NG SAU LIN AND ANOTHER v. AN KI, in her personal capacity and as the sole administratrix of the estate of SZE WANG CHAK, Deceased

HCMP 1794/2023

[2026] HKCFI 825

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 1794 OF 2023

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BETWEEN

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REASONS FOR JUDGMENT

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1.  The plaintiffs applied for the removal of the defendant as the administratrix of the estate of Sze Wang Chak, deceased (“the Deceased”). The 1^st plaintiff is the mother (“the Mother”) and the 2^nd plaintiff is the younger brother of the Deceased (collectively “the plaintiffs”). At the end of the hearing, this court allowed the application and granted the order set out at the end of this judgment. These are my reasons.

BACKGROUND

2.  On 17 November 2020, the Deceased was admitted to Hong Kong Baptist Hospital for removal of haemorrhoids. 2 days later, he was discharged. On the day following his discharge, the Deceased developed left side weakness and blurring of speech. He sought treatment from the Alice Ho Miu Ling Nethersole Hospital, and was admitted to the intensive care unit where the diagnosis was septicemia caused by bacterial infection (MSSA infection) resulting in abscesses in multiple organs. He was transferred to the intensive care unit of North District Hospital on 24 November 2020. The Deceased eventually passed away on 8 February 2021.

3.  The Deceased passed away intestate.

4.  The Deceased married the defendant (“the Wife”) in the Mainland on in February 1994. Their only son (“the Son”) was born on 4 February 2007.

5.  According to the plaintiffs, the Deceased, the Wife and the Son returned to live in Hong Kong in about 2010. However, it was the Mother who shouldered the duties of taking care of the Son as the Wife was often not around. In mid-2011, the family of three moved to live with the Mother, but the Wife continued to be absent from home for most of the day. Neither did she contribute to the family finance nor did she share the household chores.

6.  According to the plaintiffs, the Wife deserted the family at the end of 2011. The Deceased and the Son continued to reside with the Mother. Since then, the Mother had from time to time received demand letters from moneylenders and banks concerning her. The Deceased raised the Son on his own with the help of the plaintiffs.

7.  On 2 June 2017, the Wife was declared bankrupt. There is no evidence in respect of the present state of the bankruptcy order.

8.  Due to intestacy, the Wife and the Son became entitled to the estate of the Deceased (“the Estate”). Indeed the Wife applied for and was granted the letters of administration of the Estate on 6 June 2022 (Grant No. HCAG006808/2022). According to the schedule of assets and liabilities then filed by her, the Wife reported the Estate to be consisting of unknown bank balances, some shares, MPF credit balance and various insurance policies. The value of the Estate is unknown but not likely sizeable.

9.  According to the plaintiffs, the Wife had kept all the proceeds of the disposal of the shares and the Deceased’s MPF accumulations, and become out of touch with the plaintiffs since August 2022. There had been occasional contacts made with the Son, but the Wife never informed him of his any entitlement to the Estate. The Son has received nothing from the Estate. He continued to be taken care of by the plaintiffs.

10.  With the assistance of legal aid, the plaintiffs commenced action for medical negligence against Hong Kong Baptist Hospital as well as the doctor and anaesthesiologist responsible for the operation on the Deceased mentioned above, ie HCPI 309/2023. The Mother claims on behalf of herself and the Son as the dependents of the Deceased. A protective writ was issued, and its validity has been extended pending the present proceedings.

11.  By the originating summons filed on 12 October 2023, the plaintiffs applied for an order that the Wife be removed as the administratrix of the Estate pursuant to s.33(3) of the Probate and Administration Ordinance (Cap.10) (“the PAO”), and that the letters of administration granted to the Wife be revoked pursuant to s.33(1).

12.  The Wife never acknowledged service of the proceedings.

13.  This was the adjourned hearing of the application pending service on the Wife by way of substituted service. The Wife did not appear at the hearing. Pursuant to O76, r6 of the Rules of the High Court, Cap 4A, the plaintiffs were allowed to proceed notwithstanding the default and absence of the Wife.

14.  By the time of the hearing, there has been change in circumstances, namely that the Son has attained the age of majority last February. Hence the application by the plaintiffs now to appoint the Son instead of them as the replacement administrator of the Estate. For that the Son has lodged his written consent to the appointment.

THE PRINCIPLES

15.  Section 33 of the PAO provides:

“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.”

16.  The key is whether the due and proper administration of the estate of the deceased and the interests of the persons beneficially entitled to the estate require the removal of the administrator. Counsel refers to the explanation of that by the court in Re Estate of Kwan Chung [2013] 6 HKC 29 at §§11; 23-26; Chang Wing Ka John v Chang Wing Dee & Anor [2021] HKCFI 47 at §§158-160; and Ho Sze Wing Alice v Lau Yuk Ling Emily [2025] HKCFI 4348 at §24. In Re Estate of Lam Choi Hing Billy [2007] 1 HKLRD 23 and Re Estate of Chan Shu Hok [2021] HKCFI 2698, the court removed the administrator for dilatory distribution and evasive conduct.

DISCUSSION

17.  The plaintiffs essentially complain that the Wife had walked away with the proceeds of the assets of the Estate without any account or regard to the interest of the Son. The grievance of the Son as a beneficiary may give rise to his right of action against the Wife for misappropriation and account. Whilst there may be nothing substantial left in the Estate now to administer, there is one aspect, namely the pursuit of the common law action in medical negligence mentioned above.

18.  As of now, the plaintiffs are in a position to put forward the claim on behalf of the dependents pursuant to the Fatal Accidents Ordinance, Cap 22 (“FAO”), but lack the capacity to put forward the claim on behalf of the Estate pursuant to the Law Amendment and Reform (Consolidation) Ordinance, Cap 23 (“LARCO”). Such right of action is vested in the Wife as the administratrix.

19.  Hence the context in which the present application should be considered. The view which this court needs to form for the present purpose is whether or not the Wife should remain or be replaced for the due and effective administration of such part of the Estate.

20.  On the basis that the Wife has not come forward to rebut the plaintiffs’ allegations, one may say that all of the plaintiffs’ complaint are proven. That aside, what is indisputable is that the Wife has been adjudged bankrupt at least at one point. It is also indisputable that the Wife has paid no heed to the funeral expenses which the plaintiffs have spent, be it HK$125,000.00 as alleged or any amount, and expected to be reimbursed by the Estate. It is equally indisputable that the Wife has been absent from the family at least since the passing of the Deceased.

21.  In my judgment, the above suffice to cast sceptical light on entrusting the Wife with the carriage of the common law claim as the remaining, but significant, part of the administration of the Estate, even if she may come forward. When the prospect of her appearance is uncertain, it is clearly undesirable, if not detrimental, to lock up the right of action in the common law claim in her.

22.  Further, insofar as the FAO claim is concerned, given the background mentioned above, it is unlikely that replacement of the Wife as the administratrix would have any adverse impact on the investigation and formulation of the claim for loss of dependency of the Mother and the Son, irrespective of whether the Wife may also come forward to assert her dependency claim.

23.  In my judgment, due and effective prospective administration of the Estate of the Deceased, which entails the pursuit of the common law action already commenced in the interest of the beneficiaries, justifies the removal of the Wife as the administratrix.

THE RELIEF

24.  By the originating summons, the plaintiffs sought the appointment of them in place of the Wife as the co-administrators of the Estate. Due to change of circumstances, they now sought the appointment of the Son as the replacement administrator instead. This differs from the major relief sought. Hence this court’s concern about the necessity for the amendment of the originating summons.

25.  Counsel proposed that the claim for “further or other relief as the court sees fit” under the originating summons should accommodate the change without amendment. I expressed my reservation about stretching such catchall relief beyond the scope of ancillary or incidental relief to cover an essentially different substantive relief. As an alternative, I accepted the undertaking by the plaintiffs through counsel to amend the originating summons to include the Son as an alternative candidate for appointment in view of the change of circumstances since the commencement of proceedings. I proceeded to consider the application as so amended.

ORDER

26.  Upon the undertaking of the plaintiffs to file within 7 days the originating summons duly amended to include the Son as an alternative administrator in place of the Wife:

(1) The Wife be removed as the administrator of the Estate and the Son be appointed as the administrator in her place;

(2) Leave to the Son as the administrator to obtain the Letters of Administrations in respect of the Estate;

(3) The Letters of Administrations granted to the Wife with respect to the Estate (Grant No. HCAG006808/2022) be revoked, and the same be lodged for cancellation[1];

(4) The Wife do give a full and proper inventory and account on oath of all the assets and monies of the Estate and their substitute and/or proceeds; as well as of her dealings therewith (if any) upon the issuance of the Grant No. HCAG006808/2022 up to the date hereof; and all properties and benefits or their present equivalent acquired or derived therefrom (if any), within 28 days from the date hereof;

(5) The Wife do take all necessary steps to deliver up the assets, monies and proceeds in her hands representing the assets, monies and proceeds of the Estate (including all the title deeds and documents in relation thereto in her hands) to the Son to be held for the Estate (if any), within 28 days from the date hereof;

(6) The Wife do pay the Son as the administrator of the Estate all sums found due on the taking of such accounts (if any);

(7) This Order together with the amended originating summons pursuant to the undertaking mentioned above be served on the Wife in the manner as set out in paragraph 1 of the order of this court dated 11 November 2025.

(8) The plaintiffs’ costs (including all costs reserved) be paid by the Wife personally, to be taxed if not agreed; and

(9) The plaintiffs’ own costs be taxed in accordance with the Legal Aid Regulations.