SO CHO YEE AND ANOTHER v. KONG CHI HOW JOHNSON alias JOHNSON KONG, the administrator and trustee of the estate of LEE SAU YING, deceased

HCMP 499/2023

[2023] HKCFI 2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 499 OF 2023

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BETWEEN

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HCMP 500/2023

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 500 OF 2023

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BETWEEN

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(Heard Together)

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DECISION

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Introduction

1.  The present applications arose out of earlier proceedings, namely HCMP 1115 & 1116 of 2019 issued on 1 August 2019 by 3 out of 7 siblings to, amongst other things, seek an inventory and account of Father’s estate and Mother’s estate (collectively “Estates”) and remove 2 of their siblings as executors of the Estates (“Removal Proceedings”). The 7 siblings are beneficiaries of the Estates.

2.  For easy reference, I shall refer to the 7 siblings by their first names. The 7 siblings are, with their then ages during the Removal proceedings:

(1) Samuel So Cho Yee (“Samuel”) – then 68 and living in USA

(2) Henry So Cho Pui (“Henry”) – then 67 and living in HK

(3) Zarine So Wai Cheong (“Zarine”) – then 66 and living in Canada

(4) Winnie So Wai Ling (“Winnie”) – then 65 and living in Canada

(5) Joe So Cho Hang (“Joe”) – then 64 and living in HK

(6) Danny So Cho Yam (“Danny”) – then 63 and living in Macau

(7) George So Cho Yiu (“George”) – then 60 and living in HK

3.  Henry, Danny and George were the applicants in the Removal Proceedings and Samuel and Zarine, the former executors of the Estates, were the respondents therein.

4.  On 20 July 2021, Samuel and Zarine had issued two summonses in the Removal Proceedings in their then capacities as executors of the Estates against Danny for, amongst other things, an account of the assets and properties which were within Danny’s control and belonged to the Estates beneficially, together with supporting documents (“Documents”).

5.  On 31 May 2022, this Court made orders in the Removal Proceedings, amongst other things, removing Samuel and Zarine as the executors of the Estates, and appointed the defendant herein (“D”) as the independent administrator of the Estates in their place (collectively the “Removal Orders”). At the same time, this Court also made orders granting the former executors’ applications and ordered Danny to provide to D an account of the assets and properties held on trust by Danny on behalf of the Estates, namely the Documents (“Disclosure Orders”).

6.  Pursuant to the Disclosure Orders, Danny should have provided D with the Documents within 42 days, ie by 12 July 2022. Thereafter, there had been numerous correspondences exchanged between Messrs Haldanes, solicitors for Samuel and Zarine (“Haldanes”) and Messes Jun He Law Offices, solicitors for D (“JunHe”). Despite repeated requests by Samuel and Zarine for copies of the Documents, D failed to supply the Documents to them.

7.  This led to Samuel and Zarine issuing the originating summonses herein (collectively “OS”) on 30 March 2023.

8.  It was only in JunHe’s letter dated 28 April 2023 that D indicated for the very first time that he would release the Documents to all beneficiaries of the Estates, and eventually on 12 May 2023, JunHe released the Documents to all the beneficiaries by circulating a cloud storage access link which contained all the Documents.

9.  As Samuel and Zarine had effectively obtained the substantive relief under the OS, they did not pursue the remaining relief in the OS. The main dispute at the hearing was on costs.

Discussion

10.  As Samuel and Zarine have succeeded in obtaining the Documents, which was the substantive relief in the OS sought by them, as a start, I see no reason why they should not be entitled to costs of their OS.

11.  According to a chronology prepared on behalf of D, a true and perfect inventory and account of the Estates as at 30 April 2022 were prepared by WYN CPA Limited and produced by the former executors Samuel and Zarine on 22 June 2022.

12.  According to D, notwithstanding the Disclosure Orders, Danny only produced the Documents by 4 batches, namely on 12 July 2022, 29 July 2022, 8 September 2022 and 13 March 2023.

13.  Even so, the 4 batches of the Documents were received by D prior to the issue of the OS. D’s reason for not providing the Documents to Samual and Zarine earlier was apparently, according to D, he needed to review the Documents disclosed, which related to, amongst other things, what were called the “Industrial Park Properties”, and D claimed that according to Samuel and Zarine, the Industrial Park Properties did not belong to the Estates but to the companies, simply called Shun Tak, Tak Seng and Tai Man, which held/hold the properties. In short, D claimed that he needed more time to investigate the conflicting claims between Danny on one side and Samuel and Zarine on the other as to whether the Industrial Park Properties belonged to the Estates or the companies and that if the Industrial Park Properties did not belong to the Estates, then the Documents would not be documents belonging to the Estates.

14.  However, D had already received the 1^st batch of the Documents on 12 July 2022, by 30 March 2023, D should have had plenty of time to consider the matter, and if he was in doubt, as the administrator, he could have issued administrative proceedings to seek directions from the court. It is not clear what investigations he needed to carry out, or how he was going to investigate the conflicting claims between Danny on one side and Samuel and Zarine on the other, and why the beneficiaries would accept the result of his investigations. D is not a lawyer himself, nor is he qualified to provide any legal opinion. Up until the hearing, it was not clear what the result of his “investigation” was.

15.  It was submitted on behalf of D that D was still investigating and gathering assets and “trying to force” Samuel and Zarine to provide true and perfect accounts of the Estates based on the Disclosure Orders.

16.  I do not understand how D could “try to force” Samuel and Zarine to do anything. D is only appointed as an administrator. Nor could I understand how D could determine “whose version of the events are correct” in relation to the ownership of these properties and assets disclosed by Danny. In my view, D seems to have been misconceived about his own role and capacity in administering these Estates. He is to carry out administration, and should adopt a neutral position and in case of disputes among beneficiaries, he should have referred the disputes to the court, or seek proper legal opinion on how to proceed.

Conclusion

17.  Having considered D’s evidence, I am of the view that his attitude was unjustified, and I see no reason why he ought not to pay costs personally to Samuel and Zarine. I will order such costs to be summarily assessed, if not agreed, on party and party basis, with certificate for counsel, and to be paid by D within 28 days of summary assessment. D shall not be indemnified for his costs out of the respective Estates.

18.  Samuel and Zarine are to lodge their statement of costs within 14 days and D to lodge his list of objection within 7 days thereafter.