CHU KWOK KEE KOOKIE v. MING CHOR PAO AND ANOTHER

HCMP 704/2015

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D E C I S I O N
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Introduction

1.  The main action concerns the validity of an enduring power of attorney purportedly executed by the 1^st defendant appointing the 2^nd defendant (“D2”) as attorney to deal with, among other things, a property in Mei Foo Sun Chuen, Kowloon, Hong Kong (“Property”).  

2.  There were two summonses before this court:

(i) The summons issued on 6 August 2015 by D2 seeking to, among other things, dismiss/strike out the originating summons in this action (“D2’s Summons”) ;

(ii) The summons issued on 15 December 2015 by the plaintiff (“P”) for, among other things, leave to withdraw this action against the defendants (“P’s Summons”).

Background

3.  P and D2 are brothers, D2 being younger, and D1 is their natural mother (“Mother”).

4.  Mother is the sole legal and beneficial owner of the Property, which is her major asset in Hong Kong.

5.  There have been a number of legal proceedings between the siblings.

6.  It is D2’s case that Mother executed an enduring power of attorney on 15 January 2014 appointing him as attorney dealing with, among other things, the Property (“EPA”).  D2 has also claimed that he has in his possession a copy of Mother’s last will dated 24 October 2013 (“24.10.13 Will”).

7.  It is, however, P’s case that Mother has been mentally incapacitated since October 2012, and P has issued an ex parte originating summons under the Mental Health Ordinance on 31 December 2013, namely HCMH 83 of 2013, applying to be appointed as committee to handle Mother’s affairs (“MH Proceedings”).  A copy of P’s ex parte originating summons in the MH Proceedings was then registered in the Land Registry against the Property.

8.  It is further P’s case that all legal documents purportedly signed by Mother under the direction of D2 since 2013 are invalid.  Further, for various reasons set out by P in his affirmation, including allegations that D2 is a habitual gambler and is dishonest, P says Mother would not have executed any enduring power of attorney in favour of D2.

9.  On 13 February 2015, D2 issued a “notice of originating motion” under HCMP 389 of 2015 seeking an order to vacate the registration of P’s originating summons in the MH Proceedings from the Land Registry (“HCMP 389”).

10.  It then came to P’s knowledge that D2 had purportedly pursuant to the EPA signed a provisional agreement and a formal agreement in March 2015 to sell the Property.

11.  This was followed by P issuing the originating summons in the present action on 27 March 2015, seeking the following orders:

(i) The EPA be declared invalid and void;

(ii) Registration of the EPA in the Land Registry against the Property be vacated;

(iii) D2 be forthwith removed as an attorney under the EPA;

(iv) D2 to produce records and accounts of all sums belonging to Mother which had been dealt with by him pursuant to the EPA.

12.  Further, according to P, his late father (“Father”) and Mother had each executed a will in Chinese on 22 November 2010, appointing P as the sole executor under their respective wills.

13.  Father passed away on 12 February 2013, and P was entitled to apply for the grant of probate under Father’s will.  For a number of reasons, there was delay in the application.  However, in the meantime, D2 obtained grant of letters of administration no HCAG007769/2013 (“Grant”) in respect of the Father’s estate. 

14.  P says he intends to take steps to set aside the Grant.

15.  On 10 April 2015, D2 issued another originating summons under HCMP 891 of 2015, in the name of Mother purportedly under the EPA, seeking, among other things, to recover from P all capital due to Mother, including monies in bank, shares, jewellery belonging to Mother and/or Father allegedly taken away by P, an alleged HK $1m loan from Father, and stamps (“HCMP 891”).

16.  On 13 May 2015, D2 further issued a summons to strike out the originating summons herein and to vacate its registration in the Land Registry (“1^st Striking Out Summons”).  The 1^st Striking Out Summons was issued on the basis that P had failed to file an affirmation in support of his originating summons.  This was followed by P’s summons to file his supporting affirmation out of time.  On 20 May 2015, Master Lai granted leave for P to file his supporting affirmation out of time.  D2 lodged an appeal on 21 May 2015, but this was dismissed by DHCJ M Ng on 12 June 2015.

17.  There was delay in the MH Proceedings which P alleged was caused by D2 keeping Mother away from P so that P was unable to arrange for Mother to be medically examined by two registered medical practitioners for P’s application under the MH Proceedings.  It was not until 10 June 2014 that P obtained directions from DHCJ Leung for Mother to be jointly medially examined.  The examination took place on 21 July 2014 before two doctors, Dr CK Wong and Dr John Wong.  Both doctors confirmed that Mother was in a mentally incapacitated condition as at the date of examination.

18.  Eventually, after a substantive hearing in the MH Proceedings, L Chan J appointed P as committee of Mother’s estate on 18 June 2015 (“MH Order”). On 10 July 2015, D2 lodged an appeal against the MH Order (“CACV 162 of 2015”).

19.  In D2’s Summons issued on 6 August 2015, D2 sought again to dismiss/strike out the originating summons herein.

20.  Under paragraph 14 of the MH Order, P, as Committee, is authorized to consider, as he thinks fit, to take action including commencement of litigation to set aside all wills and power of attorney that Mother had executed since February 2013 including but not limited to the EPA.

21.  Pursuant to his powers under the MH Order, on 18 November 2015, P, in his capacity as Committee for Mother, issued an originating summons, namely HCMP 3083 of 2015, seeking, among other things, a declaration that the EPA was invalid and void (“HCMP 3083”).

22.  In light of these developments since the issue of the originating summons herein, in particular the issue of HCMP 3083, P’s Summons was issued to seek leave to withdraw the present action, to avoid duplicity of proceedings.

Discussion

23.  D2 had on 23 June 2015 filed an affirmation in opposition to P’s supporting affirmation in this action.  He had denied the various allegations made against him by P and further referred to a medical certificate of a Dr Shirley Ip who certified that Mother was mentally sound on 15 January 2014, the date of Mother’s execution of the EPA, and another medical certificate of Dr Sylvia Chen who certified that Mother was mentally sound and capable on 10 April 2014.  He sought an order that the EPA be “certified” valid and an order to dismiss P’s originating summons.

24.  D2 did not file any further affirmation after D2’s Summons was issued.  He did not lodge any written skeleton submissions for the hearing before this court.  The oral submissions he made were based on the alleged validity of the EPA, and that he had evidence to support such validity. He opposed P’s Summons for leave to withdraw, and insisted that the originating summons herein should be dismissed.

25.  The mental capacity of Mother at the time of the execution of the EPA and also at the time of her execution of the alleged 24.10.13 Will is clearly a hotly contested issue between P and D2, and there will have to be a full trial on this, and it is anticipated that medical evidence will be called by both sides. 

26.  D2’s Summons seeking a summary dismissal/striking out on the ground that the EPA should be declared valid at this stage without a full trial is thus misconceived.  I am therefore of the view that D2’s Summons should be dismissed.

27.  P has already issued HCMP 3083 in his capacity as Committee for Mother’s estate.  P realizes that he cannot maintain two actions, one in his personal capacity and one in the capacity as Mother’s Committee and that is why he seeks leave to withdraw the present action.

28.  However, as I have pointed out during the hearing, as D2 is appealing and if D2 succeeds, then P’s appointment as Committee may cease or be revoked, and this means P may have to issue another fresh action in his personal capacity again if the present action is withdrawn. P’s Counsel, Mr Wong, explained that he had indicated at the hearing before DHCJ M Ng that P had wished to apply for the present action to be adjourned, pending D2’s appeal against the MH Order but this was opposed by D2.  Mr Wong had further said all along they were of the view that the present action should be adjourned sine die pending D2’s appeal.

29.  There has already been a proliferation of actions between P and D2.  Rather than granting leave for P to withdraw at this stage, I am of the view that the present action should be adjourned sine die pending D2’s appeal.  It is only after determination of D2’s appeal that the court will be in a position to decide whether to allow this action to proceed in P’s personal capacity, or to allow HCMP 3083 to proceed in P’s capacity as Mother’s Committee.  One of the two actions can then be dismissed.

30.  I have therefore come to the view that P’s Summons and the present action should be adjourned sine die with liberty to restore after the determination of D2’s appeal against the MH order.

Order

31.  In light of the above, my order is as follows:

(i) D2’s Summons issued on 6 August 2015 is dismissed;

(ii) P’s Summons issued on 15 December 2015 be adjourned sine die with liberty to restore after the determination of CACV 162 of 2015;

(iii) The present action be adjourned sine die with liberty to restore after the determination of CACV 162 of 2015.

32.  As for costs, as D2’s Summons is dismissed, I see no reason why costs should not follow the event, namely D2 shall pay P’s costs of D2’s Summons, to be taxed if not agreed.

33.  P’s Summons has been adjourned sine die, and I order that costs be reserved.

34.  The costs orders are on nisi basis, and shall be made final after 21 days.