TSAO CHI CHING v. TSAO LUNG MAY
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HCCA 2054/2012
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CAVEAT NO 2054 OF 2012
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IN THE ESTATE OF TSAO CHIN TSAI (曹進才) late of Flat D, 12th Floor, Chiap Thong Building, 321 Tokwawan Road, Tokwawan, Kowloon, Hong Kong, Widower, Retired Merchant, deceased | |
and | |
IN THE MATTER of Rules 25(2) and 44 of the Non-Contentious Probate Rules (Cap 10A) |
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BETWEEN | ||
| TSAO CHI CHING | Applicant | |
and | ||
| TSAO LUNG MAY | Respondent | |
| ____________ | ||
| Before: Deputy High Court Judge Marlene Ng in Chambers |
| Date of Hearing: 18 April 2013 |
| Date of Handing Down Decision: 22 May 2013 |
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D E C I S I O N
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I. INTRODUCTION
1. Mr Tsao Chin Tsai (曹進才, “Deceased”) passed away on 18 April 2011. He died intestate and his wife, Madam Chik Chu Sau (戚珠秀, “Madam Chik”), predeceased him. The Deceased and Madam Chik had 7 children (“Siblings”):
Tsao Lung Cheung (曹龍祥, “Cheung”)
son
Tsao Lung May (曹龍美, “May” or the respondent)
daughter
Tsao Lung Hoi (曹龍海, “Hoi”)
son
Tsao Lung Kam Helen (曹龍琴, “Kam”)
daughter
Tsao Chi Ching (曹志清, “Ching” or the applicant)
son
Tsao Kum Fong (曹琴芳, “Kum Fong”)
daughter
Tsao Mei Fong Catherine (曹美芳, “Mei Fong”)
daughter
2. The Siblings are entitled to share in the Deceased’s estate (“Estate”) and administration in the same degree under rule 21(1)(ii) of the Non- Contentious Probate Rules Cap.10A (“NCPR”).
3. Ching and May separately applied for grant of administration of the Estate on 13 and 14 December 2011 respectively. On 22 May 2012, Ching entered a caveat (“Caveat”).
4. On 7 August 2012, Ching issued a summons in HCAG15551/2011 pursuant to rule 25(2) of the NCPR for letters of administration to be granted to him in respect of the Estate and for dismissal of May’s application for grant under HCAG15682/2011. On 16 August 2012, Master Levy dismissed such summons on the basis that Ching had issued a similar summons in the present proceedings on 14 August 2012 (“Summons”). The learned master further directed that Ching’s supporting affirmation filed on 7 August 2012 in HCAG1551/2011 be transferred to the present proceedings in support of the Summons.
5. On 16 August 2012, Master Levy granted leave for May to file/serve her affirmation in opposition. On 20 September 2012, the learned master extended time for May to file/serve her affirmation in opposition and granted leave for Ching to file/serve his affirmation in reply. Master Levy further directed that (a) no further affirmation be filed without leave of the court and (b) any application for leave to file further affidavit must be made not less than 14 days before the substantive hearing supported by reasons on affidavit.
6. On 4 October 2012, May filed her affirmation in opposition. On 19 October 2012, Ching filed the affidavit of Mei Fong, the affirmation of Kum Fong, the affidavit of a deputy principal of a kindergarten 陳素薇 (“Madam Chan”), the affirmation of Ching’s then solicitor Si Ming Yee Simon (“Mr Si”), and Ching’s 3rd affirmation in reply.
7. The Summons came before Master Levy for substantive argument on 15 January 2013. At the hearing, the learned Master directed Ching to cause an affirmation by Kam to be filed. Such affirmation was filed on 18 January 2013. Pursuant to a written judgment dated 7 February 2013, Master Levy ordered that (“Master’s Order”):
(a) upon filing requisite papers in his application for grant in HCAG15551/2011 and satisfactorily answering all requisitions by the registrar, Ching be granted letters of administration of the Estate;
(b) the application for grant in HCAG15682/2011 by May (ie the person warning) be dismissed;
(c) for the avoidance of doubt, the Caveat shall cease to have effect;
(d) costs order nisi that Ching’s costs of the application including costs reserved together with certificate for counsel be paid out from the Estate to be taxed if not agreed.
8. Dissatisfied with the Master’s Order, May filed a Notice of Appeal on 12 March 2013 (a) to appeal out of time on the basis that she did not have legal representation (“LeaveApplication”) and (b) to set aside the Master’s Order on the basis that it was unfair, “我本是承繼人, 由法官決定” (“Appeal”). The hearing of the Leave Application and Appeal came before me on 18 April 2013.
II. LEGAL REPRESENTATION
9. Messrs Simon Si & Co (“SSC”) acted for Ching until he filed Notice to Act in Person on 19 March 2013. On 8 April 2013, Messrs Hastings & Co (“HC”) filed Notice of Change of Solicitors on his behalf.
10. Initially, May’s solicitors were Messrs Chris HM Yuen & Co (“CHMYC”). But she was self-represented in the present proceedings until 14 September 2012 when Messrs Lim & Lok (“LL”) filed Notice to Act on her behalf. Counsel Ms R Siu instructed by LL appeared for May at the hearing before Master Levy on 15 January 2013. On 17 January 2013 (ie a day before Kam’s affirmation was filed), May filed Notice to Act in Person. She was not legally represented at the hearing before me.
III. APPEAL FROM MASTER
11. It is trite that an appeal from the master to judge in chambers is dealt with by an actual rehearing of the application which led to the order under appeal, and the judge treats the matter as though it came before him for the first time. The judge will give the weight it deserves to the previous decision of the master; but he is in no way bound by it (see Hong Kong Civil Procedure 2013 Vol 1 para.58/1/2 at p.1018).
IV. LEAVE APPLICATION
12. Order 58 rule 1(3) of the Rules of the High Court (“RHC”) provides inter alia that unless the court otherwise orders, the notice of appeal against a master’s decision or order must be issued within 14 days after the decision or order appealed against was given or made. May’s Notice of Appeal issued on 12 March 2013 was 19 days out of time.
13. Under the proviso “unless the court otherwise orders” in Order 58 rule 1(3) of the RHC and pursuant to Order 3 rule 5 of the RHC, the court has a discretion to grant enlargement of time to appeal.
14. In support of the Leave Application, May filed her affirmation on 13 March 2013 claiming that her Notice of Appeal was out of time because she still could not find a lawyer to take up her case.
15. Ching opposed the Leave Application principally on the ground that May did not give any proper explanation for her delay. May ceased to have legal representation shortly before Master Levy’s judgment was handed down. But Mr Lam, solicitor for Ching at the hearing before me, submitted that May could have made enquiries with the High Court Registry to ascertain the time period for lodging an appeal against the Master’s Order. He complained that May’s delay would postpone the grant of letters of administration and consequent distribution of the Estate, which would cause prejudice to the beneficiaries (including Ching).
16. In PostwellLtd v ChengKap Sang [2004] 2 HKLRD 355, 364, DHCJ Wong Yan Lung SC stated that:
“…… Although I agree with Hartmann J that the absence of an acceptable explanation for the delay does not preclude the court’s discretion to extend time, I am of the view that in applications for extension of time to appeal an adverse order or adjudication, as opposed to extension of time to remedy other procedural default, the court should be slow to accede to the application in the absence of an acceptable reason for the delay.”
17. In considering whether to extend time to appeal, the court has to consider all relevant factors, particularly: (a) the length of the delay; (b) the reasons for the delay; (c) the merits of the proposed appeal; and (d) the degree of prejudice to the other party (see PostwellLtd at p.363 and Menno Leendert Vos v Global Fair Industrial Ltd & Ors HCMP796/2010, Cheung and Kwan JJA (unreported, 21 June 2010) at para.16).
18. DHCJ Peter Ng SC (as he then was) in Hady v Bazar [2012] 3 HKLRD 29, 41 reminded that in the post Civil Justice Reform (“CJR”) era, it is incumbent on the court to give effect to the underlying objectives of the RHC when exercising any of its powers (see Order 1A rules 1 and 2 of the RHC), but the court must always recognise that the primary aim in exercising the powers of the court is to secure the just resolution of disputes in accordance with the substantive rights of the parties (see Order 1A rule 2(2) of the RHC).
19. Whilst recognising that May was self-represented at the relevant time, I am not persuaded that her explanation for the delay is satisfactory. For one, she has not explained what efforts/enquiries (if any) she has made to ascertain the procedure for appeal against the Master’s Order during the period from 7 February to 12 March 2013. There may not be many litigants acting in person who are aware of the time limit for appeal, but upon receipt of an adverse decision or order which such litigant does not accept it is incumbent on him to make enquiries as to how and when to challenge such decision or order.
20. Nevertheless, the lack of any satisfactory reason for the delay is only one factor to be taken into account in the exercise of my discretion. I acknowledge that the delay was less than three weeks. With the Leave Application and the Appeal under May’s Notice of Appeal scheduled for hearing before me in about a month after the filing of the Notice of Appeal, I do not think the delay (despite Mr Lam’s complaint) will cause substantial prejudice to Ching. Thus, the primary consideration in the exercise of my discretion is to secure the just resolution of the dispute between the parties. But for reasons set out below, I consider the Appeal unmeritorious, and I therefore dismiss the Leave Application.
V. NEW EVIDENCE
21. I now proceed to consider the merits of the Appeal on the assumption that leave would have been granted for May to appeal against the Master’s Order out of time (which assumption I do not accept – see the above paragraph).
22. May filed 3 affirmations on 13 March, 16 April and 17 April 2013 respectively (ie after she filed the Notice of Appeal) (collectively, “May’s New Affirmations”) without leave of the court.
23. After the CJR, Order 58 rule 1(5) of the RHC provides that “[no] further evidence (other than evidence as to matters which have occurred after the date on which the judgment, order or decision was given or made) may be received on the hearing of an appeal under this rule except on special grounds”.
24. The phrase “special grounds” is the same expression as in Order 59 rule 10(2) of the RHC and requires the conditions laid down in Ladd v Marshall [1954] 1 WLR 1489 to be satisfied (see Fortis Insurance Company (Asia) Limited v Lam Hau Wah Inneo HCA1840/2009, Fok J (as he then was) (unreported, 30 Mach 2010) affirmed on appeal in CACV86/2010, Kwan JA and Sakhrani J (unreported, 28 October 2010) and Falcon Insurance Company (Hong Kong) Limited v Flagship Underwriting Management Limited HCA312/2010, Sakhrani J (unreported, 22 December 2010)).
25. The Ladd v Marshall conditions are: (a) the evidence could not have been obtained with reasonable due diligence for use at the hearing below, (b) the evidence must be such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive, and (c) the evidence must be such as is presumably to be believed.
26. DHCJ Au-Yeung (as she then was) in Bank of China (Hong Kong) Limited v Certain Aim Limited HCMP1272/2007 (unreported, 4 October 2010) at para.17 said as follows (see also Falcon Insurance Company (Hong Kong) Limited at para.15):
“… Order 58, rule 1(5) was introduced to curb the undesirable practice before the [CJR] when parties sought to adduce a further round(s) of evidence on appeal after an unfavourable decision from a Master. Rule 1(5) aims at effecting a change of culture so that parties should prepare their application properly at the earliest possible opportunity and lay all cards on the table prior to the hearing before a Master. The spirit of this rule will be defeated if a party is allowed to revert to the pre-CJR practice. …”
27. Mr Lam informed the court that Ching had no objection for May to rely on May’s New Affirmations for the hearing of the Leave Application and/or, where appropriate, the Appeal under her Notice of Appeal, and I granted leave for her to do so at the hearing before me.
28. In the course of the present proceedings, May apparently has adopted a practice of (a) filing Notices to Act in Person from time to time, and (b) writing her own statements in such Notices to Act in Person and annexing documents thereto. She filed such Notices to Act in Person on 17 January, 6 February, 7 March and 8 March 2013 respectively. She also wrote a letter to the court dated 20 February 2013.
29. At the hearing before me, May made a feeble application to rely on these statements and documents most of which were filed under the guise of Notices to Act in Person. Mr Lam opposed such application. I declined to allow May to rely on the statements and documents referred to in the above paragraph.
30. First, none of the statements in the Notices to Act in Person were made under affirmation, and none of the documents were properly exhibited to an affirmation. It is inappropriate to file/serve evidence under the guise of Notices to Act in Person or by way of letter to the court. Secondly, the two Notices to Act in Person dated 17 January 2013 pre-dated Master Levy’s judgment, but May did not make any application to the learned Master for leave to adduce and rely on those statements and/or documents. Further, the statements or documents related to matters prior to the death of the Deceased or shortly after the Deceased passed away (eg Hoi’s declaration in mid-2011 in respect of his claim against the Estate for unpaid salary and May’s application for grant of letters of administration in respect of the Estate) and pre-dated the hearing of the Summons on 15 January 2013. Thirdly, May’s New Affirmations (especially her affirmations dated 13 March and 16 April 2013) complained that she had supplied those documents to LL who failed to adduce such documents (including Hoi’s declaration in respect of his claim against the Estate for unpaid salary, document by the Jockey Club nursing home showing that Ching and Mei Fong “kidnapped” the Deceased, the Deceased’s medical records etc) at the hearing before Master Levy in response to Ching’s 3rd affirmation in reply.
31. In my opinion, it is quite clear that the statements and documents referred to in paragraph 28 above are evidence which were either available at the hearing before Master Levy or could previously have been obtained with reasonable due diligence, and the first condition in Ladd v Marshall is not satisfied. The position therefore is that despite having the evidence available or that such evidence could have been available at the hearing before Master Levy May’s then legal representatives made a deliberate decision not to adduce the same at the hearing. Whether that was a result of any misunderstanding between May and her then legal representatives or (as May alleged) her legal representatives’ failure to comply with her instructions is neither here nor there because at the hearing before Master Levy as between May and Ching it was May’s position under legal advice that the affirmation then adduced by her (ie May’s affirmation in opposition) was sufficient.
32. In my view, May should not be allowed to adduce the additional evidence referred to in paragraph 28 above when such evidence was obviously available and no attempt was made to place the same before Master Levy. The interests of justice between May and Ching do not, in my view, require that May be allowed to put in such evidence.
VI. OVERVIEW OF CHING’S OBJECTIONS
33. Ching’s objections to May’s application for grant of letters of administration for the Estate can be characterised as follows: (a) May is a person with bad character, (b) Ching has more support from the other Siblings, and (c) May is personally objectionable to other Siblings being persons entitled to share in the Estate.
VII. BAD CHARACTER
34. As rightly observed by Master Levy, an administrator is duty-bound to truly administer and faithfully dispose of a deceased’s estate, prepare a true and perfect inventory of the estate and effects, and render a just and true account thereof whenever required by law. Hence, a person with bad character will not be suitable to act as administrator. But not every element or incidence of bad character will be relevant to the assessment of whether a person is suitable to be appointed as an administrator.
35. Master Levy in her judgment concluded that Ching’s objection to May’s application for grant of letters of administration in respect of the Estate based on her alleged bad character was not valid. Mr Lam assured me that even though the Appeal would be by way of rehearing, Ching would not seek to uphold the Master’s Order on the basis that May is a person with bad character. In the circumstances, I do not propose to consider in any detail Ching’s and Mei Fong’s complaints as regards May’s bad character.
36. However, May still relied on Ching’s bad character and her own good character to demonstrate her suitability over Ching for appointment as administratrix of the Estate. In the circumstances, there is still a need to consider the affirmation evidence that attacked Ching’s character as well as Ching’s responses to such attack, but with the understanding that Ching did not have the opportunity to properly reply to the allegations in May’s New Affirmations.
(a) Handling of Madam Chik’s estate
37. For the present purpose, I need not be concerned with Ching’s assertion that May is a person of bad character because she improperly withdrew substantial sums from Madam Chik’s estate, failed to give proper account of the administration of such estate, failed to properly distribute such estate after payment of funeral expenses, and failed to distribute Madam Chik’s jewellry fairly and equitably.
38. May claimed she only applied for estate duty clearance but not letters of administration in respect of Madam Chik’s estate. In any event, she said the value of Madam Chik’s estate was about HK$200,000.00 (some of which had been spent on Madam Chik’s funeral and burial) and not HK$410,000.00 as alleged by Ching. May said that anyway Madam Chik’s estate had been properly distributed and it was unconvincing for Ching to raise any complaint about the administration 12 years later.
39. In my view, even if (as May complained) Ching did not visit Madam Chik in her ill health, such omission does not have any reasonable nexus with Ching’s suitability or otherwise as administrator of the Estate. I note that Ching fairly and readily acknowledged that he might have been mistaken about whether May had applied for letters of administration for Madam Chik’s estate because it was May who took charge of and handled Madam Chik’s funeral, bank account and belongings. I find this does not demonstrate any relevant bad character on the part of Ching. As regards Ching’s and May’s disagreement over the value of Madam Chik’s estate, May did not deny (as Ching and Mei Fong alleged) she and Mei Fong had a joint-name bank account for deposit of the remaining monies of Madam Chik’s estate. There is therefore nothing illegitimate in Ching asking May for an account of Madam Chik’s estate. In all the circumstances, I am unable to find any bad character on the part of Ching in relation to Madam Chik’s estate that makes him unsuitable for applying for grant of letters of administration for the Estate.
(b) Mode of distribution of the Estate
40. Ching claimed that in early December 2011, he and May discussed about joint administration of the Estate, but May said it was too troublesome and she would apply to be the administratrix herself. On/about 27 January 2012, Hoi told Ching May had applied for grant of letters of administration in respect of Estate. On/about 2 March 2012, May telephoned to inform Mr Si of such fact, but pending Ching’s approval he declined her request for a meeting. Ching then telephoned May, and she guaranteed he would get his share of the Estate on joint administration with her, and she would deal with the other Siblings (ie they would get nothing from the Estate save that Cheung and Hoi would get some living expenses when needed). On 11 June 2012, Mr Si telephoned to tell May Ching considered he was suitable to be the administrator of the Estate. She replied she would engage solicitors to deal with the Caveat, and further said she would distribute the Estate according to the needs of each Sibling as some were wealthy and others poor. She emphasised that Ching had already received his share of the Estate from the Deceased who maintained him when he studied overseas.
41. Ching claimed May told the other Siblings she would distribute the Estate in the same manner as Madam Chik’s estate, which meant she could use the Estate’s monies without informing the other Siblings. May told Ching Cheung and Hoi would receive living expenses if they asked for it, Kam would receive nothing as she was rich, and Kum Fong, Mei Fong and Ching would also receive nothing as they left home long ago. Ching believed May wanted to seize control over the Estate, and it was purely for the sake of obtaining a grant of letters of administration of the Estate that she claimed she would follow the intestate laws for distribution of the Estate. May later met Ching at the Deceased’s home in Tokwawan, Kowloon (“Home”) and asked him to give up on his application for administration of the Estate against her undertaking to give him his due share of the Estate.
42. On the other hand, May claimed that she contacted Mr Si not for a meeting but to seek Ching’s contact details. When Ching did not telephone her, she again called Mr Si who said he only communicated with Ching by email and did not have Ching’s address and telephone number. A long time later, Ching telephoned May who told him she wanted to apply for joint administration of the Estate. Ching replied he would consider it, but declined to give May her telephone number. Many days later, Ching telephoned to tell her he would not agree to a joint application for administration of the Estate. When Mr Si later called her, she told him her solicitors would liaise with him.
43. May claimed the Deceased had given a lot of money to Ching (who was then in his twenties) for him to run his business, and such financial support would be regarded as Ching’s share of the Estate. She further claimed the Deceased told her the Estate should only be distributed to those Siblings in Hong Kong who did not own any real property and/or would not have monies for living expenses during their retirement. The Deceased did not want them to rely on social security. Nevertheless, May said that if she were appointed as administratrix of the Estate she would abide by the intestate laws for distribution and give 1/7th share of the Estate to each Sibling as CHMYC in their letters dated 23 July and 6 August 2012 to SSC advised and as May further confirmed at the hearing before me.
44. I remind myself that Mr Lam did confirm that Ching would not rely on May’s alleged bad character, so I do not hold Ching’s allegations that May had claimed she would distribute the Estate in the same way as she had done for Madam Chik’s estate against her. I note Ching’s claim that May threatened to take control over the Estate and to merely provide for Cheung’s and Hoi’s living expenses out of the Estate as and when needed is not far different from May’s allegation that it was the Father’s wish that the Estate should only be distributed to those Siblings in Hong Kong who did not own any real property or did not have monies for living expenses during their retirement. But as she had been advised by CHMYC, May confirmed at the hearing before me that if she were appointed as administratrix of the Estate she would abide by the intestate laws for distribution. In those circumstances, I do not take it against May that she previously might have harboured thoughts of uneven distribution of the Estate as a result of the Deceased’s wishes. Further, I do not consider the disagreements between Ching and May over May’s communications with Mr Si as being relevant to the issue of Ching’s or May’s suitability for administering the Estate.
(c) Guardianship of the Deceased
45. It appears from the affidavit evidence that there was serious dispute amongst the Siblings over the care of the Deceased. Ching and Kum Fong were dissatisfied with May’s unilateral instructions to the nursing home to stop administering medication to the Deceased for his Parkinson disease, and they believed such act contributed to the deterioration of his condition. But May claimed the doctor at St Teresa’s Hospital who treated the Deceased recommended that he should stop taking such medication.
46. This dispute over the Deceased’s medication was brought up in May’s application to the Guardianship Board on 2 March 2009 for her to be appointed as the Deceased’s guardian under Part IVB of the Mental Health Ordinance Cap.136. On 29 March 2009, Mei Fong wrote to the Guardianship Board to express concern over May’s attempt to stop the Deceased’s medication by getting a private doctor to make such recommendation. At the first hearing by the Guardianship Board on 28 September 2009, the common preference amongst the Siblings (and supported by the social welfare officer) was to appoint Cheung as the guardian. But at the second hearing on 5 March 2010 May suddenly changed her mind and wanted to be the Deceased’s guardian herself. The Guardianship Board concluded that the appointment of a guardian for the Deceased was necessary in view of disputes amongst the Siblings over the welfare of the Deceased (especially over residence and visits – see paragraphs 50-63 below), and that all attending family members had no objection for the Director of Social Welfare to be appointed as the guardian.
47. So by a Notice dated 12 March 2010, the Guardianship Board appointed the Director of Social Welfare as the Deceased’s guardian for one year with effect from 5 March 2010. It was evident from the Notice that such appointment was pursuant to May’s application for guardianship on 2 March 2009, hence the appointment should be the first appointment of a guardian for the Deceased. This is consistent with Ching’s and Kum Fong’s contention that May was never appointed as the Deceased’s guardian at all. After all, as Kum Fong pointed out, the other Siblings had raised objection soon after May applied for guardianship over the Deceased (see Mei Fong’s letter dated 29 March 2009 to the Guardianship Board in the above paragraph). This undermines May’s claim that (a) she was granted guardianship of the Deceased from 2 March 2009 to 5 March 2010 and (b) such guardianship was transferred to the Director of Social Welfare because of disputes amongst the Siblings and not due to her performance during her guardianship of the Deceased. Indeed, May did not produce any documentation to support her contention she had been appointed as guardian of the Deceased from 2009 to 2010.
48. Ching further claimed that May applied for guardianship of the Deceased after the expiry of the initial guardianship order. But the other Siblings objected to her application, and the Director of Social Welfare was once again appointed as the Deceased’s guardian for a further term of three years.
49. I am not persuaded that the disputes amongst the Siblings over the welfare and guardianship of the Deceased are directly pertinent to the issue as to who is more suitable to administer the Estate. Whilst these disputes perhaps formed the major source of unhappiness within the family, it does not follow that May’s and Ching’s respective stance over the welfare and guardianship of the Deceased of itself demonstrates that either of them would be unsuitable to administer the Estate. However, such disputes highlight that Ching, Kum Fong, Mei Fong and Kam were not supportive of May, a matter that will be further discussed below.
(d) Disputes over the Deceased’s care, residence and visits
50. Ching claimed that usually every 18 months he would return to Hong Kong from Australia to visit his parents. In 2009, due to the Deceased’s ill health, he returned to Hong Kong twice and stayed for two months each time. On the other hand, May claimed that although Ching returned to Hong Kong for visits, it was not due to Madam Chik’s ill health even though for more than three years before her death she suffered from optical and urological impairment due to diabetes.
51. May in her statement dated 13 July 2009 claimed she admitted the Deceased to a nursing home in Sheung Shui on 21 April 2009. She further claimed that on 1 May 2009 Kam called her many times. Kam cried and scolded her, and Kam also made a scene at the nursing home, so May dialled 999 for an ambulance to take the Deceased to hospital. May said the Deceased had a stroke and the doctors saved him.
52. May claimed that in early May 2009, Kum Fong came to Hong Kong from Singapore and wanted to place the Deceased (who was then at the hospital) at the Jockey Club nursing home. May made a report to the police. According to the letter from the police dated 11 April 2013, May had a dispute with a female on 5 May 2009 at the hospital. After investigation, the police found out the dispute was over the care of the Deceased, and suggested that they seek help from the Social Welfare Department (“SWD”).
53. May also complained that on a day in 2009, Kam’s husband shouted and kicked the toilet door at the nursing home in Sheung Shui. May made a report to the police for help.
54. According to the letter from the police dated 11 April 2013, a complainant (presumably Kam in view of May’s statement dated 13 July 2009 in paragraph 51 above) made a report to the police in respect of a dispute with May at a nursing home in Sheung Shui on 13 July 2009 over the guardianship of the Deceased. The letter noted that both the complainant and May agreed to resolve their dispute by civil proceedings and they refused to refer the dispute to the SWD.
55. May claimed that in 2009 Mei Fong who lived in Northern Ireland came to Hong Kong. Mei Fong and her family wanted to bring the Deceased (who was then residing at a nursing home) for an outside meal, but they did not apply to May first. May claimed that on that day the Deceased already had his meal, but even before that Mei Fong had acted inappropriately by placing a piece of sugar into the mouth of the Deceased. May claimed that the nursing home had made a record of such incident (but no such record was produced before me). May considered it inappropriate for her other Siblings to bring the Deceased for any outside visit, and they should only visit him at the nursing home. She told the nursing home that if the other Siblings wished to bring the Deceased for any outside visit, she should be informed and she would immediately report to the police.
56. Mei Fong gave a statement to the effect that on 24 July 2009 when she and her family were about to take the Deceased out for dinner May threatened to call the police. Whilst they were having dinner, May went up to them and made a report to the police. When the Deceased was brought back to the nursing home, May insisted on bringing him to hospital to check his heart. Mei Fong stated it turned out to be an aggravating evening for the Deceased. At a meeting at the nursing home on 28 July 2009, May threatened to call the police if the Deceased were taken out for meals. To resolve the matter, Cheung proposed that the Deceased would be taken out for meals by all the Siblings together, and he (or hired staff if he was unavailable) would accompany the Deceased on hospital visits.
57. Kum Fong stated that the other Siblings were unhappy about May’s embargo against taking the Deceased for “yum cha” or outside walks during their visits. She only visited the Deceased once a year as she lived and worked in Singapore, and was upset that May did not allow her to bring the Deceased to “yum cha” which was the Deceased’s favourite activity. Mei Fong was also upset that May would resort to making reports to the police whenever she had disputes with her own family members over the care and welfare of the Deceased. But at the hearing before me, May insisted it was appropriate for her to make reports to the police in order to resolve her disputes with the other Siblings.
58. Ching also complained that the coroner’s inquest into the death of the Deceased revealed that May had been dilatory in attending the hospital even though she had been notified by the hospital that the Deceased was dying. May denied this and claimed to be the first of the Siblings to arrive at the hospital when the Deceased passed away.
59. The above evidence shows there were serious disagreements between Ching and May over the care and welfare of the Deceased. For present purposes, Ching does not rely on the above matters to suggest any bad character on the part of May. But do the above matters illustrate good character on the part of May and bad character on the part of Ching? I do not think so despite May’s efforts to portray herself as the child who principally cared for the Deceased.
60. First, there is no dispute that Ching did visit Hong Kong to see his parents from time to time whilst he was living in Australia. Whether he made the visits to Hong Kong explicitly because of Madam Chik’s ill-health or not is neither here nor there because Madam’s medical problems were chronic in nature. But Ching did return to Hong Kong when the Deceased suffered acute medical condition, ie a stroke.
61. Secondly, I am unable to say on the totality of the evidence before me that May’s act in placing the Deceased at the Sheung Shui nursing home and her rejection of the Jockey Club nursing home was (as perceived by Kum Fong, Mei Fong and Kam) necessarily an inferior choice or one that was detrimental to the welfare of the Deceased. But likewise the evidence is insufficient to show that May’s aforesaid conduct was a superior decision in the best interests of the Deceased. The evidence merely shows there were deep disagreements between May and the other Siblings (especially her sisters) over the care and welfare of the Deceased.
62. Thirdly, as to whether the Deceased should be allowed outside visits when he was residing at the nursing home, it is to be expected that May’s inflexibility in rejecting any outside meal, walk or “yum cha” and her insistence on calling the police every time she felt the other Siblings breached her rules would not go down well with the other Siblings, especially those who had come from overseas on brief visits to spend precious time with the Deceased. But again, such conduct falls short of establishing any overriding good character on the part of May or bad character on the part of Ching.
63. In my view, what the evidence plainly shows is that there is grave disharmony between May and the other Siblings (especially May’s sisters) over the care and welfare of the Deceased.
(e) May’s dealings with her own family
64. Ching claimed that May’s relationship with her husband deteriorated since 1996 (or even earlier) after her husband’s shop at the Sheraton Hotel closed down and she did not allow him to re-open his shop elsewhere. Ching also believed May was divorced because May’s husband had moved out from their home, and in June 2011 May showed Mei Fong a letter stating that May’s husband had filed a separation notice. However, Ching claimed she is still married to her husband.
65. Ching claimed that May had frequent quarrels with her daughter (who is now 27 or 28 years old) ever since her daughter was a young girl. When her daughter was 22 years old, she moved out from home which was her way of saying “no” to May. On the other hand, May claimed that her daughter moved out because she was a flight attendant and preferred to live where it was more convenient to travel to and from the airport rather than to stay at their home in the northern New Territories.
66. Since Ching would not rely on May’s bad character as an objection to her application to be appointed as administratrix of the Estate, the remaining issue is whether the above evidence speaks of May’s suitability. I am not persuaded that May’s marital status or her relationship with her daughter is directly relevant. Even if she had a good relationship with them does not mean she necessarily has a similarly good relationship with the other Siblings (who are beneficiaries under the Estate) nor does it reflect her capability in handling the administration of the Estate.
(f) Ching’s alleged bad character
67. As explained in paragraph 95 below, May in her New Affirmations claimed that Ching returned from Australia to work at the Deceased’s factory in Mainland China and later in financial sector. May claimed that Madam Chik gave money to Ching at his requests, but May refused his request for monies. Ching then returned to Australia (see paragraph 95 below). One day he telephoned to inform May he was about to get married, and she told him to pay for the wedding himself. Madam Chik and May attended Ching’s wedding in Australia. Ching asked May for a credit card. May was reluctant, but Madam Chik asked her to treat it as a loan to Madam Chik. In the end, Ching spent HK$100,000.00 on the credit card, but failed to settle the credit card debt and May had to pay the same. May claimed Ching still owed her monies.
68. May claimed that at a family meeting at the Home in early December 2011 also attended by Cheung and Ching, Ching scolded her and threatened her with his fist. Cheung squeezed her neck twice, and she went to the toilet to make a report to the police. The police confirmed by letter that May made a report on 9 December 2011 alleging she was assaulted by Cheung (without any mention of Ching) at the Home, and that upon investigation no arrest was made and the case was “curtailed” in February 2012. May claimed she did not press charges against Cheung for fear he would be imprisoned, and because she considered the prime instigator of the incident was Ching.
69. May raised the above allegations in May’s New Affirmations to suggest that Ching was a trouble maker and not good with funds (but it must be remembered that Ching did not have any opportunity of giving factual response by way of affidavit in reply). As regards the alleged credit card indebtedness incurred by Ching at the time of his marriage in 1995, it is nothing more than a bare assertion. The alleged indebtedness was incurred more than 17 years ago, and May made no reference to any steps taken to recover the alleged debt to date. It is not particularly convincing to raise such complaint so many years later in May’s New Affirmations. As regards the alleged physical threat, I note that other than a bare assertion there is no evidence that Ching was the prime instigator. Indeed, the letter from the police in respect of such incident only referred to Cheung and did not mention Ching at all. In any event, I am not persuaded that May’s allegations suggest any bad conduct that on the part of Ching that is relevant to his suitability to be administrator of the Estate. Rather they reflect the discord between Ching and May, but as seen below Ching has the support of the other Siblings.
(g) Summary
70. In summary, I find the objection based on bad character is not valid.
VIII. SUPPORT BY OTHER SIBLINGS
71. Another consideration is whether the applicant for letters of administration in respect of the estate enjoys the support of the other parties who are interested in the estate. The practice has been to prefer the one who has the largest interest or whom the majority of the other parties interested selects even though this is not obligatory on the court.[1]
72. Ching’s counsel who appeared before Master Levy conceded that Cheung and Hoi adopted a neutral stance. Mr Lam appearing for Ching at the hearing before me confirmed that Ching still abided by such stance.
73. This means that I need not consider Ching’s allegations that at one stage Cheung objected very strongly to May’s application for grant of letters of administration of the Estate, and that on 31 May 2012 he gave and signed a statement to support Ching’s application for appointment as administrator of the Estate and to make representations against May’s application to be the administratrix, which statement Ching claimed was witnessed by his secondary school classmate Madam Chan. I also need not consider Ching’s explanation that Cheung only changed to adopt a neutral stance because May questioned how he could pay legal costs when his monthly earnings were HK$7,000.00 even though Cheung (and also Kum Fong) did actually make contributions to Ching’s legal costs.
74. Likewise, I need not be concerned with May’s contentions that she enjoyed excellent relationship with Cheung and Hoi who preferred to remain neutral in the present dispute between Ching and May, and that Cheung told her that he merely signed on a piece of paper the contents of which he did not read or understand and that he therefore did not actually give the statement dated 31 May 2012.
75. May tried to emphasise that she had been responsible for taking care of Cheung and Hoi since they did not earn a lot and did not look after themselves well. She claimed that the Deceased and Madam Chik were worried about them, and with the other Siblings living overseas May was the one who looked after Cheung and Hoi. May said Cheung suffered from psychiatric problem and even attempted to chop the Deceased with a knife more than 30 years ago, and he had to seek psychiatric treatment at Kowloon Hospital.
76. But Ching disagreed, and felt Cheung and Hoi did not need May’s care and attention. Ching said Cheung and Hoi had been working for years and had no bad habits. Although Cheung had some issues with his health more than 20 years ago, he is now quite stable and has a steady girlfriend. Both Ching and Mei Fong said Cheung and Hoi in fact did not associate with May.
77. In my view, since it is accepted by both Ching and May that Cheung and Hoi adopted a neutral stance, there is no need to go into their disagreements as to whether Cheung and Hoi needed any care and attention by May. In any event, even if they needed care and attention, I do not see the relevance of these matters to the issue at hand when they are neutral on who should administer the Estate.
78. There is no doubt that Ching enjoyed the support of Kam, Kum Fong and Mei Fong, so with Cheung and Hoi remaining neutral he had the support of the majority of the Siblings. Ching argued that he should be preferred over May in handling the administration of the Estate.
79. In her support for Ching to be appointed as administrator of the Estate, Kum Fong complained that May had not been on good terms with the other Siblings because she failed to look after the Deceased properly when he stayed at the nursing home.
80. Mei Fong also confirmed that May did not enjoy good relationship with the other Siblings especially after the Deceased fell ill in 2009. Mei Fong felt that May caused the family a lot of grief and she therefore distanced herself from May. Mei Fong trusted Ching to properly administer and distribute the Estate, and believed that May would just act according to her own preference and not listen to what others had to say. Mei Fong was also concerned that May’s dramatic reaction and behaviour would disturb the family.
81. Kam in her affirmation confirmed that she was not prepared to act as sole administratrix of the Estate or jointly with Ching or May. She supported Ching’s application for grant of letters of administration of the Estate.
82. May argued that the “majority of interest” principle was not obligatory. She claimed that the other Siblings had previously entrusted her to handle Madam Chik’s estate and she was the child who principally cared for the Deceased. However, I agree with Master Levy that the objection based on support for Ching due to majority of interest is valid. Even though this factor of itself may not be decisive, it is an important consideration that lends weight to Ching’s claim that he is the one suitable for administering the Estate.
IX. PERSONALLY OBJECTIONABLE
83. This ground of objection does not really add much more to the matters discussed above since May’s lack of support by the other Siblings suggests that they (or at least Ching, Kam, Kum Fong and Mei Fong) find her personally objectionable. It is evident from paragraphs 45-63 and 79-81 above that in supporting Ching’s application and opposing May’s application, Kum Fong, Mei Fong and Kam felt aggrieved by May’s conduct over the care and welfare of the Deceased, and did not consider her to be trustworthy over the application for guardianship of the Deceased and the handling of Madam Chik’s estate. On such basis, they considered May to be unsuitable to act as administratrix of the Estate.
X. MAY’S SUITABILITY?
(a) May’s health
84. May is 56 years old. Ching claimed May had high blood pressure and hypertension. He said there was an occasion when May was angry at her husband and the other Siblings for having arranged to have the Deceased admitted to the Jockey Club nursing home, and she told Ching her blood pressure was close to 200 as checked by the nurse at the nursing home, who told her to take medication and rest quietly.
85. At the hearing before me, May claimed she was fit and healthy and no longer had high blood pressure. She produced a medical certificate by Dr Leung Kim Pong dated 21 March 2013 which stated she had hypertension since 2011 and had been put on medication.
86. I do not see this as a relevant consideration since there is no suggestion that May’s hypertension cannot be controlled by medication. The administration of the Estate is not such an arduous task that May’s health condition carries any significance.
(b) May’s employment
87. Ching claimed that May only received education up to Primary 4 and could not hold down a job for a more than a few months. When Ching was in Australia, she telephoned to tell Ching that she did not have stable employment and would attend evening school if she had no job. When Ching returned to Hong Kong in February/March 2009 after the Deceased suffered a stroke, May told him she was attending vocational evening school. In December 2011, she even told Ching (who returned to Hong Kong in November 2011 for the coroner’s inquest in respect of the death of the Deceased) she wanted to move to live at the Home as it was closer to the vocational training school in Aberdeen she was attending.
88. In my view, since May is now 56 years old and close to if not past retirement age (bearing in mind that her younger brother Ching is already retired), I do not see how her past employment has any bearing on the matter in question.
XI. CHING’S SUITABILITY?
(a) Ching’s health
89. May claimed that Ching had operation done for both eyes and he relied on a cane for walking. Ching agreed he previously had cataracts in both eyes, but he had no further problem after the cataracts removal procedures in November 2007 and February 2008. During the 6‑12 month recovery period, he carried an 8in ID cane in Australia to signify to others that its bearer might have temporary vision problem so that others would be more careful. He never used a cane to assist in walking at all even before the cataracts procedures. He required reading glasses after the procedures, but the degree of his reading glasses hadsince stabilised. Apart from his cataracts problem which had been cured, Ching considered he was fit and healthy.
90. I do not see any sufficient basis for suggesting that Ching is unable to handle the administration of the Estate because of poor health. Cataracts are a treatable condition, and Ching has already undergone cataracts removal procedures. I see no health impediment for Ching to be appointed as administrator of the Estate.
(b) Nexus with Hong Kong
91. May claimed that because Ching spent most of his time in Australia where his wife and son still reside, Ching was therefore unfamiliar with the situation of the other Siblings in Hong Kong.
92. Ching explained he went to Australia for further studies in 1982 and became an Australian citizen in 1990. But he still possessed a Hong Kong identity card and had resident status in Hong Kong. He was married in Australia in 1995. He and his wife lived in Melbourne, Australia and his son (now 16 years old) was born there. After Ching’s retirement he often travelled to Mainland China, Macau and Hong Kong, and he stayed at the Home whenever he was in Hong Kong. He could stay in Hong Kong indefinitely until completion of the administration of the Estate because he was retired, and his wife (who also had permanent resident status in Hong Kong) could come and stay with him whenever he needed her. His son would be well looked after by his wife’s two elder sisters in Melbourne, Australia where he pursued his studies as a high school student. Indeed, Ching came to Hong Kong in April to June 2012 to try to resolve the Siblings’ dispute over the grant of representation to administer the Estate. He came to Hong Kong again in October 2012 to give instructions to SSC in respect of the present proceedings.
93. I am persuaded that Ching has given a convincing explanation as to how he could properly deal with administration of the Estate if he were appointed as administrator. He is retired and has resident status in Hong Kong, and he has a feasible plan for taking care of his family whilst he stays in Hong Kong to deal with the Estate.
(c) Ching’s employment history
94. Ching claimed that in 1978 he was the only Sibling who volunteered to accompany the Deceased on business trip to Zhongshan, Mainland China, and in 1980 he accompanied the Deceased to Shanghai to look for handbag manufacturers. In 1994, the Deceased asked Ching to return to Hong Kong from Australia because the Deceased’s factory had problems caused by customers’ rejection of goods. Ching returned to Hong Kong and helped to resolve the factory’s management problems. From 1994 to 1996 Ching worked at the Deceased’s factory and at another chemical factory as production supervisor. After he returned to Australia, he worked as an importer/wholesaler of frozen seafood and volcanic mineral water until his retirement in June 2008. Ching said his work history showed he was a capable person able to deal with any problems.
95. May claimed that Ching went to study in Australia because he could not be promoted to Form 4. After he went to Australia, he asked the Deceased to financially support his business. But his business failed and he returned to Hong Kong to work at the Deceased’s factory in Mainland China. May said that Cheung’s wife complained to the Deceased that Ching fell asleep at the factory, and the Deceased went to the factory to dress him down. Ching later returned to Hong Kong to work in the financial sector. Later Ching had a dispute with his employer, and he returned to Australia. At some time, Ching and his wife returned to Hong Kong, but his wife fell ill and they both returned to Australia. May denied that Ching went to Zhongshan, Mainland China to do business in the 1970s. She also said the Deceased did not have any factory in Shanghai.
96. Ching is 50 years old and has retired. I am not persuaded that his working life has much bearing on his suitability or otherwise in dealing with the administration of the Estate. The fact that Ching was able to operate an import/wholesale business in Australia for some years before his retirement speaks of adequate ability to act as administrator of the Estate.
XII. OTHER CONSIDERATIONS
97. As rightly pointed out by Master Levy, other considerations in determining Ching’s or May’s suitability or otherwise to act as administrator or administratrix of the Estate include the size and characteristics of the estate, any potential conflict (financial or otherwise) of a person entitled to a grant of administration, or any interest of an applicant incompatible with the due administration of the estate.[2]
98. In the Schedule of Assets and Liabilities that May filed with her application for grant of administration for the Estate, the assets were mainly cash in banks and stocks and shares with a total estimated value of under HK$4,000,000.00, and an immoveable asset being the Home. But May claimed the Estate owed her a sum of HK$5,000,000.00. Such sum is substantial as compared with the indicated value of the Estate. There is at present no information as to the nature of and reason for the alleged debt. In due course, the appointed administrator will have to carefully and impartially consider and assess the viability of this alleged debt. Anything less may draw unnecessary conjecture as to the propriety of the administration of the estate.
99. In my view, May’s interest as an alleged major creditor of the Estate might be incompatible with the interests of the Estate in that this alleged debt might create inherent perceived or actual conflict of interest if May were granted administration of the Estate. This is especially so when there was already disharmony amongst the Siblings some of whom plainly did not find May trustworthy. After all, one of the tasks of the administrator of the Estate would involve scrutinising and, where appropriate, repaying the alleged debt of HK$5,000,000.00 to May. In my view, this is a consideration that militates against May’s suitability in acting as administratrix.
XIII. CONCLUSION
100. The combination of the above considerations lead to the conclusion that May is not suitable to be granted sole administration of the Estate or (as May alternatively proposed) even jointly with Ching since she does not enjoy the support of the Siblings and, more importantly, her financial interest mayconflict with her duty as administratrix if she were appointed. The discord between May and the other Siblings (even though Cheung and Hoi remained neutral) suggests that any joint administration by May and Ching would likely lead to lack of co-operation or even disagreement between them over the administration of the Estate which would not be desirable.
101. In my view, Ching is the preferred choice to be administrator of the Estate as he enjoys the support of at least three other Siblings with Cheung and Hoi being neutral, and there is lack of reliable evidence of his ill-health. There are no other factors that would detract from his suitability. However, he should heed Master Levy’s reminder to take care not to put himself into any position of conflict of interest by, say, continuing to reside at the Home (which belonged to the Estate) on rent-free basis and without the Siblings’ consent.
102. In the circumstances, given the lack of merits in respect of May’s application for grant of administration of the Estate and of her grounds of appeal against the Master’s Order, there is no justifiable basis to extend time in her favour under the Leave Application. I therefore uphold the Master’s Order and dismiss the Leave Application. That being the case, the Notice of Appeal is therefore dismissed. Even if I were wrong, I would have dismissed the Appeal as well.
103. There is no reason why costs should not follow event, and Ching should be entitled to costs of and occasioned by the Notice of Appeal. Since May had the benefit of a full and reasoned judgment by Master Levy in respect of the Master’s Order and has not been able to persuade the court that the Leave Application and/or the Appeal had any arguable merits, there is no justifiable reason why Ching’s costs should be paid out of the Estate and not by May. I therefore grant a costs order nisi that May do pay to Ching his costs of and occasioned by the Notice of Appeal to be taxed if not agreed.
104. My clerk will inform May that if she so requires a court translator will be arranged to verbally translate this Decision into the punti language for her at the High Court Building at a mutually convenient date and time.
| (Marlene Ng) | |
| Deputy High Court Judge |
Mr Lam Chun Sing, of Hastings & Co, for the Applicant
The respondent appeared in person