Chan Chiu Lam and Others v. Yau Yee Ping
Read the full judgment text of HCAP 6/1991 on BabelCite. This High Court CFI judgment was delivered on 24 April 1998.
1. This is a probate action. It has attracted considerable publicity - partly because some of the evidence was given by video link, but primarily because the outcome of the case depends to a great extent on the legal status of concubines in China up to 1949. It is surprising that the inheritance of the estate of a woman who died intestate in Hong Kong in 1987 should depend on the resolution of that issue, but the law sometimes leads us down unexpected paths.
Cited by 5 cases · Cites 1 case
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HEADNOTE [(1) Section 2(2)(b) of the Intestates' Estates Ordinance (Cap. 73) applies only to the natural children of a valid marriage. It does not apply to adopted children. (2) For a union of concubinage to come within the definition of a union of concubinage in section 13(2) of the Intestates' Estates Ordinance, the union must be one which is recognised by law, and not merely one which has the attributes of a union of concubinage and exists in fact. (3) The status of concubinage ceased to be recognised under Chinese law on 5th May 1931 when Book IV of the Civil Code of the Republic of China came into operation. The effect of the Civil Code was to abolish the status of concubinage. Whether the status of concubinage was once again recognised under Chinese law when the Civil Code was abrogated on 29th September 1949 has yet to be determined.] 1991 No. P6 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE JURISDICTION ______________
______________ Coram: The Hon. Mr. Justice Keith in Court Dates of Hearing: 25, 26 and 27 March 1998 Date of Handing Down of Judgment: 24 April 1998 _______________ J U D G M E N T _______________ Introduction 1. This is a probate action. It has attracted considerable publicity - partly because some of the evidence was given by video link, but primarily because the outcome of the case depends to a great extent on the legal status of concubines in China up to 1949. It is surprising that the inheritance of the estate of a woman who died intestate in Hong Kong in 1987 should depend on the resolution of that issue, but the law sometimes leads us down unexpected paths. 2. The action originally concerned the estates of Sung Chuen Pao (who was also known as Robin Sung) and Madam Chu Lee (who was also known as Chu Lan Fan). It now concerns, for the most part, only the estate of Madam Chu. To explain why, it is necessary for me to identify the relevant facts, none of which are in dispute. The facts 3. Mr. Sung died intestate in Hong Kong in November 1985. In January 1987, Madam Chu was granted letters of administration in respect of Mr. Sung's estate. Those letters of administration were granted on the basis that
However, Madam Chu herself died intestate in Hong Kong in November 1987. She was survived by a number of brothers and sisters. After her death, her sister, Madam Chu Wan Hing, applied for the grant of letters of administration in respect of her estate. However, the writ in the present action was issued before letters of administration were granted. Madam Chu Wan Hing was therefore appointed to represent Madam Chu's estate in the action. She died in September 1995, and since then her daughter, Madam Yau Yee Ping, has been appointed to represent Madam Chu's estate in the action. 4. In fact, Madam Chu had not been Mr. Sung's lawful "kit fat" widow. The 1st Plaintiff (P1), Madam Chan Chiu Lam, was Mr. Sung's lawful "kit fat" widow. They had married in Shanghai in September 1929. They had no children, but in December 1947 in Shanghai they adopted the 3rd Plaintiff (P3), Suen Mei Lee, who was the daughter of Mr. Sung's younger sister. Indeed, Madam Chu was not even Mr. Sung's 1st concubine. In May 1933 in Shanghai, Mr. Sung took Madam Sung So Chun as his concubine. She died in 1983. However, Mr. Sung had three children by her, two sons and a daughter. The elder son died in 1987. Mr. Sung's other two children by Madam Sung survived him. His younger son, Sun Ming Sheng (whose nickname was "Momo"), died in April 1990. Mr. Sung's daughter by Madam Sung, Suen Toi Lee, is the 2nd Plaintiff (P2). 5. It was in December 1945 in Shanghai that Mr. Sung took Madam Chu Lee as his 2nd concubine. They had no children. Eventually they came to Hong Kong, Mr. Sung arriving here in 1951, and Madam Chu joining him the following year. Accordingly, at the time of Mr. Sung's death, Madam Chan (P1) was his lawful "kit fat" wife, he had three living children (P2, Momo and P3), and Madam Chu was no more than his 2nd concubine (although his 1st concubine had already died). The issue in the case 6. When this action was commenced, it related only to Mr. Sung's estate. The issue was whether Madam Chu's estate was entitled (a) to administer Mr. Sung's estate and (b) to share in Mr. Sung's estate. That depended on whether there had been a valid marriage between Mr. Sung and P1 in 1929. It subsequently became clear that the validity of that marriage could not be challenged. Accordingly, it was conceded that Madam Chu had no claim to a share in Mr. Sung's estate, and had not been entitled to administer it. The issue in the case now is whether any of the Plaintiffs and Momo's estate can administer Madam Chu's estate and share in it. The primary statutory provisions 7. The claim to Madam Chu's estate is made by P2, Momo's estate and P3. It is based on section 4(5) of the Intestates' Estates Ordinance (Cap. 73) ("the Ordinance"), which provides:
Since Madam Chu did not have a husband at the time of her death, it is her issue who will share her estate. Whether P2, Momo and P3 were her issue at the time of her death turns on section 2(2) of the Ordinance, which provides:
Although P3 was adopted, she had not been adopted by Madam Chu. Accordingly, her claim to a share in Madam Chu's estate must be based, like the claims of P2 and Momo's estate, on section 2(2)(b). The claim of P3 8. It is here that the claims of P2 and Momo's estate, on the one hand, and the claim of P3, on the other hand, diverge. Having regard to section 2(2)(b), the claims of P2 and Momo's estate depend upon (a) Mr. Sung having been Madam Chu's "husband", and (b) Mr. Sung and Madam Sung having contracted a "valid marriage". However, P3 was the product, albeit by adoption, of a valid marriage. Accordingly, even if Mr. Sung had been Madam Chu's "husband", P3's claim depends on whether section 2(2)(b) applies only to the natural child of a valid marriage, as opposed to an adopted child of such a marriage. 9. Mr. Nelson Miu for the Plaintiffs argued for the latter construction. He contended that the intention of the legislature must have been to put adopted children on the same footing as natural children for the purposes of intestate inheritance. He pointed out the anomaly which would arise if a different construction was adopted. Suppose that Mr. Sung and P1 had had a natural child as well as adopting P3. Both of them would have had equal shares in Mr. Sung's estate, though only the natural child, and not P3, would have been entitled to inherit Madam Chu's estate. 10. I see the force of that argument, but if that is what the legislature had intended, it could have achieved that in a number of ways, for example by substituting for the words "that person" in section 2(2)(c) the words "the parties to a valid marriage to which that person was a party or to which her last husband and another female were parties", or by adding the words "or adopted child" after the words "a child" in sections 2(2)(a) and 2(2)(b), and adding, instead of section 2(2)(c), a definition of what constitutes an adopted child. In my view, the language which the legislature chose to use is consistent only with the legislature believing that natural children could share in the estate of a woman who had subsequently married their father, but not children who had been adopted. Accordingly, the scheme of section 2(2) is that natural children of a valid marriage are provided for in sections 2(2)(a) and 2(2)(b), leaving section 2(2)(c) to provide for adopted children. If it were otherwise, section 2(2)(c) would have been drafted very differently. 11. It follows that section 2(2)(b) must be construed as applying only to natural children of a valid marriage, and P3's claim to a share in the estate of Madam Chu, and to participate in the administration of her estate, must be dismissed. The claims of P2 and Momo's estate 12. I return to the claims of P2 and Momo's estate to Madam Chu's estate. Those claims depend on Mr. Sung having been Madam Chu's "husband", and on Mr. Sung and Madam Sung having contracted a "valid marriage" within the meaning of the Ordinance. Here, P2 and Momo's estate rely on para. 2 of the Schedule to the Ordinance which provides:
A "union of concubinage" is defined in section 13(2) of the Ordinance, which provides:
Accordingly, the crucial question is whether Mr. Sung and Madam Sung, and later Mr. Sung and Madam Chu, had entered a "union of concubinage" within this definition. If they had, it will be P2 and Momo's estate who will share in Madam Chu's estate. If they had not, and if Madam Sung and Madam Chu had simply been his mistresses with no legal rights, it is Madam Chu's brothers and sisters (or their respective estates) who will share in her estate pursuant to section 4(8) of the Ordinance. The proper construction of section 13(2) 13. At first blush, it appears obvious that the relationship which Mr. Sung enjoyed with Madam Sung and later Madam Chu was a union of concubinage. It is not disputed (a) that they had regarded Madam Sung and later Madam Chu as his concubines, (b) that both Madam Sung and Madam Chu had been accepted by P1 as his concubines during his lifetime, and (c) that both Madam Sung and Madam Chu had been recognised by Mr. Sung's family as his concubines during his lifetime. And since the appointed day under the Marriage Reform Ordinance (Cap. 178) was 7th October 1971, it is plain that they had become his concubines before then. On what basis can it be said, then, that they had not entered a union of concubinage with him within the meaning of section 13(2)? 14. The Defendant's answer is that the unions of concubinage between Mr. Sung and Madam Sung, and later between Mr. Sung and Madam Chu, were not recognised as valid because in 1931 concubinage was abolished in China. Accordingly, the principal issue which I was asked to decide was whether, as a matter of historical fact, concubinage continued to survive as a status recognised by the law. I do not suppose the irony will be lost on anyone reading this judgment. The defence to the Plaintiffs' claim to a share in Mr. Sung's estate (before that claim was conceded) was that Madam Chu had been Mr. Sung's lawful "kit fat" widow. That is to be contrasted with the defence to the Plaintiffs' claim to a share in Madam Chu's estate, which is based on the assertion that Madam Chu was not even Mr. Sung's concubine. 15. The Defendant's argument, skilfully deployed by Ms. Lisa Wong, proceeds on the assumption that the words "union of concubinage" in section 13(2) relate to a union of concubinage recognised by law, i.e. a union of concubinage de jure. That is disputed by the Plaintiffs. In an equally attractive submission, Mr. Miu contended that the words "union of concubinage" in section 13(2) relate to a union which, whether or not it was recognised by the law, had the attributes of a union of concubinage - the acceptance of the concubine by the male partner's wife, and the recognition of the concubine as his concubine by his family generally - i.e. a union of concubinage de facto. 16. It is important to note that the definition of the words "union of concubinage" begins with the very words which the legislature was seeking to define, i.e. "a union of concubinage". If a union amounted to a union of concubinage if it was
the words "of concubinage" would not have been included in the definition. The inclusion of the words "of concubinage" in the definition means that if a relationship between a married man and a woman other than his wife is to be regarded as "a union of concubinage", it is not enough to show that it was
It must also be shown that the union was indeed a union of concubinage. 17. If that is so, what, it might be said, was the point of adding the words "under which the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognized as such by his family generally" to the definition in section 13(2)? Do not those words identify what constitutes "a union of concubinage"? Ms. Wong's answer to that is, I believe, the correct one - namely, that there had been considerable uncertainty whether the consent of the man's wife and the recognition by his family had been necessary to the lawful constitution of a union of concubinage under Chinese customary law, and the words were added to section 13(2) either to make the wife's consent and the family's recognition additional requirements for the lawful constitution of a union of concubinage for the purposes of the Ordinance, or to remove the uncertainty as to whether there had been such requirements under Chinese customary law. 18. If the attributes of a union of concubinage (consent and recognition) were not sufficient to amount to a union of concubinage, it follows that section 13(2) contemplated something other than a union of concubinage de facto, i.e. a union of concubinage de jure. That is borne out by section 5 of the Marriage Reform Ordinance, which provides (so far as is material):
The Marriage Reform Ordinance and the Intestates' Estates Ordinance were contemporaneous "measures in the programme of modernization of [Hong Kong's] family and personal law" (Hong Kong Legislative Council, Reports of Debates, 26th May 1971, p. 647). If the status and rights of concubines de jure only were to be preserved after 7th October 1971, it is to be inferred that the references to concubines in parallel legislation are also to concubines de jure only. 19. In reaching this conclusion, I have not overlooked two points made by Mr. Miu on the construction and significance of the word "unlawfully" in section 5(2) of the Marriage Reform Ordinance. First, I see no basis for construing the word "lawfully" as meaning "not unlawfully". Secondly, no inference can be drawn about the significance which the legislature attached to the word "lawfully" in section 5(2) from the absence of the word "lawfully" in section 6(2)(b). Nor have I overlooked Mr. Miu's point that many of the provisions in the Marriage Reform Ordinance were intended to give effect to the McDouall-Heenan Report presented to the Governor in 1968, which acknowledged, in para. 50 of Appendix C, that a previous White Paper had distinguished between de jure and de facto concubines. However, having read the various recommendations in Enclosure 1 to the McDouall-Heenan Report, I have not been able to discern any recommendation which sought to put a concubine de facto into the same position as a concubine de jure. The status of concubines under Chinese law 20. Accordingly, I turn to whether by 1933 (when Madam Sung purported to become Mr. Sung's concubine) and by 1945 (when Madam Chu purported to become Mr. Sung's concubine) the status of concubines was still recognised under Chinese law. Two acknowledged experts on Chinese law have given evidence before me. Dr. Henry Hu was a witness for the Plaintiffs, and Prof. Anthony Dicks S.C. (who gave evidence by video link from London) was a witness for the Defendant. They have both given evidence many times in the courts of Hong Kong, and their expertise is unquestioned. 21. Prior to 5th May 1931, a man was permitted under the law then prevailing in China to have, in addition to a principal wife ("tsai"), an unlimited number of secondary "wives". The Chinese word for such a "wife" was "tsip", and is conventionally translated as "concubine". Dr. Hu and Prof. Dicks disagreed as to whether a man's ability to take a concubine rendered the character of his marriage to his principal wife monogamous or potentially polygamous. The answer depends on whether a concubine is to be regarded as a wife (albeit a secondary one) or a person enjoying some intermediate status between a wife and a mistress. Prof. Dicks inclines to the former view, rendering the character of a man's marriage to his principal wife as potentially polygamous. Dr. Hu inclines to the latter view, rendering the character of a man's marriage to his principal wife as monogamous. I do not believe that the essential issue which I have to decide - namely, whether concubinage continued to survive as a status recognised by the law - turns in any way on the true matrimonial status of a concubine. 22. Book IV of the Civil Code of the Republic of China (which governed family law) came into operation on 5th May 1931. Art. 985 provided that a person who had a spouse could not contract another marriage. That meant that a man could only have one wife, i.e. one "tsai", at a time. He was not permitted to take a second "tsai". But as to whether a man with a "tsai" could take a "tsip", the Civil Code was silent. Indeed, there was no reference to concubinage in the Civil Code at all. 23. Dr. Hu's explanation for that omission draws on his knowledge of Chinese history. Two schools of thought existed after the Kuomingtang came to power. A strong conservative element took the view that since the practice of taking concubines was so widespread, its existence should be recognised, even though the practice was not to be condoned. The more progressive thinking was that concubinage was a relic of China's imperial past, and should be abolished. In the event, neither view prevailed. A compromise was reached which involved the adoption of a pragmatic middle course. There would be no express retention or express abolition of concubinage in the Civil Code. Their existence would be tolerated, but the social problem which they posed would, from the point of view of the Civil Code, be ignored. 24. However, ignoring the problem would cause problems of a different kind. There had to be a form of legal recognition of concubinage in order to give concubines the legal rights which the status of concubinage had given them in the past. Dr. Hu maintained that a device was used in the Civil Code to overcome this problem. That device was the creation of a new statutory institution known as "the house", as defined in Art. 1122. A woman who cohabited on a permanent basis other than as a wife with the head of the house (or any other male member of the house) would qualify as a "member of the house" under Art. 1123, and would therefore be entitled to maintenance under Art. 1114. That these provisions implicitly recognised a man's right to take a concubine, argued Dr. Hu, is borne out by the views of the authors of a comprehensive report published in 1953 on "Chinese Law and Custom in Hong Kong" by a committee appointed by the Hong Kong Government. Para. 50 of the report states:
25. Prof. Dicks, on the other hand, maintained that the effect of the Civil Code was to abolish the status of concubinage. That was what those who drafted the Civil Code had intended. The Central Political Council of the Kuomingtang (which was the supreme political authority in China at the time) had written to the Legislative Council in the following terms:
Accordingly, the drafting instructions which the Central Political Council gave to the Legislative Council were:
The omission of any reference to concubinage in the Civil Code was therefore quite deliberate. Those responsible for drafting the Civil Code believed that the legal effect of the omission was to render the status one which the law did not recognise. 26. These two views were cogently and persuasively argued by Dr. Hu and Prof. Dicks, but having considered them at length, I find as a fact that Prof. Dicks' view of the law is the correct one. I say that for the following reasons: (a) The draftsmen's intention. The drafting instructions of the Central Political Council is, I believe, the best evidence I have of what those who drafted the Civil Code had in mind. I appreciate that it would have been easy for them to include an article expressly abolishing concubinage, but the drafting instructions show that they believed that the legal effect of not doing that would still be the abolition of concubinage. (b) The report to the Hong Kong Government. I do not think that the references in para. 50 of the report to the Hong Kong Government relating to the "tsip" being "officially ignored" and then "disguised as a member of the household" supports Dr. Hu's view. Indeed, in my view, the passage relied upon supports Prof. Dicks' view. Para. 50 specifically refers to the fact that the relationship of man and concubine "no longer created a matrimonial relationship". In the context, this meant that the relationship of man and concubine was no longer a relationship which the law recognised. Seen in that light, (i) the phrase "officially ignored" merely meant that the Civil Code had declined to address the issue expressly, and (ii) the reappearance of the concubine in disguise as a member of the household was a reference to a woman who was treated as a concubine de facto, rather than one whose status as a concubine was recognised de jure. (c) Judicial opinion in China. Judicial interpretation of the Civil Code in China was to the effect that concubinage had been abolished. Two cases were cited by Prof. Dicks. For reasons which I do not need to elaborate, I do not think that much assistance can be derived from the ruling of the Judicial Council in Interpretation No. 881 of 3rd April 1933. However, the decision of the Supreme Court of the Republic of China in Hsu Min Sze v. Hsu Wo Sze (Case No. Shang 297) dated 2nd August 1934 is directly in point. The report reads:
I would have been happier about relying on this authority if the words "as a result of" were substituted for "especially after", since it is common ground that Chinese customary law before the enactment of the Civil Code recognised the status of concubinage as legitimate. But by whichever route the Supreme Court came to the view which it did, the fact that it concluded that the status of concubinage was no longer recognised as legitimate is powerful support for the correctness of Prof. Dicks' view. (d) The views of commentators. Distinguished contemporary commentators on the Civil Code took the view that concubinage had been abolished by the Civil Code: see "Outlines of Modern Chinese Law", 1934, p.193 (written by Dr. William Hung, a member of the Shanghai Bar Association and the author of various books on Chinese law), and the introduction to the English translation of the Civil Code 1931, p.xxvii (written by Dr. Foo Ping Sheng, the Chairman of the Foreign Relations Committee of the Legislative Council and Chairman of the Civil Codification Commission). 27. There are five additional points I wish to make: (i) The institution of the "house". I have not been persuaded that the provisions relating to the "house" in the Civil Code support Dr. Hu's thesis. I think that these provisions could just as logically be said to derive from the fact that those who drafted the Civil Code anticipated the social problems which would arise from the continuing practice of taking concubines de facto. How were such women to be given rights of maintenance which would compensate them for the loss of the rights of maintenance which had been an incident of the status of concubinage under the customary law previously in force? The problem was solved by giving rights of maintenance to women by virtue of their membership of the house, which was a status not restricted to concubines, and not by virtue of the fact that they were concubines. This, I believe, is the view of the authors of the report to the Hong Kong Government in para. 50, and the view of Dr. Hung at pp.193-194. It was also the view of the Court of Appeal in Tang Lai Sau Kiu v. Tang Loi [1987] HKLR 85 at p.91A-B. Thus, Prof. Dicks expressed the view in para. 21 of his witness statement:
28. In the final analysis, though, I do not think that the provisions relating to members of the house are of assistance. Their impact depends on your starting point. If you start from the proposition that concubinage was not abolished, as Dr. Hu does, you are likely to conclude that the phrase "member of the house" is little more than a euphemism for concubines, and that the institution of the "house" was a device created to call concubines by another name, a status which continued to exist de jure. But if you start from the proposition that concubinage was abolished, as Prof. Dicks does, you will inevitably conclude that the institution of the "house" was the device created to give de facto concubines the rights which they would otherwise have lost. For these reasons, the two cases decided by the Supreme Court of the Republic of China relied on by both Dr. Hu and Prof. Dicks to support their respective cases, namely Appeal No. 735 of 1932 and Appeal No. 88 of 1933, are in my view of little help. It is not possible to tell whether the references to a "tsip" in the rulings relate to a concubine de jure or a concubine de facto. (ii) The presumption in the Evidence Ordinance. Section 59(2) of the Evidence Ordinance (Cap. 8) provides that where the law of another country has already been decided in Hong Kong, that decision is to be followed unless the contrary is proved. Ms. Wong submitted that in Tang Lai Sau Kiu v. Tang Loi, the Court of Appeal decided that concubinage had been abolished by the Civil Code. Accordingly, the burden of proving that it had not been abolished was on the Plaintiffs, and they had not discharged that burden. I do not have to consider this argument, because of my conclusion, without resorting to the decision of the Court of Appeal, that concubinage had been abolished by the Civil Code. I am inclined to agree with Ms. Wong that the Court of Appeal did decide that concubinage had been abolished by the Civil Code, but that was because the Court regarded it as common ground between the parties that a monogamous marriage excluded a union with any woman, whether a spouse or concubine (see p.90D-E). That is not common ground in the present case, because of the differing views between Dr. Hu and Prof. Dicks on the true nature of concubinage. Accordingly, the factual premise on which the Court of Appeal reached its conclusion does not apply to the present case. (iii) Previous inconsistent opinions. Attempts have been made by both sides to devalue the opinions of Dr. Hu and Prof. Dicks by suggesting that their evidence in other cases did not accord with their evidence in this case. I reject those suggestions. In the case put to Prof. Dicks, Leung Kat v. Lee Chin Tooy Yook (HCA 3392/83), Prof. Dicks did not express the view that concubinage had been abolished by the Civil Code, because he did not know when the woman was supposed to have become the man's concubine. The question would only have arisen if he had been told that she had become his concubine after 5th May 1931. So far as Dr. Hu is concerned, it is true that he is recorded in Tang Lai Sau Kui v. Tang Loi as having said that the Civil Code did not recognise concubines, but I am not prepared to hold that against him without knowing the actual context in which he was recorded as having said that. For all I know, it may be that the context would show that what he meant was that the Civil Code did not refer to concubines - which would have been entirely correct. (iv) Art. 1 of the Civil Code. Dr. Hu relied on an alternative argument. Art. 1 of the Civil Code provided:
Accordingly, if the Civil Code did not deal with the legality of concubinage, the question was whether concubinage was permitted under Chinese customary law. Since it was, the Civil Code did not abolish it. This argument was not put to Prof. Dicks in cross-examination (no doubt because Mr. Miu did not at that stage know that Dr. Hu was going to rely on Art. 1), and I therefore do not know what Prof. Dicks' response to it would have been. Prof. Dicks did say that the Civil Code represented the entire law of China on the topics to which it related, though I do not know what he would have said as to how that fits in with Art. 1. 29. As it is, Art. 1 does not affect my view of the case. I have already referred to the evidence which shows that those responsible for drafting the Civil Code believed that the effect of not including an express provision on concubinage would still be the abolition of concubinage. It may be that that view of the legal effect of the omission ignored Art. 1, but that does not affect the belief of the draftsmen, and if Chinese law is the same as that in Hong Kong, it is by reference to the intention of the draftsmen that the Civil Code has to be construed. (v) The Privy Council case. Dr. Hu placed considerable reliance on the decision of the Privy Council in Cheang Thye Phin v. Tan Ah Loy [1920] AC 369, an appeal from the Supreme Court of the Straits Settlements. In that case, the Privy Council accepted that the fact that no ceremony had taken place when the deceased took a concubine did not prevent her from being a concubine and from sharing in his estate. Her concubinage had been established by her acceptance as a member of the family for many years. However, the fact that concubinage involves being accepted as a member of the family does not begin to mean that the status of concubinage survived the Civil Code in respect of de facto concubines who were accepted as members of the family, whether before or after the coming into operation of the Civil Code. 30. For these reasons, I have concluded that the union of concubinage ceased to be recognised in China as a legitimate legal status with effect from 5th May 1931. The alternative basis of the claims of P2 and Momo's estate 31. However, that it is not necessarily the end of the claims of P2 and Momo's estate to a share in Madam Chu's estate. Their alternative case, as outlined by Mr. Miu in his opening, was that even if Chinese law did not continue to recognise concubinage as a legal status after 5th May 1931,
For reasons which it is not necessary to explain here, I did not hear any argument on these highly contentious issues. If P2 and Momo's estate had succeeded on their primary case, their alternative case would not have had to be addressed. However, since P2 and Momo's estate have failed on their primary case, a further hearing will have to take place at which their alternative case will have to be decided. Unless the claims of P2 and Momo's estate are compromised in the meantime, I have no alternative but to direct that the action be adjourned to a date to be fixed for those issues to be determined. 32. I should add, though, that at present I do not see how the second of these new points can help the claims of P2 and Momo's estate to a share in Madam Chu's estate. Even if Madam Chu could be regarded as having become Mr. Sung's concubine under Hong Kong law, the claims of P2 and Momo's estate to a share in Madam Chu's estate can only succeed if Madam Sung had become Mr. Sung's concubine under Chinese law. That will now depend on my conclusion on the first of the new points only. Orders to be made (a) Mr Sung's estate I have referred to the fact that it has been conceded that Madam Chu had no claim to a share in Mr. Sung's estate, and had not been entitled to administer it. However, that does not mean that there is agreement as to what orders the court should make. The Defendant is prepared to submit to the following orders:
What the Defendant is not prepared to submit to is an order that P2 be granted letters of administration in respect of Mr. Sung's estate or an order that payment out of Madam Chu's estate be made to P2 or Momo's estate. 33. I do not think that it would be right for me to make any order, apart from (i), in relation to Mr. Sung's estate until the further hearing has taken place. I say that for two reasons:
34. There is another issue which arises on Mr. Sung's estate. That issue relates to the basis on which the account should be taken. The Plaintiffs seek to make Madam Chu's estate account on the footing of wilful default, whereas the Defendant is prepared to submit to an order for an account in the common form only. It is unnecessary for me to identify in this judgment the respective arguments, but the resolution of the issue has had to be deferred until the further hearing, because
Accordingly, the only order which I am currently prepared to make in relation to Mr. Sung's estate is an order that the grant to Madam Chu of letters of administration in respect of his estate be revoked. (b) Madam Chu's estate. It goes without saying that I cannot make an order in relation to Madam Chu's estate until the claims of P2 and Momo's estate in relation to it have been finally decided. The only order which I can make in relation to her estate is to dismiss P3's claim for an order that she be granted letters of administration in respect of Madam Chu's estate, and to declare that P3 is not entitled to a share in her estate. 35. Finally, I wish to pay tribute to Mr. Miu and Ms. Wong for the skilful way in which they presented their respective cases. In particular, I wish to single out Ms. Wong's brilliant skeleton argument, which guided me through the labyrinth of the relevant statutory provisions, enabling me to focus on what the issues in the case were, and which summarised her arguments so clearly, concisely and comprehensively.
Representation: Mr. Nelson Miu, instructed by Messrs. John Ku, Tam & Ho, for the Plaintiffs. Ms. Lisa Wong, instructed by Messrs. Hastings & Co., for the Defendant. |
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