LISA PONCET v. KHO SIN TEK, HENRY

HCAP 19/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2003

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J U D G M E N T

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1.  This is the application of the defendant for an injunction against the plaintiff restraining her from tampering with, removing or otherwise disposing of the remains of Oscar Wong, now buried in the Chinese Permanent Cemetery in Chai Wan.

2.  The defendant says that the plaintiff is on record with the management authority of the cemetery the registered person with authority to deal with matters relating to the grave and she has the authority to dig up or relocate the remains of Oscar Wong or dispose of them.

3.   Although the defendant has not expressly said so, apparently the apprehension is that the plaintiff would remove or destroy the remains of the deceased so as to avoid any taking of DNA samples from the remains to conduct DNA testing regarding her claimed relationship to the deceased, which forms the subject matter of the present probate action.

4.   The plaintiff has explained in her affidavit evidence filed in support of her summary judgment application, which has been heard by this Court, that she has obtained various advices from experts on DNA testing regarding the viability of conducting such testing and whether sufficient and adequate DNA samples could still be obtained from the remains of Oscar Wong.  She has been advised that it would not be easy to obtain good and sufficient samples from the remains to conduct such testing.

5.  She has also explained in her affidavit evidence about her reluctance to exhume the remains of the deceased for the purposes of obtaining such samples, out of respect for the deceased and emotional considerations.  She has also deposed in her affidavit that she has no intention of allowing Oscar Wong’s remains to be dug up, or relocating them overseas or disposing of them.  Those allegations were not seriously challenged by the defendant during the Order 14 application.  As I said, the application has been heard and judgment will be handed down by this Court in due course. 

6.  Yet, in the meantime, the defendant took out the present application for injunction.  In his supporting affidavit, the defendant has not said that he does not accept what the plaintiff has deposed to in her affidavit, ie that she has no intention of allowing Oscar Wong’s remains to be dug up and/or relocating such remains overseas or disposing of them.  During today’s hearing, the defendant merely suggested to the Court that despite what the plaintiff has deposed to, it is possible for her, as the registered person with authority to deal with matters relating to the grave, to do otherwise.

7. In the circumstances of the case and given the materials available, I am not satisfied that there are sufficient reasons to doubt what has been asserted by the plaintiff in her affidavit evidence.  I am not satisfied that there is a present risk of the plaintiff seeking to tamper with, remove or otherwise dispose of the remains of Oscar Wong.  I am not satisfied that there is the suggested risk of her seeking to do so with a view to avoiding the obtaining by anyone of suitable DNA samples from the remains to conduct necessary DNA testing so as to disprove her claim to be the natural daughter of the deceased.

8. In any event, I bear in mind that summary judgment has been sought by the plaintiff against the defendant and, as I say, judgment from this Court will be handed down in due course. 

9. Depending on the outcome, the parties may take the matter forward but at this interim stage I see no real reason for granting the application, so the application for injunction is dismissed.

[Submissions on costs]

10. Costs should follow the event.  In the circumstances, I order the defendant pay to the plaintiff the costs of the application forthwith.

[Submissions on gross sum assessment]

11. In my view, the plaintiff is quite entitled to instruct counsel to appear before the Court today to resist the application and the amount of brief fee, in my view, is reasonable – so that will be $20,000.  As for the solicitors, in my view, on a party-and-party basis, two hours only would be allowed bearing in mind that very competent counsel has already been instructed to represent the plaintiff in the present application.  Of course, the brief to counsel would include counsel giving all necessary advice to the solicitors regarding the conduct of today’s hearing.  So two hours, at $3,000 per hour, for the solicitors – that will be $6,000.  And the total is $26,000 on a party-and-party basis.

12. So the defendant to pay to the plaintiff the costs of this application forthwith in the gross sum of $26,000.