RE TAN SRI DATUK LAU GEK POH alias LAU GEK POH

HCEA 29/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO 29 OF 2010

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D E C I S I O N

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1. I gave a written Decision (“the written Decision”) in this matter on 20 February 2012 in which I dismissed the application by the applicant, C K Lau, to set aside a Subpoena dated 18 January 2011 and issued pursuant to the Order of Deputy Registrar A. Ho made on 22 September 2010 upon the ex parte application made by the respondent, requiring the applicant to within eight days after service thereof to bring into and leave with the proper officer in the Probate Registry of the High Court the Will of the deceased, one Tan Sri Datuk Lau Gek Poh alias Lau Gek Poh (“the Deceased”) which is in the possession, custody or power of the applicant .

2. Arising from the written Decision there are now two summonses before me, both taken out by the applicant.

3. The first summons dated 22 February 2012 ask for (i) a stay of execution of the Order of 20 February pending appeal of that Order; and (ii) direction to be given whether the Order or Decision falls within O 59 r 21(1)(a) of the Rules of the High Court.

4. That application by the first summons was adjourned by consent to a hearing subsequently fixed by the listing clerk to be heard on 27 July 2012.

5. Before that hearing on 27 July 2012, a second summons was taken out by the applicant asking for direction to be given that a DNA test be carried out to determine whether the Deceased is or is not the natural and biological father of the respondent.

6. The background of this matter is contained in the written Decision herein and therefore this Decision has to be read in conjunction with the written Decision.

Stay of Execution

7. The application for a stay of execution pending appeal is premised on:-

(i)  That there is a strong likelihood that the appeal would succeed; and

(ii)  That without a stay, the appeal would be rendered nugatory.

8. As for there being a strong likelihood that the appeal would succeed,  the applicant relied on three grounds, namely, that firstly, I was wrong to have adopted a prima facie test in finding that the respondent has a sufficient interest or standing to apply for the Subpoena. Secondly, that I ought to have decided whether the respondent had established his right to cause the original will to be brought into the Registry and not merely on the basis that he might well be a natural son of the Deceased.  The third ground relied on was that I had failed to take into consideration the domicile of the Deceased which the applicant argues was in Malaysia such that the respondent would have no right to succession even if there was an intestacy.

9. The first two grounds are interlinked and that is a matter I have already ruled on in the earlier written judgment.

10. As for the point on domicile of the Deceased, this point was never canvassed or argued before me in the substantive hearing.  It would therefore be a matter for the Court of Appeal to decide whether the applicant may be allowed to take this point on appeal.

11. Turning now to deal with whether the appeal would be rendered nugatory without a stay, the argument put forward by the applicant is that once the Will of the Deceased is brought into court and left with the proper officer of the Probate Registry of the High Court, there will always be the possibility of the Will being the subject of a search by any member of the public, therefore, even if the appeal by the applicant is successful, the appeal will be rendered nugatory.

12. It was also submitted by Mr Thomas S C, leading counsel for the applicant, that there is no legal obligation upon an executor named in a will to obtain probate.  In this respect, Mr Thomas submitted that the obtaining of probate is merely to give the necessary authority to the executor to administer the estate.  Where an executor does not require such authority or that there is no need for the executor to have such authority, as for instance when the estate is impecunious, there is no necessity for an executor to obtain probate.

13. The applicant further submitted that there can be no prejudice to the respondent if the Order is stayed and the Will is not lodged with the Probate Registry of the High Court until after the appeal is heard and determined.

14. I am unable to accept the submissions put forward by the applicant.

15. Dealing first with the submission that there is no legal obligation upon an executor to obtain probate, it should be noted that there can be legal sanctions against an executor who fails or delays in obtaining probate.  One such sanction is that the executor may be removed as an executor and replaced by another who may take out letters of administration with the will annexed.

16. Secondly, while it may be correct to say that if an estate is impecunious, then it may be futile for an executor to obtain probate.  However, in such a case, the basis for not obtaining probate is that there is no necessity or it is not worthwhile to administer the estate which is impecunious.

17. That is a far cry from the present case where the Deceased, at the time of his death, owned some 60% of the shares in Lei Shing Hong Ltd, at one time a listed company on the Hong Kong Stock Exchange, but subsequently privitised.  The estimate value of the Deceased’s interest in Lei Shing Hong Ltd alone at the time of his death was some HK$6 billion.

18. Therefore the estate of the Deceased is far from being impecunious.  No other reason or particulars have been furnished as to why the applicant, as the executor named in the Will of the Deceased, would not require probate, which evidences the authority given to him by the Will as executor, to administer the estate of the Deceased.  It therefore defies common sense that the applicant has, since the death of the Deceased, taken no steps to obtain probate of the Will, but has simply hung on to the Will without doing anything to prove the Will or to obtain probate particularly where the estate is of such a magnitude.

19. As for the point taken that without a stay pending appeal, the appeal would be rendered nugatory, if the intending appeal by the applicant is determined by the Court of Appeal in favour of the applicant, it goes without saying that the Will will be returned to the applicant by the court.  In that sense the appeal cannot be rendered nugatory if there is no stay.

20. However, the real thrust of the argument that the appeal will be rendered nugatory is based on the submission that once the Will is lodged with the Probate Registry of the High Court, it would be available for inspection by the general public.

21. Section 73 of the Probate and Administration Ordinance provides as follows:

“All original wills and other documents which are under the control of the court in the [Probate] Registry shall be deposited and preserved in such places as the Chief Justice may direct, and any wills or other documents so deposited shall, subject to the control of the court and the provisions of probate rules and orders, be open to inspection.”

22. It is therefore clear that any inspection of any wills lodged in the Probate Registry is subject to the control of the court.  I am informed by the Probate Master that such control is exercised by the Probate Master from whom leave has to be obtained before any inspection can be carried out.

23. In so far as the respondent is concerned, he has already given an undertaking through his counsel that he will not be seeking to inspect the Will before the appeal is heard and determined.

24. In order to further allay the fears of the applicant that the Will, when lodged in the Probate Registry, may be the subject of inspection by the general public, I am prepared to make a further order that before the appeal herein is heard and determined by the Court of Appeal, no leave may be granted for inspection of the Will.  If such an order is made, there can be no further basis to say that the appeal will be rendered nugatory if there is no stay of the order pending appeal.

25. It may then be said that there is no purpose for the Will to be lodged in the court before the appeal is heard and determined.  I do not think so.  For if the Will is lodged in the court and for any reason, the Court of Appeal, on hearing the appeal by the applicant wishes to have sight of the Will or any part of its contents, then the Will is there in court for the Court of Appeal to refer to.

26. In the circumstances and for the reasons given above, I am not persuaded that there should be a stay pending appeal.  Paragraph 1 of the first summons is therefore dismissed.

Directions for DNA testing

27. By his second summons, the applicant asks for directions to be given for DNA testing of the respondent.

28. In this respect, the applicant has put forward new evidence that Dr David Ho took a blood sample from the Deceased in September 2005 at the request of the Deceased for the purpose of documenting the Deceased’s DNA profile.  Dr Ho sent the sample to a medical laboratory for the purpose of a DNA test on the same day, and in early October 2005, he received the DNA test report which was filed in the Deceased’s medical record until May 2012, and Dr Ho believes that the DNA profile is suitable for matching/comparing with other DNA profile to determine the issue of paternity.

29. Furthermore, Ms Wong Fui Ngo (the personal assistant of the Deceased) and Ms Hui Man Sheung (a close relative of the Deceased) have deposed that they heard the Deceased confirm his intention to Dr Ho to take his blood sample for a DNA test.

30. It is therefore submitted by the applicant that there is therefore already a DNA profile of the Deceased and no issue as to whether a sample can be taken from the Deceased arises.  It only remains for the respondent to agree to giving a sample of his blood for DNA testing and the results from the matching/comparing the profiles would prove paternity with certainty or near certainty.

31. In making this application, the applicant relies on Section 13(1) of the Parent and Child Ordinance Cap 429 which provides:

“In any civil proceedings in which the parentage of any person falls to be determined, the court may, either of its own motion or on an application by any party to the proceedings, give a direction-

(a) for the use of scientific tests showing whether a party to the proceedings is or is not the father or mother of that person; and

(b)  for the taking of bodily samples from that person or any party to the proceedings.”

32. The applicant further relies on the case of Yeung Chung Ping v Yeung Wan Yuet Kuen [1987] 1 HKC 206 in which it was held by Roberts C J that it is the general practice of the Court to order a blood test in circumstances where the paternity of a child is in issue.

33. I was also referred by leading counsel for the applicant to the decision in Zhao Ying v Chow Lai Ching & Ors [2010]3 HKLRD 497 where Bharwaney J stated the principles relating to the court’s jurisdiction under Section 13 of the Parent and Child Ordinance as follows:

(1)  The legislative intent in limiting the Court’s power to give directions for scientific tests to be conducted and bodily samples to be taken from persons is that such power is only to be exercised against persons who are parties to the proceedings and who can enjoy the rights and privileges of being a party to the proceedings;

(2)  Before the Court can invoke the power under section 13, the deceased alleged to be the parent of the child who parentage is in question must be made a party to the proceedings.  The requirement is satisfied if the estate of the deceased person is a party to the proceedings;

(3)  It may be the case that the Court can only give a direction for the taking of bodily samples from a living person;

(4)  The interests of justice are best served by the ascertainment of truth, and the Court should be furnished with the best available scientific evidence, particularly if that evidence proves or disproves paternity with certainty or near certainty;

(5)  Prospective non-compliance by a person is to be taken into account, but is not determinative of the issue of whether a direction should be made;

(6)  In general, DNA testing is in the child’s best interests where doubts as to paternity are in the public domain.

34. From all the authorities cited by the applicant and the legal principles involved, it may well be that the DNA testing will prove with certainty the paternity of the respondent, one way or the other, in this matter.

35. However, that evidence sought by the applicant, is new evidence to be put before the Court of Appeal in this intended appeal by the applicant.

36. Whether the Court of Appeal will see fit to allow the applicant to adduce such new evidence on appeal is a matter for the Court of Appeal.

37. It is not for me at this stage to usurp the function and power of the Court of Appeal by giving the directions sought before the Court of Appeal has decided the issue as to whether that Court is prepared to accept such new evidence on appeal.

38. In the circumstances I decline to accede to the application of the applicant in the second summons, but that such an application ought to be made to the Court of Appeal when the appeal is heard.  Accordingly, the second summons is dismissed.

Incidental matters

39. In the first summons, the applicant also asked for direction to be given by the Court as to whether the written Decision falls within O 59, r 21(1)(a). In short, the applicant wishes to seek direction as to whether an appeal against the written Decision is an interlocutory appeal for which leave is required or whether it is final appeal for which the appeal is as of right and leave is not required.

40. O 59, r 21(1)(a) states as follows:

“21—(1) Judgments and orders to which section 14AA(1) of the Ordinance (leave to appeal required for interlocutory appeals) does not apply and accordingly an appeal lies as of right from them are the following—

(a)  a judgment or order determining in a summary way the substantive rights of a party to an action;”

41. Sub-paragraph (2) of O 59 give a list of what are judgments and orders determining in a summary way the substantive rights of a party, but expressly states it to be “without affecting the generality of paragraph (1)(a).”  None of the judgments and orders listed in sub‑paragaraph (2) applies to the present case.

42. Sub-paragraph (3) of the same order expressly provides that a direction as to whether a judgment or order is one that is referred to in paragraph (1)(a) may be sought from the judge who made the judgment or order.  It is under this sub-paragraph that this application is made.

43. In my view, the written Decision and the order arising therefrom does not “determine in a summary way the substantive rights of a party to an action”.

44. Firstly, there is in the present case no “action”. There is merely a Subpoena issued by the Registrar of the High Court (upon the ex parte application by the respondent) directed to the applicant.  That subpoena was issued by the Registrar pursuant to section 7(3) of the Probate and Administration Ordinance Cap 10 which provides:

“(3) The Registrar may, whether or not any proceedings are pending in the court, issue a subpoena requiring any person to produce and bring into the Registry any paper or writing being or purporting to be testamentary….”

45. The words “whether or not any proceedings are pending in the court” clearly shows that the subpoena may be issued where there are no proceedings in court.  Indeed in the present case, there is no proceedings afoot in the court.

46. Moreover, the subpoena, while it required the applicant to bring the Will into the Registry, that does not determine in a summary way the substantive rights of the parties.  It is merely an initial step in what may turn out into a Probate action as defined in Order 76 of the RHC.  But until that stage is reached, the subpoena cannot and does not determine the substantive rights of any party.

47. Accordingly, for the reasons given above, any appeal from the written Decision must be an interlocutory appeal for which leave is required.

48. The second incidental matter concerns paragraph 3 of the Order made by consent of the parties and dated 27 February 2012 which reads:

“The time during which the applicant is required, under the Rules of the High Court, to seek leave to appeal against the Decision of the Honourable Mr. Justice Suffiad to the Court of Appeal (if any), alternatively to file a Notice of Appeal to the Court of Appeal in relation to any appeal sought to be made by the Applicant be extended (if necessary) and not begin to run until the first day after the said hearing (or until further order).”

49. There appears to be a dispute between the parties as to when the extended time for appealing begins to run.

50. There can be no doubt in my mind that the words “until the first day after the hearing (or until further order)” can only make sense if it refers to the first day after the hearing and determination of the summons.

51. Accordingly, the applicant will have 7 days from this Decision being handed down to seek leave to appeal.

Order

52. There will be an order that the applicant do within 8 days from this Decision being handed down bring into and leave with the proper officer in the Probate Registry of the High Court, the Will of the Deceased, Tan Sri Datuk Lau Gek Poh alias Lau Gek Poh, which is in the possession, custody or power of the applicant and that no leave may be granted for inspection of the Will before the appeal is heard and determined by the Court of Appeal.

Costs

53. In view of the fact that both the substantive applications made by the applicant by the first summons and second summons has been dismissed, there will be a costs order nisi that the applicant pays the costs of the respondent forthwith to be taxed if not agreed.