NG KWOK WING v. ng KWOK FAI in the capacity of the executor of the estate of TANG FU, Deceased

HCMP 563/2023

[2025] HKCFI 600

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 563 OF 2023

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REASONS FOR DECISION

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Introduction

1.  By an Originating Summons dated 11 April 2023 (“the OS”), Mr Ng Kwok Wing (“Collin”) commenced these proceedings (“the OS Proceedings”) against his brother Mr Ng Kwok Fai (“Fai”) in the capacity of the executor of the estate of their late mother Madam Tang Fu (“the Deceased”) for, among other matters, an order of revocation of the grant of probate in respect of the estate of the Deceased to Fai, removal of Fai as executor of the estate of the Deceased and a fresh grant of letters of administration with Will annexed to their eldest sister Madam Ng Yuk Mui (“Mui”).

2.  By summons dated 24 July 2024 (“the Summons”), Fai applies for a stay of the OS Proceedings pending the final determination of HCAP 14/2024 (“the Probate Action”). The Probate Action was commenced by Mr Lee Chi Shing (“Lee”) against Fai by a Writ of Summons dated 16 April 2024 endorsed with a statement of claim dated 10 April 2024 (“the SOC”).

3.  Mr Pang appeared for Collin and Mr Wong appeared for Fai at the hearing of the Summons. At the conclusion of the hearing, I acceded to the application of Fai and ordered a stay of the OS Proceedings pending the final determination of the Probate Action. I ordered that Collin do pay costs of the Summons to Fai summarily assessed at HK$150,000.[1]

4.  I indicated to the parties that I would hand down the reasons for my decision shortly. This now I do.

Background

5.  The Deceased was the natural mother of Mui, Collin, Fai, Ng Yuk Lan (“Lan”) and Ng Yuk Ling Sandie (“Sandie”). Lee is allegedly another natural son of the Deceased in another marriage.

6.  The Deceased passed away on 20 March 2021. She made her last will dated 7 September 2011 (“the 2011 Will”) whereby Fai was appointed as the sole executor of the estate of the Deceased (“the Estate”).

7.  The Estate comprises principally 4 properties (“the Properties”) and one share in a locally incorporated company known as Rainbowfar Investment Limited (“Rainbowfar”). Rainbowfar is a shelf company acquired by the Deceased over two decades ago for property holding purposes. At the present moment, Rainbowfar is the registered owner of a flat in Albron Court, 99 Caine Road, Hong Kong (“the Albron Court Flat”).

8.  Three of the Properties are registered in the sole name of the Deceased. The remaining one is registered in the joint names of the Deceased and Sandie as tenants-in-common.

9.  The Deceased devised her beneficial interest in the Properties to Collin, Lan, and Fai under the 2011 Will.

10.  The OS Proceedings are just one of the several litigations involving Collin and Fai in relation to the Estate.

11.  Collin is a practising solicitor and the sole proprietor of Messrs Collin Ng & Co (“the Firm”). The Firm acts for Collin in these proceedings.

12.  Collin has made two affirmations to support his application in the OS Proceedings. Three broad grounds are advanced in his 1^st affirmation.

13.  First, Fai has failed to make full and frank disclosure of the administration of the Estate.

14.  Second, Fai has not dealt with the administration of the Estate since the grant of probate for over one year.

15.  Third, there is no mutual trust between Fai and the other beneficiaries of the 2011 Will, i.e. Lan and Sandie.

16.  On 28 March 2024, the Firm sent a letter before action to Fai on behalf of Lee (“the 1^st Letter”). In the 1^st Letter, the Firm stated that it was instructed that the Deceased had in fact prepared and executed several wills prior to her demise and in such wills, the Deceased had made various bequeathments that do not align with the contents of the 2011 Will. It was further alleged that Fai was in possession of such other wills.

17.  On 11 April 2024, by a letter issued by his solicitors, Fai denied the allegations of any other wills and asked for further particulars of those allegations.

18.  On 15 April 2024, the Firm replied by way of a letter on behalf of Lee (“the 2^nd Letter”) that Fai had in July 2020 admitted in front of the other siblings (Lan, Sandie, Collin and Mui) that the Deceased had made several wills.

19.  On 16 April 2024, Lee, acting in person, filed the Writ of Summons in the Probate Action and the SOC endorsed therewith was dated 10 April 2024. The SOC was written in the Chinese language by Lee.

20.  In the SOC, Lee alleges that he learnt about the existence of the 2011 Will from Lan, Sandie, Collin and Mui (“the Other Siblings”) in August 2023. He further alleges that the Deceased before her death told him that she had executed a will where she would bequeath 50% of her beneficial interest in one of the Properties to him. She also told him that Sandie and Mui were the beneficiaries. Therefore, the contents of the 2011 Will differ from the indication of the Deceased to him.

21.  On the other hand, Lee says that after discussion with the Other Siblings he found out that Fai in July 2020 told the Other Siblings that the Deceased had executed several wills and in one of such wills, Collin is appointed as the sole executor of the Estate. In another will, Lee, Mui and Sandie are the beneficiaries.

22.  Thus, Lee believes that the 2011 Will is not the last will of the Deceased. Lee sets out further particulars to support his belief which include the allegation that Collin is very successful and he is not only a practicing solicitor but also a practicing accountant. Collin made the Deceased proud and the Deceased placed full trust in Collin. It is more probable that the Deceased appointed Collin rather than Fai to be the executor of the Estate.

23.  Lee also pleads that there is another possibility that the 2011 Will was executed by the Deceased under the undue influence of Fai.

24.  In the prayer for relief, Lee asks for, among other things, a declaration that the 2011 Will is not the last will or is an invalid will and an order that the last will if found in other wills of the Deceased be proved in solemn form.

25.  By summons dated 18 October 2024 (“the Striking-Out Summons”), Fai applies for an order that the SOC be struck out pursuant to O.18, r.19, the Rules of the High Court (“the RHC”). Up to the present moment, the parties have yet to finish the filing of their evidence and the date of the substantive hearing of the Striking-Out Summons has not been fixed.

Applicable legal principles

26.  Section 16(3) of the High Court Ordinance, Cap.4 and O.1B, r.1(2)(e) of the RHC give the court the discretion to grant a stay of proceedings generally or until a specified date or event.

27.  As to how the discretion should be exercised, Recorder Eugene Fung SC in Lok Man Sin v Lam Chi Wing [2019] HKCFI 56 at §20 said this,

“The Court’s approach in an application for a temporary stay of proceedings is to consider the balance of convenience and fairness as between the parties. Its discretion should be exercised in such a manner to ensure that its procedures are used in a logical, fair and cost-efficient manner. Whether or not a temporary stay of proceedings should be granted is a question of case management. See Clinton Engineering Ltd v B-Tech (Holdings) Ltd (unreported, HCA 3608/1998, 28 September 2001) §9 (Recorder A Liao SC); SWE Ltd v Chong Lai Fun (unreported, HCA 1064/2004, 28 October 2004) §27 (Reyes J); Re Chime Corporation Ltd (unreported, HCMP 4146/2001, 11 March 2005) §14 (Kwan J).””

Discussion

28.  Mr Wong submitted that all the reliefs sought in the OS Proceedings could only be granted on the basis that the 2011 Will is the last and valid will of the Deceased. Since the crux of the Probate Action is whether the 2011 Will is the last and valid will of the Deceased, the outcome of the Probate Action may be dipositive of the OS Proceedings. It follows that logically speaking the Probate Action must first be determined.

29.  A similar situation appeared in the Lok Man Sin case. There, the plaintiff in the originating summons proceedings sought the transfer of a property belonging to the estate of his late mother against the brother who was the executor under the will made in 2015. Subsequent to the commencement of the originating summons proceedings, another son of the late mother commenced a probate action against the defendant and the plaintiff seeking to propound an earlier will of the late mother made in 2012.

30.  The learned Recorder held that there was a logical and obvious reason as to why the originating proceedings should be stayed pending the resolution of the probate action. If the earlier will was propounded by the court in the probate action, the plaintiff in the originating proceedings would not be entitled to any relief. The court’s rulings in the probate action would likely be wholly determinative of the originating proceedings.

31.  The learned Recorder further noted that similar reasoning was applied by L Wong J in §§20 and 21 in Chan Shui Hing v Chan Kin Keung (unreported, HCA 2658/2015, 10.11.2017).

32.  Mr Wong submitted that on the allegations of Lee the court in the Probate Action might find that the 2011 Will was not the last will or invalid and another will was the last will. Such findings would disentitle Collin to any relief in the OS Proceedings. He must be right.

33.  Mr Pang submitted that unlike the Lok Man Sin case, in the Probate Action, no will is sought to be propounded and the OS Proceedings did not concern property transfer.

34.  The distinction is without a difference.

35.  The OS Proceedings are firmly premised on the 2011 Will being the last will. The title of the OS makes this beyond doubt. The supporting affirmation of Collin (at §5) states unequivocally that the 2011 Will is a valid and the last will of the Deceased. If the 2011 Will is declared to be invalid or not to be the last will of the Deceased as prayed by Lee in the Probate Action, there is utterly no basis for Collin to ask for any relief in the OS Proceedings at all.

36.  Mr Pang further submitted that Fai had to give a true and perfect inventory and account of the Estate sought in the OS Proceedings in any event. I do not agree that the court would grant a relief in the OS Proceedings without consideration of the soundness of the claim.

37.  Mr Pang submitted, in a similar vein, that in the event that in the Probate Action the 2011 Will was found to be invalid and there was no other will to be propounded, the law of intestacy would apply and in accordance with Non-Contentious Probate Rules, Mui being the eldest child of the Deceased and having the trust of other siblings in the family would be in the best position to be appointed the administrator of the Estate. This is what Collin asked for in the OS.

38.  This submission suffers from the same flaw. Actually, it is even worse in that in the OS, Collin prays for an order that a fresh grant of letters of administration with Will annexed be granted to Mui. Mui would then administer the Estate in accordance with the 2011 Will, which should be invalidated if Lee obtains judgment in the Probate Action.

39.  Mr Pang lastly submitted that the Striking-Out Summons reflected the view of Fai on the weakness of the Probate Action. It is unreasonable to delay the OS Proceedings by an unmeritorious claim in the Probate Action.

40.  To begin with, the merit of the Probate Action is not a material consideration in the application for a stay.

41.  More importantly, Collin was heavily involved at least at the infancy stage of the Probate Action. Collin used the Firm to assist Lee in formulating the claim and his full name was given in both the 1^st and 2^nd Letters as the contact person. The SOC was prepared between the 1^st Letter and the 2^nd Letter when the Firm acted for Lee. The allegation that the 2011 Will is not the last will in both the 1^st Letter and the SOC is made purportedly on the information of the Other Siblings including Collin. Collin plainly played a pivotal role in the commencement of the Probate Action. It lies ill in the mouth of Collin to say that Lee’s claim in the Probate Action is not bona fide.

42.  It is only logical that such a serious issue of enforceability and validity of the 2011 Will in the Probate Action should be determined first before the OS Proceedings are allowed to be proceeded with.

43.  Of course I should take into account the balance of convenience and fairness in this application.

44.  Mr Pang reminded this court of the nature of the OS Proceedings. It is essentially an administration action intended for prompt resolution of any problems in the administration of an estate. He submitted that the OS Proceedings should not be delayed by the Probate Action.

45.  I am unable to accept that it is a genuine concern of Collin. He started the OS Proceedings in April 2023 and the parties finished filing their evidence on 24 October 2023. He did nothing until 28 May 2024 to fix the first hearing of the OS. He has not proffered any explanation for his inaction for such a long period of time.

46.  Instead of working on the OS Proceedings to secure a quick conclusion, Collin helped Lee to bring the Probate Action against Fai by adopting an inconsistent position himself. The core allegation in the Probate Action of the invalidity of the 2011 Will literally destroys the very basis of his application by the OS. Collin is yet to explain why and how he could take two different stances on the same matter and purportedly provide such information to Lee to make the allegations in the Probate Action. He cannot be heard to complain about any delay owing to the Probate Action.

47.  On the other hand, Fai on behalf of the Estate brought an action against Collin under HCA 1168/2023 (“the Share Action”). It concerns the shareholdings of Collin and the Deceased in Rainbowfar. For about 3 decades, each of Collin and the Deceased held 1 share (being 50% of the shareholding) in Rainbowfar. It was only in October 2020, 5 months before the demise of the Deceased, that 9,998 new shares were allotted and subscribed by Collin at the consideration of HK$9,998. It should be borne in mind that Rainbowfar then held and still holds the Albron Court Flat. The shareholding of the Deceased was diluted from 50% to 0.01% and that of Collin was drastically increased from 50% to 99.99% as a result of the allotment.

48.  By the Share Action, the Estate seeks to set aside the allotment and restore the 50% shareholding of the Deceased in Rainbowfar.

49.  Collin applied for a stay of the Share Action and his application was dismissed by a master on 17 May 2024. He did not appeal against the dismissal. Within a week thereafter, Collin resumed working on the OS Proceedings and fixed a date for the first hearing of the OS.

50.  It is just too obvious why Collin wants to remove Fai as the executor of the Estate and replace him with Mui by the OS. The removal of Fai would have an impact on the Share Action to say the least.

51.  That said, whatever the motive of Collin is, as a matter of logic, the OS Proceedings should be stayed pending the final determination of the Probate Action. The delay is unavoidable and justified in the circumstances.

Conclusion

52.  For the reasons given, for case management purposes, a stay of the OS Proceedings is necessary and the Summons must be allowed. The opposition of Collin is not reasonable and I saw no reason why costs should not follow the event.

53.  In the premises, I granted the stay and ordered costs against Collin.