Tang Cho Sang Wayne v. Chim Siu Wah

HCA006666/1993

1993, No. A6666

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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Coram: The Hon. Mr. Justice Rogers in Court

Dates of hearing: 24, 25, 26 and 27 April 1995

Date of handing down of judgment: 13 June 1995

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J U D G M E N T

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1. In this Action, the Plaintiff seeks a declaration that the Plaintiff is entitled to succeed to various plots of land in the village of Po Sum Pai, Tai Po to the exclusion of the Defendant and a consequential vesting order of that land in the Plaintiff.

2. The Plaintiff and Defendant are half brothers of the same father. It is apparent that there is deep division in the family. From a number of matters which were stated during the evidence it could be surmised that the immediate conflicts which have caused this case to be commenced were perhaps only remotely connected with the dispute which falls to be determined by these proceedings. It is to be hoped that, nevertheless, there will be some reconciliation amongst the members of the family.

3. The events with which this case is concerned start with the marriage in about 1930 of the Plaintiff's and the Defendant's mother, Lo Ma Kiu, and the Defendant's father Chim Tin Yeung. Lo Ma Kiu was a child bride of approximately 12 years old. Chim Tin Yeung lived in the village of Chim Uk near Tai Po. The Defendant was born to the marriage in 1939.

4. Chim Tin Yeung died before the end of the war, in about 1944. Lo Ma Kiu was left with two children, the Defendant and his sister. Shortly after the war, Madam Lo married Tang Sek Fuk. Tang Sek Fuk lived in Po Sum Pai Village. She went from Chim Uk Village to Po Sum Pai Village to marry Mr. Tang. From my understanding, the villages are very close to each other. Madam Lo took the two children with her.

5. Initially, when the case was opened there was a dispute between the parties as to whether there was any wedding ceremony. Madam Lo said there was not. The Defendant, however, remembered a wedding meal of sorts. He was, of course, quite young, about 5 or 6 years old. But that is old enough, in my view, for him to have been aware of and be able to remember now an event such as his mother's wedding and his removal from his old village to a new village. Madam Lo suffers from the handicap of being illiterate. The importance of that was brought home by something Madam Lo said in her evidence. She mentioned that because she was illiterate she had to remember everything in her head and that she found that very difficult. Although she gave her evidence in a clear manner, she was evidently not now the most alert of 77-year olds and where her evidence, particularly in this respect, conflicted with that of the Defendant, I unhesitatingly prefer the Defendant's version. The matter does not rest there however because, somewhat unusually, I allowed the Plaintiff's counsel to cross-examine later witnesses on behalf of the Defendant on a basis which conflicted with Madam Lo's evidence, since it had become clear and it was the case put by counsel on behalf of the Plaintiff that Madam Lo's evidence, particularly in this respect, must be inaccurate.

6. The Defendant said that during the wedding party, Tang Sek Fuk said so that all the guests could hear, and this included those whom the Defendant realised later were senior members of the Po Sum Pai Village, that he adopted the Defendant as his son.

7. The wedding celebration was no doubt a very humble affair. Clearly, there was little money around amongst the poor fishing community particularly so shortly after the war. Nevertheless, I have no doubt on the evidence that there was some form of a special meal attended by a few people to mark the occasion of the wedding. Two members of the Tang family from Po Sum Pai Village gave evidence. First was Mr. Tang Mau Kam, he was about 18 at the time. He does not remember any formal adoption but he does remember Tang Sek Fuk saying at the dinner that the Defendant was called Tang Siu Wah. Mr. Tang Yuk Sang, who was then less than 10, also remembers being at the wedding meal but cannot remember what was said because he was too small at the time.

8. This evidence seems to me to be entirely consistent with what one would expect to be remembered 40 years later. There clearly was a wedding meal. Tang Sek Fuk no doubt made a short speech. I have no hesitation in holding that he said something to the effect that Defendant would be part of the family and he was now a Tang and would be treated as his son.

9. On all the evidence it is quite clear that the Defendant thereafter lived in Po Sum Pai Village, used the name Tang Siu Wah and was regarded as a member of Tang Sek Fuk's family. In 1951, an identity card was applied for and for that purpose the Tang name was used albeit at that stage transliterated Dung. Indeed, it seems to me that it is indicative of the Defendant's assimilation into Tang Sek Fuk's family that the Plaintiff who was born in 1952 was not aware until 1976 that the Defendant was only his half brother and not a full brother.

10. In 1955 Tang Sek Fuk died intestate. There is no doubt that he was an opium smoker during his life. Although he was clearly a poor fisherman, nevertheless on the evidence I am quite sure that he did work and did bring in an income. So too did his wife Lo Ma Kiu. She worked as best she could in the fields and I am quite sure that the family was poor.

11. The Defendant was only about 16 when Tang Sek Fuk died but again there is a sharp division between his evidence and that of Lo Ma Kiu. The funeral arrangements were doubtless of the most rudimentary kind. Nevertheless, having seen the Defendant in the witness box, I am satisfied that he not only took part in the burial ceremony but after the monk had said prayers, he did fetch water and used joss-stick paper to wipe the deceased's face clean. He told me, and I have no reason to doubt it, that he remembered the occasion vividly and he was very scared at the time. He was being helped by a man called Yip whom he addressed as uncle.

12. About a week before Tang Sek Fuk died, he had spoken to the Defendant apparently in the presence of Lo Ma Kiu. At the time it was clear that Tang Sek Fuk was likely to die shortly and he knew it. He told the Defendant that he had always treated him as his son and he told him to look after his mother and his step-brother and sister after he, Tang Sek Fuk, had died.

13. The Defendant remained in Po Sum Pai Village until he went to England in 1960. Effectively, it seems that he remained in England ever since. He went there to earn a better living. In order to be able to go to England he, of course, needed a passport. He therefore needed to get a copy of his birth certificate. It seems that the officials with whom he was dealing, and the evidence is not particularly clear about whether it was a police officer or government official, noticed the difference between his identity card name and the name which he should bear from his true father. He was told that in order to be able to get a passport he would have to use his original name. Whether or not that was legally correct does not matter. I am satisfied that that is what he and those around him were told and believed. I am satisfied that that is the reason why he applied for a passport in the name Chim Siu Wah and that is why when he went to England he used the name Chim Siu Wah.

14. The case was attempted to be made on behalf of the Plaintiff that the Defendant had deliberately chosen to revert to the name Cham or Chim partly with a view to taking the benefit of some land in Chim Uk. I do not consider this is so at all. In 1955, Chim Sau who was the Defendant's uncle had recorded the Defendant's interest in land in Chim Uk. On that occasion, Chim Sau was recorded as the Defendant's trustee. The Defendant said that he was unaware of this at the time and there is no reason to suppose otherwise.

15. There was a further succession of property in Chim Uk Village in 1959. On that occasion, the Defendant's uncle requested the Defendant to go and sign some documents with him at the government offices, (the District Office) in Tai Po. The Defendant did as he was asked. I accept that he cannot remember very much about what happened. He was apparently aware that the uncle was putting a share of land in Chim Uk into his name because the Defendant's father had originally had a share of this land. In this succession, the Defendant used the name Chim Shiu Wah and his signature in Chinese characters appears on the memorial. I have no doubt that he used that name because that was the name which he would be expected to use in a succession to an interest in land previously held by his father.

16. Whilst dealing with the question of the Chim Uk land, I should state that it seems to me that the Defendant never paid very much attention to it or regarded it as of any significance to himself. As I have already indicated in 1960, the Defendant departed for the United Kingdom. That was not a sudden move. He had obviously planned for it and obtained a passport to be able to go. At one stage in 1985, the uncle wrote to the Defendant in England and asked him to sign a power of attorney so that he, the uncle, could sell some of the land. The uncle wanted to use the proceeds for his maintenance as he had retired. It seems that the Defendant received no benefit and indeed expected to receive no benefit from this land.

17. In 1993, some other land in Chim Uk was sold. Again the Defendant was not precise about the details. I consider his lack of precision stems from an overall lack of interest due to the fact he never expected to derive any benefit from the land. By that stage, the uncle had died and the Defendant's cousin in Chim Uk rang the Defendant whilst he was in England and asked him to return to Hong Kong to sign some documents. The cousin said that he would give the Defendant some money but did not tell the Defendant how much. Everything concerning the sales seems to have been arranged by the cousins and the Defendant was given about HK$200,000. He was told by his cousin that should cover his expenses in coming back to Hong Kong. It is significant that the land was sold for more than HK$1.7m. If it had been shared between the Defendant and his two cousins equally the Defendant would have received close to HK$600,000.

18. The Defendant was on the face of it quite happy about this arrangement. He said in the witness box that he thought that his uncle had only had an interest recorded for the Defendant in order to avoid possible trouble later should the Defendant decide to claim his father's inheritance. It seems to me that the Defendant never regarded the fact of it being recorded that he had any interest in lands in Chim Uk as being of serious consequence to himself. It seems that up until very recent events he never contemplated that he might live there. Neither, as I have just said, did he expect to obtain any benefit and he was content for the uncle to keep and later sell the land for his own benefit and for his cousins, in effect, to make a present of a small part of their gains when they sold part of the land.

19. I turn then to the land which is the subject of this Action. In 1954, Tang Sek Fuk had succeeded to the lots which are identified in para. 9(1) of the Statement of Claim. In 1958, after Tang Sek Fuk's death, the lots which were in Tang Sek Fuk's name and are identified in para. 9(2) of the Statement of Claim were succeeded to by the Plaintiff and the Defendant who were then aged respectively 19 and 7. The Defendant signed the memorial using his name Tang Siu Wah, in Chinese characters, and Lo Ma Kiu signed as trustee.

20. In 1967, there was a succession to the lots which were referred to in para. 9(1) of the Statement of Claim. The succession was by the Defendant, using the name Tang Siu Wah, and the Plaintiff who was then aged 15 with his mother as trustee, the succession being as tenants in common in equal shares. The memorial was signed by Lo Ma Kiu as agent for the Defendant and trustee for the Plaintiff. By that stage, the Defendant was already in England and I have no hesitation in accepting the Defendant's evidence that as with the succession in 1958, it was Lo Ma Kau who effected the succession voluntarily.

21. In 1973, Lo Ma Kiu was removed as a trustee for the Plaintiff in respect of the lots referred to in para. 9(1) of the Statement of Claim and one of the lots, 743A, was thereafter divided between the Plaintiff and the Defendant and a building licence was obtained. What happened was that the lot was divided between the Plaintiff and the Defendant and the Defendant agreed to pay for the building of two houses. One house would be built on the part of the lot which the Defendant would have and the other house would be built on the part of the lot which the Plaintiff would have. For this purpose, the Defendant remitted a sum of ￡13,000 to pay for the building of these houses. Part, at any rate, of the negotiations and transactions were carried out on the Defendant's behalf by the Defendant's former wife. The Defendant's evidence was that he paid for the building of the house on the Plaintiff's land as well as on his own because he regarded himself as a member of the family and the Plaintiff as his younger brother and he thought that it was part of his duty to try and support the family.

22. Much of the arrangements in respect of the building were carried out by the mother. There was a dispute as to how much the Defendant remitted but given the passage of time no records are available. It seems to me on the evidence that the Defendant paid nearly all, if not all, of the cost of building the houses.

23. In addition to paying for the cost of the houses, the Defendant did, from time to time, remit money both to his mother and on occasions to his half brother for their maintenance. For quite a period of time, it seems that the mother looked after the Defendant's children but it is clear that in about 1976 and thereafter, the family disputes began to emerge. That unfortunately seems to me to have coloured the recollection particularly of Lo Ma Kiu who was at pains to paint a picture of the Defendant as a gambler and profligate who left her to look after his children on an inadequate pittance.

24. In 1978, the Defendant apparently lived in the house on Lot 743A for about 6 months and in 1982, he lived there again for about 2 weeks. Thereafter he does not seem to have resided at his house in Po Sum Pai Village. From his evidence, however, I did get the impression that he regarded the house which had been built on his portion of the lot as a place for his retirement. It was for that reason that after these proceedings were commenced and the threat emerged that the house which he had had built would not be available for him, that steps were taken with a view to having another house built, this time in Chim Uk.

25. It was common ground between the parties that entitlement to the lots, the subject to this Action, was to be determined in accordance with section 13 of the New Territories Ordinance which contained what was in effect a mandatory provision to recognise and enforce Chinese custom and customary rights affecting the land.

26. The evidence as to Chinese Law and custom was provided in the form of an opinion of Mr. H.C. Miu, who was not called as an oral witness on the Defendant's indication that there would be no cross-examination.

27. At the outset I make this observation that Mr. Miu's opinion to a certain extent recites facts which are at variance from those which I have found. In particular, it is said in the opinion that the Defendant falsely misled his mother into signing various documents. As I have already found, Lo Ma Kiu signed the 1967 documents in the absence of the Defendant and quite voluntarily. Most certainly no case of deception by the Defendant has been made out.

28. Whilst I have already held that Tang Sek Fuk did tell the guests at the wedding meal that Tang Siu Wah, the Defendant, was to be treated as his son that does not appear to me to have been a formal adoption. For this purpose I have also referred to the report of the Committee appointed by the Governor in October 1948 on Chinese Law and Custom in Hong Kong. For the reasons which are set out in Mr. Miu's opinion in any event, it seems that the Defendant could not fall within the category of people who could have been formally adopted by Tang Sek Fuk. There can, however, according to Li 3 to section 78 of the Tsing Code, be an informal adoption and in such case the adopted son would be entitled to some share in the division of the property and would be able if the family were poor and without natural born sons to sell some of the family property for common support. As is also made clear in the report of the Committee, what that share would be is not fixed but indefinite. By Li 4 to section 78, an adopted son of a different surname may choose to return to his proper family but in that case he may not take with him any share of property he may have got from the adoptive family.

29. As I have already found it is clear to me that the Defendant was treated as a son of Tang Sek Fuk. Up until the events which gave rise to this Action he was regarded as a Tang. In my view, he must be treated as an informally adopted son. Furthermore, it is clear to me that until the events which gave rise to this case, the Defendant regarded himself as a resident of Po Sum Pai Village, his name appeared on the village roll up until at least 1990, he kept his house there and intended to return there when he retired from working in England.

30. The Defendant used the name Cham or Chim on his passport as I have found because he thought he was required to do so. In 1959, he also used the name Chim when signing the instrument of succession at the District Office but as I have held I consider that he regarded himself as required to use that name for that purpose but did not at that stage expect to obtain anything other than a token benefit, if at all, from that conveyance. Significant reliance was placed on behalf of the Plaintiff on statutory declarations made by the Defendant particularly that of March 1993. That declaration was made in relation to the Lot 743A and the purport of the declaration was to identify the Defendant as using both the name Tang Siu Wah and Cham Siu Wah. In para. 5 he said that he had been called by the name Tang Siu Wah by some people in Po Sum Pai Village although he had primarily been called by the name of Cham Siu Wah. It seems, as I have already indicated, that at least up until 1976, he was invaribly called Tang Siu Wah by the people in Po Sum Pai Village. I think the ultimate truth is, as he said in cross-examination, that generally people called him Tang Siu Wah but when it came to official matters concerning government and so forth, he would use the name Chim Siu Wah.

31. It then falls to be determined whether the Defendant has chosen to return to his original family, namely the Chim family. I have been unable to find any complete guidance as to what constitutes a return to the family. Clearly the Defendant has not taken up residence in Chim Uk and so there is no physical return involved. It is said on behalf of the Plaintiff that the return may be a matter to be inferred from the acts of the Defendant. The Plaintiff relies primarily on the acceptance by the Defendant of interests in the land in Chim Uk and the failure to renounce any such interests. For reasons which I have already held, I do not regard this as indicating a choice on behalf of the Defendant to regard himself as returning to Chim Uk at the time, or even later. He did not consider that he was obtaining any significant benefit from the land.

32. In the course of argument the Plaintiff's counsel placed strong reliance on another point. It was said that a person could not inherit land in 2 villages. He had to elect to receive land from one or the other of the families. In many instances, that is no doubt the practical consequence. However, the legal proposition is not put in that way. One also has to bear in mind 2 factors. One is dealing first of all with land which is succeeded to and not land held on trust. Secondly there is nothing on what I have determined to prevent a person acquiring land in a village not his own. Again, that might, as a practical matter, be rare.

33. The next point relied upon is the use of the surname Chim or Cham. This I have already dealt with. I do not regard this as an indication of an intention to return to Chim Uk. Nor do I regard the fact that when he was in England the Defendant made a donation of ￡100 to the ancestral hall in the Chim Uk Village as being of any significance. As he explained he had been approached for a contribution and he regarded this as a matter of charity. One has to bear in mind that with a person thousands of miles from home, it might have seemed churlish, to say the least, had he refused to make any contribution to a "good cause" simply on the grounds that he regarded himself now as having been adopted in the village next door.

34. Finally there is the matter of the application to rebuild a house on a lot at Chim Uk which was made on behalf of the Defendant after the commencement of these proceedings. On the face of the correspondence I have been shown the chances of the Defendant obtaining the necessary consent to have such a house built are slender to put it at its highest. I consider that this is no more than an attempt on the Defendant's part to obtain an insurance policy. Once these proceedings were commenced the Defendant rightly regarded his tenure of the house in Po Sum Pai Village as open to question and he wanted to be sure that if he were no longer able to live in Po Sum Pai Village, he would have a house available for him when he retired.

35. I bear in mind that the village representatives regarded the Defendant as having changed to his surname back to Chim and therefore excluded him from inclusion in the Po Sum Pai Village. That seems to me to have been a subjective view taken on the basis of facts which the village representatives may or may not have fully investigated. It does not appear that they gave the Defendant any chance to say anything about it. Very possibly it may not be fair to view that event outside the context of the family dispute; perhaps the village representatives are acquainted with some of the protagonists in this dispute and know of the dispute.

36. In my view, it has not been made out that the Defendant has returned to Chim Uk. There is no reason therefore why the Defendant should be deprived of the interest in Po Sum Pai land to which he has succeeded. In the circumstances the Plaintiff's action fails.

37. Before concluding, I should mention that the matter of estoppel was relied on very heavily on behalf of the Defendant. I can see great force in the arguments that were put forward. In particular my attention was drawn to the decision of Oliver J. in Taylor Fashions Ltd. v. Liverpool Victoria Friendly Society (1982) QB133. I would also refer to the case of Habib Bank Ltd. v. Habib Bank A.G. 1982 RPC1 and in particular to the judgment of Oliver L.J. at p.36 where he quoted from his previous judgment and confirmed his adherence to the proposition that the question of estoppel requires a consideration whether in the circumstances it would be unconscionable for a party to be permitted to deny that which knowingly or unknowingly he has allowed or encouraged another to assume to his detriment rather than to conduct an inquiry on the basis of whether the circumstances can be fitted within the confines of a pre-set formula.

38. In my view, there are strong grounds for saying that even if the Defendant ought in law to be deprived of the interest in land at Po Sum Pai Village, he should be permitted to retain the house and necessary surrounding land which he had built in 1973. He built a house not only for himself for the future but for his half brother and his half brother retains that house. This family dispute has been simmering for many years and yet it was only in 1993 that final steps were taken to attempt to deprive the Defendant of his house. I consider that there is clearly a grave question as to whether the Defendant is now in a position to build any house in Chim Uk and the present likelihood is that he would not be able to do so.

39. It was suggested on behalf of the Plaintiff that the Defendant could be compensated by re-paying him the building cost of the house. After 22 years given the inflation and obvious increase in building costs that have taken place in the meantime, the original building cost appears to me to be irrelevant. If any compensating steps were to be taken, it would have to be such as would put the Defendant in the position of having a house in the locality to which he could retire.

40. In my view, however, it would be inappropriate for me to come to any decision as to a matter of estoppel in this instance. The question of estoppel is primarily a matter of discretion. Were I to come to a finding in respect of estoppel I would be exercising a discretion on the basis of possibly hypothetical facts but certainly a legal result which was not in accordance with that which I have found. That would be a wrong starting point for the exercise of a discretion. Therefore, it seems to me, it would be an improper exercise of a discretion.

41. It is thus not necessary for me to go into the question as to whether estoppel can rise in relation to this matter. It is said on behalf of the Plaintiff that because this is a question of succession to New Territories land which is governed by Chinese Law and customary Law there is no room for the application of equitable doctrines. In my view, that argument is not correct. This would be a question not of the rules of equity altering the Chinese Law or customary Law but the rules of equity binding the conscience of those who have inherited in accordance with the Chinese Law and customary Law and who have the benefit of a house built for them. I have considered a large number of cases both in Hong Kong and elsewhere and the Report of the committee and nothing in those would lead me to a different conclusion.

42. The question of limitation does not seem to me to arise since this action appears to have been commenced just within the 20-year period which might affect the Plaintiff.

43. In the circumstances, I dismiss the Plaintiff's action and I make an order nisi for costs in favour of the Defendant.

Representation:

Mr. M.J. Merry instructed by M/s Raymond Hung & Co. solicitors for the Plaintiff.

Mr. Keith Yeung instructed by M/s Edmund Cheung & Co. solicitors for the Defendant.