YEUNG LAI SZE RITZ (also known as YEUNG LAI SZE) v. CHEUNG YIN LING ELLIE AND OTHERS

HCAP 19/2022

[2025] HKCFI 2894

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2022

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BETWEEN

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D E C I S I O N

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1.  The subject matter before me is the application (“the Application”) made by the administrator (“the Administrator”) of the estate (“the Estate”) of the late Mr Yeung Kam (“the Deceased”) by the summons (“the Summons”) issued by the Administrator on 30 July 2024 for the following:

“1. Directions be given to the Administrator, who was appointed as administrator ad colligenda bona and pendente lite of the estate of the Deceased (the "Estate") pursuant to the Order of the Deputy High Court Judge Winnie Tsui dated 12 June 2023 in the proceedings herein, regarding the following matters:

(1) That the Administrator may participate in the proceedings FCMP 40/2024 and any appeals in connection with those proceedings on behalf of the Deceased and/or her Estate (the “Family Provision Application”), and that the Administrator shall adopt a neutral stance, which need not mean a passive stance, in the Family Provision Application.

(2) Whether the Administrator should procure Elsan Limited, a company which the Estate wholly owns, to apply for an order to remove itself as a party in the Family Provision Application.

2. An order that the Administrator’s costs of, associated with or incidental to, or occasioned by, and all and any expenses and disbursements arising from, associated with or incidental to, the Family Provision Application shall be raised and paid out of the Estate on the trustee basis.”

2.  In this decision, the Plaintiff is referred to as “P”, and the Defendants are referred to as “D1” to “D8” respectively. Based upon the evidence adduced by the Administrator, I am satisfied that all the parties have been given notice of this hearing and served with the relevant papers.

3.  In the hearing before me, the Administrator, P and D6 are represented by counsel. The Administrator is represented by Mr Kerby Lau and Mr Paul Law. P is represented by Mr Martin Ho and Mr Sik Chee Ching. D6 is represented by Mr Terrence Tai and Mr Raphael Leung. D1 to D3 are represented by Mr H Kwok of Kwok Hei Law Office. The Application is opposed by P and D6. D1 to D3 adopt a neutral stance.

Background

4.  The Administrator is Mr Ip Woon Shun of Messrs Hugill & Ip (“HIP”), who is the court-appointed independent administrator pendente lite and ad colligenda bona of the Estate pursuant to the order of the DHCJ Winnie Tsui (as she then was) made herein on 12 June 2023 (“the Appointment Order”). Grant was issued to the Administrator on 18 June 2024.

5.  The background facts have been set out in the Decision (“the May 2023 Decision”) of DHCJ Winnie Tsui (as she then was) dated 4 May 2023[1]. In gist:

(1) The Deceased passed away on 16 January 2022 at the age of 78.

(2) The Estate is substantial in size, the total worth is about HK$500 million.

(3) In 1973, the Deceased was married to D4, who later gave birth to P, D5 and D6. This is the first fong.

(4) In the 1980’s, the Deceased began an extramarital relationship with D1, who later gave birth to D2 and D3. This is the second fong.

(5) In about 2000, the Deceased began another extramarital relationship with D7, who later gave birth to D8. This is the third fong.

(6) P, D1 to D8 are all beneficiaries (“Beneficiaries”) under the 2013 Will (which is being propounded by P), and all of them are also beneficiaries under the 2021 Will (which is being propounded by D1 to D3). However, the amounts of distributions under the two wills are different.

(7) In the May 2023 Decision, the learned judge held that there is clearly a degree of friction and hostility between P and D1 in the handling of the assets of the Estate, and it is unrealistic to expect any smooth or meaningful cooperation between the two of them when it comes to the administration of the estate.[2]

(8) P proposed to appoint herself and D1 as the administrators pending resolution of the present action, whereas D1 to D3 proposed the appointment of an independent professional administrator. In the May 2023 Decision, the learned judge adopted D1 to D3’s proposal. On 12 June 2023, the learned judge made the Appointment Order.

6.  On P’s own case, P, D4-D6, and D7 and D8 are in the same camp (“P’s Camp”).[3] In other words, D1 to D3 are in the other camp (“Cheung’s Camp).

7.  The background of the Family Provision Application (“FPA”)[4] mentioned in the Summons is as follows:

(1) On 13 March 2024, D4 made an application for family provision under the Inheritance (Provision for Family and Dependents) Ordinance (“IPFDO”) in the Family Court. D4 named the Administrator and Elsan Limited (a company which the Deceased solely owned and the Administrator was a director therein) (“Elsan”) as the 12^th and 13^th Respondents in that application.

(2) In the FPA, apart from the usual reliefs for family provision, D4 is also seeking:

(a) an order under s.11 of IPFDO that the Deceased’s severable one half share in Flat D, 11/F, Skyscraper, 132-142 Tin Hau Temple Road, Hong Kong (“Skyscraper Property”), or such share of the Skyscraper Property as appeared to the Court to be just, be treated as part of the net estate of the Deceased; and

(b) if and insofar as necessary and/or appropriate, an order under s. 12 of IPFDO that D3 do provide to D4 the shares in Yuk Sing Garment Development Limited, or such sum of money or other property as the Court thinks fit, for the purpose of financial provision under s. 4 of IPFDO.

(3) By the Order of Master GT Lung dated 2 May 2024 made in the FPA, that application was adjourned sine die, but the deadlines for various parties, including the Administrator and Elsan, to file affirmations in the FPA still stand. Further, the Administrator and Elsan were also required to file progress reports in the FPA.

8.  On 26 June 2024, HIP wrote to P’s then solicitors (who had been speaking for P’s Camp), saying that D4 might have improperly joined Elsan as a party in the FPA. HIP asked D4 to withdraw her claim against Elsan. There has not been any reply from P’s Camp to this request.

9.  On the same date, HIP wrote to all the Beneficiaries, informing them that the Administrator intended to take a neutral stance in the FPA and proposed to make an application in the FPA that Elsan shall cease to be a party in that case (“the Proposed Misjoinder Application”). Prior to the commencement of these proceedings, there was no response to this letter, save and except a holding reply from D1 to D3’s solicitors on 15 July 2024, and a holding response from P’s then solicitors on 23 July 2024.

10.  On 30 July 2024, the Administrator took out the Summons.

11.  On 11 September 2024, P filed her 9^th Affirmation, in which P said at §40 that she “do not have any principled objection to the Administrator being joined in the Family Provision Application as a nominal party with a neutral stance”, but she objected to the Proposed Misjoinder Application. P also expressed concerns about the costs estimate provided by the Administrator in respect of the FPA.

12.  On 28 November 2024, D6 filed her 2^nd Affirmation, in which she asked the Court to dismiss §§1(2) and 2 of the Summons. D6 had no objection to the Administrator participating in the FPA with a neutral stance, but she objected to the Proposed Misjoinder Application on the basis that there was “no risk in the foreseeable future that the continued participation of Elsan in the Family Provision Application would cause any prejudice to the assets of the Estate”.[5]

13.  On 8 January 2025, the Administrator wrote to the Beneficiaries and proposed the following to allay P’s and D6’s concerns:

(1) The Administrator would (a) invite the Family Court to excuse his personal attendance; and (b) invite the Family Court to excuse and/or dispense with counsel’s attendance in future hearings of the FPA (including the Proposed Misjoinder Application).

(2) The Administrator and/or Elsan shall issue a summons in the FPA for a determination as to the removal of Elsan as a party in the Family Provision Application.

(3) Based on the above, approximately HK$1.4 million could be saved. The costs estimate would decrease from HK$2.5 million to around HK$1.1 million.

14.  On 14 January 2025, P’s solicitors refused to agree to the above proposed course of conduct. No other Beneficiaries replied to the Administrator’s letter dated 8 January 2025.

§1(1) of the Summons

15.  After considering the written and oral submissions made on behalf of P and D6, it is now clear that neither P nor D6 is opposing §1(1) of the Summons.

(1) P’s position is that there can be no doubt that the Administrator should stay neutral in the FPA. None of the Beneficiaries is suggesting otherwise. It would be the Administrator’s duty to stay neutral in the FPA. There is no need for the Court to sanction a course of action that is his duty to pursue.

(2) D6’s position is that the Administrator should maintain a genuinely[6] neutral stance in the FPA.

16.  It is trite that executors or administrators “are always entitled to the guidance of the court for their own protection when difficulties arise in the administration or the distribution of an estate or trust assets.”[7] In Marley v Mutual Security Merchant Bank & Trust Co Ltd [1991] 3 All ER 198, Lord Oliver of Aylmerton delivered the opinion of the Privy Council and said[8]:

“A trustee who is in genuine doubt about the propriety of any contemplated course of action in the exercise of his fiduciary duties and discretions is always entitled to seek proper professional advice and, if so advised, to protect his position by seeking the guidance of the court.”

17.  As to the course proposed in §1(1) of the Summons, as a matter of fact, apart from P and D6, no other Beneficiaries have expressly endorsed the proposal. Given the serious friction and hostility between P’s Camp and Cheung’s camp, and given the fact that the FPA is made by D4 in P’s Camp, as a matter of prudence, there is nothing wrong for the Administrator to seek guidance from the Court in terms of §1(1) of the Summons. It is perfectly understandable that the Administrator would like to seek protection from the Court for the course taken by him in terms of §1(1) of the Summons in the FPA.

18.  In my view, it is correct for the Administrator to stay neutral in the FPA, including any appeals in connection with those proceedings. However, staying neutral does not mean that the Administrator would do nothing in those proceedings. The Administrator would need to comply with the directions given by the Court, for example, filing affirmations and progress reports, and making all the necessary discoveries. The Administrator or his representative would also need to peruse papers and to attend hearings to monitor the progress of the proceedings in the FPA. Further, the Administrator would also need to render the necessary assistance to the Court if and when necessary. Thus, the neutral stance adopted by the Administrator in the FPA does not necessarily mean a passive stance.

19.  With respect, I am unable to agree with P that it would not be necessary for the Administrator to obtain an order in terms of §1(1) of the Summons. For the reasons set out in §17 above, I am of the view that an order in terms of §1(1) of the Summons is necessary. I would grant that order.

20.  D6’s concern would not be a reason for refusing an order in terms of §1(1) of the Summons. The Administrator would have the protection given by the order if he acts within the scope of the order in the FPA. For the sake of discussion and to state the obvious, if the Administrator takes any step in the FPA which cannot be classified as a step that a party adopting a neutral stance should take, that move would not be within the protection conferred by the Court.

§1(2) of the Summons

21.  By §1(2) of the Summons, the Administrator wants to have an answer from this Court, ie whether the Proposed Misjoinder Application should be taken out, so that the Administrator would be protected by the answer given by this Court.

22.  The Administrator is of the view that D4 has improperly named Elsan as a respondent in the FPA. If Elsan remains as a party in the FPA, costs would be incurred by Elsan, and in turn this would have an adverse financial impact on the Estate. Thus the Administrator is considering whether the Proposed Misjoinder Application should be taken out.

23.  The Administrator submits that the Proposed Misjoinder Application is a meritorious application. On the other hand, P submits that there are respectable arguments against the Proposed Misjoinder Application. In my view, the Proposed Misjoinder Application, if taken out, would be adjudicated by the Family Court, not by this Court. That being the case, I would not set out the arguments for and the arguments against the Proposed Misjoinder Application in this decision, and I would not comment on the merits of these arguments.

24.  If Elsan improperly or unnecessarily remains as a party in the FPA, the loss suffered by Elsan would be the costs incurred by Elsan in the FPA, and in turn this would have an adverse financial impact on the Estate. Ultimately, the interests of the Beneficiaries would be adversely affected. However, as a matter of fact, although the Administrator has brought the Proposed Misjoinder Application to the attention of all the Beneficiaries, none of them has come forward and say that he or she would support taking out the Proposed Misjoinder Application. Both P’s Camp and Cheung’s Camp are legally represented. The stance taken by each camp must be their informed choice made by them after having legal advice. Since all those who may be adversely affected by the joinder of Elsan in the FPA (ie the Beneficiaries) are not interested in the Proposed Misjoinder Application or do not consider the application as necessary, I am of the view that the answer to the question in §1(2) of the Summons should be “No”.

§2 of the Summons

25.  Since the answer to §1(2) of the Summons is “No”, the question in §2 of the Summons should be in relation to the costs and disbursements incurred by the Administrator as a result of §1(1) of the Summons, whether those costs and disbursements should be paid out from the Estate to the Administrator on trustee basis.

26.  Both P and D6 submit that the Administrator is seeking a Beddoe order, but the Administrator has failed to comply with the requirements in PD20.3.

27.  In relation to the matters in §1(1) of the Summons, I am satisfied that the matters in §7 of PD20.3 have been covered in substance by the evidence filed by the Administrator. Being a party in the FPA is not the Administrator’s own choice. He has been named by D4 as a respondent in the FPA. The Administrator only intends to stay neutral and to comply with the directions given by the Family Court in the FPA. As said in the above, this is a reasonable course. None of the Beneficiaries has said that the Administrator should adopt any other course.

28.  As to the estimated costs and disbursements likely to be incurred by the Administrator in the FPA, the Administrator has explained why he estimated that the total (including the costs and disbursements in the Proposed Misjoinder Application) would be around HK$2.5 million in §§19 to 30 of his 6^th Affirmation. In HIP’s letter dated 8 January 2025, the Administrator has also explained that he could try to reduce the total of the costs and disbursements (including the costs and disbursements in the Proposed Misjoinder Application) to around HK$1.1 million. In my view, giving the hostility between the parties in this case, it can be expected many matters would probably need to be resolved by the Family Court in the FPA. Bearing in mind that the Administrator should act with prudence in giving the estimates, and bearing in mind that matters set out in §18 above, I am of the view that the estimates given by the Administrator as indicated in the above cannot be said as unreasonable.

29.  One must not confuse the Administrator’s entitlement to costs and disbursements with the quantum of costs and disbursements. Since this Court is prepared to sanction the course taken by the Administrator in the FPA in terms of §1(1) of the Summons, the costs and disbursements incurred by the Administrator in taking that course should be reimbursed by the Estate. This is the Administrator’s entitlement. As to the exact quantum of the costs and disbursements, that would be subject to taxation by a master.[9]

30.  P and D6 also submits that by engaging HIP (in which the Administrator is a partner) as the law firm representing the Administrator in the FPA, the Administrator is in a position of conflict of interest. As submitted by the Administrator, this objection cannot stand. By §§5 and 12 of the Appointment Order, leave has already been given allowing the Administrator to engage HIP in discharge of his duties and dealing with claims. That being the case, there can be no criticism against the Administrator for engaging the firm expressly allowed and sanctioned by the Court.

31.  There is no valid objection to the application for an order in terms of §2 of the Summons. I would grant that application. For avoidance of doubt, I would put down a remark that the following matters should be taken care of in the taxation (if any) in future:

(1) Since the answer to the question in §1(2) of the Summons is “No”, only the costs and disbursements within the scope of §1(1) of the Summons should be allowed.

(2) If the actual costs and disbursements claimed by the Administrator are significantly greater than the estimates provided by the Administrator in §§19 to 30 of his 6^th Affirmation and revised in HIP’s letter dated 8 January 2025, justification from the Administrator is required.

Costs

32.  All parties are in agreement that in the absence of any improper conduct, costs incurred by the parties in this application should be paid out of the Estate.[10]

33.  In my view, although I answered the question in §1(2) of the Summons in the negative, there is nothing improper on the Administrator’s part for seeking an answer from the Court on that question. Being aware of reasons in support of the Proposed Misjoinder Application, it is proper for the Administrator to seek a direction from the Court on whether the Proposed Misjoinder Application should be taken out, so that the Administrator would be protected by a direction given by the Court. Equally, although I do not accept some submissions made on behalf of P and D6, I would not say that there is any improper conduct on their part. In my view, P and D6 are only expressing their concerns on whether some unnecessary legal costs might be incurred by the Administrator in the FPA, and thereby their interests might be prejudiced.

34.  I order that costs of the Application, including costs of and pertaining to this hearing and all costs reserved (if any), be borne by the Estate, in the case of the Administrator on trustee basis and in the case of the parties appeared in this hearing (ie P, D1-D3, and D6) on common fund basis.[11] There be a certificate for 2 counsel. All costs are to be taxed by a master if not agreed.

Disposition

35.  The Application is disposed of in the way as indicated in the above.

36.  Lastly, it remains for me to thank all counsel and solicitor for the very helpful assistance rendered to the Court.

Mr Kerby Lau and Mr Paul Law, instructed by Hugill & Ip, for the Administrator

Mr Martin Ho and Mr Sik Chee Ching, instructed by Ince & Co., for the Plaintiff

Mr H Kwok of Kwok Hei Law Office for the 1^st, 2^nd and 3^rd Defendants

The 4^th and 5^th Defendants were not represented and did not appear

Mr Terrence Tai and Mr Raphael Leung, instructed by Yung & Au, for the 6^th Defendant

The 7^th and 8^th Defendants were not represented and did not appear

HCAP 19/2022

[2023] HKCFI 1515

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 19 OF 2022

________________________

________________________

________________________

________________________

D E C I S I O N

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INTRODUCTION

1.  There are two summonses before me this morning. The first in time is the plaintiff’s summons dated 17 June 2022. The second one is the summons taken out by the 1^st to 3^rd defendants dated 14 September 2022.

2.  The 4^th defendant’s stance on these two summonses is neutral. She has earlier been excused from attending today’s hearing.

3.  The 5^th to 8^th defendants act in person in this action. They are absent today.

4.  The court sent out notices of today’s hearing to all parties in November 2022. The one sent to the 8^th defendant has since been returned as undelivered. However, according to some email exchange in December 2022, the 8^th defendant was in fact informed of the date of today’s hearing. Based on the above, I am satisfied that all these defendants who act in person have had notice of today’s hearing. And the hearing has proceeded in their absence.

5.  It is now common ground between the plaintiff and the 1^st to 3^rd defendants that, first, an administrator ad colligenda bona and pendente lite should be appointed in respect of the estate of the late Mr Yeung Kam (“the deceased”). Further, the scope of the powers and duties of the administrator is not subject to dispute. The only question which I need to resolve today is who should be appointed to be the administrator in the meantime.

6.  The plaintiff’s position is that she and the 1^st defendant should be appointed as joint and several administrators of the estate. On the other hand, the 1^st to 3^rd defendants take the view that an independent professional administrator should be appointed instead. They have put forward Mr Alfred Ip of Messrs Hugill & Ip to be the candidate.

BACKGROUND FACTS

7.  It is clearly in the interests of the estate that the identity of the administrator ad colligenda bona and administrator pendente lite be resolved promptly and speedily. I shall therefore proceed to state my ruling and brief reasons now without setting out in full the background facts save as is necessary.

8.  The deceased passed away on 16 January 2022 when he was 78 years old.

9.  During his lifetime, he executed two wills dealing with his assets in Hong Kong. They are dated 19 September 2013 and 20 November 2021 respectively. I shall refer to the two wills as “the 2013 will” and “the 2021 will” below. In addition, it appears that the deceased also executed two further wills dealing with some of his assets in mainland China. Those wills are both dated 17 November 2021. However, the mainland China wills do not form the subject-matter of the present probate action.

10.  As for the parties of this action, they fall into three families, or “fongs”, of the deceased. In 1973, the deceased was married to the 4^th defendant, who later gave birth to the plaintiff, the 5^th and 6^th defendants. This is the first fong. In the 1980’s, the deceased began an extramarital relationship with the 1^st defendant, who later gave birth to the 2^nd and 3^rd defendants. This is the second fong. In about 2000, the deceased began another extramarital relationship with the 7^th defendant, who later gave birth to the 8^th defendant. This is the third fong.

11.  As disclosed by the pleadings served so far in this probate action, the plaintiff seeks to propound the 2013 will whereas the 1^st to 3^rd defendants seek to propound the 2021 will. The 4^th defendant takes a neutral stance in this action, but she expressly reserves her right to make a claim under the Inheritance (Provision for Family and Dependants) Ordinance, Cap 481. The rest of the parties have indicated in their acknowledgments of service that they do not intend to contest the proceedings, but they would support the 2013 will.

12.  What is presently relevant about the two wills are, first, that under both wills, the plaintiff and the 1^st defendant were named as the joint executrices of the estate. And, secondly, under the 2021 will, the 3^rd defendant would be bequeathed a much larger share and a vast majority of the deceased’s assets in Hong Kong than under the 2013 will. The 3^rd defendant is the only son of the second fong.

13.  The estate itself is substantial in size. It is estimated that the assets in Hong Kong are worth about HK$500 million. The assets in Hong Kong mainly comprise the following:

(1)  cash in bank accounts totalling around HK$90 million;

(2)  insurance policies and securities; and

(3)  15 residential and industrial properties in Hong Kong. Most of them are held through Hong Kong incorporated companies, which were in turn owned or controlled by the deceased.

14.  Most of these Hong Kong properties have been rented out to generate rental income for the estate. The deceased also had one active business in Hong Kong, which is referred to as “the Kamfaith storage business”. It is a mini-storage business located in Chai Wan.

15.  By way of introduction, I should also refer to this allegation as disclosed in the pleadings in relation to a transfer which took place in November 2021, under which the deceased transferred his shares in a company referred to as “Yuk Sing” in this hearing to the 3^rd defendant for no consideration. The validity of this transfer is being challenged by the plaintiff as disclosed by the pleadings.

16.  In the meantime, pending the resolution of the present probate litigation, the plaintiff says that she and the 1^st defendant should be appointed as the administrators. Primarily this is because both of them were specifically named by the deceased as the joint executrices, whether under the 2013 will or under the 2021 will. The plaintiff’s contention today is also that given the nature of the estate, the administration would involve the conducting of fairly routine exercises such as the collection of rent and attending to tenancy matters, etc. And that does not justify spending money on engaging a professional administrator.

17.  On the other hand, the 1^st to 3^rd defendants submit that it is suitable to appoint an independent administrator because of potential conflict of interests between the plaintiff and the 1^st defendant, friction and hostility between the two of them on the administration of estate, and also the nature of the estate.

LEGAL PRINCIPLES

18.  The principles governing the appointment of administrators ad colligenda bona and administrators pendente lite are not in dispute between the parties.

19.  The court’s power to appoint them stems from sections 36 and 40 of the Probate and Administration Ordinance, Cap 10, respectively. The court does not automatically appoint such administrators whenever there is a pending probate dispute. The court only does so when it is necessary or expedient to do so. 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, in general, the principles cited recently by the Court of Appeal in Chow Lily v Chow Wai Wai Violet[2023] HKCA 167 at para 14.1.

20.  In the present case, the rival contentions are as to which candidate the court should appoint. I think the question to ask is – which candidate is better placed to discharge the duty for the administration of the estate given the circumstances.

DISCUSSION

21.  Having reviewed the evidence before me, I am of the view that an independent professional administrator should be appointed in respect of the estate. I have taken into account the following matters which I consider to be material factors which should weigh in the deliberation.

First, the deceased’s wish

22.  First, it is the plain wish of the deceased that the plaintiff and the 1^st defendant should jointly administer the estate. The two of them were named as the joint executrices in both the 2013 will and the 2021 will.

23.  A testator’s choice of a designated person to be an executor is relevant. It implies that the deceased at least reposed trust in that person and considered him to have been suitable and capable of performing the duties required.

24.  In the present case, I accept the plaintiff’s submission that based on the 2013 will and the 2021 will, it was the deceased’s express choice to have the plaintiff and the 1^st defendant jointly administer the estate. This factor goes to support the plaintiff’s position in today’s applications.

Second, the beneficiaries’ wishes

25.  The second matter that I have taken into account is the wishes of the beneficiaries as to whether an independent administrator should be appointed.

26.  The beneficiaries’ wishes are split. Apart from the second fong, there is no support for an independent administrator from the other two fongs. More specifically, the 4^th defendant takes a neutral stance on the appointment, but the 5^th to 8^th defendants have expressly stated that they would oppose the appointment of a professional administrator. They have not given any detailed reason for this position, but it has been said by some of them that such an appointment would cause depletion of the assets of the estate and is not justified.

27.  Similarly, this factor goes to support the plaintiff’s position.

28.  And based on these two factors, I think the starting point for me today is to take the view that the plaintiff and the 1^st defendant should be appointed as the administrators unless there is any reason for justifying otherwise.

Third, friction and hostility

29.  This takes me to the third matter which I consider to be material. As revealed by the evidence, there is clearly a degree of friction and hostility between the plaintiff and the 1^st defendant in the handling of assets of the estate to date. This friction and hostility can readily and palpably be felt.

30.  Upon a review of the evidence adduced so far in this action, such friction and hostility are serious and according to the plaintiff’s own evidence, it has already had the effect of impeding the administration of the assets so far. In the circumstances, I take the view that it is unrealistic to expect any smooth or meaningful cooperation between the two of them when it comes to the administration of the estate.

31.  On the finding of friction and hostility, I draw support from the following matters.

32.  First, the backdrop of course is the rival claims made by the different fongs in this probate action. The plaintiff is from the first fong. The 1^st defendant is from the second fong. These two fongs are asking the court to propound two different wills. Under the 2021 will, the 3^rd defendant would receive a much larger share of the estate than under the 2013 will. Now, of course, this factor alone is not evidence of actual hostility or friction. But I think it does set the scene when it comes to an evaluation of the relationship between the plaintiff and the 1^st defendant.

33.  Related to this point is an incident in Huizhou which took place in March 2022. According to the evidence, on that day, the plaintiff attended the deceased’s office in Huizhou, mainland China, and took away the business licence and seals of a PRC company referred to as “Yuk Sing PRC”. During the same incident, the 3^rd defendant also sent two lawyers to attend the office who suggested joint custody and management of the licence and seals. I will not go into any further detail of this Huizhou incident. But on the face of it, it is clearly a conflict and confrontation between the plaintiff and the 3^rd defendant. In fact, a few days after the incident, the 3^rd defendant sent a letter to the plaintiff and the 5^th defendant making very strong complaints about the action of the plaintiff.

34.  While this is a confrontation between the plaintiff and the 3^rd defendant, the 3^rd defendant being the son of the 1^st defendant and of a relatively young age of 25 years old, I think it may be said that this is on the whole a conflict and confrontation between the first fong and the second fong. Again, this factor alone is not direct actual evidence of conflict, friction or hostility between the plaintiff and the 1^st defendant when it comes to the administration of the estate. But again it sets the scene against which the relationship is to be evaluated.

35.  More vitally, secondly, the evidence of friction and hostility in fact comes from the plaintiff’s own evidence. In these applications, she has filed a number of affirmations. Most notable is her fifth affirmation. It runs to 66 pages long. In the affirmation, she sets out at great length and in great detail what she had been trying to do in order to handle the assets of the estate so far. In the process, she says that she has come across a lot of difficulties because of the action or inaction of the 1^st defendant. I need only to quote a few examples.

36.  In respect of a property called Yee Tsui Court, the plaintiff describes the 1^st defendant’s conduct as “plainly obstructive to the effective management of Yee Tsui Court”. The plaintiff in fact emphasises that this is not a single incident. She says that the 1^st defendant has been “wholly irresponsive to the affairs concerning the administration of the estate in many other instances”.

37.  In relation to the management of the Beverly Hills properties, the plaintiff describes the 1^st defendant’s attitude when dealing with the tenant as “utterly hostile”. Also, in relation to the management of the Beverly Hills properties, the plaintiff complains that her requests to the 1^st defendant have remained unanswered, like many of the queries she had raised concerning the administration of the estate.

38.  In respect of the management of the Kamfaith storage business, the plaintiff complains that the 1^st defendant has simply ignored her requests for accounting and ledger information of the business.

39.  In fact, in the fifth affirmation, there is a section entitled “Hostility of 1^st Defendant”. In this section, the plaintiff has described some allegations previously made by the 1^st defendant as “either short of truth or factually misleading”.

40.  Today is of course not an occasion to resolve or to make any factual findings as to who is in the right and who is in the wrong up to now. But what is clear from the evidence filed by the plaintiff herself is that there is serious friction and hostility and absence of trust between her and the 1^st defendant, and such friction and hostility had so far seriously affected her ability (or the 1^st defendant’s ability) to handle fairly routine matters, such as negotiation of new leases with tenants, settlement of management fees of real properties, staff salary, and their MPF contributions.

41.  In this hearing, the plaintiff is at pains to emphasise that the administration of this estate would be a straightforward exercise. This is because the estate comprises primarily real properties in Hong Kong and the administration would involve performing routine matters, such as settling expenditures, managing tenancies, etc. But the evidence filed by the plaintiff herself shows that even when it comes to such routine matters, because of the friction and hostility between the two individuals, these aspects of the administration of the estate had so far not been proceeded with smoothly and reasonably.

42.  There is also another matter which I will take into account, namely, the administrator would be given the power to investigate the Yuk Sing transfer referred to in the pleadings. In fact, very recently, the plaintiff commenced an action in HCA 235/2023. She sues as plaintiff in her capacity of an intended personal representative of the estate, seeking to nullify the Yuk Sing transfer. The defendants in that action, as I understand, are the 1^st to 3^rd defendants in the present probate action. There is clearly potential room for conflicts arising from such investigation and from such High Court action.

43.  To sum up, it is clearly the case that the friction and hostility between the two individuals have adversely affected their ability to manage or handle the assets of the estate so far.

44.  In view of such friction and hostility, nonetheless the plaintiff wants the court to appoint herself and the 1^st defendant as the provisional administrators because she takes the view that such an appointment by the court would formalise the arrangements for administering the estate, allowing the two individuals to proceed and cooperate in a clearer and more orderly manner. This is because if they are appointed, they will have the incentive to iron out their differences and only seek the court’s directions as a last resort. I do not think I can accept that submission. In light of the serious friction and hostility so far displayed between the two individuals, I find it unrealistic to expect that just because the court proceeds to make an order appointing them, that would prompt a change in the conduct of the two individuals.

Fourth, costs

45.  The fourth matter that I should take into account in the deliberation process is the costs that will be incurred if an independent professional administrator is appointed. It follows from my view that due to the friction and hostility between the plaintiff and the 1^st defendant that has had an adverse impact on the administration of the estate, it would seem justifiable for a professional administrator to be appointed.

46.  The next question to consider is the costs issue. No doubt such an appointment would come at a cost. I think the question is whether such costs would be disproportionate. Given the substantial size of the estate, I am of the view that the costs factor should not detract from the need of the court to appoint a professional administrator.

CONCLUSION

47.  For the above reasons, I consider that an independent administrator should be appointed in the meantime.

48.  The plaintiff suggests that if that is the view taken by the court, then she would ask for 14 days to come up with an alternative professional administrator who would be more economical.

49.  I was and am still reluctant to give more time to the plaintiff. If that is her fall-back position, this fall-back position should have been sorted out and worked out before today’s hearing. However, the 1^st to 3^rd defendants in fact agree to give some time to the plaintiff to explore the alternative option.

50.  In light of the agreement of the 1^st to 3^rd defendants, I would agree that the parties should be given 14 days to try to agree on an alternative professional administrator – so they will have 14 days not only to nominate an alternative but also to agree on one. If no agreement can be reached, then I think that is the end of the fall-back position, and the court will proceed to appoint Mr Ip to be the administrator.

51.  I will therefore direct the parties to report to the court within 14 days from today whether an agreement is reached as to an alternative professional administrator and, if so, his credentials and his fee proposal. At the same time the parties should jointly lodge a draft order in respect of such appointment. If no agreement is reached between the parties within the timeframe, then the court shall proceed to appoint Mr Ip to be the professional administrator. I would direct the 1^st to 3^rd defendants to submit a revised draft order for approval. The revised draft should deal with the fee proposal of Mr Ip. So that would be my decision.

(Discussion re costs)

52.  So this is my order on costs. I order that 70% of the costs of the plaintiff and the full costs of the 1^st to 3^rd defendants incurred on the two summonses be paid out from the estate. In my view, the plaintiff should bear a portion of her costs as she has filed lengthy affirmations which in part contained matters which are not relevant to the summonses, and that has the effect of prolonging the applications and escalating costs unnecessarily.

Mr Thomas Wong, instructed by So, Lung and Associates, for the plaintiff

Mr Matthew Ho, instructed by Kwok Hei Law Office, for the 1^st to 3^rd defendants

Attendance of the 4^th defendant was excused

The 5^th to 8^th defendants were not represented and did not appear