CHOW LILY v. CHOW WAI WAI VIOLET AND OTHERS

HCAP 22/2019

[2020] HKCFI 1792

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 22 OF 2019

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DECISION

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1.  The plaintiff commenced the present action to challenge the validity of what is said to be the last will of her father, Chow Yei Ching, deceased (“the Deceased”) dated 2015. This is her application for the appointment of administrators pendente lite (“APL(s)”).

Background

2.  The Deceased passed away in Hong Kong on 29 July 2018 at the age of 82.  He was survived by the following immediate family members:

(1)  lawful wife and widow, the 3^rd defendant (“the Mother”);

(2)  eldest daughter, the plaintiff (“Lily”), born in 1962;

(3)  second daughter, Chow Wai Lee (“Wai Lee”), born in 1963;

(4)  third daughter, Chow Lina (“Lina”), born in 1966;

(5)  fourth daughter, Chow Lisa (“Lisa”), twin sister of Lina;

(6)  fifth daughter, the 1^st defendant (“Violet”), born in 1967;

(7)  sixth daughter, the 2^nd defendant (“Vi Vi”), born in 1973; and

(8)  seventh son, Chow Vee Tsung Oscar (“Oscar”), born in 1974.

3.  The Deceased founded the Chevalier Group in Hong Kong in 1970, which has a wide range of businesses employing a total of 10,000 employees in various parts of the world.  The shares of Chevalier International Holdings Limited (“Chevalier”) are listed in the Hong Kong Stock Exchange (“HKSE”), and over 62% of those shares were owned beneficially by the Deceased and now his estate (“the Chevalier Shares”).

4.  Some of the children of the Deceased were, and still are, involved in the business of Chevalier.  Lily joined Chevalier in 1989, and has been an executive director of Chevalier since 2011.  Violet has been the personal assistant of the Deceased in Chevalier since 1997 until his passing.  Vi Vi, a qualified solicitor, joined Chevalier in 2015, first in corporate governance and then legal, company secretarial and communications. Oscar joined Chevalier in 2000, and has since 2015 been a non-executive director.  The other serving executive directors are not related to the Deceased’s family, but have all been working for Chevalier for either a decade or two.  As to the other children of the Deceased, Wai Lee is an architect by profession.  Lina is in the human resources field.  Lisa is in the top management of a renowned international auction house.

5.  October 2015 was an eventful time for the Deceased.  First, Chevalier celebrated its 45^th anniversary[1]. Later in the same month, the Deceased made various inter vivos gifts of money and properties to the children.  About a week later, a will of the Deceased, prepared by Foo & Li, solicitors (“F&L”), was executed by the Deceased on 29 October 2015 (“the 2015 Will”).  Chronologically, this is also his last testamentary script and what Lily challenges in the present action.

6.  Unfortunately, on 8 January 2016, the Deceased suffered a stroke and became bedridden.  He passed away on 29 July 2018.

The 2015 Will

7.  The content of the 2015 Will was revealed to the Chow family in a will reading session held on 30 August 2018 at the residence of the Deceased and the Mother at Jardine’s Lookout.  Ms Cheuk Chiu Wah (“Cheuk”) of F&L, who was responsible for preparing the 2015 Will, conducted the session.  All the members of the family were present, save that Lina participated on the telephone.

8.  The 2015 Will essentially contains the following provisions:

(1)  The Mother, Violet and Vi Vi are named the executrixes and trustees, and in case of their premature death or renunciation, the other daughters shall substitute (Clause 2).

(2)  The Chevalier Shares are devised and bequeathed to Violet absolutely (Clause 3).

(3)  If Violet shall die in his lifetime or after his death but before attaining a vested interest, then the Chevalier Shares shall devolve and be distributed to Vi Vi absolutely (Clause 4).

(4)  If Violet and Vi Vi shall both die in his lifetime or after his death but before attaining a vested interest, then the Chevalier Shares shall devolve and be distributed to Lina absolutely (Clause 5).

(5)  The residuary estate shall be divided into 100 equal parts or shares for the absolute benefit of the Mother (30 equal parts or shares); Lily (10 equal parts or shares); Wai Lee (10 equal parts or shares); Lina (10 equal parts or shares); Lisa (10 equal parts or shares); Violet (20 equal parts or shares); and Vi Vi (10 equal parts or shares) (Clause 8).

(6)  If the Mother and Lily shall die in his lifetime or after his death but before attaining any vested interest, then their shares in the residuary estate shall devolve and be distributed among his grandchildren in equal shares absolutely (Clauses 9 and 11).

(7)  If any of his children being the beneficiaries, namely, Wai Lee, Lina, Lisa, Violet and Vi Vi, shall die in his lifetime or after his death but before attaining any vested interest leaving issue living at his death, then such issue shall take by substitution (Clause 12).

9.  Lily and Wai Lee expressed discontent about the terms of the 2015 Will, particularly about the specific bequest of the Chevalier Shares.  Eventually, on the same day, Violet gave her undertaking in respect of her entitlements under the 2015 Will.  This was reduced into writing by Cheuk and signed by the members of the family present^[2] (“the Violet Undertaking”).  It is in the following terms:

“I, CHOW WAI WAI VIOLET…hereby undertake to transfer all [the Chevalier Shares] that I am entitled under my father’s will dated 29^th October 2015 to a family trust to be set up for the benefit of Chow’s family (include my mother Miyakawa Michiko, my elder sisters CHOW Lily, CHOW Wai Lee, CHOW Lina, CHOW Lisa, me and my younger sister CHOW Vi Vi and my younger brother CHOW, Vee Tsung Oscar).

I, also, hereby undertake to transfer half (1/2) of my entitlements under clause 8(f) of my father’s will dated 29^th October 2015 to my younger brother CHOW, Vee Tsung Oscar.”

10.  In line with the Violet Undertaking, Chevalier issued a public announcement on 4 September 2018 stating that:

“…the Company has been informed by the executors of the estate of the late Dr Chow Yei Ching that the 189,490,248 shares (“the ‘YCC Shares’) in which the late Dr Chow Yei Ching was beneficially interested (representing approximately 62.76% of the issued shares of the Company) will be transferred to a family trust for the benefit of the immediate Chow family members and charitable organization(s) to be identified following the procedures and process necessary for the grant of probate and the formation of the said family trust…”

11.  Violet also filed 2 separate disclosure notices to the HKSE in her capacity as the executor/administrator and as the beneficial owner of the Chevalier Shares respectively^[3].

12.  In the following months, steps were taken by Violet and Vi Vi to apply for probate.  Notwithstanding the Violet Undertaking, Lily filed a Caveat in respect of the application for probate in Hong Kong on 19 November 2018.  Application was also made for probate in respect of the Deceased’s assets in Thailand.  In March 2019, the Thai Court appointed Vi Vi as the executor of the Deceased’s personal assets in Thailand, which Lily and Wai Lee now also complain about.

Previous testamentary scripts

13.  Apart from the 2015 Will, there are what are said to be the original will of the Deceased dated 26 February 1987 (“the 1987 Will”) and the original will of the Deceased dated 2 June 1989 (“the 1989 Will”).  There is also what is said to be an unsigned copy of the will of the Deceased dated 27 April 2009 (“the 2009 Will”).  The possible existence of the 2009 Will was actually revealed by Vi Vi and Violet.  Upon investigation, the understanding obtained from the solicitors responsible for the 2009 Will is that the Deceased has taken away the original with him and hence only an unsigned copy has been kept.  As of today, it is uncertain whether the original of the 2009 Will still exists or, if it does, where it is.

14.  Nevertheless, merely by reference to their terms, the 1989 Will served to revoke the 1987 Will while the 2009 Will, if this existed, should serve to revoke the 1989 Will.  The fact is that neither side of the present litigation contends that the 1987 Will or the 1989 Will constituted the last will and testament of the Deceased.  The stance of Lily is that upon the 2015 Will being struck down, the 2009 Will should govern or alternatively, the Deceased should be declared to have died intestate.

The 2009 Will

15.  The 2009 Will, according to the available copy mentioned above, contained the following essential terms:

(1)  Lily, Violet and the Mother are appointed as the executrix and trustees.

(2)  The estate is divided into “restricted assets” and “residuary estate”.  The restricted assets comprise the Deceased’s beneficial interest in 4 companies, including that the Deceased held in Chevalier in his personal name and through two other corporate vehicles.  The residuary estate comprises all the other assets.

(3)  The beneficiaries consist of the Mother and the children as well as their descendants and their spouses born or married before the “vesting day” (but excluding illegitimate descendants and their spouses, and spouses of legitimate descendants divorced before that day).  The vesting day is defined as the last year of the 80^th year of the Deceased’s death.

(4)  The trustees shall apply the residuary estate and the income (but not the capital) of the restricted assets for the maintenance, education and advancement use and benefit of the beneficiaries until the vesting day.

(5)  The estate shall be distributed to all the beneficiaries living on the vesting day, or none is surviving, to such beneficiaries as the trustees shall determine in their absolute discretion.

Lily’s contentions in the present action

16.  Essentially, Lily challenges the mental capacity of the Deceased in making the 2015 Will. Alternatively, the Deceased is said to have no knowledge or approval of the terms of the will.  Reference is made to his condition prior to and at the relevant time of the making of that will.  Much is also said about Violet and Vi Vi.  The former is said to have had no career of her own, if she had not been engaged by the Deceased as his personal assistant.  The latter is the former law school fellow student of Cheuk, and the two were instrumental to the preparation of the will.  In terms of pleading, there is no allegation that the Deceased has been subject to duress or undue influence exerted by any of these persons involved at any time prior to the preparation and execution of the 2015 Will.

17.  Lily also disputes that the Deceased would make such a will which, she contends, was contrary to his genuine intention.  Reference is made to the alleged intention of the Deceased to set up a family trust instead of an absolute bequest of his interest in the Chevalier Shares to a particular child.  She contends that the family, including Violet, acknowledged that the 2015 Will does not manifest such intention of the Deceased, or else there would not have been the Violet Undertaking.

The defendants’ contentions in the present action

18.  According to the defendants, the Deceased in fact always trusted Violet.  Hence his having engaged and then kept her as his personal assistant for nearly two decades until his passing.  As his personal assistant, Violet was entrusted with handling his personal affairs and managing the finance of his and the family household.

19.  In 2015, the Deceased asked Vi Vi to assist him to prepare his last will.  Hence the instruction to Cheuk of F&L.  The contemporaneous email correspondence between Vi Vi and Cheuk in this respect as well as the draft wills are disclosed.  There is also what is said to be the handwritten note of the Deceased dated 26 October 2015 setting out his testamentary intention and instruction.  The Deceased formally executed the will in the presence of Cheuk and a trainee solicitor at the office of F&L on 29 October 2015.  The handwritten note was also confirmed on the same occasion.  At all material times, the Deceased was mentally fit both at home and at work^[4]. He suffered the stroke only afterwards in 2016.

20.  During the will reading session after the Deceased’s passing, witnessing the expression of discontent by Lily and Wai Lee about the terms of the 2015 Will, Violet volunteered what became the terms of the Violet Undertaking entirely out of her wish to diffuse hostility and to maintain peace within the family.  Accordingly worded and signed by the Mother and the children^[5], that was Violet’s undertaking to re-distribute and transfer what she would be entitled to under the 2015 Will.  The public announcements in respect of the Chevalier Shares were then issued in line with the Violet Undertaking.  It is therefore untrue that the family acknowledged that the 2015 Will contradicts the true intention of the Deceased.  On the contrary, it is Lily and Wai Lee who now renege on their acceptance of the Violet Undertaking, and seek to overturn the very basis of the undertaking by commencing the present action to challenge the validity of the 2015 Will.

Relief sought in the present action

21.  In May 2019, the plaintiff commenced this action, naming Violet, Vi Vi and the Mother as the defendants.  As amended in July 2019, her claim is for the following relief:

(1)  Declaration that the 2015 Will is invalid as it was executed by the deceased without knowledge and approval of its contents and/or without the requisite testamentary capacity, and/or executed without the requisite animus testandi;

(2)  Order that the copy of the 2009 Will be admitted to probate;

(3)  Order that Violet be debarred from acting as executrix of the 2009 Will;

(4)  Alternative to (2) and (3) above:

(a)  Declaration that the Deceased died intestate;

(b)  Order that Lily or alternatively she and the Mother (and/or such other administrators as may be appointed) be authorized to apply for and be granted Letters of Administration of the estate of the Deceased;

(5)  Costs;

(6)  Further or other relief.

The present application

22.  By summons filed on 15 July 2019, Lily applies for an order to appoint Mr Lai Kay Yan Derek and Mr Ho Kwok Leung Glen, both of Deloitte Touche Tohmatsu, as the joint and several APLs of the estate of the Deceased, in the following terms (“the APL Application”):

(1)  the appointment of APLs;

(2)  the APLs do forthwith apply for a grant of Letters of Administration Pendente Lite to investigate and identify the property and liability of the Estate;

(3)  the APLs be authorized, pending the grant, to make such enquiries and carry out such Land Registry, Companies Registry or similar searches as they shall deem reasonably necessary to investigate and identify the property in the Estate, and any other property which is held on trust by any person(s) for the benefit of the Deceased or the Estate;

(4)  the APLs be authorized and empowered:

(a)  subject to the grant, to take such steps for the purpose of getting in and preserving the Estate^[6];

(b)  subject to the grant and with leave of the court and upon notice to the parties, to take proceedings in the name of the Deceased or the Estate or in their own name for the purpose of getting in and preserving the Estate;

(c)  to retain independent legal and other professional advisers inside and outside Hong Kong to assist them in the fulfilment of their duties and to retain the services of Deloitte for such purpose;

(d)  subject to the grant, to have and exercise all the powers of a general administrator pursuant to section 40 of the Probate and Administration Ordinance, Cap 10 (“the PAO”);

(e)  to register themselves as shareholders in respect of shares in companies registered in the name of the Deceased and to exercise all the powers of shareholders including the appointment of such members of directors as the APLs shall deem reasonable in place of or in addition to the existing directors of such companies.

(5)  The APLs be required to report to the court with copies to the parties within 6 months of the appointment on the progress and conduct of the administration of the Estate and thereafter prepare a report every 6 months subject to further request from the court.

(6)  The APLs and the parties be at liberty to apply to the court for directions in respect of the conduct of the administration.

(7)  The APLs be indemnified out of the assets of the Estate in respect of the reasonable remuneration and disbursement, costs, charges and expenses (including the reasonable costs of Deloitte and any legal advisors retained by the APLs) incurred in administering the Estate, subject to the PAO and the Rules of the High Court (“RHC”)^[7].

(8)  Security as the court deems fit be provided by the APLs within 6 weeks or such other time as the court orders.

(9)  Costs of the application be paid out of the Estate.

23.  Lily pushed for an urgent hearing of the APL Application during the court vacation.  According to the certificate of urgency filed then, that was to enable the casting of votes attached to the Chevalier Shares by the estate of the Deceased at the annual general meeting of Chevalier scheduled to take place on 28 August 2019.

24.  Eventually, the parties managed to come to terms as to the ad hoc appointment of APLs^[8] for the sole purpose of causing the votes attached to the Chevalier Shares to be cast in favour of all the resolutions set out in the relevant notice of general meeting scheduled on 28 August 2019, and the term of such ad hoc appointment would terminate upon the conclusion of the meeting.  An order by consent to such effect was made by Hon Wilson Chan J on 9 August 2019, when His Lordship also adjourned the APL Application for substantive argument with directions in respect of affidavit evidence.

25.  Affidavit evidence was closed on 15 October 2019.  Wai Lee supports the APL Application, whereas the other siblings side with the defendants in opposition.

26.  On 24 October 2019, the defendants took out a summons seeking leave to file further affirmations to address issues said to be raised for the first time by the affirmations in reply filed on behalf of Lily (“Defendants’ Summons”).  Following that, Lily also took out her summons for leave to file yet another affirmation on 29 October 2019 (“Lily’s Summons”), ie, on the day before the present hearing.  These recent affirmations were adduced on a de bene esse basis.

The principles re the appointment of APL

27.  Section 40 of the PAO provides that:

“(1) Where any legal proceedings touching the validity of the will of a deceased person, or for obtaining, recalling, or revoking any grant pending, the court may… appoint an administrator of the estate of the deceased.

(2) An administrator so appointed shall have the rights and powers of a general administrator, other than the right of distributing the residue of the estate.

(3) Every such administrator shall be subject to the immediate control of the court and act under its direction.”

28.  O76, r14(2) of the RHC also provides that where an order under section 40 of the PAO is made, several provisions under O30 shall apply as if the APL were a receiver appointed by the court.

29.  The principles governing the court’s exercise of the discretion to appoint an APL were summarised by Recorder Lisa Wong SC (as she then was) in Mak Ngun Tai & Ors v Fung Ming Ip & Ors HCAP 37/2015 (14 October 2016) at §36^[9]:

(1)  The court does not automatically appoint an APL whenever there is a pending probate dispute.

(2)  The court only appoints an APL when it is necessary or expedient to do so.

(3)  Necessity or expediency has to be assessed with reference to the actual circumstances of the case, which obviously vary from case to case so that the situations in which the court would appoint an APL cannot be stated exhaustively.

(4)  Relevant considerations would include the condition of the estate, the nature of the assets comprised in the estate, whether there is a likelihood of dissipation or jeopardy of assets and whether there is a need to collect the “fruits of the estate”.

(5)  An appointment would be necessary or expedient if, for example, it is required to protect the estate by collecting, managing or safeguarding the assets or to enable legal action to be taken against third parties pending the resolution of the probate dispute.

30.  The burden is on the applicant to establish the need for doing something to protect and preserve the estate and, for that purpose, APL should be appointed: see Lai Wai Pang v Kwok Li Shuk Han HCAP 13/2000 (16 May 2003) at §9 per A Cheung J (as he then was).

31.  Mere assertions (if disputed) are of little or no weight, and a party’s suspicion is not sufficient to found the court’s exercise of discretion: see Chinachem Charitable Foundation Limited v Chan Chun Chuen & Ors HCAP 8/2007 (10 December 2007); Lai Wai Pang v Kwok Shuk Han HCAP 13/2000 (above) at §9.

The assets of the Deceased’s estate

32.  The bulk of the estate of the Deceased comprises the Chevalier Shares, which the Deceased held in his personal name and through two corporate vehicles.  If the 2015 Will is propounded, this bulk of the estate would go to Violet absolutely pursuant to the specific bequest of the Deceased.

33.  Of the residuary estate of the Deceased, Lily would be a beneficiary.  This would be the case whether pursuant to the 2015 Will or the 2009 Will or intestacy.  As to this part of the estate, Lily raises for the purpose of the APL Application questions in respect of the chattels, cash and investments allegedly forming part of the estate.

34.  It is the burden of Lily to establish to the satisfaction of this court that it is necessary or expedient to appoint the APLs, considering, amongst other circumstances of the case, the nature, size and condition of these assets comprising the estate of the Deceased.

The Chevalier Shares

35.  Lily seeks the appointment of the APLs with the specific power to register themselves as the shareholders of the Chevalier Shares and to exercise all the powers as shareholders, including the power to appoint such number of directors as the APLs shall deem reasonable either in place of or in addition to the existing directors of Chevalier.  Such relief is sought in the known context that Chevalier is a listed company.

36.  In principle, the court will not lightly make an interim order to disturb the composition of the board of directors in a listed company, when factual dispute is yet to be resolved: see 張才奎所託管中國山水投資有限公司股份相關員工 & Anor v 張才奎 & Anor HCA 1661, 1766, 2191/2014 and 623, 939, 1564/2014 (23 July 2015) at §§28-30; H v H [2011] 1 HKLRD 1048, at 1061-1062.  Nor would the court consider it appropriate to do so as a matter of final order, unless it is absolutely essential to do so in the circumstances: see Re Chime Corp Ltd [2003] 2 HKLRD 905 at §§25-26.

37.  Even in the case of a receiver of a company, the receiver is not there to effect change of management but to “hold the ring” until the dispute between the parties that would affect the company has been resolved.  A receiver is not a “company doctor”, but rather a “company caretaker”, and his function is not so much to restore profitability, but rather to preserve those assets of the company upon which its fortunes may be dependent, and to preserve its potentiality for earning profits in the future.  Contrasting that, an APL is a stakeholder with limited role.  See張才奎 (above) at §§15-25; see Henderson v Executor Trustee Australia Ltd [2005] SASC 477 at §§122-123.

38.  In the present case, the composition of the board of Chevalier cannot be altered without the majority vote attached to the Chevalier Shares belonging to the Estate.  Such vote cannot be cast, in the absence of the grant of probate in respect of those shares, which is being contested.  This is the status quo: see Henderson (above) at §§64-65.  Whilst Lily suggests that the situation may leave the control of the company into the hands of the minority, there is no evidence of actual risk in terms of alteration of the board if the interim majority control of the board and the company is not seized of by appointing the APLs to take control of the Chevalier Shares.

39.  Lily contemplates that the court’s directions regarding the composition of the board may be sought only in special circumstances.  She also contemplates that such power of the APLs to affect the composition of the board would only be exercised with the express sanction or direction of the court.  In other words, even Lily does not contemplate that the appointment of the APLs should lead to a radical change of Chevalier’s top management unless the circumstances warrant and with the sanction of the court.

40.  However, Lily proposes that the appointment ought to be made to ensure that the board of directors of Chevalier performs their function properly.  Yet the fact is that the board of directors of Chevalier is clearly a very experienced one.  As mentioned, the members of the board came with over a decade’s working experience at Chevalier.  The current Chairman and Managing Director, Kuok, has been much trusted by the Deceased throughout the years.  There is no suggestion or evidence that the board is not, or in the foreseeable future will not be, functioning properly.  Notwithstanding her skepticism about Kuok now, mainly due to what she considers to be his siding with the defendants, Lily does not dispute that the members of the board are capable, and it would be in the interest of the business and shareholders to maintain stability by retaining them.  Kuok endorses that approach.

41.  Insofar as control and management of the company through the Chevalier Shares is concerned, I am not convinced that the appointment of the APLs with the proposed power in this respect is justified in terms of necessity.

42.  It is argued on behalf of Lily that it is nevertheless expedient to appoint the APLs, which would save the parties from having to go through what an ad hoc appointment of APL in respect of the Chevalier Shares would entail as it happened on the last occasion, and hence legal costs as well.  However, it appears to me that the last ad hoc appointment itself was not the problem.  Nor was how the votes attached to the Chevalier Shares should be cast by the ad hoc APLs.  What apparently got the parties into argument was what it took to enable the ad hoc APLs to cast the vote last time.

43.  The background of the argument in this respect started with the application for grant pending suit for the limited purpose of the ad hoc appointment, which was issued only 2 days before the annual general meeting.  Despite Lily’s criticism of her opponents, the contemporaneous documents suggest nothing short of genuine effort made by the APL nominated by her opponents within the limited time to enable the votes attached to the shares to be cast at the meeting.  That indeed did not fully succeed so that a certain number of shares were not voted in the annual general meeting^[10]. However, notwithstanding the dispute in this respect^[11], the fact was that the votes were cast with the proposed resolutions at the annual general meeting passed by overwhelming majority votes.  The purpose of the ad hoc APLs was substantially served.

44.  The above highlights the real problem, which is essentially the lack of trust when it comes to joint action.  If this simply persists, the APLs, even if appointed, would not be expected to act in respect of the Chevalier Shares without regard to the difference between the two camps in this action.    On the basis that the APLs, if appointed, must act in the interest of the estate, and hence all the potential beneficiaries^[12], any difference between the two camps regarding the exercise of the voting rights attached to the Chevalier Shares would more likely than not entail the need for sanction of the court.  In other words, appointment of APLs per se will not be the expedient solution.

45.  In any event, the need for the appointment of APL to seize control of the Chevalier Shares and to exercise the right of the majority vote in the general meeting, in my view, is being exaggerated.  In reality, only 2 special general meetings have been called during the last 5 to 6 years.  As to annual general meetings, both before and after the Deceased suffered the stroke, the businesses transacted and resolutions proposed were essentially similar to those which were passed in the last one, such as re-appointment of retiring directors, declaration of dividends and approval of audited financial statements.  Such resolutions have always been passed by the shareholders with overwhelming majority votes.  Those included the votes attached to the shares held by the corporate vehicles caused to be cast in the general meetings after the Deceased has suffered the stroke and before he passed away.  As an executive director, Lily was aware of that but she has made no complaint about alleged manipulation of voting until after the commencement of this action.

46.  Consideration of the history in this respect reinforces the feasibility of leaving it to the parties to come to terms as to how the voting rights attached to the Chevalier Shares should be cast in general meetings pending the determination of this action.  The siblings in the defendants’ camp found the idea of a committee of the parties to be agreeable.  As mentioned, the problem projected by Lily with reference to the last annual general meeting does not lie with how the votes should be cast either.  In the event of difference between the two camps, resort to the direction of the court, as mentioned, will be inevitable whether or not APLs have been appointed.

47.  Pursuant to the Violet Undertaking, the Chevalier Shares are supposed to be transferred into a family trust.  Violet is criticized for backing out of her undertaking.  However, the evidence shows that after the Violet Undertaking has been signed, the parties respectively caused draft deeds of family arrangement to be prepared.  Violet also caused a deed of trust to be prepared.  Blame put aside, the fact is that the two camps are yet to be able to agree on the terms of the drafts.  The arrangement proceeded no further because of the commencement of the present action.

48.  By commencing the present action, Lily (and Wai Lee who sides with her) challenges the validity of the 2015 Will and thus the very basis of the Violet Undertaking.  Notwithstanding that, Violet has shown no intention of backing out of the undertaking at least pending the determination of the present action.  Whether or not she would change her mind about this, Violet is not in a position to dispose of the Chevalier Shares, in the absence of grant of probate in her favour.  There is no suggestion or evidence of any attempt on her part to do so.

49.  Regarding shares in Chevalier, Lily also raises question about what she describes as hidden shares which, she argues, are at risk of dissipation.  As disclosed to the HKSE after the Violet Undertaking, 0.04% of shares in Chevalier are held by Violet under her own name, and 4.78% by her company Winful Investments Limited.  In respect of these shares in Chevalier, Violet now offers the following undertakings to the court to maintain the status quo:

(1)  She will not sell or procure the sale or otherwise dispose of any of these shares and will not to seek to change the current composition of the board of Chevalier pending the determination of the present action or further order of the Court.

(2)  She will not exercise the voting rights attached to these shares without the consent of Lily or direction of the court.

(3)  If no appointment of APL is made, these shares will also be transferred into the trust for the equal benefit of all the siblings.

50.  In view of the lack of evidence suggesting the risk and ease of disposal of any of these shares behind the scene, these undertakings appear to suffice instead of the appointment of APL for the purpose of preservation of these shares.

51.  To conclude, insofar as the Chevalier Shares and the so-called hidden shares under the name or control of Violet are concerned, Lily fails to substantiate by concrete evidence the alleged risk of dissipation of any part of them that would have cried out for collection or preservation.  The undertakings of Violet in this respect, which are to the court, suffice at this stage for the purpose of holding the ring pending the resolution of the dispute between the parties.  Insofar as the control and management of Chevalier through the holding of these shares are concerned, the concern about the interest of the company, and its impact on the interest on the potential beneficiaries of these shares, is even less in justifying the appointment of the APL.

The chattels

52.  Lily and Wai Lee expressed surprise that the schedule of properties filed by the defendants on 30 October 2018 appears to suggest that the Deceased has no chattels in his estate.  They complain that it failed to account for, amongst other things, the chattels in the estate of the Deceased^[13], which they reckon are worth in excess of HK$30 million.

53.  Substantial part of the chattels referred to is contained in the two residences of the family at Jardine’s Lookout and at Shek O as well as a warehouse in Fanling.  There are also few items in the Deceased’s office at Chevalier.  According to Lily and Wai Lee, these chattels include items of home and office furniture, home decoration, tableware, artworks, precious stones, jewellery and down to personal items such as the Deceased’s cufflinks.  They are invariably described by Lily and Wai Lee as acquisitions by the Deceased as his investments.

54.  The Mother refuted the suggestion by Lily and Wai Lee.  Their quality and value aside, these items, according to the Mother, were never perceived by the Deceased as his investments at the time of their acquisitions.  To begin with, it was not the personality or interest of the Deceased to invest in chattels like these.  Nor was there pattern in such purchases, many of those were done by him and the Mother together, and many were purchased for the purpose of decorating the family residence when it was erected as well as for household use.  She doubts if some of the artworks are even authentic.

55.  Among the chattels, Wai Lee alleges that some jewellery items were deposited with Sotherby’s (where Lisa works as mentioned) connoting their investment nature. However, Lisa, as she should be in such position to do so, made clear that this is in fact not the case.  The jewellery items, except for the few kept at the family residence, are kept in the safe deposit boxe jointly held by Lisa, Lily and the Mother as well as that jointly held by the Mother and Wai Lee.

56.  Violet and Vi Vi admit that these chattels were not included in the schedule of properties.  According to them, the children actually discussed and came to consensus that these chattels purchased by the Deceased and the Mother should remain with the Mother in commemoration of the love and marriage of the couple.  Hence the conscious decision to leave them out of the schedule.  Be that strictly right or wrong, the fact was that the schedule of properties was compiled in the open.  The evidence shows that Violet and Vi Vi have sought input from the siblings for the purpose of preparing the schedule.  Violet has also circulated the draft schedule for her siblings’ comment.  The only comment in this respect from Wai Lee concerned the Deceased’s half share of a racing horse[14], which was accordingly added to the schedule.  Without any other comment from the siblings, Vi Vi and Violet caused the schedule to be finalized and filed.

57.  In other words, notwithstanding invitation and opportunity at the time when the schedule was being compiled, there was no complaint about what would have been glaring failure to report chattels in the Deceased’s estate that are worth some HK$30 million.  The surprise that Lily and Wai Lee now expressed in this respect does not impress this court as genuine in the circumstances.

58.  More importantly, in view of the openness of how the schedule was prepared at the relevant time, there is little room for suggesting any dishonesty or dissipation on the part of Violet or Vi Vi with reference to the schedule.  The whereabout of the chattels are identified.  Whilst expressing disappointment about the dispute now raised by Lily and Wai Lee in this respect, the Mother also undertakes to maintain those chattels pending the determination of the present application or any other order of the court.  There is no suggestion of belief that the Mother, or the other siblings of Lily and Wai Lee, have ever attempted, or will attempt, to act in any contrary way.

59.  When there is no real concern about the preservation of the properties, the fact that the schedule is incomplete does not suffice for the purpose of Lily.  On the basis that all the properties belonging to the Estate should in principle be accounted for in the schedule of properties for probate purpose, regardless of any family consensus after the Deceased’s death, that would entail amendment of the schedule, which could well be done provided that it is done in the open.

60.  For the above purpose, and also to come clean in view of the issue taken by Lily, the defendants have instructed professional valuer, Hilco Global Greater China Limited (“Hilco”), to conduct stock-taking of the chattels at the residences. The first round of stock-taking has been carried out.  Wai Lee and the representative from Lily’s solicitors and Wai Lee were present at the stock-taking at the Shek O residence on 3 September 2019.  The defendants would also arrange the valuer to carry out stock-taking at the Fanling warehouse.

61.  The stock-taking exercise ignited further spark between the two camps, including complaint by Lily and Wai Lee that the exercise at the Jardine’s Lookout residence was attempted without their presence.  The circumstances, as revealed by the evidence, were such that the exercise could not objectively be categorized as mere pretence on the part of the defendants or attempt behind the back of Lily.  Importantly, the APLs, even if appointed, would not be expected to carry out the stock-taking exercise themselves, but would have to engage an independent valuer for that purpose.  As such, focusing on the appointment of an independent and competent valuer would be more material and effective.  There is no evidence questioning the competence of Hilco, but the manner of its staff, in the exercise.  Nor is there evidence to suggest that the exercise could not proceed without the APLs.

Overseas assets

62.  The defendants reckon that the Deceased’s assets in Thailand consist of a property let out in Bangkok and a couple of bank accounts in the Deceased’s name.  The documents suggest that Lily is in possession of the relevant documents relating to this property, and that she was involved in liaising with the Deceased’s old friend looking after the property there.  The correspondence between Lily and Vi Vi in this respect suggests no attempt on the latter’s part to hide fact from the former.

63.  While Violet was gathering her siblings’ comment on the schedule of properties for the purpose of applying for probate in Hong Kong, Vi Vi also took steps with a view to applying for probate in respect of the Deceased’s assets in Thailand. In mid-October 2018, Vi Vi requested her siblings to provide their birth certificates and written consent to authorize her to act on their behalves in the application for probate in Thailand.  In the same month, Vi Vi also forwarded to her siblings the email from Cheuk reporting on the progress of these applications.  In early November 2018, Vi Vi informed her siblings by email that except for Lily and Violet, who would not sign the consent letter due to issues arising out of their birth certificates, and Wai Lee, who was then yet to respond, the Mother and the other siblings were prepared to sign the consent letter.  The consent letter was prepared by the Thai lawyers engaged by the defendants, and therefore it had to signed before a Notary Public for the purpose of the Thai probate proceedings.

64.  Wai Lee eventually also signed the consent letter before the Notary Public in mid-November 2018, and a copy of the signed letter was provided to her.  Armed with that, Vi Vi informed her siblings by email in late February 2019 that she would be attending a meeting in Thailand in this regard on 18 March 2019.

65.  However, in early march 2019, Wai Lee sought to overturn her consent.  Through LFP, she complained that Cheuk did not explain the legal effect of the consent letter before she signed it, and that she did not understand its legal effect.  This prompted F&L to put on record that they, and of them Cheuk, were not instructed in respect of the probate application in Thailand, except for arranging the notarization of the consent letter, which was prepared by the Thai lawyers engaged by the defendants, and authentication of the documents requested by the Thai lawyers.  Cheuk had explained to Wai Lee that the latter should seek her own independent Thai legal advice in respect of her rights and entitlement to the Deceased’s estate in Thailand, if she had any question.  The contact details of the Thai lawyers were also provided to LFP for future enquiries regarding the probate application in Thailand.  Later in the same month, Vi Vi attended the Thai Court.  The Thai Court appointed Vi Vi as the executor of the estate of the Deceased in Thailand.  The family members were then informed of the appointment.

66.  Insofar as the substance of the Thai probate is concerned, the dispute is beyond the Hong Kong court.  For the present purpose, the dispute is raised as an instance implicating the character and competence of Violet and Vi Vi in administering the estate of the Deceased.  Specifically, Vi Vi is criticized for taking out and proceeding with the probate application in Thailand for the purpose of circumventing the probate action in Hong Kong.  In view of the contemporaneous evidence, I do not accept the criticism.

67.  First, dispute in respect of particular steps aside, the conduct of Violet and Vi Vi in the probate applications in Hong Kong and Thailand shared a common feature. They were done in the open with the involvement and knowledge of the family members.

68.  Second, as to the consent letter, which was in English, the siblings had no difficulty in understanding of its content and effect.  It was essentially a one liner confirming the consent and authorization of Vi Vi.  Wai Lee also signed it before the Notary Public after having had the opportunity to read it.  She also cared to request for a copy of the consent letter signed by all the parties, which Cheuk did send to her by email later on the same day.  Complaint on her behalf was made only after Lily had filed a Caveat in the probate application in Hong Kong.  The burden of Wai Lee to substantiate the complaint, which was not about the lack of opportunity or ability to read but inability to understand the content and effect of the consent letter.  In view of Wai Lee’s background and the circumstances then, her allegation is hardly attractive.

69.  Third, in their subsequent letter responding to LFP in May 2019, the Thai lawyers confirmed that they had indeed informed the Thai court of the revocation of consent of Wai Lee and the Caveat filed by Lily in Hong Kong, and it was the Thai court that decided that the appointment should nevertheless be made. There is no material before this court in the form of Thai legal expert opinion that contradicts the explanation or the legality of the appointment in such circumstances.

70.  Last, and not unrelated to the above considerations, Vi Vi never pressed Wai Lee to sign the consent letter.  The email correspondence in early November 2018 suggests that she left it to Wai Lee to decide if she intended to sign it.  Importantly, she put on record that for those who would decide not to sign the consent letter, their interest would not be prejudiced, and she would distribute the assets in accordance with the 2015 Will.

71.  As to the Deceased’s assets in Canada and Mainland China, the materials before this court do not suffice to suggest any risk of dissipation that would have called for their preservation by APL.  According to Vi Vi, Canadian legal advice has been obtained in respect of the only asset in Canada, namely, a securities account in the joint name of the Deceased and the Mother.  As to the assets in the Mainland, nothing could or would be done while the probate in Hong Kong is still pending.

The Deceased’s cash

72.  As mentioned, the Deceased had during his lifetime not only trusted and kept Violet as his personal assistant in Chevalier but also entrusted her with the management of his personal expenses and household expenses of the family for nearly two decades.  In other words, Violet handled cash of and from the Deceased. Lily now raises various allegations in respect of Violet’s management of such funds and thus the need for APL to investigate and to preserve.

73.  The evidence shows how Violet handled such funds from the Deceased.  There was admittedly no formal or professional accounting records.  She would keep ledgers in the form of running account to record the income and expenses. Payments made on behalf of the family by the family members, Lily and Wai Lee included, were reimbursed out of such funds by Violet.  No separate bank account was opened for such funds, and Violet used her own personal account and cheques in this connection.  This has been the pattern for years, and known by the Deceased and all the members of the family.

74.  According to Lisa and Lina, they observed escalation of challenge by Lily about Violet’s handling of the funds after the Deceased suffered the stroke in 2016.  In any event, through Oscar, Violet in fact passed her ledgers for the years from 2015 (ie, prior to the Deceased’s stroke) up to 2017 to Lily.  Oscar added that whilst it might not be objectionable to enquire into specific items of application of the funds, Lily was requested to understand the history and pattern as a matter of arrangement between the Deceased and Violet as mentioned above.  In January 2017, Violet also transferred what is said to be the balance of such funds (in excess of HK$16 million) from her personal account to one of the Deceased’s bank accounts.  The siblings were informed and shown the bank-in slip in respect of the transfer.  Violet made clear she would cease handling any household money for the Deceased from that point onwards. Lily took over, but complains that Violet dumped this on her.  She also questions if the sum returned represents the entire balance of the Deceased’s cash.

75.  When considering criticism against Violet about the impropriety or apparent lack of formal accountability of the pattern of handling the Deceased’s personal and household funds, one must not lose sight of the fact that the Deceased was before his stroke perfectly aware of and capable of complaining about that or, if he disapproved, even revoking the arrangement.  There is no evidence of that, but rather evidence to the contrary from the other siblings.  In the absence of the Deceased’s query during his lifetime for nearly two decades, the substance and fairness of Lily’s challenge against Violet now to answer queries such as that about the opening balance under such arrangement between the Deceased and Violet is questionable.  To be fair, and after such time since 2017 when she got hold of the ledgers, Lily should be expected to come up with more concrete and specific factual basis for launching the challenge.  Yet this is lacking.

76.  Other allegations are raised as instances of alleged usurpation of such cash by Violet.  They include payment made to the monks arranged by Chi Nin Nunnery to conduct prayers at the Deceased’s funeral, which is being questioned for the lack of receipts.  Violet confirmed such expenses, but refuted any suggestion of dishonesty.  Lily seeks to borrow support from the terms of the Deceased’s will which referred to receipt for payment or donation to such establishment. However, the monks were arranged at the family’s request by the establishment from outside for the funeral prayer service, which the establishment did not provide, and therefore the payment by “red packets” to the monks then was the family’s token to these outside monks, not donation to the establishment.

77.  The instances alleged also include the alleged usurpation of the household expenses to fund the renovation of Violet’s residence.  Violet confirmed the renovation episode, which took place after the Deceased gave her the property in October 2015 (as mentioned above), but she refuted the alleged usurpation of funds. Lily cannot put her case in this respect higher than her own belief that Violet should have been unable to fund the renovation without the alleged dishonest conduct.  This is however countered by the evidence of Lisa and Lina.

78.  Issue is also taken in respect of the use of the Deceased’s household funds (through the personal securities account of Violet).  Specifically, funds had been invested in 800,000 shares in China Construction Bank.  Lily again put her case on the basis of suspicion.  Violet did not dispute the investment, but explained that the money was not used behind the Deceased’s back but with his encouragement during his lifetime.  Those shares had subsequently been sold, and the proceeds of sale were also deposited into the Deceased’s bank account. The deposit was accordingly recorded in the ledger for 2017.  As mentioned above, the 2017 ledger had been provided to Lily, but issue in respect of such use of the funds was raised only in her affirmation in reply.

79.  Apart from mistrust between the two camps, which should be obvious, these specific allegations, as they now stand, do not depict themselves as matters supported by concrete evidence so as suggest the estate of the Deceased has been dissipated or at the risk of dissipation, if not preserved by the APL in the interim.  Seeking to appoint APL to investigate that would be putting the cart before the horse for the purpose of the present application.

The investment pool

80.  Lily alleges that the defendants have withheld from mention the Deceased’s investment held by some 15 corporate vehicles holding different assets.  The allegation was first made in the affirmations of Lily and Wai Lee in reply upon the close of affidavit evidence.  The new allegation caused the defendants to seek leave to file further affirmations to address the recent allegations by way of their latest summons.  These are the 6^th affirmation of Vi Vi and the 2^nd affirmation of Violet.  Lily did not yield and insisted on having her last say by her last summons for leave to file yet her further affirmation. As mentioned, they are adduced on a de bene esse basis during the hearing.

81.  Essentially, the answer of the defendants to this allegation is that whilst funded from the outset by the Deceased, the investments through these corporate vehicles belong to the children.  This was and still is what the children refer to as their investment pool (“the Investment Pool”).  Lily and Wai Lee were and still are members of the investment committee of the Investment Pool.  The siblings have also benefited from the Investment Pool.  In other words, the defendants say that Lily and Wai Lee raised this recent allegation regarding the Investment Pool knowing full well that this is untrue.

82.  The defendants refer to various instances before the Deceased’s death.  The contemporaneous documents suggest that in 2017, the investment committee passed a resolution to approve the Investment Pool to engage Polaris Capital, a company set up and owned by Oscar, to provide administration and consultancy services in respect of the Investment Pool.  Lily signified her approval of the resolution by signing the minutes of the meeting.  The fees of Polaris Capital and the subsequent increase of fees were also approved by the Investment Committee.

83.  The contemporaneous documents also suggest that Wai Lee also obtained HK$5 million and HK$1.8 million in late September 2017 and early December 2017 respectively from the Investment Pool.  As mentioned, Violet handed over and Lily took over the management of the household expenses, including those for the Mother, in 2017.  The documents suggest that since then funds out of the Investment Pool had also been injected into one of Lily’s companies (Modern Sino Limited) for settling such household expenses.

84.  Reference is also made to various episodes after the Deceased’s death.  Shortly after the Deceased passed away, it was Lily who suggested the siblings to make a substantial donation in the sum of HK$100 million to the City University of Hong Kong.  In her email, Lily described a donation from the Investment Pool as the best way to show, in her own words, appreciation from all the children to the Deceased for all the comfort that they were enjoying.  In September 2018, Lily also approved funds to be paid out of the Investment Pool for donation to Ninghai Guangde Temple.  On 10 May 2019, the investment committee met when Lily also approved a donation of HK$100,000 to Hong Kong-Shanghai Economic Development Association.  On 15 May 2019, Wai Lee received a total sum of HK$600,000 from the Investment Pool as education fees for her 2 children pursuant to an education scheme set up by the Investment Pool for the benefit of the children of the siblings.  In late 2018, Wai Lee also indicated her intention to obtain 2 sums of US$5 million each from the Investment Pool in January 2019 and June 2019 respectively.

85.  Lily contends that the Investment Pool was held by the children on trust for the Deceased pursuant to his design.  In support, she refers to a decision of the Takeovers and Mergers Panel against the Deceased and Oscar back in April 2015 in relation to shares in another listed company for inference of such alleged modus operandi of the Deceased.  Without going into its details here, that decision concerned a particular design instigated by the late Nina Kung, and the Deceased and Oscar were found to have acted in concert for her purpose. That episode hardly lends weight to the alleged modus operandi of the Deceased for his purpose concerning his family assets.

86.  When it came to the oral submissions on her behalf, her position became that even assuming that the Deceased funded the Investment Pool to benefit the children, it would not necessarily mean that he himself would be excluded and thus retention of some beneficial interest in it.  The APLs, it was submitted on her behalf, should be appointed to investigate whether and, if yes, to what extent the Deceased has beneficial interest in the Investment Pool.  However, in the absence of dissipation, whatever extent of beneficial interest the Deceased is said to retain in the Investment Pool would have become part of the residuary estate.  The respective entitlements of the beneficiaries to that, be those according to the 2015 Will or the 2009 Will or upon intestacy, would not materially change.

87.  The above instances, both before and after the Deceased’s death, tend to suggest that the funds in the Investment Pool were managed and utilized by the children as their joint assets.  Had this been otherwise, so that the funds form part of the Deceased’s estate, one wonders how the children would have utilized such funds after the stroke of the Deceased in the absence of a committee appointed under Part II of the Mental Health Ordinance, Cap 136 (“MHO”) and after the death of the Deceased in the absence of grant.  It was not that the family was ignorant of that.  According to Vi Vi^[15], two law firms have been consulted on the issue of the appointment of a committee to manage the estate of the Deceased after his stroke in 2016.  Lily and Wai Lee did not take any contrary stance in this respect.  In any event, Lily and Wai Lee could not distance themselves from the use of such funds.  The last attempt by Lily to adduce affirmation evidence^[16] did not specifically address this.

Dividends from the Chevalier Shares

88.  Lily also raised for the first time in her affirmation in reply questions about dividends distributed from the Chevalier Shares.  Chevalier is a listed company, and such dividends should be ascertainable as a matter of public record.  However Lily and Wai Lee complains that they had no idea about the whereabout of such dividends.

89.  The parties’ affirmation evidence in this respect^[17] suggests that part of the dividends had been applied to enable the Mother to purchase from the Chevalier Group the corporate vehicle holding the family residence at Jardine’s Lookout.  The Deceased funded the acquisition of the property in the first place.  According to the defendants, it was Lily’s idea, whilst the other siblings did not consider the sale and purchase was necessary.  Nevertheless, the transaction went ahead upon Lily’s insistence, and Lily was involved in drawing cheques for the Mother to pay for it.  Whilst Lily, in his further reply, denied knowledge about the source of funding for that transaction consisted of dividends from the Chevalier Shares, the contemporaneous email correspondence tends to suggest the contrary.

Other conduct of the defendants

90.  Lily says much about the allegedly suspicious visits by Vi Vi to the office of Chevalier on 19 and 20 March 2019^[18]. The visits are not denied.  However, the first visit was explained with contemporaneous documentary evidence, while the second visit, made in the open, was not insisted upon after the office of the Deceased has been locked up apparently at the instruction of Lily.  I would not be surprised that the same allegations against Vi Vi would be maintained by Lily in the action, and therefore I am not to be taken to be making a finding of fact purely on affidavit.  That said, I would say for the purpose of the present application that projecting the suspicion about a plot to remove and destroy important documents such as testamentary scripts from the Deceased’s office sounds no more than sinister in the circumstances.

APL’s to investigate?

91.  The main vein running through the submission on behalf of Lily is the need for investigation.  It is proposed that APLs should be appointed to investigate into the matters raised by Lily, and to preserve evidence, before it would be too late by the time of the determination of the present action.  This does not appear to me to align with the proper basis for such appointment.  If there is basis supported by concrete evidence for the APL to step in, that will be because the court is satisfied that the estate, be it interest in a business concern or other properties, is faced with some risks so that steps need to be taken to preserve and protect the status and condition of the estate from such risks pending the determination of the underlying probate dispute.  It does not suffice to raise suspicion, let alone speculation, for founding a case for investigation by APL prior to the determination of the underlying probate dispute.

92.  What perhaps causes this court some concern is the fact that the properties and affairs of the Deceased after he has suffered the stroke in January 2016 until his death have been managed without the appointment of a committee under the MHO.  As mentioned, the defendants did not hide away in this respect, and deposed to the effect that the decision not to proceed with that was made after considering legal advice.  The impact of such decision, if any, will now have to take the form of an account by not only Violet but also the other family members, Lily included, after the grant of probate one way or the other.

93.  It is argued on behalf of Lily that there is no real detriment from the appointment sought other than costs and expenses.  Perhaps it may even be thought that the amount of such costs and expenses would be negligible compared to the size of the estate of the Deceased.  But this again is not the test.  Appointment will be made only if it is necessary or expedient to do so.  It is the burden of Lily as the applying party to establish that, before the consideration of the consequential financial burden occasioned to the estate.

94.  Since Lily decided to challenge the validity of the 2015 Will, notwithstanding the Violet Undertaking, she has embarked upon picking up stones along the way to turn, and has indeed left none of them unturned, in order to justify the application.  On behalf of the defendants, it is argued that this is opportunistic and she fails to succeed in any event.  Whilst I am not here to resolve the factual disputes between the parties, I tend to share that observation after considering all the circumstances, including those specifically discussed above, for the purpose of the APL Application.

Conclusion and order

95.  Regarding affidavit evidence, in the circumstances discussed above, it is only fair that this court should give leave to the defendants to file and adduce their further affirmations in terms of their summons.  Leave is also given to Lily to file and adduce her further affirmation in terms of her summons for completeness.

96.  Regarding the disposal of the APL Application, without prejudice to the Violet Undertaking, this court accepts the undertakings from the defendants in respect of the so-called hidden shares in Chevalier[19] and the chattels in the family residences[20] mentioned above.  As to the former, it is the undertaking in respect of the transfer of the so-called hidden shares into a trust for the benefit of all the children pending the resolution of the dispute in the present action, and pending such transfer the undertaking not to sell or procure to be sold or otherwise dispose of those shares or to seek to change the current composition of the board of Chevalier through the control of those shares.  As to the latter, it is the undertaking not to remove or to dispose of any of the chattels situated in the family residences under the Mother’s possession without the consent of the parties or order of the court pending the resolution of dispute between the parties in the present action.  Upon these undertakings, I dismiss the APL Application.

97.  Following the above event, I make a nisi order that Lily shall personally bear the costs of the defendants in the APL Application, including any costs reserved and the costs of the parties’ summons mentioned above[21].  Costs shall be taxed, if not agreed, with certificate for two counsel.  In the absence of application in 14 days to vary, this nisi costs order shall become absolute without further order.