RE LEUNG KIT HING, DORIS

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

________________________

________________________

_______________

JUDGMENT

_______________

1. On 30 July 2010, the applicant took out an originating summons in HCMP 1455 of 2010 seeking the revocation of grant No HCAG002295 of 1998. The grant was issued in respect of the estate of Leung Yun-sang, Wilson (deceased), who passed away in 1995. The deceased died intestate. By that grant, the widow of the deceased Cho Sik-hang and her sister Cho Sik-yung were appointed as co-administratrix of the estate. The appointment of co-administratrix is necessary because there were infant interest. The deceased and the widow had given birth to 2 sons who were still minors at the time of grant. Since then, both sons have reached majority.

2. The applicant was the sister of the deceased. Since the deceased was survived by his widow and two sons, she has no beneficial interest in the estate under the Intestates’ Estates Ordinance Cap 73. Notwithstanding that, some 15 years after the passing away of the deceased and 12 years after the issue of the grant, she took out this summons for revocation of grant. Even more bizarre, she issued the summons on an ex parte basis, viz without joining the co-administratrix as parties to the summons. This was plainly against the requirement of Order 76 Rule 3 which provides that every person who is entitled to administer the estate under an unrevoked grant shall be made a party to such action.

3. Soon after the commencement of proceedings, on 6 August 2010, Master Levy directed that the grantees should be joined as parties.  She also directed the applicant to serve the originating summons together the supporting documents on the grantees.

4. In her 2nd affidavit filed in this appeal on 2 September 2014, at para (I)(1), the applicant said she had complied with those directions in July 2012. We do not know what steps the applicant had taken to serve the originating summons together with the supporting documents on the grantees.  In the 3 volumes of documents placed by the applicant before us, there is no affidavit of service to that effect.  Further, it does not appear at any stage that the applicant has actually amended the title of the originating summons to add the grantees as parties to the proceedings.  Thus, in respect of the direction of the Master for joinder, the applicant had not complied with it. 

5. It is not very clear to us as to whether the Master had been satisfied with the service of the documents on the grantees.  However, based on what was said by the Master on 10 August 2012, it would appear that by then the applicant had filed a substantial amount of documents into court and most of those were incomprehensible to the Master.  Things had developed to a stage where the Master considered that she should exercise a bit of case management on the matter.  She focused on the key issue, viz whether the applicant had any right to challenge the grant in view of the fact that she admittedly had no beneficial interest in the estate and all those who had interest in the estate were, by then, of full age.  The Master did not address the question of joinder or service on the grantees at that hearing.  After hearing submissions from the applicant, the Master dismissed the application as an abuse of process. 

6. The applicant appealed against the decision of the Master. That appeal was heard by L Chan J on 6 March 2013.  On 13 March 2013, the judge agreed with the view of the master that the application should be struck out.  Again, it does not appear that the judge had addressed the question of service or joinder of the grantees.

7. The applicant now appeals to this court. The applicant has not named the grantees as parties to the appeal. The registry listed the appeal as an ex parte appeal. When the appeal was brought to the attention of this court because the applicant applied for the appeal to be heard in a manner not open to the public, Lam VP queried whether the appeal can be proceeded on an ex parte basis. Directions were given on 30 July 2014 for the matter to be listed for consideration whether other parties should be served or joined.

8. For some reasons, the applicant did not wish the matter to be heard in court. Subsequently, at her request, the court directed that the question of joinder and the application for hearing to be conducted not open to public shall be dealt with on paper.

9. The applicant has filed her submissions on the topics, including her 2^nd affidavit, which we have read and considered.

10. Notwithstanding her submissions, we are of the view that the grantees should be joined as parties to this appeal. In the Notice of Appeal of 9 April 2013, the applicant sought these relief:

“1. Joinder of administrator under rule 23 of the Non-contentious Probate Rules, Cap 10A (‘NCPR’) be granted to the Appellant; alternatively

2. Appointment as administrator pendent lite under section 40 of the Probate and Administration Ordinance, Cap 10 (“PAO”) with rights and powers of a general administrator subject to immediate control of the court and to act under its direction;

3. Upon the appointment, to re-seal or to revoke the grant of letters of administration no. HCAG002295/98 under section 33 of the PAO.”

11. This was repeated in her first, second and third supplementary notice of appeal filed on 17 August 2013, 22 May 2014 and 22 May 2014 respectively.

12. In view of the requirement in Order 76 Rule 3, it is difficult to see how it can be suggested that the grantees should not be parties to this appeal.  The applicant argued that the appeal is only concerned about her locus standi and it is not necessary to join the grantees as parties to the appeal for this purpose.  We cannot accept this submission in view of the relief she sought in her Notice of Appeal.  Further, the grantees are entitled to be heard on the question of her locus standi.

13. The applicant also suggested that because the grantees did not file acknowledgment of service and did not appear at the court below, the matter can be proceeded in their absence.  She relied on Order 76 rule 6(3).  Again, we must reject this argument.  First, as we said above, it is not clear to us whether the proceedings have properly been served on the grantees.  Second, the question of who should be joined in as parties to the appeal is a different question as to whether the appeal should be proceeded if they choose not to take active part.  According to the direction of the master, the grantees should have been joined and named as parties to the proceedings below.  The fact that the applicant has not complied with such direction in terms of her failure to amend the proceedings is quite beside the point.  In any event, the fact that the master or the judge were contended to overlook the irregularity does not mean that this court will be prepared to do so.  As a matter of principle, we do not think it is correct to allow this appeal to proceed on an ex parte basis.

14. The applicant also suggested she is proceeding by way of some default judgment procedure and the order she seeks to obtain is some kind of common form of grant.  She relied on Order 76 rule 10 and 11 to run her argument.  We find her argument completely misconceived.  She has misunderstood the effect of these rules.  They do not provide for any procedure to obtain default judgment in respect of probate actions.  It is completely inapt to draw any parallel between an application for revocation of grant with the grant of probate in common form.  There is no such thing as a common form revocation.  As explained in Re Estate of Cheng Ki Sang [2009] 2 HKLRD 533, except in certain circumstances where the revocation is non-contentious (as in the case where the applicant is the grantee or where the grantee had given consent to the revocation, which is obviously not the case here), the matter cannot be proceeded by way of ex parte proceedings.  As stated at paras 9 and 10 in that judgment, the court will usually require the grantees to do certain acts even if it were minded to exercise its power to revoke the grant. Thus, as a rule, the grantees must be before the court in such proceedings.

15. As to the mode of the hearing of the appeal, the applicant relied on what she set out in her affidavit of 28 July 2014.  She asserted that the safety and security of the 2 sons will be compromised if the hearing shall take place in public.  She also asserted that their rights and interests will also be prejudiced if the hearing shall take place in open court. 

16. We do not see any reliable and concrete evidence to show that the applicant has the authorisation to represent the 2 sons in these proceedings.  She has not produced a single document signed by them to that effect.  She has not produced any affidavit or affirmation from the 2 sons to support her assertions.  She only relied on what she claimed to be implied nomination by reference to a document signed by them in 2006 authorising her to search the probate file regarding the estate and another document authorising her to follow up on an insurance policy.  These are hardly enough to show she now has their authority to pursue these proceedings.  After all, the 2 sons are no longer minors and they could make applications in their own names. 

17. There is also a complete lack of evidence to support the bald assertions of the applicant that the safety or security of the 2 sons will be compromised or their interest prejudiced.  She has not set out any underlying factual basis to support such assertions.  All that she could pinpoint is the potential disharmony between the widow and the 2 sons if the proceedings were heard in public.  However knowledge of the widow about the proceedings is inevitable given our conclusion above that she should be joined as a party to the appeal.

18. These are hardly sufficient to justify an appeal to be heard in a manner not open to the public, see the approach of this court in ATV v Communications Authority [2013] 2 HKLRD 354, in particular paras 23 to 25.

19. In the circumstances, we order as follows:

(a) The two administratrix shall be joined as parties to this appeal;

(b) Unless the applicant serve the Notice of Appeal and all supplementary notices of appeals and all documents she had filed in the appeal on the two administratrix (including the appeal bundles which she has lodged) within 14 days from the date of this judgment and file an affidavit of service within 7 days thereafter setting out the manner in which the documents were served, the appeal shall be dismissed without further order; and

(c) The appeal will be heard in open court.   

20. Upon the applicant’s compliance with the directions in the unless order, the Listing Clerk shall notify the parties (including the two administratrix) to attend the Listing Office to fix a date for the hearing of the appeal with an estimate of half a day.