YIM KAR KIN PETER AND OTHERS v. YIM WAI KEE

HCAP 27/2019

[2023] HKCFI 2985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 27 OF 2019

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J U D G M E N T

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Introduction

1.  The late Mr Yim Ho (“the Deceased”) passed away, intestate, some 46 years ago on 11 June 1977 at the age of 69. However, in the circumstances narrated below, disputes only arose in 2018.

2.  By this action, the Plaintiffs seek the revocation of the Letters of Administration of the Deceased’s estate granted on 20 December 2017 to the Defendant as the administrator (respectively “the Subject LA”, “the Deceased’s Estate”, “Wai Kee” and “the Administrator”).  The Plaintiffs ask that instead the Letters of Administration of the Deceased’s Estate be granted to Siu Yun, the 2^nd Plaintiff.

3.  Chi Yuen (致源), Siu Yun (紹源) and Shui Yuen (瑞源) (“the 3 Brothers”) were the 3 sons of the Deceased begotten with his kit-fat wife Madam Wong Sai (“Madam Wong”) who passed away on 16 August 1967.  I said “were” above because 2 of the 3 Brothers have now passed away.

4.  Chi Yuen passed away on 3 September 2018 amidst the parties’ dispute.  The 1^st Plaintiff (“Peter”) is his son and the Executor of his last Will.  Shui Yuen passed away on 24 November 2009. The 3^rd Plaintiff (“Madam Ng”) is his widow and the administratrix of his estate.

5.  The Deceased had a concubine Madam Leung Tung (“Madam Leung”).  From their union were born 2 sons – Kit Yuen and Wai Kee.  The concubinage was recognized by a ceremony (“the Ceremony”).

6.  The status of Madam Leung as lawful concubine, the existence and/or the validity of the Ceremony, that Wai Kee was a natural and legitimate son of the Deceased were initially hotly challenged by the Plaintiffs, which challenges were all withdrawn in the middle of trial in the circumstances set out below.

7.  The remaining only ground of revocation pursued by the Plaintiffs is that the Subject LA was obtained by Wai Kee falsely representing and affirming to the Probate Registry that he would well and truly administer and faithfully dispose of the Deceased’s Estate when his true intention and agenda was to ventilate the  grievances over the “mistreatments” Madam Leung and her family are perceived to have received from the 3 Brothers and to deny the 3 Brothers of their entitlements to the Deceased’s Estate.

8.  Wai Kee, all along acting in person, strenuously opposes the application for revocation.

9.  Wai Kee further counterclaims for a declaration that the 3 Brothers were/are not persons entitled to a share in the Deceased’s Estate in that (a) Chi Yuen and Siu Yun were not born out of wedlock and therefore were illegitimate, and (b) Shui Yuen was not the natural son of the Deceased.  Wai Kee consequently claims that Siu Yun is not entitled to the grant now sought by the Plaintiffs.  Wai Kee also seeks to recover, as the Administrator, the possession of the Deceased’s Land (defined below) and for an account of, and various reliefs in relation to, the rental earned (or otherwise could have been earned) by the Deceased’s Land for the last 46 years since July 1977.

10.  As will be seen from the long background history, parties have all along for over 40 years acted upon and affirmed each other’s status and entitlement.  It seems to this court most unfortunate and regrettable that these disputes are now aggressively raised and pursued, despite the fact that there is little evidence, let alone cogent and reliable evidence, that could now be proffered by either side, whether to support or to defend their respective allegations.

The relevant provisions in the Intestates’ Estates Ordinance at the time of the Deceased’s death

11.  As relevant backdrop are two aspects of the provisions in the Intestates’ Estates Ordinance governing the entitlement to the Deceased’s Estate at the time of the Deceased’s death, ie 11 June 1977. They are common ground, and so I will be brief in introducing them.

12.  Firstly:

(a)  the then Section 2(2)(a) of the Intestates’ Estates Ordinance provided that “a child or issue” meant “a child of a valid marriage to which that person was a party”;

(b)  the then section 4(5) provided that “If the intestate leaves issue but no husband or wife the residuary estate of the intestate shall be held on the statutory trusts for the issue of the intestate”;

(c)  paragraph 2(1) of the Schedule to that Ordinance provided that “A child of a union of concubinage shall be regarded for the purposes of the Ordinance as the child of a valid marriage”; and

(d)  therefore, if any of the 3 Brothers or Wai Kee was an illegitimate child of the Deceased, he would not be entitled to a share in the Deceased’s Estate[1].

13.  Secondly, under paragraph 4(7) of the said Schedule, which provided:

“ (7) Where the intestate is at the time of death a party to one union of concubinage and the residuary estate is held on the statutory trusts for the intestate's issue in accordance with section 4(5), one third of the residuary estate shall be held on trust to pay the income therefrom to the surviving party to that union of concubinage during his or her lifetime”,

Madam Leung, as concubine, would have been entitled during her lifetime to the income derived from one third of the residuary of the Deceased’s Estate.

Background, the Draft DFA, the 1980 Application and the 1981 Application

14.  The matters narrated in this section are not disputed, unless otherwise stated.

15.  In addition to the 3 Brothers, the Deceased and Madam Wong also had an eldest daughter who unfortunately died when she was a teenager.

16.  The dates and places of birth of the 3 Brothers are material :

(a)  Chi Yuen was born on 8 October 1932 in Tangchong Village (棠涌村) in Guangzhou.

(b)  Siu Yun was born on 15 May 1936 in Nanhai County (南海縣) of the Guangdong Province.

(c)  Shui Yuen was born on 21 October 1942 on Cheung Chau Island, Hong Kong.  

17.  It is common ground that the Deceased and Madam Leung had co-habited since 1944.  As said, they had 2 sons : Kit Yuen, born in 1950 and Wai Kee born on 24 May 1958, and that the Ceremony took place on 20 August 1958.  I will refer to Madam Leung, Kit Yuen and Wai Kee together as “Madam Leung’s Family”.  Though much was said by both sides respectively for and against the validity of the concubinage and the existence and validity of the Ceremony, since they are no longer challenged, I will skip over these matters.

18.  The Deceased was a businessman with some success. The Deceased’s Estate mainly consists of, strictly speaking, 6 pieces of land with 5 buildings thereon of 2 storeys to 4 storeys high with a shop on the ground floor, totalling 13 residential units and 4 shops.  However, as there was one building erected on Cheung Chau Lot No 489 Section A and Cheung Chau Lot No 489 Extension, it is more convenient to count these two pieces of land together as one.  Thus, the 5 pieces of land (“the Deceased’s Land”) are:

(a)  Cheung Chau Lot No 511 (acquired in July 1951)(“Lot 511”),

(b)  Cheung Chau Lot No 352 (acquired in December 1951)(“Lot 352”),

(c)  Cheung Chau Lot No 489 Section A & Extension (acquired in December 1954 and November 1956 respectively) (“Lot 489AE”),

(d)  Cheung Chau Lot No 488 (acquired in Nov 1956)(“Lot 488”), and

(e)  Cheung Chau Lot No 610 Remaining Portion of Section B (acquired in May 1977)(“Lot 610B”).

19.  The Deceased, Madam Wong and their children used to live on Lot 352, which is known as No 15 Tai San Street.  Madam Leung’s Family used to live on Lot 489AE, which is known as No 46 Hing Lung Back Street.  They were only a short distance of about 200 meters from each other.

20.  The general tenor of the evidence is that the two families were not close and they seldom interacted with each other, especially during the lifetime of Madam Wong; though Chi Yuen was on talking terms with Kit Yuen.  Siu Yun recalled that the Deceased often found time to visit and stay with Madam Leung’s Family.

21.  Siu Yun, as the only witness for the Plaintiffs, and Wai Kee, as the only witness for himself, both in evidence did not dispute that after the death of the Deceased in 1977 and under the initiative and liaison of Chi Yuen as the eldest son of the Deceased[2], certain arrangement regarding the administration and distribution of the Deceased’s Estate was made and apparently agreed to by all concerned, as shown by the contemporaneous documents, especially a draft Deed of Family Arrangement[3] (“the Draft DFA”).

22.  I pause to mention that I will below describe the arrangement and the Draft DFA minimally and neutrally because in the course of trial the Plaintiffs have indicated that they would commence proceedings to enforce the specific performance of the agreement per the Draft DFA, while Wai Kee emphatically indicated many times that he would strenuously oppose.

23.  The Draft DFA was prepared by Messrs Michael Cheuk & Co (“Brothers’ Former Solicitors”).  It was engrossed, but not yet executed, and entitled “Deed of Family Arrangement” and dated as to year only (namely, 1982) with the month and day left blank.  Though it was dated 1982, it seems to me likely that the Draft DFA was engrossed around the time Madam Leung’s Renunciation (defined below) was executed.

24.  The Draft DFA recited and provided, among others:

(a)  The parties named in the Draft DFA were Madam Leung, Chi Yuen, Siu Yun, Shui Yuen, Kit Yuen and Wai Kee, described and recognized as the only persons entitled to a share in the Deceased’s Estate; and all but Madam Leung were recognized and described as the Deceased’s only issue;

(b)  Chi Yuen and Shui Yuen would be applying for the Letters of the Administration of the Deceased’s Estate;

(c)  Madam Leung was recognized as the concubine of the Deceased entitled to apply for a grant of the Letters of Administration in priority to Chi Yuen and Shui Yuen, but she has executed a Renunciation to Administration dated 7 August 1980[4] (“Madam Leung’s Renunciation”);

(d)  Madam Leung thereby agreed to renounce all her rights to a share in the Deceased’s Estate;

(e)  That “… [A]ll the parties hereto are now desirous of entering into this Deed of Family Arrangement to record the intention of the parties …”; and

(f)  All agreed that the Deceased’s Estate would be distributed to Chi Yuen, Siu Yun, Shui Yuen, Kit Yuen and Wai Kee in species with (i) Chi Yuen receiving all the cash in bank, jewels and Lot 488, (ii) Siu Yun would receive Lot 352, (iii) Shui Yuen would receive Lot 610B, (iv) Kit Yuen would receive Lot 511 and (v) Wai Kee would receive Lot 489AE.

25.  In evidence, Wai Kee accepted that Madam Leung’s Family had been appraised of the arrangement and had received a copy of the Draft DFA.  He was equivocal as to whether Madam Leung’s Family had agreed to the distribution provided therein.  He said that it was not Madam Leung’s disposition to fight for a share in the Deceased’s Estate.  He said in evidence that Madam Leung’s Family had never voiced out any disagreement over the arrangement or the Draft DFA.  He said that a number of meetings had been held along the years between the 2 families regarding the Deceased’s Estate but that the 3 Brothers had not kept Madam Leung’s Family informed of the progress concerning the application for probate of the Deceased’s Estate.

26.  Apparently pursuance to such arrangement or agreement and in 1980, the Brothers’ Former Solicitors filed with the Probate Registry application no 2096/1980 (“the 1980 Application”) for the grant of the Letters of Administration to the Deceased’s Estate with Chi Yuen as the sole administrator; and then shortly after, the 1980 Application was withdrawn and instead application no 907/1981 (“the 1981 Application”) was made in 1981 with Chi Yuen and Shui Yuen as co-administrators.

27.  A number of supporting documents and affirmations were filed in support of the 1980 Application and the 1981 Application, including Madam Leung’s Renunciation and certain affirmations in support of Madam Leung’s status as concubine of the Deceased.  In a nutshell, the documents and affirmations so filed by Chi Yuen and Shui Yuen supported and affirmed to Madam Leung’s status as concubine, Kit Yuen and Wai Kee as the lawful issue of the Deceased and their entitlement to a share in the Deceased’s Estate.

28.  The 1981 Application did not proceed smoothly. The Probate Registry raised altogether 13 requisitions[5].  For reason not made clear at this trial, apparently no steps had been taken by the Brothers’ Former Solicitors since about late 1982. Eventually on 24 March 2010, some 29 years later since 1981, the Brothers’ Former Solicitors[6] sought and obtained leave from the Probate Registry to withdraw the 1981 Application as Shui Yuen died on 24 November 2009[7].

29.  It was then intended that Siu Yun would replace Shui Yuen to apply as co-administrator with Chi Yuen.  It seems that some delay was caused by obtaining the documents relating to Shui Yuen’s death as he died overseas.  That regardless, there was certainly much unexplained delay.  The documents show that it was in late 2016 that Chi Yuen and Siu Yun appointed Messrs Wong, Fung & Co (“WF&C”) to replace the Brothers’ Former Solicitors; and it was under the cover of the Brothers’ Former Solicitors’ letter dated 7 March 2018[8] that the documents of the 1980 Application and the 1981 Application held by them were sent to WF&C.  Anyhow, there was no fresh application for the probate of the Deceased’s Estate by the two brothers at the time Wai Kee applied for it in 2017, as narrated below.  I would also mention that among the documents produced by the Plaintiffs was a draft Affirmation by Administrators of Chi Yuen and Siu Yun marked with the date 12 April 2010 (“2010 Draft Affirmation”), which continued to positively affirm to the status and entitlement of Madam Leung’s Family.

30.  Concerning the possession and use of the Deceased’s Land in the meantime since the Deceased’s death, (a) Lot 489AE was occupied by Madam Leung’s Family until maybe 1983 (it was not made entirely clear at the trial), (b) some units in the Deceased’s Land might have been occupied by the 3 Brothers and their families over certain periods, and (c) the remainder of the Deceased’s Land was managed and rented out by the 3 Brothers to fetch income.

31.  It is common ground that such rental income had never been accounted to or shared with (a) Kit Yuen or Wai Kee, if the distribution was governed by the arrangement per the Draft DFA (in which case Kit Yuen and Wai Kee would be entitled to Lot 511 and Lot 489AE respectively), or (b) Madam Leung (in her lifetime), Kit Yuen and Wai Kee, if the distribution was governed by the then Intestates’ Estates Ordinance. 

32.  In other words, and I find, that in the 46 years since the Deceased’s death members of Madam Leung’s Family have not received any income from or asset of the Deceased’s Estate (save living rent free for a while in No 46 Hing Lung Back Street).  Such being the case, any grievance and frustration Wai Kee might feel relating to such unsatisfactory state of affairs is understandable.

Recent events since the passing of Madam Leung

33.  Shortly before Madam Leung passed away on 23 April 2016 and since, the following events took place, which are either common ground or not seriously disputed.

34.  Since 2015, Wai Kee has been actively making searches with the Probate Registry and making enquiries with the office of the Registration of Persons.  He learned on 11 November 2015 that the 1980 Application and the 1981 Application were withdrawn[9].

35.  In early 2017 and without informing or consulting with Chi Yuen, Siu Yun or Madam Ng, Wai Kee applied for the Subject LA under HCAG001287/17 with himself as the sole administrator.

36.  Wai Kee successfully obtained the Subject LA from the Probate Registry on 20 December 2017. 

37.  Wai Kee did not inform Chi Yuen, Siu Yun or Madam Ng at the time that he was granted the Subject LA and was thereby appointed the Administrator, nor has Wai Kee communicated with them concerning any arrangements regarding the management and distribution of the Deceased’s Estate.

38.  Rather, 2 months after he became the Administrator, Wai Kee took the following rather sudden and drastic actions.

39.  Without consulting or informing Chi Yuen, Siu Yun and Madam Ng and without talking to or warning the tenants, Wai Kee issued solicitors’ letters by Ford, Kwan & Co (“FK&C”) in Chinese both dated 22 February 2018[10], which was the 7^th day of Chinese New Year (初七), respectively to the tenants of Ground Floor and 1^st Floor of No 15 Tai San Street.  The contents of the 2 letters are essentially the same.  In them, Wai Kee as the Administrator (a) stated that he did not recognize the tenancy agreements signed by these tenants with “a third party” (actual words in Chinese “第三方”), (b) demanded the tenants to vacate the premises within 30 days unless within that time they signed a new tenancy agreement with him, (c) failing which legal action would be commenced, (d) and stated that as the Administrator he was as much a victim of the action of “a third party” as the tenants were (“業主的遺產管理人與閣下一樣，也是第三方的受害者”).

40.  I pause to note that these 2 units were situated in the building erected on Lot 352, the same building the 3 Brothers and/or their families were still living.  Apparently, Wai Kee also issued similar letters to other units on Lot 352[11], but not to units on other Lots of the Deceased’s Land.

41.  A series of correspondence were then exchanged between WF&C and FK&C in March 2018.

42.  By letter of WF&C dated 1 March 2018 to FK&C[12], WF&C introduced themselves as acting for Chi Yuen and Siu Yun in applying for the probate of the Deceased’s Estate in place of the Brothers’ Former Solicitors and urgently requested for a copy of the Subject LA for consideration.

43.  In response by a short letter of FK&C dated 5 March 2018, Wai Kee did not provide to them a copy of the Subject LA.  In fact, he did not even acknowledge the request but stressed that he was the Administrator “exercising [his] power as administrator to gather the asset of the Estate”, and instead asked for confirmation whether Chi Yuen and Siu Yun were tenants/occupiers of the property. 

44.  Four days later on 9 March 2018, FK&C issued a chaser to the tenant of the Rear Portion, Ground Floor of Lot 352 demanding the tenant to move out by 24 March 2018, failing which legal proceeding would be issued[13].  It is not known whether similar chasers were issued to the tenants of Ground Floor and First Floor of Lot 352, though it seems likely they were.

45.  By WF&C’s letter dated 26 March 2018 to FK&C, Chi Yuen and Siu Yun stated that Wai Kee was born out of wedlock and was an illegitimate son of the Deceased, and also claimed that the Deceased’s Land had been adversely possessed by them for over 20 years.

46.  In April 2018, Chi Yuen, Siu Yun and Madam Ng issued a writ to commence HCA 803/2018 against Wai Kee.  In the writ, they claimed that the Deceased’s Land should devolve according to the New Territories Ordinance Cap 97 “and shall not be affected by the Grant of Administration to [Wai Kee]” or alternatively, that they had been in adverse possession of the Deceased’s Land for more than 20 years.  It is common ground that the writ of that action was never served on Wai Kee.  That action was subsequently discontinued on 2 September 2019.

47.  On 3 September 2018 and amidst such disputes, Chi Yuen passed away.

48.  On 24 January 2019, Wai Kee commenced HCMP 111/2019 naming as defendants “unknown occupiers” to recover possession of the Deceased’s Land.  The Plaintiffs stressed, which I find, that Wai Kee well knew that the Deceased’s Land has all along been managed and rented out by the 3 Brothers (or their personal representatives); and yet he did not name them as defendants.  Wai Kee’s such conduct necessitated the Plaintiffs to formally apply, which they did, to be joined as defendants there.  HCMP 111/2019 is on-going.

49.  On 2 July 2019, the Plaintiffs commenced this action.

50.  The Plaintiffs rely heavily on the above conducts of Wai Kee as showing his attitude and true intention.  I will have to return to these in due course.

Wai Kee’s application for the Subject LA, some observations

51.  It is relevant to examine the steps and positions taken by Wai Kee in his application for the Subject LA.

52.  In the initial draft affirmation submitted by Wai Kee in support of the application for the grant under HCAG 001287/17, he did not include any of the 3 Brothers as sons of the Deceased[14], but himself and Kit Yuen.

53.  This is rather surprising:

(a)  Firstly, in oral evidence he accepted that both families of the Deceased all along treated the 3 Brothers as sons of the Deceased and that hitherto for all these years, no one from Madam Leung’s Family had questioned their status as such (except Wai Kee for the first time now in this action).

(b)  Secondly, Wai Kee confirmed in oral evidence that since the time Madam Leung’s Family received the Draft DFA (which recited the 3 Brothers’ status and entitlement to the Deceased’s Estate) and was appraised of the arrangement, they had never voiced out any disagreement.

(c)  Thirdly, it is a theme in his witness statement that Madam Leung’s Family have in all the years been treated by the Deceased and the 3 Brothers as part of the Deceased’s family.  Particularly, he stated in his witness statement that (a) Madam Leung, Kit Yuen and himself together with Chi Yuen, Siu Yun and his wife hosted and attended the funeral of the Deceased (Shui Yuen and his wife were in the UK)[15], (b) Chi Yuen, Siu Yun and his wife, Shui Yuen and his wife attended his own wedding banquet held on 27 May 1980 as part of his family, and (c) at the wedding, they together with Madam Leung, Kit Yuen and his wife, he and his bride had taken a family photo together[16].

54.  By letter dated 6 March 2017, the Probate Registry raised queries concerning the existence and status of the 3 Brothers, and Wai Kee answered by letter dated 17 March 2017, thus:

Requisitions:

“ 4. 在死者及黃細死亡證第8項中Yim Chi Yuen被描述為死者的兒子, 但他並未包括在文件(1)第2段內。請闡明有關情況。

5. 請述明死者及黃世是否有其他兒女。”[17]

Answers:

“ 4. 關於不填報YIM CHI YUEN (嚴致源) 在父親及黃細死亡證被描述為死者兒子，本人是根據人事登記處，父親的登記事項證明書顯示。除本人外並沒有其他人士有父子關係紀錄。提交文件(1)第2段內指明是其合法親生兒子/女兒，由於未能確定他們的合法地位，所以並未填報其他兒女相關資料。如獲法官閣下允許，本人可補充父親其他兒女資料。

5. 父親的登記事項證明書証明本人與死者的父子關係，並沒顯示其他兒女資料。黃細有三名兒子。分別是嚴致源、嚴紹源及嚴瑞源。嚴潔源和本人為梁東所生。相關資料可在撤回檔案編號HCCV00907/81尋回，另附上1982年家庭協議書文稿。”[18] (my emphasis)

55.  I would interject and express my view that I do not find Wai Kee’s explanation to the Probate Registry as to why he initially did not mention the 3 Brothers or state that the 3 Brothers were entitled to a share in the Deceased’s Estate was a genuine or satisfactory one.  Of course, this court now has the benefit of the materials and evidence before me, including seeing and hearing Wai Kee gave evidence, which the Probate Registry did not.  I take the above view because :

(a)  The Deceased’s 登記事項證明書[19] merely stated that it gave the information regarding “由他 [the Deceased] 代為申請登記兒童身份證的子女姓名”. It never purported to give the information regarding all the Deceased’s children.  Having seen and heard Wai Kee giving evidence, I have no doubt that at the time he fully knew and understood the limited ambit of what that 登記事項證明書 certificated.

(b)  Kit Yuen was not mentioned in the Deceased’s said 登記事項證明書, yet Wai Kee regarded him as a lawful son of the Deceased.

(c)  Wai Kee said that because information of the 3 Brothers were not contained in the Deceased’s said 登記事項證明書, it could not be confirmed that they were lawful children of the Deceased. Yet, upon the query raised by the Probate Registry, he immediately (i) enclosed the Draft DFA to the Probate Registry (in which was stated that the 3 Brothers were lawful sons and persons entitled), and (ii) readily accepted and affirmed on oath, without further new material or proof, that the 3 Brothers were the Deceased’s lawful sons entitled to a share in the Deceased’s Estate.

(d)  The above 3 matters, when put together, show that his explanation was not genuine.

56.  Moreover, I am also unfavourably impressed by Wai Kee immediately, when queried, produced the Draft DFA to the Probate as “1982年家庭協議書文稿” but without any inkling whatsoever that, in stark contrary, he in fact hotly and strenuously disputes that such an arrangement or agreement was valid or had been reached, which is his position vehemently and repeatedly emphasized to me at this trial.  In my view, in so doing he gave a false impression to the Probate Registry that what was stated to have been agreed as per the Draft DFA was accepted by all concerned, including him.  I also think that the provision of the Draft DFA and its contents softened the otherwise more stringent requirement of the Probate Registry for further proof to substantiate the concubinage (Requisition 3[20]) and for further explanation regarding the fact that Kit Yuen and Wai Kee were born before the date of the Ceremony and yet were regarded as legitimate children (Requisition 11[21]).

57.  Returning back to Wai Kee’s application, as requested by the Probate Registry and importantly, Wai Kee then filed his affirmation dated 16 November 2017[22] in which he affirmed on oath that the 3 Brothers together with Madam Leung, Kit Yuen and himself were the only persons entitled to a share in the Deceased’s Estate and that the 3 Brothers were the Deceased’s lawful sons (合法親身兒子) (“Wai Kee’s Probate Affirmation”).  On the basis of this affirmation, among others, Wai Kee was granted the Subject LA.

Estoppel by convention; the Plaintiffs abandoning certain contentions

58.  Amongst the supporting documents and affirmations filed into the Probate Registry by Chi Yuen and Shui Yuen for the 1980 Application and the 1981 Application were (a) Madam Leung’s Renunciation filed on 12 August 1980 (b) An Oath by Administrator of Chi Yuen filed on 12 August 1980[23], (c) Oaths by Chi Yuen and Shui Yuen as Administrator filed on 4 April 1981[24], (d) Madam Leung’s affirmation deposing to the Ceremony[25], (e) affirmation of Wong Heung also deposing to the Ceremony[26], and (f) affirmation of Wong Kam Ling filed on 3 July 1981 deposing to the fact that Madam Leung was accepted by Madam Wong as concubine[27].

59.  As shown by their contents, and it is indisputable, that all these documents either directly or indirectly affirmed and represented to the Probate Registry that the Ceremony was valid, that Madam Leung was recognised as a concubine since 1944, that Madam Leung was a lawful concubine of the Deceased, that Kit Yuen and Wai Kee were lawful sons of the Deceased, that Madam Leung, Kit Yuen and Wai Kee were among those entitled to a share in the Deceased’s Estate.  Moreover, the same stance was maintained in 2010 Draft Affirmation.

60.  Further still, it is the Plaintiffs’ case that the arrangement/agreement as per the Draft DFA is a valid and enforceable one, and therefore that it was based on the recognitions therein contained and the intended distribution that Madam Leung executed Madam Leung’s Renunciation.

61.  In the course of trial, this court drew the attention of both parties to the principles of estoppel set out below and invited both parties to address the court in their final submissions as to whether both parties would be estopped from pursuing now their various contentions against the status and entitlement of each other, and if not so estopped, why not.

62.  In the Court of Final Appeal case of Unruh v Seeberger [2007] 2 HKLRD 414, Ribeiro PJ, whose judgment the other 4 members of the court agreed, set out the statements of principles of estoppel by convention :

“ D.2 Estoppel by convention: statements of principle

129. Statements of principle by Dixon J in two cases in the Australian High Court in the 1930’s have proved extremely influential in the development of estoppel by convention in the common law world.[98] In Thompson v Palmer,[99] he identified an estoppel founded on an “assumption [which] formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment” as a distinct species of estoppel in pais (by conduct) at common law, stating:

‘ The object of estoppel in pais is to prevent an unjust departure by one person from an assumption adopted by another as the basis of some act or omission which, unless the assumption be adhered to, would operate to that other’s detriment. Whether a departure by a party from the assumption should be considered unjust and inadmissible depends on the part taken by him in occasioning its adoption by the other party. He may be required to abide by the assumption because it formed the conventional basis upon which the parties entered into contractual or other mutual relations, such as bailment; or because he has exercised against the other party rights which would exist only if the assumption were correct, [as in the authorities cited[100]] ... or because knowing the mistake the other laboured under, he refrained from correcting him when it was his duty to do so; or because his imprudence, where care was required of him, was a proximate cause of the other party’s adopting and acting upon the faith of the assumption; or because he directly made representations upon which the other party founded the assumption.’

130.  In Grundt v The Great Boulder Proprietary Gold Mines Ltd,[101] his Honour explained the object of this estoppel:

‘ The principle upon which estoppel in pais is founded is that the law should not permit an unjust departure by a party from an assumption of fact which he has caused another party to adopt or accept for the purpose of their legal relations. ...... One condition appears always to be indispensable. That other must have so acted or abstained from acting upon the footing of the state of affairs assumed that he would suffer a detriment if the opposite party were afterwards allowed to set up rights against him inconsistent with the assumption. ... [The basal purpose of the doctrine] ... is to avoid or prevent a detriment to the party asserting the estoppel by compelling the opposite party to adhere to the assumption upon which the former acted or abstained from acting. This means that the real detriment or harm from which the law seeks to give protection is that which would flow from the change of position if the assumption were deserted that led to it.’

131.  By 1998, in The “Indian Endurance”, Lord Steyn was able to state that the doctrine was well-settled:

‘ It is settled that an estoppel by convention may arise where parties to a transaction act on an assumed state of facts or law, the assumption being either shared by them both or made by one and acquiesced in by the other. The effect of an estoppel by convention is to preclude a party from denying the assumed facts or law if it would be unjust to allow him to go back on the assumption.[102] It is not enough that each of the two parties acts on an assumption not communicated to the other. But it was rightly accepted by counsel for both parties that a concluded agreement is not a requirement for an estoppel by convention.’[103]”

63.  The learned PJ then explained and set out the required elements in some details.  They have been succinctly summarized by Lord Collins of Mapesbury NPJ in the subsequent Court of Final Appeal case of First Laser Ltd v Fujian Enterprises (Holdings) Co Ltd And Another (2012) 15 HKCFAR 569, thus :

“ 79. In Unruh v Seeberger (2007) 10 HKCFAR 31 Mr Justice Ribeiro PJ re-stated the essential elements of an estoppel by convention:

(1) the parties entered into some transaction or legal relationship on the basis of an assumption that was shared by or common to them both, and it was the element of commonality of the assumption that marked out estoppel by convention as a distinct form of estoppel [133];

(2) it must be shown that assumption was communicated between the parties and acted upon, and there must be some mutually manifest conduct by the parties [135];

(3) there was no necessity for the parties to believe that the assumed state of affairs was true, nor was there any necessity for the parties to have been mistaken [136];

(4) what is important is for them to act in the belief, manifested by words or conduct, that they are both proceeding with the transaction on the basis of the same shared assumption [137];

(5) the contents of the common assumption must be sufficiently certain to enable the court to give effect to it [138];

(6) estoppel by convention is concerned with a common assumption relied upon as a basis upon which the persons sharing such assumptions enter into a transaction or legal relationship [142]; and

(7)  there must be an attempt by one party to depart from the common assumption which departure would be unjust because of the part taken by him in occasioning its adoption by the other party, and the other party would suffer detriment arising out of his having entered into the relevant transaction on the basis of the common assumption if the opposite party were afterwards allowed to set up rights inconsistent with the assumption [150].”

64.  In their final submissions, the Plaintiffs, in my view rightly and very sensibly, indicated that they would, and they did, abandon their contentions that the Ceremony was invalid, that Madam Leung was not a lawful concubine, that Wai Kee is not a lawful or natural son of the Deceased.

65.  Wai Kee maintained his challenges to the 3 Brother’s status and entitlement and said that he should not be estopped.

Wai Kee’s Counterclaim

66.  I therefore turn next to consider Wai Kee’s Counterclaim.

67.  To begin with and for completeness, I need to mention that Wai Kee’s Counterclaim in fact includes claims for various reliefs of damages, accounts, interests, payments into court and such, based on his numerous accusations against the 3 Brothers, including “unlawful use” and “stealing” of the Deceased’s Estate, “conspiracy to rent out the Deceased’s Land at undervalue” and “using false documents” and such.  He was explained by the court in the opening stage of this trial and accepted that his such accusations are matters separate and distinct from the present probate disputes, and therefore could and should be properly pursued as such separately and afterwards.

68.  Wai Kee’s case in challenging the status and entitlement of the 3 Brother consists of essentially the following 5 allegations or contentions.

69.  Firstly, despite the said background matters and his contrary affirmation to the Probate Registry, nevertheless he is entitled now to deny and challenge the status and entitlement of the 3 Brothers because as “the only lawful administrator, he has the responsibility to verify the status of every beneficiary” (actual words in Chinese “被告人為死者唯一合法遺產管理人，有責任核實所有合法遺產受益人身份”[28]). 

70.  Secondly, he did not accept as true or proper proof (i) the中國出生證明書 issued by 广州市白云区新市街棠涌經济联合社dated 20 September 2017[29] in respect of the birth of Chi Yuen as son of the Deceased and Madam Wong, and (ii) the 公証书issued by 广东省广州市公証處in respect of the birth of Siu Yun as son of the Deceased and Madam Wong[30], because they have not been notarized or endorsed by the Chinese Foreign Ministry.

71.  Thirdly, in the Oaths by Chi Yuen and Shui Yuen as Administrator filed on 4 April 1981, there appeared certain apparent amendments in and after paragraph 4 thereof in this manner[31]:

“ 4. The said deceased had no kit fat widow and relic other wife other than the said Wong Sai and ^ had no other concubine other than the said Leung Tung.

4(a) **”

[at the top margin] “** The said Wong Sai (黃細) deceased was the natural and lawful mother of the said Yim Chi Yuen, Yim Shiu Yuen otherwise known as Yim Siu Yun Yim Shui Yuen and the said Leung Tung is the natural and lawful mother of Yim Kit Yuen and Yim Wai Kai . Who married the said deceased on the 10^th day of March, 1938.”

Wai Kee thus said that the Deceased married Madam Wong in 1938 and Chi Yuen (born in 1932) and Siu Yun (born in 1936) therefore were born out of wedlock.

72.  Fourthly, because the birth of Shui Yuen was only registered with the Birth and Death Registry, Hong Kong on 13 October 1960, when Shui Yuen was born on 21 October 1942 and his Birth Certificate[32] contained the remark “CONSENT OF REGISTRAR OF BIRTHS & DEATHS OBTAINED VIDE B & D (N.T.S.) 2/60/122”, Wai Kee suspected and then concluded that Shui Yuen was not the natural son of the Deceased and Madam Wong, even though their names appear in the Birth Certificate as Shui Yuen’s father and mother.  He contended that the Birth Certificate was issued pursuant to section 12(2)(d)(ii) of Births and Deaths Registration Ordinance Cap 174, which section concerns registration of father of illegitimate children.

73.  Fifthly, he said the address of birth recorded in Shui Yuen’s Birth Certificate, namely 7 Chung Hing Street, Ground Floor, Cheung Chau was false, in that the land search of Cheung Chau Lot No 1557[33] (where that address was situated) shows that the first registered document was a Letter of Modification in 1979.  Thus he contended that there was no building erected thereon prior to that year and therefore the address false, which showed that what was reported was untrue, and therefore the reported parenthood of the Deceased and Madam Wong was also false.

74.  Having accepted that they themselves have been estopped by convention, the Plaintiffs submitted that Wai Kee was equally estopped from raising these challenges.  Wai Kee submitted that he should not be, but unsurprisingly, was not able to take the matter much further and said that he would leave the court to adjudicate.

75.  In my view, and I so hold, that this is a clear case that Wai Kee is estopped by convention from raising these challenges.

76.  Firstly, as clearly evident by (i) the affirmations and documents submitted by Chi Yuen and Siu Yuen, (ii) the affirmations and documents submitted by Wai Kee to the Probate Registry (including the Draft DFA), (iii) the Draft DFA and Madam Leung’s Renunciation, and (iv) the fact that Madam Leung’s Family have for decade did not voice out any disagreement regarding the arrangement and the Draft DFA, there is no doubt that all the relevant parties, including Wai Kee, have been sharing the basis, or the assumption, that the 3 Brothers, Kit Yuen and Wai Kee were the lawful issue of the Deceased entitled to a share in the Deceased’s Estate and Madam Leung was the lawful concubine entitled to a share in the Deceased’s Estate.  For convenience, I will call this basis or assumption “the Common Entitlement Understanding”.

77.  Secondly, all relevant parties clearly have entered into some transaction or legal relationship and have acted on the basis of the Common Entitlement Understanding in that (a) Madam Leung did not apply for the Letters of Administration in priority over the 3 Brothers, Kit Yuen and Wai Kee, (b) Madam Leung executed Madam Leung’s Renunciation and allowed it to be filed with the Probate Registry, (c) Chi Yuen and Siu Yun applied as co-administrators, (d) Chi Yuen and Siu Yun filed papers with the Probate Registry affirming the entitlement of members of Madam Leung’s Family, and (e) no one from Madam Leung’s Family disputed or challenged the status and entitlement of the 3 Brothers, or the application by Chi Yuen and Siu Yun.

78.  Thirdly, Wai Kee has clearly attempted, most belatedly and recently, to depart from the Common Entitlement Understanding and his such departure is, in my view, clearly unjust and would cause clear detriment to the 3 Brothers (or their estates) who have been conducting themselves according to the Common Entitlement Understanding, in that:

(a)  Having acted on the basis of the Common Entitlement Understanding for more than 4 decades without any dispute whatsoever, the 3 Brothers or the Plaintiffs are now totally unable to be prepared to answer the challenges only now raised by Wai Kee in that

(i)  Chi Yuen and Shui Yuen are now deceased and the Plaintiffs are in no position to understand or explain the apparent amendments in their Oaths mentioned in paragraph 71 above.

(ii)  All potential witnesses who might have been able to speak about the marriage situation of the Deceased and Madam Wong, or the existence of whatever documentary evidence related thereto, or about the births of Chi Yuen and Siu Yun, were long dead by now.

(iii)  Had any one from Madam Leung’s Family indicated that they would raise the disputes Wai Kee now raises, the 3 Brothers might very well be able to proffer such explanation, to produce witnesses or documentary evidence in support of their status and entitlements, which opportunity they (or their estates) are now deprived.

(b)  Based on and pursuant to the Common Entitlement Understanding, the 3 Brothers accepted in the papers filed for the 1980 and the 1981 Application that Madam Leung and the Deceased started co-habiting in 1944 and that though Kit Yuen and Wai Kee were born after the Ceremony, they were regarded as, and there was no dispute that they were, legitimate sons born of the concubinage.

(c)  When applying for the Subject LA, Wai Kee in his letter dated 17 March 2017[34] referred the Probate Registry to, and he relied on, the papers in the 1981 Application.  As mentioned, Wai Kee readily produced the Draft DFA to the Probate without any indication that he actually disputed it.  Thus, recently and in order to obtain the Subject LA, he himself in effect also acted on and presented the Common Entitlement Understanding to the Probate Registry.

(d)  Moreover, Wai Kee advanced to the Probate Registry the contention essentially that because of the chaotic and unsettled situation of the 1940s and 1950s, Madam Leung’s concubinage in fact existed before the births of Kit Yuen and himself, but the concubinage was only fully or formally recognized by the Ceremony.  This contention was accepted by the Probate Registry.  Equally, the same situation might very well be the case with the marriage of the Deceased and Madam Wong.  It would be entire unfair that Wai Kee himself is allowed to advance and be benefitted from this contention, while he seeks to contest strenuously similar contentions by the 3 Brothers.

79.  Fourthly, I do not accept Wai Kee’s submission that as the Administrator he has the “responsibility”, and therefore the authority, to “verify” the entitlement of potential beneficiaries, and he therefore could completely disregard the position he has hitherto taken all along and completely disregard his own affirmation evidence in Wai Kee’s Probate Affirmation, and take a different position anew.  Wai Kee’s such contention on the role and authority of an administrator is clearly wrong in law.  The duties of an administrator are to gather and protect the assets, paid the just debts and liabilities, and then to distribute the assets to the persons he has affirmed to as beneficiaries according to the share of their entitlement as provided by the Intestates’ Estates Ordinance.  It is therefore not his role or authority to examine anew to satisfy himself, as if he were the Probate Registry, regarding the status of the 3 Brothers.  Indeed, their status has been proved, among others, by Wai Kee himself by his own affirmation evidence filed with the Probate Registry which the Probate Registry has accepted.

80.  For completeness, I would also express my view that Wai Kee’s contention that Shui Yuen was an illegitimate child based on the remark in his Birth Certificate is clearly misconceived and completely unmeritorious.  As mentioned, the Birth Certificate itself on its face certified that Shui Yuen was begotten by the Deceased and Madam Wong.

81.  Wai Kee said that the remark “CONSENT OF REGISTRAR OF BIRTHS & DEATHS OBTAINED VIDE B & D (N.T.S.) 2/60/122” showed that the Birth Certificate was issued pursuant to section 12(2)(d)(ii) of Births and Deaths Registration Ordinance Cap 174[35], which provides as follows, and I will also quote section 12(3) as well :

“ 12. Registration of father of illegitimate child

(1) Notwithstanding sections 7 to 10, in the case of an illegitimate child—

(a) … ; and

(b) there shall not be registered in the register the name of any person as father of the child, except in the circumstances provided in subsection (2).

(2) The circumstances referred to in subsection (1)(b) are—

…

(d) at the request of the mother or that person on production of—

(i) a certified copy of a relevant order; and

(ii) if the child has attained the age of 16 years, the written consent of the child to the registration of that person as his father.

(3) In this section and in section 12A, relevant order (有關命令), in relation to a request under subsection (2)(d) that the name of any person be entered in the register as father of a child, means any of the following orders, namely—

(a) a declaration of a court under Part IV of the Parent and Child Ordinance (Cap 429) that the person is or was the father of the child;

(b) an order of a court under the Guardianship of Minors Ordinance (Cap 13)—

(i) under Section 3(1)(d) granting that person any right or authority in relation to the child;

(ii) under Section 10(1) granting that person custody of or access to the child; or

(iii)  under Section 10(2) requiring that person to make any lump sum or periodical payment in respect of the minor. (Amended 32 of 2000 s. 14)”

82.  Section 12(2)(d)(ii) requires the production of a relevant order as defined in section 12(3) and the consent of the child.  The consent mentioned in the said remark was the consent of the Registrar of Births & Deaths, and not that of Shui Yuen, and there was no suggestion anywhere that an order under section 12(3) had been made.  Therefore, the consent was not referable to section 12(2)(d)(ii).  Rather, I accept Mr Tsui’s submission that the consent of Registrar of Births and Deaths remarked there was in all likelihood referable to the consent to register a birth after the expiry of 12 months required under section 9(3) of Births and Deaths Registration Ordinance Cap 174. 

83.  Wai Kee’s contention that the address of birth stated in the Birth Certificate was false was clearly a conjecture at its highest.  As common on many pieces of land in the New Territories prior to 1960s, huts and temporary residential structures were erected though they were not allowed by their permitted use, and modification of the use was only applied for in the 1970s.  In any case, the fact that the first entry in the Land Registry was a Letter of Modification in 1979 is hardly proof that there could not have been temporary, or even unauthorized, structure erected prior.

84.  In the premises, I dismiss Wai Kee’s counterclaim relating to the challenges against the 3 Brothers’ status and their entitlement to the Deceased’s Estate. 

Revocation of the Subject LA

85.  Section 33(1) of the Probate and Administration Ordinance provides :

“ (1) Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.”

86.  As have mentioned, Mr Tsui now argued the Plaintiffs’ case for revocation along the line that Wai Kee falsely represented to the Probate Registry that he would faithfully and truly administer the Deceased’s Estate when in fact his true intention was to get back at the 3 Brothers and to deny them their due shares.

87.  I have carefully heard the parties’ oral submissions and oral evidence.  I have also carefully considered all the evidence and the parties’ respective case challenging each other’s status and entitlement.  I have also carefully considered the available documents relating to Wai Kee’s application for the grant of the Subject LA and have made some observations above.  After careful consideration and deliberation, I come to the following assessments and findings, for the reasons stated :

(a)  At the time when Wai Kee applied for the Subject LA and when he affirmed Wai Kee’s Probate Affirmation, he did not genuinely or in good faith hold as factually true, or hold the belief, or accept, that the 3 Brothers were lawful sons of the Deceased and were entitled to a share of the Deceased’s Estate.

(b)  He affirmed to them in Wai Kee’s Probate Affirmation only as a means to successfully obtaining the Subject LA.

(c)  I so find in sub-paragraphs (a) and (b) above because

(i)  I find that the initial omission in his draft affirmation of the 3 Brothers as sons of the Deceased and as persons entitled to a share in the Deceased’s Estate was intention (see what I said in paragraph 53 above);

(ii)  When queried by the Probate Registry, he gave an explanation that was not genuine (see what I said in paragraph 55 above);

(iii)  After being queried, he quickly and readily changed his stance and affirmed to the 3 Brothers’ status and entitlement, and produced the Draft DFA to the Probate Registry giving it the false impression that he did not dispute the Draft DFA;

(iv)  However, about 2 months after he obtained the Subject LA, when the present disputes have not yet arisen, he acted completely opposite to what he affirmed.  In the solicitors’ letters he issued to evict the tenants of Lot 352 and in commencing HCMP 111/2019, he acted towards the 3 Brothers antagonistically and treating them as complete strangers in relation to the Deceased, or the Deceased’s Land.

(v)  During oral evidence, Wai Kee has been asked directly by this court several times whether he regarded the 3 Brothers as lawful sons of the Deceased and persons entitled to a share in the Deceased’s Estate.  He hesitated and struggled, but then in effect said he did not.

(d)  I find that Wai Kee has not acted in good faith to administer the Deceased’s Estate after he obtained the grant of the Subject LA.  My reasons for so finding are :

(i)  Almost immediately after he obtained the Subject LA and when the present disputes have not yet arisen, he treated the 3 Brothers (or their estates), whom he just months ago affirmed in Wai Kee’s Probate Affirmation as beneficiaries, antagonistically as total strangers as aforesaid.

(ii)  2 Months after he obtained the Subject LA, he took the drastic (and costly) action of issuing the said solicitors’ letters without any prior communications or discussions with the beneficiaries, namely the 3 Brothers.  Such drastic action was totally uncalled for and unjustified by the circumstances, and though strictly speaking within the authority of the Administrator, were in my view not action that was conducive to the due and proper administration of the Deceased’s Estate.

(iii)  Issuing the solicitors’ letter selectively as against the sitting tenants of Lot 352 only was, in my view, an act to embarrass or to make a statement against the 3 Brothers in front of the local communities, and not conducive to the due and proper administration of the Deceased’s Estate.

(iv)  In the course of trial, Wai Kee has spoken to the court more than once words to the effect that he wanted to get back justice against the mistreatments the 3 Brothers had given to Madam Leung.

(e)  Having considered and dealt with the various contentions raised by Wai Kee and having heard him, and though he claimed that he wanted to abide by the law, I come to a clear view that he has been assuming and interpreting and acting according to the law and using the authority of the Administrator as he subjectively understood it and so long as it was against the interest of the 3 Brothers.  In other words, my view is that he has been using the law, or even twisting it or its application, as his own tools to achieve his personal end.

88.  In the round, I come to the conclusion that the Plaintiffs have successfully proved, on balance of probabilities, their case that what Wai Kee affirmed to in Wai Kee’s Probate Affirmation that he would faithfully and truly administer the Deceased’s Estate was not true and was not made in good faith; when his true and main intention was to get back at the 3 Brothers and to deny them their due shares.

89.  In the course of the trial, this court has discussed with the Plaintiffs that even if their such case were made out, the appropriate procedure perhaps was to remove Wai Kee as the Administrator under section 33(3) of the Probate and Administration Ordinance, which however is presently not part of the Plaintiffs’ case.  Section 33(3) provides

“ (3) The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.”

90.  In Mak Mei Ki Angela v Chan Wai Fong & Another[36], Au-Yeung J had an occasion to discuss the working of sub-section (1) – revocation of grant as opposed to sub-section (3) – removal of an executor or administrator, and the proper approach to the application of these 2 sub-sections.  There, the learned Judge cited as correct the approach elucidated by an earlier judgment of Poon J (as the CJHC then was), thus:

“ 7. Section 33(1) applies to revocation of grant. Section 33(3) applies to removal of an administrator. The proper approach to the application of these 2 sub-sections have been set out in Re Estate of Kwan Chung [2013] 6 HKC 29, Poon J (as he then was):

‘ 25. … Where there is a supervening defect after grant, the applicant should consider:

(1) Whether removal of the grantee without revocation of the grant is sufficient. If yes, then he should proceed under section 33(3).

(2) Whether there are additional special circumstances that require revocation of the grant as well. If such circumstances exist, then he should proceed under section 33(1).

26. What constitute the requisite circumstances justifying revocation in addition to removal must depend on the actual facts of the case … They include … disappearance of the grantee who had not administered the estate …’

8.  A supervening defect after grant occurs “where a grant has been properly made, but has subsequently become ineffective and useless; or which, if allowed to subsist, would prevent the proper administration of the estate.”  (Tristram and Coote’s Probate Practice, 13th edition, at §17.09)”

91.  Very pertinently, the learned Au-Yeung J continued to cite as correct the further observation of Poon J (as he then was) in Re Estate of Kwan Chung [2013] 6 HKC 29:

“ 9. The court can revoke a grant if the grant has turned out abortive or if the persons appointed will not administer:

‘[The] real object which the Court must always keep in view is the due and proper administration of the estate and the interests of the parties beneficially entitled thereto; and I can see no good reason why the Court should not take fresh action in regard to an estate where it is made clear that its previous grant has turned out abortive or inefficient.  If the Court has in certain circumstances made a grant in the belief and hope that the person appointed will properly and fully administer the estate, and if it turns out that the person so appointed will not or cannot administer, I do not see why the Court should not revoke an inoperative grant and make a fresh grant.’  Re Estate of Kwan Chung, at §12”

92.  I consider the observation of Poon J (as he then was) and Au-Yeung J quoted in the preceding paragraph particular apposite and should be applied to the facts of this case.

93.  Though the Subject LA was otherwise validly granted, but in view of my findings set out in this section, I am satisfied that it has been made clear and shown that the Subject LA have been obtained not for the faithful and proper administration of the Deceased’s Estate, but for the pursuance of a personal vindictive agenda.  In the circumstances, I am also satisfied that the court should revoke the Subject LA and make a fresh grant.  I will so order.

Who to appoint as the Administrator

94.  In the course of trial, I have discussed with the parties that in case I were minded to revoke the grant,

(a)  Siu Yun might not be the appropriate candidate to be appointed in place of Wai Kee, which was not seriously disputed by the Plaintiffs.  That was so because Siu Yun was already 87 years old and he also clearly indicated that he did not accept Wai Kee as a lawful son of the Deceased. 

(b)  Peter, the son of Chi Yuen, was the more suitable candidate.  The Plaintiffs agreed and Wai Kee did not contest otherwise.

(c)  Peter, who was present at trial, has indicated that he was willing to act as the Administrator on the basis of the Common Entitlement Understanding.

95.  In the premises, I will appoint Peter as the Administrator, subject to him fulfilling all the procedures and requirements of the Probate Registry.

Other matters

96.  During final submissions, Wai Kee asked for an order that the Plaintiffs’ do render a full and perfect account of the Deceased’s Estate and yield vacant possession of the Deceased’s Land.  The court then tentatively heard submissions from the parties relating to the granting of these orders.  The Plaintiffs indicated that they would in due course take out proceedings to enforce the arrangement as per the Draft DFA, and if the grant were not revoked, to also seek removal of Wai Kee under section 33(3).  On that basis, the Plaintiffs orally asked for a stay of the order for an account and for vacant possession, if I were minded to grant them, pending the outcome of the intended proceedings.  On the invitation of this court, the Plaintiffs also indicated that they were prepared to give an undertaking to commence the intended proceedings within 3 months of this judgment.

97.  As I am now revoking the grant, the question of these orders falls away and, for the avoidance of doubt, the Plaintiffs are considered as not having given the undertaking.  Evidently though, Peter, once appointed as the Administrator, has the duty under general law to render an account of the Deceased’s Estate.

Disposal

98.  In the premises, I give judgment to the Plaintiffs.  I also dismiss the Counterclaim in so far as it relates to any disputes over the status of the 3 Brothers and their entitlement to a share in the Deceased’s Estate, but without prejudice to Wai Kee disputing other matters relating to the administration thereof, which are not the subject of decision here.

99.  I order:

(a)  The Letters of Administration of the estate of YIM HO (嚴浩) alias YIM HO PUI (嚴浩培) otherwise known as IM HO PUI (嚴浩培) granted to the Defendant under HCAG001287/2017 on 20 December 2017 be revoked;

(b)  If the Defendant has not already done so, that he brings in the said Letters of Administration to the Probate Registry for revocation within 21 days; and

(c)  Subject to the 1^st Plaintiff satisfying the requirements and procedures of the Probate Registry, that the Letters of Administration of the said estate of Yim Ho be granted to him.

100.  On costs, even though the Plaintiffs successfully revoke the grant, they have withdrawn their case against the status and entitlement of Madam Leung and Wai Kee, which seems to me took up a major part of the evidence and the parties’ preparation; and this court disapproves of the long and inordinate delay of the 3 Brothers in obtaining a grant while in these long 46 years effectively denying Madam Leung’s Family any part in the Deceased’s Estate.  Considering the matters in the round, my tentative view is that the just and fair order is no order as to costs.  I so order on a nisi basis, which will become absolute in 21 days unless any party applies by summons for variation within that time.

101.  This judgment was written in English after the court has enquired with Wai Kee who indicated that he has no view against it. As mentioned to him, Wai Kee may at the time of the hand down of this judgment arrange with my clerk for the oral interpretation of this judgment to him in the court premises at a convenient time in due course.

102.  I thank Mr Tsui and Wai Kee’s assistance given to this court.

Way forward

103.  Though not compelled by any undertaking, the Plaintiffs would, this court hopes and trusts, henceforth speedily and without any further delay take such necessary steps leading to the resolution of any remaining disputes the parties might still have in relation to the Deceased’s Estate such that all beneficiaries, particular members of Madam Leung’s Family might materially, and maybe equally importantly as a matter of acknowledgment, partake in the Deceased’s Estate.  An interim account and distribution seem amply appropriate and should be most seriously considered.

104.  As mentioned to Wai Kee, his other matters relating to the administration of the Deceased’s Estate should and could be ventilated under the procedures as provided by Order 85 of the Rules of High Court.  This court however hopes that Wai Kee, though grievance he might have, would revisit his previous allegations with a heavy dose of moderation.