Lai Chi Keung v. Ho Siu Fong

HCAP 21/2019

[2020] HKCFI 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 21 OF 2019

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Before:  Deputy High Court Judge MK Liu in Court

Date of Hearing: 18 June 2020

Date of Judgment:  24 June 2020

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JUDGMENT

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1.In these proceedings, the plaintiff (“P”) seeks a declaration that the defendant (“D”) is not the wife of the late Mr Lai On alias Lai Kwok On (“Lai”), and the letters of administration of Lai’s estate be granted to P.

2.P claims that he is the natural son of Lai.  P has made an affirmation in support of his case, and has given oral evidence in the trial.  In his evidence, P said:

(1)  He is the natural son of Lai and Madam Yip Yuk Lin (“Yip”).  What he has said in his evidence is from his own knowledge and from the information provided to him by his godmother.

(2)  In about 1967, Lai and Yip met in Macau.  They started an intimate relationship and cohabited.  P was born on 19 October 1968 in Macau.  After the birth of P, Yip looked after P and Lai became the sole breadwinner of the family.  In 1969, Lai left Macau and went to Hong Kong to look for a better job to support the family.  In April 1970, Yip brought P to Hong Kong for reunion with Lai upon Lai’s request.  Upon arrival to Hong Kong, the family lived at a place in Jordan.  Lai used to return home late due to his job, but Lai often brought Yip and P to play around in Hong Kong during Lai’s rest days.

(3)  In December 1973, there was a heated quarrel between Yip and Lai.  The quarrel was triggered by Lai having an affair with a woman.  After that quarrel, P started to live with his godmother and being looked after by the godmother from that time onwards.

(4)  In early 1974, Lai visited P together with D.  That was the first time when P met D.  Lai introduced D to P and asked P to call D as “芳姨”.  D gave a toy to P as a present, and P was happy at that time.

(5)  The day after the visit, Yip came to visit P. Yip was very angry after hearing the visit.  Yip immediately called Lai and yelling at Lai over the phone.  However, P could not recall what Yip had said in that telephone call.

(6)  After that visit, P occasionally had meals with the godmother, Lai and D in a Chinese restaurant.  P did not remember what had been said during those gatherings.

(7)  In 1975 or 1976, the godmother told P that Lai had an affair with D and that was the reason why Lai and Yip broke up in December 1973. At a time, P overheard a conversation between his godmother and Yip, in which the godmother told Yip that D was a married woman with 4 children. However, P’s solicitors have made enquiries and according to the Marriage Registry of the Immigration Department, D has no marriage record in Hong Kong.

(8)  Yip passed away in 1981.  In about 1990, P moved to live with Lai at a place in Kennedy Town until Lai’s death on 5 February 2010.  D was not living at that place.  From 1990 to 2010, P did not meet D.

(9)  After the death of Lai, P reported Lai’s death to the Birth and Death Registry on or about 8 February 2010.  In the report, P gave an address in Kwai Chung as his address.  P explained in his oral evidence and said that the Kwai Chung address was the residential address of his girlfriend at that time.  They had a son, and P would occasionally be in Kwai Chung.  For this reason, P gave the Kwai Chung address when he reported Lai’s death to the Birth and Death Registry.

(10)  P met D in Lai’s funeral, but they did not have any conversation.

(11)  P filed an application for the Letters of Administration concerning Lai’s estate under the case number HCAG 15997/2011. P discovered that before he made the application, D had already applied for the Letters of Administration under the case number HCAG 4090/2010, in which D alleged that she was the lawful kit-fat wife of Lai and the wedding ceremony between Lai and her was held in early 1971.

(12)  After knowing D’s application in HCAG 4090/2010, P requested D to produce evidence in support of the alleged marriage between Lai and D. The only documentary evidence produced by D was (a) a payroll record of Lai (“the Payroll Record”), and (b) Lai’s application for a visa to Philippines dated 27 February 1992 (“the Visa Application”).

(13)  In January 2013, D withdrew her application in HCAG 4090/2010.

3.Having seen and heard P’s evidence, I am of the view that P is an honest and reliable witness.  I accept his evidence.

4.In her affirmations filed in HCAG 4090/2010, D gave an address (“the Address”) as her address.  P has produced evidence to show that documents in these proceedings have been served on D by sending the same to the Address.  There was a letter dated 21 May 2012 from D’s solicitors to P’s solicitors concerning HCAG 4090/2010.  There was also a letter dated 3 January 2013 from D’s solicitors to the Probate Registry, in which D’s solicitors said that upon instructions, they withdrew the application in HCAG 4090/2010.  These letters show that D was alive at least until January 2013.  P’s solicitors have also conducted a death search concerning D and found that there was no death record of D for the period from 11 June 2010 to 10 June 2020.  Based upon all these, I am satisfied that the documents in these proceedings have been properly served on D.  There is no evidence showing that D is not alive at any stage of these proceedings.

5.There is no dispute between P and D that Lai passed away on 5 February 2010 without leaving any will. 

6.The principles concerning this application are as follows:

(1)  Rule 21(1) of the Non-Contentious Probate Rules provides that where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority:

“(i) the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;

(ii) the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased”

(2)  Where an intestate passed away on or after 19 June 1993, an illegitimate child also enjoys the right of succession. See Parent and Child Ordinance, s.3; Chow Shun Yung v Ethel Lew [2006] HKCLRT 389, [25] – [28].

(3)  As defined in s.2 of the Intestates’ Estates Ordinance (“IEO”), “husband and wife” means “in relation to a person, mean a husband or wife of that person by a valid marriage”.

(4)  As per s.3 of IEO, “valid marriage” is:

“(a) a marriage celebrated or contracted in accordance with the provisions of the Marriage Ordinance (Cap. 181);

(b) a modern marriage validated by the Marriage Reform Ordinance (Cap. 178);

(c) a customary marriage declared to be valid by the Marriage Reform Ordinance (Cap. 178);

(d)  a marriage celebrated or contracted outside Hong Kong in accordance with the law in force at the time and in the place where the marriage was performed.”

7.In HCAG 4090/2010, there is a letter from D’s solicitors to the Probate Registry dated 21 June 2010 (“the Letter”), in which D’s solicitors said:

“Enclosed please find the Affirmation of Identity made by Mr Tsoi Kwan for your attention. We are instructed that the said custom marriage was celebrated in traditional Chinese customs, that the couple hosting a banquet with their family members, friends and neighbours, serving tea to the senior members of the guests and kowtowing to them (as some kind of witnesses), and then worshipping heaven and earth in front of the guests to show that they are ‘formally and officially married’.”

8.The affirmation of Tsoi Kwan mentioned in the said letter is an affirmation made by Mr Tsoi on 13 April 2010 (“the Affirmation”), in which Mr Tsoi said:

“…… I knew and was well acquainted with [Lai], and also know and am well acquainted with [D]. I have been acquainted with [D] for about 40 years. [D] was the lawful kit-fat wife of [Lai].”

9.In my view, the Affirmation cannot be satisfactory evidence proving that D was the lawful wife of Lai.  In the Affirmation, Mr Tsoi did not say whether he had any participation in the alleged wedding banquet mentioned in the Letter.  Mr Tsoi also did not say whether the alleged wedding banquet had taken place or not.  Further, in any event, since Mr Tsoi has not given any oral evidence and has not been subject to cross-examination in this trial, I attach no weight to the matters stated in the Affirmation.  The allegations in the Letter remain as bare allegations not proved by any satisfactory evidence.

10.In my judgment, there is no satisfactory evidence proving that there had been a valid marriage as defined by s.3 of IEO between Lai and D at any time.  The Payroll Record and the Visa Application at most can only show that Lai regarded D as his spouse.  However, these documents cannot prove that there has ever been a valid marriage between Lai and D as defined in IEO. 

11.Based upon the evidence before me, in my judgment, D is not the wife of Lai by a valid marriage for the purpose of IEO.

12.On the other hand, I am satisfied that P is the natural son of Lai.  This is supported by ample evidence:

(1)  P’s evidence, which is accepted by this court;

(2)  P’s birth certificate;

(3)  the Visa Application, in which Lai stated that P was his child; and

(4)  D’s affirmation dated 14 April 2010 filed in HCAG 4090/2010, in which D accepted that P was Lai’s natural son.

13.Being the natural son of Lai, P is entitled to have the letters of administration of Lai’s estate,

14.For the reasons above, I am satisfied that P is entitled to have judgment in these proceedings.  I make the following order:

(1)  there be a declaration that D is not the wife of Lai by a valid marriage for the purpose of IEO; and

(2)  Letters of Administration of Lai’s estate be granted to P.

15.Costs should follow the event.  There be a costs order nisi that costs of these proceedings (including costs reserved, if any) be paid by D to P, to be taxed if not agreed.  P’s own costs are to be taxed in accordance with the Legal Aid Regulations.

16.I thank counsel for the helpful assistance rendered to the court.

Mr Lincoln Cheung, instructed by B Mak & Co, for the plaintiff

The defendant was not represented and did not appear