RE LO YAT LAM

HCAG 4827/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 4827 OF 2012

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D E C I S I O N

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The application for grant

1. Mr. Chan of Messrs. V. Hau & Chow, solicitor acts for the applicant.  He informs me that he was only instructed to represent the applicant in November 2013.  The affirmations in support of the applicant’s application were prepared by his predecessor.

2. The deceased Lo Yat Lam (盧溢林) died intestate in Hong Kong on 8 February 2011.  Madam Cho Kam Lin (曹錦蓮) in capacity of the deceased’s concubine (“the applicant”) and his daughter Madam Lo Tze Yuan (盧子原) jointly applied to the court under rule 21(1)(i) of the Non-Contentious Probate Rules (Cap.10A) for a grant of administration of the estate of the deceased.

Rule 21(NCPR):

(1)  Where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority, namely-

(i) the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;

Section 13(2) of the Intestates’ Estates Ordinance (Cap. 73)

3. By an affirmation dated 15 July 2011, the applicant made the application under section 13(2) of the Intestates’ Estates Ordinance (Cap. 73).

Section 13:

(2)  In subsection (1) and Schedule 1, "union of concubinage" (夫妾關係) means a union of concubinage, entered into by a male partner and a female partner before 7 October 1971, under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally.

The reasons for the requisitions

4. The question is whether the applicant is able to prove to the satisfaction of the court that she is a concubine of the deceased as defined under section 13(2) of IEO.

5. In support of her application, the applicant filed an affirmation on 26 April 2012, in which she had set out that the following children were surviving beneficiaries:

a. Chung Ming (son), aged 57;

b. Chung Man (son), aged 55;

c. Tsz Chai Steven (son), aged 41; and

d. Tze Yuen (daughter), aged 39.

6. Chung Ming and Chung Man were born to the deceased by his wife Madam Ko Kwan Sam (“the wife”); Tze Chai and Tze Yuen by herself.[1]

7. The applicant also said that the deceased took her as his concubine in 1969 in a concubinage ceremony at a restaurant in Kowloon.  The wife was aware of it and she accepted her as the deceased’s concubine although she was unable to attend the ceremony. In order to corroborate her evidence, she referred to the affirmations of Choi Yim (蔡炎) (“Mr. Choi”) filed on 15 August 2011 and 18 October 2011, the affirmations of Loo Sau Fong , Mok Kam and Yip Yin Sheung and the third affirmation of Mr. Choi filed on 26 April 2012.[2]  I shall discuss these affirmations below.

8. In the supporting affirmations mentioned in paragraph 7 supra, the affirmants deposed that in about October 1969, the deceased had raised a concubinage ceremony banquet of three tables at Tak Yu Restaurant ( 得如酒樓), attended by all of them and other family members and friends.  The wife was in the mainland and unable to attend the ceremony.  In the ceremony, they heard that the elder brother of the deceased (盧柏林) and the wife’s god-mother (李彩鳳) confirm to other family members that the wife had accepted the applicant as the deceased’s concubine.  They had also witnessed that, in accordance with the traditional customs and as part of the ceremony, the applicant served tea to the senior members of the family of the deceased, including the elder brother and the god-mother.

9. Loo Sau Fong further deposed that in mid-1970s, she had gone to the wife’s place of living in Guangzhou together with other family members where she met the wife, who had learned that the applicant had given birth to a son and a daughter.  The wife said that she was happy and relieved since the deceased was well taken care of by the applicant in Hong Kong.  In about 1980, she had paid a visit to the wife, who had come from China to Hong Kong and resided at the deceased’s premises together with the applicant in Tai Kok Tsui.  In the Chinese New Year, the wife and her family, including the applicant and their children reciprocated a visit to her.

10. Mr. Mok Kam had also deposed the similar facts in his affirmation.

11. It should be noted that Madam Loo is the deceased’s niece.  Mr. Mok is the deceased’s nephew-in-law and Madam Yip, the deceased’s elder sister.  They are related to the deceased.

12. Mr. Choi is the deceased’s friend since 1965 when they were working in the same construction company.  In Mr. Choi’s 3^rd affirmation, he gave further evidence that in about August or September 1980 after the wife had come to Hong Kong, he had paid visits to the deceased and met her.  she told him that she was happy that she could come to Hong Kong because she preferred to live together with the other members of the family.  He saw the wife and the applicant getting along well.[3]  He also deposed that towards the end of 1980, the deceased told him that the wife had requested him to transfer all his properties in Hong Kong into their joint names in order to give her the sense of security.  The deceased did not agree.  The wife was unhappy.  The deceased asked him to talk to her, which he did.  She insisted upon her own idea of having her names to the properties in Hong Kong.  She told Mr. Choi that she could file a divorce with court, which would order the deceased to share some of his properties with her. He advised against this idea.  He asked her how she could file a divorce against the deceased who had done nothing wrong.  She said that she would argue that the deceased had committed adultery with the applicant, which ground would be accepted by the court.  Despite Mr. Choi’s advice against this idea, she put her plan into action.  The deceased discussed the matter with him. He advised the deceased to settle with her. The deceased finally took his advice and agreed to transfer a property in Chi Fu Fa Yuen, Pokfulam, Hong Kong (“the Pokfulam property”) to her for a settlement of the ancillary reliefs.[4]  They were, however, divorced.

13. According to the evidence on record[5], there was an order dated 11 January 1984 made by HH Judge Caird by consent that the deceased transferred the Pokfulam property to the wife in full and final settlement of her claims for ancillary relief.

14. The wife filed her petition for divorce in 1983.  In her petition, she alleged that the deceased left China for Hong Kong in 1958.  He did not send money to her until sometime after 1964.  Since then he sent money to support her and her children in China. On 19 August 1980, she successfully applied to move to Hong Kong, leaving her adult children in China.  Immediately upon arrival in Hong Kong, she was taken by the deceased to a restaurant where he told her that he had been cohabiting with the applicant since 1971 and they had had two children.  He asked for her forgiveness.  She was shocked to hear that and was depressed. She had nowhere to go and had to stay with the deceased, the applicant and their children.  The deceased and the applicant treated her badly.  Finally, on 26 February 1981, she moved out of the premises to a room in Gillies Road, Hunghom, Kowloon.

15. It is apparent that the wife had, in her petition above, never accepted the applicant as the deceased’s concubine.

Reasons for calling of the affirmant for cross-examination by the Court

16. Although Mr. Chan for the applicant had, in the written submissions, informed me that if the court does not accept the affirmations as proof of her concubinage, the applicant may withdraw her application, leaving her daughter as the only applicant alone, I consider that the Court should make investigation into the evidence in order to determine whether it should accept the evidence of the applicant.  It would be unfair to the applicant if the application is withdrawn without investigation.  Obviously, this application is important to her.  By virtue of paragraph 4(7) of Schedule 1 of the Intestates’ Estates Ordinance (Cap.73), the applicant has a life interest as a beneficiary interested in the estate if she is a concubine of the deceased.  On top of that, she had had a relationship with the deceased for over 40 years.  She will look upon her status as a concubine of the deceased a very important status for herself.  There is no dispute that there had been a concubinage ceremony in 1969, in which she had served tea on the senior members of the family.  The fact that she was accepted by other family members other than the wife is not disputed too.  The only outstanding issue for her to prove is whether the wife had accepted her.

17. Because of the discrepancies between the wife’s petition and Mr. Choi’s 3^rd affirmation, I require strong evidence to show that the wife’s petition may not be the truth.  I consider that under the circumstances, the Court should exercise its discretion to cross-examine Mr. Choi on his evidence in his affirmations, especially his 3^rd affirmation.

18. Paragraph 13 of the Guide to Non-Contentious Probate Practice sets out that the probate jurisdiction is inquisitorial.

19. Of course, it is ideal to have the wife to come to court to verify Mr. Choi’s evidence.  However, I have been told that the wife will not be available to give evidence.  In the circumstances, I have to resort to the second best option – that is to call upon Mr. Choi for cross-examination.

20. In my Decision in In the estate of Chan Mei Ling (陳美玲), alias Wong Ah Ho (黃亞好) HCAG13429/2012 (unreported, 18 November 2013) at §22, I had relied upon the authority of the Court of Final Appeal in Nina Wang v Wong Din Shin (2005) 8 HKCFAR 387 that this court has the power to call upon the affirmants to be cross-examined by me in order to test their evidence.  On this basis, I had called upon the applicant’s solicitor to secure Mr. Choi’s attendance in court for my cross-examination.

21. Mr. Chan has arranged Mr. Choi to attend a hearing before me.

The cross-examination

22. Mr. Choi has given evidence under oath this morning.  He is 82 years old.  I have been able to observe his demeanours in court.  He impressed me that he is an honest old man.  I consider that I can safely rely upon his evidence given in court.  I shall give a summary of his evidence in court below.

23. He confirms that there was a concubinage ceremony in 1969.  He was also present.  He was served tea by the applicant too.  Before the wife had come to Hong Kong, he had gone to Dong Guan with the deceased and the applicant on a tour and they paid a visit to the wife.  At that time, he did not know that woman was the wife.  The deceased did not introduce the woman as the wife to him.  He saw the wife and the applicant talk to each other quite harmoniously.

24. Later, the deceased told him that the wife had come to Hong Kong and she resided with him and the applicant.  He had never gone to the deceased’s residence in Tai Kok Tsui himself.  But the deceased took the wife and the applicant to his home during Chinese New Year.  They appeared to be getting along harmoniously together.

25. The deceased had told him that he was disturbed by the wife, who asked for his properties.

26. However, he did not talk to the wife in relation to her dispute with the deceased over the properties, nor did he give any advice to the deceased to resolve their disputes over the petition for divorce.  The deceased subsequently told him that he had assigned the Pokfulam property to the wife.  He had never given any advice to the deceased in his settlement with the wife.  This is contrary to the contents of his 3^rd affirmation as set out above.

27. Mr. Chan submits that the evidence given by Mr. Choi have clarified that the wife had accepted the applicant either at the concubinage ceremony as corroborated by other affirmants’ affirmations or at a later stage when the wife saw the applicant in Dong Guan or when the wife had come to Hong Kong, especially at the time when the deceased took them to paid Mr. Choi a visit during Chinese New Year.  It is inconceivable that the wife would go with the deceased and the applicant to Mr. Choi’s home if she did not accept the applicant as the concubine.  Moreover, the deceased had told Mr. Choi that the wife was living with the deceased and the applicant together during this period of time.  The wife must have known that the applicant was the deceased’s concubine.

28. Mr. Chan is aware of the discrepancies of Mr. Choi’s evidence in court and his evidence in his 3^rd affirmation.  He submits that Mr. Choi has given evidence that he heard from the deceased that he had given his Pokfulam property to the wife.  As he did not prepare the affirmations himself, he is unable to assist this Court any further on the discrepancies.

29. With such discrepancies between the evidence in court and the evidence in the 3^rd affirmation, I consider that I should not give much weight to Mr. Choi’s 3^rd affirmation.  I have to re-assess his evidence in court.

30. I consider that I may rely on his oral evidence in court because his evidence has been tested by my cross-examination.  His evidence supports the facts that there had been a concubinage ceremony, in which the applicant had gone through the customary tea serving ceremony.  The wife might be aware of her status at that time.  But that was not conclusive.  However, the wife must have been aware of the applicant’s status when she came to Hong Kong and lived with the deceased and the applicant together, especially when she went to Mr. Choi’s house with the deceased and the applicant during Chinese New Year.  Up to this stage, the wife had not filed her petition for divorce with the deceased.

31. Her petition for divorce with the deceased is inconsistent with the facts outlined above.  This, coupled with Mr. Choi’s evidence in court that the deceased had complained to him that the wife was asking for his properties in Hong Kong and that the deceased had assigned his Pokfulam property to her for settlement of her ancillary relief at the matrimonial court, will throw doubts on the contents of her petition for divorce with the deceased.

Conclusion

32. On a balance of probabilities, I find that no weight should be given to her petition for divorce with the deceased on the part that she was surprised to find that the deceased had adultery with the applicant.

33. I find that in fact, the wife had accepted the applicant as the deceased’s concubine.  As such, I find that the applicant succeeds in proving her status as the deceased’s concubine.

34. I shall make an order that the application shall proceed on the basis above and be processed accordingly.

Citation of the applicable law in support of the application

35. Finally, I should reiterate my previous urge upon members of the legal profession  in my Decision In the estate of Chan Mei Ling ( 陳美玲) to adopt the usual practice in the general civil litigation applications by citing the applicable law in their affidavits or affirmations in support of their applications, which will not only assist the probate officers to identify the areas of law or practice for their expeditious processing of the applications, but also assist the solicitors or their legal executives to check the relevant law applicable to their applications.

36. This matter is yet another live example.

37. The application was made by Madam Cho alone on 15 August 2011.  In this application, the solicitor for the applicant did not identify the applicable statutory provisions for the application in the supporting affirmation of the applicant or anywhere else.  Upon requisitions from the probate officer, the application had to be withdrawn and to be started afresh on 26 April 2012.  There has been a delay of more than 8 months.  This could have been avoided if the solicitor had considered the application more carefully, citing the applicable statutory provisions, which would have reminded him of the life interest and section 25 of the Probate and Administration Ordinance.  Mr. Chan has set out the relevant statutory provisions in his written submissions for this hearing.  I shall set out the relevant statutory provisions referred to in his written submissions, which he considers relevant to this application below.

38. If the applicant is successful in establishing her status of concubinage in her application, then by virtue of paragraph 4(7) of Schedule 1 of the Intestates’ Estates Ordinance (Cap.73), she has a life interest in the estate:

“(7) Where the intestate is at the time of death a party to one union of concubinage and the residuary estate is held on the statutory trusts for the intestate's issue in accordance with section 4(5), one third of the residuary estate shall be held on trust to pay the income therefrom to the surviving party to that union of concubinage during his or her lifetime.”

39. Section 4(5) of the Intestates’ Estates Ordinance (Cap.73) provides:

“(5) If the intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate.”

40. By virtue of section 25(1) of the Probate and Administration Ordinance (Cap.10), the administration with a life interest shall only be granted to a trust corporation or not less than two individuals:

“(1) Probate or administration shall not be granted to more than four persons in respect of the same property, and administration shall, if there is a minority or if a life interest arises under the will or intestacy, be granted either to a trust corporation, with or without an individual, or to not less than two individuals…”

41. It is apparent that the application involves various areas of statutory provisions as stated above and I have had assistance from Mr. Chan’s written submission, identifying the relevant statutory provisions to me. This type of applications cries out for a close supervision of a solicitor specialized in probate practice if it is handled by a legal executive.  The legal executive or the solicitor will be assisted by citing the applicable statutory provisions in support of the application.

42. Mr. Chan agrees that the statutory form for the affidavit or affirmation can be adapted to accommodate the statutory provisions at the top right hand corner of the affirmation in support of the application.

43. I shall repeat that the Probate Officers are entitled to make requisitions on the applicable law in support of the application.  If the handling solicitor refuses to provide the answers, the application will be referred to the Probate Master, who may summons the solicitor in charge of the application to appear before the court to explain the reasons why such assistance should not be rendered to the court.[6]  Unless the court accepts the explanation, the solicitor must provide the answer and his costs for and occasioned by the appearance before the court should be disallowed.