TO LAI HAN v. TO LAI CHONG

HCCA002640/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO. HCCA002640 OF 2006

----------------------

----------------------

----------------------

----------------------

D E C I S I O N

----------------------

The Dispute

1. It is a dispute among siblings as to who should be the administrator for the estate of their father.

Background

2. Mr. To Chuen, deceased (the “Father”) died intestate in Hong Kong on 11 January 2006 at the age of 80 years.  According to the estate duty papers, he left an estate of about $6.5 m, including a property of Flat B1, 6/F, 14 Healthy Street East, Hong Kong (the “Property”).

3. The Father died leaving his wife (“the Mother”) and 7 children of them, all grown up.  The Mother is mentally incapacitated.  The children are:

(a)   To Lai Han, the Caveator (“Lai Han”),

(b) To Wai Ki (“Wai Ki”),

(c)  To Lai Chong, the Person Warning (“Lai Chong”),

(d) To Lai Yin (“Lai Yin”),

(e)  To Chun Hung (“Chun Hung”),

(f)   To Lai Pik (“Lai Pik”), and

(g)  To Lai Kwan (“Lai Kwan”).

4. In September 2006, Lai Chong submitted an application for grant in respect of the Father’s estate under HCAG011410/2006.  Process of the application was stopped because Lai Han filed a Caveat in November 2006.  Parties then formally disputed the matter before the Court.

5. By summons filed on 20 December 2006, Lai Han argued that she should be the administrator and Lai Chong was of “badness of character” and was “unfit” for the same.

6. Lai Chong disagreed and suggested Lai Han to be “not a sensible and sound person”.  Lai Yin, Chun Hung, Lai Pik, Lai Kwan and Wai Ki’s wife filed affidavit evidence to support Lai Chong.

7. Lai Han disputed with them and located a family friend Mr. Doo to help her.

8. In light of the disputes among the affidavit evidence, on 9 May 2007, I directed that:

“ 1.  The hearing of the Caveator’s Summons filed herein on the 20^th day of December 2006 be adjourned to a date to be fixed for argument in consultation with counsel’s diaries with 4 days reserved;

   2.  all deponents shall attend the adjourned hearings for the purpose of being cross-examined; and

   3.  ……”

9. Later, in June 2007, Lai Han applied to amend her summons (“the Amended Summons”) by asking this Court to exercise his discretion under section 36 Probate and Administration Ordinance (Cap. 10) (“PAO”) to appoint an independent solicitor to be the administrator.  She no longer asked herself to take up the job although maintaining that Lai Chong was still not fit.

10. I heard the substantive arguments on a number of dates.  On the 1^st day when the matter came before me, parties came close to a settlement.  Regrettably, it was fallen through.  The hearings then overran and had to be adjourned part heard on two occasions.  Mrs. Dora Chan of Counsel acted for Lai Han and Mr. Jenkin Suen of Counsel represented Lai Chong.

Interlocutory matters

11. The hearings ran up to 8 days with 2 intermittent breaks, and during which, parties raised a number of interlocutory matters.  I sum up them in the followings.

(a)   At different stages, both parties asked to adduce further evidence, including supplemental affidavit and new documents.  I took the view that, unless the other side would consent to the same, no new evidence should be admitted.  Ample time was given to both parties to prepare their cases by filing and serving affidavit evidence.  This Court had to maintain proper case management, especially in light of the overrun.

(b)   During the 1^st break of the hearings, Lai Han applied to issue subpoena to call a police officer.  I declined it and agreed to given reasons later.  Here are them.  First, it amounts to new evidence.  Second, no one knows what the officer is going to depose.  Third, it was said that the officer could help discrediting Lai Chong.  However, parties knew for long time that deponents were to be cross-examined.  They should have well equipped themselves with all evidence to contradict the other side.

(c)   During cross-examination of Lai Chong and her “witnesses”, I stopped Mrs. Chan at appropriate junctions if I found her going beyond the scope.  Mrs. Chan argued that she was obliged to put her client’s whole case to the deponents.  I maintained the view that it was not necessary.  When a deponent is required to be cross-examined, his affidavit evidence will set out the “scope”. It cannot be the “whole” case of his opponent.  If that deponent has not dealt with any matters raised by his opponent, there is no room for cross-examination because such evidence is not contradicted at all.

(d)   Mr. Suen decided not to cross-examine Lai Han’s “witness”, Mr. Doo.  Counsel further decided not to rely on the affirmations of Lai Yin, Chun Hung and Wai Ki’s wife.  Mrs. Chan was unhappy with the latter decision.  In my view, there is nothing one can do about it because it lies in each of the party’s hand as to how he would like to conduct his case.  If Lai Chong decided to rely on herself, Lai Kwan and Lai Pik only, Mrs. Chan could only cross-examine them but not other siblings or relatives because their evidence was not before the Court at all.

Ruling

12. I now move to my decision.  Upon consideration of all the evidence authorities and submission before me, I have decided to appoint Mr. Ng Kin Yuen of solicitor to be the administrator of the Father’s estate.  My reasons appear in below.

Section 36 PAO

13. The jurisdiction of section 36 PAO has been invoked.  It gives this Court a wide discretion to appoint administrator, having regard to the circumstances of each case.

“36.  Appointment of administrator of intestate’s estate

Where a person dies wholly inteste as to his estate or leaving a will affecting estate but without having appointed an executor thereof willing and competent to take probate, or where the executor is, at the time of the death of such person, resident out of Hong Kong, or where it appears to the court to be necessary or convenient [emphasis added] to appoint some person to be the administrator of the estate of the deceased person or of any part of such estate, other than the person who, if this Ordinance had not been passed, would by law have been entitled to a grant of administration of such estate, the court may, subject to section 25, appoint such person as the court thinks fit [emphasis added] to be such administrator, on his giving such security, if any, as may be required under this Part or as the court may direct, and every such administration may be limited in such manner as the court thinks fit.”

Lai Chong: bad character?

14. Lai Han is no longer asking herself to be appointed.  She opted for a professional.  She maintained that Lai Chong was not fit for the job.  Quite a number of allegations were made against Lai Chong and she was heavily cross-examined by Mrs. Chan for 4 days.

15. To cut short the long story, on balance, I do not accept that Lai Chong bears the bad character as alleged, including theft, greed, intention to harm Lai Han and desire of “evicting” the Mother from the Property.

16. Having said that, however, in my opinion, it is not appropriate for her to act as administrator in the circumstances.

(a)   Lai Chong has instructed solicitor to apply for the grant in HCAG011410/2006.  She will continue to do so if I will appoint her in principle.  Hence, solicitor’s costs and involvement are unavoidable.

(b)   Administration, i.e. collecting and distributing (emphasis added) in the present case is difficult.  It is not a simple distribution of monies according to the law.  Mother is a mentally incapacitated person (“MIP”).  She is the largest beneficiary under the Father’s estate.  All siblings and family members wanted to treat her well.  However, they have different approaches and difficulties of their own.  Professional assistance is needed to see what possibly could be done, or further litigation among siblings will be repeated.

(c)   Lai Chong relied on photos taken by her siblings to demonstrate the unsatisfactory living condition of the Property.  Although I would not go so far, as Mrs. Chan suggested, to the extent that they were all set up, it does appear to me that, on balance, some unused dishes were put into the sink for the purpose of taking photos.  It does cast some worry in the matter.

The Mother’s interest: a factor to be consider

17. During the hearings, I raised concern over the Mother’s daily living in light of the heated disputes of her children before the Court.  Although agreeing that the present proceedings do not allow me to decide who should take care of the Mother, where she should reside and how her share in the Father’s estate should be managed, I do take the view that the Mother’s interest, especially when she is a MIP, should be considered by me in choosing an administrator who will, in administering the Father’s estate, directly and/or indirectly affect the Mother.

Other siblings?

18. Mr. Suen told me that all other siblings should be cleared off before I could come to choose an independent solicitor who was a stranger to the Father’s estate.  I agree with Mr. Suen to the extent that it should be a factor for me to consider.  However, as in Lai Chong’s case, I find that her siblings should not administer the Father’s estate in the circumstances.

(a)   Paragraphs 16(a) and (b) above apply to all other siblings.

(b)   They are all grown up. They have their own families and jobs to take care. In observing the ways they have been trying to take care the Mother, I do have some worry if they will have sufficient time and knowledge to perform the administration.

(c)   Chun Hung, at one stage, appeared to me to be a possible option as I was informed that he enjoyed a “better” relationship with Lai Han and Lai Chong.  However, on second thought, in light of the condition of the Mother and the disputes among the siblings, I believe that it is better for Chun Hung to keep himself out of the trouble.  In future administration of the Father’s estate by the independent solicitor, including discussing directly and/or indirectly the affairs of the Mother, it still requires co-operation from all siblings.  I hope that Chun Hung could then assist in communicating and achieving compromise among all siblings.

Choice of the independent solicitor

19. Lai Han proposed 3 independent solicitors who were willing to take up the job.  They were all very reputable solicitors within the profession.  Mrs. Chan told me in her final submission that Mr. Ng Kin Yuen was willing to take up the job on a special rate at $3,000 per hour with a ceiling of 5% on the total value of the Father’s estate.  Though it will cost something, I am sure the money is worth spending.  This Court will safely entrust Mr. Ng with the job.

Administration

20. Regarding the administration of the Father’s estate, subject to Mr. Ng’s opinion and further development in the matter, the followings may be noted.

(a)   The entitlement of the Father’s estate by the Mother and the 7 children shall be verified by reference to the relevant marriage certificate and birth certificates as well as all other evidence to be submitted.  Requisitions may be raised by the Probate Registry and to be answered by Mr. Ng with assistance from all the children.

(b)   The ED papers are prima facie evidence of the size of the Father’s estate.  There are a number of queries raised in this respect.  The children may wish provide assistance to Mr. Ng to follow up, but it should be precise and concise or that it will overburden him and incur unnecessary costs.

(c)   Subject to (b), the estates should be distributed as per Intestates’ Estates Ordinance (Cap 73).

(d)   During distribution, difficult questions may arise.  The Mother is a MIP and she enjoys the largest share in Father’s estate.  She is not in a position to give her views or to protect her interest.  Should the Property be conveyed to her?  Should she stay there when she has got used to such an environment for tens of years?  Should she move to an elderly home where she could receive professional and medical care? Maybe, one has to trigger the Court’s power under Mental Health Ordinance, Cap. 136.

Conclusion

21. In the end, I order that:

(a)   The Caveat herein dated 25 November 2006 shall cease to have any effect.

(b)   Application for grant HCAG 011410/2006 shall be withdrawn.

(c)   Subject to the filing of all requisite papers to lead to a grant of representation to the estate of To Chuen, deceased, and the compliance with the requirement of the Registrar of the Probate Registry, Mr. Ng Kin Yuen is to be appointed by this Court as an independent administrator under section 36 of the Probate and Administration Ordinance (Cap. 10) to administer the estate of the said deceased.

(d)   Costs of Mr. Ng Kin Yuen shall be charged at $3,000 per hour, subject to the ceiling of 5% of the estate of the said deceased.

Costs

22. I do not have the benefit from both Counsel on the question of costs.  However, I have accepted Lai Han’s proposition, not relying on her ground advanced, but the particular circumstances of this case.  I therefore make an order nisi that each party shall bear her own costs.

23. I have nothing further to add except to express my thankfulness to both Counsel for their assistance.  I also sincerely hope that all children and family members will have a better thought over the matter from the perspectives of the Father as well as the Mother.