Wo Man Hing and Others v. Wu Sing Yu and Others

HCMP1273/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.1273 OF 2004

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BETWEEN

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Before : Hon Waung J in Chambers (Open to Public)

Date of Hearing : 11 May 2006

Date of Judgment : 11 May 2006

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J U D G M E N T

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1.I have before me three parties, being the plaintiffs, Wo Man Hing and 20 others who are members of the Wu Chung San Tong, the 1^st defendant, being Wu Sing Yu, Manager of Wu Chung San Tong and the 2^nd defendant (by counterclaim), being Wu Yuk Yin, Wu Yun Kwong, Wu Lap Fai and Wu Yin Keung. 

2.What has led the parties to come before this court and leading to the necessity for my giving this judgment is that there is said to be some uncertainly as to the fact that a member of this Wu family, of the 1^st fong, by the name of Wu Yuen Sang (胡元生), whether he was the adopted son for all purposes of succession of Wu Yeung (胡養).

3.The matter arose in this way.  There are effectively four fongs that I have to deal with.  The person, Wu Yuen Sang (胡元生), was questioned as whether he is a member of the 1^st fong.  As a result of a recent bonus to the Wu family in the form of the resumption of land, a substantial sum of money has been available and thereby the uncertainty as to the status of Wu Yuen Sang (胡元生) has been sharply focused.  

4.I have now before me the support of everyone of the fongs, that is, all four fongs, 1^st, 2^nd, 3^rd and 4^th, in favour of recognizing Wu Yuen Sang (胡元生) as a lawful adopted son of Wu Yeung (胡養) for the purposes of Chinese succession.

5.I have the undertaking of counsel for the 2^nd defendant, by counterclaim, to file the appropriate pleading seeking a declaration to that effect.  I have very helpfully been guided by Mr Chan, leading counsel for the 1^st defendant and by the other counsel as to the evidence which strongly support the contention and the recognition that Wu Yuen Sang (胡元生) was the lawful adopted son of Wu Yeung (胡養).  I am satisfied that this is the case but I like to just briefly indicate the reasons why I have reached this conclusion.

6.The first positive piece of evidence is in the affidavit evidence of Chung Yuk Ying (鍾玉英) (at page 2010) in Chinese.  There was the positive assertion that when Wu Yuen Sang (胡元生) was seven years old there was a succession adoption ceremony (過繼儀式) held in the second lunar month of that year, and this was told by Wu Yuen Sang (胡元生) to the affirmant, his wife, Chung Yuk Ying (鍾玉英).  How Wu Yuen Sang (胡元生) obtained information was not said, but I think it would be a fair inference that it must have come from his own parents who adopted him.  So there was an important piece of evidence of a formal adoption by the Chinese ceremony of 過繼儀式.

7.The second piece of positive evidence in support, and this is a very powerful piece of evidence, is the coloured photograph I have before me (at page 696) which is on the tombstone of the 19^th generation ancestor (胡昌翰), that is, the grandfather of Wu Yuen Sang (胡元生), or the father of Wu Yeung (胡養).  It shows Wu Yuen Sang (胡元生) as being the third generation, namely a grandson (孫), and his son (曾孫), Wu Yuk Wing (胡玉榮)，otherwise known as Wu Yuk Yin (胡玉賢) was also named.  So, that is a very powerful piece of ancestor relationship.  The tombstone photograph is referred to at para.4 (page 2024) of the affirmation of Wu Yuk Yin (胡玉賢), the 2^nd defendant (by counterclaim).

8.The third positive piece of evidence is the “tea ceremony” referred to in the same affidavit (at page 2011) where, at the marriage of Wu Yuen Sang (胡元生) to his wife, tea was served by his wife to the widows of his father, namely, Madam Kong (江氏) and Madam Yau (游氏).

9.The fourth piece of positive evidence in support can be seen at page 2013 where Wu Yuen Sang (胡元生) always called Madam Kong as mother “Ah Ma”.

10.The fifth piece of positive evidence is where there was a Wu family distribution of inheritance, Wu Yuen Sang (胡元生) was recognized by the other members of the family as being entitled to receive the inheritance, he being the son of Wu Yeung (胡養).  This can be seen at para.7, page 2013 of the same affidavit.

11.There has been some negative material put into the court file, but now everyone has recognized the legitimacy of the claim, that negative material is also gone.  I have the undertaking of Mr Wong on behalf of the plaintiffs that the relevant paragraphs, paras.11–13, page 104 and para.8, pages 106–7 (para.11 being limited to the assertion that Wu Yuen Sang (胡元生) was not a member) would be withdrawn and an appropriate affidavit would be filed to that effect.

12.So what is left would be some additional material of two kinds.  The first kind is the material from the Manager, that is, the 1^st defendant, where there is some doubt cast on the matter at page 126.  That material is made up of three kinds, one is perhaps strictly forensic in the sense of assertion of no knowledge of the adoption ceremony having taken place.  The second is a reference to family record and it turned out that the family record in question at page 202 is really a forensic document prepared for litigation.  The third aspect is the division of property.  I do not think the sum total of those material cast any serious doubt on the positive evidence I have in favour of a legal adoption under
Chinese customary law.

13.The second category of material is that relied on by counsel for the 2^nd defendant (by counterclaim) and it is material which suggests that there were recognition by members of various fongs of the status and position of Wu Yuen Sang (胡元生) as an adopted son of Wu Yeung (胡養).  These were summarized in Exh. WYY-2, WYY-8 and WYY-13, at pages 698, 718, 731–734 respectively.  In my view, they also add to the weight of the positive material.

14.I am satisfied on the totality of the material before me that Wu Yuen Sang (胡元生) was the lawful adopted son of Wu Yeung (胡養) by Chinese customary law and that Wu Yuen Sang (胡元生) should thereafter be regarded as a member of the 1^st fong, and I make a declaration to that effect.

Mr Peter Wong, instructed by Messrs Christine M. Koo & Ip, for the Plaintiffs (by Original Action) and the 1^st Defendant (by Counterclaim)

Mr Chan Chi Hung, SC and Ms Elsie Yiu, instructed by Messrs Lam, Keung & Ko, for the Defendant (by Original Action) and the Plaintiff (by Counterclaim)

Mr Kenneth C.W. Chik, instructed by Messrs King & Co., for the 2^nd Defendant (by Counterclaim)