CHOW FUNG YING v. CHOW FUNG HA AND OTHERS

HCMP 2295/2023

[2025] HKCFI 3358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 2295 OF 2023

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D E C I S I O N

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INTRODUCTION

1.  By an originating summons  dated 4 December 2023 (“OS”), the plaintiff Chow Fung Ying (周鳳英) (“P”) seeks the determination of the Court on the following relief:

“(1) An Order that the Plaintiff and the 1^st Defendant be passed over as the Executrices of the Estate of CHAN HANG DUEN (陳行端), deceased (“Estate”) and replaced by an independent professional trustee as Administrator (“Substitute Administrator”) pursuant to section 36 of the Probate and Administration Ordinance (Cap. 10);

(2) Subject to the filing of the requisite papers, a grant of Letters of Administration with Will Annexed to the Estate be made in favour of the Substitute Administrator;

(3) The requirement of sureties guarantee by the Substitute Administrator be dispensed with;

(4) Insofar as is necessary, a Vesting Order in favor of the Substitute Administrator;

(5) Such further and/or other ancillary relief as this Honourable Court deems fit; and

(6) The Plaintiff’s costs arising from or incidental to these proceedings be paid by the 1^st Defendant personally. Alternatively, the Plaintiff’s costs arising from or incidental to these proceedings be paid out of the Estate.”

2.  In support of her application, P has filed the affirmation of Chow Fung Ying on 4 December 2023 (“P’s 1^st Aff”). It is a 39-page affirmation setting out some minute details about the long history of the bitter disputes between the parties.

3.  The 5 defendants (D1 to D5) in this case, who are siblings of P, have respectively filed the acknowledgment of service of the OS in December 2023 and January 2024.  Thereafter, nothing happened to the application until 12 May 2025 when P filed a notice of appointment to hear the OS before me seeking the above relief.  The estimated length of hearing was for 15 minutes only.  In addition, on 7 July 2025, P filed a summons returnable on the same day as the OS hearing, seeking leave for P to file and serve the 3^rd affirmation of P (“P’s 3^rd Aff”) to propose Mr Jonathan Man of Messrs Ho Tse Wai & Partners to act as independent administrator for the estate (“the Summons”).

4.  In support of the application, the 1^st defendant Chow Fung Ha (周鳳霞) (“D1”) has filed an affirmation on 30 January 2024 briefly outlining her position and putting forward an alternative candidate as independent administrator for the estate (“D1’s Aff”).  It was a relatively short affirmation consisting of 9 pages only.  The 4^th defendant Chow Fung Yee (周鳳儀) (“D4”) who is not legally represented has filed a short affirmation (of only 4 pages) on 28 December 2023 (“D4’s Aff”) setting out her objection to P’s application under the OS.

5.  On 12 May 2025, P filed her 2^nd affirmation in reply to D1 and D4’s affirmations (“P’s 2^nd Aff”).  It repeated some of the allegations she made under P’s 1^st Aff and replied to matters raised in D1’s Aff and D4’s Aff.  It ran into some 9 pages long. 

BACKGROUND

6.  P applies under the OS for passing over D1 and herself as the executrixes of the estate of their late mother, Madam Chan Hang Duen (陳行端) (“the Deceased”).  The size of the estate is a relatively modest one consisting mainly of cash at approximately HK$9 million only.

7.  Simply put, the OS asked the Court to perform an administrative task of passing P and D1 over as executrixes of the estate to that of an independent administrator. 

8.  All the parties involved in this case are the children of the Deceased and are siblings to one another.

9.  The Deceased made a will on 21 January 2014 (“the Will”) in which she had :-

(a)  named P and D1 as “joint and several” executrixes;

(b)   bequeathed property she owned in Luk Yeung Sun Chuen to P, D1, D2, D3 (without D4) and D5 as joint tenants; and

(c)  bequeathed her residual estate to P and all Ds (except for Chow Kwok Chiu who is not a party to the present proceedings).

10.  The Luk Yeung Sun Chuen property was sold in February 2021, with the proceeds of sale being kept in two different bank accounts, namely, (a) an account under the Deceased’s sole name; and (b) a joint account held by the Deceased, D1 and D4.

11.  The validity of the Will is not in dispute.  From about late 2020 to early 2021, the relationships between the siblings began to deteriorate due to the disagreements arising from how to manage the Deceased’s property given her advanced age.  Disparaging remarks were made by the members of two separate camps amongst the siblings.

12.  On 29 December 2021, it was claimed by one camp that the Deceased had purportedly executed an Enduring Power of Attorney (“EPA”) appointing D1 and D4 as her attorneys.  The EPA was registered with the High Court on 3 January 2022.

13.  The above disputes led P to apply for an interim asset-freezing injunction on 28 January 2022 against D1 and D4 under HCMP 178/2022 (“the Injunction Proceedings”).  An ex-parte interim injunction was granted by the Court on the same day.  On 11 February 2022, the interim injunction was discharged, on the basis of certain undertakings provided by D1 and D4.  The costs of HCMP 178/2022 have been reserved and  not yet dealt with.

14.  On 15 August 2022, P commenced another set of proceedings under HCMH 79/2022 (“the Mental Health Proceedings”), seeking to appoint herself as the Deceased’s committee.  D1 contested the HCMH Proceedings.

15.  On 3 May 2023, the Court completed its inquiry into the Deceased’s mental capacity and declared that she was a mentally incapacitated person (“MIP”).  The following orders were made by Fung J under that proceedings:-

(a)  D1 and D4 were to file an affirmation, providing an updated list of the Deceased’s assets; and

(b)   An independent committee to be appointed, given the acrimony and/or hostility between P on one hand and D1 and D4 on the other, so that the Deceased’s interest could be protected.

16.  Before the committee was appointed under the Mental Health Proceedings, the Deceased passed away on 23 May 2023. As a result, the issue of costs (including the costs of P, D1, D4 and the Official Solicitors) in the HCMH proceedings are left in abeyance and have not yet been resolved.  On 24 May 2023, D4 filed the requested affirmation, providing updates on the Deceased’s assets.

17.  Then, on 4 December 2023, P commenced another set of proceedings, ie the present OS. 

18.  P originally proposed Ms Florence Chan, among 2 other alternative candidates, as the independent administrator in lieu of herself and D1 as the executrixes of the Deceased’s estate.

19.  D4, who is not one of the executrixes, filed an affirmation on 28 December 2023 stating that both she and D3 oppose to the passing over and would prefer a more cost-effective independent administrator should the court decides one is needed.  This is mainly due to the simplicity and the small size of the estate.  However, both she and D3 understand that they do not have the authority on the administration of the estate as they have not been named as executor or executrix under the Will.  D1, as the co-executrix of the estate of the Deceased, has in my view very sensibly filed D1’s Aff , confirming that she does not oppose to P’s application.  She put forward Mr Wong Tak Shing (“Mr Wong”) as a candidate for the role of the independent administrator.

20.  The Court has also been informed that the parties had twice attempted without prejudice negotiations but without success.

The Issue under the OS

21.  As it appears in the OS, the issue for the Court to decide in this case is a very simple one, ie to allow P and D1 to pass over their role as the executrixes of the estate of the Deceased to an independent administrator.

22.  In the normal course of events, this would only require the parties to briefly outline the background of the case to the Court and state why the passing over and the appointment of an independent administrator are necessary.  Then the parties would respectively nominate their choice of an independent administrator, usually a solicitor or an accountant with relevant probate experience, if the parties cannot reach an agreement to a suitable candidate.

23.  In such case, the Court would simply nominate an independent administrator to take over the role of the executors / executrixes.  Usually, this would only require an applicant to file an originating summons and a short supporting affidavit to briefly introduce the background to the case, the differences between the parties and the respected nomination of candidates.  It is not a difficult task and should not involve lengthy recital of the disputes between the parties and of the differences between them.

24.  As Mr Richard Yip, counsel for D1, stated in his skeleton submissions, D1 in D1’s Aff has stated clearly that she did not oppose to being passed over as one of the executrixes of the estate to the independent administrator.  Mr Yip also pointed out that since the size of the estate is a relatively modest one (as it mainly consists of cash at around HK$9 million only), and given the acrimonious relationship between P and D1, as well as the differences between the siblings involved, D1 therefore agreed that an independent administrator should be appointed.  In this regard, D1 has nominated Mr Wong and submitted that he is a better candidate given his relevant experience acting as an independent administrator in no less than 10 other probate cases and as author of numerous books and publications on wills and probate matters.

25.  But sadly this is not what had happened in this case.  Instead of briefly outlining the history of the case and the need for P and D1 to pass over their role to an independent administrator, P saw fit to indulge herself in a very lengthy affirmation (consisted of 39 pages) for the OS.  It went into minute details of the history of the bitter disputes between the two rival camps of the siblings both prior to and after the death of the Deceased.  It reproduced quite a lot of the WhatsApp messages exchanged between the 2 rival camps which went into pages after pages.  It also gave details of the Mental Health Proceedings. Only one section (ie Section G) on the last 3¼ pages of P’s 1^st Aff was devoted to the issue of the appointment of the independent administrator. 

26.  In my view, most of the contents of P’s 1^st Aff insofar they recited the bitter disputes between the siblings are totally unnecessary for the purpose of deciding the issue under the OS. All that was required of P was to set out briefly the history of the case and her agreement to passing over of her and D1’s role as the executrixes of the estate to an independent administrator.  If the identity of the independent administrator cannot be agreed between the parties, P could simply have put forward her own nomination of candidates for the Court’s selection.  In this regard, I consider at least 80% of the contents of P’s 1^st Aff are not necessary or relevant for the Court’s determination of the issue under the OS.  It added unnecessary costs to the already very costly Injunction Proceedings and Mental Health Proceedings.  Those unnecessary costs of preparing the lengthy affirmation, ie P’s 1^st Aff, should not in my view come out of the already much diminished size of the estate.            

27.  Besides, I have been told by Mr Yip that P had never sought the agreement of D1 for the proposed passing over and the appointment of the independent administrator before she issued the OS.  Further, when the proposed candidate Ms Florence Chan was no longer available to act as the independent administrator, P simply put forward an alternative candidate Mr Jonathan Man for the Court’s selection under the Summons without first asking D1 if she would agree to it.  

28.  In my view, had P or her legal advisers been more reasonable by firstly approaching D1 to see if she would agree to passing over her role as executrix to an independent administrator, and if so, whether she would agree to one of the nominated candidates, then this matter could have been easily resolved.  If it was D1 who has acted unreasonably in refusing to agree to the requests, then P can argue that D1 should be the party who should bear the costs of those applications.  In my judgment, it is unhelpful and certainly against the underlying objectives of the Civil Justice Reform to issue such application without first asking the opposing party or parties if they would agree to the request first.           

29.  Further, in my judgment, the issue of the Summons was totally unnecessary and premature.  The proper way of dealing with it was to seek the consent of D1 first to see if they would agree to P putting forward an alternative candidate in place of the originated proposed one when Ms Florence Chan indicated that she was no longer willing to act as the independent administrator.  Only if D1 refused to give such consent, then consideration should be given to issue a summons.  P apparently did not do that before issuing the Summons in this case.

The Court’s nomination of the Independent Administrator

30.  Given the huge difference of the relevant probate experience and acting as independent administrator in different cases between Mr Wong (nominated by D1) and Mr Man (nominated by P), the choice for the Court is obvious and not difficult at all.

31.  I agree with Mr Yip’s submission that Mr Wong clearly is a better candidate to act as the independent administrator for the estate due to the following reasons:-

(a)  Mr Wong has been appointed by the Court as independent administrator in no less than 10 cases before.  There is no such experience mentioned in Mr Man’s CV;

(b)   Mr Wong has been the author of numerous books and publications on wills and probate matters.  Mr Man has not published anything in the field;

(c)  Mr Wong’s firm has been selected by the Official Administrator as one of the 10 firms in the “New Panel Solicitors for OA” on 21 February 2017.  Mr Man’s firm is not on the panel; and

(d)   Mr Wong is a member of Law Society’s Probate Committee, and Working Party on Charities and Trust while Mr Man is not.

32.  With respect to Mr Man, it is clear that he has no relevant experience in dealing with probate matters and has never acted as an independent administrator in any probate cases before.

33.  Ms Lee for P has asked the Court to prioritize the cost effectiveness in selecting the independent administrator.  She compared the hourly rate between that of Mr Man (at HK$3,500 per hour) to that of Mr Wong (at HK$4,000 per hour) and put that forward as the main ground of why the Court should choose Mr Man in preference to Mr Wong.

34.  I disagree.

35.  Given the hourly rate difference between the 2 proposed administrators is at $500 per hour only and that both of them have agreed that their fees would be subject to “statutory cap” under section 60(2) of the Probate and Administration Ordinance, Cap 10 (“the PAO”), there will not be any significant savings for the estate at all.  However, in my view, in a case like this where there are bitter disputes between the parties, it is important that an experienced administrator like Mr Wong who has had vast experience in handling probate matters, especially as an independent administrator, should be appointed in order to put some order and discipline into the administration on this rather modest estate.

36.  Further, given the fact that the issue of costs of the Injunction Proceedings and the Mental Health Proceedings has still not been resolved, it is questionable how much money will still be left at the end of the day for distribution to the intended beneficiaries under the Will. Therefore, I consider that a strong and experienced candidate like Mr Wong should be appointed as the independent administrator in this case.  I so make such an order.

COSTS

37.  Mr Yip for D1 submits that P should bear the entire costs of this application. He further submits that P’s costs should not be borne by the estate due to the following reasons:

(a)  P did not consult D1 prior to launching the present application. If P had consulted D1, she would have consented to it, saving a substantial amount of time and costs on the issue of whether both P and D1 should be passed over as executrixes as of the estate;

(b)   P has spent a substantial amount of costs on rehearsing the past allegations against D1, as well as unnecessarily asking D1 to provide an undertaking to provide the bank statement to the administrator to be appointed;

(c)  In light of D1’s stance stated in her affirmation dated 30 January 2024 that she does not object to being passed over as administrator, the only remaining issue is the choice of administrator. This should be a simple issue that the Court can determine without any further evidence or correspondence. However, P incurred substantial unnecessary costs after that date:

(i)   P filed the P’s 2^nd Aff, which the bulk of the content was not related to the choice of administrator;

(ii)   Numerous letters by P’s solicitors since May 2025 asking D1 to disclose the bank statement of the Deceased.

38.  In principle, I agree with Mr Yip’s submissions as set out above.

39.  In my view, the OS really involves one simple issue of asking the Court to appoint an independent administrator in place of P and D1 as the executrixes.  As both of them have agreed to be passed over as administrator, it would be a simple task which does not need to involve any lengthy affirmation evidence. 

40.  I am of the view that the bulk of P’s 1^st content, which was spent in reciting the bitter disputes amongst the siblings and history of the case, was unnecessary and irrelevant.  Likewise, the request to ask D1 to provide an undertaking to provide the bank statement to the administrator has no basis.  Similarly, the issue of the Summons to have Mr Man as the substitute proposed candidate was unnecessary if P had first asked for D1’s consent.  Only if D1 had refused, then the issue of the Summons may have become necessary.  But P had never asked D1 or her solicitors.

41.  In my judgment, P should be held responsible for causing the unnecessary costs to be generated in this application.   

42.  However, the basic costs to apply for the appointment of the independent administrator should come out of the estate.  

43.  Looking at the matter in the round, I consider that 80% of the costs of the OS should be borne by P while the 20% which focuses on the issue of the appointment of the independent administrator should come out of the estate.

44.  I therefore make an order that P should pay 80% of the costs of the OS and the entire costs of issuing the Summons, such costs will be summarily assessed by the Court and will be ordered to be paid forthwith by P. The remaining 20% of the costs of the OS will be paid out of the estate.

45.  At the end of the hearing, I directed the parties to lodge their respective statements of costs and their lists of objections for the Court’s consideration and summary assessment.

46.  Having studied the statements of costs submitted by D1 on the OS and the Summons and the lists of objections lodged by P, I would summarily assess the costs of the OS submitted by D1 at $350,000, 80% of that will be at $280,000.  For the costs of the Summons, I would summarily assess that at HK$30,000.  I therefore order P to pay the above costs, in the total sum of HK$310,000, to D1 forthwith.