Luo Xiaoying v. Tam Wui Sum and Another

HCMP 277/2020

[2020] HKCFI 618

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 277 OF 2020

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Before: Deputy High Court Judge MK Liu in Chambers

Date of Hearing: 17 April 2020

Date of Decision: 17 April 2020

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DECISION

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1.By a summons filed on 9 April 2020 (“the summons”), the plaintiff (“P”) makes an application (“the application”) against the 1^st and the 2^nd defendants (“D1” and “D2”, collectively “Ds”) for an interlocutory injunction allowing P to possess the body of the Deceased for the funeral service. The injunction sought also requires Ds to pass the documents which is necessary for the purpose of carrying out the funeral for the Deceased to P, and prohibits Ds to obtain the Deceased’s body and carry out funeral service for him. I am of the view that there is urgency in this application.

2.Having read the evidence as to service produced by P, I am satisfied that the papers concerning the application have been duly served on Ds.  No evidence has been filed by Ds in opposition to the application.

Background

3.The background facts have been set out in P’s affirmation in support of the application, which are as follows:

(1) The Deceased married D1 on 15 December 1969.  They have four children and the eldest son is the D2.

(2) D1 and the Deceased divorced in Hong Kong on 19 March 1993. 

(3) In 2002, P met the Deceased.  They married in Hong Kong on 17 November 2003.  They have no children.

(4) The Deceased passed away in Grantham Hospital on 13 March 2018.  No will of the Deceased has been found.

(5) Under a declaration dated 15 March 2018 signed by P and D2, P and Ds agreed to handle the funeral and cremation together.  Under the arrangement stated in the declaration, P kept the Deceased’s Hong Kong Identity Card and Ds kept (a) the Certificate of Body Collection, (b) Medical Certificate of the Cause of Death (Form 18) and (c) Medical Certificate (Cremation) (Form 2).

(6) Later, the trust relationship between P and Ds broke down.

(7) P has made an application for the grant of the administration (HCAG 4247/2019).  Ds have also made an application for the grant (HCAG 7073/2018). The Probate Registry refused to issue the grant until one of the applications is either refused or withdrawn.

(8) Grantham Hospital had repeatedly requested the parties to retrieve the Deceased’s body.  The hospital’s pathologist viewed the condition of the Deceased’s body and opined that the condition was so bad that immediate removal of the body from the mortuary was required.

(9) In the letter from Grantham Hospital dated 12 March 2020, the hospital stated that they had sought assistance from the Food and Environmental Hygiene Department to immediately dispose of the body due to hygienic concerns.

4.D1 claims that she has never divorced the Deceased.  In the light of the copy of the certificate of making decree nisi absolute (divorce) produced by P, D1’s claim is untenable.  Further, the marriage between P and the Deceased is evidenced by the copy of the marriage certificate produced by P.

The Law

5.The present application is similar to the one in Re Estate of Lu Han Lung [2010] 3 HKLRD 651.  I am of the view that the principles set out by Au J (as he then was) in that case are applicable in this application.

6.The principles concerning interlocutory injunctions are well known.  Those principles have been summarized by Au J at [28] of Re Estate of Lu Han Lung, which are as follows:

(1) Whether there is a serious question to be tried on the plaintiff ’s claim and the reliefs sought.  If the answer is negative, no interlocutory injunction would be granted.

(2) After being satisfied with question (1), the following questions will be asked:

(a) Whether damages would be a sufficient remedy for the plaintiff if the interlocutory injunction is not granted.  If the answer is affirmative, generally, no interlocutory injunction would be granted.

(b) If the answer is negative, then the court should ask whether damages are a sufficient remedy for the defendant even if the injunction is wrongly granted.  If the answer to this question is positive, the interlocutory injunction should usually be granted.

(3) If the answer to (2)(b) is also negative, then the court should proceed to consider all the circumstances as to whether on the balance of convenience, it is just and convenient to grant the injunction.

7.Similar to the situation in Re Estate of Lu Han Lung, the interlocutory injunction sought by P also has a mandatory element, ie requiring Ds to deliver up the necessary documents to P.  In these circumstances, the considerations mentioned in Music Advance Ltd v Incorporated Owners of Argyle Centre Phase I [2010] 2 HKLRD 1041 are also relevant.  As summarized by Au J at [29] of Re Estate of Lu Han Lung, the relevant considerations are as follows:

(1) In general, the interlocutory mandatory injunction will not be granted unless there is a high degree of assurance that at the trial of the action, it will be shown that the injunction was rightly granted.

(2) Where it is shown, as an exception to this general approach, that the case is one in which the withholding of an interlocutory mandatory injunction “would in fact carry a greater risk of injustice than granting it even though the court does not feel the high degree of assurance” as aforesaid, it would be right to grant an interlocutory mandatory injunction.

(3) If a plaintiff seeking an interlocutory mandatory injunction could not demonstrate more than a serious question to be tried, it would have to show that the balance of convenience tilted so much in its favour that justice required the injunction to be granted.

8.In an urgent application for an interlocutory injunction concerning obtaining a deceased’s body for funeral, the principles in determining who should be entitled to the body of a deceased and its burial have been set out by Au J at [32] of Re Estate of Lu Han Lung:

(1) There is no property in a corpse.

(2) A man cannot by will dispose of his dead body and any direction by will or otherwise by the deceased on burial cannot be enforced and is void.

(3) As a starting position, the executor named in a will or the known personal representative in intestacy is entitled to the possession of the body and responsible for its burial.  The right of the surviving spouse or de facto spouse will also generally be preferred to the right of the children.

(4) However, this starting position can be displaced where the court is satisfied that there are circumstances to justify a departure from it.  Some such circumstances are, for example, where the prima facie entitled person is not ready willing and able to arrange for the burial of the deceased, or in the case of intestacy, there is no surviving spouse or where no one has indicated to be prepared to apply for the administration of the deceased’s estate.

(5) A person with the privilege of choosing how to bury a body is expected to consult with other stakeholders, but is not legally bound to do so.  He also cannot use his or her right in such a way as to exclude friends and relatives of the deceased expressing their affection for the deceased in a reasonable and appropriate manner.

9.The approach adopted by the court in this kind of applications is the one set out by Au J at [33] of Re Estate of Lu Han Lung:

(1) The court should not embark on a lengthy adversarial hearing to resolve the various claims and counterclaims, and cross-examination will usually be inappropriate, as this would delay the decision for an unacceptable period while the body remained undisposed of.

(2) The court should apply the consistent principles (as summarized above) to resolve the matter.  The court should approach the issue by seeking to identify a person with the best claim in law to the responsibility of making the burial arrangements instead of trying to resolve the matter based on the “merits”

(3) In adopting this approach and to resolve the matter in a practical way, an important consideration is that the body should be disposed of with all proper respect and decency and, if possible, without unreasonable delay.

(4) The court would try to arrive at a practical and fair solution, over which reasonable people might disagree.  In seeking to do so, the effect should be given as far as possible to the wishes of the deceased or cultural and religious factors, but only if the same can be ascertained without the need to resolve the dispute on the evidence.

Analysis

10.Rule 21 of the Non-Contentious Probate Rules provides:

“(1) Where a person dies wholly intestate, the persons having a beneficial interest in the estate shall be entitled to a grant to administration in the following order of priority, namely —

(i) the surviving spouse or the surviving partner or partners to a union of concubinage entered into before 7 October 1971;

(ii) the children of the deceased including any children born of a union of concubinage entered into before 7 October 1971, or the issue of any such child who has died during the lifetime of the deceased;

……”

11.Where a marriage is null or has been annulled or dissolved by a decree absolute of divorce, on the death intestate of one party to the marriage the other is not a surviving husband or wife and therefore takes no interest in the estate. See Re Morrieson, Hitchins v Morrieson (1888) 40 Ch D 30, 31.

12.The Deceased died intestate.  It is indisputable that P is the surviving lawful spouse of the Deceased.  D1 divorced with the Deceased in 1993.  D1 was not the lawful spouse at the time of the death of the Deceased and she has no interest in the Deceased’s estate.

13.Under rule 21 of the Non-Contentious Probate Rules, P has a higher priority than D2, who is the son of the Deceased, to the grant of the administration.

14.Therefore, it is likely that P will be appointed as the administratrix.  This is the starting position.

15.P is able and willing to be the administratrix of the Deceased’s estate and to handle the Deceased’s body appropriately.  I am of the view that no circumstance has been shown to justify a departure from the starting position.  As submitted by counsel for P, as a person staying with the Deceased for more than 14 years, including the final days of the Deceased’s life, P is the most suitable person to handle the funeral.

16.In my judgment, P has the best claim in law to the responsibility of making the funeral and cremation for the Deceased.  There is a high degree of assurance that at the trial of this action, it would appear that the injunction is rightly granted.

17.The application is related to the retrieval of the Deceased’s body for funeral service.  To carry out a decent and respectful funeral and crematory service is important and hard to be quantified with money. The Deceased’s body is decomposing, and Grantham Hospital has contacted the Food and Environmental Hygiene Department to help to dispose of the body.  If the application is refused, there is a real risk that the body would be disposed of shortly without going through any funeral service.  In this unfortunate scenario, even if P succeeds at the trial, damages cannot be a sufficient remedy.

18.P has provided an undertaking as to damages to the court.  In the event that she is not able to prove her case at the trial, P would compensate Ds the loss suffered by them as a result of the interlocutory injunction.  There is no evidence showing that damages would not be a sufficient remedy to Ds if the injunction is held to be wrongly granted at a later time.  Further, even if damages would not be a sufficient remedy to Ds, I am of the view that it is of utmost importance that there should be a decent and respectful funeral and crematory service for the Deceased.  P has also provided an undertaking to the court that she will notify Ds about the arrangement of the funeral so that they can attend the funeral and pay tribute to the Deceased.

19.In view of all these, I am of the view that the balance of convenience is in favour of granting the interlocutory injunction. In my judgment, P is entitled to have the interlocutory injunction sought in the summons.

Disposition

20.I would require Ds to deliver up the documents specified in [1] of the summons to P by noon on 21 April 2020.  Subject to this, I make an order in terms of the summons.  All the undertakings offered by P should be set out in the order.  Costs of this application be reserved.

21.Lastly, it remains for me to thank counsel for the helpful assistance provided to the court.

Mr Hui Yu, Henry, instructed by Au Yeung, Chan & Ho, for the plaintiff

The 1^st and 2^nd defendants appearing in person