LOK LAI KUEN ENDER v. LO WING KEUNG

HCMP 158/2025

[2026] HKCFI 2467

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 158 OF 2025

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J U D G M E N T

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Introduction

1.  This is the Plaintiff’s application by Originating Summons dated 28 January 2025 (“the OS”)  for, inter alia, an order pursuant to section 33(3)  of the Probate and Administration Ordinance (Cap. 10)  (“PAO”)  that the Letters of Administration (“the LA”)  of the Estate of Lok Shu Tong (“the Estate” and “the Deceased”)  be revoked and that the Defendant be removed as the administrator of the Estate.

Background

2.  The Deceased died intestate on 10 February 2012.  The Plaintiff is the younger sister of the Deceased.

3.  The Deceased’s wife, Lo Wai Yin (“Madam Lo”), died intestate on 3 May 2014.  The Defendant is the younger brother of Madam Lo.

4.  The Deceased and Madam Lo had one daughter, Lok Pui Yin, who predeceased them on 29 January 1995.  They had no other children.

5.  The Defendant applied for the Letters of Administration of the estate of Madam Lo on 26 May 2014 which was granted on 8 June 2017.

6.  The Deceased’s mother, Tang Soong (“Madam Tang”), died intestate on 21 December 2016.

7.  The Defendant applied for the LA of the Estate of the Deceased on 13 September 2018 which was granted on 21 September 2018.

8.  The Plaintiff’s complaint in these proceedings is essentially that prior to applying for the LA, the Defendant (as administrator of Madam Lo’s estate)  had commenced a High Court action (HCA 2355/2017)  (“the HCA Proceedings”)  on 11 October 2017 in relation to a property known as Flat 24, 11th Floor, Yip Cheung Building, Nos. 4/16 Hill Road, Hong Kong (“the Property”).  However, this was not disclosed by the Defendant in his application for the LA in respect of the Estate of the Deceased.  It is contended on behalf of the Plaintiff that the HCA Proceedings give rise to issues of conflict of interest and material non-disclosure, which warrant an order sought under the OS.

9.  In respect of the Property, it is not in dispute that:-

(1)  On 9 December 1995, the Property was purchased in the joint names of the Deceased and his younger brother Lok Shu Tim;

(2)  On 10 March 2007, Lok Shu Tim’s interest in the Property was transferred to Madam Lo, who held the Property together with the Deceased as joint tenants.

10.  In the HCA Proceedings, it is the case of the Defendant (as administrator of Madam Lo’s estate)  that upon the Deceased’s death on 10 February 2012, Madam Lo was the sole legal and beneficial owner of the Property.   Nevertheless, the Property had been unlawfully occupied by various persons, including the Plaintiff’s sister Lok Lai Ying, who failed to deliver vacant possession despite repeated demands.  The Defendant seeks an order for possession of the Property, an injunction restraining the unlawful use and occupation of the same, and damages for ouster and/or mesne profit.

11.  In contrast, the Plaintiff, as one of the counterclaim plaintiffs in the HCA Proceedings, claims that she, along with 7 other siblings (including the Deceased)  of the Lok family (“the Lok Siblings”), share the full beneficial interest in the Property.  That interest is said to arise by reason of, amongst others, the common intention constructive trust founded upon the common agreement and intention of the Lok Siblings and Madam Lo and/or the Lok Siblings’ monetary contributions to the purchase price.  It is therefore alleged that Madam Lo is a bare trustee or nominee holding the Property on trust for the Lok Siblings, and that each of the Lok Siblings (including the Plaintiff and the Deceased)  is entitled to an equal 1/8^th beneficial interest in the Property.  In the premises, the Plaintiff now alleges that given this dispute, should the Defendant continue to act as the administrator of the Estate of the Deceased, there would be a conflict of interest between the Defendant (as the administrator of Madam Lo’s estate)  and the Deceased’s Estate.  I will further analyse this issue below.

12.  The issues raised in the HCA Proceedings remain to be determined.

The Relevant Principles

13.  Section 33 of the PAO provides that: -

“33. Revocation of grants and removal of executors

(1)  Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.

(2)  A probate or administration may be revoked under subsection (1)  without being called in if it cannot be called in.

(3)  The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator)  and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.”

14.  In the OS, the Plaintiff relies upon section 33(3)  in support of her applications for both the revocation of the LA and the removal of the Defendant as the administrator.  However, it is clear from the above that section 33(3)  relates only to the removal of an administrator.  The Court’s power to revoke a grant of letters of administration is provided under section 33(1).  As section 33(1)  has also been referred to in the Plaintiff’s skeleton submissions for the substantive hearing, I will proceed on the basis of both section 33(1)  and (3)  of the PAO.

15.  In respect of section 33(1): -

(1)  A grant may be revoked under section 33(1)  if it appears to the Court that it ought not to have been granted.  Non-disclosure of material facts in an ex parte application for a grant is a well-established ground for revocation: Huang Meixia v Leung Hoi Shan & Ors [2021] HKCFI 3727 at §23(1); and Re Estate of Wong Yuen Leong [2012] 2 HKLRD 124 at §10;

(2)  The principles of disclosure applicable to applications without notice “apply to applications under the Non-Contentious Probate Rules”.  The applicant for the grant “should have clearly set out the facts as known to him” in his affidavit, especially where he had time to investigate the position. In circumstances of uncertainty, instead of using a rigid form of words, it would be “far better to summarize the circumstances and explain the uncertainties”: Huang Meixia (supra)  at §23(2);

(3)  A non-disclosure complained of by a party must be material.  The Court does not accept that any non-disclosure would mean that the grant would be automatically revoked. The burden is on the complainant to satisfy the Court that the grant ought not to have been made or contains an error, by reason of there being the non-disclosure complained of by that party: Tsang Grace Yee Man v Tsang Willy [2020] HKCFI 662 at §57;

(4)  Even if it appears to the Court that the grant ought not to have been made, it still retains a discretion as to whether to call in the probate or administration, and only if satisfied that it would be revoked, to revoke the grant: Tsang Grace Yee Man (supra)  at §57;

(5)  Revocation of a grant is a contentious and serious matter which will only be done in exceptional and clear cases: Bong Pik Li & Ors v Tang Yi, as the Administratrix of the Estate of Bong Won Ling, Deceased & Ors [2025] HKCFI 612 at §20; and Butterworths Hong Kong Probate, Administration and Trustee Handbook (6^th ed, 2024)  at §33.02.

16.  As to section 33(3), a helpful summary can be found in the Court’s decision in Chu Wing Chuen Paul and Ors v Chu Oi Yan Irene [2022] HKCFI 804 at §§21-22 as follows:-

(1)  The Court’s discretion under section 33(3)  to remove a personal representative involves an assessment and a value judgment in all the relevant circumstances of whether removal is required for the due and proper administration of the estate and the interests of the beneficiaries;

(2)  Not every mistake or neglect of duty, or inaccuracy of conduct of trustees will induce the Court to remove the personal representative.  The acts or omissions must be such as to endanger the trust property or to show a want of honesty, or want of proper capacity to execute the duties, or a want of reasonable fidelity;

(3)  Hostility between the personal representative and the beneficiary is not a ground for removal, unless the breakdown of the relationship between them is such as to lead to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed by an existing personal representative;

(4)  In exercising its discretion, the Court should have regard to the size of the estate, the nature of the assets that need to be administered, the background and education, training and experience of the remaining and substituted personal representatives and the interests of the beneficiaries.  The view of the majority beneficiaries is a relevant factor;

(5)  The discretion to remove a personal representative is to be exercised with great caution and sparingly.  In general, removal is not to be preferred unless the administration is still far from completion.  The courts are reluctant to exercise the discretion where the incumbent executor or administrator wishes to carry on, without allowing that incumbent an opportunity to repair or remedy any defects and progress promptly with due administration.  The fact that administration of the estate could have been done better is not of itself sufficient ground.

17.  In an appropriate case, a personal representative can be removed on the ground of conflict of interest.  The Court will consider, inter alia, whether the personal representative is in a position where his or her personal interest is in conflict with his or her duty as the administrator to fairly and duly distribute the assets of the estate: Li Choi Ping & Anor v Xie Yanxian [2022] HKCFI 3042 at §§10, 12; and Thian Sum v Yung Shui Tong [2017] HKCFI 2897 at §17.

Discussion

18.  As noted above, the Plaintiff’s central complaint in support of the relief sought in the OS is the alleged conflict of interest between the Defendant (as the administrator of the estate of Madam Lo)  and the Deceased (should the Defendant continue to act as the administrator of the Estate)  in the HCA Proceedings concerning the Property, and that the Defendant failed to disclose the same in his application for the LA.  The Plaintiff submits that:-

(1)  If the Defendant succeeds in the HCA Proceedings, he (as the administrator of the estate of Madam Lo)  acquires the entire legal and beneficial interest in the Property;

(2)  If the Lok Siblings succeed, the Estate will be able to claim a 1/8^th beneficial interest in the Property;

(3)  In the HCA Proceedings, the Defendant (as the administrator of the estate of Madam Lo)  is essentially bringing an adverse claim against the Estate of the Deceased;

(4)  The Defendant cannot properly discharge his duty of carrying out the due and proper administration of the Estate when he is simultaneously litigating against the interests of the Estate;

(5)  The Defendant’s non-disclosure of the existence of the HCA Proceedings was plainly material, given the clear conflict of interest between the Defendant and the Deceased which would render the Defendant unsuitable to be appointed as the administrator of the Estate.

19.  I am unable to accept the Plaintiff’s submissions.

20.  First, the Defendant’s position in respect of the Property is that by virtue of the right of survivorship between the Deceased and Madam Lo as joint tenants, Madam Lo became the sole owner of the Property upon the Deceased’s death.  This is consistent with the Schedule of Assets and Liabilities of Madam Lo affirmed by the Defendant in 2014 in support of his application for the administration of Madam Lo’s estate, which listed the Property as forming part of her estate.  The joint tenancy is also clearly shown in the land search record.  In the circumstances, there was no misrepresentation in the Defendant’s application for the LA insofar as the Defendant did not refer to any interest in the Property for the purpose of that application in view of the nature and effect of the joint tenancy and the right of survivorship between the Deceased and Madam Lo.

21.  It is true that when the Defendant applied for the LA in respect of the Estate of the Deceased in 2018, the interest in the Property was subject to disputes in the HCA Proceedings (commenced in 2017). However, under section 24A(3)  of the PAO, an application for a grant is to be supported by “a schedule setting out the assets and liabilities of the deceased as at the date of his death … known to the applicant”.  Here, as at the date of his death on 10 February 2012, the Deceased did not have any interest in the Property as a result of the right of survivorship as referred to above.  In any event, the HCA Proceedings had not been commenced.  On this basis, there was no misrepresentation on the part of the Defendant when he submitted the application for the LA.  Further, the Plaintiff’s allegation that the Property was held by Madam Lo on trust for the Lok Siblings was raised by way of her counterclaim in the HCA Proceedings, and has yet to be adjudicated by the Court.  As no judgment has been pronounced in favour of the Lok Siblings, there was, in my view, no misrepresentation or material non-disclosure in the Defendant’s application for the LA in 2018 by not including the Property as a part of the Deceased’s Estate.

22.  Even assuming that the Defendant was somehow required to disclose the HCA Proceedings (and failed to do so)  at the time when he applied for the LA, there is no basis to suggest that the LA ought not to have been granted or it contained an error as a result of such non-disclosure for the following reasons.

23.  First, the Defendant’s case is that Madam Lo’s entitlement to the Property arises by operation of law on the joint tenancy between her and the Deceased and, on this basis, he made the application for the LA in respect of the Deceased.  Further, in the HCA Proceedings, the Defendant (as administrator of the estate of Madam Lo)  took the position that Madam Lo was the sole legal and beneficial owner of the Property and sought an order for vacant possession accordingly.  It is nonetheless the case of the Lok Siblings (including the Plaintiff)  that they should be entitled to the interest in the Property.  In the circumstances, the Defendant did not take any active steps to put himself (as administrator of Madam Lo’s estate)  into any conflict with his duty to fairly and duly distribute the Deceased’s Estate.  In fact, in the HCA Proceedings, the Deceased was named apparently by the Lok Siblings as one of the parties for the purpose of the counterclaim.  It is therefore inapt for the Plaintiff to describe the Defendant as “bringing an adverse claim” against the Estate of the Deceased, given that he has simply acted in accordance with the interest in the Property which has been well-documented and also registered.

24.  Second, the issues in the HCA Proceedings (including the Defendant’s claim for vacant possession on the basis of unlawful occupation and the Lok Siblings’ claim on trust and beneficial interest in the Property)  will be determined by the Court.  In the circumstances, had the Defendant disclosed the HCA Proceedings for the application for the LA, the Probate Registry would not have second-guessed the outcome of those proceedings on its own or made a decision to override the interest in the Property as documented and registered.  I am therefore not satisfied that the non-disclosure of the HCA Proceedings was material or would otherwise have affected the outcome of the application for the LA.

25.  Third, apart from the allegations of misrepresentation including the alleged misrepresentation in relation to the interest of the Deceased’s mother (i.e. Madam Tang)  in the Deceased’s Estate which will be discussed below and also conflict, there is no evidence which can point to any acts or omissions which would have the effect of endangering the assets of the Estate or would show any want of honesty, or want of proper capacity to execute the duties, or any want of reasonable fidelity.  I also take note of the fact that leaving aside the dispute on the beneficial interest in the Property (which was raised by the Lok Siblings and will be determined by the Court), the administration of the Estate appears to be straightforward and its size is not substantial.

26.  Fourth, on the question of delay in making the present application, the Plaintiff’s explanation that she was only aware of the Deceased’s LA during a case management hearing in the HCA Proceedings in 2024 is not helpful.  Plainly, the Plaintiff could have made an enquiry or search in the Probate Registry to ascertain the status of the administration of the Deceased’s Estate much earlier.  This is particularly so when the defence and counterclaim in the HCA Proceedings was filed back in January 2018 where the Deceased, i.e. “LOK SHU TONG (駱樹棠), Deceased”, was named as one of the defendants in the Counterclaim (although it is trite that a deceased person is not a valid legal entity).  There is no evidence as to why the Plaintiff or her solicitors did not make any enquiry between 2018 and 2024 as to who was representing the Deceased’s Estate. Furthermore, in view of the disputes within the family over the Property, I find it very difficult to believe that the Plaintiff did not know that the Defendant was the administrator of the Deceased’s Estate until 2024.

27.  Fifth, despite the Plaintiff’s logic that the Defendant should be removed in view of the purported “conflict” arising from the HCA Proceedings, she has not put forward any independent candidate as replacement, apart from herself who is also embroiled in the same proceedings.

28.  Notwithstanding the foregoing, even if I accept that the dual representative capacity assumed by the Defendant gives rise to a perceived conflict of interest, insofar as the question of whether removal is warranted in the exercise of the Court’s discretion under section 33(3)  is concerned, I take the view that I should decline to order removal for the following reasons (apart from the matters stated in paragraphs 23-27 above): -

(1)  First, the character of the alleged conflict here is materially different from that in Thian Sum (supra)  and Li Choi Ping (supra), cited by the Plaintiff: -

(a)  In Thian Sum (§§3, 14-17, 20, 23), the administratrix asserted a personal life interest specifically in the property that formed the major asset of the estate of the deceased.  She did not perform her duties to administer the estate for over three years.  No distribution was made to the beneficiaries save and except that she distributed a sum of HK$500,000 to herself.  She further indicated that she was not going to sell the property and distribute the sale proceeds to the beneficiaries.  This gave rise to a direct conflict between her personal interest and her duty to administer the estate.

(b)  In Li Choi Ping (§§10, 12-17, 23), the administratrix claimed that the estate owed her a personal loan of HK$1 million, a liability which she would be required, as administratrix, to determine and discharge, if established.  Her personal interest in being paid that sum before and on top of her residuary entitlement directly conflicted with her duty as administratrix to fairly and duly distribute the estate’s assets.

(c)  Therefore, in each of the above cases, the administratrix stood to benefit personally from the act of administration of the estate and the conflict arose on that basis.

(2)  In the present case, the Defendant only came into the perceived position of “conflict” after the Deceased’s Estate was added as a party to the counterclaim – it was not a “conflict” of his own making. The Defendant has made no direct personal claim against the Deceased’s Estate. He is not acting unilaterally to enrich himself by initiating the claim in the HCA Proceedings in the course of his administration of the Estate.  Rather, he is advancing a position he is entitled and bound to maintain as administrator of Madam Lo’s estate in the HCA Proceedings, which will be considered and determined by the Court in due course.

(3)  As mentioned above, the power to remove an administrator under section 33(3)  shall be exercised with ‘great caution and sparingly’, and the overriding consideration is the welfare of the persons beneficially entitled to the estate: Bong Pik Li (supra)  at §20.  In the present case, it is difficult to see how removing the Defendant would better advance the welfare of the beneficiaries. The Lok Siblings, including the Plaintiff, are actively pursuing the counterclaim in the HCA Proceedings in their personal capacities. The Plaintiff herself is a party to those proceedings and it is hard to accept that she (if appointed as the administrator of the Deceased’s Estate)  would be in a more neutral position than the Defendant.  Further, apart from the dispute in the HCA Proceedings, there is no evidence which indicates that the Defendant’s conduct has in any way prejudiced the welfare of the persons beneficially entitled to the Deceased’s Estate.

29.  By reason of the above analysis, I take the view that there are no sufficient reasons for the LA to be revoked or for the Defendant to be removed as administrator of the Deceased’s Estate.

30.  In passing, I note that the Plaintiff in her affirmation had initially alleged that the Defendant had made another alleged misrepresentation by ignoring the Deceased’s mother’s (i.e. Madam Tang’s)  potential entitlement to the Deceased’s Estate.  However, the Plaintiff no longer seems to rely on this point in her counsel’s skeleton submissions.  In any event, this point does not assist the Plaintiff’s case because:-

(1)  It is undisputed that the Deceased died intestate, leaving both Madam Lo and Madam Tang: see §§2, 3 and 6 above;

(2)  It is also common ground that the distribution of the Estate is governed by section 4(4)  of the Intestates’ Estate Ordinance (Cap. 73)  (“IEO”), which reads:-

“(4)  If the intestate leaves no issue but does leave a husband or wife and one or more of the following, namely a parent, a brother or sister of the whole blood, or issue of a brother or sister of the whole blood, the surviving husband or wife shall take the personal chattels absolutely and, in addition, the residuary estate of the intestate shall stand charged with the payment of a net sum of $1,000,000, free of death duties (if any)  and costs, to the surviving husband or wife with interest on that sum from the date of death at the rate determined from time to time by the Chief Justice for the purpose of section 49(1)(b)  of the High Court Ordinance (Cap. 4)  until paid or appropriated and, subject to providing for that sum and interest, the residuary estate shall be held—

(a)  as to one half, in trust for the surviving husband or wife absolutely; and

(b)  as to the other half—

(i)  where the intestate leaves one parent or both parents (whether or not brothers or sisters of the intestate or their issue also survive), in trust for the parent absolutely or, as the case may be, for the 2 parents in equal shares absolutely; or

(ii)  where the intestate leaves no parent, on the statutory trusts for the brothers and sisters of the whole blood of the intestate.”

(3)  In short, under section 4(4)  of the IEO, the surviving spouse is entitled to the personal chattels absolutely, a statutory sum of $1,000,000 and one-half of any residuary estate, whereas the surviving parent takes the other half of the residuary estate.  However, the surviving parent would have no entitlement to the estate if the value thereof does not exceed $1,000,000.

(4)  According to the Defendant’s affirmation filed in support for the application for the LA and the Schedule of Assets and Liabilities annexed to the LA (which does not include the Property), the net value of the Deceased’s Estate was less than $1,000,000.  On that basis, Madam Lo (following her death intestate, her estate)  would be entitled to the whole Deceased’s Estate as the sole beneficiary, and Madam Tang would have no entitlement to the same.

31.  Even assuming that the Estate would be entitled to a 1/8^th beneficial interest in the Property if the Lok Siblings succeed in the HCA Proceedings according to the Plaintiff’s case, there is no proper valuation evidence as to whether such an interest would render the value of the Estate to exceed $1,000,000.  The Defendant’s own computation in his affirmation appears to suggest that it should not.  In any event, even in this regard, on the question as to whether there was any misrepresentation or material misrepresentation or whether the alleged misrepresentation would have caused the LA to be revoked or the Defendant to be removed as administrator of the Deceased’s Estate, I repeat paragraphs 20-29 above.

Disposition

32.  In view of the above, I make the following order:-

(1)  The Plaintiff’s OS be dismissed;

(2)  There be an order nisi that costs (including all reserved costs, if any)  be to the Defendant, to be taxed if not agreed;

(3)  The costs order nisi shall become absolute unless an application to vary the same is made within the next 14 days.