TO KIT TANG v. LIU BOYU

HCMP 730/2020

[2023] HKCFI 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 730 OF 2020

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BETWEEN

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DECISION

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Introduction

1.  This is an originating summons issued by the plaintiff (“P”) for, among other things, an order that the defendant (“D”) to provide P with a true and perfect inventory and account of the estate of To Cho Kong (“Estate”) as verified by affidavit/affirmation, and that D be removed as administratrix of the Estate.

Brief Background

2.  To Cho Kong (陶祚港) (“Deceased”) died intestate on 15 March 2012. The Deceased married Madam Cheung Yuk Au (鄭旭鷗) and according to a notarial certificate of P’s birth, she was born in Guangzhou and her father was the Deceased and her mother was Madam Cheng. According to P, her parents later divorced, and in 1977, P left Hong Kong to study in Canada and returned in 2006 to live with the Deceased at their home in North Point (“North Point Flat”).

3.  It would appear that the Deceased married D in about 2000.

4.  According to P, after she returned to Hong Kong in 2006, she had a job which required her to work in Mainland China. She would usually come back to Hong Kong and stayed in the North Point Flat on Friday evenings and would then leave on Monday mornings. She said from 2006 to 2009, she very seldom saw D at the North Point Flat, perhaps not more than 10 times, and that she and D had a cold relationship, and that to avoid P, D would leave Hong Kong on Fridays and would only return on Mondays to avoid P.

5.  In early May of 2009, Deceased suffered his first stroke and he suffered another stroke in July 2009. Later D moved him to a hospital in Guangzhou. From 2009 until his death on 15 March 2012, Deceased lived in Guangzhou and came back to Hong Kong once only for a few days and stayed in a hotel in Hong Kong.

6.  D obtained the Letters of Administration of the Estate on 23 November 2016 (“LA”). According to P, she and D being the Deceased’s daughter and widow are the only persons entitled to share in the Estate, the Deceased having died intestate.

7.  Further, according to P, the Estate consisted of:

(1) monies in bank accounts;

(2) 9,998 shares in a private company, namely Buddha Arts & Crafts Company Limited (“Company”) which owns the North Point Flat and a factory in Chai Wan (“Chai Wan Property”); P held the remaining 2 shares in the Company, and P and D are the only two directors.

(3) a real property in Guangzhou

8.  P estimated the net principal value of the Estate as at the date of death of the Deceased was over HKD 35m.

9.  P had produced SMS messages (i) on 31 October 2016 and 1 November 2016 from D to her informing her to contact the auditors of the Company for filing of audited financial statements and P’s reply that she would follow up; (ii) on 30 December 2016 from D asking P to go to Guangzhou to discuss regarding the Estate and P’s reply that she had already contacted a solicitor and asked D to contact her solicitor, which appeared to be followed by a long message from D setting out various matters regarding the Deceased and Estate , with a reply from P again asking D to contact her solicitor; (iii) on 24 June 2017 from D suggesting that the parties should resolve their differences without outsiders and P’s reply again that D should contact P’s solicitors. All the SMS messages were sent by D to P and vice versa through D’s contact telephone number in Mainland China (“Mainland Telephone Number”).

10.  P said that although she was told by D at about end of December 2017 that D had obtained the LA, P was not shown a copy thereof by D. It was only in November 2018 when P instructed solicitors to make a search at the Probate Registry that she obtained a copy of the LA but the Schedule and Assets and Liabilities dated 14 November 2018 (“Schedule”) was not supplied to them at the time.

11.  P first instructed solicitors to write to D on 9 August 2019 demanding D to render an account of the Estate and for a complete copy of the LA together with a copy of the Schedule, and seeking a distribution of the Estate. The letter was sent by registered post to D’s address in Discovery Bay (“Discovery Bay Address”). According to the record at the Land Registry, the property at the Discovery Bay Address was purchased by D in joint names with one Liu Yan on 13 February 2008.

12.  There was no response to the above letter. On 21 February 2020, P’s solicitors sent a further letter to D at the Discovery Bay Address, again by registered post. There was again no response.

13.  On 29 May 2020, P issued the originating summons herein accompanied by a supporting affirmation dated 24 March 2020. On 10 November 2020, P obtained an order to amend the originating summons, due to an error in the Discovery Bay Address. The amended originating summons was filed on 12 November 2020, and it was served by post on D together with accompanying documents by insertion through the letter box at the Discovery Bay Address on 25 November 2020. There was no acknowledgment of service lodged by D.

14.  P then issued a Notice of Appointment of the amended originating summons which was served by ordinary post on D at the Discovery Bay Address on 7 January 2011. According to P, it was not returned by the Post Office.

15.  The 1st hearing before this Court was on 23 February 2021, and this Court ordered that D do within 21 days provide the P with a true and perfect inventory and account of the Estate as verified by affidavit/affirmation and there be inspection allowed to P of all supporting documents, and directions were also given regarding of filing of any evidence by D (“February 2021 Order”). According to P, D was served on the same day by ordinary post at the Discovery Bay Address.

16.  During the 2nd hearing before this Court on 15 April 2021, this Court directed, amongst other things, leave for P to re-amend the amended originating summons to seek a revocation of the LA granted to D and for P’s solicitors to file and serve updated affidavit/affirmations setting out the present situation regarding all properties of the Estate including relevant company searches, BR registrations records of the Company and land searches and to set out all P’s efforts to contact D (“April 2021 Order”). Bearing in mind the pandemic, this Court also directed under the April 2021 Order, that the re-amended originating summons be dealt with on paper, unless other directed by the Court.

17.  At the Court’s suggestion, on 10 September 2021, a letter was sent by P’s solicitors to the tenant of the North Point Flat to make enquiries of D’s contact details. According to P’s solicitors, the tenant then telephoned P’s solicitors and informed them of D’s address in Mainland China (“Mainland Address”) and also D’s telephone number, which is the same as the Mainland Telephone Number.

18.  According to P, on 15 September 2021, a letter together with the relevant documents in these proceedings were then sent by courier to D at the Mainland Address, but the occupier at the Mainland Address refused to accept the letter. Further, according to P, telephone calls were made to D’s Mainland Telephone Number. However, there were no SMS messages produced by P as to whether any documents had been sent to D and/or whether D was notified by SMS messages of these proceedings.

19.  On 26 September 2022, the time for filing and service the updated affidavit/affirmation and serving the re-amended originating summons was extended on application by P. The re-amended originating summons was eventually only filed on 30 September 2022.

20.  The re-amended originating summons was served on 3 October 2022 and on 5 October 2022 respectively by ordinary post and by registered post again on D at the Discovery Bay Address, and that the one sent by ordinary post was retuned by the Post Office with a remark “拒收refused” and the one sent by registered post was returned by the Post Office with a remark “不到取unclaimed”.

Discussion

21.  It would appear from P’s own evidence and the telephone conversation between the tenant at the North Pont Flat and D’s solicitors that D has/had been in Mainland China, and in my view, continuing to send letters to D’s Discovery Bay Address cannot be effective service. P would need to apply for leave to serve the re-amended originating summons out of jurisdiction on D’s Mainland Address. Further, I see no reason why P’s solicitors could not send D a SMS message informing her of these proceedings and the contents of both the February 2021 Order and April 2021 Order. Also, in light of the letters sent in October 2022 to the Discovery Bay Address having been returned, P should also apply for an order for substituted service in Hong Kong, in the event that any service at P’s Mainland Address should prove unsuccessful.

22.  In short, I am not satisfied with service. I decline to grant the orders sought at this stage and order the re-amended originating summons be adjourned sine die with liberty to restore after proper service has been effected on D. Costs be reserved.