LI CHEONG v. LEE KWAI TAI also known as LI KWAI TAI

HCAP 32/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 32 OF 2012

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J U D G M E N T

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1.  This probate action concerns the estate of Sang Lee also known as Li Tin-sang, the deceased, who passed away intestate on 22 February 1985.  The plaintiff alleges to be the lawful and natural nephew of the deceased.  He alleges that the deceased had no wife, issue and surviving parents in his statement of claim.  The plaintiff claims to be entitled to administration according to Rule 21(1) of the Non-Contentious Probate Rules, Cap 10A.

2.  This action was brought against the defendant because the plaintiff refused to accept the defendant’s claim to be the only issue of the deceased and, hence, the sole beneficiary of the estate of the deceased.

3.  On the first day of the trial of this action ie, 22 September 2015, on the basis of an agreement between the parties that a DNA expert report would be cogent evidence relating to the core issue of these proceedings, ie, the blood relationship between the plaintiff and the defendant, this trial was adjourned to today pending the availability of such a DNA report.

4.  During the adjournment, a DNA test report was obtained.  All  the plaintiff, the defendant and two brothers of the plaintiff were the subject matters of the DNA test. The DNA test report, dated 15 December 2015, has been made available to this court.  It suffices for me to refer to its conclusion that the defendant is very likely a biological cousin of the plaintiff and his two brothers.

5.  Since 9 November 2015, the plaintiff has acted in person.  By the second affirmation of Yam Chun-wing, this court is convinced that on 13 May 2016, the notice of this hearing was effectively served on the plaintiff.  The plaintiff fails to attend this trial, and I am satisfied that the trial should proceed in his absence given his knowledge of these proceedings.

6.  First, in light of the plaintiff’s absence in this trial, I strike out his claim entirely. There is no evidence that the plaintiff intends to prosecute his claim anymore.

7.  On the other hand, I still have the defendant’s counterclaim to deal with.  In her counterclaim, the defendant, now 84 years old, wheelchair bound and in obviously poor physical condition, insisted that she is the lawful and natural daughter of the deceased.  She puts the plaintiff to strict proof that he is the nephew of the deceased.  On the basis of her alleged relationship with the deceased, she counterclaims for declaratory relief and a grant to her the letters of administration of the estate of the deceased.

8.  The first witness called by the defence is Madam Chan Tsui‑shan.  She is the adopted daughter of the defendant.  She testified and confirmed the truth in her witness statement.  In her witness statement she related her interaction with her grandfather, namely the deceased, in London. They had a good relationship and the deceased attended her wedding banquet in Chinatown, England in 1974.  There is no contrary evidence to contradict her account.  I accept her evidence.

9.  The defendant attended the trial.  She was barely able to speak in court.  After taking the oath in the witness box with serious difficulities, this court observes that her oral testimony is not necessary in the circumstances of this case and this court is satisfied that her witness statement should be accepted and full weight should attach to her witness statement.

10.  In her witness statement, the defendant gave an account of her childhood memory about her father,  that is the deceased, who was a sailor, seldom staying at home in Hong Kong with her.  When she was in her 20s, both the deceased and she resided in England.  The defendant relocated to Hong Kong in the 70s with her family and she went back to England to attend the funeral service of the deceased in 1985. The plaintiff’s brother, Mr Li Cheung, was one of the persons who handled the funeral service. 

11.  Since there is no contrary evidence, I have no reason not to accept the evidence of the defendant.  Their evidence, coupled with the DNA test results, convinces this court that on the balance of probabilities the defendant is the lawful and natural daughter of the deceased.  Hence, she is entitled to the relief set out in her counterclaim. 

12.  As regards the declaratory relief to the effect that the deceased died intestate, it is not an issue in these proceedings at all and the plaintiff has never contended otherwise.  I see no reason why I should not grant such a relief to the defendant.

13.  In the result, I allow her counterclaim in full with costs against the plaintiff, to be taxed if not agreed.

14.  For the avoidance of doubt, I also dismiss the plaintiff’s claim in its entirety.