CAMP 202/2021
[2023] HKCA 167
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 202 OF 2021
(ON AN INTENDED APPEAL FROM HCAP NO 22 OF 2019)
________________
IN THE ESTATE OF CHOW YEI CHING (周亦卿) late of 9 Henderson Road, Jardine’s Lookout, Hong Kong, Merchant, deceased (“the Deceased”)
____________________
BETWEEN
CHOW LILY (周莉莉)
Plaintiff
and
CHOW WAI WAI VIOLET (周蕙蕙)
1st Defendant
CHOW VI VI (周薇薇)
2nd Defendant
___________________
Before: Hon Kwan VP, Yuen and G Lam JJA in Court
Date of Hearing: 18 January 2023
Date of Judgment: 8 February 2023
____________________
JUDGMENT
____________________
Hon Yuen JA (giving the Judgment of the Court):
Background
1.1 . This is the “rolled-up” hearing of the plaintiff’s application for leave to appeal the decision of DHCJ Leung given on 30 July 2020 dismissing her application for the appointment of administrators pendente lite (“the APL Decision ”) in the probate action concerning the estate of Chow Yei Ching (“the Deceased ”).
1.2 . The background of the case has been set out in the Judgment of this court given on 16 May 2022 in which we concluded that the stand taken by the plaintiff (“Lily ”) in her pleadings did not amount to a renunciation of executorship (“Judgment on the Renunciation Issue” )1
2. As for the facts material to the present judgment, they are listed chronologically below:
the Mother ”) have 7 children, viz. Lily, Wai Lee, Lina (no longer a party), Lisa, the 1st defendant (“Violet ”), the 2nd defendant (“Vivi ”), and Oscar (“the Siblings ”).
2009 Will ”2
3
2015 Will ”4
5 6
Inv Comm ”) formed by the Siblings for assets in what Lily alleges was “the Deceased’s private investment pool”7 PIP ”).
PCH ”) to provide services for (part8 9
10 .
11 .
12 (“Disclosure Notice ”).
the Restruct Plan ”)13 was circulated by Oscar to the Siblings.
pendente lite (“APL ”), supported by her 3rd aff.
nd aff.
st aff.
th aff.
th aff.
rd aff.
th aff.
14 .
the CFI Leave Decision ”)15 .
“LFP” ) and Deceased’s banks16 .
17 .
PCW ”) proposing a joint request to banks to produce the Deceased’s bank statements to preserve evidence and to enable the estate to recover “substantial amounts of money (presumably loans) to outsiders”18 .
19 .
20 .
21 .
22 .
23 .
st aff in CAMP202.
st aff in CAMP202.
2015 Will
3. In the 2015 Will, all the Deceased’s shares in Chevalier (“the Chevalier Shares ”) were gifted to Violet. The residuary estate was divided into 100 parts or shares, with 30 parts or shares to the Mother, 20 to Violet, and 10 each to the other siblings except for Oscar, who was not given anything.
Probate Action
4. In the Probate Action, Lily seeks a declaration that the 2015 Will is invalid as it had been executed by the Deceased without knowledge or approval of its contents, or testamentary capacity, or animus testandi .
Application for appointment of APL - evidence
5. In support of her summons24 for the appointment of APL filed two months after the Probate Action, Lily deposed in her 3rd aff to the following, among other things:
(a) in the Disclosure Notice25 , Violet stated that26 she held a total of 14,551,162 shares (4.82%) of Chevalier of which:
- 0.04% was held by herself, and
- 4.78% (“the Winful Shares ”) was held through Winful Investments Ltd (“Winful ”), a company which Violet controlled through Owton Investments Ltd (“Owton ”).
Lily referred to all the above shares (i.e. 4.82%) as “the Hidden Shares ”, the value of which she estimated at more than $172 million.
Lily said that Owton is “one of the corporate vehicles holding assets acquired with funding provided by the Deceased for the benefit of immediate Chow Family members, including me” (§27). However, Lily did not refer at that stage to the PIP or any of the other companies in the pool.
Lily said she believed that Violet did not have the means to acquire the Hidden Shares, and that it was likely that the source of funds was the Deceased, with Violet having been asked by the Deceased to hold these shares on trust for himself (§29).
(b) Violet was unsuitable to be an executrix due to (among other things) a conflict of interests as “one of the major tasks of the APL ... is to ascertain the extent of the assets of the estate, including whether the Hidden Shares is part of the Deceased’s estate” (§47).
6.1 . Violet opposed the application. Violet deposed in her 1st aff (§7):
“neither My Shares (0.04%) nor the Winful Shares are or were ever held on trust for the Deceased”.
6.2 . However, she did not object to Lily’s assertion that she (Violet) did not have the resources to acquire those shares.
6.3 . More importantly, she did not:
- explain the means by which she acquired them (eg by gift), or
- say that she held them on trust for anyone.
6.4 . She said however that she was prepared to undertake that she “will transfer” the Winful Shares into a trust to be shared equally and beneficially amongst the Siblings (§8).
6.5 . Pausing there, we note that the beneficial interests under this proposed transfer would differ substantially from the situation that would result if the shares belong to the estate, as:
(1) under the 2009 Will, the beneficiaries are the Mother and all the Deceased’s children and descendants of all degrees born before the Vesting Day27 (but excluding illegitimate descendants and their spouses, and divorced spouses);
(2) under the 2015 Will, clause 3 provided that all shares in Chevalier of which the Deceased may be possessed or to which he may be entitled at his death are bequeathed to Violet;
(3) under an intestacy, the Mother would get 50% of the estate, and all the Siblings would share in the remaining 50% equally28 .
6.6 . Violet also said alternatively, that she was willing to undertake not to dispose of the Hidden Shares pending the resolution of the Probate Action or other order of the court (§9).
7.1 . As for Vi Vi, she deposed in her 2nd aff (§4) that:
“the alleged Hidden Shares ... are not shares held by [Violet] for the Estate”.
7.2 . However, there was no disclosure of the source of her information or belief.
8.1 . In reply, Lily filed her 6th aff in which she pointed out that Violet has failed to provide any particulars of the source of funds for the acquisition of the Hidden Shares (§14).
8.2 . In addition, Lily drew attention for the first time to the PIP, alleging that she was “recently provided” with the Restruct Plan, in which the “Current Structure” showed (§15):
- Violet, Oscar, Lisa, the Deceased and the Mother are the ultimate shareholders of one or other of the 15 companies (mostly incorporated in the BVI);
- Violet held 100% of Owton, with a number of companies listed as its subsidiaries, but Winful was not included as its subsidiary and does not appear in the Restruct Plan.
8.3 . Lily said that:
- every immediate Chow family member knew that the companies in the PIP (including Owton) were part of the Deceased’s private investment and that the Winful Shares were held by Violet on trust for the Deceased (§16);
- the company structure was designed to hold the Deceased’s private investments, and this constituted a constructive and/or resulting trust in favour of his estate (§17);
- the Deceased had been mentally incapacitated since his stroke in January 2016, and the family had discussed applying for the appointment of a committee under the Mental Health Ordinance (“MHO ”) to handle his financial affairs (§38);
- it was necessary to appoint the APL to take over the BVI companies (§19), and to impartially investigate the true beneficial ownership of the Hidden Shares (§20) and perform other duties for the preservation and protection of the estate (§§82 - 83).
9.1 . Vi Vi filed a 6th aff in which she deposed (§§7 - 8):
“7. ... Lily ... [is] aware that those [15] companies are not private investment of the Deceased.
8. The Siblings generally refer to those companies, and all the investment projects and assets under these companies, as the ‘Investment Pool’, and none of them belongs to the Deceased ”. (Emphasis added).
9.2 . However, she did not explain the means by which the Siblings had acquired the assets (eg by gift), and she did not say what were their respective interests therein. Nor did she say what was the arrangement under which the Deceased and the Mother held one of the companies in the PIP.
9.3 . Vi Vi also said:
- Violet, Lisa and Oscar had set up the Inv Comm which “provides a platform for discussion of active investments, with the purpose of looking for active investment ideas for the Investment Pool”; Lily was invited to join it in late 2016/early 2017 and was a current member (§9)29 ;
- Inv Comm members receive investment portfolio reports from PCH monthly, and the other Siblings receive such reports quarterly (§10);
- funds in the PIP have been applied, inter alia, to support the needs of the Siblings and the Mother from time to time (§12);
- Lily had been on the Inv Comm since 2016/2017 and “must have full knowledge of the ownership and operation of the Investment Pool” (§13) (emphasis added);
- Lily had suggested donations to charities to be paid out of the pool (§§14 - 15);
- the Restruct Plan had been circulated to all the Siblings in November 2018, with the purpose of restructuring the pool “to be held by a holding company with the Siblings being made shareholders, and the respective shareholdings to represent their stakes or interest in the same” (§21);
- “there is thus no private investment of the Deceased which require any investigation or preservation ” and “no evidence or basis to show any risk of dissipation of the Investment Pool to justify appointment of APLs ...” (§§26 - 27) (emphasis added).
9.4 . Regarding the Deceased’s mental capacity, Vi Vi did not deny Lily’s assertion that he had become mentally incapacitated after his stroke in January 2016, and explained that the Mother and Siblings “did not proceed” to make an application for appointment of a committee under the MHO in order to avoid or minimize speculation and publicity (§36).
10.1 . Violet filed her 3rd aff in which she simply confirmed Vi Vi’s 6th aff and said (§8):
“I wish to emphasize that the Siblings, including Lily ..., generally refer to those companies and the investment projects and assets held thereunder as the ‘Investment Pool’, and it is to all our common knowledge that they do not belong to the Deceased ”.
10.2 . We note that even though Violet controlled Owton which held the Winful Shares, she did not explain the means by which she acquired them, nor did she say what interests (if any) the Siblings had in Owton or other companies in the PIP, or what were the interests (if any) the Deceased and the Mother had in the company within the PIP of which they were the shareholders. Nor was there any evidence that before the Deceased was incapacitated, the assets in the PIP were administered or managed by PCH, or were controlled by anyone other than the Deceased.
11. In Lily’s 7th aff, made a day before the hearing before the judge, she said:
- the Inv Comm had only been set up after the Deceased had suffered the stroke that left him mentally incapacitated and unable to manage his private investments, which he had hitherto managed independently (§6) and from which he had distributed money to the Siblings and the Mother at his sole discretion (§8);
- there was no evidence (documentary or otherwise) from the defendants that any of the Siblings were capable of amassing such significant wealth as $850 million (§7);
- there was no documentary or other information about how the Investment Pool would be shared among the Siblings and the Mother (§7).
12.1 . The above was the state of the evidence regarding the PIP at the hearing before the judge.
12.2 . Significantly however, the judge recorded in the APL Decision that (§81):
“the answer of the defendants to this allegation30 is that whilst funded from the outset by the Deceased , the investments through these corporate vehicles belong to the children”.
12.3 . This appears to be the first time that Violet and Vi Vi, who had both categorically denied that the PIP belongs to the Deceased’s estate31 , have acknowledged that the assets were funded by the Deceased.
12.4 . What the judge recorded in §81 was not contained in any of the defendants’ affirmations. There was no evidence from Violet or Vi Vi as to when the Deceased had divested himself (wholly or partly) of the beneficial interests in the assets, and if so, to whom (and if more than one, in what proportions), and how.
The judge’s APL Decision
13. Section 40 Probate and Administration Ordinance Cap. 10 (“PAO ”) provides:
“(1) Where any legal proceedings touching the validity of the will of a deceased person ... are pending the court may ... appoint an administrator of the estate of the deceased.
(2) An administrator so appointed shall have all the rights and powers of a general administrator, other than the right of distributing the residue of the estate.
(3) Every such administrator shall be subject to the immediate control of the court and act under its direction”.
14.1 . In §§29 - 31 of the APL Decision, the judge set out the principles governing the exercise of the discretion to appoint an APL, as follows:
“29. The principles governing the court’s exercise of the discretion to appoint an APL were summarised by Recorder Lisa Wong SC (as she then was) in Mak Ngun Tai & Ors v Fung Ming Ip & Ors HCAP 37/2015 (14 October 2016) at §36:
(1) The court does not automatically appoint an APL whenever there is a pending probate dispute.
(2) The court only appoints an APL when it is necessary or expedient to do so.
(3) Necessity or expediency has to be assessed with reference to the actual circumstances of the case, which obviously vary from case to case so that the situations in which the court would appoint an APL cannot be stated exhaustively.
(4) Relevant considerations would include the condition of the estate, the nature of the assets comprised in the estate, whether there is a likelihood of dissipation or jeopardy of assets and whether there is a need to collect the “fruits of the estate”.
(5) An appointment would be necessary or expedient if, for example, it is required to protect the estate by collecting, managing or safeguarding the assets or to enable legal action to be taken against third parties pending the resolution of the probate dispute.
30. The burden is on the applicant to establish the need for doing something to protect and preserve the estate and, for that purpose, APL should be appointed: see Lai Wai Pang v Kwok Li Shuk Han HCAP 13/2000 (16 May 2003) at §9 per A Cheung J (as he then was).
31. Mere assertions (if disputed) are of little or no weight, and a party’s suspicion is not sufficient to found the court’s exercise of discretion: see Chinachem Charitable Foundation Limited v Chan Chun Chuen & Ors HCAP 8/2007 (10 December 2007); Lai Wai Pang v Kwok Shuk Han HCAP 13/2000 (above) at §9.”.
14.2 . Pausing here, it is common ground that the judge had correctly set out the relevant principles above. But Lily contends that the judge had departed from those principles by, among other things, failing to appreciate the risk of dissipation, and the need to manage, collect and secure the Deceased’s estate pending the Probate Action.
15.1 . In the APL Decision, the judge held in respect of the Hidden Shares that Lily had not substantiated by concrete evidence the alleged risk of dissipation32 , and that the following undertakings (“the Undertakings ”) were sufficient to maintain the status quo:
(1) Violet would not dispose of the shares and would not seek to change the current composition of the board of Chevalier;
(2) she would not exercise the voting rights for those shares without Lily’s consent or the court’s direction;
(3) “if no appointment of APL is made, these [the Hidden] shares will also be transferred into the trust for the equal benefit of all the Siblings” (§49(3)).
15.2 . We note that:
- although the above Undertakings were set out in §49 of the APL Decision, they did not appear as undertakings in the sealed order33 ;
- although Violet’s undertaking in §8 of her 1st aff was in respect of the Winful Shares only, §96 of the APL Decision referred to “the undertaking in respect of the transfer of the so-called hidden shares into a trust for the benefit of all the children pending the resolution of the dispute in the present action” (emphasis added). The shares in Violet’s own name were thus included in the undertaking given to the judge.
16.1 . As for the PIP, the judge discussed this issue in §§80 - 87 of the APL Decision. After setting out both parties’ submissions, he held:
“86. ... in the absence of dissipation, whatever extent of beneficial interest the Deceased is said to retain in the Investment Pool would have become part of the residuary estate. The respective entitlements of the beneficiaries to that, be those according to the 2015 Will or the 2009 Will or upon intestacy, would not materially change.
87. The above instances, both before34 and after the Deceased’s death35 , tend to suggest that the funds in the Investment Pool were managed and utilized by the children as their joint assets. Had this been otherwise, so that the funds form part of the Deceased’s estate, one wonders how the children would have utilized such funds after the stroke of the Deceased in the absence of a committee appointed under Part II of the [MHO] and after the death of the Deceased in the absence of grant. It was not that the family was ignorant of that. According to Vi Vi, two law firms have been consulted on the issue of the appointment of a committee to manage the estate of the Deceased after his stroke in 2016. Lily and Wai Lee did not take any contrary stance in this respect. In any event, Lily and Wai Lee could not distance themselves from the use of such funds. The last attempt by Lily to adduce affirmation evidence did not specifically address this”. (Emphasis added).
16.2 . Having said that, however, the judge held:
“92. What perhaps causes this court some concern is the fact that the properties and affairs of the Deceased after he has suffered the stroke in January 2016 until his death have been managed without the appointment of a committee under the MHO. As mentioned, the defendants did not hide away in this respect, and deposed to the effect that the decision not to proceed with that was made after considering legal advice. The impact of such decision, if any, will now have to take the form of an account by not only Violet but also the other family members, Lily included, after the grant of probate one way or the other”.
17. The judge also declined to accept Lily’s query about dividends from the Deceased’s Chevalier shares, some of which were applied to acquire Talent Luck Ltd (“TLL ”), a company in the Chevalier Group which held the property in which the Deceased and the Mother resided.
18. Eventually, upon the undertakings given, the judge dismissed the APL application.
Application for leave to appeal
19. On 13 August 2020, Lily applied for leave to appeal, which application was dismissed by the judge on 14 May 2021, for reasons set out in his decision of that date.
20. On 28 May 2021, Lily renewed her application for leave to appeal in this court.
21. After this court’s Judgment on the Renunciation Issue, the parties were given leave to file further evidence. Both Lily and Violet filed affirmations on 30 May 2022.
22. In Lily’s affirmation, she alleged (among other things):
- there has been a breakdown in communication between herself and Violet and Vi Vi (§§7 - 10);
- they have denied her position/power as executrix (§§11 - 14);
- there is no prospect of co-operation with them (§§15 - 17);
- the Deceased’s banks have indicated that documents and information pertaining to his accounts will not be released unless with the consent of all the executrices or pursuant to a court order; as banking records are kept for 7 years only, more bank records will be lost as time goes by (§§18 - 22);
- as for the PIP, on 19 May 2022, her solicitors wrote to the defendants’ solicitors to obtain the list of the underlying assets and the source of funds of the investments of the 15 companies, with a net asset value estimated at US$110 million (as at 16 November 2018) but the defendants have not replied. Lily alleges she “[has] been left completely in the dark about how the funds are being managed, how the dividends are being distributed, what are the underlying assets within this structure and how the special purpose vehicles are being run” (§§29 - 30).
23. In Violet’s affirmation, she alleged (among other things):
- Lily has indicated that she would not, and does not intend to, accept the office of executrix under the 2015 Will pending the Probate Action (§§6 - 10);
- even if Lily were to accept executorship, should there be any dispute, Clause 6 of the 2015 Will provided that her (Violet’s) decision in all matters shall be final (§11);
- the Hidden Shares are preserved by the undertakings she had given (§§16 - 17);
- “throughout, all the funds and investments in the Investment Pool have been treated as belonging to the Siblings, and accordingly the Investment Pool has been managed and utilized by the Siblings as our joint assets ” (§18) (emphasis added);
- currently, Wai Lee, Lina, Lisa and Oscar were members of the Inv Comm (§19) and four meetings of the Inv Comm have been held after the APL Decision (§20);
- after the APL Decision,
- from May 2021, Lily has requested funding from the PIP on five occasions in the total sum of $5.15 million for the Mother’s expenses36 ;
- on 25 October 2021, a loan of $25 million from the PIP was made to Wai Lee with Lily’s consent;37
- on 28 October 2021, a loan of $15 million from the PIP was made to the parties’ cousins on Lily’s initiation, for which she gave a personal guarantee38 ;
- Lily has caused difficulties to Vi Vi and Violet in discharging their duties as executrices as:
- several banks have withheld documents and information in light of the correspondence from LFP, and
- she (Lily) has not provided any further information regarding the payments totaling $20.5 million39 .
Discussion
Ground (2)
24. We shall deal first with the ground40 that APL should be appointed due to “hostility between executrices” i.e. between Lily of the one part and Violet and Vi Vi of the other. It is not disputed that animosity and distrust between executors may be a ground for appointment of APL41 .
25. The defendants have objected to this ground on the basis that this is a new ground which was not before the judge either at the hearing of the summons for appointment of APL or in the summons for leave to appeal.
26.1 . It is clear that on the facts of this case, this is not a valid objection. This ground could not have been raised before the judge at the hearing of the summons for appointment of APL (30 October 2019), as it was not until 27 April 2021 that Lina renounced executorship and Lily was substituted as executrix in the third degree.
26.2 . This event also occurred well after submissions were filed (on 29 December 2020, 5 January 2021 and 6 January 2021) for leave to appeal, and less than three weeks before the judge gave his decision refusing leave (14 May 2021). There is no evidence of any hostility during those three weeks.
27.1 . However, we reject this ground because in §20B of her Re-Re Amd SOC (verified and filed on 29 June 2021), Lily has stated that she does “not intend to accept the office of executrixship of the 2015 Purported Will pending judgment of the Court in this action”. Although this court has found that such a statement did not amount to a renunciation at law, and whatever reservations she may seek to make, the fact remains that she has verified that she would not act in that office or capacity of executrix pending judgment in the Probate Action. Accordingly, any representation to third parties after the date of the Re-Re Amd SOC that she is acting in the capacity as executrix would not be correct.
27.2 . In any event, although we have of course not heard third parties (eg the banks) on the point, the general law is that executors do not have to act together, except in dealings with immoveable property42 . No doubt, in view of the concerns expressed by Lily regarding the possibility of limitation defences, the defendants should be alert to their duty to act with due diligence and without delay in taking all necessary actions for the purpose of collection of the estate.
Other grounds
28. In the other grounds, Lily contends essentially that the judge has failed to appreciate the risk of dissipation, and the need for APL to manage, collect and secure the Deceased’s estate. Mr Edward Chan SC appearing for Lily43 , criticized the defendants for categorically denying any interest of the Deceased in the PIP and only admitting that he was in fact the source of the funds at the hearing before the judge44 , and when there was no evidence how the Deceased had divested himself of his interests in the assets.
29.1 . In our view, that criticism is well-made. It is the duty of executors to collect and get in the estate of the deceased and administer it according to law. The first step involves an examination of the deceased’s financial affairs so as to ascertain what his estate comprises. It is incumbent on executors to approach this exercise having regard to all the available evidence.
29.2 . If an asset acquired with funds belonging to the deceased has been transferred to another person or entity without consideration, the executors should consider the circumstances of the transfer to see if the deceased had validly and fully divested himself of his interest therein.
30.1 . The defendants have simply deposed that the assets in the PIP did not belong to the Deceased. If the Deceased had transferred any or all of the assets by way of gift, one would have expected such a statement from the defendants at the forefront of their evidence. However, they simply denied that the Deceased had any interest in the assets, without evidence as to when he had divested himself (wholly or partly) of the beneficial interests therein, and to whom (and if more than one, in what proportions), and how, and his intention(s) at the time of transfer.
30.2 . Insofar as there may be reliance on the presumption of advancement (which has not been argued), that is no more than that, a presumption to be considered against evidence45 showing that the Deceased had during his lifetime transferred various funds to one or other of his children by way of loan.
30.3 . The fact that, against the backdrop set out above, the defendants have readily denied the Deceased’s interest in the PIP (in which they have both asserted personal interests) is a matter which a court should take into account when considering whether there is a need to appoint APL to (among other things) collect the estate. With respect to the judge, he had failed to take into account the significance of the defendants’ eventual admission that the assets had been acquired with funds of the Deceased and that there was no evidence that consideration had been given for disposition, when he held that “Lily ... should establish the basis for contending that the pool is held on trust for the benefit of the Deceased ...”46 , but she “did not adduce evidence of the creation of such trust (apart from the admitted fact of funding)”47 .
31.1 . We now come to the defendants’ reliance on the conduct of the Siblings (including Lily) regarding the PIP to justify their (the defendants’) denial of the Deceased’s interest therein. This was emphasized by the judge.
31.2 . In §§82 - 83, he referred to instances before the Deceased’s death when one or other of the Siblings and the Mother have received, or suggested the use of, funds from the pool. However, with respect to the judge, these instances were after the Deceased had suffered a serious stroke, and even on the defendants’ evidence, the family considered making an application for appointment of a committee under the MHO to take charge of his affairs, although they eventually did not do so due to a wish to avoid publicity and speculation.
31.3 . In §84, the judge referred to instances after the Deceased’s death.
31.4 . Then in §87, the judge found that if the PIP forms part of the Deceased’s estate,
“one wonders how the children would have utilized such funds after the stroke of the Deceased in the absence of a committee appointed under ... MHO and after the death of the Deceased in the absence of grant”. (Emphasis added).
32.1 . With respect, that is approaching the issue from the wrong premise. Instead of seeing if the defendants had evidence to exclude the PIP from the Deceased’s estate even though he had funded it, the judge seems to have held that because the Siblings had utilized the funds after the Deceased’s incapacity and death, it followed that they could legitimately do so, and therefore the funds could not have belonged to the Deceased.
32.2 . The reference to the family consulting two legal firms (§87) is not understood. There was no evidence that the family was advised that they could “help themselves” to the PIP. The advice referred to in the evidence was on making an application for the appointment of a committee, evidence which shows that the Deceased was mentally incapable. Indeed, in §92, the judge expressed his “concern ... that the properties and affairs of the Deceased after he has suffered the stroke in January 2016 until his death have been managed without the appointment of a committee under the MHO”.
32.3 . Further, that Lily did not take a contrary stand from the other siblings at first, and as the judge found, could not distance herself from the use of funds from the PIP, do not create some sort of estoppel (although the judge was certainly entitled to criticize her litigation conduct in advancing the PIP issue at only the eleventh hour before the hearing).
32.4 . The fact that the Siblings (including Lily) have treated the PIP as their own after the Deceased’s incapacity and death is only one factor to be taken into account when investigating whether the PIP or part thereof is part of the Deceased’s estate, a duty of the executors. Whatever the Siblings subjectively assumed or believed (however innocently), the issue whether the Deceased has beneficial interests in the PIP is a matter of title, to which property and trust law must be applied.
32.5 . In any event, Lily is only one beneficiary among many. Insofar as the Chevalier shares held through Owton (a PIP company) are concerned, the difference between a scenario where the PIP belongs to the Siblings and a scenario where they belong to the estate has been set out in §6.5 above48 . Insofar as other assets in the PIP are concerned, it should also be noted that under the 2015 Will, the Mother would get 30/100 parts of the residuary estate, and Oscar would not get any part or share. As executrices, the defendants have a duty to the estate, the beneficiaries of which may not be confined to the Siblings and may include minors, depending on the judgment in the Probate Action.
33.1 . We have noted above our concern regarding the defendants’ readiness to deny any interest of the Deceased in the PIP, apparently in the absence of investigation into the Deceased’s intentions when arranging for assets he funded to be held by the 15 companies. If the matter had ended there, we would have been inclined to overturn the judge’s exercise of discretion for the reasons set out in the preceding paragraphs, as APL would be expected to investigate the Deceased’s affairs with a more open mind, and take steps to collect and protect the estate.
33.2 . Nevertheless, the matter did not end there. As mentioned above, relevant considerations governing the court’s exercise of the discretion to appoint APL include the likelihood of dissipation, an aspect of protection of the estate.
33.3 . In this regard, undertakings were obtained from Violet regarding the Hidden Shares49 . We are satisfied that the terms of the undertakings are adequate to protect them against risk of dissipation pending the Probate Action. This is especially since at the hearing before us, we were informed that witness statements in the Probate Action have been filed, a Case Management Conference will be held in April this year, and the trial is likely to take place within the next year.
33.4 . However, no undertaking was offered regarding the rest of the PIP (i.e. other than the Winful Shares held by Owton, a PIP company). The judge did not extract an undertaking even when he assumed that the Deceased had some beneficial interest in the PIP50 . The reasoning was that “absent dissipation”, any interest of the Deceased in the PIP would fall into the residuary estate.
33.5 . If that was the sole reasoning, the judge would also have dismissed the summons vis-a-vis the Hidden Shares without the need for the undertakings. The fact that he did not require an undertaking for the rest of the PIP may have been due to Lily’s membership of the Inv Comm, which enabled her to be aware of intentions regarding the assets’ movements.
34. However, Lily was no longer a member by the time the matter came before us. After we expressed our concern regarding the PIP at the hearing, Mr Benjamin Yu SC appearing for the defendants51 took instructions and offered an undertaking which was then reduced to writing in a letter dated 20 January 2023 from Minter Ellison (“ME ”) as solicitors for Oscar, in the following terms (“Oscar’s PCH undertaking ”):
“... [Oscar] undertakes, pending the determination of [the Probate Action] or such other order of the Court, as follows:
(i) Our client shall agree to a proposed appointment of [Lily] the plaintiff in [the Probate Action] to be a member of the Investment Committee (as defined in these proceedings) with immediate effect subject to her consent, and shall procure [PCH] to take all necessary administrative steps as required to give effect to the proposed appointment; and
(ii) [Oscar] shall procure [PCH] to give reasonable notice to [the Mother] and all her children, including [Lily], in advance of any investment or disposal of the funds in the PIP exceeding HK$1,000,000 (or such other sum to be agreed between the relevant parties in this sub-paragraph)”.
35.1 . Subsequent to the court’s receipt of the ME letter, the court received a letter dated 26 January 2023 from LFP enclosing (1) their letter to Oscar dated 20 January 2023; (2) a Hong Kong company search and (3) a Hong Kong BR search. LFP alleged that the name “Polaris Capital Holdings Ltd” was “never mentioned” in the evidence filed in the proceedings before this court or in the CFI.
35.2 . LFP’s allegation is clearly wrong. “Polaris Capital Holdings Ltd”, expressly stated to be incorporated in the BVI, was one of the contracting parties in Administration and Consultancy Agreement52 and the Management Agreement53 , both of which documents had been exhibited and referred to.
35.3 . After this was pointed out by PCW in their letter to the Court dated 27 January 2023 (copied to LFP), LFP did not even write to the court to correct or withdraw their allegation which was at best, careless and at worst, misleading. Either way, such conduct is unsatisfactory.
36. Coming back to Oscar’s PCH undertaking, with prior information given of disposals and with Lily’s membership on the Inv Comm, we are satisfied that it would be adequate to protect the estate from risk of dissipation of the PIP in the run-up to the Probate Action.
37.1 . Finally, in Mr Chan’s submissions, he referred to the transaction whereby, after the Deceased’s stroke, dividends from his Chevalier shares were applied for the Mother to acquire TLL from the Group.
37.2 . Lily alleged that she did not know about the whereabouts of the dividends. The judge held that contemporaneous emails tended to suggest the contrary. It has not been argued before us that there was no evidence which entitled the judge to arrive at that finding.
37.3 . In any event, there is no suggestion that there is a risk of dissipation of the shares of TLL, or the residential property, its underlying asset.
Order
38.1 . For reasons set out above, we would give leave to appeal but upon Oscar’s PCH undertaking above, dismiss the appeal.
38.2 . As far as costs are concerned, the appeal has failed on the new ground and the other grounds regarding the Hidden Shares and TLL. As far as the PIP is concerned, we are mindful that a new undertaking has been provided. Accordingly, we would make a costs order nisi that the appellant is to pay the respondents 50% of their costs of the appeal including costs for the application for leave, with certificate for two counsel.
(Susan Kwan)
(Maria Yuen)
(Godfrey Lam)
Mr Edward Chan SC and Mr Abel Lam, instructed by Lily Fenn & Partners, for the plaintiff
Mr Benjamin Yu SC, Ms Teresa Wu and Ms Jacqueline Law, instructed by P C Woo & Co, for the 1st & 2nd defendants
1 [2022] HKCA 669 .
2 C/997.
3 B1/618 (Violet’s name did not appear).
4 S2/1143.
5 Vi Vi’s 6th aff §35.
6 Lily’s 6th aff §38.
7 Lily’s 6th aff §15.
8 Vi Vi’s 6th aff §10.
9 B2/902.
10 B2/904.
11 B2/933.
12 B1/503.
13 B2/866.
14 [2020] HKCFI 1792 .
15 [2021] HKCFI 1274 .
16 S3/1253+.
17 S3/1461.
18 S3/1241.
19 S3/1484.
20 S3/1504.
21 S3/1243.
22 S2/1139-1141.
23 S3/1301.
24 At that time, Lily had support from Wai Lee, but Wai Lee withdrew her support as a result of the APL Decision: email from Wai Lee to Oscar on 17 May 2021: S3/1456-7.
25 §2(12).
26 (Other than the Chevalier Shares held in her capacity as executrix).
27 The last day of the 80th year following the Deceased’s death.
28 Intestates Estates Ordinance Cap. 73, s.4(3).
29 At an unknown date, Lily ceased to be a member of the Inv Comm.
30 That “the defendants have withheld from mention the Deceased’s investment held by some 15 corporate vehicles holding different assets”: APL Decision, §80.
31 See §9.1 and §10.1 above.
32 APL Decision, §51.
33 The sealed order was not included in the bundles before us, but we have read it in the Court File.
34 Instances set out in §§82 - 83, APL Decision.
35 Instances set out in §84, APL Decision.
36 S3/1529 -1538.
37 §2(35).
38 §§2(37) - (38).
39 §2(40).
40 NOA §2.
41 Re Steel, dec’d [2010] EWHC 154 (Ch), §§106 - 118.
42 Section 54 PAO.
43 With Mr Abel Lam.
44 CFI Leave to Appeal Decision §24.
45 eg. The Deceased’s note showing a loan to Lily of $4 million: §2(4); and Oscar’s email referring to a loan from the Deceased to Wai Lee of $22.75 million: §2(10).
46 CFI Leave to Appeal Decision, §26.
47 CFI Leave to Appeal Decision, §27.
48 (Depending on whether the 2009 Will or the 2015 Will is held to be the Deceased’s final will, or whether he died intestate).
49 §15.1 above.
50 CFI Leave to Appeal Decision, §29.
51 With Ms Teresa Wu and Ms Jacqueline Law.
52 §2(8).
53 §2(9).