Re Ching Chi Yuen

HCMP000242/1973

IN THE SUPREME COURT OF HONG KONG

PROBATE JURISDICTION

MISCELLANEOUS PROCEEDINGS

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Coram: Mr. Registrar Mayo in Chambers.

Date of Judgment: 7th September 1973.

Mr. H. Hu, Counsel instructed by Messrs. C.C. Lee & Co., Solicitors.

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DECISION

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1. This Application is made in accordance with the provisions contained in Section 36 of the Probate & Administration Ordinance, Cap. 10. For the sake of convenience, I will set out Section 36 in full:-

"Where a person dies wholly intestate as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be necessary or convenient to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may, subject to section 25, appoint such person as the court thinks fit to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit."

Mr. Henry Hu, whose opinions on questions of Ching Dynasty Laws and Customs have been accepted on numerous occasions by the Courts, appeared for the Applicants in this case who are both elder brothers of the deceased who died on the 11th August, 1971, domiciled in Hong Kong. The Probate & Administration Ordinance did not come into operation until the 7th October, 1971, and Mr. Hu conceded that the law governing the administration of the estate was Ching Dynasty Laws and Customs. Exhibited to an Affidavit in support of the Application sworn to by the Solicitor having the conduct of the case, Mr. Henry H.K. Wong, is an expert Opinion given by Mr. H.C. Miu who is also an expert on Ching Dynasty Laws and Customs and whose opinion on Chinese Customary Law has also been accepted by the Courts. In his Opinion, Mr. Miu expresses the view that the Applicants, as the elder brothers of the deceased who died a bachelor, are the persons properly entitled to apply for a grant of Letters of Administration. Mr. Hu argued that he supported Mr. Miu's Opinion and was satisfied that the Applicants were the persons properly entitled to apply. Mr. Hu also referred me to Rule 21 of the Non-Contentious Probate Rules, which sets out the order of priority of persons entitled to apply for a grant. Mr. Hu referred me to the fact that the deceased had died a bachelor without issue and that the deceased's parents had pre-deceased the deceased. He therefore argued that in accordance with Rule 21(1)(iv) the Applicants would be the persons entitled to apply for a grant under the Non-Contentious Probate Rules. He further argued that in effect these Rules were retrospective as they were similar to the English Rules which he argued should govern such applications. The authority he cited in support of this proposition were the cases of Ho Cheng Shi v. Ho Sau Lam⁽¹⁾ and Wong Yu Shi and others v. Wong Ying Kuen⁽²⁾. Mr. Hu contended that these cases supported the principle that even where Ching Dynasty Laws and Customs applied to the estate, English law should govern the procedure for applying for a grant. While I accept that this contention is generally speaking correct, I would question whether it is applicable to the present Application. I do not think that a person's entitlement to apply for a grant could possibly be described as simply a procedural matter. Such a question goes to the root of the Application. In addition to this, I would make reference to the passage which cited on page 164 of The Law of Succession by Parry, Fourth Edition, on the question of persons being entitled to grants. For the sake of convenience I will quote the relevant passage:-

"It was a settled principle established by the ecclesiastical courts and followed by the Court of Probate that the right to the administration of the effects of an intestate followed the right to the property in them, or as it was shortly put, that the grant ought to follow the interest. (See In b. Gill (1828) 1 Hagg. 342)."

2. Before I consider exercising any discretion under Section 36, it is necessary for me to have regard to the rights of all persons who may be entitled to apply for a grant. Both of the Applicants have sons. None of these sons have either renounced their rights to apply nor have they been cleared off. The question which has to be determined is who has priority on the Application - the deceased's brothers or his nephews? Under the English law or Hong Kong law since October 1971, it is quite clear that brothers would have a prior entitlement. The position, however, is not so clear under Ching Dynasty Laws and Customs. I hold in the present Application that it is governed by Ching Dynasty Laws and Customs. I referred Mr. Hu to the passage which appears on page 19 of Chinese Family and Commercial Law by Jamieson. It reads as follows:-

"Whatover the origin may have been, the rule is well established that there must be no break nor overlapping in the continuity of the generations of a family's existence, and therefore, in default of male issue, brother's sons succeed in preference either to brothers themselves or to brother's grandsons."

Mr. Hu conceded that this was a correct statement of the law. He argued, however, that even though this proposition was correct, there were other principles which must be taken into consideration. He said that it was a well established principle of Chinese Laws and Customs that the pater familias of a family held all the family's property as trustee. He also informed me that if a grant was to issue to one of the Applicants' sons, there would be difficulties and differences between the two different branches of the family. While I agree that the position may not be entirely clear, I am satisfied that the interests of the nephews cannot be simply disregarded. I am also satisfied that the statement of the law on page 19 of Jamieson which I have referred to is a correct statement of the law and also sets out a well established principle of Chinese Customary Law, namely, that wherever possible property should pass down from one generation to another. For the reasons I have given, I dismiss this Application.

3. Dated the 7th day of September, 1973.

Representation:

Mr. H. Hu, Counsel instructed by Messrs. C.C. Lee & Co., Solicitors.

(1) (1920) 15 H.K.L.R. Page 35.

(2) (1957) H.K.L.R. Page 420.