HO SUI MAN WINNIE v. ZHU YUN HUA

HCMP 852/2020

[2021] HKCFI 3251

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 852 OF 2020

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J U D G M E N T

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Background

1.  There are factual disputes between the Plaintiff (“Winnie”) and her step-mother, the Defendant (“Hua”), in this case, but none of those disputed facts can substantially affect the essential claims and remedies sought by Winnie in these proceedings.

2.  By the Originating Summons issued in June 2020 (“OS”), Winnie seeks from the Court an order for the sale of the Property defined in the OS under the Partition Ordinance (“Ordinance”), a declaration as to her right to pay her respects towards the late Mr Ho Ka Yee, her deceased father (“Father”), and an injunction to restrain Hua from restricting Winnie from accessing and paying respects to Father at any place where Father’s ashes are located.

3.  At the conclusion of the trial, an injunction in specified and revised terms was granted, without opposition from Hua.  Judgment was reserved on Winnie’s claim for the sale of the Property and on the declaration sought, which judgment I now give.

4.  Winnie is the only daughter of Father and Madam Lee Pin Yee (“Mother”). Hua claims that Winnie was only an adopted daughter, but even if true, that is not at all material to the issues for determination in these proceedings.

5.  The Property was purchased in June 1995 by Mother as the sole owner. The family had resided there since July 1995.  The Property is approximately 433 square feet in size, with 2 bedrooms and one bathroom.

6.  Mother passed away on 19 March 2008.  As she died intestate, Father and Winnie were the only beneficiaries entitled to share in her estate.  Winnie was studying overseas at the time of Mother’s death, and Letters of Administration were granted to Father on 18 February 2009.  The Property was vested in Father and Winnie, in equal shares as joint tenants, as of 10 July 2010 pursuant to an Assent.

7.  Hua became Father’s caretaker in 2010, when Winnie was still studying abroad.  At that time, Hua had come to Hong Kong from the Mainland, and as caretaker, she moved into the Property.  In October 2011, Father married Hua and applied for Hua to join him for residence in Hong Kong.

8.  By a Notice of Severance of Joint Tenancy dated 8 July 2015, the joint tenancy in the Property was severed.

9.  Winnie returned to Hong Kong in 2015, and married in December of that year.  She and her husband moved into the Property and took up residence in the smaller of the 2 bedrooms, with Father and Hua using the larger bedroom.  On the evidence filed in these proceedings, there can be no doubt that the relationship between Winnie and Hua deteriorated after Winnie and her husband moved into the Property.  There were quarrels and skirmishes, in which the police was involved.  There is dispute as to the circumstances of the altercations, and whether Winnie, or Hua, was at fault, but it is indisputable that their relationship was extremely strained and there was much animosity between Hua, and Winnie and her husband.  Such animosity led to Winnie and her husband moving out of the Property in March 2017, as they considered it too difficult and emotionally draining to reside under one roof with Hua.

10.  Matters did not improve after Winnie moved out.  Each time she visited Father, quarrels with Hua ensued and on Winnie’s account, each incident ended with Hua calling the police, and Father being upset.  The family relationship deteriorated to such an extent that even on Father’s death in April 2019, Hua did not inform Winnie of the fact, and Winnie only learned of Father’s demise 4 months later, in August 2019, through neighbours and friends of Mother.  The funeral had already taken place by then, and Winnie’s attempts to ascertain from Hua where Father was buried, or where his ashes were kept, were in vain. She finally found out from Hua that Father’s ashes were kept at a funeral services company (“YKH”), but when she contacted YKH, Winnie was informed that Hua had instructed the staff at YKH that Winnie could not visit YKH to pay respects to Father, nor touch the urn containing the ashes. Correspondence between Winnie’s solicitors and Hua did not resolve matters concerning Winnie’s requests for access to Father’s ashes, and to sell the Property and divide the proceeds between them.  These proceedings were finally instituted in June 2020.

Injunction and Declaration

11.  At the conclusion of the trial, an injunction was granted to restrain Hua from giving instructions to anyone who has custody of Father’s ashes to prevent or obstruct or restrict Winnie or any other person from accessing and paying respects to Father, at any place where Father’s ashes are located.  On the evidence, it cannot be disputed that Hua had instructed YKH not to permit Winnie to have access to Father’s ashes, or to pay her respects to Father, either at all or in sufficient and reasonable proximity to the ashes.  Hua’s reasons for denying access to Winnie, that she was worried that Winnie might somehow damage the ashes or misappropriate them, are all unjustified.  The fact that Hua was the named executor of Father’s new will made in November 2018, and that she may have a right to arrange for his burial or cremation, does not entitle Hua to prevent or exclude Winnie, as Father’s daughter (adopted or not), from paying her respects, love and affection to Father after his death (Smith v Tamworth City Council (1997) 41 NS WLR 680, Re Estate of Lu Han Lung [2010] 3 HKLRD 651).

12.  In relation to the application for a general declaration as to Winnie’s right, to express her affection for Father and/or to pay her respects towards Father at any place where Father’s ashes are located, Counsel for Winnie relies on Smith v Tamworth City Council for the existence of such a right.  Smith contains a useful analysis of the English, New Zealand and US authorities on the nature and scope of the right of burial, and the obligations on the holder of such a right, and the decision was followed in Hong Kong in Re Estate of Lu Han Lung.  Smith itself involves consideration of the rights conferred under the Local Government Act 1919.  Smith and the decisions analyzed by the Court in the judgment concerned rights of burial, competing claims (of executors/administrators, the surviving spouse and the children of the deceased) to such rights, the nature and extent of such rights, and in most cases, the statutory rights and obligations under specific legislation concerning the operation and management of cemeteries.  It was in such context, that the Court in Smith held that the holder of the right of burial cannot use such right in a way to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner.

13.  In Smith, the Court pointed out that the authorities had dealt with the “right” of people to pay respects to the dead in a “vague” way.  In Thompson v Deeds 61 NW 842 (1895), the Court held that the owner of a burial lot (which was the daughter of the deceased in that case), by consenting to the burial at the site she owned, could not prevent the widow from erecting a monument at the burial site, as the consent to the burial involved acknowledging and consenting to the right on the part of the widow to manifest her appreciation of and affection for the deceased in the usual way.  In Strathcona Cemetery Co v Taylor [1924] 3 DLR 625, which is relied upon by Counsel in this case, the Court did not expressly find the “right” or interest of family members, but in granting an injunction to restrict the cemetery authority and workers from doing work at the burial site unless accompanied (inter alia) by a member of the family of the deceased, indirectly acknowledged that such family members had some interest and right to attend the grave of the deceased, without being the proprietors of the right to bury.

14.  I am not suggesting that Winnie has no right to express her appreciation and affection for and to pay respects to Father.  It was in recognition of such right of hers that the injunction was granted against Hua.  However, I am not satisfied that with the grant of the injunction against Hua, it is either necessary or appropriate to make a further declaration in general as to her rights.

15.  The power of the Court to make binding declarations of right is discretionary (see 15/16/2 Hong Kong Civil Procedure 2022 and the cases cited).  As the Court stated in Cheung Man Wai v Director of Social Welfare [2000] 3 HKLRD 205, it is important that the declaration sought should be directed at specific facts, and the court may refuse to grant declaratory relief where the dispute is divorced from the facts.  The courts are not “general advice centers” and there are dangers in the court generally enunciating propositions of principle without full appreciation of the implications that these will have in practice (S v G [2020] HKCFI 2201).  In exercising its discretion, the court will consider whether any useful purpose would be served by granting the declaratory relief.

16.  Any declaration to be made in this case is directed at Hua, and has to be based on the facts, and these are facts relating to Winnie’s rights as against Hua, by reason of Hua’s unreasonable denial of access to Winnie when she tried to visit Father’s ashes at YKH where the ashes were kept, in order to pay respects to Father.  An injunction has been granted to restrain Hua from: (1) giving instructions to anyone who has custody of the ashes to prevent or obstruct Winnie from gaining access to Father’s ashes and paying respects to Father; and (2) obstructing or preventing or restricting Winnie from accessing the ashes and from paying respects to Father at any location where the ashes are kept.  In my judgment, this is adequate to protect Winnie’s rights as asserted by her, and it would not be appropriate to make a declaration in general as to Winnie’s rights, to affect third parties, and without reference or regard to the context in which the rights may be asserted and how they are sought to be exercised by Winnie in any particular case.

17.  The declaration as sought by Winnie in the OS is declined.

Sale of the Property

18.  Finally, in relation to Winnie’s application for sale of the Property under the Ordinance, the authorities are clear.  As co-owner, Winnie has the right “to rid herself of the shackles of co-ownership”, and if there is no other remedy, to ask for an order for partition or sale from the Court (Wong Chun Kei Johnny & Ors v Poon Vai Ching & Ors [2007] 1 HKLRD 825).  When it is impracticable to make an order for partition, the Court should make an order for sale unless it is persuaded, the burden being on the opposing co-owner, that such an order will not be beneficial to all the co-owners, or that it will result in “very great hardship” as one co-owner.

19.  Counsel has referred to the observation made by Barwarney J in Re Inland Lot No 476 (unreported, HCMP 1273/2009, 12 March 2010), that underpinning the principles of co-ownership is “the acceptance that the right of ownership must include the right of disposition”, and that such right takes on more importance particularly when co-owners are uncooperative and unable to utilize opportunities for the letting out of premises at favorable rates.

20.  On the facts and evidence of this case, it is clear that Hua and Winnie cannot live together in peace, under one roof.  The Property is small and sharing same will, on the evidence adduced by both parties, be extremely stressful if at all possible due to the acrimony in their relationship. Winnie’s proposal to sell the Property at market price and for the proceeds to be divided is not acceptable to Hua.  Hua further refused to pay any rent to Winnie for her sole occupation of the Property.

21.  Hua has not referred to any circumstance or facts which would constitute “very great hardship” to her if the Property should be sold.  She claims only that she has attachment to the Property, that Father had allegedly asked her not to sell the Property, and that she would have nowhere to live if the Property should be sold.

22.  I do not accept that the facts relied upon by Hua will result in any great hardship to her.  If the Property is sold, she will receive half of the sale proceeds, with which she can find alternative accommodation in Hong Kong or on the Mainland.

23.  In all the circumstances, I am satisfied that an order for partition is impracticable, and that an order for sale should be made.

24.  An order is accordingly granted in terms of paragraph 1 of the Originating Summons.

Costs

25.  The costs of the action are to be paid by Hua to Winnie.

26.  On 10 May 2021, Winnie filed a summons (“Summons”) for time to file evidence in reply to Hua’s affirmation of 25 November 2020.  Hua’s affirmation was filed in opposition to the OS, but had not been served on Winnie.  At the hearing on 26 July 2021, Winnie withdrew the Summons and costs were reserved.  The order I make is that the costs of the Summons are in the cause.