Sum Siu Mui and Another v. Ho Sui Chun

HCA 2040/2020

[2021] HKCFI 1585

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 2040 OF 2020

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Before:  Hon Lok J in Chambers (Open to Public)

Date of Hearing:  28 May 2021

Date of Decision: 28 May 2021

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D E C I S I O N

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1.This is the hearing for determining the Plaintiff’s application for a mandatory injunction against the Defendant requiring her to:

(i)  demolish the existing cement tomb of the late Mr Yeung Tung Shing (“the Deceased”);

(ii)  reinstate the cement tomb to its original state; and

(iii)  reinstate a proper tomb by engaging Tin Fuk Funeral Company Ltd (“Tin Fuk”).

Background

2.The present proceedings involve the Deceased’s 2 families: (i) the 1^st Plaintiff as his de jure wife with their 2 daughters, namely, the 2^nd Plaintiff and Ms Yeung Wai Mei; and (2) the Defendant as his de facto wife with their 4 children, namely, Ms Yeung Wai Chi (“Wai Chi”), Ms Yeung Wai Tak, Ms Yeung Wai Ting and Mr Yeung Ming Fung.

3.The Deceased was a traditional indigenous villager in San Hui, Tuen Mun (屯門新墟) and passed away on 7 February 2020.

4.The Deceased and the Defendant had been living together as husband and wife for 40 years until his death, and she gave birth to the said 4 children for the Deceased.  The evidence suggests that the peace of the 2 families was all along maintained by the Deceased during his lifetime.

5.On 5 May 2009, the Deceased made the Will appointing the Defendant as the sole executor upon his death.

6.A grant of probate of the estate of the Deceased was issued to the Defendant on 9 June 2020.

7.After the death of the Deceased, the 1^st Plaintiff claimed to have spent a lot of money on the medical expenses and the funeral of the Deceased and asked the Defendant to be responsible for building a grave for the Deceased which she agreed to do.

8.Since the Deceased was an indigenous villager in San Hui, Tuen Mun, he was assigned a burial ground at Kwong Shan (礦山) in San Hui, Tuen Mun (“the Burial Ground”).

9.The Plaintiffs engaged Tin Fuk to provide the funeral services for the Deceased and bury the Deceased at the Burial Ground with a temporary grave (“the Temporary Grave”) after the funeral services on 29 February 2020. In order for the Deceased to be so buried at the Burial Ground, the 2^nd Plaintiff obtained a Certificate for Burial within Permitted Burial Grounds dated 11 February 2020 (“the Certificate”).

10.According to the Defendant, as it would cost more than $900,000 to engage Tin Fuk to build a grave, the Defendant engaged Alex Engineering Company (盛世工程公司) (“Alex Engineering”) to build a grave for the Deceased.  Before engaging Alex Engineering, Wai Chi and her husband spoke to the 1^st Plaintiff on the phone on 1 July 2020.  According to the Defendant, the 1^st Plaintiff expressly stated that she did not insist on using Tin Fuk and just gave her view on the matter to them but she did not take part in the matter.

11.The Plaintiffs dispute the telephone conversation, as she was not the one who actually spoke during the alleged telephone conversation.

12.There were further telephone conversations between the parties.  There is a serious dispute between them as to whether the Plaintiffs had allowed the Defendant to build the new grave for the Deceased.

13.According to the Defendant, Alex Engineering, on 11 July 2020, started the work building the new grave (“the New Grave”) according to the original location of the temporary gravestone and laying the new gravestone on the original location of the temporary gravestone. On 19 August 2020, the construction of the New Grave was completed. On 20 September 2020, the ritual of prospering the mountain (旺山) was carried out.  The total costs of building the New Grave for the Deceased were $338,000.

14.The Plaintiffs complain that the New Grave was constructed without the permission or consent of the Plaintiffs.

15.According to the Plaintiffs, the tomb site was illegally occupied and the New Grave was illegally and wrongly built by the Defendant.  According to the Plaintiffs, the direction and the location of the New Grave were not the same as those of the Temporary Grave.

16.It is the Plaintiffs’ case that after the building of the New Grave, the Plaintiffs always felt very sick and had sleep disorder and need to consult medical doctors for treatments frequently.  They have also consulted a Feng Shui master who was of the view that the New Grave was wrongly built which caused bad luck to the Deceased’s descendants or issues.

17.The Plaintiffs therefore make the present application for mandatory injunction against the Defendant.

Legal principles

18.The principles in determining who should be entitled to the body of a deceased and its burial and the approach to be adopted by the Court have been set out by Au J (as he then was) in the case of Re Estate of Lu Han Lung[1]:

(i)  There is no property in a corpse.

(ii)  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.

(iii)  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.

(iv)  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.

(v)  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.

(vi)  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.

(vii)  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”.

(viii)  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.

(ix)  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.”

19.On the other hand, the principle governing an application for interlocutory mandatory injunction was set out by Au J in the same case of Re Estate of Lu Han Lung[2] and summarised by DHCJ M K Liu in Luo Xiaoying v Tam Wui Sum:[3]

“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:

(i) 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.

(ii) 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.

(iii) 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 titled so much in its favour that justice required the injunction to be granted.”

20.The facts of these two cases are similar to those in the present case in the sense that they are all related to disputes about the right of burial of a deceased person.

Discussion

21.Applying these principles, it is difficult to see how the Plaintiffs can discharge the burden of establishing a high degree of assurance that at the trial of the action, it will be shown that the injunction is rightly granted.

22.It is indisputable that as the Defendant is the sole executor of the Deceased’s estate and has obtained a grant of probate of the estate, she is entitled to the possession of the body and responsible for its burial.

23.There are serious disputes between the parties as to: (i) whether the Defendant had obtained the consent of the Plaintiffs in building the New Grave; (ii) whether the New Grave was built at the exact location and direction of the Temporary Grave; (iii) whether the Deceased was buried outside the New Grave.

24.Even putting the Plaintiffs’ factual case at the highest and the court rules in favour of them on all these factual issues, the Plaintiffs still cannot challenge the Defendant’s right to bury the Deceased in accordance with the principles laid down in the Re Estate of Lu Han Lung[4].

25.As I see it, the whole basis of the Plaintiffs’ case is built upon the Certificate.  As the Certificate was granted in favour of the 2^nd Plaintiff, the Plaintiffs claim that only they have the right to bury the Deceased at the Burial Ground.

26.However, what the Plaintiffs fail to appreciate is that the Certificate does not give them the right to bury the Deceased.  At most, it is only a permission given by the Government for the Burial Ground to be used as the burial place of the Deceased.  Prima facie, the right to bury the Deceased belongs to the Defendant being the executor of the estate.

27.What would be the consequences if the Defendant buried the Deceased in the Burial Ground when she was not be permittee under the Certificate?  It will only be a matter for the Government to consider.  After all, the Government is the owner of the Burial Ground and the Certificate itself provides no right to the Plaintiffs to bury the Deceased.  The Certificate also does not confer any proprietary right on the part of the Plaintiffs in respect of the use of the Burial Ground.

28.Further, under section 118 of the Public Health and Municipal Services Ordinance, Cap 132, the Defendant herself is also entitled to apply for a Certificate as it is permissible for the Government to grant such permission to the executor as well.  So, it is always open to the Defendant to rectify the situation by applying for a fresh Certificate from the Government.

29.In this application for the interlocutory mandatory injunction, the Plaintiffs must satisfy the court to a high degree of assurance that it would succeed in proving all the issues in their favour. This is a higher threshold than the “serious issues to be tried” test.  As explained above, the Plaintiffs plainly fail to satisfy the high merits threshold in this action and the interlocutory application should be dismissed on this ground alone.

30.In addition, it is also plain that the balance of convenience does not lie in favour of the grant of the injunction sought. The Plaintiffs have failed to demonstrate any irreparable damage should the injunction be refused.

31.As regards the purported opinion of the Feng Shui master Dr Au, all he purports to say is merely the Feng Shui consequences if the Deceased was not properly buried in accordance with the Feng Shui principles.  The purported Feng Shui expert report does not qualify as a recognised field of expert evidence and is not admissible as expert evidence in this action.  The qualification of Dr Au in giving the purported Feng Shui expert report is also unclear.

32.What is more important is that there is nothing to show that the alleged medical conditions of the Plaintiffs have anything to do with the New Grave, and their complaints are completely devoid of any scientific and causational proof.

33.Ms Lau, counsel for the Plaintiffs, has referred me to the Chow Chi Keung v China Light & Power Company Limited[5]  with a view to support the proposition that the court should recognise factors such as “Fung Shui” in deciding cases.  However, that case concerned the valuation of land.  If “Fung Shui” factors do in fact have an impact on the value of land, there is no reason why the court should not take that factor into account in the valuation exercise.  It is a fact that apartments facing a cemetery would have a lower unit price than those which do not face the same direction. This is different from the present case.  How can the Plaintiffs prove that bad “Fung Shui”, if established, has in fact caused the sickness suffered by the Plaintiffs and their family members?

34.Ms Lau has also emphasised that the Deceased should be buried with proper respect and decency.  However, there is no evidence to suggest that by building the New Grave, there was no proper respect and decency for the burial of the Deceased.  The present case is different from the other cases where the family members were fighting for the right for the burial of a deceased person while the corpse had remained unburied pending the resolution of the dispute.

35.Furthermore, the injunction order sought which requires the Defendant to reinstate the cement tomb to its original state and reinstate a proper tomb is simply too vague to be complied with.  In fact, after clarifying with Ms Lau, I understand that the Plaintiffs are actually seeking for something beyond the terms of the proposed injunction.  The Plaintiffs want the New Grave to be dismantled.  At the same time, they require the Defendant to engage Tin Fuk to build a new grave to a standard which is “acceptable”.  This is certainly not something which is covered by the terms in the summons.  Further, there is nothing to define to what “acceptable standard” should the new grave be built.  There is simply no answer to this question.

36.For these reasons, I dismiss the Plaintiffs’ application for interlocutory injunction.

Ms Lau Chui Ling, Wendy, instructed by So, Ho & Co., for the Plaintiffs

Mr Kenny Lin, instructed by Ko & Chow, for the Defendant