Read the full judgment text of CACV 191/2017 on BabelCite. This Court of Appeal judgment was delivered on 26 September 2018 before Lam VP, Yuen JA, Kwan JA.
Civil appeal – succession dispute – New Territories indigenous village land – Ip Ting Wing's estate (1933) – challenge to title of Ip Cheung Hong (ICH) who succeeded in 1968 – Plaintiff claimed to be descendant through Ip Wan Fook (IWF) and alleged ICH was worker Chiu Loi invalidly adopted under Chinese customary law – trial judge dismissed Plaintiff's claims on both lineage of ICH and lineage of Plaintiff – grounds of appeal including challenges to findings of fact dressed up as errors of law – whether trial judge improperly interfered with Plaintiff's counsel's conduct of case – whether judge erred in finding ICH was natural son of Ip Kut Lung and descendant of Ip Ting Wing – whether judge erred by failing to address evidence on Plaintiff's lineage (burial of Plaintiff's father in village, 2013 distribution of compensation money) – appellate constraints on challenges to findings of fact – drafting of notices of appeal – case management by Court of Appeal – Practice Direction 4.1 para 23 – Order 1A Rule 1 – Interpretation and General Clauses Ordinance (Cap 1) s 38 – held: no merit in complaint of judicial interference, judge was entitled to exercise trial management power to question relevance, suggest dispensing with unnecessary witnesses and enforce re-examination rules – held: no basis to interfere with finding on ICH's lineage, judge properly preferred 1962 birth certificate and 2002 Genealogy over witness testimony based on remote memories and hearsay, and reliance on 1980 conveyances as evidence was sound – held: judge should have specifically addressed the burial of Plaintiff's father and the 2013 distribution of compensation money as these carried significant weight regarding villagers' acceptance of the Plaintiff's claim and have implications for the whole clan – further observations on confusion in judge's reference to failure to take action in 1991 given IWF had died that year – appeal allowed in part on Plaintiff's lineage and remitted for retrial – appeal otherwise dismissed – each party to bear own costs of appeal – Defendant to have costs below for parentage of ICH issue – costs of Plaintiff's lineage to be in cause of retrial – general guidance on case management, drafting of notices of appeal, and discouragement of late-stage summonses to adduce new evidence.
Legal issues: Whether trial judge improperly interfered with counsel's conduct of the case · Whether the judge erred in finding that ICH was a natural son of Ip Kut Lung and a descendant of Ip Ting Wing · Whether the judge erred in his finding on the Plaintiff's lineage by failing to address important evidence
Outcome: Appeal allowed in part: findings on the Plaintiff's lineage set aside and that part of the case remitted to the Court of First Instance for retrial before another judge; the appeal was otherwise dismissed (including all challenges to findings on ICH's parentage and allegations of judicial interference).
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