WANG DIN SHIN v. NINA KUNG

CACV 275/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 275 OF 2004

(ON APPEAL FROM HCAP NO. 8 OF 1999)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1. On 20 August 2005 Chu J adjourned, until after the determination of a probate action and any appeals therefrom, an application by the defendant for the removal of the joint administrators pendente lite.  On 12 January 2005 this Court dismissed an appeal from that decision.  Reasons for that dismissal were handed down on 21 January 2005.

2. There is now before this Court a motion presented pursuant to the provisions of section 22(1)(b) of the Hong Court of Final Appeal Ordinance, Cap. 484, that the defendant be granted leave to appeal to the Court of Final Appeal from the judgment of this Court dated 12 January.  It is said that leave should be granted because there are questions involved in the appeal which by reason of their great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for determination.  The questions are framed as follows:

(1)	whether an application to remove the incumbent administrators pendente lite of the estate of the applicant’s husband by reason of their misconduct and their being unfit to remain in office should have been heard and dealt with upon its merits rather than on the basis of an assumption that a determination of those issues will be of “little utility” when that assumption depends upon certain other assumptions to the effect that the Court of First Instance would make orders staying certain litigation commenced by the administrators or that the Court of Final Appeal will determine the underlying probate proceedings within any particular time;
(2)	whether an application under sections 33 and 40 of the Probate and Administration Ordinance (Cap. 10) and the inherent jurisdiction of the Court to remove administrators pendente lite of an estate can be brought by an applicant only in his or her capacity as a beneficiary or potential beneficiary of the estate;
(3)	whether a potential beneficiary of an estate, having applied to remove the incumbent administrators pendente lite of that estate under sections 33 and 40 of the Probate and Administration Ordinance and the inherent jurisdiction of the Court, is entitled to, in support of the application, advance arguments and adduce evidence as to the effect of the misconduct of those administrators on his or her other interests, namely, his or her interests as a co-shareholder or a co-partner in companies or other entities in which the estate is interested;
(4)	whether, in its administration of public justice, the Court should stay an application to remove Court-appointed administrators pendente lite of an estate (where such application is supported by detailed affirmation evidence showing at least a prima facie case that the interests of the estate and the applicant are being harmed by the conduct of the said administrators whose integrity, competence and propriety form the subject of serious complaints) based upon the one and only reason or assumption that the application is unlikely to be resolved before the determination of the underlying probate proceedings, since this effectively amounts to a summary dismissal of the application and a permanent denial of the applicant’s fundamental right to have access to Court and access to justice (as protected by Article 10 of the Hong Kong Bill of Rights Ordinance and Articles 35 and 39 of the Basic Law and Article 14 of the International Covenant on Civil and Political Rights) and in having the application considered and determined substantively on its merits without undue delay;
(5)	whether, in view of the nature of an application to remove administrators pendente lite of an estate, which calls into question the propriety of the conduct of officers of the Court, the gravity of the complaints made against such officers and the adverse impact of their acts on the interests of the estate and of the applicant, the Court ought, as a matter of principle and in its administration of open and public justice, to allow the application to proceed irrespective of the likely date of expiry of the office of the officers concerned; and
(6)	whether a Court-appointed officer or a person holding similar public office should, during the course of that appointment, refrain from answering or addressing or responding to complaints and serious charges of misconduct (for acts and/or omissions committed during his or her period in office) simply by reason of the possibility that the office may expire in due course before a determination of the said complaints or charges.

3. The history of this particular part of the litigation between the plaintiff and the defendant has been rehearsed in our reasons for judgment, and there is nothing served by repeating that history.

4. The questions put forward as lending themselves to determination by the Court of Final Appeal as matters of great general or public importance seem to us to be an exercise in “bashing on” regardless of what we said in our reasons for judgment.  We could hardly have been more clear that at root was a practical problem based on fact, namely, that there was no prospect whatsoever of a determination of the removal application before the Court of Final Appeal delivers itself of a decision in the probate action.  That being so, the general principles raised by this motion are not in truth involved in our decision.  What is involved is a question of practical common sense arising from circumstances wholly peculiar to this case.

5. It is said that in any event the question of the capacity in which an application under sections 33 and 40 of the Probate and Administration Ordinance may be brought to remove administrators is of wide application and that the first instance decision in this regard should be ventilated at the highest level.  In this regard we would say, first, that this Court did not pronounce upon that question and it seems to us yet another exercise in waste of costs and judicial resources – a wastage that has long been a notorious hallmark of this litigation – to have further costs incurred in the determination of an issue that is likely to be of no practical avail whatsoever to the parties in this litigation.

6. Secondly, in response to the point made this morning by Mr Poon SC, on behalf of the defendant, that having dismissed the appeal, we would preclude Mrs Wang from appealing the capacity point at all were we not to grant leave to the Court of Final Appeal today, the answer is that there was no order made at first instance in relation to the capacity point.  The judge specifically made no order.  She said so.  There was a summons seeking an order but she made none. 

7. Of particular note is the fact that on 8 March 2005, Kwan J ordered that a number of pieces of litigation that have been instituted by the joint administrators be stayed pending the final determination of the probate action appeal which is to be heard in July this year.  This fact makes the pursuit of this motion all the more astonishing, although, we have to say, not in the least surprising.  In the course of the hearing before this Court in January, “Mr Carr pointed out that Madam Wang’s proclaimed objective of stopping the dismemberment of the Chinachem group by the administrators would be achieved were her applications for stay of the pending litigation to succeed.  That being so, there was for the moment, he said, no practical point in pursuing the removal application.”: see our judgment 21 January 2005, paragraph 16.  It was for this reason that the course then proposed by the present applicant for leave was to adjourn the adjournment appeal.  At the stage of that appeal, an interim stay was already in place and it was known that the stay question would shortly be determined.  Well, the application for the stay has succeeded; yet here we still are reading three sets of skeleton arguments and faced by an array of counsel, and their instructing solicitors.  It is one thing to file a notice of motion before the determination of that stay application, a motion with little regard to the practical issue that is at the core of the decision from which leave to appeal is sought; but another to pursue the motion once the prime objective of the removal application has effectively been resolved in favour of the defendant.  It seems to us clear enough that the strictures already sounded by the Court of Final Appeal on the waste in this case is only of avail as a shield by whichever party to this litigation is not at a given moment the one doing the wasting.

8. The application for leave is dismissed.

9. The joint administrators and the plaintiff seek their costs of this application on an indemnity basis.  The judgment we have delivered makes clear enough why such an order is appropriate.  There will be paid forthwith by the defendant to the plaintiff and to the joint administrators their costs of this application, on an indemnity basis, to be taxed if not agreed.