LAI WAI PANG v. KWOK LI SHUK HAN

HCAP 13/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 13 OF 2000

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J U D G M E N T

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1. This is an application to amend the defence. The majority of the proposed amendments are not in dispute. What is really in dispute is the intended amendment to paragraph 5 of the defence, pleading for the first time that the Plaintiff was and is in a position of conflict of interests or potential conflict of interests if he is to be appointed administrator of the estate in question, which is the very issue that the Court has to decide in this probate action.

2. This is not an ordinary piece of civil litigation. The deceased died intestate. The Court is charged with the duty to appoint somebody as the estate's administrator or administratrix to duly and properly administer the estate according to law. Such a person will stand in a fiduciary relationship to the estate as well as the beneficiaries of the intestate estate of the deceased. The Court will have to have confidence in such a person before it can or will entrust the administration of the estate to him or her. Moreover, the Court's jurisdiction under section 36 of the Probate and Administration Ordinance (Cap. 10) is sought to be invoked by the Defendant. There is no dispute that the Court has a broad and unfettered discretion under the section to choose the best and most suitable person to be the administrator to administer the estate in question.

3. In the pleadings, various allegations and complaints have been raised against the Plaintiff who no doubt has the first priority under the Non-contentious Probate Rules (Cap. 10) to obtain letters of administration of the estate. It is also pleaded in paragraph 6 of the original defence that in view of the various complaints against the Plaintiff which the Plaintiff denies, the Plaintiff is "not capable of or will not fairly trace, collect and distribute the assets of the estate".

4. In my judgment, on a fair reading of the pleadings, the question of whether the Plaintiff stands or will stand in a position of potential conflict of interests, if he is to be appointed administrator, has always been lurking at the background of this case. Indeed, when I first read the papers, I had no difficulty in discerning that such was the situation. Coupled with paragraph 6, in my judgment, this latest intended amendment by the Defendant should not have come as a complete surprise to the Plaintiff.

5. Moreover as I said, the Court is here concerned with finding the most appropriate person to administer the estate, whilst proper regard must of course be had to the normal priority rules in the Non-contentious Probate Rules. It would be artificial to ask the Court to exclude from its consideration the possible existence of a conflict of interests or potential conflict of interests on the part of the Plaintiff, when the Court is being asked to consider whether the Plaintiff should be granted letters of administration to administer the estate.

6. As I said, the person to be chosen must be somebody whom the Court has confidence in regarding the due and proper administration of the estate. I am not here for one moment suggesting that the appointment of the Plaintiff to be the administrator of the estate will be inappropriate; that is the issue to be tried between the parties. All that I am concerned with here is whether I should allow the Defendant to raise the question of a conflict of interests before me, in the light of the various complaints that have already been raised against the Plaintiff. Put another way, in my judgment, for the sake of justice and fairness and in order for the Court to properly exercise its discretion - if it deems fit to do so - in a real way, artificial blinkers should not be put round the eyes of the Court, so that the Court is prevented from considering this question of a conflict of interests or potential conflict of interests because of the state of the existing pleadings.

7. So for all these reasons, notwithstanding the complaint of a new case being put forward and potential prejudice to the Plaintiff, all of which I fully take into account in the balancing exercise, I am of the view that on balance the proposed amendment should be allowed. If the Plaintiff really faces any genuine prejudice in terms of the proper preparation of this case, I will certainly listen most sympathetically to any submissions coming from the side of the Plaintiff.

8. I should add that I have, of course, in reaching my conclusion, borne in mind that this application was only made on the 1st day of the trial, but as I said, having put everything on the scales, I have come down on the side of allowing the amendment.

9. The Plaintiff also opposes the proposed amendment to paragraph 5(f) of the defence, i.e. the non-admission of the alleged gifts of two lots of shares by the deceased to the Plaintiff prior to her demise. Looking at the pleadings as a whole and the Defendant's case as a whole, I can really see no real objection to the proposed amendment. The Defendant has always been asking for details and explanations relating to the alleged gifts in question. The express plea of non-admission of the alleged gifts simply follows logically from what the Defendant has been doing. There can be no real prejudice to the Plaintiff by the inclusion of the proposed amendment. So for those reasons, I also allow the amendment in relation to paragraph 5(f).

[Submissions on adjournment of the trial]

10. As anticipated, the Plaintiff asks for an adjournment of the trial in order to have an opportunity to consider the latest and indeed late amendments and their implications. As I see it, there is really no serious dispute as to whether the Plaintiff should be afforded, for the sake of fairness, a decent opportunity to consider the latest position and review his general position in the present litigation. The dispute is really in relation to the amount of time that the Plaintiff should be afforded, and that is reflected in the question of whether the case has to be adjourned generally to a new date to be fixed or that a short adjournment, such as an adjournment this afternoon with the resumption of the trial tomorrow morning, would sufficiently and adequately accommodate the need of the Plaintiff.

11. For my part, I can see the importance or the significance of the latest amendments, particularly in relation to paragraph 5, i.e. the allegation of a conflict of interests or potential conflict of interests and its potential implications to the Plaintiff's case. The Plaintiff is certainly entitled to proper and sufficient time to consider his position. It is true that given the nature of the latest allegation of a potential conflict of interests, the Plaintiff may most likely not require to adduce further evidence, documentary or oral (whether by himself or by some other persons), in order to answer this allegation. Yet this is just one of the many things that the Plaintiff might like to consider doing in response to the latest amendments.

12. To take an extreme situation and I emphasis that this is only mentioned by way of hypothesis, the Plaintiff might like to consider, given the latest allegation, conceding the Defendant's claim, given the undeniable disputes relating to some of the subject matters of complaint raised by the Defendant in the present case. No doubt in such a hypothetical scenario, such a decision would be a very important one to make and warrant mature and careful consideration. In my judgment, this illustrates firstly the potential importance of the latest amendment and secondly, the amount of time that the Plaintiff might reasonably require.

13. Further, how much time the Plaintiff might reasonably require has a built-in subjective element to it. The Plaintiff has through counsel submitted to this Court that simply adjourning the trial to tomorrow would not give the Plaintiff sufficient time to receive and consider proper legal advice. Common experience tells us that in matters of this sort, the time required for one to receive and digest proper advice and to make up one's mind does vary from person to person, and there is nothing before me to cast any doubt on the genuineness of the Plaintiff's claim through counsel that he really needs more time than the adjournment of an afternoon in order to properly consider his position.

14. Another factor that I take into account is this. Even if I were to adjourn the case to tomorrow morning, given that the trial estimate is only three days and I have yet to hear any factual evidence from the three intending witnesses including the Plaintiff himself, who is expected to face detailed cross-examination in relation to the subject matters of complaint in question, I doubt very much whether the case could be completed within the time allotted if the giving of evidence were only to start tomorrow. Having familiarised myself further with the papers, I have great reservations regarding the accuracy of the original estimate of three days for the trial; so that, in my judgment, is also a very practical matter that I should take into account.

15. Further, this amendment was applied for only on the 1st day of the trial by the Defendant; it was not the fault of the Plaintiff. So if anything, I should be as lenient and as accommodating as possible towards the Plaintiff in relation to his need for time.

16. So for all these reasons and bearing in mind the general circumstances of the case, I am prepared to accede to the Plaintiff's request for a general adjournment of the trial to new dates to be fixed.

17. I will further hear the parties on costs, but I should make this clear. Part of my above decision is affected by the trial length and the remaining time available. That factor has little to do with the amendment per se, or I should say that that factor has more to do with the original estimate than the amendment itself.

18. Another matter that I should emphasize before I hear the parties on the question of costs is that I have specifically given due consideration to the subjective need of the Plaintiff for more time to review his position. That subjective need varies from person to person and that may or may not be relevant to the question of costs.

[Submissions on costs]

19. Having heard the parties on costs and the Plaintiff having indicated to me through counsel that he is only asking for the costs thrown away today because of the adjournment, I am of the view that there can be no serious dispute that at the very least the Plaintiff should be entitled to an adjournment of today's hearing, in order to consider properly his position, if not an adjournment for a longer period of time as I have already ruled. So I am of the view that the Defendant should pay for the costs thrown away today, and I so order.