LAW FEI SHING v. TO CHIU KWAI

DCCJ 1450/2017

[2018] HKDC 25

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 1450 OF 2017

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DECISION

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The appeal

1.  By a notice of appeal taken out on 23 October 2017, Mr To Ying Kwok (“TYK”) lodges an appeal against the decision of Master M Lam given on 9 October 2017, in which the master dismissed TYK’s ex parte application (“the application”) for an order appointing TYK to represent the estate of To Chiu Kwai for the purpose of these proceedings, and the title of these proceedings be amended accordingly.

2.  The notice of appeal has been served on the plaintiff.  The plaintiff adopts a neutral stance in this appeal and his attendance is excused.

Background

3.  In these proceedings, the plaintiff claims that he has acquired a possessory title to the land known as Lot 121 and Lot 124 in Demarcation District No 86 in Muk Woo Village, Ta Kwu Ling, New Territories (“the Land”).  The defendant is the registered owner of the Land.

4.  The defendant is recorded as the owner of the Land in a block crown lease dated 27 March 1905 (“the Block Crown Lease”).  It is recorded in the schedule dated 27 June 1907 (“the Schedule”) annexed to the Block Crown Lease that the defendant is the owner of the Land.

5.  The application is supported by an affirmation made by TYK on 18 September 2017, in which TYK said:-

“6. I verily believe that the Defendant died already. He must have attained at least the age of 18 when the Government Lease was executed on 27 March 1905. If he is still alive, he would be 130 years old now, which is impossible. According to my knowledge and the information I gathered from family members, the Defendant died in Hong Kong many years ago already.

7. I have instructed my solicitors to conduct a death search against the Defendant. However, I have been advised by my solicitors that such search did not reveal any result. I am also unable to locate the death certificate of the Defendant, if there is any.

8. I have also instructed my solicitors to conduct a probate search. I have been advised by my solicitors that no grant of administration has been made in regard to the estate of the Defendant. There is also no application for such grant either.

9. I verily believe that I have an interest in the Defendant’s estate. There is now produced and shown to me marked “TYK-4” a diagram showing the relationship between the Defendant and myself. In order to make it easier to read and understand, I do not include the names of the spouses in the diagram. From the diagram, it can be seen that the Defendant is my great-granduncle (uncle of my grandfather).

10. I gathered information from my family members and I verily believe that my father 杜貴牛, my grandfather 杜九容 and my great-grandfather 杜百勝 all died interstate.

11. The son of the Defendant was 杜水喜. But he predeceased the Defendant.

12. My father 杜貴牛 died intestate on 29 July 1996 in the United Kingdom. …………

13. In the circumstances, I verily believe that as a result I have an interest in the Defendant’s estate.”

For ease of reference, a copy of TYK-4 is annexed hereto.

6.  The application was dismissed by the master on the ground that there was no documentary evidence proving the death of the defendant or a court’s order declaring that the defendant had died.

7.  TYK now appeals to this court.

TYK’s submissions

8.  Mr Simon Wong, counsel for TYK, submits that the hurdle which TYK has to overcome in order to succeed in the application is to show that the defendant has died.  Mr Wong submits:-

(a) The absence of direct documentary evidence is not fatal to the application.  There are sufficient materials for the court to come to a view that the defendant has died.  The Block Crown Lease was dated 112 years ago.  It is impossible for the defendant to be alive up to 130 years old.  This is a logical inference.  The court may take judicial notice of the same despite the absence of other documentary evidence of the death.

(b) The order is necessary for the purpose of protecting the defendant’s estate.  If there is no one representing the defendant’s estate in these proceedings, the estate’s interest would be prejudiced.  Allowing the application would unlikely cause injustice to anyone including the defendant’s estate.  Eventually, TYK would still need to apply for letters of administration in order to manage or succeed the defendant’s estate including the Land.

My view

9.  It would certainly be desirable if the defendant’s interest in these proceedings is represented by someone. However, the application is made on the basis that the defendant has passed away, and TYK has an interest in the defendant’s estate.  Allowing the application would mean the court has made a ruling on two issues:-

(a) the defendant has indeed passed away, or at least is presumed to be dead; and

(b) TYK indeed has an interest in the defendant’s estate, including the Land.

These are important issues affecting many interests.  In my view, this court can only rule in favour of TYK on these two issues if there is satisfactory evidence proving the same.

10.  Looking at the evidence now before the court, I am not satisfied that there is satisfactory evidence proving the death of the defendant, or at least the defendant should be presumed to be dead.

(a) In respect of the nature of a block crown lease, in AG v Melhado Investment Ltd. [1983] HKLR 327, Sir Alan Huggins VP said at 328:-

“In 1898 the Crown had concluded the Convention of Peking, under which the area which was to be known as the New Territories was leased to the Crown. It was agreed, inter alia, that the existing inhabitants of the New Territories would not be disappropriated, but their rights had to be fitted into the framework of the British legal system and this was to be done by the grant of Crown leases to those who were able to establish their claims to the satisfaction of a Land Tribunal. To this end a survey was carried out of the entire area and, to avoid the necessity for separate leases to each individual, the device was adopted of the Block Crown lease, which set out in a schedule the name of each "owner" in a particular district, details of his holding and the initial rent which he was required to pay. ……”

(b) Mr Wong submits that the defendant must have attained at least 18 on that date of the Block Crown Lease, ie in 1905.  There are problems in these submissions.  Firstly, the defendant’s name is recorded in the Schedule dated 27 June 1907.  The Schedule was not made in 1905 but was made in 1907.  Secondly, the defendant’s name was put in the Schedule, because when the British government conducted a survey at that time, the defendant was found to be the owner of the Land.  There is no evidence showing that there was any requirement at that time requiring each and every owner recorded in a block crown lease must have attained the age of 18.  In considering whether such a requirement existed in about 1907, the Chinese customary law may well be relevant, as the subject matter is a piece of land in the New Territories.  No evidence on any Chinese customary law has been adduced.  Further, there is no evidence showing that if there was such a requirement in about 1907, the requirement was strictly enforced at that time.

(c) Apart from conducting a death search and probate search in Hong Kong, TYK has not conducted any other enquiries to find out the whereabouts of the defendant and whether the defendant has actually passed away, for example, checking with the family members or the people living on or near the Land to see whether the defendant has emigrated to other countries or places, and if yes, conducting searches in the relevant country or place to find out whether the defendant is still alive.  Further, there is no evidence showing that TYK has checked with anyone to try to find out whether there is any tomb of the defendant at anywhere. There is also no evidence showing whether the To’s family has an ancestral temple (祠堂), and if yes, whether TYK has made any enquiry to find out whether the defendant is one of the deceased ancestors being worshipped in the temple.  All these are reasonable enquiries, and all these have not been done, and there is no explanation as to why these enquiries have not been done.

(d) In order to say that the defendant is presumed to be dead, it is necessary to have evidence showing that the defendant has not been heard of for seven years by those who, if he had been alive, would be likely to have heard of him.  See Phipson on Evidence (18^th Edition), para 6-26.  There is simply no such evidence.

(e) TYK’s suggestion that the defendant must have passed away is solely based upon inferences.  No doubt it is now about 110 years after 1907.  However, the defendant’s exact age in 1907 is unknown.  There are people living beyond 110 in this world.  While the chance of the defendant still being alive is very small, on the basis of the evidence now before the court, I am not satisfied that I can safely reach the conclusion that the defendant must have passed away.

11.  Even if the defendant has passed away, I am not satisfied that it has been proved that TYK is a person having an interest in the defendant’s estate.

(a) As shown in TYK-4, the defendant has a son 杜水喜 (“the Son”).  TYK said in his affirmation that the Son had predeceased the defendant.  I have tremendous difficulties in understanding this.  TYK can only say that the defendant has passed away by inferences, which means that TYK does not have any evidence relating to the defendant’ death, including the date of the defendant’s death.  Further, TYK has not set out the basis upon which he concluded that the Son had passed away.  TYK has also not mentioned the date of the Son’s death.  With all these unknowns, I do not regard TYK’s assertion that the Son has predeceased the defendant as reliable evidence, and I attach no weight to this.

(b) If the defendant is survived by the Son, the defendant’s estate may be succeeded by the Son.  As said in the above, I give no weight to TYK’s evidence in relation to the Son’s death.  In my judgment, there is no satisfactory evidence showing that the Son has passed away.

(c) Even if the Son has predeceased the defendant, it is not known whether the defendant is survived by his wife (“the Wife”).  If yes, the defendant’s estate may be succeeded by the Wife.  In his affirmation, TYK has not mentioned whether the Wife is still alive at all.

(d) The law of succession applicable at the time of the death of each member of the defendant’s family (ie the defendant, the Wife and the Son, assuming that they have passed away) may affect the succession of the Land.  Since the Land is in the New Territories, the relevant law of succession may include the Chinese customary law. 

(e) The time of the death of each member of the defendant’s family is unknown.  The relevant law of succession at each of these material times is also unknown.

(f) The family tree shown in TYK-4 contains 6 generations and many family members.  TYK has not explained through whom and by what instrument (if any) and what law (including what Chinese customary law) he has acquired an interest in the defendant’s estate, including the Land.

(g) With all these unknowns, I am not satisfied that TYK has proved that he has an interest in the defendant’s estate.

(h) TYK bears the burden to prove that he has an interest in the defendant’s estate, including the Land.  On the basis of the evidence before me, for the reasons above, I am of the view that TYK has not discharged this burden.

12.  During the hearing, Mr Wong submits that it would not be necessary for TYK to prove that he actually has an interest in the defendant’s estate.  If TYK has a potential interest in the defendant’s estate, that would be sufficient for the purpose of granting the application.  Mr Wong may be correct if the court can come to the conclusion that the defendant has passed away, and there is a reasonable chance that TYK may have an interest in the defendant’s estate.  However, as said in the above, I am not satisfied that TYK has proved the defendant’s death. Further, as there are many people in the family tree as shown in TYK-4 and for the reasons set out in paragraph 11 above (particularly the complete silence on through whom and by what instrument and what law TYK may have acquired an interest in the defendant’s estate), the reasonable chance claimed by TYK has not been shown.  For these reasons, I am unable to accept Mr Wong’s submissions.

13.  That being the case, the application cannot be allowed and the master has reached a correct conclusion. TYK’s appeal therefore must be dismissed.

Disposition

14.  Although the notice of appeal has been served on the plaintiff, the plaintiff adopts a neutral stance in this appeal and is not present in the appeal hearing. In these circumstances, I am of the view that the appropriate order on costs is no order as to costs.

15.  The appeal is dismissed, with a costs order nisi that there be no order as to costs.

16.  I thank Mr Wong for the assistance provided to the court.