LILY CHEUNG v. CHEUNG WAI KOK AND ANOTHER

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 3 OF 2008

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BETWEEN

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D E C I S I O N

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1.  This is the plaintiff’s application against the 2^nd defendant for specific discovery for documents, photographs and other chattels or articles being deposited by the Deceased but later removed by the 2^nd defendant from the safety box held under the joint name of the Deceased and the 2^nd defendant with the Bank of China (“the Safety Box”), and consequential directions.

2.  The background leading to this application may be summarized thus.

Background

3.  The Deceased, then 86, suffered from a stroke on 3 July 2001.  She was admitted to hospital on the same day.  She had since become mentally incapacitated.  By order dated 23 October 2001, the 2^nd defendant was appointed her guardian under Part IVB of the Mental Health Ordinance.  By another order dated 5 November 2004, the Official Solicitor was appointed the committee of her estate under Part II of the same Ordinance.  On 15 March 2006, she died intestate.

4.  The plaintiff commenced the present proceedings on 11 March 2008.  She claimed to be the Deceased’s adopted daughter.  The adoption took place under the Chinese custom in 1951 in Hong Kong.  The 1^st defendant claimed to be the Deceased’s lawful husband, having married her in Shanghai on 18 March 1949.  The 2^nd defendant claimed that the Deceased adopted her as daughter in Nam Tung, Jiang Su Province, in 1984.  The 1^st defendant and the plaintiff took out an application for letters of administration in May and November 2007 respectively.  The parties are embroiled over the fight as to who is entitled to the Deceased’s estate and be granted the letters of administration.

5.  As between the plaintiff and the 2^nd defendant, the hotly disputed issue is their respective adoptive status.

Discussion

6.  The plaintiff alleged that back in 1967 the Deceased told her that she kept her personal valuables together with some important family papers and photographs evidencing her relationship with the plaintiff in her bank’s safe deposit box.  In about the end of 2004, the 2^nd defendant’s brother told the plaintiff that the Deceased had suffered from a stroke and was staying in an aged home.  She immediately called the 2^nd defendant and told her that the Deceased had kept some important family papers and photographs in her safety box and if she had accessed to it, she should return the articles to her.  The 2^nd defendant did not respond and hung up the phone.  In 2005, the wife of the 2^nd defendant’s brother called the plaintiff again, telling her that the 2^nd defendant had removed some important papers and photographs from the Deceased’s safety box and had them destroyed.

7.  The plaintiff’s solicitors then made enquiries with the 2^nd defendant’s, who stated in a letter dated 12 April 2006 that the Deceased died without leaving any safe deposit box opened either in her sole name or in the joint name of the Deceased and the 2^nd defendant. 

8.  The plaintiff’s solicitors then made enquiries with the Bank of China, which revealed that what the 2^nd defendant had said is not entirely correct.  For in fact, the Deceased and the 2^nd defendant opened the Safety Box in their joint name in 1996 and the 2^nd defendant had it closed in 2003.  (The fact that the Deceased and the 2^nd defendant had opened the Safety Box was not revealed by the 2^nd defendant in the application for the guardianship order : see the social enquiry report dated 3 October 2001.  On the materials before me, the 2^nd defendant has not offered any explanation for the omission.)  The track records of the Safety Box showed that the Safety Box was solely assessed by the Deceased between 27 November 1999 and 1 December 2000.  It was then solely assessed by the 2^nd defendant on 18 July 2001 (that is, 15 days after the Deceased’s stroke), 24 July 2001 and 12 April 2003.

9.  Further correspondence between the solicitors ensued, which cumulated in the present summons taken out by the plaintiff on 7 June 2010.

10.  In her 1^st affirmation dated 29 June 2010, the 2^nd defendant listed out the various items that she had collected from the Safety Box, which did not include any of those sought by the plaintiff.  The plaintiff pressed on with further correspondence by her solicitors and a further affirmation.  Then the 2^nd defendant filed her second affirmation on 2 August 2010, categorically stating :

“3. I would like to make it clear once and for all that there were and are no such family documents and/or photographs evidencing the Plaintiff’s alleged adoptive relationship between the Deceased and the Plaintiff ever in my possession, custody and control. I have never had such family documents and photographs in my possession, custody and control, whether in the Safety Box or otherwise. I confirm the contents of my Solicitor’s said letter dated 21^st July 2010.”

11.  Since it is trite that the opposing party’s affidavit as to whether he had or has in possession any documents sought is conclusive, the 2^nd defendant’s 2^nd affirmation should bring an end to the present application.

12.  However, the plaintiff still pressed on.  Hence today’s hearing.

13.  In my view, even if the plaintiff is not content with what the 2^nd defendant has alleged in her 2^nd affirmation, given the conclusiveness of the evidence, the matter must now stop here.  Any order compelling the 2^nd defendant to make discovery, which she would do by repeating what she has already said in the 2^nd affirmation, is meaningless and a waste of time and costs.  In short, the plaintiff is not entitled to the specific discovery sought or any consequential directions for filing of further witness statements to deal with the events relating to the Safety Box.  Even if the request for the consequential directions is to be treated independently, this is not the appropriate occasion to make any direction because the 1^st defendant should also be heard on this matter.

14.  For the above reasons, I will make no order on the plaintiff’s summons.

15.  What remains is the question of costs.  In my view, the plaintiff was initially entitled to seek specific discovery.  The way how the 2^nd defendant dealt with the Safety Box and the plaintiff’s request for the documents sought provided a proper basis for the application.  But when the 2^nd defendant filed the 2^nd affirmation, she should have withdrawn the summons.  It is wrong for her to protract and to bring the matter before this court for substantive argument.  In the circumstances, the plaintiff shall have the costs of the summons before and up to 2 August 2010 but the 2^nd defendant shall have the costs thereafter including the costs of today’s hearing.  Both sets of costs are to be paid forthwith and to be taxed on a party and party basis if not agreed.

16.  To expedite the proceedings, I will direct the parties to approach the listing officer within the next 14 days for the purpose of fixing a case management conference.