Case Document

100%Judiciary

CACV 239/2018

[2019] HKCA 699

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 239 OF 2018

(ON APPEAL FROM HCMP 3186/2016)

____________________________

	IN THE MATTER OF the estate of CHAN CHUNG HAN (陳仲嫺) also known as CHAN CHUNG HONG (陳仲嫺) late of Flat 907, 9th Floor, Kent Mansion, Nos. 97 Tin Hau Temple Road, North Point, Hong Kong, Married Woman, deceased
	and
	IN THE MATTER OF the Grant of Letters of Administration No 11355 of 2013
	and
	IN THE MATTER OF Section 33(3) of the Probate and Administration Ordinance, Cap. 10

____________________________

BETWEEN
	TSANG WING KWAI	Plaintiff
	and
	TSANG WING FAI	Defendant

____________________________

Before: Hon Lam VP, Au JA and G Lam J in Court

Dates of Written Submissions: 23 April, 6 and 17 May 2019

Date of Judgment: 28 June 2019

________________________

J U D G M E N T

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Hon Lam VP (giving the Judgment of the Court):

1.On 13 February 2019, we handed down a judgment dismissing the appeal.

2.By a Notice of Motion of 11 March 2019, the Defendant acting in person applied for leave to appeal to the Court of Final Appeal against the judgment. He set out his grounds in a document attached to the Notice of Motion as follows:

“ 1. Great general interest and public importance on the WILL’s Power for the EXECUTOR.

2. The Sole Executor and Trustee (Tsang Wing Fai) follows the claue(s) 5, 7.(a) & (b) under the PROBATE which being granted on December 5, 2013.

3. The granted Probate which contained the 5,000/10,000 shares in Open Treasure Industries Limited (OTIL). And being re-confirmed under at HCMP 1440/2014 and HCMP 3186/2016 Judgment which dated May 21, 2018.

4. The Plaintiff (Tsang Wing Kwai) holds 5,000 shares (50%) who refused to provide with the Defendant (Executor) a True and Perfect Inventory and Account on OTIL. And it had lasted since December 31, 2013.

5. The Judgment on HCMP 1440/2014 and HCMP 3186;/2016 was misleading by 2 originating summons. And which to be believed that this 5,000 shares in OTIL had been included in the submitted Accounts which had provided under the working capacity of the Executor.

6. Starting from October 2012 to November 2013 – 3 Caveats were filed by the Plaintiff & withdrawn. The Plaintiff has been raising lawsuits against the Estate and the Executor on (HCMP 1912/2013, CACV 216/2016); HCMP 1440/2014; HCMP 3196/2016.

7. The Executor’s one priority is to defend the lawsuits and protect the Estates under these lawsuits. And which raised on yearly basis by the plaintiff.

8. The Executor has been travelling from US to Hong Kong working as the full time Executor which includes the management of the 5 properties – 18 hours daily duty.

9. The Executor is utilizing the vacant Home Office working from 9 to 6 PM. And without renting any apartment or hotel. Executor occupying one Bedroom.”

3.In accordance with Practice Direction 2.1, the Defendant and counsel for the Plaintiff lodged submissions on the motion. The last set of submissions was the submissions in reply of the Defendant dated 17 May 2019. Notwithstanding the request for oral hearing by the Defendant, we do not find it necessary to have an oral hearing. In accordance with the usual practice, we shall determine the Notice of Motion on the papers.

4.Having read the documents and submissions lodged by the Defendant, we cannot find any question of great general or public importance in the intended appeal. No such question has been formulated by the Defendant and his grounds and submissions simply set out his version of factual background and reiterated that he was the executor appointed under the will.

5.We have explained in our judgment that an executor appointed under a will can be removed. We also rejected the submission that the judge below failed to take account of this factor.

6.There is therefore no basis for leave to be granted pursuant to Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance.

7.For these reasons, the Notice of Motion of 11 March 2019 is dismissed. We also order the Defendant to pay the costs of the Plaintiff in the Notice of Motion. Solicitors for the Plaintiff did not lodge any statement of costs in accordance with PD 2.1 Para 3(d). We would fix the costs of the Plaintiff summarily at $20,000.