YEUNG CHI DING AND OTHERS v. YEUNG TSE CHUN alias YEUNG TSE CHING

PROBATE JURISDICTION

BETWEEN

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JUDGMENT

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1. This is a probate action. On the 5th February, 1976, Yeung Ben Kwei died intestate in Hong Kong. As surviving children of the a deceased, the plaintiffs seek to have Letters of Administration of his intestate estate granted to the defendant called in for revocation.

2. A grant of administration visa applied for and made to the defendant on the 26th April 1977. Since the commencement of these proceedings, the Letters of Administration so granted have been lodged with the office of the Registrar pending the determination of the issues between the parties to this action.

3. The plaintiffs sue by their lawful attorney, Mr. Lam Fong. Three of the plaintiffs came to Hong Kong for the purposes of these proceedings, and they have testified as witnesses. Permits to visit Hong Kong were granted by the People's Republic of China to these three plaintiffs for the specific purpose of prosecuting these proceedings. These three plaintiffs are obliged to return to China after the conclusion of this litigation. The Power of Attorney given to Mr. Lam Fong and produced in this case as "Exhibit P2" remains valid and there is no suggestion that its effect has in any way been diminished. Mr. Lam Fong stands authorised to act for all the five plaintiffs in, inter alia, obtaining the grant of administration to the estate of the intestate deceased.   Counsel for the plaintiffs has given an undertaking on behalf of Mr. Lam to take out and or accept the grant and to comply with all necessary formalities.

4. Therefore, this action is concerned with (1) the alleged interest by virtue of which the defendant claimed and still claims to be entitled to the grant of Letters of Administration to the deceased's estate and (2) the plaintiffs' claim for that very grant to be revoked and declared null and void and to have Letters of Administration of the same intestate estate granted to their lawful attorney, Mr. Lam Fong.

5. The first matter to be considered is Order 76 rule 3 of the Rules of Supreme Court, which requires every person who is entitled or claims to be entitled to administer the estate of a deceased person under or by virtue of an unrevoked grant of Letters of Administration of his estate, to be made a party to an action for revocation of that grant. This is such an action. The deceased married twice. His Kit Fat wife, Madam Tong died in 1947. The deceased re-married and his Tin Fong wife, Madam To died in 1949.  Madam Tong had five children, and they are the plaintiffs. Madam To had a son whose name is Chung Yuk. Consequently, if Chung Yuk is entitled to administer the estate of the alleged late father of the plaintiffs, Chung Yuk must be joined in these proceedings as required by Order 76 rule 3.

6. According to the plaintiffs, Chung Yuk was adopted out of the family when he was an infant. The deceased left China in 1949.  Hence Chung Yuk, allegedly adopted into the To family in the presence of the deceased and his Tin Fong wife, Madam To, must have then been an infant of one or two at the time of his adoption by the elder brother of the Tin Fong wife, who himself had no son but daughters.

7. Mr. Dicks whose qualifications and experience I accept is an expert well versed in Tsing law and custom in the pre-revolutionary period as well as the laws in the Republican period and the laws of the people's Republic of China thereafter.  For the period spanning from Hong Kong's cession to the overthrow of the Manchu, 1843 to 1911, Tsing law and custom were in force in China. It was followed by the Republican Civil Code which came into operation on the 5th May 1931. The Court was referred to Chapter 3 of Book IV, Articles 1077 to 1080 inclusive of that Republican Code for adoption. Thereafter, so Mr. Dicks narrated, the "Common programme of the Chinese people's National political Consultative Conference" proclaimed as at the 29th September 1949 a new constitution for the People's Republic of China. Article 17 wholly abrogated the Republican legal and judicial systems. Almost on its heels, the people's Republic of China promulgated the Marriage Law on the 1st May 1950. The most recent legislation on marriage law was introduced by the people's Republic of China on the 1st January 1981.

8. I accept the evidence that the son of the Tin Fong wife was adopted out of the Yeung family into the To family during infancy, that he has since borne the surname "To" and that he has never attended or been concerned with any of the family functions or festivities, though occasionally he was met by one or the other of the plaintiffs in public places. The two plaintiffs who have come forward to testify, further told the Court that to all intents and purposes Chung Yuk had never been taken as one of the members of the deceased's family. They concluded that Chung Yuk was and was regarded as a total stranger to the family of the plaintiffs.

9. Tsing Law, so Mr. Dicks reminded me, permitted such an adoption. Under the Civil Code of Republic China, such an adoption was also given legal recognition. During the brief interval between the "Common programme" in September 49 to the Marriage Law in May 1950 of the people's Republic of China, adoption was generally looked upon as being offensive to the new social ideology, but Mr. Dicks advised that the adoption of younger children was tolerated when it was accompanied by real economic benefits and obligations in the sense of genuine relationship and support. The 1950 Marriage Law of the people's Republic of China revived the concept of adoption. As a matter of fact, in the report of the Research Department of the Standing Committee of the National People's Congress on "Judicial practice on Inheritance Matters" submitted in 1956, one single court decision was cited with a commentary that the relationship between the child who had been adopted away and his natural family was "in general" severed. Mr. Dicks was himself unable to discover what qualification, if any, was or was suggested to have been imposed by that singular judicial decision or by the legislature of the people's Republic of China. Subject to this possible reservation, adoption has resumed its position in the Chinese society since the 1st May 1950. It was further explained by Mr. Dicks that by the time the People's Republic of China enacted its recent Marriage Law on the 1st January 1981, it was expressly provided that the relationship between the adopted child and his natural family would be put to an end. Therefore, it can fairly be said that throughout all the relevant periods, adoption has been given official recognition.

10. I find, on the balance of probabilities, that Chung Yuk has validly been adopted out of the family and that his relationship with his natural family i.e., the family of the plaintiffs has been wholly severed. There is no residual right left in To Chung Yuk to enable him to claim to be entitled to administer the estate of the deceased.

11. There is also no evidence that the adoption of To Chung Yuk had been terminated by consent of his adopted parents and himself before the date of death of the deceased on the 5th of April 1976.

12. I come to the conclusion that joinder of To Chung Yuk as a party to this probate action is unnecessary.

13. I now return to the matters at issue. The plaintiffs claim to be the surviving children of the deceased. Cut of the three daughters permitted by the Chinese Government to come to Hong Kong, two told the Court in the witness stand that they last had contact with the deceased just before liberation in 1949. Sometime in 1958, the eldest daughter received a letter from her missing father. That letter can no longer be found, but according to the eldest daughter, Chi Ding, her father, the deceased, broke news of his presence in Hong Kong. Chi Ding further testified that she received ten odd times' remittances from Hong Kong by her father. She produced six of such overseas remittance slips "Exhibit p12 to p16".

14. Mr. Ho gave corroborative evidence as to how he rendered assistance to the deceased in having moneys sent back to China for Chi Ding. What precisely Mr. Ho did was to prepare a draft for the benefit of the deceased, though he did not actually fill in the remittance slips.

15. Chi Ding also described the contents of parcels despatched by the deceased, from time to time, to China for the children's benefit. She disclosed that as she and her two younger brothers were not gainfully employed, they shared all the remittances from their father in Hong Kong. Chi Ding further maintained that her late father sent remittances from Hong Kong in the range of 200 to 600 RMB. She was not wholly accurate, because in "P16", the remittance was only 100 RMB. Chi Mui also received letters from her father in Hong Kong. On one occasion, there were four identical photographs sent, which were shared by the sisters and brothers. Chi Mui had her own copy produced as "Exhibit P5". The defendant does not dispute "P5" as depicting the true likeness of the deceased.

16. For a time after 1973, no more news came from Hong Kong. The plaintiffs also produced the family books, Exhibits "P6(1)" and "P6(2)". Chi Mui explained the discovery and the borrowing of these books for the present proceedings. In particular, she described how ancestral halls "generally disappeared" after 1949. The retention of this type of family record is almost a rarity in China these days. Books such as these are, so Chi Mui maintained, universally relied upon in her village in China. There is no suggestion that any information therein contained is inaccurate. Even the defendant has been reluctant to challenge it seriously. I derive some assistance from the material parts of it. These also support the claimed relationship of the plaintiffs with the deceased. There can be no doubt, in my view, that these plaintiffs are the deceased's surviving children.

17. There has been produced a bank's Investigatory Report, but in this jurisdiction we prefer first-hand-knowledge evidence. Here, we also prefer viva voce evidence given in Court, that is to say, oral evidence direct from the witness in person. Any information supplied by a person not actually appearing in Court or on the basis of second or third-hand-knowledge can only be admitted as evidence subject to the fulfilment of various conditions: To name a few, the absence or non-attendance of the supplier of the information must be satisfactorily accounted for, such as, he is unavailable for a good cause or he is dead or out of jurisdiction; the suppliers of the information must each be individually identified; the source for the second-hand, third-hand or even fourth-hand-knowledge information must be disclosed. Not only must such source be disclosed, but the supplier of the information must be able to verify any information not first-hand to the extent that he can say that he verily believes the same to be true and correct. These are only some of the prerequisites. A full list of it can be found in Order 38 of our Rules of Supreme Court and Sections 47, 49 and 50 of the Evidence Ordinance. In the bank's Investigatory Report, unfortunately all these procedural safeguards that I have enumerated have been overlooked. This Investigatory Report can, by no stretch of imagination, be taken as part of the bank's record complied in the course of the discharge of routine duties by one of its officers. Therefore, I am prevented from taking advantage of the bank's Investigatory Report which has in fact been rejected as having failed to qualify for admission. Nevertheless, as I have said, the oral testimony of the Yeung sisters, two of the five plaintiffs, the remittance slips, the evidence of Mr. Ho, the photograph and the family books all point in the direction that the deceased was the natural father of the plaintiffs in this probate action.

18. Letters of Administration of the intestate's estate were granted to the defendant on the 26th April 1977.  The defendant applied for the grant on the force of his affirmation, "Exhibit B". The defendant was then assisted by a firm of solicitors, Messrs H.M. So & Co. The contents of his supporting affirmation were interpreted to him by one of the sworn interpreters of the Court. The truth of these contents was affirmed before the Commissioner for Oaths of the Judiciary on the 25th March 1977. On the same day of the grant, the 26th April 1977, a last minute amendment was made purportedly with a view to complying with the requirements of the probate Rules. That was again vouched for by his own affirmation before a sworn interpreter and a Government Commissioner for Oaths. No less than three matters are worth noting: First, paragraph 2 of "Exhibit B refers to the deceased's kit-fat wife as Yeung Chung Sze. The deceased's kit-fat wife was surnamed Tong. The defendant gave, byway of explanation, her maternal family surname as Chung. Nothing really turned' on it. Again, in paragraph 2, the defendant affirmed to the date of death of the deceased's kit-fat wife as the 22nd June 1947 as opposed to the 11th April 1947 testified to by the two plaintiffs. Again, nothing of significance turned on it. Secondly, in paragraph 3 of the defendant's said affirmation, the name of the deceased's, father was given as Yeung Chiu-sheung whereas according to the plaintiffs' the name of their grandfather was Yeung Ka-chik. Yeung Chiu-sheung has been admitted by the defendant to be his own grandfather, his father being Yeung Yin-fong. The object of the exercise was obvious: it was to make the deceased the natural brother of the late father of the defendant. That cannot be right for at least this reason: In evidence, the defendant admitted that the Yeung family emigrated from Kiang Si in four Fongs or branches of the family. The defendant agreed that he came from the "Chuen Tong" with the deceased from "Check Tong", i.e. a different Tong or Fong or branch of the family. On that concession of the defendant, it is inconceivable that the defendant's father and the deceased could share the same natural father. In his evidence during this trial, the defendant advanced an explanation. He claimed that at the time of his own alleged adoption which I shall come to in a moment or two, in 1954, the deceased allegedly confided in him that he, the deceased was in fact adopted into his own "Check Tong" from the defendant's "Chuen Tong". This explanation was given for justifying the defendant's affirmation. The defendant was adamant that he left his own family in his alleged 1954 adoption. Then the defendant, if he be right, should have shared the deceased's father, Yeung Ka-chik, as his grandfather instead of claiming, as he did in his affirmation, that the deceased's father was still being Yeung Chiu-sheung. In another words' being an alleged adopted son in the defendant's version, the deceased himself should also have left the branch of Yeung Chiu-sheung. Thirdly, in paragraph 6 of his said affirmation, the defendant stated that his own late father had no issues or children apart from himself. That is blatently untrue as the defendant readily conceded that he had a brother and two sisters. For what it is worth, the only explanation from the defendant was that these siblings of his had been long separated.

19. In point of time, when the defendant applied for the grant, the basis put up was: he was a nephew of the deceased in the same branch, who allegedly had only one pre-deceased brother i.e. the defendant's late father. The claim was that the defendant was the closest surviving male descendant in the branch of the deceased and his own late father both leaving no widows or other issues. Law and logic dictate, if that be true, that the defendant was the only one surviving, closest in priority, to claim a grant of Letters of Administration of the estate of the deceased. That was in 1977. This probate commenced on the 19th January 1979. The defendant did not file his Defence until the 6th January 1983, and by then allegedly unaided except for a street letter writer, the defendant raised a somewhat different allegation of an adoption of his eldest son Yeung Ming Yeung by the deceased as the deceased grandson. However, it could well be that it was intended as an additional allegation. Then, we had Mr. Dicks giving evidence against the possibility or likelihood of jumping or skipping a generation by adopting a grandson. Mr. Dicks laid great stress on the Chinese saying: "There is such a thing as a son adopted out of charity, but there is no such a thing as a grandson adopted out of charity". Evidently, that made good sense even to the defendant, and thereupon he took little time in abandoning the deceased's alleged adoption of his eldest son as grandson. In an end, the defendant was driven to confine himself to the sole allegation that he himself was adopted as a "Kim Tiu" son of the deceased. In the short history of this action, the defendant switched many a horse in mid stream.

20. I turn last to that aspect of the defendant's case which forms now his only opposition to the prayer for the revocation of his grant. The deceased left China in 1949 together with the defendant. Apparently, both were involved in activities frowned upon by the incoming authority. Like many of our Hong Kong belongers, they found shelter in this territory. The deceased was industrious and steady in his progress. They were soon no longer street-sleepers and purchased a wooden hut. It was during that time that relationship drew closer and friendship prospered. On an occasion in 1954, so alleged the defendant, when he and the deceased were alone, the deceased advised him to suppress his gumbling habit and pay obeisance to him. The defendant was agreeable, and thereupon the deceased allegedly proposed to take the defendant as his son. They allegedly worshipped heaven and earth and ancestors. The defendant allegedly kowtowed to the deceased and accepted him as father. According to the defendant, thereupon he addressed the deceased as "Suk Fu" instead of "Suk Suk". In effect, it was claimed that the defendant left his own family and joined the deceased's.

21. From the tenor of the defendant's allegation, what was being created was not just a father-and-son relationship by adoption, but it was an establishment of a new Tong or Fong of the family in Hong Kong with the deceased as its fountain-head. That is unheard of, and the defendant has adduced no expert evidence in support of that extraordinary contention. Not only was a new Tong or Fong alleged to have been so founded, but it was said that by this exercise the deceased had abandoned or ousted his existing family in China, which again is unheard of. The defendant has also adduced no expert evidence to corroborate or support it.

22. For Hong Kong, Tsing customary law on adoption applied in the period prior to the 7th October 1971, the commencement date of the Intestate Estates Ordinance. Tsing law and custom were then part of the law of this land, of which judicial knowledge was not infrequently taken. At the turn of this century, part of Tsing customary law was held as being within "a dual prospective system of law" in Hong Kong. Lau Leung Shi v. Lau Po Tsun ⁽¹⁾; Ho Tse Tsun v. Ho Au Shi & Others ⁽²⁾. In 1920, Gompertz, Acting Chief Justice, acknowledged Tsing customary law for succession as an integral part of the law of Hong Kong.  Ho Chang Shi v. Ho Sau Nam ⁽³⁾. When we proceeded to the 50's, many aspects of Tsing law and custom had become matters of common knowledge and accepted as such without proof, as did Judge Charles in Tang Ho Foon v. Leung Sek ⁽⁴⁾ for customary marriage. Even in the 60's, I recall, time and again there was justification for resorting to expert evidence in the absence of recorded information or merely for ease of reference. Later in time, Tsing customary adoption and marriage were more readily examined in Courts primarily with the aid of publications and reported authorities. Experts were restored to their earlier place of prominence only when written materials were sparse and reported cases were in conflict. See Lui Yuk Ping v. Chow To ^(5); Ng Yin Ho & Another (Administrators of the estate of Mok Kam Po deceased) v. Tam Suen Yu ⁽⁶⁾; Tai Lee Construction Co. v. Tsang Chin Hing & Others ⁽⁷⁾ ; Wong Kam Ying & Ho Po Chun v. Ma Chi Tai⁽⁸⁾. Expert evidence remains, however, an almost indispensable source of guidance in the ever changing Tsing customs in most of our New Territories villages. See Chu Tak Hing v. Chu Chan Cheung Kiu & Others ⁽⁹⁾. Recently, I followed the same trend even with experts in attendance in Yau Tin Sung v. Yau Wai-hoi ⁽¹⁰⁾. The facts for such judicial determinations are, contrary to views and sentiments of some, of importance.

23. One of the pre-requisites for Tsing customary adoption is an open ceremony. I heed not descend fully into the formality required as the defendant admitted that the 1954 alleged adoption was just a matter in private between the deceased and himself. It was not publicly celebrated or solemnized. Even if the defendant's version were to be upheld, the alleged adoption could not have been valid.  It is not difficult to imagine that as two total strangers in a foreign land, the relationship between the deceased and the defendant must be close. The deceased had sons, and he had left China for only 4/5 years by 1954. There could not have been any need for adopting someone for the purpose of succession. Nothing called for an abandonment or ouster of his own family. If there was an adoption, it must have been an informal one. The deceased made no reference to his children in China on his application for his Hong Kong Identity Card. He also acted as Master of Ceremony in the marriage of the defendant. At the deceased's funeral, the defendant "carried the banner and bought water". All this is peripheral. There were explanations offered, but even if these incidents were true indicia of a son-and-father relationship, the defendant was never adopted or validly adopted, that being the decisive factor.

24. If the defendant had been telling the truth, it would have been very strange that his allegation of a Kim Tiu adoption only crept in after the evidence of Mr. Dicks. None of the deceased's other friends had ever heard of any mention of an or this adoption; nor was anyone aware of the existance of the defendant as the deceased's adopted son in Hong Kong. The defendant's previous assertion had never gone beyond the relationship of a nephew. Although according to Mr. Chan Chung Hay, a witness called twice in these proceedings, once for the plaintiffs and once for the defendant, the deceased in his time of need and sorrow entrusted him with his life-savings for his surviving children in China. Mr. Chan was the employer of the deceased for about 3/4 years. He had no axe to grind with the defendant who was unknown to him. Assets of the deceased are, by Hong Kong standard, negligible to provide any incentive to Mr. Chan for misconducting himself. There could have been no earthly reason as to why Mr Chan should deliberately antagonize the defendant. In this respect, I accept Mr. Chan's evidence that he was merely carrying out the dying wish of an employee.

25. The defendant appears to know more than he is prepared to admit. He knew in China a Mr. Tong, the god-father of the kit-fat wife of the deceased, late mother of the plaintiffs. He was himself, before he fled China, one of the local officials in charge of or in connect on with conscription. It is hard to believe that he knew little of the family conditions of the deceased. It was incredibly naive for the defendant to suggest that throughout the years of close relationship, the deceased had never mentioned once his own children in China. There could not be any Kim Tiu adoption if only for the sons of the deceased. For all these reasons, I do not even accept that there was any adoption as alleged in 1954 or at all. If there had been such an adoption, it could not have been valid because admittedly it was not even celebrated in public. The consequences sought to be inferred from this alleged adoption are just too far-fetched to accept. There was, I find, no such or any adoption in 1954 as raised in this belated assertion of the defendant.

26. The alleged adoption of the defendant's eldest son as the deceased's grandson has not been pursued.

27. The management of affairs and funds immediately after the death of the deceased by or through his friends or associates are matters, if need be, to be investigated by the administrator in time to come. Therefore the challenge to the withdrawals after the date of death, the 5th of February 1976, the deposit of drafts and cheques after that date and the watch unaccounted for are all matters which bear no relevance to the contested entitlement to a grant.

28. There was no title or interest to support the grant of Letters of Administration made to the defendant. The plaintiffs have established themselves as the surviving children of the deceased. In view of the defendant's want of interest, I pronounce that the defendant is not a person entitled to claim for the administration of the estate of the deceased who died intestate and that Letters of Administration in this case should not have been granted to him. The grant lodged shall now be brought in to be revoked and declared null and void. This Court grants to the lawful attorney of the plaintiffs, subject to the undertakings given by counsel on his behalf, Letters of Administration of the estate of the deceased.

29. The resistance of the defendant to the claim is, to say the least, totally lacking in any justification. This case has taken a long time to conclude, particularly in view of the necessity for the double interpretation. I propose to order costs against the defendant on the highest scale i.e. common fund basis.

(Defendant submitting on costs)

30. I have listened to what you said as to the question of costs. I am not impressed. You ought to be told that at one time, I was pondering as to whether L should send papers in this case to the Attorney General. This is a case full of.  I hope what you have done in this case was more the result of your own stupidity and misguided determination. I think I should put an end to this matter without recommending any further steps to be taken. But you must be responsible for the costs of this unfortunate encounter.

31. I therefore formally order (1) that the Letters of Administration lodged be called in, revoked and declared null and void, (2) that Letters of Administration be granted to the lawful attorney of the plaintiffs subject to his undertakings given on his behalf by counsel, (3) that costs against the defendant, such costs to be taxed on a common fund basis and (4) that taxation in accordance with the Legal Aid Regulations.

(1)     6(1911) HKLR 149.

(2)    10(1915) HKLR 69; at.p. 71 per Havilland de Sausmarez, president and p. 79 per Rees-Davis, C.J.

(3)    15(1920) HKLR 35 at p. 39.

(4)    1955 DCLR 152 at p. 156.

(5)    1962 HKLR 515 at P.530, per Macfee, Acting Puisne Judge.

(6)    1963 HKLR 923 at p. 925, per Huggins, J.

(7)    1966 HKLR 868 at p. 871, Full Court judgment delivered by Scholes J.

(8)    1967 HKLR 201 at p.p. 211-212, per Huggins, J.

(9)    1968 HKLR 542.

(10) 1984 HKLR 15 at p.22F.