Re Tong Sau Chun

HCAG 9435/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 9435 OF 2009

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Before: Hon Lam J in Chambers

Dates of Hearing: 30 December 2010 and 28 March 2011

Date of Judgment: 26 May 2011

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J U D G M E N T

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1.This is an application for grant in respect of the estate of the late Tong Sau Chun [“the Deceased”] who died intestate on 22 May 2008. The Deceased had no natural child of her own. The Deceased was married to her late husband Tang Tai On [“Tang”] on 16 June 1971. Before that marriage, Tang had been married to another lady who passed away in January 1971. Out of that previous marriage, Tang had 7 children. After her marriage with Tang, the Deceased lived together with the children as a family.

2.One of those children, Tang Hing Chuen [“the Applicant”] applied for grant of letters of administration in respect of the estate of the Deceased in the capacity as her child.  The Applicant was born on 18 November 1948.  Thus, when the Deceased married Tang, he was 22 years old.

3.The Deceased has a sister Tong Siu Chun.  Her solicitor indicated on her behalf that she has no wish to advance any claim in respect of the estate of the Deceased and she has no objection to the Applicant’s application.  However, if the court were to hold that the Applicant does not have the requisite status to apply for grant, I understand that she would take up the grant but she would willingly forgo her entitlement in favour of the Applicant and his siblings.

4.The application raises the issue whether a step-child can come within the definition of the words “child” and “issue” under the IEO and if so what are the criteria for distinguishing between a qualified step-child and a non-qualified one.

5.Mr Joseph Lam on behalf of the Applicant relied on the decision of Yam J in Chan Lai Fong and submitted that the Applicant should be regarded as a child of the Deceased for the purpose of the IEO.  Accepting that not all step-child can qualify as a child of his or her step-parent, Mr Joseph Lam suggested that the relevant test is whether the child was brought up by the deceased person as his or her own child.  Whilst there is evidence in the form of photographs and newspaper advertisement showing that the Applicant and his siblings did over the years treated the Deceased as their mother (a proposition which I readily accept), there is no evidence as to the role played by the Deceased in the upbringing of the Applicant.  In any event, the matter is resolved by my conclusion on the legal issue.

6.The legal issue is a common issue in a number of cases and this court heard submissions from various parties.  After considering the submissions (including those of Mr Joseph Lam), I conclude that the proper construction of the words “child” and “issue” under the IEO should be confined to the natural child that a deceased person has given birth to.  The reasons for coming to such conclusion are set out in my judgment in HCAP 4 of 2010 handed down on the same occasion as this judgment.  They should be read as being incorporated into this judgment and I shall not repeat the same here.

7.In the circumstances, the Applicant cannot obtain a grant as a child of the Deceased.  Application for grant should be made by the sister who, after obtaining title to the estate, and if she is the sole beneficiary, can dispose of the net estate in whatever manner as she wishes.

Mr Lam Siu-wah, Joseph, instructed by Messrs Kong & Tang, for the Applicant

Mr Au King Wah, Alan of Messrs Hagon Wai & Partners, for the Sister