MAN SIU HING v. MAN YUEN YAM

HCAP13/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO.13 OF 2003

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J U D G M E N T

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1.  The plaintiff appeals against the order of Master de Souza dated 17 October 2005, dismissing her application for an order that Paragraph 12 of the defendant’s Defence and Counterclaim be struck out, unless he provided further and better particulars.

Background

2. This is a probate action relating to the intestate estate of one Man Chung Leung, who died on 6 May 1999.  The plaintiff applies for Letters of Administration, on the basis that she is the deceased’s lawful and natural daughter, and the only person, along with her mother who is also now deceased, entitled to share in the estate.  She denies that the defendant is a lawful and natural son of the deceased, and relies on a DNA test report finding the defendant is not likely to be her full or half sibling.

3. The defendant’s primary case is that he is a lawful and natural son of the deceased.  He challenges the accuracy of the DNA test report but avers that, if it be found that the parties are not full or half siblings, it is he and not the plaintiff who is the only lawful and natural child of the deceased.

4. The defendant’s alternative case appears in Paragraph 12 of the Defence and Counterclaim, which is the pleading that the plaintiff sought unsuccessfully to have struck out.  It reads :

“Alternatively, if, which is denied, the Defendant is found not to be a natural son of the Deceased, the Defendant avers that he is nevertheless a person adopted by the Deceased under an adoption to which section 17 of the Adoption Ordinance Cap. 290 applies or an adoption made in Hong Kong in accordance with Chinese law and custom before 1^st January 1973, and is therefore a person entitled to a share in the estate of the Deceased in intestacy.

PARTICULARS

The Defendant relies, inter alia, on the following matters in his assertion that, in the event that he is found not to be a natural son of the Deceased, he is nevertheless a person adopted under an adoption to which section 17 of the Adoption Ordinance applies or an adoption made in Hong Kong in accordance with Chinese law and custom before 1^st January 1973 :

(a)  The Defendant’s name was entered into the genealogy record of the Deceased‘s family and ancestral history as the Deceased’s son;

(b)  The notary certificates mentioned in paragraph 4 above issued by the relevant Chinese authorities;

(c)  The Deceased all along and in all respects treated the Defendant as his natural and lawful son;

(d)  The Deceased‘s representation to the whole world that the Defendant was his natural and lawful son; and

(e)  With full knowledge and consent of the Plaintiff, the name of the Defendant appeared as the Deceased’s son in the obituary of the Deceased.”

5. On 10 October 2003 the plaintiff’s solicitors requested further and better particulars of Paragraph 12.  Various particulars were given.  What has concerned and concerns the court in this and earlier applications is Request 1(ii) which reads :

“In relation to the adoption under section 17 of the Adoption Ordinance, Cap.  290:

(ii)          Please state the applicable law of that place including but not limited to state, case law and customary law.”

6. The defendant on 29 October 2003 filed Further and Better Particulars giving this answer :

“(ii)   The law of the People’s Republic of China; and opinion from a Chinese law expert will be produced at a later stage”.

7. The plaintiff considered this inadequate, as indeed the defendant concedes it was, and on 26 January 2004 obtained an order from Master Woolley that the defendant do within 21 days provide written answers to (inter alia) Request (1)(ii) of the request served on the defendant under the letter dated 10 October 2003.  On 16 February 2004, the defendant filed a further set of particulars, in which the answer given to Request 1(ii) which set out a list of “the relevant law of the People’s Republic of China” running to 11 items of statute law and opinions of the People’s Supreme Court.

8. This the plaintiff considered and still considers to be inadequate.  She applied for an order that unless the defendant set out the relevant law of the People’s Republic of China he intends to rely on by providing written answers to Request (1)(ii), the defendant be disallowed to adduce any evidence to prove any of the law of the People’s Republic of China.  The summons was dismissed by Master Lung on 14 September 2005 and I am told that the Master did so because he considered that the remedy sought was the wrong one.  The plaintiff then applied to strike out Paragraph 12, unless the answers sought were given, and that was the application which Master de Souza dismissed.

9. In the meantime, the parties have each obtained the opinion of an expert on Chinese law and the opinions have been exchanged.  I have been provided with an English translation of the opinion of the defendant’s expert only.

The arguments

10. The plaintiff argues that foreign law must be pleaded, and that the answer provided by the defendant is unsatisfactory.  It is said that the plaintiff’s expert should not be expected to guess or speculate the PRC law the defendant intends to rely on, by studying the PRC law materials provided by the defendant.

11. The defendant argues that the order of Master Woolley has been complied with.  The plaintiff asked for the applicable law of the PRCincluding but not limited to state, case law and customary law and that is what the defendant has specified in his list.  Further, says the defendant, if the further and better particulars were inadequate the plaintiff should have applied for further and better particulars of them rather than applying for unless orders.  It is also argued that the application before Master de Souza was an abuse of process, since the earlier application (albeit for a different remedy) had been dismissed by Master Lung.  Finally, it is said, the full argument of the defendant’s expert is now revealed because the expert evidence has been exchanged.  No further particulars are necessary, especially after a long delay.

Pleading foreign law

12. It is not in dispute that if a party wishes to rely on a foreign law he must plead it in the same way as any other fact.  See Dicey and Morris on the Conflict of Laws, 13^th edition, Vol. 1, paragraph 9-002, and the case therein cited, Ascherberg Hopwood and Crew Ltd v. Casa Musicale Sonzogno Di Piero, Ostali Societa in Nome Collettivo & Ors [1971] 1 All ER 577.

13. This is a pretty bare statement of the law and it does not specify exactly what needs to be pleaded.  Some assistance is to be obtained from the judgment of Ungoed-Thomas J in Ascherberg.  The court was dealing with proposed amendments which pleaded that certain agreements fell to be construed according to the laws of Italy and that the applicants would contend that certain provisions of Italian law were material to the matters in issue.  His Lordship said :

“There follow in para 16 of the proposed amendments after the words which I quoted from them references to a number of Italian codes or laws of a statutory nature.  Such amendments do not plead the statements of what is the relevant Italian law as facts at all…”

and he went on to order that the applicants :

“serve the re-re-re-amended defence or defences raising all points of Italian law on which they seek to rely, whether to explain the meaning of terms used in such of the agreements in the agreed bundle as were in the Italian language in the original or to state the effect under Italian law of such agreements, such pleading to include full particulars of the statements and propositions of Italian law including rules of construction relied on, with reference in each case to the Italian legal authorities relied on in support of it, and of any agreement and any passage or terms therein to which they are directed.”

14. What the judge required was not just a list of legal provisions, but a statement of the specific points of law relied on and how they applied to the agreements pleaded, by reference to authorities.

15. In Paragraph 12 the defendant avers that he was adopted under an adoption to which section 17 of the Adoption Ordinance applies.  (The averment of an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973 is no longer relied on.)  The effect of subsection (1) of that section is to give a foreign adoption to which the section applies the same effect as if it had been made under the Ordinance.  Subsection (2) provides :

“(2) Subsection (1) shall apply to an adoption in any place outside Hong Kong (other than a Convention adoption), if-

(a)    the adoption is legally valid according to the law of that place; and

(b)   in consequence of the adoption, the adoptive parents or any adoptive parent had, or, if the adopted person had been a young child, would have had, immediately following the adoption, according to the law of that place, a right superior to that of any birth parent of the adopted person in respect of the custody of the person; and

(c)    either-

(i)      the adoption order was made by an order of any Court whatsoever of a Commonwealth country or of the United States of America or of any State or territory of the United States of America; or

(ii)    in consequence of the adoption, the adoptive parents or any adoptive parent had immediately following the adoption, according to the law of that place, a right superior to or equal with that of any birth parent in respect of any property of the adopted person which was capable of passing to the parents or any parent of the person in the event of the person dying intestate without other next of kin and domiciled in the place where the adoption was made and a national of the State which had jurisdiction in respect of that place.

       but not otherwise.”

16. For the purposes of Paragraph 12, the defendant needs to prove the ingredients of section 17, namely that :

(1)     his adoption was legally valid according to PRC law;

(2)     the adoption gave his adoptive parent or parents a better right to custody of him as a child, than that enjoyed by his birth parent or parents; and

(3)     the adoption gave his adoptive parent or parents a right as good as or better than that enjoyed by his birth parent or parents, in his intestate succession, if he died intestate without other next of kin, being domiciled in and a national of the PRC.

17. The facts relied as giving rise to the adoption on are already particularised.  It seems to me that the plaintiff should ideally plead, as facts, the specific provisions of the PRC law which, when applied to those particulars would make the adoption legally valid under PRC law.  She should also plead the relevant provisions of PRC law on the rights of adoptive, as against natural parents to custody of the adoptee as a child, and succession to the estate of the adoptee who dies intestate and domiciled in the PRC.  The pleadings would need to identify the specific provisions of the relevant statutes or codes and any judicial interpretation of them.

Has the order of Master Woolley been complied with?

18. The letter of the order appears to have been complied in the sense that the plaintiff asked for the applicable law of the PRC including but not limited to state, case law and customary law, and got a list of the provisions which the defendant says are applicable.  English translations of the document titles are given, but we do not know the content of them.  No doubt the plaintiff, or her lawyers, or her Chinese expert can read them, but I am not told whether in their view some of the items listed, or all of them, or none of them are applicable.  Given what I have said on the requirements for pleading foreign law, it follows that ideally the defendant should have particularised how each of the items listed went to prove the ingredients of section 17.  He did not do that but the plaintiff is to some extent to blame for it, for she did not ask for the right particulars in the first place.

Should the plaintiff have applied for further and better particulars?

19. After the particulars were filed in February 2004, the next letter from the plaintiff’s solicitors to the defendant’s solicitors came on 21 June 2005.  They re-iterated part of an earlier letter, written before the date of Master Woolley’s order, and asked the defendant’s solicitors to amend the Defence and Counterclaim, failing which an application would be made to “strike out your relevant defence”.  The defendant’s solicitors replied that detailed particulars of the foreign law relied on had been given and there was no need to amend.  On 20 September 2005 the plaintiff’s solicitors wrote, again requesting compliance with the order of Master Woolley.  Among other things, they wrote this :

“However, in your Further and Better Particulars of the Defence and Counterclaim dated and filed 16^th February 2004 in pursuant to Master Woolley's order, you only listed out some PRC law materials but still failed to set out clearly the foreign law to be relied upon.  In other words, your Further and Better Particulars of the Defence and Counterclaim dated and filed 16^th February 2004 was and still is unsatisfactorily answered in that you have failed and still fail to put down in writing the applicable PRC law.  We note that from your letter to us dated 18^th March 2005, your expert report on PRC law is ready.  In the premises, you must be in the position to set out clearly in writing the PRC law to be relied on.”

20. This approach is all very well, but it seems to me counterproductive, especially given the terms of the original request.  The plaintiff asked for the applicable law and she got a list of laws which the defendant said were applicable.  If she was not satisfied that that showed the case she had to meet, i.e. how the particular laws listed applied to the particular facts, I would have thought a request for further and better particulars of the further and better particulars appropriate.  Simply to say, “your particulars are insufficient”, without saying why, is to press the wrong buttons.

21. Some support for this is to be found in the judgment of Chung J in La Chemise Lacoste SA v. Crocodile Garments Ltd [1999] 4 HKC 212 at 224 :

“34.     Mr Scott contends that in law there is no place for further and better particulars of further and better particulars.  I do not agree.

35.      First, particulars of a pleading served subsequently under a request or order become part of the pleading:  The Supreme Court Practice 1993 (not found in the 1999 ed.), para.18/12/40.  Further, the party whose pleading was accused of having offended rules of pleading or lacking in particulars should be entitled to know the basis of the accusation.  Such a requirement accords with the general procedural requirements in our civil litigation system that litigants should not be taken by surprise.  It also helps to avoid litigation because the accused party can decide whether the accusation is validly made against the pleading and respond accordingly.  This may be the underlying policy regarding Ord. 18 r. 12(6) [application for particulars by letter before summons].  It may also be the policy for requiring:-

           ‘The request ... for further and better particulars of a pleading should identify the paragraph ... by its number or letter ... as set out in the pleading in question, and should specify, clearly and precisely, the further and better particulars under each such number or letter, which are being requested ...’: The Supreme Court Practice 1991 (not found in the 1999 ed.), para. 18/12/40.

36.      There is no justification why a different policy or set of rules should apply to further and better particulars given for a pleading than that applicable to the original pleading (or the original particulars given in a pleading).  In fact, there is good reason for applying the same policy or set of rules regarding further and better particulars.

37.      Thirdly, the learned authors of The Supreme Court Practice 1991, Vol. 1 seem to recognise the existence of ‘further and better particulars of further and better particulars’ when they stated ‘This form of the further and better particulars applies to further and better particulars of further and better particulars of a pleading, as well as to voluntary particulars’: para.18/12/40 [under the heading ‘Form of particulars’].

22. In my view, therefore, the plaintiff should have sought further and better particulars of the further and better particulars, rather than simply claiming that the latter were inadequate.

Abuse of process

23. What was first applied for, and refused by the Master, was the exclusion of evidence.  The refusal would not of itself preclude the plaintiff from applying to strike out pleadings on the same ground.  I cannot say that it was an abuse of process to apply to strike out, instead of applying for particulars, though I do think it was a mistaken approach.

Given the exchange of experts’ reports, are the particulars now unnecessary?

24. In Aktieselskabet Dansk Skibsfinansiering v. Wheelock Marden [1994] 2 HKC 264, Bokhary JA (as he then was) summarized the functions of properly particularized pleadings at 269E-270E as follows :

(1)     to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2)     to prevent the other side from being taken by surprise at the trial;

(3)     to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4)     to limit the generality of the pleadings, the claim and the evidence;

(5)     to limit and define the issues to be tried, and as to which discovery is required; and

(6)     to tie the hands of the party so that he cannot without leave go into any matters not included (although if the opponent omits to ask for particulars, evidence may be given which supports any material allegation in the pleadings).

25. That is what pleadings are supposed to do.  For what they are not supposed to do, see Trust Securities Holdings Ltd & Anor v. Sir Robert McAlpine & Sons Ltd & Ors, The Times, 21 December 1994, Saville LJ expressed the opinion that :

“Pleadings were not a game to be played at the expense of litigants, and nor were they an end in themselves but the means to the end of giving the parties a fair hearing”.

26. An order for particulars is a matter for the discretion of the court.  That discretion will be exercised when particulars are necessary to make the pleadings conform with the requirements set out above.

27. Normally pleadings should come before evidence, and evidence should follow the pleadings; if it does not, the court’s leave is required before such evidence can be adduced.  If need be, the pleadings can then be amended, subject to considerations of costs, to fit the evidence.

28. If the expert evidence sets out the case clearly enough it is possible that any deficiency in particulars of the pleadings may be met.  I say this having particular regard to the fact that foreign law is to be pleaded and proved as fact.  The foreign law expert has to give evidence of what the foreign law is, as a fact, before he can say how the foreign court might apply it.  If his report identifies as facts particular provisions of the foreign law which apply to particular issues, an order for particulars may be unnecessary.

29. I have read a translation of the defendant’s expert’s report.  So far as I can see it refers to 8 of the 11 items of Chinese law in the defendant’s list.  The first of these relates to proof by notarial certificate and this goes to the averments of a natural relationship.  The next seven items are referred to in such a way as to show how they apply, in the expert’s view, to the legal validity of the adoption and the rights of adoptive parents in respect of custody and intestate succession.  I cannot identify any reference to the last three items.

30. It seems to me that any deficiency in the pleading of the PRC law has been overtaken by the expert’s opinion.  The parties and the court now know what the seven items refer to and how they apply to the ingredients of section 17, as well as if they had been set out in particulars.  It is true that there remains unclarity about the remaining three items but no doubt the defendant’s expert can be asked to cover them in an addendum, and in any event the plaintiff’s expert, having notice of what the provisions are, can give his view on whether they apply or not.

31. I take the view, therefore, that further particulars are not necessary.  In any event, if particulars had been necessary, the “unless” order applied for and refused by the Master was an inappropriate way to get them.

Result

32. The plaintiff’s appeal is dismissed with costs (nisi) to the defendant, to be taxed if not agreed.