LI CHEONG v. LEE KWAI TAI also known as LI KWAI TAI

HCAP 32/2012
[2018] HKCFI 969

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 32 OF 2012

____________

____________

____________

____________________

D E C I S I O N

____________________

Introduction

1.  This court handed down a decision dated 5 March 2018 (“the Decision”) whereby this court exercised its discretion to accede to Ms Li’s application for, among other matters, leave to file acknowledgment of service of the Writ herein out of time. The defendant now applies for leave to appeal against the Decision. The plaintiff continues to take a neutral stance and has been excused from attending the hearing.

2.  The background facts have been narrated in detail in both the Decision and the Reasons for Judgment dated 13 April 2017 handed down by the Court of Appeal (“the CA Judgment”) whereby the plaintiff’s application for leave to appeal out of time against my judgment given on 8 June 2016 after trial in his absence (“the CFI Judgment”) was dismissed. I see no reason to repeat any of such facts here and this decision should be read in conjunction with the Decision and the CA Judgment. Furthermore, the abbreviations used in the former will be adopted in this decision.

3.  In a nutshell, this court by the CFI Judgment granted a declaration to the effect that the defendant is the only surviving issue of the Deceased. Ms Li now claims to be the sole surviving issue of the Deceased. For the purpose of this application, Mr Yau appearing for the defendant (for the first time) together with Mr Poon, in his skeleton submissions, indicates that his submissions are made on the basis that the documentary evidence put forward by Ms Li purportedly in support of her claim in the New Action discloses a bona fide claim.

Relevant legal principles

4.  Section 14AA(4) of the High Court Ordinance provides that leave to appeal shall not be granted unless the court hearing the application for appeal is satisfied that (a) the appeal has a reasonable prospect of success; or (b) there is some other reason in the interests of justice why the appeal should be heard.

5.  Leave to appeal under Order 59 rule 2B is not lightly granted. Reasonable prospects of success involve the notion that the prospects of succeeding must be “reasonable” and therefore more than “fanciful” without having to be “probable”: SMSE v KL [2009] 4 HKLRD 125 at §17 per Le Pichon JA.

The proposed grounds of appeal

6.  Mr Yau has advanced a number of grounds in the draft Notice of Appeal. In addition to this document, Mr Yau has also lodged with this court a document entitled “Statement in Support of Application for Leave to Appeal” (“the Statement”) made pursuant to paragraph 8 of Practice Direction 4.1, which provides that such a statement is required in every application for leave to appeal to the Court. Mr Yau submits that although Practice Direction 4.1 governs applications to the Court of Appeal, it also covers applications to the court below for leave to appeal to the Court of Appeal.

7.  I cannot agree with him. In paragraph 1 of Practice Direction 4.1, the Court is expressly defined to be the Court of Appeal and the practice direction makes it clear that it governs the conduct of the civil business of the Court of Appeal only. In any event, this court has considered the contents of the Statement regardless of its necessity and it facilitates better understanding of Mr Yau’s submissions.

8.  As rightly pointed out by Mr Lam, appearing again for Ms Li, the draft grounds can be broadly classified into two categories. First, the defendant argues that this court has no jurisdiction to grant leave to Ms Lee to file her acknowledgement of service out of time by reason of the fact that this court became functus officio. Second, the defendant argues that in any event, this court was plainly wrong in the exercise of its discretion.

Jurisdiction issue

9.  Paragraphs 7 and 8 of the Statement explain the jurisdiction issue in the following terms:

“The court should have approached Ms Li’s application on the footing that she had her day in court pursuing her cause if she wanted to and she was in effect trying to appeal from the CFI Judgment out of time. Based on that approach, what the Court could have done at the most was to grant Ms Li extension of time to appeal, assuming there was such application on foot (but there was no such relief sought in the Notice of Application). It would be a matter for the Court of Appeal to decide if in these circumstances Ms Li should be relieved from the binding effect of the CFI Judgment. It is not the function of this Honourable Court to limit the binding effect of the CFI Judgment. In other words, the court is effectively functus officio.

The court, having rejected Ms Li’s explanation for the delay, was wrong in principle to treat her Notice of Application as an application for extension of time to acknowledge the service of the Writ herein. There was a 10-month delay between the CFI Judgment and the Notice of Application. This extension of time sought could not turn back the clock. The CFI Judgment has been sealed. The time for appeal has long expired. The plaintiff’s application for leave to appeal out of time has also been rejected by the Court of Appeal.”

10.  I do not think that this jurisdiction argument has a reasonable prospect of success. I believe the correct analysis is this. The CFI Judgment and the CA Judgment were binding on Ms Li not because she was a party to the action. Nor has it even been alleged that she was bound as a result of estoppel by conduct as explained by CJHC Cheung in Si Tou Choi Kam v Wealth Credit Limited[2018] HKCA 250 at §§27-30 (handed down after the hearing). Ms Li had not appeared in neither this court nor the Court of Appeal before the two Judgments were given. There is no evidence that she had ever been given notice of the hearings. Ms Li was bound merely because of her failure to acknowledge service of the Writ herein within 14 days after the Notice was served on her at the office address of KCC. By the operation of Order 15 r.13A(4), Ms Li should be bound by any judgment given in the action as if she was a party thereto. Thus, she remained to be a non-party when her application came before this court though she was bound by such judgments.

11.  In other words, the CFI Judgement was binding on Ms Li on a default basis. It is, in my view, as far as Ms Li is concerned, akin to a default judgment entered against a defendant having failed to a Notice of intention to defend or his defence and did not take part in the proceedings. If the defendant is able to show sufficient cause, the court may set aside the default judgment and let the defendant make amends such as filing of his defence.

12.  Further, Order 35 r.2 provides that any judgment obtained where one party does not appear at trial may be set aside by the court upon an application made within 7 days after the trial. Thus, an absentee can apply preferably to the trial judge to set aside a judgment obtained after trial rather than bringing an appeal to the Court of Appeal: see also §36 of the CA Judgment.

13.  In the present case, I am unable to understand why I ceased to have a discretion to allow Ms Li to file the acknowledgement out of time despite the CFI Judgment. Against the background facts including the procedural history, I do not accept Mr Yau’s submission that this court should have treated Ms Li’s application as her appeal against the CFI Judgment out of time and at most this court could have granted leave to her to appeal out of time. In fact, this court has no jurisdiction to grant such leave after the expiry of the applicable period at all: Order 59, r.15.

14.  At the hearing, Mr Yau confirms to this court the exact time when I ceased to have any jurisdiction in this matter is upon the handing down of the CA Judgment.

15.  I fail to understand this submission. Though the Court of Appeal made the observation that this court was entitled to proceed with the trial notwithstanding the commencement of the New Action (§34 of the CA Judgment), on which Mr Yau places a lot of emphasis, the Court of Appeal was not dealing with Ms Li at all and she was not privy to the plaintiff’s application before the Court of Appeal. The Court of Appeal cannot be taken to have decided that Ms Li could no longer intervene in the present action. 

16.  Moreover, I do not accept Mr Yau’s submission that once this court rejected the explanation for the lateness of the application of Ms Li, this court ceased to have any jurisdiction in this matter. It appears to me that this is a question of discretion rather than jurisdiction.

Discretion Issue

17.  This court has explained the reasons why my discretion was eventually exercised in favour of Ms Li in view of her seemingly bona fide claim despite all the severe criticisms levied on her and KCC. I need no elaboration here. Suffice it to say, this court had taken into account all the attacks on KCC and Ms Li now repeated by Mr Yau in the weighing exercise. I cannot accept there is any merit in the submission that I was plainly wrong in my exercise of the discretion.

18.  Mr Yau submits that this court should not have regard to my oversight of the Notice and hence the binding effect of the CFI Judgment on Ms Li.

19.  This court expressly stated in the Decision (§31) that irrespective of whether or not this court was aware of the binding effect, the CFI Judgment remains binding on Ms Li.

20.  However, such a binding effect should have been brought to the attention of this court. This must be something which should have been taken into account when this court exercised its discretion to make the declaration sought by the defendant. This is particularly so when Ms Li’s relationship with the Deceased is apparently supported by the birth certificate of Ms Li and the residence record of the Deceased issued by the Singaporean authorities. These documents were, as pointed out by Mr Lam, indeed received by HN on 18 December 2015. From then till the trial on 8 June 2016, there was no challenge to the authenticity of such documents by the defendant. I find it disturbing that the defendant did not see fit to disclose these documents at trial when asking this court to make a declaration that she is the only surviving daughter of the Deceased. The complete picture to this court was not shown to this court at trial and a mere fleeting reference to the New Action could hardly suffice.

Other matters

21.  I cannot agree with Mr Yau that the intended appeal raises any issue of general public importance. The New Action is not the subject matter of the CFI Judgment at all and the question posed by him in the Statement does not really exist, let alone bearing any general public importance.

22.  For completeness, I should deal with one matter. In the CFI Judgment, I stated that upon Ms Li’s filing of her acknowledgement of service thereby becoming a party to this action, the CFI Judgment should cease to be binding on her. Mr Yau submits, with the agreement of Mr Lam, that this cannot be right as the CFI Judgment should continue to be binding on Ms Li until she could set it aside pursuant to Order 35 r.2.

23.  I do not agree with both counsel. A proper reading of Order 15 r.13A(4) shows that the binding effect is created only by reason of Ms Li’s default of filing an acknowledgement of service.  Once she files the acknowledgement of service, the first part of the provision is engaged and she shall become a party. The latter part of the provision is no longer relevant and the binding effect of the CFI Judgement on her created should vanish.

24.  This being the case, there is no need for me to order that her application to set aside the CFI Judgment out of time after she has become a party should be heard together with or after the conclusion of the trial of the New Action by the same judge. She no longer needs such an application.

25.  This has however little practical effect on the parties and there is no need to set aside this part of the CFI Judgment by the Court of Appeal in my judgment.

Conclusion and order

26.  For the reasons given above, I am not convinced that the intended appeal of the defendant can meet the thresholds.  Accordingly, I dismiss the application of the defendant.

27.  There is no reason why costs should not follow the event. I make an order nisi that the defendant should pay Ms Li her costs of and occasioned by this application forthwith, to be taxed if not agreed and I make no order as to costs in regard to the plaintiff.

28.  Lastly, I thank all counsel for their assistance.

HCAP 32/2012

[2018] HKCFI 478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO. 32 OF 2012

____________

____________

______________

D E C I S I O N

______________

Introduction

1.  This court dismissed the claim of the plaintiff and allowed the counterclaim of the defendant on 8 June 2016 after trial in the absence of the plaintiff: see the unreported judgment of the same date (“the CFI Judgment”).  The plaintiff’s application for leave to appeal out of time was dismissed by the Court of Appeal on 11 April 2017: see the Reasons for Judgment dated 13 April 2017 (unreported, HCMP 3190/2016) (“the CA Judgment”).

2.  Ms Li Soo Tan a.k.a. Lee Soo Tan Doreen (“Ms Li”) now applies to set aside the CFI Judgment pursuant to Order 35 r.2, Rules of the High Court (“RHC”) by her Notice of Application dated 10 April 2017. In her Notice of Application, she asks for an order that:

 (1)     Ms Li be allowed to acknowledge service of the Writ of Summons herein, notwithstanding the expiry of the time permitted under Order 15, r.13A(4) of the RHC;

 (2)     Ms Li be allowed to make this application under Order 35 r.2(1) of the Rules, notwithstanding the expiry of the time permitted under Order 35 r.2(2) of the RHC;

 (3)     The Judgment given in favour of the defendant upon her counterclaim in this action be set aside and that execution thereon be stayed;

3.  The plaintiff takes a neutral stance and the defendant opposes this application.

4.  This matter has a long history and the background facts have been narrated in both the CFA Judgment and the CA Judgment. I am reluctant to make any repetition here. However, to facilitate comprehension of this Decision, the basic facts leading to the present application should be outlined as follows.

Background facts

5.  In this action, the plaintiff claimed to be the nephew of the Deceased and sought a declaration to the effect that the Deceased died intestate without leaving any issue. The defendant claimed that the Deceased was her natural father and counterclaimed for a declaration that the Deceased died intestate and that she is the only surviving issue of the Deceased.

6.  The trial initially took place on 22 September 2015 and the parties agreed at the first day of the trial that it should be adjourned pending a joint DNA report to be obtained. The consensus was that the joint DNA report would be cogent proof of the relationship between the Deceased and the defendant, or the lack of it.

7.  On 1 February 2016, the defendant wrote to this court and report that the joint DNA report was available. Further, the defendant reported that a new party, i.e. Ms Li, filed a caveat on 24 September 2015 (“the Caveat”) in which she claimed to be a daughter of the Deceased and had an interest on the estate of the Deceased through her solicitors Messrs Kelvin Cheung & Co (“KCC”). In the covering letter by which KCC sent to the defendant the Caveat, an express reference was made to the present action indicating the knowledge of Ms Li about these proceedings in September 2015.

8.  On that basis, the defendant sought leave to file and serve a Notice of Action to Ms Li pursuant to Order 15 r.13A. by letter dated 22 February 2016, this court acceded to her application and grant leave for the service of a Notice of Action dated 18 March 2016 (“the Notice”) on Ms Li.

9.  On 3 May 2016, this court directed that the parties should fix a date for the adjourned hearing of the trial. The plaintiff did not respond at all and a trial date was fixed for 8 June 2016 in his absence.

10.  On 8 June 2016, not surprisingly, the plaintiff failed to turn up. Nor did Ms Li. The defendant testified for her defence and counterclaim and this court accepted her evidence and the joint DNA report in its entirety. Accordingly, this court dismissed the claim of the plaintiff and gave judgment in favour of the defendant on her counterclaim.   

11.  The plaintiff took the matter to the Court of Appeal after a substantial delay and his alleged lack of knowledge of the trial date was emphatically rejected. The Court of Appeal was also skeptical about the plaintiff’s allegation that he only learnt of the outcome of the trial from the solicitors of Ms Li shortly before he made the application to the Court of Appeal on 16 November 2016.

12.  In the CFA Judgment, Lam JA had this to say about Ms Li at §§28-29 and 34, 

“28. … Li Soo Tan had been given notice of the present case. Instead of applying to join in this action, her solicitor issued a writ in a new action HCAP 10 of 2016 in May 2016. In that new action, the Plaintiff was named as the 1^st Defendant. Li Soo Tan claimed herself to be the daughter of the Deceased. She also joined the Defendant as the 2^nd Defendant in that action and denied that the Defendant was the daughter of the Deceased.

29. The Plaintiff did not disclose what transpired between him and Li Soo Tan in that action. Since the solicitors for Li Soo Tan were given notice on 18 March 2016 of the present action pursuant to Order 15 Rule 13A, they were aware of the possibility of their client being bound by the outcome in this action pursuant to Rule 13A(4) as no acknowledgement of service had been filed on behalf of Li Soo Tan in this action. It is surprising to say the least that solicitors for Li Soo Tan did not deem fit to file acknowledgement of service on behalf of his client in this action and to seek to join in as a party. It is also surprising that apparently they did nothing in terms of checking the progress of this action.

34. Given the failure to file any acknowledgement of service on behalf of Li Soo Tan despite the service of the Notice under Order 15 Rule 13A, the judge was entitled to proceed with the trial in this action notwithstanding the commencement of HCAP 10 of 2016.”

13.  I note that Ms Li did not appear at the hearing of the plaintiff’s application before the Court of Appeal.

14.  Ms Li indeed commenced a High Court action under HCAP 10/2016 (“the New Action”) in May 2016. At the resumed hearing of the trial on 8 June 2016, as confirmed by the transcript, Mr Poon, for the defendant, made a mention to this court of the New Action and told this court that Ms Li claimed to be another daughter of the Deceased. This court observed that it was up to Ms Li to prove her allegation in the New Action and the relevant declaration in this action only bound the parties to this action, which did not include Ms Li.   

15.  In making these observations, this court was obviously not alive to any service of the Notice. Mr Poon made no mention that the Notice was actually served on KCC and its ramifications including the possible binding effect of the Judgment on Ms Li. In all fairness to the defendant, the defendant’s solicitors, Messrs. Hoosenally & Neo (“HN”), sent to this court a letter dated 1 June 2016 (“the 1/6 Letter”) to inform this court that the Notice was served on Ms Li through KCC on 21 March 2016. Nevertheless, the Notice was actually not at the forefront of my mind. What was clear to this court is that despite the Notice, Ms Li was yet to be a party to the action at trial. As observed by the Court of Appeal and accepted by Ms Li, she did not file any acknowledgment of service in response thereto.

16.  Order 15 r.13A(4) provides,

“(4) A person may, within 14 days of service on him of a notice under this rule, acknowledge service of the writ or originating summons and shall thereupon become a party to the action, but in default of such acknowledgment and subject to paragraph (5) he shall be bound by any judgment given in the action as if he was a party thereto.”

17.  Therefore, by the operation of Order 15 r.13A(4), though not being a party to the action, Ms Li shall be bound by both the CFI and the CA Judgments as if she was a party.

This application

18.  On behalf of Ms Li, altogether 7 grounds have been advanced and Mr Cheung of KCC made two affirmations in support of her application. Basically, Mr Cheung alleges that Ms Li merely became aware of the CFI Judgment on 20 October 2016 and the Notice on 2 November 2016. He alleges that the defendant concealed from Ms Li the trial hearing on 8 June 2016 and the defendant failed to inform or remind this court of the Notice. He complains that notwithstanding her purported knowledge about the relationship between Ms Li and the Deceased, the defendant still misled this court into believing that she was the only daughter of the Deceased.

19.  Mr Cheung in his affirmation accepts that an identical copy of the Notice, together with a full set of pleadings, was served on KCC on 12 January 2016. He also accepts that a letter of 14 January 2016 was received from the solicitors of the defendant whereby KCC was informed that they should obtain leave from the court to file and serve the Notice by way of ex-parte application and should let them know the result in due course. After receiving the said letter, Mr Cheung claimed that KCC did not receive any further letter from the defendant’s solicitors concerning the Notice.

20.  Against this background, KCC commenced the New Action for Ms Li on 26 May 2016. In the Statement of Claim filed therein, it is pleaded that that Ms Li was the sole surviving issue of the Deceased and that the defendant was not a natural daughter of the Deceased. She further alleges that in any event, the defendant is not a lawful daughter of the Deceased by reason of the valid marriage between her mother Madam Chow and the Deceased. She refers to the present action and the pleaded case of the defendant herein. She prays for declarations that the Deceased died intestate with her being the only surviving issue of the Deceased and that she has priority in the grant of the Letters of Administration of the Deceased’s estate. Accordingly, she asks for an order that the Letters of Administration be granted to her with all the necessary consequential directions.

21.  On 20 October 2016, during the hearing of a summons of Ms Li in the New Action before a master, HN disclosed for the first time to KCC that judgment was obtained in the present action. On 2 November 2016, the defendant applied to strike out Ms Li’s claim in the New Action on the ground of res judicata. Mr Cheung says it was only until then that KCC became aware of the Notice when they received the supporting affirmation from HN.  

22.  Mr Tse of HN in his affirmation avers that on 18 March 2016 the defendant served the Notice on KCC by a clerk named Mr Yam Chun Wing at the address stated in the Caveat, which is the address of KCC.  Mr Yam made an affirmation of service dated 11 April 2017 after Mr Cheung complained about the lack of the same.

23.  Mr Tse’s account is somehow supported by a chop of KCC appearing in a copy of the back sheet of the Notice. The chop was quite blurry and apparently it showed that the Notice was received by KCC on 21 March 2015. I believe that the service of the Notice was actually effected on 21 March 2016 as stated in the 1/6 Letter. No issue was raised about the exact date of service nevertheless.

24.  Despite this, Mr Cheung maintains that he has not been able to find any hard or scanned copy of the Notice in his firm. He says he is making investigation into the circumstances under which the chop appeared in the back sheet and why the documents purportedly served have not been brought to his attention. He stresses that he makes these contentions on oath as an officer of the court to make them more credible.

Analysis

25.  I have a difficult decision to make here. To start with, I am unimpressed with the evidence of Mr Cheung including all his allegations made against the defendant. The way that this matter has been handled by KCC leaves much to be desired. On the other hand, justice is not served if I simply turn a blind eye to the documentary evidence in support of Ms Li’s allegation that she is the natural daughter of the Deceased and forbid her from establishing her relationship with the Deceased in the New Action.

26.  I am satisfied that, as shown by the chop in the back sheet, in the absence of any challenge to its authenticity, HN did validly and properly serve the Notice on Ms Li through KCC. How such documents have gone missing in the office of KCC is another question and in any event should not concern the defendant. The allegation that KCC was not authorized to accept service of any documents in this action on behalf of Ms Li at that time is demonstrably hopeless.

27.  Prior to the service, KCC received a copy of the Notice in January 2016 from NH and NH told them that they would further notify them about the progress of their intended application for leave to file and serve the same on KCC. If KCC did not have authorization to represent Ms Li at that time for the purpose of this action at all, there is no reason why KCC did not tell HN so there and then.

28.  Mr Cheung is yet to tell this court what the findings of his investigation are. The Notice and the related documents have allegedly gone missing after the chop was stamped in the back sheet returned to HN acknowledging the receipt of such documents apparently.

29.  Mr Cheung also attacks the validity of the Notice on the basis that the ex parte application for leave to file and serve the same was not supported by an affirmation pursuant to Order 15 r.13A. I see little merit in this complaint. The grounds of the application were sufficiently contained in the letter dated 1 February 2016 and there is no suggestion that it was inadequate or that any of such grounds was inaccurate. There is no point insisting on the formality when the same purpose was served without causing prejudice to anyone.

30.  Regardless of what has happened to the Notice inside the office of KCC, my conclusion that the Notice has been validly served on Ms Li, coupled with the fact that no acknowledgment of service of the Writ filed herein for whatever reasons, pursuant to Order 15 r.13A(4), means that Ms Li shall be bound by the Judgement given in the action as if she was a party thereto. This court has no discretion to remove the binding effect at all.

31.  Thus, it can be seen that the CFI Judgement became binding on Ms Li as a matter of law irrespective of whether or not this court was aware of such a binding effect at trial.

32.  In the absence of an acknowledgement of service filed by Ms Li, Ms Li has never been a party to this action. I accept the explanation of HN that they did not see fit to serve on Ms Li any further documents including the notice of the trial hearing of these proceedings. I do not find any substance in the allegation of Mr Cheung that the defendant failed to inform and or deliberately concealed from Ms Li the trial date of 8 June 2016. There was no reason why HN should serve the letter dated 1 February 2016 on Ms Li at all, either. It was an ex parte application.

33.  Nor do I find any merit in his complaint that the defendant failed to remind or inform this court at the trial hearing about the existence of the Notice and the possible interests of Ms Li in this matter. The 1/6 Letter already served the purpose to begin with and in any event Ms Li did not respond to the Notice at all.

34.  There is no evidential basis in the allegation that the defendant had any knowledge of the documentary evidence purportedly supporting the claim of Ms Li at the time of the trial. There is no substance in, and I reject, the allegation that the defendant deliberately misled this court into making the declaration at trial to the effect that she is the sole surviving issue of the Deceased.

35.  At trial, there was no evidence placed before this court to contradict the defendant’s evidence (paragraph 5 of her witness statement) that she is the only surviving issue of the Deceased despite Ms Li’s assertion in the Caveat. I accepted her evidence and made the declaration accordingly. Mr Poon duly informed this court of the New Action and I do not accept that the defendant has ever misled this court.  

36.  As regards the alleged ignorance of the Notice, Ms Li can only blame KCC. Ms Li herself has not filed an affirmation to support the present application. Mr Cheung’s allegation that Ms Li was not aware of the Notice is not contradicted by any evidence. Given the alleged disappearance of the Notice and the fact that apparently she has a genuine claim, not without hesitation, I can only accept that she had no such knowledge about the Notice and that explains why she did not file an acknowledge pursuant to Order 15 r.13A(4). 

37.  Ms Li should also blame herself for allowing herself to be in the present predicament. By the Caveat, Ms Li indicated her knowledge of this action, which concerned her purported interests in the estate of the Deceased. She did not take any step to intervene, however. Even the receipt of a copy of the Notice back in January 2016 failed to prompt her into action. KCC did not find it necessary to follow up with HN in respect of the progress of the defendant’s intended application so that the claim of Ms Li could be determined in this action as soon as possible and in the most cost-effective manner. Curiously enough, instead of applying for a joinder to this action, Ms Li commenced the New Action against the same parties to argue the same issues.

38.  Mr Lam, for Ms Li, explains to this court that this application has been necessitated by the striking out application because the CFI Judgment may preclude Ms Li from pursuing her claim in the New Action.  The master has adjourned the hearing of the striking out application pending the determination of the application of Ms Li in this action. Mr Lam submits that the binding declaration that the defendant is the sole surviving issue of the Deceased is the prime concern of Ms Li and he is content if this court can apply the slip rule to revise the declaration to that the defendant is the surviving issue of the Deceased so that Ms Li could still proceed to establish herself to be another surviving issue of the Deceased in the New Action.

39.  This suggestion has its attractiveness but I do not think I can apply the slip rule here. I allowed the counterclaim and granted the declaration on the basis of the unchallenged evidence that the defendant is the sole surviving issue of the Deceased. It was not an accidental slip.

40.  The binding effect of the Judgment on Ms Li is owing to her failure to file any acknowledgment of service and not because she is a party to this action. Order 35 r.2 is, as the matter now stands, not applicable because Ms Li is not yet a party to this action.

41.  Ms Li had 14 days to file her acknowledgment of service after the Notice was served on her. What she should make an application for an extension of time to file the same under Order 3. r.5 notwithstanding the expiry of the original deadline. It is not until Ms Li has filed her acknowledgment within the new deadline if an extension of time is granted that she shall become a party to this action. She then may apply to set the CFI Judgment aside under Order 35 r.2.

42.  In my consideration as to whether to exercise my discretion to grant such a time extension, which Ms Li has asked in her Notice of Application, this court is guided by the well-established principles expounded in a number of authorities such as The Decurion [2012] 1 HKLRD 1063 and Nantong Angang Garments Co. Ltd v Hellmann International Forwarders [2005] 4 HKC 86. I do not think it is necessary to set them out here. Suffice it to say, this court should have regard to the usual considerations and no doubt take into account all the circumstances to make sure the overall justice is met.

43.  I am not at all convinced that there is an acceptable explanation for the delay even given my acceptance of Ms Li’s ignorance of the Notice until October 2016. She still had waited until April 2017 to take the first step to remedy the situation in the proceedings and I do not find the excuses Mr Cheung made in his affirmation to be reasonable. Ms Li should be well aware of the advanced age of the defendant (now 84 years old). She was in a noticeably poor medical condition at trial and this court clearly remembers her difficulties in giving evidence. The CFI and the CA Judgments mentioned her physical condition. Ms Li should not have made any further delay and KCC should have advised her not to do so. The delay is inordinate and inexcusable in all the circumstances.

44.  On the other hand, I accept the evidence of the defendant that she would be prejudiced if Ms Li is allowed to reopen all the issues in these proceedings. Administration of the estate of the Deceased must inevitably be delayed further and in light of her advanced age and medical condition confirmed by her latest medical evidence, it is not unlikely that she in her lifetime would be deprived of her legitimate interest in the estate of the Deceased.

45.  However, the overriding concern of this court is that this court expressly indicated that the relevant declaration in the CFI Judgment was not intended to be binding on Ms Li and that the documentary evidence presently placed before this court shows that Ms Li’s allegation in the New Action that she is the natural daughter of the Deceased is indeed bona fide. Mr Poon cannot argue otherwise. This court is unwilling to disallow a bona fide claim to be pursued and instead insist that Ms Li should be bound by the relevant declaration by reason of her default in filing her acknowledgement of service in the absence of her knowledge of the Notice in the first place.

Conclusion and disposition

46.  In view of all the circumstances, I believe that the fairest order is that Ms Li should be given 7 days from the date of this Decision to file her acknowledgement of service thereby becoming a party to this action. The CFI Judgment should then cease to be binding on her. Her application to set aside the CFI Judgment as against her albeit out of time should be heard together with or after the conclusion of the trial of the New Action by the same judge, preferably this court, to avoid duplication or repetition. Little further delay is caused as far as the present action is concerned. The defendant has to deal with the New Action anyway.

47.  I, moreover, give liberty to the defendant and Ms Li to apply. I should make it clear that the Decision I make herein should not in any way fetter the master’s discretion in dealing with the striking out application of the defendant in the New Action.

48.  Ms Li could have avoided all these troubles if she and/or KCC had acted properly and prudently. Now she requires the indulgence of this court and the defendant is bound to be prejudiced as a result. In the premises, I make an order nisi that Ms Li should pay the defendant her costs of and occasioned by this application incurred thus far on an indemnity basis, to be taxed if not agreed.

49.  Lastly, I thank all counsel for their assistance in this matter.

Mr Lawrence Cheung instructed by Yu Hung & Co. for the plaintiff

Mr Kevin Poon instructed by Hoosenally & Neo for the defendant

Mr Simon Lam instructed by Kelvin Cheung & Co. for the intended intervener

HCAP 32/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 32 OF 2012

________________________

________________________

J U D G M E N T

________________________

1.  This probate action concerns the estate of Sang Lee also known as Li Tin-sang, the deceased, who passed away intestate on 22 February 1985.  The plaintiff alleges to be the lawful and natural nephew of the deceased.  He alleges that the deceased had no wife, issue and surviving parents in his statement of claim.  The plaintiff claims to be entitled to administration according to Rule 21(1) of the Non-Contentious Probate Rules, Cap 10A.

2.  This action was brought against the defendant because the plaintiff refused to accept the defendant’s claim to be the only issue of the deceased and, hence, the sole beneficiary of the estate of the deceased.

3.  On the first day of the trial of this action ie, 22 September 2015, on the basis of an agreement between the parties that a DNA expert report would be cogent evidence relating to the core issue of these proceedings, ie, the blood relationship between the plaintiff and the defendant, this trial was adjourned to today pending the availability of such a DNA report.

4.  During the adjournment, a DNA test report was obtained.  All  the plaintiff, the defendant and two brothers of the plaintiff were the subject matters of the DNA test. The DNA test report, dated 15 December 2015, has been made available to this court.  It suffices for me to refer to its conclusion that the defendant is very likely a biological cousin of the plaintiff and his two brothers.

5.  Since 9 November 2015, the plaintiff has acted in person.  By the second affirmation of Yam Chun-wing, this court is convinced that on 13 May 2016, the notice of this hearing was effectively served on the plaintiff.  The plaintiff fails to attend this trial, and I am satisfied that the trial should proceed in his absence given his knowledge of these proceedings.

6.  First, in light of the plaintiff’s absence in this trial, I strike out his claim entirely. There is no evidence that the plaintiff intends to prosecute his claim anymore.

7.  On the other hand, I still have the defendant’s counterclaim to deal with.  In her counterclaim, the defendant, now 84 years old, wheelchair bound and in obviously poor physical condition, insisted that she is the lawful and natural daughter of the deceased.  She puts the plaintiff to strict proof that he is the nephew of the deceased.  On the basis of her alleged relationship with the deceased, she counterclaims for declaratory relief and a grant to her the letters of administration of the estate of the deceased.

8.  The first witness called by the defence is Madam Chan Tsui‑shan.  She is the adopted daughter of the defendant.  She testified and confirmed the truth in her witness statement.  In her witness statement she related her interaction with her grandfather, namely the deceased, in London. They had a good relationship and the deceased attended her wedding banquet in Chinatown, England in 1974.  There is no contrary evidence to contradict her account.  I accept her evidence.

9.  The defendant attended the trial.  She was barely able to speak in court.  After taking the oath in the witness box with serious difficulities, this court observes that her oral testimony is not necessary in the circumstances of this case and this court is satisfied that her witness statement should be accepted and full weight should attach to her witness statement.

10.  In her witness statement, the defendant gave an account of her childhood memory about her father,  that is the deceased, who was a sailor, seldom staying at home in Hong Kong with her.  When she was in her 20s, both the deceased and she resided in England.  The defendant relocated to Hong Kong in the 70s with her family and she went back to England to attend the funeral service of the deceased in 1985. The plaintiff’s brother, Mr Li Cheung, was one of the persons who handled the funeral service. 

11.  Since there is no contrary evidence, I have no reason not to accept the evidence of the defendant.  Their evidence, coupled with the DNA test results, convinces this court that on the balance of probabilities the defendant is the lawful and natural daughter of the deceased.  Hence, she is entitled to the relief set out in her counterclaim. 

12.  As regards the declaratory relief to the effect that the deceased died intestate, it is not an issue in these proceedings at all and the plaintiff has never contended otherwise.  I see no reason why I should not grant such a relief to the defendant.

13.  In the result, I allow her counterclaim in full with costs against the plaintiff, to be taxed if not agreed.

14.  For the avoidance of doubt, I also dismiss the plaintiff’s claim in its entirety.