Law Wai Hay v. Law Po Chong Priscilla, The Administrator of the Estate of Cheung Wai Fun
Read the full judgment text of CACV 91/2014 on BabelCite. This Court of Appeal judgment was delivered on 16 October 2015.
1. I agree with Yuen JA’s reasons for judgment.
Cited by 1 case · Cites 1 case
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CACV 91/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO. 91 OF 2014 (ON APPEAL FROM HCMP NO. 3477 OF 2013) _______________________
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__________________________ REASONS FOR JUDGMENT __________________________ Hon Lam VP: 1.I agree with Yuen JA’s reasons for judgment. Hon Yuen JA: 2.1.This is the appeal of the defendant (the administratrix of the estate of Madam Cheung Wai Fun, deceased) against an Order made by Deputy High Court Judge B. Chu (now B. Chu, J) on 11 April 2014 that the defendant render accounts within 28 days and complete the administration of the estate within 42 days of the Order. 2.2.There was also a summons issued by the defendant for leave to adduce fresh evidence on appeal which we considered de bene esse. 2.3.At the conclusion of the hearing, we dismissed the appeal and the summons. After hearing both counsel, we summarily assessed the costs of the appeal at $80,000 and ordered that the defendant pay those costs personally (not out of the estate) to the plaintiff. My reasons appear below. Background 3.1.Madam Cheung (“the Deceased”) died at home sometime between 31 October and 1 November 2011 aged 81 years, intestate. 3.2.It is common ground that the Deceased was pre-deceased by her husband Lo (or Law) Sheung Kim (“Mr Lo”). 3.3.On 5 September 2012, the defendant made an affirmation in support of her application to be administratrix of the Deceased’s estate in which she stated the following:
4.1.On 18 September 2012, Letters of Administration were granted to the defendant. 4.2.The estate included credit balances in bank accounts, a securities account and a flat which the defendant sold in 2013. 5.On 16 October 2013, the plaintiff through his solicitors wrote to the defendant demanding an account and payment of certain sums. The defendant did not reply. 6.1.On 31 December 2013, the plaintiff issued an originating summons (“the OS”) for:
6.2.An affirmation in support of the OS was filed by the plaintiff on the same day. One of the documentary exhibits was a notarial certificate issued by the Guangzhou Notary Public Office (“GZ NPO”) dated 28 September 2012 (“the GZ notarial certificate”) which certified that the plaintiff was born in Guangzhou City, Guangdong Province on 23 September 1954, that his father is Mr Lo and that his mother is the Deceased. It is common ground that the plaintiff does not have a birth certificate. 6.3.On 12 February 2014, the defendant filed an affirmation containing, among other matters, a query whether the plaintiff was the Deceased’s son (although there was no direct assertion that he was not). 6.4.This was followed by an affirmation from the plaintiff in reply exhibiting, among other things, a statutory declaration made by the Deceased herself on 6 May 1960 (“the SD”) stating:
Hearing 7.On 11 April 2014 the learned judge heard the OS and made the Order mentioned earlier in this Judgment. 8.On 12 May 2014 the judge handed down written reasons for her Order. Notice of Appeal 9.On 25 April 2014 the defendant lodged a notice of appeal. The grounds may be summarized as follows:
Application to adduce fresh evidence 10.1.On 25 September 2015, the defendant applied by summons to adduce fresh evidence, being her affirmation of the same date with various exhibits. The fresh evidence (which we considered de bene esse) may be summarized as follows.
10.2.The plaintiff objected to the application to adduce fresh evidence on the ground that the three conditions of Ladd v Marshall [1954] 1 WLR 1489 had not been satisfied, ie (1) such evidence could not have been obtained at the hearing below with reasonable diligence; (2) it would, or might, if believed, have a very important effect on the mind of the judge; and (3) it is of a sort which inherently is not improbable. 10.3.The plaintiff himself also filed fresh evidence in the form of a notarial certificate (“the GD Province notarial certificate”) issued on 31 March 1992 by the Guangdong Province Notary Public Office (“GDP NPO”), which certified, after conducting inquiries with 羅湘泉 (Mr Lo Sheung Chuen) a brother of Mr Lo and his wife, that the plaintiff was the son of Mr Lo and the Deceased. Presumably this was the “previous different version of notarial certificate (back in the 1990’s)” referred to in ground 4 of the defendant’s notice of appeal. 10.4.As mentioned earlier, we considered all the fresh evidence de bene esse. Discussion 11.1.In relation to grounds 1-3 of the notice of appeal as summarized above, Mr Desmond Leung, the defendant’s counsel, accepted that the defendant had not asked the judge for an adjournment in order that she could adduce evidence to challenge the GZ notarial certificate. This is confirmed by the Transcript. Mr Leung referred the court to Chan Chiu Yin v Chan Ki Kau CACV468/2001, unrep. 28 May 2003 but the factual circumstances of that case were entirely different. First, that appeal was concerned with proceedings in the Lands Tribunal, which governing statute contains a requirement that proceedings be conducted informally. More importantly, in that case one of the parties had at an earlier hearing raised a specific point, which apparently the presiding officer had forgotten by the time of the subsequent hearing. The court of appeal held that the presiding officer’s failure to deal with that point was an irregularity rendering the proceedings amenable to appeal. Mr Leung was unable to formulate any irregularity in the present case. That is the end of the matter as far as grounds 1-3 are concerned. 11.2.However, even if something said by the defendant during her oral submissions could somehow be regarded as an application to the judge for an adjournment, it would have been within the judge’s case management powers to refuse the application. The GZ notarial certificate had been exhibited to the plaintiff’s affirmation filed on 31 December 2013. The hearing before the judge was held on 11 April 2014. The defendant had more than three months to challenge the notarial certificate, but failed to take any steps to do so. 11.3.Moreover, it is not an excuse for the defendant to say that she was not legally represented and that she thought the hearing on 11 April 2014 was only a call-over. The Rules of the High Court are available for all to read. Order 28 rule 4(1) RHC states that if the liability of the defendant to the plaintiff is established, an order may be made at the hearing of the OS. 12.1.In any event, having considered the fresh evidence de bene esse, it is clear that the fresh evidence that the defendant sought to adduce would not have assisted her case. First, the defendant’s attempts to review the notarial certificates were unsuccessful. After considering the defendant’s materials on review, the SC NPO has concluded that there are no grounds to set aside its notarial certificate. As (on the defendant’s case) the GZ NPO issued its notarial certificate in reliance on the SC notarial certificate, it is reasonable to assume that the same applies to the GZ notarial certificate. 12.2.Second, Mr Auyeung’s opinion would not have assisted the defendant either (even assuming that directions had been sought and given under Order 38 rule 36 RHC for adducing this opinion as expert evidence on PRC law).
Consequently, Mr Auyeung’s opinion would not have assisted the defendant in her effort to show that the notarial certificates were somehow invalid. 13.Coming then to ground 4, this referred to “suspicious circumstances” under which the GZ notarial certificate was obtained. The only substantive ground put forward by the defendant was that there was a “previous different version of notarial certificate (back in the 1990's)” which the plaintiff had not produced (which has now been produced). 14.1.In any event and most importantly, the notarial certificates were really in the nature of “red herrings”. The true issue was whether the defendant could show, as a defence to the OS, that the plaintiff lacked status because he is not the Deceased’s son. In this regard, it is abundantly clear that the judge took into account - not only the GZ notarial certificate - but also the following documentary evidence:
14.2.Of the documentary evidence listed above, the last two are crucial because they emanated – long before these proceedings commenced -- from the people who knew best whether the plaintiff is the Deceased’s son (viz Mr Lo and the Deceased), and of those two documents, the Deceased’s own SD is the best and strongest evidence on the issue. 14.3.In the SD the Deceased refers to the plaintiff as her son. On a natural and ordinary reading of the words, it is clear and unequivocal. More importantly, irrespective of whether the SD was made for the purpose of proving the plaintiff’s age to enter school, it was a statement made under oath. As such, it would require very strong evidence for doubt to be thrown on its veracity. As the defendant’s own counsel accepts, there is not a shred of evidence that the plaintiff had been adopted. So when the Deceased herself had said – on oath – that the plaintiff is her son, a matter on which she had personal, first-hand knowledge, the defendant would have to produce strong evidence to refute it. Speculation and peripheral evidence would not suffice. 14.4.As noted earlier, the defendant’s own affirmation does not contain a direct assertion that the Deceased had told her that the plaintiff is not her son. Her affirmation has only sought to put a suspicious slant on statements or events which are otherwise innocuous. The affirmation did nothing to discredit the Deceased’s clear and unequivocal sworn statement. 15.As for ground 6, the defendant’s affirmation before the judge never indicated that she needed any financial documents from the plaintiff before she could render an account or complete the administration. It is clear from the Transcript that at no stage during the hearing before the judge did the defendant claim that it would be “impossible” to comply with the Order. On the contrary, the defendant indicated that she wished to have 28 days (instead of 14) to render accounts, and to have 42 days (instead of 28) to complete the administration. Ground 6 is clearly an after-thought, or a delaying tactic, neither of which this court should entertain. 16.1.Finally there is Madam Mok’s affirmation. First, it is not clear to which ground of appeal this is directed. Ground 5 of the Notice of Appeal only gives notice that the defendant may apply to adduce fresh evidence. It is not a substantive ground of appeal. 16.2.Be that as it may, having considered the evidence de bene esse, Madam Mok’s affirmation would not have been of assistance to the defendant either. The following gaps in the affirmation are notable:
16.3.Therefore, even if one ignores the failure to satisfy even the very first condition of Ladd v Marshall, Madam Mok’s affirmation would not have swung the case in the defendant’s favour when placed against the Deceased’s own sworn statement that the plaintiff is her son. Order 17.For the reasons set out above, the summons for leave to adduce fresh evidence and the appeal were dismissed. At the conclusion of the hearing, we considered the plaintiff’s written statement of costs and the comments thereon from the defendant’s counsel. On a summary assessment, we ordered the defendant to pay personally (not out of the estate) the plaintiff’s costs of $80,000. Hon Chu JA: 18.I agree with Yuen JA’s reasons for judgment.
Mr Desmond Leung, instructed by Deacons, for the defendant Ms Rachael Siu, instructed by Lim & Lok, for the plaintiff |
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