RE CHIU HO KAU

HCAG 1982/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO 1982 OF 2015

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D E C I S I O N

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Introduction

1.  This is an ex-parte application for the inclusion of Chiu Kau (趙求) as the alias of the Deceased in the letters of administration when the same is granted.

Background

2.  The Deceased died intestate in Hong Kong and domiciled in Hong Kong.  The Deceased was survived by his wife (Madam Wong Kam Lin) and three sons, namely Chiu Kwok Chi, Chiu Kowk Kit and Chiu Kwok Kei.

3.  Madam Wong having on 6 September 2014 renounced all her right and title to letters of administration of the estate of the Deceased, application for a grant of letters of administration was made on 10 February 2015 (the “Application”) by Mr Chiu Kwok Kei (the “Applicant”), one of the Deceased’s sons.

4.  In the Affirmation by Administrator (the “Affirnation”), the Applicant stated that:

“9 (a) The true name of the Deceased was CHIU HO KAU (趙可求).

(b) The Deceased also had the alias of CHIU KAU (趙求) which appeared in his marriage certificate and the birth certificate of the said CHIU KWOK KIT ((趙國傑). …. The Deceased did not hold any asset in the alias of CHIU KAU (趙求).

(c) In fact the aforesaid names refer to the same person, the Deceased.”

5.  In relation to the Deceased’s name stated in the Application, the probate officer raised the following requisition on 13 March 2015:

“1. As the deceased held no property in his alias, please advise why it is necessary to include the alias in the grant. (rule 7 NCPR [Non-Contentious Probate Rules] and para 42 of the Guide to Non-Contentious Probate Practice).”

6.  The probate officer by requisition nos. 2 and 3 invited the Applicant to amend the title of the Affirmation and to redraw S.F. N2.1 and S.F. N4.1 by deleting the Deceased’s alias.

7.  The Applicant’s solicitors replied by a letter dated 13 March 2015 that:

“As stated in paragraph 9(b) of the Affirmation by Administrator, the deceased’s alias appeared in both his marriage certificate and his son’s birth certificate. The grant may be necessary for future transactions like application for immigration and dealing with other properties held in such an alias located overseas, it is therefore necessary to include that, although we are not aware at the moment that there is any overseas property held under that alias. We submit that for the reason that such an alias appeared in such important documents as the marriage certificate and birth certificate, that alias should be included in the grant.”

8.  The probate officer disagreed with the Applicant’s solicitors and replied on 18 March 2015 by requisition no. 4:

“4. The grant issued by this court is made for the purpose of administration of the estate of a deceased within HK only. And as such, the reason as stated in the letter [dated 13 March 2015] does not justify the inclusion of an additional alias of the deceased in the grant to be issued under r.7 NCPR.”

9.  The Applicant’s solicitors replied by a letter dated 19 March 2015 that:

“In both rule 7 of NCPR and paragraph 42 of the Guide to Probate Practice, immediately after the situation where the deceased held certain estate in his alias, there are the words “or giving any other reason for the inclusion of the other name in the grant.” It is clear that holding of certain estate in the deceased’s alias is not the only reason for inclusion of the deceased’s alias in the title of the grant. Mr Chiu Kwok Kit (“Kit”) who claimed to be the deceased’s second son produced his birth certificate as evidence of his relation with the deceased. The deceased’s alias appeared as Kit’s father on his birth certificate. Kit’s entitlement to share in the deceased’s estate depends on the grant. If the grant does not include the deceased’s alias, Kit’s entitlement will be affected. We therefore submit that the title of the grant should include the deceased’s alias.”

10.  By a letter dated 25 March 2015, the probate officer asked the Applicant’s solicitors to provide authority and adduce evidence in support of their contention.

11.  By a letter dated 23 April 2015, the Applicant’s solicitors produced no authority but made the following further submissions:

“As we have pointed out, it is clear that holding of certain estate in the deceased’s alias is not the only reason for inclusion of the deceased’s alias in the title of the grant. There are other reasons, and we submit that our case does fall within that ambit.

As far as the name and alias of the deceased is concerned, we have to follow the records of the Immigration Department. For example, if the Hong Kong Identity Card of the deceased states his name as “Chiu Ho Kau alias Chiu Kau”, then the title of the grant should be so. The present case is similar. The deceased’s alias appears both in his marriage certificate and the birth certificate of one of his sons Chiu Kwon [sic] Kit. As both the marriage certificate and the birth certificate are formal records of the Immigration Department, we submit that the present title of the grant does comply with r.7 of NCPR. As to evidence, we have already filed a copy of the deceased’s marriage certificate and Chiu Kwok Kit’s birth certificate.

If the title of the grant is “Chiu Ho Kau” only, when Mr Chiu Kwok Kit’s claim to his share of the estate is challenged, he will have problem as he is the son of Chiu Kau.

We therefore submit that the title of the grant should include the deceased’s alias.  If you are still dissatisfied, kindly treat this letter as our formal application to make an appointment with a Probate Master to seek his directions.”

12.  The probate officer was not persuaded.  The Applicant’s solicitors filed a notice of appointment on 7 May 2015 to seek the Probate Master’s directions on the following requisitions, namely requisition nos. 1 and 5 raised by the court:

“ 1. As the deceased held no property in his alias, please advise why it is necessary to include the alias in the grant. (rule 7 NCPR and para 42 of the Guide to Non-Contentious Probate Practice).

  5. Please provide authority and adduce evidence in support. (rule 7 NCPR is not complied with)”

13.  The hearing took place on 27 May 2015 before me.

Discussion

14.  From the above correspondence, it can be seen that the grounds for the Applicant to ask for the alias of the Deceased to be included in the grant are as follows:

(1) the alias of the Deceased was included in some of the documents issued by the Immigration Department, namely his marriage certificate and the birth certificate of one of his sons; and

(2) the birth certificate of one of the beneficiaries, namely Chiu Kwok Kit, had recorded the name of his father, ie the Deceased, in the Deceased’s alias.  If the Deceased’s alias is not included in the grant, Chiu Kwok Kit’s entitlement to share the Deceased’s estate might be challenged.

15.  Mr MF Ko represented the Applicant at the hearing. Mr Ko reiterated the aforesaid grounds in support of his contention.  He submitted that the fact that the alias of the Deceased was included in official documents (in this case the marriage certificate of the Deceased and the birth certificate of one of the Deceased’s son) constituted good reason for including the Deceased’s alias in the grant.  He further submitted that the Deceased might have held properties in his alias not yet known to the Applicant.  If there were such properties and the Deceased’s alias had been included in the grant, the administrator could deal with these properties without the need of amending the grant.

16.  At the hearing, I referred Mr Ko to the cases In the estate of Cynthia Wai-Man Fang alias Cynthia W Fang alias Fang Cynthia Wai Man (李慧文) alias Li Wai Man (李慧汶) (unrep, HCAG 5519/2005, 7 March 2006, Master J Wong) and In the estate of Chan Mei Ling (陳美玲) alias Wong Ah Ho (黄亞好) (unrep, HCAG 13429/2012, 28 November 2013, Registrar KW Lung)

17.  Mr Ko submitted that in the Chan Mei Ling case, the alias of that deceased was very different from her true name whereas in this case the Deceased’s true name and his alias were not so different.

18.  After the hearing, Mr Ko sent a letter to the court dated 27 May 2015 to reiterate his following submission:

“In refusing to include the alias, the Court in HCAG 13429/2012 had taken into consideration that the grant in HK can be used to obtain grants in other jurisdictions.  The alias in that case is totally different from the true name of the deceased.  Although not spelt out, it seems the Court had in mind the potential risk that a grant with the alias might be misused elsewhere.  The length and wording of paragraph c on p.13 of the judgment supports such an interpretation.  It is submitted that it is a factor distinguishing that case from the present.  It is submitted that had the alias of the deceased been, say, “Chan Ling” in HCAG 13429/2012, the alias should be added to the title of the grant.”

19.  Mr Ko placed great emphasis on the extent of difference between the true name and the alias as a major factor in the court’s consideration for including the alias of a deceased in the grant. With respect, I disagree.  Of course, an alias must be different from the true name.  Otherwise, it is not an alias.  If the alias is an alias of a deceased and that deceased held properties under that alias or some other good reasons have been made out, the alias will be included in the grant no matter how different it may be with the true name.  The similarity between the true name and the alias is irrelevant.

20.  Rule 7 of the Non-Contentious Probate Rules (Cap 10A) provides that:

“7. Grant in additional name

(1) Subject to paragraph (2), where it is necessary to describe the deceased in a grant by some name in addition to his true name, the applicant shall state in the oath the true name of the deceased and shall depose that some part of the estate, specifying it, was held in the other name, or as to any other reason that there may be for the inclusion of the other name in the grant.

(2) If the name of the deceased is in accordance with the International Code for Chinese names this name shall be accepted as being the correct name of the deceased.”

21.  The key word in rule 7 is “necessary”.  Only when it is necessary for the alias to be included in the grant, will the court allow the alias to be included.  The mere fact that the alias of a deceased was included in some official documents is not sufficient reason for the alias to be included in the grant.  I am not aware of any rules or authorities requiring or suggesting that all names of a deceased once appeared in documents issued by the Immigration Department shall or has to be included in the grant.  Both the Cynthia Wai-Man Fang case and the Chan Mei Ling case show the contrary.

22.  In the Cynthia Wai-Man Fang case, the true name of that deceased was the one contained in her US identification documents, rather than that appearing on her HKID card issued by the Hong Kong Immigration Department.  The court held that: “However, the inclusion of the name as per the HKID card, without more, cannot be a sufficient reason.  Such “name” will not facilitate the administration of the estate.” (See para 15 of the decision)

23.  In the Chan Mei Ling case, in the birth certificate of the applicant, the name of his mother (the deceased) was recorded in her alias.  This will raise the issue of whether the applicant is the natural son of that deceased. (See para 4 of the decision)  Although the applicant in that case had subsequently withdrawn the application to include the alias in the grant, Mr Registrar KW Lung nonetheless expressed his view that: “If he (the applicant in that case) persists, I will, nevertheless refuse to grant permission to include the alias in the grant for this case.” (See para 33 of the decision)

24.  In the Cynthia Wai-Man Fang case, the applicant’s solicitors also advanced the following ground in support of their application:

“Although no assets of the deceased in Hong Kong was held under the name of Fang Cynthia Wai Man, it is safeguard to include this alias of the deceased in the grant to be issued. It would avoid amendment to the names of the deceased if later (after the grant was issued) it is found that property was held under the alias of the deceased (since both the HKID and the Passport of the deceased were registered in name of Fang Cynthia Wai Man).”

25.  This ground was rejected by the court for the reason that “it is probably asking for too much by insertion of an alias to cater for an unknown contingency.”  (See para 16 of the decision)

26.  Mr Ko had put forward similar ground to substantiate the stance of the Applicant in this case.  I agree with Master J Wong’s above ruling and also reject this contention of Mr Ko.

27.  The aforesaid ruling also applies to Mr Ko’s another contention that to include the alias of the Deceased in the grant might avoid possible challenge to the entitlement of Chiu Kwok Kit to the Deceased’s estate.  No evidence had been adduced to show that the entitlement of Chiu Kwok Kit to share in the Deceased’s estate will be challenged.  The request to include the Deceased’s alias in the grant for this purpose is also “to cater for an unknown contingency.”

28.  If the entitlement of Chiu Kwok Kit is subject to challenge, it is even more inappropriate to include the Deceased’s alias in the grant as the grant of letters of administration is to enable an administrator to collect assets of a deceased for distribution to the beneficiaries but not to pre-empt challenge to the entitlement of a particular beneficiary.    A grant is not issued to assist a particular beneficiary to claim his/her entitlement to the estate.  If there is dispute on the entitlement of a particular beneficiary to share in the estate, the dispute has to be determined through proper legal proceedings.

Conclusion

29.  I agree with Mr Ko that holding properties in a deceased’s alias was not the only reason for inclusion of that deceased’s alias in the title of the grant.  However, the applicant has to satisfy the court that the inclusion of the alias is necessary for the administration of that deceased’s estate.

30.  In this case, I am not satisfied that the inclusion of the Deceased’s alias is necessary for the administration of the Deceased’s estate.  As such, requisition nos. 1 and 5 shall stand and the Deceased’s alias shall not be included in the grant of letters of administration to be issued.