LILY CHEUNG v. CHEUNG WAI KWOK AND ANOTHER

CACV 154/2015
CACV 156/2015
(Heard together)

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 154 of 2015

CIVIL APPEAL NO. 156 of 2015

(ON APPEAL FROM HCAP NO. 3 OF 2008)

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D E C I S I O N

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1.1. There are before me two summonses filed on 10 May 2016, one filed in CACV154/2015 and the other filed in CACV 156/2015.

1.2.  The applicant in both summonses is Lily Cheung 張莉莉 (“LC”).  In the summons in CACV154/2015, where she is the respondent, she is applying for security for costs of the appeal.  In the summons in CACV156/2015, where she is the appellant, she is applying for a stay of an order for costs made against her. (As originally drafted, the summons for stay was for a stay of taxation of costs, but an application for amendment was made orally during the hearing to an order for stay). 

2. Before discussing these applications, it is necessary to first set out a very brief background of the case.

Background

3.1. HCAP3/2008 (“the probate action”) is concerned with the estate of the late Madam Luk Kim Ying 陸劍英 (“the Deceased”) who died intestate on 15 March 2006. 

3.2. The following three persons have claims to her estate:

(1)   the 1^st defendant Cheung Wai Kwok 張慧國 (“CWK”), who alleged that he married the Deceased on the mainland on 18 March 1949 (“the alleged CWK marriage”) and that he is her surviving spouse; 

(2)   the plaintiff LC, who alleges that she was adopted by the Deceased in Hong Kong soon after her birth on 5 April 1951 (“the alleged Hong Kong adoption”) and is the Deceased’s only child;

(3)   the 2^nd defendant Luk Tung Mei 陸同美 (“LTM”), who alleges that she is the Deceased’s niece but was adopted by the Deceased in the PRC on 10 March 1984 (“the alleged PRC adoption”). 

3.    In the probate action, the parties’ respective cases can be briefly summarized as follows.

4.1.  LC’s case:

(A)   in respect of the alleged CWK marriage:

-  CWK was not validly married to the Deceased;

-  even if CWK and the Deceased had been validly married, their marriage must have been dissolved sometime before 5 January 1957 when the Deceased married Chao Cheung York 趙祥玉 (“Chao”) in Hong Kong, whom the Deceased divorced sometime before 14 October 1981;

(B)   in respect of the alleged HK adoption:

-  LC was born to Lau Kai Hau1 劉啟厚 and Li So Wah2 李素華in Hong Kong but was given (together with a birth certificate where the child’s name was not stated) to the Deceased a few days after birth.  She claims that she was validly adopted under Chinese custom, and she was the only child of the Deceased;

(C)   in respect of the alleged PRC adoption:

-  the alleged adoption was not valid under PRC law, nor was the notarial certificate given to that effect, hence s.17 Adoption Ordinance Cap.290 (“AO”) was not engaged, and therefore LTM is not a child of the Deceased under the Intestates Estates Ordinance Cap.73 (“IEO”). 

4.2. CWK/LTM³’s case:

(A)   in respect of the alleged CWK marriage,

-  CWK was validly married to the Deceased according to the law of the mainland at the time, as evidenced (among other things) by a Marriage Certificate;

-  the Deceased’s marriage to Chao in Hong Kong was therefore bigamous and void;

(B)   in respect of the alleged Hong Kong adoption, 

-  the Qing code did not provide for the adoption of a daughter, let alone such an adoption by a woman;

-  custom could not contradict the law, including the law of inheritance;

-  at most the alleged Hong Kong adoption was an informal adoption, which did not entitle LC to inherit;

-  in any event, even if the Deceased had validly adopted LC, in 1956 LC4 was made a ward of the Secretary for Chinese Affairs5 (“SCA”) under the Protection of Women and Juveniles Ordinance, No.1 of 1951 (“PWJO”), and custody was given to a Cheung Wing Tak (“Cheung WT”)張永德, which procedure indicated that

“either of the parents or any person acting in the place of a parent of any female infant has parted or agreed to part with the custody of the girl to some other person either permanently or for any consideration except marriage”6;

(C)   in respect of the alleged PRC adoption,

-  LTM was validly adopted under PRC law, after a ceremony in which the Deceased, LTM’s birth parents (the Deceased’s brother and his wife) and LTM agreed to the adoption, and thereafter the Deceased treated LTM as her daughter;

-  LTM continued to stay with her birth parents, until she obtained a one-way permit to come to Hong Kong in 1986, after which she stayed with the Deceased.

Trial

5. Although the action was started in 2008, it was not until 2014 that the trial took place. 

6.1.  Since 2011 CWK has been suffering from cognitive impairment.  Accordingly he did not give evidence at trial on matters that might have been relevant, not only to his own status, but also to the Deceased’s personal relationships.  For instance, in his PRC prison record (1955-1960), he named the Deceased as his spouse but also named two daughters 張麗雯 and 張莉.  It was not known whether these were his children by the Deceased, and if so, what has become of the former person 張麗雯, and whether the latter person 張莉 is LC as the name is similar but not identical.    

6.2.  By reason of CWK’s mental incapacity, on 6 February 2014 DHCJ Leung (“the trial judge”) decided, despite LC’s challenge, to appoint LTM as CWK’s guardian ad litem.  LC has not appealed the order.

7. The action was tried over the course of 10 days between 11 February and 7 March 2014.  Among other witnesses, LC and LTM gave oral testimony. 

8. Expert evidence was called by LC and CWK/LTM respectively from:

-  Dr Hugh Baker and Professor Wejan Chang 張偉仁 on the alleged Hong Kong adoption;

-  two PRC lawyers, Li Meike 李美柯 and Wang Ye 黃毅 on the alleged PRC adoption.

The judgment of the trial judge

9.1. In a nutshell, the judge held in his judgment given on 3 June 2015 (“the Judgment”):

(A)   in respect of the alleged CWK marriage,

-  as the content of the alleged Marriage Certificate was not free from doubt, and there were inconsistencies in various declarations made by CWK as to his marital status after his arrival in Hong Kong, the court could not be satisfied that “the alleged marriage between him and the Deceased existed and continued since 1949 until the demise of the Deceased as a matter of fact”7;

-  “on this basis, the registered marriage between the Deceased and Chao in 1957 in Hong Kong ... is not impeached by bigamy in the absence of decisive evidence of an earlier marriage”8;

(B)   in respect of the alleged Hong Kong adoption,

-  the evidence of the adoption ceremony was “flimsy” as the judge had “doubt about [LC’s] credibility, including ... what the Deceased allegedly told her all of a sudden in 1967”9;

-  the “only objective fact” was the passing of LC’s birth certificate10 by her natural parents to the Deceased, and the “lack of ... evidence that [LC] and her natural parents had maintained contact since”11;

-  on that basis, the ceremony ... “could constitute an informal adoption”12;

-  the SCA must have been satisfied with the criteria in s.32(1) of the PWJO before he made LC his ward;

-  LC was named or given her surname after Cheung WT who, in the capacity of “father”, supported her application for registration as a dependant13;

-  consequently, “even assuming” LC was handed over by her natural parents to the Deceased for “raising” and the Deceased “raised” her as a daughter, she was “further given away to Cheung WT ... which ... invoked the exercise of discretion by the [SCA] to make her his ward pursuant to section 32 of the PWJO 1951.  This does not sit well with the continuation of adoption relationship between the Deceased and [LC], assuming it existed in 1951”14 (Emphasis added);

-  in conclusion, the judge did “not find that [LC] is the adopted daughter of the Deceased for the purpose of s.2(2) of the IEO or alternatively she cannot claim to be such since the Deceased gave her away to Cheung WT in 1956”15 (Emphasis added);

(C)    in respect of the alleged PRC adoption,

-  each of the 4 elements of an adoption16 in the PRC had been satisfied;

-  in respect of the main disputed element (whether LTM’s natural parents had relinquished their parental rights and duties), it was impractical for the Deceased to move to the mainland, or LTM to move to Hong Kong until she was granted a one-way permit; consequently, the fact that LTM continued to live with her natural parents and be cared for by them did not “disqualify the relationship between the adopting parent and the adopted child from being de facto adoption”17;

-  in conclusion, the judge found that the Deceased had adopted LTM, of which a Notarial Certificate issued in April 1984 was the common form of formal proof18;

-  the judge found that LTM’s adoption complied with s.17(1) of the AO and thus s.2(2)(b) of the IEO.

9.2.  Accordingly, the judge ordered that LC’s claim and CWK’s counterclaim be dismissed and that LTM’s counterclaim for a declaration that she is the Deceased’s lawfully adopted daughter be granted.

Appeals

10. On 30 June 2015, CWK filed a notice of appeal in CACV154/2015 appealing the order dismissing his counterclaim.  On the same day, LC filed a notice of appeal in CACV156/2015 appealing the order dismissing her claim19.  Respondents’ Notices were subsequently filed in both appeals.

Costs orders

11.1.    On 26 October 2015, the judge ordered that there be no order as to costs as between LC and CWK, and that LC was to pay LTM’s costs. 

Appeal from costs order

11.2.    On 18 November 2015, LC filed a notice of appeal in CACV261/2015 appealing the costs order.

Discussion on applications 

12. Coming back to the applications before this court, I shall deal first with LC’s application in CACV154/2015 for security for costs of CWK’s appeal. 

13.1.    The first point to note is that the application is very late.  CACV154/2015 was filed in June 2015 but a request by way of correspondence for security for costs was not made until March 2016, some 9 months later, and an application for security for costs was not filed until May 2016, nearly a year after the appeal was filed. 

13.2.   It is well-established that applications for security for costs of an appeal “must be made promptly” and “should be made as soon as possible after the appeal is set down20” (Hong Kong Civil Procedure 2016, vol.1, p.1124, para. 59/10/34).  LC’s affirmations filed in support of the summons do not provide a satisfactory explanation for the delay. 

14.1.    Moreover, it was confirmed in the course of the hearing by Mr Wong, LC’s solicitor, that whether or not CWK proceeds with CACV154/2015, LC would still be proceeding with CACV156/2015.  In other words, she would be incurring legal costs in any event. 

14.2.   It is true that those costs may be reduced if CWK’s appeal is not proceeded with, but a probate action is of an inquisitorial nature and the issues surrounding the three parties’ relationship with the Deceased are intertwined.  For instance, in LC’s appeal in which she challenges LTM’s status as the Deceased’s adopted daughter, LC has relied on the judge’s finding that there was no marriage between the Deceased and CWK (see para.6(a)(ii)(1)), which finding is exactly what CWK is appealing in CACV154/2015.  It is thus clear that the issues in both appeals are interconnected. 

15. Mr Wong sought to persuade the court of the strength of LC’s appeal, both in relation to establishing her own claim to be the Deceased’s adopted daughter, and to defeating CWK/LTM’s claim to be the Deceased’s surviving spouse/adopted daughter respectively.  It is well-established that the court should only adopt a broadbrush approach at this stage when considering the merits of the appeals, and it would be inappropriate to delve into detailed reasons.  Suffice it to say that, having read the Judgment, the grounds of appeal and the submissions for these applications[21], I do not consider the merits of the appeals are clearly one-way in favour of one party or the other.

16. The matters discussedat paras. 13 and 14 above are enough to dismiss the summons for security for costs. 

17.1.    As for the summons for stay of the order for costs, the guidelines set out in Star Play Development Ltd v Bess Fashion Management Co Ltd [2007] 5 HKC 84 are well-established.

17.2.    Applying those guidelines, I see no ground for such an order.  As indicated above, it cannot be said that LC’s appeal has such strong merits as to constitute per se good grounds for a stay. 

17.3.    Further it has not been shown that if she paid LTM her costs of the action, LTM would be unable to repay them in the event LC’s appeal is successful, such that the appeal would be rendered nugatory.  LTM has filed an affirmation deposing to the fact that she is the sole beneficiary of her late husband’s estate (including an unencumbered residential unit) which value far exceeds the costs of the action demanded by LTM even before taxation.   

Order

18. For the reasons set out above, I would dismiss both summonses with an order nisi that costs should follow the event, ie that they should be paid by the applicant in both summonses.