De Wong Au Edith v. Kho Sin Tek Henry
Read the full judgment text of HCAP 12/2000 on BabelCite. This High Court CFI judgment was delivered on 17 March 2004.
1. Lucien Wong ("the Deceased" or "Lucien"), died on 14 April 1999 and left behind a widow ("Edith"), the plaintiff herein and a full-blood brother ("Oscar" Wong), now represented by his personal representative the 2nd defendant herein. On 4 October 1999, the plaintiff and the 1st defendant ("Henry" Kho), being respectively the widow and the allegedly adopted son under Chinese customary law, were granted the letters of administration by the Probate Registry in respect of the estate of the Deceas
Cited by 2 cases · Cites 1 case
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HCAP000012A/2000 HCAP12/2000 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO.12 OF 2000 ----------------------------
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(By Original Action) ----------------------------
(By Counterclaim) ---------------------------- Coram: Hon Yam J in Court Dates of Hearing: 1 - 27 September, 3, 6 and 8 October 2003 Date of Handing Down Judgment: 17 March 2004 ----------------------- J U D G M E N T ----------------------- 1.Lucien Wong ("the Deceased" or "Lucien"), died on 14 April 1999 and left behind a widow ("Edith"), the plaintiff herein and a full-blood brother ("Oscar" Wong), now represented by his personal representative the 2nd defendant herein. On 4 October 1999, the plaintiff and the 1st defendant ("Henry" Kho), being respectively the widow and the allegedly adopted son under Chinese customary law, were granted the letters of administration by the Probate Registry in respect of the estate of the Deceased. 2.On 19 May 2000, the plaintiff instituted this probate action against the 1st defendant on the ground that the 1st defendant was actually not the adopted son of the Deceased. This is in direct contradiction to her Oath of Administrator sworn previously on 26 August 1999. Thereafter, the Deceased's younger brother Oscar applied to be joined as a party and became the 2nd defendant. He also counterclaimed against the plaintiff and the 1st defendant on the same ground that the 1st defendant was not the adopted son of the Deceased and therefore the 1st defendant should not be entitled to any part of the estate under Chinese customary law pursuant to section 2(2) of the Intestate Estate Ordinance, Cap.73 ("IEO") or to be the administrator thereof. In short, the case of the widow is the same as the case of the brother. 3.Since the issue involves Chinese customary law, the background of this traditional Chinese family is relevant and important to the decision of whether or not the 1st defendant was adopted by the Deceased and the plaintiff. I shall set out the background of this Wongs family as reported in a Hakka magazine published in 1971 hereinbelow, concerning the Hakka people in Hong Kong, amongst whom is this eminent Wongs family. THE WONGS FAMILY 4.「客家人士在香港事業上的發展 1
5.It can been seen from the aforesaid magazine excerpt that the Deceased's father, Wong Tat Wing (黃達榮) ("Mr Wong Sr") and the Deceased were wealthy businessmen in the construction and real property business in Hong Kong at the beginning of the last century. Lucien Wong (黃宜先) (30 April 1921 - 14 April 1999), the Deceased, was born in the Dutch colony of Surinam in South America. In or about 1922, when Lucien was one year old, Mr Wong Sr came back to Hong Kong from Surinam with his wife and children. 6.The family tree of Mr Wong Sr, as prepared by Mr Horace Wong, counsel for the plaintiff herein with my additions in red according to the evidence before the Court, is annexed hereto in order to show the relationship between various persons in this big family (see the spreadsheet in the Annexure) . Mr Wong Sr had a first wife who bore a daughter and a son for him. The elder daughter, Wilhelmina Wong (黃玉嬌 "Mina") and the eldest son Alexander William Wong (黃金陵 "Alex") were born in July 1910 and October 1911 respectively, of the first wife in Surinam. Shortly before the death of Mr Wong Sr's first wife in or about 1920 or 1921, he took a second wife by the name of Yeung Cheung Kiu (楊長嬌) also known as Yeung Lin or Yeung Ha Lin (楊蓮/楊霞蓮) ("Madam Yeung"). Madam Yeung was taken into the Wongs family by her marriage to Mr Wong Sr on 12 August 1919 when she was 27 years of age. She had two sons under this marriage and they were the Deceased, Lucien, born on 30 April 1921 in Surinam, and his younger brother Oscar Lai Yin Wong (黃禮賢), born on 4 October 1929 in Hong Kong. As aforementioned, Mr Wong Sr and his whole family moved back to Hong Kong in or about 1922 and since then he was profitably involved in the construction and real estate business here. 7.Mina and Alex were elder sister and brother born of the first wife whereas Lucien and Oscar were brothers born of the second wife, Madam Yeung. Therefore Lucien and Oscar were full-blood brothers of each other and they were half-blood siblings of Mina and Alex. 8.Madam Yeung died during the Japanese occupation on 20 July 1944 and Mr Wong Sr died on 22 April 1950 in Hong Kong. Mina married Dr Kho Han Po (許漢波 "Han Po") who was a medical doctor graduated from the Hong Kong University Medical School in 1933. Thereafter he worked in AIA instead of setting up his own medical practice. They had three daughters, Katherine, Phyllis, Elena, and two sons, Joseph and Henry. The youngest son Henry Kho Sin Tek (許承德) was born on 30 March 1951. He is the 1st defendant in this action. Henry is a solicitor by profession and he appears in person in the present action. 9.Mina and Han Po's elder son, Joseph Kho Sin Min ("Ah Min") was born in 1943 and he died in a tragic accident in 1964. Ah Min was a brilliant student and a Queen's scout in his days. In the summer of 1964, Ah Min was away for scout camping in Shatin. On the day of the unfortunate accident, Mina spoke to Ah Min on the telephone to tell him the good news that he had been admitted into the medical school of the University of Hong Kong. The Khos never heard from Ah Min again. Later that day, they received news that Ah Min had been drowned in a flash flood at a small stream near the campsite. The event traumatised the Khos family and it took Han Po and Mina years to recover from the loss of Ah Min, if at all. After Ah Min's death, Henry was the only son in the Khos family and it was apparent that Mina and Han Po showed a more outward display of affection and love towards Henry (according to Paul Wong's evidence, Paul is the son of Alex). 10.Alex married an English woman by the name of Lilian Moreton in or about 1935, whilst Alex was studying for a law degree in England. They had five children, namely June, Paul Alexander ("Paul"), Stephen David ("Stephen"), Gabrielle and Lucien ("Lucien Jr"). Gabrielle Wong has two daughters, Tracey Cajilig ("Tracey") and Debora Cajilig. Paul and Stephen, then aged nine and seven respectively, came back to Hong Kong from England in 1948 to stay with Mr Wong Sr whereas Alex and Lilian did not return to Hong Kong until 1950. Apparently, Mr Wong Sr did not like Alex for not finishing his law degree, marrying a foreigner and bearing all his children in England. Since then, Alex did not gain any favour or acceptance from Mr Wong Sr. In this case, Paul and Tracey gave oral evidence for the 2nd defendant Oscar. Alex and Stephen each filed an affidavit, which were admitted into evidence by the Court. 11.Lucien married Edith in 1957 but they had no children. Oscar had not married at all throughout his life but whilst he was studying law in England he had apparently, as he was later told, had a daughter, Lisa Poncet ("Lisa"). Lisa is the 2nd defendant herein, as representative of Oscar's estate. 12.Lucien had worked in Mr Wong Sr's construction company when he was young. Oscar studied in England and was admitted to the Hong Kong Bar as a barrister in 1966. Apparently he only practised for one or two years and had ceased his barrister practice ever since. Thereafter, Oscar was mainly involved in the real estate business, managing properties which he inherited from Mr Wong Sr. From the evidence before me, Oscar and Lucien had a legal dispute over Mr Wong Sr's estate in the late 1960s, which resulted in Oscar getting back some properties from Lucien. Ever since that early day in the late 1960s, Oscar had not been on good terms with Lucien up to the day Lucien died. THE ISSUE 13.The plaintiff, Edith claimed that Henry Kho was not the adopted son of Lucien or in any event, not the adopted son according to the Chinese customary law and therefore Henry should not be entitled to any part of the estate of Lucien under section 2(2) of IEO. Oscar, the 2nd defendant herein, as represented by Lisa, counterclaimed against Edith and Henry on the same ground that Henry was not the adopted son and therefore Oscar would be entitled to part of Lucien's estate as a full-blood brother. Henry by his defence claimed that he was the adopted son for the purpose of IEO. 14.Accordingly the main issue in this case is whether Henry was adopted by Lucien and Edith during their lifetime in or about 1968 and if so, whether such an adoption is an adoption recognised by the law under section 2(2)(c) of the IEO. Section 2(2) of the IEO provides as follows :
CREDIBILITY OF WITNESSES 15.I shall make my findings of facts in the next section, according to the evidence presented before me. I must first assess the credibility of each witness in order to ascertain whose evidence can be accepted as being true and reliable, upon which findings of fact can appropriately be based. 16.The three parties have agreed to present their respective cases in the following order : the plaintiff, the 2nd defendant and the 1st defendant. The plaintiff and the 2nd defendant were to present their cases before the 1st defendant as they had similar cases and were contesting the case of Henry. Thus this is basically a case between Edith and Oscar on one camp and Henry on the other. I shall follow this order in making my conclusion on the credibility of their respective witnesses. Edith 17.The first witness is of course the plaintiff, Edith. I find her an unreliable witness. At times she was also mistaken and/or confused. 18.Edith has put forward, on oath on both occasions, two directly contradictory and mutually exclusive accounts of the circumstances relating to the adoption of Henry by Lucien and her. In the first account, she confirmed the adoption of Henry in an Oath by Administrator sworn by her on 26 August 1999 and in a letter handwritten by her to the Probate Registry dated 31 August 1999. However, at the trial, Edith gave evidence to refute her previous account and asserted that there was no such adoption of Henry at all. Her current account is that she was actually an accomplice to a conspiracy, in putting forward a false claim that Henry was an adopted son of Lucien and her, in order to defraud Oscar of his lawful entitlement to part of Lucien's estate. 19.Given that both accounts have been put forward by Edith and sworn to be true by her on oath and that the veracity of these two versions are mutually exclusive, I have warned myself the danger of relying on her evidence unless her present version is credible. I do not however find her evidence reliable at all. 20.Further, Edith was very emotive and at times ferocious when she was cross-examined by Henry, inter alia, in respect of her efforts in going through the documents and effects of her late husband in the joint application with Henry for the administratorship. She also proved to be wrong in this respect. She swore on the aforesaid Oath by Administrator that she had made a diligent search among the Deceased's documents and effects, which is pre-requisite in applications for administratorship. However her own evidence on cross-examination showed that she had not made such a diligent search. She defiantly stated that she could not be expected to go through all of the ten thousand books left by the Deceased, cover to cover, and then reluctantly admitted that she in fact had not done so. Oscar 21.The 2nd defendant, Oscar, gave two witness statements. Unfortunately, after his application to be joined as a party and his counterclaim, he died on 12 March 2002, before the commencement of the trial of this action. In fact, he collapsed before his own leading counsel in the midst of a conference. His two witness statements could not be tested by cross-examination. In any case, for reasons stated hereinbelow, in terms of credibility, I prefer the evidence of the defendant's witness, Gailey Li, to that of Oscar. 22.The 2nd defendant had also lined up a number of witnesses to give evidence to the effect that Henry was never an adopted son of Lucien. All of these witnesses, being close family relatives from Alex and Lilian's family branch, had lived next door to the Kho's family in No.14-16 Tai Po Road ("Tai Po Road Premises") for many years until the mid-1970s. Yet, their evidence is that none of them had ever heard about the adoption of Henry during their residency at Tai Po Road Premises nor at any time thereafter until the action herein was brought. Tracey 23.The 2nd defendant's first witness is Ms Tracey Cajilig. Since she was born on 1 January 1964, she had lived next door to the Kho's family at the Tai Po Road Premises for a period of about 12 years. She is a reliable and credible witness except that she might have been too young to account or appreciate the significance of the events happening around her in the 1960s to 1970s years. For example, in 1968 when the adoption ceremony was alleged to have taken place, she was only four years of age and she only resided in Tai Po Road Premises during her childhood and early teens until she was twelve. Paul 24.The 2nd defendant's second witness is Paul, the eldest son of Alex. Amongst the witnesses, I find Paul a reliable and credible witness. Paul came back from England to Hong Kong with his younger brother Stephen in 1948, when the two boys were aged eleven and nine, respectively. Paul resided in Tai Po Road Premises from 1948 to 1970 for a period of 22 years. He eventually became a police inspector with the Royal Hong Kong Police Force and was trained to be shrewd and observant. He had clear recollection of certain events in the Wongs and Khos family, such as the marriage of Lucien and Edith in 1957 and the tragic death of Mina's elder son 'Ah Min' in 1964. In particular, he recounted a telling incident in about 1950, when Mr Wong Sr was ill on his death-bed. He recalled with detail that his aunt Mina was banging on the door of Mr Wong Sr's bedroom whilst Oscar was attending to him. Mina appeared to Paul to be quite upset because she believed Oscar was persuading the old man to change his will in favour of Oscar. However, Paul did not exaggerate his evidence nor did he infer from his evidence that Oscar was so persuading Mr Wong Sr to change the will as against the interest of his half-brother Alex so that Alex would be cut out of the inheritance. 25.Furthermore, Paul has no personal interest in the outcome of this action and is not entitled to any share in Lucien's estate in either case, i.e. whether Henry or Oscar were to inherit the other half of the estate. Paul knew full well that Uncle Lucien and Uncle Oscar were on very bad terms because of their previous dispute regarding Mr Wong Sr's estate. In fact, Paul very much appreciated the extent of Uncle Oscar and Uncle Lucien's animosity for each other. He gave evidence to the effect that Uncle Lucien would rather leave his estate to his own father Alex knowing full well that Alex would most probably gamble away all the money in six months, than to leave any legacy to Oscar. Therefore, the reason why Paul decided to give evidence in support of Oscar's case was not because he believes Uncle Oscar deserved a fair share to Uncle Lucien's estate nor that such distribution would be in the wish of Lucien. Rather, Paul decided to give evidence out of a strong belief that Henry's adoption was false. He gave evidence that he has never heard of Henry being the adopted son of Lucien and he was extremely upset, angry and disgusted that such a version had put forward. He felt that something must be done about it and decided to come back to Hong Kong on his own expense, to give evidence for Uncle Oscar's case, even when he admitted he was not that close to Uncle Oscar. Henry 26.Henry had at one time considered not giving any evidence himself but would only call his witnesses. However, he eventually gave evidence after he was advised by the solicitor/counsel that had at one time acted for him. I find Henry to be an incredible witness, who is also confused and mistaken at times due to his poor recollection of events. For example, Henry's account of a "kow-tow" ceremony performed in 1978 by he and his then wife Gailey contradicts the account given by Gailey, his own witness. In his final submissions, Henry admitted that his memory of details is "sketchy". 27.I also find Henry to be dishonest in that he deliberately concealed his certain doings, in particular vis-a-vis Oscar and his solicitors. There is evidence that Henry and Oscar came to some sort of informal agreement that Henry would, through his firm of solicitors, help Uncle Oscar in legal matters relating to Lucien's estate. However, it is not exactly clear whether and when Oscar found out about Henry and Edith's joint application for letters of administration, with Henry's status as Lucien's adopted son. In any case, Henry also handled the joint application for the letters of administration through his firm Messrs C.C. Lee & Co. In respect of Edith and his joint application, Henry opened two separate internal files assigned with different reference codes and used one of those files exclusively for information regarding his application and status as the adopted son of the Deceased. When Henry was cross-examined on why he had opened this separate internal file, he was extremely evasive in his answers. Obviously, if Oscar was to make any enquiries as to the progress of the application for the administratorship, he could be referred to one of the files, without even knowing that another file existed, i.e. the one regarding Henry's application and status as Lucien's adopted son. Thus, the use of such a separate file would be convenient to prevent Oscar from accessing to that file and gaining knowledge of Henry's own application as co-administrator of the estate or at least to delay Oscar's investigation until the grant of letters of administration was made. To this end, Henry succeeded. 28.Furthermore, his answers to Oscar's solicitor's letters were extremely misleading and intentionally so, albeit he did not admit the same and was very evasive upon cross-examination. On 26 August 1999 after Oscar enquired from him as to the application concerning Lucien's estate, Henry, through his firm Messrs C.C. Lee & Co., asked Oscar to provide his personal particulars and proof of relationship with Lucien. This gave Oscar and his solicitors a clear but misguided impression that Oscar would be a beneficiary to Lucien's estate. Thereafter, Messrs C.C. Lee & Co. did not respond to any of Oscar's solicitors' letters of enquiry on the progress of the application for six months until March 2000. As a last resort, Oscar's solicitors, Messrs Edmund Cheung & Co. threatened to report Messrs C.C. Lee & Co. to the Law Society for the latter's professional misconduct in not answering those letters of enquiry and gave the latter a seven-day reply period. It was eventually on the last day of the reply period that Henry wrote back, stating that Messrs C.C. Lee & Co. had ceased to represent Edith and therefore had no instructions to reply to their letters of enquiry. When Messrs Edmond Cheung & Co. further inquired about the name of the new solicitors acting for Edith, Henry continued to assert that he had no specific instructions to disclose that information and in any case, was not under any obligation to answer Oscar's inquiries, as Oscar was not a client of Messrs C.C. Lee & Co. 29.I must say that Henry's conduct was unhelpful, unprofessional and in fact deliberate. Such conduct kept Oscar and his solicitors in the dark about the progress of the application for the letters of administration for some time and prevented Oscar from taking objection to Edith and Henry's joint application for administratorship. Indeed, it was only in May 2000 that Oscar learned of the grant of letters of administration having been made on 4 October 1999 to Edith and Henry as joint administrators. By then, in May 2000, Edith had already instituted the present proceedings and Oscar thereafter applied to be joined as an additional party hereto. In the end I find Henry to be an incredible and unreliable witness. Yu Pui Man 30.The other witness called by Henry is Ms Yu Pui Man ("Ms Yu"). She is in the profession of dealing with shares and securities. She was a girlfriend of Henry after Henry and Gailey divorced. They had considered getting married but eventually called off the same. Ms Yu gave evidence in a straightforward manner and she did not try to make up things albeit she had the chance to do so. For example, she admitted that she could not remember certain details of the conversation over a dinner with Uncle Lucien and Henry regarding the registration of Uncle Lucien's shares in Hong Kong Land in Singapore. She also admitted that her knowledge about Edith consisted entirely of hearsay "to her by Henry and Lucien" and therefore she might have been wrong in swearing on an Affirmation of Identity at the time of the application for letters of administration that she was "well-acquainted" with Edith when she had only had one brief, few-minute encounter with Edith in 1982. 31.In the end, I find that Ms Yu was trying to give an accurate account of what exactly had happened. However, at the same time, she admitted that in hindsight, she understands that there are things told to her by Henry which may not be the complete truth (不全面). For example, Henry had not told Ms Yu that Lucien was only his half-blood uncle nor has Ms Yu ever heard of Alex as an uncle of Henry. Thus Ms Yu is not a strong witness in support of Henry's case. I also find that her recollection of events is occasionally sketchy due to the long lapse of time. Gailey 32.Notwithstanding my finding that Henry is incredible, mistaken and at times dishonest, I accept his witness Madam Gailey Li, also his ex-wife, as a reliable and credible witness. The detail of her evidence will be considered later, but I shall now set out some of the reasons why I consider her evidence to be credible and reliable. 33.Gailey and Henry met in 1973 when they were university students in Canada. Gailey's parents objected to Gailey dating Henry and wanted their daughter back in Hong Kong. As Gailey insisted on seeing Henry against the wishes of her parents and continued to stay in Canada, she decided not to accept any financial support from her parents at all. Instead, she chose to support herself by working as a teaching assistant for three classes at the University of Saskatchewan whilst studying for a pharmacy degree at the university and being pregnant at the same time, in order to support Henry, herself and later on the baby. Henry also took part-time jobs at that time to support this family of three. The couple then formally married on 8 June 1977, after their son ("S1") was born. 34.Afterwards Gailey discovered Henry had another woman. She decided to divorce Henry in 1984. Mina and Lucien offered $3 million to Gailey if she would stay married. Gailey immediately turned down the offer and said her decision was final. 35.After the divorce, Gailey had never claimed any alimony from Henry nor requested his financial support. Gailey became a private investor and supported herself and their sons throughout the years. On her own means, Gailey sent her children abroad for education in Canada and Switzerland. On these facts, I find Gailey is not a person that is moved to compromise her principles by greed or financial gain. The circumstances of her financial independence from her family and from Henry show that she lives by her pride and principle. She stated several times in her evidence that she is no longer a member of the Khos or Wongs family and has no interest in Lucien's estate. She has given evidence that she continued to attend to the Khos or Wongs family gatherings and the annual tomb-sweeping activity in Ching Ming Festival out of her respect for the elders and to preserve the vertical or familial relationship between herself, S1, S2 and the elders despite the severed horizontal or marital relationship between herself and Henry. I do not find it convincing that given Gailey's principles, she would deliberately lie or make up evidence to gain some direct or indirect benefit from Lucien's estate. I find that the circumstances of Gailey and Henry's relationship through the years show Gailey to be an honest and independent character who lives by her principles. 36.Gailey and Henry eventually divorced in 1984. The couple have two children, S1 and S2. Both during and after their marriage, Gailey has been in contact with the Kho and Wong family. Since 1978, when Gailey was first introduced to the Khos and Wongs as Henry's wife, up to Lucien's death in 1999, she has been present at various family gatherings. She was also present at some important events after Lucien's death in 1999, at which both Edith and Oscar now allege the false claim of Henry's adoption and a conspiracy to defraud was conceived and consolidated. Gailey gave evidence with regards to these events in her witness statement and in court. 37.Gailey filed her witness statement on 15 January 2001, before Edith, Oscar or Henry filed their respective statements. Gailey's statement was incomplete in the sense that she omitted certain material details, of which she later recounted in the witness box. Examples would be her negligible mention of Oscar and their various interactions and a complete omission of how she sold Wharf shares as the representative of Henry's administrator's account for the benefit of the estate. Counsel for the plaintiff and the 2nd defendant submit that such incompleteness is indicative of Gailey being dishonest in concealing certain facts on the one hand and deceitful in making up false facts on the other. Although incompleteness in her witness statement may tend to give an impression that she is dishonest, I do not find such is the case. 38.First, Gailey was the first person to submit her witness statement and she had not had the opportunity of reading Edith and Oscar's case against her. Gailey gave evidence in court that at the time she drafted her statement, she was hoping the matter would settle amicably between the parties and she did not appreciate that it was necessary or even relevant to put in some facts or make allegations against others. It was only later on when Gailey first read Edith and Oscar's witness statements that she learned of all the insinuations and direct allegations made against her. Gailey was genuinely upset that she had been alleged to have participated in a conspiracy. Of course, Gailey could have submitted a supplemental witness statement then, but Henry had not requested her to do so. Henry was actually keeping at arm's length with Gailey after Edith instituted these proceedings. Further Henry is an inert person and he would not do anything until and unless he is compelled to do and most of the time at the very last minute. For example, in 1978 he only told his parents that he had already got married and had a son after he had arrived at the Kai Tak Airport. Thus, I find that there was no collusion at all to make up anything in reply to Edith and Oscar's allegations. At the time of drafting of her witness statement, she might not have appreciated the severity of the allegations made against Henry and her. When she came to so appreciate, she then tried to recall more comprehensively and in detail her interaction with Edith and Oscar throughout the years. She did not depart from her witness statement but rather substantiated it with details when giving evidence in court. 39.Secondly, I find Gailey did not make up the evidence as she went along in the witness box. When cross-examined by counsel for the plaintiff and the 2nd defendant, she is able to recount events with substantial details and reasonable explanations. For example, notwithstanding the fact that she is Henry's witness, she gave an account of the 1978 "kow-tow" ceremony in contradiction to his account. A clever and dishonest witness would readily appreciate that such inconsistency would weaken Henry's case generally, but I find that Gailey was only concerned to give an accurate description of the ceremony more than to fortify Henry's credibility or his case. She had no agenda at all. 40.On Edith's allegation that the circumstances of the sales of Wharf shares were very suspicious since Gailey managed to sell Henry's lot at a higher price than that HSBC Security obtained for Edith's lot, Gailey was able to give reasonable explanations for how she executed the sales of the shares at good price for the benefit of the estate and she indeed backed up her evidence by her own market analysis and records of actual market movements. I shall consider this incident in detail later. 41.Thirdly, Gailey did not exaggerate the evidence relating to the issue of adoption. She restricted her evidence to what she observed and heard during and after the events that happened in the summer of 1978, namely the "kow-tow" ceremony and the dinner for the meeting of the relatives of the two families (an occasion called huei chun 會親). She gave evidence that Henry's adoption was mentioned on these two occasions and she admitted that during the entire period from 1978 to 1999, she has only heard about Henry being Lucien's adopted son two to three times. With respect to the adoption ceremony in 1968, Gailey did not seek to give any evidence in support of Henry's case as she was neither present nor yet acquainted with the Khos at that time. 42.In conclusion, the most impressive witnesses in respect of their credibility are Paul, Tracey and Gailey. The question now before me is how to reconcile this trio's evidence, if they are reconcilable at all. There are also statements or affidavits of Oscar, Alex, Stephen, Wong Kam and Eleanor Wong Tjang admitted as evidence to the effect that they had never heard of Henry's adoption by Lucien. Their evidence is in line with that of Paul and Tracey. I would state my findings of facts hereinbelow in light of the evidence of all those credible witnesses who gave oral evidence before me. FINDINGS OF FACTS The alleged 1968 adoption ceremony 43.In an Oath by Administrator sworn on 26 August 1999, Edith confirmed that Henry was the adopted son of Lucien and her. In a letter dated 31 August 1999 submitted to the Probate Registry ("Edith's Letter"), Edith described an adoption ceremony in 1968. According to Edith's Letter, a simple adoption ceremony was held at a Hakka restaurant where Henry poured tea and "kow-towed" to Lucien and Edith and accepted them as his adoptive parents. In the present proceedings, Edith retracted from this version of facts and claimed that no such adoption ceremony ever took place. 44.Edith alleges that Henry and Gailey suggested to her the idea of putting forward a false claim that Henry was Lucien's adopted son in July 1999. Furthermore, in August 1999, Gailey suggested that they should make up an adoption ceremony in 1968 because Oscar and Henry's sisters were all abroad at that time and it would be easy to explain their absence from such a ceremony. (In fact Oscar's passport showed that he was in Hong Kong in 1968. If Gailey was part of the conspiracy and if she had obtained information accurately from Oscar or his record, she would not have suggested this to Edith.) Edith's evidence is that she went along with such a suggestion after being assured by Henry that everything would be done in accordance with the law and that it would cause no trouble. It is her case that she reposed a lot of trust and confidence in Henry at that time and Henry had not explained the serious consequences of putting forward such a false claim. She was also motivated by the belief that Lucien would not die in peace if he had known Oscar would benefit from his estate. As such, Edith now puts forward a serious allegation against Henry as well as a self-incriminating allegation against herself that they were involved in a conspiracy to defraud Oscar from his entitlement to Lucien's estate. However Edith at the same time is also trying to minimise her own culpability. How could she believe Henry's words that making a false claim could at the same time be done in accordance with the law? She is after all not an uneducated and illiterate woman but a certified Court Interpreter and must understand the importance of making sworn statement under oath. 45.Further she has been proved to be unreliable and I cannot accept, by her evidence alone, that no such adoption ceremony in 1968 took place, since she has given two inconsistent and contrary versions. Given that both accounts were given under oath, it is difficult to sift out truth from falsehood. I can only accept that one of the accounts must be false but I cannot rely on Edith as a credible witness to establish which account is true with or without exaggeration or mistake. Even though Edith's latter account is given against her own interest and puts her at the risk of perjury, that per se cannot form a valid basis for accepting her evidence in court now as being true. Further, there are certain inconsistencies in her evidence, which, in my view, were partly due to her old age and lapse of memory and partly due to her bias and resistance against Henry. In total, it is difficult to accept her evidence completely. 46.Henry's case is that there was an adoption ceremony in 1968, in line with the account given by Edith in her aforesaid Letter to the Probate Registry. The adoption ceremony was held in a Hakka Restaurant in Kowloon City, where Henry knelt down before Lucien and Edith, handed each one of them a cup of tea, "kow-towed" to them and addressed them as adoptive father and mother. He received a packet of "lai-see" from Lucien and Edith. Henry's account was couched in the same broad and imprecise manner as that in Edith's Letter and there were no photographs or any other independent evidence to support the existence of such an adoption ceremony. 47.As aforesaid, I found Henry to be an incredible and dishonest witness. He also proved to be unreliable and mistaken in parts of his evidence. He described a later and thus more recent "kow-tow" ceremony in 1978, which was performed by Gailey and himself as the bride and groom to his parents and Lucien when the couple first returned to Hong Kong. He said Gailey and he knelt down before his parents and each one of them handed up one cup of tea to the parent directly in front of him and her. According to his evidence, each parent only received one cup of tea from either the bride or the groom and not from both of them, according to the general traditional practice. Henry could not even remember which parent, whether Mina or Han Po, sat in front of him. In his final submissions, he further admitted that his memory of details is "sketchy". 48.Gailey's account of the same event in 1978 is different, much more detailed and reasonable. She said Henry and her took their turn and offered tea to Mina, Han Po and Lucien. The three of them sat in one line. It was very clear from Gailey's account that each elder had received a cup of tea from both the bride and the groom. I must digress and point out here that in the "kow-tow" ceremony in 1978, there was a startling absence of Edith. Lucien was called to attend at short notice in the afternoon. Edith was apparently working. No one had suggested to wait for her attendance in the evening after work. Everyone had taken for granted of her absence. I have an impression that they thought it was none of her business. Mina had not been in good terms with Edith from day one. Edith firmly said in her oral evidence that whenever she visited the Wongs or Khos, she was always with her husband and never alone. It fortified my belief that there might well be some secret adoption arrangement between Mina and Lucien only but not Edith. 49.Given Henry's doubtful and ambiguous account of an event that took place in 1978, I cannot rely on his evidence in respect of the alleged adoption ceremony in 1968, which allegedly happened 10 years earlier and at a time when he was at the young age of about 16. As such, Henry has not proved that there was an adoption ceremony in 1968, just as Edith has not been able to prove, by her evidence alone, that there was no such adoption ceremony. 50.There are also other suspicious circumstances surrounding this alleged adoption ceremony. The persons alleged to have attended this ceremony were Henry, Edith, Lucien, Mina, Han Po, the family maid Ah Chun, a family friend Wong Bing Kwun and Edith's father. Other than Edith and Henry, all the alleged attendants to this adoption ceremony are dead by now and there is not one single living witness to verify the existence of such a ceremony. 51.Incidentally, all those in the Kho or Wong family, who were still living at the time Edith and Henry asserted this adoption ceremony in the administrator's application, were either absent or unaware of such an adoption ceremony. For example, Alex and Oscar were not even invited to this important adoption ceremony concerning the Kho and the Wong's families, although they were both in Hong Kong at that time and they were immediate family members to Mina and Lucien. At that time Alex was even living next door to Mina. Furthermore, coincidentally all of Henry's siblings happened to be living overseas in 1968. On the other hand, given the tragic loss of their dear son Ah Min four years earlier, would Mina and Han Po allow Lucien to adopt Henry in a formal Chinese custom adoption, which would mean giving away their only other son? 52.Finally, Paul and Tracey gave evidence that they had never heard of the existence of such a ceremony. Paul and Tracey are juniors in the family rank and customarily, it is important for them to be present in order to witness this important adoption ceremony because by this event, the Kho/Wong family's inheritance pattern would be disturbed or changed, namely that their possible entitlement to Lucien's estate would be extinguished. On the other hand, the family's laundry maid, Ah Chun, was present even though to bring family servants out to family or social events outside the home was definitely against the prevailing practice during that era. Paul gave evidence that the Khos never brought out any servants to dinner except the one and only instance of Katherine's wedding, when the maid responsible for taking care of the Khos children, Ah Ho, was brought along to serve as a lady-in-waiting (dai-kum 大妗). 53.Given that I find Henry and Edith's evidence unreliable and there is no collaborative evidence from any of the other attendants, I cannot accept that on a balance of probability, there was such an adoption ceremony in or about 1968. Furthermore, I also take into account the absence of many immediately-affected family members from such an important ceremony. Mr Edward Chan, SC, counsel for Oscar has rightly pointed out that according to Chinese customs all three kinds of ceremony are conducted openly, namely : wedding, funeral and adoption. In short, there is no reliable and credible evidence that there was such an adoption ceremony in 1968 or at all, whereby Henry was adopted by Lucien and Edith (according to the then prevailing Chinese customary practice of the Hakka people). 54.In the end the only credible evidence now before the Court accordingly to Gailey's evidence points only to some sort of arrangement between Mina and Lucien, the extent of which cannot be proven. However, Gailey's evidence is not enough to establish what exactly is this kind of relationship. In the 1978 "kow-tow" ceremony, she cannot recall the actual words used by Mina, whether she said Henry was "過繼" or "過契" to Lucien. She said she could not differentiate between the two and that to her, the two sound the same. She admitted that the term "i-tze (義子)" was never mentioned by anybody. 55.There were only three to four times within 20 odd years she heard of such relationship in the Kho/Wong family, and she was only told by Mina and Ah Chun. She did not hear anything about Henry being the adopted son directly from Lucien. At the most, at the 會親 dinner, Lucien was smiling and nodding his head after Mina said to Gailey's mother, Madam Li Sr that Henry was 過繼/過契 to Lucien, in the context where Mina was seeking to reassure Madam Li Sr that Gailey would be well taken care of in the future. 56.Even according to Ms Yu, her evidence can only point to some loose relationship of契仔/契爺. At the Hoi Sing dinner in February 1998, she was told by Lucien that Henry is his "契仔" in the context where Lucien was asking her, as Henry's friend, to assist him regarding his Hong Kong Land shares in Singapore. Lucien was pleading this "契仔/契爺" relationship in the form of a help-seeker, hoping to throw in more weight to his plea. Ms Yu admitted Lucien sounded quite desperate and it was after she said she might not be able to help him that Lucien went on to call Henry his 契仔, pat him on the shoulder and said something to the effect of "please help, I'm sure you can help." 57.With regards to the Wharf shares, Ms Yu missed a large part of the conversation as she excused herself to the toilet and only heard Lucien say something to the effect that Henry should not sell the Wharf shares and the dividends of the shares would be enough to provide for Auntie Edith and Henry. This is by no means conclusive of Henry's entitlement to inherit Lucien's estate nor does it constitute evidence enough to establish an adoption relationship 58.Furthermore, even Ms Yu admitted that she has heard of the term "哎?契仔" (meaning a loosely adopted son) and acknowledged that契仔 could be a loose term to describe some kind of social relationship that did not require the undergoing of any formal ceremony of "kow-tow" and tea pouring. At the same dinner, Ms Yu had asked Lucien when had this 契仔/契爺 relationship been established, to which Lucien replied when Henry was 15, 16. Ms Yu then did not inquire further as to what kind of 契仔/契爺 relationship it is or whether any ceremony took place. 59.Finally even if there was such an adoption ceremony as put forward by Henry (which is against my primary finding of facts), such a ceremony is not sufficient to satisfy the requirement under section 2(2) of the IEO and bring Henry within the meaning of issue within the IEO. 60.The facts put forward by Henry (according to his evidence and Edith's Oath of Administrator and handwritten letter) were :
61.The question is whether the aforesaid allegations put forward by Henry would be sufficient to establish an adoption under Chinese customary law. CHINESE CUSTOMARY LAW - EXPERT REPORTS Professor Chang Chak Yan 62.Assuming for a moment what Henry said about the adoption ceremony in 1968 were true, the proper relationship of adoptive father and son could still not be established. According to the plaintiff's expert Professor Chang, for one to come within the meaning of adopted son under Chinese law and custom, there must be formal adoption. Informal adoption of an "i-tze" is excluded. An "i-tze" is not an adopted son and there is no true father and son relationship in informal adoption. So even if Henry was adopted as an "i-tze", he is still not an adopted son within the meaning of Chinese law or custom. 63.For formal adoption adoption of an heir - usually the adopting parents would choose a male of the same kindred or "tsung" (族), first starting from sons of his full-blood brothers and then from sons of half-blood brothers. The purpose of choosing from paternal descendants is to ensure that the adopted son would be of the same ancestor and same surname. Hence ancestral connection through maternal relationship (Lucien and Henry's case) would be regarded as of a different surname and "tsung" and thus not acceptable. Only in exceptional circumstances where nobody of the same surname is available to be adopted that the adopting family may look for a male with a different surname and in that case, upon adoption, the adopted son would have to change his surname after his adopting father and be given a new name. 64.Adoption of a son is a matter that requires public knowledge and recognition and this is particularly so in the Hakka community. Generally, the adoption ceremony must be made public, inviting all relatives and close friends of Hakka origin, with formal invitation cards issued to guests, stating the purpose of ceremony and the name of the boy to be adopted. It is almost an inflexible rule that the adopted son must be of Hakka origin, i.e. born of a Hakka father (Henry however is born of a Fukienese father). 65.For someone of Lucien's wealth and prominence in the Hakka community, it would normally be expected that a large banquet with many guests be held and a formal ceremony should be performed (rather than a simple ceremony with very few guests). Public recognition and performance of duties of a son by the adopted son is very important because he would effectively become the male legal successor of his adoptive parents, changing any previous inheritance pattern within his natural or adoptive family. The circumstances and ceremony described by Henry is an alarming departure from Hakka custom and Chinese customary law if Henry were formally adopted as an heir. 66.For informal adoption - adoption of an "i-tze"/courtesy son - it is totally different from formal adoption and gives rise to different rights and obligations in Chinese customary law. An "i-tze"/courtesy son is also known as契仔in Cantonese, such relationship is to strengthen sentimental feelings only and there is no true father-son relationship, contrary to the case of formal adoption of an heir. The "i-tze" continues to be the son of his natural parents. 67.The mode of address to the adoptive parents is "乾爸" or "契爺". There is no requirement that the "i-tze" should be of the same surname or change his surname and leave his natural parents' home. 68.An "i-tze" is not a member of the adopting family and is not within same agnatic group, and he is not the legal successor or heir and has no legal right of succession. "If there is a strong sentimental attachment between the adopting father and the "i-tze", the latter may be given some property upon the division of family property, but the amount of property to be given to the "i-tze" is a matter of discretion of the head and elders of the family." Professor Anthony Dicks 69.Professor Dicks (Henry's own expert) is not committed to informal adoption and he opined that everything is based on the finding of facts of the Court. He examines the Qing Penal Code (Da Qing Lu Li 大清律例) ("the Code") on informal adoption. According to the 3rd Li of the Code, protection is given to "i-tze" against their possible expulsion by the legal successor and they are accorded a right to some share of the property of the deceased adoptive parents. Under the 4th Li, an "i-tze" might return to their original families, in contrast to formally adopted successors who may not so return, but in doing so, the "i-tze" could not take any share of property given to them by their adoptive families with them. The Code does not appear to require that an "i-tze" should leave his natural family in the physical or legal sense and if he did so, he was also free to return to his natural family. 70.Professor Dicks quoted Jamieson's Chinese Family and Commercial Law that an "i-tze" could be and were usually adopted from among relations on the female side of the family. There is a broad spectrum of "i-tze" adoptions ranging from adoption in the fullest possible sense where the child becomes part of the adoptive family and loses all contact with his original family to much looser forms of relationship. The essential validity of the various types of informal adoption rest on the agreement made between the parties, that is the natural parents and the adoptive parents of the adopted son. Professor Dicks states that the particular nature of the arrangements made in each case accordingly must be established by evidence of the intention of the parties rather than as a matter of customary law and it is therefore for the Court to find as a fact whether Henry went through the ceremony. Professor Dicks' opinion is that the general law is to be decided on the basis of submissions by counsel rather than matters of expert opinion. 71.According to Jamieson, under the Qing Penal Code, Li 3 of Section 78, informal adoption of an "i-tze" carries with it none of the legal incidents of true adoption, that is it does not place the "i-tze" on the footing of a natural-born son, nor give him any of the rights arising out of the position of being a natural-born son. The right of an "i-tze" is usually exercised in favour of relations by consanguinity on the female side, i.e. through a mother, sister or daughter. Such relations are not within the agnatic group and are incapable of being legally adopted as family successor. The tie is not binding and may be dissolved by will, but if it continues up to the death of the adoptive parent, the child, if a male, will become entitled to some share on division of the family property. How much is not stated, the amount is presumably left to the adoptive parent or the elders of the family to be settled proportionately to the regard entertained towards the recipient. On principle, however, it would probably be less than half, except in cases where there is no heir of the agnatic kindred. SECTION 2(2) OF THE IEO 72.Mr Chan, counsel for the 2nd defendant submitted that the legislative intent of section 2(2) of the IEO could be found in the amending ordinance, Ordinance No.57 of 1995, in accordance with the recommendation made in the Law Reform Commission Report on Law of Wills, Intestate Succession and Provision for Deceased Persons' Families and Dependants. Historically, the position before the IEO came into force in 1973 was that the right to share in the estate of a Chinese person on intestacy was governed by Chinese customary law. But the old section 2(2) of the IEO enacted in 1973 had no mention of adoption under Chinese customary law. The old section 2(2) did not recognize the right of persons adopted under Chinese customary law as the children of the deceased person, hence adopted children under Chinese customary law did not have a right to share in the estate of their adoptive parents on intestacy, even though the adoption under Chinese customary law was recognized by the Adoption Ordinance (Cap.290). Thus arose the anomaly that the rights of children adopted under Chinese customary law were abrogated by the enactment of the old section 2(2) of the IEO in 1973. 73.The amendment in 1995 was brought about to remedy this anomaly and to reinstate the rights of children adopted under Chinese customary law. As such was the intent behind the current section 2(2) of the IEO, Mr Chan submitted that the purpose of the legislative amendment was only to fill in such a lacuna and not to over-fill the lacuna so as to create new rights to children who would not have been formerly recognized as children adopted under Chinese law and custom before 1973, such as those who could only point to relationship loosely called adoption with the deceased. 74.Accordingly Henry falls into the case of children who would not have been formerly recognized as children adopted under Chinese law and custom before 1973 and therefore could not now be within the meaning of section 2(2) of the IEO. There must be some kind of adoption which, although short of formal adoption of an heir (zi-zi 祠子), at least gives the right to succeed or inherit the deceased's estate. Even if it was accepted that the adoption ceremony took place as alleged by Henry, it would still not necessarily mean that Henry is entitled to any share in the estate under Chinese law and custom. 75.According to Professor Dicks' expert report, the particular nature of the arrangements made in each case accordingly must be established by evidence of the intention of the parties rather than as a matter of customary law. There is a lack of evidence of any intention that Henry was to take after his estate as an adopted son and the following factors are relevant :
76.Even if Henry was the "i-tze" of Lucien, the Code does not entitle an "i-tze" to an absolute right to share in the estate of his adoptive father. Under the 3rd Li of Article 78, there needs to be natural affection and mutual assistance and support (相依?命) before such adopted son is entitled to some share in the division of the property. There is no evidence of Henry and Lucien's mutual assistance and support to each other as in the case of Yau Tin Sung v. Yau Wan Loi [1983] 2 HKC 647. The evidence is to the contrary, that Henry and Lucien had separate lives (各行各路), apart from coming together on some social or family occasions. 77.Under the 4th Li of Article 79, if the adopted son of a different surname chooses to return to his natural family, he may not take with him any share of property from the adoptive family. This seems to be in line with section 2(2) of the IEO that an adopted child cannot be treated as a child of both his natural and adoptive parents and should not be benefit from both sets of estate. 78.Section 2(2) clearly restricts an adopted child "to be treated as the child of the adopter, and not as the child of any other person". This means Henry could only be regarded as the child of Lucien and Edith if he was so adopted, and not Mina and Han Po's child at the same time. Yet there is evidence that Henry has always been regarded as Mina and Han Po's son. He has all along maintained his surname Kho. He has never left the Khos household and has substantially inherited from Mina's estate as her son. As aforesaid, since the tragic death of Henry's elder brother Ah Min in 1964, it is also questionable whether Mina and Han Po would allow Lucien to adopt Henry as his son accordingly to the out-and-out adoption under Chinese customary law which would mean Henry would not be their son anymore. All in all Henry cannot now also claim to be Lucien's adopted son and take benefit of his estate in that capacity. EVENTS AFTER LUCIEN'S DEATH 79.After the death of Lucien on 14 April 1999, Henry was instructed by Edith to handle the probate application in respect of Lucien's estate. I would not like to go into the detail of all the happenings thereafter involving Edith, Henry, Gailey and Oscar. I would just like to point out certain salient factual matters relevant to this case according to the credible evidence of Gailey and at the same time rejecting Edith and Henry's account in so far as their evidence contradicted Gailey's evidence. 80.On or about 18 June 1999, there was a lounge picnic in the Dragon Boat Festival. Gailey said categorically that she did not hear Henry say to Oscar anything to the effect that he was the adopted son of Lucien. On the same occasion Gailey heard Oscar said that he would be instructing solicitors to represent him on the probate matters of Lucien's estate. She understood that Oscar was claiming an interest in Lucien's estate. This is indicative of the fact that Henry's so-called adoption by Lucien was not known to Oscar at all and Henry was keeping his plan from Oscar. 81.Thereafter, in or about late June 1999, in a telephone conversation between Gailey and Edith, it was Edith who brought up the subject and asked Gailey whether she knew about the adoption relationship (過契). Gailey told Edith about what Mina said in the 1978 "kow-tow" and tea pouring ceremony to Lucien. She also told Edith about receiving "lai-sees" from Lucien and she was still keeping the same in her safe deposit box. (This was eventually produced in Court. In fact Gailey became very emotional when she opened the packet for the first time after all these years and discovered that the new bank notes inside were in lucky serial numbers specially selected by Lucien for her.) 82.Thereafter Gailey had several meetings with Edith and Henry as follows :
83.On 29 August 1999, at the Kowloon Chai Owners' Club, the three were dealing with the requisitions of the Probate Registry. Gailey's impression was that Henry and Edith were trying to reconstruct the 1968 adoption ceremony rather than to construct or invent such an event. They were trying hard to remember details such as at which restaurant the ceremony took place and also who were present there and then. Gailey did not contribute to that discussion as she was not present in the 1968 adoption ceremony. 84.In the end I do not accept there was a conspiracy among the three of them, as suggested by Edith now, that they were inventing an adoption ceremony in 1968. However I also find that, as I have said hereinbefore, Henry was sketchy in his memory and he is not reliable as a witness. The evidence from Henry alone could not be sufficient to establish that there was such a ceremony in 1968 as described by him. Now this is further contradicted by Edith. However Edith herself was also unreliable and at times confused. 85.The three of them had a conference call on 30 August 1999 discussing Edith's character reference letter to be signed by a priest. On the next day, Henry went to see Edith and gave her the letter with revisions. They visited the priest on 1 September 1999, to have the letter signed by him. 86.There was a meeting on 25 September 1999, the day after the Mid-Autumn Festival. The three of them had dinner together and they discussed the court fees and estate duty. Edith said that she had no money to pay the court fees of $600,000. Gailey agreed to lend them this money and to be repaid after they have got the inheritance from the estate. 87.The estate duty was about $5 million which has to be paid on or before 14 October, to avoid a double interest charge. Gailey advised them as an investor to sell the Wharf shares in the estate in order to obtain the money required for the estate duty. Gailey recommended HSBC Security to be the brokerage firm to deal with the matter because she was a regular customer of HSBC and could arrange for a "T-3 treatment" which would allow them to obtain the money on the third day after the shares were sold, as opposed to using other brokerages which would generally require 10 days to obtain clearance from CCASS (Central Clearing and Settlement System). 88.A few days later, on 27 September 1999, Gailey met Henry and Edith at Henry's firm, Messrs C.C. Lee & Co., and gave Henry a cashier order of $595,000 for the court fees. Thereafter they had lunch together, during which the subject of Lucien's previous relationship with a Spanish woman was brought up. Gailey believed that Edith's attitude towards her changed since that day because Gailey did not agree with the way Edith was going to deal with the matter. I would not like to go into detail of this incident. 89.The grant of administration was issued to Henry and Edith as co-administrators on 4 October 1999. Four days later, on 8 October 1999, Henry, Edith and Gailey met together in front of Furama Hotel and went to HSBC to open an administrator's account. This is the definite date at which Edith fell out with Henry and also Gailey. Apparently Edith discovered that the grant was made not only to her alone but to Henry also as a co-administrator. Edith thought the application for administratorship was her application alone with Henry merely as a beneficiary. In this respect, Henry might not have disclosed fully the situation to Edith that the application was a joint application for administratorship. However when Gailey was cross-examined by Edith's counsel, it was put to Gailey that Edith phoned her up on 9 September 1999 and asked her why it was stated in the Oath of Administrator, which Edith has read, that Henry and Edith were applying for the grant of letters of administration together. This question shows that Edith was not completely in the dark about the application for co-administratorship until she saw the grant on 8 October 1999. Gailey said in answer that she did not recall this phone call and she only understood the application of Henry and Edith in the capacity of beneficiaries, as the adopted son and the widow respectively. 90.When Edith, Henry and Gailey arrived at HSBC Security to open an administrators' account, Edith shouted at Henry upon seeing the original grant. Edith apparently said that she wanted everything in her account only and she would give Henry a statement every month and she would distribute [the property to Henry] in her own time and at her own wish. Edith was banging on the table and according to Gailey, Edith was very bitter and spiteful. 91.Gailey tried to calm Edith down by telling her to consider her priorities. Gailey reminded Edith that the first thing was to obtain money from the estate to repay the loan for court fee to Gailey and then to pay the estate duty amounting to nearly $5 million by 14 October in order to avoid a double interest charge. A Mr Raymond Chow, the account executive of HSBC Security, was also present together with his secretary in the HSBC Security conference room with Henry, Gailey and Edith. Mr Chow explained to Edith that since the grant was made to Edith and Henry as co-administrators, they could either open one joint account held in two names or two separate accounts held in separate names. Edith could not open just one account in her own name. 92.Eventually an agreement was reached between Edith and Henry for two separate accounts held in separate names to be opened. It was agreed that the accounts would be opened in order to enable Henry and Edith to carry out a one-off transaction, that is, to raise sufficient money by selling Wharf shares to meet the amount of court fees and estate duty. At that time Gailey was not aware of Henry holding an irrevocable power of attorney from Edith, which Henry had secured from Edith previously. Henry has never explained the necessity of having a power of attorney from Edith throughout his cross-examination. Henry only explained that his intention was to use the power of attorney to enable him to transfer money into his own account, in the grave circumstances that Edith was seriously immobile or dead. Henry appears not to be aware of the fact that in the circumstances of insanity or death, a power of attorney is generally revoked by law. 93.Mr Chow opened an administrator's account for Henry and Edith each and it was agreed that Henry and Edith would each through their separate accounts sell an equal lot of Wharf shares, which would together raise sufficient money to pay for the court fee and the outstanding estate duty. Henry then appointed Gailey as his account representative to deal with the shares in his administrator account. Henry did so because he believed that Gailey, as a private investor for years, had the expertise to execute the sale of shares at a better price than the brokers and because she had an accessible on-line trading system. Gailey did not know whether Edith had any knowledge of her being appointed as Henry's account representative. Edith was present in the conference room when Gailey signed the requisite documents for appointment. At that time Edith did not say anything. Gailey had agreed to help Henry out because she did not think the sale of Wharf shares would be time-costing on her part and in any case, the sale was only a one-shot event, so as to raise enough money to pay for the estate duty and to repay her the loan for the court fees. 94.Gailey eventually assisted Henry to sell his lot of the Wharf shares at more favourable prices than Edith sold her lot of shares. Edith questioned this and put forward Gailey's involvement as Henry's account representative as extremely suspicious. When cross-examined by Edith's counsel, Gailey explained that she was never appointed as Edith's account representative in selling Edith's lot of Wharf shares because Edith had simply never asked her to be her representative. As such, Edith could not blame anyone but herself for obtaining a less favourable sales price with her lot of the Wharf shares. It was even put to Gailey by Edith's counsel why Gailey had not sold or offered to sell Edith's shares for her. Gailey answered rhetorically how was it possible for her to sell Edith's shares if Edith has never appointed her as her account's representative? At that time Gailey did not offer to help Edith to sell her shares because Edith was already very angry with Henry and also Gailey. When Edith shouted at Henry at HSBC about the grant to co-administrators, Gailey felt that Edith showed her hostility to Henry and Gailey, even in the presence of strangers like Mr Chow. Gailey did not want Edith to have the impression that she was meddling with the estate. Gailey decided that after her loan is repaid she would retreat totally from helping Henry and Edith about the estate matters because the situation was becoming ridiculous. Gailey had always been doing things for them as favours but she felt that they had twisted her good intentions around into insinuations and accusations against her. Before they departed from HSBC, Mr Chow explained clearly to Edith that to execute the sales for her lot of the Wharf shares, she would have to give him the instruction to sell on 11 October and at the latest 12 October, in order to raise the amount to pay the estate duty and the court fees by 14 October. 95.The estate needed to sell a total of 300,000 Wharf shares to meet the total amount for court fees and the $5.6 million estate duty. In effect, 150,000 shares should be sold from Henry's account and likewise the same amount from Edith's account. Unknown to Gailey, Henry had actually deposited 1,139,000 Wharf shares into his own administrator's account on 11 October. Henry could not explain why he deposited so many shares into his own account except that by 11 October, after the grant was made, he was effectively one of the two beneficiaries entitled to nearly half of this big estate. 96.In the morning of 11 October, Gailey checked the Wharf share price to be at around $23 and gave Raymond instructions by phone to sell Henry's shares by lots and about 102,000 shares were sold. This was, of course, done for Henry's shares only. 97.On 12 October, Gailey checked the price of Wharf shares and saw that it was going down so she instructed Raymond to sell the shares in the morning at the best price. Around 50,000 shares were sold in the morning. As the price was already going down in the morning, Gailey predicted that the share price would continue to go further down in the afternoon. 98.Some time during the afternoon, Raymond informed Gailey that Edith had not yet given him any orders to sell. Raymond was very anxious because to meet the deadline on 14 October, the shares must be sold by the end of the 12 October trading day. When Gailey contacted Henry about this, he informed Gailey that Edith had called him earlier, saying that she might be going to Tuen Mun and might not be able to execute the sale order herself. Henry informed Gailey that he had enough shares left in his account to raise the total amount of court fees and estate duty. Therefore, before the end of the 12 October trading day, Gailey sold an additional lot of shares from Henry's account to cover the amount that is supposed to be made up by Edith's sale of her lot of shares. Gailey said she sold this additional lot so that in case Edith did not execute any orders, Henry would still have enough money to pay the estate duty before the 14 October deadline. The price was a bit lower at $22.55 per share. At the end, Gailey sold in total about 283,000 shares from Henry's account to raise the total amount for estate duty and the court fees. 99.Gailey explained that at that time Wharf shares were commonly known among investors as "blue lantern" (藍燈籠) meaning the lantern traditionally hung outside Chinese households in mourning. It connoted that whenever Wharf shares were put on the market, the market would plunge. Gailey produced a chart of the movement of Wharf shares for the second half year of 1999 which supported her point. It can be shown that Gailey in fact had caught the peak of the market for Wharf shares on 11 October by selling several lots of shares at the average price of a little bit less than $23. The price of Wharf shares the next day was already about $22.475. Eventually the price of the shares dropped down to nearly $20 at the end of the month and $17 to $18 at the end of the year. Gailey pointed out that for 300,000 shares, the difference of $3 per share would mean a loss of $900,000 which is nearly $1 million. The share price actually fell by $3 a few days later. In the end Gailey, with her expertise and effort, had saved the estate from a huge loss. 100.After the market closed on 12 October, Mr Chow called Gailey saying that Edith had finally called to execute the sale of her lot of the shares when it was very near to closing time. As a result, Mr Chow was forced to sell Edith's shares before closing and consequently at a lower price. Edith kept on asking Mr Chow how much Henry's shares were sold at but as Edith and Henry held separate accounts, Mr Chow was duty-bound not to tell her about Henry's account and prices. There and then Edith accused Mr Chow of selling Henry's shares at a better price than hers. Mr Chow complained to Gailey that he "was scolded like hell by Edith". Thereafter Mr Chow indeed had a lot of trouble from Edith as she accused him of receiving some "benefits (甜頭)" from Henry. Mr Chow also got complaints from his boss for bringing in such a customer for the bank who made a number of unfounded allegations against the bank whilst the bank was trying very hard to help her. 101.I find Edith's accusations against Mr Chow and Gailey entirely unfounded. She had not instructed Gailey to execute the orders for her and she understood that she must therefore execute the orders to sell herself. She was there and then suspicious of Henry and Gailey and she did not give any instructions until the last moment on 12 October 1999. In fact she was somewhere else in Tuen Mun and could not be found. She is responsible for managing the sale of her own lot of shares but then she turned around and accused Gailey and in turn Mr Chow for helping Henry only and ignoring her interest. I think it is very unfair to Gailey and Mr Chow. 102.I set out the incidents of the dealings between Edith and HSBC Security in order to indicate that by October 1999 upon Edith's discovering that the grant was to her and Henry as co-administrators, she became very mad. She was suspicious of Henry and in the end also made accusations against Gailey. 103.Eventually on 14 October 1999, Henry, with some difficulty, secured Edith's agreement to sign the cheque to pay the estate duty. By the end of October, Henry again with some difficulty after heated arguments with Edith, eventually repaid Gailey for the loan she made for the court fees. 104.In the next year when Edith started this probate action against Henry, she has changed her stance and alleged the aforesaid conspiracy she had with Henry and Gailey. The property in Henry's hand was frozen in time and Henry had not sold the remaining Wharf shares deposited in his account. Nothing was done by Henry in respect of the irrevocable power of attorney granted by Edith to him either. During the trial, by consent of the two parties, the deed of power of attorney was revoked by the Court and it was declared to be null and void for all intents and purposes. CONCLUSION 105.I do not find a case of conspiracy as put forward by Edith as I find Edith herself was unreliable and at times confused and had misunderstood some of the events. 106.However I do not find Henry a reliable witness either and I could not accept his evidence that there was such an adoption ceremony in 1968 in the way described by him. 107.I find Gailey's evidence reliable and her evidence pointed towards certain secret arrangements between Mina and Lucien in terms of adopting Henry as Lucien's son. However, such an arrangement was most probably only done or merely verbally acknowledged on an informal and very loose basis. There is no direct evidence to prove what exactly was this secret arrangement. In any event it was not done properly in accordance with Chinese customary law and practice of the Hakka community. 108.Finally, the ceremony described by Henry, even if accepted in full, was not sufficient as an adoption under the Chinese customary law of the Hakka community at that time. It was also not sufficient as a formal adoption for the purpose of section 2(2) of the IEO. 109.The provision in section 2(2) of the IEO requires a formal adoption and an informal adoption would not be sufficient to enable an informally adopted son "i-tze" to inherit the adoptive parent's estate. Furthermore, under Chinese customary law, the distribution of estate to an "i-tze" is discretionary according to the expert evidence of Professor Chang and Professor Dicks. 110.In the end, Oscar, as represented by his personal representative, succeeded in the counterclaim that Henry is not an adopted son under Lucien's estate. Edith is also successful in the original claim against Henry to set aside the original letters of administration granted Henry and her dated 4 October 1999 in that it should be declared null and void and be revoked. 111.Before the end result of this judgment is known to the parties, the parties have already agreed that Henry and Edith could not be co-administrators together in view of the animosity between them, even if Henry is the adopted son of Lucien. By consent of the parties, HSBC Trustee (Hong Kong) Limited has already been appointed in lieu of the original two co-administrators. 112.There shall also be an order that Henry should forthwith cause all monies, shares, proceeds and properties belonging to the estate to be returned or transferred back to the estate and all necessary accounts enquiry shall be taken by a master of the High Court and thereafter payment by Henry of any amount or amounts due and payable on taking of the accounts. 113.Oscar is entitled to a similar order in the counterclaim against Henry. Since Oscar is the most successful party in this action, I direct that his solicitors shall have carriage of the order. The wordings of the order and judgment shall be submitted by them for my approval before it is sealed. COSTS 114.I shall make an order nisi for costs as follows for the following reasons :
Representation: Mr Horace Wong, instructed by Messrs Chaine, Chow & Barbara Hung, for the Plaintiff The 1st Defendant, in person Mr Edward Chan, SC leading Mr Lee Tung Ming, instructed by Messrs Stephenson Harwood & Lo, for the 2nd Defendant 1 香港崇正總會1971年金禧大慶世界客?懇親大會及大?落成紀念特刊，67頁 2 The Hong Kong Tsung Tsin Association 50th Anniversary Special Publication (1971), page 67 |
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