Cheung Ping v. Cheung Wai Kit, Representative of the Estate of Cheung Che Keung, The Deceased
Read the full judgment text of DCCJ 3618/2010 on BabelCite. This District Court judgment was delivered on 28 July 2021.
1. This dispute concerns the proceeds of sale of certain land on the Lantau Island. The plaintiff now claims that he is entitled to half share of HK$1,808,602.50 received by the deceased in the 2010 Sale.
Cites 2 cases
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DCCJ 3618/2010 [2021] HKDC 894 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CIVIL ACTION NO 3618 OF 2010 ------------------------- BETWEEN
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--------------------- JUDGMENT ---------------------- 1.This dispute concerns the proceeds of sale of certain land on the Lantau Island. The plaintiff now claims that he is entitled to half share of HK$1,808,602.50 received by the deceased in the 2010 Sale. The sale of the 12 Lots 2.By an assignment dated 17 September 2010, (a) Cheung Tim Tak 張添德, (b) Cheung Che Keung張志強 (alias Cheung Keung 張強), (c) Cheung Kan Lin張根連 and Cheung Shu Sum張樹深as administrators of the Estate of Cheung Tin Kwai張天貴and (d) Cheung Tat Wing張達榮as the administrator of the Estate of Chang (or Cheung) Bing (or Ping) Chung張炳松, together as vendors, sold Lots Nos 372, 375, 379, 381, 382, 383, 398, 457, 494, 507, 510, 511 all in Demarcation District No 332 to one Good Union Development Limited at the price of HK$5,684,580 (“the 12 Lots” and “the 2010 Sale” respectively). 3.It is common ground that the net sale proceeds of the 2010 Sale after the deduction of the legal fees of HK$18,330 was HK$5,666,250 (“the Net Proceeds”), and the Net Proceeds were divided into 4 shares and distributed as follows:-
4.Cheung Che Keung (“the Deceased”) was the defendant. He passed away on 13 April 2012. His Estate is now represented by his 7th and youngest son Cheung Wai Kit (“CWK”). The 12 Lots, Ham Tin Village, the devolution of title as seen in the land search records and conveyancing documents 5.The 12 Lots were pieces of farmland situated near Ham Tin Village in the Pui O area of Lantau Island. 6.Ham Tin Village is a village of the Cheung clan having a history dated back to the 18th Century. It has been a rural village recognized by the District Land Office. Its population are mostly lineal descendants of a broad Cheung clan. 7.According to the plaintiff’s expert, Dr Patrick H Hase[1], 張廣全 (born around 1838) was the eldest son of 張禮三. 張禮三had 4 sons, namely and in order of their seniority, 張廣全, 張進全, 張悅全 and 張盈全, and “[張廣全] acted as the manager of the family lands, that is, all the lands of the descendants of Cheung Lai-sam [張禮三], which lands remained held in common by the family at large, in equal and undivided shares, under [張廣全]’s management. [張廣全] greatly increased the area and value of the land-holdings of the family, by astute investment in mortgages and purchases of land”[2]. This is not seriously disputed by the defendant’s expert Professor Hugh Baker. 8.The 12 Lots were among a total of 640 lots of land in Demarcation District No 332 granted by a Block Crown Lease dated 18 March 1905 (“the Crown Lease”). Of the 12 Lots, lots 372 and 382 were granted in the Crown Lease to 張楨泰, while the remaining 10 lots were granted to 張廣全. In the land search records of lots 372 and 382, it is remarked that “As stated in Block Government Lease the lot is subject to mortgage in favour of Cheung Kwong Tsun”. Cheung Kwong Tsun was the English name for 張廣全. According to the Expert Report by Professor Hugh Baker[3], and not disputed by the plaintiff, lots 372 and 382 were vested in 張廣全 on 4 October 1907. 9.The land search records of the 12 Lots all contain the same remark:-
10.It is not disputed that the Chinese names of the 5 persons mentioned in the said remark (“the 1921 Successors”) and their relationship with 張廣全 were as follows:-
11.The above succession (“the 1921 Succession”) was apparently not made pursuant to a Will, nor was there any record of any probate obtained in relation to the Estate of 張廣全. The only reference of written record as to the 1921 Succession was “Action No 70/1921 regd. On 29.4.1921”, which apparently had been lost and a copy thereof cannot be obtained from the Land Registry. 12.Then by 4 Memorials bearing successive numbers of 66875, 66876, 66877 and 66878, all dated 27 February 1958, and all signed thereon by the same張贊 as the only witness (“the 4 Memorials”), it was recorded that by way of “succession to property”:-
13.Again, none of the above-mentioned successions (together “the 1958 Successions”) was recorded or mentioned to have been made pursuant to any Will, nor was there any record of any probate obtained in relation to the Estates of張啟賢, 張容發, 張啟忠 and 張啟良. 14.It is not disputed that張添德, 張炳松, 張天貴and 張啟良 are (or were) respectively the male lineal descendant of張廣全, 張進全, 張悅全and 張盈全, the 4 sons of張禮三. 15.As mentioned, 張添德, the administrator of張炳松, the administrators of張天貴and the Deceased together were the vendors in the 2010 Sale. 16.It will be noted that there was no similar Memorial or document dealing with the remaining 1/5 share of those properties apparently passed to張啟業 in the 1921 Succession. It is the plaintiff’s case and evidence of張添德 that the 2 sons of 張啟祥 (ie張容發 and 張來九) both died without male children and the 1/5 share belonging to that branch devolved by Chinese law and custom to張添德, who is their nephew. There is however no clear explanation as to why a 5th Memorial was not signed to effect succession of the 1/5 share from張啟業to his grandson張添德. The best explanation Mr Cheung, counsel for the plaintiff, could offer was that, as is the plaintiff’s case, the 1958 Successors held their shares of the properties in name only on behalf of the male descendants of their respective branches, and since by the 4 Memorials representatives of all 4 branches of the sons of張禮三had been appointed, the descendants of those 4 branches, being villagers, might not have attended to such meticulous detail. For the purpose of this action, I do not find it necessary to resolve this matter. In any case, the purchaser in the 2010 Sale apparently was content to accept an assignment of the 12 Lots executed by the said 4 vendors. The distribution of their shares of the Net Proceeds by the other recipients 17.It was not canvassed in evidence as to why the Net Proceeds were distributed to the 4 recipients in the above proportions. It was mentioned in evidence generally that the villagers of Ham Tin Village often traded other pieces of land at the same time they made a sale to the purchaser such that the sale was only part of a composite deal and they adjusted the proportions of price to be received by various parties accordingly. However as said, there is no evidence of such in the present instant, but neither party raises any issue regarding the proportions. 18.The evidence given by the below-mentioned witnesses of the plaintiff as to the distribution of the shares of the Net Proceeds received was unchallenged at trial. Based on such unchallenged evidence as set out below, I find that the recipients of the Net Proceeds, except the Deceased, had distributed their shares of the Net Proceeds in the following manner:-
The plaintiff’s claim 19.In gist, the plaintiff claims that:-
20.Slightly more than a month after the 2010 Sale and on 21 October 2010, the plaintiff commenced this action. The defendant’s case 21.The defendant does not dispute the devolution of title on paper of the 12 Lots as narrated above or that the Deceased received the sum of HK$1,808,602.50 as his share of the Net Proceeds under the 2010 Sale. 22.The defendant denies that張啟良and then the Deceased succeeded to the 12 Lots under Chinese law and custom or that the 12 Lots were “ancestral land” to be succeeded or distributed to male lineal descendants of張盈全. 23.The defendant avers that the Deceased had never signed any declaration of trust in favour of the plaintiff or his ancestor(s) along the male line, and that the 12 Lots had never been held in the name of a Tso or Tong recognized by the New Territories Ordinance, though these 2 matters have never been pleaded by the plaintiff as part of his case. 24.The defendant claims that張啟良succeeded to the 12 Lots from張廣全absolutely as legal and beneficial owner without any qualification; and likewise, later the Deceased succeeded from張啟良the same absolutely as legal and beneficial owner without any qualification. 25.The defendant puts the plaintiff to strict proof that the plaintiff is a lineal descendant of張盈全of the same generation of the Deceased and that the plaintiff is related to the Deceased as alleged. The 2 issues, other matters of contention 26.It seems to me therefore abundantly clear that there are 2 issues for trial, namely:-
27.The factual allegation, introduced and harped on by the defendant, that there was no declaration of trust by the Deceased over the 12 Lots is a non-issue, as it was never part of the plaintiff’s case that there was a declaration of trust. 28.The plaintiff and his witnesses referred to certain halls (堂) in the village in which ancestral worship of the descendants of certain branches were performed, particularly四德堂and蓮江堂. Much was said by the defendant that they were not Tso or Tong recognized or registered under the New Territories Ordinance and that the relevant land was not held by a Tso or Tong. Mr Chow, counsel for the defendant, in his written opening submissions opened extensively regarding matters about Tso and Tong. However, the plaintiff has never pleaded that四德堂and蓮江堂were recognized or registered Tongs or that the 12 Lots were held by a Tso or Tong. This was expressly clarified with counsel in their openings. Yet, certain confusions and disputes continued regarding those halls as a physical place of worship as opposed to a registered Tong, which is a form of Chinese customary trust. These matters about Tso and Tong are really non-issues and I therefore do not think it necessary, nor propose, to delve into disputes relating to them. 29.There are also various mentions of instances of certain “ancestral land” being sold on previous occasions. The evidence on them is not entirely clear. In any case, I do not find it necessary to come to any finding or views on them for the purpose of resolving the issues at trial. WHETHER THE 12 LOTS WERE SUCCEEDED BY張啟良AND THEN THE DECEASED ABSOLUTELY OR WHETHER THE 12 LOTS WERE DEVOLVED TO THEM UNDER CHINESE LAW AND CUSTOM, TO BE HELD IN THEIR NAMES TO BE SUCCEEDED OR DISTRIBUTED TO MALE LINEAL DECENDANTS OF張盈全 The plaintiff’s witnesses 30.The plaintiff called the following witnesses relating to this matter of succession:-
31.All of the said 4 witnesses gave evidence, in gist, that the 12 Lots were part of “family” or “ancestral” land, and under the custom and practice of Cheung’s Family in Ham Tin Village, the 1921 Successors and the 1958 Successors held the land passed onto their names as “trustees” only and they held the same for and on behalf of other male descendants of their respective branches of family. 32.張勁之, 張根連and張添德 (“the 3 Elders”) further said that the descendants of Cheung’s Family in Ham Tin Village all acted in good faith and trust, and that the act of the Deceased in not distributing the due share to the plaintiff was unfair and unjust and was not in accordance with the custom and practice of Cheung’s Family in Ham Tin Village. 33.張根連further expressly acknowledged that he held the land under Memorial No 66877 as a “trustee” for all the male descendants of his branch. As mentioned, he gave evidence that he and張達榮had respectively distributed the shares of the Net Proceeds they received to other male lineal descendants of悅全and進全branches. 34.張添德said that he did not need to distribute to others in the branch because he is the only descendant in his branch (his sons would be entitled under him). In oral evidence, he further said that even though his branch was entitled to 2/5 share of the Net Proceeds of the 2010 Sale, he was content just to receive ¼ share on this occasion. 35.張勁之also gave direct evidence that he was present together with his father張贊at the time the 4 Memorials were signed by the 1958 Successors and witnessed by his father in 1958. He said he remembered his father told him in front of the Deceased that the Deceased was not holding the land for himself but for盈全branch of the family. 36.The 3 Elders said that, as elders of the village, they were concerned that if the defendant were allowed to take all the proceeds without distributing the same amongst his branch, there would be chaos, disputes and arguments and the custom and practice they so treasured and all along being upheld by Cheung’s Family in Ham Tin Village would be destroyed. The defendant’s evidence 37.Only CWK himself gave evidence for the defence case that the Deceased succeeded to the land absolutely. The only matters said by him in his witness statements in support are:-
38.What CWK said in paragraph 12 of his witness statement is a bare assertion, and what was said in paragraph 13 was that he was so advised. 39.The defendant therefore did not proffer any factual evidence in support of the assertion that the Deceased was entitled to his share of land absolutely. The defence case therefore was founded merely by gleaning from the scanty records, namely the remark in the land search record of the 12 Lots mentioned in paragraph 9 above and Memorial No 66878. 40.Regarding the plaintiff’s case that there has all along been the alleged custom and practice, the only thing said by CWK in his witness statement[7] was that he put the plaintiff to proof of such custom and practice. Save strenuously not accepting such custom and practice, CWK in oral evidence did not proffer any factual matter relevant. The applicable law of succession for a Chinese in 1921 and 1958 41.At trial, despite placing heavy reliance on the burden on the plaintiff to prove that Chinese law and custom applied to the 1921 and 1958 Successions, the defendant did not address the court on the general law applicable to these 2 successions. Nor did the plaintiff. This court referred the parties to Tang Kai Chung & Another v Tang Chik Shang[8] regarding the law applicable to intestacy succession of a Chinese in Hong Kong prior to the enactment of the Intestates’ Estates Ordinance in 1971. In that case, Mills-Owens J observed:-
42.Mills-Owens J was a member of the Full Court hearing In the Estate of Tse Lai Chiu in which it was decided that a Chinese in Hong Kong had full testamentary power and could make a valid will under section 3 of the version of Wills Ordinance current at the time. In that case, the Full Court confirmed the correctness of earlier decisions that Chinese law or custom governed the succession on the intestacy of Chinese persons in Hong Kong. 43.Therefore, unless張廣全, 張啟賢, 張容發, 張啟忠and 張啟良 had executed any valid Will(s) (and there is not the slightest suggestion they had), the law was that the respective succession of their Estates in 1921 and 1958 would be governed by Chinese law or custom. Chinese law or custom therefore applied to the 1921 Succession and 1958 Successions without need of further proof by the plaintiff. The opinion of the experts 44.I first would note that Mr Chow in his written or oral closing submissions did not address me on the expert evidence given in the Expert Reports and their Joint Statement. 45.Both experts agreed that the law of succession to property under Ching law was unambiguous : only male children should inherit and they must inherit in equal shares, and that this general principle underlay Chinese custom in all areas, though minor deviations from the strict principle, such as giving of an additional share to an eldest son, have been customary in some places. 46.Professor Baker further opined, which Dr Hase did not dispute, that property thus devolved automatically down the male descent line and,
47.Dr Hase opined clearly that according to his study, the 1921 Succession was made post-mortem, by agreement of the 1921 Successors, and it was the clear intention of the 1921 Successors that they received their respective shares to hold and manage on behalf of all the male lineal descendants of the same branch. He further opined that張啟良received his share in 1921 to hold and manage on behalf of himself and his brother張啟林 (the grandfather of the plaintiff) in equal shares because otherwise it would mean that張啟林was cast out and disinherited, which was inconceivable and not suggested anywhere. He further opined that the Deceased received his share in 1958 in the like manner. 48.Professor Baker opined in relation to the 1921 Succession that:-
49.Professor Baker further opined that in 18th and 19th Century China,
50.In the Joint Statement, the two experts expressed agreement that the inheritance in an undivided estate (a) might be left on the Government records in the names of the deceased, or (b) either some or all of it might be made a customary trust (Tso or Tong) with a manager and, after 1898, so registered with the Government and (c),
51.Most notably, Professor Baker never considered, mentioned or even suggested that張啟良and/or the Deceased received the share in the land in respectively 1921 and 1958 absolutely to become the legal and beneficial owners thereof. 52.It is in my view clear from the above quoted passages that the two experts did not diverge much in their opinion. Professor Baker did not differ with Dr Hase’s view regarding the 1921 Succession. Professor Baker did not seriously dispute with Dr Hase regarding the latter’s opinion of the custom in Ham Tin Village that a brother would hold the undivided share of the inheritance in his name and apparently as absolute owner but in fact as “trustee” for all male descendants of the same branch. Professor Baker regarded it as a variant version of the normal system of agnatic inheritance with delayed family division. The signing of the 4 Memorials 53.I have above mentioned that the 4 Memorials bear successive numbers and were all signed and registered on the same date, namely, 27 February 1958. The 4 Memorials themselves recorded that they were registered respectively at 10:15, 10:20, 10:25 and 10:30 of the forenoon that day. In other words, they were signed and registered on the same occasion. 54.Had they all been private (as opposed to familial or as a clan) and individual exercises of succession devolving the respective shares onto each of the 1958 Successors absolutely (as the defence case claims in relation to the succession by 張啟良), it would be most hard to imagine and most improbable that the 1958 Successors would arrange to go to the District Land Office together on the same occasion and with the same witness to transact the successions of properties from 4 deceased individuals, who in all likelihood died at different points in time. In my view, the circumstances pointed, with a high degree of likelihood, to the fact that the 1958 Successors were dealing with “family” or “ancestral” land, with an elder as a witness, so as to register the land to a new generation of “trustees” who would be holding them in name only respectively for the benefit of the members of the same clan/branch. 55.In this regard, I specifically find for and accept the evidence of張勁之that his father張贊on the occasion when the 4 Memorials were signed told 張勁之 in front of the Deceased that the Deceased was not holding the land for himself but for盈全branch of the family. Discussion 56.As above explained, I hold that Chinese law or custom applied to the 1921 Succession and 1958 Successions. 57.As set out in some detail above, both experts were in essential agreement that under the 1921 Succession and 1958 Successions, the respective persons in whose names the land was registered to, though apparently as absolute owners, held the land as “trustees” for the benefit of those entitled (male lineal descendants in equal shares) for delayed household division (fan ka分家) at some point later. 58.As analyzed, the circumstances of the signing of the 4 Memorials were highly suggestive that the 1958 Successions were an exercise dealing in “family” or “ancestral” land whereby a new generation of “trustees” were registered as “owners” (in name only). Such was clearly consistent with the experts’ opinion and the plaintiff’s case. 59.The 3 Elders’ gave clear and affirmative evidence supporting the plaintiff’s case on the custom and practice of Ham Tin Village, as summarized above. Their such evidence was not seriously challenged. Moreover, 張根連and張達榮actually distributed their shares of Net Proceeds accordingly, and the evidence of張添德was to the effect that he would have so distributed as well had he not been the only male descendant entitled in his branch. As said, such evidence on distribution was not challenged in cross-examination. 60.Furthermore, one would expect that if what the plaintiff alleged was in fact not the prevailing custom and practice of the Cheung’s Family in Ham Tin Village, which is a village of such long history, the defendant should and would have little difficulty in locating witnesses, not just from descendants of張禮三, but from other branches, to give evidence to dispute the existence of such custom and practice. Yet, given that there were about 10 years for the defendant to do so between 2010 when this action was commenced until now, the defendant was not able to call not even one witness to so testify. 61.I have carefully heard and observed the 3 Elders giving evidence, all of them were direct and straight forward and totally unshaken in their cross-examination. All of them did not try to over-reach and directly said so when they were not sure, or not clear, and in the case of張勁之, when he made certain mistakes. I am favourably impressed by them as witnesses. I have no reservation at all in finding that they were honest and reliable witnesses. I accept their evidence in full and much prefer their evidence whenever there was conflict between theirs and the defendant’s. 62.I utterly reject the CWK’s evidence that the 3 Elders colluded with the plaintiff to “frame” the Deceased and his family. CWK made the accusation more in the context of dealing with the Kinship Issue. I will therefore go into this in detail when I deal with the Kinship Issue. 63.As mentioned, the defendant’s case is essentially putting the plaintiff to strict proof. 64.Based on the evidence and matters alluded to above, I find that張啟良in the 1921 Succession and the Deceased in the 1958 Successions by Memorial No 66878 respectively received the land therein mentioned according to Chinese law or custom, and they respectively received the land (and registered as owners) not absolutely but in name only, to hold the same to be succeeded and/or distributed to the male descendants of張盈全. 65.I do however need to deal briefly with 3 matters raised and insisted by Mr Chow. 66.First, Mr Chow submitted to the effect that it could not be certain that張廣全did not execute a Will such that the 1921 Succession might well be a disposition by Will and not according to Chinese law and custom, and likewise with張啟良in the 1958 Successions. He then attempted to develop further arguments on that premise. I reject that submission and to avoid future unnecessary disputes, I am satisfied and find that on balance of probabilities張廣全and張啟良did not execute any Will for the purpose of the 1921 Succession and 1958 Successions by Memorial No 66878. My reasons for rejecting the submission and so finding are:-
67.Second, Mr Chow contended that as the plaintiff could not explain why the descendants of張廣全received 2/5 share rather than ¼ share in the 1921 Succession, I should find against the existence of such Chinese law and custom of succession as contended for by the plaintiff. Despite being pressed by the court, Mr Chow could not substantiate with reason why in the totality of evidence as alluded to above, this relatively minor matter could and should topple the entire plaintiff case on this matter, with the absurd and problematic result that the contended Chinese law and custom would likewise not be applicable to successions by the other 3 branches under the 1921 Succession. 68.Such an unsubstantiated contention need only to be stated to be rejected. 69.Firstly, the defendant’s expert Professor Baker opined that there might be local variants in the local customs and “family matters were largely controlled by the families themselves”. Both experts referred to the fact that “minor deviations from the strict principle, such as giving of an additional share to an eldest son, have been customary in some places”. Both experts, however, did not come to a clear opinion as to whether the additional 1/5 share given in the 1921 Succession was given pursuant to this deviation of giving an additional share to the eldest son. 70.Secondly and importantly, this contention, if it were as pivotal as is now claimed, should have been, but never was, given to the experts to address. Thus, it was a point made abruptly, in my view as an afterthought, and without having ventilated it properly. 71.Thirdly, as Dr Hase mentioned, through the astute management by張廣全in investing in mortgages and such, the family lands had increased greatly and that the 1921 Succession was post-mortem and agreed to by the 1921 Successors. It might well be that the 1921 Successors agreed among themselves that the descendants of張廣全should receive an additional share because of 張廣全’s outstanding contribution. According to Professor Baker, such agreement did not militate against the existence or applicability of Chinese law and custom. 72.Fourthly and thus, there could be reasons for this somewhat unusual sharing which could very well still be consistent with the existence of the said Chinese law or custom. 73.Lastly, I was not given, and on my part I fail to understand, the logic or reasoning why a single instance of “minor deviation”, even assuming that it was totally unexplained, but in the face of such overwhelming evidence, would or should topple the entire system. 74.On the third matter, Mr Chow insistently argued[12] that because some lots were recorded in the Block Crown Leases (there were 4 produced at trial) to be held by張四德堂, which he claimed was a registered Tong, therefore if the 12 Lots were to be held by the 1921 Successors and the 1958 Successors for the benefit of the offspring at large and not the 1921 Successors and 1958 Successors personally and absolutely, the 12 Lots could have been held by張四德堂; and according to him, this fact therefore is probative to show that張啟良and the Deceased were intended to receive the 12 Lots personally and absolutely. 75.Again and with respect to Mr Chow, this is yet another exercise in ambush, quite apart from the fact that it is entirely unmeritorious. This argument and its factual basis were not mentioned in the defendant’s pleading, nor in CWK’s witness statements. They were not even mentioned when the defendant opened his case at trial. These matters were not put to any of the plaintiff’s witnesses. They were raised out of the blue in the defendant’s final submissions. Moreover, Mr Chow did not give any references in his written closing submissions as to which lot(s) were so registered to張四德堂, bearing in mind that the 4 Crown Leases run up to 169 pages[13] covering I cannot count how many lots. That was entirely unsatisfactory and unhelpful. For these reasons alone I would have rejected this contention. 76.Moreover, it was accepted by Mr Chow during closing submissions that disposition by Chinese law and custom in the manner contended for by the plaintiff (a form of succession, held by a “trustee” for delayed division and distribution absolutely among descendants of the same branch) and having the land held by a Tong (a Chinese customary trust, exists perpetually, and possibly for purposes like ancestral worship, and members are entitled to a life interest only, managed by registered Manager(s), and such) are 2 very different methods of dispositions achieving different results and serving very different purposes, and therefore these 2 modes of dispositions of land are, by their very nature and purposes, not mutual exclusive. Therefore, even if (for argument’s sake) what Mr Chow claimed was true that some “ancestral land” were granted to a Tong named張四德堂in the 4 Block Crown Leases, I simply cannot see the logic or reasoning why such a fact is probative to the issue in question. As said, I reject such submission entirely. 77.In the result and with the above findings, I hold in favour of the plaintiff in this first issue. THE KINSHIP ISSUE The DNA Report 78.The parties produced by agreement a joint DNA Testing Report of Dr Wan Kwong Kee dated 21 July 2020[14] (“the DNA Test Report”). 79.The DNA Test was conducted to determine the blood relationship between the plaintiff and CWK. According to the DNA Test Report, studies have shown that two distant male-line relatives who share a common ancestor living 200 years ago and separated 13 generations apart, their Y-chromosomes are still identical with only 4 out of 10,149,085 nucleotide changes detectable only by extensive second generation DNA sequencing. 80.The conclusion reached by the DNA Test was:-
The plaintiff’s witnesses 81.The plaintiff was born in 1956. His evidence was that he is the great grandson of張盈全. 張盈全had 3 sons, 張啟林 (also known as 張大根), 張啟良 (also known as 張根壽) and張根祥. 張根祥 died early without children. 82.張啟林was his grandfather, who had 2 sons張發有and張有發. The plaintiff is the only son of張有發. His uncle張發有was adopted by a family in the village soon after his birth and therefore by custom, 張發有was not entitled to inheritance of the land under 盈全 branch. 83.張啟良therefore was his grand-uncle and the Deceased was his cousin. 84.It is his evidence and undisputed by the defendant that his family has been living in House No 13 of Ham Tin Old Village (“House 13”) since the plaintiff can remember, while the Deceased’s family had been living next doors in House No 14 of Ham Tin Old Village (“House 14”). The 7 sons of the Deceased all used to live in House 14. In cross-examination he agreed that since 1980, the Deceased’s sons one by one moved out and no longer lived in House 14. 85.According to the plaintiff, House 13 is situated on Tong’s land and for which his family all along did not have to pay any rent. 86.It is his evidence that his family and the family of the Deceased used to attend蓮江堂every Chinese New Year eve to worship their ancestors. 87.張勁之gave evidence and said that he learned from his grandmother, who was in the same generation as 張有發, that張啟林had sons named發有and有發, and that發有were adopted to張來發. He personally knew張有發, who was 2 generations more senior than he is but was only older than him by 10 odd years. About 20 odd years ago, 2 to 3 times a week he used to drive張有發to Mui Wo and had tea with him there. He heard from張有發that his father was張大根. He however has never met張大根. 88.He further gave evidence that the plaintiff’s family and the Deceased’s family used to be very close as they lived next to each other and張有發knew well his cousin張天明, who was the father of the Deceased. Moreover, 張有發and the Deceased knew each other very well, and even though they were uncle and nephew, they were close in age. Both of them also worked in the same company, ie New Lantau Bus. The Deceased worked as a mechanic while張有發washed and cleaned the buses and did sundry works. 張勁之himself also knew the Deceased very well. The only dispute the defendant has with this part of his evidence concerned the position the Deceased occupied in New Lantau Bus. 89.He further gave evidence that so far as he could remember House 13 and House 14 (before they were re-built) were there when he was 7 to 8 years old, and the Deceased and his family have been living in House 14 since then until about 15 years ago. 90.He also gave evidence confirming that the plaintiff is the son of張有發. 91.He also made a Cheung’s Family Chart in Ham Tin Village in 1985[15]. In it, it was recorded that張啟林, also named大根, was the brother of張啟良, also named根壽. And they were the sons of張盈全. He was cross-examined that there might be one or two mistakes in the Chart he made (not related to the Kinship Issue). He frankly and quickly admitted that he might have made mistakes. 92.張添德was born in 1938, as mentioned, he was the Village Head of Ham Tin Village from 1974 to 1998. His evidence was that張根壽and張大根were brothers. He was not sure whether大根was啟良or 啟林. Since very young he knew張有發personally, who was older than him by more than 10 years. He called him uncle. He gave evidence that the father of張有發was張大根. He heard about this from his mother and all other senior relatives in the village, who all said the same. He confirmed that the plaintiff was the son of張有發. 93.張根連gave evidence that張有發was his uncle (堂叔), and that he understood that張有發 and the Deceased were related. He hesitated and ultimate could not say how they were related except that he said, with hesitation, that they were from the same grandfather (which was different from the plaintiff’s case, namely that張有發’s grandfather and the Deceased’s great grandfather was張盈全). He said with more certainty that they inherit from the same branch. 94.張振宇is the son of the plaintiff. He is a university graduate. His evidence was that his grandfather張有發often talked to him about their family history. He knew his grandfather was born in 1928. He studied the Genealogies of Cheung’s Family in Ham Tin Village and compiled and produced a family chart beginning with the focal ancestor張榮蓮, the grandfather of張禮三 (“the Family Chart”)[16]. Ten villagers of Ham Tin Village, among them the 3 Elders, signed the Family Chart confirming its truth. The defendant’s witness 95.I would begin by noting that quite indisputably the Deceased’s family should have ample knowledge as to the relationship the Deceased had with the plaintiff’s witnesses and the persons mentioned by them and the persons listed in the Family Chart. Yet, the stance of the defendant was complete non-admission and putting the plaintiff to strict proof of each and every relationship listed in the Family Chart, and even such matters were by way of background. When pressed by the court in the opening of the defence case, CWK only admitted that張添德 (of 廣全 branch), 張根連and張樹森 (of 悅全 branch) and張志明 (of 進全 branch) were uncles in the same family (同族的叔伯), and put all other matters to strict proof. 96.As said, CWK was called as the only witness for the defence case. He is the 7th and youngest son of the Deceased. He was born in 1973, so was 48 years old at trial. He moved out of House 14 when he was 9 years old, and that would be in 1982. 97.In his witness statement filed 17 May 2017, he did not proffer any factual matters to respond to the plaintiff’s case and the evidence of his witnesses on this Kinship Issue. He said “it is incumbent upon the plaintiff to prove that he is a member and male descendant of Cheung’s family of Ham Tin Village under the branch of Ying Tsuen (“盈全”)”[17]. He then made a number of forensic arguments against the reliability of the Genealogies. 98.CWK’s supplemental witness statement filed on 6 March 2019 essentially contained forensic arguments and comments, rather that factual evidence, relating to some of the things said in the supplemental witness statement of張振宇filed on 9 January 2019. 99.In oral evidence, he denied that his family and the plaintiff’s family were relatives on the basis that he was told in a “casual conversation” with the Deceased that the plaintiff’s family were “outsiders”. He denied and disputed the plaintiff’s and his witnesses’ evidence that the two families had been living as neighbours for years and were related and were close, essentially on the basis that he had no personal knowledge as he had moved out of Ham Tin Village since he was 9. He was asked about when the plaintiff’s family, if they were outsiders, moved to Ham Tin Village to live next to them, his answer essentially was that he had no personal knowledge. Adverse inference to be drawn for not calling CWK’s brothers and mother as witnesses 100.In CWK’s witness statements, conspicuously no information or details whatsoever were given about his other brothers or his mother. 101.In oral evidence, CWK confirmed with the court that save his eldest brother who has passed away, the other 5 elder brothers are alive and in Hong Kong, and the 2nd eldest brother張偉沖was 60 years old at trial. So, his 5 living brothers would be aged between 60 to 49. When asked why none of the other brothers was called to give evidence, the only reason CWK offered was that he has not thought about it. This court finds the explanation completely disingenuous and was a lie as (a) this action has been on-going for over 10 years, (b) the defendant has all along been legally represented and (c) his 3rd elder brother張偉新has filed his affirmation herein on 25 February 2012 in support of the defendant’s application to set aside the default judgment previously entered. 102.CWK also confirmed that his mother was 90 years old at trial, and alive and well. He gave evidence that he has had discussions with his mother about matters in this litigation since 2010 until recently. The only reason given by CWK for not calling his mother to give evidence was essentially that he wanted to spare his mother from the trouble of giving evidence. Again, I find that explanation entirely unsatisfactory. 103.In my view, it is clear beyond peradventure that the older brothers of CWK, and particularly his mother, rather than CWK, would be in a much better position to give very pertinent evidence as to their relationship with the plaintiff’s family, particularly the relationship between張有發and the Deceased, how they addressed each other, whether the plaintiff’s family were “outsiders” and as to whether the two families had worshipped together in the ancestral halls and such. As said, I find the explanations given by CWK for failure to call them entirely unsatisfactory and I do not accept them. 104.It is well established that it is permissible for the court to draw adverse inference where a person without explanation fails to call as a witness a person who might reasonably be expected to give direct evidence on the matters in question (see Li Sau Keung v Maxcredit Engineering Ltd [2004] 1 HKC 434 at §28 and Pacific Electric Wire & Cable Company Limited v Texan Management Limited and Others CACV 90, 91, 93, 94, 95 and 96 of 2012, 17 September 2013) 105.I take the clear view that it is appropriate in the present case to, and I do, draw adverse inference against the defence case where evidence thereon could have been given by the older brothers and/or the mother. The 2 genealogies 106.The plaintiff relies on, among others, two genealogies (together “the 2 Genealogies”). 107.The first was entitled “大嶼山鹹田村張氏族譜”[18] (“1st Genealogy”). It recorded information of the Cheung clan locally in Ham Tin Village. Based on the evidence of張振宇, which I accept, it has been kept by張志誠, who was one time the Village Head of Ham Tin Village, and later on by his sons. 108.In the 1st Genealogy, it was recorded that盈全had an eldest son named大根, a 2nd son named根壽and another son named根楊who later passed away. The date and time each was born and the date of the passing of 根楊were recorded[19]. 109.The second was entitled “張氏族譜” (“2nd Genealogy”)[20]. It consisted of over 100 pages. It is a much more substantial genealogy. It has been lent to the University of Hong Kong for study and is now kept in the public library of that university. It recorded that “土福 字盈全” had 3 sons and a daughter, the eldest son named “亞根” and second son named “根秀” while the name of the 3rd son was not recorded[21]. Over the page, it was recorded that “啟良即亞根” had a son called “天明”, and “啟霖即根秀” and it was not recorded that “啟霖即根秀” had offspring. The 2 experts 110.Dr Hase and Professor Baker have each said some things on this Kinship Issue, but neither had a clear opinion and both essentially said, in my view rightly and properly, that the Kinship Issue is a matter of fact to be decided by the court. Discussion 111.The majority of the defendant’s effort on this Kinship Issue consisted of attacks against the 2 Genealogies and the Family Chart. 112.The plaintiff did not seek to dispute, as was the fact, that on the face of the records of the 2 Genealogies, there are evidently discrepancies, namely
113.I also note that there are also discrepancies between what were recorded in the 2 Genealogies and the plaintiff’s case and evidence, namely
114.This court bears in mind that entries in the 2 Genealogies in all likelihood were made based on oral hearsays, with one of the attendant consequences that a Chinese character pronounced in Cantonese might be misunderstood and recorded as another Chinese character that shares an exact or similar pronunciation. I would tend to think that the above-mentioned discrepancies relating to “啟林” versus “啟霖”, “根壽” versus “根秀” and “根楊” versus “根祥”, lend themselves to such an explanation. 115.Between the 2 Genealogies, I would tend to give more weight to the 1st Genealogy which was focused in recording information of the Cheung clan locally and had been kept by a Village Head of Ham Tin Village. 116.Amongst the 2 Genealogies and the plaintiff’s case, there is this clear discrepancy that啟林was also named根壽rather than大根and he was the younger, rather than older, brother; while啟良was also named大根, rather than根壽, and he was the older, rather than younger, brother. It seems to me that circumstances would suggest that啟良was the older brother because (a) that would explain why he was named the successor in Memorial No 66878, as usually the eldest son was the one who was given the responsibility to hold and manage family property, and (b) that tends to explain why, according to the plaintiff’s witnesses, 有發and the Deceased were close in age even though有發was a generation more senior. To decide the Kinship Issue, I do not think I need to resolve who was the older and who was the younger, though I would duly note and take into account the existence of such a discrepancy. 117.In considering this Kinship Issue, I would regard the 2 Genealogies as only part of many pieces of evidence. While duly noting the said discrepancies, I also note particularly that the 2 Genealogies recorded clearly and were in agreement that盈全had two sons, surviving at least at the time the records were entered (there is however, no evidence as to the date the 2 Genealogy were last updated), and one of the 2 sons was named根壽or根秀, and the other named 大根or亞根. 118.That said, the plaintiff’s case on the Kinship Issue in fact is well supported by the live evidence of張勁之and張添德, which I accept in full, as I find them honest and reliable witnesses for reasons already stated. 119.Both of them had been Village Head of the Ham Tin Village. Both of them knew張有發personally and very well. Both testified that the father of張有發was張大根. 張勁之also learned from his grandmother that the father of張有發was張啟林, thus proving that張大根was also known as張啟林, and I so find. 120.張勁之also testified to the relationship between張有發and the Deceased, both of whom he personally knew very well. The clear purport of the evidence of both張勁之and張添德was that the senior generation of their relatives all accepted and acknowledged the kinship between張有發and the Deceased. 121.張根連while unable to give further details gave clear evidence that he understood both families as sharing inheritance of the same branch. 122.Such evidence of the 3 Elders were not shaken at all in cross-examination. 123.Again, had the kinship between the two families were not as the plaintiff said, this court well expects the defendant would be able, in the course of these 10 years, to call witnesses to contradict it. Yet, none was called. And those in CWK’s family who are in a better position to give such evidence, namely the mother and the older brothers, were not even called, and there was no satisfactory explanation given. 124.In oral evidence, CWK belatedly and for the first time accused that the 3 Elders colluded together with the plaintiff to “frame” his family because, allegedly, the Deceased had refused to go along with a land deal some years ago and had also allegedly hindered certain effort in appointing certain person as Manager of a Tong. 125.CWK thus was accusing the 3 Elders and the plaintiff of lying, perjuring and conspiring together. Yet, these very serious accusations were not made (and not even hinted at) in his witness statements, and the factual basis for them, namely the 2 incidents (which happened years ago), were not deposed to there to alert the plaintiff for him to have a fair opportunity to investigate and respond. Such serious accusations were not mentioned in the defendant’s written or oral opening. None of the 3 Elders was cross-examined as to these serious accusations for them to respond. Yet, after they have finished giving evidence and essentially behind their backs CWK made against them such serious accusations. Such conduct was entirely unfair and clearly improper. I have no hesitation to, and emphatically, reject such accusations. 126.The result of the DNA Test clearly supports that the plaintiff and CWK shared a common male ancestor. This clearly negates the defendant’s allegation that the plaintiff’s family are outsiders. Moreover, given that the Cheung Family in Ham Tin Village is a small community (a population of only 80 people as late as 1960, according to Professor Baker), if the plaintiff’s family is related but actually belongs to another branch, it would be, in my view, highly improbable that his family is generally recognized as belonging to the盈全branch. 127.Moreover, the evidence proffered in support of the defendant’s allegation that the plaintiff’s family are outsiders is ridiculously thin in that it consisted of what CWK allegedly heard from the Deceased casually that they were outsiders. I completely reject this allegation. 128.Furthermore, the plaintiff’s case that his family worshipped with the Deceased’s in the same ancestral halls and that House 13 was situated on Tong’s Land for which his family enjoyed free use are not contradicted by any evidence at all, and I so find. 129.Examining and considering all the above evidence as a whole, and despite the said discrepancies amongst the 2 Genealogies and the plaintiff’s case, I am satisfied and find as fact, on balance of probabilities, that:-
AMENDING THE STATEMENT OF CLAIM TO CLAIM FOR CERTAIN DECLARATION 130.Upon this court’s invitation that appropriate declaration(s) might be made to finally settle the dispute(s) between the 2 families, the plaintiff applied in the course of trial to amend the Statement of Claim to include praying for a widely termed declaration regarding the plaintiff’s entitlement by way of succession with reference to蓮江堂to certain share in beneficial interest of all the land mentioned in Memorial No 66878. 131.Having heard submissions, I agreed with Mr Chow that the draft declaration was too widely framed and potentially touched on issues that have not been fairly raised regarding the other lots of land mentioned in that Memorial, which are many (over 100 lots). I therefore do not think it appropriate to make such a declaration in this action and refused the application. 132.However, concerning the Kinship Issue, it is quite clear to me that the parties have in this action a full opportunity to litigate on it which is a necessary issue of fact that I have to, and do, resolve above. I am satisfied that I should make the following declaration under the prayer for further relief in the Statement of Claim:-
133.It also necessarily follows from my findings above that the share of the Net Proceeds the plaintiff now claims has been part of an inheritance of which he is the beneficial owner, and which had been held on trust by the Deceased, and now by his Estate, for the plaintiff’s benefit. To give the plaintiff the full justice he is entitled to and to aid tracing and recovery of that sum, I am prepared to make the following further declaration. However, since I have not heard parties on it, I would make it on a nisi basis:-
DISPOSAL 134.In the premises, I find for the plaintiff’s claim and enter judgment in favour of the plaintiff against the Estate of the Deceased in the sum of HK$904,301.25. 135.I will also award interest on the said sum to the plaintiff. This is a bad case of breach of obligation of one in the position of a trustee, who, seems to me, knowingly and purposefully withheld the same from the plaintiff who has been rightfully entitled to the same. Arguably, more stringent award of interest ought to be made. However, without having heard parties, I would order, on nisi basis, that the defendant do pay to the plaintiff interest on the said sum at the Prime Lending Rate plus 1% per annum from 18 September 2010 until the date of this judgment and then after at judgment rate until full payment. 136.I will make the declaration in terms set out in paragraph 132 above. I will also, on a nisi basis, make the declaration in terms set out in paragraph 133 above. 137.The plaintiff addressed the court in closing submissions that this is a case where indemnity costs should be awarded. I agree. Among others, many of the challenges and arguments raised by the defendant went far beyond reasonable, many of his conducts seem to me indicative of bad faith and abuse of process and were unfair and improper, such as to affront this court. 138.I order on nisi basis that the defendant do pay the plaintiff his costs of this action, including all costs reserved (if any), with certificate for counsel, to be taxed on indemnity basis. 139.This above declaration made on nisi basis, award on interest and costs order nisi will become absolute within 21 days unless within that period any party applies to vary by letter, copied to the other party, setting out the precise terms of the order(s) sought and succinct grounds, where upon this court will issue paper directions.
Mr Cheung Yiu Leung, instructed by Ho Tse Wai & Partners, for the plaintiff Mr Enzo Chow, instructed by Anthony Kwan & Co, for the defendant [1] His report at p 181 to 189 of the Trial Bundles [2] Paragraph 9 of Dr Hase’s report at p 183 and 184 of the Trial Bundles [3] Paragraph 16 at p.201 of the Trial Bundles [4] At paragraph 11 of his witness statement at p 88 of the Trial Bundles [5] At paragraph 12 of his witness statement at p 104 of the Trial Bundles [6] Paragraphs 12 and 13 of his witness statement at p 163 of the Trial Bundles [7] Paragraph 16 of his witness statement at p .164 of the Trial Bundles [8] [1970] HKLR 276 [9] Paragraph 34 at p 210 of the Trial Bundles [10] Paragraph 38 at p 212 of the Trial Bundles [11] Paragraph 8(iv) at p 226 of the Trial Bundles [12] Paragraph 52 of his written closing submissions and insistently submitted orally [13] P 433 to 601 of the Trial Bundles [14] P 236-1 to 236-14 of the Trial Bundles [15] P 430 of the Trial Bundles [16] P 312 of the Trial Bundles [17] Paragraph 7 at p 161 of the Trial Bundles [18] P 314 to 327 of the Trial Bundles [19] P 327 of the Trial Bundles [20] P 366 to 423 of the Trial Bundles, each page containing 2 pages of the Genealogy [21] At p 386 of the Trial Bundles | |||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCJ 3618/2010