Saira Bibi (Minor) By Her Natural Mother and Next Friend Hung Kar Yan Karin and Another v. Guldin

HCAP 23/2017

[2019] HKCFI 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

PROBATE ACTION NO 23 OF 2017

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JUDGMENT

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Introduction

1.In these proceedings, the plaintiffs seek an order revoking the Letters of Administration dated 9 March 2017 granted to the defendant (HCAG 000090/2017) (“the LA”).  The plaintiffs claim that the LA was fraudulently obtained by the defendant and ought to be revoked.  The plaintiffs also seek an order granting Letters of Administration to the mother of the plaintiffs, Madam Hung Kar Yan Karin, also known as Samina Bibi (“Madam Hung”), and Madam Kun Po Chu Dion (“Madam Kun”).

2.Based upon the evidence as to service produced by the plaintiffs, I am satisfied that the papers in these proceedings have been duly served on the defendant.

The facts

3.The evidence set out in the affirmations filed by the plaintiff in these proceedings are unchallenged.  I accept those evidence.  The facts as shown in the evidence are set out in the ensuing paragraphs.

4.Mr Atta Mohammed (阿力), alias Atta Muhammad (“the deceased”) domiciled in Hong Kong, passed away intestate on 30 December 2015.  The deceased was survived by his two only children, the 1^st and the 2^nd plaintiffs.

5.The 1^st and the 2^nd plaintiffs are a girl and a boy respectively born on 12 January 2004 and 17 September 2007.  They were born out of the deceased’s relationship with Madam Hung.  Since late 2007, Madam Hung was no longer in a relationship with the deceased.

6.The defendant is the deceased’s father.

7.In or about 2014, the deceased received a settlement sum of about HK$10.4 million as compensation in HCPI 811/2012. On 30 December 2015, the deceased passed away in Pakistan at the age of 38.  The plaintiffs are the only beneficiaries of the deceased’s estate (“the estate”) and Madam Hung are the plaintiffs’ guardian.

8.In mid-April 2016, the deceased’s mother, Madam Khushi Mantaz Bibi (“Madam Khushi”), through an intermediate told Madam Hung that the deceased was prepared to misappropriate the estate and to deprive the plaintiffs’ entitlements thereto.

9.Without any prior notice to Madam Hung and the plaintiffs, on4 January 2017, the defendant filed an affirmation in HCAG 000090/2017 to apply for Letters of Administration of the estate.  The defendant made an affirmation dated 15 February 2017 in support of his application, in which he falsely claimed that the deceased had no children or issue duringthe whole of the deceased’s lifetime, and the defendant himself and Madam Khushi, are the only persons entitled to have shares in the estate.

10.On 9 March 2017, the defendant obtained the LA.

11.In 2017, the defendant commenced a set of legal proceedings inPakistan (Pakistan Civil Suit No 237/2017) (“the cancellation proceedings”),in which the defendant sought an order from the Pakistan Court cancelling the status of the plaintiffs.  The defendant said that the plaintiffs are not the deceased’s children.  The defendant named some authorities in Pakistan and the public at large as the respondents in those proceedings.  Neither Madam Hung, nor the 1^st plaintiff, nor the 2^ndplaintiff was named as a respondent in the proceedings.  In the cancellation proceedings, the defendant falsely claimed, inter alia:

(1)   the deceased is issueless;

(2)   the deceased’s wife, Ms Samina Bibi (ie Madam Hung), died in 2001;

(3)   the LA granted by the Hong Kong Court supports the above;

(4)   the birth certificates of the plaintiffs are fake, bogus and fabricated;

(5)   the plaintiffs do not exist at all and they are fictitious figures;

(6)   the defendant is oblivious of the birth of a daughter and a son of the deceased; and

(7)   the deceased’s relatives have concocted the fabricated legal heirs of the deceased to cover their embezzlements and misappropriations of the estate.   

12.In another set of proceedings in Pakistan which is related to the cancellation proceedings (“the related proceedings”), the Pakistan Court has made a finding that the plaintiffs are the deceased’s children.  The Pakistan Court found that the defendant had attempted to exclude the plaintiffs in the division of the deceased’s properties. The Pakistan Court has also said that the plaintiffs have a right to commence criminal proceedings against the defendant.

13.Madam Hung is the mother and the guardian of the plaintiffs.  Madam Kun is the wife of the younger brother of the plaintiffs’ maternal grandfather.

14.Madam Khushi has made an affirmation dated 21 March 2018 in support of the plaintiffs’ case.  The deceased’s mother has also confirmed that she is not interested in being appointed as an administrator of the estate.

Analysis

15.This court has the jurisdiction to order revocation of the LA [1]. The relevant principles concerning the exercise of this jurisdiction have been helpfully summarized by Mr Ken To, counsel for the plaintiffs, in his written submissions[2].

16.Based upon the evidence before the court, the LA was obtained by the defendant fraudulently.

17.There can be no doubt that the plaintiffs are the deceased’s children. This is supported by:

(1)   the finding of the Pakistan Court in the related proceedings;

(2)   the birth certificates of the plaintiffs issued by the Government of the HKSAR;

(3)   the birth certificates of the plaintiffs issued by the Government of Punjab; and

(4)   a letter written by a law firm on behalf of the deceased to the Director of Legal Aid (“DLA”) dated 20 September 2011, in which the law firm requested the DLA to assist the deceased to make an application for an order granting him access to his children, namely the plaintiffs.

18.The averments made by the defendant in the cancellation proceedings are false and untrue.  The finding made by the Pakistan Court in the related proceedings clearly shows that the defendant is pursuing a fraudulent scheme to deprive the plaintiffs’ interests in the estate.  That is why the defendant falsely represented to the Hong Kong Court that the deceased had no children when the defendant was making his application for the LA.

19.In these circumstances, I am of the view that the LA ought not to have been granted in the first place and must be revoked.

20.Mr To submits that Letters of Administration should be granted to Madam Hung and Madam Kun.  Madam Hung is the plaintiffs’ mother and Madam Kun is a close relative of the plaintiffs.  Madam Khushi is not interested in being an administrator of the estate.  Clearly, the defendant himself cannot be an administrator.  In these circumstances, I agree with Mr To and accept his proposal.

Disposition

21.I order that the LA be revoked and declared null and void.  I further order that Letters of Administration be granted to Madam Hung and Madam Kun.

22.Costs should follow the event.  I have ruled that the LA was fraudulently obtained by the defendant.  That being the case, I am of the view that indemnity costs are justified.  I order that costs of these proceedings (including all costs reserved, if any) be paid by the defendant to the plaintiffs forthwith on an indemnity basis, to be taxed if not agreed.  The plaintiff’s own costs are to be taxed in accordance with the Legal Aid Regulations.

23.Lastly, it remains for me to thank Mr To for his helpful assistance rendered to the court.

Mr Ken To, instructed by Hobson & Ma, assigned by Director of Legal Aid, for the 1^st and 2^nd plaintiffs

The defendant was not represented and did not appear