TANG KWONG HUNG v. KWAN CHI KAI the administrator of the Estate of TANG KI CHEE, the deceased

HCMP 915/2018

[2022] HKCFI 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 915 OF 2018

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BETWEEN

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J U D G M E N T

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1.  This is the trial of the 1^st plaintiff’s claim against the defendant.

2.  These proceedings were first commenced by way of Originating Summons on 19 June 2018 by the 1^st plaintiff and Ms Kwan Hiu-hung (“Ms Kwan”) (ie the original 2^nd plaintiff in these proceedings until she wholly withdrew her claims against the defendant by consent on 10 June 2019).

3.  On 7 November 2018, by consent, the present proceedings were ordered to be continued as if the cause or matter had begun by Writ.

4.  The 1^st plaintiff is the natural and lawful son of the late Madam Tang Ki-chee (the “Deceased”), who died intestate on 28 July 2015. The defendant is the husband of the Deceased, the stepfather of the 1^st plaintiff, and the sole administrator of the Deceased’s estate (the “Estate”). The beneficiaries of the Estate are the 1^st plaintiff, the defendant and Ms Kwan.

5.  In this action, the 1^st plaintiff claims against the defendant for, inter alia, (i) a true and perfect inventory and account of the Estate; (ii) inspection of all supporting papers and documents in relation to the said account; (iii) further or alternatively, the defendant be removed from his position as the administrator of the Estate; and (iv) the 1^st plaintiff be appointed as the administrator of the Estate.

6.  The defendant has been absent in these proceedings since the hearing on 20 April 2020. The Defence and Counterclaim has been struck out. The defendant is also debarred from giving any oral evidence or calling any factual witness at trial due to his non-compliance with Master S P Yip’s unless order to exchange witness statement with the 1^st plaintiff. The defendant is absent today.

7.  The 1^st plaintiff has adduced evidence from two witnesses at this trial, namely the 1^st plaintiff himself and Ms Kwan.

8.  From the evidence adduced by the 1^st plaintiff, I am satisfied that the 1^st plaintiff has established the matters set out at paragraph 12 of the 1^st plaintiff’s Opening Submissions dated 14 December 2021, namely:

(1) Since obtaining the Letters of Administration in June 2016, the defendant has never informed the 1^st plaintiff or Ms Kwan of the status of the Estate or anything about distribution of any part of their rightful shares of the Estate to them. Also, the defendant has never produced to the 1^st plaintiff or Ms Kwan any account of the Estate.

(2) Despite the 1^st plaintiff’s and Ms Kwan’s repeated requests for (i) full inventory of the Estate of the Deceased and (ii) an account of the administration of the Estate of the Deceased, the defendant has still failed to provide the requested items as of to date.

(3) The 1^st plaintiff is thus entitled to the requested items and the inspection in relation thereto.

9.  From the evidence adduced by the 1^st plaintiff, I am further satisfied that the 1^st plaintiff has established the matters set out at paragraph 15(a) to (c) of the 1^st plaintiff’s Opening Submissions, namely:

(1) There had been unjustified delay on the part of the defendant to provide the 1^st plaintiff and Ms Kwan with proper estate accounts and towards administration.

(a) The defendant has not informed the 1^st plaintiff nor Ms Kwan of the status of the administration of the Estate since the defendant obtained the Letters of Administration in June 2016, and still failed to do so despite repeated demands from the 1^st plaintiff and Ms Kwan.

(b) The defendant had not distributed sale proceeds from the sale of the property at 3^rd Floor, No 203A Yee Kuk Street, Kowloon (the “Property”), where the agreement for sale and purchase of which was entered into on 19 May 2017 and the sale was apparently completed on 16 April 2018.

(2) The defendant has been in clear conflict of interest and breach of his duty towards the Estate and the beneficiaries by:

(a) continuing to use the Property for his own benefit until it was sold, without consent or consultation with the 1^st plaintiff and Ms Kwan, thereby personally benefiting from it; and

(b) failing to distribute the sale proceeds from the sale of the Property thereby keeping all the sale proceeds for his own benefit.

(3) The defendant has therefore defaulted in discharging his duty as the administrator of the Estate.

10.  In the circumstances, I am satisfied that the 1^st plaintiff has established the matters set out at paragraph 15(d) to (g) of the 1^st plaintiff’s Opening Submissions, namely:

(1) By reason of the above, the removal of the defendant as the administrator of the Estate is necessary for the due and proper administration of the Estate and is in the interests of the beneficiaries.

(2) As the size of the Estate is relatively small, it does not appear to be financially viable to nominate a professional administrator if the beneficiaries of the Estate could discharge the duty of an administrator properly.

(3) The 1^st plaintiff agreed to be appointed as the administrator and confirmed that he would be able to act impartially in distributing the assets.

(4) In the premises, the defendant should be replaced by the 1^st plaintiff to be the administrator of the Estate.

11.  Accordingly, I make an order against the defendant as follows:

(1) A true and perfect inventory and account of the Estate of the Deceased verified by affidavit to be filed and served within 14 days;

(2) An order that the defendant do within 14 days thereafter allow the 1^st plaintiff and his legal representatives to inspect all supporting papers and documents in relation to the said account;

(3) Further, an order that the defendant be removed from his position as the administrator of the Estate of the Deceased;

(4) An order that the 1^st plaintiff be appointed as the administrator of the Estate of the Deceased; and

(5) The costs of and occasioned by these proceedings be paid by the defendant personally to the 1^st plaintiff.