XCHRX WANG DIN SHIN v. NINA KUNG

1997, No. P6

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION

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J U D G M E N T

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1. This is an application for dismissal of the Plaintiff's probate action on the ground that it is an abuse of the process of the court. The Plaintiff is the father of a testator Teddy Wang Teh Huei and he is seeking a declaration that the testator is dead after seven years since he disappeared on or about 10 April 1990. He is also seeking for a grant of probate in solemn form in respect of a will dated 15 March 1968 in which the Plaintiff was appointed the sole executor and beneficiary of the testator's estate.

2. The Defendant submitted that the background to this action is an abuse of the process of Court. On 12 April 1997 the Plaintiff made an ex parte application to the Probate Registry for leave to swear death by filing his first affirmation in HCEA No. 66/97 ("the 1st proceedings"). This was made pursuant to O.52 of the Non-Contentious Probate Rules, Cap.10. He did not inform the Defendant who claimed to be the wife of the testator. On 14 May 1997 Miss Registrar Chu directed that the Plaintiff's application to swear death should be made inter partes by serving his application on solicitors for the Defendant. At the same time, solicitors for the Defendant was informed of the aforesaid decision. On 5 June 1997 the Plaintiff instituted the present proceedings. Thereafter on 4 September 1997 the Plaintiff obtained leave from the Probate Registrar to discontinue his ex parte application to swear affidavit of death of the testator.

3. Mr Huggins S.C., Counsel for the Defendant, submitted that the background to this second action of the Plaintiff is an abuse of the process of the court. He submitted that the Plaintiff failed to inform the Probate Registry on his first application that the Defendant believed the testator was still alive. This, in my view, may be a complaint of the Defendant under the 1st proceedings. In the present action before me, it is open to each party to put in their own evidence. The question before the Court is whether the discontinuation of the 1st proceedings and the institution of this second action constituted an abuse of the process of court.

4. The 1st proceedings were filed under r.52 of the Non-Contentious Probate Rules, Cap.10, the second action is commenced under O.76 of the Rules of The Supreme Court. Apparently Mr Huggins accepted that both actions were open to the Plaintiff. He just submitted that after he has already begun the 1st proceedings, it is an abuse to withdraw the first one and started the second one. I could not see why this is an abuse of the process of court by itself when both actions were open to the Plaintiff. The way he conducted his case, or was advised to do so by his lawyers, is a matter for him. Mr Huggins submitted that if he has proceeded with the 1st proceedings, that issue might have been resolved by now. This delaying effect only works against the Plaintiff himself who is a man of 86 years of age. It is not an abuse of the process of court.

5. Mr Huggins further submitted that because the second action required the Defendant to swear affidavit describing testamentary script, she would be prejudiced when the 1st proceedings would not require her to do so. Instead the Plaintiff would be required to put in all the evidence he has to support his application. However, on the same basis, if both actions were open to the Plaintiff to pursue, the Defendant has no right to compel the Plaintiff to choose one instead of the other. The testamentary script is not open to public search under O.76 and there is no ground for the fear of the Defendant that what she said would be in the public domain.

6. The Defendant further submitted that the evidence put forward by the Plaintiff is weak and is not corroborated. However the Defendant is not saying that it is a plain and obvious case that the action should be struck out. It is not the function of this Court, at this stage, to consider the strength of each party's case unless the evidence so far cannot possibly support the cause of action of the Plaintiff, or it is plain and obvious that the Plaintiff's case will fail at the trial. Since the Defendant is not pursuing that course, it is also not appropriate for this Court at this stage to order a preliminary issue, or the first issue of death, to be tried first. It is a matter for the trial judge after discovery and after witnesses' statements have been filed and served.

7. The Defendant further said that she has the fear that the trial of the death of the testator would endanger his life for reasons disclosed in her affidavit. First of all, it is not relevant to the second issue i.e., the validity of the will or any other will. Thus, it would not be a ground for refusing to swear affidavit describing the testamentary script. Secondly, it is an issue to be decided by the trial judge as to whether the trial of this part should be conducted in camera after discovery and upon proper application of the Defendant. This cannot be a ground for dismissing the Plaintiff's action as an abuse of the process of the court.

8. In the end I cannot see any ground of abuse of the process of the court by the Plaintiff. It is open to him to apply ex parte in the 1st proceedings for leave to swear death by filing his first affidavit. It is also open to him to withdraw the 1st proceedings and reconsider his position when he was directed to proceed further by inter partes summons. It cannot be an abuse when he has adopted a course which caused him time and money and it has not prejudiced the Defendant in any way. The Plaintiff is entitled to proceed the probate action in full and is also entitled to know whether the Defendant is putting forward other testamentary script. He is entitled to reconsider his position should the Defendant be propounding another will of the testator. That is the rationale of the provisions in O.76. I cannot see any ground for exercising my discretion under O.76(1) to allow the Defendant to dispense with swearing the affidavit of testamentary script.

9. Accordingly, I dismiss the Defendant's application of striking out with costs and Certificate for two Counsel to the Plaintiff. The first deadline of filing affidavit of testamentary script was 11 July 1997. The Defendant was given extensions thereafter already. I think it is appropriate to order an Unless Order as pursued by the Plaintiff. Accordingly I grant an Unless Order of filing the said affidavit of testamentary scripts and the Defence by 4 pm, Friday, 16 January 1998 on the summons of the Plaintiff with costs to the Plaintiff with Certificate for two Counsel.

(D. Yam)

Judge of the Court of First Instance,
High Court