LIN CHAORAN v. LAM CHIU CHUEN, THE SOLE EXECUTOR NAMED IN THE WILL OF LAM SHEK KEUNG , DECEASED

HCMP 2681/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2681 OF 2014

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JUDGMENT

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Introduction

1.  The plaintiff brought these proceedings by his Originating Summons dated 27 October 2014 to apply for a declaration that he is the same person as LAM SHIU YIN (林超然), named in the will of LAM SHEK KEUNG (林錫強) (“the Deceased”) dated 7 April 1976 (“the Will”).

2.  The defendant is the sole executor named in the Will. He filed an affirmation dated 14 October 2015 and there he indicates his position. He agrees that the plaintiff is entitled to the declaration sought and has no objection to the plaintiff’s application. Ms Choy, appearing for the defendant, confirms his position.

Supporting Evidence

3.  The plaintiff filed two affirmations for the purpose of his application. Nothing in the affirmation of the defendant contradicts his evidence.

4.  The Deceased was a mainlander and came to Hong Kong for permanent settlement in or about 1950. He passed away on 30 March 1980 in Hong Kong. He had four children. The plaintiff is the elder brother of the defendant and they have two elder sisters. Their mother died in the Mainland on 16 June 2009.

5.  Under the Will, after the death of their mother, the defendant and one Lam Shiu Yin (林超然), both identified as the sons of the Deceased, are entitled to the estate of the Deceased in equal shares. The estate consists of two landed properties.

6.  The defendant is the sole executor and trustee under the Will. He is a permanent resident in Hong Kong. The grant of probate was granted on 3 May 1985.

7.  The plaintiff was born in the Mainland and remains a Mainland resident. He has produced two documents issued by the authorities in the Mainland to prove that he is the son of the Deceased and his Chinese name is林超然. In the light of the approval of the defendant, I accept his evidence.

8.  The plaintiff has no idea why the Deceased gave him the English name of “Lam Chiu Yin” under the Will. At that time, he had never been to Hong Kong and he had never used any English name.

9.  The first time that he had been given an English name was upon his obtaining his Two Way Permit by the Chinese authorities on 12 June 2010. It is an English transliteration of his Chinese name in Putonghua. It differs from his English name appearing in the Will, which is an English transliteration of his Chinese name in Cantonese.

10.  Given the unchallenged fact that the plaintiff is the son of the Deceased and that his Chinese name is 林超然, I accept that in fact the plaintiff is the person by the name of Lam Chiu Yin under the Will notwithstanding the difference in his English names appearing in his Two Way Permit and the Will. The inability of the plaintiff to explain why there is such a discrepancy does not cause me any concern.  

11.  In his second affirmation, the plaintiff explains why he needs the declaration sought. I accept his evidence that the discrepancy in his English name appearing in his Two Way Permit and the Will may give rise to difficulties in acquiring his shares in the estate of the Deceased.

12.  Both Ms Chan, appearing for the plaintiff and Ms Choy diligently provide this court with some authorities relating to the general principles of declaratory relief. I do not find it necessary to deal with such authorities. I am convinced that the declaration sought has a useful objective to serve.

Conclusion and Order

13.  In the circumstances, by reason of my factual findings on the evidence, I am satisfied that I should exercise my discretion to grant the declaration in the Originating Summons. I so order.

14.  The parties agree that there should be no order as to costs. I hence make such an order.

15.  Ms Chan has just handed up to this court a draft order in the Chinese language which is a translation of the order sought in the Originating Summons. Ms Choy agrees to the accuracy of the translation. I shall make an order in terms of the draft order as amended.

16.  Lastly, I thank both Ms Chan and Ms Choy for their assistance rendered to this court.