ZHANG XINQIANG v. CHEUNG SHUI CHEUNG

HCAP 8/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 8 OF 2013

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JUDGMENT

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Introduction

1.  Eleven lots of agricultural land in the New Territories (“the Properties”) were registered in the joint names of Cheung Sang (張有), Cheung Wa (張華) and Cheung Yau (張有) by a memorial relating to an instrument entitled Conveyance On Sale dated 17 January 1950 (“the 1950 Memorial”). The major issue in this action is the actual identity of Cheung Yau (“the Cheung Yau”) having 1/3 share of each of the Properties.  Mr Zhang Xinqiang (“Zhang”), the plaintiff, says it was his late father whose name was Cheung Kee Yau (張記友) with an alias of Cheung Yau (張有) (“P’s late father”) whereas Mr Cheung Shui Cheung (“SC Cheung”), the defendant, says it was his late father whose name was Cheung Yau (張有) (“D’s late father”).

2.  D’s late father was born in April 1926 and passed away in September 2011. On or about 25 June 2012, upon the application of SC Cheung, a probate numbered HCAG6870/2012 (“the Probate”) was granted in his favour as executor of the estate of D’s late father which allegedly include the Properties.

3.  On or about 20 July 2012, SC Cheung caused the Probate together with the last will of D’s late father be registered in the land registry against the Properties under a memorial numbered 12072000010010 (“the Registration”).

4.  Zhang brought this action on 25 April 2013 to claim against SC Cheung as the executor of the estate of D’s late father for:

(1)  a declaration that the Properties at all material times belong to the estate of P’s late father;

(2)  a declaration that the Properties at all material times did not belong to the estate of D’s late father;

(3)  an order that the Probate be revoked; and

(4)  an order to vacate the Registration.

5.  SC Cheung in his defence insists that the Cheung Yau was his late father. Further, he makes a counterclaim arising from the registration of a writ of a High Court action commenced by Zhang under HCA 2034/2012 against the Properties (“the High Court Action Writ”), which he contends to be wrongful and amount to a slander of title. As a result, loss and damage has been allegedly caused to the estate of D’s late father.

6.  Before dealing with the interesting question concerning the identity of the Cheung Yau, I should first set out the uncontroversial background facts with the assistance of many contemporaneous documents, the authenticity of which is not in dispute.

Background facts

7.  I should start with the geographical information. Cheung Sang, Cheung Wa, P’s late father and D’s late father resided in Lo Fong Village (羅芳村).  Lo Fong Village is divided into two parts by Shenzhen River. The northern part is in the Mainland whereas the southern part is within the territory of the Hong Kong Special Administrative Region. The latter is also known as Kaw Liu Village (較寮村), Ta Kwu Ling, New Territories. 

8.  The Properties are located in Lo Fong Village and consist of the following:

(1)  Lot No.958 in Demarcation District No.78;

(2)  Lot No.961 in Demarcation District No.78;

(3)  Lot No.963 in Demarcation District No.78;

(4)  Lot No.971 in Demarcation District No.78;

(5)  Lot No.1079 in Demarcation District No.78;

(6)  Lot No.1097 in Demarcation District No.78;

(7)  Lot No.1103 in Demarcation District No.78;

(8)  Lot No.1256 in Demarcation District No.78;

(9)  Lot No.1510 in Demarcation District No.78;

(10)   Lot No.1512 in Demarcation District No.78;

(11)   The Remaining Portion of Lot No.1527 in Demarcation District No.78;

9.  A family diagram relating to Zhang and another one relating to SC Cheung are available to this court. There is no dispute about the memberships of the two families apart from the alleged alias of P’s late father stated therein. In the former involving four generations, on the top of the family tree is Cheung Kwai (張葵) (“P’s Grandfather”). He had three sons, namely, Cheung Sang, Cheung Wa and P’s late father. Cheung Sang, the eldest son, was also known as Cheung Wan Sang (張運生). Cheung Wa, the second son, was also known as Cheung Wan Wah (張運華). Their aliases are not challenged. Cheung Kee Yau (張記友), P’s late father,was the youngest son and the fundamental issue here is whether he had the alias of Cheung Yau (張有).

10.  Cheung Sang was born in 1902 and died in 1984. Cheung Wa was born in 1905 and died in 1995. P’s late father was born in March 1910 and passed away in May 1981. D’s late father was born in April 1926 and was not related to the Cheung brothers.

11.  Cheung Sang had two children. His son was married with four children. One of them is Cheung Nin Fong (“Fong”). Cheung Wa had four children including Cheung Sau Ming (張秀明) (“Ming”) and Cheung Sau Ping (張秀平) (“Ping”) and thirteen grandchildren. P’s late father had six children including Zhang. Zhang has four children including Cheung Kwok Sun.

12.  The family diagram relating to SC Cheung shows that SC Cheung’s grandfather was called Cheung Chi Sui (張志水) (“D’s Grandfather”), who had two brothers. D’s Grandfather had a son, i.e. D’s late father and a daughter. SC Cheung himself is married with five children. SC Cheung agrees that D’s Grandfather had an alias known as Cheung Sui (張水).

13.  Both of the two family diagrams bear a chop of a Mainland organization known as “深圳市羅湖區黃貝街羅芳社區居民委員會” (“the Authority”). Each of the chops was stamped on a handwritten statement with a date in late 2013.

14.  On the land search records, it can be seen that the Government leases in respect of the Properties were commenced on 1 July 1898 and one Cheung Yuk Pang (張毓鵬) (“Pang”) was the first owner. By a mortgage dated 15 March 1911 made between Pang and Po Lung, the Properties were mortgaged to Po Lung and one Wong Chi Nam was the trustee of Po Lung. On or about 17 April 1937, an additional trustee was appointed and it was one Wong Kin Man. On or about 9 December 1948 Wong Tsang Shi and Wong Hon Ying were appointed to replace Wong Chi Nam and Wong Kin Man, having apparently passed away, as trustees of Po Lung.

15.  The Properties, as mentioned, were assigned to Cheung Sang, Cheung Wan and the Cheung Yau on 17 January 1950. Prior to this assignment, several important documents had been created which may shed light on the ownership of the Properties.

16.  Wong Chi Nam of Po Lung issued a notice in both Chinese and English to Pang as mortgagor dated 19 April 1918 (“the Notice”) to notify him that if he defaulted in repayment of the principal sum of HK$250 together with interest then due thereon, the Properties would be sold. It was recorded twice in the Notice in the Chinese language that the Notice was served on the mortgagor identified to be 張魁on the 9^th day of April apparently in the Lunar calendar.

17.  There is no evidence of any repayment by Pang in the wake of the Notice. The District Office of the New Territories issued a public notice dated 2 December 1949 (“the Public Notice”) to give notice to the public of the intention of the two trustees of Po Lung to sell the Properties to Pang. Any person who wanted to oppose the sale had to petition to the District Office within a month from the date of the notice.

18.  Little is known about Po Lung. I do not know exactly what its legal status was. I assume that it was an unincorporated body acting through and holding properties by its trustees. By reason of the Public Notice, I believe Po Lung was a Tso or Tong.

19.  Absent any opposition, as indicated by a handwritten note in English apparently written by a staff member of the District Office dated 17 January 1950, the sale was approved. The 1950 Memorial was signed on the same day accordingly. The District Office also issued a certificate of the same date certifying the ownership of the Properties and Cheung Sang, Cheung Wa and the Cheung Yau were identified to be the registered owners.

20.  The three of them signed another memorial dated 16 January 1963 (“the 1963 Memorial”) to sell Lot No.1527A of the Properties to Yeung Mui in consideration of HK$1,000.

21.  Both Cheung Sang and Cheung Wa disposed of their shares in the Properties subsequently due to their death. For present purposes, I need not be concerned with the devolution of their legal titles to the Properties. What is important is that the 1/3 share of the Cheung Yau remains intact.

22.  I should add that on or about 22 November 2009, the widowed wife of D’s late father Madam Lee, i.e. Zhang’s mother, passed away.

23.  Now I turn to the events relating to D’s late father. There is a memorial dated 9^th March 1938 and the instrument registered was entitled Succession of Property. By the instrument, D’s late father and Cheung Cheng Shi succeeded from three deceased persons all surnamed Cheung 16 other lots in D.D. 78.

24.  By an instrument entitled “Sale” dated 11 April 1938, D’s late father and Cheung Cheng Shi sold to one Hau Fo Hing Lot No.1364B in D.D. 78, of the Properties.

25.  It should be noted that the D’s late father was only aged 12 residing in the Mainland China at the time when the said succession and sale took place.

26.  D’s late father purportedly obtained his Hong Kong ID card in or about 1950 after staying in Hong Kong a long while beforehand. On or about 21 February 1964, D’s late father married Madam Zheng resided in Kaw Liu Village, Ta Kwu Ling, New Territories. Their marriage took place in the Mainland as evidenced by their marriage certificate issued by the authority in the Mainland dated 13 July 1994.

27.  By a memorial dated 12 August 1983, a conveyance on sale in consideration of HK$42,640.00 was executed whereby one Hau Kam Chau sold to D’s late father and one Mr Chan Wing Shing (“WS Chan”) Lot No. 1364B, R.P. D.D. 78 as tenants in common in equal shares.

28.  By an instrument entitled cancellation of trustee dated 2 April 1981, by reason of his death, Cheung Cheng Shi was removed as the trustee. D’s late father signed the memorial. It transpires that Cheung Cheng Shi had been a trustee when he executed the Succession of Property and the Sale together with D’s late father, who was a minor at that time.

29.  In or about 2008, informal news about the intended compulsory resumption of D.D.78 was spread in Lo Fong Village. The descendants of Cheung Sang and Cheung Wa were then prompted to make their applications for their respective probate.

30.  The official announcement came by way of a notice dated 21 June 2012 issued by the Lands Department. The government announced its intention to resume a large number of lots including the Properties in that area.

31.  On or about 25 June 2012, the Probate of the D’s late father was granted to SC Cheung with the 1/3 shares in the Properties being included in his estate.

32.  As mentioned in the introductory part of this Judgment, on or about 20 July 2012, SC Cheung registered the Probate together with the last will of D’s late father against the Properties in the Land Registry.

33.  By a letter dated 12 October 2012, the District Lands Office made an offer of HK$5,414,754.00 to the registered owners of the Properties. SC Cheung was also included as the administrator of the estate of D’s late father.  

34.  Shortly afterwards, Zhang made a protest to the District Lands Office both by himself and through his former solicitors.

35.  He took out the present probate action on 4 July 2013 and issued the High Court Action Writ on 1 November 2012.

Zhang’s case

36.  Altogether four witnesses including Zhang himself testified in support of his case. Though Ming made a witness statement, he did not attend the trial and I am persuaded by affirmation evidence that he was prevented by his mental condition from giving live evidence. Other witnesses included Fong (the grandson of Cheung Sang), Ping (the son of Cheung Wa) and one Mr Yiu (“Yiu”), who was an indigenous villager in Lo Fong Village but resided in another village nearby called Chuk Yuen Village.

37.  Zhang’s case is very simple. He merely insists that his late father Cheung Kee Yau had an alias of Cheung Yau and the Cheung Yau that purchased the Properties with Cheung Sang and Cheung Wa was his late father. In his witness statement, he mostly related all the historical facts shown in the public records and set out above.

38.  He alleges that the Properties at the very outset belonged to his ancestor but were once owned by other people. The Cheung brothers hence worked very hard to earn money to buy back the Properties in 1950. He accepts that P’s late father and his family including he himself resided in the Mainland and were PRC citizens whereas the families of Cheung Sang and Cheung Wa resided in Kwa Liu Village. They farmed in Hong Kong and P’s late father was essentially a carpenter.

39.  Since the acquisition of the Properties, since Cheung Sang was the eldest and a local resident, he was responsible for managing the properties including all their incomes and outgoing expenses to be shared equally among the three brothers. Such a managerial responsibility was first passed to Mr Cheung Fook Cheung, the only son of Cheung Sang and then his eldest son, Fong. The original title deeds of the Properties are now in the possession of Fong.

40.  Zhang also produced some documents purportedly evidencing a lease granted to a lady called Madam Chan in respect of Lot 1079 of the Properties for her poultry farm business commencing January 2012 to the present (“the Lease”). Over the years, all the rental incomes generated from the Lease have been purportedly equally distributed to the three families.

41.  Not long before the death of Madam Lee, she discussed the matters relating to the Properties with Zhang. When Madam Lee and Zhang applied for the administration of the estate of P’s late father, they were prompted by the Lo Fong Village Committee to seek a confirmation that D’s late father was not the Cheung Yau.

42.  To this end, Madam Lee asked Zhang’s wife Madam Lee Yuk Mui (“Mui”) to pay two visits to the home of D’s late father in or about 2009.  Zhang was not present in the two visits and he was told by Mui that D’s late father refused to make the confirmation in the last visit.

43.  The evidence of Fong, Ping and Yiu is very similar to those of Zhang. 

SC Cheung’s case

44.  SC Cheung’s case is equally simple. His late father was a permanent resident of Hong Kong with a Hong Kong ID card. He had two aliases to his knowledge, namely, 張房有 and 張煌有. According to his late father, he acquired 1/3 share in the Properties together with Cheung Sang and Cheung Wa by reason of his equal contribution to the purchase price of HK$3,600, i.e. HK$1,200.

45.  It is alleged that after the acquisition, D’s late father exercised his right over the Properties by using them for agricultural purpose. Subsequently he purchased other different lots close to the Properties in April 1981 and August 1983.

46.  He contends that the present claim of Zhang was only prompted by the compulsory resumption of the Properties by the government. For more than half a century, P’s late father and his family had never made any claim that he and not D’s late father was one of the registered owners of the Properties.

47.  He went on to plead an allegation that in 2009 Mui made three visits to the home of D’s late father in Kwa Liu Village. Mui managed to talk to D’s late father in the latter two visits and her requests for a transfer of his legal title to the Properties to Zhang was rejected flatly. SC Cheung was not present on the three occasions.

48.  For the counterclaim based on the plea of slander of title, Mr Lincoln Cheung, for the defence, accepts that there is no evidence any damage and loss suffered at this stage.

49.  SC Cheung alone testified for his case. He is an estate agent by occupation and works in Tai Po. He was only born in 1969 and had no personal knowledge about the acquisition of the Properties. He could only relate what his late father had told him.

50.  For the financial ability of D’s late father to purchase the 1/3 share in the Properties, Zhang alleges that D’s late father made a lot of money by unidentified employments and, after 1949, smugglings of daily commodities to the Mainland. Therefore, in 1950, he intended to make use of his savings to purchase agricultural lots for farming purpose since most of the villages were farmers.

51.  For the proximity between P’s Grandfather and D’s Grandfather, Zhang told this court that D’s late father had told him that they were very close and addressed each other as brothers. In the wedding banquet of D’s late father, despite the death of D’s Grandfather, P’s Grandfather also attended with pigs and cows as wedding gifts.

52.  Zhang claims that though there was an age gap between the Cheung brothers and D’s late father, they after all belonged to the same peer group and after discussion, they agreed to purchase the Properties together.

53.  According to the recollection of D’s late father, since he had other lots to farm, he only farmed in two lots out of the Properties with the assistance of his two sons including SC Cheung in or about 1976 while the remaining lots were uncultivated.

54.  SC Cheung left Kwa Liu Village and resided elsewhere in 2002. He paid regular visits to his parents until the death of his father.

55.  SC Cheung confirms that WS Chan, who jointly purchased a lot with D’s late father in 1983, was remotely related to his family.

56.  SC Cheung further produced a 2-page document (“the Document”) in which both he and D’s late father set out the property information of the Properties. His evidence is that D’s late father alone went to the District Office and obtained the land search records of the Properties in December 2008. He prepared some notes with reference to the information gleaned from the records such as the identity of the vendor (Po Lung) and its trustees. He showed SC Cheung the Document at his home after he had prepared the same.

57.  When SC Cheung prepared the Probate, he worked on the Document and added some more details of the Properties to the Document.

Analysis

58.  This trial essentially involves only one single factual issue. However, due to insufficient investigation by the parties, this court has only received very limited amount of evidence of real probate value. The evidence of all the factual witnesses of both sides contains a large amount of hearsay evidence, and worse still, without the source(s) of information being identified in the case of Zhang and his witnesses.

59.  The documentary evidence fares no better and most of them are self-serving in nature. Very unfortunately no relevant parties to the key conveyance in 1950 could give evidence on the identity of the Cheung Yau.

60.  Despite the unsatisfactory conditions of their witness statements, Zhang and his witnesses appeared to me to be truthful and honest. In particular Zhang struck me to be a rather simple-minded and straightforward person. He was very fair in his oral testimony and readily accepted the limitation of his evidence. He did not hesitate in his agreement with Mr Lincoln Cheung in regard to something apparently to his disadvantage when he was skilfully cross-examined. A prime example is that he accepted that he had never ever heard anyone calling his late father as Cheung Yau (張有). He never insisted that he had personal knowledge of certain allegations in his witness statement when apparently he should not have. When he could not explain why he could include certain matters in his witness statement, he candidly told this court that it was his family members who had supplied the information to his lawyers.

61.  The evidence of Ping and Fong suffered similar limitations. They largely relied on what other people had told them. 

62.  I am not satisfied that there is sufficient evidence to establish that the Cheung brothers had ever divided among themselves in equal shares the incomes and expenses of the Properties over the years since their acquisition of the same. I can only accept that all along the Properties were managed by Cheung Sang and his descendants including Fong.

63.  I do not think what they did from 2008 onwards including the agreement to jointly develop three lots of the Properties as evidenced by a written agreement dated 30 October 2008 can assist to establish that P’s late father was the Cheung Yau. Nor can the Lease though as a matter of fact I accept it existence on the strength of the documents signed by the Madam Chan.

64.  I agree with Mr Lincoln Cheung that Yiu’s evidence has no probate value at all.

65.  In his closing submissions, Mr Lincoln Cheung validly points out the weaknesses of the evidence of Zhang and his witnesses. I agree with most of his criticisms including the fact that they are far too many identical or similar contents in their witness statements. However, having heard this witnesses, I cannot accept that they were deceitful people making an orchestrated effort to mislead the court.  I cannot hold any deficiencies in their written evidence against them.

66.  On the other hand, SC Cheung was an articulate and forthcoming witness speaking with confidence and clarity. The problem with his evidence is that he does not have any personal knowledge of the 1950 conveyance. I do not think I can rely on his evidence that he had farmed in two lots of the Properties when he was a small boy. He could not have any particular knowledge of which the lots were even if he did farm given the fact that at that time D’s late father had so many other agricultural lots in that area.

67.  In the circumstances, SC Cheung relied heavily on what D’s late father had told him. Even though he struck me as a truthful witness as well, his hearsay evidence can be unreliable. I do not necessarily believe what D’s late father said about his purported ownership of the Properties. I have to test the veracity of his assertion against the contemporaneous documents and assess its inherent probability.

68.  Now I turn to the documentary evidence. There is not a single document which can conclusively evidence P’s late father’s use of his purported alias of Cheung Yau (張有) other than the 1950 Memorial and the 1963 Memorial. This Mr Leung, for Zhang, fairly accepts.

69.  There are a few of documents produced by Zhang to show that P’s late father was also called Cheung Yau (張有). First there is a certificate issued by the Authority to certify the natural death of a villager called Cheung Yau (張有). It was issued in December 2007.

70.  In a resident record kept by the population control authority in the Mainland, P’s late father was registered as Cheung Kee Yau and no alias of his was recorded. There is however no evidence that the Mainland authority required that all the aliases of an individual must be placed on record. 

71.  There are other certificates issued on the basis of the information provided by some members of Lo Fong Village that P’s late father had the alias of Cheung Yau (張有). Also available to this court are some notarial certificates certifying that P’s late father was identified it as both Cheung Kee Yau and Cheung Yau (張有) and a forensic pathological certificate of death. Of course in the family diagram of Zhang, P’s late father also referred to as Cheung Yau (張有).  The common problems of all these documents are that they were only made in the late 2000s and the basis of the assertion that P’s late father had an alias of Cheung Yau (張有) is either unknown or questionable without sound foundation. They are very much self-serving in nature and this court can place little weight on them.

72.  SC Cheung on the other hand has used some documents showing that apart from the legal name of Cheung Yau (張有), D’s late father had two aliases, namely, 張房有 and 張煌有. He mostly relies on the Document to reinforce his argument that D’s late father was the 1/3 beneficial owner of the Properties.  

73.  Mr Lincoln Cheung urges this court to bear in mind that the burden of proof is on Zhang to prove that the Cheung Yau was P’s late father.  On the evidence adduced by him, he submits that he has failed to discharge the legal and evidential burden.    

74.  In spite of his forceful submissions, having scrutinised all the evidence available to this court, I come to the conclusion that on a balance of probabilities, P’s late father and not D’s late father was indeed the Cheung Yau who executed the 1950 Memorial and the 1963 Memorial for the following reasons:

(1)    First of all, it is more probable that Cheung Sang and Cheng Wa opted to purchase the Properties with P’s late father rather than D’s late father. They were not merely acquired for investment. The Properties were indeed in single ownership of Pang at the very outset. This may tally with Zhang’s allegation that they had been the properties of his ancestor provided that it can be proved that Pang was P’s Grandfather.

(2)    On this issue, I am satisfied that Pang was the alias of Cheung Kwai (張葵), P’s Grandfather. In the Notice, the mortgagor was identified to be both Pang and 張魁whereas in other documents of Po Lung, Pang was identified as the single mortgagor. This led me to believe that 張魁 was only an alias of Pang.

(3)    Zhang’s family and his ancestors speak/spoke Hakka. I am satisfied upon hearing the reading by the Hakka interpreter of the two Chinese names of 張魁 and 張葵 that indeed they have very similar if not identical pronunciation.

(4)    I am thus satisfied that Pang was merely the alias of Cheung Kwai (張葵) and the Properties belonged to P’s Grandfather at the very outset. They were indeed ancestor properties. I do not accept the submission of Mr Lincoln Cheung that this issue should be raised in the pleadings.

(5)    In the Public Notice, Po Lung showed its intention to sell the Properties to Pang. The intended sale was approved on that basis. Shortly afterwards, the Properties were assigned to Cheung Sang, Cheung Wa and the Cheung Yau. It is obvious to me that the assignees were the designated nominees of Pang/P’s Grandfather and they were dealing with ancestor properties. It was unlikely that Cheung Sang and Cheung Wa looked for an outsider investor to purchase their ancestor properties and that they would be interested in holding the Properties jointly with a much younger man however close his grandfather and their grandfather was.

(6)    Further, there is no allegation that D’s late father had ever discussed his intended purchase of the Properties with P’s Grandfather, let along having obtained his approval.

(7)    Even if D’s late father did make a big fortune in 1949 by smuggling daily commodities to the Mainland, I am not persuaded that he would be interested in purchasing the Properties jointly with Cheung Sang and Cheung Wa for agricultural use. There is no allegation that the purchase price of the Properties was particularly attractive from the perspective of an investor. In 1950, D’s late father already succeeded a number of agricultural lots in the vicinity. Even on his own evidence, the bulk of the Properties had long been left unattended and he did not suggest that he had made any effort to locate appropriate farming tenants so as to profit from his investment. Nor is there any suggestion that D’s late father had ever made any effort to discuss with his co-owners to make use of the Properties.

 (8)   D’s late father did not make any allegation of any interactions with Cheung Sang and Cheung Wa and their relationship could not be close. He did not even say a word about the 1963 Memorial and how he as one of the beneficial owners dealt with the sale proceeds of Lot 1526A.  He should be able to give a lot of details about the sale.

(9)    The indifference of D’s late father to his alleged beneficial interest in the Properties is alarming, even in the face of the challenge by Zhang and his family. He was a property owner and had conveyancing experience. His son worked as an estate agent. He engaged his lawyers to make his will in July 2011. He knew how to protect his legal interest regarding his properties. Here, all that he could rely on to prove his beneficial ownership of the Properties is his own allegations and the fact that he had the same name as one of the registered owners and they happened to reside in the same village. That can hardly be enough. Identity of names abounds and it is inconceivable that one can prove beneficial ownership in a property by simply relying on his name being identical to that of the registered owner.

(10)  He did not even have a copy of the title deeds or any title documents. There is no evidence that he had ever asked the descendants of Cheung Sang and/or Cheung Wa for a copy.

(11)  He did care about the Properties. He took the trouble to obtain their land search records and prepare the Document. It only begs the question why he did not directly ask for a copy of all the title documents presently kept by Fong. What he did and did not do is inconsistent with the conduct of a rightful property owner.

(12)  The alleged challenge to his alleged ownership of the Properties mounted by Zhang and his family starting from 2009 still failed to alert him to the genuine need to take appropriate action to protect his interest in the Properties. Whilst he made his last will in July 2011 prepared by his lawyer to deal with his properties, he did nothing to ensure that the beneficiaries of his estate could withstand the looming challenge to his beneficial ownership of the Properties. He did not find it necessary to make a statutory declaration to set out all the information about his alleged purchase of the Properties and all the subsequent dealings such as the 1963 Memorial. He was content to let his beneficiaries rely on their own recollection of what he had told them. This is inexplicable.

(13)  Returning to the question as to whether P’s late father had an alias of Cheung Yau (張有), I note that there is no evidence that he personally used this alleged alias and I find that there is not sufficient evidence to lead me to conclude that he was commonly referred to by the alleged alias in the village.

(14)  But that does not mean he could not be identified by this alias which he rarely used first in the 1950 Memorial and later in the 1963 Memorial.

(15)  Back in those days, it is clear on the unchallenged evidence that aliases were commonplace. All of Cheung Sang, Cheung Wa, D’s late father and D’s Grandfather had aliases. It is interesting to note that all their aliases were derived from their other 3-character names by omitting the middle character of such names. They were clearly created for convenience.

(16)  In this light, I can conclude that it was very probable that Cheung Kee Yau had or used an alias of Cheung Yau. Mr Lincoln Cheung correctly points out that the character of Yau (有) in the alleged alias differs from that of Cheung Kee Yau (友). Nevertheless, my everyday experience as a local Chinese tells me that this should not cause me any concern. An alias can consist of a different character from that of the original name albeit having the same pronunciation.

(17)  In view of the propensity of Cheung Sang and Cheung Wa to purchase the ancestor properties with their brother rather than an outsider and the probability that P’s late father had an alias of (張有), coupled with the conduct of D’s late father unbecoming of one of the beneficial owners, I am driven to the conclusion that the Cheung Yau in the 1950 Memorial referred to was P’s late father and not D’s father.

75.  For completeness, I should deal with Mr Lincoln’s complaint that Zhang should have made the present claim when D’s late father was still alive and he should not have waited until 2012 to start legal proceedings against SC Cheung. As such, he submits that this court should scrutinise his evidence with considerable care and circumspection: see Leung Chun Ching Edwin & Anor. V The estate of Leung On Mei Amy deceased, unreported, 30 July 2014 per Zervos at §6.

76.  I do not think this is a valid complaint. There is no evidence  that before the death of D’s late father, Zhang was ever aware of D’s late father’s claim of any interest in the Properties or any such claim made on his behalf. I refuse to accept the hearsay evidence of SC Cheung concerning the alleged three visits paid by Mui. Nor could I place much weight on the hearsay evidence of Zhang in this regard. I have no idea what actually transpired during such visits.

77.  In any event, I believe I have already scrutinised the evidence of Zhang and his witnesses with extreme care.

Conclusion and order

78.  By reason of my foregoing analysis, I conclude that P’s late father and not D’s late father was the Cheung Yau in the 1950 Memorial. It follows that D’s late father was a complete stranger to the 1950 conveyance and had no beneficial interest whatsoever in the Properties. He was a mere opportunist.

79.  In the premises, Zhang is entitled to judgement. He is entitled to the two declarations sought and an order to vacate the Registration. As regards the revocation of the Probate, I do not find it appropriate and Mr Leung does not argue otherwise.

80.  I further dismiss the counterclaim of SC Cheung.

81.  There is no reason why costs should not follow the event. I make an order nisi that Zhang’s costs of this action including all such costs previously reserved be borne by SC Cheung, to be taxed if not agreed.

82.  It remains for me to thank both Mr Leung and Mr Cheung for their able assistance in this matter.