RE CHAN MEI LING alias WONG AH HO

HCAG 13429/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 13429 OF 2012

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D E C I S I O N

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The application for grant

1.  This is an ex-parte application for the grant of the letters of administration for the deceased’s estate and for inclusion of Wong Ah Ho (黃亞好) as the alias of the deceased in the letters of administration.  In this application, the applicant has filed an affirmation, in which he had set out the facts in support of his application, the relevant parts of which are as follows:

a. The applicant: Chan Chi Wai (陳志偉), 56, a retiree; a natural son of the deceased;

b. The deceased died intestate;

c. The deceased had no other children or issue during her life;

d. The deceased was never married to any person;

e. The true name of the deceased was Chan Mei Ling (陳美玲).  There is a birth certificate with the name of the applicant’s mother as Wong Ah Ho (黃亞好);

f. The deceased did not hold any asset in the alias of Wong Ah Ho (黃亞好);

g. The above two names refer to the same person; and

h. The applicant had searched the deceased’s papers and effects, but he was not able to find any Will of the deceased.

2.  The value of the deceased’s estate is approximately HK$2 million.

3.  It should be noted that in his affirmation, the applicant had not even stated the reason for the Wong Ah Ho (黃亞好) to be added in the grant.

4.  In the Birth Certificate of the applicant, the name of his mother is Wong Ah Ho “黃亞好”, which will raise the issue of whether the deceased and Wong Ah Ho was the same person; hence, whether the applicant is the natural son of the deceased.

5.  The applicant is represented by Messrs Katherine Y W Or & Company, a firm of solicitors.

The application should identify the relevant statutory provisions

6.  In the application, the relevant statutory provisions under which the ex-parte application is made had not been set out.  Although this is not the specific requirement in the statutory form, there is nothing in the statutory form to prevent the solicitors from stating the relevant statutory provisions in the body of the affidavit or affirmation in support of the application.  It will be good practice that the solicitors should clearly identify the statutory provisions under which the application is made.  This is specifically required for the application for fast track for the complicated cases.  The Probate Masters found that useful for the consideration of the application.  Furthermore, it will serve two other purposes: It will focus the solicitor’s attention to the relevant statutory requirements and will also facilitate the Probate Registry to process the application expeditiously.  I shall point out the significance of this issue as demonstrated in this application below.  I understand that the statutory forms are designed for the parties not legally represented as well.  They may have good reasons for being not able to specify the statutory provisions for their applications.  But the solicitors acting for the parties should have no difficulty in doing this and I encourage them to do so.

7.  The Probate Officer may raise the requisition on the statutory provisions and the solicitors in charge of the matter must supply the particulars as required under rule 5 of the Non-Contentious Probate Rules (Cap10A).  However, in order to save time for the correspondence on requisitions, it is advisable for the solicitors to put the relevant statutory provisions in the affidavits or affirmations in support of the ex-parte applications for grant.

8.  According to the Probate Officer, this application is made under s4(5) of Intestates’ Estates Ordinance (Cap 73) and r7 and r21(1)(ii) of Non-Contentious Probate Rules, (Cap 10A).

9.  Today, I have Mr Ho, the solicitor in charge of this application, who confirms that those are the appropriate statutory references for the application.

The requisitions

10.  The Probate Officer had raised three requisitions, namely:

a. The issue of the surviving spouse;

b. The name of the mother on the birth certificate of the applicant is Wong Ah Ho (黃亞好), not Chan Mei Ling (陳美玲).  Therefore there should be evidence to prove that Wong Ah Ho (黃亞好) and Chan Mei Ling (陳美玲) refer to the same person; and

c. The reasons for including Wong Ah Ho (黃亞好) as the alias.

The requisition on the surviving spouse

11.  The applicant has cleared the issue of the surviving spouse.  The father, named in the birth certificate of the applicant, had by his declaration dated 19 June 2013, stated that he and the deceased had co-habited in 1955, but their intimate association had broken up after a couple of years.  They had not gone through any ceremony of marriage as husband and wife nor had he accepted her as his lawful kit fat wife.  However, he had not stated in his declaration on what basis he could say that Chan Mei Ling (陳美玲) and Wong Ah Ho (黃亞好) referred to the same person.

The requisition on whether the deceased and Wong Ah Ho was the same person

12.  The next requisition requires the applicant to show that the deceased and Wong Ah Ho (黃亞好) was the same person.

13.  Paragraph 43 of the Guide to Non-Contentious Probate Practice states:

“When a deceased’s name in an official document such as his birth certificate or death certificate appears to be different from the deceased’s name as stated in the title, the applicant must adduce evidence to prove that these different names in fact refer to the same deceased person. Direct evidence should be adduced by the production of a deed poll, failing which, other documents such as the deceased’s statutory declaration or a certificate of registered particulars of the deceased issued by the Immigration Department should be produced.”

14.  As directed by the Court, the applicant obtained the certificate of registered particulars of the deceased issued by the Immigration Department, which bears no evidence to show Chan Mei Ling (陳美玲) and Wong Ah Ho (黃亞好) referred to the same person.

15.  So far, the evidence available for the applicant’s proof are:

a. The deceased’s Identity Card with the name of Chan Mei Ling (陳美玲);

b. The Death Certificate bearing the same name only;

c. The applicant’s affirmation saying that Chan Mei Ling (陳美玲) and Wong Ah Ho (黃亞好) were the same person, without supporting factual evidence;

d. The affirmation of identity by a person called So Wai Yee, Cecilia (蘇惠儀), who affirmed that she was acquainted with the deceased and the applicant for some 30 years and that the applicant is the natural son of the deceased. This affirmation of identity is in accordance with the Statutory Form M2.1.  It should be noted that this affirmation of identity is by its nature a self-serving piece of evidence. It would therefore be rarely accepted as evidence to prove the status of a person or a relationship with another person. See paragraph 119 of the Guide.  However, it will gain weight when there is other collateral or supporting evidence to prove its contents.  This, I shall discuss below.

e. A declaration of Mr Chan Shing, the natural father of the applicant, who could not say whether the deceased had another name.

f. The certificate of the Immigration Department, which does not prove the deceased’s alias, para 14 supra.

16.  On the evidence above, I was not satisfied that the applicant had shown that Chan Mei Ling (陳美玲) and Wong Ah Ho (黃亞好) referred to the same person.  I therefore invited the applicant’s solicitor to fix a date before myself for clarification of this issue.  But before the hearing, the applicant had filed further evidence for my consideration.

The affirmation of identity to be supported by other affidavit evidence

17.  The applicant filed three affirmations respectively made by Mr Wong Ming, the half-blood brother of the Deceased, uncle of the applicant,  Mr Chan, the applicant’s father and the applicant’s own further affirmations.  In his affirmation, Mr Wong affirmed that he and the deceased were given birth by the same natural mother and different fathers.  The deceased was older than he.  He grew up together with the deceased and he called her “家姐”(elder sister).  The deceased would like to assume the step-father’s surname when she talked to the clans and she introduced herself as “黃亞好”.

18.  The applicant’s father’s supplemental declaration purports to show that he had heard the deceased call herself as Wong Ah Ho.  She preferred people to call her that name. The applicant’s further affirmation shows that there was medical record, which showed that the deceased was the applicant’s mother.

19.  Mr Wong’s and the father’s affirmations cannot be treated as the Affirmations of Identity as per the statutory form M2.1 because the statutory form requires the affirmants having no relationship with the applicant.  However, their affirmations can be treated as supporting evidence of Madam So’s Affirmation of Identity.  Mr Wong’s affirmation has set out the factual background, which renders credibility to Madam So’s affirmation of identity.  I can therefore rely upon these affirmations to found my belief that the applicant is the deceased’s son. The solicitors for the applicant should have file the affirmations in support of the application together with Madam So’s Affirmation of Identity in the first place. It is clear that Mr Wong was available to make the affirmation.  If the solicitor had filed Mr Wong’s affirmation in support of Madam So’s Affirmation of Identity in the first place, it will obviate the necessity of raising the requisitions by the Probate Officer, saving time for both the solicitor and the court.

20.  Before I close my discussion on the evaluation of the evidence to prove the identity of the deceased, I should further state clearly the court’s approach on its assessment of the evidence in any ex-parte applications for grants under the Non-Contentious Probate Rules (Cap10A) lest it would be taken that the court will accept any evidence on its face value and thus, its power of investigation will be hampered.  In fact, it is quite the contrary. I shall explain as follows.

The court’s power to call the affirmant or deponent to attend court for cross-examination

21.  Paragraph B, 13 of Part 2 on page 18 of the Guide on the jurisdiction of the court has stated it clearly that the probate jurisdiction is inquisitorial.  See also Nina Wang v Wong Din Shin (2005) 8 HKCFAR 387, at paragraph 643 by Lord Scott.  In Nina Wang’s case, Lord Scott was discussing the Court exercising its powers in probate proceedings where probate of a will in solemn form was sought.  It is obvious that the function of the court remains the same for Non-Contentious applications, only with a heavier duty on it as there is no other party on the other side to challenge and test the evidence adduced by the applicant for the grant.  The ultimate duty to protect the public interest in ensuring that the grant is given to the rightful parties falls upon the solicitors acting for the applicant and the court.  Here, I emphasize that the first priority of the solicitor in charge of the application is his/her duty to the court for the administration of justice, as he/she is an officer of the Court, not to the client. The solicitor has the duty to ensure that the evidence adduced to the court is genuine and support the application in accordance with the law.  Also, the burden on the applicant to give full and frank disclosure of the documents and evidence to the court is obvious.

22.  Seizing the function with the inquisitorial element to it, the court should have the power to call upon or summons the witnesses, who have made the affidavits or affirmations in support of the application, to attend court for examination or cross-examination as the court sees fit.  They are the witnesses of the court.  The power of the court to summons a witness to the witness box arises out of the court's inquisitorial duty as confirmed in Nina Wang v Wong Din Shin (2005) 8 HKCFAR 387, at paragraph 643 by Lord Scott, the relevant part of which is:

“…… The reasoning that treats attesting witnesses as witnesses of the court, amenable to being placed in the witness-box and cross-examined whether they like it or not, applies equally strongly to a witness in the position of Mrs Wang in the present case.... ...The power of the judge so to direct derives, in my opinion, from the inquisitorial character of probate proceedings ……”

23.  Given the heavy duty of the court and the nature of the non-contentious applications for grants involving the estates of the deceased and the interest of the beneficiaries who may be children or people in need of care and assistance physically or financially, the court’s discretion and power of calling the witness to attend court for enquiry shall not be fettered.  It will take the initiative to do so when the circumstances are such that it has doubt over the evidence adduced such as, in this application, the affidavit of identity filed by So Wai Yee, Cecilia (蘇惠儀).  If the applicant had not filed the affirmation made by Mr Wong Ming, the half-blood brother of the Deceased and the natural father of the applicant, I will have no hesitation in summoning Madam So to come to court for cross-examination as to the basis on which basis she could affirm that the deceased had an alias.  Unless she is able to give good reasons in support of what she said in her affirmation, I shall attach no weight to her evidence in her affirmation of identity.  With Mr Wong’s and Mr Chan’s affirmations, I am satisfied that it is unnecessary to do so.  All these affirmations refer to the applicant being the son of the deceased, who had another name of Wong Ah Ho (黃亞好).

24.  As to Mr Wong’s affirmation, there is no evidence before me to doubt his identity or the contents of his affirmation.  Mr Wong has assumed the legal responsibility of making an affirmation to this Court in support of the applicant’s application.  Although Mr Wong is related to the applicant, I do not have evidence to doubt his evidence.  Having considered his evidence together with other evidence before me, I consider that I can rely upon his evidence to support Madam So’s affirmation that the deceased had an alias of Wong Ah Ho (黃亞好).

25.  Pausing here, I should advise the solicitors acting for the applicants that they should advise those who make affirmations or affidavits in support of the applications that they have to stand by to answer the enquiries that the court may have on the contents of the affirmations or affidavits.  They may even be summoned to attend court for the enquiry or to be cross-examined by the court.

Paragraph 42 of the Guide – alias to be added to the grant

26.  Two days before today’s hearing, the solicitor acting for the applicant had sent me a letter, saying that, upon counsel’s advice, the application for the inclusion in the grant should be withdrawn.  For the sake of clarifying this issue, I shall set out the consideration that this court will take in this sort of applications.  In fact, I have discussed with Mr Ho the other case, in which the court granted permission to include the alias in the grant.  I shall discuss the issue by reference to this application below.

27.  Paragraph 42 of the Guide[1] provides:

“If a deceased’s alias is included in the title when it is sought to obtain a grant in which he is described by a further name in addition to his true name, the applicant is required to comply with rule 7.[2] The applicant must depose to the fact in the oath, setting out the true name of the deceased and that some specified part of the estate was held in the other name or giving any other reason for the inclusion of the other name in the grant.”

28.  The applicant has not stated in his affirmation in support of this application the reasons for inclusion of the other name in the grant.

29.  In answer to the requisition, the solicitors stated in the letter dated 5 December 2012 that it was “for the purpose of good record or more importantly, paying respect to the deceased person…”

30.  Since the Guide has provided the guideline for the application, the solicitors for the applicant should put the reasons in the affirmation in support of the application in the first place.  The answer to the requisition has not complied with the statutory requirement under rule 7 of the NCPR because it was not put in the affirmation of the applicant.

31.  Today, I have Mr Ho, the solicitor in charge of this application, to appear before me to discuss this issue.

32.  In reply to my question why the reason for including the alias in the grant was not put in the affirmation in accordance with rule 7 of NCPR (Cap10A), Mr Ho says that it was an oversight.  He agrees that if he had put the statutory references in the supporting affirmation, he would have been reminded of the statutory requirement.

33.  Having considered Mr Ho‘s explanation, I decide that he is right to withdraw his application.  If he persists, I will, nevertheless refuse to grant permission to include the alias in the grant for this case.  I shall state my reasons as follows:

a. Rule 7 has stated clearly that the grant should be granted in the true name of the deceased.  Alias to be included in the grant must be for good reason.

b. The grant is for the administration of the deceased’s estate. It is an issue of necessity for practical purposes.

c. The application must be further considered to balance the other factors such as confusion that will cause to other people, who bear the same name as the alias or even any possibility of interference with other people’s estates under the same name as the alias where no application has been taken out for the grant, bearing in mind that the grant of this Court can be used to obtain grants in other jurisdictions such as the mainland as well.

d. Of course, the court will consider the factors such as those raised above judiciously, bearing in mind the possibility being imminent or remote and will make its decision accordingly.

e. In this case, the applicant has affirmed that the deceased had held no asset in her alias.

f. I further consider that there is no evidence that refusal of including her alias in the grant will cause any disrespect to the deceased.

g. I note that in another case In the estate of Cynthia Wai-Man Fang alias Cynthia W Fang alias Fang Cynthia Wai Man (李慧文) alias Li Wai Man (李慧汶) HCAG 5519/2005 delivered by Master J Wong on 7 March 2006, the Master had exercised his discretion under rule 5 NCPR (Cap 10A) to allow the application to include the alias of the deceased in the grant despite the fact that he disagreed with the reasons given for the application.  He had, however, considered that if he refused the application, the applicants, one aged 90 and the other 72 had to make affidavits for the amendment of the papers for the application before the notary public in the US[3].  He had also taken into consideration the risk that the applicants would use the alias to do something bad being negligible[4].  He finally waived the requisitions on a without-creating- precedent basis[5].

h. None of those circumstances in the case mentioned above apply in this application.

i. I see no reason to allow the application for including the alias in the grant.

The grant

34.  I therefore grant the letters of administration to the applicant in the true name of the deceased only without her alias.

Publication of this Decision

35.  In the discussion today, Mr Ho agrees that the statutory references in the body of the affidavit or affirmation in support of the application for grant are helpful for him to check the statutory requirements.  They are also helpful for the probate officers too.  He agrees that he will insert the statutory references in his applications for grants in future.  Mr Ho has also agreed that the discussion this morning will be helpful for other members of the profession.  He agrees to the publication of this Decision.