ZHAO SHAOYUAN, the executrix of the Estate of PUN HOK CHI, Deceased v. CHAN MEE LIN

HCMP 855/2018

[2018] HKCFI 1724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 855 OF 2018

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J U D G M E N T

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Introduction

1.  The dispute between the parties is essentially which of them should be allowed to have possession of the body of the late Mr Pun Hok Chi, deceased (“Deceased”) and to arrange for his burial.  The Deceased passed away on 2 April 2018.

2.  At the ex parte on notice hearing before Lok J on 8 June 2018, he made an order that the originating summons be adjourned to an early date for substantive argument, upon the parties’ undertaking not to deal with the body of the Deceased and funeral arrangements for the Deceased until the disposal of the originating summons.

3.  The parties’ respective cases were summarised by Lok J at the time to be as follows:

(i)   P, the Deceased’s cohabitant, wishes to have the Deceased’s body buried and interred at the Mirs Bay Overseas Chinese Cemetery located in Shenzhen in Mainland China (“Cemetery”);

(ii)   D, the Deceased’s surviving spouse, wishes to have the Deceased’s body cremated and to have his ashes kept in Hong Kong.

4.  On 4 July 2018, D issued a summons seeking relief mirroring those sought by P in the OS (“D’s Summons”).  There was also an alternative claim in D’s Summons for an order that the Pamela Youde Nethersole Eastern Hospital (“Eastern Hospital”), as the person in lawful possession of the Deceased’s body, be authorised to make appropriate arrangements for the disposal of the body.

5.  After the hearing before Lok J, the parties had attended mediation but unfortunately this failed.

6.  On 9 July 2018, D’s solicitors sent to P’s solicitors an open proposal and without prejudice to D’s position, proposing, amongst other things, that:

(i)   The funeral to be arranged by D as Deceased’ surviving spouse;

(ii)   D will not insist on Deceased’s body being cremated until any future dispute over the validity of Deceased’s last will is resolved, and the Deceased’s body to be interred in the meantime in Hong Kong and that there are grave spaces ready and available at the Chinese Permanent Cemeteries in Chai Wan and Tseung Kwan O.

7.  The above proposals were not accepted by P.

Background

8.  D first met the Deceased in 1980 and they were subsequently married in Hong Kong on 25 February 1982.  There were two children of the family, namely PYYA, a daughter now aged 35, and PSM, a son now aged 29.  D herself works for the Hospital Authority of Hong Kong.

9.  The Deceased had been working for the Cemetery in Mainland China for the past 30 odd years and his last position at the Cemetery was the Cemetery Director. 

10.  It was D’s case that throughout their marriage, the Deceased stayed with her in Hong Kong over weekends, namely from Saturdays to Mondays) and returned to Shenzhen during weekdays (from Tuesdays to Fridays), and that she was told by the Deceased that this arrangement was most convenient for him for his work at the Cemetery.  Further in 2007, the family moved to a larger matrimonial home comprising of two connecting units, respectively “Flat G” and “Flat H” (collectively “D’s Home”).  Flat G was purchased in the name of the Deceased whilst Flat H was purchased in D’s name.

11.  According to D, she had accepted the arrangement that the Deceased would return to Shenzhen during the week, and it was not until the end of 2016 that she was informed by her son that he suspected his father had been having an affair with another woman because of a misdirected WeChat message.  When confronted, D said the Deceased gave her the name of his mistress which was not P’s name, and confessed that he had a daughter with this other woman.  The Deceased had also said that he had bought a flat for the woman in Shenzhen by way of a mortgage.  D said the family was devastated upon D’s admission but the Deceased had promised her that he would not see the woman again and that she and the Deceased had tried very hard to mend their relationship.  Thereafter, the Deceased had spent more time in Hong Kong than in Shenzhen with the family.

12.  On the other hand, P said she met the Deceased some 28 years ago in the Mainland and started cohabitation with him 26 years ago.  Out of their relationship, a daughter PYT was born in November 1998 in Shenzhen, who is now 20 years of age, and is currently attending a university in Hong Kong.  P said that the Deceased used to stay with her in Shenzhen during weekdays and would only return to stay with D during weekends.

13.  The Deceased was diagnosed with gallbladder cancer on about 1 June 2017 and was admitted to Eastern Hospital subsequently.

14.  On 10 June 2017, the Deceased made a will at a firm of solicitors naming D as sole executrix of his will (“1^st Will”).  In this will, the Deceased bequeathed all his residuary estate to D, after payment of his debts and funeral and testamentary expenses, making no provision for P and PYT. After signing the 1^st Will, D and the Deceased visited a psychiatrist Dr Lam Chi Leung to verify that the Deceased did have the requisite mental capacity to make the will.  Dr Lam told the Deceased to visit him again on his own on 13 June 2017 before issuing a report to verify the Deceased’s mental capacity.

15.  It was not really disputed that the Deceased was admitted to the Eastern Hospital again between the period of 15 October 2017 and 8 November 2017. 

16.  On or about 23 October 2017, the Deceased’s brothers and sisters who are on P’s side (“P’s Camp”) filed a report with the police at the Eastern Hospital, alleging that the Deceased’s HKID card, Home Return Permit and keys to D’s Home were stolen.  It was P’s allegation that D took Deceased’s missing items, which D denied.

17.  Eventually, the Deceased applied for replacements of his HKID card and Home Return Permit in November 2017.  

18.  On 30 November 2017, the Deceased made a will in Chinese at a firm of solicitors, this time naming P as sole executrix of his will and making specific bequests of his shares in two companies and also Flat G to his youngest daughter PYT and bequeathed his residuary estate to P and PYT in equal shares, making no provision for D or their daughter and son (“2^nd Will”).

19.  According to P, the Deceased on learning that his time might come soon had taken steps to arrange for his burial at the Cemetery in December 2017, and that on 19 December 2017, the Deceased tentatively agreed with one Mr Choy Chau to purchase a “used” burial lot at the Cemetery from him in the joint names of the Deceased, P and their daughter PYT for HK$69,000.  On the same day the Deceased had written to the “Leaders” of the Cemetery for waiver of the transfer administration fees, indicating his wish to be buried in the lot to be purchased.  Approval was duly given by the management of the Cemetery.  The HK$69,000 was duly paid to Mr Choy on 21 December 2017. The transfer of the burial lot was approved and a certificate was issued by a Mr Leung Yin Hay (“Mr Leung”) of the Cemetery on 31 December 2017[1].

20.  The Deceased was eventually admitted to the Eastern Hospital again on 26 February 2018 and remained there until he passed away on 2 April 2018.

Legal principles

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[2]:

(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[3]:

(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.

23.  As stated in the Halsbury Laws of England, a duty to dispose of a dead body is incumbent on the personal representatives of the deceased, including the executors of a married woman to the exclusion of her husband, at all events if she leaves sufficient estate, and where there is a bona fide dispute as to the identity of the personal representatives which cannot be immediately settled, the person lawfully in possession of the body will normally have the power to make arrangements for disposal[4]. The law also recognises as incident to the duty to dispose of the body rights to the possession of the body until it is disposed of [5].

24.  Hale J, as she then was[6], had said in Buchanan v Milton[1999] 2 FLR 844 as follows[7]:

“There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased ... An executor appointed by will is entitled to obtain possession of the body for that purpose …, even before there has been a grant of Probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration.”

25.  In the Buchanan case, the deceased left no will and the case  was technically about who should be granted letters of administration of the estate for the purpose of the disposal of the deceased’s remains and what was sought in the case was the displacement of the person who should normally have both the duty and the right to dispose of the remains[8].  Hale J then considered whether there were “special circumstances” under the then applicable statutory provision, namely section 116 of the Supreme Court Act 1981, that it would be necessary or expedient for some person to be appointed as administrator other than the person who would be in accordance with probate rules have been entitled to the grant, and in the end held that although there were special circumstances in that case but those circumstances did not make it necessary or expedient for the deceased’s personal representatives to be displaced for the purposes of determining where the deceased should be buried.

26.  Historically, a person could not by will or otherwise legally dispose of his body after death, and that any directions on the matter that he might have given were not binding on his personal representatives[9]. However, this principle, is now affected by the right to respect for family life, so that the deceased’s express wishes may in some circumstances amount to “special circumstances” justifying the court in overriding the right of the personal representatives to direct the disposal of the body[10]. 

27.  In  Borrows v HM Coroner for Preston [2008] EWHC 1387 (QB), Cranston J, having surveyed the relevant European human rights jurisprudence,  observed  as follows[11]:-

“One thing is clear, that in as much as our domestic law says that the views of a deceased person can be ignored it is no longer good law. That rule of common law can be traced back to Williams v Williams, where it was said that directions given by a deceased as to the disposal of his body were not enforceable as a matter of law. It is quite clear from the jurisprudence of the European Courts of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account. However, this aspect of Strasbourg jurisprudence is easily accommodated within domestic law: in this type of case a person’s wishes can be regarded as a special circumstance in terms of Section 116 of the Act… Rule 22 can still apply. Special circumstances may displace the order of priority set out there although a high test has to be satisfied, whether it is necessary or expedient to do so.”

28.  Thus, Cranston J’s conclusion was that to be consistent with the jurisprudence of the European Court of Human Rights, “special circumstances” include the wishes of the deceased person and if there is clear evidence of those wishes, such “special circumstances” may make it necessary or expedient to vary the legislative order (of priority of person entitled to a grant of letters of administration under Rule 22 of the UK Non-Contentious Probate Rules 1987).  His conclusion was however disagreed by Peter Smith J in  Ibuna v Arroyo [2012] EWHC 428 (Ch)[12].

29.  I do not see the need to go into those arguments in relation to human rights in the present case since the Deceased did not die intestate nor have I been referred to any equivalent provision in our legislation as section 116 of the Supreme Court Act 1981.

30.  However, the wishes of a deceased may be relevant even if not determinative.  In re JS (A Child) (Disposal of Body: Prospective Orders) [2017] 4 WLR 1, is a case where a terminally ill child aged 14 applied to the court for a determination that her wishes be adhered to on her death, and her application was granted.  Peter Jackson J had reiterated that in English law, there is no right to dictate the treatment of one’s body after death, and that this is so regardless of testamentary capacity or religion.   However, he went on to say that the wishes of the deceased are relevant perhaps highly so, but are not determinative and cannot bind third parties, and the role of the court is not to give directions for the disposal of the body but to resolve disagreement about who may make the arrangements[13].

31.  In Hartshorne v Gardner [2008] EWHC 3675 (Ch), a case in which the Court had to decide which of the deceased’s divorced parents (ie the claimant being the father and the defendant being the mother) had a better right to possession of the deceased’s body and to make burial arrangements thereof, the court had observed[14]:

“9. The most important consideration is that the body be disposed of with all proper respect and decency and, if possible, without further delay. Subject to that overriding consideration, it seems to me that there are two types of factor that are relevant in the present case. First, those that do or might be expected to reflect the wishes of the deceased himself. Secondly, those that reflect the reasonable wishes and requirements of family and friends who are left.”

32.  With the above principles in mind, I turn to the facts of the present case.

The issues

33.  In the present case, the two main issues are as follows:

(i)   What is the “starting position”?

(ii)   What was the Deceased’s burial wish?

“Starting position”

34.  As set out above, there are two wills.

35.  Mr Tam argued that the “starting position” is that D is named the sole executrix and trustee of the 1^st Will and that this would render D the proper person entitled to the right to possess the Deceased’s body and to decide on the burial arrangements. 

36.  D disputes the validity of the 2^nd Will for the following reasons:

(i)   The timing was questionable as the 2^nd Will was made on 30 November 2017, 5 months after the 1^st Will was made and that at the time, the Deceased was not staying with D and could have been compelled to act against D’s interests;

(ii)   The dispositions in the 2^nd Will were “irrational” and inconsistent with the Deceased’s actions towards D, their son and their daughter, especially in the months leading up to his death.

(iii)   It was questionable whether the Deceased possessed the requisite testamentary capacity to make the 2^nd Will and this matter would touch on the role of the solicitor who prepared and attested to the execution of the 2^nd Will.

On timing

37.  As said earlier, D had taken the Deceased to see a psychiatrist Dr Lam Chi Leung who is on the list of approved doctors under the Mental Health Ordinance on the day of the Deceased after he had made his 1^st Will.  Dr Lam had apparently also seen the Deceased alone later and had prepared a brief report on the Deceased’s mental state, to the effect that the Deceased was not suffering from major mental disorders and it was his own wish to execute the will because of recent diagnosis of cancer[15].

38.  D had said that in October 2017 when the Deceased was admitted to the Eastern Hospital again, he felt particularly ill because of the various treatments he had been receiving but he insisted on attending the son’s marriage registration ceremony on 21 October 2017.  The Deceased had signed on the marriage certificate as a witness and D had produced various photographs of the ceremony and D had produced various photographs of the ceremony. 

39.  D also said she was authorized by the Deceased to operate two bank accounts held in his sole name and that she had withdrawn a sum of approximately HK$850,000 from these two bank accounts on 23 October 2017, and that shortly before that, the Deceased had urgently told her to visit him at hospital to sign some “commercial documents” as the surviving spouse and relating to some transfer of dividends in a company in favour of one Lai Tsz Kam (“Mr Lai”) if the Deceased should pass away. 

40.  As said earlier, it was also on about 23 October 2017 that P’s Camp filed a report with the police in the Eastern Hospital that various items belonging to the Deceased were missing. 

41.  Then according to D, on about 24 October 2017, P’s Camp came to the Eastern Hospital while her family was with the Deceased and P’s Camp accused D of taking away the Deceased’s items.  There were heated arguments which caused a commotion.  Security guards were dispatched to separate the two camps.  D said she saw a woman in P’s Camp whom she believed to be P.  In any event, since around 24 October 2017, P’s Camp had always been staying at the hospital and that D and her children paid the Deceased fewer visits to avoid any potential conflict in front of the Deceased. 

42.  It was also D’s evidence that on about 8 November 2017 upon the Deceased’s discharge from the Eastern Hospital, she had accompanied the Deceased back to D’s Home but on about 9 November 2017, he left to stay with his younger sister.  The Deceased had apparently said that as D and their daughter were both working full time, he did not want to die in the absence of any relatives by his side, and that he had also said that he did not want to affect the sale price of D’s Home if he were to pass away inside.  On the same day, according to D, the Deceased had also said he would go and apply for a new HKID card, which D believed he duly did shortly thereafter.

43.  To summarise, even on D’s own evidence, there had been  unpleasant events several weeks prior to the making of the  2^nd Will,  firstly a police report made by the Deceased’s siblings on 23 October 2017 of the Deceased’s HKID card and Home Return Permit being  missing, secondly there was also an incident on 24 October 2017 with arguments apparently in the presence of the Deceased between the two camps, and  thirdly and more importantly, and although P and D gave different versions as to why the Deceased decided to leave D’s Home on 9 November 2017, the fact was he did leave and had not returned to stay with D after 9 November 2017, even though, as alleged by D, he had returned to D’s Home for dinner on one occasion on or about 1 February 2018.  

44.  On the other hand, according to the Deceased’s elder sister Madam Poon Yee Kwai (“Madam Poon”), P was the one who took very good care of the Deceased during the hospitalisation of the deceased in October 2017. 

45.  D had alleged that Madam Poon’s evidence was not independent or trustworthy and that P maintains a close business relationship with Madam Poon, but Madam Poon had denied D’s allegations.

46.  Anyway, it is not clear at this stage whether those unpleasant events had any effect on the Deceased making the 2^nd Will or not.  However, having considered D’s own evidence, there was really no sufficient evidence at this stage to support D’s allegations that the timing of the making of the 2^nd Will was “questionable” or that the Deceased “could have been compelled to act against D’s interests”.

Dispositions in the 2^nd Will “irrational”

47.  Mr Tam submitted that the dispositions in the 2^nd Will were clearly irrational, and clearly inconsistent with the Deceased’s actions towards D, and their two children, especially in the months leading up to his death.

48.  Mr Tam further submitted that there was no basis for P to contend that the Deceased’s dispositions in the 2^nd Will were rational because he was upset by D “misappropriating his monies during his hospitalisation in October/November 2017”, and that if the Deceased had indeed lost all trust and confidence in D, he could have revoked his authorisation for D to deal with his bank accounts.  Quite the contrary, the Deceased continued to give money to D or their son after 23 October 2017, and that this would show that the Deceased continued to repose trust in D to handle money and to care for D’s family, especially their son.

49.  However, apart from her withdrawal of a total of approximately HK$850,000 from the Deceased’s accounts on 23 October 2017, which were said by D to have been paid to the son, the only payments after 23 October 2017 to D as alleged by her were said to be payments by cash, HK$10,000 on about 12 January 2018 at the Eastern Hospital for laisees for Chinese New Year and HK$20,000 on about 1 February 2018 at home, for D’s purchase of a pair of gold bracelets for the son’s wife for the wedding.  As for the son, on about 15 January 2018, there was a transfer of AUD 10,000 to the son by the Deceased for the son’s living expenses for the 2018 summer semester.

50.  It can be seen in the Nursing Note dated 26 March 2018 referred to later that when the Deceased was seen alone by the PC Nurse at the Eastern Hospital on that day.  He was recorded to seem to be angry at D and that he had said he was cheated by D that all property was transferred to D when he was diagnosed with cancer. 

51.  As mentioned earlier, in the 1^st Will, the Deceased had bequeathed his residuary estate to D, without any bequest to their children (save if D did not survive him) and not even to their son and further nothing to P and her daughter.  In clause 6 of the 1^st Will, the Deceased had declared that there were no other marriage(s) other than the marriage between him and D, and no families and that he had no illegitimate children, and further said that if there were any he would not give anything to the dependents and/or illegitimate children, because he had taken care of them for a long time and sufficient provisions had been made[16].

52.  It was clearly erroneous for the Deceased to state that he had no illegitimate children since the Deceased knew very well that he had a daughter with P, and in fact, even D herself had known latest by end of 2016 that the Deceased had a daughter by another woman.  It is not clear at this stage why the Deceased made this an erroneous statement.

53.  Anyway, at the present stage and based on the available evidence so far, as Mr Ho had submitted, what Mr Tam said about the 2^nd Will being “irrational” could equally be said of the 1^st Will.

The Deceased’s requisite testamentary capacity in making the 2^nd Will  

54.  D had questioned as to whether the Deceased possessed the requisite testamentary capacity to make the 2^nd Will.  At this stage, although P’s solicitors had written to the solicitors’ firm which prepared the 2^nd Will requesting for attendance notes, they had not been provided with any as the firm said P had not been granted probate.

55.  D heavily relied on what was held by Cheung JA held in the case of Choy Po Chun and anor v Au Wing Lun,judgment dated 20 April 2018,CACV 177/2017, [2018] HKCA 210[17],that in the case of a testator who was elderly and infirm, the role of the solicitor charged with the task of preparing and attesting to the execution of the will is particularly important.  The testator in question in the Choy Po Chun case was however already 92 years of age at the time when he made the will and living in a care home and showed physical signs of infirmity.

56.  As seen from paragraph 45 of the Choy Po Chun case, the relevant questions to ask about a testator’s testamentary capacity to make a will are (1) if the testator was capable of understand the nature of the act of the making of the will and its effects? (2) was the testator capable of understanding the extent of the property of which he was disposing? (3) was the testator able to comprehend and appreciate the claims to which he ought to give effect?

57.  The present application is not in relation to the validity of the 2^nd Will or the 1^st Will, and this will be a matter in any future probate action, at which time the parties’ respective solicitors’ firms’ attendance notes and full medical records of the Deceased may become available.

58.  At present, P had produced copies of (i) a Consultation Summary dated 20 March 2018, (ii) a Nursing Consultation Note dated 20 March 2018, (iii) a Nursing Note of 26 March 2018 and (iv) Allied Health Consultation Note dated 28 March 2018[18].  P had not yet been able to obtain copies of all the consultation summaries/notes or nursing notes from the Eastern Hospital.

59.  As seen in (i) the Consultation Summary, on 20 March 2018, the Deceased was recorded to be with his “wife” at the time of the consultation, and that the Deceased and wife expressed wish for discussion of advanced care planning and the Deceased showed reluctance to be admitted to hospital again in future for antibiotics injection and the wife was keen for home care.

60.  It can be seen from the “Family Background” as recorded in Nursing Consultation Note in (ii) of the same date as (i), that there were references to “wife” and “ex-wife” and the two elder children with “ex-wife”.  I am of the view that the reference therein to “wife” clearly was to P and the reference to “ex-wife” was to D.  The Deceased was interviewed by the PC Nurse and that his symptoms were expressed by him when interviewed.  He was recorded by the PC Nurse as “conscious and alert, communicable, NG/RT feeling noted and tolerated well.  Patient claimed LBP pain score 6, pain team seen. … Pt can able to turn on bed and … walk with aided”. 

61.  As for the Nursing Note in (iii) on 26 March 2018, on this occasion the Deceased was seen alone and there was a discussion with the PC Nurse in relation to Advanced Care Planning.  This note indicated that the Deceased showed “well acceptance” towards his advanced disease, and he had voiced out and felt “regret for not spending treasure time to accompany 1^st daughter and 2^nd son during their childhood”.  He wished to have opportunity for expressing his love to his children.  But he thought it in vain for his past history.  He was encouraged to write his personal feeling and using card for expressing his love, and he agreed.   He was recorded to show anger and expressed he was cheated by his ex-wife and that all property was transferred to ex-wife when he was diagnosed CA.  He was thankful to his “wife” for caring for him at that moment and “that his funeral issue was handed over to his wife”, and he wished his younger daughter would grow up healthy and keep studying. 

62.  Then on 28 March 2018, about 5 days before the Deceased passed away, the Allied Health Consultation Note on palliative care psychosocial in (iv) above indicated that the Deceased was with his “2^nd wife”. The Deceased expressed his wish to inform his son who was in Australia and did not want to contact his ex-wife and 1^st daughter.  It was recorded that his wish was respected.  The Deceased’s 2^nd wife was encouraged to contact the Deceased’s son through apps on smart phone and later the son made a short call in reply.  The 2^nd wife was advised to inform him of the present condition of the Deceased and she would try to text the son again.  The Deceased seemed more relieved after the call from the son. 

63.  From the 4 consultation and nursing notes produced by P, it is quite clear to this Court that “wife” or “2^nd wife” therein referred to P and that “ex-wife” referred to D.

64.  More importantly, it was clear in the above 4 consultation and nursing notes that by 28 March 2018, the Deceased was still able to express himself and that he had said that his funeral matter was handed over to P. 

My view on the “starting position”

65.  At this stage, P has not conceded to the validity of the 1^st Will and only acknowledged the existence of the 1^st Will for present purposes and says equally the 2^nd Will is in existence.  Since the validity of the 2^nd Will is put in issue by D, it is for P in any future probate action to propound the 2^nd Will, and/or to prove due execution of the 2^nd Will.  Equally, if the validity of the 1^st Will is to be challenged, then it is for D to propound the 1^st Will.  All this is for the future probate action.  

66.  In so far as the present application is concerned, there is no sufficient evidence at this stage to say that D did not have testamentary capacity at the time of making the 2^nd Will.  Thus, in my view, the 2^nd Will would prima facie be the last will of the Deceased, and P would prima facie be the sole executrix, and hence would be entitled to the possession of Deceased’s body and be responsible for its burial.

Deceased’s Burial Wishes

67.  Mr Tam had highlighted what Au J had said in Re Lu Han Lung about the wishes of the deceased was subject to a proviso that “only if the same can be ascertained without the need to resolve the dispute on the evidence”, and submitted that the court must be satisfied that there is clear and undisputed evidence as to the Deceased’s burial wish, before it can place any weight on such wish.

68.  In D’s affirmation, she had said that in June 2017, shortly after he was diagnosed with cancer, he told the family that it was his wish to be cremated and to have his cremated ashes kept together with D’s in Hong Kong when D passed away.   She said at no time did the Deceased mention to the family that his wish was to be interred at the Cemetery.  She further said that it was unlikely that the Deceased would harbour any intention to be interred at the Cemetery as he himself owned 6 grave spaces at the Cemetery prior to his death, and that these were purchased in 1992 for investment purposes and that if he indeed had any intention of being interred at the Cemetery, he would have used one of the 6 spaces rather than purchasing a “used” lot from some one else as alleged by P[19].

69.  As said earlier, P’s case on the other hand was that the Deceased had purchased a “used” lot for his own burial in December 2017. 

70.  Madam Poon, the elder sister of the Deceased, had made two affirmations to support P’s case.  She has been associated with the funeral parlour industry, and her husband is Mr Leung, the manager of the Cemetery.  The Deceased was one of six siblings and Madam Poon had confirmed that she and the other siblings had tried to convince D that it was the Deceased’s wish to be buried at the Cemetery but D had refused to allow P to collect the Deceased’s body for burial.  Madam Poon had also explained that the 6 grave spaces purchased in 1992 had been used to bury their parents, and she had produced a diagram drawn by her to indicate how their parents had been buried under the 6 graves.

71.  D had queried the purchase price paid by the Deceased alleging it did not make sense as it was far below the market price, and that the circumstances of the purchase were highly suspicious.  However, apart from producing a newspaper report about the prices, there was no other evidence to show what the price of a “used” lot would be and also what the transfer administration fees would be.

72.  A Mr Tam Bingjan (“TBJ”), who is the supervisor of the Cemetery, had filed an affirmation in support of P’s case. He had worked with the Deceased for some 36 years and they were friends for many years.  He has known P for over 20 years.  He gave evidence that on 18 December 2017, the Deceased had telephoned him and had expressed that he wished to be buried in the Cemetery, and that the Deceased learnt that there were two burial lots in the Cemetery which had been used previously but were available for transfer, and he would like to select one of the lots for his own use.  He requested TBJ to accompany him to the Cemetery for inspection of the lots.  TBJ agreed and in the morning of 19 December 2017, he accompanied P and the Deceased to the Cemetery to inspect the two lots.  P selected one of the lots and said he hoped that TBJ could help him to clean the area and to grow some plants near the lot.

73.  TBJ had said in his affirmation that although P had lost weight and did not speak much, but he could clearly express himself.

74.  Mr Lai, the general manager of the Cemetery, had also made an affirmation to support P’s case.  He had explained that the Cemetery is owned by a joint venture enterprise between a Mainland shareholder and a Hong Kong shareholder, and that he represents the Mainland shareholder. Mr Lai said he had known the Deceased since 1981 before his marriage to D.  He has also known P for over 20 years and that the relationship between the Deceased and P was an open secret in the company.  Mr Lai said he had visited the Deceased at the hospital in October 2017 and in early December 2017, he had a meal with the Deceased.   Mr Lai said that the Deceased had expressed a wish to be buried at the Cemetery where he had worked for over 30 years and that the Deceased had felt sad in that having worked in the Cemetery almost his entire life, he had to look for a “used lot” for burial.  He had expressed that he was tight in his finances and hoped that Mr Lai would lend him money to buy a lot and agreed to waive the administration fees.  Mr Lai said he agreed to do so.

75.  Mr Lai said on 20 December 2017, the Deceased accompanied by P met with him at the office at the Cemetery, and the financial manager of the Cemetery was also present.  Having understood that Mr Leung (representing the Hong Kong shareholder) had approved P’s application for waiver of transfer administration fees, Mr Lai said he, representing the Mainland shareholder, also signed and approved P’s waiver application. Mr Lai said P had lost weight but other than this, he was like normal and that 20 December 2017 was the last occasion he saw the Deceased. 

76.  P had said on 26 May 2018, P had invited D and her family to visit the Cemetery on or before 30 May 2018 to verify the Deceased’s burial wishes with the management personnel of the Cemetery but D failed to take up the invitation.  Even if the time given to D was short, had D be genuinely interested to take up the invitation, there was no reason why she could not seek further time for arranging a visit.

77.  Notwithstanding that D said the Deceased had told her and the family that he wished to be cremated, she had produced no supporting evidence.  In fact, what she said was contradicted by her own evidence:

(i)   she had produced a quotation from Luk Fook Funeral Services for the funeral of the Deceased for which she had paid a deposit of HK$20,000 and the receipt was dated 6 April 2018[20].  The quotation included a Chinese style coffin for burial and the place of burial indicated therein was the Chinese Permanent Cemeteries;

(ii)   In a recent open letter dated 9 July 2018 from her solicitors to P’s solicitors, D indicated that as an amicable settlement of the present application, she would not insist on the Deceased being cremated and instead proposed that the Deceased’s body be interred in Hong Kong pending the resolution of any future dispute over the validity of the Deceased’s last will, and that D indicated that there were grave spaces available at the Chinese Permanent Cemeteries in Chaiwan and Tseung Kwan O[21].

78.  For (i) above, D had tried to explain that notwithstanding the Deceased’s wish which she alleged was for cremation, she could not find a space to hold his cremated ashes, and that after consulting individuals in the funeral industry, she learnt that there were burial spaces ready and available in the Chinese Permanent Cemeteries, and thus she proceeded proceed to arrange for a funeral and burial with the knowledge that the Deceased’s body may be disinterred in the future and then cremated.  The quotation was obtained by D and the deposit paid by her only 4 days after the Deceased’s death. Hence what D seemed to be saying was that by then she had decided that there should be a temporary interment first.

79.  As for (ii), although it is helpful to note that D was longer insisting on cremation by 9 July 2018, the effect of her proposal seemed again to be for a temporary interment of the Deceased’s body, in that if the 2^nd Will is eventually held to be the Deceased’s last will and that P is to be the executrix, then the Deceased’s body could be disinterred. 

80.  However, if a “temporary interment” is indeed D’s proposal, then it could be similarly argued by P that the Deceased’s body could be interred in the Cemetery first, and that if the 1^st Will is held to be the last will, then similarly the body could be disinterred then.

81.  As seen from Hartshorne v Gardner, the two types of factors that were relevant in that case, where two parents’ rights were equal, were first, those that do or might be expected to reflect the wishes of the deceased himself, and secondly, those that reflect the reasonable wishes and requirements of family and friends who are left.  

82.  Having considered all the evidence presently available before the Court, I find that even if the Deceased did tell D in June 2017 he wished to be cremated, there is clear evidence that later the Deceased’s burial wish was to be buried in the lot in the Cemetery purchased by him in December 2017.  The Cemetery is where his parents were buried, and although it may not be the wish of D and her children, the Deceased’s wish accords with not only that of P and her daughter, but also with the Deceased’s siblings and long time friends.

Other circumstances

83.  Mr Tam had submitted that if Deceased is buried in Hong Kong, it would be more convenient for D and her children to visit the grave, and that as P has given an address in Hong Kong and her daughter is studying in Hong Kong, it would not be inconvenient for them to visit the Deceased’s grave.  

84.  There was however no evidence as to why D or her children could not have visited the Deceased’s grave in the Cemetery which is only just across the border in Shenzhen.  Indeed, D’s children’s paternal grandparents were also buried in the Cemetery.  In my view, it would seem equally convenient for D and/or her children to visit the Deceased’s grave if it were in the Cemetery.

85.  There were no other relevant circumstances raised by D.

Alternative relief 

86.  As said earlier, D had also sought as an alternate relief that the Eastern Hospital being the person in lawful possession of the Deceased’s body be authorised to make appropriate arrangements for the disposal of the body.

87.  As pointed out by Mr Ho, Eastern Hospital has not been made a party in these proceedings.  Further the Eastern Hospital may decide to cremate the body which is objected to by P and also does not accord with D’s latest proposal.  Further, cremation is an irreversible decision. 

88.  In any event, I do not see any ground for such alternate relief.

Conclusion

89.  As I have said, I am of the view at this stage, prima facie, the 2^nd Will was the Deceased’s last will, and that P is thus prima facie the executrix and would be entitled to the right of possession of the Deceased’s body.  Even if one were to ignore both wills at this stage, I am of the view that the present evidence indicated that D’s clear wish was to be buried in the Cemetery and this was the wish of his siblings and long time friends.  I am also of the view that P would be the best person at this stage to bear the responsibility of making the burial arrangements.

90.  In light of what is said above, I dismiss D’s summons issued on 4 July 2018. 

91.  D had said that a few days after the Deceased’s death, she found his old HKID card when he was clearing up his belongings at home, and D had said that the Deceased must have somehow found his lost old HKID card and had kept it in D’s Home.  It would thus appear that the Deceased’s HKID card is now in the possession of D.  However, it would appear that the Deceased did obtain a replacement HKID card in November 2017.  As for his Home Visit Permit, as he seemed to have been able to return to Shenzhen to inspect the lot at the Cemetery in December 2017, he must have also obtained a replacement copy as well.

92.  In the above circumstances it is not clear as to why the order sought by P in paragraph (1) of the originating summons is still necessary.  Further, the issue here is who is entitled to the possession of Deceased’s body for the purpose of carrying out the burial and in light of the order I am going to make, the injunctive orders sought by P in paragraph (2) may not be necessary any more.  I do not see why P and D cannot each hold their respective funeral or a memorial ceremony for the Deceased if they so wish.

93.  I am prepared to make an order in terms of paragraph (3) of the originating summons, namely that P be authorised to make and/or process applications with the Eastern 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 to carry out the burial services for the Deceased.

94.  I will adjourn all the other applications sine die with liberty to restore, if necessary.

95.  As for costs, since P is the successful party, D has to pay P’s costs of this application including all costs reserved.  Such costs to be summarily assessed and paid within 7 days after assessment.  P is to lodge a statement of her costs within 7 days, and D to lodge any list of objections within 7 days thereafter.