Lok Tin Choi v. Lai Kwai Lin
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CACV 146/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 146 OF 2014 (ON APPEAL FROM HCMP 315 OF 2012) ________________________
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________________ J U D G M E N T Hon Cheung JA : Background 1.1The plaintiff (‘the son’) is the son of the defendant (‘mother’) and Mr Lok Sang Cheung (‘the deceased’). The son was born in 1971. The deceased died in 1984 when the son was 12 years of age. The deceased’s estate consisted of, for the purpose of this case, interests in eight lots of land in Demarcation District No. 111 in the New Territories namely, whole share in Lot No. 1805, 1811, 2437 and 2434B and one third share in Lot No. 2394, 2402, 2415 and 2413 RP. 1.2The deceased’s two brothers had the other two third share in Lot Nos. 2394, 2402, 2415 and 2413 RP. 1.3Pursuant to the then section 17 of the New Territories Ordinance (Cap 97) (‘NTO’) the son succeeded to the estate of the deceased with effect from 4 March 1984. As the son was still under age, the mother was appointed as his trustee. 1.4The deceased’s two brothers transferred their shares in Lot 2413 RP to the son. This lot had since been disposed of by the son after it was vested in him by the mother and this appeal is concerned with the remaining seven lots of land. 1.5The deceased had five daughters, three of whom are married and two are unmarried. The son is living separately with his own family in the house built on Lot 2437. The address of this lot is known as No. 104, Wang Toi Shan Tsuen, Fan Kam Road, Pat Heung, Yuen Long (‘the 104 House’). The mother and her two unmarried daughters live in the house built on Lot 2434B. This is located at No. 107 of the same address of the 104 House (‘the 107 House’). The house has been the family home of the deceased and his family. 1.6In 2010, two other lots of the estate, namely, Lot No. 1805 and Lot No. 1811 which were located in Choi Yuen Village (菜園村) were resumed by the Government for the purpose of building the Guangzhou - Shenzhen - Hong Kong Express Rail Link. The Government agreed to pay compensation of $8,555,404.80 for the resumption. The Government is still holding this money pending the resolution of this case. 1.7In 2012, the son commenced the present proceedings asking for, amongst other things, the mother to vest the seven lots of land in him. The mother, on the other hand, raised a counterclaim, seeking, amongst other things, a declaration that in accordance with Chinese law and custom the son should maintain her for life and to provide dowries (if applicable) for the two unmarried daughters. She also seeks enforcement of a family agreement reached on 8 November 2010 concerning the distribution of the compensation money, namely, $4.05 million is to be paid to the son and the mother for the purpose of rebuilding the two houses. $1 million is to be paid to the son and $3.5 million is to be paid to the mother absolutely as maintenance for life. 1.8Deputy High Court Judge Saunders ordered the five lots of land which have not been resumed by the Government to be vested in the son. As rightly pointed out by the Judge, since Lot Nos. 1805 and 1811 had been resumed, they could no longer be vested in the son. Instead, he granted a declaration that the son was immediately prior to the resumption, the beneficial owner of these two lots and is entitled to all the rights arising from the resumption. There is no controversy on this aspect of the judgment. 1.9In respect of the mother’s counterclaim, the Judge rejected her evidence that there was a family agreement concerning the distribution of the compensation. He further held that he had no jurisdiction to apply Chinese custom or customary rights to the compensation money. He held that Chinese custom or customary inheritance rights appear now to be limited solely to New Territories land and not to personalty. 1.10While the parties had called expert evidence on the Chinese custom of making provision for the maintenance of parents and provision of dowry for unmarried daughters, the Judge held that it was not necessary for him to address this evidence in the light of his decision on jurisdiction. 1.11There was an issue at the trial that the mother had negotiated the compensation without the knowledge and consent of the son. This is no longer a matter that concerns this appeal. The mother’s appeal 2.The mother now appeals against the dismissal of her counterclaim. Mr Kenneth Wong on her behalf submits that the compensation is still subject to Chinese custom which requires the son to maintain the mother and provide dowry for the two unmarried daughters. This is the only issue in this appeal. The mother has not argued that the Chinese custom she relied upon apply to the other five lots of land which have not been resumed. Compensation from the resumption and Chinese custom 3.1In order to ground jurisdiction, Mr Wong has to show that the case comes within the original section 13 of the NTO (1984 Revised Edition) and the new section 13(1) of the current edition NTO which provides that in proceedings in the High Court in relation to land in the New Territories, the Court shall have power to recognize and enforce any Chinese custom or customary right affecting land. This provision was interpreted in Tang Kai Chung & Another v Tang Chik Shang & Others [1970] HKLR 276 to mean that the Court must recognise and enforce Chinese custom and customary rights in such proceedings. 3.2The son no longer has the land, namely, Lot Nos. 1805 and 1811 and is instead entitled to compensation that arises from their resumption. Mr Wong submits that the majority decision of this Court in Tang Che Tai and others v. Tang On Kwai and others (CACV 137/2007, Judgment dated 25 January 2008) came to the view that Chinese law and custom applies to compensation money. 3.3The context of Tang Che Tai and others was land in the New Territories which was designated as Tong (堂) land for ancestral worship but had since been resumed by the Government and compensation paid for the resumption. The issue in that case was concerned with how distribution of the compensation should be made. The plaintiff’s case was that there should be no distribution without unanimous consent. The defendant’s case was that distribution should be in accordance with a 1982 decision of the members of the Tong, which provided for compensation money to be distributed partly per capita and partly per stirpes. 3.4This Court was unanimous on the outcome of the appeal but there was difference in views on whether Chinese law and custom applied to the compensation that arose from the resumption of the Tong land. Tang VP (as he then was) at paragraph 11 held that :
3.5He, however, went on to hold that :
3.6My approach is at paragraph 57 :
3.7There seem to be suggestion raised at the hearing that I had treated compensation as land within its definition under section 2 of the NTO. While I held that Chinese law and custom applied to the compensation, as can be seen from the part of the judgment which I have underlined above, I had in fact eschewed from holding compensation comes within the definition of land which is under the ambit of section 13 of the NTO. The basis of my decision is that Chinese law and custom applied to the compensation because the resumed land itself had always been imprinted with the characteristic of an ancestral worship Tong under Chinese law and custom. 3.8Lam J (as he then was) agreed that the definition of land under the NTO does not include compensation money but held that Chinese custom applied for the following reasons :
3.9The fact that Lam J and I held in that case that Chinese law and custom applied to the compensation from the resumption of the Tong land does not mean that the same rationale would apply to the compensation in this case because our view then must be properly considered in the context of that case. Here, unlike that case, the two lots of land which had been resumed were not imprinted with the institution of a Tong. In the absence of this special feature Mr Wong has to show that somehow section 13 of the NTO still applies to the compensation in this case. He has not advanced any other arguments on this issue. 3.10The definition of land in section 2 of the NTO has not made reference to compensation arising from resumption or proceeds of sale of such land. In my view Mr Wong has not overcome the statutory definition of land upon which Chinese law and custom may be invoked. Pre-cessational law 4.1Mr Kelvin Liu on behalf of the son objects to the application of Chinese custom to the compensation on two grounds. First, section 13 of the NTO does not cover compensation. Second, Chinese law and custom as existed in 1843 and which remained in force in Hong Kong in respect of maintenance for widow and dowries for unmarried daughters had been modified or effectively replaced by the extensive legislative change in 1971 such as the Deceased’s Family Maintenance Ordinance (1971) (Cap 129) (‘DFMO’). He labels the 1843 laws as the pre-cessational law which is a reference to the position before the cessation of Hong Kong to the British government. 1) Deceased’s Family Maintenance Ordinance 4.2Since the section 13 point has already been addressed, I will focus on the second point. The DFMO was introduced in the early 1970’s as part of the law reform package that includes the Marriage Reform Ordinance 1970 and Intestates’ Estates Ordinance (Cap 73) (‘IEO’). The DFMO has since 1995 been replaced by the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) (‘IO’). Section 4 of the DFMO conferred power on the Court to order payment out of net estate of a deceased for the benefit of his dependants. However, the definition of net estate in section 2(2) does not include land to which Part II of the NTO (which includes section 13) applies and which has not been exempted by the Governor under subsection (2) or (3) of section 7 of that Ordinance from the provisions of that Ordinance. 4.3Although Mr Wong has not responded to this point, it should not be taken that I have accepted Mr Liu’s submission that the DFMO had replaced the Chinese custom relied upon by the mother. If the statutory definition of ‘net estate’ in the DFMO does not include New Territories land and if the actual net estate consists solely of such land, then a dependant of such an estate will have no recourse to the DFMO. In the circumstances it would be most odd that a dependent in the position of the mother in the present case will have her right under Chinese law and custom being removed as well. 2) Intestates’ Estates Ordinance 5.1IEO whichwas also referred to at the hearing before us further illustrates this point. Section 4 of the IEO (1971 Edition) provides for succession to the estate of a deceased on intestacy. However section 11(1) excludes its application to New Territories land (which has the same meaning attaching to it under section 2 of the NTO). Section 11(2) provides that such land shall continue to devolve upon intestacy in like manner as it would have devolved if the IEO had not been enacted. Again, if all that the estate consists of is New Territories land, I do not see how in the circumstances it can be said that this legislation must have replaced the relevant Chinese custom. 5.2However, another point on the IEO should be considered by the mother’s legal advisers. Since compensation does not fall within the meaning of land under the NTO,it is for them to consider whether there is any proper basis to apply for relief under the IEO in respect of the compensation. Expert evidence 6.As the Judge had refrained from addressing the specific Chinese law and custom raised in this case, I will likewise refrain from doing so beyond saying that the implication and the mechanism of implementing this Chinese custom, if it is applicable, in 21stcentury Hong Kong require detailed discussion. The son’s offers 7.1The son, to his credit, has in his 4th Affirmation made open proposals for the maintenance of the mother which I will set out :
7.2This is clearly something for the mother to consider. Conclusion 8.The mother’s appeal is accordingly dismissed with costs to the son. The mother’s own costs are to be taxed in accordance with the Legal Aid Regulations. Hon Kwan JA : 9.I agree with the judgment of Cheung JA. Hon Barma JA : 10.I agree.
Mr Kelvin K. H. Liu, instructed by Marie Tsang, Dustin Chan & Co., for the the plaintiff Mr Kenneth Y. F. Wong, instructed by Wong, Hui & Co., assigned by Director of Legal Aid, for the defendant |
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