TANG YIN MEI v. POON WANG CHEONG (in his capacity of the administrator pending suit of the Deceased)

HCMP 1768/2017
[2018] HKCFI 369

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1768 OF 2017

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D E C I S I O N

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1.  This is an application of the plaintiff, Ms Tang, by her originating summons dated 16 August 2017.  Her application concerns the estate of her late father (“the Deceased”).  The Deceased had two wives, namely, Madam Lee and Madam Wang. The Deceased had borne no children with Madam Lee, who is now aged 93, whereas the Deceased and Madam Wang, who passed away in 2011, had four children, namely, three sons and one daughter, that is, Ms Tang.  The Deceased passed away intestate on 19 September 1999.  The defendant, Mr Poon, is a professional accountant appointed by Madam Beeson J to be the administrator pending suit in a probate action under HCPA11/2000, by an order dated 9 June 2000 (“the Order”).  Under paragraph 2 of the Order, the duties of Mr Poon are clearly set out.  Paragraph 5 of the Order stipulates that “Mr Poon do pass his accounts as the court shall from time to time direct.”

2.  Apart from this probate action, there is another High Court action on foot, and Mr Poon is the plaintiff in that High Court action, making a claim against Madam Lee, Madam Wang and the brother of Ms Tang and Ms Tang herself.  This application is made under section 56 of the Probate and Administration Ordinance, Cap 10, and order 85, rule 2 of the Rules of the High Court, Cap 4A. 

3.  In the originating summons, Ms Tang asks for an order that Mr Poon do make an affirmation exhibiting a true and perfect inventory and account of the moveable and immoveable property of the estate of the Deceased pursuant to section 56 of the PAO and file the same to the court and serve the same on all the known beneficiaries of the estate within 14 days from the date of the service of the Order on him.  Further, Ms Tang asks for an account as to Mr Poon’s dealing with the estate of the Deceased and any assets therein and all necessary and consequential vesting orders. 

4.  It is common ground that ever since the appointment of Mr Poon in 2000, Mr Poon has not furnished any accounts to the beneficiaries of the estate of the Deceased, and there is no dispute that Ms Tang is one of the beneficiaries.  The application appears to be well‑founded to this court.  Mr Lau, counsel for Mr Poon, seeks to persuade this court that Mr Poon should be relieved from the onerous duty to provide an account to the beneficiaries, including Ms Tang, in the particular circumstances of this case.  While he fairly accepts that the starting point should be the statutory duty set out in section 56 of the PAO, he urges upon this court to consider the practice direction, PD26.2/16, which provides that:

“Whether an account is ordered will depend upon the size and nature of the estate and upon any other relevant factors.”

5.  He further stresses to this court that if there is a consent to dispense with formal accounts, a written consent from all parties interested should be lodged.  In regard to the size and the nature of the estate, it is not in dispute that there are seven landed properties registered in the name of the Deceased, and the Deceased also operated a business known as Hop Lung Ice Factory.  Mr Lau fairly accepts that the size of the estate cannot be said to be insignificant and not substantial.  He merely highlights the complications concerning the beneficiary ownership of the estate and the fact that some of the landed properties are still being occupied by the beneficiaries.

6.  I do not think that these matters would be sufficient to absolve the administrator from providing an account.  Mr Lau further submits that there are relevant factors to be taken into account.  First, he reminds this Court of the progress of the two actions previously mentioned.  That is, the probate action and the High Court action.  He also draws my attention to the fact that no other beneficiaries, apart from the plaintiff, asks for an account.  Lastly, he also highlights to this Court the costs of the preparation and the provision of such accounts would be a concern of Mr Poon.

7.  I am also alive to all those factors set out in the affirmation of Mr Poon, and in particular, those allegations against Ms Tang to the effect that she has not acted reasonably in both the probate action and in this application. Despite Mr Lau’s efforts, I am not persuaded that any of those matters would be sufficient to relieve the administrator from his statutory duty. Though it is agreed that if there is a consent of all the beneficiaries, the administrator pending suit can be excused from providing an account, this is not the situation here.  Mr Poon has adduced no evidence to the effect that all other beneficiaries have expressly agreed to dispense with an account. 

8.  The purpose of the two High Court actions is neither here nor there.  So long as Mr Poon remains the administrator pending suit, he is under the duty to provide an account if so directed under the Order, and of course, pursuant to section 56 of the PAO.  Costs of preparation and furnishing of the account should no doubt come from the estate, and whether Mr Poon should be ordered to pay the costs of this application is another matter.  Lastly, Mr Lau submits that there are practical difficulties with the preparation of true, perfect and final accounts at this stage because of some complications. 

9.  I am not in a position to assess the difficulties and the complexity of the preparation of the accounts, but it should not provide a reason for an administrator not to provide an account, and the account, as fairly accepted by Mr Boey, counsel for Ms Tang, needs not to be final.  All that Ms Tang wishes is the compliance of the duty of Mr Poon under section 56, and I see no reason why Mr Poon can escape such a duty. 

10.  In the premises, I allow Ms Tang’s application and I would make an order that Mr Poon should make an affirmation exhibiting a true and perfect inventory and account of the moveable and immoveable property of the estate of the Deceased pursuant to section 56 of the PAO and file the same to court within 35 days from today.  I will make no order as to paragraphs 2 and 3 of the originating summons.