XCHRX Re Fong Iong

HCMP6014/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO.6014 OF 2001

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D E C I S I O N

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1. This is an action commenced by ex parte summons in which the six applicants seek a determination by the court as to whether, upon the true construction of sections 2 and 4(5) of the Intestate Ordinance, Cap.73 ("the Ordinance") and in the events which have happened, they are issues of Madam Fong Iong, deceased ("the Deceased") within the meaning of section 4(5) of the Ordinance.

Background

2. The background of this action, as appeared by the affirmation of Mr Li Kwok Yee, can be summarized as follows :

(1) The applicants are the children of Mr Li Wing Sum, deceased and Madam Wan Lai Heung, deceased.

(2) Madam Wan died in 1962. On 12 October 1969, Mr Li married the Deceased in Hong Kong. They had no children out of the marriage. Mr Li died intestate on 11 July 1976.

(3) The Deceased died intestate on 14 January 1997. The value of the Deceased's estate is estimated to be at $300,000. It is believed by the applicants that the Deceased had not given birth to any children.

(4) According to the applicants, the Deceased had during her lifetime treated them as her own children. The applicants also regarded and treated her as if the Deceased were their natural mother.

(5) Before her death, the applicants had taken care of the Deceased, including financially, and had also paid her living and medical expenses. The funeral expenses were also borne by the applicants.

The action

3. It is against this background and based on these facts that the present action was brought. The action boils down to asking the court to rule whether the applicants can be regarded as the "issues" of the Deceased so as to share in the estate of the Deceased.

4. The first and fundamental problem with these proceedings is its juridical basis. The action cites sections 2 and 4(5) of the Ordinance in its title. Section 2 is the interpretation section. The parts that may be relevant are sub-sections (2) and (3) that relate to the rights of an adopted person and the definition of a child or issue. Section 4(5) provides that if an intestate died leaving issue but no spouse, then the residuary estate would be held on statutory trusts for the issue. Clearly, these two sections do not confer any jurisdiction on the court to make a determination of the kind sought.

5. This action also does not come within either Order 76 or Order 85 of the Rules of High Court. Order 76 concerns probate causes and matters, but the present application is not made in the course of an application for grant of Letters of Administration. In any case, Order 76 requires the issue of a writ. As for Order 85, it enables an action to be brought for the determination of a question arising out of or related to the administration of estate. The applicants have not been entrusted with the task of administering the estate.

6. I am also unable to see how the inherent jurisdiction of the court can be invoked to entertain ex parte proceedings for the determination on whether the applicants are entitled to share in the estate of the Deceased. As Godfrey J (as he then was) observed in In re the estate of Yu Leung Fong (unreported) HCMP1130 of 1991 (albeit on another subject matter), depending on the nature of the problem, there are a number of different ways in which the court can resolve difficulties of the applicants. For instance, if the applicants were to apply for grant of Letters of Administration on the basis that they regard themselves as issues of the Deceased, but met with requisitions from the Probate Registry, they could then properly apply for directions either before the probate master or the probate judge. Alternatively, if after Letters of Administration were granted, they claim to be entitled to share in the estate, then the administrator can properly apply for a determination of their claims. There is, however, no inherent jurisdiction to hear ex parte proceedings of the kind herein.

7. Jurisdiction aside, it is not a case for an ex parte application. Counsel who is only instructed to argue these proceedings, submits that the application was made ex parte because there is no party to be served. There is no evidence before the court as to whether the Deceased was survived by her parent or any sibling. If so, these are interested parties and should be joined. If the Deceased was not survived by anyone entitled to share in her estate, then the official administrator is the interested party to be joined and/or served with these proceedings.

8. That would have been sufficient to dispose of the proceedings, but as submissions had been advanced on the merits of the application, I shall briefly state my view on it. Prior to 1995, section 2(2)(b) of the Ordinance provides that a child or issue for the purpose of the Ordinance shall mean "if that person is a female, a child of a valid marriage to which her last husband and another female were parties". The section was removed in 1995 by the Intestate Estates (Amendment) Bill 1994 as it was considered that the provision was discriminatory in nature. The amendment clearly means that persons standing in the position of the present applications, do not come within the meaning of the term "issue or child" for the purpose of the Ordinance. Under the Ordinance as amended by the 1994 Bill, only a child or an issue of a deceased is entitled to share in the estate. Although other statutory provisions, for example, the Inland Revenue Ordinance, Cap.112, recognises the rights of a child of the family, it does not enable the court to construe "issue" under section 4(5) of the Ordinance to include a child of the marriage between the husband of a female deceased and another female.

9. For the reasons indicated on the jurisdiction point, these proceedings are a nullity, being improperly constituted, and ought to be struck out, and I so order.