LISA PONCET v. KHO SIN TEK, HENRY

HCAP 19/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 19 OF 2003

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Before: Hon A Cheung J in Chambers

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J U D G M E N T

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1.  In this probate action, the plaintiff, Lisa Poncet, claims to be the natural daughter of the late Oscar Wong.  Oscar Wong died intestate on 12 March 2002.  He never married during his lifetime.  The plaintiff claims to be Oscar Wong’s only natural daughter and therefore she is entitled to the grant of letters of administration of his estate and to succeed to his residuary estate: Intestates’ Estates Ordinance (Cap 73), section 4(5).  In this regard, illegitimacy does not matter: Parent and Child Ordinance (Cap 429), section 3.

2.  The defendant is a nephew of Oscar Wong.  He is the son of a half-blood sister (deceased) of Oscar Wong.  He denies that the plaintiff is the natural daughter of Oscar Wong.  He claims that as Oscar Wong has died leaving no wife, no issue, no parent and no siblings whether of the whole blood or half blood surviving him, he (as a nephew of Oscar Wong) is therefore entitled to an interest or share in the estate of the deceased, pursuant to sections 4(8) and 5 of the Intestates’ Estates Ordinance.

3.  After commencement of the present action in 2003, the plaintiff has taken out an Order 14A application against the defendant on the basis that the defendant as a nephew of Oscar Wong is not entitled to any interest in the residuary estate of Oscar Wong, since his own mother (a half-blood sister of Oscar Wong) has predeceased him.  That application has subsequently been withdrawn.

4.  The present Order 14 application was taken out on 9 October 2006.  It is put on the basis that the defendant has no arguable defence to the plaintiff’s claim that she is the natural daughter of Oscar Wong.

5.  Although there has been delay in making the present application for summary judgment, it is now well settled that such delay does not by itself prevent the court from entertaining the application on the merits: Morison, Son & Jones (Hong Kong) Ltd v Yiu Wing Construction Co Ltd [1989] 1 HKLR 432; Hong Kong Civil Procedure2007, vol 1, para 14/2/2.

6.  Nor can there be any dispute that in an appropriate case, summary judgment may be granted even in a probate action: Re Lau Siu Wah (Dec’d) [2005] 1 HKC 364; Tristram and Coote’s Probate Practice (29^th ed) para 38.08 (both authorities focus on giving summary judgment for an order proving for a will in solemn form, but there can be no difference with a case involving the grant of letters of administration).  The principles are the same.  Summary judgment is only for clear and straightforward cases.  However, it is for the defendant to show an arguable defence or some other reasons for trial.  He must condescend upon particulars of his defence.  On the other hand, the court does not try the case on paper.  The court is prepared to look at the factual assertions of the parties to see if the defendant’s version is believable; beyond that, whether it will be believed is a matter for trial.

7.  The plaintiff’s case that she is the natural daughter of Oscar Wong may be summarised as follows.  In 1964, Oscar Wong was reading law in England.  There she met a young French woman, Jacqueline Poncet, who was also studying or working in England.  She became his girlfriend.  In late 1965, the two of them spent some time together in Spain before Oscar Wong returned to Hong Kong.  It was during that period of time that the plaintiff was conceived.  Soon after the plaintiff returned to Hong Kong, Jacqueline Poncet told Oscar Wong in a letter written on 29 December 1965 that “I think I am expecting a baby from you”.  The pregnancy was later confirmed.  Apparently that was something that the two of them did not expect and there was no immediate marriage plan.  On 5 August 1966, the plaintiff was born in France.  After initial hopes of Oscar Wong coming over quickly to Europe to marry her gradually faded away, Jacqueline Poncet registered the birth of the plaintiff as her mother with the French authorities on 25 May 1967.  Oscar Wong eventually visited the mother and daughter later the same year when the plaintiff was about 1 year old.  Although there was still vague mention of they getting married, the relationship between Oscar Wong and Jacqueline Poncet had apparently turned cold and they never got married.  That notwithstanding, Oscar Wong continued to send monies over to France for the maintenance of Jacqueline Poncet and her daughter.

8.  Unfortunately, Jacqueline Poncet died suddenly in August 1969 when the plaintiff was only 3.  The plaintiff stayed with her maternal grandparents in a small village in France.  Her maternal grandfather (Charles Poncet) became her principal guardian.

9.  In January 1970, Oscar Wong paid his first visit to the plaintiff and her grandparents’ family in France, after learning of the tragic death of Jacqueline Poncet belatedly.  From then on until 1976, he paid annual visits to the plaintiff in France.  He also made regular remittances of money to the plaintiff’s grandfather for the maintenance and upbringing of the plaintiff.  As the contemporaneous correspondence shows, he was greatly interested in the plaintiff’s upbringing.  He was most concerned about the plaintiff’s health.  He was keen to bring the plaintiff over to Hong Kong but eventually dropped the idea after he recognised the strong emotional bond that had been developed between the plaintiff and her French grandparents.

10.  In 1973, with the help of French lawyers and the godmother of Jacqueline Poncet (Marie Rose Berthet, a close family relative/friend of the Poncet family), Oscar Wong formally recognised the plaintiff as his daughter under French law.  His name was formally endorsed on the French birth certificate of the plaintiff as her father.

11.  In 1976, the plaintiff was old enough to travel (in the company of an older relative) to Hong Kong to visit Oscar Wong.  From then on she visited Oscar Wong in Hong Kong regularly.  Oscar Wong continued to maintain her living and study in France and subsequently in UK even after she reached adulthood.  Oscar Wong had hoped the plaintiff would come over to live in Hong Kong and help him in running his business here, but that never materialised.  But they kept in close contact nonetheless by visits and correspondence, as well as by travelling together.  Oscar Wong continued to support and maintain the plaintiff’s living in UK and France until 2002 when he died.  After his death, the plaintiff became the representative of the estate of Oscar Wong in a family dispute involving Oscar Wong as 2^nd defendant (by original action) and plaintiff (by counterclaim), which also involved the defendant as 1^st defendant (by original action) and 2^nd defendant (by counterclaim) – HCAP 12/2000.

12.  Mr Edward Chan SC, Mr T M Lee with him, submits that the evidence in support of the plaintiff’s claim that she is the natural daughter of Oscar Wong is “overwhelming and beyond reasonable dispute”.  I agree.

13.  The relationship between Oscar Wong and Jacqueline Poncet is well evidenced by the contemporaneous letters written between them.  As mentioned, Jacqueline Poncet told Oscar Wong about the conception in a letter written in December 1965.  Oscar Wong wrote back in early 1966 and expressed his surprise about the news but pledged his support to Jacqueline Poncet.  After the pregnancy was confirmed, Oscar Wong again wrote to Jacqueline Poncet about future plans and his support to her, although blaming her slightly for not taking contraceptive measures which resulted in the unexpected pregnancy.  There were other letters written before the birth of the plaintiff.  The significant point is that in none of them did Oscar Wong deny or doubt that he was the father of the baby.

14.  The plaintiff was born in early August 1966.  Letters continued to be written between Jacqueline Poncet and Oscar Wong, in which Oscar Wong clearly called the plaintiff his baby.  The money remittances made to maintain Jacqueline Poncet and her daughter were well evidenced by the correspondence.  In the letters, Oscar Wong also referred to the plaintiff as “our daughter” and “my beloved daughter”, as well as “our little Lisa”.

15.  There were also photographs taken of the trip in 1967 by Oscar Wong to Europe to visit the mother and daughter.  It can be quite plainly seen from the photographs taken of the little girl that she had a distinctive Eurasian look.  But the plaintiff’s case goes far beyond mere looks and appearances.

16.  As mentioned, Oscar Wong paid annual visits to France starting from early 1970 until 1976.  There are photographs to evidence the visits.  There are also letters evidencing them.  In evidence also is an affidavit sworn by Marie Berthet detailing those visits and her interaction with Oscar Wong regarding the plaintiff’s general upbringing and education.  There are contemporaneous notes made by Oscar Wong himself about those visits.  The plaintiff and Oscar Wong clearly addressed each other as father and daughter.

17.  Again as mentioned, the formal recognition by Oscar Wong under French law that the plaintiff is his daughter is well evidenced by formal French birth registration records that have been put in evidence, in conjunction with French expert legal opinions about those records and the French birth registration system in general.

18.  From 1976 onwards, the plaintiff paid regular visits to Hong Kong.  Again all these visits are well evidenced by contemporaneous letters written and photographs taken.  Oscar Wong even named a yacht of his “Petite Lisa” in French (meaning “Little Lisa”).  The two of them called each other father and daughter and were known to others as such.

19.  When the plaintiff visited Oscar Wong in Hong Kong, he brought the plaintiff for medical check up, registering the plaintiff as “Lisa Wong”.

20.  The plaintiff was known even to Oscar Wong’s extended family to be his daughter.  Indeed, in a letter written by the defendant’s father (Dr Kho Han Po), the plaintiff was referred to as the daughter of Oscar Wong.

21.  As I said, I wholly agree with Mr Chan that the evidence in favour of the plaintiff’s claim to be the natural daughter of Oscar Wong is indeed overwhelming and beyond reasonable dispute.

22.  In his affidavits filed in opposition to the application as well as his skeleton submission, the defendant has raised a number of points seeking to cast doubt on the plaintiff’s claim.  I have carefully considered all those points but found nothing in them.

23.  The defendant points out that in a family tree prepared by Oscar Wong, which was used in the earlier probate action (HCAP 12/2000), Oscar Wong did not include the plaintiff as his daughter.  In my view, this is a false point.  The circumstances of the preparation of the family tree have been well explained in the 2^nd affidavit of Wan Yee Ling.  In short, that family tree was prepared by Oscar Wong for the purposes of supporting his joinder application in the earlier probate action as a 2^nd defendant.  It is thus understandable that its focus was on setting out his relationship to the other family members of the extended Wong family (which includes the defendant), so as to support his joinder application.  It was quite unnecessary for him to set out in that family tree his own children, if any.  It is noteworthy that he did specifically say in the family tree that his full blood elder brother (Lucien Wong) – whose estate was in issue in the earlier probate action – and his wife (Edith Wong) had “no children”.  That was of course highly relevant for that probate action.  By way of contrast, whether he (Oscar Wong) himself had any children was neither here nor there in that earlier probate action.

24.  In my view, that more than adequately explains why the plaintiff was not referred to in the family tree.  I find nothing in that family tree that casts any doubt on the plaintiff’s claim to be the natural daughter of Oscar Wong.

25.  The defendant refers the Court to part of the evidence given by his ex-wife (Gailey Li) at the trial of the earlier probate action, which the defendant eventually lost.  Gailey Li said at the trial that Oscar Wong had once told her that he was not “100 percent certain whether or not the plaintiff was his natural daughter”, and he had refused the suggestion of executing a will in her favour.  When Gailey Li then mentioned to Oscar Wong that in that case, the plaintiff would not be able to succeed to his estate after his death, Oscar Wong replied “so let it be” since he had been remitting 1,000 pounds sterling per month to her already.  Oscar  Wong did not wish to undergo a DNA test to find out the truth.

26.  I do not think this is sufficient to cast any doubt on the plaintiff’s case.  Although Gailey Li was described by the trial judge (Yam J) as a “reliable and credible” witness (para 32 of the judgment handed down on 17 March 2004), the judge never made any references, let alone findings, in relation to the matters now relied on by the defendant in the present action.  That is wholly understandable because those matters were wholly peripheral matters that were not directly relevant to the issues facing the court in the earlier action.  And the judge was not called upon to make findings on those matters.  The observation by the judge that he found Gailey Li to be a reliable and credible witness must be read in the context of the facts and matters that were really in issue in the earlier probate action.

27.  In any event, the bare allegations of Gailey Li, which are not supported by any documentary evidence, are wholly contradicted by the overwhelming contemporaneous documentary evidence that I have referred to earlier in this judgment.  I have not forgotten the present Order 14 context.  However, it is trite that even in an Order 14 application, the court is entitled to disregard a bare oral assertion by a defendant or his witness that is completely contradicted by contemporaneous documentary evidence.

28.  The defendant also criticises the French birth registration records and documents as not being conclusive evidence of the plaintiff’s true status.  The defendant points out (he being a solicitor acting in person) that Oscar Wong was domiciled in Hong Kong and therefore French law is not relevant.  He also argues that there are “many flaws” in the French registration system and records.  He submits that in Hong Kong, presumption as to paternity is governed by section 5 of the Parent and Child Ordinance.

29.  I disagree.  In my view, the defendant has totally missed the point relating to the French registration documents.  The question is not so much whether French law governs the question of paternity or whether the French system of registration is foolproof.  Rather the point here is that Oscar Wong, a Hong Kong Chinese ordinarily resident in Hong Kong, should have taken the trouble of flying to France to engage lawyers there to recognise (as opposed to, say, adopt) a small girl, born of a French mother who happened to be his ex-girlfriend, as his own daughter.  The process involved engaging lawyers, liaising with the French family of the plaintiff, and going through the legal procedures with the relevant French authorities. 

30.  On the facts of the present case, if Oscar Wong had not been the natural father of the plaintiff, there would have been no conceivable reason for him to recognise the plaintiff as his daughter before the French authorities. 

31.  Moreover, the plaintiff’s case does not rest on the French registration documents alone.  There were all the preceding and subsequent correspondence as well as money remittances and photographs to back her claim.  The French registration documents, though important by themselves, only form part of the entire evidence that wholly supports the plaintiff’s claim. 

32.  The defendant contended at the oral hearing that out of the goodness of his heart, Oscar Wong had deliberately made a false declaration before the French authorities to recognise the plaintiff to be his daughter, because she was the daughter of an ex-girlfriend of his who had died prematurely.  And he was a “mere benefactor”.  Mr Edward Chan countered that it was the “greatest understatement of the century”.  Whilst I certainly think this is itself an overstatement, I have no difficulty in accepting Mr Chan’s further contention that the defendant’s suggestion was “fanciful”.

33.  The defendant also seeks to cast doubt on the credibility of Marie Berthet who has made an affidavit in support of the plaintiff’s application.  In my view, there is nothing in his criticisms and I wholly reject them.

34.  Likewise, the defendant tries to discredit Jacqueline Poncet’s claim that she had conceived Oscar Wong’s baby by relying on a sentence written by Oscar Wong in one of his many letters to Jacqueline Poncet that they “did not spend many days together” and by suggesting that the plaintiff had been born prematurely.

35.  Again I find nothing in the suggestions.  That Oscar Wong unreservedly accepted that Jacqueline Poncet was carrying their baby is clearly evidenced by the contemporaneous letters.  That they had had a relationship is also clearly borne out by the correspondence.  In one of the letters, Jacqueline Poncet told Oscar Wong that she was expecting the baby to arrive in late August.  As it turned out, she was born in early August.  I see nothing in that.

36.  During oral submission, the defendant went so far as to suggest that maybe Jacqueline Poncet had had another Asian boyfriend at the time and the plaintiff had been fathered not by Oscar Wong but by that other Asian boyfriend, who is wholly unknown and unidentified.  On the facts and evidence of this case, this suggestion is not worthy of serious consideration.

37.  The defendant says that since August 1966, there has not been any further letter from Jacqueline Poncet to Oscar Wong.  Factually, this is incorrect.  But more importantly, I do not see the relevance of this suggestion to the issue in question.  In any event, as mentioned, in fact, Jacqueline Poncet and Oscar Wong met face to face in 1967 when the plaintiff was 1 year old.  There were photos taken of that occasion.

38.  Finally, the defendant argues that the best and conclusive evidence to prove the plaintiff’s claim to be the natural daughter of Oscar Wong is a DNA test.  He argues that if the plaintiff is really the daughter of Oscar Wong, she should not be afraid of undertaking the DNA test.  He points out that his first caveat in relation to Oscar Wong’s estate was entered in as early as 2002, shortly after Oscar Wong’s death (HCCA 660/2002).  If the plaintiff had acted quickly, she would have had no difficulty in obtaining sufficient samples from the remains of Oscar Wong to undergo the necessary DNA test to prove her claim.

39.  I reject this argument for a number of reasons. 

40.  First, it is a most unfair argument.  According to the unchallenged evidence of the plaintiff, she only became aware of the filing of the successive caveats during the trial of the earlier probate action, which took place in September and October 2003.  By then, Oscar Wong had been dead for more than one and a half years.  There was certainly no deliberate delay in not obtaining samples from the remains of Oscar Wong.

41.  Moreover, in the evidence filed by the plaintiff in answer to the question of DNA testing raised by the defendant, the plaintiff has set out in some detail the enquiries and efforts that she has made with a view to obtaining suitable and sufficient quantities of DNA samples from the remains of Oscar Wong to conduct DNA testing, the highly sensitive and emotional considerations involved in deciding whether to exhume the remains of Oscar Wong in order to obtain the samples, the possibility of conducting DNA testing by using samples to be obtained from the living members of the extended Wong family and other related matters and concerns. 

42.  To cut a long story short, the expert advices that she has got are to the effect that it is not easy to obtain sufficient and appropriate samples from the remains of Oscar Wong to do the DNA testing, and the result of any such testing may not be very reliable.  Likewise, testing results by using samples obtained from living members of the extended Wong family would not be definitive either.  On top, there is the reluctance to disturb the remains of Oscar Wong.

43.  Thirdly and in my view much more importantly, it is not for the defendant to dictate to the plaintiff how to prove her case, particularly in the present Order 14 context.  As I mentioned at the outset, it is for the defendant to raise triable issues or other reasons for trial.  Of course, depending on the facts, the reluctance of a plaintiff to undergo DNA testing could be a relevant or material factor in considering whether a triable issue has been raised or there is any other reason for trial. 

44.  However, on the facts of the present case, given the overwhelming evidence that the plaintiff has mustered in support of her claim, I do not see the lack of further confirmation from DNA testing as being sufficient to raise any arguable defence in favour of the defendant or provide any other reason for trial.  At the end of the day, it is for the Court to decide whether on the existing materials that have been placed before it, there is or is not a triable issue or arguable defence.

45.  For reasons that I have explained, I have come to the firm conclusion that there is no arguable defence to the plaintiff’s claim that she is the natural daughter of the deceased. 

46.  Nor is there any other reason for trial.  Notice of this action has been given to all other potential beneficiaries of the residuary estate of Oscar Wong (in case the plaintiff is not a natural daughter of the deceased), and none of them has applied to join in as a party to the present probate action or has appeared at the Order 14 hearing to contest positively the plaintiff’s claim.

47.  I am satisfied in all the circumstances of the case that summary judgment should be granted in favour of the plaintiff for an order that letters of administration of the estate of Oscar Wong be granted to her.  I so order.

48.  I also make an order nisi that the defendant pay to the plaintiff the costs of this action, to be taxed if not agreed.  Unless an application to vary the costs order nisi is made by either party within 14 days after this judgment is handed down, the same shall become absolute upon the expiry of the 14 days period.

Application for leave to appeal to Court of Final Appeal dismissed: see CACV98/2007 dated: 6 December 2007

HCAP 19/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2003

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J U D G M E N T

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1.  This is the application of the defendant for an injunction against the plaintiff restraining her from tampering with, removing or otherwise disposing of the remains of Oscar Wong, now buried in the Chinese Permanent Cemetery in Chai Wan.

2.  The defendant says that the plaintiff is on record with the management authority of the cemetery the registered person with authority to deal with matters relating to the grave and she has the authority to dig up or relocate the remains of Oscar Wong or dispose of them.

3.   Although the defendant has not expressly said so, apparently the apprehension is that the plaintiff would remove or destroy the remains of the deceased so as to avoid any taking of DNA samples from the remains to conduct DNA testing regarding her claimed relationship to the deceased, which forms the subject matter of the present probate action.

4.   The plaintiff has explained in her affidavit evidence filed in support of her summary judgment application, which has been heard by this Court, that she has obtained various advices from experts on DNA testing regarding the viability of conducting such testing and whether sufficient and adequate DNA samples could still be obtained from the remains of Oscar Wong.  She has been advised that it would not be easy to obtain good and sufficient samples from the remains to conduct such testing.

5.  She has also explained in her affidavit evidence about her reluctance to exhume the remains of the deceased for the purposes of obtaining such samples, out of respect for the deceased and emotional considerations.  She has also deposed in her affidavit that she has no intention of allowing Oscar Wong’s remains to be dug up, or relocating them overseas or disposing of them.  Those allegations were not seriously challenged by the defendant during the Order 14 application.  As I said, the application has been heard and judgment will be handed down by this Court in due course. 

6.  Yet, in the meantime, the defendant took out the present application for injunction.  In his supporting affidavit, the defendant has not said that he does not accept what the plaintiff has deposed to in her affidavit, ie that she has no intention of allowing Oscar Wong’s remains to be dug up and/or relocating such remains overseas or disposing of them.  During today’s hearing, the defendant merely suggested to the Court that despite what the plaintiff has deposed to, it is possible for her, as the registered person with authority to deal with matters relating to the grave, to do otherwise.

7. In the circumstances of the case and given the materials available, I am not satisfied that there are sufficient reasons to doubt what has been asserted by the plaintiff in her affidavit evidence.  I am not satisfied that there is a present risk of the plaintiff seeking to tamper with, remove or otherwise dispose of the remains of Oscar Wong.  I am not satisfied that there is the suggested risk of her seeking to do so with a view to avoiding the obtaining by anyone of suitable DNA samples from the remains to conduct necessary DNA testing so as to disprove her claim to be the natural daughter of the deceased.

8. In any event, I bear in mind that summary judgment has been sought by the plaintiff against the defendant and, as I say, judgment from this Court will be handed down in due course. 

9. Depending on the outcome, the parties may take the matter forward but at this interim stage I see no real reason for granting the application, so the application for injunction is dismissed.

[Submissions on costs]

10. Costs should follow the event.  In the circumstances, I order the defendant pay to the plaintiff the costs of the application forthwith.

[Submissions on gross sum assessment]

11. In my view, the plaintiff is quite entitled to instruct counsel to appear before the Court today to resist the application and the amount of brief fee, in my view, is reasonable – so that will be $20,000.  As for the solicitors, in my view, on a party-and-party basis, two hours only would be allowed bearing in mind that very competent counsel has already been instructed to represent the plaintiff in the present application.  Of course, the brief to counsel would include counsel giving all necessary advice to the solicitors regarding the conduct of today’s hearing.  So two hours, at $3,000 per hour, for the solicitors – that will be $6,000.  And the total is $26,000 on a party-and-party basis.

12. So the defendant to pay to the plaintiff the costs of this application forthwith in the gross sum of $26,000.