Read the full judgment text of CACV 000279/2002 on BabelCite. This Court of Appeal judgment was delivered on 17 February 2003 before Woo JA, Cheung JA and Yeung JA.
Inheritance – New Territories – indigenous inhabitant – Chinese law and custom – application of Qing Code to succession of rural land in the New Territories – whether a nephew who has already inherited his own father's estate can succeed to his deceased uncle's estate – concept of family property under ancient Chinese law – Jamieson's principle that a person cannot inherit in more than one family – Regulation 78(4) of the Qing Code – Kim Tiu marriage (兼祧) – Qing case of Kwai Siu Tam (季少覃) – Tang Cho Sang Wayne v. Chim Siu Wah – held, the 1st defendant is not entitled to succeed the deceased because he had already inherited his father's estate – Adoption Ordinance, Cap. 290, section 25 – whether posthumous adoption under Chinese law and custom is still possible in Hong Kong – legislative history of the 1956 Adoption Ordinance (section 23 expressly preserved Chinese adoption) and the 1972 Adoption Ordinance (deletion of that preservation) – held, posthumous adoption was abolished from 1 January 1973 onwards – effect on Chinese succession of subsequent Hong Kong legislation – Wong Kam Ying v. Man Chi Tai – Wu Koon Tai v. Wu Yau Loi – Article 88(2) of the Qing Code – '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' – held, since no male descendant can now succeed the deceased (both because the 1st defendant is barred for having inherited from his father and because posthumous adoption is no longer possible), the household has become extinct within the meaning of Article 88(2) and the daughters are entitled to inherit – application of section 17 of the New Territories Ordinance – non-exempted land not affected by the 1994 New Territories Land (Exemption) Ordinance, Cap. 452 – Re Estate of Lau Wai Chau distinguished – appeal dismissed – cross-appeal allowed – declarations granted that there is no longer a person entitled to succeed the deceased as an heir within the meaning of Article 88(2) of the Qing Code, and that the plaintiff and the 2nd defendant are entitled to inherit the property – plaintiff to have costs nisi of the appeal and below against the 1st defendant – no order of costs between the plaintiff and the 2nd defendant – plaintiff's own costs to be taxed in accordance with Legal Aid Regulations.
Legal issues: Whether the 1st defendant (nephew who already inherited from his father) is entitled to succeed to the deceased's estate under the Qing Code · Effect of the Adoption Ordinance on posthumous adoption under customary law · Whether the daughters are entitled to inherit the property under Article 88(2) of the Qing Code
Outcome: Appeal by the 1st defendant dismissed; cross-appeal by the plaintiff allowed. The order of the trial judge is set aside and replaced with declarations that there is no longer a person entitled to succeed the deceased as an heir within the meaning of Article 88(2) of the Qing Code, and that the plaintiff and the 2nd defendant are entitled to inherit the property of the deceased.
Cited by 1 case