Harrison Liu v. Personal Representative of the Estate of Li (or Lee) Kwok Mi (or Mei)(or Mee), Deceased and Another

HCMP 146/2019

[2021] HKCFI 2527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 146 OF 2019

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BETWEEN

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Before:  Deputy High Court Judge Paul Lam SC in Court

Date of Hearing:  17 August 2021

Date of Judgment:  30 August 2021

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J U D G M E N T

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A.  INTRODUCTION

1.This case concerns the beneficial ownership of a property known as No. 103 High Street (“the Property”). The Property used to be owned by LI (or LEE)  KWOK MI (or MEI)  (or MEE)  (李幗眉), deceased (“the Grandmother”). The Grandmother’s husband was Lau Yam Shan (劉蔭山), alias Lau Nai Bun (劉乃彬)  or Lau Yum Sang (劉任生)  (“the Grandfather”). The Grandfather had other wives or concubines: one of them gave birth to the Plaintiff (“P”)’s father, and another one gave birth to the 4^th Defendant (“D4”)’s mother.  Despite these complications, one may say that the Grandmother was the grandmother of both P and D4; and P and D4 are cousins. The Grandfather and D4’s natural grandmother had another son called Lau Hing Yiu (劉慶耀), alias Lau Hang Iu.

2.The Grandmother made a will on 25 June 1957 (“the Will”). Under the Will, the Property shall be inherited by either Lau Hing Yiu’s natural son, or his duly adopted son from amongst the grandsons of the Grandfather. P claims that:

(a)  Firstly, upon a proper construction of the Will, “grandsons” included the Grandfather’s paternal grandsons only; and hence, D4 was not qualified.

(b)  Secondly, in any event, D4 had not been duly adopted as Lau Hing Yiu’s son; and, therefore, he is entitled to inherit the Property because he was the sole surviving male issue of his grandparents.

D4 denies P’s claims and contend that he is the duly adopted son of Lau Hing Yiu; and, hence, is entitled to inherit the Property.

3.P seeks the following orders in the Amended Originating Summons:

(a)  A declaration that it was the intent and wish of the Grandmother under the Will that P, now being the only grandson of the male issues of the Grandfather, is the now sole beneficiary of the Property as described and bequeathed under paragraphs 2 to 4 of the Will;

(b)  A declaration that P is entitled to all the beneficial interest of the Property under the Will;

(c)  A declaration that D4 is not the “duly adopted son” of Lau Hing Yiu under paragraph 4 of the Will, and he is not entitled to any interest of the Property under the Will;

(d)  An order that the Property be vested in P absolutely for all the entire legal and beneficial estate and interest of and in the Property; alternatively, P be appointed as the trustee of the Property under the Will;

(e)  D4 do deliver the vacant possession of the Property to P, and all monies and properties coming to his hand as a result of his wrongful possession of the Property;

(f)  Further or alternatively, an order for:

(i)  An enquiry and/or account to be taken of all the benefits, incomes or rentals received by D4 (whether through himself directly or through his agent(s)  or nominee(s))  in connection to and/or as a result of his wrongful possession of the Property;

(ii)  Further or alternatively, an enquiry and/or account as to what has happened to all the said incomes or rental incomes; and an enquiry and/or account to be taken of the profits, proceeds or property obtained by D4 as a result of such breach of trust; and/or wrongful possession of the Property;

(iii)  Payments and/or delivery up of what is found due to P after the aforesaid account and enquiry; and pending such payment and/or delivery to D4 was and is holding the same as constructive trustee for P;

(g)  Further or alternatively, an Order that Clause 4(d)  of the Will be rectified (under Section 23A of the Wills Ordinance, Cap 30)  so as to carry out the Deceased’s true intent and wish that given that the Lau Hing Yiu died without leaving any male issue and without any duly adopted son (whether by him or his widow after his death), the grandsons of the male issues of the Grandfather shall be the beneficiaries of the No. 103 High Street;

(h)  Insofar as many be necessary, leave to P to take out the application for rectification of the Will out of time (under s.23A(2)  of the Wills Ordinance, Cap. 30).

4.D4 has not made any counterclaim pursuant to O.28, r.7, Rules of the High Court (“RHC”). He merely asks the Court to dismiss P’s claims.

5.The Court has ordered that P has leave to proceed and carry on these proceedings in the absence of any person representing the estates of 1^st, 2^nd and 3^rd Defendants.

6.For P’s case, P has made two affirmations dated 30 January 2019 and 26 July 2019 respectively; and Nancy Honson (who is P’s aunt)  has made an affirmation dated 26 July 2019. For D4’s case, he has made an affirmation dated 7 May 2019. I have considered these affirmation evidence as well as the oral and written submissions made by their counsel, namely, Mr Chan leading Mr Ma for P, and Mr Wong for D4.

7.For reasons that I shall explain below, the absence of any oral evidence from the factual witnesses and any expert evidence on Chinese Law and Customs have created significant difficulties. I raised my concerns at the beginning of the hearing. Both parties confirmed that they are content that the issues shall be resolved by reference to the evidence before the Court only.

B.  THE FAMILY

8.The Grandfather appears to be a draughtsman, who later became a merchant. He was a business manager of an architect, namely, Mr Chiu Kwan Chee which ran an architect firm called K. C. Chin & Co. As mentioned, he had a wife and many concubines: his wife was Yeung Shi (楊氏); and his 5 concubines were the Grandmother, Luk Wan Pink (陸雲冰), Ng Yuen Fong (吳婉芳)  alias Ng Siu Wah (吳少華), Chau Mo Ching (周慕貞)  and Leung Chun (梁珍).  The parties have some disputes as to how many children, in particular, daughters, the Grandfather had; and who their natural mothers were. The disagreements in this respect are immaterial for the present purpose.

9.P says Yeung Shi gave birth to a daughter called Lau Shuk Chong (劉淑莊)  whereas D4 says that she gave birth to a son whose name was unknown. Even if she did have a son, it seems that he must have passed away at a very young age. He, if existed, may be ignored for the present purpose. D4 is unable to say who the natural mother of Lau Shuk Chong was if she was not Yeung Shi, but it does not matter.

10.There is no dispute that the Grandmother did not have any child of her own.

11.There is also no dispute that Luk Wan Pink (who passed away in about April 1958)  gave birth to 3 children (2 sons and 1 daughter):

(a)  Lau Hing Kan (劉慶根), also known as Henry H. K. Liu (i.e. son)  – he was born on 13 July 1922; the Grandfather described him as his first son in his will; he graduated in Pui Ying High School and then continued to study in the then Lingnan University in Hong Kong until Japan invaded Hong Kong in late 1941; the whole family then left Hong Kong and went to live in Zhong Shan; he then went to the inner part of the Mainland on his own and eventually stayed in Chongqing and Chengdu; he returned to Hong Kong with the whole family after the end of the Second World War in about 1946; in 1947, he went to the USA to study in the University of California; he became an architect; he married Madaline Lowe and settled in San Francisco, California, USA; he had 3 daughters and 1 son; his son was P, who was born on 19 September 1967.

(b)  Lau Hoi Yiu (劉凱瑤)  (also known as Lau Shuk Mui (劉淑梅)  and subsequently Nancy Honson)  (i.e. daughter)  – she was born on 16 June 1929; she worked in K. C. Chin & Co, an architect firm, from 1950-1959; in about July 1959, she married Guy Honson; and in about October 1959, she left Hong Kong to live in Sydney, Australia, for good.

(c)  Lau Hing To (劉慶滔)  (i.e. son)  – he was born on 14 July 1926; the Grandfather described him as his fourth son in his will; he finished his economic course in Guangzhou Lingnan University; he used to be a civil servant working as a prison warden in Hong Kong; he left Hong Kong and joined Lau Hing Kan to settle in the USA in the 1960s; he was never married and did not have any child.

12.P claims that Ng Yuen Fong gave birth to 4 children (2 sons and 2 daughters):

(a)  Lau Shuk Hann (劉淑嫻)  (i.e. daughter).

(b)  Lau Hing Yiu (劉慶耀)  (or Lau Hang Iu)  (i.e. son)  – he was the Grandfather’s second son born on 26 November 1923; it seems that he stopped going to school after the Japanese occupation of Hong Kong and never returned to study.

(c)  Lau Hing Chuen (劉慶泉)  (i.e. son)  – he was the Grandfather’s third son. He is now living in Macau.

(d)  Lau Shuk Ching (or Lau Shuk Tsing)  (劉淑貞)  (i.e. daughter)  - she was born on 28 October 1929; and was the mother of D4. D4 says she was called the sixth sister (六妹)  by his uncles and aunts as she was the sixth born amongst the daughters of the Grandfather.

D4 denies that Lau Shuk Hann and Lau Hing Chuen were Ng’s children. He does not mention Lau Shuk Hann at all and claims that Lau Hing Chuen (or Lau Hing Chun)  was the son of Chau Mo Ching instead.

13.P is unaware that Chau Mo Ching (whom the Grandfather described as his fifth wife or concubine in his will)  had any child. D4 says that she gave birth to Lau Hing Chuen and two daughters whose names are unknown.

14.Both parties agree that Leung Chun (whom the Grandfather described as his sixth wife or concubine in his will)  gave birth to a daughter whose name is unknown.

C.  THE PROPERTY

15.The Deceased became the sole registered owner of the Property by an assignment dated 20 April 1922 at the consideration of HK$6,000.

16.D4 says that Lau Hing Yiu and Lau Shuk Ching lived together with the Grandmother in the Property save and except the period when the family took refuge in the Mainland during the Second World War. The Property was described as the address of (a)  the Grandfather and Ng Yuen Fong on the birth certificates of Lau Hing Yiu and Lau Shuk Ching respectively; (b)  Luk Wan Pink on the birth certificate of Lau Hoi Yiu; (c)  the Grandmother on the Will; and (d)  the Grandfather on his will.

17.It seems clear that, for a fairly long time, the Property was used as the home of some family members. The Grandfather’s will indicates that, by 1961, he had another residence with Chau Mo Ching at 3/F, No. 417 Hennessy Road; and another one with Leung Chun at 1/F, No. 309 Lockhart Road.

D.  RELEVANT EVENTS BEFORE AND AFTER THE WAR

18.As mentioned, the whole family took refuge in the Mainland when Japan invaded and occupied Hong Kong during the Second World War. Ng Yuen Fong died during that period in the Mainland. Hence, her children, including Lau Hing Yiu and Lau Shuk Ching, lost their natural mother. Lau Hing Yiu got married with Tam Kwok Mui (“Tam”)  during that period.

19.The family returned to Hong Kong after the War. D4 says that the Grandmother (who was childless)  assumed the role of mother, and treated Lau Hing Yiu and Lau Shuk Ching as her own children.

20.Lau Hing Yiu and his wife, Tam, moved to Singapore in the 1950s. His wife, Tam, was infertile; and they did not have any child.

21.Lau Shuk Ching was married to Li Pang Fai (李鵬飛)  in about 1952. They then moved to Macau. D4 was born on 21 December 1953 in Macau.

22.D4 says that, in about 1954, the Grandmother asked Lau Shuk Ching’s family to come back to Hong Kong, and arranged a flat near the Property for them to live in. D4 says he was dear to the Grandmother as she treated him as his natural grandson. She even arranged him to study at St Stephen’s Church Kindergarten and paid for the tuition fees.

E.  THE WILL AND THE GRANDMOTHER’S DEATH

23.D4 says that, in about 1957, the Grandmother was diagnosed with terminal cancer. She then made the Will.

24.The Will was prepared by P. C. Woo & Co, a firm of solicitors. The Grandmother executed the 1957 Will on 25 June 1957, which was witnessed by Mr P. C. Woo (a solicitor)  and Mr P. K. Lai (a legal clerk)  (“Lai”). According to the interpretation clause, before she signed the Will, it was interpreted to her in Cantonese by Lai when she “appeared to thoroughly understand the same and said that it was in accordance with her intentions”.

25.In Clause 1 of the Will, the Grandmother appointed the Grandfather to be her sole executor and trustee:

“I APPOINT my husband LAU YAM SHAN (劉蔭山)  to be the sole executor and trustee of this my will and the guardian of my infant children, and he or other the trustee for time being hereof is hereinafter called “my trustee”.”

She did not have any child. It is unclear why she referred to infant children or who she had in mind.

26.Although Clause 2 of the Will is not in issue, it is worth mentioning. The Grandmother owned another property known as No. 101 High Street, which should be adjacent to the Property. Under Clause 2 of the Will, she empowered her trustee to, inter alia, sell No. 101 High Street; and then use the proceeds thereof to rebuild the building then situated at the Property and to pay the sums mentioned in Clause 4(b); and if the sale proceeds were insufficient for the reconstruction of the building on the Property, he may mortgage the Property to obtain finance to recomplete the reconstruction. Clause 2(e)  provided that the trustee may:

“in case of need, to mortgage or charge the [Property] Together with the existing or other new building or erections thereon or any part or parts thereof for the purpose of raising such sum as shall not exceed the extent of $5,000 Hong Kong Currency to defray any fees for medical practitioners, medical expenses and other fees or expenditure of a similar nature for LAU HING YIU (劉慶耀)  being one of the sons of my husband PROVIDED that no mortgagee or chargee advancing money on a mortgage or charge purporting to be made under this power shall be concerned to see that such money is wanted, or that no more than is wanted is raised, or otherwise as to the application thereof.”

27.Under Clause 3 of the Will, the Grandmother directed that, if circumstances permitted, her trustee shall not sell, mortgage or charge the Property (save and except for the purposes specified in Clauses 2(d)  and (e)  i.e. to obtain finance for reconstruction or to pay the medical expenses of Lau Hing Yiu). It is clear that she intended that, insofar as possible, the Property should not be sold. What should happen to the ownership of, and incomes derived from, the Property is the subject matter of Clause 4 of the Will.

28.Clause 4 of the Will is the most important clause in these proceedings:

“4. I hereby further DECLARE AND DIRECT that my Trustee shall hold the said leasehold property Subsection 8 of Section A of Inland Lot no. 679 together with the messuage or tenement and other erections and buildings thereon upon the following trusts:-

(a)  To apply the net rents, incomes and profits thereof for the purpose of payment off any mortgage or charge thereon;

(b)  After the payment off of such mortgage or charge (if any)  and subject to payments having been made in pursuance of Clause 2(c)  hereof to pay out of the net rents incomes and profits thereof (first)  to YEUNG SHI (楊氏)  the first wife of my husband the sum of $1,000.00 Hong Kong Currency for her own use and benefit absolutely, (secondly)  to LAU SHUK CHONG (劉淑莊)  a daughter of my husband the sum of $1,000.00 Hong Kong Currency for her own use and benefit absolutely, (thirdly)  to LAU HING KAN (劉慶根)  another son of my husband the sum of $2,000.00 in Hong Kong Currency for his own use and benefit absolutely, (fourthly)  to LAU HING To (劉慶滔)  another son of my husband the sum of $1,000.00 Hong Kong Currency for his own use and benefit absolutely, (fifthly)  to LAU SHUK MUI (劉淑梅)  another daughter of my husband the sum of $1,000.00 Hong Kong Currency for her own use and benefit absolutely and (lastly)  to LAU SHUK TSING (劉淑貞)  another daughter of my husband the sum of $2,000.00 Hong Kong Currency for her own use and benefit absolutely.

(c)  after the payments mentioned in the preceding sub-clauses (a)  and (b)  to pay all the balance of the said rents, incomes and profits to the said LAU HING YIU (劉慶耀)  for his own use and benefit absolutely until his death;

(d)  after the death of the said Lau Hing Yiu the said leasehold property … (No. 103 High Street)  and all rents, incomes and benefits thereof shall be held upon trust for all the male issues of the said Lau Hing Yiu in equal shares PROVIDED THAT if the said Lau Hing Yiu shall die without leaving any male issue my Trustee shall hold the said leasehold Property … (No. 103 High Street)  and all rents, incomes and benefits thereof for an adopted son of the said Lau Hing Yiu duly adopted by him or by his widow upon his death from amongst the grandsons of my husband.”

29.Lastly, Clause 5 of the Will provided that:

“5. I DEVISE AND BEQUEATH all my estate both real and personal whatsoever and wheresoever not hereby or by any codicil hereto otherwise specifically disposed of with power to sell call in and convert the same into money and after payment out of the money arising thereby or out of my ready money of my debts funeral and testamentary expenses to deal with and distribute the residue thereof in such manner as my Trustee shall in his absolute discretion think fit.”

30.The Deceased died on 19 October 1957, about 4 months after she executed the Will.

F.  THE APPOINTMENT OF TRUSTEES FOR THE PROPERTY

31.On 31 May 1958, probate of the Will was granted by the Supreme Court of Hong Kong in its Probate Jurisdiction (No. 220 of 1958)  to the Grandfather as the sole executor of the Will. He then became the trustee of the Property.

32.Lau Hoi Yiu says that the building on the Property was re-built between 1958 and 1959 apparently pursuant to the Grandmother’s directions as stated in the Will. It seems to be a 6-storey building which is still standing on the Property at present.

33.The Grandfather died on 15 September 1962. On 2 May 1963, probate of his will dated 26 October 1961 was granted by the Supreme Court of Hong Kong in its Probate Jurisdiction (No. 337 of 1963)  to Chau Mo Ching, Leung Chun, Lau Hing Kan and Lau Hing To as executors of his will. They became the trustees of the Property.

34.By a Deed of Retirement of Trustees and Appointment of New Trustee dated 27 April 1964, Chau Mo Ching, Leung Chun and Lau Hing Kan retired, Lau Hing To remained and Lau Shuk Ching was appointed as trustees so that the following persons became the trustees of the Property, namely, Lau Hing To and Lau Shuk Ching. However, on the land register, Chau Mo Ching, Leung Chun, Lau Hing Kan and Lau Hing To remain to be the registered owners of the Property in their capacity as executors.

35.It is unclear how the trustees had performed their duties. One may assume that fixed sums had been paid to those persons named in Clause 4(b)  of the Will. As I shall mention below, the title deeds of the Property have all along been in the hands of the trustees or their designated custodians. On the other hand, in practice, it appears that, at one stage, the Property had come under the factual control of Lau Hing Yiu; and Lau Hing Yiu started to collect rental incomes derived from the Property.

G.  THE ALLEGED ADOPTION BY LAU HING YIU OF D4 AS HIS SON

36.D4 claims that that Lau Hing Yiu and his wife returned to Hong Kong from Singapore in about 1965, and lived with Lau Shuk Ching at Cheung Fat Mansion, Nos. 10-10B Cheung Fat Street, Flat B, 6^th floor, Sham Shui Po, Kowloon. In about 1966, they moved to Flat S, 9/F, 3 Kam Lam Street in Mongkok (“the Kam Lam Flat”)  where the two families continued to live together until 1970s when Lau Hing Yiu and Tam moved to Yau Ma Tei. D4 is still living at the Kam Lam Flat.

37.D4 says that, in about September 1969, they had family dinner at home in the Kam Lam Flat to celebrate the Mid-Autumn Festival. Lau Hing Yiu reminded Lau Shuk Ching of the Grandmother’s wish to pass the benefits of the Property to D4. Lau Hing Yiu then sought the consent and approval of D4’s parents for him to carry out the adoption. D4’s parents agreed. In the presence of D4’s parents and Tam, Lau Hing Yiu expressly adopted D4 as his son. At that time D4 was almost 16 years old.

H.  LAU HING YIU’S ALLEGED DECLARATION DATED 28 JANUARY 2003

38.D4 went to Canada in 1973 and returned in 1993.

39.D4 says that, on 28 January 2003, Lau Hing Yiu signed the following declaration in Chinese (“the Declaration”):

“本人劉慶耀 LAU HANG IU 又名LAU HING YIU身份証号碼 203541(7)  依据先母李幗眉遺囑承受香港高街103号全座物業為終生受益人 .若本人生前無兒子！可指定先父GRANDSON為継承人接管香港高街103号全座物業一切！

今後香港高街103号全座物業共六層樓所有租金交由本人指定承継子李志堅先生收租及簽發租单 並負責交差餉及一切稅务地租！並通知稅务局及差餉物業管理署更改姓名！

本人在九龍油麻地中央邮局信箱71820号租用已卅多年 所有一切文件包括差餉单稅务局水費单都一向直接寄到該信箱收取！信箱租金$320. 亦已交清交直至2004 年1月24日止.

香港高街103号全座物業受益人

刘庆耀

28-1-2003年

（以上是本人亲笔簽名）

又以上本人指定之承継子李志堅

其亲生母亲刘淑貞亦是本人

六妹又是高街103号受託人”

40.It appears that, since then, D4, has been dealing with all matters relating to the Property, including the collection of rental incomes. Since 2 July 2008, the Property has been subject to a notice issued by the Building Authority under s.24C(1)  of the Building Ordinance. The present state of the building on the Property is unclear. It seems that it is partly vacant, and partly occupied by tenants (the particulars thereof are unknown).

I.  DEATH OF P’S FATHER AND THE TRUSTEES OF THE PROPERTY

41.P’s father, Lau Hing Kan, died on 4 January 1983 in San Francisco.

42.As to the two trustees of the Property, Lau Shuk Ching died at the age of 67 on 8 August 1997 in Hong Kong whereas Lau Hing To died at the age of 75 on 9 December 2001 in San Francisco. Hence, there is not surviving trustee of the Property.

J.  DEATH OF LAU HING YIU

43.Lau Hing Yiu died at the age of 89 on 31 January 2013 in Hong Kong.

K.  EVENTS LEADING TO THESE PROCEEDINGS

44.On 29 October 2014, Huen & Partners, upon D4’s instructions, sent a letter to Lau Hoi Yiu asking for a copy of the death certificate of Lau Hing To. They were preparing and drafting the documents to apply for a grant de bonis non in relation to the Property for D4. Huen & Partners had apparently written to Lau Hoi Yiu previously on 19 September 2014, to which she had not replied.

45.On 11 November 2014, Lau Hoi Yiu received the said letter dated 29 October 2014. She then spoke to a Mr Daniel Wong of Huen & Partners on 14 November 2014, and directed him to contact P. However, no one from that solicitors’ firm had contracted P.

46.On 28 October 2017, Lau Hoi Yiu wrote to P and his 3 sisters. She asked whether P had done anything to the Property; she said that Lau Hing To used to be the trustee of the Property, and had used the rental incomes to support Lau Hing Yiu’s living expenses; she took the view that P is entitled to inherit the Property being the son of the eldest son of the Grandparents (namely, Lau Hing Kan); and the title deeds of the Property had been sent to P’s mother when she was alive. She attached Huen & Partners’ letter dated 29 October 2014 and the Will. It seems that the Grandfather obtained the title deeds after the death of the Grandmother. They were then passed to Lau Hing To, who then passed them to Lau Hoi Yiu.

47.In these circumstances, the issue of ownership of the Property came to P’s notice in about November 2017. He then instructed Jason W. Chin, an American attorney, to contact Ronald Kwok Fai Poon of K. B. Chau & Co (who were then acting for D4)  by a letter dated 15 March 2018. In the letter, it was stated that P was the sole grandson of the Grandfather, and neither Lau Hing Yiu nor his wife had any children by birth or adoption of a certain grandson from the pool of grandsons of the Grandfather; hence, under the Will, after Lau Hing Yiu’s death, P should be the sole beneficiary of the Property.

48.In response to an email from Ronald Poon, Jason Chin, by another letter dated 16 March 2018, provided some documents and elaborated on why P should be entitled to the Property under the Will.

49.On 20 March 2018, K. B. Chau replied that D4 had been adopted by Lau Hing Yiu and attached a copy of the Declaration. They also said that the de bonis grant of Lau Shuk Ching in Probate No. HCAG008598/15 had been stalled because they were unable to comply with the requirement of a surety bond. Jason Chin wrote back on the same day asking for further documents and legal authorities.

50.By a letter dated 22 March 2018, K. B. Chau & Co stated that they were dealing with the probate of Lau Shuk Ching only, but not that of the Grandmother; and, furthermore, their client, namely, D4 had withdrawn instructions.

51.By a letter dated 30 March 2018, Jason Chin referred to an email from Ronald Poon dated 21 March 2018 and his letter dated 22 March 2018. He asked Ronald Poon to produce documentary proof that D4 had withdrawn instructions; and to inform him if he was retained again.

52.On 30 April 2018, P filed a Caveat that no grant de bonis non administration of the Grandmother’s estate shall be sealed without his notice. On 2 May 2018, he filed a similar Caveat in respect of the estate of Lau Shuk Ching.

53.P issued the originating summon herein on 30 January 2019.

L.  THE ISSUES

54.In my view, there are 3 key issues. First, upon a proper construction of the Will, whether the word “from amongst the grandsons of my husband [i.e. the Grandfather]” in Clause 4(d)  thereof referred to his paternal grandsons only as contended by P; or any of his grandsons (whether paternal or maternal)  as contended by D4. If P succeeds on this issue, D4 would not be qualified to be adopted by Lau Hing Yiu for the purpose of Clause 4(d)  of the Will; and it will be unnecessary to consider the next issue. But if P fails on this issue, it will be necessary to move on.

55.The second issue is whether D4 was “an adopted son of the said Lau Hing Yiu duly adopted by him”. P denies the fact as alleged by D4 that he had been adopted by Lau Hing Yiu; and claims further that, even if what D4 alleges is factually true, he had not been duly adopted as a matter of law. If P succeeds on this issue (but not otherwise), it will be necessary to consider the last issue.

56.The third issue is, if D4 is not entitled to inherit the Property, who shall be entitled to do so.

M.  PROPER CONSTRUCTION OF THE WORD “GRANDSONS” IN CLAUSE 4(d)  OF THE WILL

57.The principles applicable to construction of wills are well established and are not in dispute. They were set out by Ribeiro PJ in Tan Cheng Gay v Tan Choo Suan (2015)  18 HKCFAR 430 at 442-443, §§33-40:

“D.1 The common law principles

33. We have the benefit of the authoritative exposition of the principles applicable to the construction of wills provided by Lord Walker of Gestingthorpe NPJ in the recent decision of this Court in Secretary for Justice v Joseph Lo Kin Ching, a decision drawing substantially upon the judgment of Lord Neuberger of Abbotsbury in Marley v Rawlings.

34. As Lord Walker NPJ points out, wills have as two important features (i)  the fact that they are unilaterally created documents and (ii)  that they have an ambulatory character, that is, that they are intended to take effect from the time of the testator’s or testatrix’s death, which may be some time after the will was executed. These features must be borne in mind when construing a will.

35. Against that background, it is now established that, subject to statutory regulation, one adopts the same approach to interpreting wills as one does to interpreting contracts and other legal documents: “... the aim is to identify the intention of the party or parties to the document by interpreting the words used in their documentary, factual and commercial context”.

36. In other words, subject to statute:

“...the court is concerned to find the intention of the party or parties, and it does this by identifying the meaning of the relevant words, (a)  in the light of (i)  the natural and ordinary meaning of those words, (ii)  the overall purpose of the document, (iii)  any other provisions of the document, (iv)  the facts known or assumed by the parties at the time that the document was executed, and (v)  common sense, but (b)  ignoring subjective evidence of any party's intentions.”

37. This approach is consistent with the well-known “arm-chair” principle, save that it must be kept in mind that that principle looks to context as at the time the will is made whereas the will speaks from the time of death regarding any general description of property.

38. Lord Walker NPJ’s summary of the “two all-important principles of construction” are of particular present relevance, namely “that the words must be read and understood in their context, and that the will must be read as a whole”. This requires the Court to adopt an “iterative” process, checking each of the rival meanings against the other provisions of the document and investigating its practical consequences, and:

“It may require the court to go forwards and backwards painstakingly between the various words and phrases, occurring in different parts of the document, which give rise to the problem.”

D.2 Section 23B of the Wills Ordinance

39. Section 23B provides:

(1)  This section applied [applies] to a will-

(a)  in so far as any part of it is meaningless;

(b)  in so far as the language used in any part of it is ambiguous on the face of it;

(c)  in so far as evidence, other than evidence of the testator's intention, shows that the language used in any part of it is ambiguous in the light of surrounding circumstances.

(2)  In so far as this section applies to a will extrinsic evidence, including evidence of the testator's intention, may be admitted to assist in its interpretation.”

58.Mr Chan, citing the “armchair” principle, asks me to pay attention to various special features in the Will and its context. He reminds me that the Grandmother was a concubine of the Grandfather. He refers to the fundamental principle of preservation of the family property belonging to the male line under Chinese Law and Customs (Tsang Yuet Mui v Wan On, HCMP2314/2012 (23 September 2014, unreported), §52; Wong Yuk Wah v Personal Representative of the Estate of Wong Tak [2017] 1 HKLRD 1184 at 1191, §§32-33). He relies most heavily on the words “male issues” in Clause 4(d). It shows that the Grandmother’s intention was to keep the Property amongst the male descendants of the Lau family who bear the surname Lau. She also made it clear that the Property shall be held on trust for Lau Hing Yiu’s male issues (if any)  in equal shares, which means that Lau Hing Yiu would not have any discretion in this respect. He also highlights that, if Lau Hing Yiu did not have any male issue, not only that he may adopt a son during his lifetime, but his widow may also adopt one after his death. He submits that posthumous adoption was a peculiar feature of Chinese Law and Customs. And under Chinese Law and Customs, generally speaking, one may only adopt a son from the same lineage bearing the same surname. For these reasons (and other points he developed in his submissions which I will not repeat), he contends that, the word “grandsons” should mean the Grandfather’s paternal grandsons only.

59.Mr Wong accepts that the term “male issues” refers to males in the exclusively male line (Cros’ Settlement Trusts [1961] WLR 1252 at 1256-7). However, he argues mainly that, the word “grandsons” should be given its natural and ordinary meaning, which would include both the Grandfather’s paternal and maternal grandsons.

60.To begin with, the Grandmother was certainly not a concubine living in a small village in the New Territories who was uneducated, submissive and wholly dependent on her husband. There is little evidence about her background. That said, it seems that she was well-off. According to her will, she owned 2 pieces of land, each was valued at HK$20,000 in 1958. There is no evidence that the Grandmother was not the true beneficial owner of those 2 pieces of land. I do not agree that they, in particular the Property, could be treated as a property owned by the family as a whole. It is clear that she treated the Property (and also the other piece of land)  as entirely her own personal property; and had given very careful thoughts as to how they should be dealt with after her death.

61.Mr Wong informed me at the hearing that the Grandmother was a Christian; and Mr Chan had not disputed that probably because P did not know whether that was true. I note that D4 has not said in his affirmation that she was a Christian, and merely stated that she made arrangements for him to study at St Stephen’s Church Kindergarten. On the evidence, one may only infer that she had some connections to the Church. What is more telling, and perhaps unusual in her days, is that she instructed a firm of solicitors to prepare a will in English for her. While I have no doubt that she would adhere to the traditional Chinese culture and customs, it is clear that she practiced some Western values at the same time.

62.She had devised a meticulous plan to deal with the Property after her death. First, she did not allow all family members to have some interest (whether a fixed sum, life interest or otherwise)  in the Property. She had selected some of them only. Most notably, she did not give any interest to her husband i.e. the Grandfather. Among the wives or concubines of the Grandfather, she only gave a fixed sum to Yeung Shi but none of his other concubines. As to the Grandfather’s children, she only gave some interests to 6 of them.

63.Second, she did not favour males exclusively. As mentioned, she did not give any interest to her husband. Among the Grandfather’s children, she gave fixed sums to 3 of his daughters, namely, Lau Shuk Chong, Lau Shuk Mui and Lau Shuk Ching; and she did not give any interest at all to one of his sons, namely, Lau Hing Chuen.

64.Third, she did not give the same interest to the beneficiaries. 6 of them were given fixed sums only, namely, Yeung Shi, Lau Shuk Chong, Lau Hing Kan, Lau Hing To, Lau Shui Mui and Lau Shuk Ching. Further, the sums given to them were not identical. She gave HK$2,000 each to Lau Hing Kan and Lau Shuk Ching; and HK$1,000 each to Yeung Shi, Lau Shuk Chong, Lau Hing To and Lau Shuk Mui. It is unclear why there was such a difference; but it is clear that the amount given was not based on the gender of the individual beneficiary.

65.Fourth, and more importantly, it is clear that, for whatever reasons, the Grandmother intended to treat Lau Hing Yiu most favourably; and much more favourable than any other beneficiaries. To begin with, under Clause 2(e)  of the Will, she empowered the trustee to charge or mortgage the Property to pay for the medical expenses of Lau Hing Yiu. The health condition of Lau Hing Yiu at that time, and the reason why the Grandmother found it necessary to provide a substantial sum of HK$5,000 (which was significantly much more than the fixed sums mentioned in Clause 4(b))  for such specific purpose, were unknown. Nevertheless, no similar special treatment on whatever grounds had been given to any other person. Moreover, under Clauses 4(a), (b)  and (c)  in respect of the incomes derived from the Property, apart from using them to pay off any charge or mortgage, and the fixed sums for the 6 specific family members mentioned above, they were all given to Lau Hing Yiu during his lifetime.  In other words, Lau Hing Yiu was the only person who had been given a life interest in the Property.

66.That said, what is interesting is that the Grandmother did not give the absolute beneficial ownership of the Property to Lau Hing Yiu. Hence, during his lifetime, he would only be entitled to enjoy the incomes derived from the Property; and the Property would be under the control of the trustee who was directed not to sell, or charge (save and except for reasons set out in Clauses 2(d)  and (e))  the Property.

67.Clause 4(d)  dealt with the critical question of what should happen to the Property after Lau Hing Yiu died. In this respect, she also favoured Lau Hing Yiu exclusively. She did not give any interest in the Property to any of the siblings of Lau Hing Yiu (or any descendants thereof)  in such event. It is clear that she intended to give the beneficial interest of the Property to the male descendants of Lau Hing Yiu exclusively after his death.

68.Accordingly, and naturally, she provided in the first part of Clause 4(d)  that, if Lau Hing Yiu had any “male issues”, the Property should be held on trust for them in equal shares. The word “issue” in its legal sense means descendants of every degree (Williams on Wills (10^th ed., 2014), [76.1], p 809); and hence, a bequest to issue prima facie included descendants of every degree (Theobald on Wills (19^th ed., 2021), §29-016, p 624). There is no dispute that the expression “male issue” and “issue male” are legal terms of art and prima facie denote only the sons and remoter male issue in the exclusively male line (Theobald on Wills (19^th ed., 2021), §29-020, p 626; Williams on Wills (10^th ed., 2014), [76.5], p 812).  It is therefore clear that the Grandmother intended to exclude the female issues of Lau Hing Yiu. The potential beneficiaries would include Lau Hing Yiu’s son(s), grandson(s)  or great grandson(s)  (if any). It is correct that she provided specifically that in case there was more than one male issue, the Property should be held on trust for them in equal shares. This was logical and reasonable in the circumstances because, at the time when she executed the Will, Lau Hing Yiu did not have any son. There was no rational basis for her to prefer any particular male issue(s)  to the others when none had come into existence yet. In theory, there could be other options: for example, she could have chosen the eldest son of Lau Hing Yiu; or could simply leave it to Lau Hing Yiu to decide amongst his male issues. It is clear that it was after careful consideration that she decided that no discretion in this respect should be given to Lau Hing Yiu, and no preference should be shown to any particular male issue of Lau Hing Yiu because of seniority or otherwise.

69.As just mentioned, at that time, Lau Hing Yiu did not have any child at all; and Tam was infertile. Lau Hing Yiu was by then about 34 years old; and was still relatively young. There was a real possibility that he may have children, in particular, if he married a concubine which was still permissible in those days; or if he had another wife because Tam left him for whatever reasons. However, it must have occurred to the Grandmother that there was also a possibility that Lau Hing Yiu may not have any natural male issue. Clause 2(e)  indicates that he had some rather significant medical problems, which might have an impact on his life expectancy. That must be the reason why she had to include a provision in Clause 4(d)  to provide for such contingency i.e. “if the said Lau Hing Yiu shall die without leaving any male issue”.

70.In such event, she still favoured Lau Hing Yiu exclusively. For example, she did not provide that the Property should then go to any natural male issue of the male siblings of Lau Hing Yiu. In line with her intention that the Property should ultimately go to the male issue(s)  of Lau Hing Yiu (but not anyone else), if he did not have any natural male issue, she wished to pass the Property to a male who would be regarded as a male issue of Lau Hing Yiu.  Hence, the second part of Clause 4(d)  provided that, in such event, “my Trustee shall hold [the Property] and all rents, incomes and profits thereof for an adopted son of the said Lau Hing Yiu duly adopted by him or by his widow after his death from amongst the grandsons of my husband”.

71.The following points should be noted. First, she did not give an absolute discretion to Lau Hing Yiu to decide who should take the property after his death. She made it clear that it had to be his adopted son. The phrase “an adopted son” was in singular. She did not contemplate that Lau Hing Yiu would have more than one adopted son, which was inherently improbable and unnecessary.

72.Second, she prescribed how a son may be adopted, and who may be adopted, by Lau Hing Yiu. As to how a son may be adopted, she made it clear that not only that Lau Hing Yiu may do so during his lifetime, but his widow may also adopt a son for him after his death. Posthumous adoption was recognized under Chinese Law and Customs. This indicates that she was keen on maximizing the chance that the Property would be inherited by a male descendant of Lau Hing Yiu to be chosen either by him or his widow.

73.More importantly, as to who may be adopted, she did not give an absolute discretion to either Lau Hing Yiu or his widow. She stipulated that such a person must be amongst the grandsons of the Grandfather. It is plain and obvious that she did not wish the Property to end up in the hands of a stranger who had no blood relationship with her family at all. She said it must be one of her husband’s grandsons. It boils down to what “grandsons” was intended to mean in the present context.

74.One should perhaps start with the natural and ordinary meaning of the word. As stated in Theobald on Wills (19^th ed., 2021), §18-010 at pp 352-353:

“Prima facie the words and phrases used in a will are to be given their ordinary meaning. This rule is called in this book the “ordinary meaning” rule: it is sometimes called the “literal” or even the “golden” rule. What follows remains relevant in the senses that the correct approach to the interpretation of wills following Marley v Rawlings includes taking into account the natural and ordinary meaning of those words, although it would be overstating matters to speak in terms of rules or presumptions (as previous editions of this work acknowledged). As Lord Hoffmann explained in Investors Compensation Scheme Ltd v West Bromwich Building Society Ltd, the focus on the natural and ordinary meaning of words reflects what was described as “the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents” (which obviously includes wills).”

75.The natural and ordinary meaning of “grandsons” would include both paternal and maternal grandsons. The question is, having regard to the context and purpose of this provision in Clause 4(d)  of the Will, whether there are reasons to confine the word to mean paternal grandsons only. I agree that the Grandmother intended that the Property should go to a person who would be regarded properly as a male issue of Lau Hing Yiu. But it does not follow that she must have also intended that Lau Hing Yiu must choose an adopted son among the paternal grandsons of the Grandfather. A duly adopted son would, for all practical purposes, be deemed or regarded to be a male issue of Lau Hing Yiu.

76.I agree that one must bear in mind that the Grandmother must have in mind the Chinese customs on adoption as evidenced by her specific reference to posthumous adoption. I am aware that, under the Chinese Law and Customs, usually, the adopting parents would choose a male of the same kindred, first starting from sons of his full-blood brothers and then from sons of half-blood brothers; the purpose of choosing from paternal descendants is to ensure that the adopted son would be of the same ancestor and same surname (see e.g. Re the estate of Wong Lucien alias Lucien Wong, deceased, HCAP12/2000 (17 March 2004, unreported), §63). However, Mr Chan fairly accepted that there is no hard and fast rule that only a child of the same family name and of the next generation to the adoptive parents may be adopted. In Ngai Chung Shi v Ngai Yee Mui (1927)  22 HKLR 105 at 109-110, Wood Acting CJ held that:

“…I am prepared to hold that where adoption is necessary in order to prevent the extinction of a family such adoption may be made by the person entitled to adopt of any male whatever his surname, if he be suitable, and that such person will thereby become the representative of that family by right of nomination and not by right of blood and that he will be entitled in due course to inherit the family property provided he undertakes the performance of the family religious rights.”

In Yau Tin-sung v Yau Wan-loi [1984] HKLR 15 at 19, Liu J held that:

“In line with the gradual shift of attitude towards tolerating non-compliance of rituals or even marriages between persons of the same surname, it is not difficult to understand the ready acceptance of adoptions of a stranger of a different surname.”

The real limitation seems to be that an adopted person must be a child born of another person and not the natural child of the adopter himself, whether or not the child is legitimate (Chow Shun Yung v Ethel Lew [2006] HKCLRT 389 at 397, §35).

77.It is significant to note that the Grandmother had not included any provision to cater for the scenario that either Lau Hing Yiu or his widow had not adopted any son for Lau Hing Yiu. It was highly probable that she was satisfied that it would be possible for them to do so. She could only be so satisfied if there was already at least one, if not more, potential candidate for adoption at the time when she made the Will. The important point is that, on the evidence, the Grandfather did not have any paternal grandson by then. As to the three brothers of Lau Hing Yiu, Lau Hing Kan did not have any son at that time; P was born long after the Grandmother died; Lau Hing To was not even married; there is no suggestion that Lau Hing Chuen (who was not mentioned at all in the Will)  had any son by then. The Grandmother could not possibly predict whether any of them would have any son in the future. To confine “grandsons” to paternal grandsons would create a real risk that there was simply no person qualified to be adopted by Lau Ling Yiu or his widow. This does not appear to be a risk or possibility that she had contemplated; otherwise, she would probably have made a further provision to cover that possibility.

78.On the other hand, at that time, on the evidence, the Grandfather had at least one maternal grandson, namely, D4, who was 3 years old. D4 says that she treated her as her natural grandson. I do not believe that the Grandmother had decided that the Property must go to D4 as suggested by Mr Wong because, if that be the case, she would and could have stated specifically that the Property should be inherited by D4 upon Lau Hing Yiu’s death. However, on the other hand, I cannot discern any sound reason why she would like to exclude maternal grandsons in entirety even though she might prefer paternal grandsons to maternal grandsons. On the contrary, to ensure that this provision in Clause 4(d)  could be implemented in practice, there was every reason why she would include maternal grandsons as well.

79.The Will was drafted by a reputable firm of solicitors. Clause 4(d)  was clearly drafted carefully pursuant to specific instructions given by the Grandmother. The solicitor or legal clerk drafting the Will in English must have known that the word “grandsons” would generally include both paternal and maternal grandsons. If the Grandmother had instructed specifically that only paternal grandsons would be qualified, I would have thought that the term “paternal grandsons” or like would have been used. And if the Grandmother had not given clear instructions on this point in the first place, it is unthinkable that the drafter had not drawn the potential ambiguity to the Grandmother, and asked her to clarify her true intention. Again, if upon clarification, the Grandmother instructed that she had in mind paternal grandsons only, the term “paternal grandsons” or like would have been used. 

80.For all these reasons, I have come to the conclusion that the word “grandsons” in Clause 4(d)  of the Will was intended to include both the Grandfather’s paternal and maternal grandsons. It follows that D4 was qualified to be adopted by Lau Hing Yiu. This takes us to the second issue.

N.  WHETHER D4 WAS THE SON DULY ADOPTED BY LAU HING YIU

81.P contends that, firstly, D4 had not in fact been adopted by Lau Hing Yiu as his son as alleged; and secondly, even if what D4 asserts was true, he was still not a “duly adopted son” of Lau Hing Yiu as a matter of law.

82.Mr Chan submits and stresses that the burden of proof is on D4 to prove that he was Lau Hing Yiu’s duly adopted son within the meaning of Clause 4(d)  of the Will. On reflection, I disagree. It should be borne in mind that the declarations sought by P include that D4 is not the “duly adopted son” of Lau Hing Yiu under Clause 4 of the will, and that he is not entitled to any interest in the Property under the Will. On the other hand, D4 has not made any counterclaim. In general, as stated in Cross and Tapper on Evidence (13^th ed., 2018), p 133, “… a fundamental requirement of any judicial system is that the person who desire the court to take action must prove his case to its satisfaction. This means that, as a matter of common sense, it normally rests upon the claimant in a civil suit…” Hence, the burden of proof is still on the claimant even though he needs to prove a negative. In Abrath v North Eastern Rly Co (1886)  11 App Cas 247, Bowen LJ held that: “If the assertion of a negative is an essential part of the plaintiff’s case, the proof of the assertion still rests upon the plaintiff.”

83.I turn to consider P’s argument that D has not in fact been adopted by Lau Hing Yiu as his son. It should be immediately apparent that P’s contention involves factual disputes. It is regrettable that the parties seem to have overlooked the following reminders given by the Court of Appeal in Shum Wah Ming v The Estate of Chen King Ngo, deceased, CACV21/1996 (10 July 1996, unreported). Cheung J (as he then was)  held at p 8 that:

“Practitioners are reminded that the originating summons procedure is not and is never intended to be a short-cut to resolve disputes which can only be properly dealt with in a writ action.”

Mayo JA held at p 12 that:

“… While I accept that there is no hard and fast principle concerning what cases can properly come within the ambit of Order 28 it is nonetheless necessary to consider whether there are significant factual issues requiring determination. If there are it is inappropriate to have resort to the originating summons procedure.”

84.O.28, r.8(1), RHC, provides that where, in the case of a cause or matter begun by originating summons, it appears to the Court at any stage of the proceedings that the proceedings should for any reason be continued as if the cause or matter had been begun by writ, it may order the proceedings to continue as if the cause or matter had been so begun and may, in particular, order that any affidavits shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof. O.28, r.4(3), RHC, provides that, the Court shall, at as early a stage of the proceedings on the summons as appears to it to be practicable, consider whether there is or may be a dispute as to fact and whether the just, expeditious and economical disposal of the proceedings can according best be secured by hearing the summons on oral evidence or mainly on oral evidence and, if it thinks fit, may order that no further evidence shall be filed and the summons shall be heard on oral evidence or partly on oral evidence and partly on affidavit evidence, without or without cross-examination of any of the deponents, as it may direct.

85.This case has come before the Court on 6 November 2019 (which was the first hearing of the originating summons), 2 June 2020 (which had been treated as the second directions hearing though it was supposed to be the substantive hearing), and 2 December 2020 (which was the third directions hearing). Apparently, P has not applied for an order that these proceedings should continue as if they had been begun by writ under O.28, r.8; or that the deponents of the affirmations should give oral evidence and be cross examined under O.28, r.4(3). If P intended to challenge the credibility of D4’s affirmation evidence, this is what he should have done. On the other hand, upon reading the affirmations in reply made by P and Lau Hoi Yiu, D4 should appreciate that P did not accept the truthfulness of his factual assertions. He should have considered to make an application pursuant to O.28, r.8 or O.28. r4(3)  if P did not do so. I was informed at the hearing that the question whether oral evidence should be heard had been considered at the hearing on 6 November 2019. It is unclear what submissions had been made by the parties, and why the learned Judge decided to set down the case for hearing with 2 days reserved without oral evidence. Nevertheless, as I mentioned, both parties confirmed that they would like the Court to decide the issues on affirmation evidence only.  They must take the consequence.

86.I accept that, in these circumstances, it does not mean that I must, or should, accept whatever D4 has said. However, there must be a very high hurdle for P to surmount in order to convince me why I should reject D4’s evidence.

87.Mr Chan submits that I should reject D4’s evidence on the following grounds:

(a)  Neither P nor Lau Hoi Yiu knew, or had ever been told by anyone, about the alleged adoption. P’s uncle, Lau Hing To, had good relationships with his father, Lau Hing Kan. Although Lau Hing To had moved to the USA since 1960s, he visited Hong Kong regularly and would see Lau Hing Yiu. Lau Hing To was one of the trustees of the Property; he was in possession of the Will and also the will of the Grandfather. If Lau Hing Yiu had truly adopted D4 as his son, he would have told Lau Hing To, who would have in turn mentioned it to Lau Hing Kan or Lau Hoi Yiu.

(b)  The title deeds of the Property had been passed from the Grandmother to the Grandfather, and then to Lau Hing To, and then to Lau Hoi Yiu, who had then sent them to P’s mother. D4 is never in possession of those title documents.

(c)  In K. B. Chau’s letter dated 29 March 2018, there was no mention about the alleged adoption in 1969. It was also not mentioned by Daniel Wong of Huen & Partners when he spoke to Lau Hoi Yiu in November 2014.

(d)  The Declaration contradicts D4’s case; in particular, it does not refer to any adoption in 1969.

(e)  D4 has not changed his surname.

(f)  D4 applied for probate in respect his natural mother’s estate.

(g)  On the death certificate of Lau Hing Yiu, D4 was merely described as a relative.

(h)  On the tombstone of Lau Hing Yiu, D4 did not describe himself as Lau Hing Yiu’s adopted son.

(i)  There is no document corroborating D4’s assertions.

(j)  There is no eye-witness to the alleged adoption ceremony in 1969.

88.I agree that all these may well be valid points which could be put to D4 in cross examination. However, when P elected not to cross examine D4, these points do not constitute sufficient reasons to reject his affirmation evidence. I shall explain why.

89.P relies heavily on the fact that he, his father, his uncle and aunt had not heard of the alleged adoption. But one needs to remember that they moved overseas a long time ago. There is no evidence that they communicated regularly or frequently, for example, by letters or otherwise, with their family members, in particular, Lau Hing Yiu, Lau Shuk Ching or D4. My impression is that they were not close to each other. What is telling is that even Lau Hoi Yiu was not particularly close to P and his siblings. For example, Lau Hoi Yiu did not forward the Huen & Partners letter dated 29 October 2014 directly to P. Lau Hoi Yiu, in her letter dated 28 October 2017 to P and his sisters, started off by saying that she had not heard from them for a long time and “it is very hard you don’t answer your phones. I called twice to Katrina, it was cut off after the 1^st ‘ring’.”  There is no evidence that any of the then surviving siblings of Lau Hing Yiu (or their children)  had attended Lau Hing Yiu’s funeral, save and except D4. While Lau Hing To might have returned to Hong Kong to visit Lau Hing Yiu and other family members in Hong Kong from time to time, it does not follow that he and Lau Hing Yiu must have talked about the Property and the adoption of D4 by Lau Hing Yiu. One also cannot assume that Lau Hing To would have reported everything said by Lau Hing Yiu to Lau Hoi Yiu. There is no evidence that P has shown any interest in his extended family members in Hong Kong until he discovered from his aunt that he may be able to inherit a very valuable real property in Hong Kong.

90.The fact that D4 is not in possession of the title deeds of the Property does not carry much weight. It is understandable that they would be in the possession of the trustees of the Property (or their designated custodians). And since they were unaware of the adoption, they would not have passed the title deeds to D4. On the other hand, D4 has not tried to obtain the title deeds from anyone; it seems that he has been able to deal with the Property in a way he saw fit without them.

91.There is little evidence on the content of the conversation between Lau Hoi Yiu and Daniel Wong of Huen & Partners. It is correct that K. B. Chau & Co did not mention about the adoption ceremony in 1969. However, they did enclose a copy of the Declaration in their letter dated 20 March 2018 once P, through his American attorney, contended that he is entitled to inherit the Property.

92.In my view, the Declaration is of utmost significance. Although both P and Lau Hoi Yiu have expressed various doubts about this document in their affirmations, Mr Chan fairly accepted that he cannot challenge the authenticity of the Declaration. It appears to be a “home-made” document prepared in accordance with Lau Hing Yiu’s instructions. I do not think he necessarily intended that this document should, by itself, have any specific legal effect, if any at all. But the purpose of signing the Declaration is rather obvious. In the first paragraph, he referred specifically to the content of Clause 4(d)  of the Will.  In the second paragraph, he stated that, from then on “本人指定承継子李志堅先生” shall be responsible for collecting rents from the Property, etc. He used the same description to describe D4 at the end of the Declaration. It is clear that Lau Hing Yiu intended that the Declaration shall serve as a solemn piece of documentary proof of D4’s status and capacity. He needed to explain to other people, including the tenants of the Property and perhaps the relevant Government departments, the reason why D4 had the right to act on his behalf in dealing with various matters concerning the Property as mentioned in the document. It is also clear that he chose the description “本人指定承継子李志堅先生” carefully and deliberately with Clause 4(d)  of the Will in mind. There is no doubt whatsoever that he regarded D4 to be his duly adopted son within the meaning of Clause 4(d)  of the Will. Lau Hing Yiu did not say in the document that D4 was adopted as his son by virtue of this particular document; or D4 only became his adopted son upon the execution of the Declaration. At the same time, it does not appear to be the purpose of the document to explain in detail how D4 had become his duly adopted son. In the circumstances, the fact that there was no mention about the adoption ceremony in 1969 is not surprising. I do not agree that the Declaration contradicts D4’s case as alleged by P. I take the view that it is entirely consistent with D4’s case though it cannot prove the existence of the adoption ceremony in 1969.

93.I note that D4 has not changed his surname. But the obvious answer seems to be that Lau Hing Yiu had not insisted that D4 should change his surname notwithstanding D4’s status as his 指定承継子 as stated in the Declaration. It is true that D4 has apparently attempted to obtain the probate of his natural mother’s estate. But maybe he simply believed, based on legal advice given to him or otherwise, that he was entitled to do so. It does not indicate that he did not see himself as the adopted son of Lau Hing Yiu.

94.It is correct that D4 was only described as a “relative” of Lau Hing Yiu on his death certificate. But one does not know how exactly he described himself to the official of the Births and Deaths Registry. To describe an adopted son as a “relative” would be correct. It should perhaps be noted that he was not described as Lau Hing Yiu’s nephew. One should also not miss the fact that, according to the death certificate, D4 was present at the death of Lau Hing Yiu in Queen Mary Hospital. This fact, coupled with the fact that he was the informant of Lau Hing Yiu’s death, supports that they had a very close relationship.

95.It is also true that on the tombstone of Lau Hing Yiu and Tam, D4 did not describe himself as their adopted son. However, the important point is that the tombstone was established (“立”)  by D4 and nobody else. Although D4 has not stated his capacity in doing so on the tombstone, it is traditional Chinese culture that a tombstone would be established by a male lawful descendant of the deceased. It is worth mentioning that, according to K. B. Chau’s letter dated 20 March 2018, D4 has a brother called Harry Lee. Hence, D4 was not the only nephew of Lau Hing Yiu. There is also indisputable evidence that D4 took care of, and paid for, the funeral of Lau Hing Yiu. Mr Chan said that there is no evidence that D4 performed the ritual of “carrying the banner” and “buying the water” (擔幡買水)  at Lau Hing Yiu’s funeral. It is unclear whether such a ritual had in fact been performed. But if it had, I cannot imagine that anyone apart from D4 could be the one performing such ritual.

96.It is hardly surprising that there was no independent witness to the adoption ceremony in 1969 as this was a private and family dinner involving the two families who were living together, which took place in a private residence. It is unclear whether to adopt D4 as Lau Hing Yiu’s son was an idea which occurred to him during that dinner gathering. This might be the reason why no other family members had been invited. Further, by the late 1960s, the Grandfather had passed away, many family members had moved overseas, and those remaining in Hong Kong do not appear to be close to each other (save and except the two families of Lau Hing Yiu and Lau Shuk Ching). As D4 was very young by then (i.e. 16 years old)  and the incident took places more than 40 years ago, it is understandable that he could only provide brief evidence about that occasion.

97.For the above reasons, I accept D4’s evidence that Lau Hing Yiu adopted him as his son in 1969.

98.P, however, contends that, even on D4’s own case and evidence, D4 was not a duly adopted son of Lau Hing Yiu. He argues that, in order to be a duly adopted son, D4’s adoption must be legally valid. There is no suggestion that his adoption was made in accordance with the statutory requirements under the Adoption Ordinance (Cap. 290), which was enacted in 1956. More importantly, he submits that the adoption was invalid under Chinese Law and Customs (which was still permissible in 1969)  because:

(a)  There was no formal alleged adoption or any adoption ceremony.

(b)  The alleged adoption was not even conducted in a public family dinner or publicized to other Lau family members.

(c)  D4 had not lived with Lau Hing Yiu as his adopted son but went to Canada in 1973 and only returned to Hong Kong in 1993.

(d)  The alleged adoption of a maternal grandson of the Grandfather was against Chinese Law and Customs.

(e)  D4 was and is still having and preserving the surname of his lawful and natural father.

(f)  D4 sought to apply for the de bonis grant of Lau Shuk Ching’s estate, which is against the notion that he is already the adopted son of Lau Hing Yiu, and the principle under Chinese Law and Customs that “no son should inherit property in more than one family”.

99.P relies, in particular, on the following propositions concerning the applicable Chinese Law and Customs:

(a)  Adoption under the Chinese tradition, custom and Chinese customary law was primarily for the purpose of providing an heir to preserve the name, lineage, and the property of the adoptive parents’ family and furthermore, so that ancestral rites could be carried out. A male person without a son was morally bound by Chinese custom to see that his family name was not extinguished. (Halsbury’s Laws of Hong Kong (2^nd ed.), vol. 28, [180.361])

(b)  In adoptions involving the institution of a male heir, it must be a child of the same lineage. The adopted child must be of the next generation to the adoptive parents, such as a nephew form a common ancestor and chose from the closest kinship. (Halsbury’s Laws of Hong Kong (2^nd ed.), vol. 28, [180.363])

(c)  Chinese law only permits the adoption of agnates from a collateral branch of the family (Wong Yuk Wah v Personal Representative of the Estate of Wong Tak [2017] 1 HKLRD 1184 at §16; Liu Ying Lan v Liu Tung Yiu and another, HCA6693/1992 (8 May 2002, unreported), §49).

(d)  The formal adoption of an heir must be done in public and accompanied with all the ceremonies customary in important family events. (Halsbury’s Laws of Hong Kong (2^nd ed.), vol. 28, [180.365])

100.On the other hand, D4 argues that, under Chinese Law and Customs, it was permissible to adopt a male of a different surname at an informal ceremony (Tang Cho Sang Wayne v Chim Siu Wan, HCA6666/1993 (13 June 1995, unreported); on appeal CACV163/1995 (1 December 1995, unreported)).

101.It is most unsatisfactory, and somewhat unfair, that P only raised serious issues on the applicable Chinese Law and Customs in counsel’s skeleton argument, but not before. In §54 of P’s first affirmation dated 17 January 2019, he stated that, regardless of D4’s factual assertions, he could not be a “duly adopted son” of Lau Hing Yiu because the word “grandsons” should refer to “the grandsons from the male descendants” only. This is the only ground why he claimed that D4 should not be regarded as a “duly adopted son” for the purpose of Clause 4(d)  of the Will.  I note that he said in §55 of the same affirmation that the legal and factual basis of D4’s case is not substantiated e.g. the year of adoption? The customs adopted? Why D4’s surname was not changed to Lau? However, he was merely asking questions rather than putting forward any positive case. More importantly, after D4 had filed his affirmation in which he described how he was adopted by Lau Hing Yiu in 1969, P, in his second affirmation, merely denied that there was in fact such an adoption and the legal effect of the Document. He had not asserted that, even if what D4 said in his affirmation was true, the adoption in 1969 was not legally valid because it was not done in accordance with any specific mandatory requirements under the prevailing Chinese Law and Customs.

102.When P is seeking a specific declaration that D4 is not the “duly adopted son” of Lau Hing Yiu, it must be imperative for him to state clearly and precisely on what grounds the adoption was legally invalid in accordance with Chinese Law and Customs if that is one of the bases of seeking such a declaration.

103.There is also another important reason why P ought to have defined any such issues concerning Chinese Law and Customs clearly and precisely.  While Chinese Law and Customs are part of the Hong Kong law in relation to which the Court is entitled to take notice, it is a long established practice that the Court may receive expert evidence (Re Tse Lai Chiu [1969] HKLR 159 at 175-176; Hau King Wai Keith and others v Hau Tak Cheung and others, HCAP18/2013 (12 December 2017, unreported), §113). Had the Court’s attention be drawn to P’s intention to raise serious issues about Chinese Law and Customs at any of the directions hearing, it was likely that the Court would have asked the parties to consider the need to adduce expert evidence or considered such need on its own motion, and then given expert evidence directions accordingly. Because of P’s failure to raise and identify issues on Chinese Law and Customs properly and timeously, the Court was deprived of the chance of receiving assistance from experts on such difficult area of the law.

104.I take the view that these important procedural reasons constitute sufficient grounds for me to reject P’s argument in this respect. Having said that, I am prepared to go further for the sake of completeness.

105.First, the Court may accept the validity of an adoption in the absence of expert evidence even when the factual evidence is sparse. In Tai Lee Construction Co v Tsang Ching Hing and others [1966] HKLR 868 at 871-872, Scholes J held that:

“…It was not essential that there should be expert evidence. It was open to the judge to accept evidence that a customary adoption was recognized as valid. Although the distinction between law and custom which was drawn in Ganer v Lanesborough has been questioned, we see no reason to doubt the correctness of that decision. There the existence of a former marriage being in issue one of the parties to that marriage was permitted to testify that she had been divorced in Italy according to the custom of the Jewish people. That case appears to us to be directly in point. Accordingly it was competent for the natural father to describe the ceremony and then to add: “this method of adoption is common in my part of the country”. The evidence was sparse but in all the circumstances we think the learned judge could have been fully justified in acting upon it.”

106.I am aware that there are cases holding that there must be an open adoption ceremony (Yeung chi-ding and others v Yeung Tse-chun [1986] HKLR 131 at 138C; Yau Tin-sung v Yau Wan-loi [1984] HKLR 15 at 18)  as adoption of a son is a matter that requires public knowledge (Re the estate of Wong Lucien alias Lucien Wong, deceased, HCAP12/2000 (17 March 2004, unreported), §64). However, there does not appear to be any fixed or rigid formality requirement for a customary adoption; what is required is just some kind of ceremony comprising essentially of ancestral worship (Official Administrator v Luk Hoi Tong Co Ltd [2005] 3 HKC 615 at 627, §42).

107.Moreover, it is important to note that, in Yau Tin-sung v Yau Wan-loi [1984] HKLR 15 at 19, Liu J held that:

“In the consideration of the formality or essential ingredients of an adoption, one must be prepared to give allowance to the abandonment or non-observance of some known ancient rituals in the passage of time and try to judge whether the occasion was sufficiently representative of a customary ceremony for an adoption prevailing in all the circumstances.”

In Hau King Wai Keith and others v Hau Tak Cheung and others, HCAP18/2013 (12 December 2017, unreported), §128, Wilson Chan J held that:

“…With the progression of time, it is to be expected that the ceremonial elements in any ritual would be reduced.”

And at §129:

“At any rate, the fact that there was no evidence on how the adoption took place or structures was never per se a reason for holding against the adoption [see e.g. Tong Cho Sang Wayne v Chim Siu Wan, HCA6666/1993, discussed below].”

108.There must be an intention to adopt as distinct from the mere fact of bringing the child up (Wong Kam Ying & another v Man Chi Tai [1967] HKLR 201 at 221-222).  I believe that one of the purposes of holding an adoption ceremony is to enable the parties concerned to make known their intentions overtly. In this case, according to D4, the ceremony took place at the family dinner to celebrate the Mid-Autumn Festival. It was a special day because the Mid-Autumn Festival is a significant festival to the Chinese people for family reunion. D4 also said that Lau Hing Yiu expressly sought the consent and approval of his parents (which were duly given). I am satisfied that Lau Hing Yiu had the serious intention to adopt D4 as his son. Indeed, such intention was evinced in the Declaration. In the circumstances, I am not satisfied that the mere absence of other family members or any other ceremonial element provide sufficient grounds to conclude that the adoption was invalid.

109.I turn to the point that D4’s surname is not Lau. I have already referred to Ngai Chung Shi v Ngai Yee Mui (1927)  22 HKLR 105 at 109-110 and Yau Tin-sung v Yau Wan-loi [1984] HKLR 15 at 19 above where the Court observed that, where adoption is necessary in order to prevent the extinction of a family, such adoption may be made by the person entitled to adopt of any male whatever his surname; and that, in line with the gradual shift of attitude towards tolerating non-compliance of rituals or even marriages between persons of the same surname, there is more readily acceptance of adoptions of a stranger of a different surname. In Hau King Wai Keith and others v Hau Tak Cheung and others, HCAP18/2013 (12 December 2017, unreported), §130, Wilson Chan J held that there is nothing to suggest that in Chinese Law and Customs, there could not be an adoption that ignores the generation correctness. I am not convinced that there is any absolute bar in Chinese Law and Customs against adopting a nephew with a different surname as one’s son.

110.Mr Chan’s main argument seems to be that D4 has not changed his surname to Lau, and he attempted to inherit his natural mother’s estate. In Hau King Wai Keith and others v Hau Tak Cheung and others, HCAP18/2013 (12 December 2017, unreported), §169, Wilson Chan J held that, under Chinese Law and Customs, the mere fact that the adopted son having changed back his name to that of his original family and had accepted and succeeded to property of his natural parents was not sufficient to show that the adopted son had returned to his original family and as such would be disentitled to succeed to the property of the adopted family (citing Tong Cho Sang Wayne v Chim Siu Wan, which D4 relies on). The fact that D4 has tried to obtain the probate of his natural mother’s estate must be based on his belief that he was entitled to do so. It is not directly relevant to whether the adoption was legally valid. The more important point is that D4 has apparently never changed and used the surname Lau. However, it is abundantly clear that Lau Hing Yiu had not requested him to do so. While I agree that, under Chinese Law and Customs, an adopted son is generally expected or even required to change his surname, I am unaware of any authority supporting any hard and fast rule that an adoption is not completed unless the son changes his surname; or, upon the adoption of a son, the mere fact that he has not changed his surname subsequently (with the consent and knowledge of his adopted father)  would and could invalidate the adoption.

111.In considering whether D4 had been duly adopted by Lau Hing Yiu under Chinese Law and Customs, one needs to bear in mind that the applicable Chinese Law and Customs tended to evolve with the passage of time; and may vary in different contexts, in particular, among different clans, villages or the like. Here, we are talking about a rather modern family living in the city of Hong Kong (not a village of a particular clan in the New Territories)  in the late 1960s. That was very shortly before the adoption by Chinese Law and Customs was abolished on 31 December 1972.

112.In this case, as mentioned, it is clear that Lau Hing Yiu had the serious intention of adopting D4 as his son. It is clear that the purpose of doing so was to provide an heir to inherit his property (in particular, the Property), which is one of the main purposes of adopting a son under Chinese Law and Customs. The term “指定承継子” used in the Declaration literally means the son appointed for inheritance. The fact that the content of Clause 4(d)  of the Will was expressly mentioned in the Declaration shows that Lau Hing Yiu intended that D4 should become the beneficial owner of the Property after he died. There is no doubt that Lau Hing Yiu had regarded D4 as his “duly adopted son”; and that D4 treated Lau Hing Yiu as his duly adopted father. It is correct that, in theory, their subjective belief may be wrong because, unknown to them, the adoption was somehow legally invalid. However, in my view, the Court should be very slow to frustrate and defeat the clear intention of the parties unless there is clear and compelling evidence or authorities supporting that the adoption was invalid, or would or could not be recognized under Chinese Law and Customs. There is no such clear or compelling materials.

113.I also bear in mind that the condition under Clause 4(d)  of the Will was set by the Grandmother. However, I can hardly imagine that the Grandmother would have objected and claimed that it was contrary to her intention to allow D4 to inherit the Property in these circumstances. She required Lau Hing Yiu to duly adopt a son; that was precisely what Lau Hing had tried to do. I am sure that the Grandmother would have accepted and respected Lau Hing Yiu’s wish.

114.For the above reasons, putting aside the procedural points, I hold that P has failed to show that D4 is not the duly adopted son of Lau Hing Yiu under Chinese Law and Customs.

115.Mr Wong contends alternatively that the word “duly” could and should be construed more liberally in that it simply means “seriously” but not necessarily “legally valid”. I note that the Grandmother did not use the term “lawfully adopted son”, or “duly adopted son in accordance with the law”, or the like, expressly in Clause 4(d)  of the Will. Having said that, the word “duly” means, generally and ordinarily, “properly”. It seems difficult to see and judge how one can determine objectively whether a son has been “seriously” adopted if he has not been “lawfully” adopted. Further, an adopted son is a legal status. I am inclined to the view that the word “duly” in the present context connotes that the adoption should be one in line with, and recognized by, the law applicable at the time of the adoption. Needless to say, if Mr Wong’s construction of the word “duly” is correct, I would be even more ready to reach the same conclusion in favour of D4.

116.All in all, I conclude that P has failed to prove that D4 is not a duly adopted son of Lau Hing Yiu. I wish to add that, even if the burden of proof is on D, I would have come to the same conclusion.

O.  WHETHER P IS ENTITLED TO INHERIT THE PROPERTY IF D4 IS NOT

117.Because of my decision on the above issue, it is unnecessary for me to consider who shall be entitled to inherit the Property if D4 is not entitled to do so.  However, for the sake of completeness, I will deal with it briefly.

118.First, P relies on the following principles set out in Theobald on Wills (19^th ed., 2021), §31-017, p 713:

“Where there is a gift to children, subject to a power of appointment which is not exercised, similar rules apply as to the period at which the class to take in default of appointment is to be ascertained:

…

(5)  When there is a direct vested gift to children, as A shall appoint, the fact that the power is to appoint by deed or will, or by will only, will not affect the class to take in default of appointment.”

119.P contends that, under Clause 4(d)  of the Will, Lau Hing Yiu’s power of adoption is akin to a power of appointment. As Lau Hing Yiu had not effectively exercised such power of appointment, persons falling within the class of persons who may be appointed would inherit the Property. And since P is the only one falling within that case (as he was the only paternal grandson of the Grandfather), he should be entitled to inherit the Property. I disagree. First, for reasons I shall not repeat, P is not the only person within the class of persons who may be adopted by Lau Hing Yiu. More importantly, I do not accept that Lau Hing Yiu’s power to adopt a son (which existed independently of the Will and was a legal power based on the law)  can be equated to a power of appointment in a will. Mr Chan has not been able to cite any authority to support his argument.

120.Mr Wong submits that, the Property would become a part of the residuary estate of the Grandmother under Clause 5 of the Will. This would mean that the Property shall be dealt with “in such manner as [the Grandmother’s] Trustee shall in his absolute discretion think fit”. I am inclined to the view that this is the correct answer. The only other alternative is to hold that, because the residuary gift (i.e. the ultimate beneficial interest in the Property)  had failed, the Grandmother died partially intestate. However, it has often been said by the courts that it is unlikely that a testator intended to die intestate, and that therefore the courts should lean against a construction which creates intestacy, although perhaps not too heavily (Theobald on Wills (19^th ed., 2021), §26-061 at p 538). The problem is that there is no surviving trustee of the Property. I note that one of the alternative remedies sought by P is to appoint him as the trustee. As I observed at the hearing, whoever is appointed as the new trustee of the Property would, for all practical purposes, be likely to become the absolute beneficial owner thereof. There are at least two contenders, namely, P and D4. I am not satisfied that the Court has been provided with sufficient evidence on who is more suitable to be appointed as the new trustee. Since this is not a live issue, I shall refrain from making any decision in this respect.

P.  CONCLUSION

121.For the above reasons, I dismiss P’s claims. There is no reason why costs should not follow the event. I make a costs order nisi (which shall become absolute within 14 days)  that P shall pay D4 the costs of these proceedings (including all costs reserved)  to be taxed on a party-to-party basis if not agreed. If there is any application to vary the costs order nisi, I shall deal with it on paper.

Kenneth CL Chan, leading Billy NP Ma, instructed by TC Lau & Co, for the Plaintiff

Personal Representative of the Estate of Li (or Lee)  Kwok Mi (or Mei)(or Mee), deceased (李幗眉)  for the 1^st Defendant did not appear

Personal Representative of the Estate of Lau Hing To, deceased (劉慶滔)  for the 2^nd Defendant did not appear

Personal Representative of the Estate of Lau Shuk (or Shuck)  Ching (or Tsing), deceased (劉淑貞)  for the 3^rd Defendant did not appear

Kevin CW Wong, instructed by Li, Chow & Company, for the 4^th Defendant