Yau Tin Sung v. Yau Wan Loi

HCA006185/1981

Action No. 6185 of 1981

Rights of succession to family properties in New Territories AND the validity of customary adoptions were contested -

Tsing law & custom AND s.13 New Territories Ordinance Cap.97 and s.11 Intestates' Estate Ordinance, Cap.73 considered.

Held, inter alia:

Action No. 6185 of 1981

IN THE HIGH COURT OF JUSTICE

BETWEEN

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Coram: Hon. Liu J.

Date: 12th November, 1983

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JUDGMENT

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1. The plaintiff's grandfather, Yau Tung On had three sons, Yau Kwok Hung, Yau Kwok Piu and Yau Kwok Yan. He died in 1943. The plaintiff's father, Yau Kwok Yan predeceased his grandfather in 1940. It was alleged by the defendant that the plaintiff's late father was adopted by Yau Ma Luk and that his deceased uncle, Yau Kwok Piu was adopted by Yau In Yuk long before the birth of the plaintiff in 1940. The defendant claimed that he himself was adopted in 1948 by Madam Shum Ngau Mui, the surviving widow of the plaintiff's deceased uncle, Yau Kwok Hung who died in 1947 and that as such adopted son he was the only male descendant to succeed Yau Kwok Hung's and through him also Yau Tung On's properties. Alternatively, so the defendant argued, the said widow, Madam Shum Ngau Mui had yet to be consulted on the selection of an adopted successor to her late husband's properties comprising at least one-third of the properties of the plaintiff's late grandfather.

2. The concensus seemed to be that if there had been no adoption out of the family of the plaintiff's late father and his late uncle, the properties of the plaintiff's grandfather would have devolved in 1943 on the plaintiff's two uncles then surviving and the plaintiff himself as the sole male descendant of his late father's branch. Apart from "limitation" and "lathes", these alleged adoptions were the bone of contention.

3. The plaintiff's other uncle, Yau Kwok Piu died in 1955. In 1963, the defendant applied for succession to the properties of Yau Kwok Hung, deceased and had himself registered in the District Land Office as such a successor. In 1970, the defendant applied for succession to the properties of Yau Tung On, deceased and likewise, had himself so registered as a successor. In 1974 and 1978, as registered successor the defendant sold some of the lands of Yau Tung On, deceased.

4. The plaintiff left for the United Kingdom in 1961. He returned for four months in 1964; that was after the application of the defendant for succession to the properties of Yau Kwok Hung, deceased. From 1973 to 1976, the plaintiff came back to Hong Kong for three years to attend to his ailing mother who passed away towards the end of that period. Therefore, the plaintiff was absent from Hong Kong when the defendant applied for succession to the properties of Yau Tung On, deceased in 1970, but he was here when the defendant sold some of the properties of the late Yau Tung On in 1974. The plaintiff returned to Hong Kong for two months at the end of 1978 when allegedly for the first time he became aware of the defendant's activities. Thereupon, so the plaintiff maintained, he demanded from the defendant return of the undisposed of properties and proceeds of sales for the properties sold. The plaintiff claimed to have returned here from April to July in 1979 for the purpose of selling a house to raise fund for litigation expenses. He returned to Hong Kong again in March 1981, having allegedly raised more money in the United Kingdom. The writ in this action was issued on the 9th September 1981. The plaintiff denied to have had any notion, before 1978, of any competitor for the succession to the properties of his deceased uncles and his late father or for that matter, properties of his late grandfather, Yau Tung On.

5. After the defendant refused to meet his demands, the plaintiff consulted solicitors who in turn liaised with the District Office, culminating in the issuance of the writ on the 9th September 1981.

6. The defendant is one generation below the plaintiff and two generations below Madam Shum Ngau Mui.  He is 12th degree removed collaterally from Shum Ngau Mui's deceased husband by blood.

7. In essence, the plaintiff's case against the defendant is that there was no or no formal adoption. Alternatively, if there had been any form of purported adoption of the defendant by Madam Shum, at the very best the defendant could have been only an "i-tze", i.e. a son by informal adoption or a courtesy son, and if that "i-tze" relationship should continue up to the death of Madam Shum, the defendant might then be entitled to some share on the division of the properties of Yau Kwok Hung, deceased. Further, it was contended on behalf of the plaintiff that even if there had been a sufficient ceremony, not being the closest relation or of the proper generation, the defendant could not have been validly adopted.

8. The plaintiff denied the alleged adoptions of his late father and uncle out of Yau Tung On's family and claimed himself to be the only male descendant of that family. It was further submitted that being the only grandson out of the three deceased sons of the late Yau Tung On, as at the death of the last surviving uncle Yau Kwok Piu in 1955, he automatically became a kim tiu son of his two deceased uncles both leaving no issue and that in such dual capacity he was entitled to succeed to the properties, not only of his late father but also of his late uncles and through all of them the properties of his deceased grandfather.

9. On an unnecessarily narrow interpretation of the plaintiff's case as pleaded, the defendant sought to constrict it as being exclusively based on the plaintiff's alleged status of the sole male successor to the late Yau Kwok Hung's properties. But in my view, on a fair reading of paragraph 6 of the re-amended Statement of Claim, it would be open to the plaintiff to advance the arguments as he did including that of he being automatically the kin tiu son and alternatively that he was the proper person to be taken as an adopted kim tiu son by the branches of his two deceased uncles. It was common ground that except as a kim tiu son, as the only son of his late father the plaintiff could not be adopted out of his own family altogether.

10. For the defendant, it was maintained that the plaintiff's father had been adopted out of the family long before he was born as was the case of his other uncle, Yau Kwok Piu and that, therefore, only Yau Kwok Hung remained in the family of Yau Tung On. Hence, Yau Kwok Hung's branch was allegedly entitled to all the properties of Yau Tung On, deceased. On the force of his alleged adoption by Madam Shum in 1948, the defendant claimed that he was entitled to the properties of the late Yau Kwok Hung on whom all the properties of Yau Tung On devolved.

11. The defendant further argued that even if the plaintiff had been available for a Kim tiu adoption, Madam Shum would have had to play her role in the selection of a successor and that until the completion of the process of selection, there was no telling whether a kim tiu son or a mere adopted son would be preferred and who the successor would be.

12. The defendant relied also on limitation and equitable lathes.

13. Of these multifarious issues, I propose to examine first the relevant aspects of Tsing law and custom. Reference was made to section 13 of the New Territories Ordinance, which is concerned with "Chinese custom or customary right affecting land" in the New Territories, such as those affecting Tso land or Tong land. In the instant case, as the last of the personalities, being persons of the Chinese race domiciled here, died in 1955 before the passing of the Intestates' Estates Ordinance in 1971,⁽¹⁾ which lays down a universal code of intestacy for Hong Kong, Tsing law and custom would govern these hotly contested adoptions including kim tiu adoption in relation to succession quite independently of section 13 of the New Territories ordinance.

14. In his views on adoption set out at page 201 in Appendix 9 of the 1953 Committee Report on "Chinese Law and Custom in Hong Kong" (hereinafter called "the 1953 Committee Report"), having reminded himself of the literal meaning of "kim" for concurrent and "tiu" for ancestral temple or shine, Dr. Vermier Chiu defined these two characters combined as the responsibility "for the worship of two ancestral temples as well as for the propagation of the future generations of the two branches of the family". Both in the 1953 Committee Report and "Marriage Laws and Customs of China''⁽²⁾ certain passages attributtable to Dr. Chiu may be taken as suggesting that a kim tiu adoption must occur in the lifetime of the adoptive father, but it is quite evident that Dr. Chiu gave us an example of only an by a living father.

15. In an article entitled "Chinese Law in Hong Kong: The Choice of Sources", ⁽³⁾ Mr. McAleavy hammered home a man's moral obligation to procure, by birth or adoption, an heir based on the Confucius' concept of ancestral worship in "filial piety" and Mencius' condemnation of lineal extinction as the most unfilial act. The learned author was at pains to point out that the "adopted person must be a male from the same clan, ..... one generation junior" and that he "must not be the only son whose adoption would deprive his parents of a successor". That the Tsing Code tolerated the adoption of an only son in the person of an only nephew was, so Mr. McAleavy explained, to "preserve the line" of a brother in double succession called kim tiu. The prohibition against adopting an only son was said to have been first relaxed to continue a senior family branch through an only nephew in obedience to an obligation of deference towards an elder brother in Confucius teachings ⁽⁴⁾ Mr. McAleavy made no mention of such relaxation ever ceasing at the death of the elder brother. He also highlighted "the duty of ritual commemoration" of ancestors by leaving "a successor behind to venerate their memory". One would then have expected Mr. McAleavy to sound at least a warning note if a posthumous kim tiu adoption had been impossible or contrary to law.

16. Searching for more guidance in an earlier publication of Mr. E.T.C. Werner,⁽⁵⁾ there again the author discussed a Kim tiu adoption by a living adoptive father with references made to the varying mourning periods for the adoptive father and the natural father. When Mr. Werner dealt with a posthumous son, "filius posthumus", he did not exclude from it the kim tiu situation; nor did he suggest that the same could not, for any reason, be pursued after the demise of the childless uncle.

17. Kim tiu was a device for overcoming the difficulty of adopting an only nephew so that concurrent representations might be provided for through the closest relation. It was described accurately by Mr. Leonard Pegg in his article of "Children in the Family Law of Hong Kong" ⁽⁶⁾ as "an unusual form of adoption". Unusual it may well be, but nevertheless it is clearly an adoption. ⁽⁷⁾ Mr. Pegg observed that a kim tiu son "must be an adopted son of his paternal uncle". That again may be taken as suggesting a living adoptive father for a pre-requisite.

18. Mr. Werner, Dr. Chiu, Mr. McAleavy and Mr. Pegg all addressed themselves to a kim tiu situation with a living adoptive father. After all, there existed in any man "the strongest moral obligation" to beget offsprings or adopt a successor. That accounts for Mr. Miu's view that adoption was usually done in the lifetime of the adoptive father if he was of Age. But none of them purported to exhaust every aspect of adoption.

19. Posthumous adoption was admittedly permissible. Itself a form of adoption, posthumous kim tiu adoption has never before been sought to be impugned as being impossible or unlawful. Mr. Hu, the Chinese expert for the defendant, was merely unsure if posthumous kim tiu could arise.

20. At page 24 of his translation of and commentary on the Tsing Penal Code, Jamieson stated the general rule that no successor could be adopted for "a son dying young and unmarried, (thus dropping) out of the genealogy altogether" and having "no tablet in the ancestral hall". But Jamieson cited as an exception to this general rule "the case of two brothers dying leaving only one son between them"; "in such a case with the consent of the Elders in writing (that) son (could be) appointed to succeed both families". That is a demonstrably clear example of a posthumous adoption of a kim tiu son to continue the line of his deceased uncle in addition to that of his natural father. Mr. Hu accepted this but only as exclusively referable to a posthumous kim tiu adoption in the case of "a son dying young and unmarried". However, Jamieson did not so limit the use of a posthumous kim tiu situation.

21. A kim tiu adoption, though unusual, was an adoption to serve a special cause under the Tsing custom which accepted posthumous adoptions. In view of the intense desire of commemorating a deceased ancestor and propagating his line, there would seem to be no compelling reason for depriving any clan of the enjoyment of a kim tiu adoption and its convenient incidents after the death of an heirless brother. The need for salvaging a line from extinction was so overwhelming that drastic measures had been known to have been resorted to. An illustration was vividly given by Dr. Chiu ⁽⁸⁾ of an illict insemination of a kim tiu wife by a virile male servant in a surreptitious manoeuvre metaphorically put as "Hoi Hail Moon Fang Fung". It would seem almost sinful to bar a totally respectable means of continuing a family line through the medium of the nearest kin in the form of a posthumous kim tiu adoption of an only nephew. In this respect, I accept the opinion of Mr. Miu that a kim tiu situation may be created after the death of a childless brother.

22. Formality and validity of a kim tiu adoption will have to be separately examined. Jamieson laid great stress on the importance of a public ceremony at which the adoptee joining the new home "with the cognizance of the whole family" made "obeisance before the ancestral tablet in token of his admission". Without such "a ceremony customary in important family events," "no change in family life would be effectual." ⁽⁹⁾ In 1883, Judge Russell reported on Chinese adoptions thus: ⁽¹⁰⁾ "The principal members of the clan are notified of the fact of adoption." Dr. Chiu also favoured a formal ceremony^{. (11)}

23. In his book "An Outline of Chinese Civil Law",⁽¹²⁾ published, in 1925 before the promulgation of the Republic Civil Code, Mr. Robert T. Bryan referred to the general practice of employing a written document or a contract for adoption, but both he and Mr. Pegg ⁽¹³⁾ agreed that any clear evidence would suffice. Judge Russell, in his said report, said of adoptions among near relatives as requiring no "deed of sale", and for more distant candidates the learned judge commented that a deed of sale was "almost invariably" though apparently not always, executed.⁽¹⁴⁾

24. Documentary evidence of an adoption was decidedly not vital, but a public ceremony befitting the occasion must be held. I cannot accept Mr. Miu's evidence that Kim tiu adoption could arise automatically without any more ado upon the death of all the brothers leaving only one son.

25. Disagreement was also voiced on the selection of a proper successor, the widow's role in his adoption and the necessity for a kim tiu son taking more than one wife to keep the lines distinct. I will take these subjects in the same order.

26. As for the proper successor for adoption in general, Jamieson's translation of "Li 1" under section 78 of the Tsing Code for "appointing a successor to the family" reads:

"When any person is without male children of his own, one of the same kindred of the next generation may be appointed to continue the succession, beginning with his nephews as being descended from the nearest common ancestor and then taking collaterals, one, two and three degrees further removed in order, according to the table of the five degrees of mourning. If all these fail, one of the Kindred still further removed may be chosen, and finally any one of the same family name".⁽¹⁵⁾

27. In plain language, the closer relative was to be preferred. According to Jamieson, there existed two ways in which a person of the proper class could be passed over or rejected, namely "bad blood" before adoption or misconduct after adoption. ⁽¹⁶⁾

28. Mr. Hu advised that when a person sharing a common ancestor was five degrees collaterally removed by marriage or eight degrees collaterally removed by blood, any relative including one of a different surname could be selected for adoption. In addition, as I understood him, Mr. Hu's opinion was that once a prospective adoptor turned exclusively to the classes beyond these remote degrees for adoption, the stringent rule for priority or preference could be overlooked. It would seem somewhat absurd that the orderly choice by closeness of relationship, which must generally be adhered to for the immediate clan members, could be wantonly flouted at without cause in favour of groups of more remote relatives. There was no real warrant or foundation for such an arbitrary escape from the general rule of preference through a mere leap to the more distant classes. Mr. Hu also could offer no in-depth explanation for the conflict created by the possibility of adopting a person of a different surname with the "Lu"  under section 78 of the Tsing Penal Code, whereby the adoption of a child of a different surname with the exception of a foundling under three, was punishable with 60 blows. ⁽¹⁷⁾ However, Mr. Hu was not alone on adoptions of strangers, which has the support of the observations of Mr. P.L. Lam and the late Sir C.Y. Kwan on customary adoptions in the 1953 Committee Report. ⁽¹⁸⁾Judge Russell also accepted the adoption of a stranger of a different surname, ⁽¹⁹⁾ but Dr. Chiu took a different view. ⁽²⁰⁾

29. In the consideration of the formality or essential ingredients of an adoption, one must be prepared to give allowance to the abandonment or non-observance of some known ancient rituals in the passage of time and try to judge whether the occasion was sufficiently representative of a customary ceremony for an adoption prevailing in all the circumstances. In line with the gradual shift of attitude towards tolerating non-compliance of rituals or even marriages between persons of the same surname, it is not difficult to understand the ready acceptance of adoptions of a stranger of a different surname. ⁽²¹⁾

30. Mr. Hu testified that the defendant was 12th degree removed and could be adopted over the plaintiff, the closest relation of Yau Kwok Hung, deceased. Mr. Hu's formula of the exclusive groups beyond "5th degree removed by marriage and 8th degree removed by blood" for evading the general rule of preference was said to emerge from Article 983 of the Republic Civil Code, which regulated degrees of consanguinity and affinity for marriages of the Nationalists' Republic. Mr. Hu maintained that permitting intermarriages between members beyond these degrees had been too well entrenched as a custom to require its codification in the Ta Tsing Lut Lei. Such permissive latitude for marriages, so Mr. Hu explained, was finally included in Republic Civil Code in its Article 983 which was by analogy extended to adoption by a Judicial Yuen explanation No.761/32^.(22) Article 983 allowed inter-marriages of relatives beyond these degrees, and the Judicial Yuen explanation seemed to expand the same exoneration to include only any justifiable adoption out of the proper preference. What need be taken note of is that the judicial Yuen explanation did not seek to condone every deliberate disobedience to the usual preference among close relations. It merely liberalised adoptions when they, for good causes, reached these remote degrees. Mr. Hu further suggested that in fact the same laxity had likewise been practised in adoptions as a matter of custom from time-immemorial.

31. The force of a Judicial Yuen explanation in China was explained by Dr. William S.H. Hung in these terms:

"For years (after the Republic), court's decision were guided by custom and usage, as well as by decisions and explanations of the Supreme Court, which, being very carefully and skillfully done, were widely quoted all over the country, and still have the great influence of legal principles at the present time".⁽²³⁾

32. Thus, Mr. Hu's opinion was: Whilst this settled custom for allowing inter-marriages among remote relatives was codified in Article 983, recognition of the same time-honoured custom was accorded to adoption tortuously by the said Judicial Yuen explanation, and only by an analogy.  It would not be inaccurate to claim that Article 983 in fact enlarged on existing customs for marriage. Chung King Pui, the Assistant Secretary of Chinese Affairs wrote in 1950 that during the eve of the Tsing Dynasty, marriages within prohibited degrees were somewhat tolerated and that although the Republic had by legislation acknowledged such toleration, the Hong Kong Chinese still viewed inter-marriages between persons of the same surname as "a peculiarity if not a disgrace". ⁽²⁴⁾ Dr. Chiu observed that despite the liberal approach of the Republic Code in accepting marriages in defiance of the proper generation consideration, "the conception of the incompatibility of marriage between persons of senior and junior generations (still had) a strong hold upon the Chinese people."⁽²⁵⁾ These passages serve as a reminder that pre-existing customs tolerating inter-marriages of close relations within certain prohibited degrees were not truly as extensive as the exemption introduced by Article 983.

33. Another question immediately leaps to mind is: If, in fact, there had been in existence such alleged long-standing custom for adoption, why would not the Republic Code have similarly codified it? Then, there would have been no need to trouble the Judicial Yuen with a decision for extending this custom for marriage to adoption.

34. In his "Chinese Family Law", Mr. Tai Yim Fei referred to "rules and actual practice ..... in the old laws and old customs ..... about the adoption of grandchildren". It is, I think,   reasonably clear that in exceptional circumstances, the proper generation consideration for adoption had occasionally been overlooked, but there was no evidence of such a sweeping custom for general application in adoptions beyond those degrees existing long before the Republic. The Judicial Yuen mentioned none. If, in fact, the same had prevailed in adoptions as it was said to have in marriages, it would have been most   indirect of the Judicial Yuen   to draw the analogy on account of "both adoption and marriage (sharing) legal the same legal reasoning" or the "relationship (in both being) in principle the same" rather than seeking to resont to that very cuotom.⁽²⁶⁾

35. In my view, it has not been established that there was such a custom for relaxing the permissible degrees in adoption. The proper generation consideration must, in the Tsing period, be generally observed and could not be disregarded without cause.

36. I will pass then to consider the widow's right, if any, in an adoption. It has been, time and again, suggested that the surviving widow's consent was required for or significant in the selection and adoption of an heir.⁽²⁷⁾ In reality, the surviving widow would be the mother and only parent in a posthumous adoption. "As she is to stand as Mother to the adopted son it may be said that any choice must have her approval at least".⁽²⁸⁾ The Committee appointed by H.E. the Governor in 1948 recommended that in posthumous adoptions, the consent of the surviving widow should be made a condition ⁽²⁹⁾ precedent. That presupposed the existence then of some right of dissent under the Tsing custom.

37. What was the role played by a surviving widow in a posthumous adoption? Ngai Chung Shi v. Ngai Yee Mui⁽³⁰⁾ provided an instance of an adoption by the surviving widow. In his said article, Mr. McAleavy discussed the wife sharing the husband's status in the family thus:

"During the husband's life, the rights attached to that status were exercised by him alone, but after his death, many of them passed to his wife. Among these, until any son of the marriage reached maturity, was the right to administer the family estate, and, if there should be no son to appoint a successor."⁽³¹⁾

38. Dr. Tung was of the opinion that prior to 1929, a surviving widow had the "first right to nominate an adopted heir". ⁽³²⁾ It is difficult to formulate any precise rule as to how far an adopter's wish may override the proper sequence of choice of a successor, particularly when this subject was not or not fully canvassed in these proceedings. "Generally it would seem that (the selector) cannot pass over a whole class to choose from a more remote" one subject to the two known exceptions of "bad blood" before adoption and "misconduct" after adoption. Jamieson put it no higher than that "the widow would seem to have a considerable voice in the selection". ⁽³³⁾ It would be quite inappropriate to express any concluded view on the nature or scope of the surviving widow's right even only as between the plaintiff and the defendant. But I will say at least this much: Madam Shum does have a role to play, and the question of selecting a proper successor should not be decided in her absence.

39. Lastly, I come to the query as to whether the kim tiu son must marry a wife for each line. Even if the taking of as many wives as the branches of a family to which he was to succeed had been a prerequisite in the Tsing custom, it would have been, as Mr. Miu rightly put it, only a future obligation and would not have impaired the status of the kim tiu son at the time of his adoption.

40. Dr. Chiu opined that it was merely a privilege for a kim tiu son to marry one wife for each branch. ⁽³⁴⁾ This view of Dr. Chiu was accepted by Mr. McAleavy as "an accurate statement of what is, in fact, the customary law". ⁽³⁵⁾ But on the force of a 1821 judicial decision made in the first year of the reign of Emperor Tao Kuang (1821 - 1851 A.D.) which affirmed kim tiu as only a custom tolerated by the law against bigamy, Mr. McAleavy criticised Dr. Chiu's reference to kim tiu as being a law made by Emperor Ch'ien Lung. But Dr. Chiu's classification of kim tiu as a law rather than a custom is, at least, fortified by the definitions given in the "Ciyuan"⁽³⁶⁾ and "Cihai",⁽³⁷⁾ where kim tiu is said to have been specially enacted as a "Li" or Regulation during the reign of Emperor Ch'ien Lung (1736 - 1795 A.D.). The Tsing Penal Code was first promulgated in the 5th year of Emperor Yung Chen (1728 A.D.), and periodical revision for a general amendment every ten years and a minor one every five was decreed by Emperor Ch'en Lung in the first year of his reign (1736 A.D.).⁽³⁸⁾   The 1821 case cited by Mr. McAleavy was apparently decided on the law then existing, which could have removed by revision the institution of kim tiu as a "Li". This is highly speculative, but Dr. Chiu's historical origin of kim tiu has the firm support of the definitions in "Ciyuan" and "Cihai", and his opinion of a kim tiu son's privilege and not obligation to take more than one wife was shared by Mr. McAleavy despite his criticism.

41. According to Jamieson's commentary, ⁽³⁹⁾ a kim tiu son "must have a separate wife in each (household) or more properly a wife in one, the first married, and a concubine in the other." Mr. Werner sided with Jamieson in stating that the only son of a kim tiu son "had also to marry two wives". ⁽⁴⁰⁾ Mr. Heenan, the then Attorney-General and Mr. McDouall, the then Secretary for Chinese Affairs, in their report on Chinese Marriages in Hong Kong, "The McDouall-Heenan Report 1965", reproduced the views of some of the then defenders of kim tiu marriages: "Kim tiu marriages were valid under Tsing law only if all wives were married on the same day and at the same time." ⁽⁴¹⁾ It must have been inferentially argued that as kim tiu marriages could not be validly contracted at any time, a kim tiu son might not validly enter into a subsequent marriage. I should also mention the different stand taken by Dr. Chiu that kim tiu "marriages (could) take place simultaneously on the same day or, as in the majority of cases, on different days". ⁽⁴²⁾

42. According to Mr. McAleavy, up to about 1963 "kim tiu (was) apparently not encountered too frequently in the Colony". ⁽⁴³⁾ Apart from the early authors, the more recent publications categorised kim tiu marriages as a privilege rather than an obligation. The Tsing law and custom as applied to Hong Kong is forever changing. I accept the views of Dr. Chiu as shared by Mr. McAleavy and Mr. Miu that nowadays it is but a privilege for a kim tiu son to marry more than one wife. Even that so called privilege seems to have been eroded by section 6 of the Marriage Reform Ordinance, Cap. 178 and section 14(1)(d), the Legitimacy Ordinance, Cap. 184. To-day, a kim tiu marriage no longer enjoys legal sanction and the issues of a kim tiu marriage will be illegitimate. If the to-day's kim tiu son had a duty to take more than one wife, the current legislation withdrawing recognition from kim tiu marriages would render nugatory any attempt at legitimate propagation through such means. In this day and age, a kim tiu marriage could serve no real practical purpose.

43. I do not propose to dwell on the wide-ranging aspects discussed in the evidence of both recognised Chinese experts, Mr. Hu and Mr. Miu. Their views were almost exclusively founded on their learnings rather than their personal experience. Suffice it for me to say that I accept their respective evidence only insofar as it is not inconsistent with such state of the Tsing law and custom relevant to this case as I have held to be operative.

44. Having disposed of Tsing law and custom, I will now come to the facts:  The defendant relied on circumstantial evidence for the alleged adoption of Yau Kwok Yan by Yau Ma Luk. For the defendant, Mr. Yau Tung (DW2) gave evidence to the effect that when he was three or four years old, Yau Kwok Yan was given to Yau Ma Luk by way of adoption. He called in aid what was allegedly told him by his late grandfather and also the fact that Yau Kwok Yan left Hong Kong for South East Asia. In addition, Mr. Yau Tung spoke of the funeral ceremony of Yau Ma Luk's widow at which Yau Kwok Yan was seen carrying the funeral flag and buying water. But he agreed that even a near male relative could have performed the same chores in the absence of an heir. Lastly, Mr. Yau Tung drew attention to the presence of the plaintiff's mother in the village at the time when the defendant applied for succession to the properties of Yau Tung On, deceased. It is common knowledge that the plaintiff's mother was an illiterate. The evidence from Mr. Yau Tung was mostly hearsay and wholly inconclusive. Moreover, there was no allegation or evidence of any adoption ceremony.

45. The same may be said against Mr. Yau Yam Tai's evidence on the alleged adoption of Yan Kwok Yan. He saw the plaintiff's late father leave the village but was allegedly fed the rest of the information by the Elders.  Also, he claimed to have seen Yau Kwok Yan carry the funeral flag and buy water at the funeral of the widow of Yau Ma Luk. He was also silent on any ceremony.

46. When the widow of Yau Ma Luk erected a house in Cheung Shue Tan village, she was said to have the house put in the names of Yau Kwok Hung and Yau Kwok Piu but not that of Yau Kwok Yan who had then allegedly become a son by adoption. No evidence was given that either the plaintiff's late father or the plaintiff himself had ever applied for the succession to this house.  Mr. Yau Tung disclosed that Yau Kwok Piu's wife made a gift of her share in this house to the plaintiff's mother.

47. The defendant also sought to make capital of the presence of Yau Kwok Piu's widow and the plaintiff's mother at the District Office when he applied for succession to the properties of Yau Tung On, deceased.  According to the defendant, the plaintiff's mother, Li Kiu, in fact, urged him to proceed with the application for succession to the properties of Yau Kwok Hung, deceased apparently for settling family matters.

48. It was pressed upon this court that the plaintiff's departure from Yau Tung On's family was evidenced by his absence from all formal worshipping ceremonies arranged by himself in commemoration of the late Yau Tung On and his deceased wife and the late Yau Kwok Hung. The plaintiff made some sparse allegations of unannounced personal visits for ancestral worship.

49. It seems reasonably clear from the evidence that the plaintiff's mother was more keen in having the properties divided than, in fact, making any concession to the defendant's claim. According to Mr. Yau Tung, she requested the defendant "to fix things up" at the District Office. The properties of the late Yau Tung On, deceased had already been in the charge of the branches of his three sons, some of which were actively farmed.

50. No evidence was led in support of the alleged adoption of Yau Kwok Piu by Yau In Yuk.

51. The plaintiff himself had heard of no adoption out of the family of either his late father or Yau Kwok Piu. The plaintiff's sister, Yau Tai Ying (PW1) who was born in Sandakan and returned to Hong Kong at 6 together with her parents, also denied any alleged adoption of her late father by Yau Ma Luk. The plaintiff had no personal memory of his late uncle Yau Kwok Piu or his own father, but he testified that after his grandfather's death, his properties were farmed by the three branches: One share by his widowed mother, another share by the widow and daughter of Yau Kwok Hung and a further share by the widow of Yau Kwok Piu. Had Yau Kwok Piu and the plaintiff's late father, Yau Kwok Yan been adopted out of the family, farming by these other two branches would not have been agreed to or acquiesced in. Yau Tung On died some three years after Yau Kwok Yan, the plaintiff's father. If in fact Yau Kwok Yan had left his family, one would have expected Yau Tung On to ensure that  no properties would go to his branch at all, even just for farming. Similarly, like measures could have been taken against the branch of Yau Kwok Piu, then surviving.

52. The plaintiff's evidence of ancestral worship was vague, but it is perhaps understandable that after a de facto division of family properties in the form of independent farming, the descendants in this day and age can be less than enthusiastic.

53. Mr. Yau Fai, alias Yau Fai Tai (PW4) told the court that he knew of no adoption out of the family of Yau Kwok Piu or Yau Kwok Yan. The daughter of Yau Kwok Hung, Madam Yau Lin Tai (PW5) also confirmed that she had never heard of such alleged adopting out of the family of Yau Kwok Piu and Yau Kwok Yan.

54. Madam Shum Ngau Mui, the widow of Yau Kwok Hung, deceased was not called as a witness on account of her advanced age.

55. On one hand, we have highly unsatisfactory and mostly indirect evidence of the alleged adoption out of the family of Yau Kwok Yan, with no evidence at all for that of Yau Kwok Piu, given by and on behalf of the defendant. On the other hand, this court was told of the farming of Yau Tung On's properties by the three separate branches of his sons, the omission of the plaintiff's father from the house registration of his alleged adoptive mother, the transfer of apparently only the share of Yau Kwok Piu in this house to the plaintiff's mother by his widow, Yau Cheong Kiu and only as a gift, and the request of the plaintiff's mother to have matters "fixed up" in the defendant's application to the District Office. Furthermore, it would seem that neither the plaintiff's father nor the plaintiff ever applied for the succession to this house erected by the widow of Yau Ma Luk. Evaluating these versions from the adversaries in these proceedings against the known background, I prefer that given by and for the plaintiff. I find that, in fact, there was no such adoption of the plaintiff's late father or uncle. In any case, in the absence of any allegation or evidence of a public ceremony, there could have been no valid adoption.

56. Thus, none of the sons of the late Yau Tung On, deceased had been adopted out of his family, and his properties devolved upon his death on Yau Kwok Hung, Yau Kwok Piu and the plaintiff as the only son of Yau Kwok Yan who had predeceased Yau Tung On.

57. It is claimed by the defendant that he was adopted by Shum Ngau Mui in 1948, one year after the death of her husband, Yau Kwok Hung. The plaintiff himself was told by his mother that Shum Ngau Mui never consulted her on or made any reference to her desire to adopt. That is hearsay and can serve no more than showing what allegedly was said to the plaintiff. The defendant again resorted to the evidence of Mr. Yau Tung and Mr. Yau Yam Tai for his own adoption.

58. The defendant himself maintained that he was approached about one month after he returned to the Cheung Shue Tan village by Yau Lin Tai, the daughter of Madam Shum, Yau Yam Tai, the nephew of Madam Shum and Yau Kwok Piu. He said that he was then about 24 and a dinner of two tables of guests was given, at which Yau Kwok Dai, Yau Loi Hing, Yau Shek Loi, Yau Kwok Yiu i.e. the father of Yau Yam Tai, Yau Miu Tai and Yau Kwok Piu attended. All except Yau Miu Tai are dead. Yau Miu Tai is now 90 and blind. Of course, according to the defendant, he and Madam Shum were also present. The defendant further testified that Yau Kwok Piu took out an adoption document for signature and it was signed. A copy of it was produced as "D3". After the ceremony, so the defendant continued, Yau Kwok Piu declared him to be the son of Shum Ngau Mui and he called her "mother".

59. The presence of Yau Tung at the dinner was not mentioned by the defendant, but Mr. Yau Tung himself said that he attended the alleged adoption feast in the place of his mother who was invited by the defendant and Yau Kwok Piu. However, Mr. Yau Tung said that he left after the meal and was not a witness to what transpired later.

60. The defendant also claimed that Yau Lin Tai, the daughter of Madam Shum wept after the adoption and called him "elder brother".

61. Mr. Yau Yam Tai claimed to have played a bigger role. He said he was present at the dinner and witnessed the signing of the adoption document. However, he was not even named by the defendant as a guest attending the dinner. After all, his late father was said to be in attendance.

62. Both Mr. Yau Tung and Mr. Yau Yam Tai supported the defendant's application to succession. Mr. Yau Tung maintained that he only signed his name to certify the defendant as coming from the same village. He apparently did not seek to rely on the alleged adoption document if it had been shown to him, and there was no conceivable reason why the same had been withheld from him.

63. As against that, we have the plaintiff's sister, Yau Tai Ying (PW3) who testified that she had always been on good terms with Madam Shum but had never been told of any adoption of the defendant. She maintained that she was only told by Madam Shum that the defendant was living there. The real significant is not in the truth of the alleged conversation but in the lack of mention of the alleged adoption in it.

64. Yau Fai alias Yau Fai Tai (PW4) had never heard of any adoption banquet nor the alleged adoption of the defendant.  Contrary to the evidence of Mr. Yau Yam Tai, Yau Fai also told the court that neither he nor his brother, Yau Sun Choi had ever been asked to become an adopted son of Madam Shum. The plaintiff also claimed that he was likewise never asked to be adopted.

65. The defendant's sister, the daughter of Madam Shum, Madam Yau Lin Tai (PW5) also testified that her mother had never spoken of the adoption of the defendant to her. She agreed that she never visited her mother in the village for 8 years, but she explained that it was because the defendant threatened to use violence on her if she did. She also explained why she called the defendant "elder brother". She claimed not to be aware that the defendant sold any land or that her father was indebted to creditors at the time of his death. She displayed considerable animosity towards the defendant. Her evidence seemed to be exaggerated and must be received with caution.

66. A statement tendered was from a deceased witness, the late Mr. Yau Kai Tai, who passed away on the 7th July 1982. He was distantly related to the family of the late Yau Tung On. In his statement; he claimed that he thought the defendant was only a tenant living with Madam Shun in the house of the late Yau Kwok Hung. He left the village to work as a watchman with the Chinese University in 1972, but he had not heard of any application for succession by the defendant nor seen any notice therefor posted in the village. The defendant applied in 1963 and 1970 for the succession to the properties of the late Yau Kwok Hung and the late Yau Tung On respectively, and the procedure for posting of notice was alleged to have been duly observed.

67. The Cheung Shue Tan village consisted of about 30 families in 30 houses. An adoption of a person into a family must be an event known to most if not all. We have, in this case, diagonally opposite evidence from both sides. The clan stand divided, and their antagonistic versions cannot be both correct. It would net be wholly illogical to approach this case from the tangible proof, that is to say, the alleged adoption document.

68. The adoption document was allegedly lost by the daughter-in-law of the defendant, Madam Wong Ho Fong alias Wong Yuk Fong (DW5). She explained: On the instructions of her father-in-law, she obtained the release of the original adoption document from the defendant's solicitors against her receipt: she handed the same to her father-in-law for showing to persons interested; she was subsequently handed back the original for its return to the solicitors; on the day before the Mid-Autumn Festival i.e. the 20th September 1982, by pre-arrangement she arrived at the solicitors' office but 5 minutes late at five past nine; she did not see fit to wait for the officer-in-charge even though she arrived just after the appointed time; she did not claim to have made any enquiry in the office of the solicitors; she decided to leave for the market to buy food and lost the document on her way there.

69. She claimed to have had no idea that the document was important until she was reprimanded by her father-in-law although she had td sign specifically for the return of it by the solicitors.

70. Both Madam Wong and the defendant maintained that they had no knowledge of the plaintiff disputing the document. However, after inspection of the document on the 3rd June 1983 by the plaintiff and his solicitor, a notice of non-admission was served on the 6th June 1983. According to the solicitor for the defendant, Miss Christine Chow (DW4), she in turn informed the defendant of the service of the notice of non-admission a week or two thereafter.

71. Whilst his daughter-in-law, Madam Wong told the court that the document was lost on the 20th September 1983, a day before the Mid-Autumn Festival and some six days before the trial, the defendant claimed that the document was lost two months ago. The defendant testified that he had the document for one night, but his daughter-in-law retrieved it from his solicitors on the 13th September and did not allegedly lose it until the 20th, 7 days later.

72. The defendant also explained to the court how the document was kept: Yau Kwok Piu had, he said, custody of the document for about three years. Then, it was handed over to him, and he had kept it in a box for wrist-watch for years.  He drew the size of the box in exhibit "D5". But according to the plaintiff's unchallenged evidence, there was no horizontal fold in the original of the alleged adoption document. It is improbable that the original of the alleged elongated adoption document said to have been kept in a squarish box the size of "D5" could have been left with no horizontal fold.

73. Both the plaintiff and his solicitor, Mr. Fok were surprised to find the original document suspiciously new with the gold oriental pattern printed on it staying on remarkably well. Mr. Fok found these features unusual for a document supposed to date from 1948. The plaintiff was able to acquire a piece of paper of very similar quality in the Tai Po market.

74. I have no hesitation to and do find that the original of the alleged adoption document was not genuine and that it was manufactured quite recently for the purpose of these proceedings. I do not accept the defence version of its loss.

75. An adoption of a member into a family in a small village like the Cheung Shue Tan must have been a matter of common knowledge, by and large, to its residents. An attempt to mislead this court by an alleged adoption document does not necessarily follow that false evidence must also have been given on the alleged adoption and adoption ceremony. However, the credibility of the defendant and Yau Yam Tai has been adversely affected by their maneuvre to introduce it.

76. Mr. Yau Tung who allegedly attended the dinner left earlier under the pretext that the rest of the evening was private.  One would have thought that the adoption ceremony was the main event of the evening, to which his mother was allegedly invited, and he claimed to represent her at the dinner.

77. In conclusion, I find that the defendant has failed to establish such adoption or its ceremony. I prefer the evidence given by and on behalf of the plaintiff pointing to the absence of this allegedly adoption of the defendant, despite the animosity harboured by Yau Lin Tai and the loss of the opportunity for cross-examination of the deceased witness, the late Mr. Yau Kai Tai.

78. I pass finally to consider limitation and lathes raised by the defence. The defendant farmed Lot 196 and 197 and another Lot, the number of which he could not remember. Some other portions of land belonging to Yau Tung On, deceased were farmed by the other two branches. The defendant's registration in the District Office was not on account of any alleged possessory title. After all, the widow of Yau Kwok Hung, Madam Shum Ngau Mui has always had the right to remain in her portion of Yau Tung On's land and the defendant merely resides with her. There was also no or no clear evidence as to precisely what land the defendant claimed to have been in adverse possession of, particularly during the lifetime of his alleged adoptive mother, Madam Shum.

79. The plaintiff explained his delay in instituting this action. I accept his explanations and delay was not unreasonable. "Lathes", so states Spry's "Equitable Remedies" 2nd edition at page 247: "is established when two conditions are fulfiled. In the first place, there must be unreasonable delay in the commencement or prosecution of proceedings; in the second place, in all the circumstances, the consequences of delay must render the grant of relief unreasonable or unjust."

80. The plaintiff testified that he came to be aware of a possible claimant in the person of the defendant for succession to the properties of his deceased uncles, his late father and his late grandfather in 1978. Bearing in mind the District Office's practice and procedure as to posting as given by PW2, Mr. Leung, the Assistant Registrar, Class II of the Tai Po District Office, I accept the evidence given on behalf of the plaintiff, in particular that from the late Yau Kai Tai, that they saw no posting of notice of defendant's applications. I find that the plaintiff had no notice of any of the defendant's applications for succession earlier than 1978.

81. The plaintiff further explained that after his discovery in 1978 he immediately demanded the return of properties and proceeds from the defendant, he consulted solicitors, and he tried to raise funds in Hong Kong by selling his house and more in London, and that subsequently in September 1981, he duly commenced this action against the defendant.

82. The defendant demolished the house of Madam Shum in 1979 and replaced it by the present two-storey house at the cost of $140,000 to $150,000. The plaintiff had, by then, complained and was in active preparation for the pursuit of his remedies. The defendant arranged his affairs in the awareness of such claim or dispute.

83. The plaintiff is not seeking to recover the plots of land disposed of by the defendant in his capacity as registered successor although registration is being and has throughout been challenged.   The plaintiff is merely demanding the return of the proceeds. Hence, third-party interests would not be affected.

84. Delay on the part of the plaintiff has, in my view, been explained, and in all the circumstances, none of the consequences of delay can be said to render the grant of relief unreasonable or unjust.

85. To summarize: There was no adopting out of the family of the plaintiff's late father and uncle. The plaintiff did not automatically become a kim tiu son of his deceased uncles despite his status in the family of the late Yau Tung On. He is the closest relation of the proper generation most eligible for a  kim tiu adoption by Madam Shum Ngau Mui as well as for the branch of the family of Yau Kwok Piu, deceased, but it is at least arguable that Madam Shum as the surviving widow would have some influence over the selection and adoption of a successor to the properties of her deceased husband, Yau Kwok Hung. As for the branch of Yau Kwok Piu, deceased, an example of adoptions by a family council was given in a case ⁽⁴⁴⁾ decided in 1954. The scope and extent of their respective role were not or not fully ventilated and should not be determined in their absence. Evidently, there may be well other interests which should be properly represented. The defendant has never been adopted by Madam Shum Ngau Mui as alleged and, therefore, is not a successor to the properties of Yau Kwok Hung, deceased or Yau Tung On, deceased. There was no adoption ceremony in 1948. He has been living with and supporting Madam Shum for 35 years, and I also accept that he paid certain debts for the estate of Yau Kwok Hung as well as some Crown rents, arranged for ancestral worship and was in charge of the marriage of her daughter Yau Lin Tai in 1949. There would seem to be room for a more exhaustive investigation into all the relevant circumstances, but one distinct possibility is that the defendant has been taken or recognised by Madam Shum as an "i-tze" in the sense described by Jamieson. ⁽⁴⁵⁾   If continually committed as an "i-tze" up to her death, the defendant may share in the distribution of the properties of the late Yau Kwok Hung. But the defendant was and is clearly not entitled to apply for succession to or register as a successor of the properties of Yau Kwok Hung, deceased or Yau Tung On, deceased.

86. The surviving widow of the late Yau Kwok Hung, Madam Shum is absent. No or no proper enquiries have been made of the existence, if any, of a family council or its equivalent for the appointment of a successor to the properties of Yau Kwok Piu, deceased. There has also been no or no sufficient search conducted for other possible candidates in either case. In these terms, at least, not all the parties interested in these customary successions have been brought before the court.

87. It was not suggested that Yau Tung On died other than intestate. Upon his death, it was common ground that succession was to be in accordance with Tsing law and custom. Therefore, as at his death, the properties of Yau Tung on, deceased devolved upon his two surviving sons and the plaintiff as the sole male descendant of his other son who predeceased him. In another words, upon the death of the late Yau Tung On, his properties left his estate and became vested in his successors. The same applied in the case of the surviving sons. Upon their respective deaths, their properties vested in their successors. Therefore, none of these estates had any further interest to be joined. The plaintiff himself claimed to represent the interest of Yau Kwok Yan's properties. The court was also informed that the District Office had evinced an intention not to participate.

88. As not all the proper parties are before me, save for the defendant's own status or entitlement or the lack of it, it would not be open to me to grant any orders or declarations binding other than the plaintiff and the defendant inter se. For most of the relief sought with reference to the plaintiff's own share in the properties of his late father, Yau Kwok Yan, by reason of the obstacles I am about to list, not even orders of like limited effect may be granted. These prayers are obviously different from those in respect to the entitlement and status of the defendant, which seem to affect no third parties and may be declared in appropriate terms.

89. In view of my decisions on fact and law and subject to what counsel have to say, I propose to grant the following declarations:

90. The plaintiff was and remains probably the most eligible candidate to be selected as a successor to the properties of the late Yau Kwok Hung as a kim tiu son and through him, a respective third portion of the properties of the late Yau Tung On. But for all the reasons I have given, there are or may be other candidates. It is true to say that none of the parties to these proceedings has made any assertion of the existence or availability of any other possible candidates, but it has not been categorically stated on oath or otherwise, basing on proper enquiries, that the class of candidates may be treated by this court as closed. It would not be, therefore, proper for me to make a declaration in terms of prayer (4), (5) or (6), particularly in the absence of Madam Shum or the equivalent of a family council, if any.

91. The plaintiff is entitled, at least, to a third of Yau Tung On's properties representing those devolving on his late father, Yau Kwok Yan. I would, if invited, be prepared to grant a declaration in very general terms that the plaintiff was and is entitled to be a successor to an equal third share of or in the properties of Yau Tung On, deceased. There is, however, no evidence as to precisely which third of these properties to which the plaintiff was or is so entitled. Thus, prayer (7) cannot be acceded to, particularly when it touches upon the properties of the late Yau Tung On and the late Yau Kwok Hung in their entirety. Moreover, when the defendant is, as in this case, to be declared not to be a successor to the properties of Yau Tung On, deceased or Yau Kwok Hung, deceased, it would be inconsistent or futile to order him to execute any transfer.

92. As the defendant was not and is not such a successor, he must be divested also of the proceeds of sale which he has received, and I propose to make a declaration that the sums of money paid to or received by the defendant as proceeds of sales of the properties listed in paragraphs 10 and 11 of the Statement of Claim are and have at all material times been held by the defendant upon trust for the plaintiff and the rightful successor or successors to the properties of Yau Kwok Hung, deceased and Yau Kwok Piu, deceased in equal shares. I also propose to order a payment over to the plaintiff by the defendant only a third of the said proceeds of sale with interest from the date of the receipt thereof until payment at 6% per annum.

93. There has been no evidence of any encroachment of the defendant on properties not legitimately farmed by the surviving widow of Yau Kwok Hung, deceased. Prayer (10) for mesne profits has, therefore, not been substantiated.

94. Lastly, I propose to order that the plaintiff is to have only one half of the costs of this action against the defendant.

Representation:

Miss Maria Yuen instructed by Messrs. Johnson, Stokes & Master for the Plaintiff.

Mr Warren Chan instructed by Messrs. Philip K.H. Wong & Co for the Defendant.