Re Man Chiu Choi

HCMP 311/2019

[2019] HKCFI 1745

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 311 OF 2019

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Before: Hon Marlene Ng J in Chambers

Date of Hearing: 9 July 2019

Date of Judgment: 9 July 2019

Date of Handing Down Reasons for Judgment: 16 July 2019

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REASONS FOR JUDGMENT

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1.The present proceedings concerned all those pieces or parcels of land registered in the Land Registry as San Tin Lot Nos 508, 568 and 1585 (“Lot508, Lot568 and Lot1585”) all in Demarcation District No102 (“DD102”), and Lot Nos 776 and 883 (“Lot776 and Lot883”) both in Demarcation District No 105 (“DD105”) (collectively, “Lots”).

2.According to the land search records in respect of the Lots, by a Block Crown Lease with lease term that commenced on 1 July 1898, (a) Lot568 in DD102 (which the applicant (“P”) said was also known as San Tin House No 568) was originally owned by Man Chuk Lam (文竹林), (b) Lot508 (which P said was also known as San Tin House No 508) and Lot1585 in DD102 were originally owned by a Man Chiu Wan (文兆穩), and (c) Lot776 and Lot883 in DD105 were originally owned by a Man Shiu Wan (文兆穩). This was borne out by the Schedule of the Government Lessees regarding inter alia the Lots (“Schedule”). The Schedule gave the owner of the Lots in (b) above as Man Chiu Wan (文兆穩) and the Lots in (c) above as Man Shiu Wan (文兆穩), but they appeared to be same person with the same Chinese name but slightly different English translations.

3.In respect of Lot568 in DD102, by a Transfer dated 17 January 1910 and registered in the District Land Office at Tai Po by Memorial No 10657, Man Chuk Lam (文竹林) transferred San Tin House No 568 (ie Lot568) to Man Chiu Wan (文兆穩).

4.In respect of Lot1585 in DD102 and Lot776 and Lot883 in DD105 and San Tin Houses Nos 508 and 568 (ie Lot508 and Lot568 in DD102), (a) by an Alteration of Owner dated 9 June 1911 and registered in the District Land Office at Tai Po by Memorial No 16651 Man Tang Shi (mother of Man Shiu Wan deceased) inherited inter alia the Lots, (b) by a Succession dated 9 December 1953 and registered in the District Land Office in the New Territories by Memorial No 131547 Man Kit Tai inherited the Lots from Man Tang Shi, and (c) by a Succession to Property dated 16 January 1961 and registered in New Territories Administration by Memorial No 143721 (“Succession to Property”) Man Ping-kwong with Man Kau-yiu as trustee succeeded to the Lots, and thereafter Man Kau-yiu held the Lots on trust for Man Ping-kwong.

5.The land search records of the Lots showed Man Kau-yiu as trustee became the registered owner of the Lots pursuant to an instrument dated 16 January 1961 (ie the Succession to Property), and since then Man Kau-yiu held the Lots on trust for Man Ping-kwong as beneficiary.

6.According to a certified copy birth certificate issued on 16 March 2006, P (whose name was recorded as Man Chiu-choi (文招財)) was born on 11 September 1948, and his parents were Man Yiu-kai (文堯佳) and Chang Lin-mui (鄭連妹). P claimed he was 12 years old when he succeeded to the Lots, and as a minor he did not have capacity to hold the legal title of the Lots under his own name, so his father Man Kau-yiu (文九堯) (whom P claimed was also known as Man Yiu-kai (文堯佳)) held the Lots on trust for him. P’s father passed away on 15 November 1977 (see certified copy death certificate issued on 14 December 2018 which gave the deceased’s name as Man Kau-yiu (文九堯) and described his widow as Cheng (not Chang) Lin-mui), and P’s mother passed away on 29 September 1982 (but the certified copy death certificate issued on 25 April 2008 described the deceased as Cheng (not Chang) Lin-mui (鄭連妹)).

7.P reached the age of majority on 11 September 1969, and claimed that as sole beneficial owner of the Lots he was/is entitled to have his father’s legal interests in the Lots vested in him absolutely.

8.P claimed his father died intestate and did not leave any personal estate except the Lots that he had held on trust for P, and his mother also died intestate. P explained that he applied for grant of Letters of Administration in respect of his father’s estate in late 2005, but the High Court did not grant his application as he did not apply for leading grant in respect of his mother’s estate (see letter dated 9 August 2016 by the Probate Registry to P’s former solicitors S W Tai & Co). But since P’s mother did not leave any estate, P did not apply for Letters of Administration in respect of her estate, so P gave up his application for grant of Letters of Administration in respect of his father’s estate. Thus, the legal estate of the Lots was still not vested in him. Probate search in relation of the estate of P’s mother in February 2019 returned a nil result, so P believed no Letters of Administration were granted and no personal representative was appointed in respect of his parents’ respective estate.

9.On 7 March 2019, P commenced the present proceedings by way of ex parte originating summons for an order that the legal estate and interest of and in the Lots held by Man Kau-yiu (文九堯) under trust for Man Ping-kwong (文炳光) be vested in the name of Man Chiu-choi (文招財) (otherwise known as Man Ping-kwong (文炳光)). On the same day, P filed his affirmation in support of his application.

10.At the hearing on 17 April 2019, DHCJ M K Liu raised queries as to (a) whether “Cheng Lin-mui” and “Chang Lin-mui” were in fact the same person, (b) Man Kau-yiu (文九堯) and Man Yiu-kai (文堯佳) were in fact the same person, and (c) Man Ping-kwong (文炳光) and Man Chiu-choi (文招財) are in fact the same person.

11.On 3 May 2019, P filed his supplemental affirmation and also the affirmations of Man Ping-name (文炳南) (fellow clansman and uncle of the same fong as P) and Man Ping-chung (文炳忠) (P’s younger brother). At the adjourned hearing on 9 July 2019, Mr Ko, counsel for P, informed this court that the name of Man Ping-name should in fact be Man Ping-nam, and P through counsel gave an undertaking to the court to file a supplemental affirmation of Man Ping-nam (文炳南) on or before 4pm on 12 July 2019 to verify that his correct name (ie Man Ping-name (文炳南) was incorrect and his correct name is Man Ping-nam (文炳南) (“Undertaking”).

12.On (a) above, P explained that his younger brother Man Ping-chung (文炳忠) was born in 1956, and the birth certificate of Man Ping-chung (文炳忠) gave the names of his parents as Man Kau-yiu (文九堯) and Cheng Lin-mui (鄭連妹). P claimed they were also his parents, ie Man Yiu-kai (文堯佳) and Chang Lin-mui (鄭連妹). Despite the spelling discrepancy between “Chang Lin-mui” and “Cheng Lin-mui”, the Chinese name “鄭連妹” was consistent. P said the English discrepancy was a mis-transliteration of the Chinese character “鄭”.

13.Man Ping-chung (文炳忠) explained that “鄭連妹” were P’s and his biological mother who was illiterate. Both P and Man Ping-chung (文炳忠) had limited knowledge of English, so they did not pay much attention to the spelling of their mother’s surname in English. Instead, they focused on her Chinese name, which was consistent and correct. They did not notice the difference in the English spelling of their mother’s surname until this was raised by the court at the hearing on 17 April 2019. Neither P nor Man Ping-chung (文炳忠) knew why the English spelling of their mother’s surname was different in different documents, but Man Ping-chung (文炳忠) surmised it was due to inadvertence of or mis-transliteration by whoever made record on the official documents. Thus, Man Ping-chung (文炳忠) believed “Chang Lin-mui” and “Cheng Lin-mui” referred to the same person, ie his mother “鄭連妹”. Man Ping-nam (文炳南) also recalled Man Kau-yiu (文九堯) / Man Yiu-kai (文堯佳) married “鄭連妹”, and their eldest child P was born in 1948 and their second son Man Ping-chung (文炳忠) was born in about 1956.

14.On (b) above, since P’s father had passed away for many years and most of his belongings had been thrown away, P could not find any document that simultaneously showed his names Man Kau-yiu (文九堯) and Man Yiu-kai (文堯佳). But both Man Ping-chung (文炳忠) and Man Ping-nam (文炳南) confirmed Man Kau-yiu (文九堯) and Man Yiu-kai (文堯佳) referred to the same person. Man Ping-nam (文炳南) explained that Man Yiu-kai (文堯佳) / Man Kau-yiu (文九堯) was his brother/cousin of the same fong (同房兄弟), and they knew each other since childhood as they lived 3-4 houses away from each other in San Lung Tsuen. Man Ping-nam (文炳南) and Man Ping-chung (文炳忠) said the name Man Yiu-kai (文堯佳) was given to him by his father 文吉照. Man Ping-nam (文炳南) recalled and Man Ping-chung (文炳忠) was told by village elders of San Lung Tsuen that Man Yiu Kai (文堯佳) walked like a dog when he was an infant, so people in San Lung Tsuen gave him a nickname “狗堯”. He later adopted such nickname and turned it into his name “文九堯”. As a result, people in San Lung Tsuen called P’s father “文九堯” and/or “文堯佳”, and such names referred to the same person.

15.Man Ping-chung (文炳忠) said this explained why after the mid-1950s his father used the name “文九堯” on all government or official documents, eg Man Kau-yiu appeared as name of father in the birth certificate of Man Ping-chung (文炳忠), and Man Kau-yiu was so named in his own death certificate, in the Succession to Property and in the land search records in respect of the Lots (and possibly also in his Hong Kong Identity Card). So although P’s father was stated to be Man Yiu-kai in his birth certificate, “Man Kau-yiu” and “Man Yiu-kai” were the same person, and the biological father of P and Man Ping-chung (文炳忠).

16.In respect of (c) above, P explained (as confirmed by Man Ping-nam (文炳南)) that the name Man Chiu-choi (文招財) was given to him by his maternal grandmother. As P’s parents were quite poor at the time when he was born, his maternal grandmother named him as “招財” in the hope that he would bring fortune to the family, so the name Man Chiu-choi (文招財) was registered as his name on his birth certificate. But at the time of worshipping (拜神), P’s father thought the name “招財” lacked elegance and changed it to Man Ping-kwong (文炳光). So between 1948 and 1965, P adopted the name Man Ping-kwong (文炳光) as his own name as a student and for registration on government or official documents (including the Succession to Property).

17.But when P applied for a passport in/about 1965 to leave for Germany, the Immigration Department required him to provide the name as stated on his birth certificate (ie Man Chiu-choi (文招財)) and it was so registered on his passport. Since then P went back to using the name Man Chiu-choi (文招財) as his official name. But shortly after P returned to Hong Kong from Germany in/about 1993, he realised there were some discrepancies in his names in his Hong Kong Identity Card and other documents (including the owner’s name in the land search records regarding the Lots), so for clarification he made a statutory declaration to confirm he was and still is known as Man Ping-kwong (文炳光). By his statutory declaration dated 10 August 1993 and registered in the Yuen Long District Land Registry by Memorial No 560853 in respect of the Lots, P declared and confirmed (a) he is the holder of Hong Kong Identity Card No Pxxxxxx(x) under the name of Man Chiu-choi (文招財) who was/is also known as Man Ping-kwong (文炳光), (b) by the Succession to Property all those properties therein mentioned became and was then vested in him under his name of Man Ping-kwong (文炳光) with his father Man Kau-yiu (文九堯) also known as Man Yiu-kai (文堯佳) as trustee, and (c) the name “MAN CHIU CHOI” (文招財) and the alias “MAN PING KWONG” (文炳光) referred to the one and the same person. P said people who knew him would call him either Man Chiu-choi (文招財) or Man Ping-kwong (文炳光), and these names referred to him. This was also confirmed by Man Ping-chung (文炳忠), who explained that he had always known P had 2 names, ie Man Chiu-choi (文招財) and Man Ping-kwong (文炳光), and most people in San Lung Tsuen of his generation knew and still know Man Chiu-choi (文招財) was and still is known as Man Ping-kwong (文炳光).

18.P further explained that although Man Kau-yiu (文九堯) (or Man Yiu-kai (文堯佳)) was his biological father, by Chinese customary adoption (過房) that took place in 1948 or 1949 P became the adopted son (過繼仔) of Man Kit Tai (文傑泰) who was the 2^nd elder brother of P’s father and who was P’s 2^nd elder uncle (二伯). Nevertheless, P maintained a close relationship with his biological parents and younger brother Man Ping-chung (文炳忠) because Man Kit Tai (文傑泰) and P lived next door to them. After Man Kit Tai (文傑泰) passed away, P as his adopted son inherited the Lots by way of the Succession to Property. But as P was a minor then, the District Officer appointed P’s biological father Man Kau-yiu (文九堯) as trustee to hold the Lots on trust for him. At that time the District Officer did not ask for P’s birth certificate or other documents as proof of his identity (and in fact he did not have a Hong Kong Identity Card at the time). P’s father simply told the District Officer P’s name was Man Ping-kwong (文炳光), and it was so recorded in the Succession to Property.

19.Man Ping-nam (文炳南) also confirmed he was aware that P was adopted by Man Kit Tai (文傑泰) as his adopted son by way of Chinese customary adoption in or about 1948 or 1949, that Man Kau-yiu (文九堯) (or Man Yiu-kai (文堯佳)) was P’s biological father, and that they were quite close to each other even though P was adopted by Man Kit Tai (文傑泰).

20.Based on the aforesaid affirmation evidence, I am satisfied that (a) P had/has 2 names Man Chiu-choi (文招財) and Man Ping-kwong (文炳光) and they refer to the same person, (b) P’s biological father had 2 names Man Yiu-kai (文堯佳) and Man Kau-yiu (文九堯) and they referred to the same person, and (c) there were 2 English translations of the surname of P’s mother “鄭連妹”, ie Chang Lin-mui and Cheng Lin-mui, and they referred to the same person.

21.P made the application on the basis that he is sui juris and entitled to the Lots by virtue of the Succession to Property. I am satisfied in the circumstances that there is no one to be served with the originating summons, and that it will be in order for P to proceed on ex parte basis.

22.In light of the above facts, at the adjourned hearing on 9 July 2019, upon the Undertaking, I ordered that the legal estate and interest of Man Kau-yiu (文九堯) also known as Man Yiu-kai (文堯佳) being the entire legal estate and interest of and in the Lots do vest in Man Chiu-choi (文招財) also known as Man Ping-kwong (文炳光) absolutely. P had since filed the supplemental affirmation of Man Ping-nam (文炳南) on 11 July 2019 in compliance with the Undertaking. I also made no order as to costs of and occasioned by the originating summons.

Mr Anthony Ko, instructed by TK Tsui & Co, for the applicant