CHOW SHUN YUNG v. ETHEL LEW AND OTHERS

[English Translation – 英譯本]

HCAP 6/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. HCAP 6 OF 2005

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BETWEEN

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HCCA 780/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CAVEAT NO. HCCA 780 OF 1998

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BETWEEN

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(Consolidated Hearing)

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JUDGMENT

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Summonses

1. This Judgment deals with 5 applications by way of summonses, 3 of which are taken out in HCAP 6/2005 and the remaining two in Caveat No. HCCA 780/1998. Of these 5 applications, the most significant one is the application by the 3 Defendants in HCAP 6/2005, made by summons dated 28 July 2005, to strike out the Statement of Claim and dismiss that action. To this application I shall first turn.

Factual background

2. The factual background to the dispute among the parties can be summarized as follows.

3. Madam Hsu Chung Cheng (hereinafter “Madam Hsu”) passed away in Shanghai on 13 November 1997. She had 3 children, namely Wei Pih Stella (hereinafter “Pih”), Ethel Lew (hereinafter “Lew”) and Chow Shun Yung (hereinafter “Chow”). Pih, who was born in Shanghai in 1930, is the child of Madam Hsu and one Pih Gao Qing; Lew and Chow, who were born in Shanghai in 1937 and 1942 respectively, are the children of Madam Hsu and one Zhou Wen Rui. Shu Yi Yung (hereinafter “Shu”), the 3^rd Defendant in HCAP 6/2005, is Madam Hsu’s niece.

4. Chow’s case in HCAP 6/2005 is in essence as follows: his mother died intestate in Shanghai in 1997, but she left movable properties in Hong Kong and Shanghai. Pursuant to instructions from Lew and Pih, Shu “unlawfully disposed of” the entire estate of the deceased in her Shanghai residence. Chow alleges that Shu “dishonestly opened the deceased’s safety box at a bank in Shanghai and removed therefrom a large amount of cash and jewellery” and “secretly smuggled [the properties] to Hong Kong” on the late night of 18 November 1997: see paragraph 7 of the Statement of Claim. Chow further alleges that those properties which were secretly removed have been appropriated by Lew and Pih.

5. The parties have commenced litigation and proceedings in the courts in Hong Kong and Shanghai in respect of the administration of and succession to the deceased’s estate.

6. On 26 June 1998, Chow applied to this Court for grant of letters of administration (HCAG 4902/1998).

7. On 24 September of the same year, Pih and Lew jointly filed a caveat (HCCA 780/1998).

8. On 12 October 1998, Chow issued a warning against the said caveat.

9. On 17 October 1998, Pih and Shu jointly filed an Appearance to Warning.

10. On 21 October 1998, Chow issued a summons applying for an order that the caveat filed by Pih and Lew was to cease effect immediately. In the affirmation in support of the application, Chow stated Pih directed Shu to carry out the said unlawful acts in respect of Madam Hsu’s estate in Shanghai. Chow also alleged that Pih was not a “legitimate daughter” of Madam Hsu.

11. In November 1998, Pih filed an affirmation of one Zhu Zhi Wen dated 11 November 1998. Pih and Shu also filed their affirmations. These affirmations responded to the allegations made by Chow in his affirmation, particularly in respect of the mother-and-daughter relationship between Pih and Madam Hsu.

12. On 16 November 1998, Pih and Lew issued a summons seeking an order appointing them as administrators of the deceased’s estate.

13. On 20 November 1998, having heard the parties’ applications, Master Lok ordered that Pih and Lew apply jointly with Chow for grant of letters of administration.

14. Nevertheless, Chow, Lew and Pih failed to reach any consensus on issues such as whether Pih was the legitimate daughter of the deceased and the size of the estate. For this reason, the parties did not apply jointly for letters of administration in accordance with Master Lok’s order. On 9 December 1999, upon application by Chow and in the absence of opposition by the lawyer acting for Pih and Lew, Master Ho ordered that Master Lok’s order be set aside. In other words, the question of who was to apply for appointment as the administrator of the deceased’s estate was left in abeyance.

15. On 9 April 2001, the parties attended a hearing before Master Wong with a view to resolving the above question. Having read the relevant affirmations and heard the parties’ submissions, Master Wong made a decision on the same day as to who was to become the administrator of the estate. The Master ordered that Lew be appointed as the administrator of Madam Hsu’s estate.

16. Neither Chow nor any other person has ever appealed against Master Wong’s order.

17. However, despite Master Wong’s order, Lew was unable to obtain a grant of letters of administration in her application for grant (i.e. HCAG 7142/2001). This was because Chow refused to withdraw the caveat that he had filed in respect of the administration of the deceased’s estate (HCCA 422/1998). On 15 July 2002, Pih and Lew jointly applied to the court for an order that the caveat filed by Chow in HCCA 422/1998 was to cease effect. The court gave certain directions regarding the hearing of that application.

18. Events took another turn on 28 June 2005, when Chow commenced a probate action against Lew, Pih and Shu (i.e. HCAP 6/2005). As mentioned above, by a summons dated 28 July 2005, the 3 Defendants applied for an order striking out the Statement of Claim and dismissing that action. As regards the application made by Lew and Pih by way of summons on 15 July 2002 in respect of the caveat filed by Chow (HCCA 422/1998), the court ordered that the hearing of the application be adjourned sine die and be restored only after the court delivered judgment in HCAP 6/2005. The summons of 15 July 2002 is also one of the matters to be dealt with in this Judgment.

Relief sought in HCAP 6/2005

19. The Statement of Claim in the probate action shows that 5 causes of action are being relied on by Chow in support of his claim. I shall deal with these causes of action in turn. The relief sought by Chow against the Defendants as stated in the Statement of Claim is detailed below:

(a)     Caveat HCCA 780/98 to cease effect immediately upon expiry;

(b)     The stay of the Plaintiff’s application HCAG 4902/98 be lifted and the Plaintiff be granted letters of administration of the deceased’s estate; alternatively, HCAG 4902/98 be dismissed and an official administrator be appointed as administrator of the deceased’s estate;

(c)     Master Wong’s order appointing the 1^st Defendant as administrator of the deceased’s estate be set aside and the 1^st Defendant’s application HCAG 7142/01 be dismissed;

(d)     An order be made declaring that the 2^nd Defendant does not have any beneficial interest in the deceased’s estate or does not enjoy equal priority with the Plaintiff in succeeding to the deceased’s estate;

(e)     The 2^nd, 3^rd and 1^st Defendants to compensate the Plaintiff for economic loss and personal harm suffered by him in undergoing the estate procedure;

(f)      Other relief and remedies; and

(g)     The Plaintiff’s costs be paid by the 2^nd, 3^rd and 1^st Defendants in equal shares, such costs to be assessed on an indemnity basis.

20. I now deal in turn with the 5 causes of action relied on by Chow.

HCAP 6/2005: First cause of action

21. The first cause of action is as follows:

The first cause of action is that the Plaintiff’s prior right of succession has been infringed upon: Prior to administration of the estate being granted, the 1^st, 2^nd and 3^rd Defendants unlawfully conspired to appropriate the entire estate of the deceased, causing prejudice to the Plaintiff’s beneficial interests therein. Furthermore, the 1^st and 2^nd Defendants issued a summons on 2 March 2004, applying to dismiss the Plaintiff’s application HCAG 4902/98. The Plaintiff is the sole legitimate son of the deceased and the only person in Hong Kong who has the prior right to lawfully succeed to the deceased’s estate. At law, the Plaintiff enjoys absolute priority in performing the duties of an administrator of the estate by going through procedures including the ascertainment of estate, payment of tax, examination and approval by the court, collection and distribution. Although the 1^st Defendant and the Plaintiff have equal right of succession, the 1^st Defendant flouted the law and, in a conspiracy with the 2^nd Defendant and remotely from the USA, directed (accepted and affirmed) the 3^rd Defendant to unlawfully appropriate the entire estate. Such act of appropriation was obviously in conflict with the role, duties and interest of an administrator. Furthermore, the 1^st Defendant, who resided in the USA, made the application 3 years after the Plaintiff made his application, and in particular, in the affirmation in HCAG 7142/01, the 1^st and 2^nd Defendants conspired to defraud the court by deliberately making a false statement that the deceased Hsu Chung Cheng had never been in any marriage (concubinary relationship) in her whole life (1989). The statement was made with the intention of assisting the 2^nd Defendant in obtaining one-third of the estate. The 1^st Defendant disregarded the factual history and insulted her own mother (the deceased Hsu Chung Cheng). She has lost the integrity which is a minimum requirement of a decent human being and does not deserve to become an administrator of the estate.

22. Leaving aside for the time being the allegations of conspiracy to defraud and misconduct on the part of Lew, the first cause of action is mainly based on Chow’s allegation that, unlike Lew and Chow, Pih is not a daughter by marriage of Madam Hsu, and hence does not have the right to succeed to the estate and lacks the capacity to be appointed as an administrator of the estate.

23. At the present hearing, Chow clearly accepted that Pih was born of Madam Hsu. What he contended is that Pih is merely Madam Hsu’s illegitimate daughter rather than her legitimate daughter or daughter by marriage.

24. Chow alleges that, as Madam Hsu had never had any marriage or concubinary relationship with Pih Gao Qing, Pih is Madam Hsu’s illegitimate daughter. As such, and in the absence of any will made by Madam Hsu, Pih is not an issue of Madam Hsu under the Intestates’ Estates Ordinance (Cap. 73 of the Laws of Hong Kong) and is therefore not entitled to succeed to Madam Hsu’s estate (Chow submits that he and his younger sister Lew are in a different position: as Madam Hsu was a concubine of their father Zhou Wen Rui, they are Madam Hsu’s children by marriage. It is not necessary for me to make any comment in this respect).

25. It is not in dispute that, according to the above Ordinance, a child by marriage of an intestate is an issue of the intestate and is entitled to succeed to the intestate’s estate. The dispute among the parties is: is an illegitimate child also an issue of the deceased who enjoys the right of succession?

26. In my view, except where an intestate passed away before 19 June 1993, the answer to the above question is in the affirmative. This is because section 3 of the Parent and Child Ordinance (Cap. 429 of the Laws of Hong Kong) provides as follows:

General Principle in relation to Illegitimacy

(1)        In any —

(a)     Ordinance or publication of the Government in the Gazette having legal effect (whenever enacted or published); or

(b)     other instrument or document, made after the commencement of this section,

references (whether express or implied) to any relationship between 2 persons shall, unless the contrary intention appears, be construed without regard to whether or not either of them, or any person through whom the relationship is deduced, is or was at any time an illegitimate person.

(2)        The use, without more, of the word ‘heir’ or ‘heirs’ in a disposition by will does not show a contrary intention for the purposes of subsection (1).

(3)        Notwithstanding any rule of law, a disposition made by will executed before the commencement of this section shall not be treated for the purposes of subsection (1) as made after that commencement by reason only that the will is confirmed by a codicil executed after that commencement.

(4)        Nothing in this section shall affect any rights under the intestacy of a person dying before the commencement of this section.

27. The above Ordinance came into effect on 19 June 1993.

28. In other words, as far as the distribution of the estate of an intestate who passed away on or after 19 June 1993 is concerned, in interpreting the relevant provisions of the Intestates’ Estates Ordinance, the word “issue” should be construed to include both legitimate and illegitimate children and direct descendents of the deceased. In my view, no contrary intention appears in the relevant provisions so as to render the provisions applicable only to legitimate children and descendents.

29. As Madam Hsu passed away in 1997, both legitimate and illegitimate children of hers enjoy equal right to succeed to her estate under section 4(5) of the Intestates’ Estates Ordinance (both Pih Gao Qing and Zhou Wen Rui passed away long ago).

30. In other words, even assuming that Pih is an illegitimate daughter of Madam Hsu and that Lew and Chow are her legitimate children, the three of them equally enjoy the right to succeed to the estate.

31. This being the case, the premise on which Chow’s first cause of action is based cannot be sustained. Chow’s claim on this basis is frivolous or vexatious and should be struck out.

32. However, at the hearing, Chow also put forward a fall-back argument that, even assuming that an illegitimate child also had the right to succeed to an intestate’s estate, this would be of no assistance to Pih’s case. Chow submitted that Pih was brought up by Madam Hsu until 1948 when her family underwent drastic change as her husband Zhou Wen Rui ran into some trouble. As a result, Madam Hsu “returned” Pih to her natural father Pih Gao Qing, who then “adopted” her and changed her name from Zhou Wen Hua to Pih Wei. In 1952 she was brought from Shanghai to Hong Kong and settled down in Hong Kong thereafter.

33. Chow argued that, given Pih was adopted by her natural father Pih Gao Qing, she should be regarded as the daughter of the adopter Pih Gao Qing and not the daughter of any other person (including Madam Hsu), and on this basis, Pih is not entitled to succeed to Madam Hsu’s estate as her illegitimate daughter. In support of his argument, Chow relied on section 2(2)(c) of the Intestates’ Estates Ordinance, which provides that a person adopted under an adoption made in Hong Kong in accordance with Chinese law and custom before 1 January 1973 shall be treated as the child of the adopter and not as the child of any other person, as the basis of his interpretation of the relevant provisions regarding the status of the adopted person.

34. Chow further argued that, by reason of the adoption as stated above, Pih is a member of the family of Pih Gao Qing and not a “child of common family” of Madam Hsu within the meaning of paragraph 2 of Schedule 1 to the above Ordinance, and therefore Pih is not entitled to Madam Hsu’s estate.

35. I do not accept Chow’s argument. First, he alleges that Pih was adopted by her natural father Pih Gao Qing in accordance with Chinese law and custom and hence should be treated as his daughter and not Madam Hsu’s daughter. The applicable Chinese law and custom in this respect is of course a matter of expert evidence, but I have never heard of anything in Chinese law and custom under which a man would adopt his natural albeit illegitimate daughter as daughter. In other words, an adopted person must be a child born of another person and not the natural child of the adopter himself, whether or not the child is legitimate. Now that Chow has raised this startling allegation, he bears the burden of establishing the allegation by adducing the basic material and expert evidence on the relevant Chinese law and custom.

36. I have not overlooked the fact that I am dealing with a striking-out application and that no order for striking out should be made if the Plaintiff has an arguable case. Nevertheless, in the circumstances as stated above, Chow should have adduced at least the basic material or expert evidence which serves to support his allegation regarding adoption under the relevant Chinese law and custom. Chow has, however, not filed any information or expert evidence in that respect.

37. This being the case, Chow’s allegation is unsupported by any basic evidence and in my judgment cannot be considered arguable.

38. Second, Chow alleges that Pih became the adopted daughter of his natural father Pih Gao Qing. In my view, even if this were true, it would not mean that Pih was accordingly not Madam Hsu’s natural (illegitimate) daughter. I agree that, if such adoption did exist at law, then, as far as the identity of Pih’s parents is concerned, Pih Gao Ping as the adopter should be treated as Pih’s father by adoption, and no other person could possess the identity of Pih’s father at law. This, however, does not mean that at law another person – certainly not Pih Gao Qing – would also become Pih’s mother. In other words, even if the alleged adoption did take place, Madam Hsu would still be Pih’s mother at law. 

39. In this connection, it should be noted that Chow has never alleged that Pih Gao Qing’s wife had also adopted Pih as daughter and, as a result, both of them became Pih’s parents by adoption and Madam Hsu could no longer be regarded as Pih’s mother.

40. As Chow’s allegation goes no further than that Pih had been adopted by Pih Gao Qing as his daughter, I am of the view that, in any event, Madam Hsu was still Pih’s mother at law. Upon Madam Hsu’s death, Pih as her illegitimate daughter became entitled to succeed to the estate.

41. Third, section 2(2)(c) of the Intestates’ Estates Ordinance only applies to an adoption that took place in Hong Kong. However, there is nothing in Chow’s case and evidence to show positively that Pih Gao Qing adopted Pih in Hong Kong in accordance with Chinese law and custom. On the contrary, on the available evidence, the alleged adoption took place in Shanghai.

42. Fourth, adoption is an allegation which has to be specifically pleaded and particularized. It is clear from case law (Official Administrator v. The Luk Hoi Tong Co. Ltd. [2005] 3 HKC 615, at paragraph 42) that an adoption under Chinese law and custom is not valid unless an adoption ceremony and ancestral worship have taken place. These are matters which have to be specifically pleaded and particularized. Chow has never done so in respect of his allegations in his pleadings and other documents.

43. Turning to Chow’s argument of “child of common family” under paragraph 2 of Schedule 1 to the Intestates’ Estates Ordinance, I must point out that the provisions in Schedule 1 only apply to the right of succession of a concubine or child in a union of concubinage before 7 October 1971. As Chow alleges that Pih Gao Qing and Madam Hsu had never had any marriage or concubinary relationship, the provisions in Schedule 1 do not apply to Pih as their illegitimate daughter as far as her right to succeed to Madam Hsu’s estate is concerned.

44. For the above reasons, Chow’s allegations and arguments regarding Pih’s adoption by Pih Gao Qing and its effect on her right of succession as Madam Hsu’s illegitimate (but natural) daughter are in my judgment not arguable.

45. As regards Chow’s allegations in the first cause of action that Lew and Pih “conspired to appropriate” Madam Hsu’s estate and that Lew “flouted the law and, in a conspiracy with [Pih] and remotely from the USA, directed (accepted and affirmed) [Shu] to unlawfully appropriate the entire estate”, they will be addressed below together with Chow’s third cause of action.

HCAP 6/2005: Second cause of action

46. Chow’s first cause of action is as follows:

The second cause of action is that Master Wong’s order of appointment is void ab initio: Although on 9 April 2001 Master Wong appointed the 1^st Defendant as the administrator of the estate, the appointment is void ab initio. The first reason is that, prior to the probate action and in face of the heated controversy, Master Wong had no jurisdiction to appoint an administrator; the second reason is that, Master Wong had no jurisdiction to appoint the 1^st Defendant, being an individual who had not made an application, as the administrator; the third reason is that, without having disposed of a series of contention including Caveat HCCA 780/98 and application HCAG 4902/98, Master Wong had no jurisdiction to appoint an administrator.

47. In my judgment, the second cause of action is not arguable. As the Court of Appeal pointed out in paragraph 23 of its judgment (2 March 2006) in the case of Chow Shun Yung v. Wei Pih Stella (CACV 390/2004), there has been no appeal against Master Wong’s order appointing Lew as the administrator of Madam Hsu’s estate. That order is accordingly still valid. The same view was taken in paragraph 23 of the judgment (3 March 2006) in the case of Chow Shun Yung v. Shu Yi Yung (CACV 34/2005).

48. If Chow was aggrieved by Master Wong’s order, he could have appealed by summons to a judge pursuant to Rule 62 of the Non-Contentious Probate Rules (Cap. 10A of the Laws of Hong Kong). As Chow has not done so, Master Wong’s order remains legally binding on Chow, Lew and Pih.

49. Chow has put forward three reasons in purported support of his argument that Master Wong’s order is void ab initio. In my view, as Chow has not appealed against the order, the order must be valid and legally binding on him and the other parties to the case. Chow’s act of challenging the validity and binding effect of the order by means of fresh litigation infringes upon the principle of res judicata and constitutes an abuse of process. His claim should be struck out.

50. At the hearing, Chow also relied on section 6(1)(a) of the Probate and Administration Ordinance (Cap. 10 of the Laws of Hong Kong), which provides that the Register shall not make any grant under section 5 (which confers upon the Register the probate and administration jurisdiction in certain cases) in any case in which there is contention, until the contention has been disposed of.

51. In my view, similar to the reasons set out in the Statement of Claim, this new argument should be submitted to the judge on an appeal against Master Wong’s order and should not be raised by way of fresh litigation.

52. In purported support of the present probate action, Chow relied on a statement made by the Court of Appeal at page 8E of its judgment of 18 October 2000 in CACV 210/2000. The relevant passage (as amended by Corrigendum dated 25 October 2000) is reproduced below (the particular sentence that Chow relied on is highlighted in italics):

Although Mr Chow stated in his affirmation that he no longer disputes Madam Pih’s interest, such a concession is not unconditional. He only states in his affirmation that he does not at this stage dispute that issue. There is substantial contention between the parties over the contents and amount of the deceased’s estate (Mr Chow has provided three figures on the amount of the estate, namely over $200,000, over $300,000 and over $400,000; Madam Pih and Madam Lew, on the other hand, claim that the deceased’s estate in Hong Kong amounts to a mere $100 odd). This being the case, the dispute can only be resolved by way of a probate action. At the hearing, Mr Chow said he now agrees that Madam Pih has one-third interest. He also said that, if the court considered the caveat still effective, he would not commence a probate action. We of course hope that the parties can arrive at a settlement on the estate dispute, particularly in view of the limited amount of the estate in question. However, we have to deal with Mr Chow’s appeal, in which he seeks to set aside the order made by Chung J. It was only in response to the submissions of Mr Wong of Counsel that he conceded that Madam Pih has one-third interest. In such a case, we should proceed to determine his appeal instead of making other arrangements by reason of what Mr Chow said.

53. In my view, the Court of Appeal was merely saying that, if no agreement could be reached between the parties in respect of the extent and amount of the deceased’s estate, these disputes would in the end have to be resolved by way of litigation. It is true that the Court made mention of a probate action as a means of resolving the dispute between the parties. However, having carefully considered the dispute in and the facts of that case, I am of the view that the Court was actually saying that the dispute should be dealt with by way of an administration action in accordance with Order 85 of the Rules of the High Court (Cap. 4A of the Laws of Hong Kong). The reason is that the dispute related to the administration of the estate, not to the grant of letters of administration.

54. In any event, the above judgment of the Court of Appeal was delivered before Master Wong made the order appointing Lew as the administrator. As stated above, the order has not been set aside by any relevant party by way of appeal and is therefore legally valid and binding on the parties. Chow is not in a position to overturn, on the sole basis of one sentence in a meticulous judgment of the Court of Appeal, a binding and valid order made by a Master.

55. In any event, I do not accept the reasons for questioning Master Wong’s order as set out in Chow’s Statement of Claim and the fourth reason advanced by Chow at the hearing. In my judgment, Master Wong was entitled to deal with the dispute among Madam Hsu’s three children over the grant of letters of administration pursuant to Rule 25 of the Non-Contentious Probate Rules, and also to make an order appointing Lew as the administrator of Madam Hsu’s estate. In particular, Chow did not at that time allege any conspiracy or misconduct on the part of Lew (see below). And with Master Wong having heard and determined the dispute among the three persons over the grant in the way he did, the “contention” over the grant had been disposed of, and the Registrar was entitled to make a grant upon application pursuant to section 5 of the Probate and Administration Ordinance (in this respect, by reason of Chow’s intervention after Master Wong made the order, Lew has not been able to obtain a grant from the Registrar. This is a separate issue).

56. For the above reasons, Chow’s second cause of action is, as stated above, in my judgment not arguable.

HCAP 6/2005: Third cause of action

57. Chow’s third cause of action is as follows:

The third cause of action is that the Defendants abused the judicial processes in two jurisdictions and conspired to defraud the courts: The 1^st and 2^nd Defendants conspired to defraud the courts and abused the judicial processes in different jurisdictions. On the same day (16 November 1998) and in respect of the same claim, they initiated legal proceedings in the courts in the two distinct jurisdictions of Shanghai and Hong Kong, each applying to sever the estate. In the Hong Kong court, the 2^nd Defendant conspired with the 1^st Defendant to enter a caveat jointly on 24 September 1998, and on the following day, i.e. 25 September 1998, they unlawfully removed the deceased Madam Hsu’s estate from Hong Kong. They then jointly submitted an Appearance to Warning and jointly issued a summons applying to become joint administrators of the estate. They fraudulently represented to the court that there was no conflict in their interests and roles, in order that they could improperly obtain costs in the non-contentious or ordinary probate procedure and then jointly compel the Plaintiff to go bankrupt. In Shanghai, the 2^nd Defendant conspired with the 1^st Defendant to defraud the court by assuming antagonistic roles (plaintiff and defendant) and attempting to act in concert. In the end, they obtained a civil judgment on 16 August 2002 by which the 2^nd Defendant improperly obtained one-third interest in the estate.

58. As far as Chow’s allegation that Lew and Pih conspired to appropriate the estate is concerned, as the Court of Appeal pointed out in its judgments in the aforesaid cases of CACV 390/2004 and CACV 34/2005, Chow does not have the locus standi to commence proceedings in his personal capacity in order to claim assets in the estate or seek relief in respect of the alleged appropriation of the estate and its effect on his personal interest. Nor is he in a position to make such claims on behalf of the estate. He is merely a beneficiary of the estate and, as such, is only entitled to request the administrator to protect his interest.

59. Chow contends that the court should not have appointed Lew as the administrator and should instead have appointed him or the official administrator as the administrator (see relief item (b) set out above), and in support of such contention, Chow relies on the allegations of conspiracy to defraud and misconduct against Lew as stated in the first and third causes of action. In my judgment, these allegations are frivolous or vexatious and should be struck out.

60. On the available evidence and material, although the disputes among the parties arose soon after Madam Hsu’s death in 1997, Chow never raised any allegation of conspiracy to defraud and misconduct against Lew until the commencement of the present probate action on 28 June 2005. This contrasts sharply with the fact that Chow has since the very beginning made similar allegations against Pih and Shu. It should be noted in particular that the conspiracy to defraud and misconduct as alleged against Lew were not done on his own or with an unknown third party. As it stands, Chow’s case is that those acts were done jointly by Lew and Pih or done by Shu pursuant to their direction. This makes the situation all the more puzzling: from the very beginning to June 2005, why did Chow make those serious allegations against Pih and Shu but not Lew? And in making those allegations against Pih and Shu, why did Chow not mention Lew’s involvement in the alleged acts?

61. For example, at the hearing before Master Wong, Chow never made such serious allegations against Lew in support of his opposition to the appointment of Lew as the administrator. To cite another obvious example: in the two cases of HCA 1032/2004 and HCA 1461/2003 as well as the two appeal cases arising therefrom, namely the aforesaid CACV 390/2004 and CACV 34/2005, although Chow made allegations of conspiracy to defraud and misconduct against Pih and Shu respectively, he had never pointed out that Lew had participated in those serious and unlawful acts.

62. Of course I have not overlooked the fact that I am dealing with a striking-out application and that Chow’s claim should not be struck out if his allegations against Lew are arguable.

63. However, under the established general principles on pleadings, these serious allegations are not to be made casually. A party cannot plead such allegations unless he also sets out sufficient facts and particulars in support. See Armitage v. Nurse [1998] Ch 241, at 256F/G to 257D; ADS v. Wheelock Marden & Co. Ltd. [1994] 2 HKC 264 (Court of Appeal), at 269E to 270E/F.

64. Whether in the pleadings or in the other evidence or material filed with the court, Chow’s allegations of conspiracy, fraud and other misconduct against Lew are vague and imprecise and are not supported by sufficient facts, let alone particulars or evidence.

65. At the hearing, Chow submitted that he relied on the matters referred to in paragraph 3 of the Defence filed by Shu in HCA 1461/2003 in support of the serious allegations that he made against Lew. In the said paragraph 3, it was stated on behalf of Shu that the genuine details of how she dealt with Madam Hsu’s estate had been set out in the affirmation filed by her in HCCA 780/1998. Paragraph 3 went on to state that “Her acts were accepted and affirmed by the remaining beneficiaries, i.e. Wei Pih Stella and Ethel Lew, and she has no further information to provide”. In my view, the statement in paragraph 3 that Shu’s acts had been “accepted and affirmed” by Lew means at most that Shu’s alleged acts and approach in dealing with Madam Hsu’s estate had subsequently not been objected to by Lew or had even been agreed by him. Those acts of course did not include the unlawful acts that Chow alleges. Chow has misinterpreted what Shu stated in the above pleading by taking that statement to mean that Lew “remotely from the USA, directed (accepted and affirmed) [Shu] to unlawfully appropriate the entire estate”.

66. In any event, a short statement in Shu’s pleading is by itself far from sufficient in supporting the various serious allegations that Chow has made against Lew.

67. Furthermore, it is against Master Wong’s previous order for Chow to rely on those serious allegations in support of his claim against Lew, namely that the court should have granted letters of administration not to Lew but to Chow or the official administrator. As I have explained above, Master Wong’s order is still valid and legally binding on the parties. It is not open to Chow to rake up the past and challenge the validity of the order in the present proceedings. What he is doing constitutes an abuse of process.

68. For all the above reasons, Chow’s third cause of action is in my judgment not arguable.

HCAP 6/2005: Fourth cause of action

69. Chow’s fourth cause of action is as follows:

The fourth cause of action is that the Defendants failed to protect and appropriated the estate: When the deceased was critically ill, the 2^nd Defendant instructed one Wong Cho Fan, a relative of the 3^rd Defendant’s, to withdraw all the deposits of the deceased from her bank account and put the money in a safety box at the bank. On the fifth day following the deceased’s death, upon the 2^nd Defendant’s instruction, the 3^rd Defendant removed, without disclosing to the bank the deceased’s death and in the absence of any verifying officer, all the money and valuable properties (and possibly also the will) from the said safety box and secretly brought them to Hong Kong at night, and on the following day deposited them in a safety box under the name of the 3^rd Defendant at Hang Seng Bank. The 18 cartons of properties at the deceased’s residence, including furniture and electrical appliances, were also taken away by the 3^rd Defendant in their entirety upon the 1^st and 2^nd Defendants’ instruction. The deceased’s personal data including all identification documents, photo records and insurance policies was all brought to Hong Kong and hidden away by the 3^rd Defendant. In preparing the Checklist of Estate, the 3^rd Defendant deliberately concealed all valuable properties of the deceased that she had dealt with. On 25 September 1998, the 2^nd Defendant, without reasonable authority or reasonable excuse, unlawfully removed from Hong Kong the cash of approximately $180,000 and 48 pieces of jewellery which belonged to the deceased and which were under the 2^nd Defendant’s temporary possession. Subsequently, in the Summary Return of Estate submitted to the Estate Duty Office, the 1^st and 2^nd Defendant deliberately provided false information on the assets of the deceased Hsu Chung Cheng: principal value Nil.

70. I do not accept this cause of action.

71. As stated above, in CACV 390/2004 and CACV 34/2005, the Court of Appeal clearly held that Chow, as a beneficiary of Madam Hsu’s estate, had no locus standi to commence any proceedings in respect of any part of the estate in order to seek recovery, on behalf of himself or of the estate, of any asset that had allegedly been appropriated. In any event, Chow has not sought any relief in respect of the fourth cause of action.

72. As regards the allegations of conspiracy to defraud and misconduct against Lew which Chow relies on in support of his contention that the court should not have appointed Lew as the administrator and should instead have appointed him or the official administrator as the administrator (see relief item (b) set out above), these allegations are in my judgment frivolous or vexatious and should be struck out. I have thoroughly analyzed this issue in the context of Chow’s third cause of action and do not propose to repeat my analysis here.

73. For the above reasons, the fourth cause of action cannot be sustained and should be struck out.

HCAP 6/2005: Fifth cause of action

74. The final cause of action is as follows:

The fifth cause of action is that the Defendants have conspired to interfere with the estate procedure for as long as 8 years, as a result of which the Plaintiff has suffered economic loss and personal harm: The 1^st and 2^nd Defendants opposed the estate procedure, and when the Plaintiff applied for grant of letters of administration, the two Defendants jointly stayed the application by entering a caveat. On the following day, they unlawfully removed the deceased’s assets from Hong Kong. After one and a half month, on 16 November 1998, the 1^st and 2^nd Defendants applied to the courts in two different jurisdictions for an interest in the estate. They applied to the Shanghai court for equal division of the estate among the three persons and applied to the Hong Kong court for joint administration of the estate by the three persons. Over time, more than 100 hearings were held in the non-contentious or ordinary probate procedure. All this was done with a view to pressurizing the Plaintiff, exhausting his time, money and energy, and in the end compelling him to go bankrupt by reason of his inability to pay costs, thereby achieving the purpose for which the Defendants opposed the estate procedure in the first place. As a result of the Defendants’ conspiracy to interfere with the estate proceedings, the Plaintiff suffered all forms of pain during the 8-year period and has suffered economic loss and personal harm.

75. I do not consider this cause of action arguable in any way.

76. As the English Court of Appeal pointed out in its judgment in the case of Lonrho plc. v. Fayed (No. 5) [1993] 1 WLR 1489 (at 1505G/H), a litigant cannot institute fresh proceedings to claim costs that he could have claimed but had not successfully claimed in previous proceedings. In light of this principle, Chow should in my view have included in the previous proceedings a claim for the loss of time and money and any other loss that he had allegedly suffered. That said, the case must be either that he had not made such claim or that his claim had failed. This being the case, he is not entitled to renew his claim in the present probate action.

77. In any event, Chow has not cited any case law or other legal authority in support of this so-called final cause of action.

78. As a matter of fact, in respect of costs involved in previous proceedings, Chow did, in an action against Pih (HCA 4054/2003), add a claim for an order “divesting” Pih of her interest in previous costs orders made in her favour. The relevant Statement of Claim and Amended Statement of Claim were struck out by Lam J on 19 May 2004 on the ground that the claim was frivolous, vexatious and an abuse of process.

79. In my judgment, the so-called fifth cause of action in the present probate action is “old wine put in a new bottle” and cast in the same mold as the claim in the abovementioned case. The fifth cause of action is frivolous, vexatious and an abuse of process. It should therefore be struck out.

80. Chow contends that paragraph 17 of Lam J’s judgment lends support to his making the relevant claim by way of a probate action. However, the said paragraph 17 only states that “if Mr Chow thinks that the cause of action [that he relied on in that case] is related to probate and has to be resolved as such”, then he should commence a probate action in accordance with Order 76 (which governs probate actions) of the Rules of the High Court instead of seeking, as he did, an order divesting Pih of her interest in costs orders made in her favour in previous proceedings.

81. Chow has in my view misconstrued what Lam J said in his judgment. He was merely saying that, if Chow considered that the cause of action he relied on was related to probate and had to be resolved, then he should commence a probate action to that end. Lam J said the above in response to Chow’s submissions. I do not consider Lam J to be saying that those causes of action must become arguable once they were raised in a probate action.

82. As stated above, having considered Chow’s fifth cause of action, I do not find it arguable in any way.

HCAP 6/2005: Relief being sought

83. Now that I have addressed the 5 causes of action relied on by Chow, I shall, for the sake of completeness, deal in turn with the various forms of relief sought by Chow in his Statement of Claim.

84. Chow seeks an order that the Caveat (HCCA 780/1998) is to cease effect upon expiry (paragraph (a)). I fail to see any cause of action or basis that can be relied on to support the claim. In any event, the Caveat has evolved into the order made by Master Wong that remains valid and binding at law. In the circumstances, the relief being sought is of no assistance or relevance to the case.

85. As stated above, Chow seeks an order granting letters of administration to him or, alternatively, appointing the official administrator as the administrator (paragraph (b)). In view of my judgment on the relevant causes of action relied on by Chow, this claim must fail.

86. Chow seeks an order setting aside Master Wong’s order (paragraph (c)). As explained above, this claim is unsubstantiated and must also fail.

87. Chow seeks a declaration that Pih does not have any beneficial interest in Madam Hsu’s estate and does not enjoy equal priority with the Plaintiff in obtaining the grant (paragraph (d)). In light of my analysis of and judgment on Pih’s legal rights as Madam Hsu’s illegitimate daughter, this claim is groundless and cannot be allowed.

88. Chow claims against the Defendants for damages in respect of economic loss and personal harm allegedly suffered by him in undergoing the estate procedure (paragraph (e)). As stated above, there is in my judgment nothing in the so-called relevant cause of action, and therefore this claim cannot be allowed.

89. Chow also claims other relief and remedies as well as costs (paragraphs (f) and (g)). For all the above reasons, these claims must also fail.

HCAP 6/2005: Judgment on the striking-out application

90. For all the reasons set out above, I allow the Defendants’ striking-out application. In other words, I order that the Statement of Claim in HCAP 6/2005 be struck out and the action be dismissed.

HCAP 6/2005: Judgment on the remaining two summonses

91. I now turn to the remaining four applications by summonses.

92. I first deal with the two applications made by each of the Defendants by way of two summonses dated 24 April 2006 and 25 April 2006. These applications, which are framed on the same terms, are for an order dismissing Chow’s application for grant of letters of administration (HCAG 4902/1998) and directing the Probate Registry to proceed to deal with the application for grant of letters of administration in HCAG 7142/2001 which was made by Lew in accordance with Master Wong’s order.

93. For the reasons set out above, I consider the Defendants’ applications reasonable.  Accordingly, I order that Chow’s application for grant of letters of administration in HCAG 4902/1998 be dismissed. I also direct the Probate Registry to deal expeditiously with the application for grant of letters of administration in HCAG 7142/2001 which was made by Lew in accordance with Master Wong’s order of 9 April 2001.

94. Chow submitted that his application for grant of letters of administration has been stayed pursuant to the previous order. However, for the avoidance of doubt or any unnecessary obstruction that may arise in future, I have, as stated above, decided to dismiss Chow’s application.

HCCA 780/1998: Judgment on the two summonses

95. The fourth application is made in HCCA 780/1998 by summons dated 15 July 2002. By that summons, Lew and Pih apply for an order that, without affecting the other court orders, the Caveat filed by them in HCCA 780/1998 is to cease effect immediately so that Lew will not be hindered from applying to the Probate Registry for grant of letters of administration by way of HCAG 7142/2001 in accordance with Master Wong’s order.

96. Chow submitted that the Caveat ceased effect long ago.

97. For the avoidance of doubt or unnecessary dispute in future, I order that, without affecting any order previously made by the court (particularly Master Wong’s order) or any order made by me herein, the Caveat HCCA 780/1998 is to cease effect immediately.

98. The final application by summons is also made by Lew and Pih in HCCA 780/1998. They apply for an order allowing them to amend the aforesaid summons dated 15 July 2002. The amended summons, which was issued on 2 March 2004, aims to make an application in addition to the previous summons of 15 July 2002, namely an application for an order dismissing or disallowing Chow’s application for grant of letters of administration in HCAG 4902/1998.

99. As I have ordered that the said application by Chow for grant of letters of administration be dismissed, it is not necessary to proceed with this application for amendment of the summons. I do not propose to make any substantive order on this application.

Costs orders nisi

100. I shall make the following costs orders nisi. Unless any party applies to court within 14 days of the delivery of this judgment for variation of those orders, those orders shall become absolute upon expiry of 14 days.

101. In respect of costs in HCAP 6/2005, I make the following order nisi: Chow is to pay to Lew, Pih and Shu costs of the action, including costs of the striking-out application by summons dated 28 July 2005 and costs of the applications by two summonses dated 24 April 2006 and 25 April 2006 respectively.

102. I also make the following order nisi in respect of costs of the two applications by summonses in HCCA 780/1998: Chow is to pay to Lew and Pih costs of the application by summons dated 15 July 2002. I make no order as to costs of the application by summons dated 2 March 2004.

103. All the abovementioned costs are to be taxed if not agreed.