Leung Lai Fong v. Ho Sin Ying
Read the full judgment text of HCAP 8/2004 on BabelCite. This High Court CFI judgment was delivered on 30 November 2006.
1. This is a very sad case. Two women, now in their 70s, both claim to be the mother of the late Dr Tsang Kwong Lik, for the purposes of administration and succession to his intestate estate. Madam Leung, the plaintiff, being the natural mother of the deceased, understandably asserts her entitlement on that basis. Madam Ho, the defendant, claims that she is the deceased’s “mother” under Chinese customary law and has been responsible for bringing him up. She makes her claim on that footing.
Cited by 5 cases · Cites 7 cases
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HCAP 8/2004 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE PROBATE ACTION NO 8 OF 2004 ______________________
______________________ BETWEEN
______________________ Before : Hon A Cheung J in Court Dates of Hearing : 31 October, 1, 2, 7-10 November 2006 Date of Judgment : 30 November 2006 ______________________ J U D G M E N T ______________________ Issue 1.This is a very sad case. Two women, now in their 70s, both claim to be the mother of the late Dr Tsang Kwong Lik, for the purposes of administration and succession to his intestate estate. Madam Leung, the plaintiff, being the natural mother of the deceased, understandably asserts her entitlement on that basis. Madam Ho, the defendant, claims that she is the deceased’s “mother” under Chinese customary law and has been responsible for bringing him up. She makes her claim on that footing. 2.The deceased was a medical doctor in private practice prior to his death in December 2001 at the age of 51. His father, Tsang Kei Hung (“Mr Tsang”) predeceased him in April 2000. The deceased was a widower. He and his deceased wife (Jade To) got married in September 1996. Jade To was diagnosed as suffering from cancer in 1998 and passed away in March the following year. The couple had no children. Nor did the deceased leave behind a will before his sudden death at home in 2001. 3.In those circumstances, his residuary estate, which is thought to be substantial, falls to be inherited by his “surviving … mother absolutely”: section 4(7) of the Intestates’ Estates Ordinance (Cap 73) – thus the importance of determining who is the “mother” of the deceased for the purpose of the Ordinance. This will also decide the question of entitlement to administration. Factual background and disputes 4.For that reason, it is necessary to go into the personal history of the deceased and his family and the very unhappy past involving the two women in litigation with each other. Having presided over the trial which lasted seven days, I am left with no doubt that these past events are still very much hurtful not only to those immediately involved, but to the next generation as well. They are events which, but for this litigation, they would do well to forget. 5.In view of the sensitivity of the matter in terms of people’s feelings, emotions and good names, and on the firm footing that the quality of the fact-finding exercise and the consequential legal determination of the issues involved will not be compromised at all, I will be as brief as possible with the background facts and factual disputes and save where it is absolutely necessary, I will refrain from making findings on disputed facts. I do so no less because a civil court only makes findings on the balance of probabilities. It does not seek to determine factual disputes on any higher standard. Yet findings by the court may not be interpreted by the parties or lay people in that limited way. It is thus undesirable to make unnecessary findings in this judgment. That said, I must emphasise that in making the necessary findings of fact, the Court will take into account all the admissible evidence whether going to the factual issues in question directly, the general circumstances or background of the case, or general credibility only. 6.Mr Tsang was born in 1927. In 1947, he married Madam Leung in Hong Kong in accordance with Chinese customary law. 7.The couple had three children – a daughter, Tsang Yau-man, born in 1948, a son, namely the deceased, born in 1950 and another son, Tsang Kwong-chor, born in 1952. The youngest son, however, did not survive his infancy, and died in 1953. 8.Mr Tsang had a former schoolmate, Madam Ho. In about 1952, they developed an affair and Madam Ho became pregnant. In early 1953, Madam Ho, who was by then into her fifth month of pregnancy, became a concubine (a “tsip” – “妾”) of Mr Tsang. She maintained at trial that she had not known Mr Tsang was already a married man. Anyway, the union of concubinage, she told the Court, was consented to by Madam Leung as principal wife of Mr Tsang, and she duly performed the rituals for such an union, such as kowtowing the parents of Mr Tsang and serving tea to Madam Leung, which were followed by a meal or banquet attended to by relatives and friends. 9.Madam Leung disputed that the union was with her blessing and consent. 10.However, I should point out immediately that this is a non-factual issue because both parties accepted during final submission that Madam Ho was indeed a concubine of Mr Tsang as from 1953, regardless of whether Madam Leung as principal wife had given her consent. Indeed Professor Anthony Dicks, who needs no introduction in any Hong Kong courts, told the Court at trial that consent of the principal wife was not required for the taking of a concubine, despite some initial confusion and misunderstanding to the contrary. Professor Li, Chinese customary law expert called by the plaintiff, did not take issue with Professor Dicks’ proposition. 11.Consent of the principal wife was indeed not required for the taking of a concubine, at least according to pre-1971 case law. See Ng Ying Ho v Tam Suen Yu [1963] HKLR 923, 926; Wong Ka Ying v Man Chi Tai [1967] HKLR 201, 212-213. 12.Madam Ho gave birth to 3 daughters and 3 sons in August 1953, August 1955, July 1957, September 1959, January 1961 and August 1966 respectively. 13.Between 1953 and 1955, Mr Tsang resided together with Madam Ho, whereas Madam Leung resided in the former matrimonial home in First Street. Madam Leung said that she resided together with her two children (the youngest one having died in 1953). Madam Ho said on the other hand that the eldest daughter of Madam Leung was in fact taken care of by Mr Tsang’s mother whereas the other child, the deceased, was actually looked after by her. She said Madam Leung was more interested in spending her time on the mahjong table than taking care of her own children – in fact, Mr Tsang blamed Madam Leung’s neglect of maternal duty for the death of their third child. 14.Anyway, Madam Leung moved back to reside together with Mr Tsang and Madam Ho at the cockloft of the shop premises rented by Mr Tsang’s father to run his shop business in First Street sometime in 1955. 15.Then in the middle of 1956, the business of the Tsang family was relocated to Sai Yuen Lane. No advance notice was given to Madam Leung. Madam Leung maintained that one day when she returned home from work, she found that everyone and everything had moved out of the First Street premises, leaving only her personal belongings behind. Her two children had also been taken away. She was devastated. 16.However, Madam Ho said at trial that it was Madam Leung who had developed an affair with a third party, whom she went away with, leaving her young children behind at home. 17.Several months afterwards, having lived alone near Sai Yuen Lane, Madam Leung moved over to live on the Kowloon side. Still later, she managed to take the two children back from the Tsang family to live with her in Kowloon. 18.On 17 March 1958, through the help of a government department, the plaintiff successfully obtained an order from a Magistrate awarding maintenance and custody of her two children to her, pursuant to her application under section 5 of the Separation and Maintenance Orders Ordinance (Cap 16). 19.That notwithstanding, a few months later, the parties signed a divorce agreement dated 27 June 1958, which was prepared by solicitors. By the agreement, Mr Tsang and Madam Leung by mutual consent effected a divorce to dissolve their Chinese customary marriage. Furthermore, Madam Leung agreed expressly to waive the custody of the children and the benefit of the monthly maintenance awarded in her favour pursuant to the Magistrate’s order. Instead Mr Tsang had the custody of the children with monthly access by Madam Leung. There was a letter from the Magistrate’s Court dated 3 July 1958 evidencing a hearing to be held on 23 July 1958 in respect of an application made by solicitors acting on behalf of Madam Leung to discharge the maintenance order previously made. 20.According to Tsang Yau-man, the daughter of Madam Leung who, however, gave evidence on behalf of Madam Ho at trial, she personally attended the hearing at which the presiding Magistrate told Mr Tsang and Madam Leung that their marriage was dissolved and they were free to re-marry. Tsang Yau-man said she saw at the hearing that Madam Leung was already several months pregnant (by another man). 21.Madam Leung denied ever signing the divorce agreement. She maintained that her marriage with Mr Tsang was formally dissolved in March 1958 pursuant to the Magistrate’s order made under the Separation and Maintenance Orders Ordinance. She denied attending a second hearing in July that year or at any other time. She denied that she was already pregnant by another man at the time of hearing, as testified to by her own daughter (who was ten years old at the time). She maintained that at the hearing (in March) the Magistrate told her and Mr Tsang that thereafter they could freely re-marry. This she did later on with a Mr Chan and she gave birth to the first of her three children with Mr Chan in November 1958. 22.According to Madam Ho, whose evidence was corroborated by the evidence given by Tsang Yau-man as well as an old friend of Mr Tsang – Leung Hung, the Tsang family held a dinner party on Mid-Autumn Festival in 1958 at their ground floor shop premises. Four tables of family members, relatives, friends and employees of the shop business attended. At the party, the father of Mr Tsang announced to all those present that Madam Leung, his former daughter-in-law had left the Tsang family and would not return. She was no longer a member of the Tsang family or the mother of her two children. He also announced that from then on, Madam Ho would become the wife of his son (Mr Tsang) and the mother of the two children. Madam Ho kowtowed the parents of Mr Tsang and served them tea. They gave her red pockets in return. Mr Tsang himself also told the two children in the presence of those attending to kowtow Madam Ho and serve tea to her as their new mother – which the children did. She gave the children red pockets. Mr Tsang also asked her to take good care of the two children. Madam Ho told the Court during her oral evidence that she actually told the children to continue calling her “二姐” (literally “second sister/lady”), the way the two children used to address her while she was still a concubine of Mr Tsang. She said that the children had got used to addressing her in that way and it was simply easier for the children to continue calling her in the same way as before. 23.There were some discrepancies regarding who said what during that evening, which I shall come back to later on in this judgment. 24.But essentially, it is Madam Ho’s case that as a result of what happened during that evening, she was elevated from her former status as a concubine of Mr Tsang to that of his new principal wife, after his divorce with Madam Leung. More importantly, it is the Madam Ho’s case that as such, she also became the “jimu” (繼母) – literally “stepmother” – of Tsang Yau-man and the deceased as a matter of Chinese customary law. It is her case that in fact thereafter, as before, she continued to take care of the two children and brought them up as her own. It is Madam Ho’s case that her relationship with the deceased was no different from that between a natural mother and son. She treated him as her own son, and he regarded her as his mother. There was much mutual affection for each other, and she was instrumental in supporting the deceased’s study of medicine at the University of Hong Kong and his subsequent medical practice. The deceased also got on very well with her six children. All of them lived and grew up under the same roof and they enjoyed excellent relationship with each other. 25.On the other hand, Madam Leung maintained that she kept in touch with her two children notwithstanding her second marriage to Mr Chan. She maintained that the deceased treated her as his mother and was on very good relationship with her three children with Mr Chan. 26.Apart from Madam Leung, Madam Ho and Tsang Yau-man, as mentioned, I have heard the evidence of Leung Hung, which dealt with some of the above matters as well as what happened during the Mid-Autumn Festival dinner party in 1958. 27.One of the children of Madam Leung by her second marriage, Chan Yui-ling, also gave evidence at trial regarding contacts between the deceased and his mother and their family (the Chan family). The Court has also heard evidence from a former nurse working for the deceased in his several clinics for many years about his contact with Madam Leung and Madam Ho and their respective families. 28.Apart from these factual witnesses, as mentioned, the Court has also had the benefit of hearing the expert evidence of Professor Li of Beijing University as well as Professor Dicks. 29.It will be seen very shortly that the case turns very much on the proper construction of the relevant provisions in the Intestates’ Estates Ordinance, rather than on the factual disputes between the parties – which there were quite a few. Findings of fact 30.On the facts, as mentioned, there is no dispute that Madam Ho had been Mr Tsang’s concubine since 1953. It is unnecessary to make any finding on whether she was responsible for taking care of the deceased between 1953 and 1958, or whether as claimed by Madam Leung, during that period of time, she (Madam Leung) was responsible for looking after the deceased, apart from some period of time when they lived separately. This is because, having considered the factual evidence, I am satisfied and find as a fact that Madam Ho did become Mr Tsang’s principal wife as a result of what happened during the dinner party held on Mid-Autumn Festival in 1958. 31.I have already outlined the evidence given by Madam Ho, Leung Hung and Tsang Yau-man on what happened during the Mid-Autumn Festival dinner party. Madam Leung, obviously, was not present at the party and could not give any useful evidence on what happened on that occasion. Indeed, no other witness called by the plaintiff could give evidence on that matter. 32.Mr Paul H M Leung, counsel for Madam Leung, pointed out during final submission that Madam Ho had given several different accounts of what had been said during that dinner party. His submissions in this regard can be found in paragraphs 87-93 of his written closing submission as well as an appendix to the written submission that he prepared. I will not repeat the same here, save to say that I have considered the discrepancies that he pointed out in his submission and appendix. 33.I should also add that I have also borne in mind the fact that when Mr Tsang and Madam Ho went through a registry marriage pursuant to section 38 of the Marriage Ordinance (Cap 181) in January 1997, they apparently told the Marriage Registry that they had previously gone through a form of marriage in 1953, which was duly recorded in the marriage certificate. The certificate did not make any mention of what happened in 1958 when supposedly Madam Ho was elevated from a concubine to a wife. 34.I have carefully observed the demeanour of the witnesses. I have also considered the overall content of their evidence as well as their specific evidence on what happened during the dinner party. I have come to the firm view that Madam Ho, Tsang Yau-man and Leung Hung were all honest and credible witnesses in relation to what they told the Court about the 1958 dinner party. 35.In particular, I was impressed by Leung Hung’s evidence. He was an independent witness, having no financial interest in the subject matter of dispute. He was a close friend of Mr Tsang. In that capacity, he was invited to attend the dinner party. He gave his evidence in a straightforward manner. Despite cross-examination, he maintained his evidence on what happened on that evening. Despite his age (he is 78 now), he still retained a good recollection of what had happened. 36.Mr Paul Leung sought to capitalise on the fact that the witness statements of all three witnesses – Leung Hung, Madam Ho and Tsang Yau-man – all gave a very similar account of what happened that evening, whilst they all claimed in Court that they had never spoken with each other about what had happened that evening to refresh their memories for the purposes of preparing the witness statements, or this litigation. 37.I have carefully considered the point and given it due weight in my deliberation. A probable explanation for it was that all the relevant witness statements were drafted by the same firm of solicitors on their behalf. 38.But as I said, Leung Hung was an independent witness. There was no motive for him to lie and fabricate the whole story. Indeed Mr Paul Leung did not go that far to suggest that he fabricated his evidence. That was never put to him (or any other witnesses). Counsel simply put Madam Ho and her witnesses to proof. 39.Even if, contrary to what these witnesses had told the Court in the box, they had conferred with each other on what had happened that evening so as to refresh their memories – which would have been most understandable in any event, their denials in Court that they had done so would not detract from the fact that something along the lines of what they had told the Court in evidence had actually happened. The possibility that they were not 100% forthcoming in the witness box would not necessarily require the Court to reject in total their evidence on the dinner party in 1958. 40.I have also considered and borne in mind that Tsang Yau-man was obviously on bad terms with the plaintiff, her own natural mother, by the time of trial. But she had given clear evidence on what had happened at the dinner party in 1958. I disagree with Mr Paul Leung that she, being then of the age of 10, had no reason to retain a good memory of what happened that evening. Given the nature of things, quite to the contrary, I am of the view that she had every reason for remembering well what had happened. In the box, she explained that in fact specifically for that occasion, she and the deceased had been given new clothes to wear and they had initially thought that it was for the celebration of the Mid-Autumn Festival. 41.As regards Madam Ho, who is in her 70s, she has indeed confused who had said what at the dinner party. The defence also did not tally with some part of her evidence. However, I am of the view that the discrepancies were minor ones. Far from indicating that she was dishonest in the box, it demonstrated that she was merely trying her best to recollect what had happened, which took place almost 50 years ago. The discrepancy between her oral evidence and the defence was, in my view, probably due to a miscommunication between her and her lawyers who, of course, prepared the pleading for her. 42.I have also carefully considered the fact that after that dinner party, the children continued to call Madam Ho “second sister” in private and the explanations given by Madam Ho for that mode of address. I accept her evidence. 43.As I said, I have considered all the points raised by Mr Paul Leung in final submission. As mentioned, counsel did not go so far as to say that the witnesses fabricated their stories on what had happened at the dinner party. He simply put these witnesses to proof. 44.Having considered all relevant matters and evidence, including the demeanour of the witnesses, as I said, I find as a fact that at the dinner party, both Mr Tsang’s father and Mr Tsang made the announcements as I have described at the beginning of the judgment, and both Madam Ho and the two children went through the kowtowing and tea serving rituals respectively. Findings on fuzheng and jimu 45.Parties on both sides, as well as their experts, agreed that the Chinese customary marriage of Mr Tsang and Madam Leung was formally dissolved by the divorce agreement signed in June 1958 – I find as a fact that Madam Leung did sign the document despite her denial in Court. 46.They all agreed that in those circumstances, Mr Tsang was free to either marry another woman as his principal wife under Chinese customary law, whilst keeping Madam Ho as his concubine, or elevate his concubine (Madam Ho) to be his new principal wife, through a procedure or ceremony known as fuzheng or fucheng (扶正). 47.According to Professor Li, Madam Leung’s own expert witness, what had (allegedly) happened would amount to, as a matter of Chinese customary law, fuzheng. According to Professor Li, no particular ceremony was required. 48.On the other hand, Professor Dicks said that so long as some ceremony was performed, that would be sufficient because fuzheng was a fairly informal procedure. Professor Dicks noted that Dr Vermier Chiu, in his book Marriage Laws and Customs of China, 27 to 28, described the fuzheng ceremony as one requiring the concubine to perform, openly and in the presence of relatives and friends, the ceremony of kowtowing to heaven and earth and to the husband’s ancestral tablets, as well as kowtowing and serving tea to the husband’s parents, and the husband to give a banquet in which he openly announced to the participants that he had lifted or promoted the concubine to the position of a principal wife. However, Professor Dicks took the view that in fact the requirements were less formal than that described in Dr Chiu’s book, and he took the view that what had actually happened at the dinner party in 1958 qualified as a fuzheng procedure or ceremony. 49.As described, the plaintiff’s own expert, Professor Li, took an even more liberal view. Relying on a ruling made by the Da Li Yuan (大理院) of The Republic of China back in 1919, Professor Li was of the opinion that all that was required was a positive indication of intention by the husband to elevate a concubine to be his principal wife. No specific ceremony was required. 50.The lack of any specific ceremony for fuzheng has also been pointed out in the case of Re Wong Choi-ho [1969] HKLR 391, 397-398. 51.On the basis of the evidence received, I have no difficulty in concluding and finding that what happened during the dinner party in 1958 complied with Chinese customary law in elevating Madam Ho, formerly a concubine of Mr Tsang, to the status of Mr Tsang’s principal wife, after his divorce with Madam Leung. 52.It is true that Professor Li had strong reservation on whether such a procedure or ceremony had taken place as a matter of fact, because after what had allegedly happened at the dinner party in 1958, the children of Madam Leung continued to address Madam Ho as “second sister” instead of “mother”. He took the view that status and mode of address were very important matters under Chinese customary law and “second sister” would strongly indicate that Madam Ho had not become the principal wife of Mr Tsang. 53.I have already described Madam Ho’s evidence in this regard and expressed my acceptance of her evidence. Indeed, I have already taken this point into account in deciding whether I should accept her evidence on what had happened during that dinner party in the first place. 54.In short, I find that as a matter of Chinese customary law, as from the dinner party in 1958, Madam Ho has become the new principal wife of Mr Tsang. More importantly, according to the expert evidence of Professor Dicks, she has also become the jimu/stepmother (繼母) of the two children of Madam Leung with Mr Tsang – Tsang Yau-man and the deceased. In this regard, I prefer Professor Dicks’ evidence to that of Professor Li, who took the view that the concubine-turned-new principal wife would become the dimu (嫡母) of the children of the former principal wife. Indeed, Professor Li himself seems to have shifted his ground a bit towards the end of his evidence in Court when he appeared to accept that the woman could be considered as the children’s jimu/stepmother (繼母). In any event, whether jimu or dimu, the concubine-turned-principal wife would become the “legal mother” of the children of the former principal wife under Chinese customary law. Put another way, for all purposes, she would be regarded as the children’s mother in the eyes of Chinese customary law, including for the purposes of mourning rituals. 55.I think, at the end, both experts were agreed that that notwithstanding, the children continued to maintain some relationship with their natural mother – the former principal wife who had been divorced by her former husband. I accept that the divorce or “ousting”（出妻）of a principal wife would only sever her relationship with the family of her former husband. It would not, as a matter of Chinese customary law, sever her relationship with her natural children even though her children might, after such a divorce, have a new mother as their legal mother/jimu (stepmother). That would be so regardless of the re-marriage of the natural mother into a new family. 56.Indeed, according to the experts’ evidence, there could be eight types of mother, at least for the purposes of mourning rituals. Amongst them, one would find the categories of dimu, jimu and cimu (慈母). In relation to the category of cimu, which refers to a concubine who has been given by her male partner to the union of concubinage the responsibility of raising a child of his principal wife who had either died or was unavailable (for example due to divorce) to raise the child, and who (the concubine) has actually undertaken the responsibility in looking after the child. In the present case, Madam Ho has run the alternative case that she is the cimu of the deceased, if she had not, contrary to her primary contention, been elevated to the status of a principal wife of Mr Tsang in 1958, but had remained a concubine. 57.According to the expert evidence, a person like Madam Leung would loosely fall within the category of chumu (出母) – a principal wife/mother who had been divorced by her husband, even though her divorce with Mr Tsang was one by consent rather than one forced upon her by her husband. 58.As mentioned, all these categories of “mother” notwithstanding, I accept that as a matter of Chinese customary law, despite the divorce and the husband’s subsequent re-marriage or elevation of his concubine to become his new principal wife, the relationship between the former principal wife/natural mother and her children would not be severed. This was so irrespective of the subsequent re-marriage of the natural mother. Put another way, such children would have a legal mother, being their jimu (stepmother) as well as their own natural mother, known as chumu. According to Chinese customary law, the children would have more onerous mourning duties towards their jimu/stepmother than towards their natural mother/chumu. Nonetheless, they would still owe to their natural mother mourning responsibilities, which were substantial. Who is the mother? 59.Given the factual as well as Chinese customary law background, the debate between the parties centres on whether Madam Leung as the deceased’s natural mother or Madam Ho as the deceased’s jimu/legal mother/stepmother under Chinese customary law should be considered as the deceased’s “mother” for the purpose of the Intestates’ Estates Ordinance. This is, superficially, an “either or” situation, but Mr K M Chong, appearing for Madam Ho, put forward a third alternative during final submission that both could be considered as mothers of the deceased for the purpose of succession pursuant to the Ordinance. Section 4 of Cap 73 60.Section 4 of the Intestates’ Estates Ordinance provides as follows:
61.The expressions “parent”, “parents”, “father” and “mother” are not defined in the Ordinance. 62.The plaintiff contends that the present case falls within section 4(7), and the residuary estate of the deceased shall be held in trust for the surviving mother absolutely. The defendant does not dispute this. 63.But who is the mother of the deceased? Plaintiff’s arguments 64.The plaintiff contends that “mother” must mean the natural mother, in the absence of any specific definition of the word in the Ordinance. Sibling v Terry (1802) 7 Ves 522, 530; Evans, Laws of Hong Kong Annotated Series No 3, The Intestates’ Estates Ordinance, 25; cf Lee Man Tin v Leung Kam Chee, DCCJ 5082/1981, Judge Downey (26 April 1982); Sun Pin v Greenwood [1964] DCLR 246. 65.In other words, the surviving mother of the deceased can only mean Madam Leung, the natural mother of the deceased. In particular, it cannot mean Madam Ho, the jimu/stepmother/legal mother of the deceased under Chinese customary law. This is because, counsel contended, the whole point of enacting the Intestates’ Estates Ordinance, in conjunction with other pieces of legislation reforming the family and family property law in Hong Kong, was to overturn the entire system of Chinese intestate succession and to abrogate the customary rules. Evans, The New Law of Succession in Hong Kong (1973) 3 HKLJ 7, 21; Lewis, A requiem for Chinese customary law in Hong Kong (1983) 32 ICLQ 347, 375 to 377. 66.Mr Paul Leung, for the plaintiff, also argued that there is no place for a construction that a deceased person could have, for the purpose of intestate succession to his residuary estate, more than one parent. This is apparent from section 4 itself, particularly section 4(6) and (7), which refer to “both parents … held in trust for the father and mother in equal shares” and “one parent … held in trust for the surviving father or mother absolutely”. These words strongly suggest that the legislature has in mind only one father and one mother for any particular deceased person for the purpose of intestate succession to his residuary estate. See also section 4(4)(b)(i). Mr Paul Leung therefore argued that the suggestion that Madam Leung as the natural mother and Madam Ho as the jimu could both be the mothers of the deceased and both be entitled to succeed to the residuary estate of the deceased – presumably in equal shares – would do unacceptable violence to the language used in the section. Defendant’s arguments 67.Mr Chong, for Madam Ho, argued that the legislature did not intend, by the enactment of the Ordinance, to affect people’s accrued right, status or capacity. Put in context, the legislature did not intend the Ordinance to affect the legal status of Madam Ho as the jimu and legal mother of the deceased under Chinese customary law. Therefore, the only proper way of reading the Ordinance is to construe “mother” as meaning jimu or legal mother per Chinese customary law – for those who had already attained such a status under Chinese customary law prior to the enactment of the Ordinance in 1971. Counsel pointed out that the Intestates’ Estates Ordinance was modelled on the English Administration of Estates Act 1925. Prior to 1971, the English Act had already been amended to include natural parents as parents, but this was not followed in Hong Kong: see section 14(3) of the Act. He argued that it showed that our Ordinance did not intend to restrict “parents” to natural parents only. 68.Counsel also argued that the original Ordinance contained a definition of “a child or issue” in section 2(2)(b) which threw light on the meaning of a parent. The definition was repealed in 1995. The original section 2(2) reads as follows:
69.Moreover, the original Schedule to the Ordinance, dealing with the position of concubines and their children, used to provide in paragraph 2 as follows:
70.The combined effect of the original section 2(2)(b) and paragraph 2 in the original Schedule was that for the purpose of intestate succession to the estate of a deceased principal wife under Chinese customary law, both her own natural children as well as the children of her husband’s concubine or concubines were regarded as her children or issue, entitled to succeed to her residuary estate. Likewise, for the purpose of intestate succession to a deceased concubine’s estate, both her own natural children as well as those begotten by the principal wife of her male partner to the union of concubinage or his other concubine(s) were to be regarded as her children or issue, entitled to succeed to her residuary estate. 71.But most importantly, as Mr Chong pointed out, in the case of a deceased jimu/stepmother, both her own natural children as well as the children of her husband’s first principal wife were to be regarded as the jimu’s children or issue for the purpose of intestate succession to her estate. 72.Mr Chong therefore argued, with some force, that although there is no direct definition of a parent, given the original definition of a child or issue, the converse situation must be true: i.e. that a jimu must be regarded as either the mother, or at least a mother of a deceased child – whether he or she was the natural child of the jimu or that of the first principal wife. Counsel argued that to hold otherwise would be absurd: i.e. that A should be treated as a child of B if B should die, however B should not be treated as the parent/father/mother of A if A should die, for the respective purposes of intestate succession to the residuary estates of B and A. 73.Mr Chong recognised that in 1995, section 2(2)(b) was repealed. However, there was a corresponding amendment to the original Schedule, which has now become Schedule 1, in that paragraph 2 of Schedule 1 now reads:
74.It can be clearly seen from the new paragraph 2 in Schedule 1 that so far as the children of concubines are concerned, they are regarded as children of the principal wife for the purpose of intestate succession to the principal wife’s residuary estate. Likewise, so far as the children of the principal wife are concerned, they are to be treated as children of the concubine so far as intestate succession to the residuary estate of the concubine is concerned. 75.Moreover, in Yam Yin Hung v Secretary for Justice, HCMP 2988/2003, 3 June 2004, Yam J held that for the purpose of intestate succession to the residuary estate of a tinfong (填房) – i.e. a principal wife taken by a man after his original principal wife has been divorced or has passed away, the children of the original principal wife are to be regarded as the tinfong’s children or issue, entitled to succeed to her residuary estate upon intestacy, even after the repeal of the original section 2(2)(b). 76.It should be noted that to those children, the tinfong wife was indeed their jimu/stepmother/legal mother. 77.Thus by a combination of case law and the new paragraph 2 in Schedule 1 to the Ordinance, Mr Chong was able to maintain that notwithstanding the 1995 amendments to the Ordinance, the former positions regarding intestate succession to the residuary estates of a principal wife, a concubine and a jimu by their children have remained the same. Therefore, he argued, conversely, all of these women must be regarded as the mothers of these children for the purposes of intestate succession to the residuary estates of the children. 78.It is certainly untrue, Mr Chong argued with some justification, that intestate succession is only limited to blood relationships. My views on construction 79.In my view, prima facie, “parent” or “mother” must mean a natural parent or natural mother. It would take a strong case to construe a parent or mother as meaning not the natural parent or natural mother, but rather someone else. Such a possibility is not unknown. In the case of adoption, a parent or mother means the adoptive parent or mother, rather than the natural parent or mother: section 2(2) of the Intestates’ Estates Ordinance. 80.But in such a case, there is a clear statutory provision. No such provision is found in the present case in relation to a jimu. 81.Incidentally, I should point out that it is not Madam Ho’s case that the deceased was her adopted son. Her case is that she is the jimu (繼母) of the deceased, alternatively she is the cimu (慈母) of the deceased. 82.The possibility of more than one person being the parent or mother is, as Mr Paul Leung for the plaintiff has correctly pointed out, quite inconsistent with the actual wording used in section 4 – which plainly proceeds on the premise that a deceased person has only one father and one mother. 83.Mr Chong’s reference to the definition of “parents” in the English Act (as amended) is unhelpful because the extended definition of “parents” was only meant to include the natural father of an illegitimate child as the child’s “parent”. In other words, for an illegitimate child, like a legitimate child, his or her parents are his natural parents – regardless of whether they were lawfully married to each other. It did not mean that for such a child, he could have more than one father or mother or more than two parents. See Evans, The New Law of Succession in Hong Kong, op cit, at pp 29-31. 84.Mr Chong’s argument that the Ordinance was not intended to affect a person’s accrued status under Chinese customary law is true to some extent. The Ordinance obviously intended, for instance, to preserve the status of concubines and their children in the family. Thus there is a special schedule dealing with their positions. In particular, children of a concubine are to be treated as children of the male partner to the union of concubinage, and they are entitled to succeed to the residuary estate of their father in case of intestacy: para 2(1) of the original Schedule and para 2(1) of Schedule 1. They are to be treated as the siblings of the whole blood of the children of the male partner of the union of concubinage and his principal wife, as well as the children of any other concubines of his: para 2(3) of Schedule 1. 85.Moreover, the concubine herself is entitled to succeed to the residuary estate of her male partner to the union of concubinage as per para 4 of the Schedule or Schedule 1. 86.However, it must be pointed out that all this has been achieved by express provisions contained in the Ordinance. What Mr Chong is contending on behalf of Madam Ho in the present case is some right not expressly set out in the Ordinance. 87.Mr Chong also referred to those adopted under Chinese customary law prior to the enactment of the Ordinance to illustrate his point that the Ordinance did not intend to affect accrued status previously acquired. But again, the fact is that in relation to adoption cases, after an initial omission, the position is now expressly governed by section 2(2)(c). 88.Mr Chong argued that prior to the enactment of the Ordinance in 1971, Madam Ho had already acquired the status as the legal mother of the deceased under Chinese customary law. That may be correct in a fairly general sense. But the pertinent question to ask is: for what purpose was such legal status acquired? If the answer is that the legal status was acquired for the purpose of, inter alia, succession under Chinese customary law, then the rejoinder must be that the Ordinance was enacted precisely to replace the rules of succession under Chinese customary law with new rules under the Ordinance. 89.Quite plainly, there was no provision in the Ordinance, when it was enacted, to preserve the “legal status” or position of a jimu, in terms of her right to succeed to her children’s estate. Nor was any such provision added under the 1995 amendments, unlike the cases of adopted children. 90.This brings me to an even more fundamental point. Under Chinese customary law, as Mr Paul Leung rightly pointed out during final submission, generally speaking, succession was “downwards”, from father to son, and not “upwards”, from son to father or collaterally, from brother to brother. Direct ascendants, such as fathers or grandfathers, were not entitled to succeed to their sons’ or grandsons’ estates upon their death. Vermier Chiu, The Chinese Law of Succession, 3. 91.Once that is recognized, it is not difficult to see the fallacy of Mr Chong’s arguments. Grant that prior to the 1995 amendments, the combined effect of section 2(2)(b) and paragraph 2 of the Schedule was that all children of a man – whether begotten to him by his principal wife, tinfong wife (taken after the death or divorce of the original principal wife) or concubines – were regarded as children for the purposes of intestate succession to the residuary estates of the principal wife, tinfong wife and concubines. Grant also that even after the 1995 amendments, because of the new paragraph 2 in Schedule 1 and the decision in Yam Ying Hung (the correctness of which need not be dealt with in this case) the same position continues. It does not follow that the converse situation is true. The position described above was obviously designed to maintain the pre-1971 position – ie the right of succession of the children in a family regardless of whether they were begotten by a principal wife, a tinfong wife or a concubine. It was concerned with a “downward succession” situation. However, to extend that position to the converse situation involving an “upward succession” would lack justification under Chinese customary law. Under Chinese customary law, a principal wife, a tinfong wife or a concubine would not succeed to the estate of a deceased child in the family. To do so would be upward succession. 92.That being the case, it is not surprising at all that when the Ordinance was enacted in 1971, whilst there was an express and specific provision defining a child or issue of a deceased female person for the purpose of intestate succession to that deceased person’s residuary estate, there was, conversely, no provision defining the parent of a deceased person for the purpose of intestate succession by that parent to the residuary estate of the deceased person. 93.The position was not altered by the 1995 amendments. The absurdity or illogicality argument put forward by Mr Chong (i.e. that A is the child of B but B is not the parent of A) is, in the context, more apparent that real. 94.As to the suggestion, or possibility, that there could be more than one parent, father or mother, again it must be noted that notwithstanding the special positions of concubines and their children, the wording of section 4, as pointed out above, does not cater for the situation where a deceased person could have more than one mother or more than two parents. If it was intended, for instance, that a concubine should also be treated as a mother of a deceased son of the principal wife (the converse situation of the original section 2(2)(b)), one would expect section 4(6) and (7) to cater for the possibility of a deceased person having more than one mother and thus more than two parents. Of course, section 7(2) of the Interpretation and General Clauses Ordinance (Cap 1) would enable a word in the singular to include the plural. However, one would expect the legislature, if what has been described was the intended result, to use more express wording to cater for such a very odd situation. Moreover, I doubt very much whether “both parents” could be construed to mean more than two parents. 95.In my view, viewed against the background that under Chinese customary law there was no upward succession, the absence of any specific wording to cater for more than one mother in case of succession to a deceased son’s or daughter’s estate is easy enough to understand. For in such a case, succession is not complicated by former succession rules, or any “accrued” legal status or right, under Chinese customary law. 96.My view that a parent/father/mother means the natural parent/father/mother for the purpose of succeeding to a deceased son’s or daughter’s estate is shared by the Law Reform Commission, the report of which led to the 1995 amendments. In the Commission’s Report on Law of Wills, Intestate Succession and Provision for Deceased Persons’ Families and Dependants (Topic 15) published in May 1990, it opined in paragraphs 11.5 to 11.7 as follows:
97.Mr Chong objected to the reference to the Law Reform Commission’s report regarding the view that upon the death of the children of a man by his wife and his concubines, only the natural father and mother are regarded as parents of the deceased. 98.However, it is clear that a court is entitled to look at a Law Reform Commission’s report for the limited purpose of identifying the mischief that the relevant legislation was intended to remedy and for such assistance as is derivable from such knowledge in giving the right purposive construction to the legislation. Bennion, Statutory Interpretation (4th ed) 524 to 526. Moreover and in any event, the views expressed in the Law Reform Commission’s report in this regard may simply be treated as equivalent to non-binding views expressed by academics and legal writers on a piece of legislation. With or without the support of what has been said in the above paragraphs in the report, my view on the proper construction of the Ordinance remains the same. 99.Mr Chong argued that the statutory scheme of the law on intestate succession is to carry out the “presumed intention” of the deceased should no testamentary instrument be made by him, the presumption being that the deceased would be presumed to start from the “closest” or “nearest and dearest”. He argued that a jimu was closer to a chumu (divorced mother) under Chinese customary law. Thus, the presumed intention of a deceased son should be to provide for the jimu first before the chumu. The word “parent” or “mother” in the Ordinance should be construed accordingly. 100.I disagree. As a matter of fact, it is doubtful whether a jimu/stepmother is closer or dearer than a chumu or divorced natural mother to a child. It all depends on the facts. But again the more fundamental objection to the argument is that one cannot deploy Chinese customary law in a piecemeal manner. In other words, one cannot ignore the fact that under Chinese customary law, there is simply no upward succession. Nor was there any question of a son making testamentary provision for his mother – whether a jimu or chumu – or indeed anyone else, as testamentary disposition was simply unknown to Chinese customary law. Upon his death, generally speaking, the son’s estate would be succeeded to by descendants or relatives belonging to the next generation, subject to the life interest of his widow for maintenance purposes. 101.Put another way, the concept of upward succession is a non-Chinese customary law concept. It is in fact a modern or western concept. Under that concept, it is simply inappropriate to refer to the Chinese customary law concept of “mother” anymore. 102.For all these reasons, I conclude that for the purpose of section 4(7), parent, father and mother mean simply the natural parent, father and mother. In particular, mother does not mean or include a jimu. Alternative arguments based on the s 38 registry marriage 103.It is thus unnecessary to deal with Mr Paul Leung’s alternative argument based on the registry marriage between Mr Tsang and Madam Ho in 1997. As mentioned, the two underwent a section 38 registry marriage in 1997. Essentially, Mr Leung argued that the effect of the registry marriage was to change their personal law and convert their previously potentially polygamous marriage (i.e. the customary marriage) to a monogamous marriage. Yeung Yeu-kong v Yeung Fung Lai-mui [1971] HKLR 13; Leung May Ling v Leung Sai Lun Robert [1997] HKLRD 712 (Patrick Chan J), [1998] 1 HKLRD 208 (CA), (1999) 2 HKCFAR 94 (CFA); Kwan Chui Kwok v Tao Wai Chun [1995] 1 HKC 374. See also Pegg, Family Law in Hong Kong (3rd ed) 74 to 77; Pegg, Chinese Marriage, Concubinage and Divorce in contemporary Hong Kong (1975) 5 HKLJ 4, 26 to 27. Accordingly, counsel argued, whatever legal status as a principal wife, jimu/stepmother that Madam Ho might have acquired under her Chinese customary marriage with Mr Tsang was lost in favour of her new status as the wife of Mr Tsang under a monogamous registry marriage and thus a stepmother of the deceased in the modern/western sense. She was no longer the jimu of the deceased, but was simply a stepmother as from the registry marriage. 104.I doubt very much whether a section 38 registry marriage would have the effect of rendering the loss of an acquired status under the previous Chinese customary marriage, which was superseded by the monogamous registry marriage. It is true that the marital status as was conferred by customary law is “absorbed in the new monogamous status” (Yeung Yeu-kong at p 25); yet it does not necessarily follow that the status as was acquired is lost. In other words, if the wife has become the jimu/legal mother of the child of the former principal wife, I fail to see why or how she should lose that status conferred on her by her customary marriage, by reason of the subsequent registry marriage with her husband. After all, section 38 specifically provides that a marriage under the section “shall not invalidate the previous customary marriage”. 105.In the circumstances, as I say, it is unnecessary for me to decide this point, given my construction of “parent” and “mother” in the Ordinance. But if my construction had been otherwise and if I had come to the conclusion that those words mean or include a jimu/stepmother, I would be inclined to reject Mr Leung’s alternative argument that Madam Ho had by virtue of her section 38 registry marriage with Mr Tsang in 1997 lost the status of jimu and thus was not entitled to succeed to the residuary estate of the deceased pursuant to the Ordinance. As it is, it is not necessary for me to express any definite conclusion on this point. Relief under Cap 481 106.Madam Ho originally counterclaimed, in the alternative, for relief under section 4 of the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481). Mr Chong, on her behalf, abandoned the claim during the course of trial, on the ground that such a claim should be directed against the estate of the deceased, rather than Madam Leung. I need say no more about the claim for relief under that Ordinance. Outcome 107.In conclusion, the plaintiff’s claim for a grant of letters of administration of the estate of the deceased, on the basis that she is the sole beneficiary of the deceased’s residuary estate, succeeds, and the counterclaim fails. There will be judgment accordingly. I also make an order nisi that the costs of the action (including the counterclaim) be paid by the defendant to the plaintiff, to be taxed if not agreed. I also order that there be taxation of the plaintiff’s own costs as well as the defendant’s own costs in accordance with the Legal Aid Regulations (Cap 91). 108.Unless an application to vary the costs order nisi is made within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14-day period. Postscript 109.As I remarked at the outset of this judgment, this is a very unfortunate case. I am convinced, having considered the evidence, that Madam Ho played a most significant part in raising up the deceased. She and the deceased had developed an excellent relationship and she treated him as her own and no different from her own natural children. Their relationship was no different from that between a natural mother and son – except that the deceased did have a natural mother, with whom he maintained regular contacts, particularly after he had grown up. I have no doubt that Madam Ho was a loving and exemplary stepmother. It is unfortunate that this litigation has become unavoidable as a result of the entrenched positions of both parties. The Court can only resolve the differences between the parties by applying the law as it is. The Court’s role is to properly construe the Ordinance; it cannot alter the law in accordance with what it thinks is fair and reasonable. That is not the function of the Court. 110.“A hard case makes bad law”, one hears it said from time to time. This is indeed a hard case. The Court has firmly reminded itself that it must not allow the unhappy facts in this case to affect its construction of the Ordinance, which applies to all cases – hard ones or not. It only hopes that Madam Ho would not see this judgment as a pronouncement of failure of anything personal on her part, but rather as an acknowledgment by the Court of her great efforts and contributions towards raising up the deceased under very difficult and trying circumstances. 111.As regards Madam Leung, various allegations have been made against her, which I find it wholly unnecessary to resolve. All I would like to point out is that she was the principal wife of Mr Tsang, and it was Mr Tsang who first had an extra-marital affair, which resulted in his taking Madam Ho as a concubine. All this happened before the allegations against Madam Leung supposedly took place. 112.Lastly, I would like to thank counsel for their assistance.
Mr Paul H M Leung, instructed by Messrs S K Wong & Co, assigned by the Director of Legal Aid, for the Plaintiff Mr K M Chong, instructed by Messrs Joseph Leung & Associates, assigned by the Director of Legal Aid, for the Defendant Appeal dismissed: see CACV3/2007 dated 10 April 2008 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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