CHAN SIN MAN (陳倩雯) (also formerly known as 謝倩雯 and CHEN QIAN WEN), the intended Administratrix of the estate of LEE LAI WA (李麗華), deceased v. CHAN TAM FU (陳譚富)

HCMP 1830/2023

[2024] HKCFI 1926

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1830 OF 2023

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DECISION

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1.  By her Originating Summons dated 19 October 2023, Madam Chan (also formerly known as 謝倩雯 and Chen Qian Wen) seeks a declaration that the defendant was precluded by the forfeiture rule in Part VA of the Law Amendment and Reform (Consolidation) Ordinance, Cap. 23 (“the LARCO”) from acquiring any interest in the estate of Lee Lai Wa, deceased (“Madam Lee”), under the law relating to intestacy.

2.  Secondly, Madam Chan asks for an order for her appointment as the administratrix of the estate of Madam Lee and that the letters of administration of the estate of Madam Lee be granted to Madam Chan under section 36 of the Probate and Administration Ordinance, Cap 10.

3.  Madam Chan has filed her affirmation dated 16 October 2023 to support her application. This application is necessitated by the tragic death of Madam Lee, her natural mother. The defendant is the step‑father of Madam Chan. He is now serving his life sentence in the lawful custody of the Correctional Services Department, having been convicted of the murder of Madam Lee on 14 October 2014 after a jury trial.

4.  Despite the order of DHCJ MK Liu dated 17 January 2024, the defendant has failed to file an acknowledgement of service. The defendant has filed no evidence either. He has, however, requested to be brought up by a body order and attended this hearing.

5.  After this court has explained to him the applicable legal principles, the defendant agreed that he could not have a share of the estate of Madam Lee but he opposed the appointment of Madam Chan as the administratrix of the estate of Madam Lee. The defendant argued that Chen Jianfeng (“Chen”) who is his son should also be entitled to be appointed to administer the estate of Madam Lee.

6.  For present purposes, a simple narrative of the background facts would suffice. Madam Lee and the defendant were married in the Mainland in 1995. Madam Lee had been previously married and Madam Chan is her daughter from that earlier marriage. In their wedlock, Chen was born and is now aged about 27.

7.  The four of them lived in the Mainland until 2001 when Madam Lee obtained a one-way permit to live in Hong Kong. The defendant, Madam Chan and Chen came to settle in Hong Kong with Madam Lee in 2006. In Hong Kong, the defendant was a construction worker and Madam Lee was a restaurant worker.

8.  On 10 April 2013, sometime before 7 pm, the defendant arrived at the workplace of Madam Lee in Heng Fa Chuen, Chai Wan and stabbed her with a knife which he had brought with him from his home. Madam Lee was severely injured and was certified dead at 7.25 pm at Pamela Youde Nethersole Hospital on the same day.

9.  The defendant tried to appeal against his conviction but in vain. By the judgment dated 8 December 2015, the Court of Appeal dismissed his appeal. Subsequently, his application for leave to appeal was dismissed by the Court of Appeal. Accordingly, he is now serving his life imprisonment.

10.  In regard to the forfeiture rule which Madam Chan seeks to invoke, the law is very clear and well-established. The forfeiture rule provides that a person who has unlawfully killed another can be precluded from acquiring any interest in the property of the victim. In other words, a murderer should be debarred from acquiring a benefit in consequence of the killing as a matter of public policy.

11.  In the present case, the fact that the defendant has killed Madam Lee is indisputable and hence, the forfeiture rule should apply. I see no reason why it should not. In the circumstances, I will declare that the defendant was precluded by the forfeiture rule referred to in Part VA of the LARCO from acquiring any interest in the estate of Madam Lee under the law relating to intestacy.

12.  As regards the appointment of Madam Chan as the administratrix of the estate of Madam Lee, undoubtedly, Madam Chan is entitled to apply for letters of administration of the estate of Madam Lee under the law of intestacy (Non-Contentious Probate Rules, Cap.10A).

13.  Chen, being the son of Madam Lee, also has the equal right to make the application for a grant. Chen has not made any such application even though Madam Lee passed away more than 10 years ago. I do not believe that he is seriously interested in taking up the position and he has not opposed the application of his sister.

14.  In the circumstances, I accept that Madam Chan is the appropriate administratrix of the estate of Madam Lee and I should exercise my discretion to make the appointment.

15.  To conclude, this court accepts the application of Madam Chan by her Originating Summons and would make an order in terms of paragraphs 1 and 2 of the Originating Summons.

(Submission re costs)

16.  There be no order as to costs between Madam Chan and the defendant and Madam Chan’s costs to be paid out of the estate of Madam Lee.