KO YUET LUN AND OTHERS v. KAO YUEH WEN THE EXECUTRIX OF THE ESTATE OF TSANG NGAN KIU

HCMP 977/2023

[2026] HKCFI 2605

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 977 OF 2023

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J U D G M E N T

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1.  By an Originating Summons taken out on 26 June 2023 (“the OS”), the 3 sibling Plaintiffs (collectively “Ps”) seek to remove the Defendant, their eldest sister, as the Executrix of their mother’s estate (“the Estate”).

2.  Their family was originally from Taiwan. Their father Ko Ching Chung (“Father”) and their mother Tsang Ngan Kiu (“Mother”) were born there respectively in 1931 and 1935. They were married in 1952 and had 5 children. Mother in all her life had been a housewife. The family came to Hong Kong in the 1970s. Their 5 children, in order of seniority, are:

(a)  Kao Yueh Wen, the Defendant (“D”). She was born in 1954 and has been living in Hong Kong;

(b)  Kao Yuh Chiu, the 3^rd Plaintiff (“P3”). She was born in 1955 and has emigrated to and been living with her family in South Africa;

(c)  Ko Yuet Lun, the eldest son and 1^st Plaintiff (“P1”). He was born in 1958 and has been living in Hong Kong;

(d)  Ko Yuet Hsuan, the 2^nd Plaintiff (“P2”). She was born in 1960 and since 1993 has emigrated to and been living with her family in the U.S.A.; and

(e)  Ko Yuet Biu, the youngest son, who pre-deceased his parents in 2000.

(D, P3, P1 and P2 will be referred to collectively as “the Siblings”)

3.  Father passed away intestate in June 2002 in Taiwan. Mother passed away in Hong Kong on 28 June 2022 testate with her last Will dated 23 June 2011[1] in which D was appointed the Executrix and the Siblings were each bequeathed an equal share in the Estate.

4.  In the affirmations filed in support of the OS, Ps made a number of rather serious allegations of foul plays on D’s part dating back to the handling of Father’s estate in around 2002, about which I will say more later. Relevantly, Ps’ immediate allegations were that after Mother had sold a substantial part (or all[2]) of the Taiwan Properties (define below, and according to Ps, forming part of the assets of the Estate) in 2021, D dissipated the proceeds through a number of “suspicious transactions”, but D failed to give a detailed and accurate account of the Estate by, among others, failing to include these sale proceeds or the Taiwan Properties in the account, and D also claimed falsely and without substantiation that the Estate owed her debts totalling about HK$1,800,000 (“the Alleged Debts”).

5.  After the first hearing on 3 October 2024 and a further directions hearing on 12 June 2025, and the filing of a number of affirmations in the interim, (a) Ps’ main allegations of foul plays were abandoned or no longer seriously perused, and (b) an interim distribution of part of the proceeds of sale of the main asset in the Estate – the Mongkok Property (defined below) – was made in mid June 2025. I will allude to these in more detail below.

6.  In view of the fact that the size of the Estate is now confirmed to be rather small, that the main asset has been sold and an interim distribution made and there remain now but some disputes regarding the Alleged Debts and certain jewelleries and a vase that Ps claimed Mother owned and still owned at the time of her death, I directed that if Ps still would seek removal of D, that the parties do file written submissions and these proceedings be disposed of on papers.

7.  The parties have since filed their written submissions by which Ps continue to seek to remove D and which D resists. Having considered them, this is my judgment.

Allegations abandoned or no longer seriously pursued by Ps

8.  Ps made the following allegations against D in the first round of affirmations filed in support of the OS. As they are now effectively abandoned, I will only narrate them here succinctly sufficient to provide the necessary background for this judgment and for my provisional views expressed at the end of this judgment explaining the basis of my costs order nisi.

9.  Ps said that Father had substantial assets when he passed away in 2002. Among them were some stocks and cash in Taiwan, which did not feature in Ps’ complaints here. The main assets in the Father’s estate consisted of 16 pieces of land in Taiwan - 8 of which were in Taipei City and the other 8 in Yilan City, and some of them jointly owned with others, and 2 other real properties, one in Taipei City and the other in New Taipei City (all together “the Taiwan Properties”)[3].

10.  Ps alleged that the Siblings would have been entitled to share Father’s estate equally with Mother, but at the time D said to them that under Taiwan law, inheritance tax would be avoided or saved if the Siblings waived their inheritance in favour of Mother, which the Sibling agreed and did, with a common understanding that upon Mother’s passing, the Siblings would effectively be receiving their respective share in Father’s estate through being distributed a share in the Estate. Ps’ now alleged that what D had said about the tax saving or avoidance was in fact untrue.

11.  P2 then alleged that in late 2021, she by chance discovered through opening certain mail that D secretly had made a guardianship application in or around September 2021 for D to be appointed Mother’s guardian on the basis that Mother was diagnosed with mixed-type dementia with psychosis and on the basis of a lot of false information provided by D to the social worker compiling the Social Enquiry Report for the guardianship application.

12.  P2 then associated the guardianship application with (a) Mother’s refusal to go to Taiwan with P1 and P2 earlier, but went with D to Taiwan from December 2021 to January 2022 to receive approximately TWD22,000,000 of proceeds of sale of some of the Taiwan Properties, and (b) when Mother was in Taiwan on that occasion, numerous “suspicious transactions” were made from Mother’s account in Taiwan – 3 totalling TWD 6 million to one Guo Qiong Zhang (“Guo”), 4 totalling TWD 4 million to apparently an account in the joint names of Mother and D, and HK$453,000.50 to Mother and D’s joint name bank account in Hang Seng Bank in Hong Kong bearing account no 9290000059 (“the Joint HSB Account”).

13.  There was also the allegation from P1 that D told him during an argument that Father in fact had a Will in which all his assets were bequeathed to D, and that when P1 asked D to produce the Will, D said that she could not as the Will was kept by a distant relative.

14.  Thus and putting all these together, Ps’ allegations, as I understand them, were that D schemed to misappropriate or embezzle the Taiwan Properties (or their proceeds) to deprive Ps their rightful share. Against these allegations is Ps’ main complaint regarding D’s failure to furnish a complete and accurate account of the Estate - that the Taiwan Properties (or their proceeds) were not included in the accounts supplied by D.

15.  D in her 1^st affirmation filed on 11 October 2023 (“D1^st”) refuted and responded to Ps allegations one by one, including explaining the reason for applying for the guardianship and that the application was in fact later abandoned for a good reason.

16.  Relevantly, she said that the real properties in Taiwan were sold for TWD22,300,000 and the proceeds after netting expenses and tax amounted to TWD21,046,103, of which TWD10,000,000 had been distributed to the Siblings, TWD8,500,000 were used to repay debts owed by Father to Guo, and the remainder (TWD2.5 million odd) was paid to Mother. D exhibited certain documents relating to the land sales and the bank statements in support.

17.  Pursuant to one of the directions of this Court given on 3 October 2024 for Ps to file an affirmation to clarify Ps stance in respect of the Taiwan Properties (including proceeds derived therefrom), Ps filed P2’s 5^th affirmation on 3 January 2025 in which she stated in §3 in no uncertain terms that:

“After further investigation, it has been found that the assets in Taiwan have been distributed to all the beneficiaries. It is my belief that there is nothing else that can be distributed in respect to the real property in Taiwan of [Father] after further inquiry”[4].

18.  Thus, Ps confirmed that all these direct and indirect and rather serious allegations against D relating to the Taiwan Properties and their sale proceeds were completely unfounded. And in my view, as such they ought not have been made in the first place.

19.  It also follows that Ps’ complaint that D failed to include the Taiwan Properties and/or their sale proceeds in the accounts of the Estate as part of the assets was likewise completely unfounded.

Accounts of the Estate furnished and disclosures made by D prior to and since the issuance of the OS

20.  Ps complained that despite demands by Ps’ solicitors’ letters dated 21 November 2022, 9 and 14 January 2023, 10 February 2023 and 13 March 2023 and 11 April 2023 for a copy of the Schedule of Assets and Liabilities of the Deceased at the date of death D affirmed to when applying for probate, D’s solicitors only supplied Ps’ solicitors a copy (which was dated 8 July 2022) by D’s solicitors’ letter dated 2 May 2023. Ps’ complaint in this regard is that there was undue delay.

21.  There was also the side complaint that Ps’ requests were refused with replies suggesting that the requests were wrongly made. It seems to me regrettable that in D’s solicitors’ letter dated 13 January 2022, the solicitors used unnecessarily strong and contentious words like “frivolous and vexatious” and “oppressive” to describe Ps’ requests. These wordings further fueled the distrust between the parties.

22.  In the said Schedule of Assets and Liabilities, the only asset of the Estate listed was a flat in Hong Kong known as Flat C, 10th Floor, Cheong Fu Mansion, Nos 2/6 Fife Street, Kowloon (“the Mongkok Property”). The said Schedule stated that the Estate owed D the Alleged Debts.

23.  In D1^st, in support of D’s case of the Alleged Debts, D deposed to the various social welfare money Mother had been receiving (which were in meagre amounts), but at the same time Mother enjoyed a comfortable upper middle class lifestyle.

24.  Concerning the details of the Alleged Debts, in D1^st, D:

(a)  provided 3 tables in exhibit “KYW-2”, respectively under the headings of “醫療費用”, “日常雜項” and “臺灣雜費” – setting out in them item by item with descriptions Mother’s expenses she said she paid for, which respectively totalled to HK$1,185,151.74, HK$212,752 and TWD472,110 (converted into HK$118,027.50);

(b)  by exhibit “KYW-3”, “KYW-4” and “KYW-5”, provided 3 bundles of invoices and receipts supporting the respective expenses listed in the tables entitled “醫療費用”, “日常雜項” and “臺灣雜費”; and

(c)  by exhibit “KYW-6”, provided a table describing and itemizing Mother’s funeral expenses totalling HK$117,050; and by exhibit “KYW-7”, produced a bundle of documents in support of the said funeral expenses.

25.  In compliance with the order of Master J Wong dated 8 February 2024 to furnish a full account of the Estate, D filed her 2^nd affirmation on 29 April 2024. There, D essentially presented the information she provided in D1^st in a tidier fashion. The only further information added concerning the account of the Estate was that she listed the repairs and maintenance expenses of the building of which the owner of the Mongkok Property was to pay a share, and which was paid by her between 7 November 2023 and 25 January 2025 totalling HK$176,000.

26.  Upon Ps’ complaint that D had not produced the statements of bank accounts of which Mother was the sole or joint holder and pursuant to my directions given on 3 October 2024, D by her 5^th affirmation filed on 7 January 2025, deposed that the following 3 bank accounts were the only bank accounts in which Mother had been a holder and she produced their bank statements:

(a)  臺灣世華銀行account no. 000267-4-018843-1 in Mother’s sole name (“Account 1”) covering the period between September 2010 to January 2022 showing that there remained the balance of TWD240,489 at the time of Mother’s death;

(b)  Hang Seng Bank account no 024-283-6305074 in Mother’s sole name (“Account 2”) covering the period between October 2017 to July 2022 showing that there remained the balance of HK$35,575.06 at the time of Mother’s death; and

(c)  the Joint HSB Account covering the period between August 2019 to July 2022 showing that there remained the balance of HK$7,127.72 at the time of Mother’s death.

27.  According to D, the practice of her former solicitors’ firm was intervened by the Law Society in late April 2025, and thereafter she engaged her present new team of lawyers. Per their advice, she filed her 8^th affirmation in which she deposed:

(a)  Account 1 was closed by P2 and the balance was withdrawn by her;

(b)  The balance of HK$35,575.06 remained in Account 2 was used to pay certain utilities fees and part of the maintenance costs of the Mongkok Property;

(c)  The balance in the Joint HSB Account belonged to D after Mother passed away; and

(d)  A detail account of the proceeds of the sale of the Mongkok Property from the date of the completion of the sale on 9 September 2024 to the date of the affirmation, and in which bank these proceeds have been kept.

Sale of the Mongkok Property and interim distribution

28.  The Mongkok Property was sold for HK$4,250,000 in September 2024. P2 complained that she has not been informed or consulted prior to the sale and D made the sale while the parties were still engaged in this piece of litigation. However, there is no complaint that sale of the property was not an appropriate act of administration or that the price fetched was not a fair market price.

29.  On 14 September 2024, D by hand sent a letter to Ps’ solicitors’ office[5] containing therein a table with calculations deducting from the net proceeds of sale of the Mongkok Property various expenses and debts (including the Alleged Debts) and a recommendation that there be an interim distribution of the remaining balance of HK$2,121,494.37. D also enclosed therewith the Completion Statement of the sale, invoice for the solicitors’ fee concerning the sale, the apportionment account, receipts for payments of management fees and receipts of instalments of the Mongkok Property’s share of the costs of repairs of the building.

30.  At the hearing on 3 October 2024, having heard parties who did not disagree, this Court gave leave to D to make an interim distribution to the Siblings of part of the sale proceeds in the sum of HK$2,121,494. On that occasion, D also gave an undertaking that she would not deal with or dispose of part of the sale proceeds in the sum of HK$1,890,000 unless with leave of court.

31.  In mid June 2025, HK$2,121,494 was distributed and each of the 4 Siblings was distributed HK$530,373.50 from the sale proceeds by way of interim distribution.

Remaining disputes

32.  There seems to be now only the following disputes concerning the Estate between the parties.

33.  The main dispute concerns the Alleged Debts. As mentioned above, in D1^st D has essentially already broken down the Alleged Debts and listed item by item with descriptions and exhibited thereto bundles of receipts. This Court therefore on 3 October 2024 directed P to file an affirmation responding to D’s tables by stating in respect of each item whether Ps still dispute the expense. The affirmation filed by P2 on 26 June 2025 in compliance exhibited tables in “KYH-32” in which the positions taken by Ps are (a) that though receipts were provided, there was no documents indicated that D herself paid for, say, the medical expenses, the funeral expenses, the instalments of repair costs, and such (b) the expenses incurred in Taiwan were all paid by Mother, and (c) as to items like camera, LV handbag, coffee machine, massage chair and such, that they were not part of the Estate.

34.  Concerning the balance in Account 1, Ps put D to prove that P2 actually closed that account and withdrew the balance without saying one way or another whether actually P2 did as D said. Concerning the balance in Account 2, Ps basically said that D should have taken into account the balance in the assets of the Estate and showed therein that part of the expenses have been paid therefrom. There is no dispute raised by Ps on the balance of the Joint HSB Account.

35.  Ps said that she “believed” that 10 pieces of jewelleries and 1 antique vase[6] belonged to Mother and should be part of the Estate. D in §33 of D1^st already stated item by item to whom each belonged and why, and that certain items were gifted by Mother on certain occasions and to whom they were gifted.

36.  In all, I think the disputes are limited in scope.

Remove D as Executrix?

37.  There is no dispute that under section 33(3) of the Probate and Administration Ordinance, the court has a discretion whether to remove one as the Executrix, but the court should only do so if satisfied that the due and proper administration of the estate and interests of the persons beneficially entitled to the estate so require it.

38.  Mr Chin put forth on behalf of Ps 4 grounds for removal. They are (a) overall conduct of D, (b) failure to furnish a perfect inventory and account, (c) D is in a position of conflict, and (d) “size and nature of estate”, in that the court should not give much weight on the small size of the Estate but D should be removed so that “Ps can ascertain the true value of the Estate in which further legal action will be taken against D”. In his Reply Submissions, Mr Chin stated that “Ps are now preparing to initiate a claim against D for possibly a breach of trust for possibly mishandling and misappropriating Mother’s Estate in addition to Mother’s finances when Mother was alive”[7].

39.  First, with Ps main allegations of foul plays on the part of D having now been confirmed to be completely unfounded, there remains little substance regarding this complaint that D failed to provide a perfect account by also including the Taiwan Properties and their sale proceeds therein. Ps since then shifted reliance onto the complaint that D failed to render a proper account by laying out the opening balance, including the capital assets, the closing balance, giving details of movements of assets, income and expenditure and giving details of the whereabouts of all the properties and supporting the account with documentary evidence (Ho Tung Ming Oscar v Ho Kook Shing [2021] HKCFI 1046, Wilson Chan J at §9).

40.  There is little dispute that such should be the requirement of a proper account. However, the consideration before me is whether D should be removed because she has failed to render an account in compliance with these requirements. In that regard, the size and complexity of the estate in question must be a very relevant factor. Evidently, the larger and more complex an estate, the more the fulfilment of those requirements would make the account a proper one, because failing which the account could not even be understood or followed, and the engagement of professional services would be justified for such a large estate. Conversely, the smaller and simpler the estate, the more the focus should shift to whether the essential information has indeed been provided. Here, the Estate turns out to be a most simple one, and of relatively small value.

41.  Concerning complaints that pertinent information and supporting documents have not been provided. On the main dispute of the Alleged Debts, D has already had in D1^st itemized and particularized the debts and exhibited the supporting receipts and documents by categories. The bank statements of Account 1 and Account 2 by now were also provided.

42.  I am of the clear view that D’s prior failure to provide the bank statements of the 2 accounts and include their (relatively minor) balances in the account, and the fact that D has not yet proffered documents (or evidence) showing that the expenses claimed in the Alleged Debts were paid by her own money rather than that of Mother’s was, in the circumstances, not sufficiently adverse conducts on her part justifying her removal. In this regard, I accept D’s explanation in her 8^th affirmation, that her previous solicitors had not adequately advised her concerning what it meant to render a full and accurate account of the Estate.

43.  Second, on the overall conduct of the parties. Ps complained about the contentious conducts on D’s part and stated that “D’s conduct and animosity against Ps has led to these very proceedings”[8]. I do not accept that statement. There evidently exist great distrust between the parties which I think is mutual. The conducts on both sides could be described as contentious; though I think on D’s side the contentious conducts were those contained in the solicitors’ letters refusing to provide Ps the said Schedule. On Ps’ part, I am very unimpressed with how Ps have blown up their case against D by raising against D various allegations of serious conducts which turned out to be completely unfounded “upon further investigation”. As I said, these ought not have been raised in the first place. Much costs and time have been wasted on these matters. I thus do not think Ps’ complaint of D’s conducts justifies D’s removal.

44.  Third, the only live disputes now are limited, and concern the Alleged Debts, and the jewelleries and a vase which P2 “believed” should be part of the Estate. If the parties could not resolve these disputes amicably. these disputes could and should be determined by an administration action under Order 85 of the Rules of the High Court.

45.  I do not accept Mr Chin’s submission that there is such a conflict of interest on D’s part that she should no longer be the Executrix. The case of Thian Sum v Yung Shui Tong [2019] HKCFI 2867 is clearly distinguishable, there the step mother defendant Administratrix claimed that she had a life interest in the real property which was the main asset in the estate, she therefore refused to administer the estate and DHCJ William Wong SC took the view that the parties’ such dispute could only be properly resolved by a writ action. Therefore, there was an evident and serious conflict of interest, and the administration of the estate required the defendant to be removed as Administratrix.

46.  Ps now say that they are preparing to initiate an action alleging breach of trust on D’s part in handling the Estate and in “mishandling and misappropriating Mother’s finances when Mother was alive”. Notably, such a claim has not been raised at all in any of the numerous affirmations filed by Ps and was only raised for the 1^st time in Ps’ Reply Submissions. Presently, Ps did not mention or refer to any material or evidence supporting such a claim. Suspected misconducts and possible claims are not sound basis to maintain a claim of conflict of interest, based on which to support removal.

47.  Fourth, I am completely unable to accept Ps submission that D should be removed so that “Ps can ascertain the true value of the Estate in which further legal action will be taken against D”. By now, there is no evidence before me to substantiate Ps’ suspicion that there are substantial assets in the Estate which have been hidden or embezzled by D. Such an intention by a beneficiary to “ascertain the true value of the Estate” based on his own suspicion that there should have been more assets in the Estate is not at all a ground for removing a personal representative.

48.  Lastly but importantly, as the Mongkok Property has been sold, what remains by way of administration is but the resolution of the said disputes which, if necessary, could and should be resolved by an administration action under O.85 in which D and Ps can equally ventilate their respective case, regardless of whether D or P2 is the Executrix.

49.  Thus, I am of the clear view that the due and proper administration of the Estate not only does not require D to be removed, but her removal would cause delay, additional expenses, and might even engender further disputes.

50.  In the premises, I dismiss Ps’ application to remove D as the Executrix.

Disposal and costs

51.  Save paragraphs 1 and 3 on which orders have been made, the remaining part of the OS is hereby dismissed. As these proceedings are hereby concluded and D is not removed, I hereby release D of the undertaken she has given to the court on 3 October 2024.

52.  On costs, I take the provisional views that (a) it has been reasonable and necessary for Ps to commence this OS to obtain, and Ps thereby obtained, a full account of the Estate, the itemized break-down of the Alleged Debts and the bank statements of Account 1 and Account 2, (b) however, a substantial part of their case was based on the unfounded allegations which substantially increased the costs and on which D essentially was successful in refuting, and on which Ps should pay D’s costs thereon (c) though D1^st essentially provided a sufficient version of the account and the break-down of the Alleged Debts, the bank statements of Account 1 and Account 2 were only provided under the 5^th affirmation of D filed on 7 January 2025, (d) I also take the view that after the 12 June 2025 hearing, Ps should not have further pursued their application to remove D, (e) due to the distrusting and contentious stance taken by Ps, it was reasonable for D as the Executrix, though the Estate is small, to seek legal service in connection with and for preparing the account and her such costs reasonably spent thereon should be paid by the Estate.

53.  Accordingly, in the exercise of my discretion on costs, I order, on nisi basis

(a)  D personally do pay Ps the costs of these proceedings incurred up to and including 12 June 2025, but taking into account the matter alluded to in §51(b) above – that Ps should not be entitled to recover the costs spent on the unfounded allegations but ought to pay D’s costs thereon, that in the round D should only pay Ps 35% of such costs, to be taxed on party and party basis, if not agreed;

(b)  Ps are not entitled to be reimbursed from the Estate the remaining 65% of such costs;

(c)  Ps personally do pay D the costs of these proceedings incurred from 13 June 2025 onwards, to be taxed on party and party basis, if not agreed; and

(d)  D be reimbursed by the Estate such costs as were reasonably spent on the preparation of the accounts of the Estate on trustee’s basis.

54.  This costs order nisi will become absolute in 14 days unless any party applies for variation within that time.

55.  Lastly, I thank Mr Chin, Ms Lau, Ms Ng and Mr Tang for their assistance.