HO WAI YIN AND OTHERS v. CHENG SUET YEE

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

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J U D G M E N T

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1.  Yesterday, I made an order in favour of an application by the Plaintiffs to enter judgment on admission against the Defendant.  At today’s hearing, Mr Miu, representing the Defendant, asks me to re-consider my order.  The order that I made yesterday not having been drawn up yet, there is certainly jurisdiction on the part of the Court to do so; however, the jurisdiction and discretion must be exercised judicially.

2.  Mr Miu asks me to consider and balance the respective prejudices to the parties in deciding whether to allow his client to resile from the admissions contained in the correspondence.  That was something that I had done yesterday before I decided in favour of the Plaintiffs’ application and indeed I specifically mentioned balancing the respective prejudices to the parties in my judgment.  In the process I had, as I said, taken into account, amongst other things, the merits of the Defendant’s claim that she is a natural daughter of the deceased based on the limited materials before the court.

3.  This approach is consistent with what the learned editors said in Hong Kong Civil Procedure 2004, vol. 1, para. 27/3/9, where they pointed out that whether the party seeking to resile from the admission has a triable issue with reasonable prospects of success is a relevant factor to be taken into account.  But apart from that factor, which I have fully taken into account, I have also taken into account the question of injustice to the other party and the question of bad faith.

4.  In making his application this morning, Mr Miu says to the Court that if the Court should allow the Defendant to resile from her admissions, she would make the same concession that she is not a natural daughter of the deceased on the first day of the trial (and an undertaking to that effect was offered), on the condition that the Plaintiffs do not make any application for judgment on the admission in the interim.

5.  This confirms what I have all along been suspecting, although I did not say it expressly in my judgment yesterday, i.e. that the true reason for the U-turn of the Defendant’s stance is this: when she made the admissions in the correspondence, she was eager for reasons of her own to avoid the further DNA test; she did not realise that by making the admissions the other side could apply for judgment on admission against her for the revocation of the grant.  The Defendant only realised this implication when the Plaintiffs took out the present summons for judgment on admission.  Thereafter, the Defendant’s stance changed.

6.  All this is evidenced by what has been offered before me this morning and in fact that has been confirmed by Mr Miu himself during the submission this morning.

7.  What the Defendant seeks to achieve is twofold: (1) the defeating of my order for taking of samples for a further DNA test; and (2) the avoidance of the revocation of the grant in the meantime.  It seems plain to me that the issue of whether the Defendant is a natural daughter of the deceased is, as it were, open to bargain.

8.  In an application to resile from an admission, the court must be satisfied that there is no question of bad faith involved.  As I pointed out yesterday, and as I have just pointed out, the Defendant has been less than frank in revealing to this Court the true reason for the U-turn.  That, according to Hunter J, is a powerful factor against the grant of an application for withdrawal of an admission.  See Tse Yuk Tin v Chee Cheung Hing & Co. Ltd [1984] HKLR 391.  Of course that is not a conclusive factor by itself but nonetheless it remains a powerful factor against the application for withdrawal.

9.  Moreover, as I pointed out to Mr Miu during his submission yesterday, the alternative arguments that the Defendant is a natural daughter of the deceased and that she is a lawful adopted daughter of the deceased are, by definition, mutually exclusive.  It is plain from the admissions contained in the correspondence, as well as the undertaking offered by Mr Miu this morning in conjunction with his renewed application for withdrawal of admission, that the true case of the Defendant is that she is a lawfully adopted daughter of the deceased couple, which is mutually inconsistent with a case of natural daughter.

10.  Of course, I appreciate that even in relation to factual matters, a party may run alternative cases; but here I am concerned with, amongst other things, whether the Defendant is being shut out from raising a triable issue with reasonable prospects of success.

11.  I have borne everything in mind.  I have come to the following two conclusions: (1) I refuse the application to reopen the matter; (2) even if I were to accede to the application and reconsider the matter, in the exercise of my discretion, I would refuse the application for withdrawal.

12.  I should add that the whole application is really a tactical move to enable the Defendant to hold on to the grant of letters of administration which, given her stance in this litigation that she is not a natural daughter of the deceased, ought not to have been issued to her in the first place.  I do not see that as a good justification for the withdrawal application.