RE HASAN SUNARJO

HCAG 8381/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPLICATION FOR GRANT NO. 8381 OF 2006

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R U L I N G

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1. The deceased died intestate on 24 February 2004 in Indonesia.

2. He was survived by a widow and two lawful and natural adult sons.

3. This application for grant was filed on 14 July 2006 under Rule 29(a) of the Non-contentious Probate Rules, which claims that the applicant had been entrusted with the administration of the estate by the court having jurisdiction in the place where the deceased died domiciled, that is, Indonesia.

4. After the application was filed, we had raised a number of requisitions on matters regarding applicability of Rule 29(a); the proof of the Deceased’s different names in the marriage certificate of the deceased and his death certificate, and other requisitions such as authentication, translation, so on and so forth.

5. When this application first came to my attention in April 2010, I immediately directed the solicitor to make an appointment to address me on two matters.  First, explanation for the delay.  It is noted that the solicitors appeared to have failed to respond to requisitions promptly. Apart from the requisitions first raised in 2006, I noted that the solicitors had not responded to requisitions raised on 23 September 2008, which also reminded the solicitor to answer the previous outstanding requisitions on matters in paragraph 4 above raised in March 2008.

6. The second matter is the propriety of the application.  For Rule 29(a) of the Non-contentious Probate Rule to be invoked, the Applicant needs to provide a foreign grant or order made by the foreign court entrusting the Applicant with the administration of the estate by the Indonesian court. However, I am unable to find any of such documents.

7. The solicitor together with counsel, attended before me this morning, with the Applicant who has come to Hong Kong from Indonesia to deal with this application. 

8. After having heard from counsel and had the opportunity of looking at the further documents that are produced in the hearing today, I am, given the long delay and for pragmatic reasons, inclined to – albeit the documentary proof has not been entirely satisfactory - waive any non-compliance with procedural requirement.

9. My waiving of the procedural non-compliance still leaves one fundamental matter unresolved, that is, the nature of the application. The only evidence the Applicant has relied on to support the Rule 29(a) application is a document described, according to the English translation, as “Inheritance of Right Statement to support of the application”, which is only a document by an Indonesia Notary Public in which the Indonesian law on intestate succession- on matters such as who would be entitled to inherit the deceased estate as the result of the deceased having died intestate- was set out.  The document however, in my view, is neither a foreign grant nor a court order entrusting the Applicant with the administration of the estate by the Indonesian court- as is required by Rule 29(a).

10. I am therefore not satisfied that the present application could be made under Rule 29(a).  If there is further evidence from the foreign lawyer confirming that, in fact, in Indonesia a grant is usually not required for the purpose of administration of an intestate estate, I think the governing provision should be that of Rule 29(b) of the Non-contentious Probate Rules.

11. As Rule 29(a) is clearly unsuited, I direct the applicant to file a new application under Rule 29(b) together with a confirmation from a foreign lawyer from Indonesia who is familiar with the Indonesian succession law whether in Indonesia a grant is required for the purpose of administration.

12. So far as delay is concerned, counsel explained that the reason for the delay is due to the language problem because the Applicant does not speak English or Cantonese.  She only came to Hong Kong once a year and brought the documents that were requested by her lawyer for the purpose of handling the application. 

13. I was shown the correspondence that had been sent by the solicitor to his client or to the contact person in Hong Kong, Ms Cecilia Yu, who is also present in the court this morning.  Ms Yu is the niece of the applicant.

14. From the content of the letters that had been sent to either the lay client, the applicant, or Ms Yu in Hong Kong, I unfortunately have come to the view that the solicitor in this case has not handled this application either with due expediency or attention.  What I have observed is that the solicitors only copied the requisitions that were raised by the Probate Registry to his own client, and asked the client to answer the requisitions.

15. I do not think the role of a solicitor in a non- contentious probate application should be like a post-box, passing messages from the court to the lay client.  A solicitor has a duty to advise his client on evidence and documents that are required in an application.  Unfortunately this has not happened in this case.

16. I am unable to accept that the delay is either due to the Applicant’s absence from Hong Kong or to her inability to speak English or Cantonese.  I find in fact the main cause of delay is due to the unsatisfactory way the solicitors have conducted this application.

17. I am inclined, subject to the provision of a good reason, to deprive some of the solicitors’ costs from his own client. 

(Discussion re costs)

18. Since counsel has told me that the solicitors would waive charging all the costs from the client, I would not make any order.

(Discussion re documents to be filed)