CHEN CHERYL DEANNA v. CHEN PAK YIN STELLA

HCAP 16/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 16 OF 2008

____________

____________

____________

________________

D E C I S I O N

________________

1.  P and D were respectively applying for leave to appeal against a judgment handed down by this court on 18 November 2015 (“Judgment”).

2.  I shall adopt the same abbreviations as in the Judgment.

P’s Summons

3.  P issued her summons for leave to appeal on 1 December 2014, and in her summons, she had sought leave to adduce 20 documents per a list attached to her summons (“1^st List”).

4.  On 13 January 2014, P filed a “Notice of Appeal”, being her submissions on her application for leave to appeal, and a list of 17 documents was attached (“2^nd List”).

5.  At the hearing, P explained that the 1^st List was superseded by her 2^nd List.

6.  Out of the 2^nd List, item 1 was a court order dated 29 September 2014.  Items 2 & 3 were land registration records which bore a search date of 8 September 2014, which was prior to the hearing on 10 September 2014 leading to the Judgment (“10.09.14 Hearing”). Items 4–8 were affirmations and witness statements filed in court long before the 10.09.14 Hearing. 

7.  P in the end conceded none of the documents in the 2^nd List were “new “documents.

8.  Even though the court order dated 29 September 2014 was after the 10.09.14 Hearing, it was prior to the Judgment being handed down, and the court was well aware of the order and in fact referred to it in paragraph 9 of the Judgment.  None of the other documents in the 2^nd List were “new” documents/evidence which occurred after the 10.09.14 Hearing.  There were no special grounds as to why P should be allowed to “adduce” them. 

9.  At the hearing, the court had refused to grant “leave” as sought by P to adduce the documents in the 2^nd List.

10.  As to P’s grounds of appeal, the main headings were as follows:-

A. “Irregularity tainted”

B. “Unexplained Undue delay and Misapprehension of facts”

C. “Vague allegation on

(a) Deceased’s lost hand-written will

(b) P’s right to interest”

11.  To summarise, P’s proposed amendments in the RASOC were mainly in relation to :

(i) The Medical Evidence

(ii) The Nomination

(iii) The Alleged 2004 Hand Written Will

(iv) Setting out certain assets which should be excluded from the Deceased’s estate

12.  The paragraphs under Heading A were in relation to the medical evidence from P’s expert Dr Edmund Woo on the Deceased’s mental capacity.  D’s experts were a Dr Au-Yeung and a Dr Yu.  The experts’ joint report had already been filed.  What P was seeking to do in her Re-Amendment Summons was to simply set out relevant paragraphs and evidence of Dr Woo in his report in her proposed RASOC.  These were all matters of evidence.  It was not necessary for P to set out the evidence which was already contained in the expert’s report filed in court.

13.  Further, the so called “Secondary Evidence on the Deceased’s mental capacity” set out in P’s proposed RASOC were really P’s submissions on the evidence.

14.  Under Heading B, after hearing P’s submissions, I explained to P that the “unexplained long delay” referred to in paragraph 74 of the Judgment was not directed at her, or D, and the court was simply referring to the delay in the present action.  Further, the court clarified that in paragraph 21 of the Judgment, when referring to “at about end of February/early March 2014”, the court was referring to the filing of the listing questionnaires.  In any event, I am satisfied that there was no misapprehension of facts on the part of the court.

15.  Under Heading C, the court had in paragraph 69 of the Judgment stated that P’s allegations in relation to the Deceased’s lost 2004 Handwritten Will were vague, lacking in particulars, confusing and unsatisfactory.  I had explained in the Judgment why I was of this view.

16.  As for the new declaratory reliefs P had sought in her proposed RASOC, which included a declaration of the validity of the “Nomination of Beneficial Successor”, I had dealt with the Nomination in paragraphs 33 and 34 of the Judgment.

17.  So far as the declaratory reliefs in (d), (e) and (i) sought in the RASOC referred to in paragraph 31 of the Judgment, and the exclusion of various assets from the Estate, these should not be made in the present probate action.

18.  Leave to appeal under Order 59 rule 2B is not lightly granted.  Having considered P’s submissions, I am not satisfied that P’s appeal has a reasonable prospect of success, nor is there some other reason in the interest of justice why P’s appeal should be heard. 

19.  I decline to grant leave and dismiss P’s summons of 1 December 2014, with costs to D in any event, to be taxed if not agreed.

D’s Summons

20.  At the hearing, Mr Miu had produced a revised draft notice of appeal (“Draft Notice”) in order to include that the court had jurisdiction and power to discontinue/dismiss the present action under Order 76 rule 11, which was not dependent on s 36 of the PAO.

21.  D’s summons issued on 27 February 2014 for discontinuance/ dismissal and for an order for an independent accountant be appointed administrator, namely the Dismissal Summons, was stated to be made under Order 76 rule 11 of RHC and s 36 of PAO (Cap 10).

22.  At the hearing of the Dismissal Summons, Mr Miu’s skeleton submissions were mainly based on s 36 of PAO.  Based on my interpretation on what was said by A Cheung J, as he then was, in Re Estate of Ho Wai Man, I was of the view that D might not be able to rely on s 36 for herself to be passed over.  I had also expressed the view that what D was seeking in her Dismissal Summons was in effect a summary judgment, and that summary judgment was unlikely to be granted in cases where the testamentary capacity was in issue. 

23.  Mr Miu had referred this court to Sum Wan Piu Paul v Lau Siu Hong HCAP 3/2004, where Poon J had held that summary judgment under Order 14 could apply to probate actions.  Mr Miu, however, accepted that in that case, although testamentary capacity was raised on the defence, no evidence had been adduced in support.

24.  The present case is clearly different from Sum Wan Piu Paul.

25.  Under the 3^rd ground of the Draft Notice, Mr Miu submitted that although D did not expressly ask for an order that a grant of letters of administration be made to the independent accountant without the will annexed, ie on the basis of intestacy, this court had the power to make such a grant/order.  Again, this was not a matter in the Dismissal Summons, nor was this Mr Miu’s submission at the time of the hearing before this court. 

26.  As a result, this court did not consider any alternative order, other than that sought by D at that time.

27.  At the hearing for leave, Mr Miu highlighted that although the present action and HCA 59/2011 were ordered to be tried together, the standard of proof for the requisite mental capacity of the Deceased in the two cases would be different, and the dismissal/discontinuance of the present action would save time and costs.  Further, Mr Miu had submitted that he did not realize that the court had a problem in relation to jurisdiction/power under s 36 and he was only relying on s 36 for an order for the appointment of the independent accountant.

28.  Mr Miu reiterated that D no longer wanted to be the executor/administrator, and out of the other 3 siblings, Margaret had expressed no wish to be appointed, and brother Edward was a bankrupt and might not be suitable.  As for P, Mr Miu submitted she had rendered herself unfit due to conflict of interest, as she was claiming various assets should not be part of the Estate.

29.  Even though I did not specifically refer to Order 76 rule 11 (2) in the Judgment, I was of the view that what D was seeking in her Dismissal Summons was in effect a summary judgment, and  for all the reasons I set out in the Judgment, I had declined to make any orders any sought by D.

30.  Mr Miu had submitted that although in the present case, there was conflicting medical evidence, the issue of testamentary capacity could be ignored because the resolution of this issue would not affect the underlying issues of distribution and administration, and the court had also not considered the alternative order of granting Letters of Administration to the independent accountant without the will annexed.

31.  Mr Miu also submitted that if the present action were to proceed to full trial, there would be a real risk that the Deceased’s Estate might be ordered to bear the costs of the trial at the end of the day and this would not be of benefit to the Estate.  Mr Miu referred to the underlying objectives in Order 1A rule 2 in that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties.

32.  Having considered Mr Miu’s submissions, I am satisfied that the appeal has a reasonable prospect of success, and I am prepared to grant D leave to appeal and an order in terms of D’s summons issued on 1 December 2014.

Conclusion

33.  My order is thus  as follows:

(i) The plaintiff’s summons issued on 1 December 2014 be dismissed, with costs to D in any event, such costs to be taxed if not agreed;

(ii) An order in terms of paragraphs 1-3 of the defendant’s summons issued on 1 December 2014.