RE JOSE GUILLERMO SAM CHANG

HCAG 2941/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 2941 OF 2000

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D E C I S I O N

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Application

1. This is the 4th application on the Non-Contentious Probate List.  It has taken more than 5 years to try to determine the domicile of the Deceased.  The solicitors for the applicant are now seeking to resolve it before me through the new list.

Background

2. The Deceased died intestate in the Republic of Guatemala on 18 March 1999 leaving an estate of about $3.4 m in Hong Kong.  On 11 April 200, the applicant, being the lawful widow and relict of the Deceased, through her solicitors, filed her application for grant.

3. Since the Deceased worked, married and died in Republic of Guatemala, legalization and translation of the death certificate of the Deceased, the marriage certificate between the applicant and the Deceased, and so forth have taken quite some repeated efforts of the solicitors.

4. Meanwhile, a series of requisitions have been raised to ascertain the domicile of the Deceased since 8 May 2000.

          (a) On 8 May 2000:

“ 8. The deceased died outside Hong Kong, please adduce evidence to show that he was domiciled in Hong Kong.

9. Please file a photocopy of the Hong Kong identity card and a full set of the travel document of the deceased.

10. Subject to req. no. 8 above, please provide authority that the applicant is in a position to apply for a grant of representation without complying with rule 19 [sic.29] of the N.C.P.R., Cap. 10.”

          (b) On 25 September 2000:

“ 15. Please adduce evidence to prove that it was the intention of the deceased to treat Hong Kong as his place of domicile.  Please note that the deceased died outside Hong Kong and condition was imposed during his stay in Hong Kong.”

          (c) On 22 May 2002:

“ 25. In view of your said letter, please adduce evidence to prove that it was the intention of the deceased to treat Hong Kong as his place of domicile.”

          (d) On 8 October 2002:

“ 31. Photocopy of the deceased’s H.K.I.C. is only a document.  Please adduce evidence which shall be in the form of affirmation/affidavit to prove that it was the intention of the deceased to treat Hong Kong as his place of domicile.  (Please also note that the deceased was of Guatemalan nationality and condition of his staying in Hong Kong was imposed.)”

          (e) On 9 December 2002:

“36. Please amend (11) to adduce further evidence to show that it was the intention of the deceased to reside in Hong Kong permanently and treat Hong Kong as his place of domicile.  (Please note that he only stayed in Hong Kong for a few days since 1989 and condition were imposed on his staying in Hong Kong.)”

          (f) On 28 February 2005:

“41. Your letter of 30.12.2004 with enclosure is not sufficient to comply with req. no. 36.  Please amend (11) to adduce further evidence to prove the intention of the deceased to regard Hong Kong as his place of domicile.  (Please note that a purchase of the landed properties is not sufficient since condition was imposed on the stay in Hong Kong in relation to the deceased.)”

5. To sum up, the applicant, so far, has attempted to answer the above requisitions by supplying this Court with:

(a) a copy of identity card of the Deceased,

(b) a copy of passport of the Deceased issued by Guatemala,

(c) affirmation [sic. affidavit] of the applicant (1A) re-filed on 11 January 2005:

“ 5. The deceased’s mother CHAN MO CHOY (陳慕才) also known as CHAN NG MUI (陳五妹) also known as Ana Chang predeceased the deceased having died on 11th March 1987 in Hong Kong aged 77 at her death.  The said CHAN MO CHOY was an unmarried woman and was never married to any person.  The said CHAN MO CHOY had no lawful children or issue either surviving or predeceasing her other than the deceased.  The deceased was begotten by CHAN MO CHOY (陳慕才) and her cohabitee Guillermo Sam Chang.

6. ……

7. It was the intention of the deceased to take Hong Kong SAR as his place of domicile and reside in Hong Kong permanently.  He purchased 2 flats in Hong Kong and regularly returned to Hong Kong, nearly annually.”

(d) affirmation of the applicant (11) re-filed on 11 January 2005:

“3. I recall on numerous occasions, the last of which was sometime at the end of 1998, the deceased, my late husband said to me that as long as he had working capacity, he would work in Guatemala.  He would, however, return to live in Hong Kong once he was unable to work any more.

4. The deceased, however, took ill and before he could return to Hong Kong, he passed away in Guatemala.”

(e) Supplemental affirmation of the applicant (15) filed on 4 April 2005:

“3. The deceased was of Chinese origin and born in Canton, China.  Despite of his living and working in Guatemala, it was the intention of the deceased to take Hong Kong SAR as his place of domicile and reside in Hong Kong permanently.

4. The deceased held a Hong Kong Identity Card No. XXXXXXX(X).  The deceased’s mother CHAN MO CHOY (陳慕才) also known as CHAN NG MUI (陳五妹) also known as Ana Chang was a permanent resident and held a Hong Kong Identity Card No. XXXXXXX.  His mother was a permanent resident and there was evidence of her residence in Hong Kong on the 8 July 1976 when she executed an Assignment in Hong Kong for the transfer of the flat known as Flat No. 22 on the 6th Floor of 4 Man Wai Street, Kowloon, Hong Kong to me and the deceased as joint tenants.  She continued to live in Hong Kong until her death in Hong Kong on 11 March 1987. Pursuant to Article 24(3) of the Basic Law, the deceased is a Hong Kong permanent resident.  He passed away before he could take steps to verify and obtain his status of permanent resident.

5. He kept the flat known as Flat No. 22 on the 6th Floor of 4 Man Wai Street, Kowloon, Hong Kong since 1976 as our matrimonial home and later for long term investment until his death.  On the 27th August 1980, he purchased the above-mentioned residence and kept it as our matrimonial home until his death.  In 1990, by Assent, he obtained the ownership of the flat known as Flat 11 on the 7th Floor, Man Ying Building, 13 Man Yuen Street, Kowloon, Hong Kong and he kept it for long term investment until his death.  He intended to take Hong Kong as his home of domicile and kept the 3 properties for matrimonial home and permanent investment after retirement in Hong Kong.  He regularly returned to Hong Kong, nearly annually.

6. The deceased had also maintained 3 Time Deposits in account no. 231-677444, Saving account no. 293-2-212174, Current account no. 293-168514-001; 958-010019-034 and Current account no. 956-009138-001 all with the Hang Seng Bank Limited for over 7 years prior to his death.  The 3 time deposits and the current account were maintained with 6 figures deposit making a total of 7 figures deposit.  He had also maintained an account No. 958-010019-034 with the Hang Seng Real Estate Management Limited.

7. With most of his asset, in real properties and cash deposit kept in Hong Kong for such a long time, it was a clear evidence of his intention of the deceased to take Hong Kong SAR as his place of domicile and reside after retirement in Hong Kong permanently.

8. I make this affirmation to affirm the deceased’s intention to take Hong Kong SAR as his place of domicile.”

6. On 2 December 2005, the solicitor acting for the applicant took out a notice of appointment trying to persuade this Court to accept that the Deceased died domiciled in Hong Kong.  On 9 December 2005, Mr. C.Y. Yau of Messrs. T.C. Lau & Co. appeared before me for the applicant.

7. Now, having considered the evidence, authorities and submission made by Mr. Yau, I am afraid that I am obligated to give directions to inquire the matter further.

The Law

8. The domicile of a deceased person is important.  It not only governs the sharing of the estate by the beneficiaries, but also determines the validity of the Will, if any, and the right to the grant.

9. The law of domicile can be easy.  A legitimate child acquires the domicile of his father.  An illegitimate child follows that of his mother.  It is called the domicile of origin.  When the child grows up, he can make a choice, i.e. domicile of choice.  Acquiring a domicile of choice requires (1) residence, and (2) intention of permanent or indefinite residence.

10. The application of the law of domicile can however be difficult, especially when it is the domicile of a deceased that needs to be determined.  Nonetheless, in my view, the crux is that: whether sufficient evidence has been adduced to satisfy this Court on balance of probabilities that the deceased was domiciled in Hong Kong at the date of his death.

11. Has the applicant done so in our case? I attempt to sum up the evidence before me as follows:

(a) The Deceased was born on 10 July 1929 in China.

(b) The mother did not marry to his father.  The Deceased was therefore an illegitimate child and as such, followed the domicile of his mother. It was therefore the Mainland at the time of the Deceased’s birth.

(c) Sometime, the Deceased decided to join his natural father in Guatemala, but details have not been made known to this Court.

(d) The mother moved from the Mainland to Hong Kong and became a permanent resident here.  On 8 July 1976, she transferred a property in Hong Kong to the Deceased and the applicant as joint tenants.

(e) The Deceased further acquired 2 properties in Hong Kong for long-term investment and they formed part of the estate of the Deceased.

(f) The Deceased also kept deposits about $1.4 m in the banks of Hong Kong at the time of his death.

(g) The Deceased told the applicant that he would like to stay in Hong Kong after his retirement.

12. Upon thoughts, I have the following observations:

(a) When did the Deceased decide to “join” his father in Guatemala?

(b) When he did so, would he mean “changing” his domicile?

(c) Where did he study and work?

(d) I agree that the mother probably changed her domicile from the Mainland to Hong Kong during her lifetime.  However, the Deceased did not necessarily follow that, especially when he might have grown up by such time and established his family in Guatemala.

(e) The Deceased did leave quite some estate in Hong Kong, what about his estate in Guatemala?  What did the applicant do with it?  Has the applicant applied for a grant there? If so, did she confirm with the Guatemala authority that the Deceased died domiciled in Hong Kong?  It is noted that the Deceased held a Guatemala passport at the time of his death.

(f) Finally, it shall be stressed that, upon vetting the passport of the Deceased, this Court spotted that the Immigration had imposed a “conditional stay” on the Deceased.  It has been pursued for some time by the officer since October 2002 but is still left unanswered.

13. In conclusion, although the applicant has filed some evidence, she still needs to do more to fill up the gaps and clear the doubts of this Court as aforesaid.

Conclusion

14. I therefore further direct that:

(a) Supplemental affidavit evidence is to be filed to answer the questions raised in paragraph 12(a) to (e) above.

(b) The  applicant and/or her solicitor shall take up the matters as per paragraph 12(f) above with the Immigration and inform this Court of the nature of the ‘conditional stay’ imposed upon the Deceased, and reasons thereof?