Mok Kee Fat and Others v. Mok Yiu Hing

HCA010117/1997

HCA 10117/1997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 10117 OF 1997

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Coram: Deputy High Court Judge Woolley in Court

Dates of Hearing: 24, 25 and 26 July 2000

Date of Handing Down Judgment: 3 August 2000

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J U D G M E N T

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1. In these proceedings the plaintiffs are seeking an order that they are entitled to succeed to a number of pieces of land in Lantau Island as the only beneficiaries of their great uncle Mok Yung On (the deceased). The defendant counterclaims for a declaration that he too is entitled to a share of the estate, also as a great nephew of the deceased.

2. The deceased was one of three brothers, the others being Mok Yung Hei and Mok Hei On. They were natives of Mok Ka Village, Tung Chung, Lantau and members of the Mok Yue Sang Tong. It is not in dispute that the deceased died without issue in 1929 as a result of which his brothers became equally entitled to his estate, and their male issue, if any, would in turn be entitled to inherit per stirpes. The younger brother, Mok Hei On, married and had two sons, Mok Yau Chuen and Mok Fook Chuen, the former in turn having one son, Mok Ki Ling, the fourth named plaintiff, and the latter having three sons, the other plaintiffs. This relationship has not been challenged by the defendant. Mok Hei On died in 1942 and his sons died in 1969 and 1973.

3. The defendant is the sole surviving son of one Mok Chun Chuen and his wife Lam Lan Far, both of whom died in Cheung Chau Island in 1943 and 1978 respectively, and this relationship has not been challenged by the plaintiffs. However, the defendant's contention in these proceedings is that his father, Mok Chun Chuen, was the son of the other brother of the deceased, Mok Yung Hei. If he was, then the defendant must be entitled to his grandfather's share of the deceased's estate, and this is the only issue before me.

4. Mok Yung Hei died in the 1930's. The precise date is not known, and no proper records were then kept. The evidence of the witnesses of both sides seem to concur that it was between 1934 and 1936, although there is a curious entry in the records of the Land Registry which reads:

"SUCCESSION TO THE ESTATE OF MOK YUNG HI BY MOK HI ON VIDE ACTION NO. 125/31 DD. & REGD. ON 24.9.31"

which appears to show that, not only did he die at the latest by 1931, but that the plaintiffs' grandfather inherited his estate, indicating that he died without male issue. I do not, however, regard this as conclusive, first because, being presumably copied from the original handwritten record, which I have not seen, there may well be room for error, for instance 1937 being mistaken for 1931. Second, it is the defendant's case that his grandfather lived on Cheung Chau for some years, and his son remained there after he returned to Tung Chung, and it is possible, although unlikely in my view, the rest of the family may not have known there was a son to inherit. I have, however, heard from a number of witnesses who were alive prior to Mok Yung Hei's death and knew him, and, although memories must fade with time, I consider it more likely that his death was after 1931, but probably not later than 1937.

5. It is not in dispute that at some stage Mok Yung Hei left Tung Chung for Cheung Chau to find work, and only returned to Lantau in the early 1930's, where he died a few years later. Neither is it in dispute that he returned alone.

6. The defendant was born in 1930 in Cheung Chau and says that he lived there with his parents, Mok Chun Chuen and Lam Lan Far, and his maternal grandparents, and his grandfather, Mok Yung Hei, lived at his working place. He said that his grandfather was married to one Cheng Mui, but that she had died in 1929 in Tung Chung, Lantau. In the light of the plaintiffs' case that Mok Yung Hei never married, the evidence as to the existence of Cheng Mui is central to this action and I will return to it shortly.

7. The defendant gave evidence that he remembered going to Tung Chung to see his grandfather after the latter returned there, although he must have been a small child then, and on his own evidence the journey in those days was a long one by rowing boat taking a day to such a remote place. After the death of Mok Yung Hei, he does not appear to have given any further thought to his claimed relations in Tung Chung, as the next thing to happen was a visit to Cheung Chau in 1970 by one Mok For, who was a captain on a Yau Ma Tei ferry, and who recognized the name "Mok" on the defendant's shop and asked him the name of his father and grandfather. Some time later he was again visited by Mok For together with two other members of Mok Ka village, Mok Tai and Mok Ling. He was given a signed picture to decorate his shop, and they clearly considered him at least a native of their village. Following that, the defendant made several visits to Mok Ka village, attended at the reopening of the ancestral hall in 1981, and was invited to a number of celebrations involving the families of Mok For, Mok Tai and Mok Ling, but to only one involving the plaintiffs' families, namely the wedding of the fourth named plaintiff, Mok Ki Ling. Mok Ki Ling says that this was only at the request of Mok For, who was not a member of the same Tong, and by toasting the defendant in tea he was not accepting him as a member of the family, but merely paying respect to his elders as he did with the others present. In the correspondence between the defendant's solicitors and the Islands District Office in the 1990's, there is considerable confusion as to whose estate he was claiming, his solicitors writing to the District Office in support of his claim to that of Mok Hei On, the plaintiffs' grandfather, saying that they were the grandsons of Mok Yung On. It may well be that this was a difficulty in giving instructions to the solicitor rather than showing a lack of knowledge of his claimed family by the defendant, and, to be fair, he has always claimed Mok Yung Hei as his grandfather. Indeed, the plaintiffs themselves may have added to the confusion when they were described in two powers of attorney respectively, in my view probably by an oversight, as the grandsons of both Mok Hei On and Mok Yung On. I propose to ignore this for the purpose of these proceedings and look only at the evidence adduced before me.

8. The defendant called two witnesses to support his case: Fung Pak Tai and Hui Chuen. Fung Pak Tai was born in 1917 and was therefore about 17 years of age when Mok Yung Hei left to return to Lantau. He said that he knew Mok Yung Hei, who worked at the Tai On Cable Shop, opposite where Fung lived. However, he also said that the cable shop closed when he was 10, and he did not see Mok Yung Hei again after that. But the most revealing part of his evidence was that Mok Yung Hei had no wife in Cheung Chau, and he did not know if he was married. He also said that the defendant's father, Mok Chun Chuen, lived with Mok Yung Hei, who said that he was his son. While this does not accord with the defendant's evidence of living with his parents and maternal grandparents, it is possible that Fung's memory is of an earlier time, which must have been when he was quite small.

9. Hui Chuen was born in 1907. He too had no knowledge of Mok Yung Hei's wife and never saw her. He thought she may have lived in Lantau and never came to Cheung Chau. He also knew Mok Chun Chuen and believed him to be Mok Yung Hei's son. However, he was only in Cheung Chau for two and a half years at the same time as Mok Yung Hei, and then went to Aberdeen, returning during the war, after which he worked with Mok Chun Chuen for two years. He too was very young when he last saw Mok Yung Hei.

10. The plaintiffs deny that the defendant is Mok Yung Hei's grandson. They point to the fact that no-one in Mok Ka village was aware of a wife of Mok Yung Hei there, that he returned alone in 1934, and when he died no son came either to officiate at his funeral, which was performed by his nephew Mok Fook Chuen, and no-one since came to pay respects at his grave, the location of which was well known. As far as anyone in the village was concerned he lived and died a single man without issue.

11. This was supported by the evidence of Mok Ki Ling that the defendant had never been introduced to them by Mok Ling and Mok Tai as the grandson of Mok Yung Hei, that no-one of the village elders had ever mentioned a grandson, nor was any son of Mok Yung Hei included in the family tablets in the ancestral hall or in the family tree compiled by the elders. The same account was given by the plaintiffs' witnesses, Mok Shu Ling and Mok Ling Tai.

12. Mok Shu Ling was about 7 years old when Mok Yung Hei returned to Tung Chung, and Mok Ling Tai was about 16. Both agreed that he neither brought with him any wife or son, nor mentioned to anyone that he had either. Mok Ka village was then a small settlement of about 20 households where everyone knew the others and both say they would have known if Mok Yung Hei was married. They both remembered particularly that he never gave them a lai see at Chinese New Year, which they would have expected had he been married or a widower. Both these witnesses attended Mok Yung Hei's funeral and knew where his grave was. The defendant clearly does not know where Mok Yung Hei's grave is, and his only explanation for his father not attending the funeral was that transport was difficult and he may not have known about it. This does not, however, explain why he subsequently never went to pay his respects at the grave, or to keep in touch with relations in the village which he must have known about, if Mok Yung Hei was indeed his father.

13. The evidence as a whole therefore does not support the defendant's case, firstly, of Mok Yung Hei being married at all, no-one in either Cheung Chau where he lived, nor in Mok Ka village, Tung Chung where he came from and returned to, having seen her or known of her, or of him being married at all. Secondly, I find it unbelievable that a man from a close knit and traditional village such as this, where male issue are held in high regard and are the only ones who can inherit from their father, would have a son without his neighbours being aware of it. If one adds to this the fact that he died alone, with no son at his funeral nor visiting later to pay respects, I am driven to the conclusion that, on a balance of probabilities, there was no wife and no son.

14. I accept that the defendant's father was Mok Chun Chuen, and that there may well have been such a close relationship between him and Mok Yung Hei that he was thought by his neighbours to be his son. But this is not good enough in the face of the overwhelming evidence overall that Mok Yung Hei was a single man.

15. For these reasons the defendant has failed to satisfy me to the required standard that he is indeed the grandson of Mok Yung Hei, and I must accordingly give judgment in favour of the plaintiffs for the relief they seek, and the defendant's counterclaim will be dismissed. There will be liberty to apply in respect of the form of the order sought, and an order nisi for costs to be taxed in favour of the plaintiffs. The defendant's own costs will be taxed in accordance with Legal Aid Regulations.

Representation:

Mr Alfred K C Fung, instructed by Messrs Leung Chan & Pang, for the Plaintiffs

Mr Nelson Miu, instructed by Messrs Hobson & Ma, for the Defendant