RE LEUNG WAI FONG

HCAG 5395/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 5395 OF 2004

_________________________

_________________________

_______________

D E C I S I O N

_______________

Application

1. This is the 9th application on the Non-Contentious Probate List.  Ms. C. Tsang of Messrs. Susan Liang & Co., solicitor acting for the applicant, told this Court that she was not arguing the “legality” of the requisitions.  Instead, she wanted to see if the matter could be pursued in the alternative way suggested by her.

Background

2. On 5 November 2003, the Deceased died intestate at Hong Kong Sanatorium Hospital leaving an estate of $279,376.66.

3. On 17 June 2004, the applicant filed his application with the Court for the letters of administration in respect of the Deceased’s estate.  He deposed, inter alia, in his first affirmation (1) that:

“The…deceased…died…a widow leaving her surviving the following persons being the only persons entitled to share in her estate:-

(a) CHOI VENESSA MO LIN (蔡慕蓮), her lawful and natural daughter, aged 48 years;

(b) KWONG CHI SHING SAVIO (鄺志成), her lawful and natural son, aged 43 years.

The deceased was domiciled in Hong Kong.

2. KWONG TING (鄺庭), the lawful husband of the deceased, pre-deceased her on the 10th day of June 1979 at Queen Mary Hospital, Hong Kong aged 71 years.

3. The deceased was never married to any person other than the said KWONG TING (鄺庭).  The deceased was married to the said Kwong Ting in Hong Kong in 1956 according to the Chinese customary rites and ceremony.

4. The deceased was the lawful kit-fat wife of the said KWONG TING (鄺庭).

5. ……”

4. Upon checking (1) against other documents filed, the officer raised various requisitions and eventually, on 11 July 2005, the applicant filed his second affirmation (1A) telling this Court that:

“The…deceased…died…a widow leaving her surviving the following persons being the only persons entitled to share in her estate:-

(a) CHOI VENESSA MO LIN (蔡慕蓮), her lawful and natural daughter, aged 49 years;

(b) KWONG CHI SHING SAVIO (鄺志成), her lawful and natural son, aged 44 years.

(c) KWONG YIN CHAN (鄺銀嬋), her lawful daughter, aged 68 years;

(d) KWONG KIN WAH JAMES (鄺健華), her lawful son, aged 62 years;

(e) KWONG NING SANG JEFF (鄺寧生), her lawful son, aged 61 years;

(f) KWONG SAI PING JOE (鄺世平), her lawful son, aged 58 years;

(g) KWONG TSUI HUNG ANN (鄺翠紅), her lawful daughter, aged 58 years;

(h) KWONG MING HAY ERIC (鄺明曦), her lawful son, aged 54 years.

The deceased was domiciled in Hong Kong.

2. KWONG TING (鄺庭), the lawful husband of the deceased, pre-deceased her on the 10th day of June 1979 at Queen Mary Hospital, Hong Kong aged 71 years.

3. The said Kwong Ting married WONG FUNG (黃鳳) in China in early 1930’s according to Chinese customary rites and ceremony.  The said Wong Fung was the lawful kit-fat wife of the said Kwong Ting.  The said Wong Fung was never married to any person other than the said Kwong Ting.

4. The deceased was never married to any person other than the said Kwong Ting.  The deceased was married to the said Kwong Ting in Hong Kong in 1956 and became his concubine according to the Chinese customary rites and ceremony.

5. The deceased was the concubine of the said Kwong Ting.

6. The said Wong Fung pre-deceased the deceased on the 27th day of February 2000 at Sonoran Rehabilitation and Care Center, Phoenix, Arizona, USA.

7. ……”

5. Requisition nos. 10 to 12 were raised:

“ 10. The death certificate of Wong Fung should be duly legalized by way of Apostille.  Please file a duly apostilled original death certificate of Wong Fung.

11. Please file an affidavit to prove the concubinage of the deceased and Kwong Ting by a competent person.

12. Please explain by letter why there is discrepancy in relation to the particulars of marriage and issue of the deceased in (1) & (1)A.  (Please note the importance of making an oath.)”

6. Ms. Tsang decided to take up these 3 requisitions with me.  To sum up, she submitted that the requisitions could be dispensed with because:

(a) The death of Madam Wong Fung was irrelevant. She would not be entitled to the grant and the estate even if she was the wife of Mr. Kwong Ting.

(b) Irrespective of whether the Deceased was the concubine or the lady of Mr. Kwong Ting, the applicant was still entitled to the grant in the capacity of the natural and lawful son or the natural son.

Ruling

7. Now, upon careful consideration of the submission of Ms. Tsang, I have come to the conclusion that:

(a) Requisition no. 9 is to be taken off.

(b) Requisition no. 10 is to be complied with.

(c) Requisition no. 11 is also to be complied with.

My reasons appear as follows.

Primary facts

8. The legislature asks this Court to ensure that the grant is issued to the proper person under the law.  Any facts affecting the right of entitlement by the applicant to the grant is important and of the primary concern of the Registrar.  I call them primary facts (主要的事實). They include:

(a) the death of the deceased;

(b) the fact that the applicant is entitled to the grant under the law, including, for example:

(i) a “lawful marriage” when the husband claims the grant for his deceased wife,

(ii) a “lawful marriage” and a “parental relationship” when a lawful and natural son claims the grant for his deceased parent,

(iii) a “lawful marriage” and a “common parental relationship” when a lawful and natural brother claims the grant for his deceased sister, and

(iv) the “death” or “renunciation” of any person having prior right to the grant over the applicant.

Secondary facts

9. To perform the duty to issue grant to the right person, the Registrar published “Specified Forms” to be completed by the applicant.  The forms require facts incidental to the primary facts.  I call them secondary facts (次要的事實).  They include information relating to:

(a) person(s) entitling to or entitling to share in the estate,

(b) issue of the deceased, and

(c) all other particulars of the family members.

The secondary facts are usually relevant and useful to determine the primary facts. The Registrar requires the secondary facts because they can help to discharge his duty to make inquiries.  Nonetheless, it is also true that sometimes, the secondary facts are relatively less important than the primary facts.

Requisition no. 9

10. Bearing the above concepts in mind, I turn to the three requisitions raised by Ms. Tsang.  It is now the case of the applicant that:

(a) Mr. Kwong Ting is the lawful husband,

(b) Madam Wong Fung is the lawful kit-fat wife, and

(c) the Deceased is the concubine.

As such, if they are be accepted, according to rule 21 of the Non-Contentious Probate Rules (Cap.10A)(“NCPR”), Madam Wong as the principle wife is under no circumstances entitled to the grant and/or share in the estate of the Deceased.  The death of Madam Wong does not therefore affect the application.  The only relevance of her death is perhaps: whether she can act as a witness in confirming the concubinage of Mr. Kwong Ting and the Deceased.

11. The applicant is now confirming on oath with this Court that Madam Wong died on 27 February 2000 in the States, and a copy of the death certificate was also filed.  In my view, the evidence having been filed suffices for the purpose of establishing a secondary fact.

Requisition no. 10

12. The concubinage between the Deceased and Mr. Kwong Ting shall be proved to the satisfaction of the Registrar on balance of probabilities.  Such relationship affects the description of the applicant (lawful and natural son or just natural son?) and therefore his entitlement and priority to the grant.

13. There is no doubt that the Registrar is entitled to ask for something more than the “facts” stated in the affirmation.  Rule 5(2) NCPR states that:

“(2)  The Registrar may require proof of the identity of the deceased or of the applicant for the grant beyond that contained in the oath.”

14. I can understand the argument of Ms. Tsang: the applicant is entitled to the grant whether the Deceased is her natural mother or her natural and lawful mother.  Upon thoughts, bearing in mind the inquisitional jurisdiction of the Probate Registry, I do not consider I can accept such “alternative plea” i.e. “I am either the lawful and natural son or just the natural son of the Deceased. I cannot be too sure, but please let me have the grant.”  Factually, the Registrar must be satisfied one way or the other.  The applicant’s case is now appearing in (1A), corresponding evidence shall be adduced to satisfy the same.

15. Ms. Tsang further submitted that it was difficult, if not       impossible, for her to locate available witness to prove the concubinage as it was something happened in 1956.  In this respect, there was no “competent” witness.  I take a different view from that of her.  In the context of non-contentious probate matters, “competency” of witness means nothing more than “the best available evidence rule”.  When the applicant has to rely on affidavit evidence, a simple order of “preference” may be described as:

(a) An independent witness not related to the Deceased/the applicant by blood, marriage or adoption. He is also not interested in the outcome of the application.

(b) A witness related to the Deceased/the applicant by blood, marriage or adoption but not interested in the outcome of the application.

(c) A witness related to the Deceased/the applicant by blood, marriage or adoption and interested in the outcome of the application.

Further, a witness with direct knowledge, rather than hearsay, is preferred, and a witness of majority is also better than a minor.

16. In my view, strictly speaking, there is no “incompetent” witness in the sense that it is really a matter of the “weight” of the evidence to be attached by this Court.

17. Applying such analysis to our case, witnesses as per paragraph 15(a) and (b) might not be available.  Madam Wong cannot help us because she was dead.  However, probably, the children born by Mr. Kwong Ting and Madam Wong should be able to assist. They belong to category 15(c) above. Further, assuming Mr. Kwong Ting did take the Deceased as concubine in 1956, 5 out of the 6 children born by Mr. Kwong and Madam Wong would be of age by that time.  One of them should be able to depose to the validity of concubinage.

Requisition no. 11

18. The nature of non-contentious application for grant, unlike the adversarial proceedings wherein there is an “opponent”, is equivalent to an ex-parte proceedings, i.e. the applicant applies on his own to the Court for a grant to administer the estate of the deceased.  Hence, no doubt, the applicant must make full and frank disclosure to the court of all material matters within his knowledge.  He shall never mislead the Court.

19. (1) is substantially different from (1A).  It is therefore reasonable to ask for an explanation.  I will be leaving the matter in the good hands of Ms. Tang to deal with the matter as per requisition no. 11.