SECURITIES AND FUTURES COMMISSION v. LEUNG ANITA FUNG YEE MARIA AND OTHERS

HCMP 1917/2019

[2024] HKCFI 1607

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 1917 OF 2019

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D E C I S I O N

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1.  I have before me the Securities and Futures Commission’s (“SFC”)  amended summons dated 4 August 2023 seeking an order that the proceedings against the 2^nd Respondent be carried on by his executor or in the absence of a person representing the 2^nd Respondent’s estate, pursuant to Order 15 rule 7 and/or rule 15 of the Rules of the High Court (Cap 4A).

2.  The Petition was issued by the SFC in October 2019 seeking relief in connection with an alleged fraud involving misappropriation of the 4^th Respondent’s assets by the 1^st to 3^rd Respondents.  Initially the 1^st and 2^nd Respondents, who were married, were represented by the same solicitors, Chiu & Partners, and counsel and filed a joint Points of Defence.  On 6 June 2021 the 2^nd Respondent died.  On 11 June 2021 Chiu & Partners wrote to the SFC stating that they had instructions from the executor of the 2^nd Respondent’s estate to continue with a strike out application issued by the 2^nd Respondent in May 2021.  For the following two years in correspondence Chiu & Partners continued to represent themselves as acting on the instructions of the executor of the 2^nd Respondent’s estate.

3.  On 24 October 2022, the SFC issued the present summons under O15 r7 seeking to appoint the executor of the 2^nd Respondent’s estate to represent the estate.  Despite requests since April 2022 Chiu & Partners failed to tell the SFC, who the executor was and a probate search conducted on 7 September 2022 failed to produce a probate grant or application.  From December 2022 Chiu & Partners have maintained that they no longer had instructions to act for the 2^nd Respondent’s estate or reveal the identity of the executor.  Chiu & Partners have maintained this position since 2022 and on 23 February 2024 obtained an order that they cease to act for the 2^nd Respondent.

4.  At a hearing of the summons at which I made directions for its further progress, it was the SFC’s position that the 1^st Respondent should be appointed to represent the 2^nd Respondent’s estate. The 1^st Respondent does not agree to this.  On 29 May 2024 Chiu & Partners wrote to my Clerk confirming that the 1^st Respondent objected to being appointed, did not intend to appear at today’s hearing and had not instructed Chiu & Partners to appear.  My Clerk replied on 30 May 2024 stating that Chiu & Partners’ attendance was not required, but that their client should note that if she did not attend or was not represented, I would have to make a decision without the benefit of her input other than for the information contained in the letter of 29 May 2024.

5.  Clearly an order permitting the continuation of the proceedings against the 2^nd Respondent is necessary.  It seems to me that given the lack of cooperation by either the executor or the 1^st Respondent (assuming they are different), the better course is for me to order that “these proceedings be carried on in the absence of a person representing the estate of Wong Yu Hong, Philip (deceased)  and that this order, and any judgment or order subsequently given or made in these proceedings, shall bind the estate of Wong Yu Hong, Philip (deceased)  to the same extent as it would have been bound had a personal representative of Wong Yu Hong, Philip (deceased)  been present as a party to these proceedings; the title of the 2^nd Respondant to these proceedings be amended to ‘The estate of Wong Yu Hong, Philip (黃宜弘)(deceased)’”.

6.  I will order the costs be paid forthwith by the estate of Wong Yu Hong, Philip with a certificate for counsel, such costs to be summarily assessed.