Yap Sui Kong v. Yip Fong Tim
Read the full judgment text of HCA 1409/2013 on BabelCite. This High Court CFI judgment was delivered on 31 July 2017.
1. The plaintiff commenced this action in July 2013. Essentially the claim is that certain land lots in an indigenous village in Sha Tau Kok (respectively “ the subject land lots ” and “ the subject village ”) should be inherited, in accordance with customary Chinese law, by the plaintiff (and several others he claims to also represent) and should not be inherited by the defendant (alternatively, one-half of the subject land lots (see para 41 below)).
Cites 5 cases
|
HCA 1409/2013 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE HIGH COURT ACTION NO 1409 OF 2013 ____________
____________
_______________ J U D G M E N T _______________ Introduction 1.The plaintiff commenced this action in July 2013. Essentially the claim is that certain land lots in an indigenous village in Sha Tau Kok (respectively “the subject land lots” and “the subject village”) should be inherited, in accordance with customary Chinese law, by the plaintiff (and several others he claims to also represent) and should not be inherited by the defendant (alternatively, one-half of the subject land lots (see para 41 below)). 2.Both the plaintiff and the defendant claim inheritance of the subject land lots through their ancestors, especially their respective fathers. It is the plaintiff’s case (denied by the defendant) that the defendant’s late father was not an indigenous villager of the subject village. 3.By reason of the matters above, the important events (some of which are factually in dispute) would include:
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. Background 5.The history probably should start with the great grandfather. The great grandfather has several sons, including Mr Ip Kut Yee and Ip Kut Lung. It is the plaintiff’s case Mr Ip Kut Yee was the plaintiff’s grandfather (“P’s grandfather”). P’s grandfather has two sons: Ip Cheung Chun and P’s father. 6.As stated above, the subject village is located in Sha Tau Kok. It is also the plaintiff’s case P’s father emigrated to Malaysia in the 1934. The plaintiff was born there in August 1956 and has been residing there since. 7.On the defendant’s part, his case is that he belongs to Ip Kut Lung’s line of descendants. As stated above, D’s father emigrated to Britain when the defendant was very young. The defendant himself went to Britain to join his father when he was 15 years old (more than 40 years before trial; that is, around 1970). 8.The rest of the relevant history, especially that related to the succession to the subject land lots, has been summarized in para 3(h) to (l) (especially para 3(h)) above. Main issue 9.The main dispute has been conveniently set out in the parties’ respective opening submissions:
Important documents 10.The approach adopted by the courts for assessing credibility has been set out in my earlier decisions. The relevant passages are repeated below to facilitate comprehension:
(Star Glory Investment Ltd v Kai Tuo (HK) Technology Co Ltd and Others, HCA 3523/2002 (13 August 2005), para 12) The same approach will be adopted in this action. 11.In view of:
several documents are important:
12.There is also a genealogy which was compiled in about 2014 (“the 2014 genealogy”). This document was prepared taking into account the information given, and claims made, by the plaintiff in 2012 when he approached and met the village elders of the subject village shortly beforehand. Quite possibly, the plaintiff already intended to assert the claim herein when the 2014 genealogy was prepared. Witnesses’ credibility 13.The following witnesses testified at trial (unless otherwise stated, they are all related to the subject village):
14.Of the 9 plaintiff witnesses, 4 were in their teenage in 1947 (when D’s father was said to arrive at the subject village) (see para 13(c) to (f) above) (the youngest two were about 14 and the oldest was about 17). The other witnesses were not born yet. 15.According to the witnesses who were in their teenage, D’s father was “adopted” by the wife of the deceased Ip Kut Lung. The time and manner of the “adoption” was unclear. One witness describes it as “2 or 3 years after [D’s father] began to work at [the subject village]” (that is, 2 or 3 years after 1947). Another did not mention the time of the “adoption” at all. Still another said that D’s father arrived at the subject village when he was about 27 or 28 years old (in 1946 or 1947?) (para 11(1) above), and was “adopted” after he turned 30 (after 1949?) (para 11(1) above). Finally, a witness who admittedly was staying in Kowloon from 1947 to 1950, and in Guangzhou from 1950 to 1958, claimed that he also knew about the “adoption” of D’s father but without giving any details. 16.The other plaintiff witnesses were not even born in 1947. And admittedly their knowledge of the alleged “adoption” of D’s father was hearsay in nature. When they testified to the event, they were in effect recalling something which took place about half a century ago, and the lack of detail and particularity of their testimony clearly demonstrates the origin of their purported knowledge. 17.But merely because witnesses were testifying to events which:
does not by itself lead to their testimony being unreliable, or even untruthful. 18.There are, however, several matters (which are not, or cannot properly be, disputed) which render D’s father being an “adopted” child (or, to put it in another way, D’s father being the same person as Chiu Loi (if Chiu Loi in fact existed)) inherently quite implausible. 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). 21.Similar reasons apply to the 2002 genealogy. Some plaintiff witnesses testified to the effect that:
It must be borne in mind a genealogy of an indigenous village is not a document of pure academic interest. Instead, it has legal, and often also pecuniary, effect because a male indigenous villager’s entitlement to properties distributable by the indigenous village (especially land lots, if any) will depend on the number of male descendants recognized by the genealogy (because the male descendants have their shares in the same “pot”). It is thus unlikely for an “adopted” child to be narrated in a genealogy as if he were a lawful natural child (particularly so where the “adoption” was supposedly well known to most of the villagers). 22.With this in mind, it is unlikely for a genealogy to make major mistake(s) as to who should be included (and who should not be); less still would it be likely the document was casually compiled. The provisions of the New Territories Ordinance (Cap 97) appear to assume that the managers of clans, families or t’ongs can be relied on as having sufficient knowledge and integrity to determine certain matters (see, for example, s 15, Cap 97; managers of clans, families or t’ongs are commonly the respected and knowledgeable elders of the indigenous villages). 23.In this connection, by 2002 (the 2002 genealogy), it is noted that even land lots in Sha Tau Kok would be more valuable than the same land lots in the 1960’s or 1980’s. 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. 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. 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). 27.As regards the plaintiff’s own entitlement to succession (of any part of the subject land lots), the defendant submits that the evidence adduced by the plaintiff is far from satisfactory and should not be relied upon. 28.When P’s father (allegedly) emigrated to Malaysia in 1934, he was aged 19. Only 4 out of the 9 plaintiff witnesses were already born then (para 13(c) to (f) above); they were respectively aged 2, 1, 1 and 4); the other witnesses were not born yet. When P’s father visited the subject village in 1966, he was aged 51. The eldest of the 9 plaintiff witnesses was aged 36 (para 13(f) above) and the youngest was aged 2 (para 13(i) above); more specifically, 4 were in their 30s (para 13(c) to (f) above), 3 were in early teens (para 13(a), (b) and (h) above), one was aged 16 (para 13(g) above) and one was aged 2 (para 13(i) above). 29.Because of the age difference between him and the plaintiff witnesses in 1966, it is unlikely P’s father made friends with any of them during his 2-week visit (and none claimed so). It is doubtful if any of the plaintiff witnesses knew him well. None of these witnesses appear to be able to reliably remember (if at all) how Ip Wan Fook looked like when he left in 1934. 30.The documents provided by the plaintiff to establish connection of himself and P’s father to the villagers of the subject village are (as stated above):
31.Strangely, the Malaysian ID card (with what appears to be a date: 3 September 1965) appears to belong to a gentleman known as Yap Fook, rather than P’s father, Ip Wan Fook. P’s grandfather should be called Ip Kut Yee, but Yap Fook’s father was said to be Yap Git Yee. While it can be argued the above names are phonetically similar, Yap Fook’s place of birth shown thereon (namely, China) cannot be satisfactorily explained. It is inherent in the plaintiff’s case that the birth place of P’s father was the subject village, which was part of Hong Kong at the time (a British colony). 32.The fact that, at the time, Britain, Malaysia and Hong Kong were all parts of the British Commonwealth of Nations renders it rather unlikely for the issuing officials of the Malaysian ID card to mistake Hong Kong as part of China in 1965. 33.In addition, P’s father has not left any document which can reliably show his entitlement to succeed any of the subject land lots (not even (such as) a will, or a letter or statement). 34.The plaintiff relies on a document headed “Application for Succession to Estates” dated 30 May 1968 in support of his case. However, this document can at most show that the great grandfather has had four sons, two of which were Ip Kut Lung and Ip Kut Yee. It still cannot establish a blood relation between Ip Kut Yee and Yap Fook (or even Ip Wan Fook). 35.With the above in mind:
36.In so concluding, I have also borne in mind the approach disapproved by the decision in The Popi M [1985] 1 WLR 948 (see also Ide v ATB Sales Ltd [2008] EWCA Civ 424 (28 April 2008)), para 1 to 6; Datec Electronic Holdings Ltd and Others v UPS Ltd [2007] 1 WLR 1325, para 46 to 50). The impermissible approach was described in the ATB Sales judgment as follows:
Findings of fact 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:
38.There is no (or insufficient) reliable evidence as to whether:
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). 40.In view of the above findings, it is unnecessary to consider the expert evidence (which deals with what amounted to a valid adoption pursuant to Chinese customary law). Suffice it to say the expert evidence is undisputed, and in effect opines that the “adoption” process as described by some of the plaintiff witnesses is and was invalid. Conclusion 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. Other matters 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. Costs order 45.The parties agree that costs should follow the event. There will accordingly be a costs order that the costs of this action (including any reserved costs) be paid by the plaintiff to the defendant, to be taxed if not agreed.
Mr Thomas Lai, instructed by Leung Kin & Co, for the plaintiff Mr P K Chan, instructed by T H Wong & Co, for the defendant | ||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under HCA 1409/2013