Final Appeal No 4-2009 (Civil)

IpsofactoJ.com: International Cases [2010] Part 6 Case 4 [CFA]


COURT OF FINAL APPEAL, HKSAR

Coram

S.Y. Ho

- vs -

L.F. Leung

(梁麗芳)

CHIEF JUSTICE ANDREW LI

JUSTICE KEMAL BOKHARY PJ

JUSTICE PATRICK CHAN PJ

JUSTICE R.A.V. RIBEIRO PJ

SIR ANTHONY MASON NPJ

24 JULY 2010


Judgment

Chief Justice Andrew Li

  1. I agree with the judgment of Mr Justice Chan PJ.

    Justice Bokhary PJ

  2. The constitutional provisions invoked on the appellant’s behalf do not assist her in any way on any view of constitutional horizontality, therefore a subject on which nothing need be said in the present case.  Despite the skilful arguments presented by Mr Anthony Neoh SC for the appellant, I agree with Mr Justice Chan PJ, whose judgment I have had the benefit of considering, that the appeal should be dismissed with costs and legal aid taxation of the appellant’s own costs.

    Justice Chan PJ

  3. This appeal is concerned with the meaning of “mother” in s.4(7) of the Intestates’ Estates Ordinance, Cap 73 (“the IEO”) and rule 21(1)(iii) of the Non-contentious Probate Rules, Cap 10A (“the NCPR”).  Neither the ordinance nor the rules contains any definition of this word.  In the context of this case, the question to be decided is: does it refer to the natural mother of an intestate as contended by the Respondent or his “legal mother” under Chinese law and custom as contended by the Appellant?

    Family history

  4. The dispute sadly involved two ladies who were once members of the same household but had turned bitter towards each other. The family history dated back to more than 60 years ago.

  5. In 1947, Mr Tsang Kei Hung (“Mr Tsang Senior”) married the Respondent (“Madam Leung”) according to Chinese law and custom.  Mr Tsang Senior had three children by Madam Leung: one daughter, the deceased (“Dr Tsang”) and another son who died at the age of one.

  6. In 1953, Mr Tsang Senior took the Appellant (“Madam Ho”) as his concubine under Chinese law and custom. There was a dispute as to whether Madam Leung had given her consent as principal wife to this union of concubinage. But it was agreed that such consent was not strictly essential for the validity of the union and in any event, this is no longer material to the issues in this case. Mr Tsang Senior had 3 sons and 3 daughters by Madam Ho.

  7. Between 1953 and 1955, Mr Tsang Senior and Madam Ho and the children including those by Madam Leung went to live in the place at which the family business was operated. Madam Leung lived alone in the matrimonial home only to join them in 1955.

  8. In mid 1956, the family including Madam Leung’s two children moved again leaving Madam Leung behind. A short while later, she moved to live with her own father in Kowloon bringing with her the two children.

  9. In March 1958, Madam Leung obtained a court order under the Separation and Maintenance Orders Ordinance, Cap 16, for her maintenance and the custody and maintenance of her two children. In June 1958, Mr Tsang Senior and Madam Leung agreed to a divorce under Chinese customary law, Madam Leung waiving maintenance and custody of her two children, but retaining reasonable access to them. It was not disputed (and the judge so held) that the Chinese customary marriage between Mr Tsang Senior and Madam Leung was validly dissolved by mutual consent. It was said (although this was not accepted by Madam Ho) that Dr Tsang visited Madam Leung from time to time and maintained contact with her during his life time. This was, as observed by the courts below, supported by the documentary evidence.

  10. At Mid Autumn Festival in 1958, Mr Tsang Senior threw a dinner party for his relatives and friends. At the party, Mr Tsang Senior’s father announced, apparently in Madam Leung’s absence, that she was no longer a member of the family or the mother of her two children, and that Madam Ho would become Mr Tsang Senior’s wife and the mother of the children. There was some sort of ceremony with kowtowing and tea serving and the giving of red packets. Madam Ho asked the two children to continue calling her “second lady”, being conscious of the inconvenience and possible effect of the change of relationship on the children. In January 1997, Mr Tsang Senior and Madam Ho had their customary marriage registered under s.38 of the Marriage Ordinance, Cap 181, although at the time of registration, they only mentioned the union of concubinage in 1953.

  11. Dr Tsang got married in 1996. His wife passed away two years later. They had no children. He died of a heart disease in 2001, leaving no will. By then, Mr Tsang Senior had passed away. Madam Leung and Madam Ho were still alive at the time of Dr Tsang’s death.

    Facts found by the trial judge

  12. The trial judge (A Cheung J) was conscious of the sensitivity of this case to the parties and their respective families and thus had refrained from making any finding that was not necessary to the issues he had to decide. On the disputed issues which had to be resolved, he made the following findings of fact. These findings are not challenged by the parties in the present appeal.

    1. As a matter of Chinese customary law, what happened at Mid Autumn Festival in 1958 amounted to the ceremony of  “fuzheng” (扶正) whereby Madam Ho became the principal wife of Mr Tsang Senior.

    2. Madam Ho also became the jimu (繼母) (literally meaning step mother) of Dr Tsang and his sister. She was regarded as their mother under Chinese customary law.

    3. The divorce or ousting of the original principal wife, Madam Leung, would only sever her relationship with Mr Tsang Senior and his family but not her relationship with her natural children even though they might have a new mother as their jimu (繼母), and this was so regardless of her remarriage into a new family.

    4. According to Chinese customary law, the children would have a jimu (繼母) (legal mother) and a chumu (出母) (natural mother) having more onerous mourning rituals towards the jimu (繼母) than the chumu (出母) but the duty was still substantial.

    Adverse claims to Dr Tsang’s residuary estate

  13. Since Dr Tsang died intestate, his residuary estate falls to be governed by the IEO.  According to s.4(7), if an intestate leaves no husband or wife and no issue but one parent, then his residuary estate shall be held in trust for his father or mother absolutely. Furthermore, under rule 21(1) of the NCPR, where a person dies wholly intestate, persons having a beneficial interest in the estate are entitled to a grant of letters of administration in the order of priority set out in the rule. According to this order of priority, the father or mother of the intestate is entitled to a grant under rule 21(1)(iii).  

  14. It was common ground that in the present case, s.4(7) and rule 21(1)(iii) apply. It is also common ground that the word “mother” in rule 21(1)(iii) should be construed in the same way as that appearing in s.4(7). Thus, whoever is regarded as the surviving “mother”of Dr Tsang within the meaning of these provisions would be entitled to his residuary estate and to a grant of letters of administration.

  15. Both Madam Leung and Madam Ho claimed to be Dr Tsang’s surviving mother as provided in s.4(7) and both claimed to be entitled to his residuary estate and to a grant of letters of administration to the exclusion of the other. Madam Leung’s case was that “mother” in s.4(7) means the natural mother, and as the natural mother of Dr Tsang, she was the only person entitled to his estate. On the other hand, Madam Ho’s case was that the word “mother” in s.4(7) must be construed to mean the “legal mother” of an intestate and that since she had become the new principal wife of Mr Tsang Senior and the only jimu (繼母) or “legal mother” of Madam Leung’s two children under Chinese law and custom as a result of the “fuzheng” (扶正) ceremony in 1958, she was entitled to Dr Tsang’s estate to the exclusion of Madam Leung. The dispute thus turns on the true meaning of the word “mother” in s.4(7).

  16. The judge accepted Madam Leung’s case and held in her favour. His decision was unanimously upheld by the Court of Appeal (Yeung and Yuen JJA and Lam J). With leave from the Court of Appeal, Madam Ho now appeals to this Court. Unfortunately, Madam Leung passed away in May 2009. This appeal was ordered by the Registrar to be carried on between the executrix of Madam Leung’s estate and Madam Ho.

    Madam Ho’s arguments

  17. In support of her contention that “mother” in s.4(7) should be construed to mean the “legal mother” under Chinese law and custom, Madam Ho raises two arguments. The first, which is her primary submission, is based on her status as Dr Tsang’s only “legal mother”. This was rejected by both the judge and the Court of Appeal. The second submission, which was first raised in the Court of Appeal with leave of the court, is based on articles 19 and 22 of the Hong Kong Bill of Rights (the “human rights argument”). This was also rejected.

    Madam Ho’s primary submission

  18. Madam Ho’s primary argument can be summarized as follows. The absence of any definition of “parent”, “father” and “mother” in the IEO must have been deliberate in order to preserve the family law as it existed prior to the legislative reform in October 1971. Through this and other pieces of legislation in the reform package, the status of persons acquired under Chinese law and custom prior to the reform are recognized. Under Chinese customary law, succession was based on status. Thus, when construing s.4(7), the court should take into consideration the legal status acquired by a party under Chinese law and custom and not simply adopt English common law notions or English family law concepts.

  19. It is further submitted that the judge and the Court of Appeal had wrongly ignored the significance of legal status, had adopted an incorrect approach as to the right of the parties to succeed under the IEO and had wrongly concluded that “mother” means the natural mother of the intestate. Reliance is also placed on the previous s.2(2) which was repealed by the 1995 amendments to the IEO. It is argued that that provision permitted a person to succeed to the residuary estate of a step mother and that this illustrates that at the time the IEO first came into effect, it was not the legislative intention to confine the mother and child relationship to one based on a blood relationship. If that is correct, it is submitted, there is no reason why a step mother could not succeed to the residuary estate of her step child.

    Statutory interpretation

  20. Statutory interpretation involves ascertaining the intention of the legislature as expressed in the statutory provisions. (See Town Planning Board v Society for the Protection of the Harbour Ltd (2004) 7 HKCFAR 1, Li CJ at 14.)  In the interpretation process, the context and purpose of the statute must be considered. (See HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, Sir Anthony Mason NPJ at 606E.)  A statute must be construed in its proper context and the court should adopt a purposive approach in order to give effect to the purpose of the legislation.

    Legislative background

  21. In the present case, the context and purpose of the IEO can be gathered from the legislative background to this ordinance and several other ordinances which were enacted as a package at about the same time and also from an examination of the provisions of the ordinance.

  22. As a result of various reports and consultations since the 1950s, a package of reform legislation was introduced in 1970 and 1971 regarding the continued application of Chinese law and custom to local residents in the areas of family law and succession.  Legislation relating to family law reform was enacted in December 1970 which included the Marriage Reform Ordinance, Cap 178, Married Persons Status Ordinance, Cap 182, and Legitimacy Ordinance, Cap 184 (“the family law reform legislation”). This was followed immediately by the enactment of succession reform legislation in June 1971 which included the Wills Ordinance, Cap 30, Intestates’ Estates Ordinance, Cap 73, Deceased’s Family Maintenance Ordinance, Cap 129, and Probate and Administration Ordinance, Cap 10 (“the succession reform legislation”). All of these statutory provisions were to become effective at the same time on the Appointed Day, 7 October 1971. 

  23. The object of this legislation was to implement two important changes. First, as from the Appointed Day, all marriages in Hong Kong can only be celebrated according to the provisions of the Marriage Ordinance, that is, the civil equivalent of a Christian marriage. All other forms of civil or customary marriage are abolished.  However, those other forms of marriage which were celebrated before that date are either declared valid (in the case of Chinese customary marriages) or validated (in the case of modern marriages) and the status (that is, concubines and their children) acquired pursuant to these marriages are expressly recognized. This is the effect of the family law reform legislation.

  24. The second major change, effected by the succession reform legislation, is to clarify the position on the right of Chinese residents to make testamentary dispositions and to introduce a new regime of intestate succession which is similar to that provided in the Administration of Estates Act 1925 as amended by the Intestates’ Estates Act 1952. Succession according to Chinese law and custom will no longer be possible in future save and except succession to New Territories land. Again, express provisions are made for persons who had acquired a status pursuant to previous civil and customary marriages: in relation to Chinese customary marriages, children of the principal wife and all concubines are to be treated alike; and concubines take a share out of the entitlement of the principal wife. There was also an express provision (which was repealed in 1995 following a review by the Law Reform Commission) regarding the position of children in relation to their step mother.

    The new regime under the IEO 

  25. Thus, the purpose of the IEO cannot be clearer. This appears in the Explanatory Memorandum accompanying the Intestates’ Estates Bill: “This Bill seeks to provide for the introduction of new rules governing the distribution of the residuary estates of persons dying intestate.” The long title of the ordinance is equally clear: it was an ordinance “to amend the law relating to the distribution of intestates’ estates.” That the new rules are to be the only rules governing distribution on intestacy after the Appointed Date is put beyond doubt by s.4(1):

    The residuary estate of an intestate shall be distributed in the manner or be held on the trusts mentioned in this section.
  26. This set of rules is intended to establish a new regime, the only regime, for intestate succession in Hong Kong as from 7 October 1971. As mentioned above, the rules set out in s.4 follow closely those in the Administration of Estates Act 1925 as amended by other English Acts. The different classes of persons who are entitled to share in the residuary estate of an intestate are clearly set out in the rules. These are persons who are a person’s near relatives for whom he or she would have wished to make provision upon his or her demise. It is clearly the intention of this new legislation that the relationships of these classes of persons with the deceased are to be understood in the context of the family law reform which was introduced at the same time as the succession reform. However, consistent with the recognition by the family law reform legislation of the status of persons acquired under Chinese law and custom, the IEO contains express provisions which are deliberately designed to protect the positions of these persons. It is thus inappropriate in the construction of the provisions of the IEO to refer to any Chinese customary law status for which no express provision has been made.

    Chinese customary law concepts not applicable

  27. As Yuen JA said (para. 40 of the Court of Appeal judgment), this new statutory regime does not permit the importation of the Chinese customary law concepts of succession. They are entirely different concepts which are based on the premise that the properties of a member of the family are the properties of the family and should be kept within the family in perpetuity. The succession reform legislation provides for the freedom of testamentary disposition by will and, in the absence of any will, for intestate distribution under the IEO with further adjustments to be made under the Deceased’s Family Maintenance Ordinance, if the need arises. 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. To bring in such concepts when construing the provisions of the IEO would be contrary to the purpose and intention of the new legislation.

  28. When the judge and the Court of Appeal made reference to the “downward” succession under Chinese customary law, this was done in response to the submission based on the now repealed s.2(2) that it would be unfair to permit a step child to succeed to his or her step mother’s estate but not to allow a step mother to share in the residuary estate of her step child. It was sought to illustrate that the converse does not necessarily apply. I do not understand the courts below to be adopting the “downward” succession concept under Chinese customary law in construing s.4(7).

    Meaning of “mother” 

  29. When construing the word “mother” in s.4(7), both the judge and Yuen JA (with whom the other judges agreed) started with the prima facie meaning, that is, the natural mother. This was criticized by counsel for Madam Ho. But I do not think this criticism is justified. What the judges did accords with common sense understanding. As Yuen JA pointed out, the first person one can think of as answering the description of the mother of another person is “the woman who gives birth” to that other person.  If the question is whether a person other than the natural mother is recognized by law as the mother, the answer to that question would require, as in the present case, a consideration of various matters. It would be a question of mixed law and fact. It is not reasonably to be supposed that the legislature intended that the question of succession should only be determined after a trial on these matters.

  30. Mr Neoh SC appearing for Madam Ho accepts, as he has to, that a natural mother falls within the meaning of “mother” in s.4(7). What he is submitting, as I understand him, is that the word also includes a “legal mother” under Chinese law and custom and in this case, this would be Madam Ho since Madam Leung had ceased to be the mother of Dr Tsang under Chinese law and custom. Mr Neoh also acknowledges that while a blood relationship (between a mother and her natural child) continues and cannot be changed or extinguished, a legal status resulting from a certain relationship may change from time to time. He is thus content to confine his argument to his client’s position as the “legal mother” under Chinese law and custom and is reluctant to make his submission on the basis of the more commonly used description of step mother. But this exposes the weakness in his argument: Madam Ho was, in law and in practice, the step mother of Dr Tsang. And if Mr Neoh’s argument is right, “mother” in s.4(7) would also include a step mother in a non-Chinese customary marriage situation. If it were really the intention of the legislature to cover such a broad class of persons in the word “mother” (that is, natural mother, “legal mother” and step mother), it would have been easy to spell this out by a simple definition. But this was not done. 

  31. On the contrary, as the judge rightly held, s.4 proceeds on the premise that a deceased person has only one father and one mother (para. 82). Yuen JA explained this in greater detail in para. 23:

    It is clear from s.4 of the IEO that in providing for succession to a person who has died intestate, he is regarded as having only one father and one mother. It is explicit in s.4(6) that “both parents” mean “the father and mother”. Section 4(4)(b)(i) should be read consistently with that so that when it refers to “both parents” or “the 2 parents”, those words mean “the father and mother” (and not for instance “two mothers”). Similarly when s.4(7) refers to “one parent” and “the surviving father or mother”, that means the survivor of those two parents, i.e. father and mother.
  32. With this analysis and conclusion, I would respectfully agree. The significance of this is that it supports a construction which favours the most easily ascertainable and the least problematic candidate - the natural mother. 

  33. 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. In the present case, the context in fact supports such a construction. The other provisions in the same ordinance, particularly s.4, are also relevant in throwing light on the construction of s.4(7). As Bokhary PJ remarked in Medical Council of HK v Chow Siu Shek (2000) 3 HKCFAR 144, at 154:

    it is necessary to read all of the relevant provisions together and in the context of the whole statute as a purposive unity in its appropriate legal and social setting.
  34. Under s.4, the list of persons who are entitled to succeed are, in order of priority: husband and wife, issues, parents, brothers and sisters of the whole blood, brothers and sisters of the half blood, grandparents, uncles and aunts of the intestate who are brothers or sisters of the whole blood of a parent of the intestate; and uncles and aunts of the intestate who are brothers or sisters of the half blood of a parent of the intestate. As convincingly argued by Mr Anderson Chow, SC, apart from the husband or wife of the intestate, entitlement under the IEO is based on blood relationship with the intestate, except where it is expressly provided otherwise. The exceptions which are subject to express provisions are adopted children and the children of the principal wife or concubines in the case of a Chinese customary marriage or unions of concubinage.  There is no such provision for either “legal mother” or step mother.

  35. Furthermore, intestate succession occurs in the absence of testamentary disposition by the deceased. It is thus important, in order to avoid protracted, expensive and often acrimonious disputes over the intestate’s estate that the classes of persons who are entitled to share are clear, simple and easily identifiable. There must be certainty in the application of the rules of intestate succession (see Lam J in paras 55 and 56.). Madam Ho’s construction would, if accepted, give rise to a lot of uncertainties in the operation of these rules. It must always be borne in mind that the deceased is free to make a will disposing of his estate or any part thereof to such person or persons as he wishes, subject to any adjustments which the court may see fit to make under the Deceased’s Family Maintenance Ordinance which was replaced in 1995 by the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481.

  36. For these reasons, I have no hesitation in concluding that on the true construction of s.4(7) in its proper context and in the light of the purpose and intention of the legislation, the word “mother” means the natural mother of the intestate and the natural mother only.

    The human rights argument

  37. In the Court of Appeal, senior counsel for Madam Ho (not Mr Neoh) relied on an alternative basis to support his argument on the construction of s.4(7), that is, the judge’s construction did not conform to articles 19 and 22 of the Hong Kong Bill of Rights (“BOR”) which are similar to articles 23 and 26 of the International Covenants of Civil and Political Rights (“ICCPR”) as applied to Hong Kong through article 39 of the Basic Law. In order to avoid any argument which might require relying on evidence which was not explored before the judge, counsel was granted leave to amend his pleading to enable him to make this submission but on the limited basis founded on Madam Ho’s status as jimu (繼母) or “legal mother” under Chinese customary law. Before this Court, Mr Neoh is content to argue the point on the same limited basis.

  38. Before the Court of Appeal, Mr Chow, relying on s.7 of the Hong Kong Bill of Rights Ordinance, raised the issue as to whether the BOR applies to an inter-citizen dispute. Yuen JA referred to three apparently conflicting decisions of the Court of Appeal on this question (para. 42). In Tam Hing Yee v Wu Tai Wai [1992] 1 HKLR 185 (a case on a prohibition order restraining a debtor from leaving Hong Kong), it was held that the BOR had no application to disputes between private individuals. On the other hand, in Cheung Ng Sheong Steven v Eastweek Publisher Ltd (1995) 5 HKPLR 428 (on a review of a jury’s award of damages in a libel action), it was suggested by the Court of Appeal that despite s.7, the court should uphold the BOR as far as possible (per Mayo JA, at 451I) and that the court should interpret the law in accordance with treaty obligations applying in Hong Kong (per Nazareth VP at 437E). The views expressed in this latter case appeared to have found favour with the Court of Appeal in Solicitor (302/2002) v Law Society of Hong Kong [2006] 2 HKC 40 which considered itself bound by that decision. In the present case, Yuen JA did not find it necessary to resolve this issue since she took the view that even if the BOR applied, articles 19 and 22 did not help Madam Ho’s case. The other members of the court agreed.

  39. Before this Court, the same point was raised in argument. Mr Neoh submits that the courts have an obligation to ensure that all the laws of Hong Kong are ICCPR consistent, and thus have the power to construe any legislation taking into account the provisions of ICCPR, even when it is a law which deals with inter-citizen disputes.

  40. Under article 39 of the Basic Law, to be applicable, the relevant provisions of the ICCPR must be made to apply to Hong Kong through the laws of Hong Kong.  By enacting s.7 in the BOR Ordinance, the law has expressly and unequivocally stated that the ICCPR binds only the government and public bodies. This point had been clearly made by the Chief Justice in Secretary for Justice v Chan Wah (2000) 3 HKCFAR 459, at 470 G – 471 A:

    Article 39 of the Basic Law provides among other things that the provisions of the International Covenant on Civil and Political Rights (ICCPR) as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The Bill of Rights Ordinance incorporates into the law of Hong Kong the provisions of the ICCPR as applied to Hong Kong. The Hong Kong Bill of Rights is set out in Pt II of the Ordinance (the Bill of Rights).

    Section 7(1) of the Bill of Rights Ordinance provides that it binds only ‘(a) the Government and all public authorities; and (b) any person acting on behalf of the Government or a public authority’.

    In order to engage the Bill of Rights Ordinance at all, the Government or a public authority or a person acting on behalf of either of them must be involved since the Ordinance only binds them. This could be said to be the key into the Bill of Rights. If the body involved is not the Government or a public authority or a body acting on behalf of either of them, the Ordinance does not bind that body and there is no question of the Bill of rights being engaged at all.

  41. On this basis, the BOR is not engaged in the present case. As to the different argument that even though the BOR is not engaged, the IEO should still be construed consistently with the ICCPR, since it was not seriously pursued by Mr Neoh, I do not think it is necessary to consider it in this appeal.

  42. However, I should add that even if articles 19 and 22 of the BOR were engaged, they would not assist Madam Ho because I do not think the human rights argument can succeed.

  43. The human rights argument can be summarized briefly as follows. In construing s.4(7), the court must adopt a remedial construction such that it conforms to the requirements of articles 19 and 22 (the local equivalent of articles 23 and 26 of the ICCPR). Article 19(1) provides for the protection of the family as a natural and fundamental group unit of society. Article 22 protects a person against unlawful discrimination. It is submitted that the purpose of intestate succession is to keep the property of the intestate within the family. In the present case, Madam Leung had ceased to be a member of Dr Tsang’s family and Madam Ho had become his “legal mother” under Chinese law and custom. It would be destructive of the family to have a person outside the family to inherit Dr Tsang’s estate.

  44. Furthermore, it is submitted that if Madam Ho’s status as the “legal mother” is not recognized for the purpose of s.4(7), she would be at a disadvantage when compared with the natural mother and the adoptive mother for whom the IEO has made provision. This, it is argued, would amount to unlawful discrimination against her on the ground of her status as the “legal mother”, and this is contrary to article 22 of the BOR.  And to comply with these two articles of the BOR, the court should assign the meaning of “legal mother” to the word “mother” in s.4(7) or alternatively, make a declaration that s.4(7) insofar as it disentitles a “legal mother” under Chinese customary law to intestate succession is contrary to and void for inconsistency to article 39 of the Basic Law.     

  45. I do not think this submission can be sustained. Section 4(7) makes provision for a natural mother to inherit the residuary estate of her natural child upon intestacy. A natural mother who has divorced the father is not an outsider in relation to her natural child: while she may have severed her ties with the father and the father’s family, she certainly retains a relationship vis-à-vis her natural child.  Taking s.4(7) on its own, I fail to see how this provision can be regarded as being inconsistent with the protection for family unity or family life under article 19. Nor can it be said to be destructive of family ties. The existence or non-existence of family ties is a question of fact in each case. In my view, whether s.4(7) is or is not compatible with article 19 cannot and should not depend on the answer to this question.

  46. The case of Marckx v Belgium (1979) 2 EHRR 330 which is relied on by counsel does not support Madam Ho’s argument. It was a case on article 8 of the European Convention of Human Rights (the equivalent of article 19). The facts were however entirely distinguishable. What the European Court found objectionable was the statutory provision which required the mother of an illegitimate child to give up certain of her rights to make testamentary disposition in favour of her child if she wanted to recognize the child by declaration or court order. It is important to note that while the European Court acknowledged that intestate succession might be intimately connected with family life, it took the view that (para. 53 on p. 351):

    Nevertheless, it is not a requirement of Article 8 that a child should be entitled to some share in the estates of his parents or even of other near relatives: in the matter of patrimonial rights also, Article 8 in principle leaves to the Contracting States the choice of the means calculated to allow everyone to lead a normal family life (see para. 31 above) and such an entitlement is not indispensable in the pursuit of a normal family life.
  47. As Yuen JA put it in para.50, “a contracting state has a choice how to regulate that aspect of family life (such as prescribing priorities in succession) so long as the underlying rationale does not violate other aspects of the Convention”.

  48. The argument on article 22 can be disposed of very briefly. This is because it is quite clear that a natural mother, a “legal mother” and an adoptive mother are not like cases. There are fundamental differences among these three cases: a natural mother and her natural child is linked by a blood relationship; the status of a “legal mother” is a question of mixed law and fact; and the status of an adoptive mother is the result of a court order. There are sound policy reasons for treating these different classes of persons differently.I do not accept that s.4(7) has resulted in any unlawful discrimination against the “legal mother”.

    Conclusion

  49. For the reasons which I have given above in this judgment, the appeal must be dismissed with costs. Madam Ho’s own costs are to be taxed according to Legal Aid Regulations.

    Justice Ribeiro PJ

  50. I agree with the judgment of Mr Justice Chan PJ.

    Sir Anthony Mason NPJ

  51. I agree with the judgment of Mr Justice Chan PJ.

    Chief Justice Li

  52. The Court unanimously dismisses the appeal with costs. Madam Ho’s own costs are to be taxed according to Legal Aid Regulations.


Representations

Anthony Neoh, SC, K M Chong and Aidan Tam (instructed by Messrs Damien Shea & Co and assigned by the Legal Aid Department) for the Appellant.

Anderson Chow, SC and Paul H M Leung (instructed by Messrs S K Wong & Co) for the Respondent.


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