RE CHAN LAI FONG

HCMP2988/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.2988 OF 2003

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J U D G M E N T

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1. The seven applicants are children of one Yam Wai Cho, alias Yam Yuen Hong and Madam Lai Wan Chee, who got married in 1917 in Hong Kong according to Chinese rites and custom. (In fact they had three other daughters who had died much later between 1979 and 1988.) Madam Lai herself died in Hong Kong in 1940. A year later Mr Yam Sr married Madam Chan Lai Fong ("the Deceased") according to Chinese rites and custom. Madam Chan, the Deceased, therefore became the tin fong of Mr Yam Sr. The 10 children were at that time 18 years to 1 year old.

2. The Deceased had never given birth to any child and ever since then she had been living with the 10 children and brought them up. She was a full-time housewife taking care of the children before they grew up. It is fair to infer that her properties came basically from Mr Yam Sr and later the children when they grew up.

3. After all the children got married, they still supported and maintained the living of both their father and their stepmother, the Deceased. Since the death of the applicants' father in 1970, the Deceased's living had also been supported and maintained by the children. She received a sum of about $300 to $450 per month from each male and a sum of $500 to $600 on every Chinese festival and Chinese new year by all the children as gift until her death in 2001.

4. In other words, all along the applicants have been treated by Madam Chan as her children and she had been treated as their mother in all aspects.

5. The question before the court now is whether the seven applicants were the children of Madam Chan and, in particular, for the purposes of the Intestates' Estates Ordinance, Cap.73 ("the IEO").

6. In answering the aforesaid question, I have the diligent assistance of counsel for the respondent, Mr Westley Wong, GC appearing for the Secretary for Justice. The respondent was joined by the applicants after the 1st hearing of their ex parte application at my suggestion¹.

7. It is common ground between the parties that the old section 2(2)(b) of the Ordinance before its repealed in 1995 could have been relied on by the applicants. It provided as follows :

" References in this Ordinance to a child or issue of any person shall include -

....

(b) if that person is a female, a child of a valid marriage to which her last husband and another female were parties; and (Amended 49 of 1971 s. 2) ...."

8. It is quite clear from the old section 2(2)(b) that it only applied to women and not to men. This section was repealed in 1995 and it has been the subject of judicial consideration pronouncing that :

".... the section was removed .... as it was considered that the provision was discriminatory in nature."

(In re the estate of Fong Iong, unreported, HCMP No.6014 of 2001 - per Chu J at pages 4P-5B.)

9. Mr Wong for the respondent submitted that this is precisely the reason why the Law Reform Commission ("LRC") advocated its repeal. In its report titled "Law of Wills, Intestate Succession and Provision for Deceased Persons' Families and Dependants" a number of inconsistencies and anomalies have been identified to have emerged over the years. The Commission was benefited from "an informed and highly critical article" from a former Registrar General, Mr W.K. Thomson and his subsequent comments in his article "Some Hazards of Intestacy", SCMP, 20 April 1976. The Commission was of the view that the operation of section 2(2)(b) in particular could give rise to anomalies and quite unexpected injustices before recommending its repeal (see the Commission Report at paras. 1.2 and 9.4 to 9.11).

10. Although the respondent is unable to place any record before this court showing why the option of applying the same principle of succession to the situation of a stepfather as well as a stepmother was not adopted, nonetheless it was submitted that it appears that such an approach would not be able to remove the anomalies and injustices as identified by Mr Thomson. There was also no elaboration here as to why the equal opportunity between two sexes could not be achieved to include the stepfather or why the inclusion of the stepfather would not be able to remove the anomalies and injustices but the exclusion of the stepmother would achieve the end of justice instead. This is a question for the Equal Opportunity Commission to explore further.

11. Be that as it may, the Commission's recommendation was adopted by the Administration when promoting the 1995 amendment bill in order to bring the law of succession "into line with current day community expectations and to remedy various legal inconsistencies and anomalies that had emerged over the years" (see the LegCo Brief for the Intestates' Estates (Amendment) Bill 1994 etc., paras. 3 and 41, and the Speech of the Secretary for Home Affairs during second reading of the 1994 Bill, Hong Kong Hansard (6 July 1994) at page 5118). That is the clear declared intention of the amendments and in case of ambiguities and uncertainty, this court can refer to the declared intention of the amendment bill.

12. Further, the LegCo Brief (under the heading of "Financial and Staffing Implications" at para. 43 on pages 14 and 15) suggested that potential increase in litigation was one consideration before the 1994 Bill was gazatted as any additional workload was expected to be met with and within the global allocation for the policy area of the Judiciary.

13. In the end, the 1994 Bill followed precisely the same wordings as recommended by the LRC as can be seen in the Intestates' Estates(Amendment) Bill 1994 and the Annexure 7 to the LRC Report on Topic 19.

14. Thus, in the end, Mr Wong for the respondent submitted that the 1995 repeal of section 2(2)(b) does not allow room for the applicants to argue that they should nevertheless be regarded by law as "issues" or "children" of the Deceased for the purpose of the Ordinance as it now stands. It was further submitted that the legislative intent is all too clear that only a natural born child is to be regarded as an "issue" unless otherwise provided expressly, and this is so even though there is a want of a statutory definition for the words "issue" and "child".

15. Counsel for the respondent further referred to the deliberation of the Bills Committee established to consider the 1994 Bill and submitted that it was clear that such anomalies and injustices were removed by "allowing only issue from natural parents to beneficial interests" (see the report of the Bills Committee to study the Intestates' Estates (Amendment) Bill 1994 etc., para. 30 and Appendices 3 and 162).

16. The respondent further submitted that the applicants could not rely on Chinese customary law to suggest that the applicants were the children of the Deceased. Further, there was no "acquired right" for the purpose of section 23(c) of the Interpretation and General Clauses Ordinance, Cap.1 before the 1995 amendment had come into effect.

17. Since the applicants do not rely heavily on Chinese customary law and acquired right as such, I do not want to consider in detail the applicants' entitlement thereunder.

18. Mr Simon Lam, counsel for the applicants, however submitted that in the Ordinance as amended, there is no definition of child or issue of an intestate deceased, although in the present section 2 it is stipulated that under certain circumstances it is deemed to be a child of the Deceased and they are as follows :

" (2) For the purposes of this Ordinance, a person adopted under-

(a) an adoption order made under the Adoption Ordinance (Cap.290);

(b) an adoption to which section 17 of that Ordinance applies; or

(c) an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973,

shall be treated as the child of the adopter, and not as the child of any other person, and all relationships to the adopted person shall be deduced accordingly. (Replaced 57 of 1995 s. 2)"

However, those certain circumstances are not exhaustive of the category of a child.

19. In approaching the interpretation of the words "child" and "issue", Mr Lam for the applicants submitted and cited para. 1392 of the Halsbury Laws of England, Vol. 44(1), 4th edn as follows :

"Commonsense construction rule. It is a rule of the common law, which may be referred to as the commonsense construction rule, that when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, the court should presume that the legislator intended common sense to be used in construing the enactment."

20. Further, in para. 1442 it was said that :

"Law should be just and fair. It is a principle of legal policy that law should be just and fair, and that court decisions should further the ends of justice. The court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle. The court should therefore strive to avoid adopting a construction that leads to injustice or unfairness. Ideas of what is just and fair vary over time and between persons; nevertheless the courts are always concerned to see that there is not a failure of justice and that the well of justice remains clear; so the literal meaning of an enactment may be disregarded if it produces an unjust result. Sometimes injustice to someone will arise whichever way the decision goes, and here the court must, as usual, carry out a balancing exercise. The courts nowadays frequently use the concept of fairness as the standard of just treatment. ....

In order to promote justice, construction by the equity, or the extension of remedial statutes to cases which were not covered by their words but were thought to be within the mischief against which they were aimed, used to be common in the case of old statutes if the words of the statutes were not plainly against such a construction. This method of construction, however, is not now favoured by the courts and it has not been applied to modern Acts. Similarly, the courts have in the past given equitable relief from provisions of old statutes by seeking special exceptions from the clear terms of their provisions, but this has not been done in the case of modern Acts, which are framed with a view to equitable as well as legal principles."

21. Accordingly, Mr Lam for the applicants submitted that whether a person falls within the meaning of a child of a deceased has to be looked at from the basics of ethics, common sense, fairness and justice. However, Mr Lam in applying section 5 to the case of the applicants and in answering to the question of whether the applicants fall within the category of "children" under section 5, he submitted that they should include "any person brought up by the deceased before the person reached majority and that the person and the deceased had been treating their relationship as mother and son/daughter, both within the family and in dealing with people outside the family". I am afraid this is too wide an inclusion under section 5 and a floodgate will be opened if this submission is accepted by the court. In any event, the applicants do not need such a wide definition to come within the definition of "children" under section 5.

22. In my view, the applicants in submitting that they are the children of the intestate deceased mother, could gain support in the LRC Report, para. 9.11. It was said therein that :

"9.11 We recommend that section 2 of the Ordinance be amended to correct these anomalies as follows -

(1) Section 2(2) to be repealed. As this entails the repeal of section 2(2)(b), the outcome in Mr. Thomson's examples will no longer offend all concepts of fairness. Hence in case 3 D will inherit to the exclusion of B and in case 6 S will inherit to the exclusion of C."

23. Case 3 was set out in Mr Thomson's article as follows :

"W, a spinster, marries H who has a year old daughter D by his former wife. W, who never has a child of her own, brings D up as if she were her own child. Twenty years later, H dies and after a decent interval W marries NH who has a son B aged 30 living in Australia. Soon after, both W and NH are killed in a car accident, W having survived NH by one hour.

B inherits W's estate to the exclusion of D, who as things turned out was disinherited by W's marriage to NH, since on that marriage NH became W's last husband and therefore section 2(2)(b) no longer applied to D."

24. Accordingly, if after the old section 2(2)(b) was repealed, the outcome would be that under the said Case 3, D will inherit to the exclusion of B, one would immediately ask why that would be the case when D was in any event not the natural child of W. The only salient point of D having a priority and over B is that D was brought up by W herself albeit D was only a year old daughter of H born by his former wife, whereas B was already aged 30, living elsewhere when W married NH after H's death. In other words, the aforesaid deliberation of the Bills Committee, established to consider the 1994 Bill as mentioned hereinbefore, which was said to allow only issue from natural parents to beneficial interest, would be in direct conflict with the LRC Report in Case 3. In Case 3, D was taken to be the child of the deceased W whilst B as a stepson who was never brought up by W was excluded. By applying the common law principles of interpretation, and looking at from the basics of ethics, common sense, fairness and justice, D was taken to be the child of W whereas B was not.

25. By the same token, the applicants should fall within the definition of "children" under the IEO.

26. A fortiori the deceased intestate Madam Chan was the tin fong of the applicants' natural father. The word "tin" in the name of tin fong (田房or填房) has a double meaning. It means "field" or "filling". The former denotes the standing of this wife in having a share in the property of the husband or the family whereas the latter denotes that she is supposed to fill in the post or the vacancy left behind by the former wife, deceased. In that case, she became, for all intents and purposes, the wife of the husband and also the mother of all children born by the previous wife who had died.

27. This is not bringing the Chinese customary law into effect since the 1970 Ordinance by section 4(1) intended "a total abrogation of the pre-existing law, both as it affects Chinese and non-Chinese, with an exception in respect of the devolution of land in the New Territories [see section 11]" by "closely reflecting [the law] of England" subject to local variations as specifically stipulated in the Ordinance (see D.M. Emrys Evans, "The New Law of Succession" (1973) 3 HKLJ 7 at 11-12, 19 and 21 with emphasis added, as submitted by Mr Wong for the respondent). However the same result could be reached by another route and that is interpreting the Ordinance as I have said hereinbefore, by looking at the situation from the basics of ethics, common sense, fairness and justice. The circumstances of the applicants in this Chinese family would enable them to fall squarely into the category of "children" for the purpose of IEO.

28. Put it in another way, if the applicants are not regarded as the children of the intestate deceased, borrowing the words of the LRC, it will offend all concepts of fairness, and such a construction of "children" under the Ordinance will lead to absurdity. It is therefore just an incident of interpreting the Ordinance in accordance with "the legislative intention to achieve justice and fairness" or in line with the "current day community expectation" as mentioned hereinbefore. Even in the old provision of the Application of English Law Ordinance, English common law and equity would be applied in Hong Kong only "in so far as they are applicable to the inhabitants in Hong Kong".

29. Further, the respondent also accepts that what the then Acting Attorney General said in promoting the 1971 Ordinance in relation to section 4(9) of Cap.73 should have equal application to such reforms on the law of intestacy as the 1995 repeal, namely that "the intention .... is not to enrich the Crown by increasing the chances of such estates becoming the property of the Crown by bona vacatia...." (see the speech of Acting Attorney General during the second reading of the Intestates' Estates Bill 1970, Hong Kong Hansard, 16 December 1970, at page 265).

30. In the end I find that the applicants are the de facto and therefore de jure children of the deceased stepmother in the circumstances of the case. It will be stretching Chinese customary law too much to include them as persons adopted by Madam Chan in accordance with Chinese law and custom before 1 January 1973 as provided in the new section 2(2) of the Ordinance. As far as I understand there is no necessity for the tin fong to formally adopt children of the former deceased wife. Once she was married into the family as a tin fong, she would immediately "fill up" the vacancy left behind by the former wife and she would become the mother of all these children without any ceremony of adoption to be done in accordance with Chinese customary law.

31. In conclusion, I consider that my interpretation would fully agree with the LRC's recommendation which was adopted in the 1995 repeal amendments in order to bring the law "in line with current day community expectations and to remedy various legal inconsistencies and anomalies that had emerged over the years". In my view, the legislation would never have intended to create absurdity by disentitling persons, like the applicants in this action, to inherit the estates of their deceased stepmother in the circumstances of this case.

32. As a caveat, I would like to state that my decision herein is restricted to the particular circumstances of the applicants herein and is not intended to apply generally in other circumstances. Each case must be decided on its own facts.

33. Accordingly, there shall be a declaration to the effect that the seven applicants are the issues and children of Chan Lai Fong, deceased for the purpose of IEO.

34. In respect of costs, as I have said before, the Secretary for Justice has promptly appeared as the respondent and her capacity was to assist the court rather than a contentious litigant. I am in fact grateful to Mr Wong, appearing for the respondent, for his clear and in-depth submissions. His appearance was in a sense acting as amicus curiae. Accordingly, I think it is fair that there shall be an order nisi that there shall be no order as to costs.

1 It has been reported in some of the newspapers that this court "has taught" the applicants to sue the Secretary for Justice and the same was brought to my attention by our Information Officer. We usually ignore sensational misquotation in the press reports. But as a matter of education for the general public, the respondent was not sued by the applicants. She was only joined as a respondent for the assistance of the court. Otherwise the court in an ex parte application would only be presented by an one-sided version. I must say in this case enormous assistance has been rendered by the Department of Justice in respect of the background and history of the new IEO provision.