HO WAI YIN AND OTHERS v. CHENG SUET YEE

HO WAI YIN AND OTHERS v. CHENG SUET YEE

The application to determine the construction of s.2(2)(c) separately was refused because the question whether informally adopted persons fall within that provision depends materially on expert evidence as to Chinese law and custom and on factual matters best determined at trial; therefore the court exercised its discretion under O.14A r.1 / O.33 r.3 to refuse the separate determination and to require progression to trial with directions.

Citation
HO WAI YIN AND OTHERS v. CHENG SUET YEE
Parties
Plaintiff: Plaintiffs; Defendant: Defendant
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
20 July 2006
Case Number
HCAP18/2003
Procedural Posture
Probate / Intestacy / Interlocutory Application Under O.14 a R.1 / O.33 R.3 for Determination of Construction Issue (refused)
Outcome
Application refused
Legal Topics
Adoption, Intestate Succession, Construction of Statute, Expert Evidence on Foreign/customary Law, Interlocutory Relief Under Procedural Rules, Costs
Source Language
EN
Probate Intestacy Family Law Statutory Interpretation Chinese Customary Law Civil Procedure Adoption Intestate Succession +4 more

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Parties

Plaintiffs

Plaintiff

Defendant

Defendant

Procedural Posture

Probate / Intestacy / Interlocutory Application Under O.14 a R.1 / O.33 R.3 for Determination of Construction Issue (refused)

Legal Issues

  1. 1 Whether s.2(2)(c) of the Intestates Estates Ordinance includes only a male heir formally adopted under Chinese law and custom or also includes informally adopted sons/daughters
  2. 2 Whether an informally adopted daughter is entitled to a share of the deceased's property under Chinese law and custom (as of the relevant historical period)
  3. 3 Whether the court can determine the construction issue on materials presently before it without hearing expert evidence on Chinese law and custom

Ratio Decidendi

The application to determine the construction of s.2(2)(c) separately was refused because the question whether informally adopted persons fall within that provision depends materially on expert evidence as to Chinese law and custom and on factual matters best determined at trial; therefore the court exercised its discretion under O.14A r.1 / O.33 r.3 to refuse the separate determination and to require progression to trial with directions.

Court Disposition

Application refused

Orders

  • Parties directed to submit a draft timetable and directions for further conduct of proceedings (agreed if possible) within 7 days of judgment
  • Costs of the application to be paid by the plaintiffs to the defendant, to be taxed if not agreed