CAPITAL MATRIX LTD AND OTHERS v. THE PERSONAL REPRESENTATIVES OF KHAN MOHAMMED SADIG KHAN (DECEASED) AND OTHERS

LDCS 19000/2014

IN THE LANDS TRIBUNAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

APPLICATION NO. LDCS 19000 OF 2014

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D E C I S I O N
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1.  This is the hearing of the applicants’ summons dated 27 January 2015 under Order 15 Rule 6A of the Rules of High Court (“RHC”) to appoint a person to represent the estate of KHAN Mohammed Sadig Khan (deceased) (the ‘deceased”) for the purpose of the proceedings and that the proceedings be carried on against the applicants and the person so appointed.

2.  There are 2 parties competing to be appointed. They are the 44^th respondent (“R44”) who is the son of the deceased. His appointment is supported by the 45^th respondent (“R45”), his sister and a daughter of the deceased. A lady called Madam Naz Naila (“Naila”) who claims to be the lawful widow of the deceased would also like to be appointed. R45 opposes and queries whether Naila is the lawful wife of the deceased. Naila considers herself having a higher priority in the appointment. The applicants take a neutral stance.

Brief Background

3.  The deceased is the registered owner of a unit in a real estate development called Merry Terrace on the Hong Kong Island. He purchased the unit on 31 December 1963. It is not in dispute that he passed away in Pakistan on 7 September 2002 without leaving a will. The applicants, after having acquired 84.613% of undivided shares in Merry Terrace, commenced an application under the Land (Compulsory Sale for Redevelopment) Ordinance, Cap 545 (“LCSRO”) on 31 October 2014 seeking an order from this tribunal to sell all the undivided shares in the land for the purpose of redevelopment. No grant of probate or letters of administration has been made in respect of the deceased’s estate, and accordingly the said estate was sued as R35. R44 and R45 were joined because they were occupiers of the deceased’s unit and claimed to have interest in the deceased’s unit.

4.  Although it has not been stated in affirmation, R44 said in court that his father has got 8 children[1] but 4 of them have already passed away. One of their siblings has moved to live in the United Kingdom and the other in Indonesia. He and R45 are the only children of the deceased living in Hong Kong. It can be gathered from the respective Certificates of Registered Particulars of the deceased and a Madam Naseem Akhtar issued by the immigration Department and exhibited in R44’s affirmation the following:

i) Madam Naseem was the spouse of the deceased;

ii) The deceased first reported on 18 September 1995 that Madam Naseem had already passed away; and

iii) Both the deceased and Madam Naseem have applied for Hong Kong identity cards for the 6 children, 3 for each.

5.  According to the said registration particulars, the deceased was born in May 1921 in Pakistan. He passed away on 7 September 2002, and so at the age of 81. It is common ground that the dead certificate exhibited on behalf of the applicants[2] issued by the Pakistan Authority in respect of Khan Muhammad Sadiq Khan, though with a name slightly different from that of the deceased, relate to the deceased.

6.  Almost at the age of 80, on 27 April 2001 the deceased married in Pakistan Naila who was then at the age of 18 according to the marriage documents. It is fair to say, after reading their affirmations and hearing the submission of R44, R44 and R45 doubt the validity of the marriage:

i) R44 and R45 said they did not know Laila. R44 said even shortly after the said marriage, the deceased returned to Hong Kong on 11 July 2001 but he did not tell anything about the marriage. The deceased only told R44 and R45 that he had employed a female domestic helper by the name of Naila in Pakistan;

ii) The deceased was suffering from dementia, and a certificate of Dr Lau of Prince Margaret Hospital dated 11 July 2002 was produced[3];

iii) There are doubts arising from the documents produced by Naila in support of the marriage;

iv) Legally speaking, the marriage between the deceased and Naila was invalid according to Pakistan/Islamic laws and Naila has no interest in the estate of the deceased.

7.  From the affirmation filed on Naila’s behalf, the following 3 documents have been exhibited in support of the marriage and its recognition by the court of Pakistan:

i) The Marriage Certificate with certified English translation both duly attested by the Ministry of the Foreign Affairs of Pakistan and authenticated by the Embassy Consulate of the People’s Republic of China in Pakistan[4];

ii) The Marriage Registration Certificate with English translation both duly attested by the Ministry of the Foreign Affairs of Pakistan and authenticated by the Embassy Consulate of the People’s Republic of China in Pakistan[5]; and

iii) Copy of notes of proceedings for grant of “Succession Certificate for amount left by his[her]deceased husband Khan Muhammad Saddia who died on 7 September 2002[6]” recorded and signed on 22 May 2003 signed by Muhammad Nadeem Shaukat, Civil Judge 1^st Class/Guardian Judge, Rawalpindi and Form of Succession Certificate dated 30 May 2003[7], all certified true by a Superintendent, District & Sessions Judge, Rawalpindi (collectively referred to as “succession certificate”). This tribunal has asked Mr. Wong, solicitors acting for Naila whether this document has been authenticated. Mr. Wong submitted it has not but they will try to obtain an authenticated copy from Pakistan. 

8.  According to the succession certificate, it is submitted on behalf of Naila that the Pakistan court has recognized her status as the deceased’s widow. She was entitled to inherit a share i.e. 8/64[8], of the deceased’s estate in Pakistan. It is submitted that these documents support Naila’s marriage with the deceased being recognized as valid by a court of law Pakistan.

Discussion

9.  In relation to the queries raised in §6(i) and (ii) above, it is noted that at the call-over hearing on 10 February 2015, R44 informed the tribunal the deceased basically stayed in Pakistan for the last few years before his death. He only returned to Hong Kong briefly for 6 to 8 months during the last 5 years before his death, and stayed at Merry Terrace while he was here. He basically travelled alone. R44 admitted he did not attend his father’s funeral in Pakistan. He did not explain why. In light of what R44 has said, it can reasonably be inferred that his relationship with the deceased not close. It is therefore not surprising that he did not know his father had contracted a second marriage, or that his father might choose not to tell them about his marriage with a young lady.

10.  Further, even the deceased is shown to have suffered from dementia, it will be a matter of degree as to whether this medical issue has affected the deceased’s mental capacity and thus his ability to understand and manage his own affairs. There is no mention in the medical certificate the extent of the deceased’s problem. Further, there is also no affirmation evidence from R44 and/or R45 suggesting the deceased not being able to take care of himself. Quite the contrary, medical opinion said the deceased was fit to travel by plane, and presumably on his own unaccompanied otherwise medical opinion should have said so. R44 also allowed his father to travel back to Pakistan on his own. In the circumstances, it can be inferred that as late as July 2002 when the medical certificate was signed, the deceased should be able to take care of his own well being. This tribunal therefore does not see how the dementia can affect the validity of his marriage as alleged, not to mention that the said medical certificate[9] post-dated the marriage[10].

11.  Most importantly, Naila has produced evidence in support of the marriage – the marriage certificate and marriage registration certificate each duly attested by an official of the Pakistan Government and authenticated by the Embassy Consulate of the People’s Republic of China in Pakistan. Although R44 and R45 raised queries of these documents by saying that certain particulars seem to be contradictory or omitted, in the tribunal’s judgment, Naila has produced conclusive evidence to show the marriage being genuine and validly registered in Pakistan.  Unless R44 and R45 can put in strong rebuttal evidence, this tribunal cannot accept their submission that the marriage is invalid by reasons of the so-called flaws alleged by them. This tribunal considers it reasonable and logical to form a provisional view that for the purpose of the present application, the marriage between the deceased and Naila was validly registered in Pakistan, thus she was the lawful wife of the deceased who subsequently passed away, leaving her his lawful widow.

12.  R44 raised queries that the marriage was void under Hong Kong law for it was polygamous. His submission in this respect, however, is difficult if not impossible to understand. Despite repeated efforts of the tribunal to clarify what in fact was meant by him, he still could not express this ground, probably written by somebody else for him, clearly. So far as can be discerned from what he has said, this tribunal believes he has totally misunderstood the meaning of “polygamous”.

13.  In §9(ii) of his affirmation, R44 particularly highlighted that the deceased had given an answer “No” to question 21 of the marriage certificate asking whether the deceased had an existing wife[11]. The question said if the answer is “yes” (i.e. with an existing wife) the deceased should obtain permission from the Arbitration Council under the Muslim Family Laws Ordinance, 1961 before the deceased can contract another marriage. This tribunal believes R44 considers the deceased should have answered the question in the affirmative because the latter had married once before. R44 might have formed a view that by marrying Naila even if the deceased first wife had passed away, the deceased was then practicing polygamous marriage without permission. The answer of “No” suggests that no permission had been obtained from the Arbitration Council. Polygamous marriage was therefore not available to the deceased, and polygamous marriage then practiced by the deceased was illegal in Hong Kong.

14.  If this is what is in R44’s mind, he has totally misconceived the meaning of polygamous and the meaning of “existing wife”. Polygamous marriage allows the husband to take more than one wife during the subsistence of that marriage. It is not in dispute that when the deceased married Naila, the deceased’s first wife had already passed away. There was no evidence suggesting the deceased had got another surviving wife when he married Naila. Neither R44 has sought to establish this is the case. So the deceased’s answer to question 21 that he had got no existing wife must be correct. No permission from the said Council was required. The deceased was then not lawfully married to another wife when he married Naila. He committed no bigamy contrary to Hong Kong Law.       

15.  Furthermore, Naila produced as evidence the succession certificate[12]. It was stated in the notes of proceedings that in fact one of the deceased’s children, Khan Muhammad Sabir (“Sabir”), did attend Naila’s petition hearing in the Pakistan’s court for issue the succession certificate. It was recorded that Sabir had been appointed attorney on behalf of all his brothers and sisters, presumably all 6 including R44 and R45[13]. It appears from the succession certificate that the Pakistan court had, after hearing evidence, accepted that after the death of Sabir’s mother, the deceased contracted the second marriage with Naila. The court later issued the succession certificate “… in favour of all legal-heirs including the petitioner Naila Naz as per legal shares”[14]. Laila was subsequently awarded 8/64 share, whereas each daughter received 7/64 share, and each son (including Sabir and R44) 14/64. Naila was described as “legal heir” and “widow” in the succession certificate[15].

16.  It has been said by R44 that Naila needs to abide by the “Islamic Sharia Law” practised all over Pakistan Courts, and she will be regarded as lying in overseas if she made a grant[16]. This allegation of R44 is not understood. However, he has exhibited no evidence on the said “Islamic Sharia Law”. On the other hand, as discussed above the Pakistan court has accepted Naila being the lawful widow of the deceased, this tribunal does not think R44 has sufficiently raised an issue in this respect.

17.  At the hearing, this tribunal asked R44 and R45 about their response to the succession certificate. R45 said she had received money of around $800,000 as a result. She said her late brother Sabir, who later changed his name to Imran Khan represented them in Pakistan. She said she believed Naila received similar amount after the court decision. She initially said she learned of this from R44 but later said she did not know upon hearing R44’s response that he was not sure. R44 said he received money from the banks in Pakistan and said he did not know much about the proceedings in Pakistan as described in the succession certificate.

18.  Given the fact that R45 has confirmed her late brother was representing them in the court proceedings in Pakistan, and both R44 and R45 had received money as a result, although the succession certificate has not been authenticated, unless further evidence is adduced showing the otherwise, this tribunal forms a provisional view that the Pakistan court has recognized Naila being the lawful widow of the deceased, and was entitled to share in the estate of the deceased. In light of the succession certificate, the tribunal considers the allegation that marriage is invalid totally without basis. The allegation that R44 does not know Naila, in light of above, must be viewed with skepticism.

19.  Order 15 Rule 6A of the RHC provides a machinery for appointing someone for the limited purpose of carrying on the litigation on behalf of a deceased’s estate when no grant of probate of or administration has been made. It appears from reading of the rules that the person so appointed should be someone having an interest in the outcome of the proceedings or the estate. However, it has to be remembered that any judgment or order given against the said estate after the O.15 r.6A appointment is to bind the estate of the deceased in the same way as a judgment given against the estate direct. It does not deal with how the estate is to be distributed. Neither does it confer to the person so appointed an entitlement to share in the estate of the deceased. Whether a person is entitled to share in the estate of a deceased depends on whether he is a beneficiary under the last will of the deceased, or in the event of intestacy as in the present case, the applicable law on distribution in the event intestacy. If there is dispute between the competing parties, the dispute needs be resolved by the Court of First Instance in its probate jurisdiction. If an order for compulsory sale of all the undivided shares of Merry Terrace is made under the LCSRO, any proceeds of sale in respect of the unit in question will be kept by the trustees appointed by the tribunal, pending the resolution of the dispute.   

20.  In the present case, the deceased, though claimed to have a Pakistan nationality, had lived in Hong Kong at least since 1955. He was issued with a Hong Kong Identity card. He purchased the unit in question in Merry Terrace in 1963 and had lived there at least since 1985. Even as at October 2000 he reported to the Immigration Department that he resided there[17]. 3 of his children were born in Hong Kong for whom he has applied for them Hong Kong identity card while his then wife applied for the other 3. He set up his family here manifesting a clear intention to settle in Hong Kong. Apparently the deceased was domiciled in Hong Kong. R44 and R45 do not seek to argue otherwise.

21.  Further, when dealing with landed property in Hong Kong and its succession, and in dealing with issue of letters of administration to personal representative in respect of the estate of a deceased domiciled in Hong Kong, this tribunal considers the Hong Kong law is applicable[18], i.e. the lex situs or lex loci rule applies.

22.  By reasons of the deceased’s domicile and the fact the landed property is situated in Hong Kong, apparently, Naila, being the lawful widow of the deceased and R44, being the son of the deceased, are both entitled to a share of the deceased properties according to the law of succession on intestacy in Hong Kong. By reason of their interest in the deceased’s estate, both Naila and R44 are apparently qualified to be appointed under O.15 r.6A RHC. The next question is who appears to this tribunal to be a fit and proper person to be appointed, or whether both can be appointed.

23.  Although it is Miss Leung’s submission that on a proper construction of O.15 r.5A (4) (a) RHC, “a person” instead of more than one person should be appointed for the purpose. While this tribunal considers her submission attractive, this issue does not arise in the present case as, apparent from the submission of the competing parties, they are not on good terms. Appointment of both of them to represent the estate, even if it were permitted by the rules, will be a recipe for dispute and not in the best interest of the estate and the proceedings.

24.  Rules 21 of the Non-contentious Probate Rules, Cap 10A provides:

“(1) Where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority, namely –

(i) The surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;

(ii) The children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who died during the lifetime of the deceased;

(iii) The father or mother of the deceased;

(iv) Brothers and sisters of the deceased or the issue of any deceased brother or sister of the deceased who has died during the lifetime of the deceased.”

25.  In the tribunal’s judgment, the above provisions provide a useful guide to the tribunal as to who enjoys a higher right to be appointed. Further, according to the affirmation evidence filed on behalf of Naila, which is undisputed, R44 only applied for letters of administration in respect of the deceased’s estate in October 2011 through a firm of solicitors. However no progress has been made so far, or at least as at February 2014 when the first caveat was registered by Naila. Further, solicitors acting for R44 ceased to act for him at least as at September 2014[19]. On the other hand, it was the affirmation of Mr. Yam, solicitors for Naila, that they have instruction to proceed to apply for letters of administration in respect of the deceased’s estate to be granted to Naila[20]. In fact, according to Mr. Wong for Naila, a Probate action has already been issued against R44 on 16 May 2015, and the writ has just been served. From the above, the fact that R44 being a local resident and has been living here for the past 50 years does not appear to make him more efficient or effective than Naila who is in Pakistan in conducting the legal proceedings. On the other hand, through her lawyers, Naila appears to have made significant steps so far in her application to administer the deceased’s estate.

26.  No evidence from anyone has been filed suggesting Naila not a fit and proper person to be so appointed. R44 has tried to show that Naila remarried in Pakistan in 2003[21]. There is no evidence in this respect exhibited by R44 in his affirmation. In any event, even if there were such evidence, this tribunal considers her remarriage after her husband’s death irrelevant to whether she is a fit and proper person to be appointed.

Conclusion and Order

27.  By reasons of the above, the tribunal considers Madam Naz Naila a fit and proper person, and enjoys a higher priority, to be appointed than R44. The tribunal hereby orders that:

i) she be appointed pursuant to Order 15 Rule 6A of the RHC to represent the estate of Khan Mohammed Sadig Khan (deceased) for the purpose of the proceedings and that the proceedings herein be carried on against the said Madam Naz Naila;

ii) the Application herein be amended accordingly; and

iii) leave be granted to R35 carried on by Madam Naz Naila to file and serve a Notice of Opposition within 21 days from today.

28.  In the summons the applicants ask for costs be in the cause. In view of the recent Court of Appeal decision on costs, this tribunal considers that costs be reserved for the time being between the parties with liberty to any party to restore for the question of costs to be determined with 2 hours reserved if no agreement on the matter can be reached.