HO WAI YIN AND OTHERS v. CHENG SUET YEE

HCAP 18/2003

[2023] HKCFI 2690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 18 OF 2003

_______________________

_______________________

_______________________

_______________________________

REASONS FOR DECISION

_______________________________

1.  On 10 October 2023, I granted an order releasing the Defendant from an undertaking as recorded in the Order of Deputy High Court Judge Jat SC (as he then was) dated 16 April 2004 (“the April 2004 Order”), wherein she had undertaken that pending judgment or further order, she would not sell, mortgage, charge, incumbrance or otherwise deal with inter alia a landed property known as Workshop No. 9 on 16^th Floor, Fullagar Industrial Building No. 234 Aberdeen Main Road, Hong Kong (“the Property”).

2.  The undertakings given in relation to the said April 2004 Order concerned more than just the Property, but the Defendant only sought to be released from this particular aspect of it. The said undertakings had been offered up by the Defendant in the course of what was at the time hotly contested interlocutory proceedings between the Defendant and the Plaintiffs.

3.  For the purposes of the present application, it is unnecessary to delve deeply into the background of the proceedings, save to note that it was in essence a probate matter that involved a contest over the estate of a Cheng Fong, the deceased; the relief sought being to revoke the grant of Letters of Administration that had been granted to the Defendant and to have Letters of Administration granted instead to the 1^st to 3^rd Plaintiffs.

4.  However, the substantive matter has lain essentially dormant since May 2007.  By that stage, pleadings, witness statements and expert reports had been exchanged. For reasons not entirely clear to the Court, no further steps had been taken since then, save that on 17 January 2023, the Defendant had filed a notice of intention to proceed.

5.  The matter originally came before me on 22 September 2023.  At that hearing:

(1)  Counsel for the Defendant, Ms Colette Wong, submitted that there had been a material change of circumstances in that (a) the case had been idle for over 15 years and there was doubt as to whether the Plaintiffs would proceed or not; and (b) the Defendant was in financial difficulties and could not proceed in her defence after having been refused Legal Aid.  In so doing, she relied upon the trite principles for discharge of undertakings as summarized in Hong Kong Civil Procedure 2023, §29/1/36 and Wang Linping v Huang Keqin[2020] HKCFI 256.

(2)  In the evidence in support of the application, it was confirmed by the Defendant that the undertaking in question had been offered up essentially as a form of security at the time, but that the Property was not part of the estate in dispute.  That latter aspect (the estate) was still sufficiently protected by other aspects of the orders and undertakings that had been made and offered in the course of the interlocutory proceedings fought in the period 2003 to 2005.  It was her case that the Property had been acquired by her using her own funds, and was not part of the substantive dispute.

(3)  Messrs Peter Mo & Co, the solicitors on record for the 1^st and 2^nd Plaintiffs from the very beginning, had appeared, but indicated that they had no instructions in respect of the present application. Upon inquiries made by the Court, they had confirmed their understanding (upon prior instructions) as to the Defendant’s version of events insofar as the acquisition and ownership of the Property was concerned.

(4)  Certain of the 3^rd Plaintiffs appeared in person, indicating that they opposed the application generally, but being unable to provide any further basis or evidence to substantiate the opposition. They also indicated, upon the Court’s inquiries, that the 1^st and 2^nd Plaintiffs were deceased.

6.  In view of the position of the 3^rd Plaintiffs that had attended the original hearing, and the lack of clarity surrounding the status of the 1^st and 2^nd Plaintiffs, I adjourned the matter to 10 October 2023, giving directions for the filing of evidence in opposition by the 3^rd Plaintiffs should they so desire. The deadline for doing so passed, and they did not file any evidence. Nor did they attend the adjourned hearing.

7.  In the circumstances, and in the absence of any further opposition, I was satisfied that it would be just and appropriate to release the Defendant from this limited part of her undertakings.  I also noted to both teams of legal representatives that it was not ideal that the matter stay dormant for such a long time, and that steps should be taken to attend to this state of affairs.  Both Ms Wong and the representative of Peter Mo and Co indicated their agreement with this.

8.  I thank counsel and Mr Chung of Peter Mo & Co for their assistance.

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

____________

____________

Before: Hon A Cheung J in Chambers

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

____________

____________

Before: Hon A Cheung J in Chambers

_______________

J U D G M E N T

_______________

1.  Yesterday, I made an order in favour of an application by the Plaintiffs to enter judgment on admission against the Defendant.  At today’s hearing, Mr Miu, representing the Defendant, asks me to re-consider my order.  The order that I made yesterday not having been drawn up yet, there is certainly jurisdiction on the part of the Court to do so; however, the jurisdiction and discretion must be exercised judicially.

2.  Mr Miu asks me to consider and balance the respective prejudices to the parties in deciding whether to allow his client to resile from the admissions contained in the correspondence.  That was something that I had done yesterday before I decided in favour of the Plaintiffs’ application and indeed I specifically mentioned balancing the respective prejudices to the parties in my judgment.  In the process I had, as I said, taken into account, amongst other things, the merits of the Defendant’s claim that she is a natural daughter of the deceased based on the limited materials before the court.

3.  This approach is consistent with what the learned editors said in Hong Kong Civil Procedure 2004, vol. 1, para. 27/3/9, where they pointed out that whether the party seeking to resile from the admission has a triable issue with reasonable prospects of success is a relevant factor to be taken into account.  But apart from that factor, which I have fully taken into account, I have also taken into account the question of injustice to the other party and the question of bad faith.

4.  In making his application this morning, Mr Miu says to the Court that if the Court should allow the Defendant to resile from her admissions, she would make the same concession that she is not a natural daughter of the deceased on the first day of the trial (and an undertaking to that effect was offered), on the condition that the Plaintiffs do not make any application for judgment on the admission in the interim.

5.  This confirms what I have all along been suspecting, although I did not say it expressly in my judgment yesterday, i.e. that the true reason for the U-turn of the Defendant’s stance is this: when she made the admissions in the correspondence, she was eager for reasons of her own to avoid the further DNA test; she did not realise that by making the admissions the other side could apply for judgment on admission against her for the revocation of the grant.  The Defendant only realised this implication when the Plaintiffs took out the present summons for judgment on admission.  Thereafter, the Defendant’s stance changed.

6.  All this is evidenced by what has been offered before me this morning and in fact that has been confirmed by Mr Miu himself during the submission this morning.

7.  What the Defendant seeks to achieve is twofold: (1) the defeating of my order for taking of samples for a further DNA test; and (2) the avoidance of the revocation of the grant in the meantime.  It seems plain to me that the issue of whether the Defendant is a natural daughter of the deceased is, as it were, open to bargain.

8.  In an application to resile from an admission, the court must be satisfied that there is no question of bad faith involved.  As I pointed out yesterday, and as I have just pointed out, the Defendant has been less than frank in revealing to this Court the true reason for the U-turn.  That, according to Hunter J, is a powerful factor against the grant of an application for withdrawal of an admission.  See Tse Yuk Tin v Chee Cheung Hing& Co. Ltd [1984] HKLR 391.  Of course that is not a conclusive factor by itself but nonetheless it remains a powerful factor against the application for withdrawal.

9.  Moreover, as I pointed out to Mr Miu during his submission yesterday, the alternative arguments that the Defendant is a natural daughter of the deceased and that she is a lawful adopted daughter of the deceased are, by definition, mutually exclusive.  It is plain from the admissions contained in the correspondence, as well as the undertaking offered by Mr Miu this morning in conjunction with his renewed application for withdrawal of admission, that the true case of the Defendant is that she is a lawfully adopted daughter of the deceased couple, which is mutually inconsistent with a case of natural daughter.

10.  Of course, I appreciate that even in relation to factual matters, a party may run alternative cases; but here I am concerned with, amongst other things, whether the Defendant is being shut out from raising a triable issue with reasonable prospects of success.

11.  I have borne everything in mind.  I have come to the following two conclusions: (1) I refuse the application to reopen the matter; (2) even if I were to accede to the application and reconsider the matter, in the exercise of my discretion, I would refuse the application for withdrawal.

12.  I should add that the whole application is really a tactical move to enable the Defendant to hold on to the grant of letters of administration which, given her stance in this litigation that she is not a natural daughter of the deceased, ought not to have been issued to her in the first place.  I do not see that as a good justification for the withdrawal application.

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

____________

____________

Before: Hon A Cheung J in Chambers

_______________

J U D G M E N T

_______________

1.  I have before me an application for judgment by admission based upon some alleged admissions made by the Defendant in correspondence between the solicitors of the parties. 

2.  At issue in this probate action is whether the Defendant is a natural daughter of the deceased.  On the basis that she is a natural daughter, the Defendant has successfully obtained a grant of letters of administration of the estate of the deceased. 

3.  The Plaintiffs in this probate action say that she is not a natural daughter of the deceased.  Some DNA tests have been conducted which the Plaintiffs say show that the Defendant is not a natural daughter of the deceased.  The Defendant does not accept the results of the DNA tests done as being conclusive. 

4.  In an earlier hearing between the parties before me, I gave an order that DNA samples be obtained from the remains of the deceased and his deceased wife for the purpose of conducting a further DNA comparison test so as to determine whether the Defendant is a natural daughter of the deceased.  Dissatisfied with my decision, the Defendant has lodged an appeal from my order to the Court of Appeal.  The appeal is yet to be heard. 

5.  On 24 March 2005, the Defendant, through solicitors, wrote to the Plaintiffs’ solicitors as follows:

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter dated 18^th March 2005.

On 13^th January 2005, our client filed a Notice of Appeal under CACV No. 22 of 2005 against the judgment of the Honourable Mr Justice A. Cheung dated 17^th December 2004.  It is always our client’s stance that the said Judgment should not have been made in the first place for the reasons that:-

(i)   the DNA test is a grave disturbance and disrespect to her late parents; and

(ii)   the accuracy and reliability of the DNA test is highly questionable.

In order to express the greatest respect and fidelity towards her late parents, our client is willing to avoid the DNA test at all costs.  We are instructed that for the sole purpose of these proceedings, our client is prepared to make the concession that she is not a natural but a lawfully adopted daughter of her late parents.  Our client will in due course proceed to re-amend her Defence to reflect her such concession as appropriate.  In this regard, we enclose a draft Consent Summons for, inter alia, re-amendment of the Defence of our client and stay of execution of the said Judgment for your attention.  We shall send you the draft of the Re-amended Defence as soon as it is settled by our Counsel.

Since the parentage of our client will no longer be an issue in these proceedings, it is wholly unnecessary to conduct the DNA test.

Yours faithfully,

[Signed]

HOBSON & MA”

Enclosed with the letter was a consent summons in draft providing for the re-amendment of the amended defence, a stay of execution of my order and the withdrawal of the Defendant’s appeal from my order. 

6.  On 29 March 2005, those representing the Plaintiffs replied as follows:

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter of 24^th March 2005.

We do not accept your client’s change of stances on the basis of the alleged concession.  Quite to the contrary, it is our view that our expert report has already demonstrated to the Court that your client and all our clients do not have any blood relationship, i.e. your client is not the natural daughter of the deceased, Cheng Fong.  The execution of the Order made by the Honourable Mr. Justice A. Cheung on the 17^th December 2004 would only confirm our finding by direct comparison test.  We do not see any accuracy and reliability issues on such test bearing in mind that it has control elements (from our clients’ DNA) on the test.  In the circumstances, we would only accept your client’s unconditional admission that she is not the natural daughter of the deceased, Cheng Fong so that the examination of the ash bones of the deceased, Cheng Fong and Yuen Wong can be dispensed with.

As to your intended amendment on your client’s Defence, please let us have a copy of your draft Defence for our consideration.

If we do not hear from you on or before 2^nd April 2005, we shall proceed to take the samples of bone ashes in the absence of your client and conduct the DNA tests in due course.

All our clients’ rights are hereby expressly reserved.

Yours faithfully,

[Signed]

Peter Mo & Co.”

7.  This prompted the Defendant’s solicitors to write on 1 April 2005 as follows: 

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter dated 29^th March 2005.

The sole purpose of the DNA test is to determine the truthfulness of your clients’ allegation that our client is not the natural daughter of the late Mr. Cheng Fong.  As we have clearly stated in our letter dated 24^th March 2005, our client will make the concession that she is not a natural daughter of the late Mr. Cheng.  In the circumstances, there is absolutely no need to conduct the DNA test and hence the exercise to obtain sample of the remains and ashes of the late Mr. Cheng and late Madam Yuen Wong, regardless of whether our client’s admission is unconditional or not.

In any event, there is no urgency in this matter and we fail to see any justification for your clients to rush the DNA test when they are well aware of the aforesaid concession of our client.

We are instructed to inform that should your clients insist on causing unnecessary disturbance to the remains of the late Mr. and Mrs Cheng, our client will have no alternative but to defend and seek recourse against the unreasonable action of your clients.

Meanwhile, all our client’s rights and remedies are hereby reserved.

Yours faithfully,

[Signed]

HOBSON & MA”

8.  On 13 April 2005, the Plaintiffs’ solicitors wrote to the Defendant’s solicitors.  Amongst other things, they asked for a draft of the proposed re-amended defence.  

9.  On 11 May 2005, the Defendant’s solicitors replied as follows:

“Dear Sirs,

Re: High Court Probate Action No. 18 of 2003

We refer to your letter dated 6^th May 2005.

With respect, we are of the opinion that your request that our client should deposit the estate of the late Mr. Cheng Fong (“the Estate”) to the court is unclear and ambiguous.  The Letters of Administration in respect of the Estate were granted to our client on 3^rd May 2000.  Throughout these years, the Estate has been duly administered and/or disposed of.  In the circumstances, we shall be grateful if you will confirm whether your request is confined to the unadministered part of the Estate.

In any event, we are instructed to stress that notwithstanding the proposed change of the capacity of our client for the sole purpose of these proceedings, our client has a strong case to prove that she is a lawfully adopted daughter of the late Mr Cheng, hence a child or issue of the late Mr Cheng for the purpose of the Intestates’ Estates Ordinance.  It follows that our client is perfectly entitled to the Estate and there would be no difference in her inheritance to the Estate.

In passing, we enclose herewith a draft Re-amended Defence to be annexed to the draft Consent Summons sent to you by our letter dated 24^th March 2005 for your consideration.  Please let us know whether the draft Consent Summons is acceptable to you.

Yours faithfully,

[Signed]

HOBSON & MA”

10.  Enclosed with the letter was a draft re-amended defence.  Amongst other things, paragraph 25A of the original pleading whereby the Defendant pleaded that she is a natural and lawful daughter of the deceased and the deceased’s wife was deleted in the draft.  A new paragraph 5 pleaded as follows:

“5.  The defendant had all along been told by the deceased and Madam Yuen Wong, and verily believed that she was their natural daughter.  However, for the purpose of these proceedings, she is prepared to concede that she is not, in fact, their natural daughter.” 

11.  Mr Chong, appearing for the Plaintiffs, together with Miss Wong, argues at this hearing that clear and unambiguous admissions have been made by the Defendant in the correspondence that she is not a natural daughter of the deceased.  As her application for letters of administration was based on the premise that she is a natural daughter of the deceased, the Registry has been deceived or misled and, based on authorities, Mr Chong submits that the grant of letters of administration should be revoked.  In other words, he asks for judgment by admission in terms of paragraph 1 of the prayer for relief in the re-amended statement of claim.

12.  Mr Miu, appearing for the Defendant, argues that no admission has been made by the Defendant in the correspondence.  All she has offered in the correspondence that I have reproduced above was a concession and the concession was a conditional one, i.e. that it was conditional upon the Plaintiffs not seeking to obtain the DNA samples from the remains of the deceased and his late wife. 

13.  Mr Miu argues that by implication the Defendant was saying in her letters that she is indeed a natural daughter of the deceased.  However, for the purpose of litigation and in order that the remains of her late parents would not be disturbed in case her appeal from my order should fail, she was prepared not to take the point that she is a natural daughter of the deceased.  Mr Miu thus draws a distinction between admission and concession. 

14.  Having given the respective arguments of counsel careful thought, I am unable to accept Mr Miu’s argument.  Reading the correspondence as a whole, I have come to the clear conclusion that the Defendant has admitted in the correspondence that she is not a natural daughter of the deceased.  That she made the admission only for the purpose of the present action is neither here nor there, for one is precisely concerned with whether judgment should be entered against her based on her admission for the purpose of this litigation.  Calling what the Defendant has admitted a concession does not help either because a concession may be a factual concession and a concession may take the form of an admission.  In fact, one may call all admissions made by a party in his or her pleading concessions of what has been alleged in his or her opponent’s pleading in respect of which that first-mentioned party is seeking to respond by his or her pleading.

15.  Furthermore, in my judgment, the motive behind a party’s admission or concession is quite irrelevant.  Mr Miu suggests in submission that the concession was offered with a view to avoiding the obtaining of DNA samples from the remains of the deceased and his late wife.  That may well have been the case but that does not alter the fact that admissions have been made to the effect that the Defendant is not a natural daughter of the deceased.  An admission can be made for a variety of reasons.  Sometimes it is made because what has been admitted actually represents the truth.  Sometimes an admission is made out of convenience; still at other times, admissions are made for tactical purposes.  The court is not here to be concerned with the motive or purpose behind an admission.  The court is here to see whether a clear and unambiguous admission has been made.  Whether the admission is conditional or unconditional is, as the Defendant’s own solicitors have acknowledged in their letter dated 1 April 2005, quite beside the point in the present context.  What is required is a clear and unambiguous admission and, incidentally, I note that the solicitors of the Defendant recognised and accepted that the Defendant was making an “admission” regarding her own status in that letter. 

16.  I accept Mr Chong’s argument in relation to the letter of 1 April 2005 that, by that letter, the Defendant has made it absolutely clear that she was conceding that she is not a natural daughter of the deceased.  That explained her strong stance expressed in her solicitors’ letter that the remains of the deceased and his late wife must not be disturbed for, given her concession, the justification for obtaining DNA samples from the remains of the deceased couple was wholly gone. 

17.  I do not accept Mr Miu’s argument that the Defendant’s side was merely making an offer to make a concession in the correspondence, i.e. that in exchange for a promise by the Plaintiff not to obtain the samples from the remains of the deceased couple, the Defendant would no longer insist that she is a natural daughter of the deceased. 

18.  In my judgment, reading the correspondence as a whole, the Defendant’s position is very clear.  She was making a concession or admission that she is not a natural daughter of the deceased and, given that stance, the substratum of my order regarding obtaining DNA samples from the deceased couple was gone and, therefore, the Plaintiff must not seek to enforce my order anymore.  

19.  That, in my judgment, is a fair reading of the correspondence.  There is no question of the Defendant needing any consent or agreement from the Plaintiffs’ side.  It is true that the Defendant has provided a consent summons as well as a re-amended defence, both in draft form, to the Plaintiffs’ solicitors for their perusal or comment, but that was only for the purpose of saving costs, as I observed during Mr Miu’s submission, which he also accepted.  In fact, the Defendant need not obtain the Plaintiffs’ consent to what she was seeking to do, i.e. to make the admission and to ask the court to stay the execution of the order given by me at the last hearing.  The Defendant could simply come to court, make the concession, ask for leave to amend her pleading, and ask the court to stay the execution of the order previously given.  There could be other ways to achieve the same end.  My point here is that although draft documents have been supplied to the Plaintiffs’ side, it does not mean that what was involved was merely a settlement order. 

20.  For all these reasons, I have come to the conclusion that the Defendant has made admissions that she is not a natural daughter of the deceased.

21.  Mr Miu has not, in his submission, challenged Mr Chong’s argument that if the Defendant is not a natural daughter of the deceased, the grant of letters of administration should be revoked by the court on the basis that the Probate Registry was led to proceed on a false premise in processing and approving the application for grant.  Authorities have been cited to me to support the proposition that in a situation of the present type, the court should revoke the grant.  Mr Miu has not made any submission to the contrary. 

22.  Of course, I have not forgotten that in an application under Order 27, rule 3, the court retains a discretion as to whether to give judgment even if it is of the view that an admission that is clear and unambiguous has been made.  But as has been noted by the editors of Hong Kong Civil Procedure 2004, in volume 1, para. 27/3/6, the court would, in the absence of reasons to the contrary, make the order sought if an admission supporting the grant of judgment has been established so as to save time and costs. 

23.  I have considered whether anything will be gained by my revoking the grant at this stage of the proceedings.  There are other issues to be tried.  My revocation of the grant at this stage would mean that there is a vacuum in the administration of the estate of the deceased unless the court should, at the same time, order the appointment of a replacement administrator or an administrator pendente lite, which will more likely be the case. 

24.  On the other hand, I bear in mind the controversies and disputes regarding the Defendant’s management of the estate thus far and, in fact, I still have other applications to deal with relating to the Defendant’s management of the estate.  My revocation of the grant at this stage would, hopefully, reduce or minimise those disputes because once the grant is revoked, the Defendant would no longer be responsible for administering the estate and the allegations and complaints against her that are directed to the future would be reduced, if not wholly gone. 

25.  For those reasons, and having looked at the matter in the round, I am inclined to granting judgment revoking the grant of letters of administration; but that is subject to one further consideration, i.e. whether the Defendant should be allowed to resile from her admissions.   

26.  No formal application has been made by the Defendant to do so.  Mr Miu explains to the Court during his submission that that was because his client’s stance was that she had made no admission and, therefore, there was nothing to be resiled from.  Unfortunately for her, according to my judgment, she was wrong.  Therefore, there is before me no formal application for the withdrawal of admission.  In his written skeleton argument, Mr Miu has, as a fallback position, mentioned the withdrawal of admission if necessary.  That is quite unsatisfactory, leaving aside the fact that there is no formal application before the court.  No affidavit or affirmation has been filed by the Defendant or those representing her to explain why the admissions were made in the first place or why she should want to withdraw her admissions now. 

27.  Mr Miu has given me, from the bar table, some explanation for the apparent change of stance.  He essentially said that at a subsequent stage, he and his pupil have had a closer look at the expert report relied on by the other side and have come to the conclusion that the report does not really support the Plaintiffs’ case that the Defendant is not a natural daughter of the deceased.  Implicit in that supposed explanation for the change of stance was that the admissions in the letters were made because, at that time, the Defendant thought that the Plaintiffs had a fairly strong case on the expert evidence and, therefore, she thought it advisable to make the admissions.  But as her counsel and counsel’s pupil have now come to a different view, she would like to change her stance.  That is fair enough by itself but, unfortunately, that explanation, as I noted, given by counsel from the bar table without any supporting affidavit to back it up, does not seem to tally at all with what has been written on behalf of the Defendant in the correspondence.  The clear message in the letters written by the Defendant’s solicitors was that she made the concession because she did not want the remains of the deceased couple to be disturbed which would be the case if her appeal from my order should prove to be unsuccessful.  The solicitors’ letter (of 24 March 2005) lost no time in pointing out that the accuracy and reliability of a DNA test are highly questionable. 

28.  Mr Miu accepts in submission that all this did not sit well with his latest explanation for his client’s apparent change of stance.  In an application for withdrawal of an admission, whether made formally or informally, a defendant is in fact seeking an indulgence from the court.  He or she must come clean about the true reasons behind the original admission and the subsequent U-turn in stance.  I am afraid I am not sure if I have been given the reasons or the complete reasons for the apparent change of stance.  In any event, there are insufficient materials before me to support the application.  Furthermore, I must consider the respective prejudices to the parties if I should allow the withdrawal and if I should refuse the application to withdraw. 

29.  Having borne everything in mind, including the merits of the case in so far as I can glean from the available materials, and having borne in mind the materials that are placed before me and the wholly unsatisfactory evidence that has been put in by the Defendant’s side to support her informal application for withdrawal of admission, I am unable to find sufficient justification to exercise my discretion to allow withdrawal.  Even if I should allow the informal application to withdraw the admissions to be made and entertain the application on its merits, I would not be prepared to allow it. 

30.  For all the above reasons, I accede to the application of the Plaintiffs for judgment by admission.  I will hear the parties as to what consequential directions I should give so as to best safeguard the interests of the estate, given that revocation of the grant is involved here.  I would also hear further from counsel regarding the implications of the judgment that I am granting will have on the remaining applications that are before me. 

31.  Subject to what counsel may say, I would give the costs of this particular application to the Plaintiffs. 

HCAP 18/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 18 OF 2003

____________

____________

_______________

J U D G M E N T

_______________

1.  This is an application by the Plaintiffs under O. 29 r. 3 of the Rules of the High Court, Cap. 4 for authorisation to obtain DNA samples from the remains and ashes of the deceased involved in this probate action as well as that of his deceased wife. 

2.  The crucial issue in the present probate action is whether the Defendant is the natural daughter of the deceased and his late wife.

3.  The purpose of the application to obtain the DNA samples of the deceased and his late wife is to enable the Plaintiffs to carry out a DNA comparison test between those DNA samples and the DNA samples that have already been obtained from the Defendant. 

4.  The application is strenuously opposed by the Defendant.  A number of objections, some technical and some on the substantive merits, have been raised by Mr Brian Wong, counsel for the Defendant at today’s hearing.  I will deal with these objections in turn. 

5.  Counsel submits that the present application does not fall within the ambit of O. 29 r. 3 in that a dead human body or the remains of a late person are not recognized as a matter of law as “property”.  Counsel relies on a line of English and Commonwealth authorities to support his proposition that there is no property in the body of a deceased person. 

6.  There are indeed quite a number of cases on this topic, which is assuming greater importance than in the days of old given the advances in science and the use of human tissues and human parts in scientific researches and medical treatments.  A very useful discussion of this aspect of the law can be found in Palmer & McKendrick, Interests in Goods (2^nd ed.), Chap. 2, where the case law has been subjected to a critical analysis. 

7.  The crucial question raised by counsel’s argument relates to whether the word “property” as used in O. 29 r. 3 (and for that matter, O. 29 rr. 2 and 4 as well) means a tangible thing to which a proprietary interest or right may be claimed as a matter of law or whether it simply means a tangible thing. 

8.  In this regard, my attention has been drawn to the definition of “property” in section 42(4) of the High Court Ordinance, Cap. 4.  In sub-section (2) of the same section, this court is authorised to make orders of the type provided in O. 29 r. 3 of the Rules.  In sub-section (4), “property” is defined to include “any land, chattel or other corporeal property of any description”. 

9.  Mr Wong argues that the definition of “property” means that the word is used only in relation to those tangible things which carry with them a proprietary right or interest and it does not include a human body in which no one can claim any property. 

10.  On the other hand, Mr Chong appearing for the Plaintiffs argues that the definition of “property” in section 42(4) is not exhaustive, particularly in the light of the use of the word “includes” in the definition.  My attention has also been drawn to the fact that in the former Order 50 of the English Rules of the Supreme Court, the phrase “property or thing” was used in the rule instead of the single word “property” in our present rule, but counsel has not been able to supply this Court with an explanation for the dropping of the word “thing” in our modern rule.

11.  For that reason, some of the older cases which referred to the court’s power to make orders in respect of any “property or thing” must be read with some caution.  At the end of the day, it is a matter of statutory construction and ascertaining the object and purpose of the provisions in question. 

12.  In this regard, I must not forget section 19 of the Interpretation and General Clauses Ordinance, Cap. 1, which requires the court to adopt a “fair, large and liberal” interpretation and construction of a piece of legislation (which includes subsidiary legislation), so as to best attain the object behind the legislation or subsidiary legislation in question “according to its true intent, meaning and spirit”.

13.  To some extent, I agree with Mr Wong that the intention behind the provisions in question is to enable the court to authorize specific things to be done in relation to a subject matter which does not belong to the parties to the action.  Indeed, section 42(2) specifically says that the inspection, photocopying, preservation, custody, detention, taking of samples and carrying out of experiments are to be done to a “property which is not the property of, or in the possession of, any party to the proceedings.” 

14.  In other words, the provisions provide for the interference with a third party’s proprietary right to or possession, custody or control of the subject matter in suitable circumstances.  The obvious intention is that in those circumstances, the interference is justified by the need to administer justice in the cause or matter before the court.  Viewed in that light, one would have thought that if the subject matter does not belong to a third party or is one in which no third party has any property (but is nonetheless in the possession or custody of or otherwise kept or controlled by a third party which thus gives rise to the need for a court order in the first place), the court should have the power to order the taking of the actions specified in the provisions in appropriate cases.  In other words, the latter case is really an a fortiori case. 

15.  In my view, the construction advanced by Mr Chong of the word “property” would better attain the object behind the provisions in question than the more restrictive meaning favoured by Mr Wong.

16.  As I said, section 42(2)(a) actually says that the court may make an order providing for the inspection, photocopying, preservation, custody and detention of a property “which is not the property of, or in the possession of, any party to the proceedings”.  But in my view, the quoted phrase does not require that the “property” in question be the property of a third party (or that it be legally capable of being so).  Mr Wong’s contention would actually restrict the “property” to a property belonging to (or legally capable of belonging to) a third party.

17.  Bearing everything that I have set out above in mind, I do not find any textual objection to the adoption of the wider construction advanced by Mr Chong. 

18.  Moreover from the point of view of a fair, large and liberal construction of the provisions in question, the wider meaning of the word “property” would seem to me to better ensure the attainment of the object behind the provisions according to their true intent, meaning and spirit.  I can see no logical, rational, sensible or practical reason for drawing a jurisdictional distinction between a tangible thing that may legally belong to a third party (and therefore a court order may be made in deserving circumstances) and one that no one can claim any ownership in (and therefore no court order may be made irrespective of the circumstances).  None has been suggested to me either.

19.  For all these reasons, I am prepared to hold that the word “property” in the relevant provisions is applicable to the remains of a late person, including the ashes of the deceased and his late wife in the present case.  I therefore reject counsel’s objection on this ground. 

20.  Mr Wong then says quite correctly that the ashes are not the subject matter of the present action.  More importantly, he says that no question arises in the present action as to the ashes.  He therefore says that the wording in O. 29 r. 3 has not been satisfied (“any property which is the subject matter of the cause or matter or as to which any question may arise therein”).

21.  With the last proposition of counsel, I do not agree.  In my view, again placing a fair, large and liberal construction on the provisions in question, the wording of rule 3(1) of Order 29 is wide enough to cover the type of situations faced by the Court in the present case.  In other words, in my view a question does arise in relation to the ashes in that the ashes may provide valuable evidence that is pertinent to an important if not crucial issue in dispute between the parties in the present case, i.e. the parentage of the Defendant.

22.  So again I reject counsel’s objection.  For the sake of completeness, I should add that I do not accept that this application is a mere fishing exercise with the stigma or connotation that the word “fishing” carries.  Rule 3(1) expressly says that where the court considers it “necessary or expedient for the purpose of obtaining full information or evidence in any cause or matter”, it may make an order specified in that rule.

23.  In my view, it is all a matter of extent and degree.  In my judgment, this is not a mere fishing exercise; the matter potentially goes to a highly material piece of evidence relating to a, if not the, crucial issue in this probate action.

24.  Mr Wong says that even if the wording in rule 3 is satisfied, the court still has a discretion to refuse an order.  I agree that the court does have a discretion under rule 3.  Mr Wong then says that the making of the order would be against social mores and decorum and that tampering with the remains of the deceased and his late wife would constitute disrespect to the dead particularly in a Chinese society like Hong Kong.  This is not something that can be financially compensated. 

25.  I understand the sentiment and I would not say that this is not a relevant factor to be taken into account.  But this is only one of the many factors that I should take into account, and I wish to say that I have carefully taken this highly sensitive factor into account.

26.  Next counsel says that the conduct of the 1^st Plaintiff in the past in relation to his (alleged) agreement to the Defendant’s obtaining letters of administration from the Registry which this probate action seeks to revoke taints the 1^st Plaintiff’s application.  But I believe counsel agreed with me during the course of his very able submission that this cannot take the Defendant’s objection very far because the application is a joint application of all the Plaintiffs who with the exception of the 1^st Plaintiff are not affected by this point at all.

27.  Here, I must not be taken to have expressed any view on the merit of the Defendant’s allegation against the 1^st Plaintiff.  Even if this was established, the weight to be attached to it would be limited.  In deciding how my discretion should be exercised, I am in fact quite prepared to adopt a cautious approach and assume the allegation as true in favour of the Defendant.

28.  Then Mr Wong highlights to me a number of possible limitations of the proposed DNA test.  Moreover, he argues on whether it is really necessary to conduct the proposed DNA test given that a DNA test involving the samples of a supposed sister of the deceased has been conducted. 

29.  To cut a long story short, the parties are in disagreement as to firstly, the real status of the supposed sister, and secondly, how the result of the DNA test done previously should be interpreted.  I think Mr Wong eventually agreed during his submission that on the basis of the existing disputes, the Plaintiffs cannot really be said to be pursuing a wholly unnecessary DNA test.

30.  I note the wording in O. 29 r. 3 is whether it is necessary or expedient to obtain the sample or to conduct the test in question.  Difficulties relating to the proper extraction of DNA samples from the ashes of the deceased and his late wife have been highlighted to the Court. 

31.  I have borne the supposed difficulties in mind.  I am not persuaded on the material before me that the extraction of any useful DNA elements or samples would definitely be impossible.  I cannot exclude the possibility of a failure either.  That is a factor to be borne in mind, but in my judgment, it is only one of the factors to be taken into account. 

32.  The Court does not need a guarantee that samples will be successfully extracted or the proposed DNA test successfully carried out before it can make the order or should exercise its discretion in favour of ordering the obtaining of the samples and carrying out of the test.  To be fair to Mr Wong, he has not put his case as high as that. 

33.  As regards the other conflicting views of the experts, I have borne them in mind, but in my view they are only of marginal significance in the weighing exercise.  They are really matters for ventilation at trial, but this brings me to whether I am widening the scope of dispute between the parties if I were to accede to the application.

34.  In other words, far from helping the Plaintiffs or the parties to obtain a conclusive answer to the disputed parentage of the Defendant, is the Court being asked to widen unnecessarily the scope of dispute between the parties, i.e. arguments over the result of the proposed DNA test?

35.  Having considered the expert evidence and the disputes between the experts and the parties, I am not persuaded that this is going to be the case.  But I have carefully borne this aspect of the case and the possibility in mind in my weighing exercise. 

36.  As I said, I have borne everything in mind, particularly those that have been specifically raised by Mr Wong in his oral as well as written submissions.  Having performed a weighing exercise, I come down in favour of the application.

37.  In order words, in the exercise of my discretion, I order that the Plaintiffs be authorised to obtain sufficient samples from the bone ashes and remains of Cheng Fong and that of Yuen Wong for the purposes of obtaining sufficient DNA samples from those samples to carry out a DNA comparison test with the DNA samples of the Defendant that have already been obtained by the Plaintiffs and to carry out the DNA comparison test.

38.  For the avoidance of doubt, I give the Plaintiffs liberty to serve a copy of the sealed Order on the relevant Government department with which the bone ashes and remains are for the time being kept. 

[Submissions on costs]

39.  Having heard counsel on the question of costs and having borne in mind what had happened before the master and the normal rule that costs should follow the event – Mr Wong having accepted that so far as the event is concerned his opposition to the substantive application today has failed, I think the fairest order is to give the costs of the application to the Plaintiffs in any event, to be taxed if not agreed, subject to one exception, namely the costs of the hearing before the master, which should be borne by the Plaintiffs in any event with a certificate for counsel for that hearing before the master.  And I so order.

Mr K M Chong, instructed by Messrs Peter Mo & Co., for the 1^st to 3^rd Plaintiffs

Mr Brian Wong, instructed by Messrs Waller Ma, Huang & Yeung, for the Defendant