CHEUNG HONG MUI v. LAM MO SZE

HCMP2509/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO. 2509 OF 2010

---------------------------

---------------------------

BETWEEN

---------------------------

---------------------

D E C I S I O N

---------------------

1.  This is an interlocutory application by way of an inter partes summons by the plaintiff against the defendant seeking prohibitive injunction against the defendant restraining her from further dealing with the skeletal remains and burial arrangement in respect of Lam Kwan Hung (“the Deceased”) as well as a mandatory injunction authorizing the plaintiff to deal with those matters.

2.  Effectively, what is sought for by the plaintiff by way of the present interlocutory application are exactly the same reliefs sought in the Originating Summons by which these proceedings were instituted by the plaintiff.

Background

3.  The defendant was born in 1962 and is the natural daughter of the Deceased and Chan Lai Hing.  There is some dispute as to whether the Deceased had gone through a Chinese customary marriage or whether they merely co‑habited.  But as subsequent events will show, this is not a matter upon which a finding of fact will need to be made in order to adjudicate the present dispute between the parties.

4.  After the defendant was born, Chan Lai Hing separated from and left the Deceased.  The defendant though raised by the Deceased, resided with and was brought up by her paternal grandmother (i.e. mother of the Deceased), Tong Pao Chun.

5.  The Deceased, after his separation from Chan Lai Hing, later married the plaintiff in 1969 initially by way of customary marriage and later their marriage was registered on 4 December 1979 pursuant to the Marriage Ordinance.  From this marriage of the Deceased and the plaintiff was born three daughters, Daisy Lam, Nancy Lam and Lam Ming Sze.

6.  On 30 October 1997, the Deceased died of a heart attack.  At the time of his death, the Deceased was still living with the plaintiff and the family in their matrimonial home.

7.  The Deceased died intestate.

8.  The Deceased was interred at the Junk Bay Cemetery, a cemetery managed by the Board of Management of the Chinese Permanent Cemeteries (“CPC”).

9.  After the death of the Deceased, it was the defendant who :

(a)   signed the refusal of post-mortem in respect of the death of the Deceased as the representative of the family of the Deceased;

(b)   applied for and obtained the death certificate in respect of the Deceased;

(c)   paid initially for the gravespace in the Junk Bay Cemetery in which the Deceased was interred (the defendant has since been reimbursed such payment by the plaintiff); and

(d)   arranged for the funeral ceremony in respect of the Deceased.

10.  Letters of Administration in respect of the Estate of the Deceased was granted to the plaintiff by the Probate Registry on 25 October 2004.

11.  By the rules and regulations governing CPC, the skeletal remains of a corpse buried at the CPC had to be disinterred after 10 years and alternative arrangements would then have to be made for the relocation of those skeletal remains.

12.  The defendant, being the licensee vis-à-vis the CPC in respect of the interment of the Deceased at the Junk Bay Cemetery, applied for the exhumation of the Deceased skeletal remains on 27 August 2007 and was granted the authorization for same from both the CPC as well as the Food and Environmental Hygiene Department.  The defendant also applied for an ossuary niche from the CPC for the skeletal remains of the Deceased after its exhumation.

13.  On 2 December 2007 the skeletal remains of the Deceased were exhumed but was found to be not completely decomposed yet.  As a result the skeletal remains were reinterred into the gravespace.

14.  On 12 September 2008, a further attempt at exhumation of the Deceased’s skeletal remains was carried out but once again the body was found not to be completely decomposed and was therefore reinterred into the gravespace.

15.  In April 2009, the plaintiff, when visiting the gravespace of the Deceased discovered that the gravespace had signs of being dug up and upon enquiries made, learned for the first time of the rule for the 10 year interment by the CPC as well as the requirement for exhumation of the skeletal remains after the 10 years and the two earlier attempts at exhumation of the Deceased.

16.  On 8 May 2009, the plaintiff, through her solicitors, ONC Lawyers, wrote to the CPC requesting permission to deal with the skeletal remains of the Deceased.  This started a flood of correspondence between the plaintiff’s solicitor, the defendant’s solicitors and CPC with allegations and counter allegations being made between the plaintiff and the defendant through their respective solicitors.

17.  In the meantime, CPC had granted several extensions of time for the retrieval of the skeletal remains of the Deceased pending agreement between the parties.  The present extension granted by CPC runs up to 29 July 2011.

18.  By its letter dated 2 September 2009, CPC has indicated that they take a neutral position as to the dispute between the plaintiff and the defendant as to who has the right to retrieve and to deal with the skeletal remains of the Deceased.

19.  Unfortunately, the parties cannot arrive at an amicable settlement in the matter.

20.  The Originating Summons herein was then issued by the plaintiff on 20 August 2010.

21.  This was followed by the present Inter Partes Summons dated 9 December 2010 dealt with in this Judgment.

The applicable principles

22.  The applicable principles, which are not in dispute between the parties, have been considered and stated by Au J in the case of Re Estate of Lu Han Lung [2010] 3 HKLRD 651 and can be summarized as follows :

(a)   There was no property in a corpse.

(b)   A person could not dispose of his body by a will and any direction on burial therein or otherwise by the deceased was void and not enforceable.

(c)   As a starting position, the executor named in a will or the known personal representative in intestacy was entitled to possession of the body and responsible for its burial.  The right of the surviving spouse or de facto spouse would also generally be preferred to the right of the children.

(d)   However, certain circumstances might justify a departure from this starting point, such as where in the case of intestacy, no one had indicated a willingness to apply for the administration of the deceased’s estate.

(e)   A person privileged with choosing how to bury a body was expected, but not legally bound, to consult other stakeholders.  He also could not use his right so as to exclude the deceased’s friends and relatives from expressing their affection for him in a reasonable and appropriate manner.

23.  As already indicated, there is no dispute between the parties in respect of the principles stated.  What is in dispute in the present case is the application of those principles to the facts and circumstances of this case.

The present application

24.  The present application is for interlocutory injunctive reliefs and the principles laid down in the case of American Cyanamid would apply.  Those principles are so well known that I need not repeat them here.

25.  In the present case, I have taken note of the fact that although this is an application for interlocutory injunctive reliefs including an interlocutory mandatory injunction, once the injunction is granted, in substance, the plaintiff would have gotten all the reliefs prayed for in the originating summons

26.  It is therefore necessary for me to bear in mind that I would have to be satisfied that the grant of the interlocutory injunction sought is justified not only on balance of convenience and also by reason of its urgency, but I must also feel “a high degree of assurance” that at the trial it will appear that the injunction was rightly granted the reason being that mandatory interlocutory injunctions carry a higher risk of injustice and the court must take care in weighing the balance of convenience (see marginal note 29/1/30 Hong Kong Civil Procedure 2011).

27.  Firstly, the urgency in this matter having to be decided and resolved with some haste is the fact that the deadline given by CPC runs only to 29 July 2011 after which date, the CPC has indicated that if the dispute is not or cannot be resolved between the parties, the CPC will take it upon itself to exhume the skeletal remains of the Deceased from the gravespace and which will then be placed in an open bone storage.  This undoubtedly would be highly unsatisfactory to the family of the Deceased and therefore require this dispute to be speedily adjudicated and resolved before that deadline is reached.

28.  Secondly, it is common grounds between the parties that given the circumstances of this dispute between the parties, damages will, quite obviously, not be an adequate remedy to either of the parties.  In this respect therefore, it leads to consideration of the balance of convenience between the parties.

29.  The plaintiff’s application is straightforward.  It was submitted that the plaintiff, having been granted Letters of Administration in respect of the Estate of the Deceased, applying those principles stated above, the starting position makes her the proper person entitled to the rights to decide on the burial arrangements in respect of the Deceased as against any other family member including the defendant.

30.  On the other hand, it was contended by the defendant that the starting position has been displaced in this case.  That argument of the defendant is based on the fact that the defendant was the person who applied for the death certificate in respect of the Deceased and made all the subsequent arrangements with CPC for the interment of the Deceased body at the Junk Bay Cemetery and being the licensee recognized and dealt with by CPC in that respect.

31.  While factually the defendant is correct to say that she was the person who had made all the necessary arrangements with CPC (and for that reason is the licensee recognized by CPC) for the interment of the Deceased at the Junk Bay Cemetery, those facts on their own do not displace the starting position in the principles stated above.

32.  In this respect, it is the plaintiff’s case that upon the death of the Deceased, the defendant and her husband had offered to take care of the funeral arrangements and the burial of the Deceased.

33.  On the other hand, it is the defendant’s case that the plaintiff and her daughters as well as other relatives have agreed that the defendant should handle the funeral arrangements and burial of the Deceased.

34.  It would appear that there is here a factual dispute.  However, it is unnecessary to resolve that factual dispute because whichever way one views the matter — whether the defendant offered to handle the funeral arrangements or whether other family members including the plaintiff had asked her to do so — there is clearly no indication that the plaintiff had, by so doing, relinquished her rights to possession of the body of the Deceased for the purpose of its burial.  It is not argued by the defendant and it is not the case of the defendant, that the plaintiff had relinquished those rights of hers which entitle the plaintiff, as the surviving spouse of the Deceased, to possession or custody of the body of the Deceased for burial.

35.  The fact that a person entitled to the possession of a body for its burial may entrust the physical arrangements for burial to some other member of the family without relinquishing his rights was amply highlighted by Au J in the case of Re Estate of Lu Han Lung (ibid) when he said at para. 44 (page 663) :

“…Given her age, it is not unreasonable to expect that she [the plaintiff] may have to entrust others, including the Eldest Son, to physically carry out some of the steps or errands to arrange for the funeral and burial services for the Late Mr. Lu. But that does not render it, as suggested by Mr. Chow, that she is in reality not the one who decides how the funeral and burial of the Late Mr. Lu should be carried out.”

36.  Therefore in the absence of any evidence or even suggestion to the effect that the plaintiff had relinquished her rights to the body of the Deceased for its burial, I am not persuaded that the starting position has been displaced in this case.

37.  A secondary point argued by the defendant is that the plaintiff did not become the Administratrix of the estate of the Deceased until 25 October 2004.  Therefore it is argued by the defendant that when the defendant made all the arrangements with CPC for the funeral and burial of the Deceased in 1997, the defendant could not have been acting as “the agent” of the plaintiff.

38.  If the suggestion by the defendant to this point taken is that the plaintiff did not have the “right to possession” of the Deceased body in 1997 when the funeral and the interment of the Deceased body was made, then the short answer to that is under the principles enunciated above, the plaintiff, as the lawful wife and surviving spouse of the Deceased, would be the person preferred as against the rest of the family including the children of the Deceased to the right of possession of his body for burial, even though at that time she had not been granted the Letters of Administration.

39.  Moreover, the fallacy of this argument by the defendant is shown up by the decision of Au J in Re Estate of Lu Han Lung (ibid) where the rights were given to the plaintiff, being the surviving spouse and the likely personal representative of the deceased in that case, even though she had not been granted letters of administration to the estate of the late Mr Lu.

40.  A further argument put forward by the defendant is that the defendant is already the licensee recognized by CPC for all purposes relating to funeral arrangements in respect of the Deceased.

41.  Quite clearly since the defendant handled all the funeral arrangements in respect of the Deceased in 1997 and was the person who dealt directly with CPC, she would be the licensee from CPC’s point of view.

42.  However, once it had been made known to CPC that there is a dispute within the family between the defendant and the plaintiff as to who has the right to deal with the funeral arrangements in respect of the Deceased, CPC has taken a neutral stance in the matter and are prepared to await the final resolution between the parties, whether amicably by settlement or failing that, by determination of the court.

43.  In short it is not CPC who determines the rights of parties in disputes of this nature but that is a matter for the court failing compromise between the parties — a matter which appears to be only too well recognized by CPC.

44.  A point was also made by the defendant that when her paternal grandmother died, she was also the person who made the arrangements for funeral and burial with CPC with no dispute from any quarter of the family including the plaintiff.

45.  In my view that is a non point for two reasons.  Firstly, there was no dispute from the rest of the family and secondly, the plaintiff, being the surviving spouse of the Deceased, stands in a completely different position vis-à-vis the defendant’s paternal grandmother as compared with the Deceased.

46.  Lastly, it was submitted by the defendant that the present litigation by the plaintiff serves no valid purpose and can only affect the identity of the person who is to carry out the procedure for relocation of the skeletal remains of the Deceased.

47.  On the other hand, the plaintiff’s justification for this litigation is that if the Deceased is allowed to continue and remain as the licensee vis-à-vis CPC in respect of the skeletal remains of the Deceased, under the rule governing CPC, upon the demise of the defendant, the rights of the licensee will pass over to the next-of-kin of the defendant — in this case likely to be her husband.  It is for this reason that the plaintiff wishes to have the rights over the skeletal remains of the Deceased and to retain the entitlement to those rights vis-à-vis CPC within the plaintiff’s own family.

48.  That stance of the plaintiff seems reasonable enough.

Conclusion

49.  For the reasons given above, I take the view that not only is the balance of convenience wholly favours the plaintiff, but also that given all the circumstances of this case, the plaintiff has shown a high degree of assurance that she will succeed at the trial.

50.  I see no reason why the orders sought by the plaintiff in her interlocutory application by Summons dated 9 December 2010 should not be made.

51.  Accordingly, there will be an order in terms of paragraphs 1, 2 and 3 of the Summons dated 9 December 2010.

Costs

52.  There will be a costs order nisi that the costs of the plaintiff’s application and of this hearing be paid by the defendant to the plaintiff to be taxed if not agreed.