JORA SISI OMAR v. JORA HARMIDAR OMAR

HCAP 19/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2011

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D E C I S I O N

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Introduction

1.  This is a probate action. The defendant by her summons dated 2 September 2015 (“the Summons”) applies for summary determination of certain issues pursuant to O33 r.3 and/or O14A r.1, Rules of the High Court (“RHC”). Mr Chong, with Ms Yip, for the defendant contends that the determination of such issues in the defendant’s favour can lead to the dismissal of the plaintiff’s claim and, on that basis, the grant of summary judgment on the defendant’s counterclaim pursuant to O.14 r.5 as well.

2.  There are altogether five issues calling for determination without a trial and they are set out in the Schedule to the Summons. Before this court deals with each of them in turn, it is necessary to outline the background facts which are not controversial unless otherwise stated.

Background facts

3.  As shown in the title of this action, the bone of contention concerns the estate of the late Mr Omar (“the Deceased”). The plaintiff contends that his estate should consist of a property known as 3/F, 170 Sai Wan Ho Street, Hong Kong (“the Flat”).

4.  In or about April 1944, the Deceased purportedly celebrated an Islamic marriage in Hong Kong with the late Madam Ng (“the Islamic Marriage”). The plaintiff disputes the validity of the Islamic Marriage.

5.  In or about 1954, the Deceased purportedly celebrated a modern Chinese marriage in Hong Kong (“the Chinese Marriage”) with Madam Wong. The defendant disputes the validity of the Chinese Marriage.

6.  The Deceased and Madam Wong had three children in the course of the Chinese Marriage, namely, the plaintiff, Andy Omar and Lucy Omar. The plaintiff was born in 1957 and she has been residing at the Flat since 1960.

7.  The Deceased had been a civil servant and a registered member of United Co-operative Building Society Limited (“the Society”) since its incorporation in 1957. The Society conferred on the Deceased the exclusive use and occupation of the Flat.

8.  In or about April 1960, the Deceased and Madam Ng jointly applied for an adoption order to adopt the defendant, who was then nine years old. The adoption order was made on 19 April 1960 (“the Adoption Order”) and it was registered with the General Register Office thereafter. The plaintiff challenges the validity of the Adoption Order by reason of the dispute over the validity of the Islamic Marriage. In short, she contends that Madam Ng was not qualified to apply for the Adoption Order.

9.  On or about 12 May 1960, the Deceased allegedly nominated Madam Ng to be his beneficial successor to his membership of the Society pursuant to the By-Laws of the Society No.7(2) (“the 1960 Nomination”). The plaintiff says the 1960 Nomination is invalid.

10.  In December 1977, the Deceased passed away. In the following month, Madam Ng applied for membership of the Society pursuant to the 1960 Nomination. Her application was accepted and she was registered as a member of the Society with effect from 16 January 1978 (“the 1978 Membership Registration”).

11.  In January 1979, Madam Ng nominated the defendant to be her beneficial successor to her membership of the Society (“the 1979 Nomination”). The plaintiff says that the 1979 Nomination is invalid.

12.  In March 1998, the Society was dissolved. In the following month Madam Ng passed away. The liquidation of the Society was commenced in May 1998.

The claims

13.  The plaintiff brought this action to challenge the validity of the Islamic Marriage and the Adoption Order. She also prays for a declaration to the effect that all the three natural children of Madam Wong and the Deceased are legitimate and they have entitlement under the grant of Letters of Administration.

14.  The defendant avers that even if the 1979 Nomination is found to be invalid, she is still entitled to inherit the membership of the Society as a chose in action vested in the estate of Madam Ng regardless of whether she died with a will in the form of the 1979 Nomination or intestate.

15.  The defendant contends in her counterclaim that all along the plaintiff has occupied the Flat with the bare licence granted by the Deceased, Madam Ng and her only. Now by her counterclaim she revokes the licence and seeks to recover possession of the Flat within a reasonable time.

General principles

16.  The applicable legal principles are not in dispute. Yeung JA in Lee Yiu Kwan v Ting Yin Wah, unreported, CACV 311/2002, 21.4.2004 set out certain passages in Hong Kong Civil Procedure 2004 Vol.1 for the principles governing the exercise of the discretion to deal with preliminary issues. In Hong Kong Civil Procedure 2017 Vol.1 gives a convenient summary of such principles by way of its commentary in §33/4/9A at p.773 as follows:

“Separate trial of a preliminary point of law—The Court of Appeal in Lee Yiu Kwan v. Ting Yin Wah (unrep., CACV 311 and 312/2002, 28 and 31/2003, [2004] H.K.E.C. 1222) set out a convenient summary of some of the principles relevant to the exercise of the court’s discretion to deal with preliminary issues of law with or without application of the parties (principles, along with supporting authorities, originally referred to in Hong Kong Civil Procedure 2014):

• (i) The question of law or construction to be determined by the court under the order should be stated or formulated in clear, careful and precise terms, so that there should be no difficulty or obscurity, still less any ambiguity, about what is the question that has to be determined.

• (ii) Where the issues of fact are interwoven with the legal issues raised, it will be undesirable for the court to split the legal and factual determination, for to do so would in effect be to give legal rulings in vacuo or on a hypothetical ruling, which the court will not do.

• (iii) An order for the separate trial of separate issues is a departure from the general rule that all disputes should be tried together, and therefore generally speaking, such an order should only be made in exceptional circumstances or on special grounds.

• (iv) Where costs can be saved by obtaining a ruling on a point of law which requires serious argument and consideration being disposed or before trial, the point should be raised in the pleading and application should be made under O.33 , rr.3 and 4(2) for the trial of this point as a preliminary issue.

• (v) The order, as a rule, will only be made if the objection raises a serious question of law, which, if decided in favour of the party objecting, would dispense with any further trial, or at any rate with the trial of some substantial issue in the action. The order should not be made in respect of matters to which by reason of the obscurity either of the facts or the law ought to be decided at the trial.

• (vi) The order for the trial of a preliminary point of law should not be made where there are facts in dispute, and if made may be set aside at the hearing.

• (vii) A point of law may in special circumstances be ordered to be set down and argued before the trial, although it is not raised on the pleadings.

• (viii) The order should make clear what is the precise point of law to be decided.

• (ix) Only such questions of law can properly be raised as preliminary issues as must necessarily arise in the action and the court will not decide fictitious questions or questions in which those who are interested, or are likely to be, are not present or are not in esse.

• (x) The House of Lords has strongly protested against the practice of the Court of First Instance allowing preliminary points of law to be tried before and instead of first finding the facts, since this course frequently adds to the difficulties of the Courts of Appeal and tends to increase the time and cost of legal proceedings.

• (xi) Where for the purposes of deciding questions of law it is necessary or desirable to ascertain the facts beyond those that appear in the pleadings, the court should not order the trial of those questions as a preliminary point of law, especially where the law is itself unsettled or obscure.

• (xii) An “issue” which involves dealing with the whole subject matter of the action without any evidence is not a preliminary point and should not be ordered to be tried as such.

The Court of Appeal confirmed that both Order 14A and Order 33 give discretion to the court to deal with preliminary issues of law without application from any of the parties whether raised by pleadings or otherwise but that the exercise of the discretion is subject to well-established principles. (Note: The Court of Appeal in Lee Yiu Kwan v. Ting Yin Wah & Another was referring to the Rules of the District Court, the wording of O.14A and O.33 of which are identical to O.14A and O.33 of the Rules of the High Court).”

17.  In view of Mr Chong’s reliance on the Limitation Ordinance, Cap. 347 (“the LO”) in this application, the decision of Waung J in Chan Jak Tung (t/a Forward & Co) v Baltrans Ltd [1997] 1 HKC 89 when the court was asked to deal with the limitation defences as preliminary issues is apposite. There, Waung J bore in mind the general principle that an order for the separate trial of separate issues is a departure from the beneficial object of the law that all disputes should be tried together, and therefore, generally speaking, such an order should only be made in exceptional circumstances or on special grounds. The applicant must satisfy the court that as a matter of case management or as an exercise of discretion that it is just and convenient to order separate trials for preliminary issues. The application should be based on a pure point of law on the basis of economy of time and expense.

18.  The case management culture has grown even stronger after the CJR. As noted in the commentary of Hong Kong Civil Procedure 2017 Vol.1 at §33/3/2, “a summons for determination of preliminary issues under O.33 r.3 should only be made in special circumstances or on special grounds due to saving costs and time. Such exceptional circumstances did not include a question of law or fact raised two years after the action had begun, see Secretary for Justice v Times Square Ltd [2011] 2 HKLRD 409.”  

19.  I note that this action came into being in July 2011. In 2013, the plaintiff herself made an application for summary determination of her claims by way of O.14 and/or O.14A and was opposed successfully by the defendant. On the other hand, as a result of the defendant’s striking out application, the pleadings of the plaintiff are now tolerably clear with many but not all of the irrelevant matters removed. In terms of progress, unfortunately this action is still at its early stage with the close of pleadings only.

20.  In light of these principles, it is imperative for this court to consider first whether or not this court should exercise its discretion to decide on the five issues separately before the trial of the action as preliminary issues and if so how they should be determined.

The five preliminary issues/questions of law identified by the defendant

First Issue

21.  The first question of law/ preliminary issue is whether the plaintiff’s challenge to the validity of the 1960 Nomination, the 1978 Membership Registration and hence the 1979 Nomination is time barred under the LO.

22.  This limitation issues are raised in the Amended Defence and not specifically dealt with by the plaintiff in her pleadings.

23.  I do not think that I should deal with these limitation issues as preliminary issues. Nor can they be described as a pure question of law under O.14A.

24.  Mr Liang, for the plaintiff, submits that the plaintiff does not seek this court’s determination of the validity of the 1960 and 1979 Nominations and the 1978 Membership Registration and so these are not matters properly placed before this court.

25.  I am unable to accept his submission. Though the plaintiff does not ask for a declaration of the invalidity of the 1960 and 1979 Nominations and the 1978 Membership Registration, such issues are clearly raised in her pleading and the defendant’s denial makes them live issues in these proceedings. They are relevant to the question as to whether or not any proprietory interest in the Flat and/or the rights associated with the membership of the Society are still vested in the estate of the Deceased.

26.  Going back to the pleaded case of the plaintiff, her position is that the validity of the 1960 Nomination depends on the validity of the Islamic Marriage. She avers that there was no valid marriage subsisting between the Deceased and Madam Ng and therefore Madam Ng was not within the definition of “beneficial successor” as defined in the By-Laws of the Society. It follows that the 1960 Nomination, together with the 1978 Membership Registration is invalid. Neither Madam Ng (and her estate) nor the defendant has any right or interest in the Flat as a result.

27.  Whether the Islamic Marriage is invalid is a mixed question of law and fact. The plaintiff raises some factual allegations purportedly capable of invitiating or disproving the Islamic Marriage. I need not set out her allegations here and they do call for determination at trial.

28.  In his reply submission, Mr Chong refers to the Marriage Reform Ordinance, Cap.178 (“the MRO”), which came into effect on 7 October 1971. He submits that the MRO in any event has validated the Islamic Marriage albeit taking place well before its operative date. He then submits that by virtue of the Islamic Marriage, Madam Ng must be the spouse of the Deceased within the meaning of sections 2 and 7 of the By-Laws of the Society. Under the latter provision, only the spouse or a parent or a descendant could be nominated by a member to be his beneficial successors in the event of his death or becoming a lunatic.

29.  I am reluctant to go further into this issue, which is not framed as a legal or preliminary issue in the Schedule at all, as accepted by Mr Chong. In any event, I do not accept the validity of the Islamic Marriage has become a non-issue because of the MRO at this stage. The defendant can of course pray in aid the MRO at trial to argue for its validity if she so wishes.    

30.  In the circumstances, I am unable to accept that these limitation issues can be resolved in a vacuum and is cost effective in the interests of case management. I refuse to determine them as preliminary issues or a pure question of law.

31.  Even if I am to dispose of these limitation defences, I am not convinced by Mr Chong’s submission that section 9 of the LO is the applicable provision. That provision governs the accrual of right of action in case of future interests relating to land. What is at issue here is clearly something else even though a member of the Society might be entitled to some rights and interests in land. I cannot see how the challenge of the plaintiff to the validity of the 1960 and 1979 Nominations and the 1978 Membership Registration is time barred under any provisions in the LO.

Second issue

32.  The second issue framed by the defendant is whether or not upon the dissolution of the Society, the right of Madam Ng’s membership in the Society became a chose in action and the personal property of Madam Ng and if so upon her death in 1998 and by virtue of the 1979 Nomination became the chose in action of her estate or bequeathed to the defendant.

33.  Given my observations above, the validity of the purported membership of Madam Ng of the Society depends on the validity of the 1960 Nomination and, ultimately, the validity of the Islamic Marriage. There is no reason why this court should determine the nature of the purported membership before the determination of its very validity.

34.  I am unable to deal with this issue as a preliminary issue or a question of law accordingly.

35.  Given this conclusion, I need not deal with the objections raised by Mr Liang. I would however indicate my reservation about his submission that this court has no jurisdiction to determine with the validity of the 1960 and 1979 Nominations and 1978 Membership Registration by reason of sections 49(1) and (4) of the Co-operative Societies Ordinance, Cap. 33 (“the CSO”). It is submitted that these two provisions confer the Society an exclusive jurisdiction to decide on any dispute touching the business of the Society. I cannot be convinced at this stage that on the true construction of these provisions of the CSO, the plaintiff cannot seek this court’s determination of the validity of 1960 and 1979 Nominations and 1978 Membership Registration in light of her suspicions about the validity of the Islamic Marriage.

Third, fourth and fifth issues

36.  All these three issues relate to the Adoption Order and can be conveniently dealt with together.

37.  The third issue is about the locus standi of the plaintiff to challenge the validity of the Adoption Order. Mr Chong submits that she does not have the locus. Even if she has, the fourth issue is whether her challenge is time barred under the LO. Lastly, the final issue is even if the plaintiff can overcome both the locus and the limitation issues, whether she can set aside the Adoption Order made in 1960 and registered with General Register Office thereafter.

38.  I first explain why the validity of the Adoption Order is a live issue here. The legal basis of the plaintiff’s challenge comes from section 3(2) of the Adoption Ordinance, 1956, which provides,

“An adoption order may be made on application of two spouses authorizing them jointly to adopt an infant.”

39.  The plaintiff claims that the Adoption Order is not valid because the Deceased and Madam Ng were not spouses within the meaning of the said provision. Again she relies on the alleged invalidity of the Islamic Marriage.

40.  The validity of Adoption Order is relevant to this probate action in two respects. First, the plaintiff disputes the beneficial interest of the defendant in the estate of the Deceased if she is proved not to be an adopted daughter of the Deceased. On the other hand, the defendant is arguably not a descendent within the meaning of section 7 of the By-Laws of the Society, either and hence the 1979 Nomination cannot be valid. I note that there is no definition of “descendant” under the By-Laws except the residence requirement which is inapplicable here.

41.  On the issue of locus, Mr Chong first argues that the Adoption Order is an order in rem and only those parties privy to the order could challenge its validity. He submits that such persons capable of challenging the making of an Adoption Order are limited by the statute. He prays in aid Rule 16 of the Adoption Rules, Cap.290A and section 5(5) of the Adoption Ordinance, Cap. 290.

42.  I with the assistance of Mr Chong have perused these two provisions. They, and Mr Chong agrees, do not specify any descriptions of persons who can challenge an adoption order.

43.  Mr Liang submits that it is obvious that the plaintiff has the locus to cast doubt on the validity of the Adoption Order as it has a bearing on the beneficial ownership of the estate of the Deceased, which is an issue of this probate action and it concerns the estate which the plaintiff is seeking to administer. I agree.

44.  Moreover, Mr Liang draws to my attention the historical facts. On two separate occasions, in HCAG001961/04 on 5 March 2004, Deputy Registrar J Wong directed that the Probate Registry could not further process the application for grant of letters of administration pending the determination of, among other issues, the validity of the Adoption Order. 

45.  On 17 May 2010, in HCAG005447/10, Madam Deputy Registrar Levy directed that a probate action might to be commenced in light of the dispute of the validity of the Adoption Order.

46.  Whoever affected by the Adoption Order should be allowed to challenge its validity. I can resolve the preliminary issue as to whether the plaintiff has the locus standi to challenge the validity of the Adoption Order in her favour though I do not for one moment think that it is a straightforward matter.

47.  In regard to the limitation argument, the short answer is that Mr Chong fails to identify any provision in the LO which specifies the time within which a challenge to the Adoption Order can be made. Whether a court will set aside an order after a long delay of more than 50 years is another matter but I do not see any merit in the time bar argument. I again resolve this issue in the plaintiff’s favour.

48.  In his argument of the last issue, Mr Chong invites this court’s attention to Re B [1995] Fam 239 CA. There, on adulthood, an adopted son found out that he was not a Jew. His Jewish adoptive parents had long found out this but nonetheless continued to raise him as their adopted son. They had been clearly misled at the time of the adoption application though. In 1994, the adopted son applied to the High Court to set aside the adoption order made in 1959 and the judge refused his application not on limitation grounds.

49.  The Court of Appeal upheld the dismissal of his application. First, it upheld the judge’s conclusion that the Adoption Act 1976 did not provide for general challenge to an adoption order other than an appeal and so the judge had no jurisdiction to set aside the adoption order. Second, whist it was accepted that a court can set aside an order by reason of a procedural irregularity or fraud, the reason advanced by the adopted son was not cogent enough to constitute a ground to set aside the adoption order.

50.  Mr Chong prays in aid the following dictum of Sir Thomas Bingham MR at p.252F,

“An adoption order is not immune from any challenge. A party to the proceedings can appeal against the order in the usual way. The authorities show, I am sure correctly, that where there has been a failure of natural justice, and a party with a right to be heard on the application for the adoption order has not been notified of eh hearing or has not for some other reasons heard, the court has jurisdiction to set aside the order and so make good the failure of natural justice. I would also have little hesitation in holding that the court could set aside an adoption order which was shown to have been obtained by fraud.”

51.  I agree with the dictum of Sir Thomas Bingham MR and too find it to be instructive. However, in this probate action, I fail to see why the plaintiff is debarred from raising any challenge to the validity of the Adoption Order altogether without asking for it to be set aside. If her challenge is upheld, whoever in charge of the administration of the estate of the Deceased may apply to set it aside with the joinder of all the necessary parties.

52.  Therefore, I am unable to agree with Mr Chong and I conclude that the fifth issue should be resolved in the plaintiff’s favour again.

53.  Lastly, I have to deal with the application for summary judgment on the counterclaim. That is premised upon the dismissal of the plaintiff’s claim. Obviously, given my foregoing conclusions and in particular, my acceptance of the existence of live issues relating to the beneficial ownership of the Flat in light of the plaintiff’s challenge to the validity of the 1960 and 1979 Nominations and the 1978 Membership Registration, the application for summary judgment cannot succeed.

Conclusion and Order

54.  Both Mr Liang and Mr Chong have raised many legal arguments and made references to factual disputes. Suffice it to say that I have considered them all and I believe I can safely reach the foregoing conclusions without the disposition of all of them here.

55.  Save those issues over which I have indicated my express determination, I refuse to resolve the preliminary issues and/or questions of law formulated or posed in the Schedule. I also refuse the defendant’s application for summary judgment on her counterclaim.

56.  Accordingly, I dismiss the Summons. Costs should follow the event and I make an order nisi that the defendant should pay the plaintiff’s costs of and occasioned by the Summons forthwith. I opine that summary assessment is appropriate. I direct that the plaintiff should lodge with this court her statement of costs within 21 days from the date hereof and the defendant should lodge with this court her list of objections (if any)　within 14 days thereafter. I further order that the time for any application to vary the costs order nisi to run only after the parties have been notified the outcome of this court’s summary assessment.

57.  Lastly, I thank all counsel for their assistance in this matter.