Chan Hei Yui and Others v. Yip Pui Nam and Another

HCA 7736/2000

[2026] HKCFI 2039

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 7736 OF 2000

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BETWEEN

AND BETWEEN

(By original writ and order to carry on dated 26^th January 2024)

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J U D G M E N T

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Introduction

1.This action concerns two pieces of land known as Cheung Chau Lot Nos. 575 and 576 (collectively “the Lands”).  Mr Chan, P herein, brought this action to recover vacant possession of the Lands from Ds who have been trespassers allegedly.

2.Since 1946, the registered owner of the Lands is Madam Wan who died intestate in the Mainland on 3 May 1954.  Mr Chan is the lawful and natural son of Madam Wan and the late Mr Chan Chuen.

3.Mr Yip, D1 herein, was another lawful and natural son of Madam Wan.  Mr Yip has been in occupation of the Lands since his birth in 1942.

4.Mr Yip claimed interest in the estate of Madam Wan which consists of the Lands (“the Estate”). He mounted a counterclaim for, among other things, a grant of the letters of administration to him and a declaration that he is entitled to an interest in the Estate (“the Counterclaim”).

5.Mr Yip passed away on 24 July 2022.  Madam Wong is his wife and she obtained the letters of administration on 6 January 2023 and became the administratrix of the estate of Mr Yip (“Yip’s Estate”).

6.By an order of Master Matthew Leung dated 26 January 2024, Madam Wong was made D1 in this action and the proceedings be carried on by P against Madam Wong in her capacity of the Administratrix of Yip’s Estate as if she had been substituted for Yip’s Estate.

7.By an order of Master Hui dated 29 November 2024, P’s claim was dismissed for want of prosecution with costs to D1.

8.The upshot is that the trial concerns the Counterclaim only.  At the trial, Ms Leung appeared for D1.  Neither P nor D2 was present. 

9.In terms of evidence, P filed two witness statements and an expert report of the late Mr Anthony Dicks SC (“the ADSC Report”)  on the Chinese customary law in 2003.  D1 filed an affirmation of Wan Ho Kan (“Kan”)  and an affirmation of Wan Yuet Fong (“Fong”)  (collectively “D1’s Affirmations”), Mr Yip’s witness statement and Madam Wong’s witness statement all filed on 13 December 2003 and an expert report of Professor Hugh Baker on the Chinese customary law (“the HB Report”). Madam Wong further filed a supplemental witness statement dated 18 August 2025.

10.By an amended order of this court dated 30 July 2025, D1 was granted leave to rely on D1’s Affirmations, Mr Yip’s witness statement and the HB Report without the attendance of their makers at the trial.  

11.As a result, Madam Wong was the only live witness and she adopted the contents of her witness statements as her evidence in the witness box.

Undisputed/indisputable background facts

12.The following matters are either not contradicted by admissible evidence or supported by incontrovertible documentary evidence.  I have also referred to the Statement of Undisputed Facts signed by Ms Leung.

13.Madam Wan and Chan Chuen gave birth to Mr Chan in Guangzhou in 1952.  They had an elder child known as Chan Yin Chun born in 1948.  The whole family resided in the Mainland.

14.In fact, Madam Wan had a valid marriage in Hong Kong with the late Mr Yip Man Tang (“YMT”)  who was a resident of Hong Kong and passed away in 1943.  Mr Yip was their only child and was born in Hong Kong.

15.After the passing of Madam Wan and Chan Chuen, Mr Chan obtained Letters of Administration of their estates. 

16.According to a document entitled “Conveyance on Sale” dated 1 October 1946 (“the 1946 Conveyance”), on that date Madam Wan purchased the Lands from a woman named Lo Kwai (羅桂), described as a resident of Cheung Chau, for a total consideration of HK$500.00.

17.The conveyance was duly registered as the memorial of a “Sale by Lo Kwai of her” to Madam Wan.  It was witnessed by one Wong Chung Hoi who was then a manager of the Wong Wai Tsak Tong (“WWTT”).

18.The interest in the Lands sold by Lo Kwai to Madam Wan is described as a lease at an annual rent of 60 cents, the lessor in each case being described as the WWTT, which in turn is shown as the owner of each lot in the schedule to the block Crown Lease.  According to the particulars of ownership furnished by the District Land Office (“DLO”)  in a letter to P dated 30 June 1982, the leases in question are perpetual leases.

19.At the time when the schedule to the Block Crown Lease was prepared, Lot 575 was described by implication as the site of a house, the “superstructure” erected on the lot being described as belonging to Madam Wan’s predecessor in title, namely, Wong Tsap Fok.  Lot 576 was described as a “house site” and was clearly vacant.

20.There is an unregistered agreement in the Chinese language described as a “contract of outright sale” (“the 1943 Agreement”). The printed date was printed as 26 January, 32^nd year of the Republic (民國), 18^th year of Showa reign (昭和)  (1943).

21.The subject-matter of the 1943 Agreement is apparently a sale of the Lands by Lo Kwai to YMT for a sum of 340 dollars in the paper currency in general circulation in Hong Kong (香港通用纸幤).  The 1943 Agreement was witnessed by Wong Chung Hoi, the manager of the WWTT.

22.In or about 1972, a new house was constructed on Lot 575 (“the New House”)  upon a successful application made by Mr Yip on behalf of Madam Wan to the District Lands Office. The family of Mr Yip had occupied the New House and part of the same were leased for rental profits.

The pleaded case of D1

23.The pleaded case of D1 is that the 1943 Agreement preceded the 1946 Conveyance and after the creation of the 1943 Agreement, YMT took possession of the Lands.

24.It is averred that the 1946 Conveyance was created with a view to giving effect to the 1943 Agreement in that, after in view of the death of YMT, Madam Wan would hold the Lands on trust for Mr Yip when he came of age.

25.D1 accepts that the Chinese customary law applies and upon the death of YMT, the Lands devolved upon Mr Yip as the only son of YMT.

26.The alternative plea of D1 is that the purchase money of the Lands came from the family resources of YMT.  On the application of the Chinese customary law, the Lands were family properties held by Madam Wan for Mr Yip.

27.Either way, Mr Yip has acquired beneficial interest in the Lands and Madam Wan was merely a trustee holding the legal title to the Lands on trust for him.

28.In the opening submissions, Ms Leung makes it clear that D1 would abandon his claim for the revocation of the letters of administration to the Estate and the grant of probate to him. D1 merely pursues his beneficial interest in the Lands.

29.Ms Leung in a document entitled “D1’s Statement of Issues in Dispute” dated 16 July 2025 sets out the following issues to be resolved in this trial:

(1)  By the Chinese customary law operated in relation to the Lands, whether:

a.  upon the death of YMT, the Lands devolved upon Mr Yip as the only son of YMT, and/or alternatively, by application of Chinese Law and Custom, the Lands were family property held by Madam Wan for Mr Yip; or

b.  Madam Wan’s interest in the Lands devolved upon Mr Yip.

(2)  Whether the beneficial interest in the Lands was vested upon Madam Wan by the 1946 Conveyance.

(3)  Whether the 1946 Conveyance was entered such that Madam Wan held the Lands for Mr Yip until he came of age.

(4)  Whether Madam Wan was at any time the beneficial owner of the Lands.

(5)  Whether Mr Yip is entitled to the declarations sought.

Factual evidence adduced by D1

30.I first examine D1’s Affirmations. In his affirmation, Kan explained that he had one elder sister, one younger brother and 2 younger sisters.  Madam Wan was his elder sister and Fong is his younger sister.  All of them were born and resided in Cheung Chau.  Only Fong remains alive.

31.Kan and YMT were colleagues working for a ship accessories company known as Man Cheong Lung.  He had personal knowledge of the wedding ceremony of Madam Wan and YMT taking place in 1940.

32.Kan was close to both YMT and Madam Wan. He was able to give a detailed account of YMT’s purchase of the Lands by the 1943 Agreement and the creation of the 1946 Conveyance.  He recalled that on one occasion, they were having dinner with their colleague Mr Tang.  Mr Tang told them that there was an elderly lady known as Lo Kwai and she wanted to sell the Lands for about 300 and 400 dollars.   

33.YMT was interested in the Lands and Kan assisted him in his negotiation with Lo Kwai.  Eventually, Lo Kwai agreed to sell the Lands to YMT for 340 dollars.  He stressed that when the 1943 Agreement was signed, Hong Kong had fallen and was occupied by the Japanese army in World War II.

34.After his acquisition of the Lands, YMT renovated the old house erected on the Lands for the occupation of his family including Madam Wan and Mr Yip. 

35.In 1945, with the termination of World War II and the surrender of the Japanese army in Hong Kong, there was a rumour that all the deeds made during the Japanese occupation would be null and void. Therefore, Kan asked Lo Kwai to execute a new deed based on the 1943 Agreement. However, Lo Kwai asked for a few hundred dollars more.

36.YMT had already passed away at that time and Mr Yip was only an infant. Thus, he decided to pay the extra purchase price to Lo Kwai and make Madam Wan a nominee as the assignee and Madam Wan should hold the Lands on trust for Mr Yip until he came of age.  This was why the 1946 Conveyance was created despite the existence of the 1943 Agreement.

37.The 1946 Conveyance had long been in the possession of Kan after its execution. Kan passed the same to Mr Yip when he had grown up.

38.Kan knew Chan Chuen personally and they both worked for the same company.  After World War II was over, Chan Chuen worked in Cheung Chau for around two years and then went back to the Mainland. Before long, Madam Wan left Hong Kong and settled in the Mainland together with Chan Chuen.

39.Kan took over the care and custody of Mr Yip after the departure of Madam Wan. He was very close to Mr Yip.  In his lifetime, he tried hard to cause the Lands to be transferred to Mr Yip but he failed due to the complication caused by the death of Madam Wan.

40.Kan passed away on 22 July 2012.

41.Fong’s affirmation contains little of evidential value.  She was born in 1934 and she barely remembers the wedding ceremony of Madam Wan, her eldest sister, and YMT in 1940.  She remembers that in the morning when Madam Wan took a boat to leave Hong Kong for good, she assisted her with her suitcase.  She remembers that Madam Wan asked her to take care of Mr Yip, who was then about 6 years old.

42.Fong remembers that since Madam Wan left Cheung Chau, her family had taken full care of Mr Yip.  

43.Mr Yip’s witness statement similarly contains little of relevance.  He was just too young when the 1943 Agreement and the 1946 Conveyance were created.  He merely relied on what Kan had told him. He confirmed that he received the 1946 Conveyance from Kan in or about 1980.

44.The only matter which is of some significance is that in or about October 1971, at the suggestion of Kan, Mr Yip decided to move back to Cheung Chau and reside at the Lands.  He then made an application to the WWTT and the DLO to construct the New House on the Lands.  Whilst the application was made in the name of Madam Wan, who was the registered owner of the Lands, the application was in fact signed by him. I am unable to find the application in the trial bundle though it was referred to in a letter issued by the DLO to Madam Wan dated 20 March 1972.  Obviously, the DLO had no idea that Madam Wan had already passed away.

45.In the trial bundle, I can find a handwritten letter issued by Mr Yip in his own name to the DLO dated 12 July 1973.  By this letter, Mr Yip followed up his application for construction of the New House on the Lands.

46.In the two witness statements of Madam Wong, she could not tell anything out of her personal knowledge to support the case of D1.

The ADSC Report

47.Both Mr Dicks SC and Professor Hugh Baker have given very helpful expert opinion about the Chinese law and custom applicable to land in the New Territories by virtue of section 13 of the New Territories Ordinance, Cap 97.

48.In the ADSC Report, it is pointed out that it is necessary for this court to determine whether, at the date of her death, Madam Wan’s interest in the Lands was a beneficial interest belonging to her in her own right or whether her interest was a nominal one, the beneficial interest in the Lands belonging to one of the two families to which she may have belonged as a result of her successive putative marriages, each of which is disputed between the parties.

49.At the time of the 1946 Conveyance, Madam Wan was a widow on the assumption that the marriage between Madam Wan and YMT was a valid one.

50.Mr Dicks SC opined that women were at least legally capable of owning money, goods and land as their own individual private property (sichan or sifangqian)  which was separate from the property of the family of which they are part, whether as daughters or as daughters in law.

51.Moreover, in the absence of the rule or presumption that property acquired by a married woman in her own name was her own private property, it would appear that the holding of the property in her own name was but one factor to be taken into account in ascertaining the true ownership and it becomes necessary to know how the property was acquired by her and in particular the source of any funds required to purchase it.

52.Further, after the death of the husband, the woman would appear to have been free to dispose of her private land by gift or by will, as with her other private property.

53.After the death of YMT, Madam Wan was entitled under the Chinese law and custom to remain to be a member of YMT’s family and to be supported out of their assets.  If the family property was divided, she was entitled to receive the share attributable to her husband, which she would hold on her son’s behalf and out of which she was entitled to support but which she was not entitled to dispose of or treat as her own.

54.On the other hand, Madam Wan could leave YMT’s family by contracting a further marriage with Chan Chuen.  In that case, Madam Wan surrendered custody of her only child, namely, Mr Yip, to the family of YMT and would also leave behind any property held by her as a representative of YMT including the dowry which she had originally brought into the marriage (Da Qing Lüli i, 8^th juan, title Lidizi weifa, 2^nd li). However, any private property which she possessed she would take with her.

55.Mr Dicks SC opined that if it were possible to demonstrate that the funds used by Madam Wan to buy the Lands were provided by the family of YMT, one possible inference that could be drawn would be that the money constituted a dowry for the purpose of her re-marriage.  If this were not the case, it would be difficult to understand why those who provided such funds on behalf of the family of YMT did not require the properties to be conveyed to the family of YMT, since the family would have had an unanswerable claim to the Lands when she remarried, founded on the express provisions of the Da Qing Lüli. The fact that Madam Wan retained title to the Lands after her remarriage in her own name may give rise to a strong inference that the Lands belonged to her personally.

56.Mr Dicks SC then referred to the Da Li Yuan in 1914, in Appeal No 7 of that year. An abstract of the decision as reported was translated in one of the appendices of the Report on Chinese Law and Custom in Hong Kong (Strickland Report) (1953)  at 172 as follows:

“3^rd Year A.C. No 7

A woman dies intestate leaving some private property. As to the person upon whom her property should devolve and by whom should the property be administered, there is no express provision in the Code now in force. According to custom the husband (widower)  should inherit and administer the estate, and it should be the same even according to general principles of law.”

57.On the application of these principles, Mr Dicks SC suggested that there could be three possibilities.  First, since Madam Wan had already cut her ties with the YMT family after her death, the Lands would first have devolved on Chan Chuen and following his death, on Mr Chan as his only male successor, subject to the possible limited rights of his sisters.

58.Second, if this court finds that Madam Wan purchased the Lands with the funds of YMT or his family, the Lands must be regarded as having been beneficially the family property of the YMT family.  It may be assumed that the interest in the Lands would pass to Mr Yip.

59.Third, even if Madam Wan paid part of the purchase price herself, by remarrying and thus ceasing to be a member of the YMT family she would have abandoned any rights in the Lands she might otherwise have claimed, unless of course the Court also found that the Lands were given by way of dowry for the purpose of her marriage to Chan Chuen, in which case the Lands would have passed into the ownership of Chan Chuen as the common property of his fang within the family headed by his own father.  The Lands would devolve on Mr Chan following the death of Chan Chuen and in accordance with the Chinese law and custom, his sister would have no claim.

The HB Report  

60.Professor Baker agreed that under British administration the law governing succession to property in the New Territories of Hong Kong in the 1940s was the Civil Code of the Qing Dynasty as modified by Chinese customary law.

61.The major difference between his opinion and that of Mr Dicks SC is whether Madam Wan could own the Lands in her own right. His view is that the normal and overwhelmingly more common practice was for land to be held by families represented by the family head, the property devolving through males from father to son or if there were no son to the nearest agnatic collateral branch of the family. Professor Baker relied on the following extract in G. Jamieson, Chinese Family and Commercial Law, Shanghai 1921, p.17,

“With regard to succession to the family, the first point to be noted is that females, and all persons claiming through females, are entirely excluded. The Kindred (宗)  Tsung, from among whom the choice must be made, are all those descended from a common ancestor, who bear the same family name; that is, who can trace their descent continuously through males … [A] woman in marrying leaves her father’s family once for all, and becomes part and parcel of her husband’s family; her children of course take their father’s name and belong to the Tsung of which he forms part, and to this alone they are capable of succeeding.”

62.Professor Baker pointed out that Madam Wan could not inherit the property of YMT. She enjoyed the right to maintenance throughout her life from the estate of YMT, and she might indeed enjoy control over the disposition of the income from that estate during her lifetime or during that period of it when Mr Yip was not of age to take control, but the property belonged to the agnatic family of YMT and not to her.

63.Professor Baker explained that while remarriage of widows was in principle discouraged, it was not illegal.  However, custom did not allow a remarrying widow to take with her either property or any children from her first marriage as elaborated in Jamieson, op.cit. p.55,

“If … a widow consents to re-marry she may do so, but she must go empty-handed. Any property she may have brought with her originally remains in the family. Sons which she may have born of course remain in the family, but it seems she may take with her daughters of tender age if she so desires.”

64.Professor Baker opined that if this court accepted that YMT and Madam Wan were validly married and they gave birth to Mr Yip, the re-marriage with Chan Chuen must mean that Madam Wan abandoned any beneficial interest in the estate of YMT and his family.  Neither Madam Wan nor Chan Chuen or their descendants claiming through them could have any legitimate claim to the Lands.

65.Lastly, Professor Baker concluded that on the basis of the documentation available to him, he opined that Chinese customary law applies to the Lands and that only Mr Yip has a beneficial interest in the Lands.

66.For completeness, I expunge the witness statement of Mr Chan and the witness statement of Chan Kam Kwong filed by P due to the unexplained absence of their makers.

Analysis

67.I am alive to the hearsay nature of the affirmation evidence of Kan. Due to his death, Kan’s live testimony was not possible.

68.I find Kan’s affirmation evidence to be reasonable and logical, largely supported by contemporaneous documents. Kan was the only witness who gave direct and relevant factual evidence.

69.I am convinced that I can place heavy weight on his evidence.  I fully accept his evidence with respect to the 1943 Agreement and the 1946 Agreement.

70.Mr Dicks SC did not have the chance to read the affirmation of Kan. This renders his analysis devoid of factual basis.

71.It is remarkable that there is no challenge to the authenticity of the 1943 Agreement.  It bears the stamps of the Japanese. It seems to be a serious document.  I am unable to see any express reference to yens or military yens but it is reasonable to infer that the then current Hong Kong paper currency was military yens.  I believe that YMT did enter into the sale transaction with Lo Kwai and I believe Kan’s account.

72.There is no plausible explanation for Lo Kwai to complete the 1946 Conveyance with Madam Wan other than the reasons furnished by Kan.  I agree with Professor Baker that there is no room for doubt that the 1943 Agreement and the 1946 Conveyance must have referred to the same transaction.  Lo Kwai as the vendor could not logically or practically sell the Lots twice.  It is noteworthy that the same witness, Mr Wong, signed both documents having an interest as manager of the WWTT.

73.As validly observed by Professor Baker, the 1943 Agreement was made during the Japanese occupation and no land registration was in operation.  Unfortunately, YMT died before the surrender of the Japanese. Had he survived it, the 1946 Conveyance might not have been necessary.

74.I further accept Kan’s evidence that he paid the purchase price under the 1946 Conveyance on behalf of the family of YMT though he was just 18 years old then.  There is no contrary evidence.  There is no evidence that Madam Wan paid any part of the purchase money with her own money. I believe his explanation that Madam Wan was merely a nominee holding the Lands on trust for Mr Yip.  This accords with the Chinese customs.

75.As rightly pointed out by Professor Baker, the conduct of Madam Wan is consistent with the account of Kan.  She had never exercised her rights as the registered owner of the Lands.  She simply abandoned the Lands and indeed Mr Yip after her re-marriage.

76.I cannot accept the suggestion of Mr Dicks SC that the purchase money was provided by Kan or the YMT family as a dowry for the purpose of the re-marriage of Madam Wan.  There is no such allegation and it is not even the pleaded case of P.  In any event I accept the evidence of Kan.  He had lost contact with Madam Wan after she went to the Mainland.  The YMT family should not be taken to have gifted Madam Wan the Lands by funding the 1946 Conveyance.

77.In fact, I am of the view that YMT had already become the beneficial owner of the Lands once the 1943 Agreement was made and he paid the consideration thereunder.  The Lands should belong to his estate. The 1946 Conveyance was a mere formality after resumption of the land registration system and Madam Wan was a nominal registered owner only.

78.I am of the view that Mr Yip was the beneficial owner of the Lands and Madam Wan merely held the same on trust for him.

79.For completeness, my view on the debate as to whether women could own land properties according to Chinese customary law is that there was no absolute bar for women to be landowners so as long as she paid the purchase money out of her own pocket.  The vendor of the Lands was a female and female land ownership must be permissible. Professor Baker actually accepted that it was not entirely unknown in traditional Chinese society for a woman to own land.

Conclusion and order

80.For the reasons given, I am satisfied that on the evidence, the case of Mr Yip is established against P. Mr Yip was the beneficial owner of the Lands. I accept that D1 is entitled to a vesting order under section 45(e)  of the Trustee Ordinance, Cap.29 (“the TO”).

81.Accordingly, I make the following orders sought by D1:

(1)  A declaration that Madam Wan held the Lands on trust for Mr Yip;

(2)  A Declaration that D1 is entitled to have the legal title to the Lands vested in Yip’s Estate; and

(3)  An order that the legal title to the Lands be vested in Yip’s Estate under section 45(e)  of the TO.

82.There is no reason for a departure from the general principle of costs following the events. I make an order nisi that costs of and occasioned by the Counterclaim including any costs reserved be paid by P to D1, to be taxed if not agreed.

83.Lastly, I thank Ms Leung for her fair presentation of D1’s case and helpful assistance in this matter.  

The plaintiff was not represented and did not appear

Ms Pauline Leung, instructed by Chow, Griffiths & Chan, for the 1^st defendant

The 2^nd defendants were not represented and did not appear