RE TAN SRI DATUK LAU GEK POH alias LAU GEK POH

HCEA 29/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

EX-PARTE APPLICATION NO 29 OF 2010

____________

____________

_____________

D E C I S I O N

_____________

1.  This is an application by the applicant, Lau Cho Kun alias Lau Yu Chak, by summons filed herein on 18 January 2011 seeking to set aside a Subpoena dated 18 November 2010 (“the Subpoena”) which was issued pursuant to the Order of Deputy Registrar A Ho made on 22 September 2010 upon the ex parte application made by the respondent for the issue of the Subpoena.

2.  The respondent herein, Lau Siang Kok, Lionel, opposes the application by the applicant.

Background

3.  Tan Sri Datuk Lau Gek Poh alias Lau Gek Poh (“the Deceased”) died in Kuala Lumpur, Malaysia, on 4 April 2008.

4.  Before his death, the Deceased had business holdings in Singapore, Malaysia, Taiwan, China and Hong Kong.  In Hong Kong, the Deceased owned some 60% shares in Lei Shing Hong Ltd, which was at one time a listed company on the Hong Kong Stock Exchange, but was subsequently privitised. Lei Shing Hong Ltd owns and controls businesses in Hong Kong, Mainland China, Taiwan, Vietnam, Korea, Singapore and Malaysia.  At the time of his death, it is estimated that the Deceased’s interest in Lei Shing Hong Ltd alone was worth an estimated HK$6 billion.

5.  The Deceased is survived by his wife, Puan Sri Lau (Puan Sri being a title in Malaysia meaning “Lady”) and a daughter, Vivian Liew Soong Cheng born to the Deceased and Puan Sri Lau.

6.  It would also appear from all the evidence before me that during the lifetime of the Deceased, the respondent was born to the Deceased and one Lum Sook Chun (also spelt as Lam Sock Chan).  Needless to say, there is no evidence of a valid marriage between the Deceased and Lum Sook Chun.  There is also a dispute here as the applicant alleges that he has doubts as to the claim by the respondent to be the natural son of the Deceased.  This aspect will be dealt with in greater detail later in this Decision.

7.  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, the Deceased was taken back to Kuala Lumpur and died there on 4 April 2008.

8.  The Deceased left behind what purports to be the Last Will and Testament of the Deceased (“the Will”) with the applicant in which the applicant is named as the sole executor thereof.

9.  After the death of the Deceased, the respondent 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.

10.  On 17 February 2009, the applicant and the respondent met in Hong Kong at which meeting the applicant allowed the respondent to have sight only of the Will, but did not allow the respondent to make or take away a copy of it.

11.  Thereafter, proceedings were commenced in Malaysia by the respondent against the applicant in an attempt to secure a copy of the Will from the applicant.  That application was opposed by the applicant and on 14 July 2010, after a contested hearing, the Malaysian court ruled against the respondent in that application.

12.  In March 2010 the respondent made an ex parte application by affirmation of Lau Siang Kok Lionel, filed herein on 31 March 2010 for production of the Will by the applicant to the High Court Probate Registry of Hong Kong.

13.  By letter dated 30 April 2010, the Registrar requested from the respondent (a) copy of the death certificate of the Deceased and (b) to confirm the grounds of the application.

14.  By letter dated 13 May 2010, Messrs Philip Chan & Co, solicitors for the respondent provided a copy of the death certificate of the Deceased (with English translation) and indicated that the grounds for the application being that the executor, who is in possession of the Will, had neglected or declined to either prove the Will or renounce probate thereof.  At the same time, the Singaporean birth certificate of the respondent was also provided to the Registrar to show that he is the natural son of the Deceased which entitles him to see the Will, the take proper advice thereof to ensure due and proper administration of the estate of the Deceased.

15.  The Registrar came back with a further requisition by letter dated 15 June 2010 asking for clarification if the respondent was a residuary legatee.  In response thereto, the solicitors for the respondent, by letter dated 23 June 2010 cited the case of Chan Mei Fat v Choi Lai Sheung (Decision of Recorder E Chan SC in HCMP 847 of 2005) in support of the proposition that at this early stage of proceedings, when the Will has not been probated and the estate has not been administered, there is no requirement to prove interest either as a residual legatee or beneficiary under the current or previous wills.

16.  By yet a further requisition by letter dated 23 June 2010, the Registrar sought further evidence as to the respondent’s relationship with the Deceased.  In response thereto, under cover of a letter dated 1 September 2010, the respondent’s solicitors again provided the Registrar a copy of the Singaporean birth certificate of the respondent which stated that the respondent was born to the Deceased and Lum Sook Chun.

17.  On 24 September 2010 the Registrar replied by letter to the solicitors for the respondent as follows:

“Dear Sirs,

Re: TAN SRI DATUK LAU GEK POH Deceased

Please comply with the following requisition :-

3. The application and your letter of 1.9.2010 have been placed before the Registrar for consideration. Mr. Deputy Registrar A. Ho has on 22.9.2010 ordered that a subpoena be issued but without prejudice to the rights of the executor to apply to court to set aside the subpoena. Please draw up a draft order and a draft subpoena for approval of this court. (Please note that only one late address of the deceased should be shown in the title.)

Yours faithfully,
(Miss C L Chan)
for Registrar”

18.  When the draft order was submitted to the court for approval by the solicitors for the respondent, the draft order did contain the words “but without prejudice to the rights of the Executor to apply to Court to set aside the Subpoena”.

19.  However, in the course of approving the draft order, those words were inexplicably deleted.

20.  As a result, the order in its final form did not contain those words.

21.  Pursuant to that order, a subpoena was issued dated 18 November 2010 to Lau Cho Kun alias Lau Yu Chak (ie the applicant) requiring him within eight days after service thereof to bring into and leave with the proper officer in the Probate Registry of the High Court the Will which is in the possession, custody or power of the applicant.

22.  This is the subpoena which the applicant now seeks by this application to set aside.

Grounds for the application to set aside the subpoena

23.  Basically, two main grounds have been advanced by the applicant in its application to set aside the subpoena.

24.  The first ground is that while the respondent claims to be the natural son of the Deceased, he has failed to prove that to be so.

25.  In this respect, the applicant points to the fact that while the respondent has produced his own Singaporean birth certificate, there is also in existence a Malaysian birth certificate in respect of the respondent and that there are a number of differences in details between the two as regards the birth of the respondent.

26.  The Singaporean birth certificate states that the respondent was born in Singapore, but the Malaysian birth certificate states that the respondent was born in the state of Sabah in Malaysia.

27.  The Singaporean birth certificate states that the mother’s name to be Lum Sook Chun while the Malaysian birth certificate states the mother’s name to be Lam Sock Chan.

28.  The Singaporean birth certificate gives the father’s name to be that of the Deceased, but the Malaysian birth certificate states the father’s name to be Liew Gek Poh.

29.  There are also differences in dates of birth between the two birth certificates with the Singaporean birth certificate giving 4 December 1973 as the date of birth while the Malaysian birth certificate states the date of birth to be 3 December 1973.

30.  The applicant also refers to the fact that the respondent appears to have two passports, a Singaporean passport and a Malaysian passport. The Singaporean passport of the respondent describes him as a citizen of Singapore with his birthplace in Singapore while the Malaysian passport of the respondent describes the respondent as a Malaysian citizen and his place of birth as Sabah.

31.  It is the applicant’s submission that the inconsistencies shown by the above documents is such that the respondent has failed to conclusively prove that he is the natural son of the Deceased.

32.  A further point made by the applicant was that in the ex parte application for the subpoena made to the Registrar, only the Singaporean birth certificate of the respondent was produced to the Registrar upon requisition by the Registrar, the other documents, notably, the Malaysian birth certificate and the passports of the respondent were not made available to the Registrar such that the Registrar when issuing the subpoena was not aware of such inconsistent details relating to the respondent’s claim to be the natural son of the Deceased.

33.  The second ground relied on by the applicant is that the respondent is not a beneficiary in the Will.

34.  In this respect, the applicant relied not only on the fact that the respondent is not a beneficiary under the Will, but also that the respondent was fully aware of that fact because the respondent had been shown the Will by the applicant when they met in Hong Kong on 17 February 2009.

35.  It was submitted by the applicant that since the respondent was well aware of the fact that he is not a beneficiary under the Will and that the respondent has failed to prove that he is the natural son of the Deceased, then the respondent has, firstly, no locus standi in asking either to be supplied with a copy of the Will and secondly, as in the present case, the respondent has no sufficient interest to subpoena the applicant to produce the Will into Court.

Opposition by the respondent to the application to set aside the subpoena

36.  A number of points has been taken by the respondent in opposition to this application by the applicant to set aside the subpoena.

37.  Firstly, it was submitted by the respondent, that once the Registrar has exercised his discretion to issue the subpoena in question, it is no longer open to the applicant to make this application to set it aside.  In this respect, reliance is placed by the respondent on the fact that the Order of Deputy Registrar Ho dated 22 September 2010 as drawn up and not containing the words “but without prejudice to the rights of the Executor to apply to Court to set aside the Subpoena”.

38.  Secondly, it was submitted by the respondent that the wording of section 7(3) of the Probate and Administration Ordinance is such that, on a plain reading of that subsection, the only express requirement laid down is that (a) a deceased passed away testate leaving behind any paper or writing being or purporting to be testamentary in nature; and (b) that such paper or writing purporting to be testamentary is shown to be in the possession, within the power, or under the control of the person to be served with the subpoena.

39.  It was therefore submitted by the respondent, that on the wording of section 7(3) of the Probate and Administration Ordinance, there is no requirement for the person making the application (in this case the respondent) to show that he has any interests or standing in the matter.

40.  However, if the court is not with the respondent on the submission above that he need not show any interests or standing before an application can be made for the issue of a subpoena under section 7(3) of the Probate and Administration Ordinance, then the fall back position of the respondent based on the substantive evidence is as follows.

41.  The respondent confirmed in the 2^nd Affirmation of Lau Siang Kok, Lionel filed herein on 25 March 2011 that he is the only natural son of the Deceased.

42.  The respondent stated that the Chinese name of the Deceased is 劉玉波 and that the Chinese surname 劉 may be spelt as “Lau” or “Liew” or even “Liu” in Singapore and Malaysia due to different dialect pronunciation.  (“Tan Sri” and “Datuk” being merely honorary titles akin respectively to “Sir” and “Justice of the Peace”.)  As an example, he gives the name of his half-sister as being Vivian Liew Soong Cheng.

43.  Likewise, again due to difference in dialect pronunciation, the Chinese name of his mother being 林淑珍 may be transliterated as Lum Sook Chun or Lam Sock Chan.

44.  The respondent further stated that his Malaysian birth certificate and passport were produced by the applicant in the Malaysian proceedings and that he, the respondent, was not aware of that Malaysian birth certificate of his which could have been arranged by his father, the Deceased.  The respondent further confirmed that he was not born in Sabah and that detail stated in the Malaysian birth certificate is not correct.

45.  Furthermore, the respondent stated that the applicant was merely using the differences in the spelling of the names of his father and mother on the birth certificates to challenge the paternity of the respondent, but as a fact the applicant was always fully aware that the respondent was the natural son of the Deceased during the whole time that the respondent was working in the Deceased business empire during which time the Deceased had all along acknowledged and introduced to everyone, including the applicant, the respondent to be the son of the Deceased and the respondent’s mother to be the ‘wife’ of the Deceased’s.

46.  The respondent was able to point to a Transfer Document (Exhibit “L-3”) in respect of the purchase of a property known as No 210 Upper East Coast Road, #01-02 Eastern Lagoon, Singapore by the Deceased on 26 February 1988 in which Transfer Document the transferee (purchaser) is described therein as “LAU GEK POH (Businessman) Malaysian Citizen of No 26 Jalan Lateh, Singapore and holding Malaysian Identity Card No H 0101689”.  In the same Transfer Document, the citizenship and identity card particulars of the transferee was certified by the solicitor handling that transaction, Chew Tak Lim, to have been verified as being correct.

47.  That same Malaysian Identity Card number also appeared on the Singaporean birth certificate of the respondent as being the identity card number of the Lau Gek Poh therein stated to be the father.

48.  Moreover, the address of the transferee stated in the Transfer Document, being No 26 Jalan Lateh, Singapore, is the same address as was stated in the Certificate of Registration of Death in respect of Lum Sook Chun, the mother of the respondent and which address is confirmed by the respondent to be the ordinary address of his late mother.

49.  The respondent has also given elaborate details in his 2^nd Affirmation as to his upbringing by the Deceased, his schooling and various addresses at which he lived with the Deceased and Lum Sook Chun and how the Deceased took him into the business empire of the Deceased after his graduation in 1995.  In particular, the respondent stated that while working in the business empire of the Deceased, the respondent was in constant contact with the applicant who was fully aware and acknowledged that the respondent was the natural son of the Deceased.

50.  As for not being a beneficiary of the Will, the respondent does not deny that he had been shown the Will by the applicant and was told by the applicant that he was not a beneficiary in the Will.

51.  However, the respondent went on to say that the applicant had not provided him with a copy of the Will nor allowed him to take copies of the Will or other documents under which the applicant says he (the respondent) has been deprived of any beneficial interest.

52.  The respondent made the further point that the applicant has never said to him that he is not a beneficiary of the estate of the Deceased nor of any asset which was given by the Deceased to the applicant to hold on trust for the respondent.

Decision

53.  Dealing first with the preliminary points taken by the respondent.

54.  The first point concerns the Order of the Deputy Registrar dated 22 September 2010 which, as drawn up, did not contain the words “but without prejudice to the rights of the Executor to apply to Court to set aside the Subpoena”.

55.  In this respect, I have taken the liberty to check with Deputy Registrar A Ho as to how it came about that the order as stated in the letter from the Registrar dated 24 September 2010 to the solicitors for the respondent indicated that the subpoena was issued without prejudice to the rights of the Executor to apply to Court to set aside the subpoena and yet the final order as drawn up did not properly reflect same.

56.  The reply given by Deputy Registrar A Ho, having checked with his clerk on this matter, was that when the draft order was approved, those words were deleted from the draft order by the clerk because those words did not appear on the precedent form referred to by the clerk, despite the fact that those words were actually part of the order made by Deputy Registrar A Ho.  To that extent Deputy Registrar A Ho confirmed to me that having made the order with the words “but without prejudice to the rights of the Executor to apply to court to set aside the subpoena”, he had not in any way deviated from such order.

57.  It would appear therefore that the final order as drawn up did not properly reflect that order which was in fact made by Deputy Registrar A Ho and the Slip Rule would be applicable in this case to correct or amend the Order as it appears in the way it was drawn up.

58.  In the circumstances, it must be right that this matter be decided on the basis that the order of Deputy Registrar A Ho was made “without prejudice to the rights of the Executor to apply to set aside the subpoena” by reason whereof, there was every entitlement on the part of the applicant to make this application to set aside the subpoena.

59.  Furthermore, there was every reason for the Deputy Registrar to have made the order in the way that it was made, namely, without prejudice to the rights of the Executor to apply to the court to set aside the subpoena, since the application for the subpoena by the respondent was an ex parte application and the ‘Executor’ had not been heard before the subpoena was issued.

60.  Accordingly, I can see no merits in this point taken by the respondent that it was not open to the applicant to take out this application to set aside the subpoena once the subpoena had been issued.

61.  The second point taken by the respondent has its basis on the wording of section 7(3) of the Probate and Administration Ordinance which states:

“The Registrar may, whether or not any proceedings are pending in the court, issue a subpoena requiring any person to produce and bring into the Registry any paper or writing being or purporting to be testamentary, which may be shown to be in the possession, within the power, or under the control of such person; and such person, upon being duly served with the said subpoena, shall be bound to produce and bring in such paper or writing, and shall be subject to the like process of contempt in case of default 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.”

62.  While strictly speaking, it is right that the wording of section 7(3) cited above 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.

63.  In this respect, it is quite inconceivable for any Tom Dick or Harry or for that matter, any busybody, without the least interest or standing, to be such an applicant for a subpoena under section 7(3).

64.  Having said that, I do accept that some evidence showing a prima facie interest or standing of the person applying would be all that would be needed.

65.  Once again therefore, the Deputy Registrar was entirely correct to have sought the requisitions that he did in ascertaining the interest or standing of the respondent before issuing the subpoena.

66.  I now turn to deal with the substantive merits in this matter.

67.  There is here a dispute as to whether the respondent has shown himself on the evidence to be the natural son of the Deceased as claimed by him.

68.  In this respect, the respondent relies on his Singaporean birth certificate and what is stated therein.

69.  On the other hand, the applicant points to the inconsistencies in details, especially the difference in spellings of the names of the respondent’s father and mother in both the Singaporean and Malaysian birth certificates of the respondent as well as the inconsistencies appearing in the Singaporean and Malaysian passports of the respondent.

70.  The first point to make is that I am here only concerned with the issue whether the respondent is the natural child of the Deceased.  Therefore the other inconsistencies contained in the various birth certificates and passports of the respondent such as his place of birth or the date of birth is neither here nor there.

71.  On that one issue, whether the respondent can show himself to be the natural child of the Deceased, the Singaporean passport of the respondent shows the name of the respondent’s father to be Lau Gek Poh and there is no inconsistency in that spelling of the name which is the name of the Deceased.

72.  On the other hand, the Malaysian passport of the respondent (which the applicant seeks to rely on but which is not relied on by the respondent) gives the name of the father to be Liew Gek Poh.

73.  In like manner, there are also differences in the spelling of the name of the mother in both birth certificates.  The mother’s name is given as Lum Sook Chun in the Singaporean birth certificate while in the Malaysian birth certificate it is stated to be Lam Sock Chan.

74.  However, the respondent has stated in evidence that the applicant has always been fully aware of the fact that the respondent was the natural son of the Deceased who has acknowledged as much to all and sundry including the applicant has never been denied or disputed by the applicant.

75.  In fact the applicant in all his affirmations has only gone as far as to say that the respondent has “failed to conclusively prove that he is the natural son of the Deceased” and has not gone any further than that.

76.  Moreover, the fact that the applicant met with the respondent in Hong Kong on 17 February 2009 and actually did show to the respondent the Will of the Deceased would go a long way to show that the respondent is someone well know to the applicant to be connected to the Deceased.  That is also shown by the fact that it was the applicant who produced the Malaysian birth certificate and passport of the respondent in the Malaysian proceedings, a matter not disputed nor denied by the applicant.

77.  Given all the other evidence coming from the respondent, including the fact that his half-sister’s name is Vivian Liew Soong Cheng and that the Malaysian Identity card number of Lau Gek Poh stated in the respondent’s Singaporean birth certificate is the same as the identity card number of the transferee, Lau Gek Poh, in the Transfer Document when the Deceased purchased the property at 210 Upper East Coast #01-02 Eastern Lagoon, Singapore, I have no hesitation in accepting that the difference in spelling in the surname “Lau” and “Liew” in the Singaporean birth certificate and the Malaysian birth certificate respectively is due to the fact, as explained by the respondent, that there are differences in dialectic pronunciation of the Chinese surname 劉 in Singapore and Malaysia.

78.  On the totality of the evidence on this issue, I am of the view that the respondent has shown at least prima facie evidence that he is the natural son of the Deceased and Lum Sook Chun or Lam Sock Chan (being the same person).

79.  I now turn to deal with the respondent not being named as a beneficiary in the Will.

80.  The respondent has been shown the Will by the applicant and has not denied that he is not named as a beneficiary in the Will.  I will therefore proceed on the basis that that is a fact accepted by both sides as being common ground.

81.  Can it be said that simply because the respondent was not named as a beneficiary in the Will that he can have no standing in making the application for the subpoena.

82.  I think not for the following reasons.

83.  Over three years and ten months have elapsed since the death of the Deceased on 4 April 2008.  Not only has probate not been obtained on the Will by the applicant as the executor named in the Will, but that no steps has even been taken in an attempt to obtain probate as admitted by the applicant.

84.  The Will has not been produced and the contents of the Will has also not been made known in the present proceedings.

85.  Even though the respondent is not a named beneficiary in the Will, the question that has to be asked but cannot be answered at present is whether there is a residuary legatee clause in the Will or will any part of the estate of the Deceased falls to be an intestacy despite the existence of the Will.

86.  Then again, even if probate is applied for on the basis of the Will must it follow that probate will be granted on the Will?  Can the Will be proved or will it be found to be invalid if challenged?

87.  These are all question for which there can be no answer to at this stage.  Nor are these questions asked in a vacuum since it is known that the Deceased did suffer a stroke in 1990 but there is no indication even of the date on which the Will was executed by the Deceased.

88.  It is also not known whether there are any earlier testamentary document of the Deceased which pre-dates the Will.

89.  If therefore for any reason, the whole or any part of the estate of the Deceased falls to be an intestacy, then the respondent, under Hong Kong law, may well have an interest in the estate of the Deceased, even though not named as a beneficiary in the Will.

90.  That is so even if the respondent is unable to show a valid marriage between the Deceased and Lum Sook Chun, the mother of the respondent, the effect of which would be that the respondent is not a legitimate child of the Deceased and Lum Sook Chun.

91.  In Hong Kong, the Intestates’ Estates Ordinance Cap 73 governs the distribution of the estate of a deceased person when he died wholly or partly intestate.

92.  Before 1995, there was a general definition for “child or issue” in section 2(2)(a) of the Intestates’ Estates Ordinance which read:

“References in this Ordinance to a child or issue of any person shall mean a child of a valid marriage to which that person was a party.”

93.  However, section 2(2)(a) was repealed in 1995 because it discriminated against illegitimate children.

94.  With its repeal, the word “child” or “issue” as used in the Intestates’ Estates Ordinance was no longer qualified by the words “of a valid marriage to which that person was a party”.

95.  As such, the effect of that amendment must be that after the repeal of section 2(2)(a) of the Intestates’ Estates Ordinance, the word “child” or “issue” as used in that Ordinance includes an illegitimate child.

96.  In this respect, the law in Hong Kong differs from the law in Malaysia.  It would appear from the judgment given in the Malaysian proceedings that one of the reasons for ruling against the respondent’s application in the Malaysian proceedings was due to the fact that should an intestacy arise in Malaysia, the distribution of the estate of the Deceased in Malaysia would be governed by The Distribution Act 1989, and the definition of “child” under section 3 thereof envisages a legitimate child.

97.  Given the above reasons, I have come to the conclusion that the respondent has shown sufficient interest and standing to entitle him to apply for the Subpoena under section 7(3) of the Probate and Administration Ordinance.

98.  And given that for over three years after the death of the Deceased, nothing has been done by the applicant, purportedly named as the sole executor in the Will, to obtain probate in respect of the estate of the Deceased on the Will, I am of the view that it was entirely proper and correct for the Deputy Registrar to have issued the Subpoena.

99.  Accordingly, the application by the applicant to set aside the Subpoena is dismissed.

100.  The applicant shall have eight days from the date of this Decision being handed down to comply with the Subpoena.

Costs

101.  There will be a costs order nisi that the applicant pays the respondent his costs of and occasioned by the Summons of 18 January 2011.