in which an unmarried daughter claimed dowry.  Master Suttill, in assessing damages, likewise cited Wong Pun Ying.  At the end of the day he awarded close to 10% of the estate as the dowry.  The case seems to involve no entitlement under the laws of intestacy though.

31.  So far as the research goes, the plaintiff is unable to find any other relevant cases.  As such, strictly speaking, there seems to be no judicial guideline on quantum of maintenance at all.  Even if one draws an analogy with dowry, the only guideline is indeed the word “reasonable” in Wong Pun Ying and no more.  How entitlement under the IEO and maintenance under CLC interacts with each other is completely up in the air.

32.  The comparatively recent Court of Appeal case Lok Tin Choi v Lai Kwai Lin [2015] 2 HKLRD 448 is another case in which the unmarried daughters claim maintenance before and dowry upon marriage.  The court, however, did not find CLC applicable in the first place as the relevant lands had already been resumed by the Government.  That said, the court made the following remark towards the end of the judgment:

“As the Judge had refrained from addressing the specific Chinese law and custom raised in this case, I will likewise refrain from doing so beyond saying that the implication and the mechanism of implementing this Chinese custom, if it is applicable, in the 21^st century Hong Kong require detailed discussion.” (para 6 on 457)

33.  Indeed, “Chinese law and custom” actually refers to the “Ching law and custom as it existed in 1843 with such modifications in custom and in interpretation of the law as have taken place in Hong Kong since that period” (eg Wong Ying-kuen at 394).  What may be customarily deemed to be reasonable in the 1960s may no longer be so in the 2020s when gender equality has become one of the core values of Hong Kong both in terms of the culture and the law.

E.      NON-APPLICABILITY OF CHINESE LAW AND CUSTOM TO MOST OF THE LANDS IN QUESTION

34.  As mentioned above, there are 3 categories of land set out in the schedule of assets in the LA.  First, land held in the name of the Deceased and 6 others (ie 1/7 share).  Second, land not held in the name of the Deceased but in the name of the administrators of the LCK Estate of which the Deceased is 1 of the 7 beneficiaries.  Third, land held in the name of the managers of the Tong of which the Deceased was 1 of the 7 members.

E1.    Land held in the name of the Deceased (Part I of Appendix A)

35.  For land in this category, the Deceased’s 1/7 interest in Lot 763 in DD 6 has been exchanged and no longer belong to the Estate.  By reason of the Court of Appeal authority Lok Tin Choi, cited above and to be elaborated below at paragraphs 50 and 51, it is no longer subject to the application of CLC.

36.  Likewise, the Estate’s 1/7 share in Lot 1429 in DD 114 (together with the other 6 co-owners’ interest therein) seems to have been extinguished by reason of adverse possession.  It no longer belongs to the Estate and hence CLC does not apply anyway.

37.  As for other land held in the name of the Deceased, some of which would likely satisfy the requirement of section 12 of the Exemption Ordinance and they have been set out in the Agreed Facts.  They are:

(1)  Lot 640 in Demarcation District (“DD”) 11;

(2)  Lot 206 & 252 in DD 112;

(3)  Fanling Lot 611 & 639 in DD 51.

38.  Take Lot 206 in DD 112 as an example.  As one can see from the schedule to the Block Crown Lease (“BCL”) of DD 112, the lot appeared on it and hence a “schedule lot” and a “rural land”.  Further, as one can see from the land search, 1/7 of it was held in the name of the Deceased by “succession”, which obviously refers to registration of succession under section 17 of the NTO.  It has not been further succeeded as of 1994.  And there is no indication from the land search record that it has been otherwise exempted by the Governor before the Exemption Ordinance.

39.  Meanwhile, there are 3 lots that, per se, do not appear on the schedule to the BCL but their mother lots do (or arguably do).  They are:

(1)  Lot T47CRP in DD 6;

(2)  Lot 740A in DD 25;

(3)  Lot 136RP in DD 112.

40.  Whilst Lot 740 and Lot 136 clearly appeared on the schedule of their respective BCL, the schedule of DD 6 is too blurred to tell exactly whether Lot T47 is on it.  The land register of Lot T47CRP does not suggest that its original grant cannot be traced though.

41.  And even if the mother lots of all of the 3 lots are schedule lot and hence rural land, it is not clear whether these sub-lots fall under the definition of section 12 of the Exemption Ordinance.  More specifically, it is unclear whether these sub-lots can be categorized as “the subject of a Government lease of an old schedule lot, village lot, small house holding or similar rural holding.”  Neither the definition of “rural land” under the Exemption Ordinance nor the definition of “land” under the NTO(as adopted by the Exemption Ordinance) expressly define “land” to include sub-lot that is carved out thereof.

42.  Absent express statutory definition, the plaintiff does not formally agree to the applicability of CLC to these 3 lots as such.  But the plaintiff is ready to concede that the words “subject of a Government lease of an old schedule lot” admits of the interpretation that it does include sub-lots carved out of such lot.  After all, the sub-lots derive their Government lease from their mother lot.  In my view, the concession is correctly made.  I hold that CLC applies to these 3 lots.

43.  There are 2 other lots whose 1/7 share is held by the Deceased.  They cannot be found on the schedule to their BCL.  They are:

(1)  Lot 763 in DD 6;

(2)  Lot 4427 in DD 51.

44.  Lot 763 in DD 6 has been exchanged and the Estate has no interest therein whatsoever.  CLC cannot be applicable.  Anyway, the schedule to the BCL of DD 6 is very much wanting.  Apparently, part(s) of the schedule to the BCL of DD 6 is/are missing.  Whilst schedule to the BCL usually runs for tens of pages, the one to DD 6 has only a few.  There is no practical way to tell if Lot 763 is on the schedule.  The land register of it says that its original grant cannot be traced.

45.  Likewise, Lot 4427 does not seem to appear on the schedule to the BCL of DD 51 either.  Its land register also says its original grant cannot be traced.

46.  To summarize, I hold that the succession to the following land is governed by CLC:

(1)  Lot 640 in DD 11;

(2)  Lot 206 & 252 in DD 112;

(3)  Fanling Lot 611 & 639 in DD 51;

(4)  Lot T47CRP in DD 6;

(5)  Lot 740A in DD 25; and

(6)  Lot 136RP in DD 112.

E2.    Lands held in the name of the administrators of LCK Estate (Part II of Appendix A)

47.  According to the aforementioned transitional provision in section 12 of the Exemption Ordinance, for the court to enforce CLC, the land must be held in the name of the deceased registered in accordance with the NTO (ie section 17 succession).  The simple fact about the landed assets in this category is that they were held in the name of the administrators of the LCK Estate, not the Deceased.

48.  The clear wording of section 12 of the Exemption Ordinance excludes them from the transitional provision.

49.  One of the lots in this category, namely, Lot 832H in DD 6, has subsequently become wholly held in the name of the Mother and Wai Cheung in their capacity as the administrators of the Estate since the deed of exchange in 1983.  But it has never been held in the name of the Deceased and, more importantly, it has never been held by the Deceased registered in accordance with the NTO.  In other words, the Deceased never succeeded to it under section 17 of the NTO as required by section 12 of the Exemption Ordinance.  As a result, distribution of Lot 832H cannot be governed by CLC either.

50.  Unless all the criteria of section 12 of the Exemption Ordinance are met, the court’s jurisdiction to apply CLC has been expressly taken away by section 13(2) of the NTO.  For example, in Lok Tin Choi, Supra, the deceased died in 1984, leaving behind some NT lands.  Two of them were resumed by the Government in 2010 for the Express Rail Link.  On succession to those lands by the son, his mother and sisters claimed maintenance under CLC.  The only issue on appeal is: once a piece of land, to which CLC would otherwise have been applicable, is resumed, whether CLC remains applicable to the compensation money.

51.  One may argue that it should remain applicable as the money is but a change of form from the interest in the land.  But the Court of Appeal looked into the letters of the law, more specifically the definition of “land” under section 2 of the NTO, and came to the conclusion that the definition cannot be extended to compensation money of the land.  As the court is empowered by the NTO to apply CLC to “land” only, it lacks the jurisdiction to so apply to the money: paras 3.1, 3.9-3.10.

52.  Further, there is another reason why CLC does not apply to Lot 832H anyway.  This is because neither the lot per se nor its mother lot (Lot 832) can be found in the schedule to the BCL of DD 6. Its land register also says that its original grant cannot be traced.

E3.    Lands held in the name of the managers of the Tong (Part III of Appendix A)

53.  Likewise, for the two pieces of land held in the name of the managers of the Tong (Lot 515 and 517 in DD 6), they have never been held in the name of the Deceased.  All the Deceased had, when he was still alive, was the right as the member of the Tong to force the managers to perform their duties according to the law.  It does not meet the statutory requirement of section 12 of the Exemption Ordinance.

54.  There is another reason why this court cannot apply CLC to the two pieces of land held by the Tong.  It is because they have already been resumed in 1987.  The compensation was around $112,000 and $155,000 respectively.  According to the clear ruling in Lok Tin Choi, above,once a piece of land has been resumed, the court has no jurisdiction to apply CLC to the compensation money of the resumed land.

F.       QUANTUM OF MAINTENANCE: NOT RESTRICTED TO NEEDS

55.  The core issue on quantum is whether it is restricted to a need basis.  On this, the parties have specifically and expressly asked the joint expert on Chinese law and custom, namely Professor Hugh Baker, as to whether or not the overall nature and size of the Estate is relevant to the maintenance for an unmarried daughter in the joint report:

“Q(b)(i) If [an unmarried daughter is entitled to a reasonable maintenance under Chinese law and custom], whether the nature and size of such entitlement reflects the total nature and size of the Estate?”

56.  In response to this question, the joint expert answered:

“If the family were well off, she would probably be better dressed, better fed and more comfortably housed than if her family were poor, and to this extent it may be said that her standard of maintenance wo[u]ld reflect the nature and size of her family’s estate.”

57.  The parties have also put the question in the other way round by asking if the entitlement to reasonable maintenance is wholly or partially based on the unmarried daughter’s reasonable financial needs.  And the joint expert’s view is that:

“[…] it would be provided at a level commensurate with the rest of the family standard of living […]”

58.  The more sizeable the Estate, the higher value the family members will inherit and hence higher standard of living and vice versa.  This is simple logic.  True, the joint expert has admitted that he has been unable to find clear indication as to the nature or quantum of maintenance for an unmarried daughter, especially for a long-term unmarried daughter.  But, at the end of the day, it is the joint expert’s unchallenged opinion that how well-off the family is has relevance to the quantum of such maintenance, it may or may not be directly proportional in the strict sense, but it is clearly relevant.

59.  Professor Baker also considers that maintenance could be claimed retrospectively.  He considers that the year of 2001, when the plaintiff had to move out from the Wai Yan Street Premises, may be a significant marker.

60.  Case law on the quantum of maintenance (and dowry) is limited. But as one can see from such case law, there is hardly any suggestion that the maintenance (or dowry) ought to be restricted to a need basis.  For example, in Wong Pun Ying, Supra, the learned judge did not go through the dollar and cent of the daughter’s financial needs.  What was in his mind were the concepts “reasonable” and “in all the circumstances” instead.  At the end of the day, he ordered 1/10 of the estate as dowry.  The fact that it was not a dollar-and-cent award but a proportional award reflects that the size of the estate has to be relevant, and not just the minimal living expense that the daughter needed on her marriage.

61.  Likewise, in Wong Ying-kuen, Supra, the unmarried daughter was awarded 5% of the income of the estate, which consisted of substantial interest in the Yaumati Ferry, as maintenance and 10% of the capital of the estate as dowry upon marriage: at 404.  The awards, again, were made in terms of proportion to the income/capital of estate - yet another example of maintenance/dowry relating to the size of the estate.

62.  More importantly, she was so awarded even though she was employed in an import and export firm and would soon become a partner in another such firm.  She was living with her mother who owned an apartment worth $130,000 (in the 1960s) and who was awarded in the same case 20% of the income of the estate: at 403.  In other words, with or without maintenance or dowry from the estate, the daughter would be financially sustainable, if not well off.  But the court did not consider it a bar to maintenance or dowry at all.  This again shows that maintenance/dowry did not work like social welfare or charity or financial assistance to which only people who cannot survive without it are entitled.

63.  Further, in awarding dowry, the learned judge made the following remark: “This is not a case where it would be just or convenient to set aside a portion of the capital now.  As I have said the estate is growing in size and it will be more advantageous to the [daughter] if the amount of dowry is capitalised when the time for payment arrives.”: at 404-405.  It not only shows the proportionality nature but also the running nature of the quantum for dowry (and by analogy maintenance).  In short, the bigger the estate grows, the more the daughter receives.

64.  In Chung Hop Shing, Supra, the unmarried daughter did not claim maintenance but only dowry.  But it was because of the fact that she had been enjoying free accommodation from the estate and that the estate was relatively small (around $400,000 in 1986): at p 6.  As for dowry, it was again awarded as a proportion of the estate, not based on the dollar and cent of her living expenses.

65.  In sum, neither the joint expert opinion nor the case law suggests that maintenance for an unmarried daughter is restricted to a need basis.  There is simply nothing that bars a daughter from receiving from the estate something much more than necessary to sustain her basic living.

66.  Applying the above principle, and given the total size of the Estate, there is likewise nothing to bar the plaintiff from receiving maintenance even though she may be entitled to a share of a substantial part of the Estate under the IEO.

67.  Of course, as the joint expert has pointed out, other financial provision by the Estate ought to be taken into account when assessing the quantum of maintenance.  That has to include entitlement under the IEO.  But any suggestion that the plaintiff is entitled to no maintenance at all as long as she receives something substantial under the IEO has no support in authorities, either literally or by analogy.  Indeed, insofar as maintenance is to be ordered by way of a proportion of the assets governed by CLC, the plaintiff’s entitlement under the IEO would be automatically and properly taken into account when assessing maintenance, for the more assets falling under the IEO, the lesser falling under CLC and, by proportion, the lesser maintenance the plaintiff can receive.

68.  The defendant is now suggesting analogy with the financial provision for children under the Inheritance (Provision for Family and Dependents) Ordinance, Cap 481 (the “IO”).  But I agree with the plaintiff’s submission that this is not the correct approach.  IO is part and parcel of the inheritance scheme together with the IEO and the Wills Ordinance based on the English jurisprudence.  On the other hand, maintenance for unmarried daughter is a part of the Chinese inheritance tradition.  The whole philosophy of the two cannot be more different.  The former, for example, respects testamentary freedom.  An English testator is generally free to disinherit a child and that is one of the reason why IO comes into play.  But a testator under CLC barely has such freedom: See Professor Baker’s opinion.  The focus is on parental duty instead.  For example, in Chinese tradition, it is the parents’ duty to arrange a marriage for the daughter and they should be “held responsible for her maintenance if they failed to do so”: See Professor Baker’s opinion.

69.  In short, it is not valid to draw an analogy between relief under the IO and maintenance under CLC.  There is no case law or expert evidence to support such analogy.  Indeed, if one insists on drawing an analogy from the IO, it begs the question why one does not draw analogy from the IEO where sons and daughter all enjoy an equal share of the estate.  The simple answer is that the two schemes are just incomparable.

70.  In the instant case, the plaintiff is now close to the retirement age of 60.  She has set out her financial status in her Witness Statement and updated it by top-up questions in her examination-in-chief.  None of it has been challenged by the defendant.  In sum, the plaintiff remains a low-income person without real savings and with ordinary living expenses.  She is now living at public housing at a monthly rental of around $1,300.  Such public housing, of course, is liable to being surrendered if she receives substantial entitlement under the IEO/CLC herein.

71.  At the end of the day, there is no straightforward or mathematical formula that this court may use to assess the quantum of the plaintiff’s maintenance.  The difficulty that the Hong Kong courts faced in the 1960s remains so today, if not even more difficult by reason of societal changes in the past decades.  All in all, it is “reasonableness” in “all the circumstances” that leads the way.  On this, the following factors are most relevant:

(1)  The Estate is substantial: above $50 million;

(2)  The plaintiff has not been provided for since she was forced to move out in 2001;

(3)  The plaintiff will soon turn 60 with no substantial earning capacity or savings;

(4)  At such age the plaintiff is unlikely to get married and hence unlikely to have any claim for dowry or to have anyone to depend on financially in her retirement;

(5)  The plaintiff agreed under cross-examination that a sum of $100,000 had been paid by Wai Cheung, the original administrator, in 2015 for her maintenance (see paragraph 13 above).

72.  In all the circumstances, doing the best I can, I find that insofar as succession of assets under CLC is concerned, the plaintiff ought to be entitled to 10% of its income (if any) and capital as her maintenance.  This will leave her 4 brothers 22.5% each - more than double the share of the plaintiff.  Any suggestion that the brothers’ share should be even larger can hardly sit comfortably with the custom (or at least culture) of Hong Kong in the 21^st Century. Indeed, as Professor Baker observed in paragraph 33 of his report:

“While, with regard to maintenance, a long-term unmarried woman may reasonably expect to be treated on equal terms with her brothers, I can see no reason why she should be treated more generously than her brother.” (Emphasis added)

73.  I note that in Wong Ying-kuen, Supra, the unmarried daughter’s maintenance awarded was a percentage of the income of the estate.  However, in the present case, the Estate has not received any rental from the landed assets owned directly or indirectly by the Estate.  In the circumstances, it would not be unreasonable to resort to payment of the maintenance out of capital.

74.  As for the defendant’s suggestion that the plaintiff is getting through the “back door” to claim for a share of inheritance, the case law, though limited, clearly shows that dowry and maintenance often took the form of a percentage of the estate.  Likewise, nothing in Professor Baker’s report suggests that the maintenance cannot take the form of a percentage.

75.  In his opening, the defendant seems to suggest a monthly payment of up to $10,000 for the maintenance.  On the issue of lump sum or periodic payment, Professor Baker expressed no opinion in his report.  But I accept the plaintiff’s submission that lump sum is obviously more practical than periodic payment.  It goes without saying that administration of an estate cannot drag on forever.  It is especially so for the Estate in the instant case.  It has been going on for almost half a century and the beneficiaries are either dead or aging.  In short, periodic payment will only generate more problems than it solves.  What the parties herein need is a clear-cut and once-and-for-all solution, not the prospect of coming back to court endlessly.

76.  In paragraph 42 of his opening and paragraph 5(c) of his closing, the defendant expresses his concern about the debts that the Estate is bearing.  In other words, the defendant is concerned that, if the plaintiff is awarded 10% of the landed assets under CLC as such, she may end up effectively having much more than 10% because of debts that the Estate has to pay out from those assets before payment of that 10% to the plaintiff.

77.  The defendant’s concern is legitimate.  As section 17 of the NTO express states, the registered successor under Chinse law and custom shall be liable for the debts of the deceased as if he is the administrator of the estate.  If the sons succeeding the landed assets have to pay the debt of the estate, it is logical to say that the unmarried daughter’s maintenance in term of a fixed percentage should also take into account the debt of the estate.  In the circumstances, the plaintiff is happy to adjust her proposal to 10% of the “residuary” income and capital of the landed assets under CLC (the concept “residuary” is borrowed from the IEO).  The debt of the Estate, of course, should be paid out from the assets under the IEO and from the assets under CLC pro rata.  This should address the defendant’s concerns, and is accordingly incorporated in the order which the court will make.

78.  Finally, the amount awarded to the plaintiff by way of maintenance should be reduced by $100,000 to take into account the payment she received in 2015.

79.  As a passing remark, the defendant’s suggestion that monthly payment of around $10,000 should commence from the Estate collecting $100,000 may be technically problematic.  It is because any maintenance must be paid out from the assets under CLC and not the assets under the IEO.  After all, the beneficiaries under these two categories are different.  In the present case, however, the assets under CLC are all 1/7 interests in land.  They do not seem to generate any rental income.  The cash that the defendant would probably collect in the near future is likely coming from the assets under the IEO instead.

80.  As another passing remark, given her age, the plaintiff is unlikely to get married.  If, unexpectedly, the plaintiff gets married subsequently, the plaintiff will not come back to the court for dowry.  Instead, she is happy to regard the said 10% as her full entitlement under CLC.

G.      CONCLUSION

81.  For the reasons stated above, I make the following order:

(1)  By consent, the defendant do render annual accounts of the Estate to the plaintiff and other beneficiaries of the Estate, the first one to be rendered on or before 1 January 2022 and the last one on or before 1 January of the year immediately after the completion of administration or in 6 months after completion of administration, whichever is later.

(2)  It is declared that the plaintiff is entitled to a share of the residuary Estate in accordance with the Intestates’ Estate Ordinance, Cap 73, except insofar as the following landed assets of the Estate are concerned, the succession to which is governed by Chinese law and customs:

(a)  Lot 640 in Demarcation District 11;

(b)  Lot 206 & 252 in Demarcation District 112;

(c)  Fanling Lot 611 & 639 in Demarcation District 51;

(d)  Lot T47CRP in Demarcation District 6;

(e)  Lot 740A in Demarcation District 25; and

(f)  Lot 136RP in Demarcation District 112.

(3)  It is declared that:

(a)  The plaintiff is entitled to 10% of the residuary income (if any) and of the residuary capital of the landed assets as set out in subparagraphs (a) to (f) of (2) above, as her maintenance under Chinese law and customs (with “residuary” meaning “after payment of all such funeral, testamentary and administration expenses, debts and other liabilities”).

(b)  The amount payable to the plaintiff by way of maintenance should be further reduced by $100,000 on account of the payment she had received in 2015.

(c)  The said maintenance is to be paid to the plaintiff before the successors of the Deceased succeed to the said landed assets in accordance with Chinese law and custom.

(d)  By consent, if the plaintiff gets married subsequently, the said maintenance shall be regarded as dowry in full.

(e)  The funeral, testamentary and administration expenses, debts and other liabilities of the Estate are to be paid out pro rata from the assets of the Estate whose succession is respectively governed by the Intestates’ Estate Ordinance, Cap 73 and Chinese law and custom.

(4)  There be liberty to apply.

(5)  Notice of Action on Lai Wai Hung as ordered by consent by Master Ho on 18 May 2016 be deemed to have been duly served on him by emailing the same to his email address at peterlaiwh@gmail.com on 26 February 2019.

82.  As for costs, I find that the parties have acted reasonably.  I order that the costs of the plaintiff and of the defendant, including those reserved, be paid out from the Estate on the common fund basis.  The plaintiff’s own costs be taxed in accordance with the Legal Aid Regulations.