Tse Moon Sak v. Tse Hung and Others
Read the full judgment text of HCMP 88/1968 on BabelCite. This High Court CFI judgment was delivered on 27 March 1969.
1. According to the affidavit sworn on the 11th July 1968 by the plaintiff Tse Moon Sak, the testator was born in about 1800 in Tung Kun Village, Kwangtung Province, China and came to Hong Kong with his wife, the 4th defendant and the eldest brother, the 1st defendant, in about 1922.
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HCMP000088/1968 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 88 OF 1968 -----------------
Coram: Hogan, C.J., Rigby, and S.P.J., & Mills-Owens, J. in Chambers Date of Judgment: 27 March 1969 ----------------- JUDGMENT ----------------- Hogan,C.J.: The originating summons in this matter seeks answers to various questions arising out of the will of the late Tse Lai Chiu but a preliminary question has been put down for determination by the Full Court; whether these questions are to be determined by (a) English law, (b) Chinese Law and Custom or (c) a combination of both. 1. According to the affidavit sworn on the 11th July 1968 by the plaintiff Tse Moon Sak, the testator was born in about 1800 in Tung Kun Village, Kwangtung Province, China and came to Hong Kong with his wife, the 4th defendant and the eldest brother, the 1st defendant, in about 1922. 2. The affidavit says that the deceased had been a hawker and fruitretailer in Hong Kong until about 1935 when be became the owner of a photographic studio; that he had carried on a medicine business at No. 204 Johnston Road where he resided from 1928 until his death on 27th July 1960, having purchased the property in 1951; that with the exception of occasional visits to China prior to the Japanese occupation, the deceased never left Hong Kong between 1922 and the date of death and that he had no business interest and no property outside Hong Kong. His will, was made on the 5th November, 1958. 3. The primary question for the court is whether the deceased who was Chinese by race and domiciled in Hong Kong was able by this will to exercise a testamentary capacity in accordance with English law. If that question were to be answered in the negative, a further question would arise as to whether the law applicable to the testators will would be Chinese law as it stood when Hong Kong was ceded or some different or later form of Chinese law and custom. 4. The answer largely depends on the form and history of a provision which first appeared in Supreme Court Ordinance No. 15 of 1844, where it read as follows:-
5. That Ordinance was repealed by Ordinance No. 6 of 1845, of which Section 4, in so far as material, read as follows:-
6. It will be noted that the special provisions in regard to real property and criminal proceedings have disappeared. They did not appear elsewhere in the new Ordinance. 7. That Ordinance was again amended in the following year by Ordinance No. 2 of 1846, which contained the following in its Preamble:-
8. Section 3 of this Ordinance read as follows:-
9. Further amendments were made by Ordinance No.11 of 1865 for the purpose of limiting the application of Section 4 of Ordinance No.6 of 1845 and Section 3 of Ordinance No.2 of 1846 so as not to apply in the Colony certain Imperial Acts which had in the meantime been repealed in the United Kingdom. 10. Repeal and re-enactment came again in 1873, with Ordinance No.12 of 1873, of which Section 7(S.5, Cap.4 in the 1950 Revised Edition) read as follows:-
11. In the revised edition of the Ordinances of Hong Kong prepared in 1903 and that of 1950, which was in force at the time of the testator's death, the words "shall be inapplicable" in this section were altered to "are inapplicable" and the section re-numbered "5". 12. There was a further repeal and re-enactment by the Application of English Law Ordinance in 1966, Cap.88, but I don't think that need concern us as it was subsequent to the death of the testator. 13. These laws were preceded by two Proclamations issued after the Chinese Emperor's representative and Capt. Elliott had agreed to the cession of the Colony. The first issued on 1st February 1841 to the "Chinese inhabitants" by Commodore Bremer as Commander-in-Chief and Capt. Elliott as Plenipotentiary included the following passage:-
14. The second proclamation was issued by Captain Elliott alone, as Her Majesty's Commissioner, Procurator and Plenipotentiary in China, and is dated the 2nd February, 1841. It is addressed generally and contains, inter alia, the following statements:-
15. It was said of these proclamations by Sir William Rees-Davies, C.J., in the case of Ho Tsz-tsun v. Ho Au-shi(1), that they recognize "a dual prospective system of law in the Colony"; so far as British Subjects and foreigners were concerned, security and protection according to the principles and practice of the British law" were extended to them; whilst in the case of the Chinese "the laws and customs of China" were reserved in their favour. 16. No counsel before us has sought to question the general assumption in Hong Kong that where a Chinese domiciled in Hong Kong dies intestate his property will devolve not in accordance with English law and the English statutes of distribution but in accordance with what I will briefly call "Chinese law". The argument before us has turned on the question whether this refusal to apply the principles of English law to intestate succession should not also extend to testamentary capacity or the construction of any testamentary document which may be made by a Chinese domiciled in Hong Kong. At the root of the argument for such extension in this case is an expert opinion on Chinese law presented to us by affidavit of Mr. Dicks who says that this question has never been squarely faced and determined by the courts in Hong Kong. Mr. Dicks's Opinion 17. Having indicated a course of study which would appear fully to support his claim to be an expert in the subject, he states his conclusion that "there is in Ch'ing law no general power of testamentary disposition, all succession being legal succession", and traces this as a corollary of a broader principle of Ch'ing law that, with certain exceptions, not of importance to the present case, property does not vest according to Chinese legal notions in an individual but inheres in the family as a whole. 18. The strength of the support for this view and the conclusions which he draws from it emerge in the following passages of his affidavit:-
19. Mr. Dicks maintained that to interpret Section 5 of the Supreme Court Ordinance as introducing the English provisions as to testate succession would conflict with the presumption against construing a statute so as to violate international law (see Maxwell on Interpretation 11 Ed. p.142). Chinese successors, he said, had a clear vested interest in their family property, consequently "a construction which enabled a family head arbitrarily to deprive such successors of their interests would violate the rules protecting acquired rights on a change of sovereignty; see O'Connell on International Law Vol.1 p. 437. Such a construction would also appear to conflict with the common law rule (see O'Connell p.438)". 20. He maintained that the Hong Kong legislature had, by the Chinese Wills Validation Ordinance 1856 and the Imperial Enactments Extension Ordinance 1857, specifically recognized the applicability of Chinese law while the essential validity of the wills of Chinese domiciled in Hong Kong must be determined by reference to their personal law, which is, of course, Chinese law, although the formal validity of these documents may be determined by what is now the Wills Ordinance, Cap. 30. He went on to say that, notwithstanding the statutory distinction thus recognized between testate and intestate succession, there is no logical justification for separating them when applying section 5 of the Supreme Court Ordinance; that the law of succession for Chinese domiciled in the Colony, which forms a consistent whole should be treated as such and should not be subject to illogical, partial and uncertain exceptions of indefinite scope; and that there is no reason in principle to exclude parts of the substantive Chinese law of succession from the general preservation of Chinese personal and family law in matters of substance. 21. He claimed to find support for this approach in observations by Havilland de Sausmarez, J. in the case of Ho Tse-tsun v. Ho Au-shi(1) which indicate that succession as a whole was exempt from the operation of English law without drawing a distinction between testate and intestate succession though admittedly these observations might, strictly speaking, be obiter for the purposes of the case. Solicitor Generals Arguments 22. In the determination of the issues before us, we have had the benefit of argument from the Solicitor General, as amicus curiae, which has been of considerable help to us. 23. He began by putting to us four propositions of which the last took the form of a question.
24. He aubmitted that, in considering these matters, a proliminary problem arose as to whether it was necessary to take evidence of Chinese law and custom. He questioned the approach to this problem adopted by Macfee, J., in the Hong Kong case of Lui Yuk-ping v. Chow To(2), when he criticised the practice hithereo followed by Courts in Hong Kong of taking evidence on this point and suggested that if Chinese law and custom was to be accepted as part of the law of Hong Kong then its existence was a matter of which judicial notice should be taken, and the proper procedure would be to consult written authorities on the subject; if necessary with the assistance of learned Counsel and translators. 25. The learned Solicitor mentioned the reference by Huggins J. in Wong Kam-ying & Another v. Man Chi-tai(3) to the support for the view of Macfee J., which might be found in the judgment of Lord Advocate v. University of Aberdeen(4), where the point in dispute was whether Norse law continued to exist in Orkney and Shetland after these islands became part of Scotland because of an impignoration in 1468 followed by annexure in 1540. The relevant passage in the Scottish case reads as follows:-
26. The Solicitor General suggested that this approach was not appropriate and could be distinguished because the Scottish court was concerned with the absorption into Scottish law of the Norse law applicable in 1468 in Orkney as a Common law, common to all and applied to all, but, he said, the effect of the relevant provisions in Hong Kong is not to make Chinese law and custom common to all in Hong Kong. It is English law that is common to all and its application is withheld and modified only where it would work injustice or oppression. It is in these circumstances, he said, that you look for another law and apply it; in the case of Chinese, who are of course the overwhelming majority in Hong Kong, that law would almost certainly be Chinese law and custom; although the date and place of the law and custom might be open to question; the law would nevertheless remain alien and foreign so far as the legal system of Hong Kong was concerned and would be introduced for the purpose of filling the vacuum left by the inapplicability of English law. Evidence of such foreign law was, he said, quite appropriate and fully justified the custom, long established in Hong Kong, of receiving such evidence. He suggested analogies with the position under private international law when a man dying in England is domiciled in France, and French law is applied for the purpose of determining the essential validity of his Will, and when, in determining the validity in England of a foreign divorce, it is necessary, as in the case of Har-Shefi v. Har-Shefi(5), to have Evidence of Jewish law. 27. He drew attention to the fact that, in two Straits Settlements cases that went to the Privy Council, evidence of Chinese law had been accepted without attracting critical comment, which would presumably have been forthcoming if the evidence should not have been introduced: Khoo Hooi-leong v. Khoo Chong-yeok(6) and Cheang Tyre-phin v. Tan Ah-loy(7). 28. Turning to the existence of hardship or oppression, this was, be said, a question of fact but one which falls to be decided in general circumstances. In passing, he mentioned there could be a change, although not a rapid one, and what might be unjust and oppressive in 1843 would not necessarily be unjust and oppressive in 1960. 29. He submitted that there was no authority in conflict with, and consequently we should follow, the view taken by the Full Court in Wong Yu-shi and Others v. Wong Ying-kuen(8), which itself followed with some reservations the approach adopted in the case of Ho Tse-tsun v. Ho Au-shi and Others(1). In the later case the court said that Chinese law and custom would prevail only if the corresponding English law was inapplicable in the sense that it could not be applied without injustice or oppression and had not been made the subject of Hong Kong legislation but the court went on to emphasize that as the decision in Ho Tse-tsun's(1) case dealt exclusively with succession on intestacy, the observations of the judges in it should be regarded as confined to that subject. As an example of Chinese law and custom being excluded, the court referred to the decision in Lau Leung-shi v. Lau Po-tsun(9) that the rule against perpetuities was in force in Hong Kong. 30. This brought the Solicitor General to his 2nd proposition that guidance could be found from cases in the Straits Settlements. These have an additional significance because they reached the Privy Council whilst the Hong Kong decisions have not been considered by that final tribunal. 31. The most relevant passages appear in the case of Yeap Cheah-neo v. Ong Cheng-neo(10), when the Board said:
32. But the Board went on to apply the English rule against perpetuities, being founded on public policy for the general welfare of the community, even though in doing so it thwarted the efforts of a Chinese inhabitant to provide for the worship of ancestors after death, which could be regarded as a most important part of the Chinese way of life and death. 33. In the case of Khoo Hooi-leong v. Khoo Chong-yeok(6), the Board said:-
34. The Board went on to decide that English law was not applicable to the term "wife" and that, instead, Chinese custom let in a second wife and the children of that second marriage. Yet, the learned Solicitor observed, English law was not treated as being harsh or oppressive when dealing with unborn children of the second wife and these who were illegitimate at birth but had acquired legitimacy through the Chinese custom of later recognition, even though its effect was to exclude such children from what might have come to them under Chinese law and custom. 35. The learned Solicitor pointed out that Chinese law and custom did not take over the whole field of succession but only operated in regard to a particular disposition under the Will, i.e. that dealing with the wife and children; moreover the Court did not deal with the matter as a particular case but looked at the general effect so that the particular disposition was equated with that particular type of disposition. 36. As for intestate succession, the Solicitor General said, it had long been held in Hong Kong that the Statute of Distributions does not apply but the Straits Settlements apply it with modifications although they would not, on intestacy, let English law be so modified by Chinese law and custom as to exclude females. 37. Referring briefly to his 3rd proposition he said that the difficulties of piecemeal application is really confined to Wills. 38. This brought him to his 4th proposition or question and to certain criticisms of what he called the Belilios Rule, from the case of that name E.R. Belilios v. Ng Li-shi(11), decided in 1893 by Fielding Clarke, C.J. 39. In the course of his judgment the Chief Justice, having traced the history of S.7 of the 1873 Ordinance said that the section could not be interpreted as referring to the circumstances of the Colony in 1873 as that would imply that the Legislature in 1873, instead of providing "for the growing wants of the community by laws of their own making", imported as a fresh consignment all such English laws not heretofore in force in Hong Kong as the court might consider had then become applicable. 40. This view was endorsed by the Full Court in Ho Tse-tsun's(1) case but, the Solicitor General argued, the Chief Justice, when rejecting the application of the circumstances of 1873 as against those of 1843, did not consider the circumstances currently applicable in 1893 and the argument which the Chief Justice had put first was really secondary as the primary argument rested on a "re-enactment" implying that the same meaning should apply to the words when re-enacted as when originally brought into force. Nevertheless, the Solicitor General said, those words when applied to a particular set of facts applied to the facts in current circumstances and such circumstances may change. This point, he said, was ineffect recognised in HO's case(1) where reference is made to the current practice of the Chinese in Hong Kong. If, he said, the suggested test is that, under Chinese law and custom, property belongs to the family and the head of the family only has a life interest or right to manage it, how many men of property in Hong Kong today would regard themselves as being bound by that rule? Would not most of them think that they were free from any such limitation and that it would be quite wrong to reimpose it at the time of death? He suggested that common life in Hong Kong today is based on the belief that people have dominion over property acquired here. Secondly, he said the ordinary rules of construction apply to this Section in that a Statute is always speaking: for example, a Statute permitting only those, who have licences, to drive a motor-car does not mean that this freedom to drive is confined to those who had a licence at the time of enactment. 41. Moreover, he said, the doctrine of 'Contemporanea expositio', under which Statutes may be construed by showing how they were understood at the time they were passed applies only to ancient Statutes which would not include those enacted after 1843. He quoted a paragraph in Halsbury's Laws of England(12), which reads as follows:-
42. He referred to similar passages in Craies on statute law(13) as well as to Kingston Wharves v. Reynolds Jamaica Mines(14), and went on to say that, if the aim was to avoid injustice and hardship, then one must look at circumstances as they now exist rather than take an "ossified" meaning established long ago when circumstances were very different; the word "inhabitants", for example, would not, in 1843 mean the same individuals contemplated by the use of that expression today. He closed by referring to the readiness of the Full Court in the Ho Tse-tsun(1) case to overrule an earlier Full Court decision. Mr. Wong's Arguments 43. Mr. Wong, on behalf of the plaintiff, divided his argument into two branches, one dealing with the Chinese Wills Validation Ordinance 1856 and the other with the effect of section 5 of the Supreme Court Ordinance. 44. On the first limb he referred to the endorsement by the Full Court in the case of Wong Yu-shi and Others v. Wong Ying-kuen(8), of the observation made by Sir Henry Gollan, C.J. in the Estate of Chak Chiu-hang(15) to the following effect:-
45. This, Mr. Wong said, amounted to no more than a conclusion that the form of wills was, in effect, codified for Hong Kong in the Wills Act 1837 and the Chinese Wills Validation Ordinance, 1856, now Cap.30. This did not touch, he said, on the testamentary capacity of the deceased, which was still governed by Ch'ing law; unless a purported disposition was valid under Ch'ing law the validation by the 1856 Ordinance of the mere form of the will would be of no avail. 46. The section of the Validation Ordinance in question, now section 3 of the Wills Ordinance, Cap.30, reads as follows:-
47. The requirement that the disposal should be effectual clearly referred, Mr. Wong said, to the need for it to satisfy Ch'ing law. 48. Turning to the other branch of the argument, he said the effect of the Wong Yu-shi(8) case, the Wong Kam-ying(3) case and the earlier Ho Tsz-tsun(1) case was to show that both testate and intestate succession of Chinese in Hong Kong was to remain subject to Chinese law as at 1843. He placed particular reliance on the already mentioned view of Havilland de Sausmarez, J. in Ho Tsz-tsun's(1) case which, he contended, was entirely in accordance with international law. 49. He sought from Norton Kyshe's History of the Laws and Courts of Hong Kong (p.4) support for his contention that the aim of the 1844 and subsequent enactments was to give effect to the promise made by Elliott in his proclamation and thereby to preserve Chinese law for the Chinese inhabitants. He argued that there should be no difference between testamentary and intestate succession; that if the Chinese law is applicable to one it should be equally applicable to the other, particularly as the structure of the Chinese family was not such as to be readily susceptible to the application of English rules of testamentary succession just as it had been recognized to be impossible or undesirable to apply the English rules of intestate succession. 50. He referred us to the following passage in Craies on Statute Law(13):-
51. As authority for this proposition, the author refers to Tarring's Law of the Colonies, to certain Canadian cases and to numerous practical examples such as New York, Maine and Jamaica as well as Quebec and South Africa. 52. Mr. Wong found further support for it in the case of Cooper v. Stuart(16) where Lord Watson said that:-
53. Lord Watson went on to show how many rules and principles of English law which will be unsuitable to such a Colony at its infancy would gradually be attracted to it. He said that what laws should be admitted and what rejected, at what times and under what restrictions, must, "in case of dispute be decided in the first instance by their own provincial judicature, subject to the decision and control of the King in Council". 54. Mr. Wong reinforced these views by a reference to the opinion of the Privy Council in Amodu Tijani v. The Secretary, Southern Nigeria(17) where, dealing with a cession by chiefs in Nigeria, the Board said:
55. This being the position, Mr. Wong said, not only under British law but under international law it was incumbent on this court to construe the local legislat on, if possible, so as to conform with this principle of international law and British law. 56. He quoted Maxwell's Interpretation of Statutes(18) which says:-
Further support was sought from the observations of Professor Lauterpacht, in a paper published in the 25th Volume of The Grotius Society Transactions (1939) where the Professor, to prove his contention that international law is a part of the Law of England, quoted a number of decisions, ranging from Buvot v. Barbuit(19), where it was said that:
to the judgment of Lord Alverstone in West Rand Central Gold Ming Co. v. R.(20) that:
The Professor went on to say (Page 57):
For the latter proposition reliance was placed, inter alia, on the statement of Sir R. Phillimore in R. v. Keyn(21) that:
57. Mr. Wong also pressed into service the argument that a subordinate legislature, such as that of Hong Kong, did not have the power or authority to enact ordinances contrary to International Law. Apart, however, from a possible construction of the passage quoted from the Amodu Tijani(17) case, he did not develop an argument as to what rule of International Law would preclude an alteration in the law of testamentary disposition. Mr. Yu's Arguments 58. Mr. Yu, appearing for the first, second and third defendants, submitted that English law applied in the first instance to all testamentary instruments but if and when it was shown that English law could cause oppressionor injustice then some other law should apply; so, in the present instance, if it were found that such oppression would occur then Chinese law and custom, in the sense of the Ch'ing law and custom as it stood at 1843, possibly modified by local custom, would be applicable. He claimed that the operative provision was section 5 of Cap. 4, as the deceased died in 1960. Having mentioned, in passing, that section 3 of Cap.88 would appear to have been based on the Penang precedents, he said that the judgment of Gollan, C.J. in the Chak Chiu Hang(15a) case showed that there is no statutory enactment purporting to retain or perpetuate the application of Chinese law and custom in Hong Kong; Captain Elliott's proclamations did but their legislative effect is questionable. The Chief Justice said(15b), however, that substantial and important portions of Chinese law and custom, as existing at the time of Captain Elliott's proclamation, continued to apply and had been held to be in operation in the Colony. This did not, Mr. Yu said, make it part of the law but merely recognized that it would be applicable in certain circumstances and conditions. 59. Mr. Yu contended that English law must apply when a will exists and is valid under English law although the Wills Ordinance Cap.30 also contemplated that there would be Chinese wills and the legislature clearly thought that the Chinese could make wills according to Chinese law; section 3 of Cap.30 indeed went beyond English law by validating wills that would otherwise be defective. Probate and Administration, he said, were unknown to Chinese law although wills were known, therefore the question of who is entitled to probate or letters of administration must be determined by English law because these are concepts newly introduced into the Colony, which affected all estates irrespective of who the testator might be. 60. He stressed that the Hong Kong decisions dealt only with intestacy and the only cases dealing with wills came from Penang where an attempt to comply with Chinese law and custom had been held void, in the Yeap Chek Neo(10) case, because it did not constitute a charitable use. Apparently hardship was, he said, never considered. 61. Whether the deceased had power to make a will was in issue in the present case as part of the question whether Chinese law was applicable but probate had in fact been granted and, if English law applied, this is a good will because it is signed by the testator and executed in accordance with that law. 62. He referred to the report(22) in 1953 of a committee on Chinese law and custom appointed by the Governor in 1949 as showing that the right to make a will has always been recognised in Hong Kong. He added, however, that, although no authority could be put forward for the argument, he was prepared to concede that if, in particular instances, it was shown that the application of English law would lead to injustice, then section 5 of Cap.4 would permit the application of Chinese law and custom to the interpretation of the will or parts of it but, he contended, no such circumstances had been made out in the present case. 63. He concluded by saying that whilst it had always been assumed that it was the circumstances in 1843 which should be taken into account, he was attracted by the Solicitor General's suggestion of a speaking statute and drew attention to the fact that the reference to the year 1843 in the section did not govern what followed it. The word "inapplicable" he said, must refer to current conditions and that was the test contemplated by the principle endorsed in the Khoo Hooi Leong(6) case. Mr. Woo's Arguments 64. Mr. Woo for the fifth defendant adopted the arguments of Mr. Yu, submitting that Chinese law was not part of the law of Hong Kong but only applies when English law would be unjust or oppressive. He said that, in the case of an intestacy, Chinese law and custom may apply but when there is a will, including a Chinese will, the will must be accepted. 65. He relied on the qualification introduced by the Full Court in Wong Yu-shi's(8) case of the observations by the president, Havilland de Sausmarez, J., in the Ho Tsz-tsun(1) case when he said:-
66. As already mentioned, in recounting the Solicitor General's argument, the Full Court in the later case emphasised that the Court in the earlier case was dealing with the applicability or otherwise of the Statute of Distributions and therefore exclusively with succession on intestacy; that in so far as it decided the Statute of Distributions was inapplicable the decision was unassailable but that if the language used was intended to suggest that the whole of the existing Chinese law and custom was maintained inviolable by section 5 of the Supreme Court Ordinance the Court in the later case was unable to agree. 67. Mr. Woo mentioned the case of Lau Leung Shi(9) and the case of Fu Chuen Sang v. Cheung Ching Tak(23) as showing that it was proper to obtain evidence of Chinese law and that all concerned in the later case, including both judge and eminent counsel, assumed the capacity under English law to make a will. 68. Mr. Wong intervened at this point to say that he was not challenging the formal validity of the will but as indicated in Dicey's Conflict of Laws(24) the essential validity should be determined by Ch'ing law. Mr. Woo countered by saying that his application of the Wong Yu Shi(8) case applied both to the essential and formal validity of the will. He went on to say that Chinese law and custom is not part of the common law of Hong Kong but is foreign law, unlike private international law which is part of the common law of Hong Kong through its acceptance as part of the common law of England. He maintained that the capacity of the testator in the present case is governed by private international law, where the rule is that capacity to dispose of movables is governed by the lex domicilii and that of immovables by the lex situs but, as the deceased, in the present case was domiciled in Hong Kong, therefore the law of Hong Kong governed both and excluded Chinese law and custom, which could only come in where there was an intestacy, whole or partial, as being closest to his personal law but would have to be proved by evidence as it was not part of the common law. 69. He stressed that, in cases of intestacy, the court had insisted on Chinese law and custom being proved; that the learned judge in Lui Yuk-ping's(2) case was confused when he spoke of accepting Chinese law and custom as part of the common law of Hong Kong and then suggested that judicial notice be taken of it, because this is a phrase which refers to facts not law. 70. Finally, with particular reference to Mr. Dick's affidavit, he said it would be contrary to public policy to deprive Chinese of testamentary power and the right to free disposition both in life and at death. Mr. Wong In Reply 71. Mr. Wong, in reply, said that the will in this case is essentially a Chinese will; that the deceased belonged to a very Chinese family, where, amongst other things, concubines were recognised, and his testamentary directions showed a desire that his successors should live together as one household in the Chinese fashion. He said that where the 1953 Report was in conflict with the expert evidence in the present case, the latter was to be preferred. He placed particular reliance on the endorsement by Huggins, J. in the Wong Kam Ying(3) case of the Hong Kong practice of receiving evidence in these matters. Conclusions Taking evidence of Chinese law. ----------------- 72. After this extensive argument, which I have stated at some length so as to indicate the boundaries of the ground explored before us, it will be convenient to deal first with the question of how Chinese law may be established. 73. According to the general principles of private international law, on the cession of Hong Kong to the British, the laws of China in force in Hong Kong at the time remained operative, except such portions as were contrary to the fundamental principles of English law, e.g. laws permitting torture, slavery etc., and subject to the right of the Crown to alter and change those laws: a right which was already recognized in the Treaty of Nanking 1842 which ultimately ceded the territory. 74. In the second proclamation dated the 2nd February, 1841, Captain Elliott purported to modify, to some extent, the application of Chinese law by declaring and proclaming that:
75. But he also proclaimed that natives of the Island of Hong Kong and all natives of China thereto resorting, shall be governed, pending Her Majesty's further pleasure, according to the laws and customs of China. Whatever may have been the effect of his statement about British law for others until the enactment of section 3 of the Supreme Court Ordinance (No.15 of 1944), the Chinese law in force at the time of cession continued to be the law of the land for the Chinese. Section 3 altered that position, but only partially, by introducing the law of England, which did not entirely replace Chinese law since, by the terms of the section, it was limited to those circumstances where its application would - to use the expression approved by the Privy Council - not cause injustice or oppression. Outside this area, the Chinese law in force at the time of cession, unless replaced or modified by special legislation, would continue to operate at least for the Chinese. We need not, in this case, concern ourselves with the question whether British law, would, by virtue of Captain Elliott's proclamation, apply to others without the limitation contained in section 3 etc. It would seem, therefore, that, contrary to what the Solicitor General has suggested, Chinese law was part of the law of the land. Consequently, courts could purport to find this law in authoritative textbooks as Sir Henry Gollan did in the Chak Chiu Hang(15) case but there has long been a practice in Hong Kong of taking evidence on such law, a practice endorsed in a number of judicial decisions, and although this practice may be regarded as a departure from the procedure normally followed in English courts, I think it must now be regarded as an established modification based on local circumstances though it should not be taken to supplant the court's right to inform itself by other means. 76. As the Solicitor General has shown, a similar practice in the Straits Settlements has not attracted adverse comment from the Privy Council, although one must recognize that the Chinese community in the Straits Settlements was an immigrant community and Chinese law would not necessarily have enjoyed the status there that properly belongs to it in Hong Kong. 77. In this connection, it may be desirable to mention also section 60 of the Probate Ordinance No.2 1897, which provides that whenever any person who is a native of China dies intestate leaving property in Hong Kong and it is necessary to obtain proof of the law of China for the purpose of regulating the administration of the property of the deceased person according to the law of his domicil, the court may receive in evidence a written statement of the law of China certified by a British Consul, obtained by him from an officer of the Chinese Government, and thereafter act upon such statement in such manner as it thinks fit. 78. In the case of Lau Leung Shi v. Lau Po Tsun(9), the Chief Justice said of this provision:-
79. From this, it would appear that the legislature regarded the law of China as law which had to be proved and the Chief Justice took the view that it should be interpreted as foreign law, but one must remember that the section is directed to cases where the law of China becomes applicable because the deceased is domiciled in China and that this could mean the law of China as at the date of his death, which might not necessarily be the same as the law of China which continued to operate within the boundaries of Hong Kong from the date of its cession. International Law 80. The argument that it would be contrary to international law to introduce testamentary capacity for the Chinese and that, consequently, the section of the Supreme Court Ordinance should not be given this interpretation seems to me ill-founded. The passages from O'Connell's International Law to which Mr. Dicks referred in his affidavit merely indicate that cession would not by itself alter the property rights of the inhabitants. It is not suggested that the new Sovereign power lacks the right and the capacity to alter or modify interests or potential interests in property by subsequent legislation. The decision in the Amodu Tijani(17) case carries the matter no further. English Law: when is it applicable? 81. Despite the different background, I think that the cases decided on appeal from Penang are helpful in determining what test was introduced for the application of English law by the terms of the Hong Kong legislation and that the test is whether the application of English law would cause injustice or oppression. That approach has been endorsed in the Wong Yu-shi(8) case in Hong Kong and I see no reason to depart from it. 82. We are not concerned in this case with the question whether injustice or oppression of an individual as distinct from a class or a group would be sufficient. No such argument has been advanced to us. The only suggestion made in the present case is that in testamentary matters English law is inapplicable to all Chinese residents domiciled in Hong Kong. Injustice! At what time? 83. But, in determining this question, are we to look at the circumstance prevailing in 1841 or 1843 or some later date? 84. In the Belilios(11) case, Fielding Clark, C.J. said the crucial date was 1843 but before examining his reasons it may be desirable to refer to certain rules of interpretation, which might appear to be relevant. 85. Under the heading "Contemporary Exposition" Craies on Statutes(13) puts the position thus:
86. The author traces the rule to Coke, in speaking of Magna Carta, but goes on to say:
87. Although the author makes no mention of the difference, these three paragraphs do not deal with the same thing. As indicated in the excerpt already quoted from Halsbury, construing a statute as if one was interpreting it at the time of enactment is something distinct from looking at how others have interpreted it at that time. It is the latter that comes under the heading contemporanea expositio. But since the earliest of the Hong Kong enactments is dated 1844 and the earliest Hong Kong case is 1843 reported we need not concern ourselves further with it. 88. Craies says:
and, after referring to Lord Watson's observation in Trustees of Clyde Navigation v. Laird(25) that, "such usage as has in this case been termed contemporanea expositio is of no value in construing a British statute of the year 1858", the author continued,
89. The Aerated Bread(26) case is an early example of the approach adopted in the Kingston Wharves(14) case where the point at issue was whether five heavy Euclid tractors and trailers fell within the word "carriage" used in a Wharfage Law enacted in 1895. The case illustrates how the Privy Council approached this problem. Reference was made to the statement of the Earl of Halsbury L.C., in Simpson v. Teignmouth and Shaldon Bridge Company(27), that "the word 'carriage' in a statute should be interpreted to mean 'what would, in the ordinary sense, be considered to be a carriage (by whatever specific name it might be called) in the contemplation of the legislature at the time the Act was passed.'" 90. The opinion of the Board continued: (page 196)
91. The language is perhaps not entirely felicitous since the Board's judgment would appear to disagree not so much with the proposition just quoted from the Court of Appeal as with the lower court's application of the proposition to the facts of the case before them. It would seem that it was because the Euclid tractors did not possess in 1959 the characteristics which were implied by the use of the word 'carriage' in 1895 that the court held the decision in the lower court to have been mistaken. 92. But the position is not quite so simple when one talks of circumstances. If the circumstances prevailing in 1843 or 1844 were such as to preclude the application of English law to certain classes or groups, would those classes or groups continue to be excepted from English law after the disappearance of the circumstances which originally precluded such application? 93. An unwelcome consequence of recognizing such change is the measure of uncertainty that it may create. Faced with a position where it could be said that, although earlier circumstances were such as to preclude the application of English law, those circumstances had altered and therefore English law might now be applicable, would not legal practitioners have great difficulty in advising their clients from day to day? 94. Yet if it had been thought that the relevant English Law was not applicable to the circumstances of those, probably mainly fishermen, who were resident in Hong Kong in 1843 because, for example, of unfamiliarity with the system, would this necessarily mean that sophisticated individuals of the same race now in the Colony, who have long been accustomed to the comparatively cosmopolitan atmosphere which has grown up here and the application of English principles of law and equity in so many matters, should be similarly precluded from the application of English Law? 95. Before considering that question, however, it may be desirable to note another principle which might seem to have some bearing on this issue. It is stated in Craies(13), under the heading "Comparison with earlier statutes in pari materia":-
96. The rule is referred to again, perhaps more succinctly(13a), in the following terms:-
The quotation is taken from a judgment of Griffiths, C.J. in Mackay v. Davies(28) and it is to be noted that the last sentence is an addition to the corresponding passage in D'Emden v. Pedder(29), which was endorsed by the Privy Council in 1907. 97. But the terms in which Griffiths, C.J. expressed the rule in D'Emden v. Pedder(29) are significant because of the role which he gave to practice in Webb v. Outrim(30) the Privy Council said:-
98. The general rules was expressed in similar terms though confined to words of "doubtful meaning" by Lord Buckmaster in Barras v. Aberdeen Steam Trawling and Fishing Co.(31) where he said, when dealing with a suggestion that the word "wreck" had been wrongly interpreted in an earlier case:-
99. There are, however, other passages in Craies(13) where reference is made, inter alia, to the observations of Denning L.J. in Royal Crown Derby Porcelain Co. v. Russell(32) that:
Reference is also made to the statement of Evershed M.R. in Wright v. Walford(33) that:-
100. The rule would not, however, appear to be the foundation of the conclusion by Fielding Clark, C.J. in the Belilios(11) case that the re-enactment of the section in 1873 did not permit the introduction of any English law which had not been introduced by the first enactment in 1844. The reason he advanced was that otherwise the legislature would be introducing an uncertain number of English provisions by this omnibus provisions instead of taking steps to enact them specifically. That view, although endorsed and accepted, in the Ho Tze Tsun(1) case, appears to be open to the criticism that the English law in question would not be applicable, under the omnibus provision, unless it was in fact applicable to the circumstances and inhabitants of the Colony in 1873 and if it was such as to fall within that description, when used in 1873, there would appear to be some difficulty in excluding it merely because similar provisions were not applicable to the different circumstances of different inhabitants in 1843. 101. But in order to appreciate the true significance of these cases, it is desirable to refer to the actual language used in them 102. The judgment of Fielding Clarke C.J., in the case of E.R. Belilios v. Ng Li Shi(11), was reported, before the institution of regular law reports in Hong Kong, in the newspaper 'Hong Kong Daily Press' of January 26, 1893. 103. The question in issue was whether the English law of 'ancient lights' was in force in Hong Kong. The Chief Justice started by saying that Hong Kong should be treated in the light of a settlement in a country previously uninhabited. Having then referred to the Treaty of Nanking (August 29, 1842) and to the Ordinances already mentioned, he said:-
104. Both these reasons have been criticised not only by the Solicitor General in this case but in the 1953 Report and in an article in the International and Comparative Law Quarterly, 1962,(33) by E.S. Haydon, which Huggins, J., in Wong Kam Ying's case(3) described as extremely valuable. However, as already mentioned, they received endorsement in the later case of Ho Tsz-tsun v. Ho Au-shi and Others(1), where the point in issue concerned the devolution of leasehold property upon a Chinese intestacy. The President, Havilland de Sausmarez, J., in the course of his learned judgment, said:-
105. He went on however to disagree with the statement of Fielding Clarke, C.J., that Hong Kong should be considered as unsettled at the time of cession and said:-
106. The approach adopted in Ho Tsz-tsun's(1) case was followed in the case of In the Estate of Chak Chiu-hang, Chan Chun-cho v. Chak Hok-ping(15), which dealt with the estate of a Chinese who died intestate and domiciled in Hong Kong. Sir Henry Gollan, C.J., having traced the cession of Hong Kong and the proclamations of Captain Elliot, said:-
107. The two last mentioned cases were considered in the more recent decision of Wong Yu-shi(8) where the judges, after referring to Ho Tsz-tsun's(1) case, said:-
108. The criticisms of the earlier decisions made in Mr. Haydon's article were directed more at the conclusion that the Chinese law, if and when it applied, must be treated as "ossified" in 1843 rather than to the question whether it should be applied in any event but he made, inter alia, the cogent point that if it was the intention of legislation enacted after the 5th day of April, 1843 to determine the applicability of English law by the circumstances existing at that date, it would have used the expression "except so far as the said laws were inapplicable" rather than "shall be inapplicable" or "are inapplicable". 109. Certainly the construction adopted by Fielding Clark, C.J. does not appear on the face of it to rest on any generally accepted principle of interpretation. He makes no reference to any established practice or judicial interpretation endorsed by the later legislation. 110. If one may return to the Kingston Wharves(14) case for guidance, it would appear to indicate that a proper interpretation of the Jamaican Statute should be directed to ascertaining what fell within the description "carriage" at the time of the enactment; what were the features and characteristics that were indicated by the word "carriage" in those days; so that a vehicle produced at a later date but having those features would continue to fall within ther terms of the Statute because of the "speaking" qualities of the enactment? 111. Similarly, if, in a case like this, the court had, for the purpose of determining testamentary capacity, construed the 1844 enactment or the 1873 enactment when it was first introduced, the court would presumably have analysed contemporary circumstances with a view to seeing whether they excluded the application of English law. If the circumstances justifying exclusion continued to exist or came into operation at a later date then they would, presumably, operate to exclude English law at the later date but would that mean that only circumstances identical with those prevailing at the date of the enactment could have this affect? The category of such circumstances could hardly be closed at that time. Other and different circumstances might arise at a later date but with the same effect or characteristics i.e. that of leading to injustice and oppression if English law were applied to them. It would seem that when such circumstances arise then section 5 must operate to prevent the application of English law. Similarly, it would seem that if the circumstances giving rise to hardship ceased to exist or their impact is altered so that they no longer give rise to injustice or oppression then the conditions prescribed by section 5 for the exclusion of English law would not operate and consequently, at this point, English law could become applicable, but amongst the factors to be weighed would be the danger that a departure from what had long been accepted might itself cause hardship. 112. It would be unrealistic to ignore entirely the passage of time and any alteration of circumstances so as to hold not only that the words in the 1873 enactment etc. have today the same meaning as the words in the earlier enactments, but that the circumstances which have to be considered are the same. Even if the words have the same meaning in the sense that they should be interpreted in the same way, that meaning and that interpretation would have to be applied to the circumstances and the position prevailing subsequently and one should not substitute for these the earlier circumstances and conditions. 113. If the section in question had said English law will not apply to anyone who has an income of less than $20,000 a year and, as a result, all the Chinese inhabitants then living in Hong Kong were excluded in 1843, it would hardly be suggested that every Chinese subsequently coming to the Colony should be excluded, irrespective of what his income might be, simply because he was Chinese. Would it be more reasonable to argue that if the circumstances of those Chinese who were then living in Hong Kong were such as to fall within the exception expressed in the 1844 Act, all Chinese, whatever their circumstances, subsequently residing in the Colony would be similarly excluded? 114. The legislation, unlike the passages in Commander Elliott's proclamation referring to Chinese inhabitants etc., is not framed on a racial basis. If it is the circumstances with a connotation wide enough to include other things besides race which created the exception at one stage, then presumably the word "circumstances" will carry a similar connotation when its effect at a later stage is being considered. As for the word "inhabitants", this would seem to indicate a territorial rather than a racial criterion and if a distinction is to be drawn between one inhabitant and another, it would, presumably, have to rest on those conditions and circumstances which significantly distinguish one from the other and distinguish them in such a way that the application of the same law to each would cause hardship. This could be race alone though it seems unlikely. More probable would be the inclusion of a racial factor, in the sense that the people of one race might follow customs and habits which make impractical or undesirable the application of English law whilst those of another race do not; yet in such a case it would be not merely the fact of race but the fact of race plus differing habits and customs that would lead to the distinction. This would not necessarily justify the preservation of such a distinction if and when habits and customs had become assimilated even though a difference in race alone might remain. 115. The earlier judgments were clearly influenced in their approach by the terms of Captain Elliott's proclamations and they may have tended to impose on the relevant sections of the substantive law an interpretation attuned to giving effect to these proclamations, without making adequate allowance either for the difference in language or for the temporary nature of those parts of the proclamations which were clearly directed, and in the circumstances of the cession inevitably directed, to making interim arrangements pending the more permanent provisions which were to come from the Queen. There seems to be a measure of cogency in the Solicitor General's arguments that, in so doing, they have reversed the approach adopted in the legislation and have virtually assumed that Chinese law and custom should be applied unless found unsuitable whereas the legislation clearly indicates that English law will prevail, unless there are circumstances affecting the inhabitants which make it inapplicable. 116. The tenor of the proclamations indicates that they contained merely temporary provisions. The position there contemplated of a dual system of law operating within the territory over so wide a field would have created great difficulties and it is not surprising that when the, presumably more carefully considered, enactments came to be made, these were cast in a form which embodied principles more widely accepted and likely to operate in a more satisfactory manner. 117. If the Legislature had contemplated making race the decisive factor, as Captain Elliott did in his proclamations, it could presumably have adopted a similar mode of expression: as indeed it did in its reference to criminal proceedings in the 1844 Ordinance. A similar approach has been adopted in other relevant legislation, notably the Chinese Wills Validation Ordinance 1856 and the Imperial Enactments Extension Ordinance 1857. 118. The terms of section 3 of the former have already been mentioned in connection with Mr. Wong's arguments. It refers both to a Chinese testator and to Chinese laws or usages. The difference in language only serves to emphasize the broader expression used in the Supreme Court Ordinance. The substantive terms of the 1856 Section, whilst appearing to contemplate the existence of testamentary capacity under Chinese law or usage, contrary to what Mr. Dicks has said in his affidavit, relieves such wills of the necessity of complying with the formalities of English law, as applied in the Colony. In itself this would not necessarily imply that such testators were regarded as having testamentary capacity in accordance with English law. The purpose of the Ordinance may merely have been to ensure that the testamentary capacity which the Legislature thought adhered to them under Chinese law should not be nullified by failure to comply with certain formalities. On the other hand, whilst it does not necessarily imply that a Chinese inhabitant of the Colony had no testamentary capacity here by virtue of English law, one might have expected that, if the intention was to validate the exercise of such capacity by an instrument in a form acceptable to Chinese but not to English law, somewhat different language would have been chosen. Either the phrase "so as to be effectual for the transmission of property according to such laws or usages" would have read "so that it would have been effectual" or else would have been omitted altogether. In the latter form the section would have been not only shorter but clearer. Unless the section in its present form was intended to validate only the exercise of the power, if any, enjoyed under Chinese law, it would seem that the phrase "so as to be effectual for the transmission of property according to such laws or usages" must be treated as surplusage; an unlikely contingency. But the fact that the legislature did not choose to validate in this way the purported exercise of any powers under English law, applicable in the Colony, would not in itself necessarily imply that no such power existed. 119. Mr. Wong's argument that the Ordinance affected only the form of wills is fully supported by the judgment of Sir Francis Piggot, C.J. in Lau Leong Shi v. Lau Po Tsun(35). I would accept it and, for the reasons just indicated, would also accept his further argument that the Ordinance contains nothing to indicate that, by enacting it, the Legislature either created or indicated belief in a general right of testamentary capacity under English law for Chinese domiciled in Hong Kong. 120. The Imperial Enactments Extension Ordinance, 1857, merely states that the English statute, which replaces, by the practice prevalent in the province of Canterbury, certain special customs applicable to the disposition of property on intestacy, and which was applied to the Colony by the Ordinance, would not "affect the customs or usages of Chinese people touching the distribution of the personal estate of Chinese persons dying intestate". This would seem to imply that at the time of the enactment the Legislature, when adopting this racial test, thought, whether as a result of judicial decisions or otherwise, that the personal property - an expression which, according to the puisne judge in Lau Leong Shi's(35) case, was confined to movables of a Chinese deceased would devolve according to Chinese law and custom. To that extent it is a "parliamentary interpretation" of the relevant provision in the Supreme Court Ordinance and introduces a racial criterion but the limits of this kind of interpretation would not, of course, extend to any modification or restriction of the clear terms of the Supreme Court Ordinance. These terms embodied no ethnic test and later decisions which have substituted that narrow test for the broader criterion of "circumstances" making the application of English law inappropriate seem open to criticism of the kind expressed by Lord Evershed in Wright v. Walford(33) above. Whether it was a closer regard for the terms of the legislation and for the circumstances justifying exclusion that led courts and lawyers in the Straits Settlements to adopt the more complicated pattern there prevailing, which permits English law to operate to some extent in a Chinese intestacy, may be open to question. 121. Undoubtedly, the approach of the Hong Kong cases dealing with intestacy has the merits of simplicity and greater certainty, whatever criticism might be addressed to its logical basis. It has now been far too long an established and generally recognized principle, when an intestacy occurs, to permit any alteration other than by legislation. 122. There are, however, no similar decisions and no such accepted tradition and practice withholding or restricting the power and right of Chinese to make wills under English law. On the contrary, anyone discharging the functions of a probate judge in Hong Kong can be only too well aware that testamentary capacity in accordance with English law has been assumed and acted upon by many Chinese members of the community for a long time past, just as individual rather than family ownership has been widely accepted amongst all sections of the community. There is in the 1953 report, which reflects an experienced and influential body of opinion, clear recognition of the widespread belief in the capacity of Chinese in the Colony to make wills according to English law. Whatever might have been the answer if the question had arisen in relation to the ancestral properties of those residing in Hong Kong at the time of cession, it could provide but little justification for withholding the English principles of testamentary capacity from those, be they of Chinese race or otherwise, who have come to Hong Kong in more recent years and acquired property in accordance with the modes and manners now prevalent amongst the diversified commercial community, engaged as it is in worldwide trade and fully adapted to an outlook and way of life very different from that which operated amongst the small rural communities then resident in the territory. 123. I cannot think that in the circumstances prevailing in 1960, and indeed for many years before, it could be seriously contended that to permit the deceased to exercise the testamentary capacity in regard to his property acquired in Hong Kong, which he would have under English law, could be classified as unjust or oppression. If, as seems highly likely, he acquired that property by means of a freedom of disposition which would only have been available under English law, this conclusion would be strongly reinforced; but even without that additional support, I would have little hisitation in holding that the application of English law to the essential validity of this will, in the sense of the testator's capacity to make a will, would not cause hardship or oppression. Consequently I think the testamentary capacity of the deceased is to be determined by referring to English law. 124. The further question as to whether the construction of this will or any particular disposition in it should be governed wholly or in part by Chinese law or custom has not been argued before us and, in the circumstances, the parties will have liberty to apply if they wish to do so.
Representation: Ignatius Wong (Peter C. Wong & Co. ) for Plaintiff. Patrick Yu (P. C. Woo & Co. ) for 1st, 2nd & 3rd Defendants, Patrick Woo (P. C. woo & Co. ) for 5th Defendant. Senath, Q.C., Solicitor General & Miss Collins, c.c. appeared as Amicus Curiae. Judgment handed down in Court (1) 10 H.K.L.R. 74, 79. (1) 10 H.K.L.R. 69. (2) 1962 H.K.L.R. 515 (3) 1967 H.K.L.R. 201 @ 211 (4) 1963 B.C. 533. at 562 (5) 1953, Probate, 220. (1) Ho H.K.L.R. 74, 79, 69. (6) 1930 A.C. 346 @ 353 (7) 1020 A.C. 369 @ 375 (8) 1957 H.K.L.R. 420, 443 (9) 6 H.K.L.R. 149 (10) Vol. 6 (1874-75) P.C. 381, 393 (6) 1930 A.C. 346 @ 355. (11) Hong Kong Daily Press, 26.1.1893. (1) 10 H.K.L.R. 69, 73, 79. (12) 3rd Ed., Vol. 36, para. 619. (13) 6th Ed., pp. 80, 81, 83 (14) 1959 A.C. 187 (8) (1957) H.K.L.R. 420 (15) 20 H.K.L.R. at p.6 (1) (1915) 10 H.K.L.R. 69 (3) 1967 H.K.L.R. 201 (8) 1957 H.K.L.R. 420 (13) 6th Ed. p.485 (16) 14 A.C. 286, 291. (17) (1921) 2 A.C. 399, 407 (18) 11th Ed. p.142 (19) Cas. T. Talb. 281 (20) (1905) 2 K.B. 391 (21) (1876) 2 Ex.D 63 @ p.85 (15a) 1925 H.K.L.R. 1 (15b) 1925 H.K.L.R. pp.5 and 12 (6) (1930) A.C. at p.355 (10) 6 L.R. P.C. 381, 396 (22) Report on Chinese Law and Custom p.9 para.18 and p.115 (1) (1915) H.K.L.R. 69 @ 76 (9) (1911) H.K.L.R. 149 (23) (1961) H.K.L.R. 219 (3)1967 H.K.L.R. 201, 221 (8)1957 H.K.L.R. 420, 442 (24)8th Ed. p.602 (9) 6 H.K.L.R. 149, 163. (15) 20 H.K.L.R. at p.21 (8) 1957 H.K.L.R. 420, 443 (13) 6th Ed. p.80 (14) 1959 A.C. p.187 (25) 8 App. Cas. 658, 673 (26) 1873 L.R. 8 Q.B. 355 (27) 1903 1 K.B. p.405, 413. (13) Craies on Statute Law,6th Ed., p.140 (13a)Craies on Statute Law,6th Ed., p.171 (28) 1904 1 Australia C.L.R. 483, 491 (29) 1904 1 C.L.R. 91, 110 (30) 1907 A.C. 81, at p.89 (31) 1933 A.C. 402, 411 (13) 6th Ed. pp. 167, 168 (32) 1949 2 K.B. 417, 429 (33) 1955 1 Q.B. 363 (C.A.) (1) 10 H.K.L.R. 74, (3) 1967 H.K.L.R. 201, @ 221 (32) Vol. 11 at p. 231 (15) 1925 H.K.L.R. 1 at p.5 (8) 1957 H.K.L.R. 420 at p.442 IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO.88/68 -----------------
Coram: Hogan, C.J., Rigby, S.P.J., & Mills-Owens, J. Date of Judgment: 27 March 1969 ----------------- JUDGMENT ----------------- Rigby, S.P.J.: Having had the advantage of reading the judgments of the other members of this Court, I do not consider that any useful purpose would be served by embarking upon a lengthy judgment of my own. 2. Section 7 of the relevant Ordinance - the Supreme Court Ordinance, 1873, - enacted that the laws of England in being as at the 5th of April, 1843, should be in force in the Colony of Hong Kong "except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants ......". English law is, therefore, to prevail unless "inapplicable to the local circumstances of the Colony or of its inhabitants ......". Like my brother judges, for the purpose of construing the meaning to be given to the words contained in the above exception, I would adopt the language used by Lord Russell of Killowen in delivering the judgment of the Privy Council in the case of Khoo Kooi Leong v. Khoo Chong Yeok(1). That was an appeal from the Supreme Court of Penang, being then part of the Straits Settlements. Lord Russell said: "The modifications of the law of England which obtain in the Colony (Penang) in the application of that law to the various alien races established there, arise from the necessity of preventing the injustice or oppression which would ensue if that law were applied to alien races unmodified". 3. What injustice or oppression can be said to arise from permitting a person of Chinese nationality, domiciled and resident in Hong Kong and of sound mind, to exercise his own free will and intention and make a will in Hong Kong according to English law? 4. I agree with the conclusions reached by the other members of this Court that in determining the testamentary capacity of the deceased the principles of English law apply subject, of course, to any modification made by any relevant law passed by the legislature of the Colony of Hong Kong. Representation: I. Wong (Peter C. Wong & Co.) for Plaintiff. P. Yu (P.C. Woo & Co.) for 1st, 2nd & 3rd Defendants. P. Woo (P.C. Woo & Co.) for 5th Defendant. Sneath, Q.C., S.G. & Miss Collins, C.C. appeared as Amicus Curiae. (1) (1930) A.C.346 at p.355. IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION MISCELLANEOUS PROCEEDINGS NO. 88 OF 1968 -----------------
----------------- Coram: Hogan, C.J., Rigby, S.P.J. and Mills-Owens, J. Date of Judgment: 27 March 1969 ----------------- JUDGMENT ----------------- Mills-Owens, J. : The preliminary point raised in these proceedings is whether the application to Hong Kong of the laws of England in the terms: 'except so far as the said laws are inapplicable to the local circumstances of the Colony or of its inhabitants' resulted in the preservation of Chinese law or custom in the matter of the essential validity of wills and testamentary writings of Chinese testators to whom the law of Hong Kong applies whether as the lex domicilii or the lex situs. By 'Chinese law or custom' is meant, as the courts in Hong Kong have always accepted, the laws or usages that prevailed in China during the Ch'ing dynasty, in the course of which it was that Hong Kong, in its then territorial limits, that is to say the Island of Hong Kong, was ceded to Great Britain by the Treaty of Nanking signed in 1842. If Chinese law or custom were to be held to have been so preserved then the next step in these proceedings would be to endeavour to prove, by expert evidence, that although under Chinese law or custom a type of 'will' could be made the testator had virtually no power to devise or bequeath his property otherwise than to particular persons and for particular interests, pre-determined by such law or custom. By Article III of the Treaty of Nanking it was provided that Hong Kong was 'to be governed by such laws and regulations as Her Majesty the Queen of Great Britain ...... shall see fit to direct'. An Ordinance of the Colony of 1844 applied the laws of England as at the 5th April, 1843 being the date on which the Colony obtained a local legislature, the Legislative Council. My Lord has traced the history of the subsequent legislation re-enacting the application of English laws and has stated the terms of the various enactments. It would be profitless, I think, to discuss the proclamations which preceded the original enactment of 1844. The proclamations were not expressed to have legislative effect and, in any event, were merely interim measures. I see no reason to disagree with the long-standing practice of receiving evidence of Chinese law or custom; and I would agree that the court may also inform itself from other sources such as textbooks and treatises, provided of course that any expert called is given the opportunity of comment thereon at the trail or hearing. (of. Bremer v. Freeman(1)). I would also take the following statement of the Privy Council in the case of Khoo Hooi Leong v. Khoo Chong Yeok(2) to be apposite in the case of Hong Kong:-
The suggestion is that the English doctrine of freedom of alienation by will would be unjust to or oppressive of the 'natural successors' (i.e. those entitled to succeed by virtue of Chinese law or custom. It has been argued that the re-enactment of the application of the laws of England (as at 1843) by the Ordinance 1873 means that the local circumstances of the Colony, or of its inhabitants, are to be ascertained as at the date of that Ordinance - the year 1873, instead of, as previously, the year 1844. I cannot see that this would lead to any conclusion on the question before us. As at the year 1844 (the date of the original Ordinance applying English law) the expression 'the inhabitants' might have included such merchants, and naval, military and civil officers as had arrived by then, but the important matter is that it could hardly have failed to have reference to the Chinese community, as a distinct community. In what way, then, could any change of circumstances between 1844 and 1873 affect the question before us? The legal history of Hong Kong in the 19th century is largely obscure. Formal law reporting commenced in 1905. We are unaware, even approximately, when Chinese persons domiciled or having immovable property in Hong Kong first commenced making wills according to Western ideas. No doubt many domiciled or doing business here soon came to acquire property other than 'ancestral' property devolving on them according to Chinese law or custom. At the time of cession, so it is said, the local Chinese population consisted of scattered groups mainly engaged in earning a livelihood as fisher-folk. Today Hong Kong might be described as a cosmopolitan city, but its Chinese population varies from one extreme to another - from the large body of persons who are entirely familiar with, and order their lives according to, Western culture and legal institutions, on the one hand, to the very much more numerous body of persons who remain traditionally Chinese, on the other; by and large, the latter body would have no knowledge of or interest in Western notions of testamentary disposition. No doubt the picture in 1873, too, was very different from what it was in 1844, but it is difficult to conceive that the Ordinance of 1873 effected or resulted in a change in the law relating to the testamentary powers of the Chinese community by reason of some change of circumstances of that community, occurring between 1844 and 1873. Any change of circumstances would have affected some members of the community but not others; it would have been impossible for any lawyer safely to advise any Chinese client on such a basis; advice given one day might be wrong the next; the validity of transactions based upon one view or the other could well be called into doubt, with the direst consequences. In my opinion the same applies today - that is to say, it would be placing an impossible burden on the profession to rule that the power of disposing of property by will depends on the individual circumstances of the intending Chinese testator. A change of 'the local circumstances of the Colony' is, perhaps, a different matter. Thus, for example, improved means of communication might well be a factor to be taken into account in deciding today whether some facet of English law is inapplicable; such a factor would be common to all inhabitants. There is considerable force in the Hong Kong decisions commencing with that of Sir Fielding Clarke C.J., in 1893, which I take to be, in part, to the effect that Hong Kong on being granted a legislature in 1843, and at the same time endowed with a body of law to set it on its path, was intended thenceforth itself to legislate for any change of circumstances which might occur in the future. Otherwise the greatest certainties might arise; certainly if one attempted to distinguish between one inhabitant and another. It is also arguable that when the recent Application of English Law Ordinance (Cap.88) came to be enacted (after the death of the present testator) in similar although not precisely the same terms as the Ordinances of 1844 and 1873, it impliedly gave legislative sanction to those decisions, in accordance with the rule of construction referred to by the Privy Council in Webb v. Outrim(3). But, as I have indicated, in my view in the context of the present proceedings the question whether we are concerned with the circumstances of 1844 or the circumstances of 1873 is academic. I would not wish to say anything to throw doubt upon the Hong Kong decisions that Chinese law or custom geverns succession on the intestacy of Chinese persons to whom or to whose property (movables or leaseholds) the law of Hong Kong applies. (Landed properties in Hong Kong are understood to be all Crown leasehold except in two special instances). In my opinion, these decisions were reached upon a sufficient basis, whatever view might be taken today if the matter were res integra. Judicial comity and the need for avoiding casting any doubt whatsoever on past transactions precludes further comment, in my view. The effect in practice is a different matter. In practice, whenever litigation occurs with respect to Chinese intestate estates the issues concern the ascertainment of the content of the Chinese law or custom of succession, in particular the existence or extent of the rights of the widow, of concubines, of the children of each, of adopted children, of the preferment of the eldest son, and so on. One cannot but be continually surprised at the diversity of views expressed on affidavit as to the provisions of Chinese law or custom in the matter of succession. It is an unfortunate situation. Estates are thrown into Chancery, as it were, costs are incurred, the litigants become exhausted, and invariably a settlement ensues. It is a matter which calls for remedial legislation, which, happily, I understand is now contemplated, as the only possible solution. Turning to the precise question before us, in my view it has long since been concluded by the interpretation placed by the court in Hong Kong upon the enactments applying English law and upon the Chinese Wills Validation Ordinance (No.1 of 1856). As it appears to me, that Ordinance, whilst concerned ex facie with the form of Chinese wills, has been taken - and legitimately taken - to be a legislative recognition of the view that Chinese persons to whom or to whose property the law of Hong Kong applies, had, by reason of the application of the laws of England, become endowed with unrestricted powers of making testamentary dispositions. The words of the Ordinance: 'so as to be effectual for the transmission of property according to such laws and usages' were certainly open to be read as meaning effectual in point of form - not as referring to testamentary power which was assumed; that is to say, 'effectual ...... according to such laws and usages' was taken, legitimately, to mean effectual according to the laws and usages affecting the making or acknowledgement and authentication of Chinese wills. The fact that the Ordinance extends to Chinese persons domiciled in China could well be explained as necessary to extend the provisions of the Ordinance to immovable property situate in Hong Kong. If it had been intended to provide that Chinese forms of will should be effectual, for the transmission of property, only within the limits of the testamentary powers of Chinese persons according to ancient laws or usages, i.e. in so far as such laws or usages permitted of the alienation of property by will, it would have been easy to say so and I cannot think that the legislature would have omitted to say so, in the clearest terms. In other words, the Ordinances applying English law were taken to have conferred testamentary powers according to English law, subject to the Wills Act 1837. Then in 1856 it was deemed necessary to modify the technicalities of the Wills Act, such as, for example, its requirement of formal attestation, in the case of Chinese testators. The Ordinance of that year clearly implies that Chinese persons had powers of disposing of property by will; secondly, there is no hint of any restriction on such powers; thirdly, the Ordinance in its preamble recognised that the Wills Act applied to Chinese Testators. The suggestion is that the words 'so as to be effectual etc.' meant subject to the restraint or within the limits imposed by Chinese laws or usages; restraints or limits which it is suggested were so extensive as virtually to render void any devise or bequest not in accordance with the scheme which would apply on intestacy under Chinese law or custom. This, as I see it, is to suggest that the application of English law had introduced changes in the form of 'wills' which were not wills according to English notions. Surely, either English law had introduced full testamentary power, along with its technicalities of form under the Act, or the view was taken that Chinese testators already had full powers of disposition by will as in English law. As I have endeavoured to indicate, the words in question in the Ordinance of 1856 could well have been construed, and quite properly construed, as meaning effectual in point of form, according to Chinese laws or usages. It would have been a highly artificial view to hold that the application of English law had resulted in a change of form but not of substance, in my opinion. If the provisions of Chinese laws or usages as to testamentary powers had been preserved, a fortiori would their provisions as to form have been preserved; yet the Ordinance of 1856 proceeded on a different view. It would surely have been a sterile exercise to make provision for the form of wills which, as it is suggested, had no testamentary effect. That Chinese testators dying domiciled or leaving immovable property in Hong Kong have full power of making testamentary dispositions is the understanding of the profession, and of the court in both its Probate and its Chancery jurisdiction. So far as I am aware this view has never previously been challenged. There is, in my opinion, a sufficient basis for that view, and it is supported by the practice of conveyancers. As I would understand the course of events, the view was taken many years ago that the application of the laws of England imported not only the provisions of the Wills Act, 1837 but also the English doctrine of freedom of alienation by will; the Ordinance of 1856 was taken to have reinforced that view. In the matter of intestacy, however, the courts found reason - sufficiently sound reason, one may say - to come to the conclusion that Chinese laws or usages were intended to operate. In the case of Lau Leung Shi v. Lau Po Tsun(4) no question was raised that the testamentary dispositions of the testator were void according to Chinese law or custom. Nor was any such question raised in the case of Ho Tsz Tsun v. Ho Au Shi(5). Nor was it raised in the case of In re Chan Quan Ee(6). And, per contra, in the case of In the Estate of Chak Chiu Hang(7), the Chief Justice, Sir Henry Gollan, when dealing with the Ordinance of 1856, said:-
Further, it is not as if the legislature was inattentive to the matter of Chinese law or custom; in the following year, 1857, the Imperial Enactments Extension Ordinance expressly preserved Chinese custom or usages in respect of intestacy. The Report of the Committee on Chinese law and custom says (Appendix I pp.115-6) that:-
The Report is entitled to considerable respect as being the result of a sustained study of the subject. In my opinion, it is far too late in the day to hold that the testamentary powers of Chinese testators to whom or to whose property Hong Kong law applies remain as they were or are supposed to have been under Chinese customs or usages. The position appears to me to have become sufficiently established. I bear in mind that we do not have the legislative capacity of validating past transactions if it were now to be held, contrary to long practice and common understanding, that all testamentary dispositions made by Chinese persons affected by the law of Hong Kong are invalid in so far as they depart from Chinese laws or usages. I would, further, take the view that the English doctrine of freedom of testamentary disposition would not have been regarded as inapplicable to Hong Kong or its inhabitants by reason of injustice or oppression; certainly not in 1844 or 1873. On the contrary, I think it would have been regarded as a sound, acceptable, development in the circumstances prevailing in Hong Kong. For the foregoing reasons, I would concur in holding that the testator had full testamentary power according to English law. Judgment handed down. Representation: Mr. I. Wong (Peter C. Wong & Co.) for Plaintiff. Mr. P. Yu (P.C. Woo & Co.) for 1st, 2nd & 3rd Defendants. Mr. P.Woo (P C. Woo & Co.) for 5th Defendant. Mr. Sneath , S.G. as Amicus Curiae. Judgment handed down in Court (1) (1857) 10 Moo. P.C. 306. (2) (1930) A.C. 346, 355. (3) (1907) A.C. 81, 89. (4) (1911) 6 H.K.L.R. 149 (5) (1915) 10 H.K.L.R.69. (6) (1913) 20 H.K.L.R.74 (7) (1924) 20 H.K.L.R. 1 at pp.6-7. |