Lam Chung Wai v. Lam Hi Way

HCAP 29/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 29 OF 2015

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Before:  Hon Chow J in Court

Dates of Hearing:  7-9 November 2017 and 15 December 2017

Date of Judgment:  15 December 2017

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JUDGMENT

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INTRODUCTION

1.The plaintiff and the defendant are brothers, and the only executors and trustees named in the will of their late mother.  In this action, each of them contends that the other should be removed as executor of the will, and probate of the will should be granted to the remaining executor.  Each of them is also adamant that he cannot work with the other as co-executors and thus the court should not grant probate of the will to the two of them jointly.  The issue which I have to determine is whether the plaintiff or the defendant or both should be removed as executor(s) of the will and, in the last mentioned scenario, who should be appointed as administrator of the estate.

BASIC FACTS

( i)   Personal background

2.Mr Lam San Chung (“Mr Lam”) and Madam Lee Seen Yee (“Madam Lee”) had two sons, namely, the defendant and the plaintiff, born in 1947 and 1948 respectively.

3.Mr Lam was a successful businessman and accumulated some wealth during his lifetime.  Madam Lee was a housewife.

4.In 1975, Mr Lam purchased a property known as Flat A, 5/F, Block A, Tempo Court, 4 Braemar Hill Road, Hong Kong (“Flat 5A”) in the names of the plaintiff and the defendant as tenants-in-common.  Mr Lam and Madam Lee had been residing in Flat 5A until they passed away in 2007 and 2012 respectively.

5.Since 1983, the defendant has been residing in a property known as Flat D, 5/F, Block B, Tempo Court, 4 Braemar Hill Road, Hong Kong (“Flat 5D”) purchased by Mr Lam in the name of a company more particularly described below.

6.In 1998, Mr Lam and Madam Lee as joint tenants purchased another property known as Flat D, 19/F, Two Island Place, Island Place, 55 Tanner Road, Hong Kong (“Flat 19D”).  The plaintiff has been residing in that property since 1998, save that during the period of time after the death of Mr Lam he lived with her mother at Flat 5A until she passed away in 2012.

7.During her lifetime, Madam Lee had rented two safe deposit boxes (“the Safe Deposit Boxes”) at the North Point Branch of Hang Seng Bank for many years.  In or about 2006, the defendant became the co‑signer of the Safe Deposit Boxes.

(ii)  Golden Boat Enterprises Limited

8.In or about 1974, Mr Lam and Madam Lee incorporated a company originally known as Grand Instruments Company Limited and now known as Golden Boat Enterprises Limited (“Golden Boat”).

9.Golden Boat is the registered owner of the following properties purchased during the lifetime of Mr Lam:-

(1) Shop B, G/F, Wing Shing Building, 25-35 Castle Peak Road and 116 Yen Chow Street, Kowloon;

(2) 7/F, Fabrico Factory Building, 78-84 Kwai Cheong Road, Kwai Chung, New Territories;

(3) G/F & Mezz Floor (Flat A on G/F & Mezz Floor), Dun Tak Mansion, 33 Dundas Street, Kowloon;

(4) Flat 5D; and

(5) Unit 404A, 4/F, Fortress Tower, 250 King’s Road, Hong Kong (hereinafter collectively referred to as “the Properties”).

10.The plaintiff and the defendant are currently the only directors and shareholders (holding 90 shares and 110 shares respectively) of Golden Boat.

(iii)  The Will

11.Madam Lee passed away on 7 April 2012, leaving a will dated 9 February 2007 (“the Will”).  The authenticity of the Will is not in dispute.

12.The plaintiff and the defendant are the only executors and trustees named in the Will.  They are also the only beneficiaries of the residuary estate of Madam Lee in equal shares under the Will.

13.Pausing here, I should mention that although the authenticity of a will in a probate action may not be disputed, where a party seeks probate of the will in solemn form, it is still necessary for him to adduce evidence to prove that the will was duly executed by the testator (see Re Estate of Yau Wai Wah (No 1), HCAP 3/1998, 30 January 2003, at paragraphs 121 to 123 per Deputy High Court Judge Lam, as he then was; and Re Estate of Yau Wai Wah (No 2), HCAP 3/1998, 23 July 2003, at paragraphs 4 to 7).  In this case, neither party originally adduced any evidence to prove the due execution of the Will at the trial.  After the conclusion of final submissions by the parties on 9 November 2015, I granted them leave to adduce further evidence on that issue.  The parties have since submitted a statutory declaration of Mr Yan Siu Cheong Gary, a clerk to Ngai, Leung & Co and one of the attesting witnesses, to prove that the Will was duly executed by Madam Lee in his presence and in the presence of his principal, Mr Leung Siu Chuen.  I am satisfied on the basis of Mr Yan’s statutory declaration that the Will was duly executed by Madam Lee and should be admitted to probate.

(iv)  Sale of Flat 5A by court order

14.In or about mid-2012, shortly after the death of Madam Lee, the plaintiff commenced proceedings in the High Court (HCMP 2898/2012) for an order for the sale of Flat 5A which, as earlier mentioned, was held by the plaintiff and the defendants as tenants-in-common.  Apparently, the defendant was not willing to sell the property because it had been the residence of his parents for many years and he considered that it had great sentimental value.  The defendant says that the plaintiff’s insistence to sell the property was a source of considerable fiction between the two of them, and led to an unhappy incident on the occasion of the interment the ashes of their late mother’s body in early June 2012 which I do not consider it necessary to set out in this judgment.  On the other hand, the plaintiff alleges that the defendant did not want to sell Flat 5A because he wished it to be let to his son at a low rent and also because he wanted his son to live next to his home in the same residential development.  The defendant denies the plaintiff’s allegation, save that he admits that he did suggest to the plaintiff to let the property to his son so that there would be income generated from the property and thus there would be no need to sell it.  Be that as it may, the plaintiff ultimately prevailed and obtained a court order on 4 September 2013 for the sale of Flat 5A.  The sale of that property was completed in October 2014.

(v)  The plaintiff’s previous application for a grant of probate of the Will

15.On 16 November 2012, the plaintiff entered a caveat (HCCA 4702/2012) in the Probate Registry of the High Court against the sealing of any grant in the estate of Madam Lee without notice to him.

16.On 6 February 2013, the plaintiff made an ex parte application (HCEA 17/2013) for a grant of probate of the Will to him as one of the executors named therein based on a copy of the Will, on the ground that the original was then being kept by the defendant.  By a letter dated 28 February 2013 from the Probate Registry to Simon C W Yung & Co, the plaintiff’s solicitors were asked to justify the grant sought based on a copy of the Will where the original was not lost and had not been destroyed.  Apparently, the plaintiff’s solicitors did not respond to the Probate Registry’s letter and did not pursue the application any further.

(vi)  The plaintiff’s discovery that the defendant had accessed the Safe Deposit Boxes after the death of Madam Lee without his knowledge or approval

17.In December 2014, the defendant called the plaintiff and suggested that they should jointly apply for probate of the Will, and asked the plaintiff to attend the office of Ngai, Leung & Co to sign the necessary documents for the application.  The plaintiff agreed.

18.On 5 January 2015, the plaintiff and the defendant went to the office of Ngai, Leung & Co.  According to the plaintiff, he was shown on that occasion a statutory declaration made by the defendant dated 8 December 2014 in which the defendant stated that he had accessed the Safe Deposit Boxes on 14 April 2014 in order to prepare an inventory of Madam Lee’s assets and found the Safe Deposit Boxes to be empty.  The plaintiff was extremely angry about the defendant gaining access to the Safe Deposit Boxes just one week after the death of Madam Lee without his knowledge.  The plaintiff also did not believe that the Safe Deposit Boxes were empty as alleged.  On 7 January 2015, the plaintiff met with the defendant at the North Point Branch of Hang Seng Bank. In the presence of a clerk of Ngai, Leung & Co, two representatives from the Home Affairs Department and two representatives from the bank, the Safe Deposit Boxes were opened and found to be empty.  The plaintiff could not control his temper at that moment and yelled at the defendant, and left the bank shortly afterwards.  He also refused to continue to engage Ngai, Leung & Co to apply for probate of the Will jointly with the defendant, having lost his trust in him.

19.It is the plaintiff’s case that the defendant emptied the Safe Deposit Boxes on 14 April 2012 and took various items belonging to his mother without his knowledge or approval, and that the defendant has failed to account for the whereabouts of those items, or some of them (see paragraph 11 of the Statement of Claim).  I shall come back to this allegation of the plaintiff later in this judgment.

(vii)   The present action

20.On 16 February 2015, the plaintiff entered another caveat (HCCA 848/2015) in the Probate Registry of the High Court against the sealing of any grant in the estate of Madam Lee without notice to him.

21.On 14 May 2015, the defendant made an ex parte application (HCAG 6505/2015) for probate of the Will to be granted to him as one of the executors thereof, with power being reserved to the plaintiff to apply for and obtain double probate of the Will.  On 4 June 2015, the Probate Registry informed the defendant’s solicitors, Tony Au & Partners, that a caveat (HCCA 848/2015) had been entered against the sealing of any grant in respect of the estate of Madam Lee.  On 8 July 2015, the defendant issued to the plaintiff a “Warning to Caveator”.  On 15 July 2015, the plaintiff entered an “Appearing to Warning”. Eventually, on 24 September 2015, Master Lai made an order that the plaintiff’s caveat in HCCA 848/2015 would remain in force until the commencement of a probate action by the plaintiff or the expiry of 21 days from the date of that order.

22.On 14 October 2015, the plaintiff commenced the present action seeking, inter alia, the removal of the defendant as co-executor of the Will, and a grant of probate of the Will in solemn form to him as the sole executor of the Will.

23.By his counterclaim dated 13 January 2016, the defendant sought an order that the plaintiff be passed over as co-executor of the Will and a grant of probate to him as the sole executor of the Will.

THE PLAINTIFF’S FIRST COMPLAINT – DEFENDANT’S DELAY IN OBTAINING A JOINT GRANT

24.In the Statement of Claim, the plaintiff raises two complaints against the defendant in support of his claim for the removal of the defendant as executor of the Will, namely:-

(1) delay in obtaining a joint grant of probate of the Will; and

(2) removal of items from the Safe Deposit Boxes without the knowledge or approval of the plaintiff.

25.The basic facts relevant to the plaintiff’s first complaint are as follows.  On 24 July 2012 (some 3 months after the death of Madam Lee), the plaintiff sent an email to the defendant proposing, inter alia, to:-

(1) withdraw all monies in Madam Lee’s bank account at Hang Seng Bank to be shared equally between the two of them;

(2) jointly apply for a grant of probate of the Will, and

(3) sell Flat 5A and divide up the proceeds of sale of the property equally between the two of them.

26.The defendant replied by an email dated 4 August 2012.  In that email, the defendant stated that:-

(1) the estate of Madam Lee comprised (a) Flat 19D and (b) a bank account, apparently a reference to the bank account at Hang Seng Bank mentioned by the plaintiff in his previous email, which was used to receive old age allowance during Madam Lee’s lifetime;

(2) in so far as Flat 19D was concerned, it was being occupied by the plaintiff;

(3) in so far as Madam Lee’s bank account was concerned, the relevant bank passbook was also being kept by the plaintiff;

(4) there was no urgency in dealing with the estate at that time; and

(5) the application for probate of the Will could be made later.

27.The plaintiff, through his solicitors (Simon C W Yung & Co), sent three further letters to the defendant dated 21 September 2012, 10 October 2012 and 31 October 2012 respectively chasing him for a reply on whether he would apply, jointly with the plaintiff, for a grant of probate of the Will, or release the original Will to the plaintiff so that he could apply for a grant himself.  The defendant did not, apparently, respond to those letters.

28.The subsequent history leading to the commencement of the present action has been summarized above and shall not be repeated here.  As earlier mentioned, the defendant made an application for probate of the Will in May 2015.

29.The defendant’s answer to the plaintiff’s complaint of delay is, essentially, that:-

(1) there was indeed no urgency to obtain probate of the Will because the plaintiff was residing in Flat 19D, being the major asset comprised in the estate of Madam Lee, without payment of any rent; and

(2) he was then engaged in a dispute with the plaintiff over the latter’s proposal to sell Flat 5A and, in order to avoid further tension with the plaintiff, he wished to deal with that dispute first before dealing with the estate of Madam Lee.

30.I accept the defendant’s explanation for wishing to defer the application for probate of the Will which I consider to be understandable in the circumstances.  In any event, there was nothing to prevent the plaintiff from proceeding with his application in HCEA 17/2013 made in February 2013 for the grant of probate of the Will to him alone.  It is not an excuse for the plaintiff’s failure to pursue that application after receiving the Probate Registry’s letter of 28 February 2013 that he could not produce the original Will, because there was a simple procedure available to him to compel the defendant to produce the original Will under section 7(3) of the Probate and Administration Ordinance, Cap 10 (“the Ordinance”) and rule 49(2) of the Non-Contentious Probate Rules, Cap 10A (see the decision of the Court of Appeal in Lau Cho Kun v Lau Siang Kok Lionel, CACV 212/2012, 30 July 2013, at paragraph 47). In this regard, the plaintiff was at all material times legally represented, and there is no suggestion that he was not properly advised on how he could compel the defendant to produce the original Will.

31.Moreover, the plaintiff did not commence the present probate action until more than two and a half years later (in October 2015), after the defendant had made an application (HCAG 6505/2015) for probate of the Will in May 2015.

32.In all, I consider that both parties were responsible for the failure to obtain probate of the Will earlier.  I do not accept that the defendant’s delay (if any) in obtaining a joint grant to be a good enough reason to remove him as executor of the Will.

THE PLAINTIFF’S SECOND COMPLAINT – REMOVAL OF ITEMS BELONGING TO MADAM LEE FROM THE SAFE DEPOSIT BOXES

33.In respect of the second complaint, the plaintiff’s case, as pleaded in paragraphs 10 and 11 of the Statement of Claim, is as follows:-

(1) The Safe Deposit Boxes “ought to have” contained the following items, namely, title deeds relating to Flat 19D and the Properties, Madam Lee’s jewellery, old bank notes kept by Mr Lam, a pair of Omega watches, and the original Will.

(2) The defendant, on 14 April 2012, gained access to the Safe Deposit Boxes and emptied the contents therefrom without the knowledge or approval of the plaintiff.

(3) Up to now, the defendant has failed to account to the plaintiff for the whereabouts of the jewellery, old bank notes and Omega watches.

34.Pausing here, I should mention that:-

(1) There is no dispute that the titles deeds of the Properties are in the defendant’s possession, and that the original Will has been lodged with the court by the defendant pursuant to Order 76, rule 5 of the Rules of the High Court, Cap 4A.

(2) The old bank notes and the Omaga watches (if they ever existed) would originally have belonged to Mr Lam.  It does not seem to be in dispute, however, that after the death of Mr Lam, they became Madam Lee’s properties.

35.The defendant denies that he removed the aforesaid items from the Safe Deposit Boxes, whether on 14 April 2012 or at any other time, as alleged by the plaintiff.  In his Defence and Counterclaim, the defendant further pleads as follows:-

(1) Madam Lee had, since about 2006, passed the Safe Deposit Boxes to him for his use.  On the day when Madam Lee completed the bank’s procedure for authorizing the defendant to use the Safe Deposit Boxes, she took away all her belongings from the Safe Deposit Boxes and passed all the keys to the defendant.  Thereafter, the defendant occasionally stored his personal items in the Safe Deposit Boxes and also removed them from the Safe Deposit Boxes.

(2) After the death of Madam Lee, the defendant inspected the Safe Deposit Boxes on 14 April 2012 to ensure that there were no personal items belonging to Madam Lee or to him left inside the Safe Deposit Boxes.  According to the defendant, the Safe Deposit Boxes were confirmed to be empty as at 14 April 2012.

(3) The Safe Deposit Boxes did not contain the 6 sets of title deeds because they were thick and voluminous and the two Safe Deposit Boxes were not large enough to accommodate them.

(4) The Will was never kept in the Safe Deposit Boxes, but had been kept by the defendant in his home since about mid-2007 after he had received it from Ngai, Leung & Co.

(5) The defendant had no information or knowledge whatsoever as to the particulars or existence of the jewellery, old bank notes and Omaga watches mentioned by the plaintiff.

36.In the defendant’s witness statement, which he confirmed and adopted as his evidence in chief, he stated that:-

(1) Madam Lee had rented the Safe Deposit Boxes for over 20 years.

(2) In 2006, she let him have the use of the Safe Deposit Boxes because “demand for safe deposit boxes was greater than supply” and he was not successful in renting another safe deposit box himself, and Madam Lee was getting old and did not wish to go back and forth between her home and the bank.

(3) Prior to handing over the use of the Safe Deposit Boxes to the defendant, Madam Lee had taken away all her belongings from the Safe Deposit Boxes.

(4) Madam Lee gave all the keys to the Safe Deposit Boxes (two keys each) to the defendant.

(5) Afterwards, the defendant used the Safe Deposit Boxes to keep his personal belongings, including birth certificate, graduation certificate(s), marriage certificate, bank documents, and other commemorative items.

(6) The defendant accessed the Safe Deposit Boxes on 14 April 2012 in order to confirm or re-confirm that there were no personal items belonging to him or to Madam Lee left inside the Safe Deposit Boxes.

37.In his oral evidence, the defendant said that:-

(1) Prior to giving him the keys to the Safe Deposit Boxes, he saw Madam Lee remove 3 bags of items from the Safe Deposit Boxes.  He did not, however, know what was inside the 3 bags and he did not ask her where she intended to keep them.

(2) At the time when Madam Lee let him have the use of the Safe Deposit Boxes in 2006, he had already the use of one other safe deposit box rented in the name of himself and his wife at the City Garden Branch of Hang Seng Bank, but that safe deposit box was not sufficient for his needs.

(3) Between 2006 and 2012, he rented two other safe deposit boxes at Dah Sing Bank.

(4) Prior to the death of Madam Lee, he had removed his own personal items from the Safe Deposit Boxes.  Originally, he said that they were moved to his safe deposit box at the City Garden Branch of Hang Seng Bank, but later he said that they were moved to the new safe deposit boxes at Dah Sing Bank.  The defendant said he could not remember the date on which that happened.  He also accepted that he had not used the Safe Deposit Boxes for about one year or more prior to the death of Madam Lee.

38.There are a number of inherent difficulties in the plaintiff’s allegation that the defendant removed various items belonging to Madam Lee mentioned in paragraph 33(1) above from the Safe Deposit Boxes on 14 April 2012.  In particular:-

(1) In so far as the title deeds of the Properties and Flat 19D are concerned, as pointed out by the defendant, the Safe Deposit Boxes, each of 5 inches x 10 inches x 24 inches in dimension, were not large enough to accommodate all those title deeds.  The plaintiff did not, apparently, dispute that this was indeed the position, but said, when pressed in cross examination, that Mr Lam might have extracted 3 or 4 important pages from the title deeds and put them in the Safe Deposit Boxes. It is, in my view, inherently improbable that an ordinary owner of a property would physically remove a few pages from an original title deed or a set of original title deeds and keep them separately from the bulk of the title deeds.

(2) In so far as the jewellery is concerned, it is not in dispute that Madam Lee used to have some jewellery.  However, apart from some general descriptions given in his answer to the defendant’s request for further and better particulars, the plaintiff is unable to provide any specific details about the jewellery which was allegedly kept by Madam Lee in the Safe Deposit Boxes (other than saying that there were more than 10 items).  Significantly, according to the plaintiff, the last time that he accompanied Madam Lee to go to Hang Seng Bank to put her jewellery back into the Safe Deposit Boxes was in 2002/2003 (see paragraph 16 of the plaintiff’s witness statement and his evidence given in cross examination), or even earlier in 1991/1992, some 15 to 16 years prior to the death of Mr Lam in 2007 (as per his answer to a question put by the court towards the end of his oral evidence).  The plaintiff accepted in his evidence he never had actual sight of the Safe Deposit Boxes nor their contents during the lifetime of Madam Lee on each occasion that he accompanied her to go to the bank.  The plaintiff said that he could not find Madam Lee’s jewellery in her home at Flat 5A after her death, but it cannot be inferred from this fact alone that she must have kept them in the Safe Deposit Boxes as at the date of her death.

(3) In so far as the old bank notes are concerned, the plaintiff says that Mr Lam once shown him a large brown colour bank note in Mr Lam’s bedroom and that incident occurred about 10 years prior to the death of Mr Lam (ie in or about 1997).  The plaintiff has not seen any other old bank notes allegedly kept by Mr Lam.  The plaintiff also says that Mr Lam told him that he had a few more old bank notes kept in the Safe Deposit Boxes, but is unable to give any further details about those bank notes.

(4) In so far as the pair of Omaga watches are concerned, the plaintiff’s evidence is even more uncertain.  He accepts that he has never seen those watches.  His case is based on what Mr Lam allegedly said to him, on two occasions which occurred at least 15 years prior to his death in 2007, that he had to take them out from the Safe Deposit Boxes for “oiling” and complained that the charges were high.

(5) Finally, in so far as the Will is concerned, the plaintiff previously said, in his affirmation dated 30 January 2013 which was filed in support of his ex parte application in HCEA 17/2013 for a grant of probate of the Will to him as one of the executors named therein, that “[a]fter due execution of the will, the original Will was given to my Brother [ie the defendant] and I kept a copy thereof”.   There is also direct evidence by the defendant (which I accept) that, after the Will had been executed by Madam Lee in 2007, he received it from Ngai, Leung & Co and kept it in his home.  There is, I consider, no reasonable basis for the plaintiff to allege that the defendant removed the original Will from the Safe Deposit Boxes on 14 April 2012.

39.These having been said, the defendant’s evidence summarized above is not without difficulties either. On behalf of the plaintiff, Mr Lin strongly submits that the defendant’s evidence should be rejected.  Mr Lin’s submissions are fully set out in paragraphs 16 to 29 of his written closing submissions which I do not propose to repeat in this judgment.  His major criticisms of the defendant’s evidence include the following:-

(1) The defendant made no mention of his safe deposit box at the City Garden Branch of Hang Seng Bank, or his two other safe deposit boxes at Dah Sing Bank, in his witness statement.  The defendant was also very evasive as to when those safe deposit boxes were opened.

(2) The defendant was coy as to the time when he removed his own items from the Safe Deposit Boxes. The effect of his evidence is that it occurred about one year, or more than one year, prior to the death of Madam Lee.

(3) The defendant revealed for the first time in his oral evidence that he saw Madam Lee remove 3 bags of items from the Safe Deposit Boxes prior to giving him the keys to the Safe Deposit Boxes.

(4) The defendant’s evidence that he had one safe deposit box at the City Garden Branch of Hang Seng Bank in 2006 was not consistent with paragraph 24 of his witness statement which stated that demand for safe deposit boxes was greater than supply and he was not successful in renting another safe deposit box himself.

(5) Since the defendant claimed that he needed only one additional safe deposit box, there was no good reason why Madam Lee did not retain one to keep the 3 bags of items and let the defendant have the use of the other Safe Deposit Box.

(6) The defendant failed to give any convincing explanation as to why, after he had removed all his personal items from the Safe Deposit Boxes, he did not ask Madam Lee to put her valuable items back into the Safe Deposit Boxes or close the Safe Deposit Boxes to save unnecessary rental payments.

(7) If the defendant had removed all his personal belongings from the Safe Deposit Boxes about one year prior to the death of Madam Lee, there was no hurry for him to access the Safe Deposit Boxes shortly after the death of Madam Lee and in the absence of the plaintiff in order to confirm that the Safe Deposit Boxes were empty.

(8) The defendant did not inform the plaintiff that he had gained access to the Safe Deposit Boxes on 14 April 2012 until 5 January 2015.

(9) The defendant was not truthful when he said in his Statutory Declaration dated 8 December 2014 that he accessed the Safe Deposit Boxes on 14 April 2012 for the purpose of preparing an inventory of the assets of Madam Lee.  The same, untruthful, explanation was repeated in a letter sent by his solicitors (Tong Au & Partners) to the plaintiff’s solicitors (Winnie Leung & Co) dated 21 April 2015.  In his evidence, the defendant maintained that he accessed the Safe Deposit Boxes on 14 April 2012, not to prepare an inventory of the assets of Madam Lee, but to confirm that there were no personal items belonging to Madam Lee left inside the Safe Deposit Boxes.

40.At the conclusion of the hearing on 9 November 2017, the court, with the agreement of the parties, granted leave to the defendant to adduce bank records relating to (i) the holders, and (ii) the dates of opening, of the various safe deposit boxes mentioned by him in the course of his oral evidence.  On 30 November 2017, the defendant filed his second affirmation exhibiting 3 receipts for the safe deposit boxes.  Those documents show that:-

(1) a safe deposit box was opened in the name of the defendant and his wife at the City Garden Branch of Hang Seng Bank on 28 June 2003; and

(2) two safe deposit boxes were opened, each in the name of the defendant and his wife, at Dah Sing Bank on 13 November 2013.

41.In his second affirmation, the defendant stated, at paragraphs 4 and 5 thereof, that:-

(1) his oral evidence regarding the date on which the two safe deposit boxes at Dah Sing bank were opened was mistaken; and

(2) he could not recollect clearly the relevant date because matters relating to the opening of the safe deposit boxes were handled by his wife.

42.In his further submissions dated 5 December 2017, Mr Lin objects to the admission of the defendant’s second affirmation on the ground that (i) the court did not grant him leave to adduce such additional evidence, and (ii) the defendant had closed his case and the plaintiff had no opportunity to test his new evidence by way of cross examination.  The fact that the defendant’s two safe deposit boxes at Dah Sing Bank were only opened in November 2013, as evidenced by the aforesaid receipts, is potentially very damaging to the defendant’s case, because it shows that the defendant could not possibly have removed all his own personal items from the Safe Deposit Boxes to the two safe deposit boxes at Dah Sing Bank prior to the death of Madam Lee.  On the other hand, if the defendant had not yet removed his personal items from the Safe Deposit Boxes prior to the death of Madam Lee, his evidence that he accessed the Safe Deposit Boxes on 14 April 2012 in order to confirm, inter alia, that there were no personal items belonging to him left inside the Safe Deposit Boxes and that they were found to be empty on that occasion would be open to serious doubts.

43.With a view to giving the defendant an opportunity to explain the above difficulties or inconsistencies in his evidence, the court, on 8 December 2017, gave a direction that “[s]ubject to the court's ruling on the admissibility of the said second affirmation of the defendant, the defendant shall attend the court on 15 December 2017 at 10:00 am for further cross examination if required”.  However, in Ms Lui’s further submissions dated 11 December 2017, Ms Lui informed the court that given the plaintiff’s objection, the defendant would no longer rely on the contents of his second affirmation, and “[f]urther cross-examination of the defendant will unlikely be necessary” and the defendant asked to be excused from attending the hearing on 15 December 2017.  This morning, Ms Lui confirmed that the defendant would withdraw his second affirmation and she would not apply to re-call the defendant to give evidence.  The 3 receipts were, however, admitted with the consent of the parties.  The upshot of the matter is that the defendant chose not to explain the aforesaid difficulties or inconsistencies in his evidence, even though he was given, or might have been given, an opportunity to do so.

44.In relation to Mr Lin’s criticisms of the defendant’s evidence:-

(1) I do not attach much weight to the points mentioned in paragraph 39(1) and (3) above that the defendant failed to refer in his witness statement to (i) his other safe deposit boxes at Hang Seng Bank and Dah Sing Bank, and (2) the fact that Madam Lee removed 3 bags of items from the Safe Deposit Boxes prior to giving him the keys to them.  The omissions do not render the defendant’s witness statement misleading.  There could be many reasons why those matters were not referred to in the defendant’s witness statement, eg the defendant did not appreciate their significance at the time of the preparation of the statement, or he was not asked relevant questions at that time which would prompt him to mention those matters.

(2) The various points referred in paragraph 39(5), (6), (7) or (8) above are mostly argumentative, and do not show or prove that the defendant removed items belonging to Madam Lee from the Safe Deposit Boxes on 14 April 2012.

45.I am, however, not able to treat the other criticisms of the defendant’s evidence so lightly. There is, I consider, force in Mr Lin’s submission that the fact that the defendant already had one safe deposit box at Hang Seng Bank in 2006 does not sit well with his evidence at paragraph 24 of his witness statement (see paragraph 39(4) above).

46.I reject the defendant’s evidence that he had, prior to the death of Madam Lee, removed all his personal items from the Safe Deposit Boxes to the two safe deposit boxes at Dah Sing Bank, which could not possibly have happened.  I also reject his evidence that he accessed the Safe Deposit Boxes on 14 April 2012 in order to confirm, inter alia, that there were no personal items belonging to him left inside the Safe Deposit Boxes or that they were found to be empty on that occasion.

47.The defendant’s statement in the Statutory Declaration that he accessed the Safe Deposit Boxes on 14 April 2012 for the purpose of preparing an inventory of the assets of Madam Lee (which explanation was repeated in his solicitors’ letter dated 21 April 2015) is, on his own evidence, untrue or incorrect.  In view of my finding in paragraph 46 above, I also consider his statement in the Statutory Declaration that he found that the two Safe Deposit Boxes were empty on 14 April 2012 to be untrue or incorrect.  Lastly, I am unable to accept his evidence that he signed the Statutory Declaration after his solicitors had explained the contents thereof to him and he considered them to be correct.

48.Having given the above matters, in particular those mentioned in paragraphs 45 to 47 above, my anxious consideration, I have come, reluctantly, to the conclusion that the defendant knowingly made a false statutory declaration and gave untruthful evidence in court. Before reaching these findings, I have borne in mind the seriousness of the matters, and the caution against making a finding of serious misconduct in the absence of clear or compelling evidence (see Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117).  I have also considered whether the defendant could have made a genuine mistake when he said in his evidence that he removed all his personal items from the Safe Deposit Boxes to the two safe deposit boxes at Dah Sing Bank prior to the death of Madam Lee.  I reject that possibility because, quite apart from the fact that he has chosen not to avail himself of the opportunity to further explain the difficulties or inconsistencies in his evidence, I do not see how such mistake could be made when he in fact did not have two safe deposit boxes at Dah Sing Bank at the relevant time.  Also, I reject another possibility that he removed his personal items to his safe deposit box at the City Garden Branch of Hang Seng Bank but mistakenly thought, at the time when he gave evidence, that they were removed to the two safe deposit boxes at Dah Sing Bank, because, according to him, he asked Madam Lee to allow him to use the Safe Deposit Boxes in 2006 precisely because his existing safe deposit box was not sufficient for his needs.

49.Although I am unable, on the evidence before me, to make any definite finding that the defendant removed any particular item or items belonging to Madam Lee from the Safe Deposit Boxes on 14 April 2012, given the above findings I do not consider the defendant to be a fit and proper person to act as executor of the Will or administer the estate of Madam Lee.  I consider that the due and proper administration of the estate of Madam Lee and/or the interests of the persons beneficially entitled thereto require that the defendant be removed as executor under Section 33(3) of the Ordinance.  In this regard, the court has power under this section to remove an executor named in a will even before a grant has been issued (see Goodman v Goodman [2014] Ch 186).

THE DEFENDANT’S COMPLAINT

50.The defendant’s complaint, in a nutshell, is that the plaintiff’s allegation that he misappropriated items belonging to Madam Lee from the Safe Deposit Boxes was ill-founded and untrue, and was simply an excuse or pretext to delay the administration of the estate of Madam Lee so that he could prolong his occupation of Flat 19D without payment of rent.

51.I do not accept this complaint, for the following reasons:-

(1) Initially, the defendant, through his previous solicitors (Li, Chow & Company), informed Simon C W Yung & Co by letter dated 3 May 2013 that he did not intend to ask the plaintiff to pay rent for his occupation of Flat 19D in view of his brotherhood relationship with the plaintiff.  The possibility of the plaintiff being asked to pay rent or mesne profits for his occupation of Flat 19D was, it would appear, only first raised in Tony Au & Partners’ letter to the plaintiff dated 10 March 2015 and repeated in a letter to the plaintiff’s former solicitors (Winnie Leung & Co) dated 21 April 2015.

(2) I accept that the plaintiff pursues the allegation that the defendant misappropriated items belonging to Madam Lee from the Safe Deposit Boxes on 14 April 2012 because he genuinely believes in it.  On any view of the matter, the defendant’s conduct is highly suspicious. 

52.In passing, I should make it clear that I leave open the questions of the plaintiff’s liability to pay rent or mesne profits to the estate of Madam Lee for his occupation of Flat 19D, and the commencement date of such liability (if any), for future determination should it become necessary to do so.

GRANT OF PROBATE TO THE PLAINTIFF

53.Ms Lui submits that probate of the Will should not be granted to the plaintiff in view of the fact that he is caught in a position of conflict arising from his occupation of Flat 19D without payment of rent.  As earlier mentioned, the plaintiff’s liability (if any) to pay rent or mesne profits for his occupation of Flat 19D is an issue to be determined if it cannot be resolved by the parties themselves.  It is a discrete issue which can be determined by the court separately without necessarily requiring the plaintiff to be removed as executor of the Will.

DISPOSITION

54.For the foregoing reasons, I pronounce for the force and validity of the Will in solemn form, remove the defendant as executor of the Will, and grant probate of the Will to the Plaintiff as sole executor.  I shall hear the parties on the question of costs.

Mr Kenny Lin, instructed by Simon C W Yung & Co, for the plaintiff

Ms Ann Lui, instructed by Tony Au & Partners, for the defendant