LEUNG KAR HIN ROSS v. MA LAI FONG

HCMP 2304/2025

[2026] HKCFI 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLEANOUS PROCEEDINGS NO 2304 OF 2025

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REASONS FOR JUDGMENT

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A.  INTRODUCTION

1.  This is the hearing of an originating summons filed on 25 November 2025 (the “OS”) for the following reliefs:

(1)  A declaration that the Plaintiff is entitled to possession of the dead body of the Leung Sai Chiu (梁世釗) (“Father”, and the “Deceased”); and

(2)  An order that the Plaintiff (“Ross”) be authorized to make and/or process applications with Tseung Kwan O Hospital (the “TKO Hospital”), the 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 Deceased and/or to carry out the funeral services (including cremation, enshrinement and all related services) for the Deceased (the “Funeral Services”), and that the remains and death documents of the Deceased be released by TKO Hospital to Ross.

2.  This is opposed by the Defendant, the surviving wife of Father and the mother of Ross (“Mother”), who counterclaims for mirror orders[1] that:

(1)  Father’s remains and death documents be released to Mother;

(2)  Mother be authorized to arrange Father’s Funeral Services according to Soka Gakkai traditions; and

(3)  TKO Hospital do release Father’s body and death documents to Mother or Mother’s solicitors.

3.  After filing of the evidence and correspondence, despite various issues raised by Mother, she no longer required an autopsy of Father.

4.  By the time of this hearing:

(1)  Ross has agreed that the Funeral Services would use the customs and traditions of Soka Gakkai;

(2)  Both parties agreed that this Court should dispose of the OS summarily without filing further evidence, which I agreed.

5.  Following the hearing, cross undertakings of the parties in similar terms have been filed, signed by Ross on 8 January 2026 (“Ross’s Undertakings”) and by Mother on the 9th (“Mother’s Undertakings”). The sole remaining issue was whether Mother or Ross should take possession of the dead body and arrange the Funeral Services.

6.  On 9 January 2026, this Court ordered that, upon Mother’s Undertakings,

(1)  there be an order in terms of paragraph 2 above;

(2)  the OS be dismissed;

(3)  there be liberty to apply; and

(4)  on a nisi basis, costs be to Mother.

7.  Here are my reasons.

B.  BACKGROUND

8.  Father was married to Mother in 1963. There are 4 children born out of their marriage, in the order of seniority, named: (1) Leung Chun Yim Teddy (“Teddy”), the first son; (2) Leung Piu King (“Piu King”), the second son; (3) Ross, the third son and the Plaintiff; and (5) Leung Pui Yee Polly (“Polly”), the daughter.

9.  In December 2024, Father and Mother had a fall which led to their hospitalization. Polly, a retiree, came back from the USA (when she used to live) to take care of the Parents. The Parents lived apart since April 2025, for reasons that were disputed. Father lived at his and Mother’s usual adobe in Tin Shui Wai (the “TSW Property”), whilst Mother lived at Polly’s rented residence.

10.  There was no dispute that Mother’s subsequent attempts to visit Father at the TSW Property was unsuccessful. Ross’ side had posted up a notice on the door that no food or gifts would be accepted and there should not be prizing open of the padlock.

11.  There was no dispute that between May and the date of Father’s death in October, Ross had only seen Mother twice, on 14 May and 2 October. On those occasions, police assistance had to be enlisted to enable the Parents to meet.

12.  In the period when Father and Mother lived apart, Father executed 3 documents (“the 3 Documents”):

(1)  On 28 May 2025, an Enduring Power of Attorney (“Father’s EPoA”), appointing Ross as the only attorney. Father’s EPoA was registered in late May with notice to Teddy and Piu King, as required by the EPoA.

(2)  On 12 June 2025, a will (“the Will”) appointing Ross as the sole executor and trustee, and bequeathing all of his assets to 3 sons in equal shares.

(3)  On 25 June 2025, a Notice of Severance to sever the joint tenancy of Father and Mother over the TSW Property (“Notice of Severance”).

13.  Father had been hospitalized at the TKO Hospital since 25 September 2025. He passed away on 6 October 2025 at the age of 87 for the cause of chest infection and left ischemic stroke. He was survived by Mother (then aged 79) and all his children.

14.  After Father died, Mother had wanted to enter the TSW Property but there was a notice on the door which prohibited breaking in by locksmith. Two locksmiths refused to prize open the door for Mother.

15.  Father’s corpse has remained in the TKO Hospital mortuary for 3 months since his death, there being a dispute between Ross and his Mother as to who should get possession of Father’s corpse and handle his Funeral Services. TKO Hospital maintained a neutral stance.

C.  PARTIES’ CASES

16.  There was hot dispute on facts as to what caused Father and Mother to be separated. Ross’ case was that Polly harassed and frightened Father. She had attempted to do name chops for Father’s bank accounts and caused Father to sign authorizations to the banks in her favour which Father did not really agree to. It was Polly who had prevented Mother from returning to live with Mother. In view of what happened in May, Father executed the 3 Documents. He was allegedly worried that Mother might be manipulated by Polly. Given Mother’s condition, any property bequeathed to Mother might end up in Polly’s name by documents executed against Mother’s will.

17.  Ross submits that:

(1)  As the executor under the Will, he should be entitled to possession of the body of the Deceased and to arrange the Funeral Services;

(2)  Teddy, a member of Soka Gakkai International, could assist in the Funeral Services to be performed in Soka Gakkai traditions;

(3)  Given the serious cognitive impairment of Mother and the execution of her Enduring Power of Attorney dated 13 October 2025 (the “Mother’s EPoA”) in favour of Polly, Mother was not in the best medical condition to arrange the Funeral Services.

18.  On the other hand, Mother’s case (supported by Polly) was that the sons did not take care of the Parents after their fall in December 2024, so Polly flew back to do so. In mid-January 2025, there was a scuffle between Teddy and Polly. As a result, the 3 sons would not allow Polly to enter the TSW Property and would not answer her calls. And yet the 3 sons rarely visited the Parents.

19.  On 14 May 2025, Father had wanted Mother to return home. However, Mother decided to live with Polly in order to get better care.

20.  None of the sons contacted Mother about the hospitalization in September 2025. It was the TKO Hospital who did so.

21.  When Father died on 6 October 2025, the sons did not tell Mother immediately. She did not have the opportunity to see him one last chance and it caused her great distress.

22.  Funds had been removed from Father’s accounts to the amount of HKD 7,539,893.57, USD 8,724.32, and RMB 60,974.68 (totalling about HK$7.68 million), clearing the accounts to almost zero. Till now the whereabouts of the money was unknown. Mother was of the view that for 62 years Father had been good to her and Father simply did not need so much money. She suggested that unless he had hurt his mind due to the fall or was influenced by the 3 sons, Father would not have removed all the savings, severed the joint tenancy or made the Will leaving everything to the 3 sons but completely excluded her and Polly. She suspected that the 3 sons had used Father’s EPoA to remove the funds. A month before his death, Mother saw Father shivering and not in good spirit at the hospital. She questioned whether he had the mental capacity to sign the 3 Documents.

23.  It was Mother’s case that:

(1)  The persistent refusal of Ross to account for the missing funds demonstrated that Ross was not a suitable person to be entrusted with the Funeral Services;

(2)  The Will was seriously disputed on Father’s lack of testamentary capacity, want of knowledge and approval, and undue influence by the 3 sons. The Father’s EPoA was registered only 12 days later than the execution of the Will. The timing of the 3 Documents executed, the pattern of exclusion of Mother, and the refusal to answer basic questions about these matters created highly suspicious circumstances around the Will and related documents.

(3)  Ross did not practice Soka Gakkai and never even knew Father was a practitioner of Soka Gakkai, while Father and Mother have practised Soka Gakkai for more than 50 years; and

(4)  Mother has proven mental capacity through bank dealings and valid execution of her EPoA.

D.  LEGAL PRINCIPLES

24.  The relevant principles on determining who is entitled to possession of the body and responsible for burial have been summarized by B Chu J in Zhao Shaoyuan v Chan Mee Lin [2018] HKCFI 1724 at §§21–22, citing Thomas Au J (as he then was) in Re the Estate of Lu Han Lung [2010] 3 HKLRD 651 at §32–33:

“21. Au J has in the case Re Lu Han Lung [2010] 3 HKLRD 651 summarised the following legal principles in determining who should be entitled to the body of a deceased and its burial:

(1) There is no property in a corpse.

(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.

(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.

(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 example, 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 is no surviving spouse or where no one has indicated to be prepared to apply for the administration of the deceased's estate.

(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 in a reasonable and appropriate manner.”

22. Au J had further observed as follows:

(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.

(2) The court should apply the consistent principles 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”.

(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.

(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.”

25.  If there is no dispute as to the validity of a will, the executor should have priority over the body and funeral services. However, where there is a bona fide dispute as to the validity of the will, and it is highly unlikely to resolve the dispute within an acceptable time period, the decision as to the disposal of the body had to be left to the person in lawful possession of the body: University Hospital Lewisham NHS Trust v Hamuth [2006] EWHC 1609 (Ch), Hart J at §§15-17.

E.  THE STARTING POINT

26.  The starting position was that Ross, as executor under the Will, was entitled to possession of the body of Father and was responsible for his burial.

27.  Mother contested this and her counsel, Mr Luk, submitted that:

(1)  Lu Han Lung was only applicable to cases of intestacy but not the present situation;

(2)  As the validity of the Will was contested, therefore, as the starting point, she, as the surviving spouse, was entitled to possession of the corpse.

28.  In my view, Lu Han Lung is applicable to both testacies and intestacies. This is expressly stated in §32(c) of that judgment.

29.  Mother claimed that the validity of the Will was challenged. The indication to challenge the validity of the Will appeared in the correspondence, especially in a letter dated 28 October 2025 from Mother’s solicitors (“Chin & Associates”) to Ross’ solicitors (“KB Chau & Co”). Despite that indication, no probate action has been taken out to date.

30.  However, even though there was a dispute as to validity of the Will, University Hospital was not applicable because Father’s corpse has been in the possession of TKO Hospital and not Mother. The starting point remained that Ross was entitled to possession of Father’s corpse.

F.  DEPARTURE FROM THE STARTING POINT

31.  Ross was ready, willing and able to arrange for the Funeral Services (with Ross’ Undertakings and terms agreed by Mother). He agreed to adopt the Soka Gakkai traditions for the Funeral Services, with the assistance of Teddy.

32.  However, I had also considered 3 other angles: (1) Mother’s mental capability, (2) the significance of the religious perspective of the Funeral Services, and (3) the assurance to Mother that she would be able to attend the Funeral Services.

33.  Firstly, with regard to her mental capability, according to Ross, Mother displayed signs of dementia in 2023 and cognitive impairment became more apparent in mid-2024. She was illogical in her speech and unable to comprehend what was going on in her surroundings, according to Ross’s observation.

34.  As late as on 2 October 2025, whilst visiting Father at the hospital, Ross could observe that Mother did not appear to be in good condition, was not able to comprehend what her daughter-in-law said to her, was unable to have normal conversation with anyone at the scene, nor was she able to comprehend where she was. Based on what he observed of Mother on 14 May and 2 October 2025, Ross highly doubted whether Mother was able to make any affirmation in this application. Ross suspected that it was Polly who had been giving instructions on Mother’s behalf. Worse still, according to the CCTV footage on 11 October 2025 outside the TSW Property, it appeared that a legal executive of Mother’s solicitors had couched Mother and Polly to tear off the “no locksmith notice” at the door, to remove valuables and switch off the CCTV, whilst Mother did not give instructions.

35.  This Court initially had concerns as to Mother’s mental capability. At my direction, Mother attended the hearing. I was told by Polly that she had had a stroke and thus could not speak up. Mother stated that she had not read her affirmation. She was not able to say if anybody had read it to her. She appeared not to know what her own affirmation was meant to serve. What was important, however, was that she understood that the proceedings were for her to obtain “the papers” of her husband “in memory of him”.

36.  I do not expect an old lady like Mother to be conversant with the legal proceedings. However, soft spoken as she was, she was firm in stating a purpose of these proceedings. Having seen and heard her and read the evidence before me, there was nothing of weight that could cause the Court to doubt that this lady’s intention was to handle her own husband’s Funeral Services.

37.  Further, the evidence as of 13 October 2025 was that she had the mental capacity to execute an EPoA.

38.  I was satisfied that she had the mental capacity to arrange for the Funeral Services.

39.  Mother is aged 79 at the current hearing and is wheel-chair bound. She has been taken care of by Polly since about December 2024. No doubt, at her age, if she were to arrange for the Funeral Services, she would need assistance, probably from Polly, if not also the sons. That should not count against her, because many aged surviving spouses take charge of funeral services.

40.  Secondly, the religious aspect is often the “soul” of funeral services. It reflects the wish of the deceased and the “last respect” that the arranger of the funeral services would like to show to him. If the deceased had friends or relatives who practise the same religion, equally those friends or relatives would like to pay respect to the deceased through his preferred religious mode.

41.  Ross was not even aware that Father was a member of Soka Gakkai International of Hong Kong. He stated in his affirmation that, “If, for whatever reason, Soka Gakkai becomes an impractical option, [he] would arrange for [Father’s] funeral services to be conducted in a traditional Chinese way.”

42.  Mother saw this as a lack of genuine commitment acting contrary to Father’s religious wishes, and being willing to honour Father’s wishes only if “practical”. I agreed but this was a foregone conclusion given Ross’ Undertakings.

43.  The more important aspect was that Mother has been a Soka Gakkai member for 53 years. She practised Soka Gakkai with Father for over 50 years. She knew Father’s expressed wish for a Soka Gakkai funeral. This was hardly disputable, given her 62 year long marriage with Father and that they had lived together until their separation on 17 April 2025. She would have the religious knowledge and commitment and was thus in a much better position than Ross in bringing out the true flavor of the Soka Gakkai traditions at the Funeral Services in honour of Father. Teddy was no comparison to her.

44.  Thirdly, Mother, the most senior family member, must have assurance that she would be able to attend the Funeral Services. She has been separated from Father for 5 months until his death, with only 2 visits in between. She was excluded from all his affairs, from health to wealth. The distress arising from the separation was immeasurable for such an old lady.

45.  It was not necessary to resolve the factual disputes. Despite the lengthy affirmations on both sides and cross allegations, two things were quite clear.

(1)  There was no allegation that Father had grudges against Mother. Both parties had wanted the Parents to live together and so did the Parents. It was just that Ross and Polly blamed each other for preventing the reunion from taking place. Father and Mother’s relationship remained good.

(2)  It was undeniable that there remained little trust between Mother and Ross due to the following:

(a)  The matters in paragraphs 22-23 above may not constitute a perfect case for setting aside the Will but they formed a basket of reasonable suspicions.

(b)  Since April 2025, Father had been systematically isolated from Mother and Polly. The 3 sons controlled all access to Father and prevented Mother from seeing Father in his final months.

(c)  She felt that they had failed to notify her of Father’s death.

(d)  After Father’s death, the sons continued to deny Mother’s entry to her own home since 2006, of which she has a half share (even as a tenant in common). Ross even called the police when he saw her and Polly via CCTV.

(e)  Mother was even denied access to her own medicine and medical equipment, which were located in the TSW Property, by Teddy and his wife.

(f)  It was during the period of isolation that Father executed the 3 Documents that excluded Mother from Father’s estate. Ross refused to provide any explanation for these matters, under the guise that (a) he was not an executor yet when the withdrawals were made; and (b) that the transfers were made with no relation to Father’s EPoA. Ross may be right but his response of not being surprised at such substantial loss of funds shortly before Father’s death was astonishing.

46.  Given such circumstances, Mother’s concerns that she might not be informed of and hence be deprived of the opportunity to attend Father’s Funeral Services or of knowing where the ashes would be put (before Ross’ Undertakings were given), were real and the deprivation would be irreparable if she were to miss any part of the Funeral Services.

47.  Taking all circumstances into account, I found that there were overwhelming circumstances to depart from the starting point. Mother should take possession of the dead body and arrange for the Funeral Services to achieve proper respect and decency for Father.

48.  Father had died for 3 months already. Funeral Services should be arranged as soon as possible and so the order was granted before handing down of these reasons.

49.  Costs should follow the event as a matter of principle and be to Mother.

G.  CONCLUSION AND COSTS

50.  For the reasons given in Sections E to F above, I therefore made the orders in paragraph 6 above.

51.  A costs statement shall be lodged and served by Mother on or before 21 January 2026. Grounds of objection shall be lodged and served by Ross by 23 January 2026. There shall be summary assessment of costs on paper without the need for attendance.

52.  I thank counsel for their assistance.