CHAN HUNG KIT v. TUNG LAI SHAN

HCCA 4712/2020

[2023] HKCFI 317

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO 4712 OF 2020

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BETWEEN

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DECISION

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1.  This is meant to be the substantive hearing of the summons of 8 November 2021 (the “Summons”) taken out by the Person Warning (the “PW”) for an order that the Caveat filed on 17 September 2020 (the “Caveat”) by the Caveator (the “Caveator”) shall cease to have effect, and that the PW be appointed as the executrix of the estate of Madam Ma Chau Ngan (the “Estate”, and the “Deceased”).

2.  On 30 January 2023, less than 2 days before this hearing, the Caveator filed a summons (the “Aff Summons”) seeking leave to adduce the affirmation of Cheng Ka Wai of the same date.

3.  PW and the Caveator are half-sister and brother. The Deceased was their blood mother.

4.  The validity of the Will is not in dispute. Nor is the fact that PW is the named executrix. PW says therefore that she should be appointed as such, and there exists no special circumstances suggesting otherwise. Whilst not challenging the validity of the Will nor the naming of PW therein as the executrix, the Caveator says that the PW should be passed over for 3 reasons:

(a) she was of bad character;

(b) her appointment would create conflict of interest; and

(c) there being a complete breakdown of relationship between her and the other beneficiaries.

5.  Whilst the first and second reasons appear separate, they are based on the same factual allegations, that the PW has forged the Deceased’s signatures on the instrument of transfer and bought and sold note dated 24 July 2019 (the “Transfer Documents”) in order to obtain the sole issued share in Wah Cheong Swallow Trading Company Limited (the “Company”) that had until the transfer been registered in the name of the Deceased.

6.  I bear in mind the approach to be adopted when considering the Summons. The main consideration is one of “necessary or convenient”. The court’s discretion is engaged, to be exercised in the best interests of the estate. The judge is not called upon to determine the parties’ right and liabilities, nor was it necessary for him to resolve disputed issues of facts – see Re Estate of Loo Che Chin (羅哲欽) [2013] 6 HKC 303, at §32.

7.  Whilst that is the approach, when considering whether PW is of bad character as alleged, and whether her appointment will create conflict of interest as a result, the authenticity of the authorship of the Transfer Documents remains the most important factual consideration for the resolution of the Summons.

8.  In support of his case, the Caveator says that he “had asked my solicitors to engage a handwriting expert to conduct forensic examination as to the signatures”[1]. An examination report of Dr Man Yee Mallory Leung of 15 December 2020 has been adduced (“Dr Leung”, and the “Report”).

9.  In her affirmation of 8 August 2022, PW raises concern about Dr Leung’s qualifications.

10.  No step had been undertaken by the Caveator to address those concerns. That was until the Aff Summons less than 2 days from the substantive hearing when the Caveator seeks through his legal adviser to give further evidence on the experience, history, background and “on-job training” of Dr Leung.

11.  No reason has been tendered for the lateness. I in fact can see none.

12.  Wilson Chan J has previously ordered that after the PW’s affirmation in reply, there shall be no further affirmation without leave.

13.  The Caveator seeks leave to file the additional evidence, and at the same time resists any adjournment with costs. That stance, on the facts before me, is entirely untenable. In particular, I reject Mr Leung’s submissions that any challenge on expertise is a matter for submissions. If that were so, one wonders why the Caveator sees it necessary to file the present Aff Summons.

14.  PW resists the Aff Summons. She does not want an adjournment, but that should leave be granted, there be an adjournment for her to adduce expert evidence in reply, with costs to her.

15.  The Aff Summons is undeniably late, with no explanation tendered as to why.

16.  I note that an adjournment even with costs do not necessarily justify any late application.

17.  I note on the other hand that the worth of the Estate is high, estimated to be above HK$100 million.

18.  I note the importance of the authorship of the Transfer Documents, being the single most important factual allegation which the Caveator (and his brother Chan Hung Chu) has made against the PW. I do not accept Mr Au’s submissions that the Report is independent of Dr Leung’s expertise and in any event of no value. Whilst the date when the Transfer Documents was signed is in dispute, the Report has at the very least considered the authorship on the basis of one of the 2 factual scenarios.

19.  I also note that the allegation of forgery is a very serious one with criminal connotations.

20.  On the exceptional facts of the case, having considered all the circumstances, and in the interest of justice, I accede to the Aff Summons, but only on condition of an adjournment and payment of costs of this hearing and costs of and incidental to the Aff Summons. I do not accept Mr Leung’s submissions that the request by the PW to file expert evidence in reply is necessitated only by her failure to do so despite the production of the Report. The PW is in my view entitled to decide on the way she prefers to conduct the Summons according to the strength of the evidence in front of her, which will be changed as a result of this Court allowing the Aff Summons.

21.  I therefore allow the Aff Summons, and make the directions as set out at §13 of Mr Au’s submissions (subject to any submissions for modifications which I will hear). I clarify that those costs which the Caveator has to bear do not include those involved in the preparation of the affirmation in opposition as envisaged in §13.3, which will separately be dealt with as part of the costs of the Summons.