LAU CHO KUN alias LAU YU CHAK v. LAU SIANG KOK LIONEL

CACV 212/2012 and CACV 213/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NOS. 212 AND 213 OF 2012

(ON APPEAL FROM HCEA NO. 29 OF 2010)

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REASONS FOR JUDGMENT

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Hon Kwan JA:

Introduction

1. We have before us two appeals brought by Lau Cho Kun alias Lau Yu Chak (“the applicant”) against two decisions of Suffiad J made on 20 February 2012[1] and 20 August 2012[2].  The applicant was appointed the executor in a will of Tan Sri Datuk Lau Gek Poh alias Lau Gek Poh (劉玉波), deceased (“the deceased”), who passed away in Kuala Lumpur, Malaysia in April 2008, and for which no application for probate has yet been made.

2. By the first decision, the judge dismissed the applicant’s application to set aside the subpoena issued against him on 22 September 2010 by Deputy Registrar A Ho pursuant to section 7(3) of the Probate and Administration Ordinance, Cap 10 on the application of Lau Siang Kok Lionel (“Lionel”).  I will refer to this decision as “the Subpoena Decision” and the appeal against it as “the Subpoena Appeal”.

3. By the second decision, the judge dismissed the applicant’s summons issued in July 2012, pending his appeal against the Subpoena Decision, for a direction to be given under section 13 of the Parent and Child Ordinance, Cap 429 that a DNA test be carried out to determine whether the deceased was or was not the natural and biological father of Lionel and for an order that a bodily sample be taken from Lionel to carry out the DNA test.  I will refer to this decision as “the DNA Decision” and the appeal against it as “the DNA Appeal”.

4. At the conclusion of the hearing, we dismissed both appeals indicating that reasons will be handed down and these are the reasons for judgment.

The background

5. The relevant background matters, taken largely from the first decision, may be set out as follows.

6. Before his death, the deceased had business holdings in Singapore, Malaysia, Taiwan, China and Hong Kong.  In Hong Kong, he owned beneficially 63% of the shares in Lei Shing Hong Ltd through Amerdale Investments and associated investment companies.  Lei Shing Hong Ltd was incorporated in Hong Kong and was listed on the Hong Kong Stock Exchange until it was privatised by a scheme of arrangement sanctioned by the court in March 2008.  The shareholding of over 60% in Lei Shing Hong Ltd alone was estimated to have a value of about HK$6 billion at the time of the deceased’s death.

7. The deceased is survived by his wife, Puan Sri Lau and a daughter Vivian Liew Soong Cheng born to the deceased and Puan Sri Lau.

8. According to a birth certificate issued in Singapore, Lionel’s birth was registered at Kandang Kerbau Hospital, Singapore with the date and time of birth as 4 December 1973 at 8:30 hours and the place of birth being that hospital. In the mother’s particulars, the name that appeared was Lum Sook Chun (“Madam Lum”), a Singapore citizen of the Chinese race and in the father’s particulars, the name of the deceased was given with his identification document number.  The deceased’s nationality was stated as Malaysian and the informant of the particulars of the birth certificate was Madam Lum.  Madam Lum had passed away in 1990.  There is no evidence of a valid marriage between the deceased and Madam Lum.

9. In 1990, at a time when the deceased mostly lived in Hong Kong, he suffered a stroke and became wheelchair bound.  Shortly before his death, he was taken back to Kuala Lumpur and died there on 4 April 2008.

10. The deceased left behind what purports to be his last will and testament, in which he appointed the applicant as the sole executor.

11. On 17 February 2009, the applicant and Lionel met in Hong Kong, during which the applicant allowed Lionel to have sight of the will, but did not allow him to take a copy of it.  It is common ground that Lionel was not named as a beneficiary in this will. Lionel made repeated requests to the applicant to be furnished with a copy of the will but such requests were ignored or refused by the applicant.

The application for production of the will in Malaysia

12. On 31 July 2009, Lionel commenced proceedings against the applicant in Malaysia by originating summons under section 41 of the Probate and Administration Act 1959 for production of the will at the registry[3].  This was resisted by the applicant who applied to strike out the originating summons on the ground that it was obviously unsustainable.  On 7 June 2010, the High Court of Malaya at Kuala Lumpur ruled that it should be struck out.  In the grounds of judgment of 14 July 2010, it was stated that the status of Lionel was in doubt, he could not be anywhere close to be an “interested person”, which is a requirement under section 41 of the Probate and Administration Act 1959 before an application to compel the production of the will can be made.  In this regard, the grounds of judgment had stated as follows:

“[Lionel] has not provided cogent proof that he is the natural son of the deceased. There have been requests by [the applicant’s] solicitors for a DNA testing to be done, however such requests were not met with by [Lionel].

… there is no legislative provision for the court to make an order to compel a person to undergo for DNA testing. That may be the position in law, but it is for [Lionel] to satisfy the court that he falls within the category of “interested person” under section 41 of the Probate and Administration Act 1959 before the court can compel the production of the Will. So far [Lionel] has not shown to the court that he is the natural son of the deceased as claimed. The 2 Birth Certificates[4] were of no help, instead it creates more doubts on the identity of [Lionel]. Hence, what other way can a determination of the fact that [Lionel] is the natural son of the deceased be made, if not for a DNA testing. A DNA testing could have “nailed the coffin” entirely.

Thus, based on the above this is not a proper case that should be determined by way of an Originating Summons due to the disputes as to material facts in relation to [Lionel’s] status.”

13. Lionel appealed against the decision to strike out the originating summons.  This was allowed by the Court of Appeal of Malaysia on 25 June 2012.  On 10 May 2013, the High Court of Malaya dismissed the originating summons.  In the Short Ruling[5] of Lee Heng Cheong, JC, he gave the following reasons for finding that there are no merits in the application:

“[a] that there was no application at all for the grant of probate being made in Malaysia, entitling [Lionel] to the reliefs sought pursuant to the provisions of Section 41 of the Probate & Administration Act 1959;

[b] [Lionel] has no locus standi, to compel [the applicant] as the Executor of the Estate of the late Tan Sri Datuk Lau Gek Poh, to produce the said Tan Sri Datuk Lau Gek Poh’s Will and any other testamentary documents that [the applicant] may have in his possession; and

[c] [Lionel] does not fall under the definition of ‘any persons interested’ under the provisions of Section 41 of the Probate & Administration Act 1959.”

14. Lionel has filed a Notice of Appeal against this decision on 6 June 2013.

The application for production of the will before the Registrar in Hong Kong

15. Pending the determination of his application in Malaysia for production of the will, on 31 March 2010, Lionel made an ex parte application to the Registrar of the High Court in Hong Kong that the applicant should bring the will into the High Court Registry.  As mentioned, this application was made under section 7(3) of Cap 10.  In his supporting affirmation, he stated that the deceased died “domiciled in Hong Kong having made and duly executed his last Will and Testament (date unknown at present) and appointed [the applicant] the sole executor thereof”, that he is the only natural son of the deceased, that the will is in the possession, custody or power of the applicant who “has neglected or declined to prove the Will or renounce Probate thereof”, that he requested the will should be brought into the High Court Registry “in order that [he] may act as [he] may be advised”.  He informed the court that he had commenced proceedings in Malaysia for production of the will, which was resisted by the applicant, and exhibited an affidavit in reply made by the applicant in the Malaysian proceedings on 10 March 2010 setting out the grounds of opposition.  He also mentioned that no proceedings regarding the will of the deceased has been commenced in Hong Kong, and that the applicant is within the jurisdiction of Hong Kong and has not applied for probate of the will despite the deceased had died in April 2008.

16. Between April and September 2010, the Registrar raised a number of requisitions to this application and Lionel’s solicitors responded by letter.  On 30 April 2010, the Registrar asked the solicitors to file a copy of the death certificate of the deceased and to confirm by letter the grounds of the application.  Regarding the grounds of the application, the solicitors replied by letter dated 13 May 2010 reiterating the two grounds in the supporting affirmation, namely, that the original will is in the possession custody or power of the applicant and that the applicant has neglected or declined to prove the will or renounce probate thereof.  As to the ground of opposition in the applicant’s affidavit in the Malaysian proceedings on 10 March 2010 that Lionel is not a named beneficiary under the will (to which the Registrar had specifically referred in his requisition), the solicitors replied that section 7(3) of Cap 10 confers very wide powers on the Registrar to order testamentary paper or writing to be brought into court, that the application is not restricted to parties to the proceedings, and that Lionel has a birth certificate showing he is a son of the deceased (a copy of the Singapore birth certificate was enclosed).  The solicitors stated on instructions that Lionel is the only lawful and natural son of the deceased and the deceased had promised to look after him and also held certain assets in trust for him, and hence it is his belief that he is entitled to see the will “and to take proper advice thereof to ensure due and proper administration of the estate”.

17. On 15 June 2010, the Registrar raised a requisition asking the solicitors to submit authorities to support their proposition that notwithstanding Lionel is not a beneficiary under the will, he is entitled to apply for a subpoena under section 7(3).  The Registrar mentioned that in a prescribed form in Tristram & Coote’s Probate Practice, the person applying for a subpoena is a “residuary legatee”.

18. In their reply of 23 June 2010, the solicitors stated Lionel is not a residuary legatee.  They submitted that it is not stipulated in section 7(3) that the person applying for a subpoena must be a residuary legatee, and that persons having an interest in the estate of the deceased on intestacy would have sufficient interest to justify an application for inspection of the will and to take copies thereof.  In support of this, they cited inter alia the decision of Chan Mei Fat v Choi Lai Sheung, HCMP 847/2005, 7 March 2006, Recorder Edward Chan, SC, §§7, 8 and 12 and In the Goods of Shepherd [1891] P 323.  They reiterated that as Lionel is the only son of the deceased, he certainly has an interest in the estate on intestacy and this is in addition to assets held in trust for him by the deceased.

19. By a further requisition on 23 July 2010, the Registrar pointed to the applicant’s affidavit in the Malaysian proceedings on 10 March 2010 in which it appeared whether Lionel is a natural son of the deceased is in issue and asked the solicitors to confirm if that issue has been resolved.  The solicitors were requested to further produce evidence to prove Lionel’s relationship with the deceased.

20. In their reply of 1 September 2010, the solicitors submitted that the Singapore birth certificate would be more than sufficient for a subpoena to be issued.  They stated that the striking out application in Malaysia was under appeal.  They enclosed a copy of the Malaysian birth certificate produced by the applicant in the Malaysian proceedings of which Lionel has no prior knowledge.  They submitted that the present application for a subpoena is “non contentious” business[6], not hostile litigation, and is not the appropriate forum to resolve the issues raised in opposition by the applicant in the Malaysian proceedings.

21. On 22 September 2010, Deputy Registrar A Ho ordered that a subpoena be issued against the applicant but without prejudice to his rights to apply to set it aside.  The subpoena, issued on 18 November 2010, requested the applicant to bring into and leave with the Probate Registry of the High Court the original will of the deceased within eight days after service thereof.  It was served on the applicant on 13 January 2011.  He applied by summons to have it set aside on 18 January 2011.

The application to set aside the subpoena

22. In his supporting affirmation of 24 February 2011, the applicant deposed that the deceased was domiciled in Malaysia, contrary to Lionel’s contention that the deceased’s domicile was Hong Kong.  He stated there is “no conclusive evidence” that Lionel is the natural son of the deceased, and referred to contradictory information as to Lionel’s nationality, place of birth, date of birth and the names of the parents in the Singapore and Malaysian birth certificates and the Singapore and Malaysian passports of Lionel.  He said Lionel has not provided “any conclusive evidence, scientific or otherwise to support the contention that he is the natural son of the Deceased”.  He confirmed that Lionel is not a beneficiary under the will.  He also confirmed no application for grant of probate has been made in Malaysia or Hong Kong but gave no reason for this, merely stating that he “[does] not see how this is relevant to [Lionel’s] application for a Subpoena or why it should concern [Lionel] given that he is not a beneficiary under the Will”.

23. In his affirmation in answer of 24 March 2011, Lionel stated that the grounds relied on by the applicant to set aside the subpoena are not issues to be decided by the court in an application under section 7(3) of Cap 10, but if the court should hold that they are relevant, he would rely on the further evidence in his affirmation.  He then gave an account of his birth and upbringing, his living with Madam Lum and the deceased as a family in Singapore and for two years in Taiwan.  He mentioned that he was brought in to work for the deceased’s business, during which the deceased had acknowledged and introduced him to everyone as his son, including the applicant who had been helping the deceased in the running of his business empire.  As for the DNA test, he was advised that it was not an issue before the court in the present application, and although he has “no objection to undergo DNA test provided a proper sample from [the deceased] can be obtained and used as comparison”, he “cannot entertain and hate the idea of digging up [the deceased] from his grave for this purpose and would wish to avoid this if at all possible.”  He repeated his assertion the deceased’s domicile was in Hong Kong, his concern there has been no application for probate and deposed to prima facie evidence of intermeddling of the estate of the deceased.

The Subpoena Decision

24. Two main grounds were advanced by the applicant before Suffiad J to set aside the subpoena.

25. The first is that Lionel has failed to prove “conclusively” he is the natural son of the deceased.  The applicant pointed to the differences between the two birth certificates and the passports of Lionel.  The second ground is that Lionel is not a beneficiary in the will.  It was submitted that by virtue of these two grounds, Lionel has no locus standi in asking to be supplied with a copy of the will and has no sufficient interest to subpoena the applicant to produce the will into court.

26. The judge held while strictly speaking, the wording of section 7(3)[7] makes no requirement as to interest or standing of the person making the application, as a matter of practice, it cannot be correct that where there is an application, the person applying would not have to show some interest or standing.  Having said it would be inconceivable for any busybody, without the least interest or standing, to be such an applicant under section 7(3), the judge accepted that “some evidence showing a prima facie interest or standing of the person applying would be all that would be needed”, and the Deputy Registrar was entirely correct to have sought the requisitions he did in ascertaining the interest or standing of Lionel before issuing the subpoena[8].

27. Turning to the evidence before him, the judge had no hesitation in accepting that the differences in the spelling of the surnames in the two birth certificates are due to the differences in dialect pronunciation in Singapore and Malaysia as explained by Lionel.  On the totality of the evidence, he was of the view that Lionel has shown “at least prima facie evidence” that he is the natural son of the deceased and Madam Lum.[9]

28. The judge rejected the contention that just because Lionel was not named as a beneficiary in the will, he could have no standing in applying for the subpoena.  He reasoned that it is not known if there is a residuary legatee clause in the will[10] or if any part of the estate falls to be an intestacy.  It is not known if probate would be granted on the will if it is challenged.  Nor is it known if there is any earlier will of the deceased.  If for any reason the whole or part of the estate falls to be an intestacy, under Hong Kong law Lionel may well have an interest in the estate even though not named as a beneficiary in the will and even if he is unable to show a valid marriage between the deceased and Madam Lum[11].  And given that for over three years after the death of the deceased, nothing has been done by the applicant to obtain probate, the judge took the view it was entirely proper and correct for the Deputy Registrar to have issued the subpoena.[12]  Accordingly, he dismissed the application to set it aside.

The DNA Decision

29. The applicant appealed against the Subpoena Decision and for this purpose sought a direction from the judge by summons issued on 22 February 2012 whether this decision determined in a summary way the substantive rights of a party to an action so that an appeal would lie as of right.  He also sought a stay of execution of the order to bring the will into the Probate Registry pending appeal.  Suffiad J held leave to appeal was required and granted leave to do so.  He declined to grant a stay of execution pending appeal.  He required the applicant to bring the will into the registry within eight days of his decision.  To allay the fears of the applicant, he ordered that no leave may be granted for inspection of the will before the appeal is heard and determined by the Court of Appeal.  The applicant has since deposited the will with the Probate Registry.

30. Before the aforesaid summons was heard by Suffiad J on 27 July 2012, the applicant issued a summons on 4 July 2012 under section 13 of Cap 429 for a direction be given that a DNA test be carried out to determine if the deceased was the natural and biological father of Lionel and an order that a bodily sample be taken from Lionel to carry out the DNA test.  Four affirmations were filed in support, made by Madam Wong Fui Ngo alias Monica Wong (the personal assistant of the deceased), Madam Hui Man Sheung (the wife of Lau Chor Lok, a nephew of the deceased), Dr David Sai Wah Ho (the personal physician of the deceased in Hong Kong) and the applicant.  These further affirmations deposed that Dr Ho had taken a blood sample from the deceased in September 2005 at the deceased’s request for the purpose of documenting the deceased’s DNA, that Dr Ho received the DNA test report in October 2005 which he filed in the deceased’s medical record until he released it to the applicant in May 2012.  Dr Ho stated it is his belief that this DNA profile of the deceased is suitable for comparing with any other DNA profile for the purpose of determining the issue of paternity involving the deceased.  The applicant contended as there is a DNA profile of the deceased, it only remains for Lionel to agree to give a sample of his blood for DNA testing.  He stated that if Lionel is proven to be the natural son of the deceased, he is willing to abandon his appeal against the Subpoena Decision and provide Lionel with a copy of the will.

31. The judge declined to accede to the DNA application.  He took the view that the evidence sought in the application is new evidence to be put before the Court of Appeal in the applicant’s appeal against the Subpoena Decision and he should not usurp the function and power of the appeal court by giving the directions, before the appeal court has decided whether it is prepared to accept such new evidence on appeal.  Accordingly, he dismissed the application.[13]

The DNA Appeal

32. Mr Thomas, SC[14] submitted on behalf of the applicant that the judge and this court has power in the present case to make the order sought by section 13 of Cap 429[15], citing among other cases L v C [1994] 3 HKC 304 at 313F to G; Re P (Parentage: Blood Tests) [2010] 4 HKLRD 497 at §§17 to 22 and 25.  Although the court might not have power to give directions for the taking of samples from a corpse, the DNA profile of the deceased is available.  The deceased’s estate is a party to the proceedings in that it was alleged by Lionel that the deceased executed the will appointing the applicant the sole executor.  Even if Lionel were to decline to consent to providing a bodily sample notwithstanding he is ordered by the court to do so, this would serve a useful purpose as an adverse inference may be drawn against him.  As the judge had recognised, it may well be that the DNA testing will prove with certainty the paternity of Lionel one way or the other.

33. Mr Thomas accepted that the three conditions in Ladd v Marshall [1954] 1 WLR 1489 apply but contended that the conditions have been satisfied in that the further evidence could not have been obtained with reasonable diligence for use at the trial, that the further evidence would have an important influence on the result of the case, and that this evidence is apparently credible.  Evidence was filed that the applicant only learned for the first time in April 2012, after the Subpoena Decision, that the deceased had submitted himself to a DNA test in September 2005.

34. It was further submitted that the judge had wrongly declined to exercise the jurisdiction he had to make the order for the DNA test.  Had the order been made, the test results would have been of use to the parties even before the Subpoena Appeal was heard and the applicant had indicated he would abandon the appeal if the test should prove the claim of paternity.  And although the judge was right to treat the issue of admissibility of new evidence on appeal as a matter for the appeal court, he should have made the order for the DNA test any way so that in the hearing of the Subpoena Appeal, either the applicant or Lionel would have been in a position to seek leave to adduce the DNA test result.

35. Except for one matter which I will mention first, I do not agree with the above submissions.

36. Mr Thomas has a point that the judge should not have declined to decide whether it is appropriate to issue directions for DNA testing on the summons before him and simply leaving this to be dealt with by the appeal court. In deciding whether to order a DNA test, the judge would probably need to form a view if it is likely that the result of the DNA test would be admitted as further evidence on appeal.  This would be done on the basis of the conditions in Ladd v Marshall.  If he formed the view that the conditions would probably not be satisfied, that would be a valid reason in refusing to order a DNA test.  If he should be of the contrary view, that would be a proper reason to direct a DNA test.  Either way, the judge would not be usurping the function and power of the appeal court in deciding on the question if further evidence of a DNA test should be admitted as evidence in the Subpoena Appeal.

37. I go on to consider the application for directions for a DNA test as if this were an application before us to adduce further evidence on appeal.  I think Mr Thomas is correct in accepting that the conditions in Ladd v Marshall apply.  Mr Alexander Wong[16] submitted on behalf of Lionel that the conditions do not apply in this situation where there has not been a trial or hearing on the merits.  This is incorrect as Order 59 rule 10(2) of the Rules of the High Court has been amended in 2008 to delete the restriction of the “special grounds” criterion to “appeals from a judgment after trial or hearing of any cause or matter on the merits”, so the Ladd v Marshall conditions apply to all appeals (Hong Kong Civil Procedure 2013, vol 1, §59/10/8).

38. I do not consider the first of the conditions in Ladd v Marshall is satisfied here.  It is not sufficient for the applicant to say he only knew about the availability of a DNA profile of the deceased in April 2012 after the Subpoena Decision was given.  The question is whether the further evidence he seeks to adduce on appeal could have been obtained at the hearing before the judge in August 2011 with reasonable diligence.  I think the answer must be yes.  He made no mention of any or any reasonable inquiries he had made of the deceased’s family members, personal assistant and personal physician regarding DNA testing prior to the hearing in August 2011 or thereafter.

39. As early as 2010, the applicant had taken the position in his application to strike out the originating summons for production of the will in Malaysia that Lionel should undergo DNA testing.  This remained his position as appeared from his affidavit filed in the Hong Kong proceedings in February 2011 when he applied to set aside the subpoena.  Unlike Malaysia, there is legislation in Hong Kong to direct a DNA testing.  If it is his contention that he comes within the legislative provision to seek a DNA testing, he could and should have taken out an application for directions for DNA testing under section 13 of Cap 429 well before his application was heard by the judge in August 2011.  Even if the deceased’s DNA profile could or should not be used for any reason, it is feasible to use that of the deceased’s natural daughter for comparison in the DNA testing.

40. This being the situation, it is strictly unnecessary to consider the other two conditions in Ladd v Marshall.  In any event, I would have declined to exercise the discretion to direct a DNA testing for the purpose of determining the Subpoena Appeal as this is unnecessary, having regard to the views I formed on the threshold requirement for an application to be made under section 7(3) of Cap 10.  If and when some contentious probate issue should arise at a later stage giving rise to the need for DNA evidence, an application for DNA testing could be made by the appropriate party at that time.  On that basis, the second condition in Ladd v Marshall, namely, that the further evidence would have an important influence on the result of the appeal, would also not be satisfied.

41. I do not find it necessary to deal with Mr Wong’s submission that the applicant has no locus standi to apply for directions for DNA testing as he has not proved his title as the executor by obtaining probate and that his application under section 13 should be stayed until probate has been taken out.  Mr Thomas submitted there is no need for the applicant to prove his title as the executor as this has been admitted by Lionel.  This contention would have to be resolved on another occasion when an application for DNA testing is made at an appropriate time.

42. For the above reasons, the application to this court to give directions for a DNA test with the view of obtaining further evidence for use in the Subpoena Appeal is refused.  We therefore dismiss the DNA Appeal.

The applicant’s arguments in the Subpoena Appeal

43. A number of arguments were advanced in the Subpoena Appeal by the applicant but the crux of the matter is the threshold argument, namely, whether the judge was correct in holding that Lionel was only required to show “a prima facie interest or standing” to apply for a subpoena under section 7(3) of Cap 10.  It was contended that it was not sufficient for Lionel to show prima facie evidence he is the deceased’s natural son, given the evidence to the contrary.  It was submitted that Lionel is required to show some sufficient possible interest in the will, not just speculative interest in the event of intestacy.  And the judge was wrong in holding that the estate has substantial assets in Hong Kong or elsewhere.

44. Other arguments advanced by the applicant were as follows:

(1)   Section 7(3) of Cap 10 is not a self-standing provision but is ancillary to section 7(1). An order under section 7(1) must first be obtained for an application to be taken out under section 7(3) to carry into effect that order. Further, an ex parte application is not authorised under section 7(3), so the subpoena should be set aside on the ground that the statutory jurisdiction of the court was not properly invoked.  This is purely a legal argument and it was not raised in the court below. I will call this the construction argument.

(2)   The judge made no finding that the deceased was domiciled in Hong Kong at the date of his death in Malaysia.  He should have resolved that on the evidence, the deceased’s domicile was in Malaysia.

(3)   The judge was wrong to take into account that the applicant has not sought to obtain probate for several years.

(4)   The judge had failed to take into account there was abuse of court process in that Lionel had commenced proceedings in two different jurisdictions for the same relief.  He should have put Lionel to election as to which jurisdiction he preferred to litigate his rights.

The construction argument

45. I propose to deal with the construction argument first.  Mr Thomas recognised that even if he should succeed on this argument, it is probably not going to make a significant impact in this appeal, as the application had eventually come back before a judge in an inter partes hearing when the applicant applied to set aside the subpoena.  I think it is right that this court should deal with it, to dispel any doubt as to the proper procedure in an application for production of a will arising from the construction of sections 7(1) and (3) of Cap 10.

46. Mr Thomas submitted that the history or origin of these statutory provisions is of no or little relevance.  He asked us to adopt the modern purposive approach and construe the statutory language by having regard to its context and purpose.  Context was to be considered in the first instance, not only when ambiguity was thought to arise, and it is to be taken in its widest sense.  In support of his contention that that section 7(3) is not a self-standing provision but is ancillary to section 7(1)[17], he advanced the following arguments:

(1)   Section 7(1) provides that “the court may … order” any person to produce and bring into the Registry testamentary documents.  Section 7(3) provides that “the Registrar may … issue a subpoena” requiring any person to produce and bring into the Registry testamentary documents.  It is apparent that the two provisions cover the same kind of relief, namely, requiring any person to produce and bring into the Registry testamentary documents.  It is otiose to provide for two alternative modes of application for identical relief, so the two provisions should not be construed as independent free-standing provisions.

(2)   Section 7(3) only provides that a subpoena may be issued by the Registrar, with no mention for any order to be made in the first place.  So one must first obtain an order by applying under section 7(1), and it is this latter provision which gives the court the power to make an order.  Hence, section 7(3) should be construed as ancillary to section 7(1), the procedure in section 7(3) is just an administrative consequence of obtaining an order under section 7(1), a means to enforce such an order.

(3)   It is provided in section 7(1) that the application is “on motion or petition or otherwise” and is clearly inter partes[18], whereas an application for a subpoena under section 7(3) may be envisaged as ex parte.  The court should lean against the idea of an ex parte application by rejecting the construction that they provide for two separate independent procedures.

47. I do not agree with the above submissions, for the following reasons:

(1)   Although sections 7(1) and (3) cover the same kind of relief in requiring any person to produce and bring into the Registry testamentary documents, they are not invoked in identical situations.  As stated in Tristram & Coote’s Probate Practice, 30^th ed, §25.187, they are two separate methods of compelling a person who is, or is believed to be, in possession of a testamentary document to bring it into a probate registry.  Where it is known that the document is in the possession, custody or power of a person who refuses to produce it, the simpler procedure under section 7(3) and rule 49(2) of the Non-Contentious Probate Rules[19] is usually employed.  The procedure in section 7(1) is invoked if it is believed that a person has knowledge of a testamentary document but will not make any statement on the matter, so he can be ordered for the purpose of being examined in open court or upon interrogatories under section 7(2).

(2)   I see no reason why the legislative source of section 7(1) and (3) should be ignored when the modern purposive approach is adopted in construing these provisions with regard to context and purpose.  Given that context is to be taken in its widest sense, I fail to see why this should not include the legislative origin of section 7(1) and (3).  And taking that into account, as pointed out in Mr Wong’s submission, the two provisions are derived from different English legislative sources[20].  The English legislative sources provide for two separate methods of compelling a person to produce a will.  Likewise, the Hong Kong provisions, which are derived from the English provisions, are two free-standing provisions and the procedure for making the application under each is provided in rules 49(1) and (2) of the Non-Contentious Probate Rules.

(3)   On the plain and natural meaning of the words in section 7(3), it is clear that for a subpoena to be issued, it is not necessary for a court order to be made first.  Section 7(3) provides that the Registrar “may … issue a subpoena requiring any person to produce and bring into the Registry” any testamentary document, and such person upon being duly served with the subpoena shall be bound to produce and bring in such document “as if he had been a party to proceedings in the court, and had been ordered by a judge to produce and bring in such paper or writing.”  I reject Mr Thomas’ submission that the last few words in section 7(3) merely spelt out the consequences of disobeying a subpoena.  The Registrar clearly has power to issue a subpoena where an order has not been made by a judge.

(4)   An application under section 7(3) is made by lodging an affidavit setting out the grounds of the application, as provided in rule 49(2), and if the Registrar is satisfied the grounds are made out, he directs a subpoena to be issued, see Tristram & Coote’s Probate Practice, §25.191.  An ex parte application is clearly envisaged.  And even where a probate claim has begun, the application under section 7(3) may be made without notice, see Williams, Mortimer & Sunnucks on Executors, Administrators and Probate[21], §34-15.  Section 7(3) cannot be construed in a contrived manner to do away with an ex parte application when the meaning, purpose and context of the provision are clearly to the contrary.

If sufficient interest was shown – the threshold argument

48. I turn to the main issue if sufficient interest was shown by Lionel to apply for a subpoena against the applicant.

49. Mr Thomas submitted that the foundation of title to be a party to a probate claim is interest in the will.  For a person to have sufficient interest to apply for a subpoena to produce the will, he must show he has sufficient interest in the will, not just a speculative interest of what might have happened if the will is invalid. In holding that “it cannot be correct that … the person applying [under section 7(3)] would not have to show some interest or standing”[22] and that “some evidence showing a prima facie interest or standing of the person applying would be all that would be needed”[23], the judge’s formulation of the test is incomplete.  Mr Thomas contended that the proper formulation of the test should be “a prima facie interest under the will or standing to benefit under the will”.  And as Lionel is not a named beneficiary in the will and his solicitors have admitted in answer to the Registrar’s requisition that he is not a residuary legatee, he would have no sufficient interest for the purpose of applying under section 7(3).

50. I do not accept his arguments, which do not have the support of authorities.

51. The purpose of seeking a subpoena for the testamentary document to be lodged in the probate registry is that the person who has been refused to inspect it or take a copy may have an opportunity to ascertain his rights under that document.  Although the application is non-contentious business under the Non-Contentious Probate Rules, it is often used as a preliminary step in a probate claim.  An actual or real interest is not required to give locus standi to challenge a will.  A person has a right to be a party to a probate claim where he can show that the court has jurisdiction to make an order in a probate claim that may affect his interest or possible interest in the estate of the deceased, however slightly (Williams, Mortimer & Sunnucks, op cit, §34-17 and footnote 58, citing among other cases Crispin v Doglioni (1860) 2 Sw & Tr 17 (an interest suit) and O’Brien v Seagrave [2007] 1 WLR 2002 (concerning a person entitled to apply for family provision under the Inheritance (Provision for Family and Dependants) Act)).  In Crispin v Doglioni, the possibility of interest of the plaintiff was “the possibility of his having an interest in the result of setting aside the will” (supra at [22]).

52. It is clear from the authorities that a party to a probate claim is not restricted to a person with a possible interest under the will, but includes someone with a possible interest in the estate of the deceased on intestacy if the will is held to be invalid.  In In the Goods of Shepherd, supra, the court made an order for a subpoena that the executors deposit in the registry the will and previous wills of the deceased, upon the application of persons who alleged the testatrix had made previous wills by which they were largely benefited. See also Chan Mei Fat v Choi Lai Sheung, supra. §8.

53. For the above reasons, I agree with the judge that for the purpose of applying for a subpoena under section 7(3), “some evidence showing a prima facie interest or standing” of the person making the application would suffice.

54. The judge was correct to hold, on the evidence before him, that Lionel has shown “at least prima facie evidence” he is the natural son of the deceased.  The applicant has sought to impugn that holding with the evidence filed after the Subpoena Decision in support of the DNA application.  I do not think the applicant is entitled to rely on the evidence of what the deceased had allegedly said to Monica Wong, Mrs Lau Chor Lok and the applicant on the relationship between the deceased and Lionel, as such evidence, which was not before the judge, could have been adduced with the exercise of reasonable diligence.

55. Given that Lionel was required to establish no more than “some evidence showing a prima facie interest or standing”, there is sufficient evidence before the judge that the estate of the deceased might have substantial assets in Hong Kong, being the beneficial interest of the deceased in 63% of the shares in Lei Shing Hong Ltd before it was privatised one month before his death.  There is no or no clear evidence when the deceased was divested of his beneficial interest in the shares of Amerdale Investments.

56. The judge was correct not to resolve the conflicting evidence of the applicant and Lionel regarding the domicile of the deceased at the time of his death, as it is not appropriate to resolve this conflict in evidence in an application under section 7(3), in which the applying party is required to do no more than to establish evidence showing a prima facie interest or standing.

Other arguments

57. The other arguments of the applicant may be dealt with shortly.

58. I do not agree there was abuse of process on the part of Lionel in bringing proceedings in Malaysia and Hong Kong for the same relief.  The application in Hong Kong was brought nine months after the application in Malaysia was made and was met with vigorous opposition.  It was in those circumstances that he resorted to making an application in Hong Kong by relying on a different statutory provision founded on the basis that the applicant is within the Hong Kong jurisdiction.

59. I also reject the contention that the judge was wrong to have regard to the failure of the applicant to apply for probate for several years.  The fact remains that the applicant has not explained in any of his affirmations why he has not done so.

Conclusion and orders

60. For the above reasons, we dismiss the Subpoena Appeal, with costs in favour of Lionel for both appeals, on a party and party basis, with a certificate for two counsel.

61. We also exercise the power under section 73 of Cap 10 to permit Lionel to inspect the will or wills deposited in the Probate Registry and to take a copy of the same.  It is right and proper to order inspection and grant leave to take copies as consequential relief.  It is within our jurisdiction to do so, and there is no good reason to leave it to the Registrar to deal with an application for inspection and leave to take copies, as Mr Thomas has invited us to do, with yet a further round of appeals to a judge and to this court.

62. On the undertaking of Mr Thomas to issue a Notice of Motion for leave to appeal to the Court of Final Appeal within 14 days of our judgment on these appeals, we have stayed the order for inspection and the taking of copies until after the hearing of that Notice of Motion.

Hon Fok JA:

63. I agree with the Reasons for Judgment of Kwan JA.

Hon Barma JA:

64. I agree with the Reasons for Judgment of Kwan JA.