Wang Din Shin v. Nina Kung

CACV 24/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 24 OF 1998

(On appeal from Court of First Instance Probate Jurisdiction P6 of 1997)

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J U D G M E N T

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Godfrey, J.A. (giving the first judgment at the invitation of Mortimer, V-P) :

Introduction

1. We have before us an adjourned appeal from an interlocutory order made by Yam, J. on 29 April 1998 in a contested probate action. In fact, when this interlocutory appeal was originally called on, we were told that the parties had compromised it; but the court drew attention to the fact that there appeared to be, to put it mildly, a serious difficulty in the way of this probate action. The difficulty arises from the fact that a probate action can only be brought in order to prove the will of a person who has died, and in relation to whom that will is accordingly a testamentary document. Proof of death is essential for the proper constitution of a probate action.

2. But death is not always easy to prove. There are cases, unhappily, where a person disappears and has gone missing without trace. In those circumstances, it is not possible to prove the death of the missing person. But he may be possessed of substantial property which requires to be administered in his absence. Where that is so, the court has jurisdiction to appoint a receiver of his property pending a grant of administration to his estate. Such a grant can be obtained either when he is finally shown to be dead, or when the probate court has given leave to the applicant for the grant of probate to swear to the death of the missing person on the footing that he cannot be traced and that it is reasonable for the court to proceed on the footing that he is dead. Neither event has happened in this case.

3. When this appeal was first called on, we drew some of these matters to the attention of the parties and expressed the hope that they might be able to agree some mode of proceeding which would rescue the probate action and enable justice to be done. That has unfortunately proved impossible, so the appeal has been restored to our list today and we now have to indicate what is, in our judgment, the proper course to take.

The parties

4. The missing person with whose affairs these proceedings are concerned is one Teddy Wang Teh-huei ("the missing person") who went missing nearly 10 years ago. The protagonist before us is his father Wang Din Shin ("the father") who now seeks to prove a will made by the missing person. The antagonist is the missing person's wife Nina T.H. Wang ("the wife") who asserts that the missing person is still alive and contends that accordingly no grant of administration should be made in respect of his estate.

The proceedings so far

5. The first step taken by the father to try and prove the missing person's will was an application made by him to the probate court for leave to swear to the death of the missing person. This was, in my opinion, the correct course to take. Unfortunately, for some reason the wife opposed that application. It is, in my experience, unheard of for anyone to oppose an application by one who claims to be an executor of a missing person's will, as the father does, for leave to swear to the death of the missing person. But there it is, and it is probably better that I say no more about it. Anyway, the result was that the father was advised or persuaded to drop that application and instead to institute the probate action to which I have already referred, the writ in which was issued on 28 May 1997. In this action, the father sought a declaration that the missing person was dead, and a grant of probate in solemn form in respect of the will which the father sought to propound.

The difficulty

6. The fact (and it is a fact) that no such declaration could legitimately be made seems to have escaped the attention of the parties, the parties' legal advisers and unfortunately the probate judge. The probate action continued on its way, with affirmations of testamentary scripts being filed, and with interlocutory applications being made for various other reliefs, including the interlocutory order (the details of which are immaterial) which has given rise to the present appeal.

The way forward

7. As I have said, the parties have been unable to agree on the right way forward. There is a contest between them upon 2 issues which we now have to consider, in order to indicate the way forward.

The issues

8. The first issue is whether the present probate action ought to be struck out as misconceived. The second issue is whether a receiver of the real and personal estate of the missing person can and should be appointed by this court to get in assets and pay debts (such an order would include an order on both the father and the wife to deliver up to the receiver all securities and other papers relating to the missing person's estate).

The first issue : Ought this probate action be struck out?

9. In my opinion, it clearly should. It is entirely misconceived. It is a pity that much time and money has been wasted on both sides in prosecuting it. But a probate action in which it has not been proved that the propositus is dead is a nonsense. It has no part to play on the record of this court. There is no point at all in sending it back to the Court of First Instance. The striking out of this misconceived action is obviously necessary and the interests of justice require this step to be taken as soon as possible.

10. I would therefore propose that this court do now order that the probate action P6 of 1997 in which this interlocutory appeal has been brought be struck out.

The second issue : Can this court appoint a receiver of the estate of a missing person; and, if so, ought it to do so?

11. I do not find these points altogether easy. By section 13(4) of the High Court Ordinance, Cap. 4, it is provided among other things that for the purposes of and incidental to the hearing and determination of any appeal to the Court of Appeal, the Court of Appeal has all the authority and jurisdiction of the court or tribunal from which the appeal was brought. That statutory jurisdiction is the only jurisdiction which this court has. I think there is some force in the submissions made to us by Mr. Adrian Huggins, S.C., on behalf of the wife, that the application now sought to be made on behalf of the father, by Notice of Motion to this court, for the appointment of a receiver of the missing person's estate cannot properly be said to be an application made for the purposes of and incidental to the hearing and determination of the interlocutory appeal now before us, an interlocutory appeal in an action which I apprehend we shall be striking out in a few minutes' time. I do not, however, think it necessary to decide that question of jurisdiction, because, for my part, I have come to the conclusion, with some reluctance, that this is anyway not a proper case in which we should seek to exercise such original jurisdiction as we may have on the father's application to us (never made to the court below) to appoint a receiver of the missing person's estate.

12. For the father, it was urged on us by Mr. Warren Chan, S.C., with his customary skill and ability, that this is a case in which there has already been considerable delay; that the father is now some 88 years old; that there will yet more expense incurred if this matter is sent back to the Court of First Instance rather than being dealt with now; that there is no evidence filed on behalf of the wife in opposition to the father's application for the appointment of a receiver, although that application was made some time ago; and that, in these circumstances, it is clearly just and convenient that a receiver should be appointed; cp. Kamouh and the British Aircraft Corporation (Operating) Ltd v. another, reported in "The Times" newspaper on 17 July 1982. This court, he says, ought now to appoint a receiver and put somebody in place who would protect the estate of the missing person.

13. Against that, Mr. Huggins has pointed out to us that this state of affairs has continued for all this time, without any immediate need demonstrated for the appointment of a receiver. And he has drawn our attention to the fact, disclosed only today, that the wife holds a power of attorney on behalf of the missing person apparently expressed in terms which have enabled her to administer his estate on his behalf. We have not seen this power of attorney but Mr. Huggins has undertaken on behalf of his client to lodge the power of attorney in court and, on the assumption that it will disclose that there is no immediate urgency to ensure that there is somebody put in place to represent the estate of the missing person, I do not see that it is necessary for this court to take upon itself the function of the Court of First Instance and appoint a receiver before the wife has had a proper opportunity of putting in evidence and contesting the father's application for the appointment of a receiver. Difficult though it may be to see on what grounds the wife will be able legitimately to resist that application, I think, on the whole, that the interests of justice lie in sending this issue to the Court of First Instance, and letting the Court of First Instance come to its own decision as to whether a receiver ought to be appointed. If the parties are still in issue after that court has determined the matter, and it is decided to take the matter back to this court, at least we will then have the benefit of the judgment of the judge of the Court of First Instance in considering what course this court ought to take, whereas otherwise we would be left to come to our own conclusions on inadequate evidence and in a case where the urgency is apparently not as great as at one time it appeared to be.

What should now be done?

14. For all these reasons, I would not be disposed today to order the appointment of a receiver. But I will, for the benefit of the parties (although strictly speaking it is no part of this court's function) offer the following suggestions for their consideration in this case, which has already given rise to a number of serious mistakes made both by the parties and in the Court of First Instance.

15. The first step which the father should now take is to make a renewed application for leave to swear to the death of the missing person. I say nothing as to what fate of that application might be, but one thing is clear, that no further progress will be made in resolving the issues which divide the parties until that is done.

16. The second step is for the father to institute proceedings, if so advised, invoking the equitable jurisdiction of the Court of First Instance to appoint a receiver of the real and personal estate of the missing person, proceedings which should be instituted by writ, if it is thought that there will be a contest on the facts, or otherwise by originating summons.

17. The third step is for those proceedings to be accompanied by an application by the father for interlocutory relief, that is to say, the appointment of such a receiver pending the grant of administration to the estate of the missing person.

18. Those three steps, that is to say, (1) an application by the father to swear to the death of the missing person; (2) an application by the father, by writ or originating summons, for the appointment of a receiver of the estate of the missing person; and (3) if so advised, an application by the father for interlocutory relief, that is to say, the appointment of such a receiver pending the hearing of the substantive proceedings, should all be taken as soon as possible.

19. We were told by Mr. Chan that it might take a long time before any such proceedings can be heard. We are not in control of the lists of the Court of First Instance but, for my part, I would express the hope that if the father does make any such application, the listing authority, and any master or judge before whom any such application might come, would deal with it with a due sense of urgency, with such directions as to evidence and otherwise as are calculated to ensure that the father (who, as Mr. Chan has pointed out, is not a young man) will at last receive justice at the hands of the court.

Conclusion

20. In sum, therefore, I would strike out the probate action. I would make no order on the father's application for an appointment by this court of receiver of the estate of the missing person, but would leave the father to take such steps as I have already indicated in this judgment he ought to take in order to protect his interest in the estate of the missing person.

Rogers, J.A. :

21. I agree.

22. I only wish to add one further matter and that is on the question of Section 13(4) of the High Court Ordinance. It has been argued that this Court would have jurisdiction to appoint a receiver on the basis that that Section says that for the purposes of and incidental to the hearing and determination of any appeal to the Court of Appeal, the Court of Appeal should have all the authority and jurisdiction of the Court from which the appeal was brought.

23. The exercise by this Court of the power of appointment of a receiver in circumstances where this Court had come to the conclusion that an action should be struck out, would be on the basis that this Court came to the conclusion that the Judge below should have (a) struck out the proceedings but (b) appointed a receiver. On analysis, such hypothetical appointment of a receiver would either have been by the Court below of its own motion or on the application of the party whose proceedings were struck out.

24. In either of those circumstances, the Court below would in effect be exercising an original jurisdiction because the Court would either itself be initiating a separate proceeding, or requiring an undertaking by the party on whose application the receiver was appointed to commence other proceedings.

25. I would be very reluctant in those circumstances to attribute to Section 3(4) an original jurisdiction in this Court. However, for the reasons which have been given by Godfrey, J.A., I agree that this Court should not in any event exercise such a power.

Mortimer, V-P :

26. I also agree that Action P6 of 1997 should be struck out as being misconceived for the reasons which have been advanced. There is no real issue between the parties that the action is misconceived. It should follow that we strike it out.

27. As to whether this Court should accede to the application to appoint Receivers, the first question for us is whether we have the jurisdiction to do so. It suffices for me to say that I share the misgiving that have been expressed whether we have jurisdiction under s.13(4) of the High Court Ordinance to make any such order. Our jurisdiction is entirely statutory. I have serious doubts whether in the circumstances once this action has been struck out, we have the jurisdiction contended for. However, even if we have such jurisdiction, I would exercise my discretion against the appointment of Receivers. It appears at first blush that it is just and convenient for Receivers to be appointed. The propositus has disappeared long ago and it would appear that his estate is not being looked after.

28. But Mr Adrian Huggins SC tells us that the wife holds a power of attorney. So it may be that his estate is being properly looked after by her. On any application for the appointment of Receivers, there are issues to be determined. It is not appropriate for this Court to determine issues of that kind which will depend upon the evidence.

29. In those circumstances I agree that the action should be struck out as misconceived. The father should pursue such action as he may be advised in the future.

30. We award the wife the costs of the action and half of the costs of the appeal.