Lily Cheung v. Cheung Wai Kwok and Another

HCAP 3/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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J U D G M E N T
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1.The parties contest for the right to administration of the estate of late Madam Luk Kim Ying, deceased (“the Deceased”). The plaintiff (“Lily”) and the 2^nd defendant (“Luk”) claim to be the daughters adopted by the Deceased in Hong Kong and the Mainland respectively. The 1^st defendant (“Cheung”) claims to be the surviving lawful husband of the Deceased.

BACKGROUND

2.The Deceased was born on 15 November 1915[1]. Cheung was born on 3 September 1921.  They were allegedly married in Shanghai on 18 March 1949.

3.The Deceased then migrated from Shanghai to Hong Kong, but the exact time of that is unclear.  The Deceased was first issued with identity paper in Hong Kong in May 1951.

4.Lily was born in Hong Kong on 5 April 1951[2]. Her natural father and mother are Lau Kai Hau and Lee Su Wah respectively.  No name was given to her on birth; and she was handed over to the Deceased for raising soon after birth[3].

5.In July 1955, Cheung was sentenced to prison in the Mainland for 5 years.

6.In 1956, when she was 5 about years old, Lily was made a ward under the custody of Cheung Wing Tak (“Cheung WT”).

7.On 5 January 1957, the Deceased entered into a registered marriage with Chao Cheung Yuk (“Chao”) in Hong Kong.

8.On 18 May 1963, Luk was born in the Mainland.

9.On 30 May 1979, Cheung migrated to Hong Kong from Szechuan.

10.In 1979, Lily got married in Hong Kong.

11.In 1980, Cheung Wing Tak passed away.

12.In 1984, the Deceased allegedly adopted Luk in Jiangsu.

13.In 1986, Luk moved to Hong Kong on a one-way permit.

14.In 1990, Luk was married in Hong Kong.

15.In 2001, the Deceased suffered a stroke and was certified to be mentally incapacitated.  The Guardianship Board, after enquiry, appointed Luk as her guardian.  The appointment was subsequently renewed.

16.The Deceased owned, amongst others, various landed properties in Hong Kong, some of which are co-owned with Luk.  In 2003, it was discovered that part of the Deceased’s interest in 2 of her properties was transferred to Luk’s brother by deed of gift.  Luk reported the same, resigned from the guardianship in the same year and consented to the Director of Social Welfare to act as the next friend of the Deceased to commence recovery action against Luk’s brother to set aside the gift.  Hence HCA 2498/2004, which was commenced in November 2004.

17.The Official Solicitor was then appointed as the committee of the Deceased pursuant to Part II of the Mental Health Ordinance, Cap 136.

18.The Deceased passed away intestate on 15 March 2006; and upon that, the committee of the Deceased was automatically discharged.  In the same month, Lily commenced originating proceedings (HCMP 635/2006) against the Official Solicitor and Luk, seeking, among other things, her appointment as the administratrix of the estate of the Deceased and to take over the conduct of HCA 2498/2004.

19.In the meantime, Luk undertook to the court that she, among other things, would not deal with the rental income received from the properties belonging to the estate of the Deceased except for the discharge of the liabilities for normal recurrent expenses of the properties and her share of liability for the mortgage in respect of the properties as joint owner.

20.On 9 May 2007, Cheung applied for grant of administration in respect of the Deceased’s estate (HCAG 4655/2007), claiming that he is the surviving lawful husband of the Deceased and that the Deceased has no surviving child.  This was stalled by Lily’s caveat entered on 27 September 2007.  On 21 November 2007, Lily applies for grant of administration in respect of the Deceased’s estate (HCAG 12391/2007).

21.On 11 March 2008, Lily commenced the present action against Cheung, claiming for declaration of her entitlement to the grant of administration of the Deceased’s estate.  She disputes the alleged marriage between the Deceased and Cheung and its validity.  Cheung counterclaims for declaration of his prior entitlement as the surviving husband to the grant.

22.Luk was then joined as a defendant in the present action.

23.Lily’s claim in HCMP 635/2006 was then struck out by the master.  The master’s decision was reversed in part on appeal[4]. On further appeal by Luk (CACV 2/2009), the Court of Appeal adjourned the case sine dine with liberty to restore pending the determination of the present action[5].

24.A week before the trial, I gave leave, upon application, for Luk to be appointed to act as the guardian ad litem of Cheung, on the ground that Cheung was certified to have become mentally incapacitated.

PLEADED CASE

25.According to Lily, she was adopted by the Deceased according to Chinese custom in 1951 in Hong Kong.  She denies Cheung was ever lawfully married to the Deceased.  Alternatively, if he was, he and the Deceased were divorced before the Deceased married Chao Cheung Yok (“Chao”) in Hong Kong in January 1957.  The Deceased and Chao divorced before 14 October 1981, and the Deceased had remained single ever since.  Lily also denies the alleged adoption of Luk by the Deceased in the Mainland, as there was no evidence of adoption application or approval.

26.Both Cheung and Luk deny the alleged adoption of Lily by the Deceased.  Specific reliance is also placed on the fact that Lily was made a ward under the Protection of Women and Juvenile Ordinance 1951 (“PWJO 1951”) under the custody of Cheung Wing Tak (“Cheung WT”) in 1956 when she was 5 years old.

27.According to Cheung, he and the Deceased were married in Shanghai on 18 March 1949.  They had since lived together until 1951, when the Deceased moved to Hong Kong.  28 years later, in 1979, Cheung moved to Hong Kong and had since lived with the Deceased until 1986.  Cheung contends that the marriage between the Deceased and him subsisted until the Deceased’s death, and therefore the marriage between the Deceased and Chao in Hong Kong was void for bigamy.

28.According to Luk, she was adopted by the Deceased in her home county, Nam Tung, Jiangsu in 1984.  Luk accepts that her right to grant is second to that of Cheung, being the surviving lawful husband of the Deceased.

ISSUES

29.The parties agree that the following questions are pertinent to the determination of the dispute:

(1) whether Lilyis an adopted daughter of the Deceased within the meaning of section 2(2)(c) of the Intestates’ Estates Ordinance, Cap 73 (“IEO”);

(2) whether Cheung was the Deceased’s surviving lawful husband within the meaning of section 3(d) of the IEO;

(3) whether Luk is an adopted daughter of the Deceasedwithin the meaning of section 17(1) of the Adoption Ordinance, Cap 290 (“AO”) and section 2(2)(a) of the IEO;

(4) if Cheung is found to be the surviving lawful husband, whether the court should defer granting letters of administration on the ground that Cheung is suffering from mental incapacity.

WHETHER LILY IS A LAWFULLY ADOPTED DAUGHTER OF THE DECEASED

30.Section 2(2) of the Intestates’ Estates Ordinance Cap 73 (“IEO”) provides that for the purpose of the Ordinance, a person adopted by, among others, an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973 shall be treated as the child of the adopter.

31.Whether Lily was so adopted is a matter for the court to decide.  This turns on (i) whether the alleged adoption took place in Hong Kong; and (ii) if so, whether such adoption accords with Chinese law and custom within the meaning of section 2(2)(c) of the IEO.

Whether the adoption took place

32.Lily’s case is that the adoption took place in Hong Kong in 1951.  Cheung and Luk cannot claim personal knowledge about that, as both were not present at the material time. The former was yet to come to Hong Kong and the latter was yet to be born.  Nor can Lily, as that allegedly happened before she had any cognitive ability.

33.Nevertheless Lily testified as to what she was allegedly told about the adoption by the Deceased in 1967 when she was about 16 years old.  She also called Lau Man Sum (“Lau”), his natural brother, and Cheng Ding Ding (“Cheng”) to testify in this respect.  However, Lau turns out to be telling what their natural mother allegedly told him about the adoption, while Cheng turns out to be telling what her mother and the Deceased had allegedly told her about the adoption.

34.In support, Lily relies on various declarations to the Immigration Department including:

(1) the declaration made by Lau in 1989;

(2) Lily’s letter in 1989 (“the 1989 Letter”); and

(3) Lily’s declaration in 1991.

35.As declared in the above documents, no name was given to Lily by her natural parents when she was born in Hong Kong in 1951[6]. Soon after her birth, she was given or handed over to the Deceased at the Deceased’s then Kowloon address for raising.  When she was 5 years old, due to what according to the Deceased were financial difficulties, Lily was passed to the Deceased’s family friend, the Cheung family.  Cheung WT became her “second father” and she started to use the surname Cheung.

36.Mr Poon, appearing with Mr Chan, for Lily accepts that the evidence in respect of the alleged event happening decades ago, when his client was an infant, is hearsay.  He accepts that credibility has to be assessed carefully[7]. But he points out that the above documents are reliable as they were not made with a view to the present litigation.  Rather they came in existence for the purpose of the Immigration Department at times well before the present dispute.

37.It becomes clear that Lily’s reliance on the above documents in support of the essentially hearsay nature of the oral evidence in respect of her alleged adoption by the Deceased is not at all straightforward.

38.As to when she came to discover that the Deceased was not her natural mother, Lily stated in the 1989 Letter that it was in 1970 when she also had the first reunion with her natural father and Lau.  This differs from her evidence as per her statement that the Deceased somehow brought up this subject during supper with her in 1967.  Yet with reference to the riot in Hong Kong, which is commonly known to have happened in 1967, Lily is actually uncertain whether the alleged conversation took place before or after the riot.

39.As to why she was passed to Cheung WT when she was 5 years old, Lily stated in the 1989 Letter that according to the Deceased, that was her financial difficulties.  According to her evidence as per her statement, the reason was completely different.  First it was said to be because the Deceased was busy with work.  Subsequently it was said that she was sent away to avoid having to see Chao, then boyfriend of the Deceased and whom Lily was said to dislike.  As mentioned, the Deceased got married to Chao in 1957 in Hong Kong.

40.In the 1989 Letter, Lily stated that the Deceased then resided at a Hong Kong address, and she last visited the Deceased 2 days before the letter.  This differs from what she asserts in her statement.  There she accused Luk of trying to prevent her from seeing the Deceased by misrepresenting to her in 1988 that the Deceased no longer lived in Hong Kong.  She was unable to see the Deceased until late 2004.

41.In adopting her statement as her evidence, what Lily stated in the 1989 Letter would be false. Lily attributes all of these apparent falsities to her friend, who either misunderstood her or simply made things up in preparing the 1989 Letter.  Mr Hung finds it wholly incredible that Lily, with her Form 3 education at an English grammar school, would be unable to notice the various wrong statements in the 1989 Letter when sending it out.  Observing what Lily said in court in explaining how her version as per her statement, allegedly told to her friend, could end up like what was stated in the 1989 Letter, I share that view of her evidence in this respect.  In any event, the corroborative value of these documents does not turn out to be as high as Lily would have wanted.

42.Worth noting is that none of these document mentioned anything about adoption ceremony.  It might be that adoption ceremony was not a material concern for the purposes of those declarations to the Immigration Department at the times.  But it is an agreed issue to be resolved for the present purpose.

43.In court, Lau confirmed that his mother did not mention adoption ceremony; while Cheng did not give evidence in this respect.  What remains is Lily’s hearsay evidence, allegedly from the Deceased at a time which does not appear to be as certain as she projected, and the details of which are first found in her statement dated 2010.  According to her, it was not elaborate, involving a simple dinner without rituals.

44.Lily used to have the support of Madam Hai Tse Yan (“Hai”), who was the wife of Luk’s brother and resides in the United States.  Hai’s first declaration was handwritten in Chinese and the second one was typed in English.  By them, Hai declared that she learned from the Deceased during the latter’s visit in Shenzhen in 1987 that Lily was the Deceased’s adopted daughter in Hong Kong.  By the second declaration, Hai further declared that she was acquainted with the Deceased and Lily for 3 and 2 decades respectively.  Both were dated December 2004 and notarized in the United States.  In May 2013, Hai made the last of these declarations.  By this declaration, Hai overturned her previous declarations, which, according to her, were made at the request and instruction of Lily in November 2004 to assist her in applying in Hong Kong to become the guardian of the Deceased.

45.As mentioned, the Deceased had been mentally incapacitated by then.  Luk, who used to be the guardian of the Deceased appointed by the Director of Social Welfare had resigned after discovery of her brother’s acquisition of interest in a couple of the properties of the Deceased by way of deed of gift.  HCA 2498/2004 was commenced to set aside the deed of gift in November 2004.

46.Then there came Hai’s first declaration in respect of the relationship between Lily and the Deceased in 10 December 2004.  On 18 December 2004, Lily through her solicitors sent another draft English declaration to Hai, advising her to sign it and have it notarized before the County Court.  Besides the effect of what was stated in the first declaration, the statements as Hai’s acquaintance with the Deceased and Lily, as mentioned above, were added.  Hence the second declaration made on 22 December 2004.

47.In February 2005, Lily indeed applied to the Guardianship Board for a review of the guardianship order in place of the Director of Social Welfare in respect of the Deceased.

48.In overturning her previous declarations, Hai denied that she had known Lily for 2 decades but had come to know her in October 2004, when Lily also sought her assistance in making the previous declarations.  She stated that she had no personal knowledge whether Lily was adopted by the Deceased.  She stated that in her declaration made in 2013, presumably because of the present litigation.

49.Hai gave evidence.  According to her, she came to know the Deceased shortly before her marriage to Luk’s brother in 1987.  That she could have been acquainted with the Deceased for 3 decades by 2004, as per her second declaration, sounds odd.  So does the statement that she and Lily have been acquainted with each other for 2 decades by 2004.  Much is said about her credibility.  But there would have been no reason for Hai to come up with those declarations in 2004, had it not been Lily and for her purpose in Hong Kong at the time.

50.The reality is that Hai admits that her declarations made in 2004 are false.  While Mr Poon asks me to find that her explanations and evidence to be incredible, this would not lend any assistance to his client’s case either, if I agree with him.  It simply becomes dangerous to place any weight on Hai’s declarations in any event.

51.What do all those leave us with?  There is Lily’s assertion of what, if accepted, would be hearsay about the adoption ceremony.  The evidence in respect of the ceremony is flimsy.  The only objective fact at the relevant time was the passing of the birth certificate of Lily by her natural parents to the Deceased and the lack of suggestion or evidence that Lily and her natural parents had maintained contact since.

Whether the adoption accorded with Chinese law and custom

52.Mr Poon refers to the history of section 2(2)(c) of the IEO by reference to the legislative reform and amendment papers.  Mr Hung refers to De Wong Au Edith v Kho Sin Tek Henry & Anor, HCAP 12/2000 (17 March 2004) per Yam J in this respect.  Both serve the purpose of illustrating that the 1995 amendment to the IEO, which introduced the subparagraph to section 2(2), aimed at bringing persons adopted under Chinese law and custom back into the classes of issues as might inherit on intestacy under the IEO.  The right of an adopted child to take as issue was effectively reinstated.

53.Lily relies on the expert evidence of Professor Hugh Baker  (“Professor Baker”) whereas Cheung and Luk rely on the expert evidence of Professor Wejan Chang (“Professor Chang”).  They are ad idem in the following respects:

(1) The Qing Code contains detailed and strict rules governing adoption. They are for a married man without a son to adopt a male member of his clan one generation down as his heir to continue his line in his clan and to succeed to his property.

(2) A married woman, whose husband died without a son, is allowed to adopt a son as his late husband’s heir and keep his share of the family property, provided that she remains in his family as his widow.

(3) A couple can adopt a nominal son (yi-nan義男) or their son-in-law who are dear to them and are allowed to live together for mutual support.  However neither the nominal son nor the son-in-law is allowed to inherit the adopting father or the father-in-law.

54.Undisputedly there was no such thing as adoption of a daughter, let alone by a woman, under the Qing Code.  Professor Baker agrees that should the adoption or appointment of male heir be impossible under the Qing Code, a natural daughter may inherit, failing which the State would take the estate.

55.One then turns to the custom.  In doing so, I accept Professor Chang’s opinion and Mr Hung’s submission that custom was there to add to the law and not to contradict it, including the rule of inheritance: see Liu Ying Lan v Liu Tung Yiu & Anor, HCA 6693/1992 (8 May 2002) at §20 per A Cheung J (as he then was)[8].

56.Mr Hung submits that for the purpose of section 2(2) of the IEO, an adoption had to be a formal one according to Chinese law and custom.  He refers to De Wong Au Edith (above) where it was held that an informal adoption would not suffice to enable an informally adopted son or i-tze to inherit the adoptive parent’s estate, and under customary law[9], the distribution of estate to an i-tze is in any event discretionary.  Mr Hung submits that likewise the adoption of a daughter, which could not be formal and where she is not entitled to inherit the adopting parent’s estate, is not an adopted person for the purpose of section 2(2)(c) of the IEO.

57.Mr Poon submits that the Qing Code has to be read holistically. It was only a penal code and did not represent the whole of the law of the the Dynasty.  The fact that it was silent in the Code does not mean that one is permitted to or prohibited from doing such a thing.  Professor Baker opines that under Chinese custom, it would turn on the intention of the parties to the adoption at the time of the adoption. In court, Professor Chang was not against this proposition.

58.I think the case of De Wong Au Edith should be read together with the subsequent case of Mok Hing Chung v Wong Kwong Yiu, HCAP 8/2010 (3 July 2014), which Mr Hung supplied to the court after the conclusion of the trial.  Neither counsel made further submission on this additional authority.  I find the following paragraphs of the judgment in the latter case (per Mr Recorder Coleman SC) helpful, which I echoed as the approach to the question before the court:

“118. The labels of “formal adoption” and “informal adoption” are perhaps not necessarily the most helpful, and I see force in a more proper and accurate distinction between “ritual adoption” and “simple adoption”. Whatever the label, whether the necessary characteristics of adoption have been made out depends upon the evidence in any individual case.

119. I accept the submission that the question of whether or not a person is adopted in accordance with Chinese law and custom before 1 January 1973 is not to be answered by reference to whether that person could or would have become the legal successor to the family line, or could or would have inherited family property under Chinese law and custom.  Rather, it is necessary to decide the status of adoption or not, leaving any question of inheritance to be determined in accordance with Hong Kong law and statute.”

59.Professor Baker opines that in 1951, Hong Kong was still in some turmoil following the war and the huge influx of refugees from across the border.  As such, a wide range of Chinese customary practices seemed to have been tolerated by the courts, and there was little agreement on what constituted valid adoption procedure.  He opines that it was common to expect the adoptee to kowtow to ancestors of the adopting family, and the adoptee would offer tea to the adopting parents. Ceremony and banquet would be open to public view.

60.The rituals suggested above could not realistically be expected of Lily, who was a baby when the alleged adoption took place.  As mentioned, I have doubt about Lily’s credibility, including that of her evidence in respect of what the Deceased allegedly told her all of a sudden in 1967.  Nevertheless her natural parents handed over the birth certificate to the Deceased.  There is no suggestion or evidence that the natural parents had maintained contact with Lily ever since (until, according to Lily and Lau, the reunion in 1970).  The objective fact was that the natural parents had relinquished parental rights and obligations over Lily since that time.  Professor Chang seemed to accept that with the passing of the birth certificate openly to the Deceased by Lily’s natural father, the ceremony, albeit not elaborate, could constitute an informal adoption.

Making of Lily as a ward of the Secretary for Chinese Affairs

61.However, the development did not end there.  As mentioned, Cheung and Luk put in issue by way of pleading the making of Lily as a ward of the then Secretary for Chinese Affairs (“the Secretary”)[10] under the custody of Cheung WT after her having spent 5 years with the Deceased.

62.Consistently, Lily and her witnesses as well as the declarations to the Immigration Department spoke of giving away or handing over.  Whilst Lily’s case is that that was equivalent to adoption, she suggests that her being handed over to the Deceased was adoption whereas that to Cheung WT was not.  In this respect, she emphasizes that she addressed Cheung WT (as 張爸爸) as opposed to father (or 爸爸).  I would be slow to find such assertion, which, even if true, refers to how a 5-year-old girl addressed or was probably guided to address the man who would be raising her, to be indicative of the distinction that Lily is trying to draw here.

63.Cheung WT’s custody of Lily is evidenced by document.  The identification ticket issued by the then Social Welfare Office evidences that Lily was made a ward of the Secretary under the custody of Cheung WT.  The back of the ticket bears this note:

“According to the Law of Hong Kong, children cannot be bought or sold and the payment of money cannot confer any rights whatsoever or property or possession over any child.”

64.There is dispute as to what accounted for the making of Lily a ward.  The PWJO 1951 is a starting point (and it is not suggested otherwise).  Sections 31 and 32 set out the circumstances in which the Secretary could become the guardian of a female infant.

65.Section 31 provides that any female infant adopted other than by virtue of an order of a competent court shall be put under the guardianship of the Secretary.

66.Section 32 provides for the power of the Director to become the guardian of a female infant by way of a declaration that such infant shall be his ward.  Section 32(1) provides:

“Subject to the provisions of subsection (4)[11], whenever the Director of Social Welfare, upon such enquiry as he may think fit to make, is satisfied that either of the parents or any person acting in the place of a parent of any female infant has parted or agree to part with the custody of the girl to some other person either permanently or for any consideration except marriage, the Director of Social Welfare, in his absolute discretion, may in writing declare that such infant shall be his ward, and upon the making of such declaration the legal guardianship of such infant while in his Colony shall during her infancy vest in the Director of Social Welfare.”

67.Section 32(2) provides for the case where any female infant has been treated as a drudge or with cruelty or unkindness or has otherwise not been treated properly by the person in whose custody she is or appears to be or that the female infant is unwilling to remain in such custody.  There is no such suggestion by Lily in the present case, which could have invoked the application of this subsection.

68.Mr Poon submits that there is no evidence supporting that infant Lily was made a ward of the Secretary under section 32 of the PWJO 1951.  But the documentary evidence prima facie shows that.  Mr Poon then submits that alternatively the fact that Lily was then made a ward of the Secretary does not mean that she must have been the subject of a permanent giveaway or for consideration.  With respect, I do not understand this alternative argument.

69.Section 32(1) indeed provides that the Secretary may make inquiry and has the absolute discretion whether to declare a female infant shall be his ward.  However, whatever combination of factors that the Secretary may take into account upon the inquiry and in the exercise of the discretion, he must first be satisfied with the statutory criteria, namely that either the parents or the person acting in the place of a parent of the female infant has parted or agreed to part with the custody of the girl to some other person either permanently or for any consideration except marriage.  As such, the making of the declaration must mean such criteria have been satisfied.  There is no suggestion of other statutory basis on which Lily could be made a ward.  I do not agree with Mr Poon that the fact of the Secretary’s declaration that Lily was his ward is neutral.

70.The fact was also that she was named or given her surname after Cheung WT.  By her supplemental statement, she accepted that.  With this second father, Lily resided for years, though, according to her, she had also stayed with the Deceased and the wife of Cheung WT respectively for years.  In his declaration made in December 1960 in support of the application for registration of dependants under the age of 17 years pursuant to the then Registration of Persons Ordinance 1969, Cheung WT did so in his capacity as the father of Lily.

71.Even assuming that Lily was handed over by her natural parents to the Deceased in 1951 for raising; and the Deceased raised her as daughter, she was further given away to Cheung WT in 1956, which was of such nature and to such extent that invoked the exercise of discretion by the Secretary to make her his ward pursuant to section 32 of the PWJO 1951.  This does not sit well with the continuation of adoption relationship between the Deceased and Lily, assuming it existed in 1951.

Conclusion

72.Considering the evidence as a whole, I do not find that Lily is the adopted daughter of the Deceased for the purpose of section 2(2) of the IEO; or alternatively she cannot claim to be such since the Deceased gave her away to Cheung WT in 1956.

WHETHER CHEUNG IS THE SURVIVING LAWFUL HUSBAND OF THE DECEASED

73.Apart from documentary evidence, Cheung has prepared 2 signed statements and would have given evidence.  This has become impossible because of his certified mental incapacity.  For that reason, Luk has applied to adduce her supplemental statement in respect of the circumstances surrounding Cheung’s signing of his statements dated January 2010 and October 2013.  The intention of Luk to rely on Cheung’s statements as hearsay evidence was made known.  I gave her leave to do so subject to the question of weight, which will be addressed during this trial.  I shall not repeat my reasons set out in the written decision dated 6 February 2015 (at §§53-66).

74.As to the weight to be attached to Cheung’s statements, some of the relevant considerations are set out in section 49 of the Evidence Ordinance, Cap 8:

“(1) In estimating the weight, if any, to be given to hearsay evidence in civil proceedings the court shall have regard to any circumstances from which any inference can reasonably be drawn as to the reliability or otherwise of the evidence.

(2) For the purpose of subsection (1), regard may be had, in particular, to the following-

(a) whether it would have been reasonable and practicable for the party by whom the evidence was adduced to have produced the maker of the original statement as a witness;

(b) whether the original statement was made contemporaneously with the occurrence or existence of the matters stated;

(c) whether the evidence involves multiple hearsay;

(d) whether any person involved had any motive to conceal or misrepresent matters;

(e) whether original statement was an edited account, or was made in collaboration with another or for a particular purpose;

(f) whether the circumstances in which the evidence is adduced as hearsay are such as to suggest an attempt to prevent proper evaluation of its weight;

(g) whether or not the evidence adduced by the party is consistent with any evidence previously adduced by the party.”

75.As far as his stance is concerned, Cheung is not an independent witness but an interested party.  As far as his credibility and reliability are concerned, the medical records and reports recently disclosed reveal that Cheung has been suffering from mixed anxiety and depressive disorder since 1998.  In 2011, he was diagnosed to have dementia entailing regular medication and injection.  His statements were made in 2010 and 2013.

76.By way of further submission, Mr Hung took me through various medical notes, with a view to demonstrating that Cheung has been noted to be coherent and to have good memory at about the time when his statements were made.  Luk gave evidence to similar effect.  Be that as it may, the statements were made for an account of what allegedly happened over 6 decades ago.  His condition has indeed developed to the present state of mental incapacity.  One would have expected much legitimate room for ascertaining the reliability of his evidence in any event, had he managed to give evidence as per his statements.

77.Perhaps more significantly, there are matters arising out of the documentary evidence that he would have been expected to explain.  Both he and, more importantly, his opponent are now deprived of the opportunity of clarification.

Proof of the 1949 marriage until the death of the Deceased

78.In essence, Cheung’s evidence would be that he and the Deceased were married in a mass wedding ceremony on 18 March 1949 held in Shanghai.  It is also his case that 1949 marriage subsisted until the Deceased passed away in 2006.

79.Document-wise, a photograph said to be depicting the couple together is produced.  Luk could have been cross-examined on the photograph, but there is no real challenge that it was such a photograph of Cheung and the Deceased, though the time and occasion are unknown and not apparent from the photograph itself.  There is a marriage certificate dated the day of the alleged marriage (“the Marriage Certificate”).  It is under heavy challenge.

80.Lily served her notice disputing authenticity of the Marriage Certificate in August 2013. There could be no dispute that this was served seriously out of time, given that the document was disclosed by list in June 2009.  Mr Poon argues that the authenticity of the Marriage Certificate has always been in issue.  He refers to Lily’s pleading, but the same simply denies any valid marriage between the Deceased and Cheung.  Authenticity of the document is not raised in the pleading.  The case cited, Chan Yuk Kwan v Chan Yee Chai Henry, HCA 6/2003 (12 May 2006) per DHCJ L Chan (as he then was) at §9 is distinguishable on that.  Mr Poon refers to the dispute as to the authenticity of the Marriage Certificate raised by Lily’s supplemental witness statement, but that came about as the aftermath of the abovementioned notice within a month’s time.

81.Having said that, I notice that 1 month after the abovementioned notice and on the same day as Lily’s supplemental statement, in September 2013, Poon J did direct the parties to lodge agreed proposed direction on expert evidence in relation to the authenticity of the Marriage Certificate, failing which Cheung should take out the necessary application.  The court therefore perceived that as an issue in dispute.  There is no suggestion that objection to such direction was raised during or after the direction.

82.In his witness statement dated October 2013, Cheung on the one hand questioned the right of Lily to dispute the authenticity of the Marriage Certificate, and on other hand referred to the production of a new witness, Wong Lie Ngo (“Wong”), for the purpose of adducing copies of sample marriage certificates of the era said to be similar to the Marriage Certificate obtainable from the Internet.  The point would be to demonstrate that marriage certificates like the one in question were invariably affixed with the seals of the parties attending and not signed.

83.I agree with Mr Poon that there is a distinction between admission as to authenticity of a document and admission as to the truth of its contents: see Guangzhou Green-Enhan Bio-Engineering Co Ltd v Green Power Health Products International Co Ltd, HCA 4651/2002 (8 April 2005) per Lam J (as he then was).  In a case where the existence and validity of a foreign marriage are in dispute, the mere production of a marriage certificate would not suffice[12]. Likewise, the existence and validity of a marriage outside Hong Kong may be proved other than by relying on and even in the absence of such a marriage certificate.

84.The concern is the proof of the content of the Marriage Certificate.  It is not such a document that on its face suggests that it was issued under the law and with the authority in force in the place of marriage at the time.  Experts could have been engaged to provide opinion evidence in this respect.  But the parties have not complied with the directions by Poon J in this respect.  The experts engaged by the parties, Mr Li Meike (“Li”) for Lily and Mr Chang Xuan (“Chang”) for Cheung and Luk, gave their evidence in respect of this alleged marriage without really questioning the Marriage Certificate or its content.

85.Cheung and Luk also rely on the evidence of Wong, which is admittedly factual.  But Wong is in no position to tell, apart from the multiple hearsay information from the Internet, whether or not those sample certificates are genuine or authoritative.

86.The content of the Marriage Certificate is also not free from doubt.  Whilst the name and place of origin of the Deceased were correct, the date of birth of the Deceased stated in the Marriage Certificate was 6 November 1921.  This is at variance with the date of birth of the Deceased according to the official documents in Hong Kong, namely 15 November 1915.  Cheung apparently would have given evidence to explain that as per his first statement.  The explanation would have been that her date of birth was incorrectly recorded as 1915 in the official documents in Hong Kong, owing to her lack of education and miscommunication with the official.  That would have been hearsay, and it is not just the year but also the day of her birth which is different.  This is one example calling for clarification, even if Cheung had given evidence as per his statements.

87.As mentioned, the Deceased left the Mainland for Hong Kong in 1951 (at the latest[13]), which would be just 2 years after the alleged marriage to Cheung.  In 1955, Cheung was sentenced to 5 years of imprisonment in the Mainland.  As mentioned, in 1957, the Deceased entered into a registered marriage with Chao in Hong Kong.  According to the marriage certificate, the Deceased declared herself to be a spinster.  By the time when she applied for certificate of identity in January 1971, the Deceased had separated from Chao.  When she applied again in November 1981, she declared that she was divorced.

88.Meanwhile, the prison record shows that the Deceased was still stated to be Cheung’s wife (“愛人“).  Cheung arrived at Hong Kong in 1979.  In his various declarations to the Immigration Department since his arrival until 1986, Cheung still stated the Deceased to be his wife and reported the address of the Deceased as his.

89.It would have been his evidence that he moved out of the Deceased’s address to live on his own only in 1986.  The documents show that since the 90s, Cheung had been applying for public rental housing.  There seems to be no real dispute that he applied for the “Singleton” type[14]. According to his declaration in 1996 in connection with his application submitted in 1994, his wife, who was unidentified, had left him for 22 years, and they had lost contact.  That would mean 1972-1974.  This hardly sits well with his case that he resided with the Deceased between 1979 and 1986.  For that reason, Lily even suggests that Cheung has been concealing another marriage after the Deceased left the Mainland for Hong Kong.

90.The above also does not sit well with his case that he took part in the adoption of Luk in the Mainland in 1978-1979.  In any event, the fact was that the notary certificate relied on as evidence of such adoption mentioned only the Deceased as the adopting parent.  Cheung was never mentioned.  It also becomes apparent at trial that Luk is not in a position to testify as to the notary certificate.  Nor is she certain about Cheung’s participation in the adoption in 1978-1979.  More will be discussed when I come to her case below.

91.According to the recently discovered medical notes kept by the hospital in respect of Cheung dated November 1995, the family history that Cheung is said to have disclosed to the treating medical officer was that he has no children.  How he perceived his position vis-à-vis Luk, if it was in truth a joint adoption by him and the Deceased, calls for explanation.  It should be noted that by 1995, Cheung has yet to be diagnosed with anxiety and depressive disorder, let alone dementia, which was diagnosed only in 2011.

92.The medical notes in November 1995 also recorded that Cheung informed the treating medical officer that his wife died in 1982.  In his application for social allowance in 1997, Cheung declared his marital status to be single.  The certificate issued by the Immigration Department in connection with Cheung’s new identity card in 2006 recorded that Cheung declared that he is a widower.  All these hardly sit well with the evidence that Cheung would have given, namely that he had been visiting the Deceased since his stroke and admission into the elderly home since 2001.  Again that fuels the suggestion by his opponent that he has been concealing the fact of another marriage.

93.Mr Hung submits that how the parties to a marriage subjectively consider and even declare in respect of the marriage status does not alter the existence of a legally binding marriage.  As a matter of principle, I agree.  But that is not complete, if at all, answer to the situation where the existence and validity of the marriage is in dispute, and the evidence of the parties in that respect, both oral and documentary, cries out for explanation.

94.By now, enough has been shown to demonstrate the difficulty in attaching meaningful weight to the evidence that Cheung would have given as per his statements in the absence of the opportunity of subjecting his evidence to test, which the circumstances cry out for[15]. It is not for the parties or the court to speculate that there could be explanation, let alone what it is.  However compelled one feels, it would be unjustified and dangerous to so speculate and to speak for Cheung.

Conclusion

95.On this basis, there is no way this court could be satisfied on the balance of probabilities that the alleged marriage between him and the Deceased existed and continued since 1949 until the demise of the Deceased as a matter of fact.

96.On this basis, the registered marriage between the Deceased and Chao in 1957 in Hong Kong, as evidenced by their marriage certificate, is not impeached by bigamy in the absence of decisive evidence of an earlier marriage[16].

Other issues

97.The other issues raised are premised on the 1949 marriage having existed as a valid matrimonial union.  Mr Poon approaches them in 2 ways.

98.First, Mr Poon submits that the 1949 marriage between the Deceased and Cheung, if valid, would have been terminated by divorce by 1957 when the Deceased married Chao in Hong Kong.  He argues on the basis of different points of time the Deceased might have left the Mainland for Hong Kong and, according to those, the applicable law in relation to divorce of a Mainland marriage contracted under the Republic of China regime.

99.This would have been Lily’s burden to prove such alleged divorce as a matter of fact.  Mr Poon acknowledges the lack of primary evidence of such divorce, but he resorts to the documentary evidence of the declaration of marital status by the Deceased and Cheung discussed above as the basis for inference.  But the available evidence and submission made, in my view, would not have taken such proposition as to fact beyond speculation and mere possibility.

100.Second, it is argued that the 1949 marriage, if valid, would have become void as a matter of law for the lack of registration after the enactment of the 1950 Marriage Law of the People’s Republic of China.  In this respect, Mr Li Meike (“Li”) gave expert evidence in respect of this subject for Lily.  Mr. Chang Xuan (“Chang”) gave his expert evidence in this respect for Cheung and Luk.

101.Li has essentially the following opinion:

(1) The combined effect of the abolition of the Civil Code of the Republic of China and the various marriage law passed by the People’s Republic of China is that the pre-existing marriage would terminate unless and until it is registered according to the marriage law under the new regime.

(2) Alternatively, the relationship between the Deceased and Cheung did not qualify as a de facto marriage under the law as there was no certificate of conjugal relationship issued by the government department verifying the fulfillment of the pre-conditions, namely (i) a long period of cohabitation, (ii) carried out in the name of spouses made publicised, (iii) being universally regarded as a couple, and (iv) verified by relevant departments.  He opines that the circumstances of the Deceased and Cheung did not satisfy these pre-conditions.

(3) Since Deceased and Cheung never applied for registration of their marriage, and they did not live together publicly as husband and wife thereafter, their marriage was automatically dissolved upon the Deceased’s marriage with Chao Cheung Yok in Hong Kong in 1957.

102.Chang holds a different view of the matter.  Essentially:

(1) Although the original Civil Law of the Republic of China was abolished, there is no requirement in the new Marriage Law 1950 that parties who (validly) married under the Civil Code era has to re-register their marriage.

(2) As a matter of principle, without an explicit law extending the effect of a provision into the past, the registration requirement imposed by the new Marriage Law 1950 would not retrospectively affect those who were already validly married.

(3) Instances of legal interpretations issued by judicial organs, he says, support his understanding that the Mainland Courts recognised unregistered marriages contracted during the previous regime by assuming jurisdiction in those matters.

103.Probably Li’s opinion is more easily understood than actually accepted whereas the principle underlying Chang’s opinion is appealing.  But his opinion based on certain legal commentary[17] seems to be suggesting what the effect of the law ought to be instead of what it is.  His citation of his own experience including the case of his grandmother as example is also unexpected.  Having said that, in view of the primary factual findings, I do not really need to express further conclusive view on these issues.

WHETHER LUK IS THE ADOPTED DAUGHTER OF THE DECEASED

104.Section 2(2)(b) of the IEO provide that a person adopted under an adoption to which section 17 or 20F of the Adoption Ordinance, Cap 290 (“AO”) applies shall be treated as the child of the adopter for the purposes of the IEO.

105.Section 17(1) of the AO provides that where a person has been adopted (whether before or after the coming into operation of the section) in any place outside Hong Kong according to the law of that place, and the adoption is one to which this section applies, then for the purposes of the AO and all other Hong Kong enactments, the adoption shall have the same effect as an adoption order validly made in accordance with the AO, and shall have no other effect.

106.In 1986, when she was 23 years old, Luk came to Hong Kong on a one-way permit to join the Deceased.  They had since resided together at the Deceased’s address until Luk got married.  The photographs produced depict their birthday celebration occasions.  When Luk got married, the Deceased’s name was put in the marriage certificate[18]. The two co-owned landed properties and held joint bank accounts in Hong Kong.  As mentioned, the Guardianship Board appointed Luk as the guardian of the Deceased when the Deceased suffered a stroke and was certified mentally incapacitated. Luk was also seen in charge of the funeral matters when the Deceased passed away.

107.All these, by primary evidence and inference, tend to show a de facto relationship of mother and daughter since Luk’s migration to Hong Kong.  Nevertheless, for the purpose of section 17(1) of the AO, and thus section 2(2)(b) of the IEO, the question is whether all these followed an adoption of Luk by the Deceased in Nan Tung, Jiangsu according to the law of the Mainland.

Proof of the adoption

108.Luk relies on the notary certificate issued by the Notary Office of Nan Tung on 27 April 1984 (“the Notary Certificate”), which certified that on 10 March 1984, the natural parents of Luk and the Deceased agreed, with the consent of Luk, that the Deceased would adopt Luk as her daughter.  The documents suggest that this was when the application for the certificate was made.  Luk was then just under 21 years old[19].

109.There is no dispute that one of the functions of notary officer in the Mainland at the material time was to issue certificate as evidence of adoption.  Mr Hung accepts that under the then Mainland law, the notary officer was required to investigate the facts before certifying their truth.  However he submits that pursuant to art.36 of the Notary Law (公証法), the certificate is presumed to be true unless there is sufficient evidence to the contrary, and it is the burden of Lily to prove otherwise.

110.When the matter is now one before the Hong Kong court, I do not think this article of the Mainland law serves to alter the legal burden of Luk to prove her adoption according to the law of the Mainland.  To such end, the Notary Certificate, properly understood according to the Mainland law, is but one of the documentary evidence relied on by Luk in discharge of her burden of proof. It remains hearsay by nature[20]. In any event, once her opponent adduces contrary evidence in respect of what are stated in the Notary Certificate, the court will assess all the evidence on the balance of probabilities as it would in any other given case.

111.To begin with, the Notary Certificate was indeed issued in 1984.  The Notary Office of Nan Tung confirmed that in writing in 2006, after having consulted the notary officer responsible for issuing it.  Li (above) and Mr Wang Ye (“Wang”) gave their expert evidence for Lily and Luk respectively.  There is no dispute that the relevant underlying file or documents in this connection[21] could not be located at the notary office.  But to suggest that the Notary Certificate came to be issued out of the blue seems far-fetched.  Indeed Mr Hung criticizes such suggestion as being illogical.

112.Li actually investigated to the extent of actually meeting the notary officer who issued the Notary Certificate in 2006.  Mr Hung criticizes Li for marching into the arena of factual investigation beyond the expertise being sought from him for the purpose his opinion evidence.  He cited Tang Ping Choi v Secretary for Transport [2004] 2 HKLRD 284 in support.  Tang Ping Choi is very much a case of its own peculiar facts; and that the issue of impartiality or bias readily arose in that case is understandable.  The same probably cannot be said in the present case.

113.What Li recited about the meeting with the notary officer in his report is actually brief.  Essentially it was said that the Deceased submitted her application by letter instead of personally attending the Notary Office[22].  But Li then went much further in court.  Such evidence would still be considered like that given by a witness as to fact.

114.Li’s evidence in respect of what the notary officer allegedly told him is hearsay.  As to that, whilst the notary officer might have no difficulty in confirming having issued the Notary Certificate simply by the sight of it, her ability to recall this particular case when called upon to do so over 2 decades later is very doubtful.  This is so, particularly in the undisputed absence of the underlying document in this connection.  Unlike Hai, who sought to overturn her previous notarized declarations as discussed above, the notary officer is not here for cross examination.

115.Mr Poon also asks me to draw inference from the evidence of Luk as well.  But the inference sought to be drawn is not entirely clear.  On the one hand, Mr Poon submits that Luk actually could not quite tell much about the application for the Notary Certificate and its processing.  The inference would be that no verification had been sought from her about the adoption before the certificate was issued.  On the other hand, he refers to Li’s expert report somehow reciting that the Notary Certificate was issued pursuant to the request of Luk.  The inference, he submits, is that Luk could not possibly be ignorant about the processing of the application for the certificate.

116.The present situation is that Luk does not have primary evidence to show that the Deceased had submitted all the necessary materials and documents for verification pursuant to the Mainland law applicable at the time.  Nor does Lily manage to adduce reliable evidence that the Deceased had not done so.  In the premises, it is not difficult to understand why Mr Hung takes the view that we are back to square one, namely that we have to take the Notary Certificate as it is.

117.It should be noted that the Notary Certificate was then the common form of formal proof an adoption arrangement, which, to begin with, would be a question of fact.  The experts are ad idemthat de facto adoption at the time in the Mainland required the following elements: (i) an agreement between the natural, the adoptive parents and the adoptee; (ii) the addressing of the adoptive parents as parents; (iii) the discharge all the parental rights and obligations of the natural parents; (iv) the establishing of the supportive relationship between the adoptive parents and the child.

118.According to Luk, the Deceased was her aunt, being sister of her natural father.  In 1978, the Deceased paid her family a visit, when adoption of Luk was proposed. She was then a teenager.  In 1979[23], as part of the ceremony, a meal was held in Nan Tung, and a couple of photographs said to depict such occasion were produced in support.  Since then, the Deceased would visit Luk from time to time and provide for her by giving money to her natural parents and to her as pocket money.  Luk would also address the Deceased as mother.  In 1986, she left Nan Tung on a one-way permit to join the Deceased in Hong Kong.

119.This was a situation of the Deceased adopting her brother’s daughter in Mainland and then arrangement to enable the daughter to leave the Mainland for Hong Kong on a one-way permit.  Given what actually happened, I do not find it realistic to question whether the arrangement was agreed to by the parties concerned.  This is not what the experts’ evidence is required or expected to differ about.

120.There is dispute as to whether Luk’s natural parents had relinquished parent rights and duties for the purpose of de facto adoption, because the fact was that they and Luk remained together under the same roof even after March 1984, the date of adoption.  However, expecting the adopting parent from Hong Kong and the adopted child from the Mainland to live together upon adoption would have entailed the former to move to the Mainland or the latter to migrate to Hong Kong.  The impracticability of either course would be obvious.  For the adopted child to come to Hong Kong, which would seem to be the common case, all parties concerned would have to wait for the one-way permit, the issuance of which was in the hands of the Mainland authority.  In court, Li apparently accepted that.

121.Practically, it also follows that the continued residence under the same roof and care of the natural parents until the adopted child is permitted to leave the Mainland to join the adopting parent in Hong, as in the present case, per se should not disqualify the relationship between the adopting parent and the adopted child from being de facto adoption.  One turns to the remaining criteria, namely, the recognition and addressing of the adopting parent and the supportive relationship.  In this respect, Luk gave her evidence, as per her statement, including what is summarized above.

122.Mr Hung questions Luk’s general credibility by reference to events that had to do with Cheung and her brother as well as to how she performed as the guardian of the Deceased.  On the whole, I am not impressed that her evidence in respect of her relationship with the Deceased since 1978 is inherently incredible.

123.As a matter of fact, I find on the balance of probabilities that the Deceased indeed adopted Luk; and the arrangement of and after the adoption in fact fell in line with what de facto adoption required according to the Mainland law at the time.  Any doubt about that may also be removed by the fact that in 2 years after the obtaining of the Notary Certificate, Luk was issued the one-way permit enabling her to come to join the Deceased in Hong Kong.  There is no documentary evidence of the details, including what caused the Mainland authority to decide to issue the permit.  But one inference, and I say a fairly probable one, is that this had partly to do with the adoption relationship between the Deceased and Luk.  Along the line of argument of Lily’s, it may be suggested, though not actually argued, that this would have simply compounded the falsity of adoption.  I am not inclined to prefer that suggestion and assume that the Mainland authority did not conduct the necessary investigation before deciding to issue the permit to Luk.

Conclusion

124.I find as a matter that Luk was the daughter adopted by the Deceased for the purpose of section 17(1) of the AO and thus section 2(2)(a) of the IEO.

ORDER

125.Lily’s claim is dismissed.  So is Cheung’s counterclaim.  I allow Luk’s counterclaim and make the declaration as sought, namely, that she is a lawfully adopted daughter of the Deceased.

126.Costs should follow the event.  But I would defer ruling, partly in view of possible argument as to whether Lily’s costs of defending Cheung’s counterclaim should be borne by Luk.  I give leave to the parties to lodge and serve written submissions (of not more than 4 pages each) on costs within 14 days, and reply written submissions, if any (of not more than 4 pages each) within 14 days thereafter.  Decision on costs will be given in writing, unless otherwise directed.

127.I thank counsel for their assistance.

Mr Vincent POON and Mr Danny CHAN, instructed by Charles Wong & Co for the plaintiff

Mr Andy HUNG and Mr Alex LAI, instructed by B C Chow & Co for the 1^st and the 2^nd defendants