NG KUK MUI v. YU BIK FONG REBECCA

HCAP 2/97

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 2 OF 1997

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J U D G M E N T

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1. This is an action by the plaintiff to revoke the letters of administration granted on 31 October 1995 to the defendant in respect of the estate of Yu Kay Sun, deceased ("the deceased"). The plaintiff claims to be the lawful kit fat wife of the deceased under a Chinese customary marriage. The defendant claims to be the lawful and natural daughter of the deceased borne to the marriage between the deceased and one madam Mok Mei Wan, deceased ("madam Mok").

Background

2. The deceased was a native of the Mui County (梅縣), Guangdong Province, born on 9 October 1925. Sometime in the 1950's, the deceased came from Mui County to Hong Kong. He was issued his Hong Kong Identity Card in February 1956. It is the plaintiff's case that before he came to Hong Kong, the deceased had contracted a Chinese customary marriage with her and 2 sons were born out of this union in 1949 and 1953 respectively. They are by the name of Yu Chi Chung and Yu Chi Yung.

3. It is common ground that, some time after coming to Hong Kong, the deceased cohabited with madam Mok. It is the defendant's case that they were lawfully married in Hong Kong by Chinese customary marriage in about 1959.

4. The deceased and madam Mok first lived at a wooden hut in Aldrich Village (愛秩序村) in Shaukeiwan. They then moved to Chai Wan Government Resettlement Area. In about 1965, they moved again to Flat M 9/F. Fung Yuen Building, 388-414 Shaukeiwan Road, Hong Kong ("the Fung Yuen property"). The Fung Yuen property was purchased in April 1963 in the name of madam Mok. By a deed of gift dated 18 January 1982, the deceased became a joint tenant with madam Mok. When the deceased passed away, madam Mok became the sole owner.

5. It is also the defendant's case that she was born out of the union between the deceased and madam Mok. There are some uncertainties as to her date of birth. Her date of birth as recorded in her Identity Card was 29 September 1955. In a statutory declaration given by madam Mok on 8 May 1965, the defendant's date of birth was stated to be 22 October 1956.

6. In 1977, the deceased returned to his native place for the first time since he left for Hong Kong. He had made several other visits to Mui County thereafter. During these visits, he visited the plaintiff, Yu Chi Chung and Yu Chi Yung and their families. On some of these visits, he went along with madam Mok. In particular, the two of them had gone to worship the deceased's ancestral grave in 1980 and 1981. Madam Mok had also during these visits met with the plaintiff, Yu Chi Chung and Yu Chi Yung.

7. On 4 November 1981, Yu Chi Yung came to settle in Hong Kong on the sponsorship of the deceased. In 1989, the plaintiff came to Hong Kong for the first time to visit the deceased and Yu Chi Yung. She paid a second visit in 1993 when the deceased celebrated his 68th birthday.

8. On 14 January 1995, the deceased died of heart attack in Hong Kong. After cremation, the ashes of his body were buried in Mui County.

9. The deceased died intestate. Between 18 May and 21 July 1995, madam Mok, in the capacity as the widow of the deceased, applied for and was granted estate duty exemption in respect of the estate of the deceased. On 18 September 1995, madam Mok renounced her right to letters of administration. At the same time, the defendant took up the application for letters of administration in her capacity as the lawful and natural daughter of deceased. Letters of administration was granted to her on 31 October 1995 ("the Letters of Administration"). According to the schedule of property annexed to the Letters of Administration, the value of the deceased estate, comprising cash in bank accounts and shares, amounts to $96,896.72. A sum of RMB 50,000 in an account with Bank of China and a sum of $50,000, representing funeral expenses, were not included in the schedule.

10. On 25 November 1995, madam Mok died of lung cancer. Probate of her estate was subsequently granted to one Mok Tung, her brother and the executor named in her will. Mr Mok, in his capacity as executor, became the registered owner of the Fung Yuen property in February 1997.

11. By a letter dated 9 January 1996, Yu Chi Yung through his solicitors gave notice to the defendant's solicitors handling the probate matter that he was the lawful and natural son of the deceased, and pointed out that the defendant was not entitled to the grant of Letters of Administration. The plaintiff, who still resides in Mui County, commenced these proceedings on 3 March 1997. She is legally aided. The defendant was legally represented until shortly before the trial.

12. By these proceedings, the plaintiff seeks to revoke the Letters of Administration and asks for the grant of letters of administration to her. She also seeks an order that the defendant affirms and files an inventory, and gives an account of the estate of the deceased. The plaintiff further claims against the defendant for a return of the properties of the deceased as collected by her in her capacity as administratrix of the estate.

The Issues

13. The issues fall to be determined in this trial can be summarized as follows :-

(1) Whether the plaintiff is the lawful kit fat wife of the deceased under a Chinese customary marriage ? If she is, then, as the lawful surviving spouse, she is entitled to grant of Letters of Administration in priority to the defendant, irrespective of whether the latter is the lawful and natural daughter of the deceased : Rule 21(1) of the Non-Contentious Probate Rules, cap. 10.

(2) Whether madam Mok was lawfully married to the deceased in Hong Kong under a Chinese customary marriage.

(3) Whether the defendant is the lawful and natural daughter of the deceased.

(4) In the event that the Letters of Administration were to be revoked, whether the costs of these proceedings should be borne by the defendant or paid out of the estate of the deceased.

The Alleged Union between the Plaintiff and the Deceased

14. The plaintiff was born in 1924 and is now 77 years of age. She came specifically from Mui County to testify at the trial.

15. According to her evidence, she used to live with her maiden family in Mui County. She said that she was married to the deceased by customary rites in the winter of 1945. After the marriage, she moved to live with the deceased. She gave birth to 2 boys, Chi Chung and Chi Yung. When Chi Yung was 3 years old, the deceased left home to come to Hong Kong to work. As Chi Yung was born in 1953, it would be in the year of 1956 that the deceased cam to Hong Kong.

16. The plaintiff said that she did not see the deceased again until 1977 when he returned to Mui County for the first time since 1956. In the subsequent visits made by the deceased, he had brought along madam Mok.

The plaintiff claimed that she had been assured by the deceased that he had not undergone any formality or ceremony (手續) with madam Mok. The plaintiff agreed with the defendant that she had never met and did not know the defendant.

17. In proving her case of a customary Chinese marriage, the plaintiff had not resort to any expert evidence. Instead, counsel relied on 2 authorities, namely, Kwan Chui Kwok & Anor v. Tao Wai Chun & Ors [195] 1 HKC 374 and Chan Chung-hing v. Wong Kim-wah and Others [1986] HKLR 715. The former is a decision on the requirements for validity of a Chinese customary marriage. The latter is relied upon for the manner in which the court approached the evidence as to the marriage ceremony. Counsel for the plaintiff informed this Court that the decision not to adduce expert evidence was a conscious one, influenced by the fact that the estate of the deceased was of a modest amount. I have to say that I find the course taken most unusual. The present plaintiff evidently bears the burden of proving the existence of a valid marriage between her and the deceased. Apart from proving that she and the deceased had undergone certain ceremony, she also has to establish that the alleged ceremony constituted a valid marriage according to Chinese customary law. In this respect, the general rule is for expert evidence to be adduced, either by way of testimony or, with leave of the court, by affidavit Indeed, in both the authorities cited by the plaintiff's counsel, experts had been called to testify. While the court may derive assistance from decided cases as to the essential requirements for a Chinese customary marriage, it has to be borne in mind that no two cases have the same identical facts. It is also to be noted that customary law is not static, a proposition readily accepted by counsel. Accordingly, the kind of marriage rites that is required for a valid Chinese customary marriage may differ from one part of China to another and depend also on the time of the marriage and the social conditions prevailing at the time. It cannot be safely assumed that the form of ceremony accepted as sufficient to constitute a valid customary marriage in one case will necessarily support a finding of a valid marriage in another case. In my view, the course adopted by the plaintiff is not to be recommended.

18. By that as it is, I now turn to examine the events and ceremony described by the plaintiff and her witness and relied upon by the plaintiff in contending that there was a valid Chinese customary marriage.

19. The plaintiff recalled that some time before the wedding, the deceased came with his paternal aunt and his elder sister, Yu Kwei Chun ("madam Yu"), to take a look at her. Later on, the paternal aunt made a proposal of marriage to the plaintiff's parents. She did so by the authority of the deceased's grandmother, who was the most senior member of the deceased's family as the deceased's parents had died. The betrothal gift was 19 silver coins. After consulting the dates of birth of the deceased and the plaintiff, the deceased's grandmother chose the wedding date.

20. On the date of the wedding, the deceased accompanied by his paternal aunt, acting as the go-between, and madamYu came to the plaintiff's home to collect her and bring her to the deceased's house. There, the deceased and the plaintiff carried out ancestral worship. They also worshipped the heaven and the earth. A banquet attended by relatives and friends was held. There were 3 tables of guests. The plaintiff served tea to the deceased's grandmother, followed by madam Yu, the plaintiff's parents and other relatives and friends. Thereafter, the plaintiff said she lived with the deceased and his grandmother until the deceased left for Hong Kong in 1956.

21. Madam Yu had testified for the plaintiff. She was born in 1922 and is now 78 years old. She recalled that in 1945, she was already married, but was still living in Mui County. Her parents had died. The deceased was living with their grandmother. The grandmother decided to make a marriage proposal for the deceased to the plaintiff 's parents. So she asked their paternal aunt to act as a go-between and send 19 silver coins to the plaintiff's parents as the betrothal gift. The plaintiff's parents consented and a date was chosen for the wedding.

22. On the chosen day, madam Yu said she and the aunt accompanied the deceased to collect the plaintiff from her maiden home and to bring her to the deceased's house. The couple worshipped the ancestors and also heaven and earth. They served teas and kow tow to the elders and the other relatives. A banquet was held at lunch time and the guests came up to 3 tables. After the wedding, the deceased and the plaintiff lived together with the deceased's grandmother. Madam Yu later left for Guangzhou and eventually came to Hong Kong in 1957. She therefore did not know in which year the deceased left for Hong Kong. She however met up with the deceased in Hong Kong about 1 to 2 years after her arrival in Hong Kong, and that would be about 1958 or 1959. Madam Yu said that when the deceased came to see her for the second time, he brought along madam Mok. She was aware that the deceased and madam Mok had been living together and continued to do so until the deceased's death.

23. The defendant, while not admitting any valid marriage between the plaintiff and the deceased, did not seek to challenge that the events and rites described by the plaintiff and madam Yu did happen. That is understandable. The defendant is in no position to do so and all that she can do is to put the plaintiff to strict proof of the celebration of the ceremony and that the ceremony constituted a valid Chinese customary marriage.

24. For my part, I have no hesitation in accepting the plaintiff's evidence. Plainly, she is a simple, straightforward old lady. She is understandably confused over years and dates, but there can be no doubt that she is telling the truth to the best of her ability. Her description of the rites and ceremony performed matches that given by madam Yu. I accept, on the evidence of the plaintiff and madam Yu, that the plaintiff and the deceased had in 1945 at Mui County undergone the rites and ceremony set out above. The question that follows is whether the rites and ceremony meet the essential requirements for a valid Chinese customary marriage.

25. In the case of Kwan Chiu Kwok & Anor, supra, Patrick Chan J. (as he then was), after referring to the well known authority of Marriage Laws and Customs of China by Dr Vermier Chiu and several other previous cases on Chinese customary marriages, observed (at pp. 400-401) that there were originally six rites, the observance of which was a necessary condition for the validity of a customary marriage. Since the Sung dynasty, the six rites had been simplified and reduced to three. They involved the procedure of selecting the bride, payment of money in settlement of the marriage and welcoming the bride into the bridegroom's home. The two rites, that were additional to the six rites and to be performed after the wedding, being "the rite for becoming a wife" and "the rite for becoming a woman", were also merged and to be performed on the wedding day.

26. The learned Judge further observed (at pp. 401F-402D) that :

"In my view, whatever changes had been made to these rites, one must always bear in mind that a Chinese customary marriage was by customs and tradition still essentially an alliance of the two families. Hence, there would always be elements such as: the presence of a go-between, the presentation or exchange of gifts, the approval or agreement of the heads of the two families, the holding out to the public of the event including the welcoming of the bride into the bridegroom's family. It is also clear that a customary marriage did not begin and end on the same day. It started sometime before the wedding day and finished a few days after that. So far as one can gather from these authorities, there were three essential stages where certain steps must be taken in order to constitute a valid customary marriage. The first stage would be that of proposal and betrothal. It consisted basically of a go-between bringing gifts or presents of betrothal from the family of the man to the family of the woman. It symbolized an offer on the part of the family of the man to enter into a contract of marriage with the family of the woman. The second essential stage would be that of an approval or agreement by the two families. This included the matching of the two persons' particulars and the fixing of the wedding date. It symbolized that the marriage had the blessing of the heads of the families and indicated a confirmation of the intention on the part of both families to proceed with the marriage. The last essential stage would be the welcoming of the bride by the bridegroom into his family which was done in the presence of relatives and friends. It was a symbol of acceptance in public of the bride into the bridegroom's family. This involved all the ceremonies which were to be performed on the wedding day. The details of such ceremonies would depend on different places in different parts of China. This would involve the receiving of the bride into the groom's family of a sedan chair in the olden days or in the form of a car or other transportation, the worshipping of heaven and earth and the bridegroom's ancestors, the serving of tea by the bride to the family elders, the introduction of the bride to the other members of the family and a banquet to celebrate the occasion."

27. Chan J. concluded that if the essential stages set out above were present, the marriage could be considered as a validly constituted customary marriage.

28. In the case of Chan Ching-hing, supra, Deputy Judge Saied (as he then was), in dealing with the objections raised by expert to the validity of the marriage to be adjudicated upon, observed (at p. 728) that : "when it is accepted that the Chinese customary law is a living thing which evolves and develops, providing it with the necessary flexibility in order to meet any situation or circumstance, in order to see whether the essence of the traditional customs has been retained and complied with I think that it behoves the court to view the ceremonies as a whole."

29. In the present case, the deceased's paternal aunt had acted as a go-between and formally proposed marriage to the plaintiff's family on behalf of the deceased's family. She had also delivered betrothal gift for the deceased's family. It is not clear from the evidence as to what went on after the proposal was made. It is, however, clear that the offer had been accepted by the plaintiff's parents and a wedding date was picked by the deceased's family. The evidence does not show whether there were exchanges of wedding presents between the two families and whether any dowry for the plaintiff had been sent to the deceased's home. The evidence only shows that on the wedding date, the plaintiff was collected by the deceased and escorted to his home. It is not clear in what manner the plaintiff was conveyed to the deceased's home. But when the couple was at the deceased's home, they performed worshipping and tea serving ceremonies. It was then followed by a wedding banquet attended by 3 tables of guests.

30. Having regard to the evidence and adopting the approach set out by Deputy Judge Saied, I am of the view that the basic marriage rites referred to in Chan J.'s judgment had been performed and observed by the plaintiff and the deceased. The ceremony of marriage was also followed by cohabitation. There are, as I had pointed out, certain details missing from the evidence adduced for the plaintiff, but they are not as vital as to affect the due observance of the three essential stages identified by Chan J. I am also aware of the fact that the marriage to be considered in this case was contracted in the mainland and both the plaintiff and the deceased were "Haka" natives. It is therefore possible that there were divergences and variations in the rites and ceremonies accepted by the Haka natives in Mui County. However, in the absence of evidence to the contrary, I am prepared to follow the rites and ceremonies as detailed in the Kwan Chui Kwok case. It follows the plaintiff had managed to discharge her burden of proof. Accordingly, I hold that the plaintiff and the deceased were lawfully and validly married according to Chinese customary law.

31. Before leaving this issue, I wish also to deal with 2 documents relied upon by the plaintiff in support of her contention that there is a valid marriage between her and the deceased. They consist of 2 notarial certificates issued by the Notary Office of Mui County. The first was dated 19 April 1989 and the second was dated 2 March 1998 and certified by the Consulate General of the Ministry of Foreign Affairs. Both notarial certificates purport to certify that the plaintiff and the deceased were married in 1945. It is to be recognized at the outset that these documents are not and do not have the status of marriage registration certificates. As the defendant rightly said, they cannot be evidence of the truth of the matters stated therein. The notary officers did not state that they have personal knowledge of the fact of marriage between the plaintiff and the deceased; accordingly, the contents of the certificates must be hearsay. The certification by the Ministry of Foreign Affairs does not in any way improve the evidential status.

32. Counsel for the plaintiff had referred to Practice Direction 22.3 which provides that a marriage certificate signed and authenticated by the appropriate officer after 1 May 1950 shall, where the validity of the marriage is not in issue, be received as evidence of the facts stated in the certificate. There are two obvious reasons why this Practice Direction is inapplicable. Firstly, the certificates in question are not the kind of marriage certificates contemplated by the Practice Direction for they were purporting to certify a marriage celebrated before the founding of the People's Republic. It matters not that one of the certificates was issued during the life time of the deceased. Secondly, the validity of the marriage between the plaintiff and the deceased is clearly and very much in issue.

33. Counsel for the plaintiff further relied upon section 37 of the Evidence Ordinance, cap. 8. The section provides that documents legally filed or recorded in any foreign court or consulate shall be admissible in evidence in Hong Kong courts and be held authentic and effectual for all purposes of evidence. Counsel argued that the certification by the Consulate General of the Ministry of Foreign Affairs renders the certificate dated 2 March 1998 falling within section 37 and should have the effect stated in the section. With respect, that cannot be right. The Ministry of Foreign Affairs is plainly not a foreign consulate such that section 37 has no application at all. The two certificates relied upon by the plaintiff simply have no evidential value and are of no assistance to the plaintiff.

The Cohabitation between the Deceased and Madam Mok

34. It follows from my holding that there was a valid marriage between the plaintiff and the deceased that the deceased could not have entered into another valid customary marriage with madam Mok during the subsistence of the former marriage.

35. Quite apart from that, the evidence in support of any form of marriage between madam Mok and the deceased is extremely scanty. There is firstly a photograph, said to be taken on 18 October 1959, depicting the deceased and madam Mok in wedding costumes. This is hardly sufficient to support the celebration of a marriage ceremony, let alone the existence of a valid customary marriage. In this connection, madam Yu had mentioned in her evidence that this photograph was taken to enable the deceased and madam Mok to apply for government public housing. Madam Yu, however, did not explain the basis for her so saying or the source of her information. This piece of evidence will simply have to be excluded. Secondly, there is a certificate of registered particulars issued by the Immigration in which it is stated that the deceased had lodged with the Immigration Department information to the effect that madam Mok was his spouse. While this may show that the deceased had regarded madam Mok as his wife, it does not show whether the deceased and madam had undergone any or what form of marriage ceremony. There are thirdly the affirmations and papers made by madam Mok for obtaining estate duty clearance and to renounce her rights to letters of administration. She had described herself as the widow and lawful kit fat wife of the deceased. Again, this is not evidence of the celebration of a wedding ceremony. There is, in short, a lack of evidence as to whether the deceased and madam Mok had carried out any form of marriage ceremony.

36. As a result of the lack of evidence, it is also not opened to the Court to consider whether madam Mok can be regarded as a concubine of the deceased on the basis that she had, subsequent to her cohabitation with the deceased, been accepted by the plaintiff and recognized by the deceased's family.

37. The inadequacy of the evidence in this regard is understandable. As the defendant pointed out, it was only after the deaths of the deceased and madam Mok that the status of madam Mok and herself was questioned. The defendant is clearly disadvantaged by the deaths of madam Mok and the deceased for she had little or no avenue to look to in establishing the status of madam Mok and her, and their relationship with the deceased. That unfortunately is the fact of the matter.

38. On the evidence available to this Court, I have come to the conclusion that there was no valid marriage between madam Mok and the deceased, and madam Mok was not the lawful kit fat wife of the deceased.

The Status of the Defendant

39. I have held that the plaintiff was lawfully married to the deceased such that she is the lawful kit fat wife of the deceased. The contents of the defendant's affirmation in support of her application for the Letters of Administration, at least in so far as it states that the deceased had no lawful wife other than madam Mok, are therefore incorrect. As such, the Letter of Administration is liable to be revoked. In addition, the plaintiff will be entitled to apply for letters of administration in priority to the defendant, irrespective of the status of the defendant. It is, therefore, strictly speaking, not necessary for the disposal of the plaintiff's claim to resolve the issue as to whether the defendant is the lawful and natural daughter of the deceased. Despite that, I feel obliged to deal with this issue for two reasons. Firstly, both parties had adduced evidence and made submissions on the issue. Secondly, it is only a matter of time that this issue has to be resolved for it is relevant as to who are the beneficiaries entitled to share in the deceased's intestacy. Given the small size of the deceased's estate and the fact that the plaintiff is resident outside Hong Kong, it is not in the parties' interest for the issue to be reserved for separate litigation.

40. The defendant claims that she is the natural daughter of the deceased born out of the union between the deceased and madam Mok. The defendant has no birth certificate. This suggests that her birth was not reported to nor registered with the Commissioner for Registration of Persons. The defendant also has no knowledge as to her place of birth. She relies principally on the declarations made by madam Mok in the papers for renouncing her rights to letters of administration, and also the certificate of particulars issued by the Immigration Department.

41. No weight can be attached to madam Mok's statutory declaration made in 1965. The declaration only goes to who the date of birth of the defendant, but cannot shed light on the parenthood of the defendant.

42. As to her statement to her solicitors renouncing her rights to letters of administration, madam Mok had stated therein that the defendant was the natural daughter of the deceased borne out of the union between the deceased and her. This statement was given 2 months before her death. Counsel for the plaintiff does not dispute that the declaration in this statement amounts to a declaration against interest. Counsel however seeks to challenge the credibility of the statement on the basis that madam Mok had been untruthful when she gave this statement and made her affirmation renouncing her rights to letters of administration. It was submitted that she had made false declarations in stating that the deceased had no lawful wife other than herself and also had no surviving children other than the defendant. There can be no doubt that, in view of the holding herein, the declaration by madam Mok is erroneous. But I have reservation whether one can safely infer or conclude that she had been deliberately untruthful. It is true that she had gone to Mui County with the deceased on a number of occasions and had met the plaintiff, Yu Chi Chung and Yu Chi Yung. Other than that, there is no evidence to suggest that she knew the precise relationship between them and the deceased. She might have been told by the deceased that he was married to the plaintiff or she might have suspected it. Equally, it is possible that the deceased had kept the truth from her and assured her that he had never undergone any ceremony with the plaintiff, in much the same way as he had assured the plaintiff.

43. It is Yu Chi Yung's evidence that he had lived with the deceased and madam Mok for about a year after he came to Hong Kong. It is also his evidence that during the funeral of the deceased, he and his family played the role of host family. However, he had also said in his evidence that as madam Mok was an elder in her 60's, she therefore did not have to be among the host family to acknowledge and respond to those who came to pay tribute to the deceased. I do not agree that these evidence demonstrate that madam Mok was aware that the deceased had a lawful wife and 2 lawful and natural sons. At the most, one can only say that madam Mok might have known that Yu Chi Yung was related to or a son of the deceased. I do not agree that madam Mok has been shown to be so incredible that her declaration that the defendant is the natural daughter of he deceased and her should not be believed.

44. Counsel for the plaintiff had also submitted that because madam Mok had made a will leaving the Fung Yuen property to her brother, it is possible that she made the declaration in her statement to solicitors to pacify the defendant. This submission is highly speculative and has no proper evidential foundation. The evidence available at this trial only shows that the plaintiff's brother was named as the executor in madam Mok's will. The evidence does not show who the beneficiary(ies) is/are.

45. As to the certificate of particulars issued by the Immigration Department, it records that the deceased had applied for juvenile identity card to be issued to the defendant, and that the deceased had stated that the defendant was his daughter and given the defendant's date and place of birth as 29 September 1955 and Hong Kong. Counsel for plaintiff does not really argue that the information given by the deceased to the Immigration Department can be admitted as a declaration against interest. Counsel however submitted that this declaration by the deceased is inherently untrue in that the defendant was said to be born at a time when the deceased had yet to come to Hong Kong. This submission is premised on the plaintiff's evidence that the deceased left his native home in 1956. In both the Statement of Claim and the affirmation that serves as witness statement, the plaintiff had referred to 1959 as the year in which the deceased left for Hong Kong. Interestingly, madam Yu made the same mistake in her affirmation that serves as witness statement. At the trial, the plaintiff corrected this and said that it should be in 1956, i.e., when her youngest son was 3 years old. Madam Yu also corrected herself. Indeed it appears from her evidence that she had no personal knowledge as to when the deceased left for Hong Kong as she left the native place before he did.

46. I have doubts as to the accuracy of this part of the plaintiff's evidence. The plaintiff had not explained why and how it was that she came to make a mistake in the first place. More importantly, she does not impress me as a witness who is good at dates and years. She, for instance, had not been able to tell the date or even the month of her own wedding. The evidence also does not show how the plaintiff came to say that her youngest son was born in 1953. It is not suggested that the son had a birth record. If it is based on the plaintiff's memory, then, for reasons that I had mentioned, it is quite possible that she was mistaken. Further, I find it unusual that she would refer to the actual age of her son as the reference point for reckoning the year in which the deceased left home. Back in the 1950s and certainly in the mainland, the practice of Chinese people in reckoning one's age was by adding one more year to the number of years that had lapsed since birth. This is because to the Chinese people, a baby would be one year old at birth.

47. In the course of evidence and submission, counsel had drawn my attention to the fact that identity card was first issued to the deceased in February 1956. It was submitted that this indicates that the deceased came to Hong Kong in 1956, for it is madam Yu's evidence that she obtained her identity card one month after her arrival in Hong Kong. In my view, this submission is proceeding on the assumption that the deceased applied for his identity card immediately after he came to Hong Kong. But there is no evidential basis for such assumption. There is for instance no evidence to the effect that identity card was a crucial document in the 1950s so that an immigrant would normally applied for it once he landed in Hong Kong. I do not agree with the submission that the particulars supplied by the deceased to the Immigration Department in relation to the defendant are inherently unlikely or untrue. It is to be noted that madam Mok had given another date, 22 October 1956, as the defendant's date of birth in a Statutory Declaration she made in 1965. It is thus possible that the deceased had erred in respect of the defendant's date of birth he supplied to the Immigration Department. That of course begs the question why the deceased would have made a mistake about his daughter's date of birth. But this is not the same as saying that it is inherently improbable for the deceased and madam Mok to have given birth to the defendant.

48. In an attempt to show that the defendant is not the natural daughter of the deceased, the plaintiff suggested that the defendant was the daughter of madam Mok's 6th sister, Mok Lei Chun, and her husband. The evidence in this regard came from madam Yu. She said that some time around 1965 when the deceased and madam Mok moved to the Fung Yuen property, Mok Lei Chun had to leave for America and so entrusted her 3 children, including the defendant, with madam Mok. She said that it was the deceased who told her about this. This piece of evidence is undoubtedly hearsay. Madam Yu had given no details as to the circumstances under which the deceased imparted this information to her. It is a piece of evidence that should carry little weight. In addition, there are signs in her evidence that madam Yu was quite prepared to accept as true things that she had been told. Her account as to the year in which the deceased came to Hong Kong, a matter that allegedly she learnt from a letter from her family member, is but on example. One therefore has to approach her evidence with some caution. At the same time, her evidence shows that madam Yu harbours certain dislike towards the defendant. She stated under cross-examination that the defendant despised Yu Chi Yung. When asked the basis for saying so, she said that the defendant had claimed that the deceased died leaving nobody (meaning leaving no surviving issue or next-of-kin). It then transpired that she was referring to the defendant's affirmation filed in support of the application for letters of administration. It also transpired that she was convinced that the defendant well knew the deceased had a wife and 2 sons because she believed that madam Mok must have told the defendant so. Although madam Yu has been put forward as an independent witness, she does not strike me as a witness whose evidence can be accepted in full and without question. Having regard to the matters aforesaid, I do not feel able to rely on madam Yu's evidence to say that the defendant is not the natural daughter of the deceased.

49. In further support of the contention that the defendant is the daughter of Mok Lei Chun, the plaintiff referred to the birth certificate of one Lee Kwok Kit. It is madam Yu's evidence that this Lee Kwok Kit is one of the 3 children entrusted by Mok Lei Chun with the deceased when she left for America. Counsel for the plaintiff contends that this Lee Kwok Kit is the person mentioned in the Immigration Department's certificate of particulars as the other person for whom the deceased had applied for a juvenile identity card. It is firstly to be noted that the parents set out in Lee Kwok Kit's birth certificate were named Mok Lai Ching (莫麗貞) and Lee Kwong Yuen (李光遠). This is different from madam Yu's evidence in her affirmation and in court that madam Yu's sister is Mok Lei Chun (莫利珍) and her husband is Lee Yuen (李遠). Even accepting that Lee Kwok Kit is the son of Mok Lei Chun, it cannot lead to the conclusion that the defendant is also a child of Mok Lei Chun. Even though the deceased had applied juvenile identity cards for both Lee Kwok Kit and the defendant, the defendant had described the former as his ward and the defendant as his daughter. The deceased had clearly drawn a distinction between the two children. This in my view lends weight to the defendant's case that she is the natural daughter of the deceased and that she had always understood and regarded the deceased as her natural father.

50. I am satisfied that the evidence on the whole establishes, on a balance of probabilities, that the defendant is the natural daughter of the deceased.

51. The question that arises is whether the defendant is also the lawful daughter of the deceased in the sense that she was regarded as a child or issue of the deceased for the purpose of the Intestates' Estates Ordinance, cap. 73. I have held that there was no valid marriage between the deceased and madam Mok, the defendant is thus an illegitimate child. The question is whether an illegitimate child has any interest in the estate of his father who died intestate.

52. As the deceased died on 14 January 1995, the question has to be answered by looking at the relevant provisions in the Intestates' Estates Ordinance as at January 1995. Before the amendment introduced by Ordinance No. 17 of 1993, section 2(2) of the Intestates' Estate Ordinance provided that references in the Ordinance to a child or issue of any person shall mean, under subsection (a), "a child of a valid marriage to which that person was a party". Illegitimate children are therefore excluded from the ambit of the Ordinance so that they are not entitled to take any interest in the estate of their parents who died intestate. By Ordinance No. 17 of 1995, the section was amended by deleting the entire subsection (a). This section was subsequently further amended by Ordinance No 57 of 1995. This further amendment is irrelevant for our present purpose as it was introduced after the death of the deceased.

53. Counsel for the plaintiff suggested, which I agree, that the deletion of subsection (a) from section 2(2) in 1993 would have the effect of removing the exclusion of illegitimate child from the ambit of the Ordinance so that an illegitimate child would be entitled to share in the intestate estate of his father where the death occurred after the amendment in 1993. In the circumstances, the defendant would be entitled to share in the deceased's estate as a child or issue of the deceased, notwithstanding that she was born illegitimate. The defendant is therefore a lawful and natural child of the deceased.

Relief Sought by the Plaintiff

(1) Revocation of the Letters of Administration and grant of letters of administration to the plaintiff

54. Under section 33(1) of the Probate and Administration Ordinance, cap. 10, a letters of administration is liable to be revoked if it appears to the court that it ought not to have been granted or contains an error .

55. Two consequences flow from my finding that the plaintiff is the lawful kit fat wife of the deceased whereas madam Mok was not : Firstly, the affirmation filed by the defendant in support of her application for grant of letters of administration was incorrect. Secondly, the defendant's right to letters of administration should come after that of the plaintiff. Accordingly, the plaintiff is entitled to an order pursuant to section 33(1) of the Probate and Administration Ordinance revoking the Letters of Administration. Further by reason of Rule 21(1) of the Non-contentious Probate Rules, cap. 10, the plaintiff is entitled to apply to the Probate Registry for the grant of letters of administration in her capacity as the lawful kit fat widow and relict of the deceased.

(2) Rendering of an account of the estate of the deceased by the defendant

56. In the course of her evidence, the defendant had indicated that she does not resist an order to render an account of the deceased's estate received and collected by her as administratrix, in the event the Court revokes the Letters of Administration. There will be an order to the effect that she file and serve such an account within 30 days from the date of this judgment.

57. In respect of the scope of the account to be given, the defendant also agrees that it should extend to the full value of the estate, namely, $196,896.72. This comprises not only the cash at the bank accounts of Hua Chiao Commercial Bank Ltd, Chiyu Bank Ltd, 851 shares of HKBC Holdings plc., and the key deposit and value of the content of the safe deposit box with Chiyu Bank Ltd, but also the RMB 50,000 initially deposited with the Bank of China. It is the plaintiff's case that, although this amount was not included in the schedule of property annexed to the Letters of Administration, the defendant had withdrawn the amount. The defendant had not contested this. As the amount was part of the deceased's estate and collected by the defendant, she would also have to account for it.

58. The amount to be accounted is also that before the deduction of $50,000 funeral expenses. Yu Chi Yung had testified that he had paid for all the funeral expenses, to which the defendant did not accept. Irrespective of who had paid for the funeral expenses, it remains for the defendant to account for the $50,000 which had been excluded from the value of the deceased's estate for the purpose of estate duty calculation on the basis that it is funeral expenses.

(3) Return of assets of the estate as collected by the defendant

59. Upon the issue of letters of administration to the plaintiff, the defendant will have to deliver to the plaintiff all the assets of the deceased's estate that remain in her hand. In the meantime and pending the grant of the letters of administration to the plaintiff, the defendant is under no right to deal with any of the assets of the deceased's estate. If she intermeddles with the estate, she may find herself liable to claims from the beneficiaries of the estate.

Costs

60. The final issue that falls to be determined is the costs of these proceedings. In this action, the defendant is sued and she defends the action in her capacity as the administratrix of the deceased's estate. The defendant had submitted that she should not be held liable for the costs of these proceedings for the reason that she was previously not aware of the existence or rights of the plaintiff. The plaintiff, on the other hand, argued the defendant should be liable for the costs on the basis that she defends the action unreasonably and for her own benefit and also because of the modest size of the estate.

61. In general, costs is in the discretion of the court. Order 62 rule 6(2) of the Rules of High Court limits that discretion to the extent that a personal representative is entitled to have his costs, insofar as it is not recovered or paid by other person, met by the estate and the court may otherwise order only where the personal representative has acted unreasonably or has in substance acted for his own benefit rather than for the benefit of the estate. The burden is therefore on the plaintiff to prove that the defendant's conduct in these proceedings take her out of her cost entitlement. It is plain from Order 62 rule 6(2) that the size of the deceased's estate is not a relevant consideration.

62. In attempting to discharge her burden of proof, the plaintiff relies on the fact that the affirmation leading to the grant of the Letters of Administration is false and incorrect as showing that the defendant has acted unreasonably. Counsel for the plaintiff contends that, before making the affirmation, the defendant knew full well that the deceased had a wife and 2 sons and grandchildren. The contention is principally founded on 2 matters. First of all, it was said that the defendant had met Yu Chi Yung at the Fung Yuen property during one Chinese New Year, and he was introduced by the deceased to the defendant as "the brother from the native country" (鄉下阿哥). Secondly, it was said that the defendant met Yu Chi Yung again and had greeted him as "brother Yung" (勇哥) at the funeral of the deceased.

63. On the first ground, the defendant denied having such an encounter with Yu Chi Yung. Yu was initially adamant that he first met the defendant at the first day of the Chinese New year in 1982. When being cross-examined and challenged by the defendant on this, Yu appeared to be hesitant and retracted from his position. He said that he could not be sure whether it was the first or second day of the new year, or whether it was 1981 or 1982, that the defendant came. He also could not tell whether the defendant came to the Fung Yuen property with a baby girl, although he had previously said that the defendant was with her husband and children.

64. As to the occasion at the deceased's funeral, the defendant agreed that she met Yu Chi Yung at the funeral parlour, and it was there that madam Mok introduced him as "the brother from the native country" (鄉下阿哥) whereupon she addressed him as "brother Yung". The defendant denied that she had ever been told by madam Mok that Yu Chi Yung is the deceased's son. I accept the defendant's case that the mere reference to "the brother from the native country" does not necessarily convey the message that Yu Chi Yung is the deceased' natural son. On the other hand, to convey the message suggested by the plaintiff, that phrase must be read to mean that Yu is the defendant's natural brother from the native country. It will be very odd for madam Mok or, on the plaintiff's case, for the deceased to say so if, as the plaintiff says, the defendant is not the natural daughter of the deceased.

65. The plaintiff has at the trial sought to lead evidence from Yu Chi Yung and his wife as to a visit allegedly made by the defendant in 1995 to their house, during which the defendant was said to have made enquiries as to proofs of the status of the plaintiff and her sons and also about application for grant. I had disallowed the evidence. The direction for filing of witness statements in this case was made as early as 1997, but the first statement of Yu Chi Yung was only filed in February 1999. In September 1999, leave was granted for him to file a supplemental statement. The alleged visit by the defendant appeared in this supplemental statement. The defendant was not at home when this alleged visit was made and he was told about it by his wife. It must be obvious that this part of his witness statement is hearsay and that the proper person to testify on it is the wife. No statement was however made by the wife. This being the case, this part of Yu's statement should not have been included at all and Yu cannot be allowed to give evidence about it. No explanation has been advanced as to why a statement has not been given by Yu Chi Yung's wife. Order 38 rule 2A should therefore be strictly observed and the plaintiff is accordingly disallowed from calling evidence on this alleged visit.

66. I do not agree that the plaintiff has made out a case that the defendant has acted unreasonably. I, however, agree that in defending this action, the defendant is not acting solely for the benefit of the estate. It is true that as the administratrix, she is under an obligation to ascertain and verify the rights and claims of potential beneficiaries. It is equally true that one of the major objectives of the defendant in this litigation is to define and secure her personal rights or interest as an individual. A substantial part of the litigation and the trial have been devoted to the issue of whether the defendant is the lawful and natural daughter of the deceased, an issue which does not necessarily have to be resolved in this litigation. The defendant also, understandably, had not adopted a wholly disinterested and independent attitude, which is the normal attitude expected of a trustee, in these proceedings. Seen in this light, this is an appropriate case to depart from the general rule that will afford the defendant an indemnity of her costs : see In re Dargie, Miller & Thornton-Jones [1954] Ch 16. On the other hand, there is nothing to suggest that the defendant had been guilty of gross misconduct or indefensible neglect as to justify being visited with a costs order against her personally : see Halsbury's Laws of England vol. 17 (4th edition) paras. 1492-1494 and Skinner, In re Cooper v. Skinner [1904] 1 Ch 289. In my view, the appropriate costs order is for the parties to bear their own costs and there will be an order nisi to that effect.

Conclusion

67. For the reasons aforesaid, there will be judgment to the plaintiff for the following orders :-

(1) An order that the letters of administration in respect of the estate of the deceased granted to the defendant on 31 October 1995 be revoked with effect forthwith.

(2) An order that the plaintiff is entitled, in her capacity as the lawful kit fat widow and relict of the deceased, to apply to the Probate Registry of the High Court for the grant of a letters of administration in respect of the estate of the deceased.

(3) An order that the defendant do within 30 days after the date of this Judgment file with the Court and serve on the plaintiff's solicitors a signed true and just account of the assets and properties comprising the estate of the deceased.

(4) An order that, upon letters of administration be granted to the plaintiff, the defendant do take immediate step to deliver and transfer to the plaintiff all the assets and properties belonging to the estate of the deceased and which have been collected an/or received by the defendant in her capacity as administratrix under the letters of administration issued on 31 October 1995.

68. There will also be an order nisi that there be no order in respect of the costs of these proceedings, save that the plaintiff's own costs be taxed under the Legal Aid Regulations. The order nisi to be made absolute upon the expiration of 14 days after the handing down of this Judgment.