Liu Ying Lan v. Liu Tung Yiu and Another

CACV000279/2002

CACV 279/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 279 OF 2002

(ON APPEAL FROM HCA 6693 OF 1992)

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Coram: Hon Woo JA, Hon Cheung JA and Hon Yeung JA in Court

Dates of Hearing: 16 and 17 January 2003

Date of Judgment: 17 February 2003

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J U D G M E N T

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Hon Cheung JA:

1.This appeal raises a very important question on the inheritance rights of the daughters of an indigenous inhabitant of the New Territories.

The facts

2.Mr. Liu Sau Tseung ("the deceased") was an indigenous inhabitant in Sheung Shui, New Territories. He died in 1943, leaving his widow and two daughters. The widow passed away in August 1987. The two daughters are the plaintiff and the 2nd defendant. They lived in the same village as the deceased and their mother until they were married in 1949 and 1958 respectively and left the village.

3.The deceased had two brothers, namely Hop Cheung and Luk Cheung. Both of them had also passed away. Hop Cheung had three sons. The 1st defendant is the surviving son of Hop Cheung and the nephew of the deceased. Luk Cheung also had two sons, one of them had passed away. The other surviving son is Kuen Yip.

4.The deceased's estate consists simply of a piece of land in Sheung Shui known as Lot No. 1346A in DD52 ("the property"). The property has a house which was the home of the deceased, his wife and the two daughters.

The 1st defendant's claim

5.After the death of the widow, the 1st defendant claimed before the District Officer as the one who was entitled to succeed to the estate of the deceased under section 17 of the New Territories Ordinance.

6.The basis of the application was that since the deceased died without leaving any surviving male descendants, the 1st defendant as the closest male relative of the deceased was entitled to succeed to the deceased's estate according to Chinese law and custom. The deceased belonged to the 18th generation. Whilst the 1st defendant belongs to the 19th generation, the other surviving male descendant of the 19th generation i.e. Kuen Yip had renounced any interests in the deceased's estate in favour of the 1st defendant.

The daughters' claim

7.The plaintiff and the 2nd defendant denied that the 1st defendant is entitled to his claim. They maintained that they as the only surviving issue of the deceased were entitled to his estate.

The District Officer

8.The District Officer took the view that on the basis of the Qing Law on succession, the plaintiff being a daughter of the deceased, had no right to succeed under section 17 of the New Territories Ordinance and that the lawful successor must come from the male line of the descendants of the deceased.

The proceedings

9.The plaintiff issued the present proceedings on 1st October 1992 against the 1st and 2nd defendants seeking a declaration that she and the 2nd defendant are entitled to the estate of the deceased in succession to the deceased. The 2nd defendant was reluctant to become a plaintiff, hence she was joined as a defendant in this case. She appeared in person at the trial but did not take part in the appeal.

The decision

10.The trial came before Deputy High Court Judge Andrew Cheung. He did not grant the relief sought by the plaintiff. Instead, he granted a declaration that "the 1st defendant is not eligible to be adopted as the son of Liu Sau Tseung, deceased posthumously, is not a person who should succeed to (the property) within the meaning of Article 88 Regulation (2) of the Qing Code i.e.《大清律例》, and is not entitled to succeed to the Property".

The appeal

11.The 1st defendant now appeals against the decision. Although the 1st defendant had not raised any counterclaim in the court below and in the notice of appeal he had simply asked for the setting aside of this declaration, Mr. Horace Wong, counsel for the 1st defendant, now seeks a declaration that the 1st defendant is a person who is entitled to succeed to the property.

12.The plaintiff cross-appeals. She maintains that she and the 2nd defendant are entitled to the property in succession to the estate of the deceased. She claims that there is no longer a person who should succeed to the deceased as an heir within the meaning of Article 88(2) of the Qing Code and that there is no longer a person who should succeed or inherit the property within the meaning of Article 88(2) of the Qing Code.

Non-contentions issues

13.In a lengthy and carefully considered judgment, the learned judge had dealt with many issues relating to the application of Chinese law and customs in the New Territories. However, many of these issues are now either being accepted or no longer contested by the parties. The present position is as follows :

(1) Subject to the question of the Adoption Ordinance, the Chinese law on succession is applicable to the estate of the deceased. This is because the deceased died in 1943 and the Intestates Estates Ordinance was not applicable. Further the property was not affected by the introduction of the 1994 New Territories Land (Exemption) Ordinance, Cap. 452 (the "1994 Ordinance").

(2) There is no dispute on the time limitation of posthumous adoption i.e. whether the adoption must be undertaken during the lifetime of the widow of the deceased or whether it can be done after her death. The judge held that posthumous adoption can be effected even after the death of the widow.

(3) No issue is taken on when the household of the deceased would become extinct, namely, whether it would become extinct on his death or on the death of the widow. The judge held that the household became extinct on the death of the widow.

14.I would, for the purpose of this appeal, express no views on the questions of the limitation of posthumous adoption and when a household would become extinct.

The issues

15.The two issues in this appeal are :

1) whether the 1st defendant is someone who is entitled to succeed under the Qing Code and

2) the effect of the Adoption Ordinance on posthumous adoption under customary law.

The New Territories Ordinance

16.The New Territories Ordinance is consisted of two parts. Part I deals with the regulation of the New Territories. Part II deals with land in the New Territories. Land in the New Territories is subject to the provisions of Part II, unless the land had been exempted by the Government under section 7(2). The property is not so exempted. The original section 13 (now section 13(1)) under Part II of the New Territories Ordinance provides that in proceedings in the High Court in relation to land in the New Territories, the court shall have power to recognize and enforce any Chinese custom or customary right affecting land. This provision was interpreted in Tang Kai Chung v. Tang Chik-shang [1970] HKLR 276 to mean that the Court must recognize and enforce Chinese custom and customary rights in such proceedings.

17.The major effect of the 1994 Ordinance is to remove the "non-exempted land" from the provisions of Part II of the New Territories Ordinance for the purpose of entitlement to rural land in succession. Rural land means land in the New Territories being the subject of a government lease of an old schedule lot, village lot, small house holding or similar rural holding : See section 3. The property was not affected by the 1994 Ordinance because of the transitional provisions set out in section 12 of the 1994 Ordinance which enables the Secretary for Home Affairs to continue to exercise his power under section 17 of the New Territories Ordinance (which had been repealed in 1994) in the registration of successors to deceased landholders where no probate had been granted, as if section 17 had not been repealed. It further enables the Court in proceedings concerning the exercise by the Secretary of those powers in relation to that rural land to recognize and enforce any Chinese custom or customary right affecting that rural land under the original section 13.

Chinese law of succession

18.Before I examine the basis of the plaintiff's claim, it is necessary to refer briefly to the concept of succession under the Chinese law. This is a vast area and I will confine myself to some of the more relevant principles for the purpose of this appeal.

(1) Succession under Chinese law means succession to the male line. As a general rule, the eldest son or the eldest son from the principal wife is the heir (嗣) of his father. On the death of his father this heir carries on his father's line. Section 78 of the Qing Code deals with matters of succession. The Lu (律) part of Section 78 imposes penalties for breach of provisions relating to succession. The Li (例) part provides specific details on matters relating to succession, for example, the category of persons entitled to succeed. For the purpose of this appeal, I will refer the paragraphs in the Lu as the "Articles" while those in the Li will be referred as "Regulations".

(2) Succession is not intended to be concerned with inheritance, hence the Lu part makes no provision for inheritance. On the other hand, the Li, apart from dealing with succession, also deals with matters of inheritance as well.

(3) In terms of succession, only the male members of the family are entitled to succeed, females are excluded.

(4) Succession to the male line can be made after the death of the deceased who had died without leaving any male issue.

(5) In terms of succession, the son succeeds the father. Failing sons a legitimate heir is adopted because it is of paramount importance that the line should not be allowed to die out, leaving no one to attend to the family ancestral worship.

(6) When a man dies without leaving a son, in order to ascertain who is entitled to succeed as his heir, Regulation 78(1) provides the order from which the successor is ascertained :

「無子者，許令同宗昭穆相當之姪承繼。先儘同父周親，次及大功小功緦麻。如俱無，方許擇立遠房及同姓為嗣。若立嗣之後，卻生子，其家產與原立子均分。」

" When any person is without male children of his own, one of the same kindred of the next generation may be appointed to continue the succession, beginning with his nephews as being descended from the nearest common ancestor, and then taking collaterals, one, two and three degrees further removed in order, according to the table of the five degrees of mourning. If all these fail, one of the kindred still further removed may be chosen, and finally any one of the same family name. If, after a successor has thus been appointed, a son should be born, the family patrimony shall be equally divided between them." (Translation extracted from Jamieson : Chinese Family and Commercial Law)

(7) A graphic illustration of the category of persons entitled to succeed can be found at page 22 of Jamieson. The successors should come from the same kindred（宗）, namely descendants from a common ancestor who bear the same family name.

(8) The right of a widow to adopt a male to succeed his husband is based on Regulation 78(2) which provides that :

「 婦人夫亡無子守志者，合承夫分，須憑族長擇昭穆相當之人繼嗣。其改嫁者，夫家財產及原有妝奩，並聽前夫之家為主。」

Jamieson's translation of this regulation is as follows :

" A widow left without a son and not remarrying shall be entitled to her husband's share of the family property, and it shall rest with the elders of the Family to select the proper relative, and appoint him to the succession; but in the event of her remarrying, all the property and her marriage outfit shall remain in the family of her deceased husband."

Bernhardt in her book entitled "Women and Property in China, 960-1949" at page 63 referred to the words “憑族長” in Regulation 78(2). She stated that :

" The phrase "ping zuzhang" (i.e. 憑族長) in the regulation, which I translate as "through the agency of the lineage head," has often been misinterpreted in Western scholarship to mean that the widow was to rely on the lineage head to select an heir for her, thus endowing him with the sole authority to designate an heir (e.g., Jamieson 1921: 14; Holmgren 1995: II; Farmer 1995: 93). But as the Daliyuan, China's highest court in the 1910's and 1920's , noted, "ping" here is shorthand for pingzheng or "to serve as a witness for" (DPQ: 266, 272). The fact that a widow needed the consent of the lineage head for her candidate did not mean that she had to surrender all authority in the matter to him."

(9) In respect of inheritance, only the male members are entitled to a share in the family property. The heir does not have any privilege over his brothers. Unmarried daughters are entitled to maintenance until marriage and upon marriage they are entitled to a dowry. Daughters who are already married at the time of the death of their father have no claim to the property at all. There is no dispute by the parties in this case that the last provision is subject to Article 88(2).

(10) Section 87 of the Qing Code deals with the division of the family whilst Section 88 deals with the division of family property.

(11) Under Section 88, the concept of a household (戶) is an important unit for various purposes, including population registration and control, taxation, military organization and deployment and provision of manual labour for imperial duties. In the Chinese family, the father or senior male ascendant has control over his sons, his grandsons and their wives as well as over servants and slaves. The father is vested with the family property and he alone can dispose of it. At his death, his eldest son takes his place and the family goes on as before. It may continue so undivided for several generations and is still deemed a single unit. The father or the head of family alone is capable of conducting the ancestral worship.

See Jamieson; the Strickland Report (October 1948); Report of the Working Group on the New Territories Ordinance (April 1988); Evans, The New Law of Succession in Hong Kong (1973) 3 HKLJ 7.

The basis of the daughters' claim

19.The plaintiff relies on Article 88(2) of the Qing Code. For the purpose of the case, the parties used the annotated Qing Code contained in the typeset edition of the Tu-li ts'un-i compiled by Hsueh Yun-sheng (《讀例存疑重刊本》，薛允升著述) . Hsueh Yun-sheng was the president of the Board of Punishments of the Qing era (刑部尚書).

20.The Chinese version of Article 88(2) reads :

「 戶絕財產，果無同宗應繼之人，所有親女承受。無女者，聽地方官詳明上司，酌撥充公。」

21.Jamieson's translation is as follows :

“ In the event of a family becoming extinct for want of legal successors, the daughters shall be entitled to the property, and if there are no daughters the property shall be forfeited to Government."

22.The working translation adopted by the judge is :

“ When a household becomes extinct, [and] within the same kindred (or lineage) there is indeed no person who should succeed to the property, all the daughters shall inherit [the property]. If there is no daughter, in accordance with [the order of] the local official after making a detailed report to his superior, [the property] shall be forfeited to the Government."

The 1st defendant

23.There is no dispute that the 1st defendant is the nephew of the deceased and under the order of succession he is entitled to succeed to the line of the deceased. Although in the statement of claim, the plaintiff pleaded that

“ the 1st defendant has never been adopted as a son or heir of the deceased. Under Qing Law his status as a mere nephew does not entitle him to succeed to the estate of the deceased. He is therefore not so entitled"

the issue before the learned judge on whether the 1st defendant is entitled to succeed was simply on the basis that since he had already inherited property from his own family, he could no longer be entitled to succeed to the deceased. This is apparent from the transcript of the proceedings and also from the judgment in which the learned judge decided that the 1st defendant is not entitled to succeed on this ground.

24.This is also apparent from the opinion of the two experts of the parties, namely Dr. Hwang King-hung for the plaintiff and Professor Baker for the 1st defendant. Dr. Hwang was of the view that the inheritance by the 1st defendant of his own family property disentitled him to succeed to the deceased. Professor Baker was of the view that the nephew could not normally inherit property both from his father and from his uncle, but in this case the 1st defendant was entitled to succeed to the deceased because there was no culturally viable alternative to his doing so. This is because the deceased's household had ceased to exist by reason of his death and the death of widow, and his property should go to the closest male line of which the deceased is a part and to which the property conceptually belonged, namely the line of his father. The 1st defendant being a part of the male line should therefore succeed to the deceased.

Division of property

25.The 1st defendant together with his two deceased brothers were the registered owner of a piece of land, called Lot No. 552 in DD 51 ("the land"). They acquired the land by way of succession from their father Hop Cheung in 1960. Mr. Wong, counsel for the 1st defendant, argued that there was no division of this land among the 1st defendant and his brothers and the 1st defendant had not inherited any property from his own father. The position can be contrasted with the property of the deceased. He acquired it in 1931 by way of division of property. Mr. Wong submitted that as apparent from the land record, the 1st defendant acquired the land pursuant to section 17 of the New Territories Ordinance, this section merely enables the District Officer to register those who are entitled to succeed to the property. It is not an indication that a division of property had been effected.

26.The question of division had never been an issue between the parties before the judge. The 1st defendant had never claimed that despite the succession in 1960, which was 20 years after the death of his father Hop Cheung, nonetheless, there was no division of property. Had this matter been raised, I have no doubt that expert and factual evidence may well have to be called. Important issues such as whether a division of property would require a written family deed would have to be canvassed if this matter had been raised. In my view, it is now too late to raise this issue and I would refrain from expressing any view on whether there was an actual division both in respect of the law and facts. I will proceed on the basis that there was indeed a division and inheritance by the 1st defendant.

The relevant principles

27.To start with, neither the Lu nor the Li has any express provisions prohibiting a nephew who has inherited his own father's property from succeeding to the uncle. Both experts relied on a passage in Jamieson at page 21. For ease of reference, I have numbered each of the five sentences in that paragraph and also included the possible relevant part of the Qing Code applicable to the statements set out in the individual sentences :

(1) A son once formally adopted passes out of the control of his original family and loses his right of inheritance or his share in that family property.

This is a natural consequence of the adoption although there is no express provision governing the status of an adopted person.

(2) Conversely he acquires the rights of a natural born son in his adopted family and cannot afterwards be expelled except by a judicial proceeding and for good cause shown.

The applicable law may be based on Regulation 78(1) which I have already referred to earlier and also Regulation 78(3) which provides that :

「無子立嗣，除依律外，若繼子不得於所後之親，聽其告官別立。其或擇立賢能及所親愛者，若於昭穆倫序不失，不許宗族指以次序告爭，並官司受理。若義男、女婿所後之親喜悅者，聽其相為依倚，不許繼子並本生父母用計逼逐，仍酌分給財產。若無子之人家貧，聽其賣產自贍。」

" if a successor after being thus appointed cannot harmonize with his adoptive parents, the latter are at liberty to complain to the authorities, and to appoint in his stead some worthy individual for whom they have an affection, but who must, however, be from the proper class as regards the generations of the family. The kindred cannot insist upon their choosing the next in order, and the officials are not to listen to any complaint against them on that account. If natural affection exists between an i-tze （義子）, i.e. son by informal adoption, lit. courtesy child or son-in-law, and the adopting parents, they may mutually assist and support each other, and the legal successor or his parents must not scheme to expel them from the family. Such adopted son or son-in-law shall also be entitled to some share in the division of the property, and may, if the family is poor and without natural-born sons, sell the patrimony for their common support."

(3) If, however, after adoption a son should be born in the adopting family, he loses his right of precedence, and becomes one of the junior members.

The applicable law for this statement is Regulation 78(1).

(4) In that case and failing direct heirs in his original family he may be transferred back and so acquire his original rights.

The applicable law is Article 78(2) which provides that :

「 若養同宗之人為子，所養父母無子（所生父母有子） 而捨去者，杖一百，發付所養父母收管。若（所養父母） 有親生子，及本生父母無子，欲還者，聽。」

" When one has adopted and brought up a child of the same kindred （宗）as his son, he himself having no son, and the natural parents of the child having another son, such child may not desert his adoptive parents. If he does, he shall be liable to be punished with 100 blows and shall be sent back under their control. But if the adopting parents have a son born to them, and the natural parents have no other son and are desirous of taking their child back again, they may do so."

(5) But he cannot in any case inherit in more than one of the families.

The relevant law is Regulation 78(4) :

「凡乞養異姓義子，有情願歸宗者，不許將分得財產，攜回本宗。」

"An adopted son （義子） of a different surname is at liberty, if he chooses, to return to his proper family, but in that case he may not take with him any share of property he may have got from the adoptive family. An adopted foundling under 3 years of age, who may by law assume the name of his adoptor, shall also be entitled to a certain share, but he cannot in any case be successor to the family. In either case, no means may be used to compel adopted children to return to their original families, and if they pretend to do so fraudulently in hope of gain, they shall be punished according to law."

Ambit of Jamieson's statement

28.Mr. Wong submitted that Jamieson was merely describing the prohibition of an adopted son bringing property belonging to his adopted family to his natal family and there is no general prohibition preventing a nephew succeeding to both his own father and his uncle.

29.In my view, what Jamieson said was in general terms and was not confined to the situation of an adopted son bringing property to his natal family. In any event, the judgment proceeded on the basis that such a prohibition exists. Certainly, even the 1st defendant's own expert, Professor Baker, accepted the validity of the statement by Jamieson.

30.In my view, there is a legitimate basis for this prohibition. First, as the plaintiff had argued, there is the matter of loyalty by the adopted son towards his respective families. If someone had actually succeeded to the male line of his own natural family, his responsibility required him to perform the ancestral worship as the head of the male line. It would be extremely awkward for him to relinquish his position as the head of his male line during his own lifetime and cross over to become the heir of another male in the same kindred.

31.Second, a more fundamental objection in my view is based on the concept of family property in ancient China. The land belonging to a male person will be his during his lifetime but it will become "family property" after his death, namely the land will be jointly owned by his male descendants and conceptually attached to his family line. See, for example, Re Estate of Lau Wai Chau [1998] 3 HKC 562 and Jamieson page 3. The property may of course be divided. Jamieson at page 24 described the effect of a division of family property :

" Prior to division, the family is an undivided whole, holding all things in common. The father is nominal owner, but each of the sons has an expectant interest in his share, of which he cannot be deprived. The earnings of every member are brought into a common fund, and no one has a right to compel a partition or to withdraw from the society until it is dissolved by mutual consent or by the natural demise of the head. The division of the property is therefore an important event. It corresponds to the Emancipatio of the Roman law. The sons become sui juris, and thereupon a new set of rights comes into existence. Prior to division a deceased son's estate reverts to the common fund, after division it devolves on his sons or adopted successor according to the general law."

32.When a man who had inherited property from his own family crosses over to the adopted family he will bring this property to the adopted family. While the adopted family may be enriched by this, the man in fact is depriving his own natural male descendants from enjoying their rightful shares of the family property. This is clearly contrary to the concept of family property. The 1st defendant cannot simply say he wishes to be adopted so as to succeed the male line of his uncle without at the same time relinquishes his share of the property of his natal family. No expert evidence was introduced that in a situation such as this the 1st defendant can renounce his entitlement to the property of his natal family.

33.Mr. Wong argued that if the 1st defendant is to succeed the deceased, his own descendants would be brought over to the deceased's line as well. There was also no expert evidence on this point. In my view, considering the concept of family property, it would be extremely odd for someone who had inherited his natural parents' property to be allowed to cross over to another male line together with his own male descendants. This affects the status and rights not merely of the successor but also his own children. In my view this would afford a further reason why such a succession should not be allowed. A reading of the decisions of the Qing judges in publications such as the "Seven Collections of Judgments by Famous Qing Judges" (The "Seven Collections") (《清代名吏判牘七種彙編》) revealed that they had both a strong regard to the law and a pragmatic approach to problems. The problems associated with such a crossing over (both in terms of law and its impact on the two families), would in my view be a further reason to disallow such an adoption.

34.Jamieson at page 28 further stated that :

" The property in every case, whether acquired or inherited, is family property, and it must remain as such. It can only go to persons who are either members of the family by birth or adoption or who are at least quasi members of the family by the informal adoption spoken of. A man cannot in fact in any case divert his property away from the strict line of devolution of which he himself forms one link - the only way in which he can indulge his wishes is in a choice of whom he will introduce. The property never goes to the heir; the heir must come to the property. The line may divide and branch off below him, and in that case the property will divide too, but if the line continues single the property descends entire. "

35.Jamieson at page 28 described the position of an informally adopted son. He stated that :

" The stranger by informal adoption, though he cannot succeed nor change his name, yet must cast in his lot so to speak with the new family if he will take a share in the family property. He cannot wait until his share accrues, and then take it away with him to his original family. If he will go back, he must leave all he got behind him. It need not, however, apparently debar him from accepting a share in the division of his natural Father's estate, provided he will wait till that event takes place. What is meant is that the share from his adoptive Father must not fall into the general estate of his natural Father for redistribution. "

36.Jamieson did not cite any authority for his statement that there is no apparent prohibition against an informally adopted son from accepting a share in the division of his natural father's estate. On first principles if this informally adopted son had no male descendants in his natural family, his acceptance of a share in the division of his natural father's estate would of course have no effect on the question of succession and inheritance by his male descendants. But in a situation such as that in this case, where the 1st defendant had already inherited his father's estate and has his own male descendants in the natural family, obviously the proposed adoption will have a profound effect on the rights of his own descendants.

The case of Kwai Siu Tam (季少覃)

37.The Qing case of Kwai Siu Tam (季少覃), (See The "Seven Collections" at page 27) (《清代名吏判牘七種彙編》，于成龍判牘菁華) is a very useful illustration of the problem of succession and inheritance. In that case, there were five brothers. The eldest one died without leaving a son while each of the second, third and fourth brothers had a son. The fifth brother had two sons. The eldest brother and the fifth brother were men of poverty while the second, third and fourth brothers were jointly operating a business and were rich. Hence the son of the second brother was reluctant to succeed to the male line of his uncle (i.e. the eldest brother). He was also unable to succeed both his uncle and his natural father. Furthermore, if he succeeded his eldest uncle, his own inheritance would be acquired by the son of the third brother who would succeed his natal father (the second brother) in order to maintain the succession left vacant by him after becoming an heir of his eldest uncle. It was proposed that one of the sons of the fifth brother should become the heir of the eldest uncle.

38.The Qing judge 于成龍 (who ultimately became the governor of the Jiangsu and Zhejiang provinces (兩江總督)) ruled that the order of succession must be made in accordance with the law, namely, the son of the second brother should succeed the eldest brother and in turn each of the sons of the third to fifth brothers should cross over and succeed the male line left vacant as a result of the previous succession. The judge, however, devised a scheme whereby the yearly profits of the business operation of the three brothers would be apportioned into five shares so that each of the sons of the brothers who had succeeded to the immediate elder fong would be entitled to a share of the profit.

39.This approach was an attempt to harmonize both the strict requirement of the law and family sentiment. The judge was clearly sceptical that one was merely concerned with succession and not inheritance. The importance of this case shows that once the son of the second brother had been adopted to succeed the eldest brother, he had to forgo his inheritance under his natural family. This clearly confirms the operation of the concept of family property which has to be devolved strictly to the descendants of a particular male line. Otherwise, each of the rich brothers could simply avoid any perceived hardship that might be suffered by his own son by giving him his own family assets before his son was adopted to succeed the elder brother's line. In an indirect way, this shows the fundamental objection to someone succeeding to another line after he has succeeded in his own line already. For this reason alone the 1st defendant, although he is within the category of qualified persons under the kindred order to succeed the deceased, is not entitled to do so.

Anthropological studies

40.In the research carried out by some anthropologists, there were incidences of an adopted child being entitled to a share of his natural family's property. In Marriage and Adoption in China [1845-1945] by Wolf and Huang, it was said that in Taiwan a ke-pang-kia (過房子) was entitled to inherit a share of his natural parents' estate. This is described as ke-pang-kia: ciaq san-bu-lieng (過房子吃雙母乳). See also Wakefield in Fenjia : Household Division and Inheritance in Qing and Republican China.

41.H.C. Wang Liu in The Traditional Chinese Clan Rules conducted a study of the rules made by the clans. She came across a provision in one of rules which stated that :

“ One should not refuse to become the heir of a closely related family because it is poor. He shall be permitted to retain his inheritance in his family by birth. However, heirs adopted by families with property shall not cite this provision as a precedent."

Again, these studies need to be read in the light of what I had said earlier about the adopted son having his own male lines within the natural family.

Tang Cho Sang, Wayne

42.In Tang Cho Sang Wayne also known as Tang Cho (or Tso) Sang v. Chim Siu Wah alias Cham Shiu (or Siu) Wah, Civil Appeal No. 163 of 1995, the issue there was whether the defendant was the adopted son of a deceased. The plaintiff contended that the defendant was never treated as an adopted son by the deceased and was not entitled to a share in the deceased's estate. There was also the issue of whether the defendant had returned to his natural parent and severed his ties with the adopted parents by accepting a share of the natural family's property.

43.Liu J.A. after referring to the passage at pages 28 and 29 of Jamieson stated that the passage does not go far enough to support the proposition that a man informally adopted by another family is not permitted to accept a share of his natural father's estate during the subsistence of his adoption or that if he did so wrongfully, he would be regarded as having left his adoptive family.

44.Patrick Chan J. (as he then was) also held that the succession or acquisition of his natural parents' property could not amount to a return by the defendant to his natural family. He held that :

" There is nothing to prohibit him as a member of the Tang family (i.e. adopted family) from acquiring properties from the Chim family (i.e. the natural family). The Tangs cannot have any valid complaint that he brings other properties into the family."

45.In my view, the above passage would not assist the defendant in this case. The issue there was whether by accepting a share in his natural family the adopted son had severed his links with the adopted family. It was not concerned with the issue with which we are now concerned.

Purpose of the regulation

46.Mr. Wong also referred to Tu-li ts'un-i（《讀例存疑》）page 247 which stated that Regulation 78(4) was enacted to prevent the adopted son from being treacherous by greed (此例為.....義子懷私負恩而設). While this may be so and the regulation may not be strictly applicable to the converse situation, the fundamental objection I have discussed clearly constitutes the basis for disallowing the 1st defendant who had already inherited his father's estate from being adopted.

Kim Tiu marriage

47.The learned judge also referred to the Kim Tiu marriage (兼祧). Jamieson at page 24 dealt with this rule :

“ A son dying young and unmarried as a rule drops out of the genealogy altogether. He has no tablet in the ancestral hall and consequently no successor can be appointed. ...... Another exception to the general rule is the case of two brothers dying leaving only one son between them. In such case with the consent of the Elders in writing the son may be appointed to succeed to both families. But the two lines must not be fused; the two households remain distinct, and he must have a separate wife in each or more properly a wife in one, the first married, and a concubine in the other.¹ The grandsons born in each succeed to the line and patrimony of that particular house and no other."

48.I agreed with the learned judge that this rule supports the general prohibition. Even in a Kim Tiu situation the two male lines have to remain distinct and the descendants in each household succeed to the line and patrimony of that particular house and no other. This clearly illustrates the importance of restricting someone who has inherited his natural parents' estate from being adopted. The problems associated with succession and inheritance in this case would militate against the 1st defendant. He is not someone who is entitled to succeed the deceased because he has inherited his father's estate.

Posthumous adoption is no longer possible

49.However, there is a further reason why the 1st defendant is not entitled to succeed the deceased. Adoption in Hong Kong is provided for in the Adoption Ordinance Cap. 290 ("the 1972 Adoption Ordinance"). Section 25(1) of the 1972 Adoption Ordinance provides that after 31st December 1972 an adoption in Hong Kong may be effected only in accordance with the 1972 Adoption Ordinance. Section 25(2) provides that sub-section (1) shall not affect in any way the status or rights of a person adopted in Hong Kong under Chinese law and custom before 1st January 1973. In my view these two sub-sections clearly preclude posthumous adoption from being carried out in Hong Kong from 1973 onwards. I am fully aware of the implication of this view on Chinese law and custom as applicable in Hong Kong but I have no doubt that this was what the legislature intended. The legislative approach used to continue the Chinese law and custom in certain areas was to enact provisions expressly preserving such rights. The subsequent deletion of these express preservations is the best indication that the legislature no longer wished to continue with the preservation, particularly when it chose to protect only those rights previously acquired under such law and custom.

The contrary view

50.Mr. Wong argued that the 1972 Adoption Ordinance only deals with the adoption of children and is not intended to affect the adoption of an adult posthumously under Chinese law. Further, the posthumous adoption actually only deals with succession and is not an adoption as such.

51.The learned judge held that the 1972 Adoption Ordinance only deals with adoption of an unmarried infant, and it does not apply to any adoption of an adult. He stated that under Chinese customary law, there is no restriction on age or marital status of the potential adoptee and a married adult may be adopted posthumously or otherwise. He referred to Pegg, Family Law in Hong Kong (3rd Edn.) 2802281, Halsbury's Laws of Hong Kong Vol. 12 Para. 180 on 347 and Ngai Chung Shi v. Ngai Yee Mui [1927] HKLR 105. He further referred to paragraph 96(ii) of the Strickland Report which recommended that "It should be declared in the case of posthumous adoption that the consent of the widow of the deceased if surviving is a condition precedent and that if the adopted person is sui juris, his consent is necessary, if not that of his parents or guardian".

My view

52.First of all, posthumous adoption is not confined to adults. Ngai Chung Shi v. Ngai Yee Mui [1927] HKLR 105 is the first reported case on the operation of Section 88 of the Qing Code, although the actual decision is not directly on the issue in this case. In that case, the child that was posthumously adopted was aged 7 at the time of the adoption. Bernhardt at page 2 stated that only an adult son could be his father's patrilineal heir. This does not mean that only an adult can be posthumously adopted. Watson in Agnates and Outsiders : Adoption in a Chinese Lineage ("Man", the Journal of the Royal Anthropological Institute, New Series Vol. 10 [1975]) studied the genealogy of the Man clan in the New Territories. The genealogy listed 237 lineage members who died without an heir to carry on their line (approximately 11% of the total entries). The author stated that

“ it means that sonless males were quite common in lineage history. Unfortunately it is not possible to determine from the genealogy how old these members were when they died. Similarly, the entries do not distinguish between cases of adoption while the adoptive father is still alive and post-mortem adoption in which the son, who may be an adult, is crossed over to continue a branch of the patriline (Nelson 1969:119)."

53.However, irrespective of whether the posthumous adoption is confined to an adult or not, or that its purpose is to effect succession, it is clearly a well-recognized form of adoption. The status of the adopted person changes by reason of the adoption. Posthumous adoption was clearly well known in Hong Kong, see, for example, Li Tang Shi v. Li Wai Kwong and the Attorney General [1969] HKLR 367. The Strickland Report referred specifically to posthumous adoption.

54.I am unable to accept the reasoning of the learned judge that the 1972 Adoption Ordinance does not have any effect on posthumous adoption. The 1972 Adoption Ordinance was first introduced in 1956 ("the 1956 Adoption Ordinance") (Ordinance No. 22 of 1956). It did not follow the specific recommendation by the Strickland Committee. Instead, section 23 of the 1956 Adoption Ordinance provided that

“ Nothing in this Ordinance shall affect any adoption undertaken or to be undertaken under Chinese law and custom but, where any person has been adopted both under such law and custom and under this Ordinance, the provisions of this Ordinance shall prevail".

55.It is accepted that the 1956 Adoption Ordinance was introduced so that only infants could be adopted provided certain conditions were fulfilled. This means that adult adoption was not possible under the Ordinance. However, at the same time, section 23 expressly preserved adoption under Chinese law. This means posthumous adoption of an adult was allowed. Hence the 1956 Adoption Ordinance was the Ordinance which regulated all forms of adoption, including posthumous adoption, in Hong Kong. However, by 1972, the legislature had chosen to delete the old section 23 and replaced it by the new section 25. This can only mean that posthumous adoption, including that of an adult, was abolished from that time onwards. The legislative history and the wording of the new section 25 lead one to this inevitable conclusion.

Comparison with other legislations

56.Mr. Wong submitted that the 1972 Adoption Ordinance was among the package of legislation introduced in 1971 and 1972 to reform the existing law. Among the new ordinances was the Intestates' Estates Ordinance Cap. 73 ("IEO"). Section 12 of the IEO stated that the IEO shall have effect as regards any person dying intestate after its commencement. Section 11 (until its repeal in 1995) expressly provided that the IEO did not affect non-exempted land which was subject to Part II of the New Territories Ordinance and such land shall continue to devolve upon intestacy in like manner as it would have devolved if the IEO had not been passed. This means non-exempt land in the New Territories will be devolved according to the Chinese law of succession. The argument continues that since posthumous adoption is an integral part of Chinese succession, it could not have been intended to be abolished by the 1972 Adoption Ordinance.

57.In my view, the answer lies in the nature of the change. The reform in 1971 and 1972 was wide-ranging. Whilst Chinese law was preserved in succession in the New Territories, it is clear that the legislature intended to abolish certain aspects of Chinese law which affected the status of a person. The 1972 Adoption Ordinance was clearly one which affects the status of a person. Likewise, the status of a married person was also affected by the Marriage Reform Ordinance. Among the change was the abolition of concubines and Kim Tiu marriage from 7th October 1971 onwards (see section 6). In respect of Kim Tiu marriage it expressly preserves the status and rights of a party to such a marriage lawfully contracted before that date and the status for a child under such a marriage. Hence, the preservation of Chinese custom in some other ordinances does not mean that the legislature had not abolished posthumous adoption.

Effect on succession

58.The next question to be considered is what is the effect of this on succession under Chinese law. Annex II of The Report of the Working Group on the New Territories Ordinance ("the Report") published in April 1988 deals specifically with the question of what constitutes Chinese custom and customary right in section 13 of the New Territories Ordinance. Its conclusion was that Chinese law, custom and customary right to be applied in Hong Kong is that "which was prevalent in 1843 in that part of China which comprised the present Territory of Hong Kong, but subject to any diminution of its application consequent upon enactments subsequently passed in Hong Kong or the United Kingdom, and further subject to any changes in such customs or their interpretation as may since have become established". 1843 was the year when the legislature was first established in Hong Kong.

59.This conclusion was clearly supported by authorities. In Wong Kam Ying & Ho Po Chun etc. v. Man Chi Tai [1967] HKLR 201, Huggins J. (as he then was) referred to section 5 of the old Supreme Court Ordinance which was replaced by section 3 of the Application of English Law Ordinance (Cap 88). He held that the section had always been interpreted as preserving to the Chinese inhabitants of Hong Kong parts of the Chinese customary law. He further stated that,

“ one merely looks to 1843 to ascertain the applicability of the customary law and the basic rules as they then existed and thereafter one applies those rules subject to such developments as may have taken place since that date."

60.I agree with the view of the Report that the "developments" that was referred to above were,

" such developments in legislation as would have the effect of making Chinese customary law inapplicable under the terms of the Application of English Law Ordinance Cap. 88 (and now the Application of English Law Ordinance 1966, Cap. 88 ss, 3 & 4)."

61.The Application of English Law Ordinance is no longer part of the laws of Hong Kong after 1st July 1997 : see the decision of the Standing Committee of the National People's Congress on Treatment of the Laws previously enforced in Hong Kong in accordance with Article 160 of the Basic Law of the Hong Kong Special Administrative Region of People's Republic of China (Laws of Hong Kong, Vol. 1 page 13/1). However, the principle stated in Wong Kam Ying is obviously not disturbed by the change after 1997.

62.The Report further referred to the case of Wong Ying Kuen v. Wong Yu Shi and others, Miscellaneous Proceeding No. 19 of 1956 (Decision dated 25 July 1969). Briggs J. (as he then was) stated :

" ... the correct law to apply is the Ching law and custom as it existed in 1843 with such modifications in custom and in the interpretation in the law as have taken place in Hong Kong since that period. The Hong Kong legislature reserved Chinese law and custom to Hong Kong in 1843 and I do not see how changes in the law made in another country whether by legislation of interpretation of the code can affect Hong Kong.

The law is continuously interpreted in the light of existing circumstances. Any such gloss on Ching law which has occurred in Hong Kong since 1843 must be accepted and followed. Similarly, custom becomes modified throughout the years and due regard must be paid to any such change that has occurred in custom in Hong Kong. "

63.These cases clearly illustrated the point that one must take into account development in Hong Kong in the application of Chinese law and custom. This theme was in fact further elaborated by the Privy Council in the well-known case of Wu Koon Tai and another v. Wu Yau Loi [1996] 2 HKLR 477 where it was stated that :

“ It is plain that, after the Peking Convention, the whole system of land tenure in the New Territories was fundamentally altered. Leases from the Crown were substituted for old titles under the pre-existing law. A system for deducing title to such leases was imposed, dependent upon the registration of deeds. To allow the old customary land law to cut across and to trump the new system would be to defeat its whole purpose."

64.That case was concerned with a piece of land in the New Territories, previously registered in name of the father ("the father"). After the death of the father, his son ("the son") succeeded his estate under Chinese law of succession. However, the son was not registered as the successor under section 17 of the New Territories Ordinance. The son sold the property to a purchaser in 1934. On the death of the son, his own son i.e. the grandson succeeded to the estate of the son and was registered as the successor to the father. The defendant became the successor to the grandson's estate and was registered under section 17 as the successor to the land. The Privy Council held that :

“ In their Lordships' view, the devolution of title to land in the New Territories, whether by inter vivos transaction or on death, is regulated by the registration system and the general law of Hong Kong. It follows that in the present case title to the land was never vested in the son since, although entitled to be registered as successor to the father, the son was never in fact so registered. It follows that the son cannot have transferred title to the purchaser by the 1934 document. The title to the land was vested by virtue of s.17 directly in the grandson when, in 1951, he was registered as successor to the father. The title to the land is now vested in the defendant."

65.That case is the best illustration of how Chinese law and custom is affected by a subsequent Hong Kong legislation. Such a legislation actually alters the substance of a Chinese law and custom. Likewise, in the present case, if it is no longer possible to have a valid posthumous adoption which is the pre-requisite for those who are entitled to succeed the deceased to actually becoming his successor, then it can only mean that there is no longer any person who can succeed the deceased.

66.Mr. Wong submitted that even if the 1st defendant is not entitled to succeed, it does not mean the plaintiff and the 2nd defendant are entitled to succeed. If they are not entitled to succeed, then the property had to go to the government. The basis of the submission is that the Court should not "marry" the concept of succession under Chinese law and the restriction imposed by the 1972 Adoption Ordinance. He referred to Re Estate of Lau Wai Chau [1998] 3 HKC 562 (decision of the Court of First Instance); [1999] 2 HKC 63 (decision of the Court of Appeal) and [2000] 3 HKCFAR 98 (decision of the Court of Final Appeal).

67.In my view the situation in Re Estate of Lau Wai Chau was clearly different from the present case. The argument that was advanced there was that an ancestral worship trust which could not be established by Chinese law on the death of the ancestor could be established under Hong Kong law by reason of the testamentary capacity of a Chinese person and also under the concept of trust. This argument was rejected by the courts at different levels. In the present case, there is no question of "marrying" two distinct concepts. The sole issue is the effect of a subsequent Hong Kong legislation on Chinese law. By reason of section 25 of the 1972 Adoption Ordinance those male members of the Liu family who are qualified under the kindred order of succession simply can no longer succeed the deceased because it is no longer possible to have a legally recognized posthumous adoption. For all intents and purposes, the household of the deceased had become extinct and there is no person who could succeed the deceased.

The daughters are entitled to the property

68.In the circumstances, the plaintiff and her sister must clearly be entitled under Article 88(2) to the property of the deceased.

69.The learned judge was concerned that the plaintiff was seeking a general declaration and yet the only party before the Court was the 1st defendant. The other male descendants are not parties to this case. In my view, the learned judge was being over cautious. Sixty years had passed since the death of the deceased. Apart from the 1st defendant no one from the Liu clan had come forward and made a claim to succeed the deceased. After the present proceedings was commenced in 1992, no member had applied to be joined as a co-defendant. But most important of all, whatever rights the other members may have under customary law, they are no longer entitled to succeed the deceased.

70.In my view, the plaintiff is clearly entitled to her declaration and to grant a declaration in any other form will only create uncertainties not only between the parties, but also among other interested parties and the District Office.

Conclusion

71.In the circumstances, the appeal of the 1st defendant must be dismissed and the cross-appeal of the plaintiff must be allowed. Accordingly, I will set aside the order of the learned judge and in its place I will grant the following orders :

1) a declaration that there is no longer a person who is entitled to succeed the deceased as an heir within the meaning of Article 88(2) of the Qing Code.

2) the plaintiff and the 2nd defendant are entitled to inherit the property of the deceased.

3) the plaintiff is to have the costs nisi of the appeal and of the proceedings below against the 1st defendant. There will be no order of costs between the plaintiff and the 2nd defendant. The plaintiff's own costs be taxed in accordance with Legal Aid Regulations.

Hon Yeung JA:

72.I agree with the judgment of Cheung JA.

Hon Woo JA:

73.I have had the advantage of reading the judgment of Cheung JA in draft and I entirely agree with the conclusions he has reached and the reasons he has given.

74.This Court therefore dismisses the appeal and allows the cross-appeal and makes the orders as proposed by Cheung JA in para. 71 above.

Representation:

Mr. Sze Kin instructed by M/s Chan & Chuk for the plaintiff

Mr. Horace Wong and Mr. Wallace Cheung instructed by M/s Vincent T.K. Cheung, Yap & Co. for the 1st defendant

2nd defendant, in person, absent

1 See Wade's Documentary Series, Han Wen Ch'i, paper No. 71. Edict of Chia Ch'ing.