LEUNG YUN SIU (梁潤笑), the person appointed to represent the estate of FONG YIN TING (方燕婷), deceased v. CHOW WAI HUNG (周偉雄), the person appointed to represent the estate of CHOW WAI FAI (周偉輝), deceased

HCMP 180/2020

[2020] HKCFI 2634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 180 OF 2020

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D E C I S I O N

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1.  These proceedings arise out of tragic events, which befell a married couple (“Wife” and “Husband” respectively).  The Wife and the Husband both died in the early morning of 4 September 2017.

2.  By virtue of a Carry On order made by the Master, these proceedings are now constituted between persons appointed to represent the estates of the Wife and the Husband.  Leung Yun Siu, the mother (“Mother”) of the Wife has been appointed to represent the estate of the Wife, as plaintiff.  Chow Wai Hung has been appointed to represent the estate of the Husband, as defendant.

3.  By the Amended Originating Summons dated 29 July 2020, the plaintiff seeks:

(1)   a declaration that the Husband was precluded by the forfeiture rule in Part VA of the Law Amendment and Reform (Consolidation) Ordinance Cap 23 (“LARCO”) from acquiring any interest in the Wife’s estate under the law relating to intestacy; and

(2)   an order appointing the Mother as the administrator of the Wife’s estate and that the letter of administration of the Wife’s estate be granted to the Mother under section 36 of the Probate and Administration Ordinance Cap 10 (“PAO”).

4.  The applications are supported by two affirmations of the Mother dated 10 January 2020 and 30 June 2020, together with their various exhibits.

5.  Ms Sally SY Wong is Counsel for the plaintiff at this hearing.  The defendant appears in person but is not represented.  Though this is the first hearing of the Amended Originating Summons, Ms Wong submits that the facts in the case are plain, so that it is unnecessary to direct any further enquiry.  I agree.  In any event, the defendant does not object to the orders being made.

6.  The Wife and the Husband died at approximately 6am and 7am respectively on 4 September 2017 at the roof on the 5^th floor of the building in which they resided in an apartment on the 28^th floor. Police investigations into the deaths concluded that:

(1)   The Wife’s death was a premeditated murder by the Husband.  The Husband had assaulted the Wife with a knife inside their residence, and then dragged the Wife to the balcony from where she was dropped to the roof of the 5^th floor.

(2)   The Husband committed suicide shortly thereafter.

7.  If further detail is required, it is as follows:

(1)   The Wife and the Husband had been married since 2015.

(2)   A few days before their deaths, they apparently had a heated argument, after which the Wife left the residence for three days.

(3)   The Wife returned to the residence in the afternoon of 3 September 2017.

(4)   On the same day, the Husband purchased two ceramic knives and two bottles of drainage cleaner.

(5)   In the early morning of the following day, 4 September 2017, neighbours heard a female scream a couple of times.  An hour or so later, the Wife died of falling from a considerable height.  Her body was found on the roof at the 5^th floor below the balcony of their residence.

(6)   A little later, the Husband also died after falling from a considerable height, and his body was also found on the roof at the 5^th floor below the balcony of their residence, albeit further away from the edge of the building.

(7)   After being called to the scene, the Police broke into the apartment which was locked from the inside, indicating that only the Wife and the Husband had been inside at or shortly before the time of their deaths.

(8)   Packaging from one of the ceramic knives was found opened.  A ceramic knife with bloodstains on the handle were found inside the sink at the open kitchen of the apartment.

(9)   A pool of blood and numerous blood smears were found, mainly in the living room of the apartment.  Later DNA analysis revealed all blood found could have originated from the Wife.

(10)  The Wife was found to have multiple cut wounds in her back and neck, consistent with being produced from a sharp instrument.  She also had several cut wounds on her hands consistent with defensive injuries.

(11)  Later examination revealed the wounds were unlikely to have been fatal, and that the Wife died from the injuries caused by a fall from a great height.

(12)  Judging from the pool of blood found in the living room, it seems the Wife might have passed out from her injuries before being dragged from the living room to the balcony and dropped from it.

(13)  The Husband’s body was found further away from the building, suggesting the Wife’s body was dropped from the balcony whilst the Husband jumped off the balcony.

(14)  As the Wife’s wounds were not fatal, the inference can be drawn that the Husband must have dropped her from the balcony before jumping himself.

8.  The Wife died intestate, and left no issue. Those who survived her included the Husband (who died shortly afterwards) and both parents.

9.  Under section 25A(1) of LARCO, the ‘forfeiture rule’ precludes a person who has unlawfully killed another from acquiring a benefit in consequence of the killing.  The forfeiture rule applies to different forms of unlawful killing, including murder, manslaughter, and aiding and abetting suicide.  But it does not apply to an insane killer.  The relevant standard of proof required for a ruling whether a person was unlawfully killed by another for the purposes of the forfeiture rule is settled.  The more serious an allegation, the higher the degree of probability that is required for it to be proved, but in a civil case it need not reach the very high standard required by the criminal law.

10.  Ms Wong has cited to me cases in which the forfeiture rule has been applied where a person has unlawfully killed another and then committed suicide.  Of course, each case turns on its own facts which must be carefully considered.

11.  Having carefully considered the materials in this case, including the various investigation reports and police and expert analysis, I accept those matters which I have set out as being factually correct.  I am satisfied to the necessary high standard, relevant to the serious allegation that the Husband murdered the Wife before himself committing suicide, that that is what happened.

12.  As to the appointment of an administrator of the estate of someone who died intestate, section 36 of the PAO gives the court a wide discretion to choose the appropriate administrator the court considers necessary or convenient in the particular circumstances.  The question is fact sensitive, and the court will approach the evidence objectively and with a good deal of common sense.

13.  Because the Wife predeceased the Husband (albeit only briefly), the Non-Contentious Probate Rules would ordinarily have entitled the Husband to a grant to administration of the Wife’s estate.  However, in the particular circumstances of this case where the Husband died almost immediately after the Wife died, and where the deaths occurred in the circumstances I have found demonstrated on the evidence, and where there is a clear conflict of interest between the Wife’s estate and the Husband’s estate, I have no hesitation in finding that the Mother is the person who is fit to be appointed as the administrator of the Wife’s estate.  In the exercise of my discretion, I so order.

14.  In conclusion, I make an order in the terms of paragraphs 1 and 2 of the Amended Originating Summons.

15.  As to costs, I order that the costs follows the event and the plaintiff’s costs will be paid by the defendant, that is out of estate of the Husband, to be summarily assessed by me.