CHAN MEI FAT v. CHOI LAI SHEUNG

HCMP 847/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 847 OF 2005

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BETWEEN

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D E C I S I O N

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Application

1. This is an application by the Defendant against the Plaintiff under Order 18 rule 19 of the Rules of the High Court (“RHC”) and the inherent jurisdiction of this Court to strike out paragraph 1 of the Originating Summons filed herein on 25 April 2005 on the ground that it is an abuse of the court process.

Background

2. Madam Choi Lai Ngor (“the Wife”) died on 6 October 2004.  She married to the Plaintiff (“the Husband”) on 22 July 1990.  They have no child born out of the wedlock.  The Wife herself comes from a family of six children and the Defendant (“the Sister”) is her younger sister.

3. For our present purpose, the crux of the dispute is that: the Sister said that the Wife died testate leaving a Will naming her as the sole executrix while the Husband disputed the same.  The parties’ legal representatives had corresponded with each other from November 2004 to January 2005, but regrettably, they could not agree on the production of the Will of the Wife.

4. The Sister’s solicitor maintained that they could give the Husband a copy Will with “redactions” only because they did not have consent from other beneficiaries.  She supplied the followings to the Husband on 6 January 2005.

“本人蔡麗娥（CHOI LAI NGOR），身份証號碼XXXXXXX(X)於精神狀態良好下訂立平安紙乙份作為本人身亡後之財產分配，確立日期為2004年5月16日，以前所立的平安紙一律無效。財產分配如下：

 

 

物業四：	23 LI TAK ST. G/F TAI KOK TSUI, KOWLOON. 送給我的丈夫陳美發XXXXXXX(X)；
物業五：	BLOCK 7 2/F G FLAT, PARK ISLAND. 我所佔的99%送給丈夫陳美發XXXXXXX(X)；

 

海外與我丈夫陳美發聯名的銀行存款及定期:

因所有存款都是由我蔡麗娥和妹妹蔡麗嫦存入，我丈夫陳美發從來沒有存入分毫，所以全數送給     ；

             ；

             。

 

用我現時的現金支付醫療費、律師費及遺產稅；如有不足，委托妹妹蔡麗嫦       賣出物業五BLOCK 7 2/F G FLAT PARK ISLAND，用以支付所有支出，餘數歸還丈夫陳美發。現委托蔡麗嫦          為本人蔡麗娥之遺產執行人。

 

平安紙立據人蔡麗娥
簽名:	___________________
	XXXXXXX(X)
見証人林玉薇
LUM YUK MEI
簽名:	___________________
見証人吳國興
NG KWOK HING
簽名:	___________________
日期2004年5月16日 ”

5. However, the Husband disagreed and his solicitors replied on 21 January 2005:

“……

We have instructions from our client that when he was asked to appear at your office on 21st October 2004 and in the present of your Miss Polly Chan, she was shown the alleged original Will which is substantially difference in its form and substance to that sent to us on 6th January 2005.

Our client is of the opinion that there are 2 separate documents which your client purports to be the last Will and Testament of the deceased.

We hereby give you notice that unless you furnish a certified true copy of the alleged Will within 3 working days from the date hereof, we will institute legal proceedings against your client without further notice.”

6. On 25 April 2005, the Husband issued the present proceedings against the Sister by way of Originating Summons with reference to section 7 of the Probate and Administration Ordinance (Cap 10) (“PAO”) for an order that:

“ 1. the Defendant to produce and bring into the Registry, any paper or writing being or purporting to be testamentary of Choi Lai Ngor, the deceased, which may be shown to be in the possession or under the control of the Defendant;

  2. the Defendant do provide plain copies of any paper or writing being or purporting to be testamentary of Choi Lai Ngor, the deceased to the Plaintiff; and

  3. costs of this application be to the Plaintiff.”

7. The Sister filed her acknowledgment on 30 May 2005 indicating that she would contest the proceedings.  Further, on 3 June 2005, she took out the present striking out application against paragraph 1 in the above prayer.  The substantive argument of the matter was heard by me on 25 November 2005.  Mrs. Dora Chan of Counsel acted for the Sister while the Husband was represented by Mr. Kevin Hon of Counsel.  Having heard from both Counsel, I reserved my decision to be delivered.

Ruling

8. Now, upon careful consideration of the evidence authorities and submissions from the parties, I have come to the conclusion that leave is to be granted to the Plaintiff to amend the Originating Summons to the extent that the matter will be heard by a Judge, rather than a Master, in chambers.  My reasons appear as follows.

9. For our present purpose, I set out the applicable law as follows:

(a) It is only in plain and obvious case that this Court will exercise its summary powers of striking out.

(b) Leave to amend will usually be given if the “defects” can be cured or saved by an amendment.

(c) The modern approach is preferred in interpreting a statute.  The court should not decide whether the statute is intended to be “imperative/mandatory” or “directory” by reference to the use of words “shall/must” or “may”.  Instead, it is the intention of the legislature that matters.

(d) Section 7(1) PAO states that:

“The court may, on motion or petition or otherwise, in a summary way, whether any proceedings are or are not pending in the court with respect to any probate or administration, order any person to produce and bring into the Registry, or otherwise as the court may direct, any paper or writing being or purporting to be testamentary which may be shown to be in the possession or under the control of such person.”

(e)  Section 7(3) PAO sets out:

“The Registrar may, whether or not any proceedings are pending in the court, issue a subpoena requiring any person to produce and bring into the Registry any paper or writing being or purporting to be testamentary, which may be shown to be in the possession, within the power, or under the control of such person; and such person, upon being duly served with the said subpoena, shall be bound to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default as if he had been a party to proceedings in the court, and had been ordered by a judge to produce and bring in such paper or writing.”

10. Bearing in mind these principles, I now turn to the parties’ dispute.  In short, Mrs. Chan argued that a Master did not have jurisdiction under section 7(1) PAO, only a Judge could hear the application.  The question of jurisdiction was important and should be resolved as soon as possible to avoid waste of costs and time.  Mr. Hon disagreed.

11. I agree with Mrs. Chan.

12. Both Mrs. Chan and Mr. Hon spent some time arguing on the use of word “may” in the relevant legislation.  As I have indicated, the use of “may” is the legislation is not important.  Turning to the legislative mechanism as to the production of the testamentary documents, we can see that it clearly intends a “division of labour” by the Master and the Judge.

13. Our local legislation in this respect closely mirrors that of England.  Hence, Tristram and Coote’s Probate Practice provides useful assistance to us.  Mrs. Chan referred me to the following paragraphs in its 28th edition, namely:

“Application for order to bring a testamentary paper into the registry

25.182 There are two methods of compelling a person who is, or is believed to be, in possession of a testamentary document to bring it into a probate registry:

(a) By order of a High Court judge made on an attendance before him following an order of a district judge or registrar obtained on summons, under NCPR 50(1), pursuant to s. 122 of the Supreme Court Act 1981 (see r49(1) NCPR and s7(1) PAO in HK)

(b) By a subpoena issued by a district judge or registrar under NCPR 50(2), pursuant to s. 123 of the Supreme Court Act 1981 (see r49(2) NCPR and s7(3) PAO in HK).  This simpler procedure is more usual in cases where it is known that the document is in the possession, custody or power of a person who refuses to produce it.

25.183 In either case, failure to comply with the order of the court on the subpoena constitutes contempt of court.

25.184 Where a probate action is pending, any application under either of these sections to compel the production of a testamentary document must be made in the Chancery Division in accordance with RSC Ord. 76, r. 13 (see O76 r13 RHC in HK).

25.185 ……

Subsequent procedure

25.189 If the person served with the subpoena is required to bring the testamentary paper into the … Registry, he should loged it with the Record Keeper, who will give a receipt for it, if desired. No fee is payable.

25.190 If the document is not in the possession, custody or power of the person served with the subpoena he should file at the registry form which the subpoena issued an affidavit stating that the document is not in his possession or control (NCPR 50(2)).

25.191 The situation may occur where the will has not been lodged pursuant to the subpoena and no affidavit has been filed by the person served denying that the will is in his possession or control.  In such a situation, if there is doubt as to whether the original will is in the possession or under the control of the person subpoenaed (and accordingly no clear evidence that he is in contempt) consideration should be given to applying for an order that the person subpoenaed attend before a High Court judge for examination (see para. 25.182(a) rather than applying for his committal.

25.192 Disobedience to the subpoena may be enforced by proceedings for committal: ……  The court will, however, not necessarily commit a person who disobeys a subpoena.  It may make an order for his attendance at court to be examined as to his possession of the document in question.”

14. Hence, no doubt, in Hong Kong section 7(1) PAO anticipates that the application is to be made to a High Court Judge who has the power to commit the person for disobedience, as distinguished from the procedures set out section 7(3) PAO which expressly authorizes the Registrar to issue the subpoena and to follow up the matter, if appropriate, as per the above said para. 25.192.

15. Having said that, since the Plaintiff has elected to invoke section 7(1) PAO, it is to be dealt with by a Judge.

16. During the Counsel’s submissions, Mr. Hon indicated that he would ask for leave to amend the Plaintiff’s Originating Summons to the effect that it was to be heard by a Judge in case that I was not with him on the jurisdiction point.  Mrs. Chan did not oppose such fallback position, save on the question of costs.  As such, I do grant such leave to Plaintiff to amend his Originating Summons within 7 days from today.

Costs

17. Though I have not had the benefit of hearing argument on costs from the parties, I see no reason why costs should not follow the event.  I therefore make a costs order nisi that costs of the application, including certificate of counsel for hearing on 25 November 2005, be borne by the Plaintiff to the Defendant, on party-and-party scale, to be taxed if not agreed.  Such order nisi will be become absolute within 14 days from today.

Mr. K. Hon instructed by Messrs. George Tung, Jimmy Ng & Valent Tse for the Plaintiff.

Mrs. D. Chan instructed by Messrs. Yu & Associates for the Defendant.