YAP SUI KONG v. YIP FONG TIM

CACV 191/2017

[2018] HKCA 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 191 OF 2017

(ON APPEAL FROM HCA 1409/2013)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

1.  This action was brought by the Plaintiff to challenge the Defendant’s title in respect of some land in the New Territories at Demarcation District No.47. In essence, it is a succession dispute but it was a claim brought many years after the succession had taken place in 1968. The writ in the action was filed on 31 July 2013.

2.  The succession was in respect of the estate of Ip Ting Wing, an indigenous villager of Lin Ma Hang village who passed away in 1933 at the age of 75.  As evidenced by memorial No.162351 registered at the New Territories Land Office on 1 October 1968, the title of the estate passed to Ip Cheung Hong [“ICH”] (whose name was also spelt as Ip Tseung Hong) as the grandson of the deceased, in the capacity as the son of Ip Kut Lung [“IKL”], a son of Ip Ting Wing. 

3.  The Defendant is the son of ICH.  ICH himself passed away in 2011.  The Defendant is sued in the action as the personal representative of the estate of ICH. 

4.  In March 1980, by three Conveyances on Sale, some land in the New Territories were divided amongst ICH and two other relatives.  By one of those instruments, ICH acquired title to the land in dispute.

5.  The Plaintiff claimed to be the son of another grandson of Ip Ting Wing, Ip Wan Fook [“IWF”] who was also known as Yap Fook. His case is that IWF was the son Ip Kut Yee, another son of Ip Ting Wing.  He also claimed that ICH was not a grandson of Ip Ting Wing.  It was alleged that ICH was originally a worker by the name of Chiu Loi [“Chiu”] who was subsequently taken as a son by the wife of IKL.  It was also alleged that such “adoption” was not in accordance with Chinese customary law.  Thus, ICH (or Chiu in his true identity) did not have the right to succeed to the estate of Ip Ting Wing. 

6.  The Defendant disputed the alleged status of the Plaintiff.  He also denied that ICH was Chiu.  He said ICH, his father, was a grandson of Ip Ting Wing.

The judgment below

7.  The trial of the action took place before Chung J in November 2016.  It lasted for three days.  On 31 July 2017, the judge handed down the judgment dismissing the Plaintiff’s claims with costs.  He found against the Plaintiff as to his alleged status as a descendant of Ip Ting Wing.  He also found against the Plaintiff as to his challenge to the status of ICH. 

8.  The findings by the judge were set out at [37] to [39] and [41] to [43] of the judgment:

“ 37.   The following findings of fact (following those proposed in App 1, plaintiff’s written opening) should come out of the admissible, and reliable, evidence:

(1) Ip Cheung Hong was a natural son of Ip Kut Lung, and not an adopted son;

(2) Ip Cheung Hong was not Chiu Loi (if Chiu Loi has in fact been staying and working in the subject village, he and Ip Cheung Hong were different persons).

38.   There is no (or insufficient) reliable evidence as to whether:

(a) Ip Kut Yee has had two sons, Ip Cheung Chun and Ip Wan Fook;

(b) the plaintiff and the persons he represents are descendants of Ip Ting Wing;

(c) Chiu Loi has had stayed or worked at the subject village;

(d) Chiu Loi was adopted by Mdm Wan Tam Kiu (the wife of Ip Kut Lung) as her son;

(e) at what age was Chiu Loi adopted (if he had been adopted);

(f) the Chinese customary ceremony or formality for Chiu Loi’s adoption (if any).

39.   By reason of the above matters, I am not satisfied that the plaintiff (and the persons he represents) has established the factual basis for concluding he should inherit the entirety of Ip Ting Wing’s estate (see also para 41 below).

…

41.   The plaintiff argues (among other things), in the alternative, he (and the others) should be entitled to 50% of the subject land lots, if the court should find that both he (and the others) and the defendant were the great grandfather’s descendants (para 6.2, plaintiff’s closing submissions) (see also para 2 to 4, 6 to 8 and 11, statement of claim).

42.   By reason of the above conclusions, there is no admissible or reliable evidence to establish the alternative claim either.

43.   The plaintiff’s claim is dismissed.”

The notice of appeal and distillation of issues

9.  The Plaintiff appealed against the judgment. The Notice of Appeal, drafted by counsel, is a 10-page document consisting of 16 grounds.  There is also a supplemental Notice of Appeal filed on 11 July 2018 setting out the particulars for Ground 16.  With respect, some of the grounds in the Notice of Appeal of 25 August 2017 are plainly unarguable.  For example, under Ground 3 it was suggested that the judge took irrelevant consideration into account as he referred to laches [4] and [26] of the judgment.  What the judge said in those paragraphs are as follows:

“ 4.   The doctrine of laches is not relied on by the defendant.  But the lengthy time periods separating the events above and this action are important.  This is because the main dispute herein, being which party should inherit the subject land lots, is highly fact-sensitive (see para 9 below).  The lapse of time between the above events and the commencement of this action, some of which were as much as a few decades earlier, has rendered the assessment of witnesses’ testimony (on which the fact finding has to be based) a rather difficult task.

…

26.   Thirdly, at no time did P’s father take any action to claim his entitlement to any of the estate of either the great grandfather (who passed away in 1933) or his own father (who passed away in 1991) (incidentally, there is no evidence he returned to the subject village on that occasion).  He did not do so in 1966 (when he visited the subject village) (para 3(d) above), or in 1968 (when D’s father inherited the subject land lots) (para 3(f) above), or in 1980 (when D’s father sub-divided the great grandfather’s estate, including the subject land lots) (para 3(h) and 11(7) above).”

10.  It is quite obvious from a fair and reasonable reading of the judgment that the judge did not rely on the concept of laches. What the judge did was to refer to the lapse of time and its implication on the assessment of evidence, something which as trial judge he was quite entitled (and indeed obliged) to do.

11.  Grounds 14 referred to [36] of the judgment.  We cannot see how this ground can assist the Plaintiff.  From the reasons given in the judgment, the judge plainly did not adopt the approach of choosing between two theories.  

12.  Under Ground 5, it was suggested that the judge erred in law in his assessment of the birth certificate of the Defendant at [19] of the judgment.  The so-called error of law was said to be:

(a)   The judge took a technical view of the birth certificate “in speculating on unknown areas and drawing every possible adverse inference against the plaintiff”;

(b)   The judge took the certificate as a credible document and ignored the evidence in that some villagers applied for post-facto birth certificates to facilitate their move to work overseas;

(c)   The judge had very limited vision that the reason for tailoring information was limited to succession and related pecuniary advantage.

13.  What the judge said at [19] was as follows and it should be read together with [20]:

“19.   First, birth cert of D’s father appears to be a credible document.  It was issued in 1962; not only was it issued well before the commencement of this action, it was issued several years before D’s father emigrated to Britain, and before he inherited the subject land lots.  There is therefore no reasonable ground for thinking that the information in the document was “tailored” for the purpose of obtaining succession (or for any related pecuniary advantage).

20.   The Register’s letter of 22 November 2014 reinforces the credibility and reliability of birth cert of D’s father (para 11(3) above).  There is thus no need to rely on provisions such as s 38, Interpretation and General Clauses Ordinance (Cap 1) (presumption of lawful exercise of power).”

14.  In light of the evidence in the letter from the Registrar, it is quite plain that the judge did not err in the way Ground 5 suggested.

15.  Further, we are rather disturbed by the choice of words in the formulation of the ground.  Those who practise law, unlike some untrained litigants in person, should appreciate that grounds of appeal should be drafted professionally without making personal attacks against judges unnecessarily.  In a case where it is not alleged that the judge had actual bias against a party, the language deployed in this instance is clearly inappropriate. This Court expects legally qualified practitioners to observe proper professional etiquette in putting forward written materials as well as in oral hearings. 

16.  We discern the same problem in the formulation in Ground 1 (where the judge was alleged to have “unilaterally built a time platform to find reasons for dismissing the testimony of all plaintiff witnesses”); Grounds 4, 8, 10 and 11 (where the judge was alleged to have “speculated”; Ground 7 (where the judge was alleged to have “blasphemed” the 2002 genealogy with pecuniary attributions); Ground 8 (where the judge was alleged to have made use of a non-issue “to advance his own cause”); Ground 11 (where the judge was alleged to have taken a “bureaucratic and rigid view”); Ground 12 (where the judge was alleged to have adopted a “fault finding approach”); Ground 13 (where the judge was alleged to have “ridiculed” a piece of evidence).

17.  In substance, many of these grounds are actually challenges to the findings of fact by the judge.  It is of no assistance to this Court for appellant counsel to dress them up as alleged errors of law.

18.  We reiterate what was said recently in Chow How Yeen Margaret v Wex Pharmaceuticals Inc [2018] 3 HKLRD 163 at [13] to [14] concerning ill-prepared prolix notices of appeal containing submissions instead of concise and focused grounds of appeal.  In Gotland Enterprises Ltd v Kwok Chi Yau, CACV 260/2014, 19 January 2016 at [70] and [74], the Court already gave some guidance on the drafting of grounds of appeal and proper preparation for an appeal against findings of fact.  See also 秦錦釗及香港特別行政區 [2018] HKCA 167 at [6] to [8] and the discussion in 黄碩雄及范荏愷[2018] HKCA 168 at [4] on the scope of an appellate process.

19.  In the present appeal, after reading the papers and the skeleton submissions of counsel, this Court gave the following directions after referring counsel to some relevant authorities:

“ Having read the judgment, the Notice of Appeal and Supplemental Notice of Appeal and the Plaintiff’s Skeleton Submissions, it appears that the main issues in the appeal relate to the findings of fact by the judge.

In order to assist the Court, counsel for the Plaintiff is directed to submit a succinct and focused summary outlining in bullet points the alleged palpable errors (placing them in either one of the errors highlighted by Lord Neuberger in In re B (A Child) (Care Proceedings: Threshold Criteria) [2013] 1 WLR 1911 at [53]) of the judge in,

(a) Finding that there is insufficient evidence to establish that the Plaintiff and the persons he represented are descendants of Ip Ting Wing;

(b) Finding that Ip Cheung Hong was a natural son of Ip Kut Lung.

Each bullet point shall cross-reference to the relevant grounds of appeal and specific paragraphs in the Skeleton Submissions.

The summary should not be more than 2 pages and must be lodged (with 3 copies) and served by 11 August 2018.”

20.  In compliance with these directions, counsel for the Plaintiff submitted a 2-page Summary of Issues on 10 August 2018.  The exercise demonstrated that with proper observance of the guidance in the authorities, it is not difficult for counsel to put forward appellate challenges to findings of fact in a concise and focused manner.  When counsel and the Court were able to focus properly on arguable grounds of appeal, the hearing of this appeal was completed within half a morning instead of 2 days as originally scheduled.  It illustrates the importance and benefit of proper case management.

21.  A cardinal rule to be borne in mind is that those responsible for drafting a notice of appeal should not prepare the document as if it were to be read as a set of submissions.

22.  It should also be borne in mind that appellate challenges to findings of fact are subject to well-established constraints as discussed in Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336; China Gold Finance Ltd v CIL Holdings Ltd, CACV 11/2015, 27 November 2015 and ZJW v SY CACV 10/2017, 1 December 2017 at [25] to [34].  Regurgitation of arguments already deployed in closing submissions and rejected by the primary judge by itself would not be a valid ground.  Nor would general assertions that the judge’s finding was against the weight of the evidence or that the judge failed to believe a particular witness or attach sufficient weight to a piece of evidence.

23.  The primary duty in the preparation of proper grounds of appeal is on those acting for an appellant.  As said at [70] in Gotland Enterprises Ltd v Kwok Chi Yau, supra:

“ … A notice of appeal should only set out grounds which in counsel’s view are reasonably arguable. The practice of lodging an appeal with ill-considered and unsatisfactory grounds of appeal, particularly those that provide no more than a lengthy critique of the judgment rather [than identifying] a justifiable basis for the Court to Appeal [to interfere] in the decision of the judge below, is not acceptable. In future, the court will exercise tighter case management of the appeal process and the Registrar may bring such illegitimate notices of appeal to the attention of a judge for striking out consideration. In modern litigation ethos, appeals brought without proper grounds are regarded as abuses of process.”

24.  Similar sentiment was expressed in Chow How Yeen Margaret v Wex Pharmaceuticals Inc, supra, at [14]. 

25.  Practice Direction 4.1 para 23 provides for the Court to exercise case management power in respect of an improper notice of appeal.  Since the primary duty is on the appellant and those acting for him, the Court will only exercise such power in blatant and obvious cases, avoiding further time and costs spent unprofitably on such exercise prolonging the appeal process inefficiently.  We are mindful that the exercise should not be turned into a further round of satellite litigation.  However, our experience shows that there are cases where the Court should be more proactive in this respect.

26.  When the Registrar of Civil Appeals discerns cases calling for intervention, depending on the stage to which an appeal has reached, he can adopt different approaches.  Before a date has been fixed for hearing the appeal, a progressive approach can be adopted.  He can draw attention to the relevant authorities (some of them have been cited in this judgment) and invite the party to reconsider if a notice of appeal should be amended.  If a party still declines to do so, he can give directions similar to the one we have given (as set out at [19] above).  If a party fails to comply with such directions or amend the notice of appeal with proper grounds of appeal, the Registrar can bring the matter to the attention of a Justice of Appeal.  The Justice of Appeal may consider imposing an unless order carrying with it the sanction of having the appeal struck out in case of non-compliance.

27.  If the appeal has reached a stage after a date of hearing has been fixed, the matter should be proceeded in a more expeditious manner.  The Registrar should bring the matter to the attention of the presiding judge in the appeal.  The Justice of Appeal can consider whether to give directions to assist in the preparation of the appeal coupled with an unless order.

28.  We are mindful that the sanction of striking out an appeal is draconian.  It would only be proportionate to do so if the existing grounds are obviously devoid of merits or when a default, considered against the history of the case, evidently points to the appeal being vexatious.  In other cases, the sanction for non-compliance with an unless order can be that the appeal shall be processed on the papers based on written submissions, as an unfocused notice of appeal and non-compliance with the directions are abuses that would hamper the effective case management of an oral hearing.

29.  In many cases, as has happened in the present case, an appropriate direction steering the focus back to the right track would be sufficient.  The object of the exercise is to facilitate the determination of the appeal in a focused and effective manner in accordance with the underlying objectives in Order 1A Rule 1. 

30.  Coming back to the present appeal, disregarding the ineffective grounds of appeal, the issues that require this Court’s determination can broadly be put under three main issues:

(a) Challenges to the finding that the Plaintiff is not a descendant of Ip Ting Wing;

(b) Challenges to the finding that ICH was a descendant of Ip Ting Wing;

(c) Interference by the judge with the conduct of the case by Plaintiff’s counsel.

Interference by the judge

31.  We shall deal with this ground first. 

32.  Mr Lai set out the particulars of the instances where he alleged the judge interfered with his conduct of the Plaintiff’s case in the Supplemental Notice of Appeal of 11 July 2018.

33.  At Ground 16 in the original Notice of Appeal, he also alleged the judge asked counsel to dispense with calling all the witnesses after hearing some of them.  We were not directed to the relevant part of the transcript.  However, Mr Lai’s own skeleton submission stated that he had not acceded to the suggestion by the judge and he did call all the witnesses he intended to call.

34.  The judge took account of all the evidence, including those witnesses called by the Plaintiff.  He alluded to these witnesses at [13] to [16] and then proceeded to assess the weight to be given to such evidence against other evidence and considerations, including the inherent implausibility of certain parts of evidence.

35.  In a trial, a judge is entitled to exercise trial management power to prevent counsel from calling unnecessary or unhelpful evidence.  The exploration with counsel if some witnesses can be dispensed with is a proper exercise of such management power.  We cannot see any merit in this part of Mr Lai’s submissions.

36.  The same observation can be made with regard to the judge’s exercise of trial management power to supervise the questioning of witnesses, whether by way of examination in chief or cross-examination.

37.  Since the parties have filed witness statements which should have set out all material evidence of such witnesses, a judge is entitled to stop repetition and attempts to adduce additional evidence without proper application in the name of examination in chief. 

38.  We have considered carefully the transcripts of the trial, in particular p.2 and p.85 of the transcript of the trial.  We do not find the judge going beyond a legitimate exercise of his trial management power in this regard. 

39.  In re-examination, a judge is entitled to prevent counsel from asking questions on matters not touched upon in cross-examination.  Such evidence, if relevant, should have been adduced in the proper manner, viz including the same in witness statements, so that the other side can cross-examine on the same if necessary.  It would be unfair to allow new evidence to be brought in by way of “re-examination”.

40.  Mr Lai referred to p.23I and 66I of the transcript as instances where the judge stopped him from re-examination along a certain line.

41.  At p.23I, the judge merely observed that the line of re-examination suggested a version of events not quite the same as the one previously given.  The judge did not stop Mr Lai from asking the question.

42.  At p.66I, the judge did stop Mr Lai from “re-examining” on the number of persons receiving a share of some compensation money on the ground that it has not been cross-examined upon.  Mr Lai’s then response was that the question was not important.  A few questions later, Mr Lai attempted to elicit evidence in that respect at p.67F to G.  The judge found it necessary to tell Mr Lai sternly to observe the rule on re-examination.  Mr Lai apparently did not regard himself as having breached the rule. 

43.  In his supplemental grounds of appeal, Mr Lai contended that the judge was plainly wrong in that instance and he referred to p.62D where defence counsel had asked about a table recording the remittance. Having read that part of the transcript, we are not satisfied that defence counsel had cross-examined on the number of people receiving a share of the compensation money.  Thus, the judge was not plainly wrong in stopping Mr Lai at that juncture. 

44.  Mr Lai further referred to p.93S and 97E of the transcript and contended that the judge had interfered with his cross-examination.  We have read those parts of the transcript.  At p.93S, the judge questioned the relevance of a particular question.  When it demonstrably had no relevance, the judge stopped that line of question as he was entitled to.

45.  As regards p.97E, one must start from p.95E to understand the whole episode.  The judge questioned the relevance of cross-examining the Defendant as to the length of his stay in Hong Kong.  Mr Lai initially explained he wanted to explore if the Defendant conducted inquiry to find support for his case.  The judge took the view that that line of cross-examination was fishing and could not be permitted though he indicated he could permit cross-examination by reference to villagers giving evidence for the Plaintiff.  Mr Lai appeared to have some difficulty in appreciating the difference and made some strong remarks suggesting that the judge did not give him the mutual respect that he should.  The judge did not deem it dignified to respond to those remarks but affirmed his previous ruling.  When Mr Lai continued to ask questions of the witness, he embarked on another question instead of asking questions in accordance with the ruling.  The judge had to remind him of the ruling.  Then Mr Lai told the judge that he shifted to another point about the Defendant not being able to procure witnesses to testify for him.  The judge permitted that question to be asked at p.97A to E.

46.  Hence, the judge did not actually stop Mr Lai from asking any relevant question.  The whole episode was simply an exchange between the Bench and the Bar as to the relevance of a particular question and the modification of the way in which a question was eventually put in order to get to the point in an effective manner. 

47.  As far as we can see, it was simply another ordinary instance of the exercise of trial management power by the judge. 

48.  We cannot see any basis for blowing up these instances as improper interference with counsel’s conduct of the case.  In none of these instances did the judge prevent Mr Lai from asking legitimate questions and the judge’s interjections did not hamper the legitimate presentation of the Plaintiff’s case. 

49.  There is absolutely no merit in this ground of appeal. 

Challenge to the finding on the identity and parentage of ICH  

50.  According to Mr Lai’s 2-page summary of issues, the Plaintiff relied on Grounds 1, 2, 5, 6 and 8 in this regard. 

51.  Grounds 1 and 2 can be addressed together.  The grounds related to the judge’s rejection of the evidence of the Plaintiff’s witnesses, Mr Lai termed it as “en bloc rejection”.  He submitted that no reasonable judge could have come to such conclusion.  He attached to his submissions a schedule containing a brief digest of witness testimony.

52.  As has been said in many authorities from this Court, including those cited at [22] and [23] above, an appeal is not the occasion for running the case as if one were having a second round of closing submissions.  Assessment of evidence and making relevant finding of facts based on such assessment is primarily the task of the trial judge.  Institutionally, it is not appropriate for the Court of Appeal to perform such a task as if it were sitting in the first instance.

53.  The judge had paid regard to the evidence of these witnesses and he discussed the same at [13] to [16] and assessed them in light of other evidence and inherent probabilities at [17] to [36].  The important documentary evidence was alluded to at [10] to [12] of the judgment.

54.  We have read the relevant parts of the witness statements and transcript of evidence.  Whilst the testimonies of the Plaintiff’s witnesses were that Chiu was adopted as a child by Madam Wan and some of them testified that Chiu had changed his name to Ip Cheung Loi, the evidence that Ip Cheung Loi was actually ICH was very flimsy. 

55.  Thus, the judge treated the question of lineage of ICH as involving two different questions: (1) whether ICH was Chiu; (2) whether Chiu was adopted.

56.  The judge was sceptical about the witnesses’ testimonies about Chiu for the reasons he gave at [14] to [18] and he preferred the documentary evidence on ICH’s parentage, in particular the birth certificate and the 2002 Genealogy.  He also considered the inherent plausibility and implausibility in making his assessment.

57.  In our judgment, the conclusion arrived at by the judge cannot be said to be plainly wrong or one which no reasonable judge could have reached.  The reasons given by the judge in not giving weight to the evidence of the witnesses are sound reasons, many of the witnesses were young at the material times and some of their evidence was hearsay in nature. 

58.  As discussed above, the attempt of Mr Lai to challenge the judge’s analysis of the weight to be attached to the birth certificate under Ground 5 has no merit.

59.  Mr Lai also relied on the preamble in the 2002 Genealogy and the evidence of PW2, PW7 and PW8 to submit that the judge should not attach as much weight to the 2002 Genealogy as the judge did.  They related to the general statements that the Genealogy may not be comprehensive due to the scattering of descendants in different parts of the world.  The judge had addressed the point at [24] of the judgment:

“ 24.    The plaintiff argues that the 2002 genealogy is not a reliable document, pointing (in support) to statements therein to the effect that because of the lack of complete and/or formal written records, the 2002 genealogy may contain errors or omissions.  Even if this may in some way be true, the part of the 2002 genealogy which is important to this action is related to P’s father and D’s father, both of whom should be known to the villagers in the 1960’s (for example, para 13(c) to (g) above) (especially those responsible for compiling the 2002 genealogy (for example, para 13(b) and (f) to (h) above)) (P’s father visited the subject village in 1966 while D’s father succeed to the subject land lots in 1968).  It is unlikely for P’s father to be inadvertently omitted from the document.”

60.  As far as the lineage of ICH is concerned, we do not find any basis for this Court to interfere with that assessment.  Ground 6 has no merit.

61.  Ground 8 related to the judge’s reference to three conveyances in 1980 at [25] of the judgment.  The three conveyances were alluded to in the pleadings and they were placed before the judge at the trial, see [3(h)] and [11(7)] of the judgment.  At [25], the judge said,

“ 25.   Secondly, not only did D’s father inherit the subject land lots, apparently he was the one who sub-divided (at least part of) the great grandfather’s estate and conveyed part of the same to 2 other Fongs of the Ip family (para 3(h) and 11(7) above).  It is inherently implausible for an adopted child (let alone an invalidly adopted child) to be entrusted with such task (even bearing in mind that land lots in Sha Tau Kok in the 1960’s were of much lower value than in the 1980’s).  In fact, according to two plaintiff witnesses (para 13(d) and (f) above), the estate has long time ago been divided between, or distributed to, the two Fongs belonging to Ip Kut Yee and Ip Kut Lung.”

62.  Though Mr Lai advanced the submission that the 1980 conveyances were a title tidying exercise between different fongs and it was a non-issue between the Plaintiff and the Defendant, he had not referred us to anything to suggest that such agreement would bar the judge from adopting the approach he did at [25].  The point made by the judge was that ICH was the person representing the Ip Ting Wing fong in respect of the estate of the great grandfather, viz Ip Shing Shui.  As the documents were before the judge, he was entitled to take this into account.  Ground 8 has no merit.  

63.  Hence, none of the grounds advanced by Mr Lai constitutes a valid basis for this Court to intervene with the judge’s finding on ICH’s lineage. 

64.  This part of the Plaintiff’s appeal has to be dismissed.

Challenge to the finding on the Plaintiff’s lineage

65.  On this part of the case, we would start by focusing on Ground 15.  Under that ground, Mr Lai submitted that the judge failed to deal with some highly relevant points of evidence before coming to the finding on the Plaintiff’s lineage.  In particular, we would focus on the following matters:

(a) The bringing of the remains of the Plaintiff’s father back to Hong Kong for burial at the village with the permission of the village elders;

(b) The distribution of half share of the compensation money attributable to the Ip Ting Wing fong in 2013 to the Plaintiff and half share to the Defendant.  It is the Plaintiff’s case that the Defendant had knowledge of the same. 

66.  Based on the materials before us, these were two of the main planks of the Plaintiff’s case on his lineage apart from the evidence of the Plaintiff himself and some documentary evidence.

67.  In the judgment, the judge did not address these two matters.  

68.  Whilst a judge is not obliged to address every point raised and discuss all the evidence in minutiae, the judgment must inform the appellate court and the parties how important issues raised in a trial have been resolved, see Welltus Ltd v Fornton Knitting Co Ltd [2013] 5 HKC 106.  In contrast, the omission to discuss minor issues or those obviously without merit in light of the determination of a judge on other issues are unlikely to form a valid basis for disturbing a judgment: see Yui Chung Yin v Ng Kit Sum CACV 25/2013, 27 November 2015; Hoptai Sharkfins Co Ltd v Productos Pesqueros Gallegos SL CACV 240/2014, 7 December 2015.

69.  It may be that the judge considered these two matters were only of collateral relevance given that they cannot constitute direct proof of the Plaintiff’s lineage.  Their probative value depends on the acceptance by the villagers as to the validity of the Plaintiff’s claim.  Thus, given the conclusion reached by the judge on the inadequacies of the evidence of the villagers, the judge did not find it necessary to discuss these matters specifically in the judgment.

70.  However we cannot accept this to be a sufficient explanation for not addressing these matters specifically.  In our judgment, in the absence of any suggestion of collusion or mistake in the process, the acceptance of the Plaintiff’s claim by the villagers as illustrated by these matters (assuming that these have been proved to the satisfaction of the court) should carry more weight than the testimonies of the Plaintiff’s witnesses at the trial.  These matters have implications for the whole clan (burial rights and distribution of proceeds or compensation money for clan property are two important aspects of village affairs), not confined to those coming forward to give evidence for the Plaintiff.  Further, in the same vein as the judge’s rationale for attaching great weight to the 2002 Genealogy at [21] and [22] of the judgment, given the importance of these matters for the whole community, it is inherently less likely for mistakes to be made, or if there were mistakes, objections were not raised by those who had an interest in the matters.

71.  From the judgment, it is not possible for this Court to discern if the judge made findings of fact in favour of the Plaintiff as to the occurrence of these events and if he did, the basis on which he decided that no weight should be attached to those matters.

72.  Mr Chan relied on [44] of the judgment.  In that paragraph, the judge said:

“ 44.   The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the judgment and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.”

73.  With respect, whilst this paragraph would not invalidate the reasons given in other parts of the judgment, it cannot provide the answer to an omission to deal with important issues raised at the trial. Important issues can be collateral issues on which a party placed substantial reliance to establish his case on a primary issue.  For the reasons above, we are of the view that the judge should have addressed the two matters in the judgment. 

74.  Another important piece of circumstantial evidence which had been canvassed by Yuen JA during the appeal was IWF’s visit to the village in 1966, staying there for two weeks.  Lin Ma Hang was not a holiday resort and it is inherently unlikely that IWF came from Malaysia (he had emigrated to Malaysia since 1934 at the age of 19) to this small village in the New Territories and spent two weeks there in 1966 simply for sightseeing. It is also inherently unlikely that he would have stayed there for two weeks if he had no connection with someone in the village. 

75.  Viewed in such light, the reason given by the judge at [31] and [32] in rejecting IWF’s Malaysian ID card as evidence of IWF’s relationship with Ip Kut Yee may have to be re-examined.

76.  The judge also alluded to the absence of claims being advanced by IWF to the estate of Ip Ting Wing at [26].  But IWF left Hong Kong in 1934 and he only visited the village once in 1966.  At that stage no one had made any claims to that estate.  ICH (who was residing in the United Kingdom) only applied for the succession in 1968 through his wife.  There was no evidence to suggest that IWF was notified of the application in 1968 or the conveyances in 1980. 

77.  Further, there seems to be some confusion when the judge referred to the failure to take action in 1991 at [26].  He said:

“ 26. Thirdly, at no time did P’s father take any action to claim his entitlement to any of the estate of either the great grandfather (who passed away in 1933) or his own father (who passed away in 1991) (incidentally, there is no evidence he returned to the subject village on that occasion). He did not do so in 1966 (when he visited the subject village) (para 3(d) above), or in 1968 (when D’s father inherited the subject land lots) (para 3(f) above), or in 1980 (when D’s father sub-divided the great grandfather’s estate, including the subject land lots) (para 3(h) and 11(7) above).”

78.  IWF passed away in 1991 in Malaysia.  He obviously could not be expected to take any action on his death.  Insofar as the judge referred to the Plaintiff as the person who failed to take action to claim the estate in 1991, the judge did not set out the circumstances by virtue of which the Plaintiff was expected to take such action.  

79.  For these reasons, we have to allow the appeal and set aside the judge’s findings in respect of the lineage of the Plaintiff and remit that part of the case to the Court of First Instance for retrial before another judge.

Disposition

80.  We shall allow the appeal in respect of the findings on the lineage of the Plaintiff and remit that part of the case to another judge for retrial.  We dismiss the other parts of the appeal.

81.  We also make a costs order nisi that each party shall bear his own costs for the appeal.  For the costs below, the Defendant is successful in resisting the Plaintiff’s challenge to the parentage of ICH and should have that part of the costs below.  The costs of the Plaintiff’s lineage should be in the cause of the retrial on the remitted issue.  Parties are directed to try to agree on the apportionment of the costs below on these two issues and report to the Court within 21 days.  

82.  There is a summons of 21 August 2018 by which the Plaintiff sought to adduce new evidence.  We did not find it necessary to deal with the summons in light of our above determination on the issue of the Plaintiff’s lineage.  But we would say this by way of general guidance.  As illustrated in the present appeal, nowadays the Court adopts proactive case management of an appeal.  Judges read the papers well in advance and if necessary give directions to facilitate the efficient conduct of the oral hearing.  The hearing of an appeal is a milestone event and last minute skirmishes (which inevitably disrupt proper preparation of the hearing) should be avoided.  After the exchange of skeleton submissions, the Court proceeds on the basis that there would not be any further “surprises”.  

83.  In light of that, it is inappropriate for such summonses to be filed at such a late stage.  We do not overlook there could be cases where last-minute application is unavoidable due to circumstances beyond the control of the parties and their legal advisors.  In that scenario, the proper course is to give advance notice to the court and the other side that an oral application would be made at the hearing.  It is a matter of the discretion of the court hearing the appeal in considering if such last-minute application should be entertained.  

84.  To reinforce the above, henceforth the Registry will be directed that it would not accept further summons or evidence for filing without the leave of the presiding judge hearing the appeal after the exchange of skeleton submissions.  A copy of this judgment will be circulated amongst the legal profession for their guidance.  

85.  In the circumstances, we propose to make no order for costs in respect of the summons and the affirmation.  For the record, as we did not hear submissions on the same, the affirmation has not been considered by us in coming to the above conclusion on the disposal of the appeal.  

Postscript

86.  As indicated at the hearing, parties should make serious efforts in trying to reach a settlement.  By now, based on the estimates supplied by the solicitors, the Plaintiff has incurred costs of about $1.6 million whilst the Defendant had incurred over $900,000.  Unfortunately, for the reasons given above, the case has yet to come to a final end as we have remitted part of the case back to the Court of First Instance for retrial.  A retrial means further costs and time to be spent on the dispute.  It is high time that the lawyers, with the benefit of this judgment, should carefully review with their respective clients on different options to resolve the matter.  It may also be useful to consider the option of mediation by enlisting the assistance of an experienced mediator. 

87.  The management of the retrial is in the hands of the judge assigned the case.  That judge can also give directions in a pre-trial review to facilitate meaningful exploration of other options to resolve the matter as he or she deems appropriate.