LEUNG KIT HING, DORIS v. CHO SIK HAN YVETTE AND ANOTHER

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  We dismissed the Applicant’s appeal on 12 June 2015. On 10 July 2015, the Applicant applied for leave to appeal to the Court of Final Appeal by a notice of motion. She also filed three affidavits in support of her application. In the evidence, she referred extensively to the procedural history of the matter. Most of the matters set out in the affidavits are irrelevant to the issue pertinent to our decision.

2.  As it should be plain from our judgment of 12 June 2015, we dismissed her appeal on the basis that the Judge below was correct in holding that she had no locus to make the application in her originating summons.  It is not necessary to repeat the factual background and the reasoning leading to our conclusions.

3.  It is a decision very much on the facts on the present case and it is very clear to us that the Applicant does not have any reasonably arguable ground for contending that she ever has locus in respect of the affairs of the estate, particularly when the beneficiaries having a real interest in the estate (including the 2 sons) have clearly indicated to us that the Applicant did not have any authority to act on their behalf.

4.  Nor are we satisfied that the intended appeal raises any question of great general public importance.

5.  We also see no legal basis for re-opening the appeal, which is one of relief sought in the notice of motion.

6.  In the circumstances, we refuse to grant leave and dismiss the notice of motion.  

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

________________________

________________________

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J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal from the decision of L Chan J of 13 March 2013. By that decision, the learned judge dismissed an appeal against the decision of Master Levy of 10 August 2012 striking out the originating summons of the Applicant in HCMP 1455 of 2010. By that originating summons, the Applicant sought the following relief:

“1. To seek leave and to apply to revoke the Grant No. HCAG002295/98 under S.33 Cap 10;

2. To apply as Joinder of Administrator under Rule 23 Cap 10A and/or

3. To apply as General Administrator subject to the immediate control of the court and act under the Court’s direction under s.40 Cap 10.”

2.  The master struck out the originating summons on the basis that the application was hopeless and vexatious since the Applicant did not have any beneficial interest in the estate.  The judge upheld that decision.  At paragraph 7 of his judgment, he said:

“ I think the applicant has taken a wrong view of rule 21 of the NCPR. Rule 21 provides for the priority of entitlement to grant for persons having a beneficial interest in the estate. Since the deceased was survived by his wife and two sons, the three of them would be entitled to the whole estate under section 4(3) of the Intestates’ Estates Ordinance, Cap 73. The two sisters of the deceased therefore did not have any beneficial interest in the deceased’s estate. I do not regard the applicant’s desire to assist or protect the interests of her two nephews (the sons of the deceased) as a beneficial interest in the deceased’s estate. The applicant thus enjoyed no priority to grant under rule 21.”

3.  And at paragraph 15, the judge said:

“ In any case, the applicant has no right to ask to be joined as a co-administrator of the deceased’s estate. She does not have any locus standi to apply to be appointed a co-administrator. She also cannot invoke section 33 of the PAO to revoke the grant as she is not a party interested in the deceased’s estate. She also has not demonstrated any basis for her to be appointed an administrator pendente lite.”

4.  The judge set out fully the background relating to the application in his judgment of 13 March 2013.  For present purposes, it suffices for us to repeat what had been said in the judgment of this court on 18 September 2014, paragraphs 1 and 2:

“ 1. On 30 July 2010, the applicant took out an originating summons in HCMP 1455 of 2010 seeking the revocation of grant No HCAG002295 of 1998. The grant was issued in respect of the estate of Leung Yun-sang, Wilson (deceased), who passed away in 1995. The deceased died intestate. By that grant, the widow of the deceased Cho Sik-hang and her sister Cho Sik-yung were appointed as co-administratrix of the estate. The appointment of co-administratrix is necessary because there were infant interest. The deceased and the widow had given birth to 2 sons who were still minors at the time of grant. Since then, both sons have reached majority.

2. The applicant was the sister of the deceased.  Since the deceased was survived by his widow and two sons, she has no beneficial interest in the estate under the Intestates’ Estates Ordinance Cap 73.  Notwithstanding that, some 15 years after the passing away of the deceased and 12 years after the issue of the grant, she took out this summons for revocation of grant.  …”

5.  Initially, the Applicant did not join the administratices as parties to this appeal.  By the decision of this court on 18 September 2014, they were joined as necessary parties and the Applicant was directed to serve the papers on them.

6.  Before we deal with the substantive appeal, we need to address two summonses.  First, Madam Cho, the widow and one of the administratrices, issued a summons on 13 May 2015.  She did not seek any specific relief in the summons.  Instead, she sought to produce before this court a copy of the grant and a letter signed by the two sons dated 10 May 2015 stating that they had not authorized the Applicant to proceed with this appeal.  An affirmation was also filed by Madam Cho producing these documents as exhibits.  

7.  The Applicant filed an affidavit in response to this summons on 18 May 2015.  Basically, the contents of this affidavit were submissions.  At paragraph 7, the Applicant said she had never pleaded in her pleadings that the 2 sons had authorized her as their representatives.  She said she only applied under Rule 31 of the Non-Contentious Probate Rules [“NCPR”] in her capacity as sister of the deceased. At the hearing before us, the Applicant confirmed to us that she only applied in her capacity as sister of the deceased and she did not represent the 2 sons.   

8.  However, it is quite clear that the Applicant had advanced submissions at various stages that she sought to have herself appointed as co-administratrix in order to protect the interests of the 2 sons.  Thus, the courts have to deal with such contentions in the judgments, see paragraph 7 of the judgment of L Chan J and paragraphs 15 to 17 of the judgment of this court on 18 September 2014.  The Applicant had included the document of 1 March 2006 which she called the implied nomination granted by the 2 sons to her in the Appeal Bundles for this appeal.  In her affidavits of 7 November 2014, 22 April 2015 and her summonses of 23 April 2015, the Applicant saw fit to put down the names of the two sons in the title of the proceedings.  It is thus understandable that Madam Cho deemed it necessary to set the record straight by producing the letter of 10 May 2015 for this court’s information.     

9.  In light of the stance of the Applicant at paragraph 7 of her affidavit of 18 May 2015 and what she said at the hearing of 5 June 2015, she is no longer maintaining that she has the authority of the 2 sons to pursue these proceedings, there is no need to make any order regarding the production of the letter of 10 May 2015. 

10.  As regards the grant, for reasons already set out in the judgments of this court on 18 September and 20 October 2014, it is necessary to have it before the court in an application of this nature. 

11.  The second set of summons comprises of 2 summonses taken out by the Applicant on 23 April 2015.  As far as we can gather from the confusing contents of these summonses, the Applicant sought leave to adduce further evidence in this appeal, including some evidence which she sought to place before us as “privileged documents not to be disclosed” to the administratrices. 

12.  The key issue in this appeal is whether the judge (and the master) was correct in holding that the Applicant had no interest in the estate and as such no locus to make the applications in the Originating Summons.  The so-called new evidence, apart from many pages of what are essentially arguments (thus not proper subject for evidence), cannot shed further light on this key issue.  They are simply irrelevant for the purpose of this appeal.  We refuse to grant leave to the Applicant to refer to these additional materials and dismiss the 2 summonses of 23 April 2015.

13.  On 18 May 2015, the Applicant wrote to the court to seek an adjournment of the appeal due to the need to deal with the summons of Madam Cho.  This court directed that the application would be considered at the hearing on 5 June.  In view of what had been said above regarding that summons and the implications of that on the appeal, we do not see any valid ground for adjourning the appeal. The Applicant did not pursue her application for adjournment on 5 June 2015.

14.  Since the deceased died intestate leaving a widow with 2 sons, his estate was to be distributed in accordance with section 4(3) of the Intestates’ Estates Ordinance Cap 73 [“IEO”].  The Applicant, as sister of the deceased, did not have any interest in the estate. 

15.  The Applicant claimed that she was a party “with vesting interests” under sections 4 and 5 of the IEO.  It is very difficult to follow her arguments.  She seems to suggest that as the 2 sons had an interest in the estate which would be held on statutory trust for them, she as their aunt could somehow have locus to apply to become a co-administratrix.  She also contended that the appointment of Cho Sik-yung as co-administratrix with the widow was wrong due to conflict of interest. 

16.  At the hearing, the Applicant referred to s 4(5) of the IEO to support her claim of having an interest. However, as she accepted that this is not a case where the deceased left no surviving spouse, s 4(5) is not applicable.   She also claimed that she could apply for grant under Rule 31 of the NCPR and section 40 of the Probate and Administration Ordinance [“PAO”] Cap 10.

17.  We cannot accept her submissions.  The fact that the 2 sons were minors at the time of grant does not give the Applicant any beneficial interest in the estate.  Nor does it give her any right to be appointed as co-administratrix.  Section 36 of the PAO makes it clear that the power to appoint administratrix is a discretionary power.  Though the NCPR contains provisions which would govern generally the order of priority for grant in case of intestacy and the situation of minority interests, ultimately the Registrar must exercise the power having regard to s 36 to appoint such person “as the court thinks fit”. The provisions in the NCPR do not give any person any right to be appointed as co-administratrix.

18.  In the present case, we are not concerned with the appointment when the grant was issued.  That happened a long time ago in 1998.  There was no appeal against that grant.   What we are concerned with is the application by the Applicant in 2010 for the grant to be revoked or alternatively for her to be appointed as co-administratrix.  At the hearing before us, the Applicant invited us to focus on the latter.  But the result is the same.  By 2010, both sons had come of age and there was no basis for the Applicant to claim that she should be appointed as an additional administratrix to safeguard their interests.

19.  The Applicant said that in 2010, the younger son was 19 years old and she was therefore entitled to apply under Rule 31 of the NCPR. Rule 31 applies to a situation “where a person to whom a grant would otherwise be made is under the age of 21 years”. Rule 31 is included in the NCPR to regulate the practice and procedure regarding an application under section 39 of the PAO and they should be read together. They deal with situation where a testator by his will appoints a person under 21 to be his executor. It has no application in the present case.

20.  The relevant statutory provision governing appointment of co-administrators in case of minority interest is section 25 of the PAO. The section refers to minority interest without specifying the age. In 1990, the Age of Majority (Related Provisions) Ordinance [“AMO”] Cap 410 was enacted. Section 2(1) of that ordinance provides,  

“As from the commencement of this Ordinance a person shall attain full age on attaining the age of 18 years.”

21.  Thus, by 2010, both the elder and younger sons had attained majority and there was no minority interest being involved. According to Madam Cho, she tried her best in bringing up the two sons after the demise of her husband and she has all along maintained a good relationship with her sons.  The elder son was in court at the hearing of 5 June 2015 when these were said. As it has been repeatedly said in the judgments, the 2 sons have full capacity to make decision for themselves. If they do not wish to take issue with the administratrices in the administration of the estate, it is no business of the Applicant to get involved.   As mentioned, the Applicant was constrained to accept that she did not have their authority to proceed with these proceedings in light of the letter of 10 May 2015. 

22.  There is also no basis for the Applicant to rely on s 40 of the PAO. She did not have the requisite interest to commence the proceedings specified in that section.

23.  The Applicant also referred to Rule 23 of the NCPR and Section 25 of the PAO. Given that she has no interest in the estate and she could not be said to act on behalf of a minor who has an interest in the estate, those provisions cannot assist her.

24.  Therefore, the judge was clearly right in holding that the Applicant had no locus to apply for her own appointment as co-administratrix.  The judge was also correct in holding that she did not have the right to make an application for revocation of grant in view of her lack of interest in the estate.

25.  The appeal must be dismissed.  As the two respondents do not ask for costs, we make no order as to costs.

26.  Before we leave this matter, we wish to invite attention to the apparent incongruity between the age specified in Section 39 of the PAO and Rule 31 of the NCPR on the one hand and the age of majority prescribed by AMO on the other. There may or may not be good reasons for justifying a higher age qualification for taking up a grant. However, as we said above, since section 2(1) of the AMO has lowered the age of majority to 18, there must be some additional justification for retaining 21 as the age qualification under Section 39. We shall send a copy of this judgment to the Registrar (who is in charge of the Probate Registry) for the matter to be studied further. But for reasons set out above, this has nothing to do with the Applicant.

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

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BETWEEN

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DECISION

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Hon Lam VP (giving the Decision of the Court):

1.  The court gave directions on 4 November 2014 for the disposal of the Applicant’s summons of 31 October 2014.

2.  In a letter of 7 November 2014, the Applicant indicated that she would apply for the withdrawal of the summons within the following week. 

3.  The Applicant did not take step to withdraw the summons. 

4.  We reiterate that the summons is an abuse of process and we now strike out the summons.

5.  The Applicant has exhibited the habit of filing voluminous documents and writing letters to the court seeking to re-open issues which had been decided against her.  This has led to substantial waste of judicial resources which should have been utilised for other cases.

6.  The other outstanding application (apart from the substantive appeal) before this court is the application for leave to appeal to the Court of Final Appeal.  The Applicant applied by a Notice of Motion of 31 October 2014 for leave to appeal against the decisions of this court on 18 September 2014 and 17 October 2014.  

7.  Those decisions were:

(a) 18 September: adding the two administratrices as parties to this appeal and directions for service of the papers on them; and

(b) 17 October: refusal to re-open the above decision.

8.  Those decisions were interlocutory in nature.  As such, leave to appeal should not be granted as of right.   Neither does the intended appeal raise any question of great general or public importance.  The Applicant actually intimated that she agreed to have the administratrices to be joined as parties and she had served the papers on them.   It seems to us that the intended appeal does not serve any useful purpose.

9.  We therefore dismiss the Notice of Motion of 31 October 2014.

10.  As regards the substantive appeal in CACV 67 of 2013, Lam VP had already given direction on 12 November 2014 for the fixing of the date for hearing.  The Applicant however wrote letters to “the Court of Civil Appeal” on 13 and 14 November 2014 seeking clarifications pending the fixing of hearing date.  She also asked for stay of execution.

11.  There is nothing to be stayed as she had agreed in her letter of 7 November 2014 that the grantees should be parties to the appeal.  She also said she had complied with our directions for service of the papers on the grantees and filed an affidavit of service to such effect.  We see no basis for not proceeding with the fixing of date for the substantive appeal.  

12.  She also filed a Notice of Intended Application for Leave to Appeal to the Court of Final Appeal on 17 November 2014 in respect of the decisions of this court on 18 September, reasons for decision of 20 October 2014 and the direction of 12 November 2014. 

13.  These applications are dismissed together with the Notice of Motion of 31 October 2014. 

14.  In the meantime, the Listing Officer shall proceed to fix a date for the substantive appeal in accordance with the direction of 12 November 2014.

15.  In view of the vexatious conducts of the Applicant, we are not minded to entertain her further by way of correspondence.  Her future letters to the court will not be read by us. 

16.  From now on, she should concentrate on the substantive appeal.  If she persists in making further interlocutory applications, we shall have no alternative but to make a Restricted Application Order against her.

The Applicant unrepresented

CACV 67/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 67 OF 2013

(ON APPEAL FROM HCMP NO. 1455 OF 2010)

________________________

________________________

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JUDGMENT

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1. On 30 July 2010, the applicant took out an originating summons in HCMP 1455 of 2010 seeking the revocation of grant No HCAG002295 of 1998. The grant was issued in respect of the estate of Leung Yun-sang, Wilson (deceased), who passed away in 1995. The deceased died intestate. By that grant, the widow of the deceased Cho Sik-hang and her sister Cho Sik-yung were appointed as co-administratrix of the estate. The appointment of co-administratrix is necessary because there were infant interest. The deceased and the widow had given birth to 2 sons who were still minors at the time of grant. Since then, both sons have reached majority.

2. The applicant was the sister of the deceased. Since the deceased was survived by his widow and two sons, she has no beneficial interest in the estate under the Intestates’ Estates Ordinance Cap 73. Notwithstanding that, some 15 years after the passing away of the deceased and 12 years after the issue of the grant, she took out this summons for revocation of grant. Even more bizarre, she issued the summons on an ex parte basis, viz without joining the co-administratrix as parties to the summons. This was plainly against the requirement of Order 76 Rule 3 which provides that every person who is entitled to administer the estate under an unrevoked grant shall be made a party to such action.

3. Soon after the commencement of proceedings, on 6 August 2010, Master Levy directed that the grantees should be joined as parties.  She also directed the applicant to serve the originating summons together the supporting documents on the grantees.

4. In her 2nd affidavit filed in this appeal on 2 September 2014, at para (I)(1), the applicant said she had complied with those directions in July 2012. We do not know what steps the applicant had taken to serve the originating summons together with the supporting documents on the grantees.  In the 3 volumes of documents placed by the applicant before us, there is no affidavit of service to that effect.  Further, it does not appear at any stage that the applicant has actually amended the title of the originating summons to add the grantees as parties to the proceedings.  Thus, in respect of the direction of the Master for joinder, the applicant had not complied with it. 

5. It is not very clear to us as to whether the Master had been satisfied with the service of the documents on the grantees.  However, based on what was said by the Master on 10 August 2012, it would appear that by then the applicant had filed a substantial amount of documents into court and most of those were incomprehensible to the Master.  Things had developed to a stage where the Master considered that she should exercise a bit of case management on the matter.  She focused on the key issue, viz whether the applicant had any right to challenge the grant in view of the fact that she admittedly had no beneficial interest in the estate and all those who had interest in the estate were, by then, of full age.  The Master did not address the question of joinder or service on the grantees at that hearing.  After hearing submissions from the applicant, the Master dismissed the application as an abuse of process. 

6. The applicant appealed against the decision of the Master. That appeal was heard by L Chan J on 6 March 2013.  On 13 March 2013, the judge agreed with the view of the master that the application should be struck out.  Again, it does not appear that the judge had addressed the question of service or joinder of the grantees.

7. The applicant now appeals to this court. The applicant has not named the grantees as parties to the appeal. The registry listed the appeal as an ex parte appeal. When the appeal was brought to the attention of this court because the applicant applied for the appeal to be heard in a manner not open to the public, Lam VP queried whether the appeal can be proceeded on an ex parte basis. Directions were given on 30 July 2014 for the matter to be listed for consideration whether other parties should be served or joined.

8. For some reasons, the applicant did not wish the matter to be heard in court. Subsequently, at her request, the court directed that the question of joinder and the application for hearing to be conducted not open to public shall be dealt with on paper.

9. The applicant has filed her submissions on the topics, including her 2^nd affidavit, which we have read and considered.

10. Notwithstanding her submissions, we are of the view that the grantees should be joined as parties to this appeal. In the Notice of Appeal of 9 April 2013, the applicant sought these relief:

“1. Joinder of administrator under rule 23 of the Non-contentious Probate Rules, Cap 10A (‘NCPR’) be granted to the Appellant; alternatively

2. Appointment as administrator pendent lite under section 40 of the Probate and Administration Ordinance, Cap 10 (“PAO”) with rights and powers of a general administrator subject to immediate control of the court and to act under its direction;

3. Upon the appointment, to re-seal or to revoke the grant of letters of administration no. HCAG002295/98 under section 33 of the PAO.”

11. This was repeated in her first, second and third supplementary notice of appeal filed on 17 August 2013, 22 May 2014 and 22 May 2014 respectively.

12. In view of the requirement in Order 76 Rule 3, it is difficult to see how it can be suggested that the grantees should not be parties to this appeal.  The applicant argued that the appeal is only concerned about her locus standi and it is not necessary to join the grantees as parties to the appeal for this purpose.  We cannot accept this submission in view of the relief she sought in her Notice of Appeal.  Further, the grantees are entitled to be heard on the question of her locus standi.

13. The applicant also suggested that because the grantees did not file acknowledgment of service and did not appear at the court below, the matter can be proceeded in their absence.  She relied on Order 76 rule 6(3).  Again, we must reject this argument.  First, as we said above, it is not clear to us whether the proceedings have properly been served on the grantees.  Second, the question of who should be joined in as parties to the appeal is a different question as to whether the appeal should be proceeded if they choose not to take active part.  According to the direction of the master, the grantees should have been joined and named as parties to the proceedings below.  The fact that the applicant has not complied with such direction in terms of her failure to amend the proceedings is quite beside the point.  In any event, the fact that the master or the judge were contended to overlook the irregularity does not mean that this court will be prepared to do so.  As a matter of principle, we do not think it is correct to allow this appeal to proceed on an ex parte basis.

14. The applicant also suggested she is proceeding by way of some default judgment procedure and the order she seeks to obtain is some kind of common form of grant.  She relied on Order 76 rule 10 and 11 to run her argument.  We find her argument completely misconceived.  She has misunderstood the effect of these rules.  They do not provide for any procedure to obtain default judgment in respect of probate actions.  It is completely inapt to draw any parallel between an application for revocation of grant with the grant of probate in common form.  There is no such thing as a common form revocation.  As explained in Re Estate of Cheng Ki Sang [2009] 2 HKLRD 533, except in certain circumstances where the revocation is non-contentious (as in the case where the applicant is the grantee or where the grantee had given consent to the revocation, which is obviously not the case here), the matter cannot be proceeded by way of ex parte proceedings.  As stated at paras 9 and 10 in that judgment, the court will usually require the grantees to do certain acts even if it were minded to exercise its power to revoke the grant. Thus, as a rule, the grantees must be before the court in such proceedings.

15. As to the mode of the hearing of the appeal, the applicant relied on what she set out in her affidavit of 28 July 2014.  She asserted that the safety and security of the 2 sons will be compromised if the hearing shall take place in public.  She also asserted that their rights and interests will also be prejudiced if the hearing shall take place in open court. 

16. We do not see any reliable and concrete evidence to show that the applicant has the authorisation to represent the 2 sons in these proceedings.  She has not produced a single document signed by them to that effect.  She has not produced any affidavit or affirmation from the 2 sons to support her assertions.  She only relied on what she claimed to be implied nomination by reference to a document signed by them in 2006 authorising her to search the probate file regarding the estate and another document authorising her to follow up on an insurance policy.  These are hardly enough to show she now has their authority to pursue these proceedings.  After all, the 2 sons are no longer minors and they could make applications in their own names. 

17. There is also a complete lack of evidence to support the bald assertions of the applicant that the safety or security of the 2 sons will be compromised or their interest prejudiced.  She has not set out any underlying factual basis to support such assertions.  All that she could pinpoint is the potential disharmony between the widow and the 2 sons if the proceedings were heard in public.  However knowledge of the widow about the proceedings is inevitable given our conclusion above that she should be joined as a party to the appeal.

18. These are hardly sufficient to justify an appeal to be heard in a manner not open to the public, see the approach of this court in ATV v Communications Authority [2013] 2 HKLRD 354, in particular paras 23 to 25.

19. In the circumstances, we order as follows:

(a) The two administratrix shall be joined as parties to this appeal;

(b) Unless the applicant serve the Notice of Appeal and all supplementary notices of appeals and all documents she had filed in the appeal on the two administratrix (including the appeal bundles which she has lodged) within 14 days from the date of this judgment and file an affidavit of service within 7 days thereafter setting out the manner in which the documents were served, the appeal shall be dismissed without further order; and

(c) The appeal will be heard in open court.   

20. Upon the applicant’s compliance with the directions in the unless order, the Listing Clerk shall notify the parties (including the two administratrix) to attend the Listing Office to fix a date for the hearing of the appeal with an estimate of half a day.