LU SEN MOON HWA v. LU CHUNG CHUN

HCMP847 / 2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 847 OF 2010

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D E C I S I O N

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A.      Introduction

1.  This is the application of Madam Lu (“the Mother”) against her youngest son, Mr Lu Chung Chun (“the Youngest Son”), for:

(1) An interlocutory mandatory order (a) effectively to give her the right to (a) complete all the necessary procedures to obtain the body of her late husband Mr Lu Han Yung (“the Late Mr Lu”), and to carry out the funeral and burial services for him, and (b) to direct the Youngest Son to deliver up the HKID card of the Late Mr Lu to enable the Mother to carry out the above procedures.

(2) An interlocutory injunction restraining the Youngest Son and his agents from preventing or obstructing the Mother from carrying out the above.

2.  This application is also supported on the evidence by Mr Lu Chung Kut (‘the Eldest Son”), the eldest son of the Mother and the Late Mr Lu.

3.  The Late Mr Lu passed away some 3 weeks ago, on 19 April 2010 in a hospital.   Since then, the Mother (together with the Eldest Son) and the Youngest Son have been engaged in a dispute over who should be entitled to complete the necessary procedures with the relevant authorities and departments to obtain the body of the Late Mr Lu and to carry out the funeral and burial services for him.

4.  Hence the present action and this urgent application brought by the Mother.

5.  The Youngest Son opposes the application.  Although he agrees that a respectful funeral service should be held as soon as possible in Hong Kong, he disagrees with the Mother’s intention to carry out an earth burial of the Late Mr Lu in Hong Kong.  He says it is the Late Mr Lu’s wish to be cremated and buried in his hometown in Jiangsu, in the Mainland.

6.  Although this is an interlocutory application, if I grant the orders, given their nature, which are in the same terms as the substantive reliefs sought under the Originating Summons, it would have effectively disposed of the action.

7.  Before I deal with the application, I will first set out below what I regard as the relevant and uncontroversial background.

B.      Background

8.  For the present purpose, unless otherwise stated, the following background is not in controversy.

9.  The Late Mr Lu was born in 1924.  When he passed away, he was 85 years old.

10.  The Mother is now 83 years old.  She married the Late Mr Lu in around 1946 in the Mainland.  In other words, by the time when the Late Mr Lu passed away, they had been married for more than 60 years.

11.  After marriage, the Mother had been a full-time housewife.  They eventually moved to Hong Kong.

12.  They have 4 children.   Other than the Eldest Son (who is now around 62 years old) and the Youngest Son (who is 56), they also had another son (“the 2^nd Son”) and a younger daughter (“the Younger Daughter”).    But the 2^nd Son and the Younger Daughter both died respectively in the 1980’s.  

13.  The Eldest Son has a son.   The 2^ndSon is survived by a son and a daughter.    The Youngest Son does not have any children.

14.  The Late Mr Lu was a very successful businessman.  He was a shareholder and director of various companies (including various private companies and a listed company).

15.  By 1995 or 1996, the Late Mr Lu retired from his business, and later distributed a substantial part of his wealth to his immediate family members, including the Eldest and Youngest Sons.

16.  The Late Mr Lu was also a very generous person and had donated substantial funds for various charitable purposes in the Mainland and Hong Kong. 

17.  Unfortunately, since 1998, the Late Mr Lu started to suffer from illnesses.  By 2002, he was formally diagnosed to have advanced dementia and Parkinsonism.   He had been going in and out of hospital.

18.  In late 2004 and early 2005, after being discharged from hospital for his lung disease, he was arranged by the Youngest Son to reside in an elderly home with a self-financed bed.  A domestic helper was employed to attend the Late Mr Lu there.

19.  Before then, the Late Mr Lu had always lived with the Mother. 

20.  In 2005, in light of the Late Mr Lu’s mental conditions, the Mother applied under HCMP 869/2005 to appoint a committee (under the Mental Health Ordinance, Cap 136) to overlook the Late Mr Lu’s estate and investigate certain questionable withdrawals from the Late Mr Lu’s bank accounts by the Youngest Son.    That application was opposed by the Youngest Son.

21.  After hearing the application, Lam J on 9 December 2005 appointed the Eldest Son (instead of the Official Solicitor^[1]) as committee for the estate of the Late Mr Lu.  One of the main purposes for appointing a committee was to investigate two substantial withdrawals from the Late Mr Lu’s accounts.

22.  In 2007, there were 3 further sets of proceedings involving the Mother and the Youngest Son:

(1) HCMP 2267/2007, whereby the Mother applied for leave under ss 168BC and 168BD of the Companies Ordinance (Cap 32) to commence a derivate action on behalf Illustrious Assets Ltd.

(2) HCA 2426/2007, a derivative action commenced by Illustrious Assets Ltd against, inter alia, the Youngest Son and his girlfriend.

(3) HCA 2626/2007, an action commenced by the Late Mr Lu (as represented by the Committee) against one of the Youngest Son’s companies. 

23.  The actions were eventually settled in January 2009 after mediation.  They have entered into settlement agreements.

24.  Since the Late Mr Lu had been admitted to elderly home, it was the Youngest Son who had been paying all the expenses and who was the registered guarantor with the home.   It is however the Eldest Son’s allegation that, in breach of the settlement agreements, the Youngest Son had refused to arrange the Committee to become the guarantor and to be responsible for the expenses of the elderly home. 

25.  As mentioned above, the Late Mr Lu passed away on 19 April 2010 after being sent to a hospital by the elderly home staff. 

26.  Since then, the Mother (with the assistance of the Eldest Son and their lawyers) has sought to obtain the necessary documents for the purpose of obtaining the body of the Late Mr Lu from the hospital.    The Youngest Son with the assistance of his lawyers and armed with the Late Mr Lu’s identify card, has also been trying to do the same.   They have engaged in various incidents of heated debates and arguments.  In light of these, the relevant departmental and hospital staff has not acceded to either of their requests for completing the necessary procedures for the release the body of the Late Mr Lu. 

27.  The sad consequence of this impasse is that, 3 weeks after his death, the Late Mr Lu’s body is still being kept by the hospital, and no funeral service has been able to be carried out.

C.      The present application

C1.    Applicable principles for interlocutory injunction

28.  The applicable principles for interlocutory injunctions are well known.  They are to be found in American Cyanamid v Ethicon Ltd [1975] AC 396 and the relevant text in Hong Kong Civil Procedure 2010, paras 29/1/8-29/1/18, and can be summarized as follows:

(1)  Whether there is a serious question to be tried on the plaintiff’s claim and the reliefs sought.  If the answer is negative, no interlocutory injunction would be granted.

(2)  After satisfying with question (1) above, the Court should proceed to ask the following questions:

(a)  Whether damages would be a sufficient remedy for the plaintiff if the interim injunction is not granted.  If the answer is affirmative, generally no interlocutory injunction would be granted. 

(b) If the answer is negative, then the Court should ask whether damages are a sufficient remedy for the defendant even if the injunction is wrongly granted. If the answer to this question is in the positive, the interlocutory injunction should usually be granted.

(3)  If the answer to (2)(b) is also negative, then the court should proceed to consider all the circumstance as to whether on the balance of convenience, it is just and convenient to grant the injunction.

29.  However, where the injunctions sought are mandatory in nature, the relevant considerations that should be taken into account under the above principles have been further summarized by Ma J (as he then was) in Music Advance Ltd v The incorporated owners of Argyle Centre Phase I  (unrep.,  HCA 2574/2002, 30 August 2002), at para 12 as follows:

“12.      I would, however, only highlight one aspect.  Where, as in the present case, the plaintiffs seek an interlocutory mandatory injunction (that is, an order requiring the defendant to do something, in contrast to a prohibitory injunction which restrains the defendant from doing something), the following matters should be borne in mind as being the court’s approach: -

(1) In the case of interlocutory mandatory injunctions, it is often said or assumed that a court will not grant one unless it feels a high degree of assurance that at the trial of the action, it will be shown that the injunction was rightly granted : see Shepherd Homes Ltd v. Sandham [1971] Ch 340 at 351.  This has been explained and sometimes understood as meaning that in the case of an interlocutory mandatory injunction, the applicant’s case on the merits has to be made out to a higher standard of proof than in the case of prohibitory injunction : see the Court of Appeal’s observations in TKI Limited v. New Happy Limited [1995] 1 HKC 551 at 554 B-D.

(2) Broad statements such as the above must, however, be properly put in context.

(3) The basic approach to interlocutory injunctions, whether mandatory or prohibitory, is the same.  Section 21L of the High Court Ordinance, Chapter 4 makes no distinction between these two types of injunctions and simply states that interlocutory injunctions may be granted if it appears to be just or convenient to do so.

(4) At the interlocutory injunction stage, the principal concern of the court is that it might make a wrong decision in the sense that after trial, the party to whom an interlocutory injunction has been granted may lose or the party who has been refused one, may win.  The court will therefore take whichever course appears to carry the lower risk of injustice if it should turn out that it is wrong.  This ‘fundamental’ principle is the source of the guidelines that have evolved for the determination of interlocutory injunctions (included are, of course, the American Cyanamid guidelines) and therefore, in the application of any guidelines, sight must not be lost of this principle.  See here : Films Rover International Ltd v. Cannon Films Sales Ltd [1987] 1 WLR 670 at 680 D-G, in a passage from the judgment of Hoffman J which was approved by the House of Lords in R v. Secretary of State for Transport ex parte Factortame Limited (No.2) [1991] 1 AC 603 and recently reiterated in the English Court of Appeal decision of Zockoll Group Ltd v. Mercury Communications Ltd [1998] FSR 354 (which Mr Au was kind enough to place before me).

(5) Two common guidelines are of course the consideration of the merits of the plaintiffs’ claim and the balance of convenience.  Here, it is of course easy to see at once how they are linked to the fundamental principle : there must be a risk of injustice if the plaintiff cannot even establish a serious question to be tried or that one or the other party will be put to substantial inconvenience or prejudice if an interlocutory injunction were or were not granted.  

(6) In the case of interlocutory mandatory injunctions, the risk of injustice (being wrong in the sense referred to above) can be quite acute.  In Films Rover International Limited, it was put thus by Hoffman J at 681 B-E :

‘In Shepherd Homes Ltd. v. Sandham, Megarry J. spelled out some of the reasons why mandatory injunctions generally carry a higher risk of injustice if granted at the interlocutory stage : they usually go further than the preservation of the status quo by requiring a party to take some new positive step or undo what he has done in the past; an order requiring a party to take positive steps usually causes more waste of time and money if it turns out to have been wrongly granted than an order which merely causes delay by restraining him from doing something which it appears at the trial he was entitled to do; a mandatory order usually gives a party the whole of the relief which he claims in the writ and makes it unlikely that there will be a trial.  One could add other reasons, such as that mandatory injunctions (whether interlocutory or final) are often difficult to formulate with sufficient precision to be enforceable.  In addition to all these practical considerations, there is also what might be loosely called a ‘due process’ question.  An order requiring someone to do something is usually perceived as a more intrusive exercise of the coercive power of the state than an order requiring him temporarily to refrain from action.  The court is therefore more reluctant to make such an order against a party who has not had the protection of a full hearing at trial.’

(7) This passage in my view explains just why it is that generally a court will have to feel a high degree of assurance that at the trial of an action it will be shown that the interlocutory injunction was rightly granted before an interlocutory mandatory injunction will be given; all this being an exercise in assessing the strength of the plaintiffs’ case : see sub-paragraph(1) above.  However, I emphasize that this is only generally the court’s approach.  Where it is shown, as an exception to this general approach, that the case is one in which the withholding of on interlocutory mandatory injunction would in fact carry a greater risk of injustice than granting it even though the court does not feel the ‘high degree of assurance’ as aforesaid, it would be right to grant an interlocutory mandatory injunction : see Films Rover International Limited at 681 A-B.

(8) This of course brings into focus the balance of convenience.  Thus, if a plaintiff in seeking an interlocutory mandatory injunction cannot demonstrate more than a serious question to be tried, it will have to show that the balance of convenience tilts so much in its favour that justice requires such an injunction to be granted, even taking into account those aspects of an interlocutory mandatory injunction expressed by Hoffman J in Films Rover International Limited.

(9) At no stage, however, in the consideration of the matter does the court lose sight of the practical realities of the situation to which the injunction will apply : see NWL Limited v. Woods [1979] 1 WLR 1294 at 1306C per Lord Diplock.” 

30.  Applying the above principles, I now proceed to consider the present application as follows.

C2.    The Mother’s claim for her right – a high degree of assurance of success?

C2.1  Who has the right to the body – the applicable principles

31.  Mr C Y Li for the Mother submits that the Mother’s claim under the Originating Summons for the right to the possession of the Late Mr Lu’s body and to carry out the funeral and burial services for him is almost undefeatable under the applicable principles and in light of the evidence filed.  Is he right?

32.  After hearing submissions from Mr Li and Mr Anderson Chow, SC (leading Mr M C Law) for the Youngest Son, and looking at the helpful authorities submitted by them, I find the legal principles relevant to the present case to determine who should be entitled to the body of a deceased and its burial as follows:

(1) There is no property in a corpse.  Williams v Williams (1882) Ch D, Vol XX 659, 663-4 per Kay J.

(2) A man cannot by will dispose of his dead body and any direction by will or otherwise by the deceased on burial cannot be enforced and is void:  Williams v Williams, supra, 665.

(3) As a starting position, the executor named in a will or the known personal representative in intestacy is entitled to the possession of the body and responsible for its burial.   The right of the surviving spouse or de facto spouse will also generally be preferred to the right of the children.  Williams v Williams, supra, 664-5; Smith v Tamworth City Council (Lexis Transcript, 14 May 1997, Young J)^[2] at pp 10 and 11; Williams, Mortimer and Sunnucks on Executors, Administrators and Probate (19^th ed), para 6-01.

(4) However, this starting position can be displaced where the court is satisfied that there are circumstances to justify a departure from it.  Some such circumstances are, for examples, where the prima facie entitled person is not ready willing and able to arrange for the burial of the deceased, or in the case of intestacy, there are no surviving spouse or where no one has indicated to be prepared to apply for the administration of the deceased’s estate:  Jones v Dodd (1999) 73 SASC 328, paras 37-51 (pp 334-336).

(5) A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.  He also cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased n a reasonable and appropriate manner:  Smith v Tamworth City Council, supra, p 11.

33.  Further, in an interlocutory and urgent application of this kind, I accept the submissions from Mr Li and Mr Chow that the Court should adopt the following approach in determining it:

(1) The Court should not embark on a lengthy adversarial hearing to resolve the various claims and counterclaims, and cross-examination will usually be inappropriate, as this would delay the decision for an unacceptable period while the body remained undisposed of:  Re the Will and Estate of Sarina Keller, deceased [2007] VSC 118 (Lexis transcript, 30 March 2007, Hargrave J), para 9.

(2) The Court should apply the consistent principles (as summarized above) to resolve the matter.  The court should approach the issue by seeking to identify a person with the best claim in law to the responsibility of making the burial arrangements instead of trying to resolve the matter based on the “merits”:  Sarina Keller, supra, paras 10 – 14.

(3) In adopting this approach and to resolve the matter in a practical way, an important consideration is that the body should be disposed of with all proper respect and decency and, if possible, without unreasonable delay:  Chiu Chung Leung Edward v Lee Fu Wai [2004] 4 HKC 65, at para 8 per Tang J (as he then was); Djusni v Yiu So [2006] 2 HKC 225, at para 16 per Recorder Edward Chan, SC. 

(4) The Court would try to arrive at a practical and fair solution, over which reasonable people might disagree.  In seeking to do so, effect should be given as far as possible to the wishes of the deceased or cultural and religious factors, but only if the same can be ascertained without the need to resolve the dispute on the evidence: Chiu Chung Leung Edward, supra, paras 11, 15; Jones v Dodd, supra, para 12; Sarina Keller, supra, para 15. 

C2.2  Discussion

34.  Applying the above principles and approach, I have come to the clear view that there is a high degree of assurance that at the trial of the action, the Mother is likely to succeed to be granted the right to the possession of the Late Mr Lu’s body and its burial.  My reasons in coming to this conclusion are as follows.

35.  The Mother has indicated that she intends to apply for the administration of the Late Mr Lu’s estate.   It is not disputed that under Rule 21 of the Non-Contentious Probate Rules (Cap 10A), she has the highest priority to be appointed as the personal representative.  

36.  At the same time, the Youngest Son has not suggested that he intends to also apply to become the personal representative of the Late Mr Lu’s estate.     There are therefore at present no known “contenders” against the Mother for becoming the personal representative.

37.  In an attempt to say that the Mother may not be a fit and proper person to be appointed as the personal representative, the Youngest Son has filed evidence to show that there were occasions in 2005 and recently which suggest that she was forgetful and “senile”.  However, in my view, these incidents, even taking to the highest, at best only show that she was at times absent-minded and forgetful.   This is very different from proving that she is not a fit and proper person to be appointed as the administratrix over the Late Mr Lu’s estate.

38.  On the other hand and moreover, the Mother has provided psychiatric medical expert reports (one in 2005 and one dated 4 May 2010), which confirm that she is of sound mind and not suffering from any psychiatric conditions or mental disabilities. 

39.  Given the above evidence, I am not satisfied that there is even an arguable case at this stage that the Mother is shown not to be a fit and proper person required by the law to be appointed as the personal representative of the Late Mr Lu’s estate^[3].

40.  It is therefore clear to me that it is likely that the Mother will be appointed the personal representative of the Late Mr Lu’s estate when she applies for its administration.

41.  In the premises, even though I accept Mr Chow’s submissions that strictly speaking there is no title to act before the grant of administration, in approaching pragmatically and practically an urgent and interlocutory application as the present one, the starting position must still be that the Mother is likely be given the right to the possession of the Late Mr Lu’s body and to arrange for its burial. 

42.  Mr Chow for the Youngest Son however further advances the following arguments that there are circumstances to justify the departure from this starting position:

(1) This is not a case of determining the rights between the Mother (and thus the surviving spouse and the likely administratrix) and the Youngest Son, but a “fight” between two brothers.  This is so because, given the Mother’s mental and physical conditions (as set out in the Youngest Son’s evidence), in reality, it is the Eldest Son but not the Mother who would be the one to decide and control the funeral and burial services for the Late Mr Lu. 

(2) There is clear evidence that the Late Mr Lu’s wish is to be cremated after death and be buried in his hometown in the Mainland.  This conflicts with the Mother’s intention to carry out an earth burial of the Late Mr Lu in Hong Kong.   If the Mother is given the right to carry out the burial, the Late Mr Lu’s wish would be unfairly and inappropriately ignored. 

43.  With respect, I am unable to accept his submissions.

44.  First, I do not think there is sufficient evidence before me to even suggest arguably that the Mother is of such mental or physical conditions that she would not be able to make decisions on how the funeral or burial service of the Late Mr Lu be carried out.   She has explained it clearly in her affirmations as to what she wants to be done for the Late Mr Lu’s body.  There is nothing to suggest these are not based on her own wishes or decisions.  These are not complicated matters.    Given her age, it is not unreasonable to expect that she may have to entrust others, including the Eldest Son, to physically carry out some of the steps or errands to arrange for the funeral and burial services for the Late Mr Lu.  But that does not render it, as suggested by Mr Chow, that she is in reality not the one who decides how the funeral and burial of the Late Mr Lu should be carried out.

45.  Secondly, I am also not satisfied that there is clear and undisputed evidence as to the Late Mr Lu’s wish on how he should be buried:

(1) The Youngest Son’s evidence, taking to the highest, is that there were occasions in 1990 and 1997 that the Late Mr Lu expressed the wish to be cremated and be buried in his hometown in the Mainland when he passed away.

(2) At the same time, it is the Mother’s evidence that, between 2001 and until when the Late Mr Lu was admitted to the elderly home (when he became unable to speak), the Late Mr Lu had repeatedly agreed with her wish not to be cremated and that they be buried together eventually.   She also says she has never heard of the Late Mr Lu’s saying that he wanted to be cremated and buried in his native place in Jiangsu. 

46.  This kind of conflict on the purported Late Mr Lu’s wish is one that would be difficult to resolve even if time had permitted the testing of the evidence.  As observed by Debelle J in the first instance judgment of Jones v Dobb:

“…even if time had permitted the testing of evidence, this is the kind of dispute where it would be difficult to resolve the conflict in the evidence.  Ultimately, it might turn out to be one of those cases where a person has said different things to different people on different occasions or in different sets of circumstances.”^[4]

47.  There is thus no clear and undisputed evidence on the Late Mr Lu’s wish as to how he should be buried.  In the circumstances, in trying to arrive at a practical and fair conclusion in this application, it is impossible or impracticable to give any effect to it.  In other words, I regard the purported Late Mr Lu’s wish only a neutral factor to my exercise of discretion in determining whether to grant the injunctions sought by the Mother.

48.  For these reasons, I therefore do not find that there are circumstances to justify the departure from the position that the Mother, being the likely personal representative of the Late Mr Lu’s estate, be given the right to the possession of the Late Mr Lu’s body and to carry out its burial. 

49.  Further, in the exercise of my discretion, I have also taken into account of the background facts set out above and the following undisputed matters which I believe support the Mother’s application to be given the right to carry out the funeral and burial services for the Late Mr Lu:

(1) She is the surviving spouse of the Late Mr Lu with more than 60 years’ of marriage. There is no evidence to suggest that they had not been close to each other during the marriage.

(2) She had been living with the Late Mr Lu throughout the married life until when he was admitted to the elderly home in 2004.

(3) The Youngest Son in his own evidence says he respects and loves the Mother. 

(4) The Mother and the Eldest Son wish to have a decent and respectful funeral service for the Late Mr Lu be held in Hong Kong.

(5) The Youngest Son does not object that a decent and respectful funeral service for the Late Mr Lu should be held as soon as possible in Hong Kong.

(6) Apparently, all the Late Mr Lu’s immediate family members except one are residing in Hong Kong and thus it would be much more convenient and practicable for them to visit and pay tributes to the Late Mr Lu’s graveyard if buried in Hong Kong. 

50.  In my judgment, these factors give weight to support the Mother’s intention to have the Late Mr Lu buried in Hong Kong.

51.  I am therefore satisfied that with the matters as they stand now, the Mother has shown that she has the best claim in law to the responsibility of making the burial arrangements for the Late Mr Lu, and that there is a high degree of assurance that at the trial of the action, it would appear that the injunction is rightly granted.  

C3.    Balance of convenience

52.  In an application like this, it is obvious that damages would not be a sufficient remedy for either party.  This leads to the consideration of balance of convenience.

53.  Insofar as that is concerned, in light of (a) my above conclusion that the Mother is likely to succeed at trial in her claim for the reliefs sought, and (b) the urgency to have a decent and respectful funeral and burial services to be carried out for the Late Mr Lu without any unreasonable delay, the balance lies clearly in favour of granting the injunctions sought.    

D.      Conclusion

54.  For the reasons explained above, in the exercise of my discretion, and subject to the usual undertaking as to damages by the Mother, I grant the following interlocutory orders in favour of the Mother:

(1)  The Youngest Son do within 2 days from today deliver up to the Mother the Hong Kong identity card of the Late Mr Lu.

(2)  Until judgment or further order, an injunction restraining the Youngest Son whether by himself or his agent or servant or otherwise howsoever from preventing or obstructing the Mother or interfering with the Mother whether by herself or through her agent or servant or otherwise:

(a)  on her making and/or processing applications with Queen Mary Hospital, the Hong Kong Island Deaths Registry and any other authorities or bodies for the purpose of carrying out and completing the necessary documentation and procedure required for retrieving the dead body of the Late Mr Lu from Queen Mary Hospital;

(b) on her carrying out the funeral and burial services for the Late Mr Lu.

(3)  Until judgment or further order, an injunction restraining the Youngest Son whether by himself or his agent or servant or otherwise from holding himself out to others to be the person entitled to:-

(a)  make and/or process applications with Queen Mary Hospital, the Hong Kong Island Deaths Registry and any other authorities or bodies for the purpose of carrying out and completing the necessary documentation and procedure for retrieving the dead body of the Late Mr Lu from Queen Mary Hospital;

(b) carry out the funeral and burial services for the Late Mr Lu.

(4)  The Mother be authorized to make and/or process applications with Queen Mary Hospital, the Hong Kong Island Deaths Registry and any other authorities or bodies for the purpose of carrying out and completing the necessary documentation and procedure for retrieving the dead body of the Late Mr Lu from Queen Mary Hospital and to carry out the funeral and burial services for the Late Mr Lu. 

55.  Given the mandatory orders, I had thought of whether it was still necessary to grant the prohibitory injunctions as sought.  However, after reflecting on the history of the incidents at the hospital and the relevant departments relating to the fight between the parties for obtaining the release of the Late Mr Lu’s body, I think it is just and proper in these circumstances to also grant the prohibitory orders to avoid any potential further delays to have the Late Mr Lu’s body properly disposed of by the Mother under the mandatory orders.

56.  The Mother is successful in this application.  Although interlocutory in nature, I see no reason why costs should not follow the event:  Hong Kong Civil Procedure 2010, para 29/1/44.  I therefore further make an order nisi that costs of this application be to the Mother to be taxed if not agreed.  Unless any of the parties applies by Summons to vary the same, this order shall become absolute 14 days from today. 

57.  Lastly, I would like to thank counsel for both sides for their helpful assistance. 

[1] Given that the main purpose of appointing the committee was to investigate the questionable transactions concerning the estate, Lam J was of the view that it was inappropriate to use public funds in appointing a committee.   Notwithstanding the Youngest Son’s various allegations against the Eldest Son, Lam J was also of the view that there was insufficient evidence before him to establish any mala fide on the part of the Eldest Son.   See: paras 14, 16 of the Reasons for Decision dated 23 December 2005.

[2] The reported citation should be (1997) 41 NSWLR 680.  However, at the hearing, only the lexis transcript copy of the judgment was provided.

[3] In this respect, I note Mr Chow in his skeleton submission does not in fact advance a case that the Mother is not a fit and proper person to be the administratrix because of her mental conditions.  He instead appears to rely on the such evidence to suggest that the Mother would not in fact be the person handling the funeral and burial arrangements.  I would deal with this argument later.

[4] Quoted by the South Australia Supreme Court at para 12 of its judgment: (1999) 73 SASR 328 at 330.