LIU CHING YUEN v. LIU HAU KAN FUNG

HCAP 34/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 34 OF 2012

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D E C I S I O N

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Introduction

1. This is the plaintiff’s application for summary judgment.

2. The plaintiff commenced this action in December 2012.  The amended statement of claim avers that:

(a) the plaintiff is the sole executor and beneficiary of the last will dated 23 October 1996 of one Mr Liu (respectively “the said will” and“the dec’d”);

(b) the said will affects only a lot of land in the New Territories, together with a 3-storey building (then) intended to be erected thereon (the said lot of land is “the subject lot” and the subject lot together with the said intended building is “the suit property”);

(c) by the said will, the dec’d devised the suit property to the plaintiff for his own use and benefit absolutely;

(d) the dec’d passed away on 24 June 2001 (about 4-1/2 years after the said will);

(e) unknown to the plaintiff, the defendant (the dec’d’s widow) applied to the High Court for, and was granted, a Letter of Administration in June 2003 (“the said L/A”);

(f) because of the said L/A, the plaintiff’s application for a grant of probate (limited to the suit property) was not processed by the Probate Registry;

(g) in the course of the correspondence between the plaintiff and the defendant from mid-May 2008 to mid-May 2012, the defendant indicated she “was quite prepared to help the plaintiff to sort out the problem subject to the plaintiff’s payment of the defendant’s legal costs incurred therefor” (para 13 thereof);

(h) despite the above, the defendant did not revoke the said L/A, or to have it varied or amended to exclude the grant concerning the suit property.

Consequently, the plaintiff seeks in gist to revoke the said L/A, and the court to decree probate of the said will in solemn form.

This application

3. Further, the plaintiff took out a summons on 8 August 2013 for summary judgment to be entered.

4. In support of this application, the plaintiff relies principally on:

(1) there is no dispute as to the genuineness of the said will;

(2) during the course of correspondence (15 May 2008 to 10 May 2012, a period of about 4 years) between the plaintiff’s solicitors and Messrs Leung Kin & Company, the solicitors firm which acted for the defendant in obtaining the said L/A (“Leung Kin & Co”), the defendant indicated:

(a) the said L/A did not cover the subject lot (19 February 2009).  This was given in reply to the plaintiff’s letter of 15 May 2008 (about 9 months earlier);

(b) she was:

“quite prepared to help [the plaintiff] to sort out the problem subject to the payment of all [the defendant’s] legal costs incurred in the matter” (emphasis supplied) (14 May 2009).

This was in response to a Chinese letter of 20 April 2009 (about one month earlier) sent to the defendant’s last known addresses in the New Territories and in the UK (with copy to Leung Kin & Co).  The phrases “the problem” and “the matter” have to be understood in the context of the said Chinese letter:

“根據台端先夫 [the dec’d’s name was set out] 於1996年10月23日所訂立之遺囑 [that is, the said will]，[the dec’d]委托敝當事人[that is, the plaintiff] 作為該遺囑之執行人。該遺囑只處理[the dec’d]在香港之物業(“該土地”) [the particulars of the subject lot were set out]，並列出 [the dec’d’] 之意願為將該土地贈予敞當事人。”;

“我行代表敝當事人 … 向法院提交申請，按該遺囑只就該土地申請承辦 (“Probate”)，但法院則拒絕該申請，[a summary of the reason for the refusal was given (similar to para 2(f) above)] … ”;

“… 法院亦指示敝當事人必須先與台端弄清台端上述承辦書的內容及/或該土地之承辦之問題，否則不會受理敝當事人之上述申請。”;

“根據香港原訟法庭之判決 … ，台端之承辦書可能需作修訂。為保障台瑞 … 之權益，請台端火速與台端律師聯繫，就修訂該承辦書之事重作磋商。” (emphasis supplied)

(c) further to the reply of 14 May 2009, she informed the plaintiff her legal costs would be $12,000 plus disbursements (29 May 2009);

(d) the said sum was agreed to in principle by the plaintiff (10 May 2012).

5. The plaintiff also deposed that (i) his family (his parents and siblings) began to live in the suit property at the end of 1998, and (ii) he also lived there since 2000.

6. The defendant resists this application on the ground that the following matters warrant further investigation by way of trial:

(a) the plaintiff being (admittedly) a total stranger to the dec’d, there was no sensible reason for the subject lot to be given to the plaintiff in effect as a testamentary gift.  In particular, the worth of the dec’d’s estate (excluding the subject lot) was only $600,000 or so;

(b) the plaintiff’s father who, according to the plaintiff, was the person to bring about the execution of the said will, and arranged its execution, has not filed evidence in this application.  Consequently, the precise reason which brought about the said will is sketchy and hearsay in nature (the plaintiff deposed that the suit property was given to the plaintiff by the dec’d because the dec’d’s family owed favours to the plaintiff’s family: para 3, plaintiff’s affirmation);

(c) the circumstances under which the said will was executed were unsatisfactorily recounted by the solicitor in her affirmation. Further, the probate file was inexplicably destroyed by the plaintiff’s solicitors firm;

(d) further to sub-para (a) to (c) above, she is entitled to the strict proof of the said will in any event.

Should summary judgment be entered?

7. The applicable principles are undisputed:

(1) there is jurisdiction to enter summary judgment in probate cases (notwithstanding RHC Ord 76 rr 6 and 10): Re Lau Siu Wah (Dec’d) [2005] 1 HKC 364, para 13 to 19; Lisa Poncet v Kho Sin Tek Henry HCAP 19/2003 (13 March 2007), para 6 (referring to Re Lau Siu Wah (Dec’d) and Tristram and Coote’s Probate Practice (29^th Ed) para 38.08);

(2) the defendant has to show an arguable defence, or some triable issues, before leave to defend will be given;

(3) the burden to show cause is met by the defendant condescending upon particulars of the defence;

(4) factual defence or issues raised may be so incredible, or so contradicted by contemporaneous documents or circumstances, that it is a mere sham: Manciple Ltd v Char On Man [1995] 3 HKC 459, 466E-G;

(5) the need to cross-examination has to be considered in the light of the above: Re Lau Siu Wah (Dec’d), para 28 to 31 (cp Ord 76 r 8 and the related footnotes in Hong Kong Civil Procedure 2014, Vol 1).

8. Of the various matters raised by the defendants, only one is worthy of specific discussion; that is, the reason why the dec’d executed the said will which devised the subject lot in the plaintiff’s favour (and, related to that, the circumstances pertaining to its execution).

9. The defendant’s contentions set out in para 6(a) and (b) above appear to be matters which, on their own, ought to be further investigated.  However, they have to be considered together with the following undisputed circumstances.

10. One, the dec’d has been residing in the UK since about 1969 (working as a chef there), and his family (the defendant (his wife) and his children) emigrated there in 1977 (defendant’s affirmation dated 31 July 2013 filed in her application under the Inheritance (Provision for Family and Dependants) Ordinance (Cap 481) (“the dependants’ claim”)).  According to the defendant, the dec’d would return to Hong Kong “frequently” to visit his friends and relatives and supervise his landed properties (affirmation of administratrix dated 12 June 2002) (the “landed properties” do not include the suit property).

11. Two, the defendant deposed to the only occasion when the dec’d mentioned a matter which could have been a reference to the subject lot.  In her affirmation dated 31 July 2013 (filed in the dependants’ claim), the defendant deposed:

“In or around 1996, [the dec’d] asked our 2 sons if they were interested in building a ‘ting’ house, but our 2 sons said they were not interested. Therefore, [the dec’d] told us that he would dispose of his ‘ting’ rights.

Thereafter, in or around 1999, [the dec’d] mentioned that he had disposed of his ‘ting’ rights. However, at all material times before his death, [the dec’d] had never disclosed to me the location of the ‘ting’ house and by what means and at what price he had disposed of his ‘ting’ rights to the purported purchaser. He also never told me the identity of the purchaser” (emphasis supplied) (para 8 and 9 thereof).

In this connection, it is noted that the grant of the subject lot by the government was dated 13 December 1996 (about 2 months after the date of the said will) (“the subject lot grant”) (but the dec’d’s application was made on 20 October 1993).

12. According to:

(a) the dec’d passport, he was born in February 1931;

(b) the certificate of marriage, the dec’d was aged 30 in November 1961.

Thus, the dec’d would have been:

(1) about 46 years old in 1977, the time of the family’s emigration;

(2) about 65 years old in 1996, the time of the subject lot grant, and the said will;

(3) about 68 years old in 1999, when the dec’d intimated that “he had disposed of his ‘ting’ rights”;

(4) about 70 years old in June 2001, when the dec’d passed away.

13. Two observations arise from the above:

(a) because of the dec’d’s place of residence, the subject lot grant, and the said will, must have been dealt with by him during one or more of his trips from the UK to Hong Kong;

(b) the timing of the subject lot grant, and the execution of the said will, fits in with the time period when the dec’d informed his family he would depose of (and had disposed of) his “ting” right.

14. The defendant wholly “disowned” the line of correspondence referred to in para 4(2) above.  She deposed:

“the … purported exchange of correspondence … where it appeared that I had … agreed to help the Plaintiff to ‘sort out the problem’ … I never agreed to any such arrangement. The whole sequence of correspondence … was completely unbeknown to me, and Leung Kin had never sought instructions from me personally … In fact … I had no contact whatsoever with Leung Kin after they had completed their work in obtaining [the said L/A] … in 2003” (para 15, 11 September 2013 affirmation).

15. When a deponent puts forth a complete denial that something has happened, whether he (or she) can “condescend upon particulars” depends on circumstances.

16. But assuming the defendant’s denial here is one where little or no further particulars can be given, at least two matters should be, but are not, explained.

17. One, the defendant has not explained if the Chinese letter of 20 April 2009 (para 4(2)(b) above) had been received.  If it had been received, whether she had taken any action accordingly; if it had not been received, whether the two addresses therein were addresses to which mail was (or ought to be) sent.  It is also noted the New Territories address therein was the same as that used in:

(1) the certificate of marriage (June 1977; but the marriage was in November 1961);

(2) the dec’d’s application for the subject lot grant (October 1993);

(3) the said will (October 1996);

(4) the said L/A and the affirmation by administratrix (12 June 2002);

(5) the deed of family arrangement of 15 November 2003 (executed in Hong Kong by the defendant and her 5 children).

The UK address therein was the same as that used in:

(a) the dec’d’s application for the subject lot grant (October 1993);

(b) the said L/A and the affirmation by administratrix (12 June 2002);

(c) the defendant’s affirmations filed herein;

(d) the defendant’s affirmation filed in the dependants’ claim (31 July 2013).

18. Two, the defendant’s accusation made in her 11 September 2013 affirmation (para 14 above) is very serious and can involve the commission of the following criminal offences (the list below is not meant to be exhaustive):

(1) forgery (Crimes Ordinance (Cap 200));

(2) offences relating to false instruments (Cap 200);

(3) fraud/attempted fraud (Theft Ordinance (Cap 210));

(4) conspiracy to defraud (common law);

(5) bribery (Prevention of Bribery Ordinance (Cap 201)).

At the very least, it would involve a blatant breach of professional conduct and ethics.

19. Despite the severity of the accusation, there is no evidence the defendant has taken action against the perpetuator(s) of such serious misconduct.  As a result, besides an assertion that the correspondence was not hers, there is no evidence she had made any effort to dispel the impression the misconduct would reasonably have created; that is, she knew of, and connived in, the disposal of the suit property according to the said will.

20. The defendant’s admission that she received a long-distance phone call from Leung Kin & Co around May 2009 concerning:

“… still some issues regarding the Deceased’s estate which had not been properly dealt with” (para 15, 31 July 2013 affirmation filed in the dependants’ claim)

makes her accusation (a claim of lack of consent and/or knowledge) sound even less convincing (she apparently took no action afterwards despite the phone call).

21. Bearing in mind the above matters, I am afraid I cannot accept the defendant’s accusation; I will therefore reject it as being incredible.

22. It must, at the same time, be observed that the manner in which the plaintiff presents his case also invites criticism:

(a) as stated above, the plaintiff’s father has not filed affirmation to explain the circumstances which brought about the said will;

(b) Leung Kin & Co has not been contacted to ascertain if the correspondence emanating from them was a mere creation of their own (on the other hand, the defendant should also have taken similar steps).

In relation to sub-para (b) above, plaintiff counsel indicated the lack of contact was due to his view that instructions from the defendant to Leung Kin & Co was covered by legal professional privilege.

23. Whether a solicitor firm has authority to write the letters is arguably not a matter to which legal professional privilege can attach (that is, it pertains only to an agent’s authority (or the lack thereof); the contents of the letters being already in the public domain).  But assuming it is such a matter, counsel’s view was not shared by at least the Canadian courts in:

(1) Harich v Stamp (1979) 27 OR (2d) 395; 106 DLR (3d) 340; 59 CCC (2d) 87 (Ontario court of appeal) (ex-client brought his former lawyer’s instructions into issue in court);

(2) R v Dunbar and Logan (1982) 138 DLR (3d) 221; 68 CCC (2d) 13, 39-42 (Ontario court of appeal) (there was an implied waiver of privilege whenever the client made allegations against his or her lawyer, even in litigation between third parties).

(source for the above: Practice Resources, Law Society of British Columbia (Folk: Two Exceptions to a Lawyer’s Duty of Confidentiality) (May 2002)).

24. The Harich case and the Dunbar case have been referred to in the textbook on English law regarding legal professional privilege (Auburn: Legal Professional Privilege: Law and Theory (2000), especially pp 218-9) where the learned author discussed the subject under the heading “fairness-based loss of privilege (waiver)”.

25. Criticisms have also been levied against the plaintiff’s solicitors:

(a) judging from the manner in which the witnessing solicitor answered the queries raised by the defendant’s solicitors in the letter dated 3 June 2013, the circumstances under which the said will was executed were less than adequate (or, at least, less than adequately answered);

(b) the related probate file was mysteriously destroyed.

In short, I do not consider the criticisms can advance the defendant’s case (see para 26 to 31 below in relation to sub-para (a) above and para 32 to 34 below in relation to sub-para (b) above).

26. The criticism summed up in para 25(a) above is premised on Re Moss, Larke v Nugus [2000] WTLR 1033.  Based on the Larke case, the defendant argues that:

(1) the witnessing solicitor was with the same solicitor firm which now acts for the plaintiff;

(2) the answers given in the witnessing solicitor’s affirmations are vague, unsubstantiated and highly economical in details and particulars;

(3) the witness solicitor did not (as a responsible solicitor would):

(a) explain to the dec’d that the dec’d owed responsibilities to his wife (the defendant) (who could make a dependants’ claim (as the defendant now does);

(b) ascertain if the dec’d had any former or existing will(s) and/or if there were “radical departures” therefrom.  If so, there would have been a need for good reasons for doing so;

(4) some questions remain unanswered by the witnessing solicitor;

(5) the witnessing solicitor’s claim of privilege is wrong.

These matters are, so the defendant contends, proper matters for trial.

27. This action is not a claim by (or against) the witnessing solicitor (or the solicitor firm for which she works).  I do not understand the defendant to be contending that the Larke case to have laid down a self-standing cause of action (or defence).  A perusal of the Larke case shows that this stance is correct.

28. The facts involved in the Larke case can be summarized as follows:

(a) the claimants were the executors of a will (one of whom was the solicitor who prepared it (“the drafting solicitor”));

(b) the will was executed by a testatrix who was 80 years old and passed away some 1-1/2 months after its execution;

(c) the testatrix left her estate to various parties, including two persons who looked after her for about 4 months (“the care-takers”), and the two defendants (one of whom was the testatrix’s niece (“the niece”));

(d) all of the niece’s requests for a copy of the will were refused by the drafting solicitor’s firm;

(e) in an action claiming for a pronouncement for the force and validity of the will in solemn form, a defence and counterclaim was served alleging that the testatrix did not know or approve the contents of the will, alternatively, its execution was obtained by the undue influence of the care-takers (or one of them);

(f) a letter was written by the defendants’ solicitors to the drafting solicitor asking for a statement of evidence concerning the execution of the will and the related surrounding circumstances;

(g) all oppositions to the will (including the undue influence plea) were later withdrawn;

(h) the court nevertheless proceeded to hear evidence and, having done so, pronounced for the will.

29. Having so found, the court ordered that there be no order as to costs for the following reasons:

(1) the niece having no knowledge of the circumstances leading to the execution of the will, and she having withdrawn the opposition to the will before the hearing, the whole of her costs would have been given to her out of the estate (she acted reasonably in requiring the suspicion to be dispelled);

(2) however, the niece should pay the set of costs relating to the alleged undue influence;

(3) the said two sets of costs could not be disentangled because they were founded on very similar facts.

30. The Larke case was the English court of appeal’s judgment on appeal by the claimants against the said costs order.  The appeal was dismissed principally on the ground the costs of an action was that of the trial judge, and there was nothing to show he had exercised his discretion wrongly.  In such context, the court of appeal observed:

“… The main point taken by counsel for the appellants … is that there was no wilful refusal by [the drafting solicitor] to provide information with regard to the preparation of the will … ”;

“… the principle upon which [the Law Society’s recommendations concerning the circumstances of the preparation of a will are] based, and the duty of a solicitor when faced with matters of this kind …

… in my judgement [it] is that, when there is litigation about a will, every effort should be made by the executors to avoid costly litigation if that can be avoided and, when there are circumstances of suspicion attending the execution and making of a will, one of the measures which can be taken is to give full and frank information to those who might have an interest in attacking the will as to how the will came to be made … ” (pp 1043-4);

“… the question was … whether the defendants, having regard to the attitude adopted by [the drafting solicitor], were entitled to insist upon the matter being tried out in the court, and the learned judge took the view that, having regard to his conduct, they were so entitled. In my judgement, he was entirely right in so finding [reference was then made to the unwillingness to provide a copy of the will and to provide any statement of his evidence]” (p 1045).

31. Understood in such light, the relevance of the Larke case to the defendant’s liability in this action (and this application) is very limited (especially when this is considered in the light of the circumstances set out in para 2, 4 to 5 and 10 to 12 above).

32. There may be some justifiable criticism against the witnessing solicitor’s firm (para 25(b) above).  As stated above, this action was commenced in December 2012.  In a letter dated 7 February 2013, the said firm informed the defendant the probate file “has recently been destroyed”.

33. At least as a matter of prudent practice, it is difficult to understand why the file concerning a matter over which there is on-going litigation should be so handled.  Now that the probate file has been destroyed, there is no reason to think that meaningful discovery therefrom can be undertaken. 

34. However, having said so, para 2, 4 to 5 and 10 to 12 above is repeated.  Further, while the conduct of the solicitor firm may not invite commendation, this has to be considered in the light of the defendant’s conduct as well (see also para 10 to 20 above).

Conclusion

35. By reason of the matters set out above, summary judgment is entered against the defendant in the plaintiff’s favour (but limited to the suit property) (I do not understand the plaintiff to object to the defendant obtaining a letter of administration not covering the suit property).

Other matters

36. There is no need to deal with the defendant’s summons taken out on 20 June 2013 (based on the Larke case).  No order is made thereon.

37. The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

Costs order

38. The parties may wish to address on costs after having sight of this decision.  Accordingly, the following directions are given:

(a) the plaintiff be at liberty to lodge with court and serve his submissions on costs within 7 days;

(b) the defendant be at liberty to lodge with court and serve her submissions on costs within 7 days thereafter;

(c) the plaintiff be at liberty to lodge with court and serve his reply submissions (if so advised) within 7 days thereafter.

Unless either or both parties contend otherwise, costs will be considered without further hearing.