LEE CHI SHING v. NG KWOK FAI

HCAP 14/2024

[2025] HKCFI 2324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 14 OF 2024

________________________

________________________

________________________

________________________

DECISION

________________________

A.  INTRODUCTION

1.  This is the hearing for:

(1)  The defendant’s summons filed on 18 October 2024 for striking out the Statement of Claim (“the Striking Out Summons”);

(2)  The plaintiff’s summons filed on 6 May 2025 for leave to amend the Statement of Claim (“the Amendment Summons”).

2.  At the hearing, Ms Cheung for the plaintiff asked for leave to withdraw the Amendment Summons.  As a result, apart from formally granting leave to withdraw the Amendment Summons and providing for the costs thereof, this Decision is only concerned with the Striking Out Summons.

B.  BACKGROUND

3.  The Deceased is the parties’ mother, who passed away in March 2021.  Apart from the plaintiff and the defendant, she also had 5 other children[1]:

(1)  Ng Yuk Lan;

(2)  Ng Yuk Mui;

(3)  Ng Yuk Ling;

(4)  Ng Kwok Wing;

(5)  The late Ng Lai Kuen.

4.  In the Deceased’s will dated 7 September 2011 (“the 2011 Will”), the defendant was appointed the sole executor.  On 10 May 2022, he obtained the grant of probate of the Deceased’s estate.

5.  The plaintiff commenced this probate action on 16 April 2024.  In a gist, he alleged in his Statement of Claim that:

(1)  He only knew about the existence of the 2011 Will in August 2023;

(2)  He was only aware of the content of the 2011 Will from his other siblings;

(3)  According to his other siblings, the defendant had told them in around July 2020 that the Deceased had made a number of other wills (“Other Wills”).  However, neither the plaintiff nor his other siblings had ever seen (nor possessed)  the Other Wills;

(4)  He therefore had reason to believe that the 2011 Will was not the last will of the Deceased;

(5)  According to what the Deceased said during her life time, she would not leave her estate to the defendant, nor would she appoint the defendant as the executor of her estate.  These are contrary to what the 2011 Will provided;

(6)  The 2011 Will was executed by the Deceased under the undue influence of the defendant.

6.  He therefore claimed, in substance:

(1)  To pronounce that the 2011 Will is invalid;

(2)  Another will, if found, be proved in solemn form[2];

(3)  To revoke the grant of probate obtained by the defendant.

7.  The defendant then took out the Striking Out Summons. His grounds may be summarised as follows:

(1)  It is not open to the plaintiff to rely on the so-called “Other Wills” when no one had ever had sight of such alleged wills. It is not even known whether those wills (if made)  pre-dated the 2011 Will;

(2)  The allegation of undue influence is not supported by any meaningful particulars;

(3)  The plaintiff’s allegation that other siblings had told him that there are other wills is not sustainable because at least 3 of the other siblings (Ng Yuk Lan, Ng Yuk Ling and Ng Kwok Wing)  had pleaded in other legal actions that the 2011 Will is the last and valid will of the Deceased;

(4)  There are signs which show that the plaintiff’s claim was not made bona fide, and the commencement of this action amounts to abuse of process of the Court.

8.  As a response to the defendant’s Striking Out Summons, the plaintiff filed the Amendment Summons, which was fixed to be heard with the Striking Out Summons on the same day.  The most substantial amendments sought to be made were to:

(1)  delete the allegation of undue influence; and

(2)  add the allegation that the Deceased lacked testamentary capacity at the material time.

9.  Ms Cheung, in her skeleton submissions, stated that the proposed amendments were necessary to “cure the deficiencies”[3] in the plaintiff’s claim. 

10.  As explained by Coleman J in [122] of Lui Ming Lok v Ng Im Fong Loretta [2020] HKCFI 1243, a testator must have the requisite testamentary capacity for a plea of testamentary undue influence to be made out[4]. Hence, by alleging “undue influence” in the Statement of Claim, the plaintiff had in effect admitted that the Deceased had had the requisite testamentary capacity at the material time.  That also means that the plaintiff’s proposed amendment is a withdrawal of such an admission.

11.  Recognising that he has simply failed to adduce any evidence to explain why he should be allowed to withdraw such an admission, the plaintiff sensibly asked for leave to withdraw the Amendment Summons.

12.  At the hearing, Mr Wong for the defendant also changed his stance and confirmed that the defendant no longer sought to have the plaintiff’s probate action dismissed right away, because it was recognised that the plaintiff would have a right to cross-examine the defendant’s attesting witnesses.

C.  THE LEGAL PRINCIPLES

C1.  Striking out

13.  In Sealegend Holdings Ltd v China Taiping Insurance (HK)  Co Ltd (HCAJ 95/2012, unreported, 24 October 2014), it has been held that:

“24. The court may, either of its own motion or on application, at any stage of the proceedings order to be struck out any claim on the basis, amongst others, that it is scandalous, frivolous or vexatious or is otherwise an abuse of the process of the court: Order 18, rule 19(1)(b)  and (d).

25. A proceeding is frivolous when it is incapable of reasoned argument, without foundation or cannot possibly succeed. A proceeding is vexatious when it is oppressive or lacks bona fides. The expression ‘frivolous or vexatious’ includes proceedings which are an abuse of the process: Hong Kong Civil Procedure 2014, §18/19/8.

26. An ‘abuse of the process of the court’ connotes that the process of the court must be used bona fide and properly and must not be abused. The court will prevent the improper use of its machinery, and will, in a proper case (eg where an action is absolutely groundless or time-barred)  summarily prevent its machinery from being used as a means of vexation and oppression in the process of litigation: Hong Kong Civil Procedure 2014, §18/19/10.

27. The court has inherent jurisdiction to stay all proceedings before it which are obviously frivolous or vexatious or ‘hopeless’ in the sense of being bound to fail: Hong Kong Civil Procedure 2014, §18/19/12, 16 and 21.

28. There should be no trial on affidavit. Disputed facts are to be taken in favour of the party whose pleading is under attack. See Hong Kong Civil Procedure 2014, at §18/19/4, paragraph (1).

29. The power to strike out should only be exercised in plain and obvious cases where the claim is obviously unsustainable. A claim must be so obviously unsustainable, the pleading unarguably bad, and it must be impossible, not just improbable, for the claim to succeed before the Court would strike it out. That a case may be weak and unlikely to succeed is no ground for striking it out. See Hong Kong Civil Procedure 2014, at §18/19/4, paragraph (1).

30. Strike out is not justified merely because the story told is highly improbable, and one which it is difficult to believe would be proved. A party’s claim or defence would be struck out only if it is a sham so that to rely on it must be an abuse of the process of the court. Even if one side has a ‘formidable case’, it does not mean that the other has no case. See Hutchvision Asia Ltd v Asia Television Ltd, HCA 6757/1992, 8 September 1993, per Godfrey J (as he then was), p6.

‘But any lawyer with any experience of private practice will be able to remember, only too well, those cases which appeared to be certainties but which, to his surprise, nevertheless failed and, by the same token, those cases which seemed bound to fail but which, to his surprise, nevertheless succeeded. It is for just this reason that the court will not embark, at this stage of an action, on a consideration whether the case of one side or the other is true or false. It will consider only whether the nature of the defence is such that it has to be characterised as an abuse of the process of the court, which is something else altogether.’

31. Where a party seeks to strike out another’s case as unsustainable, he will have to show the other party’s case to be ‘wholly imaginary, a myth or not bona fide’: Overseas Trust Bank Ltd v Coopers & Lybrand & Ors, CACV 109/1989, Fuad VP, 15 December 1989, p15.

32.  It is not sufficient to adduce evidence that is relevant for consideration.  The lack of proper explanation from the party whose pleading is sought to be struck out is not enough.  See Viva Steamship Co Ltd v Chow Lim Choy & Ors [2003] 1 HKLRD 663 (CA), at §11.”

C2.  Probate action

14.  In Li Cheong v Lee Kwai Tai [2018] 4 HKLRD 120, [2018] HKCA 491 at [47], Yuen JA explained the special features of probate actions as follows (which was quoted by Fok PJ in Li Cheong v Lee Kwai Tai (2020)  23 HKCFAR 116 at [42] with approval):

“It is well-established that a judgment in a probate action is by nature in rem. It is thus incumbent on all those who have rival claims (say, as issue of a deceased person)  to advance their claims simultaneously, so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly […]” (emphasis added)

15.  In Choy Po Chun & Another v Au Wing Lun [2012] 2 HKLRD 148, Cheung JA also had the following to say at [16]:

“Order 76 sets out the procedure for a contentious probate action. The defendant had served a counterclaim as required by Order 76, rule 8 propounding the 2008 will. A probate action being of the nature of an action in rem and the court’s function being inquisitorial (Re Fuld (No. 2) [1965] 2 All E.R. 657)  the court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate, and (in the case of an interest action)  who is entitled to representation: generally it will not (except in the case of a revocation action)  merely dismiss the action without more. A defendant is entitled to give notice with his defence that he merely insists upon the will being proved in solemn form of law, and only intends to cross-examine the attesting witnesses (Order 62, rule 4)  but in other cases he must set up a positive case by way of counterclaim. For the same reason, a defendant may serve a counterclaim, and thus obtain carriage of the action, even where the plaintiff delays in serving a statement of claim. It would rarely be appropriate for a probate action to be dismissed for want of prosecution, see: paragraph 76/8/1 of the Hong Kong Civil Procedure 2012.” (emphasis added)

16.  The above trite principles have been reiterated by the Court of Appeal again in Re Estate of Payson Cha [2024] 2 HKLRD 1411, [2024] HKCA 453, which is a case in which the plaintiff therein, like the plaintiff in the present case, sought to pronounce against a purported will:

“30. It was well established in Li Cheong and Choy Po Chun that all those parties who have rival claims in a probate action should advance their claims ‘simultaneously’ so that the probate court could adjudicate on them in a judgment which would bind all rival claimants ‘once and for all’, with the legal consequence that probate of a will or letters of administration of the deceased person’s estate could be granted by the court properly. This is the basis upon which the Judge concluded that the ‘piece-meal’ approach adopted by the plaintiff, and in particular her ‘vague’ stance on the July Document, is wrong.

31. The plaintiff seeks to argue that Li Cheong and Choy Po Chun are distinguishable as neither of them concerns the situation in the present case where a plaintiff merely claims for a pronouncement against the validity of a purported will without seeking a grant of representation. The Judge pointed out in [6] and [7] of the Leave Decision that the principles articulated in Li Cheong (at [42])  and Choy Po Chun (at [16])  are of general application in probate actions. We agree. We do not consider that a valid distinction can be drawn between the two cases and the present case. There is nothing in Li Cheong and Choy Po Chun to suggest that the principles stated above only apply to cases where a party seeks to prove the will in solemn form or a grant of representation, but not where a party seeks to pronounce against a will. As submitted by the 3^rd defendant, what is important is the nature of a probate action which underlines the applicability of these principles does not turn on which party first instituted the probate proceedings in relation to where they stand on the validity of a disputed will.

32. In our view, the Judge is correct in holding that the plaintiff has failed to plead all the necessary issues, particularly in relation to the July Document, in the Statement of Claim. In the pre-action correspondence, the plaintiff had indicated that she would seek a declaration that the Deceased died intestate and a grant of letters of administration of the Estate to herself. The Statement of Claim, however, merely pleads that the plaintiff reserves her right to contend that the July Document is a duly executed will under section 5(2)  of the Wills Ordinance. Evidently, the plaintiff has not pleaded the entirety of her case. As a result, it is not possible to discern from the Statement of Claim whether her position is that the Deceased died with a will, or that he died wholly or partially intestate. The plaintiff’s approach clearly falls foul of the requirement that rival claims should be advanced simultaneously in a probate action (Li Cheong at [42]).

33.  We also agree with the 3^rd defendant that the plaintiff’s failure to plead her case on the July Document is at odds with the requirement under Order 76 rule 5 of the RHC that a party to a probate action must describe ‘any testamentary script of the deceased person, whose estate is the subject of the action, of which he has any knowledge’.  On its face, the July Document relates, or at least potentially relates, to the same subject matter of this probate action, i.e. the Estate of the Deceased.  Absent a proper plea by the plaintiff on the July Document, it would not be possible for the Court to perform the inquisitorial function and to make a positive finding as to whether the Deceased died intestate, as explained in Choy Po Chun at [16].”

D.  DISCUSSION

17.  As aforesaid, the defendant has raised 4 grounds in this striking out application.

18.  Firstly, it was said that it is not open to the plaintiff to rely on the so-called “Other Wills” when no one had ever had sight of such alleged wills. 

19.  I agree.  Indeed, the plaintiff’s counsel accepted that “the plaintiff does not seek to admit the Deceased’s potential other wills to probate”[5] at all. 

20.  It has also been confirmed that the plaintiff cannot give any further particulars on the alleged wills.

21.  In these circumstances, paragraphs 6 to 12, 14 and 15 (only the words “和/或其他遺囑，無論哪一份被認定為亡者的最後有效遺囑”)  of the Statement of Claim, together with the first 2 paragraphs of Prayer (b)  of the Statement of Claim, should be struck out.

22.  Secondly, it was complained that the allegation of undue influence is not supported by any meaningful particulars.

23.  At the hearing, Ms Cheung accepted that paragraph 13 of the Statement of Claim (which pleads the allegation of undue influence)  should be struck out.  An order will be made accordingly.

24.  Thirdly, the defendant argued that the plaintiff’s allegation that other siblings had told him that there are other wills is not sustainable.  This is no longer a live issue because those parts of the Statement of Claim concerning “Other Wills” will be struck out.

25.  Fourthly, it was further argued that the present probate action is masterminded by Ng Kwok Wing, in an attempt to frustrate another court action brought by the defendant as executor against Ng Kwok Wing himself.

26.  Reference has also been made by the defendant’s counsel to some comments made by another Judge in a Decision made in Ng Kwok Wing v Ng Kwok Fai [2025] HKCFI 600, in which Ng Kwok Wing sought to remove the defendant as executor of the Deceased’s estate.  In the said Decision, the learned Judge queried the motive on the part of Ng Kwok Wing to assist the plaintiff herein to start this probate action. 

27.  While I can appreciate why the learned Judge made his comments referred to above, I should bear in mind the fact that the plaintiff in the present case is Lee Chi Shing rather than Ng Kwok Wing. Hence, I do not think it is appropriate to strike out the present claim on such a basis.

28.  Finally, as explained, a judgment in a probate action is by nature in rem.  It is thus incumbent on all those who have rival claims to advance their claims simultaneously, so that the probate court could adjudicate on them in a judgment which would bind all rival claimants once and for all, rather than on a piece-meal basis.  The court will, at the trial, make a positive finding as to which is the valid will, or whether the deceased died intestate.

29.  However, in the present case, the plaintiff has not asked for any relief other than a pronouncement against the 2011 Will in the Statement of Claim.

30.  In that sense, the Statement of Claim does not comply with the usual requirement in a probate action.

31.  However, that is a matter which can be remedied by a simple amendment of the Statement of Claim.  Although I indeed hesitate to give the plaintiff another chance to amend his pleading (given his withdrawal of his Amendment Summons and his initial indication at the hearing that he needs not amend his Statement of Claim even if this Court agrees that his claim should in principle be struck out), I am of the view that one last chance should be given to him, particularly when it is the defendant’s stance that he is content with the idea of proving the 2011 Will in solemn form in the present probate action.  In my view, keeping this action alive and having it proceeded with as soon as possible is the best way ahead for all parties, particularly in the light of the litigation history among family members.

E.  ORDER

32.  I therefore make the following orders:

(1)  Leave be granted to the plaintiff to withdraw the Amendment Summons;

(2)  Paragraphs 6 – 14, 15 (only the words “和/或其他遺囑，無論哪一份被認定為亡者的最後有效遺囑”)  and the first 2 paragraphs of Prayer (b)  of the Statement of Claim be struck out;

(3)  Leave be granted for the plaintiff to lodge and serve a draft Amended Statement of Claim only for the purpose of addressing the matters mentioned in [28] – [30] above;

(4)  The defendant shall propose further directions within 7 days thereafter;

(5)  In the event the plaintiff fails to lodge and serve a draft Amended Statement of Claim by 4pm on 13 June 2025 as provided in sub-paragraph (3)  above, the action herein shall be struck out automatically with costs of the action (including the costs of the Striking Out Summons and the Amendment Summons).

33.  The plaintiff is reminded that in the event he fails to lodge and serve a draft Amended Statement of Claim pursuant to the above directions, and if he attempts to bring another probate action, he may well be prevented to do so, on the basis that the new claim would be an abuse of process, particularly where no good reason could be provided for his having failed to avail himself of the opportunity to put forward the claim at the earlier stage: Total Lubricants Hong Kong Limited & Others v Christophe de la Cropte de Chanterac & Others [2013] 2 HKLRD 838 at [40].

F.  COSTS

34.  Costs of the Striking Out Summons and the Amendment Summons will be further dealt with on papers after the plaintiff has lodged and served his draft Amended Statement of Claim.