Chiu Chung Leung Edward v. Lee Fu Wai & Another

HCMP1967/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1967 OF 2004

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BETWEEN

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Before : Hon Tang J in Chambers

Date of Hearing : 13 August 2004

Date of Reasons for Decision : 13 August 2004

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R E A S O N S  F O R  D E C I S I O N

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1.Madam Fan died on 3 August 200 aged 82.  She had been living in a nursing home for some time before her death.  The dispute is between the plaintiff, her son by Mr Chiu Wong, and the 1^st defendant, a son by Mr Lee Kwan, the 2^nd defendant, is a grandson.  Although neither side was prepared to accept that there was a valid marriage with the father of the other side, on the available evidence I think I should proceed on the basis that Madam Fan was first married to Mr Lee, with whom she had four children, one was adopted away from the family.  After the death of Mr Lee Kwan, Madam Fan married Mr Chiu in 1955 and the plaintiff is the only child of that union. 

2.The dispute is over the burial of Madam Fan.  On 6 August 2004, the plaintiff obtained an ex parte order from Tong J where he ordered :

“… that the Defendants and each of them be restrained until and including Friday the 13^th day of August 2004 or until further order in the meantime whether by themselves, their servants or agents from disposing of the body of the late Madam Fan Kwai Kam which is now resting in the Universal Funeral Parlour, or from proceeding with any funeral in respect of the late Madam Fan Kwai Kam.”

3.On 7 August 2004, on an ex parte application made to the same learned judge, the order which he made on 6 August 2004 was varied by him as follows :

“(i)     the funeral of Madam Fan Kwai Kam, the deceased, may proceed as arranged but the Defendants are prohibited from disposing of the body of Fan Kwai Kam deceased by cremation or burial,

(ii)      the body of the deceased shall remain at the Universal Funeral Parlour until further order of the Court.”

4.As a result of the order of 7 August 2004, I understand that funeral ceremonies were conducted by the defendants on 7 and 8 August 2004.  However, as the plaintiff was not aware of the order of 7 August 2004, he did not attend those ceremonies.  The parties have come before me on the return date.  The plaintiff wishes the order of 6 August 2004 to be continued until trial, the defendants wanted that order to be discharged.

5.Now neither parties objects to Madam Fan being buried in Cheung Chau.  However, as Mr Laing, counsel for the plaintiff, put it there are at least three main areas of dispute :

(1)     A dispute over Madam Fan’s description on the tombstone.

(2)     The religious rites under which the burial should be conducted.

(3)     Who was to be entitled to the deceased’s remains six years after the burial when the body had to be disinterred.

6.I have asked the parties to try to resolve this matter by agreement — that has not proved possible.  On my suggestion, the parties have made proposals on how the actual burial might be conducted.  I think I will read into the record, the respective proposals.

(1)              The plaintiff’s proposals :

“1.   Plaintiff will be totally in charge of the burial ceremony, the Defendants have liberty to attend.

2.    Plaintiff will use the surname of Chiu to organize the burial ceremony.

3.    There will be Buddhist monks to say prayers in the burial ceremony.

4.    The coffin should bear the name of Chiu Fan Kwai Kam.”

(2)     The defendants proposals :

“In respect of the burial of the late Madam Fan, the Defendants propose

1.    The burial is to take place on 17 August 2004 at about 2:30 pm and in any event not later than 3:00 p.m.

2.    The remains of Madam Fan is to remain at Universal Funeral Parlour for the time being.

3.    The Defendants will be responsible for transporting the remains of Madam Fan to Cheung Chou.

4.    The Defendants plan to take the ferry departing from Hong Kong at about 9:00 a.m. on 17 August 2004.

5.    If necessary, the Defendants are prepared to transport the remains of Madam Fan at any convenient time on 16 August 2004 to Cheung Chou.

6.    The burial ceremony should be conducted in the traditional taoist way.  The Defendants do not object that the Plaintiff is to perform Buddhist ceremony at the same time.

7.    The Defendants propose to use ‘Kind Mother’ (慈母) to avoid the dispute of whether Madam Fan belonged to the Lee’s or Chiu’s family in both the burial ceremony and on the tombstone.

8.    Should the Plaintiff insist that the burial ceremony be carried out in the name of Chiu’s family, the Defendants accept that the Plaintiff can perform his own ceremony in the name of Chiu family on the condition that the Defendants can also carry out the burial ceremony in the name of Lee’s family by themselves.

9.    The Defendants agree to let the remains of Madam Fan upon exhumation after 6 years be released to the Plaintiff and be dealt with by the Plaintiff.

10.  Costs for the funeral and burial ceremonies incurred by each party to be borne by the incurring party.

11.   Legal costs to be argued.”

7.The parties have also disagreed on what I should do today.  Mr Leung has suggested that I should maintain the status quo.  The body should be removed to a temporarily repository pending the resolution of the litigation, and the litigation should be allowed to take its usual course.

8.On the other hand, Mr Ho, who appeared for the defendants, wishes me to resolve this matter today.  He has referred me to a decision of the Supreme Court of the North Territory of Australia the case of Calma v. Sesar [1992] 106 FLR 446.  There Martin J was dealing with a dispute between a father a mother over the burial of their son and this is what he said at paragraph 14 of his judgment :

“      The conscience of the community would regard fights over the disposal of human remains such as this as unseemly.  It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency.”

9.Mr Leung has referred me to an English case : Fessi v. Whitemore [1999] 1 FLR 767.  It is a decision of Judge Boggis QC sitting as a judge of the High Court.  There, the dispute was over the burial of a son between his father and mother and the learned judge treated their dispute in this way.  He said at page 770 :

“      It seems to me that, on analysis, the parties are rather in the nature of trustees bringing a dispute to the court and seeking the directions of the court as to the resolution of that dispute, given that there are valid contentions on both sides.

It is on that basis that I propose to decide the case.  I do not think I am being asked to give directions as to the administration of an estate.  I am being asked to decide between the conflicting arguments of equally entitled parents as to the way in which Mark’s ashes should be disposed of and I do that on the usual basis that this court is well used to exercising discretion in disputes between trustees and adjudicating on the proper course to follow when no agreement can be reached by the parties concerned.

One takes all of the background into account.  One takes into account the views held on both sides and comes to a conclusion which does fairness and justice to both sides. …”

10.This is the approach that I will adopt today.  Here the dispute is between the next-of-kin of Madam Fan, namely the plaintiff and the 1^st defendant.  Both are equally entitled as it were to take charge of the burial of Madam Fan.  Here the plaintiff has deposed to the wishes of the deceased, namely that, and I quote from the written submission of Mr Leung — this is how he put in paragraph 5 of his submission.  He said that the order that the plaintiff sought would serve to “fulfill the express wishes of Madam Fan and enable her burial to be carried in accordance with her status as a member of the Chiu family and her religion of Buddhism”.  And he has referred me to various paragraphs in the affirmations of the plaintiff which I have noted.

11.I think I should proceed on the basis that those were indeed Madam Fan’s wishes at the relevant time.  I am also mindful that effect should be given so far as possible to the wishes of the deceased.  However, I must not be blind to the fact that when the deceased expressed her wishes to the plaintiff, it appeared that she had not discussed the matter with her other children.  Mr Leung had said that her last husband was Mr Chiu and she was known as Mrs Chiu and therefore she should be buried as such.  I think I am concerned with the deceased not just as a wife but also as a mother.  After all, both of her husbands are dead and she had living children.  I think in reaching a decision, I should not ignore the wishes of the living either.

12.Now the agreed evidence is that her expenses at the nursing home was divided into four shares and paid by the plaintiff and the deceased’s three children by Mr Lee equally.  So her children had done their duties by her during her lifetime and, as this dispute shows, her children are willing to pay for her funeral too.

13.I think I am entitled to proceed on the basis that although she had expressed her wishes to the plaintiff, they were not such that they could not be changed either by persuasion by the other children if they had been given an opportunity to do so, or by changes in circumstances.  If she had known that her wishes would have resulted in this litigation, I believe it highly likely that she would have preferred to find a solution which would be acceptable or less unacceptable to both parties.  She could not change her mind now but rather like a judge who is asked to make a statutory will on behalf of a patient, I think I am entitled to have regard to what I believe she might have wished today, having regard to all the circumstances prevailing today.

14.I think I should proceed on the basis that all her children were dutiful and good to the deceased.  There is also evidence that, her 70^th birthday was celebrated by the Lee side of the family.  I am aware of the plaintiff’s evidence on this but I think it at least shows the sentiment of the defendants towards her.

15.In all the circumstances, I believe I should try to find a practical solution today.  I do not believe this is a case which would benefit from delay.  There can never be a right solution.  One can only hope to come up with a practical and fair solution and although it may be one over which reasonable people might disagree.  And this is what I propose to do.

16.I propose to adopt many of the defendants’ proposals.  Before dealing with them, I should say a few words about the tombstone.  I believe the description of the deceased on the tombstone should be 慈母, that is “kind mother” as translated.  I believe that would be best in all the circumstances.  The names of the plaintiff, the defendants and the other children, no doubt, may also appear on the tombstone.  As I have said, the defendants have already conducted a funeral ceremony on 7 and 8 August 2004, I think it is right and fair that the plaintiff should have an opportunity to conduct a funeral ceremony at the Universal Funeral Parlour on or before 16 August 2004 at his expense.  I have noted Mr Ho’s point that it is unusual for there to be two funeral ceremonies but, in all the circumstances, I think it is only fair that the plaintiff should have an opportunity to hold a funeral ceremony.

17.So I think the direction that I propose to make is that the burial is to take place on 17 August 2004 at about 2:30 p.m. and not later than 3:00 p.m.  The remains of Madam Fan is to remain at the Universal Funeral Parlour for the time being.  The defendants shall be responsible for transporting the remains of Madam Fan to Cheung Chau but the plaintiff may accompany the cortege to Cheung Chau.  That being the case, I believe it is best that it be done at about 9:00 a.m. on 17 August 2004 and I hope the parties will make the necessary arrangements.  The burial ceremony should be conducted in the traditional Taoist way but that the plaintiff may perform a Buddhist ceremony at the same time.  The deceased should be described as “kind mother” (慈母) in the tombstone.  The names of all her children and grandchildren may also be inscribed on the tombstone.  And as I have said the plaintiff may be at liberty to perform a funeral ceremony at the Universal Funeral Parlour on or before 16 August 2004.

18.And then paragraph 9 in the proposed order I think it is fair and that upon the disinterment of Madam Fan after six years of burial, her remains shall be released to the plaintiff and be dealt with by the plaintiff as he desired.  I think the costs of the funeral and burial ceremonies incurred by each party to be borne by the incurring party. 

[Discussion on Costs]

19.Now so far as the costs of the proceedings up to date concerned, what I have in mind is to make no order to costs and I propose that the costs of the funeral parlour be borne by the parties equally.  I think, in all the circumstances, I will make an order that there be no order to costs between the parties and that the costs of the Universal Funeral Parlour be borne by the parties in equal share.  The parties will of course prepare an order for my approval. 

Mr Alfred Laing, instructed by Messrs Pansy Leung, Tang & Chua, for the Plaintiff

Mr Tommy K.K. Ho, instructed by Messrs T.C. Lau & Co., for the Defendants

Mr Kenneth Chow, instructed by Messrs Edmund W.H. Chow & Co., for Universal Funeral Parlour Company Limited