Ling Yee Kui v. The Secretary for Justice

HCAP 4/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 4 OF 2010

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Before: Hon Lam J in Chambers

Date of Hearing: 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.For the purpose of the Intestates’ Estates Ordinance [“IEO”] Cap.73, is a step-child regarded as an issue of his or her step-parent? This is the question which this court has to decide in these proceedings. As the same issue arises in several cases, this court heard the present case together with other cases. However, it is convenient for a judgment to be delivered in the present action as the lead judgment and I shall deal with the other cases in separate judgments.

2.This is a probate action in which the Plaintiff applied for grant of the letters of administration in respect of the estate of her late step-mother [“the Deceased”]. Her claim is disputed by the Defendant. The Secretary for Justice is the Defendant because of the potential claim to the estate by way of bona vacantia. The issue was considered by this court as a determination on a point of law pursuant to Order 14A. The assumed facts salient to the point in issue are as follows.   

3.The Deceased married her husband Ling Wai Ping in 1962 as a tin-fong wife. Before that, the first wife of Ling Wai Ping died in 1953. The Plaintiff and 5 other siblings were born during the wedlock of Ling Wai Ping and the first wife. She became the step-child of the Deceased after the latter’s marriage with her father. Ling Wai Ping died in 2000 and the Deceased died in 2001. Apart from the step-children, the Deceased had no other relative.

4.As the pleadings stand, the Plaintiff only rely on her status as a step-child to support her claim that she was an issue of the Deceased. On 7 March 2011, the Plaintiff took out a summons seeking leave to amend to pray reliance on Section 2(2)(c) of the IEO to assert a claim of adopted child status based on Chinese customary law. In accordance with my direction given on 13 January 2011, that summons shall only be dealt with after the disposal of the Order 14A point.

5.This judgment deals solely with the Order 14A determination without any regard to the application for amendment.

The statutory framework

6.The Intestates’ Estates Ordinance Cap.73 [“the IEO”] governs the distribution of the estate of a deceased person when he or she died wholly or partly intestate. Section 4(5) of the IEO reads,

“If the intestate leaves issue but no husband or wife, the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate.”

7.Before 1995, there was a general definition for issue in Section 2(2)(a). It read,

“References this Ordinance to a child or issue of any person shall mean a child of a valid marriage to which that person was a party.”

8.It was repealed in 1995 because it discriminated against illegitimate children.

9.Before its repeal in 1995, Section 2(2)(b) of the IEO dealt with the specific question arisen in the present case, viz. whether a step-child should be regarded as an issue of the intestate. It read,

“References in this Ordinance to a child or issue of any person shall mean if that person is a female, a child of a valid marriage to which her last husband and another female were parties.”

10.It was also repealed in 1995 because it applied only in cases where the deceased was a female and as such discriminatory.

11.After the amendments in 1995 and 2004, the amended Section 2(2) and (2A) of the IEO deal with the situation of adopted child. Without going into the details as to the various routes of adoption, for present purposes it suffices for me to highlight that these subsections provide that for the purpose of the IEO the adopted child shall be treated exclusively as the child of the adopter and not as the child of any other persons. In other words, the adopted child cannot have any claim to his natural parents’ intestate estate.

12.Subject to the proposed amendments (which I am not concerned with in this judgment), the Plaintiff’s claim is based on her status as a step-child rather than an adopted child. These subsections cannot assist her.

13.For the sake of completeness, I should also mention that Section 2(3) deals with the position of a child or issue en ventre sa mѐre at death.

14.In addition, in para.2 of Schedule 1, there are provisions dealing with the right of succession in family with concubinage. Children of a concubine is put on the same standing as children of the principal wife and they can all inherit the estate of the principal wife as well as that of the tsip(s). As provided in Section 13(1), Schedule 1 only has effect in relation to a union of concubinage entered into before 7 October 1971. It has no application in the present case as it is not suggested that there was any union of concubinage in the Ling family.  

15.There is therefore no provision in the current IEO dealing specifically with the question whether a step-child should be regarded as an issue of a deceased person.

16.Before I come to the relevant case law, it should be mentioned that the IEO is not the only piece of legislation affecting the disposal of the intestate estate of a deceased. At the same time when the IEO was enacted in 1971, the Deceased’s Family Maintenance Ordinance Cap.129 [“DFMO”] was also enacted. The DFMO gave the court the power to order provisions for a dependant when the disposition of a deceased’s estate effected by will or the law relating to intestacy does not make reasonable provision for the maintenance of such dependant.

17.When the law was revised in 1995, a new piece of legislation was enacted to replace the DFMO. The Inheritance (Provision for Family and Dependants) Ordinance Cap.481 [“IPFDO”] came into operation on 3 November 1995, the same date as the 1995 amendments to the IEO.

18.Section 2(1) of the IPFDO contains a definition for “child”. It does not include step-child. Further, Section 3(1) sets out the persons who can make an application under the IPFDO. Sub-section (1)(v) and (vi) deals with infant, disabled and adult children of the deceased respectively. Then sub-section (vii) refers to,

“any person (not being a child of the deceased) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage and was being maintained, either wholly or substantially, by the deceased immediately before his death.”

19.Thus, in the context of the IPFDO, a distinction is drawn between a child of the deceased and a child treated by the deceased as a child of the family. It appears that the former refers to the natural children of a deceased whilst the latter may cover step-children.

20.Though the same word many have different meanings under different statutes, when two statutes are in pari materia it is assumed that uniformity of language and meaning are intended, see Bennion on Statutory Interpretation, 5^th Edn, p. 603-4.  I shall consider below as to whether the statutory provisions in the IPFDO should have any bearing on the proper interpretation of the IEO.

The relevant cases

21.Three relevant authorities were discussed in counsel’s submissions,

(a)  The English case of Leach v Lindeman [1986] 1 Ch 226;

(b)  The decision of Yam J in Re the Estate of Chan Lai Fong HCMP 2988 of 2003, 3 June 2004;

(c)  Leung Lai Fong v Ho Sin Ying (2009) 12 HKCFAR 581.

22.Leach v Lindeman [1986] 1 Ch 226 was a case decided under the English Inheritance (Provision for Family and Dependants) Act 1975 which is similar but not identical to our IPFDO. The plaintiff claimed provision from the estate of her deceased step-mother. The claim was opposed by the sisters and brother of the deceased. The pertinent issue decided in that case was whether the plaintiff came within the meaning of Section 1(1)(d) as “any person (not being a child of the decease) who, in the case of any marriage to which the deceased was at any time a party, was treated by the deceased as a child of the family in relation to that marriage”.

23.That is not the same as the issue arisen for decision in the present proceedings. However, the court had to consider the meaning of the word “child” which was defined under Section 25(1) of the Act to include illegitimate child and a child en ventre sa mѐre at death. At p.230-231 of the judgment, Slade LJ held that “child” does not include step-child. This is regarded as authority for the proposition that un-adopted step-children have no entitlement on intestacy in England, see Sherrin & Bonehill The Law and Practice of Intestate Succession, 3^rd Edn para.10-018. At footnote 73, the learned editors referred to the position in Hong Kong and expressed the view that after the repeal of our old section 2(2) the law in Hong Kong stands on the same footing as that in England in this respect.

24.The Plaintiff relied heavily on the decision of Yam J in Re the Estate of Chan Lai Fong HCMP 2988 of 2003, 3 June 2004. It was a decision on the same issue arisen in the present case. Yam J recognized that he could not give effect to Chinese customary law as to succession since the enactment of the IEO. However, His Lordship was able to construe the word “children” to include step-children by “looking at the situation from the basics of ethics, common sense, fairness and justice”. From the judgment, it seems that the following grounds were relied upon to reach this conclusion,

(a)  Comparing the applicants’ case with Mr Thomson’s Case 3 discussed by the Law Reform Commission in the Report leading to the 1995 amendments (paras.22 to 25);

(b)  The deceased was married by the father of the applicants as tin fong (para.26);

(c)   The intention of the 1995 amendments was not to enrich the Crown by increasing the chances of such estates becoming bona vacantia (para.29);

(d)  The applicants are the de facto and therefore de jure children of the deceased even though they could not be regarded as being adopted under Chinese law and custom (para.30).

25.At para.32, Yam J placed a caveat on his judgment,

“As a caveat, I would like to state that my decision herein is restricted to the particular circumstances of the applicants herein and is not intended to apply generally in other circumstances. Each case must be decided on its own facts.”

26.Unwittingly, this caveat has created some difficulties in the Probate Registry’s consideration of other applications for grant. Naturally, solicitors acting for applicants in similar position as the applicants in Chan Lai Fong cited the case as authority in support their clients’ application. However, those opposing the applications referred to the caveat as diminishing the binding effect of this authority. Over the years, several applications have remained unresolved by reason of the uncertainty so generated. After the matter had been brought to this court’s attention, directions were given for all these cases to be listed for a hearing and it is hoped that the determination in this instance would resolve the issue once and for all.

27.Before I consider the submissions of the parties and analyse the decision of Yam J in the light of other relevant materials, I should briefly refer to the decision of our Court of Final Appeal in Leung Lai Fong. The scenario in Leung Lai Fong is not the same as what happened here. The court there was concerned with a contest to the right of succession between a natural mother and a step-mother. The relevant provision in the IEO was section 4(7) referring to the right of succession of the deceased’s “surviving mother”. The issue that the Court of Final Appeal had to consider was whether “mother” in this context referred to the natural mother or the “legal mother” under Chinese customary law.

28.Though I appreciate the difference in context[1], the Court of Final Appeal in Leung Lai Fong endorsed the approach that prima facie one should construe the word “mother” in the IEO as referring to the natural mother. At para.33 of the judgment, Chan PJ said,

“Starting with the natural mother also accords with the common law rule of statutory construction that an ordinary word should be given its ordinary and natural meaning unless the context otherwise requires.”

29.The Court of Final Appeal referred to the legislative background leading to the enactment of the IEO in 1971 and Chan PJ held at para.27 of the judgment,

“There is thus no room for the argument that somehow the concepts of succession under the Chinese customary law also play a part in intestate succession after 7 October 1971.”

That should be read as referring to the general position but subject to express statutory provisions preserving certain aspects of Chinese customs applicable to some pre-existing relationships like Section 2(2)(c) regarding adopted person and the reference to children born from pre-existing concubinage mentioned in the Schedule.  

The report of the Law Reform Commission and the amendments in 1995

30.Given the importance attached to the discussions in the report of the Law Reform Commission on the law of wills, intestate succession and provisions for deceased persons’ families and dependants by Yam J in Chan Lai Fong and the reliance on the same by Mr Simon Lam, counsel for the Plaintiff, I need to allude to it at some details.

31.As mentioned earlier, the Law Reform Commission considered the pre-1995 IEO to be unfair because of the discriminatory effects of some legislative provisions: some step-children were provided for, some not; and illegitimate children were not covered. At paras.9.5 to 9.8 of the Report, the Commission referred to an article written by a former Registrar General Mr W.K.Thomson, in particular Cases 3 and 6 therein, to illustrate the potential injustice.

32.It is necessary to set out Cases 3 and 6 as the Commission expressly referred to them in its recommendation.

“Case 3

W, a spinster, marries H who has a year old daughter D by his former wife. W, who never has a child of her own, brings D up as if she were her own child. Twenty years later, H dies and after a decent interval W marries NH who has a son B aged 30 living in Australia. Soon after, both W and NH are killed in a car accident, W having survived NH by one hour.

B inherits W’s estate to the exclusion of D, who as things turned out was disinherited by W’s marriage to NH, since on that marriage NH became W’s last husband and therefore section 2(2)(b) no longer applied to D.

Case 6

W, a childless widow, marries H, who after a few years runs off with LM, the little minx next door. W gets a divorce, whereupon H marries LM and they have a child C. W dies intestate, leaving as her only relative her beloved sister S. Who was W’s last husband? Without a doubt, H. Was C the child of a valid marriage between W’s last husband and another female? Who can gainsay it? Then it is as clear as crystal that C is entitled to inherit the whole of W’s estate to the exclusion of S.”

33.The Commission recommended to correct the anomalies by, inter alias, repealing the then Section 2(2). At para.9.11(1), the Commission explained what they perceived as the effect of such repeal,

“As this entails the repeal of section 2(2)(b), the outcome in Mr Thomson’s examples will no longer offend all concepts of fairness. Hence in case 3 D will inherit to the exclusion of B and in case 6 S will inherit to the exclusion of C.”

34.Whilst I can see how the repeal of section 2(2)(b) would bring about the desired consequence in case 6, I confess I have difficulties regarding the situation in case 3. In the absence of a provision to cater for the right of succession of D in case 3, what is the basis for distinguishing between B and D? Presumably the Law Commission regarded the fact that D was brought up by the deceased as her own child to be significant. But this criterion cannot be found anywhere in the IEO. 

35.In Chan Lai Fong Yam J suggested at para.24 of his judgment that the Law Commission had applied the common law principle of interpretation and looked at the matter “from the basics of ethics, common sense, fairness and justice” and taken D as the child of the deceased in such scenario.

My analysis

36.In my judgment, it must be firmly borne in mind that the court’s duty is to render judgment according to the law, and in the present context, according to the provisions of the IEO. No matter how a judge feels as to the moral strength of a party’s claim, if such a claim does not fall within the statutory provisions the court cannot accede to it.

37.The IEO operates in situations where a deceased does not make a will or where he fails to completely dispose of his or her estate by will. Whilst it had been said that the provisions in the IEO were drafted on certain assumptions as to how a person dies intestate would have wished to make provision for his or her near relations (see para.7.3 of the Report of the Law Reform Commission), it remains a fiction that what is provided for under the IEO corresponds precisely with what a particular deceased would hope to achieve. What is provided for under the IEO should be regarded as rules formulated by the legislature based on such working assumptions which might or might not be true for any individual cases. As the rules are adopted by statute, the court should apply the wordings of the statute instead of striving to find out what was the presumed intention of the deceased.

38.In other words, the court will not examine the evidence as to what a deceased would have intended in order to see whether the rules under the IEO should be applied. No matter how close and intimate a claimant is with a deceased, if he or she is not within the class of persons provided for under the IEO, he or she could not have any claim as a beneficiary of the estate if the deceased died intestate.

39.As with most situations where a single set of solutions is offered universally for all cases, the IEO is bound to be a blunt instrument for dealing with all cases of intestacy. Whilst it provides a set of certain and precise rules to deal with the disposal of estate in cases of intestacy, it is inevitable that there are cases where some persons with some legitimate moral claims for provisions from the estates of a deceased person would be disappointed by the operation of the IEO. This stems from the inherent impossibility of having one set of rules providing perfect solutions for infinite possibilities.

40.Moreover, it is important that the solution offered by the IEO must be certain and easy to operate. Thus, the beneficiaries are identified by relationships readily ascertainable instead of having regard to the emotional ties between a relative and the deceased during the lifetime. The latter question, whilst arguably relevant to a moral claim to the estate, can subject to much debate amongst those having potential claims to the estate and it would not be conducive to family and social harmony to adopt such a test for entitlement to intestate estate.

41.It can be said that the rules in the IEO may not offer the fairest answer as it focuses on one aspect of human experience, viz. kinship, as the criteria for determining entitlement in intestacy. Other facets of a deceased’s life are neglected: e.g. friendship, charitable or religious disposition, social, professional or political commitments. Even amongst the next-of-kin, as mentioned above, the rules laid down in the IEO do not permit the court to inquire into how emotionally close or financially dependent a next-of-kin has been with the deceased as compared with other potential claimants.

42.On the other hand, it is very difficult to devise a universal and practical solution which is perfect for all cases involving intestacy. Indeed, it may be said that no tribunal or person other than the deceased person (who alone has undergone all the experience in his own life) can truly know everything a testator would take into account in deciding what should be done by way of disposition of his estate. Further, even a testator may not make a fair disposal because he would exercise his testamentary discretion according his own idiosyncratic preferences which could be biased or prejudiced.

43.Thus, whilst one can understand why some potential claimants may feel aggrieved by the operation of the rules in the IEO it does not necessarily mean that one should resort to some other solutions.

44.In the references to Cases 3 and 6 of Mr Thomson, the underlying assumption seems to be that one should refer to the emotional tie between a claimant and the deceased to arrive at a fair distribution of the estate. But as explained above, this is not the solution offered by the IEO and for practical reasons already canvassed this could not be the solution.

45.The deficiency in the IEO scheme is ameliorated by other legal policies within our law of succession. First, the IEO only comes into play when there is intestacy. A person is at liberty to make his or her own will which would prevail over the rules of distribution under the IEO.

46.Second, the IPFDO supplements the operation of the IEO (as well as a disposition of the estate according to the will of a deceased person) to ensure reasonable financial provision from the estate is made for the specified persons identified in that ordinance.  The nexus between the IPFDO and the IEO is highlighted by the history leading to both pieces of legislation, their simultaneous enactments, the cross-referencing to each other in the legislation and the common subject matter that they are dealing with.

47.Third, as submitted by Ms Eu SC on behalf of the Secretary for Justice, under Section 4(9) of the IEO, in cases where the estate is devolved to the Government as bona vacantia, a discretion is conferred upon the Government to provide for dependants or other persons for whom the intestate might reasonably have been expected to make provision.

48.The third option has not received much attention in this jurisdiction and I am grateful to Ms Eu for bringing this up. At present, the Government has not published any policy with regard to how the discretion would be exercised. At my invitation, Ms Eu and her junior Mr Suen conducted research as to the practice in England on a similar power under section 46(1)(vi) of the Administration of Estates Act 1925. Reference can be made to Williams, Mortimer & Sunnucks on Executors, Administrators & Probate (2008) para.79-11 and Sherrin & Bonehill The Law and Practice of Intestate Succession, 3^rd Edn para.14-018 as to the matters that the Crown would consider in the exercise of such discretion. In Re DWS (deceased) [2001] 1 All ER 97 at paras.39 and 41, Sedley LJ proceeded on the basis that the Crown would make an equitable allocation of the estate. Based on what I have been told, I have no reason to believe that the Hong Kong Government would adopt a different approach in processing claims under section 4(9).

49.It is necessary for me to make these preliminary observations in the light Mr Simon Lam’s submissions that basing on the underlying assumption that the rules in IEO aim at achieving what a deceased person would have wished to make provision for in the distribution of his estate. As explained, the court’s duty is to decide the case according to the provisions in the IEO and the IEO does not direct the court to conduct an investigation into the intention of the deceased.

50.Thus, it is wrong for the court to start from the premise it is likely that the Deceased would prefer giving her estate to her step-children to devolving it to the Government by way of bona vacantia and conclude thereby that the IEO should be construed in such a way to give effect to such intention.

51.In my judgment, the starting point must be the wordings used in the relevant statutory provision and the natural and plain meaning of such wordings. This is the approach endorsed by the Court of Final Appeal in Leung Lai Fong[2]. In the judgment of the Court of Appeal in Leung Lai Fong[3] Yuen JA said at paras.25 and 26,

“The prima facie meaning of a person’s ‘mother’ is the woman who gives birth to him. Where the Legislature intended to mean another woman, there are clear provisions to that effect in the IEO. Thus, adoptions are specifically provided for: see s.2(2) and s.2(2A) of the IEO. Also, where a man has taken one (or more) concubine9s), there are provisions stipulating that generally all his children (whether begotten by his wife or concubines) are regarded as children of the father, the wife and (all) the concubine(s) for the purpose of the children succeeding to these persons’ estates: Sch.1 para.2 of the IEO.

Save for those provisions and certain specific provisions for succession between concubines and make partners set out in paras.4 and 5 of Sch.1 of the IEO, there is nothing to indicate that the Legislature has intended to apply any other aspects of Chinese customary law to the statutory regime contained in the IEO. And given those specific provisions, the principle of interpretation best known by the Latin maxim expressio unius est exclusio alterius indicates that the Legislature intended that other aspects of Chinese customary law should not apply.”

52.As I have already observed, Yuen JA said these in a different context. But having considered the submissions of the parties and bearing in mind what I have said above, I am of the view that in the present context one should start from the prima facie meaning of a child or issue of a person, viz. someone he or she gave birth to. This is the natural meaning given to the word “child” by Slade LJ in Leach v Lindeman [1986] 1 Ch 226.

53.Is there anything in the context of the IEO which requires another meaning be given to the words “child” or “issue”? Mr Simon Lam referred to the absence of the word “only” in Section 2(2) of the IEO and contended that implicitly there could be persons other than an adopted child who would be treated as a child of a deceased person.

54.I cannot agree. Mr Lam’s submission is directly contradicted by the well established principle of statutory interpretation applied by Yuen JA: expressio unius est exclusio alterius. The absence of the word “only” in Section 2(2) could not carry with it the implication contended for by Mr Lam.

55.A further indication that the words “issue” and “child” cannot carry with them the extended meaning of step-child is the express reference to the position of a step-child to a female deceased person in the former Section 2(2)(b). Again, by operation of the same principle of statutory interpretation, it means that without such express provision the position of a step-child was not covered by a mere reference to “issue” or “child”. Put it in another way, if the correct interpretation of these words were to include a step-child, it is difficult to see why it was necessary to have the former Section 2(2)(b).

56.Even though the former Section 2(2)(b) was repealed in 1995, there is nothing in the 1995 amendment which suggests that a different meaning is to be given to the words “issue” or “child” through the amendment. Mr Simon Lam referred to the comments on Case 3 in the Report of the Law Reform Commission. I do not think such comments assist him. It is abundantly clear that the Law Reform Commission did not recommend that all step-children should have the same right of succession as a natural child. In Mr Thomson’s Case 3, both B and D can be regarded as the step-children of the deceased and the Law Reform Commission was of the view that B should be excluded.

57.As observed earlier, the Law Reform Commission had not addressed the issue how one can distinguish between the position of B and that of D in Case 3. The repeal of the former Section 2(2) per se could not achieve this result. There is nothing in the legislative process in 1995 to indicate that the Legislature intended to effect any change to the meaning of the words “child” or “issue”. On the contrary, with the insertion of the new Section 2(2), coupled with the operation of expressio unius est exclusio alterius, the proper construction of these words is that the natural and plain meaning should be applied.

58.If the natural meaning of the words is to be extended, there are considerable difficulties in drawing the line. The Law Reform Commission did not make any proposal in this regard. Actually, Mr Simon Lam did not urge the court to include all step-children into the meaning of “issue” and “child”. In his further written skeleton, he asked the court to include person taken as child of a deceased by reason of a certain period of living together as family members. At the hearing, this court enquired with Mr Lam about the duration of such period of living together. Mr Lam initially replied that no fixed duration is required and it could be one week only. After that week, counsel said it does not matter even if the step-child ceased to have further connection with the deceased. However, after hearing the submission of Mr Joseph Lam, counsel for the applicant in another case[4], Mr Simon Lam added the qualification that the deceased must be married to the natural father or mother of the step-child when the latter was a minor.

59.It seems to me that Mr Simon Lam has not been able to formulate the precise test for defining the class of persons who could be regarded as “child” or “issue”. The wavering on his part and the disagreement between him and Mr Joseph Lam provides a clear illustration as to the problem in extending the meaning of the words “child” and “issue” beyond their plain and natural meaning. Once one embarks on a journey to go beyond a child whom the deceased gave birth to, there would be debates on the proper criteria to be adopted, particularly when it is accepted that not all step-children should automatically be qualified. In the end, the debate would inevitably focus on criteria involving the court conducting an examination of the character and nature of the relationship between a claimant and the deceased. And that, as explained above, is not the scheme provided for under the IEO.

60.The same difficulties stemmed from the approach adopted by Yam J in Chan Lai Fong. With the greatest respect, the judgment did not set out specifically a single test for determining whether someone other than the natural child of a deceased should be regarded as a “child” or “issue” under the IEO. Various concepts were mentioned in the judgment: a step-child brought up by the Deceased (para.24); step-child of a deceased who had been married as a tin-fong wife (para.26); de facto and de jure child(para.30). But His Lordship had not identified any one of those concepts as the distinguishing criteria.

61.If these concepts are considered individually, each may have its own difficulties. For the concept of a step-child brought up by the Deceased, it would involve investigation into the role played by the Deceased after he or she became the step-parent and the relationship between them over the years. Apart from factual disputes, there can be disputes as to whether certain acts should be regarded as acts pertaining to the upbringing of a child and whether reciprocity on the part of the child is required. Looking it from another angle, there can also be debate on why should it be confined to step-child and not applicable to some other person brought up as a child by the deceased.

62.For the concept of a tin-fong deceased, it would operate discriminatorily as the concept is only applicable to a female deceased and as such against the rationale for the 1995 amendments.

63.For the concept of de facto and de jure child, Yam J did not explain what relevant test was to be applied in coming to such a finding. If it involves investigation of the relationship between the child and the deceased over the years, it would generate the same sort of uncertainties which the Court of Final Appeal tried to avoid in the context of construing the meaning of “mother” in Leung Lai Fong.

64.Probably, Yam J recognized the problem and that accounted for His Lordship’s caveat at para.32 of his judgment. But that caveat created uncertainties in the law. More importantly, I have reservation about construing the words “child” and “issue” in a manner which generates so much uncertainties in an area of law which, for reasons I have given in Leung Lai Fong [5], should be certain and easy to apply. The mere difficulty in formulating the precise test shows that there are rooms for disagreement on the scope of any extended meaning. In the absence of clear expression of intent of the legislature as to the limits of any extension, I do not believe that the court could resolve that by way of statutory construction.

65.Further, the implication of Section 4(9) of the IEO was not considered by Yam J. Nor did His Lordship have the benefit of the guidance of the judgments in Leung Lai Fong. Having the advantage of these additional enlightenments and for the reasons I canvassed above, I respectfully disagree with the construction put on the words “issue” and “child” by Yam J. I do not believe there is anything in the context in the IEO requiring a construction other than construing those words according to their plain and natural meaning of a child given birth by the deceased.

66.The adoption of this construction is reinforced by a reference to the meaning given to the word ‘child’ under the IPFDO which is in pari materia as explained earlier.

Conclusion

67.For the reasons given above, I hold that a step-child is not within the meaning of “child” and “issue” of a deceased for the purposes of the IEO. I also hold that subject to the application for leave to amend and the merits of the Plaintiff’s claim pursuant to Section 2(2)(c) of the IEO, she has no locus to ask for a grant as a child of the Deceased.

68.Though I rule against the Plaintiff in this application, the law was uncertain by reason of the decision of Yam J and I understand the Secretary for Justice welcomes the opportunity to clarify the law for the sake of public interest. Further, the Plaintiff and her siblings might still advance a case under Section 4(9) if she eventually does not succeed on the Section 2(2)(c) route. In the circumstances, I propose to make a costs order nisi that the costs of both the Plaintiff and the Defendant in respect of the Order 14 A application be paid out of estate.

69.I give liberty to the Plaintiff to apply for a hearing of her application for amendment before a master if parties cannot resolve the same within 14 days after the delivery of this judgment.

Mr Simon H W Lam, instructed by Messrs Hobson & Ma, for the Plaintiff

Ms Audrey Eu, SC and Mr Jenkin Suen, instructed by Department of Justice, for the Defendant