RE CHUNG CHING WAN

HCEA000118/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO. 000118 OF 2009

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J U D G M E N T

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1.  This is another application for setting aside some requisitions raised by a probate master in an application for grant. The Deceased died in 1995 in Taiwan. He was domiciled in Taiwan and his estate comprised of movable properties in Hong Kong. Despite the death occurred in 1995, the Applicants only applied for grant in Hong Kong in 2009. According to records on the court file, the application was filed on 17 November 2009 and it was re-sworn and re-filed on 8 June 2010. The solicitor acting for the Applicants applied to this court by a summons seeking the following relief,

(a)  The decision of the master on 13 July 2010 be set aside;

(b)  The requirement for the Applicants to comply with requisitions (a) to (e) raised by the master on 10 February 2010 be dispensed with;

(c)  The Letters of Administration in respect of the above estate be granted to the Applicants.

2.  Similar applications were entertained by this court previously. They were treated as appeals against the decision of master under Rule 62(1) of the Non-Contentious Probate Rules [“NCR”] (see for example Re Estate of Cheung Hung [2011] 1 HKLRD 455). However, the NCR do not set out the procedural steps an applicant must comply with (other than stating that the appeal is to be brought by summons) before he or she could lodge an appeal. In my view, for the sake of the proper, fair and efficient conduct of probate business, there is a need for some procedural guidelines to be given and I shall deal with it at the outset of this judgment.

3.  What had happened in these instances was that the solicitor for the applicants entered into correspondence with the probate master regarding the relevant requisitions. When the master disagreed with the solicitor’s arguments and informed him by letter, the solicitor took out a summons seeking the relief as outlined above. There had not been any hearing before the master and it was not suggested to the master that the Applicants intended to appeal to this court. Thus, understandably, the master did not give any reasoned decision explaining in full the rationale for the requisitions.

4.  In my judgment, the course adopted by the solicitor is unsatisfactory and not conducive to the proper, fair and efficient conduct of probate business. I shall explain why.

5.  By the very nature of non-contentious probate business, very often the matter falls to be considered on an ex-parte basis. Without a reasoned judgment from the master, this court is severely handicapped in the full understanding of the rationale behind the requisitions and why the master rejected the arguments of the solicitors. I do not think one should assume that the master has fully set out his reasoning in the brief comments in correspondence. Though in many non-contentious probate cases the requisitions from the Probate Registry can be satisfactorily resolved through correspondence (and the utility of such process should not be under-estimated), in cases where no resolution resulted from the correspondence there should be a hearing before the probate master. The hearing can either be fixed at the request of the solicitor or directed by the master. As far as I am aware, our probate masters from time to time directed such hearings in order to deal with outstanding requisitions. It is the duty of a probate practitioner, as an officer of the court, to attend such a hearing and advance full submissions in support of his stance. I have alluded to the ex parte duty of an applicant and his legal advisers in Re Estate of Cheung Hung [2011] 1 HKLRD 455 and I reiterate the same here in the context of a hearing before master. A solicitor will be failing in such duty if he does not advance all the relevant legal submissions and authorities or place all relevant material before the master at such hearing.

6.  The hearing before the master can serve several useful purposes. First, it would give a chance to the probate practitioner to explain to the probate master any practical difficulties faced by the applicant in complying with the outstanding requisitions. Second, the probate master can explain to the probate practitioner his or her concern and why the requisitions were deemed necessary. Third, the probate practitioner can explore with the probate master other possible means to address the relevant concern which may be more readily achievable by the applicant. To be effective, a probate practitioner attending such a hearing for an applicant should have obtained the necessary instruction and information from his client and explored the possible options with him before the hearing. Moreover, the probate practitioner should adopt a collaborative mindset which is necessary for effective and efficient resolution of the matter. Failing to do so would only generate delay and unnecessary costly proceedings in the process and this cannot be in line with the interest of the client. Fourth, if there were still unresolved issues, the practitioner can fully canvass his or her arguments before the master and the master can give a fully reasoned judgment to facilitate the proper understanding of the requisitions by the applicant (and those advising him or her should then consider the appropriate response to the same) and if necessary an appeal to this court.

7.  In the present case, solicitor for the Applicants did not indicate that he intended to challenge the requisitions by way of appeal before taking out the summons. Thus, the master did not conduct any hearing. It follows that there was no opportunity for the master to provide a reasoned decision on the requisitions before the appeal.

8.  As I said, this is unsatisfactory. I can illustrate the difficulties stemming from this procedural omission by reference to what happened in this appeal. At the hearing, Mr Lau (solicitor for the Applicants) informed this court that in addition to the affidavit in the court file, his firm had tried to lodge another affidavit (sworn on 3 November 2009) in support of the application on 7 November 2009 but that affidavit was rejected by the Probate Registry. There is no record as to the lodging of this earlier affidavit in the court file. As this allegation was not alluded to during the course of correspondence, the master was not apprised of such affidavit and the alleged rejection thereof. As Mr Lau only provided such information to the court at the hearing, this court directed him to file an affidavit accounting for the filing of the earlier affidavit and its rejection. He duly did so by way of his Second Affidavit sworn on 23 March 2011.

9.  That earlier affidavit contained more information than the one in the court file. Since at least some of the additional information may be relevant to some of the requisitions, the master should be told about the earlier affidavit in order to decide whether the purpose of some of the requisitions can be served by directing Mr Lau to file the earlier affidavit. Further, the master would be in better position than this court in finding out whether the earlier affidavit had been rejected in the manner suggested by Mr Lau and if so, the reason for its rejection.

10.  As it is, this court does not have the benefit of the master’s consideration of the earlier affidavit and I am in no position to ascertain from the Registry as to the alleged rejection of the earlier affidavit. I can direct the Registrar to investigate the allegation and to provide a report to this court. But this would further delay the matter as I would need to give Mr Lau a chance to comment on the report before I finally decide upon the weight to be attached to the allegation of rejection. Since I conclude for reasons set out below that the matter should be remitted back to the master in any event, it seems to me that the better course is to leave the allegation of rejection to the master. The master can then investigate in any manner as he or she deems appropriate if the allegation is relevant to the final outcome regarding the requisitions. Alternatively, if the master does not regard the rejection to have any bearing on the outcome, he or she could dispose of the application without involving Mr Lau in such investigation.

11.  Since the Applicants are evoking a right of appeal under Rule 62(1), there must be a primary decision by the master before this court can properly entertain an appeal. I have tried to explain why I do not regard the course of correspondence as a satisfactory means for distilling a decision of the probate master to ground an appeal. Though this court can exercise its power afresh in an appeal under Rule 62(1), this court is also entitled to the benefit of a decision of the master after hearing full submissions as there may well be material practical considerations in the operation of the Probate Registry familiar to a probate master which are less familiar to a judge.

12.  One example in the present context is in relation to requisition (a). In the letter of 10 February 2010, the master required the English address because he said such address has to be included in the grant to be issued in English. I do not know whether there is any practical consideration requiring the grant to be issued in English and why a Chinese address cannot be equally acceptable for a grant issued in English. Mr Lau referred to Rule 5(1) of the High Court Civil Procedure (Use of Language) Rules and the decision of To J in DBS Bank (Hong Kong) Ltd v Si Echinacea [2010] 3 HKLRD 745. That case concerns a request for Chinese translations of documents used in civil proceedings in the context of litigation. It has nothing to do with non-contentious probate applications under the NCR. Likewise, Rule 5(1) is not applicable in the present context. However, section 3 of the Official Languages Ordinance Cap.5 is relevant. As the point has not been raised before the master, I do not know whether consideration has been to given to the impact of Section 3 in respect of the requirement of an English (as opposed to Chinese) address to be inserted. These are issues which this court does not deem appropriate to rule upon in the absence of the fully reasoned decision of the probate master.

13.  In respect of requisitions (b) to (d), it appears most (if not all) the information requested is set out in the 3 November 2009 affidavit which has now been filed as an exhibit to Mr Lau’s Second Affidavit. In Re Estate of Cheung Hung [2011] 1 HKLRD 455, I have given guidance as to how the probate master’s discretion in considering the adequacy of replies to requisitions should be exercised. Since this affidavit has yet to be considered by the probate master, I think the proper course is to remit the case back to a probate master. I have every confidence that the probate master would bear in mind the proper approach set out in Cheung Hung in re-considering the matter. In any event, if there were still unresolved matters arising from these requisitions, Mr Lau should follow the procedure mentioned above and attend a hearing before the master to canvass his arguments fully. If the master were unable to agree with Mr Lau, he or she would set out in a reasoned judgment explaining why applying the approach of Cheung Hung the requisitions are still unresolved. If the Applicants still regarded the decision of the master to be wrong, they can then appeal to this court.

14.  Requisition (e) concerns the status of Chen Lai Wen. In his affidavit of 3 November 2009 at para.5, Mr Lau stated that the Deceased was never married to any person other than Chung Hsioa Feng and he had no concubine. If that statement is accepted (at the moment I see no reason why it should not be accepted), that would by implication exclude Chen Lai Wen as a beneficiary to the estate. As in the case of requisitions (b) to (e), whether this statement should be accepted it is a matter for the master.

15.  Requisition (f) concerns the disinheritance of two issues of the Deceased from the estate. The Legal Opinion filed by the Applicants stated that these two issues were mainlanders and they had not filed a notice in accordance with Taiwanese law to claim for inheritance and therefore they were regarded as having abandoned their interest in the estate. The Applicants filed a Certificate of Entitlement on 7 June 2010 to show that these two issues had no entitlement to the estate. The master considered the Certificate and replied in a letter of 15 July 2010,

“it would suffice if the facts that [the two issues] had not given notice to the court within the time limit as required by the statutory provision … are set out in the Affirmation.”

16.  I have already explained in Cheung Hung as to why it is legitimate for a probate master to raise requisitions concerning matters pertaining to inheritance.

17.  It is trite law that Legal Opinion cannot serve as evidence of the underlying facts on which the opinion was based. In general, a lawyer expressed his opinion by reference to factual matters put forward by those instructing him. There is no indication to the contrary in the Legal Opinion filed on behalf of the Applicants in the present case.

18.  Mr Lau also referred this court to the Certificate of Entitlement. In the Certificate, these two issues were stated to be mainlanders. In addition, there is a handwritten endorsement stating that the mainlanders were treated as abandoning their claims by not filing the requisite notice within time. Unfortunately, the identity of the maker of this handwritten endorsement is not clear. There is also no information as to the inquiry made by the writer before making the endorsement. Mr Lau admitted at the hearing before this court that he had no idea how the Certificate was prepared and he was not familiar with the procedures leading to the issue of such Certificate. Thus, he could not shed any light on the reliability of the endorsement.

19.  In such circumstances, unless Mr Lau can provide further information to support the reliability of the endorsement to the master, I do not think the master can be criticized for requiring the relevant fact (viz. absence of the requisite notice) to be proved by an affidavit. However, for reasons explained in Cheung Hung, I do not think it is essential that such fact should be stated in the first affidavit. Further, since I am remitting the case to the master, there is nothing to stop Mr Lau from coming up with further evidence to vouch for the reliability of the handwritten endorsement. It would then be a matter for the master to consider whether in the light of such new evidence the endorsement could adequately serve the purpose in accordance with the guidance in Cheung Hung.

20.  For these reasons, I shall remit the case back to a probate master for consideration. Unless the master regarded all the requisitions as satisfactorily answered, the master should follow the procedures explained above and list the matter for a hearing as regards the outstanding requisitions.

21.  Further, henceforth probate practitioner should adopt the procedures set out in this judgment before lodging an appeal under Rule 62(1) of the NCR. In the absence of good explanation, failure to adopt such procedures may result in the case being remitted back to the master for hearing.