RE WONG PUI TAK DIANA

HCCA 1160/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO. 1160 OF 2013

_____________

_____________

__________________________

REASONS FOR JUDGMENT

__________________________

1.  This is an appeal against the order of Master Levy dated 15 August 2013 (“the Order”), allowing the application of the executrices and trustees of the estate of the deceased (“the Trustee”) to dismiss and to strike out the Caveat dated 14 March 2013 (“the Caveat”) and the Appearance to Warning dated 15 July 2013 (“the Appearance to Warning”) entered by the caveator (“the Caveator”).

2.  In the hearing on 14 November 2013, I dismissed the Caveator’s application for leave to appeal out of time.  I now give my reasons.

3.  The Caveator failed to appear in the hearing before the Master, and so the Order was made in the absence of the Caveator. The issue in this appeal is whether there was proper service of the summons of the Trustees’ application (“the Trustees’ Summons”) on the Caveator.  Further, the notice of appeal was filed about a month late, and so the Caveator also applies for leave to appeal out of time.

4.  The deceased Diana Wong Pui Tak (“the Deceased”) passed away on 26 November 2009.  The Caveator’s husband (“the Caveator’s Husband”) is the son of the Deceased.  By the last will of the Deceased dated 8 June 2007 (“the Will”), the Trustees, who are the two daughters of the Deceased, were appointed the executrices and trustees of the Deceased’s estate and the Trustees are also the beneficiaries under the Will.

5.  Apparently, the Caveator is a Mainlander and she resides together with her Husband in Shenzhen.  The Caveator has provided an address in Sheung Shui as her address in the Appearance to Warning.

6.  It is common ground that there would have been proper service if the Trustees had served the Trustees’ Summons on the Caveator’s Address by adopting one of the modes for ordinary service as specified in O 65 r 5(1) of the RHC.

7.  According to the affirmation of service filed by Ms Lee Pui Ling who was entrusted with the task of serving the Trustees’ Summons (“Ms Lee”), Ms Lee had, on 9 August 2013, served the Trustees’ Summons by: (i) posting such document by ordinary post to the Caveator’s Address; and (ii) leaving inside the Caveator’s Address by pressing such document through its door.

8.  The Caveator has filed four affirmations in support of the appeal: two by the Caveator’s Husband and the other two by herself.  According to these affirmations:

(i)   the Caveator left Hong Kong in the period from 1 August to 15 September 2013;

(ii)   since 9 August 2013, the Caveator’s Husband had travelled back and forth between Hong Kong and the Mainland;

(iii)   the Caveator’s Husband went back to the Caveator’s Address on 3 September 2013 and did not find a copy of the Trustees’ Summons in the letter box;

(iv)   the Caveator’ Husband went back to the Caveator’s Address again on 14 September 2013 and found a copy of the Trustees’ Summons in the letter box;

(v)   the Caveator and her Husband were only aware of the Trustees’ Summons on 14 September 2013;

(vi)   on 16 September 2013, the Caveator went to conduct a search of the court file and knew about the Order for the first time;

(vii)  the Caveator made a report to the police on 21 September 2013 about the loss of the Trustees’ Summons; and

(viii)   the Caveator filed the notice to appeal against the Order on 30 September 2013.

9.  The Caveator and her Husband have not said anything in their affirmations about the merits of the defence to the Trustees’ Summons.

10.  The issue here is whether Ms Lee had served the Trustees’ Summons on the Caveator in the ways as described in the affirmation of service.  If Ms Lee had done so, there was proper service of the Trustees’ Summons on the Caveator.

11.  In the support of the appeal, Mr Li, counsel for the Caveator, relies on the following passage in the Hong Kong Civil Procedure 2014 at §13/9/5 relating to the service of the writ under O 10 r 1 of the RHC:

“When a defendant deposes that he has not received the writ through the post, the court has little option but to believe this save when there is sufficient material to cast doubt upon the defendant’s credibility to enable the court to disbelieve him … …”

12.  Further, in Bank of China (Hong Kong) Ltd v Cheung King Fung [2007] 1 HKLRD 462, Tang JA (as he then was) stated at §§33-34 that the party asserting that he has not received the writ must provide “convincing evidence”.  Similarly, in Cheng Chi Lun v Ng Lai Ming [2007] HKEC 316, Mr Recorder Fok SC (as he then was), having considered the authorities on the point, stated at §26 that:

“ … … The relevant question is whether there is sufficient evidence to cast doubt on the Defendant’s credibility such that the court should not accept her bare allegation that she has not received the writ.”

13.  Despite the submission of Mr Li, I find that there was proper service of the Trustees’ Summons on the Caveator, at the very least by leaving the document at the Caveator’s Address.

14.  Firstly, as conceded by Mr Li, the burden is on the Caveator to adduce convincing evidence before the court that she has not received the Trustees’ Summons, and that Ms Lee had not served the document as alleged by her.  According to the affirmation of Ms Lee, she served the Trustees’ Summons by pressing the same through the main door of the Caveator’s Address.  On the other hand, the Caveator’s Husband only deposed that he did not find the Trustees’ Summons in the letter box on 3 September 2013.  He had not dealt with the important issue as to whether the Trustees’ Summons was left on the floor of the Caveator’s Address.  As the Caveator has failed to adduce direct evidence to contradict Ms Lee’s allegation about the leaving of the Trustees’ Summons at the Caveator’s Address, this court has no reason to doubt Ms Lee’s evidence in this regard. 

15.  Secondly, considering the background of the dispute between the parties, I have serious doubt about the creditability of the evidence of the Caveator and her Husband.

16.  In the affidavit of Ms Tung Yu Ying Frances who is one of the Trustees (“Madam Tung”), she has provided a detailed account about the various fruitless attempts made by the Caveator’s Husband to delay the granting of the probate to the Trustees.

17.  The Caveator’s Husband filed his first caveat in HCCA 1921 of 2010 on 21 June 2010 (“the 2010 Caveat”) against the sealing of the grant of the Deceased’s estate.  After the solicitors for the Trustees had furnished evidence on the testamentary capacity of the Deceased in making the Will, the Caveator’s Husband withdrew the 2010 Caveat.

18.  The Caveator’s Husband filed another caveat in HCCA 282 of 2011 on 20 January 2011 (“the 2011 Caveat”).  The Caveator’s Husband then commenced probate action HCAP 20 of 2011 (“the Probate Action”) against the Trustees, claiming that the Deceased did not have the testamentary capacity in making the Will.  The Trustees applied for summary judgment against the Caveator’s Husband in the Probate Action.  Before the hearing of such application, the Caveator’s Husband substantially amended the basis of his claim.  The Trustees then applied successfully for security for costs against the Caveat’s Husband.  As he defaulted in the payment of security, the Probate Action was dismissed.

19.  Apart from these proceedings, the Caveator’s Husband had repeatedly commenced legal actions against his own and the Trustees’ father (“the Father”) for alleged misappropriation of assets under the will of Madam Ip who was the wife of the Trustees’ grandfather (“Madam Ip”).  The latest proceedings were commenced on 11 November 2011 under HCMP 2291 of 2011, and such claim was the third one that the Caveator’s Husband had made against the Father regarding the estate of Madam Ip.  HCMP 2291 of 2011 was struck out by Master Levy on 20 November 2012.

20.  Notwithstanding the dismissal of such action, the Caveator commenced another action, HCMP 794 of 2013, for her Husband and in the name of her adopted daughter against the Father.  The cause of action is more or less the same as those pleaded in the previous actions by the Caveator’s Husband, and the relief sought in that action is the same as that claimed in HCMP 2291 of 2011.  The Father has made an application to strike out the claim.

21.  In her affirmations, the Caveator does not seek to challenge these allegations made by the Trustees.

22.  Based on such background information, this court has reasons to believe that, by entering the Caveat, the Caveator is making another attempt for her Husband to delay the administration of the estate of the Deceased. By reason of the dismissal of the Probate Action, the Caveator’s Husband may not be able to challenge, in his own name, the granting of the probate to the Trustees (see: r 44(12) & (13) of the Non-Contentious Probate Rules (Cap. 10A)), and so this time he did it through the Caveator, by having the Caveator entering the Caveat and the Appearance to Warning in her own name.  Taking into account such background, there is sufficient evidence to cast doubt on the creditability of the evidence of the Caveator and her Husband, and so I do not accept their bare allegation that they have not received the Trustees’ Summons.

23.  Further, it is clear that the entering of the Caveat was an abuse of process or frivolous or vexatious.  As she is not a beneficiary under the Will nor would she be entitled to a share in the estate in the case of intestacy, the Caveator has no contrary interest whatsoever in the estate of the Deceased.  As a matter of fact, the Trustees, in the Warning to the Caveator dated 5 July 2013, requested the Caveator to enter an appearance in the Probate Registry setting forth her interest in the estate contrary to that of the Trustees, and yet the Caveator did not state such interest in the Appearance to Warning entered by her dated 15 July 2013.  She has only mentioned that her daughter, who allegedly is entitled to a share of the estate of Madam Ip, is objecting the granting of the probate as there may be mixing up of properties belonging to the estates of Madam Ip and the Deceased.  However, the Caveator has not given further details of such allegation in her affirmations.  With the lack of particulars, this is not a good reason to oppose the granting of probate of the Deceased’s estate to the Trustees.  Further, the Caveator has failed to demonstrate how the mixing up of properties, even if it was true, would affect the Trustees’ right to apply for probate of the estate of the Deceased.  Hence, the entering of the Caveat is just a further frivolous attempt made by the Caveator on behalf of her Husband to delay the granting of the probate, which is clearly an abuse of the process of the court.

24.  Based on the aforesaid, the Caveator’s appeal is totally without merit and I therefore dismissed her application for leave to appeal against the Order out of time.

25.  As I have reasons to believe that the Caveator had entered the Caveat and lodged the present appeal with a view to delay the granting of the probate to the Trustees, I ordered the Caveator to pay the costs of the appeal on an indemnity basis.  I had also summarily assessed the Trustees’ costs in the hearing.