RE MOONG (or MUNG or MONG) HOI alias MOONG SHU WING

1988, No. M.P.1104

IN THE HIGH COURT OF JUSTICE

HONG KONG

MISCELLANEOUS PROCEEDINGS

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JUDGMENT

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1. This application is concerned with the estate of Moony (or Mung or Mong) Hoi alias Moong Shu Wing, deceased. The late Mr Moong died intestate on the 30th January 1959. Letters of Administration were granted to Kong Kiu and Mon On on the 3rd September 1960. This court has not been given a copy of the Letters of Administration, nor has sight of the death certificate.

2. The family history of the deceased is described on only scanty information in the affirmation of Mr Au Yuk Lun, Anthony, a partner of Messrs. Au and Wong, former solicitors acting for the estate of the said deceased. Messrs. Au and Wong was dissolved in October 1983 and the matter was taken over by Messrs. Anthony Y.L. Au & Company, who are the applicants in the instant summons.

3. The court is informed that Mr Au wrongly advised the two surviving daughters of the deceased as to their entitlement on his intestacy. The Letters of Administration have not been disclosed, and the court has only the statement in the affirmation of Mr Au filed herein on the 21st June 1988 that the estate comprised two flats "amongst other things". The court is not being assisted on the extent of the estate nor even the market value of these two flats.

4. Apparently a Deed of Family Arrangement bearing the date of the 12th February 1981 was entered into. It appears from the copy Land Office Memorials of the two flats that the parties to it were Kong Kiu, Mun Man Nui and Mun Man Ying. On the same day, apparently, two assignments were executed of these two flats, one in favour of Mun Man Ying and another in favour of Mun Man Nui. It is not very clear as to why these two assignments were executed save and except that both affirmations of Mr Au could be possibly construed together as suggesting that because of an erroneous opinion he held and gave to the administrators, the Deed of Family Arrangement was executed as were these two assignments.

5. Mr Au claims that on counsel's advice, it is the Tsing Law that should apply to the distribution of the deceased's intestate estate with the result that the nephew Mon Kin Leung, son of the deceased's younger brother Mon On is the sole beneficiary. According to paragraph 10 of Mr Au's said affirmation filed on the 21st June 1988, Mr Au was instructed that the nephew does not wish to make any claim to the two properties. The source of that information or instructions has not been divulged. Counsel for the applicant informs the court that Mr Au received the same from the nephew and that the omission could be rectified by a further supplemental affirmation. It would still remain unclear whether Mr Mon Kin Leung, the nephew wishes to make any claim to the residuary estate of the intestate.

6. The court is left in the dark as to how many persons, apart from the parties to the Deed of Family Arrangement, are interested in the estate of the intestate or otherwise affected by its provisions.

7. Mr Mon Kin Leung is obviously a necessary party to this application. Even assuming that he is, indeed, disinterested in raising any claim to the two flats, his entitlement to the residuary estate of the intestate would probably be affected by the said Deed of Family Arrangement.

8. The two daughters who took the flats under the said assignments are also not parties to the instant summons.

9. Naturally, Madam Kong Kiu and Mr Mon On, the widow of the intestate and his surviving younger brother, and the two daughters should have been joined as signatories to the said Deed of Family Arrangement.

10. It is said that the nephew, son of Mon On, is the sole beneficiary, and that the rest of the personalities cannot have any interest because of counsel's opinions. Even so, at least, the administrators should have been joined.

11. The court has absolutely no idea as to what other persons were affected by the provisions of the said Deed of Family Arrangement which has not been exhibited. The court has not even been supplied with a family tree or any comprehensive background information of the family.

12. The summons of Messrs. Anthony Y.L. Au & Co. seeks an order that the said Deed of Family Arrangement and the assignments be both declared null and void and a further order that the registration of these documents be vacated from the Land Office Register.

13. The instant summons was filed on the 21st June 1988. The matter came before Barnett, J. in Chambers on the 24th June. It was adjourned sine die for filing further affidavits. A supplemental affirmation of Mr Au was caused to be filed on the 9th July 1988. In no way has any of the above fatal flaws been remedied. I intimated to counsel for the applicant that the court would virtually be driven to dismiss the application in the end. Counsel made a strong plea for the applicant that no party seemed to be interested and that the two properties in question should best be returned to the administrators for distribution according to law. Counsel invited this court to accede to the application. Alternatively, counsel sought an adjournment, presumably for yet further affirmations to be filed.

14. The application cannot be proceeded with in the absence of all the proper parties. Documents can be produced, statements could be supplemented, but the continuation of these proceedings without the proper parties could, in my view, give no comfort to anyone at all. Moreover, the Court must be assured that no one interested or prejudiced would resist the application, and the documents must be made available for perusal. The court was also invited, if minded to have the application adjourned or even dismissed, to grant a protective order, the terms of which were not canvassed. I fail to see how any order granted in these proceedings could, as they now stand, possibly protect any one, including the former and present solicitors of the estate. The papers have not been served even on the nephew. Any further adjournment would be futile. It would be best for proceedings to be properly recommenced together with a joinder of all the proper and necessary parties.

15. Counsel for the applicant suggested that the application was in a format permissible by Tsing Law. That cannot be correct. Procedure is a matter not to be governed by Tsing Law but by the Hong Kong substantive procedural law encompassed in the Rules of the Supreme Court. The instant application must therefore be dismissed, and I dismiss it.