Cheung Ting Kau, Vincent v. Koo Siu Ying and Another

HCAP 4/2011

[2018] HKCFI 637

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 4 OF 2011

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D E C I S I O N

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INTRODUCTION

1.The only application which requires the court’s determination concerns the defendants’ summons seeking interrogatories to be answered by the plaintiff.  It is opposed by the plaintiff.

BACKGROUND

2.The background relevant to this action has been summarized in my earlier decision of 11 December 2015 (defendants’ earlier application for discovery of documents).  The relevant passages are quoted below to facilitate comprehension of this decision:

“3. The plaintiff commenced this action in February 2011 (claiming to be the executor of a will dated 3 December 2004 of the late Mr Lim (‘the dec’d’ and ‘the 2004 will’)) against the defendants, respectively the dec’d’s concubine and daughter, who have earlier entered caveats against the 2004 will. He seeks the 2004 will to be pronounced in solemn form.

4. The defendants deny the claim on the following grounds:

(1) the dec’d lacked testamentary capacity at the time of the 2004 will;

(2) the dec’d was acting under the undue influence of his other concubine (‘Mdm U’) and his son (‘Peter Lam’);

(3) the dec’d did not know or approve of the contents of the 2004 will (he having in late 2003 expressed a wish inconsistent with the 2004 will);

(4) the dec’d’s signature on the 2004 will was different from his other signatures;

(5) the righteousness of the 2004 will is not admitted by reason of the above matters.

Further, the defendants counterclaim based on a Chinese will dated 2 February 1973, a Chinese codicil dated 20 January 1974 and/or an English will dated 23 September 1967.

5. Among the matters averred to in the defence pleading are:

(a) (as has in effect been so stated in the 2004 will) a gift of the dec’d’s ‘A’ shares in a Wisdoman Ltd (‘Wisdoman’) to Peter Lam;

(b) (as has in effect been so stated in the 2004 will) a gift of the dec’d’s Wisdoman ‘B’ shares to Mdm U;

(c) Wisdoman was the owner of about 484 million shares in Lai Sun Garment (International) Ltd (‘Lai Sun’), a company publicly listed in Hong Kong;

(d) inconsistent with the said testamentary gifts:

(1) on 8 December 2004 (a few days after the 2004 will) the dec’d purportedly transferred all his interest in Lai Sun to Wisdoman;

(2) on 14 December 2004 the dec’d purportedly transferred all of his Wisdoman shares to Mdm U and Peter Lam.”

In short, what lies at the heart of the dispute which this action seeks to resolve (at least insofar as the 2004 will is concerned) is the validity and enforceability of the 2004 will.

3.Further, the defendants have served on the plaintiff a set of interrogatories dated 12 December 2014 (“the Dec 2014 interrogatories”).  The plaintiff has answered them on oath in his answers dated 20 January 2015 (“the Jan 2015 answers”).

4.As the plaintiff relies on the Jan 2015 answers in his opposition to parts of this application, the Jan 2015 answers will be referred to below when necessary.

THIS APPLICATION

5.It appears most convenient to discuss the interrogatories involved in this application in the order in which they have been set out on 21 August 2017 (“the Aug 2017 interrogatories”).

6.The relevant legal principles are trite, and are largely governed by the discretion conferred by, and to be exercised in accordance with, the provisions of RHC Ord 26 rr 1 (especially r 1(1)), and 4 to 5.

(a)   Interrogatory (1)

7.This in gist relates to the transfer of the Lai Sun shares to Wisdoman (“Wisdoman share transfer”).  Two interrogatories are put forth.

8.The first interrogatory asks the plaintiff when he became aware of the Wisdoman share transfer.  The defendants contend that this is (and the other interrogatories are) necessary for disposing fairly of this action, or for saving costs.

9.The second interrogatory asks for particulars of any communication between the plaintiff and others concerning the Wisdoman share transfer before the dec’d’s death.

10.Here I agree with the plaintiff that the parties’ respective pleaded case does not allege that the plaintiff was in any event connected with the Wisdoman share transfer.  In an intended derivative or representative action brought by the 2^nd defendant herein (“Mdm Ling”) on behalf of the dec’d’s estate, the draft statement of claim avers that the Wisdoman share transfer was procured by Mdm U and Peter Lam.

11.For this reason, I also agree with the plaintiff this interrogatory is unnecessary (see para 2 above).

(b)   Interrogatory (2)

12.This interrogatory asks the plaintiff whether he became aware of the transfer of the shares of Wisdoman after the Wisdoman share transfer and before the commencement of this action.

13.Similar to what has been stated in relation to interrogatory (1), I do not consider this interrogatory to be relevant.  I also agree with the plaintiff this is even more so with regard to the period after the dec’d’s death.

(c)   Interrogatory (3)

14.This asks the plaintiff whether he became aware of any asset (property or shares) belonging to Wisdoman after the Wisdoman share transfer and before the commencement of this action.

15.The same reason as para 13 above also applies here.

(d)   Interrogatory (4)

16.This refers to 5 companies the shareholders of which were the dec’d and Peter Lam (together with another for 1 out of the 5 companies).

17.It asks the plaintiff whether he was aware of:

(a)  the dissolution of the above companies (and if so, the particulars relating to such dissolution);

(b)  any post-dissolution transfer of interests held by the dec’d to the plaintiff (and if so, the particulars relating to such transfer);

(c)  the dec’d was advised about his legal rights before the dissolution;

(d)  the identity of the legal advisor appointed to act for the dec’d in respect of the Wisdoman share transfer.

18.I agree with the plaintiff this interrogatory is irrelevant to the issues raised by the pleadings in this action (see para 2 above).

(e)   Interrogatory (5)

19.This refers to 3 companies the shareholders and/or directors of which were the dec’d, Mdm U and/or Peter Lam (sometimes with other people).

20.It asks the plaintiff information similar to those asked by interrogatory (4) (above).  Further, it asks:

(1)   whether the plaintiff knew two of the 3 companies resolved to destroy its own books and account upon their dissolution;

(2)   whether the plaintiff has copies of the filed accounts, management accounts and/or minutes (probably referring to the minutes of meetings) of the 3 companies;

(3)   whether the plaintiff knew of the distribution of assets by the 3 companies before their dissolution;

(4)   whether the plaintiff knew of payments made to Mdm U and/or Peter Lam (or companies connected to them) by the 3 companies before their dissolution;

(5)   whether the plaintiff knew of the whereabouts of the sale proceeds from the sale of Star House by one of the 3 companies.

21.For reasons similar to para 13 and 18 above, this interrogatory is irrelevant.

(f)    Interrogatory (6)

22.This refers to 3 companies the shareholders of which were the dec’d and/or Mdm U (sometimes together with others).  It asks whether the plaintiff knew:

(a)   the whereabouts of the dec’d’s shareholdings in the 3 companies when the time of the dec’d’s death;

(b)   the 3 companies were solvent at the time when they were liquidated and the particulars of any distribution to the plaintiff (as the executor appointed by the 2004 will) at the time of liquidation.

23.For reasons similar to para 13 and 18 above, this interrogatory is irrelevant.

(g)   Interrogatory (7)

24.In essence, this asks the plaintiff about any disposition or transfer of properties belonging to the dec’d’s estate to any person, and the particulars relating to such disposition or transfer, after the plaintiff’s appointment as the executor.

25.As the plaintiff correctly contends, this can at most be relevant to the administration (proper or otherwise) of the dec’d’s estate.  It is irrelevant to the issues in this action.

(h)   Interrogatory (8)

26.This asks the plaintiff whether he was aware of the medical practitioner who has been instructed to certify the dec’d’s testamentary capacity and the identity of such medical practitioner and the date of such instruction.

27.While the plaintiff admits this to be a relevant interrogatory, the plaintiff argues correctly that this information has already been disclosed in:

(1)   the Jan 2015 answers;

(2)   the plaintiff’s witness statement dated 6 November 2014 (para 25 and 28 thereof).

It is therefore unnecessary.

CONCLUSION

28.By reason of the above matters, I agree with the plaintiff that the defendants’ summons should be dismissed with a direction that the related interrogatories be withdrawn.

OTHER MATTERS

29.The parties’ written submissions also mentioned various other points.  These have not been expressly set out or dealt with above.  This is so only because of the need to balance between the length of the decision and its easier comprehension.  It does not mean those other points are thought to be irrelevant (or have been overlooked).  To avoid doubt, those other points have also been considered.

COSTS ORDER NISI

30.There is no apparent reason to depart from the usual rule that costs should follow the event.  There will accordingly be a costs order nisi pursuant to Ord 42 r 5B(6) that the costs of the defendants’ summons be paid by the defendants to the plaintiff.

31.I consider summary assessment of costs to be appropriate.  The above costs shall thus be so assessed.  For this purpose:

(a)   the plaintiff be at liberty to lodge with court and serve a statement of costs within 14 days from today;

(b)   the defendants be at liberty to lodge with court and serve a statement of objections within 14 days thereafter.

Mr Bernard Man SC leading Mr Keith Lam, instructed by Reed Smith Richards Butler, for the plaintiff

Mr Jose Maurellet SC leading Mr Tom Ng, instructed by Holman Fenwick Willan, for the defendants