Cheung Ping v. Cheung Wai Kit, Representative of the Estate of Cheung Che Keung, The Deceased

DCCJ 3618/2010

[2021] HKDC 1269

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CIVIL ACTION NO 3618 OF 2010

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Before: His Honour Judge KC Chan in Chambers (Paper disposal)

Date of the defendant’s written submissions: 14 September 2021

Date of the plaintiff’s written submissions: 27 September 2021

Date of the defendant’s written submissions in reply: 5 October 2021

Date of Decision: 11 October 2021

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DECISON

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1.On 28 July 2021, this court handed down its judgment (“the Judgment”) upholding the plaintiff’s claim. The background, issues in dispute and such are set out in the Judgment and I will not repeat it here. For convenience and ease of reference, I will continue to adopt here the abbreviations used in the Judgment.

2.By summons filed on 24 August 2021, the defendant sought leave to appeal, but only to the extent of my finding on the proportion of the share of the Net Proceeds received by the Deceased that the plaintiff is entitled to, namely 50%.

3.The sole proposed ground of appeal reads:-

“notwithstanding the fact that the learned judge has found that Chinese law and custom apply in the present case, the learned Judge erred in law in finding that, as for the proportion, the Plaintiff was entitled to half of the shares of the proceeds of the land sold in question, given that there is no such custom in the Cheung clan and there is no sufficient evidence for the learned judge to make such a finding.”

4.I directed that this application be dealt with on paper without an oral hearing.  Written submissions have been lodged by the parties and considered by this court.  This is my decision.

5.The principles governing the granting of leave to appeal are trite and it is not necessary for me to reiterate them here.

6.As explained below, the proposed ground of appeal has no reasonable prospect of success.

7.The defendant first cited the 4 characteristics of custom as noted by Robert Tang QC, sitting as Deputy High Court Judge (as he then was), in his judgment in Kan Fat-tat v Kan Yin tat [1987] HKLR 516 and highlighted one of the 4 characteristics that a custom must be certain in respect of its nature.

8.The general Chinese law and custom on succession has by now been much litigated and quite trite.  The plaintiff’s case on the proportion of sharing, namely equally, is not a custom peculiar to Ham Tin Village, but is in accordance with the general Chinese law and custom.  Expert evidence thereon was adduced in this case.  Regarding the proportion of sharing among those entitled, both experts, Dr Baker for the defendant and Dr Hase for the plaintiff, gave their expert opinion about it and their opinion in this regard were in agreement, namely:-

“The law of succession to property in the Ching dynasty was laid down in the Daai Ching Lut Lai (大清律例 The Laws and Statutes of the Great Ching) …

The meaning of this statue is unambiguous : only male children should inherit and they must inherit in equal shares; and where there was only one son he stepped into his father’s shoes and the property was inherited by him in its entirety. Property thus devolved automatically down the male descent line, with provision for succession by collateral agnates where there were no direct male descendants. This general principle is to the best of my knowledge underlay Chinese custom in all areas, though minor deviations from the strict principle, such as the giving of an additional share to an eldest son, have been reliably reported as being customary in some places….” (my emphasis) paragraph 6 of Dr Baker’s report[1]

“The basic rule on succession under the local New Territories customary Land Law is that, on a man’s death, if there was no explicit will to the contrary (and wills were extremely rare), then all his sons normally received an exactly equal share in the estate…” (my emphasis) paragraph 1 of Dr Hase’s report^[2]

“Professor Baker agrees with Dr. Hase’s description of the standard rules for succession as: “The successors would hold an estate in equal and undivided shares in common until and unless they decided to divide the estate among themselves” (my emphasis) paragraph 8(iv) of their Joint Statement[3].”

9.Moreover, I have accepted the evidence of the 3 Elders regarding the existence of such Chinese law and custom in Ham Tin Village and the evidence as to the actual distribution of the respective shares of the Net Proceeds according to such Chinese law and custom.

10.There was thus ample evidence in support of my finding as to the adjudicated proportion.

11.All along, the defendant raised no specific case or dispute over the proportion the plaintiff would be entitled to, namely an equal share with the Deceased, if his general case succeeded.

12.Likewise and presently, while the defendant accepts that Chinese law and custom applies but complains that this court erred as to the proportion, there is no indication whatsoever as to what the correct proportion ought to be and as to the basis justifying why that is the correct proportion.  Thus, it is not known what the result the intended appeal seeks to achieve is.

13.The defendant now says that “the plank of this ground is the uneven/uncertain distribution”[4] of the Net Proceeds amongst the 4 branches (“the Unequal Proportion”), namely:-

(a)  Cheung Tim Tak 張添德: HK$1,808,602.50 (31.92%);

(b)  Cheung Che Keung 張志強: HK$1,808,602.50 (31.92%);

(c)  Cheung Kan Lin 張根連: HK$1,024,522.50 (18.08%);

(d)  Cheung Tat Wing 張達榮: HK$1,024,522.50 (18.08%).

14.First of all, in paragraphs 67 to 73 of the Judgment, I have considered and dealt with the defendant’s contention arising from the fact that in the 1921 Succession, 廣全branch succeeded 2/5 while the remaining 3 branches 1/5 each.  In the defendant’s written submissions, there is no complaint of error regarding this matter.

15.Regarding the matter about the distribution of the Net Proceeds in such odd percentages in the Unequal Proportion, I need to mention the following.

16.The defendant’s pleaded case was that the Cheung Kai Leung succeeded 1/5 share of the land in the 1921 Succession, albeit solely and beneficially, and later the Deceased succeeded Cheung Kai Leung’s said 1/5 share.  However, the defendant expressly admitted in paragraph 6 of his Amended Defence that the sale price of the 12 Lots was HK$5,684,580 (before deduction of expenses) from which the Deceased received HK$1,808,602.50 (which was 31.92% of the Net Proceeds).  The defendant pleaded no explanation whatsoever as to why the Deceased received, according to his own case, 11.92% more than the 1/5 share he was entitled to.  The defendant made no complaint, nor raised any issue whatsoever about the Unequal Proportion.  Further still, he has not pleaded any reliance on the Unequal Proportion as a fact or matter against the plaintiff’s case of equal distribution among the branches according to Chinese law and custom.

17.Equally, according to the plaintiff’s case, the Net Proceeds should not have been distributed in these odd percentages.

18.At trial, this court picked up this discrepancy, which, as explained, was common to both parties’ pleaded case, and enquired with parties about their respective position regarding it.  This court was then informed of the explanation given by the plaintiff (while the defendant, as the personal representative of the Deceased, the recipient, offered no answer) and was further informed of the parties’ position as recorded in paragraph 17 of the Judgment. The defendant then confirmed that he would not raise any issue regarding the Unequal Proportion.  It was therefore understood by this court that there were likely other deals and arrangements between the parties that the parties had taken into account together with the 2010 Sale thereby leading to the result that the Net Proceeds were divided according to the Unequal Proportion.  On the defendant’s said confirmation, the plaintiff proceeded without proffering detail supplemental evidence to explain why the Net Proceeds were divided in the odd percentages in the Unequal Proportion.  Also, the defendant has not cross-examined the plaintiff’s witnesses specifically on how the Unequal Proportion was arrived at.

19.All these notwithstanding, now the defendant in this application sought to criticize (a) the quality of the expert evidence based on the alleged failure of the experts to explain the Unequal Proportion, and (b) this court in not giving due consideration to the Unequal Proportion.  I would also add a note here that in his closing submissions at trial, the defendant did not even seek to address the court on the expert evidence, not to say challenge it.

20.The defendant’s said criticisms are totally unmeritorious.

21.In any event, given my finding that Chinese law and custom applies and under which clearly those entitled would succeed equally (and there is no appeal against such finding), this instance of distributing by the Unequal Proportion, whether there be other deals which were taken into account or not, would not have affected my finding on the proportion, which concerns the proper sharing within 盈全 branch.  Rather, if there were really issue about the distribution of the Net Proceeds between the 4 branches as being not in accordance with Chinese law and custom, those interested should have sought, or should seek, redress by taking appropriate action.

22.I would allude to one last matter for completeness.  Mr Fong, counsel for the defendant misunderstood or mis-quoted the evidence of 張添德in paragraph 17 of his written submissions, thus : “張添德gave evidence that the division of sale proceeds would be different next time”.  張添德is a descendant and representative of 廣全branch. His evidence was that even though under the 1921 Succession his branch succeeded 2/5 share, in the 2010 Sale and for harmony within the clan, his branch agreed to take the lesser share of ¼ and to distribute the Net Proceeds in 4 equal shares among the 4 branches.  He then further said in evidence to the effect that on the next occasion, his branch might not agree to the same concession.  His evidence thus was not as that represented by Mr Fong.

23.By reason of the above, I refuse leave to appeal and order on nisi basis, to become absolute in 14 days, that costs of this application with certificate for counsel to be paid by the defendant to the plaintiff.

Mr Cheung Yiu Leung, instructed by Ho Tse Wai & Partners, for the plaintiff

Mr Immanuel Fong, instructed by Chan Ching Man & Co, for the defendant