HENDY DJUSNI v. YIU SO

HCMP 432/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 432 OF 2006

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REASONS  FOR  DECISION

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1.  In this action commenced by originating summons on 6 March 2006, the Plaintiff applies for mandatory injunction order against the Defendant compelling the Defendant to deliver to him the identity card of one Madam Lam Pui Fong (the “Deceased”) who died on 28 February 2006, so as to enable him to attend to the funeral matters of the Deceased.  He also asks for an order that he be given the possession of the remains of the Deceased to enable him to carry out funeral ceremony and cremation of the Deceased’s remains.

2.  On the same day as the issuance of the originating summons, the Plaintiff also took out a summons to apply for an interlocutory mandatory injunction in the same terms as the prayer in the originating summons.  This summons for interlocutory injunction comes before me today.

3.  I am satisfied that both the originating summons and the summons for interlocutory injunction together with the supporting affirmations of the Plaintiff, Henrry Djusni and Lee Siu Lam and the exhibits to these affirmations had been duly served on the Defendant.  I am also informed that on today and yesterday, the Plaintiff’s solicitors had also attempted to serve the 2^nd affirmation of the Plaintiff on the Defendant, but the Defendant refused to accept the same.  Since the application for an interlocutory injunction could also be made ex parte in a suitable case, I am prepared also to take into account the contents of the Plaintiff’s 2^nd affirmation even though the Defendant had declined to accept service of the same.

4.  I fully appreciate that the evidence before me all came from the Plaintiff’s side and the Defendant had not filed any affirmation.  However in view of the urgent nature of this application, and the overwhelming interest of all parties concerned that this matter should be determined as soon as possible, I have taken an exceptional course of allowing the Defendant to give evidence from the Bar table on his case and to explain his stance in this matter.

5.  I do emphasize that in view of the nature of the evidence and material put before me, any view that I have expressed below on the factual background of the case is necessarily a very provisional view based on the affirmations filed by the Plaintiff and also from the un-sworn and un-cross examined statements of the Defendant, and as such should not be taken as a finding of facts binding on both parties in any subsequent hearing or litigations between the parties.

6.  According to the Plaintiff’s evidence, the Deceased had been residing in Hong Kong since 1950.  She had never been married and had no children.  She had 2 younger brothers and one younger sister.  Her younger brothers are Mr. Wandi who is the father of the Plaintiff, and Mr. Halim Budiman.  Her younger sister is called Lam Chui Fong.  Both her younger brothers live in Indonesia.  Her younger sister normally resides in Guangzhou, China.

7.  The Plaintiff has a Chinese name Lam Wing Ka.  The Plaintiff has a good relationship with the Deceased although he normally resides in Indonesia.  He has a bank account in a bank in Hong Kong and he made the Deceased his attorney for operating his bank account.  He visited the Deceased frequently.  On his evidence he was in Hong Kong in or around May or June 2004 when the Deceased was hospitalized and he and members of his family were with the Deceased at her deathbed when she died on 28 February 2006. 

8.  The Defendant and the Deceased were business partners in running a photo studio.  They must have known one another since at least 1979.  They lived in the same flat in Kowloon.  According to the Plaintiff, they had separate rooms within the flat.  The flat used to be owned by the Deceased.  However on 23 March 2004, the Deceased executed a Deed of Gift assigning the flat to herself and the Defendant as joint tenants. 

9.  In or about May or June 2004, while the Deceased was in hospital, the Plaintiff went to flat and met the Defendant.  The Defendant passed him a note written by the Deceased dated 15 May 2004.  By this note the Deceased directed that after her death, the Plaintiff was to have the full authority to take care of all the funeral and burial matters in accordance with the Buddhist ceremony and her remains should be cremated.   The expenses were to be paid out from the estate.  According to the Plaintiff, when he met the Deceased one or two days after he got the note, the Deceased told him that since she had no children, the Plaintiff was to take charge of all her funeral matters after her death and that Plaintiff should be her “filial son” in her funeral ceremony.  On a later occasion, the Deceased also told him that she had made a will and that the Plaintiff was the beneficiary.  I should point out that the will is not yet found.

10.  According to the verbal statement made by the Defendant before me, he first met the Deceased in Hong Kong when she came to Hong Kong in 1956.  The Deceased and him had been living together for 47 years before her death.  They worked together in the photo studio.  Although the Defendant was not very explicit about it, he intimated that in fact he and the Deceased had been living together as man and wife for these 47 years.  However the Defendant admitted that there was no marriage ceremony between him and the Deceased.  He said that initially he did not know whether she was married.  However in or about 1969 or 1970, he had come across a letter written to the Deceased by someone describing himself as her husband asking the Deceased for money.  He did not have any detailed recollection on this because he only had a glimpse of the letter.

11.  After the death of the Deceased, the Plaintiff wished to get her remains from the hospital but the Defendant objected.  The hospital was not willing to release the remains to the Plaintiff without the Plaintiff’s producing the identity card of the Deceased, which was amongst the personal belongings of the Deceased left at the flat.  Of course, prima facie the flat now belongs to the Defendant being the survivor of the joint tenant.  In fact the Defendant agreed that the Deceased’s identity card was in his possession.

12.  There is evidence that on 1 March 2006, there was a meeting between the Defendant and also some members of the maiden family of the Deceased.  The Plaintiff was excluded.  In this meeting, the Defendant took the stance that he would not co-operate in releasing the identity card of the Deceased to enable the Plaintiff to handle the funeral and burial matters.  Instead, he maintained that he should be person to take sole charge of her funeral affairs because he was in substance the Deceased’s husband.

13.  Before me this morning the Defendant produced a copy of a will made by the Deceased dated January 1986.  On the face of this will, the Deceased had appointed the Defendant executor and trustee of the will and bequeathed all her property to the Defendant subject to the payment of all just debts and testamentary and funeral expenses.  In view of the importance of this document, I stood down the hearing this morning to enable the Defendant to obtain and bring to court the original of the will for the Plaintiff’s inspection.  The Defendant had duly done so.  Having seen the original of the will, it appears to me that the will is regular on its face and it appears that the requirements of the Wills Ordinance are all complied with.  The Defendant also produced a will made by him in 1980 which on its face appointed the Deceased his executrix.  By this will, the Defendant also bequeathed all his property to the Deceased.  However in view of the time gap between the 2 wills, I am unable to proceed on the basis that they are mutual wills such that neither the Deceased nor the Defendant would be at liberty to revoke the will. 

14.  Thus on the evidence before me, the Defendant is the executor of the Deceased’s estate.  There is no evidence that the will of 1986 produced by the Defendant has been revoked.  The only suggestion that the Deceased might have a later will came from the evidence of the Plaintiff who deposed on affirmation that the Deceased had told him that she had made a will under which he was a beneficiary.  Since the will of 1986 did not make the Plaintiff any beneficiary at all, it follows that if what was supposed to have been said by the Deceased to the Plaintiff did take place and was true, the Deceased would have another will the where about of which is not known at this moment.  However at this stage, I am of the view that this suggestion of the existence of another will is so vague that I should proceed on the basis that there is a strong case to say that the Defendant is the executor of the Deceased’s estate.

15.  In considering whether to grant the order sought, I have to bear in mind that this is an application for an interlocutory mandatory injunction and that once the injunction is granted, in substance the Plaintiff would have got all the relieves prayed for in the originating summons.  Accordingly not only that I must be satisfied that the grant of the interlocutory injunction is justified on balance of convenience and also by reasons of its urgency, I must also be satisfied that there is a high degree of assurance that at the trial of this action, it will appear that the injunction is rightly granted. (see paragraph 29/1/30 Hong Kong Civil Procedure 2006).

16.  I agree with the observation of Martin J in Calma v. Sesar (1992) 106 FLR 446 which is also endorsed by Tang J in Chiu Chung Leung Edward v. Lee Fu Wai [2004] 4 HKC 65 at 68F that:

“The conscience of the community would regard rights over the disposal of human remains such as this as unseemly.  It requires that the Court resolve the argument in a practical way paying due regard to the need to have a dead body disposed of without unreasonable delay, but with all proper respect and decency”.

17.  Having regard to the fact that the Deceased died on 28 February 2006, there is plainly an urgent need to resolve this issue before me as soon as possible.

18.  On the question of the right to the remains of a deceased person, I accept the summary of the law as stated in paragraph 6-01 of Williams, Mortimer and Sunnucks on Executors, Administrators and Probate:

“The primary responsibility for the funeral falls upon the executors2 of the deceased, if and when these are known.³  Subject to this the next of kin are responsible.  In some of the relevant legislation the term “relative” is used.  This has been defined as “a husband or wife, parent or grand-parent or child or grandchild, including a legitimate child and any person who is, or is the child of, a brother, sister, uncle or aunt.”4  However, it is arguable that both historically and legally the heir of the deceased has these responsibilities.⁵  There can be no property in a dead body but the executors are entitled to possession for the purpose of disposal.⁶  Directions given by the deceased in the will are not legally enforceable as such.⁷  Directions given in the form of a conditional gift may be enforceable if possible and if not contrary to public policy.⁸  However, effect should be given so far as possible to the wishes of the deceased and if he has left no directions his body is entitled to Christian burial.⁹  There is no legal objection to the burial of cremated remains.¹⁰

19.  Applying the law to the facts before me, there are conflicting considerations.  The Defendant as executor would have a very strong claim to the remains because it is the duty of the executor to take care of the funeral and burial affairs.  On the other hand, it is not in dispute that the Deceased had indicated her wish in writing in 2004 that she would like the Plaintiff to take charge of her funeral and burial affairs.  The Plaintiff’s counsel submitted that I should give more weight to the instruction of 2004 as this was much later in time.

20.  There are other factors that I have to take into account.  First, the Defendant had been living in Hong Kong with the Deceased for many years.  While they were not legally married, their working and living together must have given their mutual friends and acquaintances the impression that they were husband and wife.   Their many mutual friends and acquaintances would naturally be expected to be present in the funeral ceremony.  The Plaintiff on the other hand normally lives in Indonesia and it would be less convenient for him to arrange the funeral ceremony.   Furthermore nearly all members of the Deceased’s maiden family are residing abroad.  Secondly the funeral and burial expenses are payable out of the estate.  On the face of the will before me, the Defendant is the sole person interested in the estate of the Deceased.  Financially he would be the person most directly affected by how the funeral and burial affairs are arranged.  All these considerations would indicate that the Defendant rather than the Plaintiff should be the person to whom the remains of the Deceased should be released for the purpose of arranging the funeral and burial matters.

21.  In the end, having taken all considerations into account, I consider that the Plaintiff has not satisfied the necessary high degree of assurance that the Plaintiff would succeed if this matter is to go to trial so as to justify me to grant the interlocutory mandatory injunction prayed for in the summons.  The application is therefore dismissed. 

22.  I would point out that although in this decision, I have made certain observation about the will of 1986 produced by the Defendant, it must not be taken that I have been satisfied that the Defendant is entitled to probate of the said will.  If the Defendant wants to propound that will, he must go through the usual procedure of probate application to prove the will.

23.  My decision today is merely on the Plaintiff’s application for the interlocutory mandatory injunction.  The dismissal of the Plaintiff’s application does not mean that there is an order from this court that the Defendant is entitled to have the possession of the remains of the Deceased to enable him to carry out the funeral and burial matters.  I have indicated to the parties that they should try to reach an agreement on the funeral and burial matters of the Deceased.  I would give liberty to the parties to apply before me for further consideration or direction on the issues which should be resolved as a matter or urgency.

24.  The cost of today’s hearing is reserved.

2 Williams v. Williams (1882) 20 Ch.D. 659, 664.  As to heirlooms and the shroud and coffins, see post p. 518, fn. 94; Dobson v. North Tyneside H.A. [1997] 1 W.L.R. 596 (no duty on hospital to preserve remains indefinitely after the inquest); R. v. Kelly [1999] Q.B. 621 (parts of a corpse might be property for the purposes of the Theft Act 1968 if they had acquired different attributes by virtue of the application of skill for exhibition or teaching purposes).  See also [1996] N.L.J. 1828.

3 It has been decided in Australia that a Solicitor who retains a deceased’s will owes a duty to take reasonable steps to find the executor and inform him of the content of the will:  Hawkins v. Clayton (1988) 164 C.L.R. 539, Sed quaere.

4 See the Disused Burial Grounds (Amendment) Act 1981, s.9.  When a child is in care or fostered the right to bury falls to the naural parent.  Subject to this right the local authority has power to bury where the deceased child was in its care immediately before death (Child Care Act 1980, s.25), Re B, Daily Telegraph April 12, 1991.

5 This question did not arise and was not argued in Williams v. Williams (supra).  The Inheritance Act 1833 was confined to succession to land albeit defined in the widest possible terms.  See Holdsworth H.E.L., Vol. 15, p. 177, and p. 67, post, n. 60.

6 See n. 2 and 150 N.L.J. 174, 654, 709.

7 Williams v. Williams (1882) 20 Ch.D. 659, 665.  But see the Anatomy Act 1984 and the Cremation Regulations 1920, 1952 and 1965.  Re Grandison, The Times, July 10, 1989.

8 A condition precedent may be enforceable if there is an effective gift over.  See generally Re Berens [1926] Ch. 596; Re Thomas [1930] 2 Ch. 67; Re Elliott [1952] Ch. 217; Roper on Legacies 651 – 675; Sheperd’s Touchstone 132.

9 Gilbert Buzzard (1821) 1 Hagg. Con. 333, 343; Rustewart (1840) 12 A. & E. 773.  As to financial services and burial see Lynne Leeder, Ecclesiastical Law Handbook (1997), paras 10.60 – 10.71.

10 Re Dixon [1892] P. 393.  The interment of ashes in the church will normally be refused (Re St. Peters [1982] 1 W.L.R. 1283).