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CACV 2/2009
[2020] HKCA 805
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 2 OF 2009
(ON APPEAL FROM HCMP 635/2006)
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IN THE MATTER OF the estate of Luk Kim Ying, the deceased |
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and |
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IN THE MATTER OF an intended application by Lily Cheung for Letters of Administration of the estate of Luk Kim Ying |
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and |
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IN THE MATTER OF the appointment of an administrator of the estate for Luk Kim Ying, the deceased, under Sections 36 & 40 of the Probate and Administration Ordinance, Cap. 10 |
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BETWEEN
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LILY CHEUNG |
Plaintiff |
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and |
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THE OFFICIAL SOLICITOR |
1st Defendant |
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LUK TUNG MEI |
2nd Defendant |
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| Before: |
Hon Lam VP and Chu JA in Court |
| Date of Written Submissions: |
28 August 2020 |
| Date of Judgment: | 9 October 2020 |
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J U D G M E N T
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Hon Lam VP (giving the Judgment of the Court):
1. The Court gave the following directions (“the Directions”) on 10 August 2020:
(1) In light of the final outcome in HCAP 3/2008 as upheld by the Court of Appeal in CACV 156/2015 [2018] HKCA 9, the 2nd Defendant should have taken steps to obtain Letters of Administration in respect of the estate of the deceased and the parties should take step to wrap up HCMP 635/2006. If necessary, application should be made to the Court of First Instance to do so.
(2) Since this appeal is only concerned with the representation order made by Hon Poon J of 27 October 2008 in HCMP 635/2006, the Court directs solicitors for the 2nd Defendant to explain in writing by 17 August 2020 the utility and purpose of the further prosecution of this appeal as opposed to taking step in the Court of First Instance in HCMP 635/2006 and obtaining letters of administration.
(3) If the only practical purpose of the appeal is to reverse the order for costs made by Hon Poon J, the Court considers it disproportionate in terms of costs to the parties and the use of judicial resources to have an oral hearing. Solicitors for the 2nd Defendant shall indicate by 17 August 2020 if the 2nd Defendant would agree to have the appeal processed on the papers, and if not the reasons for the objection.
(4) If the 2nd Defendant is agreeable to have the appeal processed on the papers, written submissions (not more than 10 pages) should be lodged and served by the 2nd Defendant by 31 August 2020.
(5) The Plaintiff shall indicate if she is agreeable to such a course. If she does not agree, she should also set out the reasons for such objection by 14 September 2020. In any event, she should lodge and serve her written submissions (not more than 10 pages) by 14 September 2020.
(6) If the Plaintiff does not file any submissions or indication by 14 September 2020, the Court shall proceed on the basis that she has no objection to the processing of the appeal on the paper and she has no submission to make in the appeal.
(7) The Court shall then determine if the appeal should be processed on the papers and, if it is necessary to call for reply submissions from the 2nd Defendant. If the Court considers it appropriate to do so, it may proceed with the determination of the appeal without calling for a reply or further hearing.
2. On 13 August 2020, solicitors for the 2nd Defendant indicated that the 2nd Defendant agreed to have the appeal processed on the papers. She also lodged her written submissions on 28 August 2020.
3. The Plaintiff did not lodge any representation against paper disposal of the appeal. Nor did she lodge any submissions in the appeal. Pursuant to paragraph (6) of the Directions, it is deemed that she agreed to paper disposal and she had no submission to make in the appeal.
4. Having regard to the above, we are of the view that the appeal shall be processed on the papers and the hearing date of 16 October 2020 is vacated.
5. We shall not repeat the facts of this appeal which had been adequately set out in the judgment of 26 June 2009. The judgment in CACV 154/2015 and 156/2015 [2018] HKCA 9 in the probate action is also relevant.
6. In adjourning this appeal on 26 June 2009, the Court of Appeal took the view that the probate action was the key to the resolution of the underlying disputes. At [65] to [68], the Court of Appeal explained the likely positions depending on the outcome in the probate action.
7. As mentioned in the Directions, the probate action has now been finally determined. The order of Deputy High Court Judge Simon Leung was upheld and the two appeals against his order in CACV 154/2015 and CACV 156/2015 were dismissed. There is no further appeal. For present purposes, the net position is that the 2nd Defendant was declared by the court to be the lawful adopted daughter of Madam Luk Kim Ying (“the Deceased”) and the Plaintiff has no interest in the estate of the Deceased.
8. It follows that the Plaintiff cannot have any locus standi to represent the estate of the Deceased.
9. In light of such conclusion (which is final and binding on the Plaintiff and the 2nd Defendant as they were parties to the probate action and the two appeals), and acting in accordance with the purpose for adjourning this appeal in 2009 as espoused by the Court of Appeal in the judgment of 26 June 2009, the order of Poon J (as he then was) in appointing the Plaintiff to represent of the estate of the Deceased must be set aside.
10. Indeed, as the Plaintiff had no interest in the estate, it is plain and obvious that the Originating Summons issued at her instigation should be struck out.
11. In her written submissions, the 2nd Defendant sought an order that she be appointed as the administratrix of the estate of the Deceased. This is not a relief that can be granted in this appeal. The application for grant of Letters of Administration should be processed by the Probate Registry in the usual manner. As noted by the Court of Appeal at [46.1] in the judgment in CACV 154/2015 and 156/2015 [2018] HKCA 9, there is another potential claimant to the right of representation, viz the brother of the 2nd Defendant.
12. On the question of costs, we shall give costs of the appeal to the 2nd Defendant except the costs of the hearing on 9 June 2009.
13. According to the judgment of 26 June 2009, the principal issue at that stage was the jurisdiction point (the other issues relied on by the then counsel for the 2nd Defendant were unlikely to succeed: see [72] of that judgment) and the Court of Appeal was not very impressed by the argument on jurisdiction (see [59] of the judgment). Moreover, the Court of Appeal quite rightly doubted the utility of the appeal given the stay already in place.
14. We would order each party to bear her own costs for the hearing on 9 June 2009.
15. As regards the costs below, we would set aside the order for costs made by Poon J. Instead, we would order the Plaintiff to pay the costs of the 2nd Defendant in the Court of First Instance since she ought not have brought the proceedings as she had no interest in the estate.
16. The order we make is as follows:
(a) The appeal is allowed and the following orders of Poon J be set aside:
(1) The Plaintiff be appointed as the representative of Madam Luk Kim Ying’s estate for the purpose of HCMP 635/2006; and
(2) The Plaintiff shall have costs against the 2nd Defendant.
(b) The originating summons is struck out;
(c) Subject to (d) below, the Plaintiff (Lily) shall pay the costs of the 2nd Defendant in this appeal, such costs are to be taxed if not agreed;
(d) Each party shall pay her own costs in respect of the hearing on 9 June 2009;
(e) The Plaintiff (Lily) shall pay the 2nd Defendant the costs of HCMP 635/2006, such costs are to be taxed if not agreed.
| (M H Lam) |
(Carlye Chu) |
| Vice President |
Justice of Appeal |
The Plaintiff acting in person (since 15 August 2019)
The 2nd Defendant acting in person (since 14 August 2020)
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