MAK NGUN TAI AND OTHERS v. FUNG MING IP AND ANOTHER

HCAP 37/2015

[2026] HKCFI 1340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

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BETWEEN

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D E C I S I O N    O N    C O S T S

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1.  In paragraph 77(7) and (8) of my Judgment dated 28 January 2025, I made the following order as to costs in favour of the plaintiffs against the 1^st and 2^nd defendants:

(1) Under paragraph 77(7), the 1^st and 2^nd defendants do jointly pay to the plaintiffs the plaintiffs’ costs of the action and the counterclaim (including all costs reserved, if any); and

(2) Under paragraph 77(8), further to (7) above, the plaintiffs be entitled to be first indemnified of their costs of the action and the counterclaim by the estate of the Deceased.

2.  On 18 February 2025, the 1^st defendant took out a summons dated 18 February 2025 (“D1’s Summons”):

(1) By paragraph 1(i) of D1’s Summons, the 1^st defendant asks that the 1^st and 2^nd defendants do jointly and severally pay to the plaintiffs the plaintiffs’ costs of the action and the counterclaim (including all costs reserved, if any) on a party and party basis; and

(2) By paragraph 1(ii) of D1’s Summons, the 1^st defendant asks that the plaintiffs shall not be entitled to be first indemnified of their costs of the action and the counterclaim by the estate of the Deceased.

3.  Also on 18 February 2025, the plaintiffs took out a summons dated 18 February 2025 (“Ps’ Summons”):

(1) By paragraph 1 of the Ps’ Summons, the plaintiffs ask for the addition of paragraph 77(9) to my Judgment in the following terms: “The plaintiffs’ costs awarded herein be allowed with certificate for two counsel”.

4.  The plaintiffs in their written submissions do not take issue with the costs order proposed under paragraph 1(i) of D1’s Summons. Accordingly, I make an order in terms of the same.

5.  As to paragraph 1(ii) of D1’s Summons, I accept the plaintiff’s submissions that in opposing the will in question, the plaintiffs were not only acting for their own interest, but also the interest of other beneficiaries under intestacy and more importantly, the interest of the estate of the Deceased as a whole. Clearly, the plaintiffs are entitled to recoup themselves out of the estate for their costs.

6.  However, it would be unfair for the estate to ultimately bear the costs incurred by the plaintiffs. Such costs should be borne by the losing parties condemned to pay them (i.e. the 1^st defendant and the 2^nd defendant).

7.  In my view, this is the precise effect of paragraph 77(7) and (8) of my Judgment. There is no question of double recovery. This is further reinforced by the plaintiffs’ undertaking given through counsel, agreeing to return to the estate of the Deceased whatever they recover against the defendants under paragraph 77(7) of my Judgment.

8.  The effect of my order is the same as the order made by the DHCJ Au-Yeung (as she then was) in Lau Chi Ying v Lau Wai Keung, HCAP 2/2009 (unrep, 30/12/2011) at §166 where Her Ladyship ordered that the winning party in that case should have costs of the action to be paid, in the first instance, out of the estate and to be recouped from the losing party.

9.  This is also consistent with the commentary at §40.20 of Tristram and Coote’s Probate Practice (33^rd ed) as follows:

“ If a party who successfully opposes probate is entitled to, and obtains, a grant either of letters of administration or of probate of another will, he may recoup himself out of the estate for his costs. He should proceed for recovery of his costs from any party condemned to pay them.”

10.  Accordingly, I would dismiss paragraph 1(ii) of D1’s Summons.

11.  I turn now to paragraph 1 of Ps’ Summons. This is opposed by the 1^st defendant but not by the 2^nd defendant. I have been reminded by the plaintiffs that this probate action was determined after a 19-day trial, that it involved around 2,000 pages of documents and in total 20 factual and two expert witnesses.

12.  It should further be noted that the certificate for two counsel is now sought for the costs of the whole action and the counterclaim, and not just for the trial.

13.  I am further reminded by the plaintiffs that there were, at the beginning of this action, the difficulty of obtaining the appointment of administrator pendente lite (“APL”) for the purpose of setting in motion investigation in the whereabouts of the missing assets from the estate. Subsequently, the structure and the content of the action had to be changed to set forth various new allegations arising from the findings of the APL’s reports.

14.  In those circumstances, I am of the view that the engagement of two counsel by the plaintiffs is warranted, especially given that they were facing two separate sets of defence legal teams at the same time.

15.  In the circumstances, I would grant the plaintiffs certificate for two counsel as prayed for under paragraph 1 of Ps’ Summons.

16.  Finally, out of abundance of caution, I further direct that the costs order under paragraph 77(7) and (8) of my Judgment, as amended by paragraph 1(i) of D1’s Summons, be made absolute.

17.  I will hear the parties on costs.

Mr Albert Yau and Mr Bache Sit, instructed by Messrs Hau, Lau, Li & Yeung, for the 1^st to 3^rd plaintiffs

Mr Max So, instructed by Messrs Lo, Wong & Tsui, for the 1^st defendant

Attendance of Messrs Chong & Partners for the 2^nd defendant was excused

HCAP 37/2015

[2025] HKCFI 370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

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J U D G M E N T

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A.  INTRODUCTION

1.  This probate action concerns the validity of the will made by Madam Lo Siu Fung (the “Deceased”)  on 7 October 2013 (the “Will”). The issues in this trial are as follows: Issue I – Whether the 1^st defendant satisfies the burden of propounding the Will; Issue II – Whether the Will was procured by undue influence exercised by the 1^st and/or 2^nd defendants; and Issue III – Whether the real purpose of the 1^st and/or 2^nd defendants’ procuring the Deceased to make the Will was to prevent those who would otherwise be entitled to her estate on intestacy from impugning the inter vivos transactions the Deceased entered into which are detailed in paragraphs 22 to 26 below.

B.    UNDISPUTED FACTUAL BACKGROUND

2.  I adopt below the background facts set out in the plaintiffs’ Closing Submissions, which are largely undisputed or indisputable.

3.  The Deceased died on 18 September 2014 in Hong Kong at the age of 85.  She was born in Singapore and she had a younger sister, Madam Lo Kam Fung (勞金鳳), who gave evidence at the trial.

4.  The Deceased was married to Mr Mak Kan Chiu (麥錦超)  (“Mr Mak”). Mr Mak died in 1996.  There were, born to the marriage between the late Mr Mak and the Deceased, 5 daughters.  In descending order of seniority, they are: (a)  the 1^st plaintiff, Mak Ngun Tai (麥銀娣), born in 1957; (b)  the 2^nd defendant, Mak Ngan Lai (麥銀麗), born in 1959; (c)  the 2^nd plaintiff, Mak Lai Ping (麥麗萍), born in 1961; (d)  Mak Lai Wun (麥麗煥), born in 1963 but predeceased the Deceased in 1994; and (e)  the 3^rd plaintiff, Mak Mei Wa (麥美華), born in 1965.  The Deceased had 16 grandchildren in total.

5.  Under the Will, the 1^st defendant, Fung Ming Ip, who was a good friend of the 2^nd defendant and frequently visited, and later resided in, her residence keeping the Deceased company during her last 3 years of life, was appointed the executor and sole beneficiary of her estate.

6.  Koon Yau Kuen (官有權)  (“Koon”)  and Jamis Koon (官仲銘)  (“ Jamis”)  are the 2^nd defendant’s husband and son respectively.  Ella Koon(官恩娜)  (“Ella”)  and Mallory Koon (官恩沂)  are the 2 daughters of the 2^nd defendant.

7.  The Deceased received no formal education. She worked as a servant in a family in Dongguan when she was a child and teenager.  She only knew a few Chinese characters and was illiterate.

8.  Since the death of her husband in 1996, the Deceased had been living alone in her own property at 11/F, No 113 Hennessy Road, Wanchai, Hong Kong until 2011.  When she was living in Wanchai, she enjoyed regular contact with the plaintiffs and her younger sister, who all lived on Hong Kong Island.  The 2^nd defendant, who lived in Kai Leng, New Territories since 2008, visited her less often.

9.  The Deceased stopped working in her 40s and was quite wealthy.  To a considerable extent, her fortune was derived from her late husband who ran a cleaning business, Chiu Kee (超記).  The Deceased used to be the financial controller in that business. 

10.  She held a portfolio of landed properties, some in her sole name and some in joint names.  After Mr Mak passed away, she held in her sole name 4 properties: (a)  11/F & Flat Roof, No 12 Gage Street, Hong Kong (the “Gage Street Property”); (b)  5/F including its Rooftop, No 44 Johnston Road, Hong Kong (the “Johnston Road Property”); (c)  Flat B, 2/F, Block 1 & Car Parking Space No A69 on Carpark Floor A, Phoenix Court, No 39 Kennedy Road, Hong Kong (the “Phoenix Court Property”); and (d)  Unit A, 6/F, Kenny Court, 22-28 Kennedy Street, Hong Kong (the “Kenny Court Property”).  She held in joint names: (a)  11/F, Hip Sang Building, 113 Hennessy Road, Hong Kong (the “113 Hennessy Road Property”)  with the 1^st plaintiff; and (b)  Flat D, 9/F, 477 Hennessy Road, Hong Kong (the “477 Hennessy Road Property”)  with the 3^rd plaintiff.  Except her residence at the 113 Hennessy Road Property, she held the aforesaid properties for rental income.

11.  Until the events described below, the Deceased also held significant fixed deposits, valued at over HK$25 million, principally with Standard Chartered Bank (“SCB”).  She also had time deposits in ICBC (Asia)  and China & South Sea Bank (later became part of Bank of China (Hong Kong)).  Despite her wealth, she was extremely frugal.

12.  In mid-2000s, the Deceased’s mental condition began to deteriorate.  She started to display symptoms of Obsessive Compulsive Disorder (“OCD”).  It took her a long time to leave her flat because she was always in fear that the door to her home was not locked or the stove was not turned off.  She was highly irritable and constantly in a state of high anxiety.  She would telephone Samuel Mak, the 2^nd plaintiff’s husband, in the small hours of the morning telling him that she was very much in fear and she needed to talk to him for comfort.  The Deceased could not find her way back home on 2 separate occasions, near the end of 2000s.

13.  The Deceased regularly visited the banks.  There were branches near her home at 113 Hennessy Road.  She needed the 1^st plaintiff, and later the 2^nd and 3^rd plaintiffs, to accompany her to go to the bank. 

14.  In the second half of 2010, the Deceased’s eyesight deteriorated so badly that she was no longer able to live on her own.  She relied on St James’ Settlement to bring her meals.  The records of St James’ Settlement reveal the following:

Date	Record
23.10.2010	The Deceased displayed signs of anxiety disorder.  She was extremely irritated by the thought that those delivering meal to her would take her to see doctors.
28.04.2011	The Deceased’s anxiety problem deteriorated.  She became disturbed by things large and small ranging from managing her own finance to small things she came across.
24.06.2011	The Deceased’s anxiety problem further deteriorated. The care provider talked to the Deceased’s son-in-law and he agreed to let the Deceased be referred to Integrated Community Centre for Mental Wellness (ICCMW)  for follow-up.
07.07.2011	The care provider of St James’ Settlement, representative from ICCMW and the son-in-law visited the Deceased at her home.  Despite the advice by the visitors that she should go to see doctor, the Deceased refused.
12.08.2011	The Deceased refused to have the meal at home.  She insisted on taking the meal to place outside to eat and would put the food in plastic bag.

15.  The Deceased stubbornly refused to receive treatment for her eyes.  The plaintiffs ran out of ideas to persuade her to change her mind.  The 1^st plaintiff had to resort to the help of the 2^nd defendant. 

16.  The Deceased eventually underwent cataract removal operation at the St Teresa’s Hospital on 27 September 2011.  The 2^nd defendant gave consent to surgery for the Deceased after she was seen by a psychiatrist, Dr Ronald Chen, and his certification was that the Deceased was unfit to give consent to the surgery.

17.  The Deceased’s way of life changed markedly after the surgery and she moved to live with the 2^nd defendant at Kai Leng until she passed away.  This period ie from September 2011 to September 2014 is hereinafter referred to as “the relevant period” or “the last 3 years”.

18.  In Kai Leng, she had little contact with the plaintiffs and her younger sister, unlike the days when she lived in Wanchai.  The reason for this is in dispute.  She seldom saw them.  She no longer used her old mobile phone.  Telephone contact became infrequent.  Whenever any of the plaintiffs wished to speak to the Deceased, she had to call the number of the new mobile phone which was supplied to the Deceased by the 2^nd defendant, and later the 1^st defendant’s mobile phone.  The plaintiffs say that the 1^st defendant invariably made up excuses to say the Deceased could not come to the phone.

19.  The plaintiffs and Madam Lo Kam Fung only managed to visit the Deceased on few occasions.  During the visits and the sparse phone conversations, it was apparent that the Deceased relied heavily on the 1^st and 2^nd defendants for her daily living.

20.  When the Deceased was living with the 2^nd defendant, she changed, in relation to her rental properties, the collecting agent – from Samuel Mak to the 1^st defendant; and she made report to the ICAC complaining against the conduct of Samuel Mak (but the investigation was soon dropped by the authorities).

21.  During the relevant period, the Deceased also entered into highly suspicious transactions (apart from the Will).  They were so out of her character which cries out for an explanation.  They were all manifestly disadvantageous to her.  These transactions, described in paragraphs 22 to 26 below, will be referred to as the “inter vivos transactions”.

22.  The Deceased stopped renewing her long-standing time deposits.  Instead, most of the time deposits were withdrawn out of her accounts soon after they reached maturity.  Before the opening of the joint account by the Deceased and Jamis with Hang Seng Bank (the “HSB Joint Account” or the “Joint Account”)  in February 2012, the proceeds would be paid over to Jamis directly.  After the Joint Account was opened, the proceeds of time deposits, when they matured, would first be deposited into the Joint Account and subsequently withdrawn by Jamis.  Also, on 17 January 2012, a sum of HK$1,420,000 was transferred from her account to Jamis.

23.  The Deceased purchased House No 31, Belair Villa, No 9 Yu Tai Road, Fanling (the “Belair Villa Property”)  together with Jamis in early 2012 and the transactions regarding that property were puzzling.  By way of an assignment dated 27 February 2012, the Deceased and Jamis acquired the Belair Villa Property as tenants in common.  The purchase was effected without any mortgage financing.  About 6 months later, they executed another assignment dated 3 September 2012 taking that property between themselves as joint tenants.  Then in November 2012, the Belair Villa Property was mortgaged to Hang Seng Bank to secure a HK$4 million loan.  Both the Deceased and Ella were named as co-borrowers.  The monthly repayment for that loan (HK$15,086.70)  was directly debited from the HSB Joint Account.

24.  At the relevant times, which was sometime between March and June 2012, the Deceased told the plaintiffs during their surprise visit in March 2012 and the 2^nd plaintiff on the phone that she had bought a property with Jamis, each having half share (“一人一半”).  The Deceased added that she had already paid for her share.  She also told Madam Lo Kam Fung words to that effect in one of the few phone calls she made to her sister.  But as the bank records show, the Deceased actually paid to Jamis HK$14,722,000 in total (HK$9,772,000 on 16 January 2012 and HK$5,000,000 on 14 March 2012)  for the purchase.  The relevant transfer slips contained remarks of “買樓別墅” and “買樓” respectively.

25.  In November 2013, the Deceased charged the Phoenix Court Property in favour of Hang Lee Finance to secure a HK$9 million loan advanced to Koon.  After the appointment of the administrator pendente lite (“APL”)  in 2016 and his enquiries with the finance company regarding the loan and the mortgage, that mortgage was discharged and the title deeds were returned to the APL in 2017.

26.  The Deceased also sold the following properties (and in relation to the one sold 13 days before her death, it was through the 1^st defendant as her attorney).  The proceeds of sale of the following properties were again deposited in the Joint Account and subsequently withdrawn by Jamis.

Date of assignment	Properties	Price
16.12.2013	The Kenny Court Property	$6.38M
30.04.2014	The Johnston Road Property	$4.1M
05.09.2014	The Gage Street Property	$5.95M

27.  The Will was made in October 2013, after all of her time deposits had basically disappeared and before her solely owned landed properties were either sold or mortgaged.

28.  When the Deceased died, basically all her fixed assets had gone.  She only had $17,797.43 held in her sole name bank accounts.  Her only remaining solely owned landed property, the Phoenix Court Property, was heavily encumbered.  The HK$4 million loan borrowed in 2012 was still outstanding.

29.  The APL’s investigation reports showed that it was Jamis who stood to benefit the lion-share of the Deceased’s assets.  He took at least $37,368,571.20.  It consisted of (a)  $21,818,571.2 being the total sum withdrawn or transferred out of the Deceased’s bank accounts (including the monies used to buy the Belair Villa Property)  and (b)  $15,550,000 being the proceeds of sale of the Deceased’s 3 solely owned properties. These findings are not challenged by either defendant.  

C.    THE PLAINTIFFS’ POSITION

30.  In the absence of reasonable explanation supported by credible evidence, the plaintiffs submit the reasonable inference to be drawn is that the Deceased did not enter into these inter vivos transactions, which were all to her manifest disadvantages, under her own free will, or that the properties transferred are simply held on resulting trust for the Deceased.  Such state of affairs is consistent with her being subjected to undue influence when she made the Will.

31.  The very fact that the Deceased sold or mortgaged all of her sole name properties after the making of the Will and allowed the proceeds to be moved out of her account in favour of Jamis was puzzling.  It was a contra-indicator of any testamentary intention to benefit the 1^st defendant.

32.  The plaintiffs assert that as propounder, the 1^st defendant bears the legal or persuasive burden of proving the Will in solemn form: Nina Kung v Wong Din Shin (2005)  8 HKCFAR 387.  On the other hand, the plaintiffs accept they bear the burden of proving the existence of undue influence and also the real purpose of procuring the Will to be made: Re Edwards [2007] WTLR 1387 and Li Chi Loy v Li Lai Lan [2008] 5 HKLRD 74.

D.  EVIDENCE OF THE KEY FACTUAL WITNESSES

33.  It is the defendants’ case that there is nothing irrational about the Deceased making the Will in favour of the 1^st defendant and giving away her assets to Jamis during her lifetime.  An alternate and more plausible answer is that she shared and left her assets to those she adored and brought her a much happier life, from one that was lonely and undignified, instead of those who were repulsive of her mere presence.  Whether this was indeed the case of course very much depends on whether the evidence of the 1^st and 2^nd defendants are credible.

D1.  The 1^st defendant

34.  I agree with the plaintiffs that the 1^st defendant is neither a credible nor reliable witness.  I reject his testimony whenever it is inconsistent with the plaintiffs’ case.  I would highlight 3 particular aspects of his evidence which are wholly unacceptable.

35.  First, the 1^st defendant described that the Deceased was reborn after the cataract surgery.  She was no longer anxious.  He said the Deceased was all along happy until she suffered from lower back pain in July 2014.  He alleged that the Deceased never had any psychiatric or psychological problems and so she was not taken to visit a psychiatrist or psychologist.  It was not the case that he tried bringing her to visit psychiatrist or psychologist, but she refused.

36.  However, the medical records from the North District Hospital show a completely different picture, revealing that the Deceased had depressed symptoms, even before the onset of her lower back pain.  The Deceased was reported by the 2^nd defendant to be an anxious person all along.  She was further referred to see a psychogeriatric expert.  It was recorded that she was constantly in worry of being abandoned by her children.

37.  When the 1^st defendant was confronted with the aforesaid records, he just conveniently denied having any knowledge of the Deceased’s mental condition, either by saying that he was not paying attention to what Dr Chen said or barely asserting that he did not know.  He could not provide any explanation for the inconsistencies between his description of the Deceased’s condition and the North District Hospital records (that the Deceased was always an anxious person and she had depression issue before the onset of lower back pain).

38.  Second, as to whether the 1^st defendant had made up excuses not allowing the Deceased to speak with the plaintiffs on the phone, upon being questioned by the court, the 1^st defendant admitted that between September 2011 and March 2012, the plaintiffs indeed did call him on about 10 different occasions and expressed their wish to visit the Deceased.  On half of those occasions when the Deceased was actually at home, the 1^st defendant said he would welcome the plaintiffs to pay a visit.  But then every time the plaintiffs would just change their mind and chose not to go to Kai Leng.  Such evidence from the 1^st defendant simply defies common sense and must accordingly be rejected.  It also fails to explain why the plaintiffs would mount a surprise visit.  The absurdity of his answer goes a long way to show his intention, along with the 2^nd defendant’s, to cut off contact between the Deceased and her daughters.

39.  Third, under cross-examination, when he was shown the bank records of the HSB Joint Account, the 1^st defendant claimed that all the transactions therein were carried out by the Deceased herself.  He said the cash withdrawn from that joint account was withdrawn by the Deceased to play mahjong.  She could spend over HK$100,000 a day at mahjong school.  He further alleged that the Deceased lost in her mahjong games every day but she still went back to play the next day.  He said none of the players in mahjong school can earn monies.  All these suggestions are totally contrary to the frugal character of the Deceased and common sense.  Further, they are all unpleaded.  When he was asked why that was so, the 1^st defendant said that he did not pay attention to that previously.  Such explanation is contrived, given that the transactions in the HSB Joint Account have always been the focus of the plaintiffs’ complaint.

40.  Not only did he fail to explain the inter vivos transactions, the 1^st defendant was actually reluctant to see these transactions being properly investigated.  Back in the days when the plaintiffs sought to appoint the APL, the 1^st defendant had attempted to mislead the court in order to prevent the appointment.  In his opposing affirmation, the 1^st defendant said “The deceased had time deposits of about $20 million.  In her lifetime the deposit accounts were closed upon maturity by the deceased and the money was spent by the deceased in her lifetime.  Some clues can be found as to where the money went in the brief statement set out in the enclosed Appendix.”  The Appendix contains a number of photographs showing the overseas trips that the Deceased went on during the relevant period.  Such account was obviously untrue as the records show the majority of the Deceased’s monies were actually transferred to the personal account of Jamis.  When confronted with that part of his affirmation, the 1^st defendant at first tried to blame his then lawyers, saying that he did not understand what they said.  He then admitted that he was passing the buck to his lawyers and agreed that the account given in his affirmation was unreasonable.  When it was put to him that the reason why he wanted to create a false impression that all the monies were spent by the Deceased during her lifetime was to mislead the court and prevent the appointment of APL, the 1^st defendant initially said he had nothing to say to that.  He only disagreed with that suggestion when the court questioned him what did he mean.

D2.  The 2^nd defendant

41.  First, the 2^nd defendant has clearly attempted in her testimony to downplay the Deceased’s mental problems.  She was first shown the patient consultation form dated 1 September 2014, which stated that “Daughter reported that patient is a [sic] anxious prone person all along, she noticed that patient has depressed symptom – crying, negative thinking, anxious mood, poor sleep, poor appetite for few months.  Request for psychiatric opinion”. When she was asked why the expression used in the notes was “all along” in respect of the Deceased’s anxiety, she said she did not know.

42.  As to the notes on 5 September 2014 at 11:35 am: “Claimed to worry about abandonment by son/daughter; Screamed with high pitch”, the 2^nd defendant further denied the contemporaneous record and said it was impossible for the Deceased to have such worry.  She also denied that mother would scream in hospital. 

43.  The 2^nd defendant’s evidence simply cannot withstand comparison with the contemporaneous medical records.

44.  Second, the 2^nd defendant’s evidence as to the reasons for not informing Madam Lo Kam Fung of the Deceased’s death is also revealing.  Towards the end of the cross-examination on Day 14 of the trial on 14 October 2024, the 2^nd defendant was asked by the court why she did not inform Madam Lo Kam Fung about the Deceased’s death.  She did not answer the question directly.  She initially said she did not think about it properly.  Later, she said she did not want to say anything to hurt the elderly.  Upon further questioning, she claimed that it was upon reflection her mistake not to invite Madam Lo Kam Fung to attend the ceremony marking the death of the Deceased.  It was pointed out to her that the question was never about inviting people to a ceremony like a wedding, but informing them of the death of the Deceased.  None of the explanations offered by the 2^nd defendant is sensible.  The 2^nd defendant was clearly suppressing news of the Deceased’s passing so as to avoid alerting the plaintiffs.

45.  Although the plaintiffs are interested in the outcome of this action and the court should therefore exercise caution in evaluating their evidence, they are basically unshaken on matters like the Deceased’s extremely frugal character, her habit of accumulating wealth, her dislike of making a will and their general respect and love for the Deceased.  They gave fairly consistent evidence in respect of what happened at the surprise visits in March 2012.  Their account as to what the Deceased told them about her experience at Tsim Sha Tsui was particularly significant.  It must be borne in mind that at that time, the plaintiffs had very little idea of the details regarding mother’s living with the 2^nd defendant, but they mentioned that in their evidence in an attempt to recall as accurately as possible what they could remember.

D3.  Mr Christopher Ng

46.  In the absence of credible testimony from the defendants, the evidence of Mr Christopher Ng becomes very important.  Indeed, in his Opening Submissions, the 1^st defendant submits that the court should not too readily upset a will prepared by experienced solicitors on the ground of mental incapacity.  The 1^st defendant further pointed out that in Hawes v Burgess [2013] WTLR 453, Mummery LJ stated:

“57. That said, it is, in my opinion, a very strong thing for the judge to find that the Deceased was not mentally capable of making the 2007 Will, when it had been prepared by an experienced and independent solicitor following a meeting with her; when it was executed by her after the solicitor had read through it and explained it; and when the solicitor considered that she was capable of understanding the will, the terms of which were not, on their face, inexplicable or irrational.

…

60. My concern is that the courts should not too readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer. If, as here, an experienced lawyer has been instructed and has formed the opinion from a meeting or meetings that the testatrix understands what she is doing, the will so drafted and executed should only be set aside on the clearest evidence of lack of mental capacity. The court should be cautious about acting on the basis of evidence of lack of capacity given by a medical expert after the event, particularly when the expert has neither met nor medically examined the testatrix, and particularly in circumstances when the expert accepts that the testatrix understood that she was making a will and also understood the extent of her property.” (Emphasis supplied)

47.  However, the above dicta in Hawes v Burgess cannot be taken too far.  Indeed, as pointed out by Kwan JA (as she then was)  in Re Estate of Au Kong Tim [2018] 2 HKLRD 864 at §59:

“But as noted in Theobald on Wills (18^th ed.)  at para.3-012, the value of the view of a busy solicitor, lacking in medical training, should not be overstated. Whilst the wisdom of the comments in Hawes v Burgess is accepted, as Christopher Pymont QC stated in his judgment in Ashkettle v Gwinnett [2013] EWHC 2125 (Ch)  at [43], those comments ‘do not go so far as to suggest that, in every case, the evidence of an experienced and independent solicitor will, without more, be conclusive. Any view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless.’ ” (Emphasis supplied)

48.  Further, Briggs J in In re Key, decd [2010] 1 WLR 2020 at §8 gave the following caution:

“… persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.”

49.  Unfortunately, in the present case and for the reasons set out below, I find Mr Christopher Ng to be an unreliable witness.

50.  Mr Ng is a solicitor qualified in 1987.  When he previously answered the specific enquiry made by the APL regarding the Will that “What steps, if any, have you taken to satisfy yourself that the Deceased had sufficient mental capacity to understand the contents of the Will and the effect of the Will?”, he simply stated that the Deceased “appeared to (him)  to be mentally sound and in good health when she signed the Will”.

51.  In his oral evidence, Mr Ng started by saying it was his usual practice to administer a test to see if an elderly client was mentally fit enough to make a will whenever he came without a medical certificate.  He would ask the following questions in his test: name, age, home address, did the intended testator know where he was, and why he was there seeing him.  Then he would name three types of fruits and ask this intended testator to repeat them immediately.  But the attendance note he kept, which he accepted to be the most reliable contemporaneous record of what happened during the attendance, mentioned nothing about the test and the test results.  He did not provide any reasons explaining why he made no mention of the test, which was his usual practice to administer, when he answered the APL’s enquiries.

52.  Moreover, as to her home address as part of the test, Mr Ng said the Deceased did answer him that she was living on the Ground Floor of No 40 Jockey Club Road (the address as stated in the Will).  When Mr Ng was asked if he would find it strange (or consider that there was something wrong with the mental capacity of the Deceased)  if the said address was not really her residential address, Mr Ng said the Deceased could have given him a fake address.  Such suggestion is remarkable and devoid of common sense.  In my view, this aspect of his evidence creates real doubt as to whether the “test” was really carried out as claimed by Mr Ng.

53.  According to Mr Ng, upon the terms of the Will being explained to her, the Deceased said she wanted to reconsider.  To allow her time to reconsider, Mr Ng stepped out of the room together with his clerk. The Deceased was left in the room with the 1^st defendant for about 15 to 20 minutes.  After that period passed, Mr Ng and his clerk were asked to return to the room.  But then the Deceased told Mr Ng that she still wanted to make a call to her relative.  For that purpose she used a mobile phone (which could only be the 1^st defendant’s mobile phone on the evidence).  Mr Ng said that he did not pay attention to the contents of the telephone conversation but he confirmed that a conversation did take place during that phone call.

54.  The aforesaid evidence of Mr Ng shows that on that day, the Deceased still had not made up her mind as to whether she should make a will or the terms thereof.  She needed to call her relative even after she was left with the 1^st defendant in the room for about 15 to 20 minutes.  That is totally contrary to the 1^st and 2^nd defendants’ evidence that it was the Deceased who wanted to make the Will giving her entire estate to the 1^st defendant and she was so determined to do so despite the 2^nd defendant’s protest.  Their evidence in this regard cannot be accepted.

55.  More importantly, Mr Ng also accepted that the Deceased could have been influenced at least twice, first during the time when she was left alone with the 1^st defendant and second over the telephone conversation, but then the only thing he did at that time was to remind the Deceased not to be influenced.  He also accepted that the best way of allowing the Deceased to consider the matter free from any interference was to leave her alone but he said it was the Deceased who wanted the 1^st defendant to be there in the room. 

56.  Mr Ng claimed that there was nothing more that he could have done.  That is not true.  He could have done more.  However, it seems that he prioritised having his job done over ensuring that the Deceased was free from any undue influence.  In these circumstances, his evidence that the Deceased was willing to sign the Will of her own free will must be considered with the greatest reservation.

57.  As to how the Will was explained to the Deceased on that day, Mr Ng’s evidence must also be received with caution.  According to him, he explained the Will to the Deceased once at the beginning, and again when she indicated to him that she would sign the Will.  The latter part was however not recorded in his attendance note.  Instead, the attendance note reads “informed me that she would sign the Will (already explained to her)”. Clearly, if Mr Ng had carried out the process of explanation twice, he would not put down “(already explained to her)”in his note.  His explanation that he did explain the Will to the Deceased again and but that was inadvertently omitted in his attendance note does not sit comfortably with the wording of the note itself.

E.  THE EXPERT EVIDENCE

58.  As the evidence of Mr Christopher Ng is not reliable, one should then turn to the evidence of the medical experts.  It is noted at the outset that both experts were in agreement that the Deceased had OCD at the material times.

E1.  Dr Li Cheuk Wing

59.  Dr Li gave his opinion in his report dated 5 May 2021 and the Joint Statement together with the 1^st defendant’s expert Dr Hung Bing Kei Gabriel on 28 May 2021.  Dr Li was of the opinion that the Deceased had mild neurocognitive disorder (“MND”)  due to vascular disease as early as the time when she saw Dr Ronald Chen in September 2011 and it continued at a gradual path of worsening, down to her demise in September 2014.  In §11 of his report, Dr Li explained the MND suffered by the Deceased as follows:

“11. … My overall opinion is that she likely had Mild neurocognitive disorder due to vascular disease. The essence of this disorder is the presence of modest cognitive impairment in one or more domains (such as memory, executive function, and perceptual motor)  without significant interference of everyday activities. This diagnosis can account for the observations made by the defendants’ witnesses that she seemed normal and could play mahjong because she was in familiar environments and her old skills were still intact. However, signs of cognitive impairment were noticeable, such as forgetfulness about recent events and increased temper outbursts. The latter may be a sign of impaired executive functioning. She would also have difficulty learning new skills and responding to complex situations.” (Emphasis underlined)

60.  He reached his diagnosis, based on the Diagnostic and Statistical Manual of Mental Disorders, 5^th edition (DSM-5), after taking into account the following: (a)  the symptoms recorded in the St James’ Settlement’s records; (b)  the clinical impression taken by Dr Ronald Chen and his diagnosis of “OCD, anxiety syndrome and cognitive impairment”; (c)  the result of the MMSE conducted by Dr Chen; (d)  the presence of short-term memory impairment on the part of the Deceased; and (e)  medical notes of North District Hospital, in particular the brain scan showing “periventricular deep white ischaemic change”, which is the result of long-standing narrowing of the small blood vessels in the brain and is often associated with dementia.

E2.  Dr Hung Bing Kei Gabriel

61.  Dr Hung took a rather different approach.  He devoted a significant portion of his report setting forth legal principles on mental capacity and testamentary capacity. 

62.  Dr Hung noted that there was nothing to show that the Deceased lacked testamentary capacity and reached the startling conclusion in §12.5 that “there is insufficient evidence to rebut the presumption of testamentary capacity”.

63.  In cross-examination, it was pointed out to Dr Hung that his opinion in §12.5 was based on a misunderstanding of the law, and that was accepted by Dr Hung.  I then asked what his opinion would be if it was the propounder of the Will who bore the burden of establishing testamentary capacity.  Dr Hung said he would change his opinion in §12.5 in the following way:

“Therefore, based on the available information, on the balance of probabilities, there is insufficient evidence to rebut the presumption of testamentary capacityto show the Deceased lacked testamentary capacity.”

64.  With respect, Dr Hung’s conclusion, after reformulation, still sits on the same erroneous foundation.  He continued to cast the burden on the party challenging the will to show lack of testamentary capacity.  His conclusion on testamentary capacity is thus of little use in advancing the 1^st defendant’s case.

65.  As regard the observation by Dr Hung that it would be difficult to extrapolate the mental condition of the Deceased in 2014 backward to the time of making the Will, I did ask him if the court accepted the diagnosis of Dr Li that the Deceased had already suffered from MND in 2011 and that it would be continuing until the CT scan in 2014, the condition would likely affect the Deceased when she made the will in 2013.  Dr Hung agreed.

E3.  Whose opinion should be preferred in general

66.  Dr Li took a very down-to-earth approach to tackle his task.  He was willing to consider the lay witnesses’ description of the character of the Deceased and the movement of her assets after she came under the care of the 1^st and the 2^nd defendants.  He paid close attention to the social milieu.  I agree that his opinion is soundly based both on facts and medical learning and his reasoning is cogent.  On the other hand, Dr Hung’s opinion is premised on his erroneous understanding of the presumption of testamentary capacity.  This approach undermines his credibility as an expert and the reliability of his opinion.  

67.  All in all, I prefer the expert opinion of Dr Li both as to his view on lack of testamentary capacity on the part of the Deceased and the Deceased’s predisposition to undue influence.

68.  Dr Li concluded that because of her MND, the Deceased was not able to understand the extent of her assets.  Furthermore, Dr Li opined that the Deceased was not able to comprehend and appreciate the claims of those who might expect to benefit from the Will, both those to be included and excluded, nor the impact of the distribution of the assets of her estate.

69.  With the above conclusions, it is not possible for the 1^st defendant to prove testamentary capacity on the part of the Deceased.

F.    CONCLUSION

70.  On Issue I, the preponderance of evidence is against the 1^st defendant, the propounder of the Will.  He cannot discharge the burden of proof of testamentary capacity on the part of the Deceased.  Her ability to understand the extent of her assets at the material times is in doubt.  There being no credible evidence showing that she appreciated the claims of the daughters to which she should give effect but she nevertheless named the 1^st defendant as the sole beneficiary.  I cannot be satisfied that the second and third requirements in Banks v Goodfellow (1869-70)  LR 5 QB 549 were established by the propounder.

71.  Further, the measures taken by Mr Christopher Ng fell far short of ensuring that the Deceased was free of any interference or influence exercised by the 1^st defendant being present in the room and the 2^nd defendant over the telephone.  This evidence cannot dispel any suspicion on the part of the court so as to be satisfied that the Deceased was fully informed and she gave genuine approval of the Will.

72.  I now turn to Issues II and III.  During the relevant period, practically all deposits, mortgage loan and proceeds of sale of landed properties (which could be disposed of by sale without alerting the 1^st or 3^rd plaintiffs)  went to benefit the family members of the 2^nd defendant exclusively.  No presumption of advancement applied in favour of Jamis and Ella.  To the contrary, the presumption of resulting trust applied in favour of the Deceased against Jamis and Ella for all the voluntary transfers, see: Snell’s Equity, 34^th ed, §§25-10 and 25-19.  In this connection, the court is entitled to draw adverse inference from the absence of Jamis and Ella giving evidence as to why the Deceased’s assets went to them or were applied for their benefit: see Li Sau Keung v Maxcredit Engineering Ltd & Anor[2004] 1 HKC 434 at §§28 & 29.  The court is entitled to infer that there is a lack of innocent explanation which the defendants can provide for the transfer or use of the Deceased’s assets.  In the circumstances, the 2^nd defendant clearly had the motive to prevent the plaintiffs from pursuing against her family members for the recovery of the Deceased’s assets, by procuring the Deceased to make the Will naming the 1^st defendant as the sole beneficiary.

73.  On the evidence, the Deceased was heavily dependent upon the care provided by the 1^st defendant in view of her OCD, cognitive impairment and being prone to outburst of anxiety.  She was vulnerable to any demand made by those caring for her.

74.  In the end, the Will did not have any real utility of benefiting the beneficiary therein and yet the 1^st defendant was willing to arrange it to be made, and his subsequent conduct which further deprived him of any remaining benefit under the Will (save and except the Phoenix Court Property, which was heavily mortgaged when the Deceased died), served to point to one direction and one direction only – to prevent the plaintiffs from pursuing against those benefiting from the inter vivos transactions for recovery of the Deceased’s assets and compensation.

75.  The 2^nd defendant was in as much the position of exercising control over the Deceased as the 1^st defendant. She had the strongest motive to do whatever it took to cause the Deceased to submit to her demands and she also had the assistance of her loyal companion, the 1^st defendant. 

76.  In the circumstances, the answers to Issues II and III are clearly “yes”.

77.  Accordingly, I make the following order in favour of the plaintiffs against the 1^st and 2^nd defendants:

(1)  an order that the court shall pronounce against the validity of the will of the Deceased dated 7 October 2013, ie the Will;

(2)  a declaration that the Will is invalid as its execution was procured by undue influence exercised on the Deceased by the 1^st and 2^nd defendants;

(3)  a declaration that the Will is invalid because of want of testamentary capacity on the part of the Deceased;

(4)  a declaration that the Will is invalid because of want of knowledge and approval on the part of the Deceased;

(5)  a declaration that the Deceased died intestate;

(6)  the counterclaim of the 1^st defendant be dismissed;

(7)  the 1^st and 2^nd defendants do jointly pay to the plaintiffs the plaintiffs’ costs of the action and the counterclaim (including all costs reserved, if any); and

(8)  further to (7)  above, the plaintiffs be entitled to be first indemnified of their costs of the action and the counterclaim by the estate of the Deceased.

78.  The above order as to costs is nisi and shall become absolute in the absence of any application within 21 days to vary the same.

79.  Lastly, I express my gratitude to counsel on all sides for their helpful assistance in this matter.

Mr Albert Yau and Mr Bache Sit, instructed by Messrs Hau, Lau, Li & Yeung, for the 1^st to 3^rd plaintiffs

Mr Ken To and Ms Jennifer A Tse, instructed by Messrs Lo, Wong & Tsui, for the 1^st defendant

Mr Alexsander Wong, instructed by Messrs Chong & Partners LLP, for the 2^nd defendant

HCAP 37/2015

[2022] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

____________

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BETWEEN

AND IN THE MATTER OF AN APPLICATION FOR DISCLOSURE OF DOCUMENTS FROM

____________

_______________

D E C I S I O N

_______________

Introduction

1.  This is a case management conference. The Plaintiffs have filed a Summons for third party discovery of documents against a firm of solicitors, Ford Kwan & Co (“FKC”). FKC had provided services to Madam Lo Siu Fung (“the Deceased”), which led to execution of a purported will (“the Will”) by her.

2.  The Plaintiffs and the 2^nd Defendant are the surviving daughters of the Deceased. The 1^st Defendant is the executor of the Will. Prior to the death of the Deceased, the Deceased had terminated all her fixed deposits, sold most of her landed properties and transferred the bulk of her cash into a joint bank account she opened with her grandson, Jamis, who is the son of the 2^nd Defendant. Jamis had transferred most of the money out of the joint account to his sole name account. All of these happened in the last 3 years prior to the death of the Deceased, whilst she was living with the 1^st and 2^nd Defendant. The Will was executed in this period.

3.  It is the Plaintiffs’ case that the transactions entered into by the Deceased during those 3 years were to her manifest disadvantage. The Plaintiffs challenge the validity of the Will on the grounds that the Deceased lacked the testamentary capacity, knowledge or approval of he Will and that its execution was procured by the undue influence of the 1^st and/or 2^nd Defendants.

4.  The Summons was filed on 4 May 2022, which asks for 6 classes of documents:

(1) Attendance notes in relation to preparation and execution of an assignment dated 3 September 2012 which converted co-ownership of a house in Fanling held by the Deceased and one Koon Jamis from tenants-in-common to joint tenant;

(2) Attendance notes in relation to preparation and execution of a General Power of Attorney dated 5 July 2013 made by Deceased in favour of the 1^st Defendant;

(3) Attendance notes in relation to the preparation and execution of a will made by the Deceased on 7 October 2013;

(4) Attendance notes in relation to the sale of a property in Gage Street, held by the Deceased, on 5 September 2014;

(5) All bills of costs rendered, record of settlement and receipts issued in relation to the transactions in paragraphs (1) to (4) above; and

(6) A copy of the Special Power of Attorney dated 16 January 2012 and the General Power of Attorney dated 3 September 2012 made by the Deceased in favour of Koon Jamis.

5.  The Summons was adjourned on the last occasion before DHCJ Tsui for FKC to report to the Court on their position on the Summons.

The parties’ stance

6.  FKC remains neutral and is willing to produce the documents save that in respect of class 3, they claim legal professional privilege in respect of an attendance note (“the Relevant Attendance Note”) which is said to be concerned with taking of instructions from the Deceased for contents of the Will prior to the moment of execution and attestation. They have provided some documents to the Administrator Pendente Lite of the Deceased’s estate (“APL”) on 16 and 31 August 2017, and some additional documents from their archive to the APL.

7.  On 23 June 2022, FKC informed the Court that the APL has taken the stance that he should not be involved in the dispute and would not express a view on what FKC should do.

8.  D1 has no objection to the stance of FKC.

9.  D2’s stance is neutral.

Analyses

10.  Relevance of the Relevant Attendance Note is not in dispute. To gauge the mental state of the Deceased at the time of execution of the Will, it is relevant to look at how instructions in relation to the transactions 3 years prior to her death were given by the Deceased and under what circumstances the Will was executed.

11.  There is no dispute on legal principles. Documents (including attendance notes) which contain evidence of the attesting witnesses on attestation and execution of a will would fall into an exception to legal professional privilege and are discloseable: Chinachem Charitable Foundation Ltd v Chan Chun Chuen [2009] 2 HKC 365, §19, Lam J (as he then was), following Re Fuld (No. 2) [1965] P 405. However, the rest of an attendance note is privileged and FKC has claimed legal professional privilege on the correct ground.

12.  Since the sole issue is legal professional privilege, the only possible parties who can waive the privilege are D1 (the named executor) or the APL. Subsequent to this hearing, this Court has taken the liberty to ask them, by a letter dated 23 August 2022, whether or not privilege could be waived (“Court’s Letter”).

13.  By a letter of his solicitors dated 29 August 2022, D1 did not assert any right to claim the privilege. Rather, he considered that the APL was the appropriate party who could waive privilege on behalf of the Deceased.

14.  On 1 September 2022, the APL replied, stating that subject to D1’s waiver of the privilege of disclosure, the APL would send a copy of the Relevant Attendance Note to the Court.

15.  By a letter dated 2 September 2022, D1 reiterated his neutral position and did not assert privilege.

16.  Since no privilege is asserted by the only possible parties, I make an order that FKC do provide a copy of the Relevant Attendance Note to the Plaintiffs and the Defendants.

17.  At this hearing, Mr Yau, counsel for the Plaintiffs, requests the Court to make an order for FKC: (i) to preserve the original of the Relevant Attendance Note and (ii) produce it to the Court upon 24 hours’ notice.

18.  I see no problem in granting request (i) as a consequential order, as the Relevant Attendance Note has already been given to the APL. Parties may need to inspect it or rely on it at the trial.

19.  However, I do not see why I should make an order in respect of request (ii), as it is up to the party who consider it necessary to seek an order for production from the right party at the right time. It is for the trial judge to decide when the Relevant Attendance Note should be produced.

Conclusion

20.  I therefore order that:

(1) There be an order in terms of paragraphs 1 and 2 of the Summons; and

(2) FKC do preserve the original of class 3, ie the Relevant Attendance Note until after expiry of the period for appeal against the final judgment in this case or until further order, whichever is the later.

Costs

21.  The Plaintiffs are willing to meet FKC’s cost of complying with until the Order. I am of the view that they should also meet FKC’s costs of this Summons. FKC being an innocent third party, its costs should be on indemnity basis. FKC asks for costs of $68,900. I find those costs to be excessive. The issue concerns only one single point of law. I summarily assess and allow the costs at $46,400, to be borne, in the first instance, by the Plaintiffs. The ultimate costs shall be in the cause of the action.

22.  The Plaintiffs should not be blamed for taking out this Summons as FKC was not willing to provide the documents to them. There were other classes of documents to deal with at the hearing. APL was uncooperative.

23.  FKC disclosed the Relevant Attendance Note to the APL. Apparently both FKC and APL thought that the APL had the right to the document as a court-appointed representative of the estate.

24.  And yet APL hid behind a “neutral” stance initially. In response to the Court’s Letter, the APL stated in a letter dated 1 September 2022 that he would produce a copy of the Relevant Attendance Note to the Courtsubject to D1’s waiving the privilege of disclosure. The APL should have assisted the Court. He would have to give discovery of relevant documents for the purpose of the trial anyway. If in doubt, he could have obtained the directions of the Court but he did not. He has no right to choose to give a copy to the Court when it is the Plaintiffs who are asking for a copy.

25.  The 1^st Defendant’s solicitors did not consider the 1^st Defendant as having the right to claim privilege despite the Court’s Letter. On reading APL’s letter dated 1 September 2022, the 1^st Draft suddenly asked to see the Relevant Attendance Note before deciding whether to waive the privilege. What right would he have over the Relevant Attendance Note when he did not consider himself as having the privilege in the first place? D1 reverted to a neutral position after the Court’s further requisition. There was simply no proper consideration by D1 on how properly to handle the Summons.

26.  And why would D1 and D2 (having instructed counsel) need to attend Court if their stance was neutral?

27.  All the parties and their legal representatives have a duty to assist the Court in the just resolution of the dispute and in case management. Waiver of privilege was the sole obstacle to disclosure. The whole saga displays a lack of focus, lack of a sense of proportionality and failure to assist the Court in the management of a case. There was no attempt to use the most economical method to dispose of an interlocutory application.

28.  Accordingly, whilst I allow the costs of the Summons (including the costs of the hearing of the Plaintiffs) and of the correspondence arising out of the Court’s Letter to be costs in the cause, I disallow the Defendants’ costs of attendance at this hearing in any event.

29.  I make an order nisi for costs in terms of paragraphs 21 and 28.

Mr Albert Yau and Mr Bache Sit, instructed by Hau, Lau, Li & Yeung, for the Plaintiff

Mr Henson Lam, of Lo, Wong & Tsui, for the 1^st Defendant

Mr Alexsander Wong, instructed by Chong & Partners LLP, for the 2^nd Defendant

Ms Pang Mei Ngan, of Ford Kwan & Company, for the Respondent

HCAP 37/2015

[2020] HKCFI 2150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

______________

______________

______________

DECISION

______________

The appeal

1.  This is the appeal of the Plaintiffs (“P1”, “P2”, “P3”, and collectively “Ps”) against the Decision of the learned Master given on 13 May 2020 (the “Master Decision”) granting the application of the 2^nd Defendant (“D2”) made by Summons of 28 November 2019 (“D2’s Summons”) to strike out §11 and prayer (f) of the Amended Statement of Claim (the “ASOC”) insofar as they concern her.

2.  The main issue is whether the ASOC has disclosed a reasonable cause of action against D2 that the Deceased made the “purported will” (as defined below) “under undue influence … exercised by [D1], [D2] and/or other parties or any combination of them”.

The facts

3.  The following facts are taken from the ASOC.  They are for the purpose of this appeal taken to be true in favour of Ps.

4.  The Deceased died on 18 September 2014 in Hong Kong.

5.  The Deceased had 5 daughters.  One had predeceased her. 

6.  Ps are 3 of the Deceased’s daughters.  D2 is the other one. 

7.  At §7 of the ASOC, Ps plead that:

“ This action is commenced without the knowledge or consent of [D2]. She is joined in this action so that, at least, she, as one of the potential beneficiaries of the estate of the Deceased, can be bound by the outcome of this action. She has subsequently been informed of this action. She has not yet filed any Defence.”

8.  D1 was a good friend of D2.  He spent a lot of time at her residence. At §8 of the ASOC, Ps plead that D1 claims to be the executor of an English will made by the Deceased on 7 October 2013 (ie the purported will) and that he is solely entitled to the estate of the Deceased under the will.  On the face of the purported will, it was made in the presence of a solicitor and a clerk.

9.  Ps plead[1] that they are entitled to and do demand D1 to propound the purported will in solemn form if D1 intends to apply for the purported will to be admitted to probate.  Ps’ demand is made without prejudice to their case challenging the validity of the purported will.

10.  At §11 of the ASOC, Ps plead that:

“ [Ps] contend that the Deceased did not have the requisite testamentary capacity, and/or knowledge and approval of the contents of the [Purported Will]. Alternatively, they contend that the Deceased made the [Purported Will] under undue influence, subject to discovery and/or administration of interrogatories, exercised by [D1], [D2] and/or other parties or any combination of them. (They reserve the right of naming further parties exercising such undue influence on the Deceased.) The material facts in support of these contentions are set out in paragraphs 12 to 43 hereinbelow. They also serve as particulars under O.18, r.12 and O.76, r.9(3) of the Rules of High Court in support of the plea.”

11.  Facts in purported support of the plea are then pleaded in §§12 to 43 of the ASOC.  Mr Yau, counsel for Ps, summarizes them in his written submissions under a number of heads[2]:

 (a) “The Deceased and her children” — that D1 was a good friend of D2, who was often present in D2’s residence;

 (b) “The Deceased’s character and her attitude towards making a will” — that the Deceased was wealthy but a miser.  She had before she moved to (or was moved to) live with D2 told Ps that she did not trust D2 and would not make a will;

 (c) “The Deceased’s illiteracy, infirmity and dependence on others” — that the Deceased was illiterate, had shown symptoms of obsessive compulsive disorder, highly irritable, and had been diagnosed to have suffered significant cognitive impairment;

 (d) “The Deceased’s living arrangement before and after October 2011” — that after her cataract surgery in about September 2011, she moved in (or was caused to move in) with D2 at locations more remote than where the Deceased used to live.  She was effectively cut off from regular communications with Ps;

 (e) “The Deceased’s relationship with [Ps] became strained as a result of [D2’s] untruthful accusation” — that Ps heard from the Deceased saying that they did not want her to regain her eyesight because they were not willing to pay for the costs of the cataract surgery.  That was untrue;

 (f) “The Deceased’s heavy reliance on [D1] and [D2] — the power‑dependency relationship between them” — that the Deceased relied heavily on D1 and D2 for her daily living;

 (g) “The highly suspect transactions” — that the investigation conducted by the Administrator pendente lite of the Deceased’s estate (“APL”) into the Deceased’s affairs during the last 3 years of her life shows that since December 2011 (the “relevant period”), the Deceased made a number of inter vivo dispositions to D2’s son, D2’s elder daughter and D2’s husband.  Those transactions were bewildering, and “raised a red flag that [the Deceased] was either incapable of exercising independent judgment of her own or she was doing that under coercion or illegitimate pressure from those close to her.  It must be borne in mind that the disputed will was made during the relevant period.  The Court is entitled to draw the inference that the execution of the disputed will was also obtained by such means”[3].

12.  At paragraph (f) of the prayer, Ps seek that “costs of [Ps’] claim be borne by [D1], and where appropriate by [D1] and [D2]”.  If §11 of the ASOC in so far as D2 is concerned is to be struck out, §(f) of the prayer will similarly and consequentially also have to be struck out.  The reverse is also true.

D2’s application to strike out

13.  By Summons taken out on 28 November 2019, D2 seeks an order that §11 and prayer (f) of the ASOC, in so far as they concern her, be struck out.  The application is based solely on the limb that the ASOC discloses no reasonable cause of action in that regard against her. 

The law on striking out

14.  The law on striking out is not in dispute.  I refer to the summary of the legal principles by the Court of Appeal in LYYC v CHL & CSMS[2019] HKCA 521 at §12.  I highlight the following principles, that:

 (a) when considering an application to strike out a statement of claim based on the no reasonable cause of action limb, the pleaded facts are to be assumed to be true in favour of the plaintiff;

 (b) as explained in the Hong Kong Civil Procedure2020:

 (i) at §18/19/4, that:

“ It is only in plain and obvious cases that the court should exercise its summary powers to strike out the indorsement on any writ or any pleading under this rule … The claim must be obviously unsustainable, the pleadings unarguably bad and it must be impossible, not just improbable, for the claim to succeed before the court will strike it out.”

 (ii) at §18/19/5, that:

“ A reasonable cause of action means a cause of action with some chance of success when only the allegations in the pleading are considered … So long as the statement of claim or the particulars … disclose some cause of action, or raise some question fit to be decided by a judge or jury, the mere fact that the case is weak, and not likely to succeed, is no ground for striking it out …

   Where a pleading is defective only in not containing particulars to which the other side is entitled, application should be made for particulars under r.12, and not for an order to strike out the pleading under this rule.  Even a serious want of particularity in a pleading may not justify striking‑out if (1) the defect can be remedied, and (2) the defect is not the result of a blatant disregard of court orders (British Airways Pension Trustees Ltd v Sir Robert McAlpine [1994] 72 B.L.R. 26).”

Undue influence in executing a will

15.  There is no dispute between the parties as to the approach to be adopted in considering a plea of undue influence in the execution of a will.  As summarized by Lewison J in Re Edwards [2007] EWHC 1119 at §47[4]:

“ i) In a case of a testamentary disposition of assets, unlike a lifetime disposition, there is no presumption of undue influence;

ii) Whether undue influence has procured the execution of a will is therefore a question of fact;

iii) The burden of proving it lies on the person who asserts it. It is not enough to prove that the facts are consistent with the hypothesis of undue influence. What must be shown is that the facts are inconsistent with any other hypothesis. In the modern law this is, perhaps no more than a reminder of the high burden, even on the civil standard, that a claimant bears in proving undue influence as vitiating a testamentary disposition;

iv) In this context undue influence means influence exercised either by coercion, in the sense that the testator's will must be overborne, or by fraud.

v) Coercion is pressure that overpowers the volition without convincing the testator’s judgment. It is to be distinguished from mere persuasion, appeals to ties of affection or pity for future destitution, all of which are legitimate. Pressure which causes a testator to succumb for the sake of a quiet life, if carried to an extent that overbears the testator’s free judgment discretion or wishes, is enough to amount to coercion in this sense;

vi) The physical and mental strength of the testator are relevant factors in determining how much pressure is necessary in order to overbear the will. The will of a weak and ill person may be more easily overborne than that of a hale and hearty one. As was said in one case simply to talk to a weak and feeble testator may so fatigue the brain that a sick person may be induced for quietness’ sake to do anything. A ‘drip drip’ approach may be highly effective in sapping the will;

vii) There is a separate ground for avoiding a testamentary disposition on the ground of fraud. The shorthand used to refer to this species of fraud is ‘fraudulent calumny’. The basic idea is that if A poisons the testator’s mind against B, who would otherwise be a natural beneficiary of the testator's bounty, by casting dishonest aspersions on his character, then the will is liable to be set aside;

viii) The essence of fraudulent calumny is that the person alleged to have been poisoning the testator’s mind must either know that the aspersions are false or not care whether they are true or false. In my judgment if a person believes that he is telling the truth about a potential beneficiary then even if what he tells the testator is objectively untrue, the will is not liable to be set aside on that ground alone;

ix) The question is not whether the court considers that the testator’s testamentary disposition is fair because, subject to statutory powers of intervention, a testator may dispose of his estate as he wishes.  The question, in the end, is whether in making his dispositions, the testator has acted as a free agent.”

16.  Relying on Hall v Hall (1868) LR 1 P & D 481, Mr Wong, counsel for D2, also submits that coercion and illegitimate pressure are the cornerstone of undue influence in relation to execution of wills.

17.  In respect of the approach explained by Lewison J in Re Edwards, the only matter which Mr Yau, counsel for Ps, seeks to highlight concerns sub‑paragraph (iii) thereof.  He submits[5] that what Lewison J observed therein refers to the standard of proof which the body of admissible evidence relied upon by the asserting party should satisfy in making out a case of undue influence “at the end of the day”.  He submits that for the purpose of this appeal, “the Court only needs to be satisfied that the facts stated on the pleading have disclosed a prima facie case of undue influence”.

18.  In respect of the issue before this Court, I accept the submissions of Mr Wong, counsel for D2[6], that the issue simply is “whether the allegations pleaded in the ASOC, when assumed to be true, are sufficient to constitute a reasonable cause of action against D2 for undue influence”.  The phrase “no reasonable cause of action” is used in Order 18 rule 19.  Its meaning has been considered in many authorities.  I see little point in adding to the formula the term “prima facie case”, which Mr Yau is seeking to do.  That also begs the question as to what Mr Yau means by “prima facie case”.

Parties’ submissions

19.  I have set out how Mr Yau summarizes the contents and effect of the ASOC.  He submits further[7] that although D1 was the sole beneficiary under the purported will, the will did not in the end provide D1 with any financial benefit as the Deceased had practically lost her entire wealth during the relevant period.  In that regard, he submits, with reference to a letter dated 24 February 2020 from Ps’ solicitors, that:

“ … the disputed will served the purpose of depriving those who would otherwise benefit under the Deceased’s estate on intestacy the locus standi to pursue against those parties responsible for embezzling the assets of the Deceased during the relevant period.”

Mr Yau submits that the picture painted by the ASOC is one inconsistent with that of a testatrix making a will under her own volition[8]. He concludes at §19 of his written submissions, that:

“ There was really no rational explanation for a testatrix of normal mental power and independence to make a will in these circumstances. The reasonable hypothesis, on the face of the ASOC, is that the Deceased made the disputed will against her own volition under pressure of those in power over her, in particular [D2]. That was quintessence undue influence. In all probability, it is in the final analysis the only reasonable hypothesis even though at the present stage, as stated in paragraph 5 above, it is unnecessary to engage in such exercise.”

20.  Mr Wong submits that the elements of a claim of undue influence in the context of probate are that:

 (a) there was coercion and/or illegitimate pressure exerted on the testator;

 (b) the coercion was exercised by the alleged wrongdoer; and

 (c) the coercion was the cause of overpowering the deceased’s own volition in executing the will in question.

21.  While not necessarily accepting that undue influence has to take the form of coercion or illegitimate pressure, Mr Yau accepts that there has to be undue inference, that the undue influence is exercised by the alleged wrongdoer, and that there has to be causation.

22.  Mr Wong then submits that:

“ 20. … there was no express plea in the ASOC that D2 had exercised any illegitimate pressure and/or coercion towards the Deceased.

…

22. …the absence of a plea of coercion or illegitimate pressure is not one in semantic (i.e. in the failure to use the words ‘coercion’ or ‘illegitimate pressure’), but one of substance where the facts pleaded in the ASOC are insufficient to find a case of [sic] that coercion or undue influence was exercised by D2 even if all of the allegations are proved.

…

  25. …none of the allegations relied on by Ps expressly alleges that D2 was the person who had exercised coercion or illegitimate pressures on the Deceased to cause her to make the Will … [Mr Wong then proceed to analyze the pleaded facts in some details in an attempt to make good his submission.]

…

  34. In the ASOC, there is simply no plea that D2 had taken advantage of the Deceased, and there is no plea as to how this had led to the Deceased’s execution of the Will.  As submitted above, the absence of such pleas is both in form and in substance which is fatal to Ps’ claim against D2.”

23.  On what Mr Yau submits to be the true purpose of the purported will, Mr Wong submits[9] that that amounts to an allegation of fraud, that it is not a point that has been pleaded on the face of the ASOC, and that the unpleaded allegations should be totally ignored for the purpose of this appeal.

Discussion

24.  It is Mr Wong’s submissions that Ps’ plea is bad both in form and in substance.

25.  In relation to the complaint that Ps’ plea is bad in form:

 (a) the only direct plea is made in §11 of the ASOC that “the Deceased made the [Purported Will] under undue influence … exercised by [D1], [D2] and/or other parties or any combination of them”;

 (b) In the ASOC, Ps have not in fact used the words “coercion” or “illegitimate pressure”.  Mr Yau also accepts that;

 (c) Causation has not directly been pleaded;

 (d) There is some force in Mr Wong’s complaint that Ps’ plea against D2 has left much to be desired in so far as form is concerned;

 (e) I on the other hand accept ground (iv) as set out in Ps’ Notice of Appeal, that should the only averment that is regarded as lacking is an express allegation of illegitimate pressure and/or coercion, Ps should be allowed a reasonable opportunity to amend.  That is consistent with the discussion at §18/19/5 of the Hong Kong Civil Procedure 2020.

26.  What is therefore more important for the purpose of this appeal is whether the plea is also bad in substance.

27.  Mr Yau’s contention is that the picture painted by the ASOC “is a picture inconsistent with that of a testatrix making a will under his own volition”.

28.  I bear in mind that this Court is not to conduct a trial on affirmations.  Pleaded facts are assumed in favor of Ps.  I look at the main planks of Ps pleaded case without getting bogged down in fine details.  The following aspects are in my view material:

 (a) the Deceased’s previous character as pleaded;

 (b) she moved in with D2 in the 2^nd half of 2011 until she died;

 (c) during that period, the Deceased had little contact with her other daughters and her younger sister;

 (d) during the period when the Deceased lived with D2 and/or her son, she was in their company and D1.  It was a power‑dependency relationship.  The Deceased heavily relied on those living with her or in her constant company for her daily living;

 (e) the Deceased had mental and cognitive impairment during that period[10]. She displayed signs of anxiety disorder on 23 October 2010.  Her anxiety problem deteriorated when observed on 28 April 2011.  On 21 September 2011, she was assessed by a psychiatrist as having “significant cognitive impairment”, and that she was “not mentally fit to give consent for her eye surgery”.  On 28 August 2014, she was admitted to North District Hospital where she stayed till she died.  During her stay, she was assessed by a psychiatrist as suffering from delirium.

 (f) But starting in December 2011, the Deceased started to terminate her fixed deposits.  Monies were transferred out.  She started to raise loans with bank and finance company for the benefit of others.  She sold 3 of her landed properties during the last 10 months of her life.  The assignment of the last one is dated 5 September 2014, within 2 weeks of her death;

 (g) Out of those transactions outlined above, D2’s son got the  lion   share of HK$37.36 million.  D2’s husband got HK$1.42 million.

29.  For the purpose of the present appeal, I ignore Mr Yau’s submissions on what he submits to be the true purpose of the purported will.  I agree with Mr Wong that that has not been pleaded.  I also ignore the letter dated 24 February 2020 from Ps’ solicitors which Mr Yau has referred to.  This appeal has to be looked at on the face of the pleadings.

30.  However, even with the alleged true purpose of the purported will excluded for the present consideration, the facts pleaded in the ASOC still reveal a case of an old lady with cognitive impairment in the final 3 years of her life, while in a power‑dependency relationship with D1 and D2, and acting out of character, entered into inter vivios transactions apparently to her detriment but to the benefit of D2’s husband and son, and executed a will to a good friend of D2 to the exclusion of Ps.  All those matters are pleaded under the umbrella of §11 of the ASOC, that “the Deceased made the [Purported Will] under undue influence … exercised by [D1], [D2] and/or other parties or any combination of them”.

31.  Undue influence can seldom be proved by direct evidence.  Inferences are normally relied upon.  In particular, the two matters which Mr Wong complains most about, namely whether it was D2 who had taken advantage of the Deceased and whether that led to the purported will, can both at the end of the day be considered and resolved inferentially.

32.  The question then boils down to whether on the facts pleaded on the face of the ASOC, and as a matter of inferences, Ps claim based on undue inference against D2 is “obviously unsustainable”, “unarguably bad ”, and that it is “impossible, not just improbable, for the claim to succeed ”. On my analysis of the pleaded facts as set out above, I am not satisfied that it is. 

33.  On the pleaded facts, I am not satisfied as a matter of substance that this is one of those clear cases for striking out.

34.  Going back to my views expressed above on the question of form, Mr Yau has not placed before me any proposed amendment.  No application for amendment has been made.  It is therefore not appropriate for me to express any further view on any need for amendment.  But given my view on the question of substance, even on the ASOC as it is without any amendment, I am not satisfied that it is impossible for Ps’ claim against D2 to succeed.

Disposition

35.  For the reasons set out above, I allow the appeal, set aside the Master Decision and dismiss D2’s Summons.

36.  I give D1 and D2 35 days from the date of this Decision to file their defence (and counterclaim if any).  Otherwise the Rules of the High Court are to be followed.

Costs

37.  I make a costs order nisi that D2 is to bear the costs of and occasioned by D2’s Summons, both before this Court and in relation to the application before the learned Master (which was disposed of on the papers), to be taxed if not agreed.  For the avoidance of doubt, there will be certificate for one counsel only (covering Mr Yau in so far as Ps’ representation is concerned).  Any application for variation may be made by way of submissions within 14 days from the date hereof.

HCAP 37/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 37 OF 2015

________________________

________________________

________________________

DECISION

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THIS ACTION

1. This probate action concerns the estate (“Estate”) of the late Madam Lo Siu Fung (“Deceased”) who died on 18 September 2014, leaving an English will dated 7 October 2013 (“Will”) (by which the Deceased named Fung Ming Ip, the 1^st defendant, as the sole executor and beneficiary of the Estate) and just the following 2 assets under her name:

(1)  a credit balance of HK$17,797 in a savings account with the Bank of China (“BOC Balance”); and

(2)  Flat B, 2/F and Car Parking Space A69 on Carpark Floor A, Block 1, Phoenix Court, 39 Kennedy Road, Hong Kong (“Phoenix Court Flat”) subject to a Mortgage dated 1 November 2013.

2. In particular, by this action, the plaintiffs dispute the validity of:

(1)  the Will; and

(2)  the inter vivos transactions by which all the properties held solely by the Deceased (except the BOC Balance and the Phoenix Court Flat) had been disposed of within the 3 years preceding the Deceased’s death.

THE APPLICATIONS BEFORE THE COURT

3. At this stage, before the court are:

(1)  an application by Summons dated 23 December 2015 by the plaintiffs for the grant of letters of administration pendente lite over the Estate (“APL Application”) pursuant to s 40 of the Probate and Administration Ordinance (Cap 10) (“PAO”);

(2)  another application also by Summons dated 23 December 2015 by the plaintiffs for leave to join the Official Administrator (“OA”)[1] as the 3^rd defendant[2] and for directions to the OA to take various steps for the preservation of the Estate pending the grant of letters of administration pendente lite (“OA Application”) pursuant to ss 9 and 10 of the PAO and Order 15, rule 4(1) of the Rules of the High Court; and

(3)  an application by Summons dated 24 August 2016 by the OA to strike out the Statement of Claim as against the OA, in particular, paragraphs 1 and 44 to 56 thereof (“Strikeout Application”).

RELEVANT BACKGROUND

4. The circumstances giving rise to this action and the said applications now before the court can be outlined as follows.

5. The Deceased and her husband, Mr Mak Kan Chiu who had predeceased the Deceased in 1996, had 5 daughters in the following order of seniority:

(1)  Mak Ngun Tai, the 1^st plaintiff;

(2)  Mak Ngan Lai, the 2^nd defendant;

(3)  Mak Lai Ping, the 2^nd plaintiff;

(4)  Mak Lai Wun who predeceased the Deceased in 1994; and

(5)  Mak Mei Wa, the 3^rd plaintiff.

6. The Deceased was indisputably a woman of means prior to September 2011.

7. More particularly, she had substantial savings, mostly fixed deposits, to the tune of HK$30 million according to the plaintiffs or HK$20 million according to the 1^st defendant.

8. She also owned the following real properties which were all unencumbered:

(1)  Unit A, 6/F, Kenny Court, 22–28 Kennedy Street, Hong Kong in her sole name;

(2)  5/F including the rooftop, 44 Johnston Road, Wanchai, Hong Kong in her sole name;

(3)  1/F & flat roof, 12 Gage Street, Hong Kong in her sole name;

(4)  the Phoenix Court Flat in her sole name;

(5)  11/F, 113 Hennessy Road, Wanchai, Hong Kong with the 1^st plaintiff as joint tenants; and

(6)  Flat D, 9/F, 477 Hennessy Road, Wanchai with the 3^rd plaintiff as joint tenants.

9. With the exception of 11/F, 113 Hennessy Road which the Deceased had used as her own residence until sometime in 2011, these properties were let to provide rental income to the Deceased.

10. The plaintiffs describe the Deceased as being of a distrustful nature and as being frugal and very careful with her money, a miser even, despite her wealth.

11. Since the death of her husband in 1996, the Deceased had lived on her own at 11/F, 113 Hennessy Road.  It is the plaintiffs’ case that they and the Deceased’s younger sister, Madam Lo Kam Fung, maintained regular contacts with the Deceased while she was living in Wanchai. And due to her age and illiteracy (which is disputed by the 1^st defendant who says that she should be able to recognise a lot of Chinese characters), the Deceased had for a long time relied on the 1^st plaintiff and the 2^nd plaintiff’s husband, Samuel Mak, to assist her in the management of her deposits and the tenancies of her properties including rent collection.

12. In 2011, the Deceased’s eyesight deteriorated badly due to cataract but initially refused to seek treatment.  Eventually, on 27 September 2011, through the persuasion and arrangement of the 2^nd defendant who was enlisted by the plaintiffs to try to change the Deceased’s mind, the Deceased underwent a bilateral eye cataract extraction (“Operation”) by Dr Tso Mun Yee Elisa at St Teresa’s Hospital.  It is noteworthy that Dr Tso saw fit to arrange for Dr Chen Yuk Lun Ronald, a psychiatrist, to assess the Deceased’s mental capacity prior to the Operation on 21 September 2011 and that Dr Chen found the Deceasedto be mentally unfit to give consent to the Operation (which was eventually provided by the 2^nd defendant). More specifically, Dr Chen was of the opinion that the Deceased was suffering from obsessive compulsive disorder with marked anxiety symptoms as well as cognitive impairment.

13. Although there is disagreement as to whether the Deceased moved out of 11/F, 113 Hennessy Road before the Operation according to the 1^st defendant or thereafter according to the plaintiffs and the circumstances leading to the Deceased’s move, there is no dispute that the Deceased moved to live with the 2^nd defendant and her family at their rented village house in Kai Leng, Fanling, New Territories sometime during 2011.

14. And while the 1^st plaintiff and the 1^st defendant have given different reasons for the subsequent changes in the relationships between mother and daughters, it appears to be common ground that, after the Deceased’s said move, the contacts between the plaintiffs and the Deceasedwhether in person or by telephone had greatly reduced while the Deceased and the 2^nd defendant and her family had grown closer than before.

15. It was also after the Deceased’s move to Kai Leng that she became friendly with the 1^st defendant.

16. Regarding the 1^st defendant, the plaintiffs describe him as a good friend of the 2^nd defendant.  However, according to the 1^st defendant himself, he became acquainted with the 1^st plaintiff and the 2^nd defendant through the introduction of a mutual friend on the same occasion in 1995, and was subsequently introduced by them to their other sisters, the 2^nd and 3^rd plaintiffs.  He initially saw more of the 1^st and 3^rd plaintiffs as they were all keen on singing Cantonese opera songs and the 2^nd defendant was not living in Hong Kong. From 2003, he was the tenant of a village house in Yuen Long owned by the 1^st plaintiff until 2009 when the 1^st plaintiff sold that property.  Thereafter, the 1^st and 2^nd defendants became neighbours when the 1^st defendant moved to Kai Leng.

17. As for his relationship with the Deceased, the 1^st defendant claims to have been introduced by the 2^nd defendant to the Deceased when he met them by chance at a restaurant on one occasion, the date of which he has not identified.  Thereafter, he would see the Deceased socially for just about 2 or 3 times a year.  After the Deceased’s move to Kai Leng in about April/May 2011, the 1^st defendant who lived in the same village frequently paid visits to the Deceased or accompanied her when she went out and about and they became well acquainted.  Starting from as early as September 2011, i.e. round about the time of the Operation, the Deceased appointed the 1^st defendant to help her handle the tenancies of her properties in place of the 2^nd plaintiff’s said husband.  The 1^st defendant claims that he and the Deceased grew so close that in about March/April 2012, after repeated suggestions by the Deceased who had no son, they went through a ceremony at which the Deceased adopted the 1^st defendant as her godson at a dinner which was also attended by, inter alia, the 2^nd defendant and her family (but not any of the plaintiffs or members of their families).  In November 2012, upon the expiry of the tenancy of his then rented accommodation in Kai Leng, the Deceased and the 2^nd defendant’s family invited him to move in with them, which invitation the 1^st defendant accepted.  Then, in May 2013, the Deceased, the 1^st defendant, the 2^nd defendant and her family all moved into House 31[3], Belair Villa, 9 Yu Tai Road, Fanling (“Belair Villa House”), a property that had been acquired in the joint names of the Deceased and Koon Jamis (“Jamis”), the son of the 2^nd defendant andher husband, Koon Yau Kuen (“Koon”), but paid for entirely by the Deceased (see further paragraphs 24 to 27 below).

18. The Deceased passed away on 18 September 2014 at the North District Hospital at the age of 85.  According to the 1^st plaintiff, they were not notified of the Deceased’s death or funeral.  The 3^rd plaintiff only came upon such news in October 2014 through a casual chat with one of the 2^nd defendant’s daughters on WhatsApp.

19. As the Deceased’s daughters, the plaintiffs and the 2^nd defendant would have been entitled to equal shares in the Estate under the Intestate Estates Ordinance (Cap 73) had the Deceased died intestate.

20. However, the Deceased left the Will, appointing the 1^st defendant as the sole executor and beneficiary of the Estate.  The existence and provisions of the Will came as an unpleasant surprise to the plaintiffs.  From their perspective, it is inexplicable why the Deceased would give her entire estate to the 1^st defendant, a person whom she barely knew before she moved to live with the 2^nd defendant in 2011, to the exclusion of all her daughters.  They dispute the validity of the Will.  Although the Will was on its face prepared by Messrs Ford, Kwan & Co (“FKC”) and executed by the Deceased in the presence of a solicitor and a clerk of that firm after the document had been interpreted to the Deceased in Cantonese, the plaintiffs accuse the 1^st and 2^nd defendants (and/or other parties to be identified) of procuring the Will when the Deceased had no testamentary capacity or real knowledge or understanding of the contents of the Will or when she was acting under their undue influence.  A caveat against a grant of probate or administration in respect of the Estate was entered on behalf of the 2^nd and 3^rd plaintiffs under HCCA 2934/2015.

21. To compound the plaintiffs’ suspicion, the Deceased had in the 3 years preceding her death divested herself of all her solely owned assets except the BOC Balance and the mortgaged Phoenix Court Flat.  The particulars that the plaintiffs are able at this stage to give are set out in paragraphs 22 to 31 below.

22. First, the savings that the Deceased had held before September 2011, whether HK$30 million or HK$20 million, had disappeared except for the meagre BOC Balance, which means that there is also no trace of the further rental income that the Deceased should have received from September 2011.[4]

23. With regard to the savings held in fixed deposits, the 1^st defendant simply says, without giving any particulars, that the Deceased had closed the accounts upon the maturity of the deposits and spent all the money in her lifetime.

24. Second, on 19 January 2012, the Deceased and Jamis entered into an agreement to purchase the Belair Villa House as tenants‑in‑commonin equal shares.  By the time this purchase was completed by an Assignment dated 3 September 2012, the tenancy‑in‑common was converted into a joint tenancy, thereby leaving Jamis the sole registered owner of the Belair Villa House by virtue of survivorship after the Deceased’s death.

25. Further, although the purchase of the Belair Villa House was initially completed by funds provided entirely by the Deceased without the need for any loan financing, the Deceased and Jamis mortgaged the Belair Villa House to Hang Seng Bank just about two months later.

26. According to the plaintiffs, the Deceased had told the 2^nd plaintiff in a telephone conversation sometime between March and June 2012 that she had bought a property with Jamis with each contributing and getting a half share and that she had already paid up her share.

27. The 1^st defendant has also deposed that the Deceased and Jamis were originally going to hold the Belair Villa House as equal tenants‑in‑common on the understanding that they would each contribute 50% of the purchase price, although the Deceased would initially put up Jamis’ half share for which Jamis could reimburse her later.  However, according to the 1^st defendant, the Deceased changed her mind and gave instructions to Jamis to have the title converted into a joint tenancy and not to repay her his half share of the purchase price, after the plaintiffs picked a quarrel with her about this acquisition.  The 1^st defendant has however not dealt with the said mortgage of the Belair Villa House.

28. Third, the equity value of the hitherto unencumbered Phoenix Court Flat had been diminished by the said mortgage dated 1 November 2013 to secure the borrowings of Koon, the 2^nd defendant’s husband, and the Deceased from one Hang Lee Finance Company Limited.  Although the Deceased was formally one of the borrowers, there is no trace of any drawings by the Deceased under the facilities secured by the said mortgage.  According to the 1^st defendant, the Deceased executed this mortgage to provide Koon with “turn‑around cash for his wine business”.

29. Fourth, the remaining 3 of the abovementioned 4 properties that were held in the Deceased’s sole name had been sold in 2013 and 2014 for a total consideration of HK$16,430,000 as follows:

(1)  Unit A, 6/F, Kenny Court, 22‑28 Kennedy Street for HK$6,380,000, which sale was completed by an Assignment dated 16 December 2013;

(2)  5/F including the rooftop, 44 Johnston Road for HK$4,100,000, which sale was completed by an Assignment dated 30 April 2014; and

(3)  1/F & flat roof, 12 Gage Street for HK$5,950,000, which sale was completed by an Assignment dated 5 September 2014.

According to the 1^st defendant, the conveyancing of all these sales was handled by FKC.  The Deceased personally executed all the agreements and assignments except for the assignment of 1/F & flat roof, 12 Gage Street which was signed by the 1^st defendant on behalf of the Deceased pursuant to a power of attorney given to him by the Deceased as the Deceased had by then already fallen ill.

30. As stated above, none of these 3 properties was encumbered.  Hence, the Deceased should have realised HK$16,430,000, subject to some deductions for the costs and expenses incidental to the sales.  However, none of such proceeds of sale had remained under the Deceased’s name by the time of her death.

31. The sale of 1/F & flat roof, 12 Gage Street is particularly noteworthy in that:

(1)  It was not completed until 5 September 2014, which was just 13 days before the Deceased’s death.

(2)  One would expect the purchaser to pay and the Deceased to receive on such completion date the balance of the purchase price, which would normally be 90% if one goes by the usual Hong Kong conveyancing practice.

(3)  As said earlier, the assignment was executed by the 1^st defendant on behalf of the Deceased pursuant to a power of attorney as the Deceased had by then already fallen ill.

(4)  The question as to what the Deceased, a sick lady in her eighties, had done with over HK$5 million within less than 2 weeks before her death is unanswered.

32. By this action, which was commenced by a writ of summons issued on 21 December 2015, the plaintiffs ask the court to:

(1)  pronounce against the Will and declare that the Deceased died intestate; and

(2)  direct the OA to take various steps to preserve the Estate pending the appointment of an administrator pendente lite including the conduct of inquiries into the financial, care and medical records of the Deceased and the commencement of action (jointly with the 1^st plaintiff as the intended administratrix pendent lite of the Estate) against the 1^st and 2^nd defendants, Koon and Jamis, whom the plaintiffs have implicated, to recover the assets disposed of by the Deceased before her death or their values.

33. For the latter purpose, the plaintiffs have attached to the Statement of Claim 2 schedules, one setting out the documents and information concerning the Deceased and the Estate that they desire the OA to obtain and the other containing a draft Statement of Claim to be issued by the OA and the 1^st plaintiff jointly against the 1^st and 2^nd defendants, Koon and Jamis.

34. The 1^st plaintiff is prepared to undertake to indemnify the OA for his costs and expenses and to put up security for such undertaking in the form of 11/F, 113 Hennessy Road of which she has become the sole owner by virtue of survivorship upon the Deceased’s death, though she reserves the right to seek such costs and expenses from the Estate.

THE APL APPLICATION

Relevant legal principles

35. Section 40 of the PAO empowers the court to appoint an administrator of the estate of a deceased person where any legal proceedings touching the validity of the will of such deceased person, or for obtaining, recalling, or revoking any grant are pending the court.

36. The principles governing the exercise of the power to appoint an administrator pendente lite (or administrator pending suit) are not controversial and can for present purposes be shortly summarised as follows:

(1)  The court does not automatically appoint an administrator pendente lite whenever there is a pending probate dispute.

(2)  The court only appoints an administrator pendente lite when it is necessary or expedient to do so.

(3)  Necessity or expediency has to be assessed with reference to the actual circumstances of the case which obviously vary from case to case so that the situations in which the court would appoint an administrator pendente lite cannot be stated exhaustively.

(4)  Relevant considerations would include the condition of the estate, the nature of the assets comprised in the estate, whether there is a likelihood of dissipation or jeopardy of assets and whether there is a need to collect the “fruits of the estate’.

(5)  An appointment would be necessary or expedient if, for example, it is required to protect the estate by collecting, managing or safeguarding the assets or to enable legal action to be taken against third parties pending the resolution of the probate dispute.

See Hung Jin Mei v Tang Chui Yuk Angela, HCAP 4/1997, unreported, 11 February 1998, per Le Pichon J at [8] – [10]; Re Yien Chi Ren [2009] 5 HKLRD 413, per Deputy High Court Judge Horace Wong SC at [16] – [17]; Ho Yiu Sum v Ho Yiu Leung Kenny, HCAP 20/2015, unreported, 6 January 2016, per Chow J at [14] – [17]; Cheung Ting Kau Vincent v Koo Siu Ying, HCAP 4/2011, unreported, 18 February 2016, per Deputy High Court Judge Kent Yee at [83] – [86]; and Lam Mo Chu Susie v Lam Sik Ying Victor, HCA 1975/2015, unreported, 18 July 2016, per Chow J at [14] – [16].

Appointment necessary or expedient in this case

37. Applying these principles, on the evidence before me, I have come to the view that, pending the determination of the validity of the Will, it is necessary or expedient for an administrator pendente lite to be appointed to inquire and investigate into the inter vivos dispositions of assets made by the Deceased since September 2011.

38. In so concluding, I have not overlooked the 1^st defendant’s stance as the sole beneficiary of the Estate under the Will that insofar as he is concerned:

(1)  There is nothing to investigate, the Deceased being entitled to spend her money anyway she wanted.

(2)  He has no wish to recover any of the assets disposed of by the Deceased before her death.

(3)  Therefore, the costs and expenses that would be occasioned by the appointment of an administrator pendente lite would be wasted if the Will should at the end of the day be upheld.

39. This is obviously not the occasion for the court to resolve the dispute as to the validity of the Will or even assess or weigh either side’s chance of upholding/upsetting the same.

40. However, pending the final determination of the validity of the Will after trial, I cannot neglect the plaintiffs’ interests as potential intestate beneficiaries of the Estate if the Will should be declared invalid.

41. This is particularly so when the plaintiffs are in the first instance prepared to shoulder the costs and expenses that would be occasioned by the appointment of an administrator pendente lite (though, for the avoidance of any misunderstanding, I should make it very clear that this should not and would not be a consideration in the absence of circumstances otherwise justifying an appointment in accordance with the principles set out in paragraph 36 above).

42. In the present case, I refer to the above summary of background.  The plaintiffs have in my view placed before the court sufficient undisputed or indisputable facts and circumstances which, if unexplained (which they are), should alert the court to the risk of financial abuse of the Deceased from September 2011 to the date of her death:

(1)  Although the mental capacity required for the giving of consent to the Operation is different from that required for an inter vivos disposition of one’s assets, the Deceased was certified by a psychiatrist to be suffering from cognitive impairment in as early as September 2011.

(2)  The Deceased had prima facie squandered a fortune of tens of millions within 3 years thereafter.

(3)  Such financial conduct was out of character.

(4)  The disappearance of over HK$5 million (i.e. the balance of purchase price of 1/F & flat roof, 12 Gage Street) within less than 2 weeks before the Deceased’s death when she was apparently already too ill even to personally execute the assignment for such sale is particularly stark.

(5)  It remains a mystery on what the Deceased had spent all that monies.  In this regard, the 1^st defendant’s bare assertion, without any particulars, that the Deceased had spent all her fixed deposits in her lifetime only serves to raise more questions.  And there is still no hint whatsoever of the whereabouts of the proceeds of the said sales or mortgages of the Deceased’s real properties.

(6)  The purchase of the Belair Villa House in 2012 and the Deceased’s trips to Beijing, Guilin and Singapore (even with she paying for everyone who went along), the only items of expenditure that the 1^st defendant refers to in evidence and submissions, would hardly make up the sums.

43. To my mind, the plaintiffs have raised a sufficient case for an inquiry into and examination of the Deceased’s financial conduct from September 2011 to the date of her death with a view to identifying the inter vivos transactions by which the Deceased had disposed of all her properties (except the BOC Balance and the mortgaged Phoenix Court Flat) before her death and verifying whether such transactions were proper and valid or liable to be avoided at the instance of the Deceased during her lifetime and by the Estate after her death.

44. And I do not believe that it is in the interest of the Estate for such inquiry and examination to await the final determination of this action.

(1)  It is impossible to estimate when this action could or would be concluded, with the parties not having progressed beyond the pleading stage.

(2)  The tracing and recovery of assets is always time‑sensitive, especially when considerable efforts are required to establish the full facts.  Given that trails may turn cold and further dissipations may take place with the passage of time, not to mention the running of time under the statute of limitation, actions should be taken sooner rather than later.  I am particularly mindful of the possibility that some of the inter vivos dispositions could have made in as early as September 2011 or shortly thereafter.

45. For these reasons, I think the 1^st defendant is talking at cross purposes and not addressing the real issues by

(1)  confining the Estate to the BOC Balance and the mortgaged Phoenix Court Flat and contending that they are not at all at risk to warrant the appointment of an administrator pendente lite; and

(2)  offering[5] to undertake not to do anything to dissipate or dispose of or charge or diminish the value of the assets of the Estate (meaning the BOC Balance and the mortgaged Phoenix Court Flat).

46. The plaintiffs’ concern, shared by the court, is with the question whether the Deceased might have during her final years been the victim of financial abuse and disposed of her other assets in transactions that are avoidable on grounds such as want of mental capacity or, as contended by the plaintiffs, undue influence.

47. The 1^st defendant’s further undertaking not to dispose of or destroy

(1)  any records of properties, monies and assets which he had obtained from the Deceased; or

(2)  any of the Deceased’s records for her properties, monies and assets which are in his possession

would not help either.

48. First, the 1^st defendant has not disclosed and we do not know if the records that are the subject matter of such proposed undertaking relate to all the dispositions of assets made by the Deceased since September 2011.  Indeed, by his solicitors’ letter dated 5 April 2016 to the plaintiff’s solicitors, the 1^st defendant denies having any relevant documents except for a passbook of an account opened in the name of the Deceased and the 2^nd and 3^rd plaintiffs.

49. Second, the 1^st defendant has refused to disclose and we do not know what properties and monies (if any) he had obtained from the Deceased before her death.  More importantly, he has not offered to undertake not to dissipate or dispose of or charge or diminish the value of the assets that he had acquired from the Deceased during her lifetime.

50. Lastly, the 1^st defendant refers to Practice Direction 20.2 (on “Probate and Administration of Estate Proceedings (other than Applications under the Non‑Contentious Probate Rules (Cap 10A)”) and points out that the plaintiffs have failed to comply with Section C.1 thereof which prescribes the procedural requirements for an application for appointing an administrator pendente lite.  In summary, the application should be made by a summons naming the proposed administrator with all the directions required.  Such summons must be supported by written evidence and accompanied by a draft order.  Written evidence should be in the form of affidavit evidence and state why it is “necessary and expedient for some steps to be taken to preserve or protect some asset of the estate”.  The affidavit evidence should also include, inter alia, details of the proposed administrator and of matters such as security and remuneration.  The applicants must also file the written consent of the proposed administrator to act, and an affidavit as to the proposed administrator’s fitness by a disinterested person.

51. The plaintiffs have indeed not complied with Section C.1 of Practice Direction 20.1, most notably in not setting out all the directions required in the summons dated 23 December 2015 and in not attaching a draft order to such summons.

52. While the court does frown upon a party’s non‑compliance with an applicable Practice Direction, I do not think it would be proportionate or otherwise just in the circumstances of this case to dismiss the APL Application on the ground of the plaintiffs’ failure to adhere to Section C.1 of Practice Direction 20.2.  As it is, the plaintiffs would have to suffer some delay in having the terms of the administrator pendente lite appointment finalised as a result of their neglect in following Section C.1 of Practice Direction 20.2.  See paragraphs 58 and 75 below.

Who should be appointed as administrator pendente lite?

53. As for the nominees for appointment, the plaintiffs put forward:

(1)  the 1^st plaintiff; or

(2)  in the alternative, the 1^st plaintiff and the 1^st defendant jointly; or

(3)  in the further alternative, Mr Billy Ma Wan Yan (“Mr Ma”) of Messrs Hobson & Ma, who has by a letter dated 18 July 2016 indicated his willingness to act as administrator pendente lite of the Estate at an hourly rate of HK$3,800.

54. The 1^st defendant takes issue with the cost of HK$3,800 an hour for the appointment of Mr Ma.  If an administrator pendente lite has to be appointed, he prefers the joint appointment of the 1^st plaintiff and himself, or, in the last resort, only the 1^st plaintiff.

55. I can dismiss the prospect of a joint appointment of the 1^st plaintiff and the 1^st defendant right away:

(1)  First, joint administrators pendente lite have to act jointly.  In view of the allegations and cross‑allegations that have given rise to this action and the APL Application, I think I can be forgiven for not having any confidence that the 1^st plaintiff and the 1^st defendant would be able to work together.  And I most certainly do not want to create a situation where the court might potentially be inundated with applications by the 1^st plaintiff and/or the 1^st defendant to resolve disagreements between them as to what they should or should not do as joint administrators pendente lite of the Estate.

(2)  Second, I am unable to dismiss the 1^st defendant’s potential conflict of interest arising from the possibility that he might have been one of the beneficiaries of the inter vivos dispositions by the Deceased to be investigated, a possibility which the 1^st defendant has done nothing to dispel despite the plaintiffs’ express allegations against him.  However, in order not to pre‑empt the work of the administrator pendente lite, I say no more.

56. As for the 1^st plaintiff:

(1)  While there is no absolute rule against appointing a party to the probate action (even without the consent of all parties), the court would only do so if it is clearly desirable: In Re Griffin [1925] P 38.

(2)  I am afraid I am unimpressed by the 1^st plaintiff as a potential candidate for the appointment.

(3)  Many of the steps that have been taken by the plaintiffs in this action are ill‑advised.  In particular, I refer to the joinder of the OA as the 3^rd defendant, the issuance of the OA Application and the refusal to discontinue the claim against the OA.  See the discussion below on the OA Application and the Strikeout Application.

(4)  I am also alarmed by the plaintiffs’ initial proposal that the OA should be directed to launch an action against the 1^st and 2^nd defendants, Koon and Jamis to recover the assets disposed of by the Deceased before her death or their values even before all the facts relevant to such dispositions have been established.

57. Of all the candidates who have been put forward, I consider Mr Ma, a seasoned practitioner in the field of probate and administration of estates and a person independent of this probate dispute, to be the most suitable.  I do not regard his proposed hourly rate of HK$3,800 unreasonable given Mr Ma’s credentials or excessive for the Estate given the amount potentially at stake.  Nevertheless, I would expect Mr Ma to keep the costs of administration as low as possible under all circumstances.

58. I therefore approve in principle the appointment of Mr Ma as administrator pendente lite of the Estate at HK$3,800 per hour which is to be borne by the plaintiffs in the first instance without prejudice to their right to seek reimbursement out of the Estate eventually, subject to working out the full terms of the order covering the matters of, inter alia, Mr Ma’s detailed rights and powers, the provision or dispensation of security by Mr Ma and administrator’s accounts.

Limits on the grant of administration pendente lite

59. On the question of Mr Ma’s rights and powers, I can at this stage indicate that I am minded to limit his appointment to the representation of the Estate for the purposes of the inquiry and examination along the lines suggested in paragraph 43 above.  Mr Ma should apply to the court for further directions once he has completed such inquiry and examination.

60. For the avoidance of doubt, no legal proceedings should be instituted without the direction of the court.

THE OA APPLICATION AND THE STRIKEOUT APPLICATION

61. By paragraph 5 of the Order made by Mr Justice Lok on 26 January 2016, the OA Application was adjourned sine die with liberty to restore.  By letters dated 3 February and 14 July 2016 from their solicitors to the Department of Justice (“DOJ”), the plaintiffs proposed to the OA that the OA Application be stayed or adjourned pending the determination of the APL Application on the basis that if the plaintiffs succeed in the APL Application, it would be unnecessary for them to get the OA involved in this matter.  By DOJ’s letter dated 4 February and 18 August 2016, the OA insisted upon the dismissal or discontinuance of the plaintiffs’ claim him, failing which he would apply to strike out such claim.

62. At the hearing on 29 August 2016, Mr Albert Yau (with him Mr Bache Sit), Counsel for the plaintiffs, invited me to adjourn the OA Application.

63. The plaintiffs have succeeded in the APL Application.  It is therefore unnecessary for the plaintiffs to proceed with the OA Application.  However, for reasons that will become apparent shortly, I propose to deal with and dispose of such application, together with the Strikeout Application, as a matter of principle.

64. In joining the OA as the 3^rd defendant to this action, the plaintiffs invoke s 9(2) of the PAO:

“In all cases the Official Administrator shall be subject to the immediate control and act under the direction of the court.”

And s 10:

“Where any person dies, whether in Hong Kong or elsewhere, leaving estate in Hong Kong in respect of which he dies intestate, such estate shall vest in the Official Administrator who may, if he thinks fit, receive and take possession of the same until administration is granted in respect thereof.” (emphasis added)

65. The issues raised by the plaintiffs’ claim herein against the OA are:

(1)  whether s 10 applies to vest in the OA the estate of a deceased who has left a will the validity of which is being contested in a probate action; and

(2)  even if so, whether the OA is obliged under s 10 to render assistance of the types sought by the plaintiffs.

Condition of intestacy

66. In Wu Chi Kwong v Estate of Cheng Man Yau [2008] 3 HKLRD 503, the plaintiffs claimed adverse possession of the land of the defendant who had not been seen or heard of since before 1934 and was presumed dead and sought declaration under ss 7(2) and 17 of the Limitation Ordinance (Cap 347).  The Registrar of the High Court was prevented from accepting service on behalf of the defendant as the OA.  While it was accepted that the deceased had died, there was no evidence he died intestate anywhere.  See [4], per Recorder Gerard McCoy SC.

67. I agree with Mr Suen Sze Yick, Senior Government Counsel of the DOJ for the OA, that Wu Chi Kwong is authority that proof of intestacy is necessary before the estate of a deceased person will vest in the OA until the grant of administration thereof under s 10.

68. Although there is no precedent involving the same situation as the present case, the plain language of s 10 exclude its application to the estate of a deceased who has left a will, albeit one the validity of which is being contested in a probate action.  Until a will is found to be invalid, it cannot be proved that the deceased died intestate.

69. This also stands to reason with reference to first principles:

(1)  Where a deceased has left a valid will, his estate will vest in the executor appointed under the will.  There is no scope for the operation of s 10.

(2)  This remains the case notwithstanding that the validity of the will is contested and has to be established after trial in a probate action.

(3)  Where there is a pending suit regarding the validity of a will, the proper way to meet any need for administration in the meantime is for an application for the grant of an administration pendente lite to be made.

70. In the premises, the Estate does not vest in the OA by operation of s 10.

71. In any event, s 10 permits the OA, but only if he thinks fit, to “receive and take possession of” an intestate estate vested in him.[6] So, for example, in In Lo Sui‑Han v The Personal Representative of the Estate of Chan Wah‑Hing, Deceased[1993] HKDCLR 37, the tenant had died intestate, and no letters of administration had been granted to any person so that his estate was vested in the OA under s 10 of the PAO.  District Judge Downey held that where it was known that the contractual tenant was dead, and it transpired that he had not made a will, the contractual tenancy ought to be brought to an end by the landlord by giving notice to quit to the OA before the statutory grounds for possession in s 53(2) of the Landlord and Tenant (Consolidation) Ordinance (Cap 7) could be relied on.

72. While each case turns on its own facts, I am in no doubt whatsoever that the acts that the plaintiffs herein ask the OA to perform, or to lend his name to, all being of a highly contentious nature (including the commencement of hostile litigations), go way beyond the receipt or taking of possession of an estate provided for in s 10.  I do not think it is the intention of s 10 for the OA to be dragged into an adversarial dispute over the administration of an estate pending suit.

73. The reference to and reliance on s 9(2) of the PAO does not assist the plaintiffs at all.  The court cannot exercise its power of control over the OA by directing him to do what he is not obligated to do as a matter of law.

ORDERS

74. I dismiss the OA Application and allow the Strikeout Application.  More particularly, I strike out paragraphs 1 and 44 to 56 of, and Schedules 1 and 2 to, the Statement of Claim.  I also order the plaintiffs to pay the OA his costs of the action including the costs occasioned to him by the OA Application and the Strikeout Application, to be assessed summarily.  The OA should file and serve his statement of costs within 14 days.  The plaintiffs should file and serve their statement of objections (if any) within 14 days thereafter.  The OA should have 7 days to respond to the plaintiffs’ objections (if any).

75. As for the APL Application, I repeat paragraph 58 above and direct the plaintiffs to submit to the court and the 1^st defendant a draft order for the appointment of Mr Ma as administrator pendente lite of the Estate within 14 days from today.  The 1^st defendant shall have 14 days thereafter to file and serve written submissions on such draft order.  Any reply submissions that the plaintiffs may have shall be filed and served within 7 days thereafter.

76. I further direct the plaintiffs to file and serve written submissions on the costs of the APL Application within 14 days from the date hereof.  The 1^st defendant should file and serve his written costs submissions within 14 days thereafter.  The plaintiffs should have 7 days to respond to the 1^st defendant’s submissions.

Mr Albert Yau and Mr Bache Sit, instructed by Hau, Lau, Li & Yeung,
for the plaintiffs

Mr Thomas Lai, instructed by Tang, Wong & Cheung, for the 1^st and 2^nd defendants

Mr Suen Sze Yick, Senior Government Counsel of Department of Justice, for the 3^rd defendant