NEW WELL MASTER CO LTD (Formerly known as WELL MASTER CO LTD) v. TIDJAN ANANTO

HCA 558/2015

[2023] HKCFI 1597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 558 OF 2015

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BETWEEN

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D E C I S I O N

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A. Introduction

1.  For the main disputes between the parties and the trial relating to them, I refer to my Judgment handed down on 30 September 2021[1] (the “Judgment”). Unless otherwise specified below, I adopt the same terms and abbreviations as used therein.

2.  For reasons set out in the Judgement, I dismissed P’s claim and allowed the counterclaim of Tidjan Ananto (“TA”). P is appealing against that decision.

3.  This Court has previously appointed TA’s son, Andreas Ananto (“AA”) as TA’s guardian ad litem for the present action.

4.  On 28 December 2021, TA passed away.

5.  By Summons of 20 April 2022 as subsequently amended (the “Representation Summons”), AA seeks an order that he be appointed to represent TA’s Estate in this action and in the appeal, and that this action and the appeal be carried on by AA as if he had been substituted for the Estate.

6.  The Representation Summons was opposed by P, and was originally set down to be heard before this court on 4 May 2023.

7.  But on 18 January 2023, P took out a summons (the “Discovery Summons”) for discovery of documents said to be relevant to the hearing of the Representation Summons (§1) with consequential directions (§§2 - 3), and for leave for P to “adduce and file the Expert Witness Report prepared by Dr Tsang Kin Lun of neurologist dated 14^th January 2023 in relation to testamentary capacity of the deceased [TA]” (§4) (which will be referred to as the “Proposed Expert Report”.)

8.  Parties came before me on 3 March 2023 for a 3-minute hearing. AA opposed the Discovery Summons. Ms Deanna Law, counsel appearing for AA, invited this Court to hear the Discovery Summons together with the Representation Summons. Given the nature of the Discovery Summons, which is for disclosure of documents said to be relevant to the Representation Summons, I declined to adopt that course. I directed that the hearing of the Representation Summons be adjourned, and that the scheduled time slot of 4 May 2023 be used instead for the hearing of the Discovery Summons – hence the present hearing.

9.  Ms Natalie So appeared for P. Ms Deanna Law continued to appear for AA.

B. The amendment summons

10.  By summons of 26 April 2023, P took out a further summons for amendment of the Discovery Summons (the “Amendment Summons”). It proposes to amend the identity of the documents sought to be disclosed under §1(c) of the Discovery Summons, from “two attached Wills of [TA]” to “all attached Wills of [TA ] … including [the 2 originally requested][2]”.

11.  Ms Law did not oppose the Amendment Summons. I granted leave as sought in terms. Given the reason why it was issued, namely the possible ambiguity over the number of wills attached to the Certificate of Will (defined below), I ordered that the costs of and occasioned by the same be in the cause of the Representation Summons.

12.  I will refer to the Discovery Summons as amended as the “Amended Discovery Summons”.

C. The background leading to the applications, and the affirmations filed

13.  The Representation Summons is supported by AA’s 2^nd affirmation (“AA/2”).

14.  The Representation Summons as subsequently amended is, according to the margin reference, taken out pursuant to O.15 r.15.

15.  On 17 May 2022, Madam Wang (George Lee’s wife) filed her 3^rd affirmation (“Wang/3”) in opposition. One ground of objection is that as AA is TA’s son, he can apply to be the personal representative of TA’s estate. AA’s reliance of O.15 r.15 is therefore, she says, misplaced.

16.  On 23 August 2022, AA filed his 3^rd affirmation (“AA/3”) in reply. Amongst others, he says that TA had made a will (the “Will”). A copy of the English translation of the Will (but not a copy of the original) is exhibited. All siblings (TA’s 5 children including AA, the “Siblings”) are named as heirs with different percentages of inheritance. AA is named the executor. He says that he on 15 June 2022 obtained a Certificate of Inheritance from Mrs Hajjah JULIA CHAIRANI RACHMAN, Sarjana Hukum, Magister Kenotariatan, a Notary in Jakarta (“Rachman”, and the “Certificate of Inheritance”). A copy of the Certificate of Inheritance is exhibited. AA also produces 4 signed written confirmations showing that all of the other Siblings consent to the Representation Summons.

17.  In the Certificate of Inheritance:

(a) Rachman certifies, amongst other things, TA’s previous name, his date of death, his marriage, the identities of the Siblings, and that TA had no other children;

(b) Rachman then makes reference to the following documents:

“- That based on the Certificate of Will from the Ministry of Law and Human Rights of the Republic of Indonesia[3], that in the database of the Register of Wills of Sub-Directorate of Heritage and State Curator, Directorate of Civil Law Number AHU.2-AH.04.01-7780 dated 13-06-2022 … the original of which is attached hereto, and in the Certificate of Will the Deed of Will is registered as set forth in the deed:

1. Number 81 dated 16-08-1985 drawn up before R SUDIBIO DJOJOPRANOTO, Sarjana Hukum[4].

2. Number 05 dated 05-03-2020 (the fifth day of March two thousand and twenty) drawn up before me, Notary[5].

Rachman proceeds to, “based on the above deeds”, certify the Siblings as being TA’s heirs, and their respective percentage of inheritance;

(c) Rachman then also certifies the Siblings’ acceptance of the Will, their agreement to AA’s appointment as the executor, and AA’s appointment as such;

(d) Rachman further says therein:

“- That the abovementioned matters are supported by the testimonies of 2 (two) witnesses, namely:

1. Mrs. SIAUW TINAWATY YULIANA[6] … who is a younger sister of [TA].

2. Mrs. TJHIN MAN KIOEN[7] … who is a younger sister of [TA’s] WIFE.”

18.  Correspondence then ensued between parties’ respective legal advisers (Messrs Charles Wong & Co (“CW&Co”) for P, and Messrs Alex To and Co (“AT&Co”) for AA). On 11 October 2022, CW&Co served on AT&Co a notice of inspection under O.24 r.10 (the “Notice of Inspection”). The Notice of Inspection covers (1) the original of the Will, (2) the testimonies of STY and TMK, and (3) the original of the Certificate of Will “together with the two attached Wills of [TA], deceased, are registered namely [Document No.81 and Document No.05]”.

19.  On 19 January 2023, Wang filed her 4^th affirmation (“Wang/4”) in support of the Discovery Summons. She seeks disclosure of those same documents as covered by the Notice of Inspection.

20.  As recorded above, by the Amendment Summons, P seeks to expand the scope of discovery in relation to Documents No.81 and No.05, from seeking discovery of those 2 documents to “all attached Wills of [TA] … including” Document No.81 and Document No.05. I will refer to the documents sought in the Amended Discovery Summons as the “Subject Documents”.

21.  In Wang/4, Wang also exhibits the Proposed Expert Report which P seeks to rely on to challenge TA’s mental testamentary capacity at the time of the Will.

22.  In reply, AA has caused the following affirmations to be filed[8]: (1) his 4^th affirmation (“AA/4”), (2) Rachman’s affirmation (“Rachman/Aff”), (3) the affirmation of STY (“STY/Aff”), and (4) the affirmation of TMK ( “TMK/Aff”). As can be gleaned collectively from those affirmations, AA’s stances are as follows. The original of the Will has been delivered to Hong Kong and is available for inspection. Document No.81, being TA’s will made in 1985, has been revoked by the Will. Production is not necessary. Document No.05 is the Will. The original Certificate of Will is with the Ministry of Law and Human Rights of the Republic of Indonesia, but a copy has been produced (by Rachman in Rachman/Aff as “NHJCRSM-2”). The testimonies of and STY and TMK are both oral. The Proposed Expert Report is irrelevant.

23.  On 6 April 2023, Wang filed her 5^th affirmation in reply (“Wang/5”).

D. The relevant legal principles on discovery

24.  The Amended Discovery Summons is made pursuant to O.24 r.11, on the basis that the Will and the Certificate of Inheritance are referred to in AA/3, and that the Certificate of Inheritance in turn refers to Document No.81, Document No.05, and the testimonies of STY and TMK.

25.  This Court has in SCC Venture VI Holdco G Ltd v Zhao Changpeng [2018] HKCFI 670 at §§20 to 22 considered the legal principles relevant to an application under O.24 r.11. I will not repeat them. Counsel have no dispute on the same. I also bear in mind the observations of Deputy Judge A To in Allied Weli Development Ltd v Chuang Yue Chien Eugene [2020] HKLRD 623 at §43, which Ms Law has stressed, that “discovery will not be ordered for the purpose of ‘fishing’ or to enable a party to turn a non-issue into an issue.”

E. The Scope of O.15 r.15

26.  To consider what documents are discoverable for the purpose of considering the Representation Summons, it is relevant to consider first the nature of the Representation Summons.

27.  As said, the Representation Summons is taken out pursuant to O.15 r.15.

28.  O.15 r.15 stipulates that:

“(1) Where in any proceedings it appears to the Court that a deceased person was interested in the matter in question in the proceedings and that he has no personal representative, the Court may, on the application of any party to the proceedings, proceed in the absence of a person representing the estate of the deceased person or may by order appoint a person to represent that estate for the purposes of the proceedings; and any such order, and any judgment or order subsequently given or made in the proceedings, shall bind the estate of the deceased person to the same extent as it would have been bound had a personal representative of that person been a party to the proceedings.

(2) Before making an order under this rule, the Court may require notice of the application for the order to be given to such (if any) of the persons having an interest in the estate as it thinks fit.”

29.  To appreciate the scope of O.15 r.15, it is useful to contrast its wording with that of O.15, r.7(2). The latter provides, inter alia, that:

“(2) Where at any stage of the proceedings in any cause or matter the interest or liability of any party is assigned or transmitted to or devolves upon some other person, the Court may, if it thinks it necessary in order to ensure that all matters in dispute in the cause or matter may be effectually and completely determined and adjudicated upon, order that other person to be made a party to the cause or matter and the proceedings to be carried on as if he had been substituted for the first mentioned party.”

30.  The differences are clear on the face of the 2 rules. The exercise of the courts’ power under O.15 r.7(2) is premised upon the interest or liability of a party having been assigned or transmitted to or devolved upon some other person, such that “that other person” may be ordered to be made a party. O.15 r.15 is not so premised. The main conditions are instead the death of a person who was interested in the matter in question, and that he had no personal representative. The appointee may be a potential personal representative of the deceased, but there is no rule that he has to be. As explained by Coleman J in Re Cornwall Agency Company Limited [2021] HKCFI 3067 at §§27 and 28:

“27. …

(1) Rule 7 deals with the situation where a deceased party’s interest in the subject matter of the action has been assigned or transferred to or has devolved upon another person, and permits (but does not require) the Court to add that other person as the party to carry on the proceedings.

(2) Rule 15 deals with the broader situation where a deceased person had an interest in the matter in question in the proceedings but has no personal representative, and permits (but does not require) the Court to hear the application of any party to the proceedings and to appoint a person to represent the estate for the purposes of the proceedings.

(3) The essential purpose of the operation of rule 15 is to ensure that any judgment or order subsequently given or made in the proceedings will bind the estate of the deceased person just as it would have been bound had a personal representative been a party.

(4) In other words, rule 15 is to ensure that, in an appropriate case, the estate of the deceased person would be bound notwithstanding that rule 7 might not have been triggered.

(5) The phrase that a deceased person ‘was interested in the matter in question in the proceedings’ includes, but is not limited to, the circumstances where his interest was shown by being a party.

28. … Whilst in many cases the other person which the Court might consider appointing would be someone who is likely to become a personal representative of or a beneficiary under the estate, there is no reason why the Court might not appoint some other person felt suitable …”

31.  It is of interest to note that Re Cornwall Agency, the focus of the consideration is the suitability of the appointee as a representative under O.15 r.15. The reasons as to why there was no personal representative at the time of the application was regarded as “probably irrelevant”[9].

32.  By way of illustration, Ms Law has also drawn my attention to Lily Cheung v The Official Solicitor (HCMP 635/2006, 27 October 2008). In that case, Poon J (as the CJHC then was), having concluded on the facts that a representation order under O.15 r.15 should be made, proceeded to consider whether the plaintiff was the appropriate person to be appointed. The 2^nd defendant objected to the plaintiff’s appointment, on the basis that her status as the deceased’s adopted daughter was in doubt, and that the 2^nd defendant’s case on beneficial ownership of the two properties concerned was strong. The learned judge observed that the merits of parties’ case could not be determined on affidavits, but proceeded to appoint the plaintiff on the basis that she was the only person amongst all the potential beneficiaries of the deceased’s estate to be really concerned with the beneficial ownership of the property in question and the damage that might be caused by the breach being complained of. The case shows that for an applicant to be appointed as a representative, it is not a pre-condition that he be proved at the time of the application to be entitled in the future to any grant of letters of administration or probate.

F. The Proposed Expert Report

33.  Whilst it is not clear on the face of the Amended Discovery Summons, Ms So has now in her written submissions[10] made clear that the Proposed Expert Report is sought to be adduce in support of the Amended Discovery Summons. She confirmed that in the course of the hearing.

34.  The above being the purpose for the production of the Proposed Expert Report, §4 of the Amended Discovery Summons should therefore be considered first.

35.  Whilst O.38 r.36(1) stipulates that no expert evidence may be adduced “at the trial or hearing of any cause or matter” unless with leave or where all parties agree, O.38 r.36(2) provides that nothing in paragraph 1 shall apply to evidence “which is permitted to be given by affidavit”.

36.  O.38 r.2(3) provides that “on any application made by summons … evidence may be given by affidavit …”.

37.  Hence, reading O.38 r.2(3) and r.36(2) together, and as explained in Hong Kong Civil Procedure 2023 §32/16/1, “[e]xpert evidence adduced by way of affidavit does not require leave from the Court under O.38 r.36, also see O.38 r.2(3)”.

38.  On that basis, and for the purpose of the hearing of the Amended Discovery Summons, P may rely on the Proposed Expert Report. §4 of the Amended Discovery Summons is not necessary, and I make no order in that regard.

G. The discoveries sought

39.  Despite references (direct or indirect) to the Subject Documents in the affirmations filed by AA, it remains necessary for P to show that discovery and inspection of the originals requested is necessary for disposing fairly of the cause or matter or for saving costs.

40.  For the following reasons, I refuse P’s §§1-3 of the Amended Discovery Summons.

41.  In respect of the Will:

(a) As early as 8 October 2022, D through AT&Co offered inspection of the same in Indonesia;

(b) In Rachman/Aff, which unsigned version was first made available to P under cover of the 9^th affirmation of Mr To Leong Pong of AT&Co filed on 24 March 2023, it is said that:

“… I was informed by [D’s] family members that the original [Will] has been delivered to Hong Kong for probate application in the Court of First Instance, High Court in Hong Kong. Therefore, at present, the original [Will] is ready for inspection at any time convenient to [P] in [D’s] solicitors’ office in Hong Kong.”

(c) Despite the above, despite the lapse of more than a month, and as confirmed by Ms So in the course of the hearing, P or his legal advisers have not approached AT&Co for appointment to inspect the Will in Hong Kong;

(d) Rather than doing so, what P’s solicitors did instead was to conduct a search with the Probate Registry, which Wang says “reveals that no application paper for grant whatsoever was submitted in respect of the estate of [TA]”. That led Wang to saying further that AA had “willfully misled” the court by asserting that he had taken out a formal application for Probate in Hong Kong;

(e) The reasons for the negative search result are not apparent. But in the course of the hearing, Ms Law produced a copy of a letter dated 24 February 2023 from the Probate Registry raising certain requisitions in relation to TA’s estate. An application in Hong Kong by AA for grant of probate is clearly on foot;

(f) There can be no intelligible reason as to why P saw fit to press on with the Amended Discovery Summons for an order for inspection of the original Will when it has chosen not to take up the offer for inspection.

42.  As to the testimonies of STY and TMK:

(a) On 24 October 2022, AT&Co first informed CW&Co that the testimonies of the 2 witnesses are “verbal in nature”;

(b) Despite that, P took out the Discovery Summons seeking discovery of inter alia the same. It is only in Ms So’s written submissions[11] when it is made clear that the part of the Amended Discovery Summons for the testimonies of the 2 witnesses is no longer being pursued.

43.  In respect of the Certificate of Will and the 3 items of attachments:

(a) The original of the Certificate of Will is with the Indonesian authority;

(b) A copy of the same has been produced by Rachman;

(c) There is no allegation that the copy of the Certificate of Will produced is a forgery;

(d) I emphasize the fact that that copy is produced by a notary;

(e) As clarified by Ms So in the course of the hearing, the main purpose of seeking inspection of the Certificate of Will is to inspect the wills attached to the same, which have not been copied;

(f) An inspection of the copy of Certificate of Will suggests that 3 items of wills are attached thereto;

(g) It is accepted that one of the 3 items is the Will itself;

(h) It is quite clear that the other 2 items refer to the same will of TA. They have been given the same number, and bear the same date. While one is stated to bear the additional name of “Tjoe Nam Khian”, the evidence shows that that is in fact TA’s name on his birth certificate;

(i) According to §1 of the Will, all previous wills have been revoked;

(j) Given the revocation of all previous wills, their relevance (and hence the relevance of the Certificate of Will) is insignificant;

(k) But there are more against any order for their discovery;

(l) I have discussed the nature of the application made via the Representation Summons;

(m) In this context, I have also considered the evidence of Dr Tsang. The gist of his opinion which P seeks to rely on for the purpose of the present application is that, based on AA’s own evidence previously filed, TA’s mental capacity should already have been significantly impaired at the time when the Will was made;

(n) Ms So however fairly accepts that in respect of an application under O.15 r.15, different from any application under O.15 r.7(2), there is no need for the applicant to establish his appointment as the personal representative[12]. She submits nonetheless that P may take issue or otherwise challenges AA’s reliance of the Will because[13]:

“As explained by Coleman J in Re Cornwall Agency … at §28 …, in many cases under Order 15, rule 15, the person which the Court might consider appointing would be someone who is likely to become a personal representative of, or a beneficiary under, the estate – that appears to be the situation on which AA relies.”

(o) What has to be pointed out, as I have above, is that Coleman J went on to express his view that whilst potential personal representatives and beneficiaries are in many cases the appointees considered, there is no reason why the Court might not appoint some other person felt suitable. That is clearly illustrated by Re Cornwall Agency itself and Lily Cheung;

(p) AA’s status as the potential executor and a beneficiary is at most only one of the many grounds that can be relied upon in respect of the Representation Summons;

(q) Even in respect those potential status of AA, and if proof is necessary, there is in any event the Certificate of Inheritance. According to the expert evidence on Indonesian law adduced by P itself[14], based on the relevant regulations and practice in Indonesia, the document which shows who the legitimate heirs are, their shares, and if there is a will whether an executor is appointed therein, is the “Akta Keterangan Hak Mewaris”. Ms Law submits that the Certificate of Inheritance is indeed such a document, which submission is supported by the original name of that document in Indonesia[15];

(r) There is further to r.29 of the Non-Contentious Probate Rules (Cap 10A) which provides relevantly that:

“Where the deceased died domiciled outside Hong Kong, the Registrar may order that a grant do issue—

(a) to the person entrusted with the administration of the estate by the court having jurisdiction at the place where the deceased died domiciled;

(b) to the person entitled to administer the estate by the law of the place where the deceased died domiciled;”

(s) Submissions have been made on the conflict of law issue as to what law governs capacity to make a will of immovable. Ms So relies on §28R-024 and §29-026 of Dicey, Morris & Collins on The Conflict of Laws (16^th ed), that:

“Rule 166 – The law of the testator’s domicile at the time of making his or her will determines whether or not he or she has personal capacity to make a will of movables.

…

Rule 166 is confined to movables because there is no English authority on what law governs capacity to make a will of immovables. Probably the lex situs would be held to apply.”

(t) But back to the original purpose of the Amended Discovery Summons (which is for the discovery of the Subject Documents said to be relevant to the Representation Summons), the Representation Summons is based on O.15 r.15. There is no need to show any assignment, transmission or devolution of interests. The original Will is available for inspection but P has chosen not to take up the offer. The application for the testimonies has been abandoned. A copy of the Certificate of Will has been produced, as has a copy of the Certificate of Inheritance also been. The translation of the Will shows that all previous wills have been revoked. P’s interest in the Representation Summons is to see to the appropriate representative being appointed in place of the late TA so that his estate will be bound. P otherwise has no interest in the validity of the Will or the details of inheritance. Trying to inspect old wills to see what points can be made based on the probable application of lex situs is in my view nothing more than a fishing exercise in an attempt to make a non-issue an issue.

44.  For the above reasons, on the facts of the case, and given the nature of the application via the Representation Summons, I am not satisfied that the discovery and inspection of the originals of the Subject Documents is necessary either for disposing fairly of the cause or matter or for saving costs. In my view, the contrary is in fact true.

H. Disposition

45.  I dismiss §§1 to 3 of the Amended Discovery Summons. I make no order in respect of §4 which is, as I have observed above, not necessary.

46.  I order on a nisi basis that P shall bear the costs of and occasioned by the Amended Discovery Summons, with certificate for counsel, to be summarily assessed, which summary assessment will be conducted together with the costs of the Representation Summons.

I. Directions for the further conduct of the Representation Summons

47.  Evidence has been filed pursuant to the directions I gave on 20 May 2022 in relation to the Representation Summons. I recite §3 thereof, that there be no further affirmation from either party to be filed without leave, which direction is still effective.

48.  Given my conclusion above, I give no further directions for the filing of any evidence.

49.  I direct that the Representation Summons be re-fixed before this Court for hearing. I repeat §4 of my direction made on 20 May 2022.

J. Postscript

50.  I record that on 14 June 2023, after the notice of the handing down of the Decision had been issued, CW&Co wrote to this court (with heavy enclosures) and raised various matters and submissions in relation to the Amended Discovery Summons. Directions were attempted to be sought, and the handing down of this Decision requested to be withheld pending those directions.

51.  There has to be finality to hearing. No leave has been obtained from this Court before CW&Co wrote in to this Court. No proper application has been made for any directions. I with respect refer to and apply the observations and firm reinstatement of the proper procedural discipline by Lam VP (as he then was) in AXA China Region Insurance Co Ltd. v Leong Fong Cheng (CACV 113/2016, 28 October 2016) at §§44-45 and 53-54[16]. I take no heed of that letter.