RE LEE KWOK KEUNG

HCAG3138/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE JURISDICTION NO.3138 OF 2003

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R U L I N G

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1. This is an application by the Registrar of the High Court in the capacity of the Official Administrator for direction from the court whether it is appropriate for the Official Administrator to administer the estate of the aforesaid deceased summarily in accordance with section 15(1) of the Probate and Administration Ordinance, Cap.10.

2. Section 15 provides that :

"(1) The Official Administrator may, where the whole of an estate does not, in his opinion, exceed $150,000 in value, without any legal formality, get in and administer the same in a summary manner, for the benefit of the persons he many deem interested therein, without a grant or other legal formality.

(2) Any balance of such estate which remains unclaimed shall be paid to the Treasury and, at the expiration of five years from the date of the getting in of the estate, be transferred to the general revenue."

3. The estate in question is a relatively small sum of $7,762.00. However, this sum is a refund or refurbishment of the member's entitlement under the Mandatory Provident Fund Scheme.

4. Accordingly to section 15(4) of the Mandatory Provident Fund Schemes Ordinance, Cap.485, the money will only be refunded to the member's personal representatives, which section is provided as follows :

"(4) When a member of a registered scheme has died, the approved trustee of the scheme must pay the whole of the member's accrued benefits as a lump sum -

(a) to the member's personal representatives; or

(b) if there are no personal representatives of the member's estate or if they are unwilling to act, to such person, or to a person of such class, as is specified in the regulations.

(5) For the purpose of subsection (4), 'personal representatives' (遺產代理人) has the same meaning as in the Probate and Administration Ordinance (Cap.10)."

5. The Official Receiver is seeking the court's direction as to whether the Official Administrator is regarded as the member's personal representative in accordance with the Probate and Administration Ordinance. Under section 2 :

" 'personal representative' (遺產代理人) means the executor, original or by representation, or administrator for the time being of a deceased person. "

Further, administrator and administration are defined as follows :

" 'administrator' (遺產管理人) means a person to whom administration is granted.

'administration' (遺產管理、管理) includes any letters of administration of the estate of a deceased person, whether with or without a will annexed, and whether granted for general, special or limited purposes. "

The word "grant" is defined as follows :

" 'grant' means a grant of probate or of administration. "

6. The question before me is whether the member's personal representatives should include the Official Administrator. This question is also dependent on the question of to whom the administration is granted. It can be seen from the aforesaid definition section that "administration" is not an exhaustive definition. It includes the normal types of grant like letters of administration or grants of probate, but it does not exclude the administration by the Official Administrator. In fact, the Official Administrator is administering the estate on behalf of the persons who are entitled to the estate, albeit that there was no formal grant of letters of administration. It was done pursuant to section 15 of the Probate and Administration Ordinance. The intention of enacting section 15 of the Probate and Administration Ordinance is to empower the Official Administrator to administer small estates in a summary manner. It was stated in the Hansard by the then Attorney General Mr Roberts in seeking amendment to clause 15 on 26 May 1971 as follows :

"First of all clause 15, which empowers the Official Administrator to administer small estates in a summary manner, might be properly described as providing a form of social service, since it introduces a quick and inexpensive way of dealing with estates of small value."

7. Thus it is quite clear that the provision was to provide a quick and inexpensive way of dealing with estate of small value and to obtain money quickly for the beneficiary under the estate when they most need it.

8. According to the Official Administrator, section 15 had been invoked very extensively. In the past three months, there were about 150-180 cases each month in respect of estates less than $150,000. The usual procedure of grant from the day of application for exemption from estate duty to the day of grant of probate or letters of administration will take approximately three months. However, in respect of the summary administration by the Official Administrator for estates with value less than $150,000, the whole process will take only a week or even less.

9. Accordingly, by reason of the legislative intention of section 15 of the Probate and Administration Ordinance and the wording of section 15 of the Mandatory Provident Fund Schemes Ordinance, the Official Administrator should be regarded as the member's personal representative. The Official Administrator is actually administering the estates on behalf of the persons who are entitled to the estate and therefore he is the deceased's personal representative.

10. Accordingly I have granted a declaration that the Official Administrator is one of the member's personal representatives of the deceased under section 15(4) of the Mandatory Provident Fund Schemes Ordinance, Cap.485. There shall be no order as to costs for this application.