Wong Ying Kuen v. Wong Yu Shi and Others

HCMP000019/1956

IN THE SUPREME COURT OF HONG KONG

ORIGINAL JURISDICTION

MISCELLANEOUS PROCEEDINGS NO.19 OF 1956

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Coram: Briggs, J.

Date of Judgment: 25 July 1969

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JUDGMENT

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1. This is a summons brought by consent of the parties to determine certain questions and issues arising from the judgment of the Full Court in this action which was delivered on 11th October 1957 and which is reported in 1957 H.K.L.R. at page 420. In this judgment. I do not propose to set out the facts which are dealt with in that judgment. I will deal with each issue raised in this summons separately. But first it is necessary to decide what law should be applied. It is not disputed that the distribution of the estates of Chinese persons domiciled in Hong Kong who die intestate is governed by Ching law. This matter is dealt with in the judgment of the Full Court in this action. But at what period should Ching law be applied?

2. The plaintiff's case is that the proper law to apply is Ching law and custom as it existed in 1843 together with such developments as have occurred to custom in Hong Kong. The defendant urges that it is Ching law and custom as it existed in 1931 as it was developed and interpreted in the Republic of China, that should be followed.

3. This is a very important point because the differences between Ching law in 1843 and 1931 are considerable. From 1911-1931 the courts in China appear steadily to have evidenced the interpretation of the Ching code, thus reflecting the more progressive outlook of those times. There appears to have been a real attempt to broaden the rigid interpretation of imperial times particularly in the sphere of family law, where a more equal status between man and woman was aimed at.

4. The defendant urged that the law is a living entity and that the court should not hold that Ching law in Hong Kong became ossified in 1843. It was also pointed out that it would be next to impossible to say what the law was in 1843. On the other hand it is not difficult to find the law in 1931 because there exist commentaries and collections of case law relevant to that period.

5. I think that the correct law to apply is the Ching law and custom as it existed in 1843 with such modifications in custom and in the interpretation in the law as have taken place in Hong Kong since that period. The Hong Kong legislature reserved Chinese law and custom to Hong Kong in 1843 and I do not see how changes in the law made in another country whether by legislation or interpretation of the code can affect Hong Kong.

6. The law is continuously interpreted in the light of existing circumstances. Any such gloss on Ching law which has occurred in Hong Kong since 1843 must be accepted and followed. Similarly custom becomes modified throughout the years and due regard must be paid to any such change that has occurred in custom in Hong Kong.

7. In an article in the International and Comparative law Quarterly Vol.11 (1962) (p.229) entitled "Chinese Customary Law in Hong Kong" the learned author, Mr. Haydon, collects and comments upon the Hong Kong and some other cases up to that date, 1962. He reaches the conclusion that the correct law to apply is the 1843 Ching law and custom as it has been modified in Hong Kong.

8. In Wong Kam Ying v. Man Chi Tai⁽¹⁾ the court held that in construing those parts of Chinese customary law which are applicable to Chinese living in Hong Kong "one merely looks to 1843 to ascertain the applicability of the customary law and the basic rules as they then existed and thereafter one applies those rules subject to such developments as may have taken place since that date."

9. I adopted the same view in Li Tang Shi v. Li Wai Kwong⁽²⁾ a case concerning land in the New Territories.

10. I am also fortified in my opinion by certain dicta of the Chief Justice in his judgment in the Full Court in Tse Mon Sak v. Tse Hung⁽³⁾.

11. In the hearing before the Supreme Court in the present case two witnesses gave expert evidence on Ching law and custom. Both are now dead. I have had affirmations from five further expert witnesses placed before me in these proceedings and two of those five gave evidence before me in the witness box as well.

12. A great deal of the evidence of these witnesses concerned the development of Ching law in the Republic of China and modifications in Singapore and Malaya were not ignored. I am grateful to counsel and to the experts called for their industry but I do not think that that part of their evidence is relevant to the issue. We must in my view keep our eyes in the boat; and the boat is Hong Kong. What happened outside Hong Kong must be ignored. Developments and new interpretation of the Ching code undoubtedly took place but they were the result of pressures and conditions irrelevant to Hong Kong.

13. The first defendant is the administratrix of the estate of her husband Wong Choi Ho. And she has been confirmed in that position by the Full Court decision in this action. This summons in effect calls for a distribution of his estate. Part of that estate consists of certain shares in the Yaumati Ferry Company. The late Wong Choi Ho was a founder member of that company and under the articles of association of the company he was entitled to a founder's bonus provided he held 200 shares. Because the shares of the late Wong Choi Ho are still registered in his name, the first defendant as his administratrix has been receiving a founder's bonus annually. This is a valuable right bringing in something between 25,000 and 40,000 dollars annually. It is not too much to state that the right to a founder's bonus constitutes nearly the whole of the assets in the estate. This right will vanish if the shares are sold or if they cease to be registered in the name of Wong Choi Ho, or in the name of heirs, administrators or executors.

14. For that reason the parties have agreed that whatever my decision is as to distribution, it is of the utmost importance that 200 shares remain in Wong Choi Ho's name or in the name of his heirs, administrators or executors.

15. The first issue of fact to be decided is whether the first defendant is the Tin Fong widow of Wong Choi Ho or only his concubine. It is clear from the evidence that she entered the household during the lifetime of the Kit Fat wife. The evidence called on her behalf was that she and Wong Choi Ho worshipped the ancestral tablets together, there was a written contract, and a dinner. She and a younger brother gave evidence that she entered the household of Wong Choi Ho as his Tin Fong wife. This was denied by the plaintiff who maintained that she served tea to the Kit Fat wife, a clear indication that she came as a concubine.

16. Neither the plaintiff nor the first defendant made a good witness. There is a great deal of ill-feeling between them. And I have no doubt in saying that this coloured their evidence.

17. The ceremonies to which the first defendant referred would have constituted a valid marriage except for the fact that the Kit Fat wife was still living. I have no hesitation in saying that a man cannot have a Kit Fat wife and a Tin Fong wife at the same time. Mr. Dicks pointed out that a Tin Fong wife is unknown to the Ching code. But it is evident that in Hong Kong the status of a Tin Fong wife is recognised and has been for a great number of years. But I have heard nothing to allow me to hold that in Hong Kong the custom was that a man could have two wives at once. I was referred to certain customs in Canton and Foochow which recognised two wives at one and the same time but I do not think that this is relevant. Two wives at once is expressly forbidden by the Ching code and the customs referred to are of narrow application and do not apply to the facts of this case: nor do they apply in Hong Kong. In addition the particular type of marriage to which they refer has its own special designation.

18. At the time that the first defendant entered the household the Kit Fat wife of Wong Choi Ho was a very sick woman. Indeed, she was dying. She had already been moved out of her bedroom into the Teng as a customary. Mr. Lam agreed with the proposition that the Tin Fong wife takes the place of or fills the room of the Kit Fat wife. But he suggested that as the room of the Kit Fat wife was empty, she being in the Teng, the husband could fill it with a Tin Fong wife: and that therefore the ceremonies referred to by the first defendant constituted a valid marriage.

19. This is very ingenious but I do not think it is founded on authority. If it were the case, a wife has only to leave her room and the husband can take another wife provided he performed the proper ceremonies. It is directly contrary to the code and indeed the very phrase Tin Fong shows that there cannot be a Kit Fat and a Tin Fong wife at the same time.

20. The first defendant relied on the ceremonies but her counsel has pointed out that she was addressed by members of the household and officials in her husband's company as if she were a Tin Fong wife and not a mere concubine. She gave evidence herself of this before the court and also in the present proceedings.

21. There was a great deal of expert evidence that a concubine could, after the death of the Kit Fat wife, be elevated from the condition of a concubine to that of a Tin Fong wife. I was told that this is known as Fu Ching. And that as in all changes of status within a family it was usual at least in old times to effect this by some ceremony. When such a change in status is made there must be a degree of publicity. Some announcement by the husband that he will from henceforth consider his concubine to be his Tin Fong wife or some dinner to celebrate that event. The authorities are agreed that there was no established customary ceremony to achieve this, that it was up to the husband to devise his own method of effecting and making known the change. In China in later times it appears that no ceremony was required: mere tacit recognition by the husband being considered enough.

22. It is agreed that in the present case there was no ceremony or solemn pronouncement by Wong Choi Ho. I am asked to infer from the evidence given by the first defendant that various members of the household and others addressed her as if she were the Tin Fong wife, that she was as recognised by her husband. I think that were that so, there would have been some sort of a ceremony. The plaintiff is insistent that the first defendant was never a Tin Fong wife. At the relevant time Wong Choi Ho had a concubine and a family by his Kit Fat wife. Surely it is reasonable to suppose that if he intended to change the status of the first defendant from concubine to wife he would have sealed such an important intention with a ceremony or an announcement of some kind. For to make such a change would materially alter the status of the family of the Kit Fat wife. It is also for mention that the first defendant herself did not rely upon the fact of recognition of her position as Tin Fong wife. She certainly gave evidence that she was so recognised but she said in effect that that was because she had entered the household as a Tin Fong wife. There was no question of becoming a Tin Fong wife by subsequent recognition, she had never been anything else.

23. I think that in the circimstances of the case that there would have been some sort of a ceremony or pronouncement to the family in accordance with custom. There is no evidence that mere recognition is sufficient for a change of status in Hong Kong. And I think the old custom prevails.

24. It follows that I hold that the first defendant was and is the concubine and not the Tin Fong wife or widow of Wong Choi Ho. I think she came into the household as a concubine. Again when a concubine is taken it is usual to have some sort of a ceremony and the ceremonies deposed to by the first defendant when she entered the household would be sufficient for this.

25. The second point which calls for determination is whether the first defendant is entitled to withhold or to prevent the distribution of the estate. It is clear from the expert evidence called before me that the first defendant as the concubine of Wong Choi Ho is not entitled to withhold or to prevent the distribution. There was a disagreement between the experts whether a Tin Fong widow had such a right in law or whether her right was really a moral one and that the management of the property should remain in the hands of the heirs and the widow jointly. This point need not detain us further. I am satisfied that as a concubine she has no such right.

26. The next point raised in the summon concerns the benefits which the first and third defendants received from the estate of Wong Choi Ho. In effect they have acted as if they were entitled to the entire income of the estate. And the first defendant admitted as much in the witness box. The defendants have completely ignored the judgment of the Full Court: where it is clearly stated that the whole of the estate of Wong Choi Ho passes to the second intestate's estate subject only to the right of the first defendant to maintenance. (See 1957 H.K.L.R. at 438). The first defendant has shown herself to be utterly incompetent to manage this estate. No proper accounts have been kept and those which have been submitted to the court are full of omissions and errors. It would not be too much to say that the one point that they make is that since 1953, at any rate, the first defendant has swalled up the entire income of the estate. But whether that has been done in the manner indicated in the accounts themselves is a different matter.

27. Be that as it may at a very late stage in these proceedings the parties reached an agreement that a veil would be drawn over past transactions. It was part of the first defendant's case that the plaintiff would have to bring into account certain notional sums representing the present value and number of certain shares which had been (it was said) lost to the estate in the past by the wrongful actions of his father, the second intestate.

28. I do not intend to say anything more on this point. The agreement is that the accounting of all parties shall date from the date of this judgment and no party is liable to account for any monies received prior to that date. In my view this agreement is most commendable and right in the circumstances.

29. The final point for determination under the summons is whether the plaintiff is barred from asserting his claim to part or all of his inheritance.

30. The first defendant in her evidence and in an affidavit claimed that she had been seriously assaulted by the second intestate in 1942. And in the original action and again in the witness box before me she said that she had been stabbed by the plaintiff at about the same time or on an occasion in 1944, different versions appear in the evidence: this the plaintiff admits but there is only the evidence of the first defendant as to the assault by the first intestate. The plaintiff denies any knowledge of it. As I have previously said there is considerable bad blood between the plaintiff and the first defendant as indeed there was between the first defendant and the second intestate. The plaintiff gave evidence before me and I have read the judge's note of his evidence in the Supreme Court proceedings. He was a candid witness and before me I have the impression that he told me the truth.

31. The first defendant was a most unreliable witness. She was very evasive and I can only accept her evidence with the very greatest hesitation. I have no doubt that in giving her evidence she was actuated by spite and a desire to keep the whole income of the estate.

32. Be that as it may no questions were asked concerning these assaults of the first defendant by counsel for the plaintiff in the proceedings in the Supreme Court. So I think I can accept the story of the first defendant that she was assaulted by the second intestate and of course the plaintiff has admitted that he assaulted her. This is not to say that I accept her highly coloured accounts of these assaults. There has been no suggestion that she went to the police though she may have consulted a doctor. It is true that all this took place during the Japanese Occupation but the first defendant was not averse to an appeal to the Japanese Authorities, she took out letters of administration from a Japanese court. And the plaintiff gave evidence to the effect that she had brought Japanese police to the house but in a different connexion.

33. The first defendant's case is that such conduct bars the claim of the plaintiff. He inherits if he inherits at all through his father, the second intestate. The second intestate assaulted the first defendant and as a result under Ching law the second intestate could not inherit his father's estate. Nor could the plaintiff inherit his father's estate. He is entirely barred from the inheritance. If that be the case, then the plaintiff cannot succeed.

34. I do not know when this point first occurred to the first defendant. There is no mention of it in the pleadings. In an affidavit filed some six months after the commencement of the action the first defendant affirmed that the plaintiff was disbarred from the inheritance on the ground that he was an adopted and not a natural son of the first intestate. In consequence the defence was amended. But at that time no reliance was placed on the assaults. Nor was this point raised at the trial of the action.

35. The affirmation of the first defendant filed on 17th April 1967 in connexion with another summons mentions the assaults. But no reliance is placed on them. Nor are they referred to in the two affidavits files at about the same time of Mr. Henry Hu and Mr. Kao Chun-hsian, two expert witnesses consulted by the first defendant.

36. This is very surprising since if the contention of the first defendant is correct there is an end of the matter. The plaintiff is entitled to nothing.

37. Lam Ping Leung gave evidence as to Chinese law and custom both in affidavit and in the witness box. He referred to the Ching Code [ Vol.28 p.25] where it is said that when a son or a grandson assaults or wounds his parents or grandparents he shall be punished with the death penalty. He wishes the court to infer from that passage in the code that when such an assault is committed by a son he, in his own words, "is deemed to be civilly dead, for the purpose of succession in the code". Mr. Lam agreed that the condition of being "civilly dead" was unknown to Ching law as it is indeed to Hong Kong law. I gathered from Mr. Lam's evidence that his opinion is that when a son was disinherited by Ching law and there is no other son to succeed then his successor has to be adopted either by the wife or by the family elders. All this is based on the fact that the penalty for striking a parent was death. Mr. Lam agreed that the penalty for striking a concubine was not death, it would be punishable but with some lesser penalty.

38. One Chow Sue Yuk also gave his opinion on this aspect of the case both in an affirmation and in the witness box. He agrees with Mr. Lam. In doing so he relies on a case which appears to be authority for the general proposition that "filial piety is the root of society". It does not deal with an assault by a son on a parent: and as reported in the affirmation of Judge Chow is inconclusive. It certainly does not support Mr. Lam's opinion.

39. Mr. Dicks, who was called by the plaintiff as an expert in Ching law, said that he agreed that by Ching law a son who assaulted his parent was liable, if prosecuted, to the death penalty. But he added it did not follow that such a son would be disinherited. In order to disinherit a son it was necessary to apply to the magistrate and it was an unusual and solemn matter.

40. In my view the relevant provision in Ching law is of a penal nature pure and simple. I do not think that the correct inference to draw is that if a man commits an offence and renders himself liable to punishment his status is thereby altered. It cannot in my judgment be inferred that because a son assaults a parent he is automatically disbarred from being that parent's heir. There is the further point that the first defendant is a concubine not a Tin Fong widow which according to Mr. Lam reduces the seriousness of the offence.

41. However I will go further and say this. Even if it were a correct ruling of the Ching code that a son who assaults a parent is automatically disinherited, which I do not think to be the case, the court in Hong Kong would be bound to disregard such ruling because of its penal nature and by reason of the doctrine enshrined in Scott v. A.G.⁽⁴⁾.

42. I therefore hold that the plaintiff is not disbarred from the succession by reason of the assaults - both his and that of his father.

43. I now come to the relief sought. It is correct to state in my view that the whole of the estate of Wong Choi Ho devolves on the plaintiff. And this is contained in the judgment of the Full Court. However the first and third defendants claim certain rights.

44. The first defendant claims maintenance from the estate. The third defendant claims (1) a share in the estate (2) maintenance from the estate and (3) a dowry. I will deal with these matters in that order.

45. In arriving at the correct amount of maintenance to be allowed from the estate for the first defendant I shall ignore her past conduct, both the fact that it is due to her persistence in her dealings with the Yaumati Ferry Company that the estate is as large as it now is, and also that she has consumed the whole income of the estate for some 16 years. It is proper I think to consider her present circumstances. I do not believe her when he says she had no income apart from the income of the estate of Wong Choi Ho. Her evidence as to this was very evasive and there is evidence that she has means. She owns her own flat which cost no less than $130,000 and she pays no rent. She is past middle age and lives with her daughter.

46. It is necessary to consider the standard of living to which she was accustomed as the concubine of Wong Choi Ho. Wong Choi Ho died during the Japanese Occupation but I do not think that the low standard of living obtaining at that time need concern us here. The first defendant filed an affidavit concerning her standard of living before the war. I have already said how I regard her evidence whether in affirmation or verbal and I need say no more. In olden times she would probably be decently but quietly housed in part of the family property. She was the second concubine it appears from the facts.

47. Taking all these factors into consideration and doing the best I can I think that the proper order to make is an order that she receive a percentage of the income as from the date of this judgment because it appears that the estate is growing and I think that it is proper that the first defendant should share in any increase in the affluence of the family. The correct amount I hold to be 20% of the income.

48. I now come to the third defendant. I do not think that she is entitled to a share in the estate. According to Mr. Lam, daughters are not entitled to a share in their father's estate unless there is a break in the male line. Mr. Dicks agreed with this and there is abundant text book authority to say that that accurately express the law. There is no break in the male line here and so the third defendant is not now entitled to a share in the estate.

49. The third defendant is a woman of 29 years old. She is employed in an import and export business and will shortly become a partner in another such firm. She lives with her mother, the first defendant. She has not married but she is the mother of two children aged about 9 and 7.

50. She claims maintenance from the estate. And I think from the expert evidence which I have heard she is entitled to something. At one moment in the hearing it is suggested that as she is an unmarried mother she should be entitled to nothing at all. However this was not persisted in. And I intend to disregard it. Since she is in employment and living with her mother I think she should be paid five per cent of the income of the estate until her marriage. In awarding this sum I have not taken into account the maintenance of her two children.

51. The final matter is whether the third defendant is entitled to a dowry if and when she marries. Though the plaintiff's case is that there is no such an entitlement in Ching law, I think it must be conceded that in custom dowries are always provided in Hong Kong when means allow. I will follow the previous case Wong Pun Ying v. Wong Ting Hong⁽⁵⁾ and I award a sum the equivalent of 10% of the capital value of the estate at the time of the marriage. This is not a case where it would be just or convenient to set aside a portion of the capital now. As I have said the estate is growing in size and it will be more advantageous to the third defendant if the amount of dowry is capitalised when the time for payment arrives.

52. The duty of the first defendant is to administrate the estate. As long ago as 1957 the Full Court told her that the plaintiff was entitled to the whole estate of Wong Choi Ho subject to her rights and the rights of her daughter.

53. I think the right order to make is that the first defendant hand over all the share certificates and any other property of Wong Choi Ho to the Judicial Trustee, the administrator of the estate of Wong Yuk Shun. It is for the Judicial Trustee to determine whether the shares in the Yaumati Ferry Company registered in the name of the estate of Wong Choi Ho or in the name of the 1st defendant as his administratrix should remain registered as they are at present or whether they should be re-registered in the name of the plaintiff and the heirs of Wong Choi Ho in accordance with Article 89B of the Articles of Association of the Hong Kong and Yaumati Ferry Company Limited.

54. The sums awarded for the maintenance of the first and third defendants are to be paid to them annually by the Judicial Trustee. And he is to provide the dowry for the third defendant if and when she marries.

55. It has been agreed by counsel that neither party has any right to any account of the estate or of matters connected therewith before the date of this judgment. And that neither party claims any sum of money due to or from the estate before that date.

56. In view of the conduct of the first and third defendant I order that their costs do not come out of the estate but be borne by the parties themselves.

57. The costs of the plaintiff are to be taxed in accordance with the Legal Aid Regulations and to be paid out of the estate of Wong Choi Ho.

58. Certificates for two counsels.

25th July, 1969.

Representation:

Mr. Asome (Deacons) assigned for the Plaintiff.

Mr. Bernacchi Q.C. & Mr. Mills-Owens (T.S. Tong) for 1st & 3rd Defendants.

(1) (1967) H.K.L.R. 201

(2) O.J. 1763 of 1967

(3) M.P. 88 of 1968

(4) (1889) 11 P.D. 128.

(5) (1963) H.K.L.R. 37