BONG PIK LI AND OTHERS v. TANG YI, AS THE ADMINISTRATRIX OF THE ESTATE OF BONG WON LING, DECEASED AND OTHERS

HCAP 42/2023

[2025] HKCFI 612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 42 OF 2023

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DECISION

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A. Introduction

1.  Upon application made on 8 August 2019 (“D1’s Application for HK Grant”)  by the 1^st defendant (“D1” or “Tang”), Letters of administration (Grant No. HCAG 012635/2019)  (the “Grant” and the “LA”)  was on 27 November 2019 granted to her over the estate of Bong Won Ling (the “Deceased”, and the “Estate”).  

2.  By Writ issued on 10 October 2023, and Statement of Claim subsequently filed on 30 April 2024 (the “SOC”)[1], the plaintiffs (“P1” or “Teresa”, “P2” or “Mishel”, “P3” or “Bon”, “P4” or “Jade”, and collectively “Ps”)  seeks inter alia revocation of the LA (prayer (1)), grant of letters of administration to independent professionals (prayer (2)), or alternative to (1)  amendment to the LA in respect of the domicile of the Deceased (prayer (3)), and further or alternative to (1)  to (3)  removal of D1 as the administratrix (prayer (4)).

3.  By summons of 25 September 2024 (the “Summons”), Ps seek an injunction to restrain D1 from acting as the administratrix of the Estate and administering or otherwise dealing with the Estate, until final determination of these proceedings or further order, except for the limited purpose of seeking any order for stay of proceedings in (1) HCMP 206/2023, (2)  HCA 73/2022, (3)  HCA 74/2022, (4) HCA 1883/2023, and/or (5)  any other proceedings to which D1 is a party in the capacity of the administratrix of the Estate.  

4.  This is the hearing of the Summons.  Mr Paul Shieh SC leading Ms Natalie So appeared for Ps.  Mr Michael Yin together with Mr Justin Ismail appeared for D1 and the 3^rd defendant (“D3” or “Betty”). The 2^nd defendant (“D2” or “Mary”)  stood neutral and did not appear.

B.  Relevant affirmations

5.  For Ps:

(a)  P1 has filed in support her 2^nd affidavit (“P1/Aff#2”);

(b)  In P1/Aff#2, Teresa gives some details on the background and domicile of the Deceased, the “Incapacity Proceedings” made in July 2018 by D1 to 上海市長寧區人民法院 (the “Shanghai Court”), and divers probate and other proceedings in Hong Kong, Shanghai, California, and Taiwan (“Divers Probate Proceedings” and “Divers Other Proceedings”[2]). She says that there are serious issues to be tried in the present action (that there were “serious and fundamental error(s)  in the LA in that it was stated the Deceased died domiciled in Hong Kong”, that there were “material non-disclosure committed by Tang in her application for LA”, that various positions taken by D1 in various proceedings conflict, and that there “has plainly been a breakdown of relations and increased hostility” between the parties).  She also says that injunctive relief is necessary;

(c)  There is further P1’s 3^rd affidavit in reply (“P1/Aff#3”);

(d)  P2 has filed an affirmation verifying P1/Aff#3.

6.  For D1 and D3:

(a)  D1 has filed an affirmation in opposition (“D1/Aff#2”);

(b)  D1/Aff#2 has 43 pages, with more than 1100 pages of exhibits.  D1 therein gives quite some details on background matters (including the Deceased’s early years in Hong Kong, her relationship with the Deceased, his business in Shanghai, his retirement plans, and his final years), spends some 20 pages (§§72 to 128)  responding to P1’s “allegations” against her, then says that “There are no serious issues to be tried”, “No irreparable damage”, and that “Balance of convenience does not lie in favour of the grant ”;

(c)  In the words of Mr Yin, D3 is not the target of the injunction.  She has nonetheless filed an affirmation expressing her opposition (“D3/Aff ”), as she says it is not in the interest of the Estate to restrain Tang (her mother)  which Ps are seeking to do.

C.  The Deceased, and the parties

7.  The Deceased passed away in Shanghai on 3 June 2019.  His domicile at time of death is one issue which Ps say is a serious one to be tried, which I will come back to.

8.  The Deceased’s first wife was Ha Toi Chun (“Madam Ha”).  They had been divorced.  They had 3 daughters, being P1, P2, and D2.  Though Mary is named as the 2^nd defendant, her stance has been, as mentioned above, neutral.

9.  The Deceased had an unmarried partner.  She was 翁珍妮 (“Madam Yung”). They had one son, namely Bong Jackson (“Jackson”).  Jackson passed away on 13 April 2012.  Jackson was married to Wong Yuet Wah Sanna (“Sanna”). They had 1 son and 1 daughter, who are respectively P3 and P4.  

10.  The Deceased married Tang (i.e. D1)  in 2014.  They remained married at the time of the Deceased’s death.  They had one daughter, being D3.

D.  The Incapacity Proceedings, and Divers Probate and Other Proceedings

11.  I have mentioned above the Incapacity Proceedings, the Divers Probate Proceedings and Divers Other Proceedings.  I set out in this section further details about them.

12.  The Incapacity Proceedings in Shanghai:

(a)  On 6 July 2018, Tang made an application to the Shanghai Court for a declaration that the Deceased had lost mental capacity to manage his civil affairs, and for an Order that she be appointed as his guardian to manage his civil affairs;

(b)  For reasons set out in the Decision of 26 September 2018 (the “Shanghai IP Decision”), the Shanghai Court allowed D1’s application.  According to the Shanghai IP Decision, D1’s case (as recorded therein)  was that the Deceased had been living in Shanghai since 2006;

(c)  As the appointed guardian of the Deceased, D1 took various actions in respect of the Deceased’s assets in Shanghai.  In particular, funds in the total sums of USD10,087,200 and RMB112,754,053[3] had between 2018 and 2019 been withdrawn or transferred, mostly to D1’s accounts, from the Deceased’s bank accounts in the Mainland (the “Withdrawn and Transferred Funds”).

13.  Divers Probate Proceedings have been commenced in a number of different jurisdictions:

(a)  In Hong Kong:

(i)  There was D1’s Application for HK Grant made on 8 August 2019, resulting in the grant of the LA which Ps are now seeking to revoke;

(ii)  The LA states that (a)  the Deceased “died on the 3^rd day of June 2019, domiciled in Hong Kong, intestate”, and that it was granted to D1 of a stated address in Hong Kong at Harbourfront Horizon All-Suite Hotel (the “Horizon Address”);

(iii)  There is further the present action seeking inter alia revocation of the LA;

(b)  In Shanghai:

(i)  On 2 September 2019, P1 and P2 (subsequently joined by Mary, P3 and P4)  commenced an action in the Shanghai Court (the “Shanghai Probate Proceedings”), requesting, inter alia, that D1 be ordered to properly administer the Estate on the basis of intestacy, and to distribute the assets of the estate in Mainland;

(ii)  D1 and D3’s case touched upon a document entitled “Declaration of James Won Ling Bong 2014 Revocable Trust” signed in California by the Deceased on 10 September 2014 (the “2014 Revocable Trust”);

(iii)  Clause 1.3 of the 2014 Revocable Trust provided that D1 and D3 were to be successor co-trustee of the Deceased;

(iv)  Clause 1.12 of the 2014 Revocable Trust further provided as follows:

1.12   INCORPORATION OF LAST WILL AND TESTAMENT

This trust incorporates by reference the Last Will and Testament of Grantor, which provides if a Revocable Living Trust, of which he or she is a Grantor, is in existence at the time of Grantor’s death, all the residue of Grantor’s estate and property, wherever situated, including lapsed legacies and devises, but expressly excluding any property over which Grantor may have a power of appointment, is devised to the then-Trustee under that trust Agreement.  It is intended by the Grantor of this trust that this is the trust into which the Last Will and Testament pours over as provided for in that Will.

(v)  According to the D1 & D3 Defence filed herein, D1 and D3’s case in the Shanghai Probate Proceedings was that “whilst the Deceased did not leave any document called a ‘will’ rather that, he had made the 2014 revocable trust with a will-like provision under the laws of California, USA”[4];

(vi)  The Shanghai Court handed down its decision on 26 January 2021 (“Shanghai PP 1^st Judgment”).  As summarised therein[5], D1 and D3 contended that the 2014 Revocable Trust contained the Deceased’s will, so that the Estate should be inherited by D1 and D3 according to its terms.  The Shanghai Court accepted that argument;

(vii)  The Shanghai Court also dealt with the Withdrawn and Transferred Funds[6]. D1 argued that they were her and the Deceased’s “夫妻共同共有財產”, and that they were spent upon the Deceased’s requests.  The Court found that D1 had failed to prove her case in that regard.  Save a sum of RMB1.2 million, D1 was ordered to return half of the Withdrawn and Transferred Funds to the Estate for distribution;

(viii)  Upon P1’s appeal, the case was remitted for a re-hearing.  The Judgment was handed down on 29 August 2024 (the “Shanghai PP Re-hearing Judgment”).  The Shanghai Court (differently constituted)  upon re-hearing ruled that the 2014 Revocable Trust did not constitute the Deceased’s will.  It further ruled that at the time of death, as the Deceased’s habitual residence at the time of death was Shanghai (死亡時經常居所地為上海[7]), the applicable law was Mainland law.  In respect of the Withdrawn and Transferred Funds, the Shanghai Court reached the same conclusions as it first did[8];

(c)  In California:

(i)  On 26 September 2019, D1 filed a Petition for Letters of Administration. She requested that the “[Deceased’s] will and codicils, if any, be admitted to probate”, and that she be appointed “administrator with will annexed ”.  It was stated that the Deceased died intestate.  Under Attachment 3(f)(1)[9], it was stated that:

The 2014 Revocable Trust incorporates by reference [Deceased’s] Last Will and Testament, as follows:

[Clause 1.12 of the 2014 Revocable Trust was cited]

However, Petitioner has not located a Will for [Deceased].

(ii)  D1 was subsequently on 10 March 2010 appointed as administrator, on the basis that the Deceased died intestate[10];

(iii)  On 13 October 2023, D3 filed a Petition in California (“D3’s Petition”)  requesting the Court to inter alia issue an order construing §1.12 of the 2014 Revocable Trust as the Deceased’s valid pour-over will[11]. D1 says that to avoid any appearance of conflict, she has refrained from joining in D3’s Petition, and will abide by the ruling of the California Court;

(d)  In Taiwan:

(i)  On 31 March 2021, P1 started an action in Taiwan against D1 and D3 requesting, inter alia, that the Estate in Taiwan be distributed on basis of intestacy (the “Taiwan Court”, and the “Taiwan Probate Proceedings”);

(ii)  D1 says that she initially did not maintain that the 2014 Revocable Trust is a valid will under Taiwanese law solely for the purpose and in the hope of establishing an amicable relationship with other family members (including Ps)[12];

(iii)  The Taiwan Court handed down its Judgment on 9 March 2023 (the “Taiwan Judgment”).  Therein the Taiwan Court, having considered Hong Kong law, and having considered the evidence before it, ruled that the Deceased:

在喪失行為能力前有以上海為家之意圖，且上海為關係最密切地，[the Deceased] 之居籍應為上海。

(iv)  D1 and D3 are appealing against the Taiwan Judgment, which appeal has to date not been heard.

14.  Divers Other Proceedings have also been commenced in Hong Kong, they being:

(a)  HCA 73 & 74/2022:

(i)  By these 2 actions, D1 in her capacity as administratrix seeks against P1 inter alia vacant possession of 2 flats registered in the Deceased’s name (the “Metro Town Properties”);

(ii)  D1’s case is that the Deceased had held the properties on trust for her;

(iii)  Trial of the action has been fixed to commence on 28 July 2025;

(b)  HCMP 206/2023:

(i)  The Deceased was during his lifetime major shareholders in 4 Hong Kong companies.  They are Caliger Enterprises Limited (“Caliger”), Central Kingsway Development Limited (“Kingsway”), James Bong Trading Company Limited (“JBTCL”), and Taipei Design & Decoration Engineering Company Limited (“Taipei”, and collectively, the “HCMP 206 Companies”);

(ii)  The shareholders and directors of the HCMP 206 Companies had been:

	Shareholding	Director(s)
Caliger	Deceased - 80% Sanna - 19% Jade - 1%	Mishel, Sanna
Kingsway	Deceased - 90% Mishel - 10%	Teresa, Mishel
JBTCL	Deceased - 67% Sanna - 15% Teresa - 9% Mishel - 9%	Teresa, Mishel
Taipei	Deceased - 67% Sanna - 15% Teresa - 9% Mishel - 9%	Teresa, Mishel

(iii)  Those 4 companies are referred to as the HCMP 206 Companies for a reason.  In HCMP 206/2023, D1, in her capacity as the administratrix of the Estate, applied by originating summons issued on 9 February 2023 for an order pursuant to section 570 of the Companies Ordinance, Cap 622 that each of the HCMP 206 Companies (which were named as defendants)  convene extraordinary general meetings to consider and resolve reconstituting the board of each company by the appointment of three additional directors, namely, Tiffany Wong, Edward Middleton and Gilbert Ho, who are insolvency practitioners at Alvarez & Marsal;

(iv)  Shortly before the hearing of the Originating Summons (22 November 2023 I was told in the course of the hearing), D1 took out a summons to amend the Originating by adding §§3 and 4 to the prayer, which seek in gist an order that she be registered as a member of the HCMP 206 Companies;

(v)  The hearing of the Originating Summons took place before Harris J on 30 November 2023.  By Decision dated 30 May 2024[13] (the “HCMP 206 Decision”), the learned judge dismissed the application, on the grounds that Tang had made the application pre-maturely, in that she had not been registered as a member of the HCMP 206 Companies, so that she lacked locus (§§10, 11 and 20), and that there was no demonstrable impracticability that a meeting be called (§22).  The learned Judge further observed at §24 that:

If I have taken the view that the Plaintiff was entitled to an order that would have permitted her to cause independent professionals to be appointed to the Boards of the Companies I would in the circumstances of the case have required the Plaintiff to agree that she would not cause the existing directors to be removed without their agreement or order of the court.

(vi)  Whilst the learned Judge for the reasons summarised above refused Tang’s application (as prayed for in §§1 and 2 in the Originating Summons), he did not dismiss the Originating Summons as a whole, as there remained the application by Tang to amend;

(vii)  That application to amend was subsequently (after the handing down of the HCMP 206 Decision)  granted by consent.  The substantive hearing of the amended Originating Summons has been fixed to take place on 20 February 2025;

(c)  HCA 1883/2023:

By this action, P2 seeks against D1 and Kingsway a declaration that the Estate holds 9 shares in Kingsway on trust for her.

E.  Parties’ cases in support and opposition of the Summons

15.  Parties’ cases have been developed in submissions principally along the lines as set out in their respective affirmations.

F.  Applicable legal principles

16.  The legal principles application to an application for interlocutory injunction are well established – see the summary at Hong Kong Civil Procedure 2025 at §§29/1/8-29/1/11.  Counsel have no dispute over the same.  Any difference is a matter of emphasis.  I shall not repeat the principles here.

17.  There is also no dispute that whilst Order 76 Rule 4(1)  requires the lodgment of the grant in court after the commencement of an action for revocation, and whilst after lodgment the personal representative will be unable to do any act that requires its production, such lodgment does not automatically or of itself revoke, terminate or suspend the grant.  This has been made clear by G Lam JA in Ng Im Fong Loretta v Charm Investments Ltd[2021] 3 HKLRD 327 at §§30-31.  In fact, were it otherwise, there would not have been any need for Ps to take out the present application.

18.  There is further no dispute that the Court has powers to revoke a grant, or to remove a personal representative.  The relevant statutory provisions are in section 33 of the Probate and Administration Ordinance(Cap.10)(“PAO”),and in particular the following sub-sections:

33.  Revocation of grants and removal of executors

(1)  Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.

…

(3)  The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator)  and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.

19.  Material non-disclosure can be a ground to revoke the grant – see Huang Meixia v Leung Hoi Shan[2021] HKCFI 3727 at §23(1).

20.  I heed Mr Yin’s submissions that revocation of grant and removal of personal representatives are governed by different sub-sections under the PAO, that in respect of the latter, the overriding consideration is the welfare of the beneficiaries[14]. I also remind myself, as explained in the other authorities Mr Yin has cited to this Court, that the revocation of a grant is a contentious and serious matter which will only be done in exceptional and clear cases[15], and that the discretion to remove an administrator is to be exercised with great caution and sparingly[16].   

G.  Whether serious issues to be tried

21.  Ps have put forward a number of issues.  I consider them as appropriate below.

G.1.   The Deceased’s domicile at time of death

22.  The Deceased’s domicile at the time of his death is an important issue.  Any error carries material consequences.  Depending upon whether he died domiciled in Hong Kong or Shanghai, the rules on priority for grant differ (rule 21 of the Non-contentious Probate Rules (Cap.10A)  vs rule 29).  The proper law governing substantive distribution may also differ (Section 4 of the Intestates’ Estates Ordinance (Cap.73)  vs Mainland law).

23.  If any error in relation to the Deceased’s domicile at time of death is made out, the Court’s discretion under section 33(1)  of the PAO will be engaged.

24.  The issue at this stage is whether Ps have establish serious issue to be tried in respect to the Deceased’s domicile at time of death, or more precisely whether the LA contains an error in that regard.

25.  On the law for determining domicile:

(a)  As explained in The Conflict of Laws in Hong Kong (3^rd ed., 2017), §7.003:

Domicile (or domicil)  is, at heart, a simple notion:

“Although many varieties of expression have been used, I believe the idea of domicil may be quite adequately expressed by the phrase – Was the place intended to be the permanent home?”

(b)  In W v C (Divorce: Jurisdiction) [2013] 2 HKLRD 602 at §20, Yuen JA observed as follows:

  A list of factors that may be taken into account in determining an individual’s intention whether to make a home in a particular place was conveniently set out by Judge Bebe Chu in Y v W [2012] 2 HKC 455, as follows:

(i)  Length of residence;

(ii)  Condition of residence: Purchased property?  Leased property?  Furnished lodgings?  Hotels?;

(iii)  Marriage with a local partner;

(iv)  Whereabouts of the family;

(v)  Business interest;

(vi)  Whereabouts of personal belongings;

(vii)  Whereabouts of the person’s property and investments;

(viii)  The fact of naturalisation;

(ix)  Decision made as to the nationality of the children;

(x)  Education of the children;

(xi)  Memberships of clubs or religious associations;

(xii)  Place of work; and

(xiii)  Relation between a man and his family.

26.  Determination of the issue is hence dependent upon the consideration of a basket of factual matters.

27.  I have considered the evidence placed before me.  Significantly, the Deceased was born in Shanghai.  He came to Hong Kong in the 1950s.  Whereas he made “his first pot of gold ” in Hong Kong[17], and had acquired over the years landed properties in Hong Kong, his link with Shanghai had also remained close.  I note he had no household registration in Shanghai, but according to P1[18], given his status as a permanent Hong Kong resident with a Mainland Travel Permit, there was no legal framework under Mainland law for him to apply for Shanghai Household registration.  P1 says that since as early as 2003, the Deceased spent substantial time in Shanghai building up his business.  What P1 says is supported by the Statement of Travel Records in relation to the Deceased[19], which show that during the period between 1 July 2012 and 3 June 2019, the Deceased only spent between 49 to 110 days each year in Hong Kong. The business the Deceased had built up in Shanghai was substantial.  Various businesses had been incorporated there[20]. Very valuable landed properties had also been acquired in Shanghai[21] – see in particular the list of landed properties and their values set out in the Shanghai PP Re-hearing Judgment[22].

28.  According to the Shanghai IP Decision, D1’s own case was that the Deceased had been living in Shanghai since 2006.  According to the Shanghai PP Re-hearing Judgment, the Deceased’s habitual residence at the time of death was Shanghai.  Whilst habitual residence as a concept may be different from domicile, it is at least a very relevant consideration.

29.  D1 has in D1/Aff#2 at §§84 to 85 set outs over some 5 pages various matters which she says show that the Deceased considered Hong Kong to be his home.  Those matters are not irrelevant.  But P1 has herself[23] set out various matters which show otherwise – the Deceased’s requests made from time to family members for them to move to Shanghai to live with him and to take care of him, and what Mishel’s husband had told P1, that the Deceased had after attendance of Jackson’s funeral in April 2012 told him (Mishel’s husband)  that his (the Deceased’s)  heart belonged in Shanghai, that he felt at ease living in Shanghai, and that he would continue to stay in Shanghai to manage his business and enjoy his life there.

30.  In the course of oral submissions, Mr Yin pointed to the D1 & D3 Defence where they plead[24] that when P1 and P2 filed their Caveat, they stated that the Deceased was late of a Hong Kong address, and that in the Reply, Ps admit to §95.2 of the D1 & D3 Defence.  It is not an admission of Hong Kong domicile.  I have in any event taken that into account as one factor. 

31.  At §25 of his written submissions, Mr Yin submits that:

… in light of the paucity and inadequacy of evidence as regards the Deceased’s domicile in Ps’ affirmations weighed against the objective evidence set out comprehensively in [D1/Aff#2], it is submitted that the only option open to this Court is to conclude that Ps have failed to discharge their burden of showing that the question of whether the Deceased was domiciled in Hong Kong at the time of his death is a serious issue to be tried.

32.  I do not agree.  There are significant and objective factors relied upon by Ps which support their case – the acquisition by the Deceased of landed properties in Shanghai and the Statement of Travel Records being just two.  I also accept Mr Shieh’s submissions that given the fact that Shanghai was the Deceased’s place of birth, the business and built and fortune he amassed there, and the time he had actually spent there, it is not inherent improbable that he would want to spent his twilight years in Shanghai as his permanent home.

33.  This is not a mini-trial on affirmation.  This ought not to be.  On the totality of the evidence before me, I am of the view that Ps have established serious issue to be tried that the LA contains an error on the Deceased’s domicile at time of death.

34.  On the evidence, there is no need for me to rely on the Taiwan Judgment.  But I have summarised its relevant parts above.  Given the way in which the domicile issued was considered and analyzed therein, and despite Mr Yin’s submissions that the issue before the Taiwan Court being different, I would if necessary hold that Ps at least have established a serious issue to be tried that issue estoppel arises as a result of the Taiwan Judgment (and as pleaded in §39.1 of the SOC).

F.2.  Material non-disclosure

35.  In the light of my conclusion above, there is in fact no need for me to consider the issue of material non-disclosure.  In deference to submissions, I will only make the following observations.

36.  First off, I record that Mr Yin in the course of his oral submissions took what he described as a pleading point.  He referred to the statutory ground for revocation under section 33(1)  of the PAO.  He referred to Ps’ Indorsement of Claim.  Prayer 1 thereof relates to the relief for revocation. Therein, Ps only pleads one basis in support, namely that the LA contains a fundamental error as to the Deceased’s domicile.  Mr Yin, with reference to Order 18 Rule 15, submitted that material non-disclosure has not been pleaded in the Indorsement, so that Ps cannot rely on it as a ground for revocation.

37.  Material non-disclosure has been specifically pleaded in the SOC.  I accept Mr Shieh’s submissions that if necessary, Mr Yin’s pleading point can be cured by an amendment.

38.  Mr Shieh submits that there has been material non-disclosure of several matters:

(a)  The first one concerns the Deceased’s domicile at time of death:

(i)  Mr Shieh puts forward the Deceased’s domicile primarily as a serious issue to be tried, which I have discussed above.  Mr Shieh submits that the failure on D1’s part to disclose the same during D1’s Application for HK Grant is of itself also material non-disclosure.

(ii)  I have considered the domicile issue above.  I have expressed my view that it is an important issue with material consequences.  It is apparent that D1 did not disclose it when she applied for the Grant;

(iii)  I am hence of the view that Ps have also established serious issue to be tried in relation to D1’s non-disclosure of the issue of domicile, such that the Court was at the time of the Grant deprived of the opportunity and materials to consider the issue;

(b)  D1’s own address:

(i)  There is further the allegation that D1 failed to disclose that she resided outside Hong Kong.  She provided only a temporary address of a hotel room (i.e. the Horizon Address), without disclosing that her permanent or primary address was outside Hong Kong[25];

(ii)  D1’s address might bear on the operation of rule 38(1)  of the Non-contentious Probate Rules.  But looking at the matter holistically, I am of the view that her address was at best of procedural relevance to the Grant; 

(iii)  On the facts of this case, I am of the view that no serious issue to be tried has been established on the basis of D1’s alleged non-disclosure of her permanent or primary address;

(c)  The 2014 Revocable Trust as a “pour-over” will:

(i)  Mr Shieh submits that “Tang has failed to disclose the alleged will at all or to state that (on her case)  the Deceased in fact died testate – even as she has maintained such position in other proceedings outside Hong Kong”[26];

(ii)  Mr Shieh, with reference to inter alia section 24 of the Wills Ordinance (Cap.30), and §3.048 of Probate Practice in Hong Kong (3^rd ed.),submits that a will made subject to foreign law may in fact be proved in Hong Kong;

(iii)  The legal effects of the 2014 Revocable Trust is clearly an important issue.  If valid under California law, the distribution of the Estate will be entirely different;

(iv)  I have set out how that 2014 Revocable Trust featured in the Divers Probate Proceedings, and how D1 and D3 sought or seek to rely on it. Significantly, less than one month after D1’s Application for HK Grant, when she filed her Petition for Letters of Administration in California, she herself made reference to it, and claimed that it “incorporates by reference [Deceased’s] Last Will and Testament ”;

(v)  I cannot at this stage make any conclusive finding as to why D1 decided against disclosing the 2014 Revocable Trust when applying for the LA.  But the result of the non-disclosure was that the Hong Kong Courts were at that stage deprived of the opportunity to look into the material issue as to the Deceased’s testacy.  As things now turn out, D3 has subsequently filed D3’s Petition.  If it becomes successful, the further course of the administration of the Estate would be fundamental altered;

(vi)  On the evidence before me, I am of the view that Ps have also established serious issue to be tried in relation to D1’s non-disclosure of the issue of the Deceased’s possible testacy, such that the Court was at the time of the Grant deprived of the opportunity and materials to consider the issue.  

F.3.  Removal of D1 as the administratrix

39.  Mr Shieh submits that Ps have also established serious issues to be tried for D1’s removal, on the basis of her conduct, and on the basis that the relationship between her and Ps as some of the beneficiaries of the Estate. These are matters independent of Ps’ case for revocation of the LA.

40.  In respect of the conduct of D1, Ps rely on 2 main matters:

(a)  D1’s failure to render an account:

(i)  There is and can be no dispute that D1 as the administratrix has the duty to render a proper account of the Estate – see Chow Chak Kiu v Chow Man Chit (HCMP 797/2016, 17 January 2017)  at §§40-41, and Chang Wing Ka John at §§40-41 in respect of that duty and the manners in which it should be fulfilled;

(ii)  In the course of the hearing, I was taken through the correspondence between the parties’ legal advisers on the issue.  I have also considered them.  There is no need for me to go through them in any details here, as Mr Yin has in effect acknowledged, fairly on his part, that until the recent letter dated 17 January 2025 from D1’s legal advisers, there had been issues in respect of D1’s discharge of her duty in the present regard.  He submitted that the issues have now been rectified, D1’s “intention and sincerity in performing her obligations” demonstrated, and that in any event, the previous shortcomings in the accounts rendered were in fact “technical”;

(iii)  Mr Shieh disputed any suggestion that a proper account has by now been rendered, as given the short time available from the letter of 17 January 2025, Ps have not been able to form any view on the same;

(b)  The declaration of interim distributions:

(i)  Despite the time since D1’s appointment, there has only been one occasion when she suggested any interim distribution;

(ii)  D1’s suggestion on that occasion in my view raises concern as to D1’s partiality and objectivity in her discharge of her duties as the administratrix.  D1 made that suggestion in August 2024.  HK$10,000,000 was declared to be distributed, HK$6 million of which in cash be directly paid from the Estate to herself and D3, but the balance of HK$4 million to Ps and D2 be made only from the dividends previously declared by Caliger to the Deceased which had and have been held in a time deposit account.  The objective effects of that suggestion, as submitted by Mr Shieh which I see force, is that those HK$4 million has effectively been tied up until the question as to who is entitled to receive the Deceased’s share of dividends has been resolved, and thus tied to D1’s ability to be registered as shareholder of Caliger.  It should be noted in particular that that suggestion was made after the HCMP 206 Decision, when D1’s application to be registered as a member of the HCMP 206 Companies was contested and pending;

(iii)  D1 has given no explanation as to why Ps and D2 could not be permitted to receive part of their suggested interim distributions from the HK$6 million suggested to be released to D1 and D3, and for D1 and D3 to have part of their own share from the dividends pending;

(iv)  In the course of submissions, Mr Yin submitted that the suggestion could have been made to “counter” what Ps had done in relation to the declaration of dividends by Caliger to the Deceased (noting that P2 and Sanna (mother of P3 and P4)  are directors of Caliger).  With respect, that is in my view precisely what an impartial administratrix may not do;

(v)  I again cannot make any conclusive finding at this stage as to why D1 made the suggestion in the way as she did.  But on the evidence, the mechanism of the suggested distribution raises serious issue as to her appropriateness and impartiality as an administratrix.

41.  In respect of the relationship between D1 and the Ps and D2 as some of the beneficiaries:

(a)  As re-affirmed by Yuen JA in Re Estate of Tsui Yuen Ying [2023] HKCA 876 at §§17-18, “breakdown of relations between [the trustee and beneficiaries] is such as to lead to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed ”;

(b)  I heed the point Mr Yin stresses, that hostility per se is not a ground for removal, unless the breakdown is such as to lead to the administration coming to a standstill;

(c)  D1 herself acknowledges that the parties’ relationship has been bad.  Her own words are as follows:

… there has certainly been a complete breakdown of relations and increased hostility between us …[27]

and that:

… the Deceased’s children with Madam Ha, particularly Teresa and Mishel, have always resented me.  The Deceased’s death has handed them the chance to ensure that I am completely cut off, despite the fact that I am legally his wife and now widow.  In fact, it was Teresa and Mishel (and others)  who drew first blood by commencing the Shanghai Probate Proceedings and Taiwan Probate Proceedings against Betty and me on 2 September 2019 (merely 3 months after the Deceased passed away)  and 31 March 2021 respectively.[28]

(d)  I note D1’s stance and Mr Yin’s submissions, that the breakdown is not her responsibility or of her making.  I cannot reach any final view on the matter.  But responsibility for the cause is not the main issue.  The issue is the effects of the breakdown;

(e)  Mr Yin submits that the animosity is not such that the interests of the beneficiaries or that due and proper administration requires the removal of D1.  Again, this is not the trial.  This is not even a mini-trial on affirmations.  But with D1’s own acknowledgment that “there has certainly been a complete breakdown of relations”, and on the facts as discussed, one simply cannot at this stage summarily rule out the possibility of a standstill;

(f)  The matters discussed under this head are not to be looked at separately.  Viewed holistically, they demonstrate in my view at least serious issues to be tried for D1’s removal.

F.  Balance of convenience

42.  For the following reasons, I am of the view that balance of convenience clearly favours the grant of the injunction sought:

(a)  Mr Yin submits that Ps have not pointed to any specific acts by D1 which should be restrained by an injunction.  But as Mr Shieh submitted and I accept, the grant of an injunction is not confined to cases where the applicant seeks to restrain specific conduct of a personal representative.  In the present case, what Ps are seeking to demonstrate, with reference to the evidence holistically, is that in the light of the relationship between the parties, the hostility between them, the breakdown of their relationship, and in the light further of the history of the matters and D1’s prior conduct, in terms of the Withdrawn and Transferred Funds, the non-disclosure of various material issues, the failure to render an account, and the use of interim distribution to “counter” Ps’ (and Sanna’s)  previous acts, there is concern unless restrained by an injunction that D1 may continue to allow her judgment to be clouded by self-interest and hostility, and that ill-judged action may continue to be allowed to be made;

(b)  Mr Yin submits further, with reference to Ng Im Fong Loretta, that this is not a case involving an executor of a will, that D1 has been granted the LA, and unless and until revoked, the actions she has carried out in the meantime would and would continue to be valid, and that Ps would not in any case become the sole beneficiaries;

(c)  In fact, that adds to the concern, that ill-judged actions would continue to be effective and binding upon Ps as co-beneficiaries even after any subsequently revocation or removal;

(d)  Mr Shieh points to HCMP 206/2023, and submits that in the absence of any injunction, there is a real risk that D1 could take over the HCMP 206 Companies and make unjustified or irresponsible decisions on their management and operations.  That is in my view a legitimate concern;

(e)  There is further this concern.  D3’s Petition in California is now pending.  D1 has chosen not to join in, and indicated willingness to abide by the ruling of the California Court.  As I have discussed above, if the pour-over will is to be ruled valid, the entire course of the administration of the Estate on the basis of intestacy, which is the basis of the grant of LA to D1, would be fundamentally affected;

(f)  I heed the fact that should the injunction being sought is granted, the number of actions set out above which D1 is suing in her capacity as the administratrix of the Estate will in effect be stayed.  I am aware of that fact.  The contrary is to allow D1 to continue with all those actions, based on her judgment which can be clouded with the matters discussed above, leading to results which may continue to be binding upon Ps despite any subsequent revocation or removal.  In comparison, keeping the status quo is in my view clearly the preferable option;

(g)  However, given the number of other matters which will be put on hold as a result of the injunction which I am going to grant, I make and give the following further order and directions:

(i)  There be a speedy trial of the action;

(ii)  Parties do file and serve their respective lists of documents within 28 days from the date this Decision is handed down, and that there shall be mutual inspection of documents within 7 days thereafter;

(iii)  Parties do file and serve their signed witness statements as to facts within 42 days thereafter, and save where otherwise directed by the trial judge, they shall stand as their makers’ respective evidence-in-chief at trial;

(iv)  Parties do file and serve any application for leave to adduce expert evidence within 14 days thereafter;

(v)  Parties shall set down the case for a speedy trial within 7 days thereafter;

(vi)  The trial shall not commence earlier than one month after setting down and there shall be a pre-trial review before the trial judge (if possible)  not later than 35 days before the commencement of trial;

(vii)  Parties must inform each other and the court forthwith if they or any of them shall become aware of any matter or development that may affect the above estimate or trial or the holding of the speedy trial on the dates fixed; and

(viii)  Time shall rum during the summer vacation.

G.  Overall conclusion and disposition

43.  For the reasons set out above, I grant Ps’ application, and give the order and directions on speedy trial as set out above.

44.  Specifically on the terms of the injunction order to be granted, Mr Shieh has attached to his written submissions a draft order.  The terms of that draft is slightly different from the order sought in the Summons.  A paragraph 1(ii)  has been added to address a concern which D1 and D3 have expressed in respect of payment of management fees, quarterly rates and government rent of a particular property held by the Estate.  I have heard no specific objection from Mr Yin in that regard.

45.  I allow Ps’ application and make an Order in terms of the draft order. 

46.  On the question of costs, I make a costs order nisi, absolute within 14 days, that the costs of the Summons be in the cause (namely the trial of the action herein), which is the costs order sought by Ps in the Summons), with certificate for 2 counsel, to be taxed if not agreed.