HONG KAI HING v. HONG MON

HCA 782/2018 &

HCAP 15/2018

[2018] HKCFI 1643

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT ACTION NO 782 OF 2018

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AND

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 15 OF 2018

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(Heard Together)

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R E A S O N S   F O R   D E C I S I O N

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Introduction

1.  The deceased passed away in August 2017 (“the deceased”).  The plaintiff in both HCA 782/2018 (“A782”) and HCAP 15/2018 (“AP15”) (collectively “the succession actions”) is the deceased’s husband whereas the defendant in the succession actions is her daughter.

2.  For present purposes, the most valuable assets in the deceased’s estate are:

(a)  a residential unit at Causeway Tower, Causeway Bay (“the Causeway Tower unit”);

(b)  a residential unit at Bayview Mansion, Causeway Bay (“the Bayview unit”);

(c)  a residential unit in Beijing (“the Beijing unit”).

3.  The succession actions were commenced on 6 April 2018.  According to the amended statement of claim:

(1)  A782 is in essence a complaint that the defendant has tortuously (a) trespassed upon the plaintiff’s personal properties and the ownership certificate of the Beijing unit (by depriving him of access to the Causeway Tower unit), (b) caused nuisance to the plaintiff (by putting him under video surveillance, recording his conversation, redirecting his telephone, acting rudely against him, causing him to be detained by the hospital and making false accusations to the police against him);

(2)  AP15 is in essence a complaint that, by using a forged, or invalid, will purportedly dated 28 September 2013, the defendant intended to deprive the plaintiff of the Bayview unit and Causeway Tower unit (both of which the plaintiff is the sole beneficial owner).

The applications for interim order

4.  Further, in each of the succession actions, the plaintiff has taken out an application for various interlocutory relief (collectively “the interlocutory applications”).

5.  In summary, in A782, the plaintiff sought an interlocutory injunction preventing the defendant from (a) entering or dealing with the Causeway Tower unit, (b) continuing the wrongful acts summarized in para 3(1) above, (c) harassing the plaintiff, or being close to him for less than 30 meters, (d) applying for the plaintiff’s guardianship, and (e) harassing the plaintiff’s agent or lawyer.

6.  In relation to AP15, the plaintiff sought an interlocutory injunction (1) preventing the defendant from collecting rent from the tenant of the Bayview unit (together with related interlocutory relief), (2) compelling the defendant to disclose various matters such as the items in the deceased’s safe deposit box, funds from the deceased’s bank accounts (together with related interlocutory relief), and (3) compelling the defendant to disclose files and documents (very likely to be referring to law firm files and documents) relating to (a) her application for a grant of representation and (b) the deceased’s estate.

7.  Shortly into the hearing of the interlocutory applications, the plaintiff also sought interim orders (pending the determination of the interlocutory applications) and clarified that the application for interim relief was limited to several aspects only.  For this purpose, the plaintiff has helpfully provided a draft order for use in the interim order application in A782.  In addition, the plaintiff also said that the interim order sought was limited to the following parts of the draft interim order; namely, para (a) (interim injunction relating to the Causeway Tower unit), (d) (interim injunction against personal harassment), (e) (interim injunction order against disseminating false information about the plaintiff’s mental state), (i) (interim injunction compelling the defendant to deliver up documents concerning the Beijing unit) and (j) (interim injunction against the defendant dealing with the plaintiff’s properties) thereof only.

8.  The plaintiff disclosed during the hearing he was residing either with his friends or with plaintiff’s counsel.  Such being the case, he was not totally deprived of a place to stay; there was thus insufficient urgency to justify an interim order concerning para (a) of the draft order.

9.  The defendant was willing to, and did, offer an undertaking to the court along the lines of para (d) and (j) of the draft order.  Such being the case, I did not consider it necessary for an order to be made.

10.  In relation to para (e) and (i) of the draft order, the defendant denied (in an affirmation filed on 26 April 2018) having disseminated false information, or having taken any of the documents.  The denial has not been refuted by the plaintiff’s evidence.  Such being the case, no order could properly be made at a stage where the defendant’s affirmation could not be rejected outright (especially where there was no proper evidence the plaintiff would suffer irreparable prejudice as a result).  I refused this part of the draft order.

11.  In relation to the interim application in AP15, the plaintiff sought the following relief:

(a)  appointing an administrator for collecting rent from the tenant of the Bayview unit;

(b)  alternatively, the defendant was to pay into court the rent she collected from the said tenant.

12.  The urgency which allegedly should justify an interim order was said to be a risk of the defendant dissipating the rent she had collected from the said tenant.  There is, however, no evidence in support of such allegation.  All that the plaintiff could put forth was that the defendant had earlier been arrested by the police.  But as the defence correctly pointed out, the defendant had not even been charged with any offence.

13.  After considered the above, I concluded that there was insufficient urgency to warrant an interim order to be made; the application for the same was accordingly declined.

14.  Subsequent events seem to lend support to the conclusion that there was insufficient evidence the rents collected would be dissipated.  The interim application in AP15 was later heard:

(1)  on 21 June 2018;

(2)  on 29 June 2018.

I understand from the court records that the parties reached agreement on 29 June 2018 that the rents collected were to be paid into court, and a consent order to such effect was made accordingly.

15.  In a letter dated 9 May 2018 from plaintiff counsel to the court, plaintiff counsel asserted (among other things) in effect that the court had misunderstood (or had been misled into thinking) that a personal representative had already been appointed to represent the deceased’s estate.

16.  No reason has been given for the above assertion.  Brief extemporary reasons (along the line summarized in para 13 above) have been given for declining the application for an interim order.  In view of the respective arguments put forth by the parties (summarized in para 12 above), there could not have been any misunderstanding (or misleading submissions).  There is simply no merit in the assertion.

Background

17.  As will be made clearer under “Other matters” (especially para 25 to 27 below), there is a need to mention briefly the history which leads to the succession actions.

18.  Bearing in mind defence counsel was only briefed to appear in the interlocutory applications on very short notice, the defence has, with admirable speed, prepared and filed a relatively detailed affirmation which sets out the parties’ relationship.  The gist of the relevant background is based on the affirmations, and is set out below.  For convenience, the plaintiff, the deceased and the defendant will be referred to as “the family” below.

19.  The family moved from Beijing to Hong Kong in 1981.  Since then, the defendant became a piano tuition teacher, and a freelance piano player.

20.  It does not appear to be disputed that, after the family moved to Hong Kong, the deceased succeeded in adapting to what must have been quite a dramatic change; she became a practising dentist.

21.  The plaintiff’s position is in dispute.  The defendant deposed that he seemed not well suited to life outside of the Mainland, and had not been able to find satisfactory employment; he became irritable and indulged in gambling and speculation.

22.  The plaintiff, on the other hand, deposed that he had been gainfully employed (although he also deposed that he was already in his fifties when he moved to Hong Kong and he retired when he was about 60 years old).  He also deposed that he paid for most (if not all) of the purchase money for acquiring the properties.

23.  What has not been disputed by way of evidence (or indeed during the hearing) was the lengthy period of plaintiff counsel’s involvement in the family’s affairs:

(1)  plaintiff counsel became acquainted with the family since 2013 (about 4 years before the deceased passed away);

(2)  towards the end of 2015, plaintiff counsel and the deceased had a row over the defendant’s children;

(3)  there has been frequent communication between plaintiff counsel and the defendant since December 2017 about the grant of representation;

(4)  the defendant sought, and obtained, advice from plaintiff counsel in February 2018.  Plaintiff counsel arranged the defendant to consult a law firm in February 2018;

(5)  plaintiff counsel was involved in a meeting in March 2018 for discussing the deceased’s estate.  The defendant alleged that plaintiff counsel were in disagreement with her about this matter;

(6)  the defendant found out there had been frequent communication in March 2018 between the plaintiff and plaintiff counsel about the plaintiff’s personal matters.

There was (at the very least) a hint in the defendant’s affirmation that plaintiff counsel might have been behind the plaintiff in the parties’ dispute concerning the deceased’s estate, even before the commencement of the succession actions.

Conclusion

24.  The interim order applications were refused.

Other matters

25.  The relevant parts of the Code of Conduct of the Hong Kong Bar Association provide:

“A practising barrister must not accept any instructions if to do so would cause him to be professionally embarrassed. For this purpose, a barrister will be professionally embarrassed :-

…

(d) if the matter is one in which he knows or has reasonable grounds to believe that there is a real possibility that he may cease to be a solely disinterested advocate by becoming also a witness in the case;

(e) if the matter is one in which by reason of any connection with the client it will be difficult for him to maintain professional independence …;

…

(g) if there is or appears to be a conflict or risk of conflict either between the interests of the barrister and some other person or between the interests of any one or more clients …;

(h) if he has material information which was entrusted to him in confidence by or on behalf of another client or former client or there is a significant risk that information confidential to another client or former client might be communicated to or used for the benefit of anyone other than that client or former client … ”

(para 6.2 thereof) (emphasis supplied)

26.  According to the defence affirmation (see para 23 above);

(a)  plaintiff counsel has been acquainted with the family for quite some time before the commencement of the succession actions;

(b)  plaintiff counsel has had information regarding the affairs of the family (personal and/or financial) which normally would not be available (or known) to ordinary acquaintances;

(c)  plaintiff counsel has at some stage been assisting the defendant as regards the deceased’s estate (such as introducing the defendant to a law firm, and accompanying the defendant to go to the probate registry);

(d)  parts of the defence affirmation can be understood to hint at the plaintiff’s mind being easily swayed by some of the people around him (including plaintiff counsel) due to his old age.

27.  By virtue of the above matters, one or more of the sub-paragraphs in para 6.2, Code of Conduct may be applicable (see also para 23, “Bar Free Legal Services Scheme”).  Because a barrister allocated by the “Bar Free Legal Services Scheme” does not need to act through solicitors (or other qualified professionals) (para 21, “Bar Fee Legal Service Scheme” website; letter dated 20 April 2018 from the Hong Kong Bar Association), para 6.2, Code of Conduct should be applied with even more vigour.

28.  Plaintiff counsel is of considerable seniority (having been admitted to practise in 1994) and should be well aware of the matters mentioned in para 25 to 27 above.  In case the above matters might somehow have escaped her earlier attention, hopefully the above paragraphs would serve as a reminder for her to reconsider her position.

29.  Working on the assumption that plaintiff counsel has already done so, the court does not see an immediate need to alert the Coordinator of the “Bar Free Legal Services Scheme” of plaintiff counsel’s peculiar position (summarized in para 26 and 27 above).  If plaintiff counsel has in fact already drawn the Coordinator’s attention to the same, the court expects to be informed of this (at least by plaintiff counsel, with copy to the Coordinator; a written confirmation from the Coordinator is of course preferred) in good time (in any event, not less than 3 days before the hearing scheduled for 24 July 2018).

30.  There was also a memorandum of notification of an application for legal aid dated 31 May 2018 filed in the succession actions.

31.  It is at present unknown if the plaintiff would be given assistance by the Director of Legal Aid (and if so, if plaintiff counsel will still be retained thereafter).  If in fact legal assistance is so given, the same expectation as para 29 above will equally apply.

32.  The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the reasons for decision and its easier comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.