MARY TUNG v. CHENG KAM WAH AND OTHERS

HCMP 1676/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1676 OF 2009

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BETWEEN

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D E C I S I O N

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1.  On 25 February 2011, I dismissed the Originating Summons without prejudice to the Plaintiff to commence a fresh action by writ for the revocation of the grant in respect of the estate of Cheng Yung, deceased. I shall now set out my reasons for adopting such a course. I shall also deal with the question of costs in this Decision.

2.  The Originating Summons was issued on 31 August 2009. It was brought as an administration action under Order 85 of the Rules of the High Court and the 1^st Defendant was sued as the executor of the estate of Cheng Yung, deceased. Probate was granted in favour of the 1^st Defendant on 4 February 2005 in HCAG 009748 of 2002 on the basis that the will of Cheng Yung of 1 October 1985 was the last effective testamentary paper governing the disposal of his estate.

3.  The Order 85 claim was advanced by the Plaintiff as the administratrix of the estate of Cheng On, deceased. She said she was the widow of Cheng On, having undergone a “traditional form of marriage” with him in 1962 in the United Kingdom and then registered their marriage in 1980. Cheng On was the son of Cheng Yung. In her second affidavit, she said she had actually married Cheng On on 18 December 1945 at the Guangzhou Marriage Registry.

4.  There is a dispute between the parties as to the status of the Plaintiff as the lawful wife of Cheng On. For the purpose of this Decision, I do not need to go into the details. Suffice to say that there is a dispute as to whether Cheng On had validly married to another lady called Wan Ng Kiu before he left his home in Uk Tau Village in the New Territories and went to the United Kingdom. The date when the Plaintiff was married to Cheng On was in dispute. There is also a dispute as to whether the 1^st Defendant was the natural son of Cheng On and Wan Ng Kiu.

5.  The 2^nd to 4^th Defendants are the children of the Plaintiff and Cheng On.

6.  Cheng On died (in 1992) earlier than Cheng Yung (who died in 1993).  In his 1985 will, Cheng Yung gave his estate to Cheng On and the 1^st Defendant. The Plaintiff said the bequest in favour of Cheng On did not lapse despite he predeceased Cheng Yung.

7.  In addition to the claim under Order 85, the Plaintiff also sought relief under the Inheritance (Provision for Family and Dependants) Ordinance Cap.481 or alternatively under the Deceased’s Family Maintenance Ordinance Cap.129 [“the Dependency Claim”]. From the documents filed on her behalf, it was not clear whether she was claiming maintenance from the estate of Cheng On or from the estate of Cheng Yung.

8.  It has taken a long time for the parties to complete the filing of their evidence. The last round of evidence was completed by the Plaintiff with the filing of the 1^st affidavit of Cheng Chan Yun Lin on 3 December 2010. Thus, the first hearing of the Originating Summons took place on 7 January 2011. At that hearing, counsel for the Plaintiff informed the court that the Plaintiff disputed the validity of the 1985 Will of Cheng Yung.

9.  That led to a discussion as to whether the Plaintiff should seek a revocation of the grant. In order to give counsel more time to look into the point, the court gave directions to facilitate the matter to be properly brought before the court including directions for making application for leave to amend the originating summons.

10.  On 14 January 2011, the Plaintiff took out an application for leave to amend the originating summons. Paragraph 1A of the proposed amendment seeks an order that Grant No. HCAG 009748 of 2002 in favour of the 1^st Defendant be revoked on the grounds that,

(a)   The estate of Cheng Yung includes New Territories land and is or at least in so far as the same being New Territories land, is governed by Chinese customary law; and/or

(b)   The 1^st Defendant is not the natural son of Cheng On, and therefore not entitled to a grant of the probate, or in any way dealing with the estate of Cheng Yung.

11.  The reference to the Inheritance (Provision for Family and Dependants) Ordinance Cap.481 or alternatively under the Deceased’s Family Maintenance Ordinance Cap.129 was deleted in the proposed amendments. It was confirmed by counsel at the hearing of 25 February 2011 that the Plaintiff is no longer pursuing the Dependency Claim.

12.  Counsel for the Plaintiff also accepted that with such proposed amendments, the action has changed its character. It is no longer an administration action under Order 85. Rather it is a probate action governed by Order 76.

13.  In the evidence filed so far, there are substantial dispute of facts. Further, as suggested by counsel, expert evidence on Chinese customary law needs to be called. Originating summons procedure is not suitable for the determination of such disputes. Pleadings have to be filed and cross-examination of witnesses at the trial is essential.

14.  Mr Mak urged this court to convert this action into a writ action under Order 28 Rule 8. Counsel asked the court to take into account of the costs and time that would be wasted if the Plaintiff were required to start afresh.

15.  Bearing in mind the underlying objectives in Order 1A, I agree that this is a relevant factor. However, as I said in the course of hearing, there is no reason why costs incurred in the preparation of the relevant evidence (insofar as they are relevant to the revocation claim) would be wasted. I see no reason why the evidence filed so far cannot be used as witness statements in the new action. With the consent of the parties, I could direct that the parties were at liberty to do so (and I did give such direction on 25 February after I dismissed the originating summons).  As regards the time factor, given that the Plaintiff has to revamp her entire case with the filing of the necessary pleadings, I do not think there would be much difference between starting a new probate action afresh and converting the present administration action into a probate action.

16.  Further, Mr Mak was unable to inform the court whether the Plaintiff intended to seek a grant in her favour regarding the estate of Cheng Yung. Mr Mak however indicates that the 2^nd to 4^th Defendants would not be joined as parties to the probate action though he could not tell whether any one of them might wish to seek a grant in respect of the estate of Cheng Yung. It seems to me there are still uncertainties as to who should be parties to the probate action and further thoughts need to be given as to who should claim for grant in the event of the Plaintiff succeeding in her claim for revocation.

17.  The character and nature of this action has been completely changed. It is no longer an administration action and the Dependency Claim is abandoned. Further instructions needed to be taken by the Plaintiff and there are still loose ends which have to be sorted out before the Plaintiff can put in place a properly formulated probate action. At the moment, legal aid is only given to the Plaintiff for pursuing an administration action and solicitor for the Plaintiff has not yet sought legal aid for her in respect of the intended probate action.

18.  Order 76 Rule 2 requires a writ in a probate action to be indorsed with a statement of the nature of the interest of the plaintiff and of the defendant in the estate. Further, Practice Direction 20.2 requires the writ to be produced to the Probate Master for endorsement before issue. The purpose of these procedural requirements is to ensure proper consideration should be given to the locus and interest of the parties before the commencement of a probate action and the notification of the Probate Registry as to the action. The latter is important because a grant operates in rem and the commencement of a probate action would prevent the Registry from issuing any grant in the meantime. Further, in the context of revocation, the Registry would have to endorse the same on the relevant probate files to avoid further reliance being placed on the revoked grant. I do not see any reason why the Plaintiff should be absolved from these requirements.

19.  On the whole, I conclude it is more appropriate for the revocation claim to be litigated in a new probate action to be commenced by writ instead of granting leave to amend and giving directions under Order 28 rule 8. Since the Plaintiff is no longer pursuing the original administration action and the Dependency Claim, the originating summons should be dismissed.

20.  On the question of costs, Mr Mak asked the court to reserve it for 2 months pending the commencement of the new probate action by the Plaintiff with a view to make an order that the costs in these proceedings to follow the event in the new action.

21.  On behalf of the 1^st Defendant, Mr Lam submitted that irrespective of what happen in the future his client should have the costs of the Dependency Claim and the costs of the two hearings before this court (viz. 7 January and 25 February).

22.  Whilst the procedural objection has not been in the forefront of the submissions of Mr Lam, he did raise the point that the matter should be litigated by writ. Though I agree that the works in relation to the preparation of the evidence relevant to the revocation claim can still be used in the context of the new action, I do not think the Plaintiff has any ground to resist costs in respect of the Dependency Claim and the costs of the two hearings. It behoves the Plaintiff to make sure that her house is in order before commencing the proceedings. What happened at the two hearings has assisted in the understanding as to the nature of the Plaintiff’s claim. But there is no reason why the 1^st Defendant should pay for the exercise. If the Plaintiff has followed the correct procedure by issuing a writ and set out the nature of her case clearly in the pleadings, these costs could have been avoided.

23.  Therefore I order the Plaintiff to pay for the costs of the 1^st Defendant in respect of the two hearings before this court. In addition, the Plaintiff also has to pay the costs of the 1^st Defendant regarding the Dependency Claim. As for the other costs in these proceedings, I would reserve the same for 2 months.  If there is no agreement between the parties on such costs by 25 April 2011, the 1^st Defendant can apply by letter for the same.