HO HIP LIK AND ANOTHER v. KWAN MAN HO AND OTHERS

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JUDGMENT

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Liu JA:

1. A year after the death of his wife and pending an eye operation, Kwan Chuen allegedly made a will bearing the date 17 February 1978 when he was 94. At the age of 97 in 1981, he allegedly made four codicils which were dated 15 June, 24 June, 29 August and 31 August respectively. He died on 23 October 1981.

2. Before the making of the alleged will, it is claimed that Kwan Chuen was physically and mentally unfit: in 1977, he sustained a back injury in a fall and could not walk unaided; he was senile and had a personality change after his wife of some 70 years passed away; his mental faculties and power of comprehension deteriorated; he suffered from memory, visual and hearing defects; he could not sign his name. It is further claimed that the deceased had, during his life time, spoken of fair distribution of his estate amongst his male descendants.

3. The two plaintiffs as well as the 1st and 4th defendants are grandchildren of the deceased and the other defendants are his children, grandchildren and descendants, all claiming to be entitled to his estate on intestacy. The alleged will appointed the 1st defendant as sole executor. Probate of the said will and codicils was granted to the 1st defendant on 25 February 1983. All the legacies had been paid. Under the alleged will of the deceased, his residuary estate was to vest solely in the 1st defendant.

4. The first three codicils were insignificant. The fourth codicil was purportedly executed only 2-3 days after the 3rd codicil and witnessed by one Mr Tao and Mr Lee. In it, further bequests were made and the said will was affirmed.

5. Except for the 1st defendant, the other defendants and the plaintiffs would benefit more on an intestacy. On an intestacy, the gain of these other defendants would be in excess of that of the 4th defendant who had taken side with the plaintiffs until the hearing of this appeal. The 4th defendant has abandoned his appeal which is accordingly dismissed by this court.

6. Up to this appeal, it may be said that the parties were divided into two camps, with the 1st and the 4th defendants in one and the plaintiffs and other defendants as the adversaries in the other. With legal aid, the adversaries caused this Probate action to be instituted by the plaintiffs. For the plaintiffs' inordinate and inexcusable delay in the prosecution of the Probate action, the 1st and the 4th defendants applied for dismissal on the grounds of substantial risk of not having a fair trial and serious prejudice, Patrick Chan, J refused the application of the 1st and the 4th defendants. From that refusal, the 1st and the 4th defendants now appeal. Having upon his own application dismissed the 4th defendant's appeal, the 1st defendant is now the only appellant against the plaintiffs as respondents.

7. The plaintiffs challenged the execution of the said will and codicils and the testamentary capacity of the said deceased. Undue influence on the part of the 1st defendant is also raised. On the multifarious allegations, the deceased is alleged to have had no knowledge of and given no approval to the said will or any of the codicils.

8. A lis pendens has been registered against a shop and 28 office units in Central, to which the 1st defendant is entitled as the residuary legatee under the said will. In 1991, a property was ordered by consent to be sold and the net proceeds in the region of $20 million were paid into court.

9. The principles are not in dispute. Whether or not there has been inexcusable delay should be examined "primarily from the defendants' point of view or, at least, objectively". Reasonable allowance may be given to good causes. White Book 1995 Vol 1 p. 474 marginal reference 25/1/6.

10. The 4th codicil came to the knowledge of the plaintiffs and the other defendants only in April 1983. Further suspicion was aroused. Legal aid was secured to the plaintiffs in November 1984 and this Probate action was commenced in October 1986 by them.

11. From Probate (21.2.83) to Writ (8.10.86), there was a delay for 3 years 8 months. All legacies had been paid by November 1984. On account of the involved family dispute in Probate, the seriousness nature of the accusations, the complexity of the case, the number of claimants involved within and without Hong Kong, the late discovery of the 4th codicil in April 1983, the granting of legal aid only in November 1984, the case preparation during 1985 and 1986 with retained leading counsel and the emigration of junior counsel in 1986, the judge came to the view that the 3 years 8 months' delay was not inordinate.

12. In between Defence (25.2.87) and Reply (20.5.88), the judge held that the one year and 3 months' delay was not inordinate or was otherwise excusable for the facts that the succeeding junior counsel left the Bar and that the summer vacation intervened.

13. In between Reply (20.5.88) and Directions (1.12.88), the judge found no inordinate delay by reason of the complex nature of the case and the on-going preparation by legal advisers.

14. From Delivery of Particulars (January 1990) to the Summons for dismissal of the 1st and the 4th defendants (27.7.95), there was 5 1/2 years' delay. Of these 5 1/2 years, the judge concluded that up to mid 1992 there was no or no inexcusable delay for these reasons: in early February 1990, there was an offer made by the 1st plaintiff for Nos. 105 and 107 Wing Lok Street to be shared by the members of the Kwan family whose names were included in a prior 1982 draft agreement; there were negotiations among the parties themselves and through solicitors; some beneficiaries were residing outside Hong Kong; negotiations went well into early 1991 throughout with the 4th defendant claiming to be acting for the 1st defendant; proposals and draft settlement agreements were produced for discussion, which failed to meet the demands of the female members; in the middle of 1991, a draft Memorandum of Settlement was dispatched to all members of the family; in the latter part of 1991 up to mid 1992, negotiations were conducted until the 4th defendant left Hong Kong for Australia when the 2nd defendant took over the representation of the family members.

15. On 12 April 1994, the plaintiffs caused to be filed their Notice of Intention to Proceed, but apart from amending an order, no effective steps had since been taken.

16. The judge found that there was a 3-year inordinate delay from mid 1992 to the date of the summons for dismissal in July 1995, for which the plaintiffs failed to provide any reasonable excuse. In his consideration of the possibility of a fair trial and any serious prejudice, the judge had regard to the contributory factor on the part of the 1st and the 4th defendants. The judge gave weight to the fact that the plaintiffs and the other defendants had been lulled by the proposals made by 1st and/or the 4th defendant between 1990 and 1992 into believing that there was still hope for an amicable settlement. A note for a new proposal was produced by the 4th defendant as late as October 1993. In August 1995, the 4th defendant returned and contacted the 2nd, the 5th and the 8th defendants. In September 1995, the 2nd defendant approached the 1st defendant again. However, the judge said categorically: "It is clear that by early or mid 1992, the zeal had cooled down ... that the 1st defendant was non-committal. One would expect that with this impasse, something must be done to keep the proceedings going instead of having the matter dragged on. The burden is clearly on the plaintiffs to take active steps in pursuing the legal rights and protecting their claim from being struck out. This they had not done." The judge concluded that "the plaintiffs (had) failed to provide any reasonable excuse for delay from mid 1992". The plaintiffs accept this conclusion. There is, therefore, no substance in the submission that unilateral efforts made after mid 1992 could lay any blame at the door of the 1st or the 4th defendants.

17. Up to the summons for dismissal, there was close to 11 years' delay of which the last 3 years was found by the judge to be inordinate and inexcusable. It is for the plaintiffs to offer a credible excuse. See Trill v. Sacher [1993] 1 WLR 1379 at p. 1397H-1400A per Neill, LJ. The attacks mounted in this Probate action focus largely on viva voce evidence. The allegations are serious and particulars are endless. The judge acknowledged the complexity of the case and the difficulty of involving a great many parties. The solicitor in charge of the execution of the will retired in 1987 and the solicitors' clerk in charge in 1990. Witnesses have emigrated. Mr Tao and Mr Lee, the alleged witnesses to the 4th codicil, could no longer be located. Medical records, if any, are not at hand. The judge accepted that witnesses' memory faded through the passage of time. This is not a case where questions "dry as dust" are capable of resolution on documents. See Can Asia Capital Co. Ltd. v. Kwok Yee William & Others [1995] 1 HKC 521 at p. 526B. The usual features in a family dispute outlined by the judge cannot remove such a substantial risk of not having a fair trial after such a protracted period of over 3 years. It is plainly wrong, in these circumstances, to say that there is no substantial risk of the 1st defendant not having a fair trial.

18. One shop and 28 office units are subject to a lis pendens. An offer to purchase No. 285 Des Voeux Road Central (except for the Ground Floor) has been lost. There is still no sensible cooperation before us. It is suggested that on the 1st defendant's application, the resistance from the plaintiffs and other defendants might be overcome by some practical solutions provided by the court. That is clearly unacceptable as the 1st defendant's free exercise of his property right remains hindered by the registration of the lis pendens. The over $20 million and other moneys deposited with the Registry are yielding a less than satisfactory return. There cannot be clearer evidence of serious prejudice to the 1st defendant.

19. The 4th defendant's appeal is dismissed. It is submitted that there are substantial issues to be determined as between the 4th defendant and the plaintiff with the rest of the defendants. The latest note for a new proposal was produced by the 4th defendant in October 1993. There were subsequent efforts made by the 2nd defendant with a view to persuading the 1st defendant to reopen negotiation. But the unchallenged finding of the judge was that there was no glimpse of any hope for an amicable settlement since the middle of 1992. Hence, the plaintiffs have not, since mid 1992, been misled by the 4th defendant or any other defendant that this action should not have been diligently prosecuted and promptly brought to a conclusion. On the judge's finding, none of these defendants including the 1st defendant have, since mid 1992, participated in the plaintiffs' delay or, by their conduct, contributed to it. There is no room for the application of the ratio decidendi in Hatter v. Port of London Authority and Others (1971) Sol. J. 1950 and Kelly v. Marley tile Co. Ltd. (1978) Sol. J. 122. In these reported cases, some defendants had participated in or contributed to the plaintiff's delay. There is no justification here for allowing this Probate action to proceed against any of the other defendants than the 1st defendant. The appeal should therefore be allowed and the respondents' notice be dismissed.

20. I would set aside the order of the judge and dismiss the plaintiffs' action for want of prosecution. I would further order that the lis pendens in question be forthwith vacated and that the moneys in court together with accrued interest thereon be released to the solicitors of the 1st defendant.

21. I would make an order nisi that the costs below and of this appeal be paid by the plaintiffs to the 1st defendant and the plaintiffs' own costs be taxed according to the Legal Aid Regulations.

Bokhary JA:

22. I agree.

Nazareth VP:

23. I also agree.

24. Accordingly the appeal is allowed, with the orders and costs order nisi proposed by Liu JA.