RE WONG CHI KEUNG

HCAG 11512/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 11512 OF 2014

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REASONS  FOR DECISION
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Introduction

1.  This concerns the dismissal of the applicants’ application.  The application was in effect to exclude the respondent thereto from being one of the applicants for grant of administration for the use and benefit of an underage person.

2.  Brief reasons for the dismissal appear below.

Background

3.  The following summary is largely undisputed.

4.  The deceased (“the dec’d”) passed away rather young and sudden (and perhaps also untimely from his family members’ point of view) at 52 without a will in August 2012.

5.  Although the parties never expressly accept it, to an informed and observant bystander there are strong indications his close relatives have broken into two camps:

(a) one camp consists of his divorced wife (“A2”), who acts as the attorney of the dec’d’s 20-year-old son (“Kevin”), and his 23-year-old daughter (“A1”).  Both A1 and Kevin were the children of the dec’d and A2;

(b) the other camp is the dec’d’s mother (“the respondent”), the dec’d’s siblings (respectively “Anna” and “Kenny”) (and Anna’s husband (“Edward”)) and two ladies (“Mdm Wang” and “Mdm Li”) who appear to have an intimate relationship with the dec’d.  The dec’d’s daughter (who was born out of his relationship with Mdm Wang) is about 8 years old (“the minor”).

6.  The individuals who would be beneficiaries of the dec’d’s intestate estate are A1, Kevin and the minor.  No dependant’s claim has yet arisen; neither A1 nor the respondent have indicated they would make such claim against the estate.

7.  This application was targeted at the respondent’s earlier application (in January 2016) to be appointed as a guardian of the minor for the purpose of applying for a grant of administration for the minor’s use and benefit (praying in aid r 31(3), Non-Contentious Probate Rules (Cap 10A)).

This application

8.  The applicants’ main argument in support of this application was that the respondent was in conflict of interest as against the minor.

9.  The matters relied upon as constituting the conflict of interest can be summarized as follows.

10.  The dec’d was also the registered owner of a property unit in Guangzhou (“the Guangzhou ppty”).  Mdm Li’s claim to the Guangzhou ppty was challenged by the applicants, and the challenge became the subject matter of a legal action in the Mainland (“the Mainland proceedings”).

11.  The applicants complained that the respondent effectively sided with Mdm Li in the Mainland proceedings.  More importantly for purpose of this application, the respondent’s said stance would be incompatible with the due administration of the dec’d’s estate.

12.  The respondent was also said to have adopted incompatible stance as regards the following parts of the dec’d’s estate; namely, the respondent had also sided with the dec’d’s siblings and Edward:

(1) in their claim to the shares of a company which holds a residential unit and car park spaces at Nicholson Tower, and the shares of another company which holds the dec’d’s former residence in Ma On Shan;

(2) in the recovery of the dec’d personal items including a yacht from Kenny.

13.  The alleged conflict of interest is more apparent than real.  First, the respondent is the minor’s natural grandmother. As against the applicants, she enjoys a much closer and caring relationship with the minor than any of them.

14.  Secondly, as regards disputes arising out of the properties which the applicants claim should form part of the dec’d’s estate, there is no doubt the applicants would do their utmost to assert those claims for the dec’d’s estate.  The adverse claims, on the other hand, do not come from the respondent herself.  Practically speaking, there is therefore little chance the minor’s interest would be (or could be) compromised. 

15.  The minor’s mother, Mdm Wang, appears to also enjoy a good relationship with the respondent.  When Mdm Wang encountered difficulties with obtaining a surety guarantee in her earlier r 31(3), Cap 10A application (a matter insisted upon by the applicants), she turned to the respondent for help (which resulted in the respondents’ January 2016 application).  She has also provided a draft affirmation herein on the respondent’s behalf, and instructed the same legal team to represent both herself and the respondent in this application.

16.  The paramount consideration in the exercise of the discretion conferred by r 31(3), Cap 10A must be the best interest of the underage person.  In the circumstances outlined above, the best interest of the minor clearly lies with not granting the relief sought in this application.

17.  The applicants’ reliance on the provisions of the Guardianship of Minors Ordinance (Cap 13) is misconceived.  Other than to the extent that an underage person’s best interest is the paramount consideration, the subject matters covered by Cap 13 and Cap 10A are vastly different.

Other matters

18.  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 reasons for 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

19.  The applicants asked for the costs of this application to be reserved while the respondent asked for those costs against them.

20.  No valid reason has been put forth to justify a departure from the usual rule that costs should follow the event.  There will accordingly be a costs order that the costs are to be paid by the applicants forthwith.

21.  I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.