WONG WING SZE TIFFANY, Administratix of the Estate of CHAN CHUNG HAN also known as CHAN CHUNG HONG v. TSANG WING FAI AND ANOTHER

HCMP 367/2019

[2019] HKCFI 2761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 367 OF 2019

____________

	IN THE MATTER of the estate of CHAN CHUNG HAN (陳仲嫺) also known as CHAN CHUNG HONG (陳仲嫺) LATE OF Flat 907, 9th Floor, Kent Mansion, No 97 Tin Hau Temple Road, North Point, Hong Kong, Married Woman, deceased (“the Deceased”)
	and
	IN THE MATTER of the property known as ALL THAT 1 equal undivided 100th part or share of and in ALL THAT piece or parcel of ground registered in the Land Registry as INLAND LOT NO 7695 and of and in the messuages erections and buildings thereon now known as KENT MANSION, TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT NO 7 on the 9th FLOOR of the said KENT MANSION (ie Flat No 7 on 9th Floor, Kent Mansion, Nos 95 and 97 Tin Hau Temple Road, Hong Kong) (the “1stProperty”)
	and
	IN THE MATTER of the property known as ALL THAT 1 equal undivided 35th part or share of and in 8 equal undivided 100th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as INLAND LOT NO 7695 and of and in the messuages erections and buildings thereon now known as KENT MANSION, TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT PARKING SPACE NO 34 on the GROUND LEVEL of the said KENT MANSION (ie Parking Space No 34 on Ground Level, Kent Mansion, Nos 95 and 97 Tin Hau Temple Road, Hong Kong) (the “2ndProperty”)
	and
	IN THE MATTER of Order 85 and Order 113 of the Rules of the High Court (Cap 4A)

____________

BETWEEN
	WONG WING SZE TIFFANY, Administratix of the Estate  of CHAN CHUNG HAN (陳仲嫺) also known as CHAN CHUNG HONG (陳仲嫺)	Plaintiff
and
	TSANG WING FAI	1st Defendant
	YUE KAM YING	2nd Defendant

____________

Before: Deputy High Court Judge William Wong SC in Chambers

Date of Hearing: 4 November 2019

Date of Decision: 4 November 2019

________________________

DECISION

________________________

1.  I have before me two summonses:

(1)  The Plaintiff’s Summons dated 14 October 2019 for uplifting the automatic stay of proceedings that arose as a result of the Defendants’ applications for legal aid (the “Uplift Summons”);and

(2)  The 1^st Defendant’s Summons dated 27 September 2019 to suspend the Order made by this Court on 23 July 2019 (the “Order dated 23 July 2019”).

2.  On 31 October 2019, the Court received a letter from the 1^st Defendant applying for an adjournment of the present hearing to March 2020 on medical grounds.  Mr Kok for the Plaintiff opposed the application.

3.  Although the Court is sympathetic with the medical condition of the 1^st Defendant, I do not consider that it is fair to the Plaintiff to adjourn the hearing of both Summonses to March 2020.  The two Summonses can be disposed of rather easily and there are no good reasons why the Order dated 23 July 2019 should not be complied by the Defendants.  In any event, there is no reason why the 2^nd Defendant cannot attend the present hearing.

Material facts

4.  On 23 July 2019, this Court made the Order dated 23 July 2019, which include the Orders that (i) the Defendants do deliver vacant possession of the Properties (as defined in the said order) to the Plaintiff before 30 September 2019, and (ii) the 1^st Defendant do deliver up and/or transfer to the Plaintiff all assets and monies of the Estate within 14 days (ie 6 August 2019), failing which the 1^st Defendant do file an explanatory affirmation within 28 days (ie 20 August 2019).

5.  I am informed that to date, neither the Defendants have complied with the aforesaid Orders.  This morning I am informed by Mr Kok for the Plaintiff that the Defendants have lodged an appeal against this Court’s Order dated 23 July 2019 but so far no papers have been served on the Plaintiff.

6.  Instead, only a few days before the deadline for delivering vacant possession, the 1^st Defendant and the 2^nd Defendant respectively filed applications for legal aid on 23 and 25 September 2019.  The legal aid applications were made on the basis of prosecuting an appeal against this Court’s Order dated 23 July 2019, notwithstanding the time for the Defendants to lodge any appeal had already expired. 

7.  As a result of the Defendants’ legal aid applications, there is a 42-day automatic stay of the proceedings.  For present purposes, the automatic stay of proceedings was due to expire on 6 November 2019 (ie 42 days after the 2^nd Defendant’s legal aid application). 

8.  On 27 September 2019, the 1^st Defendant filed the Suspension Summons, which was fixed to be heard today before this Court.

9.  On 4 October 2019, the Director of Legal Aid (“DLA”) refused both of the Defendants’ application for legal aid.

10.  On 11 October 2019, the Plaintiff’s solicitors issued a letter to the 1^st Defendant, by which the Plaintiff, inter alia, requested the 1^st Defendant to withdraw its unmeritorious application under the Suspension Summons, failing which the Plaintiff would seek costs against the 1^st Defendant on an indemnity basis (“the Letter”).  To date, the 1^st Defendant has not replied to the Letter. 

11.  On 14 October 2019, the Plaintiff filed the Uplift Summons for the purposes of uplifting the automatic stay.  The Uplift Summons was fixed to be heard together with the Suspension Summons.

The Uplift Summons

12.  The purpose of the legal aid stay is to allow sufficient time for the DLA “to process an application for legal aid”: Woo Ming Han Juliana vWoo Koo Ping & Others HCA 2558/2015, unreported, 30 November 2015 at §27 per Deputy High Court Judge Kwok SC. 

13.  In the present case, the Defendants’ legal aid applications have already been refused on 4 October 2019.  Hence, any purpose for the stay would have already been served, and as such it ought to be uplifted.  (See The Hongkong and Shanghai Banking Corporation Ltd v Lam Chun Hing HCMP 997/2016, unreported, 14 July 2017 at §30 per Deputy High Court Judge Kwok SC.)  As no purpose will be served by continuing the stay, I agree that the stay should be uplifted.   

14.  Further, I also agreed that unless this Court were to formally uplift the stay (which was due to expire in two days), the 1^st Defendant’s Suspension Summons would need to be adjourned to a further hearing.  There is no reason for such adjournment, which would only lead to unnecessary wastage of costs and the Court’s resources. 

15.  Mr Kok for the Plaintiff also submitted that the timing and nature of the Defendants’ legal aid applications clearly demonstrate that they were not made for bona fide purposes, but were merely tactical moves for the purposes of causing delay: see Woo Ming Han Juliana (supra)at §29. 

16.  For the purpose of this hearing, I do not need to decide whether the applications for legal aid were made in good faith. However, as no purpose is to be served by the continuous stay, I am of the view that the proper course is to uplift the stay so that this Court can also deal with the Defendants’ Suspension Summons.

Suspension Summons

17.  I agree that there is simply no basis for the 1^st Defendant to seek the “suspension” of this Court’s Order dated 23 July 2019.  

18.  Mr Kok for the Plaintiff also rightly pointed out that the 1^st Defendant’s only ground for seeking to suspend this Court’s Order dated 23 July 2019 was that “Legal Aid had been applied on September 23, 2019”.

19.  The simple point is that the fact that the 1^st Defendant had made a legal aid application (which has since been refused) is not a viable basis for suspending any court order.

Disposition

20.  For all the reasons stated above, I make an order in terms of the Uplift Summons and dismiss the Suspension Summons.

21.  As for the costs of the Suspension Summons, Mr Kok for the Plaintiff submitted that costs of and occasioned by the Suspension Summons should be personally paid by the 1^st Defendant to the Plaintiff forthwith, to be taxed if not agreed and on an indemnity basis.  I agree that this is a suitable case to make a costs order on an indemnity basis.

22.  First, as observed by the Court of Appeal in Huge Dragon Corp Ltd v Lung Mun Oasis (IO) [2014] 3 HKLRD 286 at §13 per Jeremy Poon J (as he then was), “where the proceedings in question should never have been brought or defended but the party nevertheless unreasonably and unjustifiably persisted, he may well be visited with indemnity costs”. 

23.  Secondly, I agree that the 1^st Defendant’s Suspension Application is entirely unmeritorious, and should never have been made in the first place. 

24.  Thirdly, upon the DLA’s refusal of the 1^st Defendant’s application and his receipt of the Letter dated 11 November 2019, the 1^st Defendant still failed and/or refused to withdraw the Suspension Summons.  The 1^st Defendant unreasonably and unjustifiably persisted with the application.  In the circumstances, it is only just and fair that the 1^st Defendant should pay the costs of and incurred by the Plaintiff personally on an indemnity basis.

25.  As for the costs of the Uplift Summons, I agree that the costs of and occasioned by the Uplift Summons should be paid personally by the Defendants to the Plaintiff forthwith.  Such costs were incurred because of the unreasonable conduct of the Defendants. 

26.  I also make an order that to the extent that the Plaintiff’s aforesaid costs are not paid for by the Defendants, the Plaintiff is entitled to have her costs to be paid out of the Estate, on a trustee basis pursuant to Order 62, rule 6 of the Rules of the High Court, Cap 4A.

27.  Finally, it remains for me to thank Mr Kok for the Plaintiff for his able and helpful submissions.

	(William Wong SC)
	Deputy High Court Judge

Mr Martin Kok, instructed by Hugill & Ip, for the plaintiff

The 1^st and 2^nd defendants were not represented and did not appear

 

HCMP 367/2019

[2019] HKCFI 1893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 367 OF 2019

____________

	IN THE MATTER of the estate of CHAN CHUNG HAN (陳仲嫺) also known as CHAN CHUNG HONG (陳仲嫺) LATE OF Flat 907, 9th Floor, Kent Mansion, No 97 Tin Hau Temple Road, North Point, Hong Kong, Married Woman, deceased (“the Deceased”)
	and
	IN THE MATTER of the property known as ALL THAT 1 equal undivided 100th part or share of and in ALL THAT piece or parcel of ground registered in the Land Registry as INLAND LOT NO 7695 and of and in the messuages erections and buildings thereon now known as KENT MANSION, TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT FLAT NO 7 on the 9th FLOOR of the said KENT MANSION (ie Flat No 7 on 9th Floor, Kent Mansion, Nos 95 and 97 Tin Hau Temple Road, Hong Kong) (the “1st Property”)
	and
	IN THE MATTER of the property known as ALL THAT 1 equal undivided 35th part or share of and in 8 equal undivided 100th parts or shares of and in ALL THAT piece or parcel of ground registered in the Land Registry as INLAND LOT NO 7695 and of and in the messuages erections and buildings thereon now known as KENT MANSION, TOGETHER with the sole and exclusive right and privilege to hold use occupy and enjoy ALL THAT PARKING SPACE NO 34 on the GROUND LEVEL of the said KENT MANSION (ie Parking Space No 34 on Ground Level, Kent Mansion, Nos 95 and 97 Tin Hau Temple Road, Hong Kong) (the “2nd Property”)
	and
	IN THE MATTER of Order 85 and Order 113 of the Rules of the High Court (Cap 4A)

____________

BETWEEN
	WONG WING SZE TIFFANY, Administratix of the Estate of CHAN CHUNG HAN (陳仲嫺) also known as CHAN CHUNG HONG (陳仲嫺)	Plaintiff
and
	TSANG WING FAI	1st Defendant
	YUE KAM YING	2nd Defendant

____________

Before: Deputy High Court Judge William Wong SC in Court

Date of Hearing: 23 July 2019

Date of Decision: 23 July 2019

Date of Reasons for Decision: 31 July 2019

________________________

REASONS FOR DECISION

________________________

Application

1.  The Plaintiff, in her capacity as court-appointed administratrix of the estate (the “Estate”) of the late Chan Chung Han (the “Deceased”), by Originating Summons dated 18 March 2019 (the “OS”), applied for, inter alia:

(1)  An order that the Defendants do within 14 days from the date of the Order to be made herein deliver to the Plaintiff all title deeds and documents in relation to the properties as set out in the Schedule attached the OS (the “Properties”) (see§1 of the OS).

(2)  An order that the Defendants do within one month of the date of the Order to be made herein deliver up vacant possession of the Properties to the Plaintiff (see§2 of the OS).

(3)  An order for all necessary steps to be taken by the Defendants to deliver up, transfer and/or pay all other assets and monies in their hands representing the assets and monies of the Estate and/or their traceable substitutes (including all the title deeds and documents in relation thereto) to the Plaintiff (see§5 of the OS).

(4)  Vesting order or orders in favour of the Plaintiff in relation to the Properties and all other assets and properties of the Estate as may be necessary (see§6 of the OS).

2.  The Plaintiff has indicated before the previous hearing on 8 May 2019 that an order for sale of the Properties (at §4 of the OS) is no longer necessary at this stage.  Accordingly, the Plaintiff sought an order for §4 of the OS to be adjourned sine die, with liberty to restore.  This court has no problem in adjourning §4 of the OS sine die, with liberty to restore.

3.  Mr Kok for the Plaintiff submitted that this is a straightforward application as:

(1)  The 1^st Defendant has been removed as an executor of the Estate, by the judgment of Mr Justice Wilson Chan dated 21 May 2018 in HCMP 3186/2016 (“Removal Judgment”).  In place of the 1^st Defendant, the Plaintiff has been duly appointed by the Court as administratrix of the Estate.  The 1^st Defendant’s subsequent appeal against the Removal Judgment, and further application for leave to appeal to the Court of Final Appeal, were all dismissed by the Court of Appeal.

(2)  Significantly, the Properties are registered in the name of the Deceased, and none of the Defendants have any right or interest to occupy or remain in the Properties.  In fact, Mr Justice Wilson Chan has already rejected 1^st Defendant’s purported explanation to occupy Flat 907 as “untenable” (see§34 of Removal Judgment), and such finding was affirmed by the Court of Appeal (see Court of Appeal’s Judgment at §55). 

4.  I agree.  Indeed, the Defendants’ stance at the hearing is that they would like to stay in Flat 907 until the end of December 2019.  There are no good basis for the 1^st Defendant and his wife the 2^nd Defendant to stayin any of the Properties in view of the Removal Judgment and the Court of Appeal’s Judgment.

Salient factual background

5.  The Deceased passed away on 20 August 2012 domiciled in Hong Kong.  Her husband (“Husband”) passed away in 1998 and thus pre-deceased the Deceased. 

6.  By a will dated 16 June 1997 (the “Will”), it was, inter alia, stipulated that if the Husband pre-deceased the Deceased, the 1^st Defendant shall be appointed as executor.  The residuary estate shall be divided into five equal shares to be distributed amongst:

(1)  the 1^st Defendant (2 shares);

(2)  Tsang Wing Kwai, another son of the Deceased (1 share);

(3)  Tsang Tin Wai, daughter of the Deceased (1 share); and

(4)  two grandchildren who are the children of the 1^st Defendant (1 share in total). 

7.  Subsequent to the Deceased’s death on 20 August 2012, the 1^st Defendant and his family (including the 2^nd Defendant) moved into and acquired physical possession of the Properties.  It is not in dispute that the Defendants presently occupy the Properties.

8.  By the Removal Judgment dated 21 May 2018, the 1^st Defendant was removed as the executor of the Estate, pursuant to section 33(3) of the Probate and Administration Ordinance (Cap 10) (the “Ordinance”) (see§46(3) of the Removal Judgment). 

9.  By an order of Mr Justice Wilson Chan dated 13 August 2018 (and as amended on 13 August 2018), the Plaintiff was appointed as administratrix of the Estate in place of the 1^st Defendant (“Appointment Order”).  An Amended Grant of Probate was issued on 20 November 2018.

10.  The 1^st Defendant subsequently appealed against the Removal Judgment (and further application for leave to appeal to the Court of Final Appeal).  Both applications were dismissed by the Court of Appeal (see the Court of Appeal’s Judgments dated 13 February 2019 and 28 June 2019).

11.  Despite the above court judgments and repeated demands and request (including formal notice issued by the Plaintiff’s solicitors on 1 March 2019), the Defendants have failed to deliver vacant possession of the Properties to the Plaintiff. 

12.  Moreover, despite having delivered some of the title deeds for Flat 907 to the Plaintiff, most of the key title documents relating to the Properties remain undelivered to date.

Vacant possession of the Properties  

13.  I have no problem in ruling that the Plaintiff, in the capacity as the administratrix of the Estate, is entitled to recover vacant possession of the Properties (consisting of Flat 907 together with a car parking space). 

14.  The applicable legal principles for an Order 113 application weresummarised by the Court of Appeal in Direk Mahadumrongkul v Lau ChunKeung & Ors CACV 133/1998, unreported, 4 November 1998.  The summary procedure under Order 113 is not confined to uncontested and clear cases, and the Court would make an order under Order 113 in a case where there are no issues of fact or law which ought to be tried (at §§24 – 25).

15.  As a matter of law, it is trite that the registered owner of a property is prima facie entitled to possession of the property: Liu Kam Hoi & Ors v Liu Ping Kuen, the Personal Representative of the Estate of Liu Fun Kee HCA 6728/1998, unreported, 16 August 2017, per Recorder Stewart Wong SC at §24.

16.  The Plaintiff has a legal right to have vacant possession of the Properties.  It is not disputed that the Properties are registered in the name of the Deceased.  Pursuant to section 53 of the Ordinance, the Plaintiff is entitled (as the Deceased’s administratrix) to sue in respect of all causes of action vested in and surviving the Deceased, including to recover vacant possession of the Properties registered in Deceased’s name: see Williams v Holland [1965] 1 WLR 739 at pp 743 – 744 per Lord Upjohn. 

17.  Having been removed as executor of the Estate, the 1^st Defendant (and indeed the 2^nd Defendant) has no right to occupy the Properties.  The 1^st Defendant’s purported explanation to occupy Flat 907 had already been considered and rejected by both Mr Justice Wilson Chan and the Court of Appeal.

18.  Mr Kok for the Plaintiff referred to the following factual findings by Mr Justice Wilson Chan which were affirmed in §55 of the Court of Appeal’s Judgment:

“ 34. The explanation by the defendant at paragraph 12 of his affirmation that he needed somewhere to stay on his temporary return to Hong Kong is untenable. I agree there is simply no reasonable explanation why he needed to stay at Flat 907 with 3 bedrooms and 2 dining rooms. If he were only to return on temporary basis, any reasonable hotel accommodation would not have costed HK$2 million or anywhere near such a sum. He would most probably not need to own a car either.

35. It should also be noted that the defendant’s explanation in paragraph 19 of his affirmation that Flat 907 had never previously been rented out and therefore reasonable for it to be used by a family member (namely, himself), betrays a complete misconception of his duty as executor, which is to convert Flat 907 to money with a view to making distribution.  As DHCJ Le Pichon remarked at paragraph 27 in Kong Colin Chung Ping [v Kong Joanie Chun Mun HCMP 2045/2012, 24 February 2015], whatever was the previous situation, once he became the executor, his fiduciary role and duties altered and he would not be allowed to make decisions or act in relation to Flat 907 that would adversely affect the interests of other beneficiaries of the Estate.”

19.  As the 1^st Defendant has already been removed as executor of the Estate as from 13 August 2018, I agree with Mr Kok for the Plaintiff that there can be no conceivable basis for the Defendants to be or remain in occupation of the Properties. 

20.  I also agree that the Defendants’ explanation that they need to occupy and use Flat 907 as an “Estate Office” is untenable as the 1^st Defendant has been removed as the executor of the Estate.  His subsequent appeal against his removal as executor, and further application for leave to appeal to the Court of Final Appeal, were all dismissed by the Court of Appeal.  

21.  As the Defendants have not advanced any other grounds to refuse to deliver up vacant possession of the Properties, this Court will accordingly make an order that the Defendants do deliver up vacant possession of the Properties to the Plaintiff.  I will address the issue of the time within which the Defendants have to deliver up vacant possession of the Properties below.

Delivery up and vesting order

22.  I also have no difficulties in making the deliver up and vesting order as applied for by the Plaintiff.   

23.  Since his removal as the executor of the Estate, the 1^st Defendant has failed to transfer all of the assets/properties of the Estate to the Plaintiff, including the title deeds and documents of the Properties (the “Title Documents”) belonging to the Estate. 

24.  I am of the view that the Plaintiff, as a matter of law, is entitled to have the Title Documents delivered up to her.  Such orders are readily given upon the substitution of personal representatives under section 33(3) of the Ordinance: see Re Estate of Chan Kan Ying HCMP 888/2013, unreported, 19 July 2017 at §116(iii), per B Chu J.  The Court would grant such delivery-up order in order to facilitate the replacement of the new personal representative over the estate: Re Estate of Yuen Wing SumHCMP 2076/2014, unreported, 5 February 2015 at §§4, 24, per DHCJ B Chu (as she then was).

25.  Similarly, the Court would ordinarily grant vesting orders in relation to the properties of the estate following the substitution of the personal representative, and the jurisdiction for granting such orders is expressly set out in section 33(3) of the Ordinance: Re Estate of Yuen Wing Sum (supra) at §§4, 10, 24 per DHCJ B Chu (as she then was); Re Estate of Shih Chia Ying HCMP 1891/2011, unreported, 5 November 2012 at §§11, 21, per DHCJ Lok (as he then was).

26.  I agree with Mr Kok’s submissions that the delivery up and vesting orders sought by P would facilitate the due and proper administration of the estate and would also be in the interests of the beneficiaries to the Estate.  On the other hand, the Defendants has no interests to retain any of the assets/properties of the Estate and is obliged to deliver up and/or transfer the same to the Plaintiff, both as a matter of proprietary right and to enable the Plaintiff to properly discharge her duties to administer the Estate.

27.  The Plaintiff acknowledges that some of the title deeds for Flat 907 were delivered to the Plaintiff on 28 March 2019.  However, despite repeated demands, most of other key Title Documents to the Properties have not been delivered to the Plaintiff to date.   

28.  On 18 April 2019, the 1^st Defendant has filed a police report alleging, inter alia, that some of the Title Documents relating to the Properties have been lost or stolen.  Mr Kok submitted that despite this, the 1^st Defendant has to date failed to give any explanation or particulars as to the missing Title Documents, including but not limited to those title documents which are alleged to have been lost or stolen. 

29.  Accordingly, the Plaintiff also applied for an ancillary order that, should the 1^st Defendant fail to deliver up the Title Documents (or any part thereof), the 1^st Defendant shall file an affirmation to explain, inter alia,(i)the reasons that such Title Documents cannot be delivered up, and (ii)the details of their whereabouts and/or the circumstances that they came to be missing or lost. I agree.   

Disposition

30.  For the reasons stated above, I make an order in terms of the Draft Order as submitted by the Plaintiff save that I will allow the Defendants until 30 September 2019 to deliver up vacant possession of the Properties.  I give more time to the Defendants in view of their submission that there are many documents and chattels to be sorted before they can deliver up vacant possession of the Properties.

31.  As far as costs is concerned, having heard the parties’ submissions, I make the following orders:

(1)  The costs of and occasioned by these proceedings (including all costs reserved) is to be paid by the Defendants personally to the Plaintiff, to be taxed if not agreed.

(2)  To the extent that the Plaintiff’s costs is not paid by the Defendants personally, the Plaintiff’s costs are to be paid of the Estate on a trustee basis.

32.  Finally, it remains for me to thank Mr Kok for his helpful assistance rendered to this Court.

	(William Wong SC)
	Deputy High Court Judge

 

Mr Martin Kok, instructed by Hugill & Ip, for the plaintiff

The 1^st and 2^nd defendants appeared in person