RE YU LEUNG FONG

[The Court has no inherent jurisdiction in proceedings ex-parte to make a declaration of presumption of death]

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. "In this world" (wrote Benjamin Franklin) "nothing can be said. to be certain, except death and taxes". But the first exception (I say nothing of the second) may be open to question in particular instances. People disappear; maybe as a result of a tragedy at sea, or in the air; maybe for other reasons, or for reasons unknown. It may well be impossible, at a material moment, to say with certainty of a particular person that he is in fact dead. As time goes by, and he is neither seen nor heard of, the likelihood of his having died will become more and more a moral certainty. But for legal purposes death is more than just the "awfully big adventure" it was for Peter Pan; it is a certain event which has important legal consequences affecting not only the propositus. The propositus may have been married. His death will bring an end to the marriage and so will alter his wife's status as a matter of law. He may have been the owner of property jointly with others; his death will cause his share in the joint property to accrue to those others by right of survivorship. His legal rights and obligations will, by and large, survive him, but they will be enforceable only by, or against, his personal representative granted by law the right to get in and administer his assets.

2. If the propositus has disappeared, how is the law to deal with all these matters? The answer depends on the particular problem to be solved.

3. If the problem is matrimonial, statute provides that the spouse of the propositus may apply to the court for a decree of presumption of death and dissolution of the marriage : see s.26 of the Matrimonial Clauses Ordinance, Cap. 179 (under this section, 7 years' absence is treated as prima facie evidence of death).

4. If the problem concerns the assets of the propositus, so that it is necessary for representation to be granted to his estate, any creditor or beneficiary may apply to the court for leave to swear to the death of the propositus. This procedure is available when it appears likely that the propositus is dead but the death cannot be proved by certificate in the ordinary way: see Rule 52 of the Non-contentious Probate Rules, made under the Probate and Administration Ordinance, Cap. 10. If the court is satisfied, on the evidence, that the propositus has died, leave will be given to the applicant to swear to the death in the oath leading to the grant; and the applicant will be granted representation to the estate of the propositus on that basis.

5. If the problem concerns the interest, or possible interest, of the propositus in a trust fund, so that the distribution of the fund is held up by the uncertainty as to whether the propositus is alive or dead, the trustees, or a beneficiary, may apply to the court for an order that the trustees are to be at liberty to distribute the fund on the footing that the propositus is dead (this is known as a "Benjamin" Order): see In re Benjamin [1902] 1 Ch 723.

6. If the problem arises in other proceedings in which a party has to prove the death of the propositus, then, where there is no acceptable affirmative evidence that the propositus was alive at some time during a continuous period of 7 years or more and it is proved (1) that there are persons who would be likely to have heard of him over that period; (2) that those persons have not heard of him; and (3) that all due inquiries have been made appropriate to the circumstances, there arises a rebuttable presumption of law that the propositus died some time within that period, and the party upon whom the burden falls of proving the death of the propositus may rely on that presumption: see Prudential Assurance Company v. Edmonds (1877) 2 App Cas 487 (it should be noted that he mere fact of absence for more than 7 years does not raise a presumption that death has occurred). Where the problem is concerned with the exact date of the death of the propositus, the court will decide the matter on all the evidence available at the date of the hearing. Where the presumption of death after 7 years' absence applies, the court will probably presume that the propositus had died by the end of that period: see Bullock v. Bullock [1960] 1 WLR 975. In some cases the court may infer as a matter of fact that death occurred less than 7 years from the date of disappearance of the propositus; see, for example, In re Beasney's Trusts (1869) LR 7 Eq 498; in other cases death may not be presumed, even though a much longer period than 7 years has elapsed since the person was last seen; see, for example, Chard v. Chard [1956] P 259.

7. So, depending on the nature of the problem, there are a number of different ways in which the court can help resolve difficulties caused by uncertainty about the death, or the date of death, of a particular person. There is, however, no inherent jurisdiction in the court to entertain proceedings ex parte in which the applicant claims a declaration that a particular person is to be presumed to be dead.

8. It is the erroneous belief that such a jurisdiction does exist which has led to the institution of the present proceedings. Judging from the number of applications of a similar character which have come before me (and, I suspect, before other judges) during the last few years, the misapprehension which has led to the institution of the present proceedings is widespread. Accordingly, I indicated, when striking out these proceedings (as I was bound to do, since they were a nullity) that I would reduce to writing my reasons for doing so in the form of a judgment offering some guidance to the profession when faced with cases of this sort. This is that judgment. I authorize its release for publication (the application itself was one with which I dealt in Chambers) in the hope that it may come to the notice of practitioners faced with similar problems.

9. The facts of the present case were as follows.

10. Yu Leung Fong ("the father") was born on 16th January 1909. He took a kit-fat wife, Ku Ah Lee ("the mother"). They had a daughter, Yu Sin Chun ("the applicant") who was born on 12th August 1938, and 3 other children. One of these children, Yu Sing Fu, died in September 1950 at the age of 8 years. The other two children are Yu Sin Fu, a son now aged 50 years, and Yu Mei Chun, a daughter now aged 42 years. The husband resided at Flat C, 13th floor, On Foo Building, No. 36, Lo Tak Court, Tsuen Wan, New Territories, Hong Kong ("the property"). The property was held by the husband and the applicant as joint tenants.

11. In 1976, the father was employed by Patt Manfield and Company Limited, a Hong Kong company; he worked as a waiter on board a vessel owned by or chartered to his employers known as the "Silver Crane". She caught fire while at sea on 29th August 1976. He was the last remaining member of the crew on board after she caught fire. He was unable to swim. Although he was wearing a life jacket at the time, he refused to jump into the sea and so drift clear. When a rescue vessel, the "Banglar Tarani", approached with a view to saving him, she struck the stern of the "Silver Crane" and he fell into the sea. His body has not been found and he has not been seen or heard of since. The mother and the applicant made a claim against his employer, which was settled in consideration of a payment of HK$49,140.00. No grant of representation to his estate has been made. The applicant does not know of any policies of insurance effected on the life of the deceased; but she is aware of two savings accounts maintained by him on which the credit balance is negligible. The mother died on 5th February 1979. The applicant has caused advertisements to be inserted in local newpapers with a view to locating the father, but these have produced no result.

12. On 22nd April 1991 the applicant instituted these proceedings, by originating summons ex parte, claiming a declaration that the father "was presumed dead on 29th August 1976". Her application was supported by evidence of the facts which I have set out above, but her affirmation in support of her application contained no statement of any reason why she had felt or been advised that it was necessary for her to institute these proceedings. I understand from the solicitor who appeared on the hearing of the originating summons before me that the applicant was anxious in some way to regularize her position as to the property. If the father is dead, then his interest in the property has accrued to the applicant by right of survivorship. If he is not, she remains only one of two joint tenants.

13. But, as I have already pointed out, the court has no jurisdiction to entertain these proceedings. The role of the court in civil proceedings is to resolve differences between opposing parties. If there is no present dispute between parties as to their legal rights, there is nothing for the court to resolve. Except in very special cases, the court will not resolve academic, hypothetical or future questions. Certainly, it will not do so if, not only has the issue not yet arisen, but the parties in disagreement over the issue are merely prospective. A person claiming a declaration must be able to secure someone presently existing who has a true interest to oppose the declaration sought. Proceedings in which an owner of property attempts ex parte to obtain a declaration in order to arm himself against some difficulty which may arise in the future are proceedings which fundamentally misconceive the function of the court in civil proceedings. It is not the function of the court to settle the doubts of owners of property about the state of their title, in the absence of any other party interested in the matter.

14. Not surprisingly perhaps, neither the applicant, nor anybody else, has attempted to obtain any grant of representation to the estate of the deceased. But does this matter? It ought to be possible for the applicant to market the property under a contract which contains a provision obliging the purchaser on the available evidence to accept that the father died on or about 29th August 1976, so that the applicant is entitled to be treated as entitled to the whole beneficial interest in the property by right of survivorship. (Certainly, if I were the solicitor acting for a purchaser from the applicant, I would advise her that she could safely accept the title offered on the evidence which I have seen.) If, however, this is thought not to be good enough, the solution may lie in the applicant, or one of the other children, obtaining leave to swear to the death of the deceased and obtaining a grant of representation to his estate. A purchaser, would, in my opinion, be bound to treat the grant as sufficient conveyancing evidence of the father's death : cp. Emmet on Title, 19th Ed., Vol. 1, 5.067.

15. That is as far as I can take the case. So far as the present application is concerned, I have, as I have said, struck it out, for the reasons given above; and there is nothing I can usefully add.