XCHRX WANG DIN SHIN v. NINA KUNG

1997, No. P6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURDICTION

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D E C I S I O N

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1. I shall be short in this decision for the obvious reasons as put forward by the Defendant herein in their applications. There are four summonses before me in the following order : -

(1) Defendant's summons dated 19 January 1998 : that the Plaintiff's claim for a declaration that the alleged deceased herein is dead be tried as a preliminary issue.

(2) Defendant's summons dated 19 January 1998 : that no person do open or inspect the envelopes lodged by the Defendant with her affirmation of testamentary scripts without the leave of the Court pending the hearing of an application for trial of a preliminary issue.

(3) The Plaintiff's summons dated 21 April 1998 : that the second envelope lodged by the Defendant and its contents be examined by the Government Chemist.

(4) The Defendant's summons dated 24 April 1998 : that no person shall open or inspect the envelopes lodged by the Defendant without the leave of the Court and only after the final determination of Civil Appeal No. 24 of 1998.

2. The application herein is after my Decision delivered on 6 January 1998 whereby I refused to accede to the request of the Defendant to strike out the Plaintiff's claim on the ground of abuse of the process of the Court. I have said earlier in that Decision that :

" ... it is also not appropriate for this Court at this stage to order a preliminary issue, or the first issue of death, to be tried first. It is a matter for the trial judge after discovery and after witnesses' statements have been filed and served."

3. That was said in the context that the Defendant was not pursuing the striking out on the ground that it was plain and obvious that the Plaintiff's case would fail at the trial. It was also said in the context that no Defence nor testamentary scripts had ever been filed at that stage. Now both documents were duly filed within the prescribed time.

4. There are two issues involved in this probate action, namely :

(a) whether the alleged deceased had died, and

(b) what was the testamentary disposition of the deceased, if any.

In respect of the first issue, the Plaintiff relied on the presumption of death after seven years. The Defendant filed a Defence and in this application adduced evidence by affirmation that she believed her husband is still alive. For obvious reason I would not go into detail of her contentions. It is quite obvious that O.76, r.5 would only apply where there is a deceased person and the whole probate action would stand on the premises that the deceased had died.

5. In other words, whilst I accept the Plaintiff's submission that the general rule is not to order any trial of a preliminary issue unless there is a special reason for doing so, in this case, it will save a lot of time and costs if this issue should be determined at once before the trial of the second issue. If the Plaintiff failed, that will be the end of this action.

6. In respect of the Defendant's second summons, I also agree with the Defendant that there should be a right to confidentiality and privacy in relation to the testamentary disposition of any person until such time when he is dead or has been presumed dead. Moreover it is the expressed wishes of the testator that the contents of the envelopes should remain un-open until after his death. Should such an envelope be opened and the testator was then proved to be alive, there may well be irreconcilable consequences depending on what the testator had written in his testamentary script or disposition.

7. I also accept the Defendant's submission that there may well be some risks as to the safety of the testator and such fears are not illusionary bearing in mind that this matter is concerned with unpredictable and illogical kidnappers. There may well be some information or effects which will push the kidnapper to terminate all desires to extort money from the family of the kidnapped. Again I propose not to go into more detailed analysis here.

Conclusion

8. Accordingly I order in terms of the Defendant's first and fourth summonses with costs to the Defendant. I also order that my Order shall also be endorsed on the envelope filed by the Defendant containing the testator's testamentary scripts.

9. With the agreement and application of the parties, I grant leave to the Defendant and the Plaintiff respectively to withdraw their second and third summonses respectively with no order as to costs.

(D. Yam)

Judge of the Court of First Instance,
High Court